Farzam v. Canada (Minister of Citizenship and Immigration)

Farzam v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2005-12-06
Neutral citation
2005 FC 1659
File numbers
T-626-96
Notes
Digest
Decision Content
Date: 20051206
Docket: T-626-96
Citation: 2005 FC 1659
Ottawa, Ontario, December 6, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
HUSSEIN FARZAM
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Plaintiff, Mr. Hussein Farzam, is 42 years old. He left Iran in August of 1984 without his wife, Ms. Esmat Mohiti. On October 26, 1988, he arrived in Canada as a Government-assisted refugee (CR1) on a Minister's Permit. He became a landed immigrant on November 5, 1991. He made attempts before and after his landing to have his wife admitted in Canada as a member of the family class, either on a Minister's Permit or a permanent resident visa.
[2] On January 10, 1994, a Minister's Permit was issued for Ms. Mohiti to come to Canada. The Minister's Permit was sent to the Canadian Embassy in Tehran but was never claimed by Ms. Mohiti. The Canadian Embassy in Damascus, which was responsible for processing Ms. Mohiti's application to come to Canada, has no record of contact from the Plaintiff or Ms. Mohiti from January 10, 1994 to January 5, 1995. The Minister's Permit was later returned to the Embassy in Damascus and was ultimately destroyed on February 5, 1995.
[3] Sometime in May 1996, the Plaintiff brought the present action in damages against the Crown following the staying of a similar action launched in August of 1995 in the Ontario Superior Court. The Plaintiff alleges that officials of the Department of Citizenship and Immigration Canada (CIC) were negligent both in the processing of his application for permanent residency and of his wife's immigration file.
[4] However, as explained below, the Plaintiff's action has already been dismissed insofar as it claims damages for loss of employment opportunities and for misrepresentations made to him prior to his arrival in Canada. Moreover, the Plaintiff's claims based on failure to admit his wife to Canada have also been dismissed insofar as they rest upon alleged negligence of officers of the Defendant not committed outside of Canada (Farzam v. Canada (Her Majesty in Right of the Minister of Citizenship and Immigration), 2003 FCT 140, [2003] F.C.J. No. 203 (QL)).
RELATED PROCEEDINGS
[5] On September 16, 2002, the Defendant filed a motion for summary judgment in which it was argued that there was no genuine issue for trial. Essentially, the motion was based upon limitation periods having expired when the action was brought. The matter was decided on February 10, 2003 by Hugessen J. who allowed the motion in part on the grounds that the Plaintiff did not commence his action within the six-month or six year limitation periods provided for by section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 and section 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P-38, as the case may be.
[6] First, Hugessen J. took the view that the action of the Plaintiff could be divided into three distinct claims. The first claim was based on alleged misrepresentations made in 1988 to the Plaintiff by an Immigration official outside of Canada, prior to the Plaintiff ever coming to Canada. The second claim was based upon an alleged loss of employment opportunities at the time the Plaintiff arrived in Canada due to the Plaintiff's treatment as a refugee claimant, which allegedly precluded him from employment without authorization. The third claim dealt with damages resulting from an alleged marriage breakdown in 1993 due to the Defendant's alleged negligent actions; this resulted in the Plaintiff allegedly suffering depression (Farzam, supra at para. 5).
[7] Second, Hugessen J. considered that the Plaintiff's action lay solely in negligence and that there were no facts upon which the Plaintiff could support a claim for a breach of fiduciary duty:
(...) The Plaintiff has not shown that he was particularly vulnerable, indeed the material before me indicates quite clearly that from an early stage after his arrival in Canada, he obtained the assistance of legal aid and had legal advice given to him. In my view, while it is true that the categories of fiduciary duty are not closed, they do not include the duties owed by Immigration Officials to immigrants who are in a position to and do obtain legal assistance for their dealings with the Department. (Farzam, supra at para. 6)
[8] Third, Hugessen J. decided that the first two claims were out of time when the present action was brought, whether we view the prescriptive period as six months or six years. Accordingly, he ordered the dismissal of the Plaintiff's action insofar as it claims damages for loss of employment opportunities and for misrepresentations made to him prior to his arrival to Canada (Farzam, supra at para. 8).
[9] Fourth, Hugessen J. noted that Ms. Mohiti had "apparently" divorced the Plaintiff in December of 1993, which is before the issuance of the Minister's Permit in January 1994. He also remarked that there was some evidence of negligent conduct in either the Damascus or the Tehran offices in the processing of Ms. Mohiti's application to come to Canada. Apparently, two files had been opened, which resulted in Immigration officials misinforming Ms. Mohiti that the Plaintiff had not provided the required undertaking of assistance (as evidenced by a Telex dated June 4, 1993 addressed to Ms. Mohiti). Indeed, the Defendant has readily admitted this statement to be erroneous since the Plaintiff had already provided the undertaking of assistance sometime in June 1992. Since officials in Damascus or Tehran did not enjoy the protection of the Authority Protection Act in respect of acts or omissions done by them in those offices, the six-year limitation period applied. Accordingly, Hugessen J. found that the part of the claim which was based upon alleged negligence by officials in overseas offices appeared to be timely and should not be summarily dismissed. However, he also found that this was not the case with respect to allegations of negligent conduct of officials in Ontario which were time-barred. Therefore, Hugessen J. ordered the dismissal of the Plaintiff's claims based on failure to admit his wife to Canada insofar as they rest upon alleged negligence of officers of the Defendant not committed outside Canada.
[10] On March 12, 2003, the Plaintiff appealed the decision of Hugessen J. to the Federal Court of Appeal. On October 24, 2003, as a result of a status review, the Court of Appeal dismissed the Plaintiff's appeal. Accordingly, the only surviving element of the Plaintiff's action is the claim regarding the alleged failure to admit the Plaintiff's wife to Canada, insofar as it is based upon allegations of negligence against Immigration officials located outside Canada.
[11] Following a pre-trial conference, Madam Prothonotary Aronovitch summed up, in her order dated February 1, 2005, by reference to the above order of Hugessen J., the factual and legal framework applicable to the case at bar:
a) Whether, in the circumstances of this case, a prima facie duty of care was owed to the Plaintiff regarding the processing of his wife's application?
b) Whether the actions or omissions of CIC officials acting outside of Canada breached the applicable duty of care regarding the handling and processing of Ms. Mohiti's file?
c) In the event that liability can be established, what is the appropriate quantum of damages?
d) Is the successful party entitled to costs, and if so, in what amount?
[12] The parties having indicated their readiness to proceed at the earliest available opportunity, Lutfy C.J. issued on March 16, 2005 an order setting out the trial date as October 24, 2005, to be heard in Ottawa. Twelve days were set aside.
[13] On October 13, 2005, ten days before the present trial was set to begin, the Plaintiff filed a motion for adjournment on the basis that his brother and mother, Mr. Hassan Farzam and Mrs. Razia Farzam (the Iranian witnesses), whom he had asked to testify at the trial, were denied visitors' visas to come to Canada. On October 18, 2005, Lutfy C.J. dismissed the motion for an adjournment.
[14] Concurrently, on October 13, 2005, the Plaintiff also made a motion in writing to allow the introduction of two documents attributed to Ms. Mohiti as direct evidence at the trial, which was referred to me as trial judge. According to the Plaintiff these documents would provide evidence of the cause of the divorce Ms. Mohiti allegedly sought in December 1993. The first document was a letter apparently signed by Ms. Mohiti, dated April 13, 1993, addressed to the Plaintiff (the 1993 letter). The second document was a declaration apparently emanating from Ms. Mohiti and witnessed by a Notary Public in Iran, dated October 3, 1996 (the 1996 statement). Traditionally, the rule against hearsay renders inadmissible written statements that are tendered as proof of the truth or as proof of their content. For the purposes of the motion, I assumed that their authenticity had been established. I noted that Ms. Mohiti had "apparently" divorced the Plaintiff in December 1993, a fact that would have had to be proven at the trial. That being said, I found that the evidence in issue did not satisfy the separate requirements of "necessity" and "reliability". The Plaintiff knew for quite some time that he would need to demonstrate at trial the causation of the divorce, and that the best witness to testify on this issue would have been Ms. Mohiti herself. I decided that the right to cross-examine Ms. Mohiti on such a crucial issue should prevail under the specific circumstances of the case. Therefore, I determined that before the statements made by Ms. Mohiti in 1993 and 1996 are accepted as direct evidence, the Defendant should be able to cross-examine her at trial on all relevant facts and circumstances of the marriage breakdown and ensuing divorce. Accordingly, the motion was dismissed on October 21, 2005 (Farzam v. Canada(Her Majesty the Queen in right of the Minister of Citizenship and Immigration), 2005 FC 1432, F.C.J. No. 1757 (QL)).
[15] On October 21, 2005, which is less than one clear day before the scheduled trial, the Plaintiff filed and served a Notice of Motion for an Order allowing the Plaintiff to introduce the evidence of the Iranian witnesses at the trial through the use of a teleconferencing. The Plaintiff wished to enter Ms. Mohiti's personal reasons for divorcing him as direct evidence at the trial through the testimony by teleconference of the Iranian witnesses. The motion, which was vehemently opposed by the Defendant, was argued and debated before me at the opening of the trial on October 24, 2005. Again, I noted that important parts of the proposed testimonies would have a hearsay character and would also raise concerns as to the credibility of the Iranian witnesses who are respectively the mother and the brother of the Plaintiff. I found that it would be essential in these circumstances that the Court be able to observe the demeanor of the Iranian witnesses. In conclusion, the evidence presented by the Plaintiff failed to satisfy me that the issuance of an Order that the evidence of the Iranian witnesses be taken by telephone was in the interest of justice and would secure, at such a late date and in the absence of a detailed plan, the just, most expeditious and least expensive determination of the contested issues in this action. Accordingly, the motion was dismissed on October 26, 2005 (Farzam v. Canada(Her Majesty the Queen in right of the Minister of Citizenship and Immigration), 2005 FC 1453, F.C.J. No. 1776 (QL)).
[16] On November 2, 2005, after presenting his evidence, the Plaintiff through his counsel made an oral request before me for an order indefinitely adjourning this trial. Again, it was made on the basis that the testimonies of the Iranian witnesses were necessary and that their absence at the trial was not due to any contrivance on the Plaintiff's part. Those arguments had already been made in the Plaintiff's previous motion for adjournment of the trial and had been dismissed by Chief Justice Lutfy. This new request, which was treated as a formal Motion for Adjournment, was dismissed on the same day (Farzam v. Canada(Her Majesty the Queen in right of the Minister of Citizenship and Immigration), 2005 FC 1497). Accordingly, the trial continued with the presentation of the Defendant's evidence and ended on November 7, 2005 with the pleadings of counsel.
THE EVIDENCE AT TRIAL
[17] I accept the following parts of the Plaintiff's testimony inasmuch as they provide a useful background on the circumstances surrounding his marriage and the steps he has taken to have his wife admitted to Canada, or are otherwise relevant to the issues of damages and causation. With respect to the processing of both the Plaintiff's application for landing and Ms. Mohiti's application to come to Canada, I mostly rely on the documentary evidence and on the testimonies of the Defendant's witnesses who I have found to be entirely credible and more reliable than the Plaintiff.
Iranian Period (1963 to 1984)
[18] The Plaintiff was born in 1963 and grew up in Naghadeh, a town located in the province of Western Azerbayjan in Northern Iran, which is not too far from the Iraqi border. In 1984, the Plaintiff was studying at the university in Tabriz, a city located in the province of Eastern Azerbayjan, a few hours outside of his hometown. At the time of the Iranian New Year of 1984, the 20th of March in the Gregorian calendar, the Plaintiff had basically finished his first year of university studying electrical engineering at the university in Tabriz. It was during the two-week New Year's break, more specifically on March 20, 1984, the day of his own birthday, that the Plaintiff was married to Ms. Esmat Mohiti. The marriage was registered on March 28, 1984.
[19] The Plaintiff had known Ms. Mohiti for three years prior to getting married. They had met in high school. They were from the same neighbourhood. Although she was three and a half years younger than him, the Plaintiff thought she was quite mature for her age and very liberal minded. The Plaintiff and Ms. Mohiti shared similar world views and social views. They were very close. Their marriage was not arranged. The Plaintiff and Ms. Mohiti had a strong chemistry, a good connection.
[20] During the school year, which ended in April 1984, the Plaintiff was studying in Tabriz on weekdays and would come back to Naghadeh on weekends in order to see Ms. Mohiti. He would also go see how things were going at his business. At the time, he operated a manufacturing business located in Naghadeh which specialized in the manufacturing of agricultural products and pumps for deep water wells. The business employed six people. The Plaintiff had personally designed a deep water well pump and started producing it with the approbation of the Iranian Ministry of Heavy Machinery which had granted him a manufacturing license and some land to develop the project.
[21] During his first year at university in Tabriz, the Plaintiff was enrolled in electrical engineering. His first year coursework was comprised mostly of general courses, more specifically physics, chemistry and mathematics. He also took an introductory course in electrical engineering. Once his university school year ended in April of 1984, he came back from Tabriz and lived with his wife and his family in the family's home on 33 Sadeghi Street in Naghadeh. Although the Plaintiff and Ms. Mohiti shared the house with his mother, brother and two sisters, the couple had their own private quarters. From April to August 1984, he worked full-time at his business in Naghadeh.
[22] In that period, there was civil unrest in Iran. In 1980, Mr. Abolhasan Bani-Sadr had been elected president of Iran. His government was secular, although the country was called an Islamic Republic. A few months later, Iraq invaded Iran and the two countries were at war for the following eight years. Mr. Bani-Sadr was dismissed from office a year after his election. According to the Plaintiff, the hardliners started to take over. This affected him because he did not share the same views. He was not a religious man. The Plaintiff became involved with the Mojahedin. They were fighting the government. The Plaintiff considered himself a sympathizer.
[23] By the end of the summer of 1984, there had been many arrests. Several of the Plaintiff's friends had been arrested. One of his friends, whom he had known since grade 8, had been executed. At that point, the sympathizers would not meet publicly. They would meet underground, in safe houses, where they would discuss politics and social issues. In late August of 1984, the central safe house where they used to get together was raided. At the time, the Plaintiff had been out of town on business. He was testing the new deep water well device that he had designed in a rural area south of Naghadeh, almost an hour out of town. A friend who had escaped had reached him in time to let him know about the raid and the arrests. The Plaintiff knew that he would be arrested if he went back to Naghadeh. He feared for his life and decided to leave Iran. His intention was to go to Turkey and then to a Western country, including the possibility of coming to Canada. His wife would join him later. With the help of Kurdish fighters, he crossed the border to Iraq. Unfortunately, he got caught with a group of Iranian Kurds by the Iraqi Army. Ultimately, after having been interrogated and imprisoned, he ended up in the Shomeli refugee camp in Southern Iraq where he resided from 1984 to 1988.
Shomeli camp (1984 to 1988)
[24] The Shomeli camp was located in a desert area, in an old school building. The conditions were very primitive, very harsh. It was overcrowded. There were sometimes up to ten people to each classroom. For a few weeks, the Plaintiff slept on the floor. The Iraqis then gave them a thin foam mattress, a blanket and a pillow to sleep, and one pot, one pan and one spoon to eat. Forks were not allowed. These conditions were very stressful. To try to alleviate the stress, the Plaintiff would think about his wife. He would try to imagine what she was doing in Iran. His dream to be reunited with her kept the Plaintiff from falling into despair. The Plaintiff stated that he was aware that at least two people had committed suicide while in Shomeli.Mr. Massoud Ebady, another refugee from Iran, lived in the Shomeli camp from 1984 to 1986. He was a close friend of the Plaintiff during this period. He testified that the Plaintiff was constantly talking about his wife and how she was "the love of his life ... keeping him alive so far for the future, hoping for future".
[25] The first contact the Plaintiff had with an international agency was with the Red Cross. It seems that the organization was "in charge" of the Shomeli camp. The Plaintiff stated that the UNHCR had taken over the Red Cross's role in the summer of 1987 and started facilitating the refugee movement out of Iraq. On June 16, 1987, the UNHCR issued a resettlement registration form for the Plaintiff. He had provided a UNHCR officer with basic information regarding family members and dependants, his education and training, the languages he spoke, his work experience, etc. He had mentioned that he had a cousin in Sweden who might be able to support his efforts to resettle to that country. The Plaintiff provided a credible story and as such, he was considered an UNHCR mandate refugee. (However, since the Plaintiff had no passport and no identification papers, he was treated by the UNHCR and later on by the Canadian authorities as a "stateless" person.)
[26] Once the UNHCR concluded the refugee status of a person, it would send information regarding the fact that the person was to be considered for third country resettlement. As far as the Canadian immigration system worked back then, a visa officer would then have to assess if the person was in fact a Convention refugee. The officer would assess if there was a well-founded fear of persecution. According to Ms. Kathryn Porter, an experienced visa officer having extended experience working in Embassies in Athens, Damascus and Ottawa, and whose testimony I find entirely credible, during interviews, officers would seek to ascertain background information with regard to the political activities and criminality of refugee claimants to Canada. As such, the officer was able to determine if it agreed with the UNHCR's referral.
[27] The Plaintiff testified that he met with Mr. Stan Peryer for the first time on June 20, 1988, at the Shomeli camp. Mr. Peryer was a Canadian Immigration official working for the North Africa and Middle East branch of CIC in Cairo. Following their initial meeting, they scheduled an interview for the next day. They met on June 21, 1988. On that day, the Plaintiff filled out an application for permanent residence in Canada in the presence of Mr. Peryer. At this point, I accept the Plaintiff's testimony that from the outset, and indeed prior to his coming to Canada, he had made it clear to Canadian officials that he wished that his wife would join him in due course. That being said, and in view of the summary judgment rendered by Hugessen J., I reiterate that there cannot be any cause of action based on the representations allegedly made by Mr. Peryer to the Plaintiff to the effect that "it was in his best interests to immigrate to Canada and that he would be able to sponsor his wife as soon as he arrived in Canada".
Processing of the Plaintiff's application for landing from within Canada(1988 to 1991)
[28] When he arrived in Canada in October 1988, the Plaintiff had no passport and the required background checks had not been initiated or completed by the North Africa and Middle East branch of the CIC in Cairo. However, for whatever reason, he had been allowed to come to Canada as an Early Admission case under a Minister's permit seeking permanent residence, category CR1. This meant that the Plaintiff did not have permanent residence status when he arrived in Canada and, naturally, that he could not sponsor his wife. According to Ms. Porter, the Plaintiff's status at the moment of arrival in Canada was certainly unusual, even "exceptional". As she mentioned to the Court:
It's much easier for the person to have everything finished before they go, and when they land in Canada, everything is settled. They're a permanent resident and everything is neat and tidy from the time they arrive.
[29] As explained by Ms. Porter, all refugees processed abroad normally go through all the same steps as any other applicant for permanent residence. Background checks and medical checks have to be performed. They normally receive their immigration visa overseas. Refugees accepted abroad will be landed immediately upon arrival in Canada. The CR1 status refers to the fact that as a "Government-assisted Refugee", the Government would look after the refugee for their first year in Canada. But a refugee may also be admitted in Canada as a CR3, that is, as a refugee sponsored by a private group. In such a case, this means that there is already an organization or a group of people in Canada who have formally made a refugee sponsorship that has been approved by CIC and who have promised to look after the refugee for their first year in Canada.
[30] Interestingly, it appears that not all Iranians who have stayed at the Shomeli camp have been processed the same way as the Plaintiff. Indeed, Mr. Ebady, who had also been at the Shomeli camp from 1984 to 1986, was admitted as a CR3 and became a landed immigrant the day of his arrival in Canada on August 12, 1986. Defendant's counsel objected to this evidence on grounds of relevancy and I agree that this evidence is irrelevant insofar as it tends to demonstrate that the Defendant acted somewhat improperly in 1988. That being said, where it comes to ascertain whether an obligation to take reasonable care exists, as in this case, the nature of the relationship must be examined by the Court. As stated by McLachlin J. (as she then was) in Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 at 1151, "[p]roximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors" (cited with approval in Hercules Managements Ltd. V. Ernst & Young, [1997] 2 S.C.R. 195 at para. 23 and in Cooper v. Hobart, [2001] 3 S.C.R. 537 at para. 35). Indeed, in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, Iacobucci J. notes at para. 50 that "[e]xamples of factors that might be relevant to the inquiry include the expectations of the parties, representations, reliance and the nature of the property or interest involved".
[31] The Plaintiff's immigration file was handled in Canada by CIC regional office in Windsor who had asked Cairo to forward the Plaintiff's file (together with those of four other Iranians) in order to complete landing actions. While the Plaintiff's application for landing from within Canada was processed, the Minister's Permit was renewed from time to time. It took three years to process the Plaintiff's application. In the meantime, work permits were issued to him. From at least March 1989, Ms. Loretta Ferrara was the Immigration officer responsible for the processing of the Plaintiff's landing application.
[32] At this point, I note that there is evidence that either CIC Windsor or Cairo failed to take, in a timely fashion, appropriate steps to obtain the required background results concerning the Plaintiff. It was later admitted that "this case may have fallen through the cracks" (Telex from Cairo to CIC Windsor, dated December 17, 1989). However, again, this evidence is not relevant, insofar as it rests upon alleged negligence in the processing of the Plaintiff's personal immigration file. Neither can the Plaintiff make any claim based on missed work opportunities as decided by Hugessen J.
Plaintiff's initial attempt to have his wife come under a Minister's Permit (1990-1991)
[33] At the Plaintiff's initiative, and despite the fact that he was not yet a permanent resident, steps were formally initiated in March 1990 through CIC Windsor to have Ms. Mohiti come in Canada under a Minister's Permit. Indeed, on March 29, 1990, Ms. Ferrara sent a Telex to the Embassy in Damascus requesting that "subject's wife be allowed to proceed under permit and to please issue meds". Once the Telex was received in Damascus, a clerk working at the Registry created a file for Ms. Mohiti under number B265 1372 3. At that time, the Embassy in Damascus was the regional office responsible for five countries: Iran, Iraq, Syria, Lebanon and Jordan. The evidence was that the Embassy in Damascus was extremely busy during the relevant period of time processing upwards of 4,000 immigrant visas and 7,000 visitors' visas per year. In addition, the Registry was creating approximately 100 new files per day. Moreover, the Registry system was not computerized.
[34] Relying on the representations which were made to him by Ms. Ferrara, the Plaintiff testified that he expected Ms. Mohiti to be rapidly admitted into Canada under a Minister's Permit. But as the evidence conclusively establishes, it was not a decision that could be made by Ms. Ferrara. It either had to be made by the Minister himself or his designated delegate in Damascus. The evidence establishes that Ms. Ferrara's request to proceed under a Minister's Permit was not treated in a negligent manner by the Immigration officials in Damascus. In this respect, further essential information were needed before Damascus could process the application and recommend the issuance of a Minister's Permit as explained by both Ms. Porter and Mr. Rénald Gilbert whom I find entirely credible. Mr. Gilbert started working as a Foreign Service officer with External Affairs in 1987 and was posted as visa officer in New Delhi from 1988 to 1991 and Damascus from 1991 to 1994 before occupying later on higher functions in Ottawa and in Beijing. He testified that before a decision to issue a Minister's Permit could be made by the Canadian Embassy in Damascus, basic information was required from Ms. Mohiti. However, this information was not contained in Ms. Ferrara's Telex of March 1990.
[35] Ms. Mohiti had to provide Damascus with basic information and documents needed in order to process her Minister's Permit. The standard practice of visa offices was to send an application for permanent residence (IMM 8) to the applicant with instructions on how to complete the form, as well as identifying the documents that were required to be submitted with the completed form. Accordingly, an applicant had to provide a set of photographs, a copy of the passport, a copy of a birth certificate or ID card, a copy of the marriage contract and a police certificate. These documents would allow the visa officer to evaluate if she met the statutory requirements that there were no serious medical or background problems, including criminality or security issues. It would also allow the officer to evaluate the credibility of the marriage.
[36] In response to the request made by Ms. Ferrara, on April 24, 1990, the Damascus office promptly sent an application kit to Ms. Mohiti, from file B265 1372 3. However, the completed application forms were not returned to the Embassy in Damascus until October 1992. Given that Ms. Mohiti did not testify, there is no evidence as to why she delayed completing the forms. In the meantime, as will be now explained, Damascus had been advised by Ms. Ferrera on November 5, 1991, to treat Ms. Mohiti's file as a sponsorship application.
Plaintiff's subsequent attempt to have his wife come as a sponsored immigrant seeking permanent resident status (1991-1994)
[37] Damascus was still waiting to receive the completed forms sent to Ms. Mohiti in April 1990. In the meantime, both Ms. Ferrara and the Plaintiff were apparently expecting "something to happen" with the Minister's Permit. This did not materialize. However, Ms. Ferrara did not follow up with the Damascus office, having apparently been told to refrain from contacting Damascus because of its overflow of work. Again, whether Ms. Ferrara acted negligently or not is not directly relevant insofar as this part of the claim has been already dismissed by Hugessen J.
[38] In September 1991, CIC Windsor attempted to contact the Plaintiff by telephone; however, the Plaintiff no longer lived at the address on record. Despite the fact that the Plaintiff categorically affirmed that he had always promptly notified CIC of any change of address, at more than one occasion, the documentary evidence proves otherwise. During his cross-examination by Defendant's counsel, it would have been easy for the Plaintiff to admit forthwith that he may have forgotten to notify CIC of his changes of addresses. While the Plaintiff's persistence in denying an obvious fact does concern an essential element of his claim, it is nevertheless symptomatic of his general attitude in this case. He wholly blames the CIC officials. At no point was the Plaintiff ever ready to concede that he may have been responsible of any of the delays incurred in this case, even the slightest one. This seriously affects his overall credibility.
[39] The Plaintiff eventually obtained landed immigrant status on November 5, 1991. As there was still no Minister's Permit issued to Ms. Mohiti, the Plaintiff testified that in March 1992, he resorted to sponsoring his wife to have her admitted into Canada as a member of the family class. In the meantime, on November 5, 1991, the following message from Ms. Ferrara was sent by Telex to Damascus:
Considering the fact that it took 3 yrs in CDA to land Mr. Farzam as early admission case prefer you process his wife as immigrant not/not early admission under permit. Farzam landed 5nov91. was in agreement to immigration visa issuance for wife. Will forward 1344 when recd.
[40] Ms. Ferrara had nothing to gain in writing this Telex. The Plaintiff has never been accompanied by an interpreter at any one of the interviews he had with Mrs. Ferrara. The evidence conclusively establishes that the Plaintiff had an adequate comprehension of English and that he was able to speak in English. Therefore, I prefer Ms. Ferrara's testimony that she would not have written this Telex if she had not been instructed by the Plaintiff to process his wife as an immigrant being sponsored by him. The "1344 Form" which had been mentioned in the Telex is the sponsorship undertaking that a sponsor must complete in order to have an application for the issuance of a permanent resident visa processed abroad.
[41] Following the reception of Ms. Ferrara's Telex of November 5, 1991, the Damascus office opened a file bearing file number B 276 6558 4, to process the plaintiff's wife as an applicant for permanent residence and wrote back to CIC Windsor asking for her address. Thus, Damascus had mistakenly opened a second file for Ms. Mohiti.
[42] No Damascus registry employee has testified. The testimony of Mr. Gilbert who was there at that time is very general and he was not involved with the Iranian caseload. The Defendant has chosen not to convoke Mr. Pierre Trottier, the visa officer working in Damascus who was, at the time, directly responsible for the processing of the visa applications made by Iranian citizens. In 1994, Ms. Porter replaced him and was assigned to the Iranian caseload. Ms. Porter worked at this post for three years. She was asked by Defendant's counsel if, based on her experience, she could explain why the second file could have been created by the Damascus Registry on November 5, 1991. Her answer was negative:
Normally, before you create a file, you have to double check and see ---
Whenever there is a piece of information coming in, you double check to see if there is a file number on it; and if there is no file number on it, you would double check to make sure that there isn't already an existing file.
I can't say why. I mean, there is a slight difference in the name. That may have been the problem.
I can't say further than that.
[43] While she notes that "there is a slight difference in the name" Mrs. Porter implicitly suggests that some kind of error must have been made by the local people who were working at the Registry in Damascus. They were responsible for the opening of the immigration files and they should have "double checked to make sure that there [wasn't] already an existing file". Indeed, in Ms. Porter's Telex addressed to Headquarters in Hull, dated May 23, 1995, she categorically states that "our registry [is] at fault". Ms. Porter also explained that the personnel in Damascus were familiar with the different spellings or variations of names. Mr. Gilbert also testified that the Registry used a "Soundex" system. "It's based on the sound (...) so, it's a way to actually make sure we capture the various ways of spelling a name". Accordingly, I find that the Registry clerk who opened the second file was apparently negligent, as he or she did not make the proper verifications.
[44] At this point, I note that an objection has been made by Plaintiff's counsel to the general use of Ms. Porter's Telex dated May 23, 1995, as proof of its content. This memo was contemporaneously prepared by Ms. Porter on the basis of all the available information on file. Even if it is hearsay evidence, I find the document sufficiently reliable to admit it into evidence. Indeed, I note that most of its content is already supported by other direct documentary evidence or testimonial evidence. Ms. Porter had no reason to include information that was not coming from the existing files in the summary she prepared in May 1995. Besides, Ms. Porter was examined in chief and extensively cross-examined by Plaintiff's counsel on all aspects of her Telex. The methodology she used has not been questioned or seriously challenged by the Plaintiff. Indeed, the Telex in question simply reflects what had been done on the file and can be admitted on that basis. Accordingly, I dismiss the objection by Plaintiff's counsel.
[45] According to the uncontested documentary evidence accepted by the Court, the proper forms necessary for the processing of Ms. Mohiti's application for permanent residence were respectively returned by the Plaintiff and Ms. Mohiti in June and in October 1992. Indeed, the Plaintiff received a letter from CIC dated June 30, 1992, which confirmed that it had approved the application for sponsorship he had submitted. The letter stated:
Your sponsorship undertaking has no validity under the law until your relative has made an application abroad, at which time the sponsorship eligibility can be established. No additional action on your part is required at this time. The approval of your undertaking establishes that you are qualified to give the Undertaking. However, as indicated on the reverse of your copy (pink copy 3) of the Undertaking, it is not an indication or guarantee that your relative will be given an immigrant visa. For this reason, you should advise your relative not to terminate employment, dispose of property nor take any steps towards emigration until formally advised to do so by the Canadian visa office concerned.
As the average length of time for processing at the overseas office is presently unknown, we cannot make any queries regarding the status of your relative's case. Please keep in touch with your relative as he will be in the best position to advise you of contact he may have had with the Canadian Embassy or Consulate.
Please keep us advised of any change in your address in the event that we need to contact you.
In closing, may I strongly urge you, in your own interest, to ensure that any immigrants admitted under your own sponsorship are adequately protected against hospital and medical expenses through enrolment in available provincial hospital and medical plans.
Following the reception of the letter, the Plaintiff notified his wife. He sent her a copy of the form, a copy of his SIN number and the application form number so that she could go to the Canadian Embassy in Tehran and start the process. This was all he had to do. He sent the information to an address in Karaj, a city located west of Tehran where all his family had apparently relocated from Naghadeh in 1992. In the meantime, the Damascus office received the approval for sponsorship application on July 29, 1992, and placed it on file B276 6558 4, the second file which had been opened by the Registry in Damascus on November 5, 1991.
[46] Ms. Mohiti completed the application forms and signed them on August 24, 1992. She also provided a police record, a copy of her identity card and a copy of her marriage certificate. However, the forms were only received by the Damascus office on October 2, 1992. I entirely accept the Defendant's evidence in this regard.
[47] According to Mr. Gilbert and Ms. Porter, it would normally take Damascus between six months to one year to process an application for permanent residence visa. Where an interview was necessary, the Iranian applicant would either have to present himself or herself at the Embassy in Damascus or wait that a visa officer travel from Damascus to Tehran where the interview would be conducted at the local Embassy. The interview could be waived by the visa officer where the legitimacy of the marriage posed no doubt. In passing, the legitimacy of the marriage between the Plaintiff and Ms. Mohiti has never been put into question by CIC W