Samimifar v. Canada (Minister of Citizenship and Immigration)

Samimifar v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-10-30
Neutral citation
2006 FC 1301
File numbers
IMM-6468-03
Notes
Reported Decision
Decision Content
Date: 20061030
Docket: IMM-6468-03
Citation: 2006 FC 1301
Ottawa, Ontario, October 30, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HASSAN SAMIMIFAR
Plaintiff
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
AND HER MAJESTY THE QUEEN
Defendants
REASONS FOR ORDER AND ORDER
I. Introduction
[1] Mr. Hassan Samimifar (the Plaintiff or Mr. Samimifar) is an Iranian national who came to Canada in 1985. In the 21 years since his arrival, Mr. Samimifar has been seeking legal status as a permanent resident (PR) of Canada. To date, he has been unsuccessful.
[2] On November 14, 1994, Mr. Samimifar was granted approval-in-principle to accept and process an application for permanent residence from within Canada. He submitted his application for PR status. From then until January 2003, Mr. Samimifar’s application appears to have been subject to inattention, inaction and delay for reasons which he alleges amount to negligence and breach of his s. 7 Charter rights. Finally, in January 2003, he was informed that his PR application was refused, on the basis that he was inadmissible to Canada under s. 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), because there were reasonable grounds to believe that he was a member of a terrorist organization. A judicial review resulted in the quashing of this decision in May 2003; the re-determination has not taken place.
[3] In addition to continuing to pursue his administrative efforts to become a permanent resident, Mr. Samimifar commenced an action against the Minister of Citizenship and Immigration by filing a Statement of Claim with this Court on August 20, 2003. In subsequent amendments to the Statement of Claim, Mr. Samimifar has added Her Majesty the Queen as a Defendant. He claims that the Defendant, through her agent Minister, was negligent or in violation of his rights under ss. 7 and 24(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter). He also seeks declaratory relief under s. 52 of the Charter.
[4] In the motion before me, Her Majesty the Queen seeks summary judgment dismissing all or part of the claim set out in the Further Amended Statement of Claim. This motion is brought pursuant to Rules 213 to 219 of the Federal Court Rules, SOR/98-106, which provisions are set out in Appendix A to these reasons. Briefly, the Defendant submits that there is no issue for trial given that:
Mr. Samimifar has failed to pursue his available judicial review remedies;
There is no private law duty of care owed by immigration officials to Mr. Samimifar that would give rise to potential liability in negligence or that would allow recovery of damages pursuant to the Charter.
II. Proper Party to the Action
[5] In his pleadings, Mr. Samimifar named both the Minister of Citizenship and Immigration (Minister) and Her Majesty the Queen as Defendants in this action. Mr. Samimifar concedes that the proper party to this action in Her Majesty the Queen. The cause of action will be amended accordingly.
III. Issues
[6] The overarching issue in this case is whether there is a genuine issue for trial, within the meaning of the Federal Court Rules. In determining this question, the following sub-issues arise:
What is the test for summary judgment?
Is Mr. Samimifar precluded from bringing this action because he did not first seek relief by way of extraordinary remedy under s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7?
Is there an actionable private duty of care owed by the Defendant to Mr. Samimifar that would give rise to potential liability in negligence?
Can Mr. Samimifar seek damages for breach of his Charter rights?
[7] The Defendant also questioned Mr. Samimifar’s ability to obtain a declaration under the Charter. Mr. Samimifar concedes that a claim for damages brought under s. 24(1) of the Charter cannot normally be combined with a declaration under s. 52(1) of the Charter (Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405).
IV. Analysis
A. Nature of Claim
[8] The issues raised by this motion relate to the Further Amended Statement of Claim filed by Mr. Samimifar. I will begin by reviewing the nature of the pleadings.
[9] Mr. Samimifar bases his claim on unreasonable delay and abuse of process caused by the Defendant. He claims damages in the amount of $5,000,000 in negligence and under ss. 7 and 24(1) of the Charter as a result of: loss of business and employment opportunities; loss of education opportunities; out of pocket expenses for, among other things, medical expenses for his common-law wife and children; and, emotional distress and suffering. Mr. Samimifar claims that the Minister and officials of Citizenship and Immigration Canada (CIC) were put on notice of their delay in processing his applications for landing and of the distress and harm he was suffering as a result.
[10] Mr. Samimifar also seeks a declaration that his rights under ss. 7 and 24(1) have been violated.
[11] The essence of Mr. Samimifar’ claims are, in my view, reflected in paragraphs 29 to 31 of his Further Amended Statement of Claim.
29. The plaintiff submits that the delay in the processing of his application was the result of improper allegation of resources on the part of the government of Canada. A large number of files that were in the 1989 backlog were sent to the Hamilton office and were neglected there for long time periods of time. CSIS had dealt with the plaintiff by 1995. They have not expressed any further interest in him and hence the delay between the initial decision and the final determination which was subsequently overturned are all the responsibility of the government of Canada. This delay was not the result of any need for further investigation but rather the result of neglect on the part of the immigration authorities.
30. The defendant, including immigration officials processing the plaintiff’s file, owe a duty of care to the plaintiff. There is sufficient proximity between the defendant and the plaintiff that a duty of care can be imposed. The plaintiff alleges that the defendant breached this duty of care and failed to conform to the standard of care owed to the plaintiff. Given that the delay in processing the plaintiff’s application resulted in the plaintiff not having permanent status in Canada and also given that the plaintiff repeatedly put immigration authorities on notice of the distress he was suffering as a result of the delay, it was reasonably foreseeable that the plaintiff would suffer harm as a consequence of their actions.
31. The plaintiff’s emotional and financial life has been severely disrupted as a result of the neglect in the handling of his application and this has caused the plaintiff severe and profound emotional distress and grave economic loss.
[12] From my understanding of Mr. Samimifar’s pleadings, and his affidavit and submissions on this motion, the period of alleged delay that gives rise to his claims in damages begins in 1994, when he was approved in principle for PR status, and either 2001, when CIC undisputedly began to take action on his file, or 2003, when Mr. Samimifar was refused admissibility to Canada. Hence, the pertinent time frame is 7 to 9 years in length. I make these statements for convenience, without making any conclusive findings of fact.
B. Issue #1: What is the test for summary judgment?
[13] The parties agree: summary judgment should be granted where there is no genuine issue for trial (Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853, 111 F.T.R. 189 at para. 8 (T.D.)).
[14] The Court in Granville established a number of considerations or principles to be applied in determining whether summary judgment should be granted. These have been widely adopted by the Court and, in some instances, have been augmented by additional jurisprudence. Of most relevance to the motion before me are the following.
(i) There is no determinative test, but the general question is whether the case is so doubtful it deserves no further consideration. The Defendant does not need to show that the plaintiff “could not possibly succeed at trial”, only that the case is “clearly without foundation” (see also Premakumaran v. Her Majesty the Queen, 2006 FCA 213 at para. 8);
(ii) Each case should be interpreted within its own factual context;
(iii) Question of fact and law may be determined on the motion, if it can be done on the material before the Court; however, where there is a genuine issue of credibility, a trial will generally be required to allow the judge the opportunity to observe the demeanour of the witness(es) (Newtec Print & Copy Inc. v. Woodley, [2001] O.J. No. 4180 (QL) at para. 34 (Ont. S.C.), leave to appeal to Ont. Sup. Ct. refused, [2001] O.J. No. 5634; Mensah v. Robinson, [1989] O.J. No. 239 (Ont. H.C.J.) (QL)); see esp. Trojan Technologies, Inc. v. Suntec Environmental Inc., [2004] F.C.J. No. 636 (C.A.) (QL), 2004 FCA 140 at paras. 19-22).
(iv) Summary Judgment should not be granted if the necessary facts cannot be found or it would be unjust to do so;
(v) Where the outcome depends on serious issues of credibility or where the material facts are in dispute, the matter should proceed to trial (see above); the judge should take a “hard look” at the evidence, beyond a mere appearance of evidentiary conflict.
[15] With these principles in mind, I turn to the specific issues raised on this motion.
C. Issue #2: Availability of Judicial Review Remedies
[16] The Defendant characterizes Mr. Samimifar’s claim as a complaint against the negative permanent resident decision made in June 2003; the delay leading up to that decision, beginning in 1994 when he was approved in principle for PR status, is part of that decision. From this starting point, the Defendant argues that Mr. Samimifar must challenge that decision by way of judicial review, not civil action, a process which was begun and, until the re-determination, continues. In summary form, the Defendant’s arguments are as follows:
The Federal Court of Appeal has clearly stated that a party cannot bring an action which amounts to a collateral attack on a final, administrative decision and that a plaintiff must exhaust administrative remedies before proceeding with a claim of damages (The Queen v. Tremblay, [2004] 4 F.C.R. 165, 2004 FCA 172, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 307 and Her Majesty the Queen v. Grenier, 2005 FCA 348; which decisions have been followed by this Court in Mohiuddin v. Canada, 2006 FC 664; and Dhalla v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 132 (F.C.))
Section 72(1) of IRPA, which expressly contemplates that “any matter – a decision, determination or order made, a measure taken or a question raised – under this Act” may be challenged by judicial review, is further support for the Defendant’s position.
During the period of the delay, Mr. Samimifar should have sought a writ of mandamus by way of judicial review (Morgan v. Canada, [1998] B.C.J. No. 2882 (QL), 117 B.C.A.C. 296 (B.C.C.A.), citing Bhatnager v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 315 (F.C.T.D.)).
Mandamus remains an option for Mr. Samimifar.
[17] I will begin this portion of the analysis by reviewing the jurisprudence relied on by the Defendant.
(1) The Queen v. Tremblay
[18] In Tremblay, above, a former member of the Canadian Forces brought an action challenging his mandatory retirement, seeking damages, a reinstatement of his employment, and a declaration that the regulation setting the retirement age and a portion of the Canadian Human Rights Act be declared invalid. The pertinent portion of the Court of Appeal’s reasons is this:
Obviously, the applicant cannot obtain reinstatement in the Canadian Forces as well as damages for loss of salary unless he first attacks the decision bearing on his retirement on the basis that the legislation underlying the retirement is inoperative under the Charter. The invalidity of this decision is at the heart of his claim and the relief sought depends on this alleged invalidity. The respondent will only be entitled to reinstatement once the decision is declared invalid. Damages can only be claimed once the reinstatement is ordered [at para. 14.]
[19] Addressing specifically the plaintiff’s claim for damages, the Court reaffirmed that the decision giving rise to the damages must first be invalidated by way of judicial review (at paras. 28-30).
[20] This decision of the Court of Appeal is, in my view, distinguishable. Mr. Samimifar is not attacking the PR decision; rather, he is attacking the delay and seeking damages for the consequences that flowed from that delay.
(2) The Queen v. Grenier
[21] Grenier, above, dealt with an action by a prison inmate for damages resulting from a decision of the institutional head to put him in administrative segregation for 14 days. The plaintiff had not sought judicial review within the required time frame of 30 days. In effect, the plaintiff, in Grenier, was seeking the remedy that he had failed to pursue in a timely fashion by way of judicial review. Once again, the situation before me is quite different.
[22] I also note the passage quoted by the Court of Appeal, at para. 15 of Grenier, from the Federal Court decision below it:
The Federal Court applied the [principle from Zarzour v. Canada, [2000] F.C.J. No. 2070 (F.C.A.) (QL)] to the facts in this case, and it cannot be criticized for doing so. At paragraph 8 of his decision, the judge hearing the appeal summarized his perception of the law on the issue as follows:
It appears from the precedents applicable in this matter that, in cases in which the decision giving rise to the harm is still operative at the time the remedy is sought, the aggrieved party cannot make use of an action but must proceed by way of judicial review: Sweet v. Canada, [1999] F.C.J. No. 1539, on line: QL; Zarzour, supra; Tremblay, supra. Conversely, where the decision which gave rise to the alleged harm is no longer effective at the time, it is possible for the applicant to bring an action claiming damages: Creed v. Canada (Solicitor General), [1998] F.C.J. No. 199, on line: QL; Shaw v. Canada, [1999] F.C.J. No. 657, on line: QL.
[Emphasis added.]
[23] In my view, this passage favours Mr. Samimifar. I think it can be rightly said that the alleged delay caused by the Defendant is no longer effective, because a final decision (which result is not material to Mr. Samimifar’s claims in damages) has been made.
[24] The Court of Appeal went to say that, in that case, the effect of the decision continued to be effective (having a bearing on the plaintiff’s administrative record, among other things; see para. 17) and stating that any decision of a federal agency continues to be effective unless and until being declared invalid (at para. 18). It is arguable that the remainder of the Court of Appeal’s reasons do not necessarily apply to the case at bar, since the delay before me is: (a) not a decision, as such; and (b) no longer affects Mr. Samimifar. Even if the delay can be said to be a decision (i.e. a decision to refuse to act on the PR application), that decision is now null and void, since a decision on the PR application was in fact made.
(3) Collateral Attack
[25] Grenier is also cited for the principle that a complainant cannot bring an action as a “collateral attack” on a decision that can be or could have been pursued by way of judicial review.
[26] Is Mr. Samimifar, in effect, bringing a collateral attack on the administrative decisions that have or are to be made in his case? Just because Mr. Samimifar wishes to acquire Canadian permanent residence, which status requires administrative decisions by the Minister, does not automatically mean that Mr. Samimifar brings a collateral attack. In this case, the statement of claim demonstrates that the overall basis for Mr. Samimifar’s claim in damages is not the effect of the administrative decision (the refusal of PR status). Indeed, the outcome of the admissibility decision is mostly irrelevant. Rather, the alleged damages arise purely from the length of time, said to be unreasonable, that the Defendant took in processing the file and finally coming to a decision.
[27] In my view, Grenier supports a conclusion that an action can be brought against a federal agency if the decision (or the effect of a delay in making a decision) is no longer active or effective on the plaintiff and provided that it is not a collateral attack on an administrative decision.
[28] I would include one caveat. Any claims to damages that stem from Mr. Samimifar’s lack of PR status – that is, some or all claims for loss of income or business opportunity or out of pocket expenses – cannot be sustained in this action. The outcome of Mr. Samimifar’s PR application has not been determined. Although it was refused, that decision was quashed on judicial review with consent of the Crown and is now pending a re-determination. Since it is not known whether Mr. Samimifar is admissible, no damages based on a lack of PR status can be linked to the alleged delay. This is because there is no guarantee that, if the Minister had made an admissibility determination earlier, Mr. Samimifar would have become a permanent resident. Indeed, such claims for damages would be a form of collateral attack. Thus, to the extent that the damages are based on a lack of status as a permanent resident, they should be struck. Thus, for example, in para. 38 of his Further Amended Statement of Claim, Mr. Samimifar complains of the “lost opportunity to gain better employment, education and business opportunities”. I would strike that portion of the claim.
(4) Other Jurisprudence
[29] Similarly, one can distinguish the other cases cited by the Defendant. In Dhalla, above, the Statement of Claim was “totally dependent on the legitimacy of the Respondent’s decision to deny the permanent residence application” (at para. 10). In Mohiuddin, the plaintiff sought damages for the actions of the Minister, in wrongly forming the opinion that the MQM-A organization was of a terrorist nature, and distributing a package of documentation on the terrorist nature of the MQM-A to immigration officers.
[30] The only case that has considered this issue in the context of a delay is the decision of Khalil v. Canada, 2004 FC 732. In that case, Ms. Khalil was determined to be a Convention refugee in 1994 and her application for landing was approved in principle in 1995. In 2000, she was advised that she was inadmissible to Canada. A judicial review of the inadmissibility decision was allowed and the re-determination was still outstanding. Ms. Khalil commenced an action. Justice Heneghan was considering an appeal of a Prothonotary’s decision refusing a motion to strike the statement of claim. The appeal was dismissed. At para. 13, Justice Heneghan, quoted and approved of the Prothonotary’s description of the plaintiff’s claim:
With respect to the Plaintiffs' claims for monetary relief, the Plaintiffs plead two causes of action - the first is an action for damages for regulatory negligence - the Plaintiffs allege a breach of a duty of care for the failure to make a decision in a timely fashion. Second, the Plaintiffs' claim the delay was such that the [sic] their rights pursuant to section 7 of the Charter were breached, giving rise to damages under subsection 24(1) of the Charter. Both claims are for damages and are properly brought by way of action.
[31] Thus, Khalil was decided on remarkably similar facts to the instant case.
[32] In dismissing the appeal, Justice Heneghan also determined that the delay in finalizing the plaintiff’s PR application did not relate to “any matter, determination or order made, a measure taken or a question raised" as specified by s. 72(1) of IRPA.
[33] Given the Court of Appeal decisions in Tremblay and Grenier, Khalil does not stand for a proposition that a claimant cannot be forced to proceed by way of judicial review. However, where the nature of the claim is not a collateral attack on a reviewable administrative decision, Khalil continues to be applicable. Further, in my view, Khalil is correct to the extent that a claim for damages as a result of delay does not relate to “any matter - a determination or order made, a measure taken or a question raised – under this Act" as specified by s. 72(1) of IRPA. A delay in action appears to fall outside the wording of this section.
(5) Availability of Mandamus
[34] The Defendant correctly points out that Mr. Samimifar always had the right to bring an application for mandamus during the period of delay and that he failed to do so. Should Mr. Samimifar be barred from bringing this action because he should have sought mandamus during the period of delay?
[35] While Mr. Samimifar could have brought such an application during the period of delay, the effect of the PR application refusal in 2003 has been that those rights have been exhausted; one cannot bring an application for mandamus once the requested decision or action has been taken. Logically, the principles in Grenier, Tremblay and other cases can only apply if the plaintiff has a judicial review remedy available. As stated in Mohiuddin at para. 17, “…if judicial review is available, the plaintiff must pursue that avenue … [.]” The problem here, of course, is that judicial review was available but may no longer be available.
[36] Had Mr. Samimifar commenced his action prior to the inadmissibility determination in 2003, my conclusion might have been different. In that situation, mandamus was available and would have been of practical effect.
[37] A similar question was dealt with by the Prothonotary in a decision dismissing the Plaintiff’s motion to strike (Order dated February 5, 2004). As described in the Order, the Defendant restricted her argument to strike “on the grounds that at any time during the past eighteen years, the Plaintiff could, and should have filed an application with the Court for an order of mandamus.” In her endorsement to the Order, the Prothonotary characterized the Defendant’s arguments as an assertion that there is a duty on the Plaintiff to mitigate his damages by bringing an application for mandamus. The Prothonotary stated, “Whether or not the Plaintiff was under a duty to mitigate his damages . . . . is a matter for the trial judge to consider following a finding of liability”. I agree.
[38] This conclusion is supported by the case of Morgan, above. The case involved a claim for damages based upon the failure of the Canadian Human Rights Commission to deal expeditiously with Mr. Morgan’s claim against the Canadian Armed Forces. After a trial, the British Columbia Court of Appeal dismissed the claim, apparently on the basis that Mr. Morgan could have, during the period of delay sought mandamus; in other words, the delay was largely attributable to Mr. Morgan. In my view, the case demonstrates that the availability of mandamus in the context of any particular claim and a plaintiff’s behaviour during the delay are relevant facts to be determined by the trial judge.
[39] The Defendant argues that Mr. Samimifar may still bring an application for mandamus. While there may be a theoretical ability to so, there is no practical possibility. At this time, Mr. Samimifar is awaiting a new admissibility hearing. In any event, a writ of mandamus would not address the delay from 1994 to 2003.
(6) Conclusion on Issue #1
[40] At first blush, the Court of Appeal’s findings in Grenier and Tremblay appear to preclude Mr. Samimifar’s actions. However, having considered those decisions, I am not persuaded that this jurisprudence can be applied to the facts before me. Applying these cases to the substance of Mr. Samimifar’s claim is akin to fitting a square peg into a round hole. In sum, I am satisfied that:
In general, Mr. Samimifar’s claim is not in the nature of a collateral attack on the June 2003 decision that refused his application for permanent residence on the basis that he was inadmissible to Canada;
The delay complained of is not part of the negative PR decision in June 2003;
This is not a case where Mr. Samimifar has failed to exhaust his administrative remedies;
To the extent that Mr. Samimifar’s claims for damages are based on a lack of status as a permanent resident, they should be struck as being, in effect, a collateral attack on the administrative decision;
Section 72(1) of IRPA is not applicable; and
The fact that Mr. Samimifar did not bring an application for mandamus during the period of delay may be relevant, at trial, to the mitigation of damages, but is not relevant at this stage.
[41] Accordingly, I conclude that Mr. Samimifar is not precluded from bringing this action because he did not first seek relief by way of extraordinary remedy under s. 18.1 of the Federal Courts Act.
D. Issue #3: Potential liability in negligence
[42] The Defendant submits that there is no cause of action in negligence. The Defendant argues that Mr. Samimifar has not pleaded any relationship between himself and the government officials referred to in the Further Amended Statement of Claim that would support a claim in negligence.
[43] The two-part test to be applied is that set out in Anns v. Merton London Borough Council. Specifically, the Court must determine:
1. Whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care?
2. If so, whether there exist residual policy considerations which justify denying liability?
[44] I will examine each of these in the context of the pleadings at issue.
(1) Prima Facie Duty of Care
[45] In general, the relationship between the government and the governed in respect of policy matters is not one of individual proximity (Premakumaran v. Canada, [2006] F.C.J. No. 893 at para. 22 (C.A.)). Nevertheless, there are situations where the Crown is liable as a person and a duty of care exists (see ss. 3 and 10 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50). The question in this claim is whether the duty could arise on these facts.
[46] The cases cited by the Defendant appear to set an exceedingly high bar in a case such as this that involves public officials and decision makers. Do these cases apply to preclude Mr. Samimifar’s action?
(a) W. v. Home Office
[47] A case cited by the Defendant (and that has been cited, with approval, in other Canadian cases) is the decision of the English Court of Appeal in W. v. Home Office, [1997] E.W.J. No. 3289 (English C.A.). In that case, the plaintiff was detained upon his arrival from Liberia on the basis of mistaken information. When this mistake was discovered, the plaintiff was immediately released from detention and granted temporary admission into the U.K. The plaintiff commenced a lawsuit against the defendant for negligence. The allegations of negligence were seen to be divided into two categories. The first is an allegation that the defendant conducted the original interviews negligently by failing to ask the right questions and/or by failing to require the plaintiff to sit the Liberian Nationality Test. The second allegation is that the defendant was negligent in placing someone other than the plaintiff’s questionnaire and answer on the plaintiff’s immigration file.
[48] The Court of Appeal found that an immigration officer did not owe a duty of care to the plaintiff. In coming to this conclusion, the Court of Appeal said (at para. 28):
The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply.
[49] The Court of Appeal found that there was no proximity between the plaintiff and immigration officers that gave rise to a duty of care.
[50] The facts before me differ in a significant way. Arguably, there is proximity between the Plaintiff and Ms. K., the officer who was allegedly responsible for processing Mr. Samimifar’s application. Ms. K. and Mr. Samimifar were in regular contact with one another during much of the period of delay. Further, Mr. Samimifar relied directly on Ms. K. assuming that she would process his permanent residence application in a timely fashion. Finally, this case is arguably about the failure of the Defendant – and, in particular, one agent of the Defendant – to carry out her statutory duties for a period of seven to nine years.
(b) Premakumaran v. Canada
[51] In the case of Premakumaran v. Canada, [2005] F.C.J. No. 1388 (F.C.), aff’d [2006] F.C.J. No. 893 (C.A.), the Crown brought a motion for summary judgment against the plaintiffs’ action for fraudulent misrepresentation with regard to the use of a misleading point system and negligent misrepresentation that certain job categories are in high demand in Canada and false information with regard to the use of application processing fees. The plaintiffs were a married couple who came to Canada from England in 1998 as immigrants under the category of Professional Skilled Immigrants.
[52] Justice von Finckenstein found that the defendant owes a duty of care to the public as a whole and not to the individual plaintiffs. Consequently, he concluded that the plaintiffs did not meet the first stage of the test in Anns. Thus, he found that there was no genuine issue for trial regarding the negligent misrepresentation allegation. He allowed the summary judgment motion and dismissed the plaintiffs’ action.
[53] In affirming this decision, the Court of Appeal stated (at para. 24):
In this case, however, no duty of care arises. As the Motion Judge correctly found, no special relationship of proximity and reliance is present on the facts of this case. There were no personal, specific representations of fact made to these particular appellants upon which they could reasonably have relied. The printed documentation and information given to them was merely general material for them to use in making an application for immigrant status. As the Motions Judge observed, it is not correct to say that someone “who picks up a brochure or reads a poster at the High Commission is a ‘neighbour’” and is owed a duty as a result. More is required. [Emphasis added.]
[54] Once again, there are significant distinguishing features. Justice von Finckenstein pointed out, at para. 20, that the plaintiffs did not allege that any particular Crown servant committed a tort against them. In contrast, in the Further Amended Statement of Claim, Mr. Samimifar alleges that Ms. K. was too busy with other work, did not have the appropriate security clearance to work on his file, and also took sick leave (para. 19). While Mr. Samimifar does not specifically state that Ms. K. committed a tort against him, the inference is clear from a number of allegations in the pleadings:
This delay was not the result of any need for further investigation but rather the result of neglect on the part of the immigration authorities (para. 29).
The defendant, including immigration officials processing the plaintiff’s file, owe a duty of care to the plaintiff (para. 30).
The plaintiff’s emotional and financial life has been severely disrupted as a result of the neglect in the handling of his application and this has caused the plaintiff severe and profound emotional distress and grave economic loss (para. 31).
[55] Consequently, the reader would understand that a critical aspect of the claim of negligence is directed at Ms. K.
[56] Arguably, the “more” that is required by the Court of Appeal occurred here with Mr. Samimifar. Mr. Samimifar had a personal relationship with the immigration officers handling his file and, in particular, Ms. K. He was in constant communication with them since he would inquire about the status of his file. They were on notice of the harm that he was suffering because of the delay. Mr. Samimifar spoke to immigration officers numerous times and relied on them to process his application in a timely fashion.
(c) Benaissa v. Canada (Attorney General)
[57] The Defendant also cites Benaissa v. Canada (Attorney General), [2005] F.C.J. No. 1487 at para. 37 (F.C.) (QL), in which Prothonotary Lafreniere cited W. v. Home Office, above for the proposition that the process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence.
[58] In Benaissa, the defendant was successful in a motion to strike the plaintiff’s amended statement of claim on the grounds that it did not disclose a reasonable cause of action and that the action was moot. The case, on its face, appears very relevant as it dealt with a delay in processing an application for permanent residence in Canada. The plaintiff brought an action against the Crown in November 2003 seeking a declaration that CIC’s failure to finalize his application for landing was negligent and in breach of his Charter rights.
[59] Prothonotary Lafreniere found that the plaintiff made a bare assertion that unidentified servants of the Crown deliberately failed to process the plaintiff’s application for permanent residence in a timely fashion. As well, he found that the facts pleaded failed to disclose any factual basis for the allegation that the Crown acted negligently. He pointed out that, even if sufficient material facts had been pleaded established breaches or damages, it would appear that the Crown owed no duty of care to the plaintiff in the particular circumstances of his case. He said (at para. 33): “Mere delay, absent further facts, does not constitute a reasonable cause of action”. [Emphasis added].
[60] Unlike the plaintiff in Benaissa, Mr. Samimifar is not making a bare assertion; he has set out a factual basis for the allegation that the Defendant acted negligently, including naming a specific immigration officer, Ms. K. As well, arguably, there is more than mere delay here by the Defendant. In my view, Benaissa is distinguishable on the basis that the facts, as pleaded in the amended statement of claim by the plaintiff in Benaissa, did not support a cause of action while the facts as pleaded by Mr. Samimifar could, if sustained at trial, support a cause of action for negligence. Although there is no statutory duty on the Minister to render a decision in a specific amount of time, a common law duty of care may arise if the facts are sufficient to support the action. Arguably this is the case here.
(d) Farzam v. Canada (Minister of Citizenship and Immigration)
[61] In Farzam v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2035 (F.C.), the plaintiff sued the Crown for damages resulting from an alleged marriage breakdown in 1993 due to the negligence of immigration officials in Damascus in processing either a Minister’s Permit or a permanent resident visa for his wife. Justice Martineau found that it would be unfair, unjust and unreasonable to impose a duty of care on immigration officers. In coming to this conclusion, he found that it was not reasonably foreseeable that Ms. Mohiti would divorce the plaintiff because of some additional delay or misstatement to the effect that the undertaking of assistance had not yet been provided by the plaintiff. Justice Martineau relied on A.O. Farms Inc. v. Canada, [2000] F.C.J. No. 1771, Benaissa, above, and Premakumaran, above, for the point of view that the relationship between the government and the governed is not one of individual proximity. He pointed out (at para. 105): “Delays in the processing of immigration applications are inherent to the system.”
[62] Farzam is distinguishable on the basis that, in the case before me, it is reasonably foreseeable that negligently processing Mr. Samimifar’s permanent residence application would cause him emotional distress and anxiety. However, as Justice Martineau pointed out (at para. 93):
But even if I accept that forseeability has been adequately established, as stated by the House of Lords in Hill v. Chief Constable of West Yorkshire, [1989] 1 A.C. 53 (H.L.) at 60: “(…) foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between the plaintiff and the defendant (…)”.
[63] Although delays in the processing of immigration applications are inherent to the system, in my view, there was more than mere delay in the Plaintiff’s situation.
[64] In sum on the question of duty of care, the jurisprudence relied on by the Defendant is distinguishable. I agree that the Further Amended Statement of Claim could be clearer with respect to the role of one particular officer in the processing of his application. Nevertheless, I believe that it would be appropriate to allow Mr. Samimifar to further amend his statement of claim to rectify this deficiency. On this question of duty of care, I believe that sufficient facts have been pleaded to show a prima facie case that the Defendant, in this particular situation, owed a duty of care to Mr. Samimifar. Mr. Samimifar should be permitted to bring this question before the trier of fact at trial.
(2) Existence of residual policy considerations
[65] The second prong of the test in Anns is whether residual policy considerations exist which justify denying liability? In Benaissa, above at paras. 40-43, Prothonotary Lafreniere pointed out four policy considerations:
First, there is nothing in the statutory scheme to suggest that simple mistakes or errors in the processing applications for landing resulting in delay should give rise to a right of compensation. The opposite is true.
Second, applicants for permanent residence have viable alternative remedies by way of mandamus and judicial review. Mandatory orders could be made to put any alleged mistake or non-performance right.
Third, as in Cooper, the spectre of indeterminate liability would loom large if a common law duty of care was recognized as between the Crown and an applicant based solely on the negative impact of delay on the applicant, as opposed to actual misconduct on the part of immigration officials. The class of persons to whom the duty of care would be owed is large, i.e., all applicants for permanent residence in Canada. Imposing a duty of care would trigger further claims, which (a) would require funds to be diverted and time to be devoted to enable them to be resisted, and (b) would be a drain on public resources if the claims were successful. Indeed, as in Cooper, one must consider the impact of a duty of care on the taxpayers of Canada generally.
Fourth, and more importantly, imposing a duty of care would hamper the effective performance of the system of immigration control…
[66] In Farzam, above, Justice Martineau cited the same policy consideration discussed in Cooper with regards to the “spectre of unlimited liability. After citing Cooper, he pointed out, at para. 106, that “in effect, the Crown would act as an unlim