Yodjeu Ntemde v. Canada

Yodjeu Ntemde v. Canada
Court (s) Database
Federal Court Decisions
Date
2018-04-16
Neutral citation
2018 FC 410
File numbers
T-1813-14
Decision Content
Date: 20180416
Docket: T‑1813‑14
Citation: 2018 FC 410
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 16, 2018
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
LÉOPOLD CAMILLE YODJEU NTEMDE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
JUDGMENT AND REASONS
[1] Léopold Yodjeu, the plaintiff, instituted an action against Her Majesty The Queen, which led to a large number of incidents that necessitated decisions from the Court, presided over by judges other than the undersigned, and several decisions by the Federal Court of Appeal. The undersigned’s orders and reasons were all part of the motion for summary judgment. It will not be necessary to review those incidents unduly, since the only decision to be made in this case relates to the defendant’s motion for summary judgment.
I. Preliminary remarks
[2] It was no simple matter to finally hold the sitting on October 24, 2017, in order to hear the motion for summary judgment. The defendant had stated the intention on May 17, 2016, to file a motion for summary judgment, well before the memorandum was due for the pre‑trial conference that the plaintiff was seeking to expedite. That motion was filed on July 5, 2016.
[3] The motion was heard on November 16, 2016, following the direction from the Chief Justice of this Court on August 26, 2016. However, Mr. Yodjeu was not present on November 16; he had been indisposed the previous evening. Moreover, on November 2, 2016, the plaintiff’s spouse, Ms. Mbakop, had filed a motion that appeared first and foremost to indicate a desire to intervene in the case. Ms. Mbakop was not present either on November 16. When tracked down by the Court, she was heard on her motion, and an order was made by Mr. Justice LeBlanc on November 18. Moreover, the defendant’s motion for summary judgment was not heard because of Mr. Yodjeu’s absence.
[4] The hearing for the motion was therefore scheduled for October 4 and 5, 2017 (direction from the Chief Justice dated June 1, 2017). In the meantime, the plaintiff had filed motions to add affidavits and to have the motion for summary judgment dismissed. As for Ms. Mbakop, she had applied to have Justice LeBlanc’s decision set aside, citing paragraphs 399(1)(b), 399(2)(a) and 399(2)(b) of the Federal Courts Rules (SOR/98‑106).
[5] Having been appointed to hear those matters on October 4 and 5, 2017, the undersigned issued a direction on August 4, 2017, providing for an order for the various pending motions that had to be disposed of before the defendant’s motion for summary judgment could be heard. Those motions concerned the addition of exhibits (motions dated June 2 and July 20, 2017), the motion from Ms. Mbakop to have Justice LeBlanc’s order set aside or amended, and a motion to strike affidavits that supported the Crown’s motion for summary judgment, which would lead to the dismissal of said motion for summary judgment. The direction also indicated the expectations regarding the duration of the proceedings for each of the motions.
[6] However, it appears that the plaintiff and his spouse refused to participate, since they filed a [translation] “request for direction” in which they sought to postpone the hearing on October 4 and 5, 2017. The same request had been dismissed by Mr. Justice Bell from the Bench (and affirmed in writing through an order dated October 2, 2017), and the plaintiff indicated in a document dated September 25, 2017, which was not a motion, that he intended to appeal my colleague’s decision. My direction dated September 29 affirmed that an intention to appeal an order is not associated with any stay. It also notified the parties that they were expected to appear on October 4 and 5. Furthermore, it indicated that the allocation of time would be as flexible as possible. Ms. Mbakop was notified by another direction dated that same day that she was expected to appear on October 4. She was also formally notified that [translation] “if Ms. Mbakop does not appear at the designated time and place, the Court will hear the submissions from counsel for the Attorney General on the course of action to be taken.”
[7] Neither Ms. Mbakop nor Mr. Yodjeu were present on October 4, 2017. In fact, written communications had been sent to the Court informing it of their absence (letter dated October 3 and email dated October 4, at 7:38 a.m.).
[8] Since they chose not to attend, rule 38 was applied. Through an order served on October 5, the Court declared that the plaintiff’s cross‑motions could be adjudicated on the basis of the record compiled by Mr. Yodjeu. As for Ms. Mbakop’s motion, it had to be dealt with as a motion under rule 369; the Court allowed Ms. Mbakop to submit a written reply. Ms. Mbakop took advantage of that opportunity. Moreover, the Court considered it to be a severe sanction to proceed with the adjudication of the motion for summary judgment without hearing Mr. Yodjeu orally. Thus, the hearing of the main motion was postponed until October 24, 2017. That time, Mr. Yodjeu was present. He offered his apologies to the Court, and they were accepted.
[9] As for the preliminary motions, the Court disposed of them, and they were the subject of orders on October 19 and 20, 2017:
2017 FC 929: dismissal of the application to set aside the order by Justice LeBlanc refusing Ms. Mbakop’s intervention;
2017 FC 939: a number of the affidavits proposed by Mr. Yodjeu were allowed to be filed;
2017 FC 940: dismissal of Mr. Yodjeu’s motion (filed on May 25, 2017, and amended on July 26, 2017):
provision for costs;
designation of an adjudicator;
requirement for counsel for the defendant to produce affidavits;
striking of the defendant’s affidavits, leading to the dismissal of the motion for summary judgment.
Mr. Yodjeu had also requested to add exhibits (seven in total). The Court preferred to admit those exhibits, even though serious doubts as to their admissibility persisted, thus requiring a rule of caution. Mr. Yodjeu would be responsible for using them cautiously.
[10] Lastly, the proceeding before the Court was accompanied by independent remedies instituted by the plaintiff. In one of these, he appears to be challenging the refusal by the Canadian Human Rights Commission to deal with his case; in the other, the Privacy Commissioner had previously found that two of the plaintiff’s complaints were founded, because the government replied to two applications outside the prescribed time limits (63 days in one case and 42 days in the other). Those remedies are irrelevant to the issue before this Court: can the action for damages withstand the motion for summary judgment?
II. The instituted action
[11] Léopold Camille Yodjeu Ntembe filed a statement of claim with the Federal Court on August 22, 2014. Essentially, the plaintiff complained about the processing of his application to sponsor his spouse and his child, who were still in Burkina Faso, while he had been granted permanent residence in Canada.
[12] The plaintiff did not retain counsel, aside from some opinions that he allegedly received during certain incidents that occurred after he filed his statement of claim. The statement of claim is unclear. What follows is taken directly from the statement.
[13] From the statement of claim, it appears that Mr. Yodjeu has been a permanent resident of Canada since February 12, 2012. He states that he returned to Paris two weeks later for work. It appears that there was a [translation] “breach of contract” shortly after, since he states that he returned on May 1, 2012. On May 3, 2012, he submitted the sponsorship application for his immediate family; he reportedly sent the application via Canada Post.
[14] The plaintiff states that he changed his address with Citizenship and Immigration Canada around a month and a half later; the date is not specified, and said change was reportedly made over the telephone. No clarifications are provided regarding this change of address.
[15] It appears that the issue of Mr. Yodjeu’s residence arose during the processing of his sponsorship application after that point. In fact, the sponsorship application was refused on August 7, 2012. Mr. Yodjeu alleges that he never received that notice. Whatever the case may be, he acknowledges that he received the notice of refusal in November 2012. It was at that time that he sought to provide evidence of his residence in Canada using the documents he had in his possession (work contract, pay stub, lease).
[16] After the sponsorship application was refused, the processing of the file, namely the permanent residence application for his spouse and their daughter, despite the refusal of the sponsorship application, was handed over to the Canadian Embassy in Senegal. The decision was made on May 22, 2013, to refuse permanent residence because the decision‑maker was not satisfied of Mr. Yodjeu’s residence. Because the decision on May 22 contained errors, it was amended on June 4, 2013. Other documents that were submitted in the meantime did not change that decision.
[17] On September 28, 2013, the plaintiff filed a complaint with the Canadian Human Rights Commission; the statement of claim indicates that the complaint concerned [translation] “the provision of services to my family” (paragraph 16(c)).
[18] The plaintiff had appealed the refusal of the permanent residence application as soon as he was notified of it in June 2013. In December 2013, the plaintiff was notified by Citizenship and Immigration Canada [CIC] that it would be recommended to the Immigration Appeal Division [IAD] that the appeal of the refusal to grant permanent residence on June 4, 2013, be allowed. The IAD had to allow the appeal without a hearing, given the concession to allow the appeal in January 2014. In July 2014, the sponsored individuals were granted permanent residence.
[19] The plaintiff therefore submits that:
through its officials, the defendant acted without authority or exceeded its authority;
a principle of procedural fairness was not followed, namely that an immigration officer must give applicants the benefit of the doubt;
the decision is vitiated by an error of law. The alleged error of law is that the original refusal was based on an error regarding the residential address in Montreal, an error that was noted since the IAD found that Mr. Yodjeu’s appeal had to be allowed;
the decision is vitiated by an error of fact described as an error that was made in a perverse or capricious manner or without regard to the evidence available. This time, the plaintiff alleges wrongdoing by a person employed by the Canadian Embassy in Dakar;
the CIC internal file was corrupted by a CIC officer in order to prevent the plaintiff from receiving notices that his sponsorship application had been refused on three occasions. There had allegedly been fraud and false testimonies. The plaintiff alleges incompetence by “SOW”, who was later identified as Steven Owen; he filed an affidavit in support of the defendant’s motion for summary judgment in which he provides some clarification on this matter;
Mr. Owen and the employee hired locally in Dakar engaged in conduct that contravenes the law.
[20] Probably seeking to articulate a cause of action, the plaintiff alleges a [translation] “conflict of interest by an organized gang with international ramifications” regarding the local employee in Senegal. That person, who is of Senegalese origin, reportedly processed the permanent residence file of Ms. Mbakop and the couple’s daughter, while the plaintiff had a dispute with his general manager at Ecobank, a Senegalese man who had allegedly harassed the plaintiff when he was an employee at Ecobank. The fact that his file was reportedly processed by a Senegalese woman, who received Mr. Yodjeu’s emails, was apparently the result of a system of collusion (statement of claim, paragraph C‑1(a)). The plaintiff adds that when he was approached by Ecobank to join their ranks, he received suspicious telephone calls [translation] “in the same style as the ones I received in Canada.” That led the plaintiff to suspect that there had allegedly been [translation] “a disclosure of personal and confidential information by CIC with the goal of harming and jeopardizing my family’s safety” (statement of claim, paragraph C‑1(b)).
[21] The plaintiff also submits that CIC’s information system had been fraudulently manipulated. To arrive at that allegation, Mr. Yodjeu focuses his claims on Steven Owen, the CIC official who first processed the sponsorship application in August 2012. Since the plaintiff states that he had changed his address in June 2012, he refuses to accept that the notice he claims to have been sent three times between August 2012 and November 2012 was actually sent. Thus, he alleges that Mr. Owen is likely Senegalese, like the employee hired locally at the Canadian Embassy in Dakar and the general manager at Ecobank who allegedly harassed Mr. Yodjeu, which would explain the false pretences regarding the refusal of his application and the confusion surrounding the repeated mailings of the notices of refusal. The plaintiff states that [translation] “it is as clear as spring water that these individuals are in league and are part, in my opinion, of a well‑oiled system that is based on collusion and is able to circumvent the CIC control system” (statement of claim, paragraph C‑2).
[22] Lastly, the plaintiff presents his understanding of section 130 of the Immigration and Refugee Protection Regulations (SOR/2002‑227) [Regulations], which requires that anyone making a sponsorship application in the family class reside in Canada. Here, the plaintiff attempts to explain why an address in Paris appeared on the sponsorship application for persons living in Burkina Faso. The plaintiff states that he chose to mail the sponsorship application in Canada on May 3, 2012, two days after he arrived from Paris. The plaintiff states the following: [translation] “[I] chose to mail my application from Canada . . . the Paris address was temporary and I had planned to change it once I had arrived. I changed my address a month and a half after my arrival and nearly two months before the refusal decision from Mississauga (officer SOW)” (statement of claim, paragraph C‑31). In the statement of claim, we have neither the exact date of such an important measure, nor any evidence other than the plaintiff’s indication that he had allegedly spoken to an [translation] “officer in charge of address changes.” The plaintiff has provided no clarifications in that regard.
[23] Mr. Yodjeu claims damages of $1,444,000. Much of these [translation] “direct” damages, in fact, the vast majority, are for damages allegedly suffered by Mr. Yodjeu’s spouse and their daughter. In fact, the defendant submitted that the plaintiff was illegally arguing on behalf of others. Of the $184,000 in direct damages, only $10,000 are claimed for Mr. Yodjeu.
[24] Most of the indirect damages are claimed as compensation for Mr. Yodjeu himself, but not all of them. They are broken down as follows:
Moral and financial stress: $200,000
Career opportunity in teaching/research: $500,000
Loss associated with drop in credit score: $100,000
Psychological stress: $250,000
Ms. Mbakop’s membership in the Ordre québécois des médecins: $200,000
Plaintiff’s son born in conditions that could have resulted in miscarriage: $10,000
[25] The plaintiff submits, without giving any explanation, that he was directly and indirectly prevented from earning income, thus forcing him to spend all his savings.
III. Statement of defence
[26] The statement of defence came the month following the filing of the statement of claim. The defendant essentially gave a general rebuttal of the statement of claim. The original statement of defence, dated September 23, 2014, was amended on February 26, 2016. Leave to amend was granted on March 21, 2016. Prothonotary Morneau, who dealt with the case, wrote the following in his order:
[translation]
WHEREAS the Court is satisfied that it is fair and in the interests of justice to allow the amendments sought by the defendant, since those amendments are intended to correct errors in the original statement of defence and because the proposed amendments seek to assist this Court in addressing the genuine issues on the merits.
The amended statement of defence is therefore the defence to the action as instituted. Thus, the statement of claim and the amended statement of defence make up the legal framework for the dispute. However, the statement of claim and the amended statement of defence are not enough. The allegations they contain must still be proven.
[27] The defendant argued its version of the facts. Thus, it is submitted that the plaintiff indicated on the sponsorship undertaking form sent on May 3, 2012, that his mailing and residential address was in Courbevoie, France (Ms. Mbakop’s permanent residence application was also filed on May 3, 2012). His sponsor questionnaire, prepared on April 18, 2012, stated that he would be living in France until May 1, 2012, but did not provide an address for after that date. Mr. Yodjeu also did not indicate the end date of his employment, although he did state that he was working as a banking consultant in France.
[28] According to the defendant, the plaintiff’s change of address was done on July 4, 2012. That change was reportedly entered into the Field Operations Support System [FOSS], a database used by CIC and the Canada Border Services Agency [CBSA] for processing immigration files in Canada. However, it was not entered into the Global Case Management System [GCMS], which replaced the FOSS, or the system used for processing immigration files abroad [CAIPS].
[29] On August 7, 2012, a notice that the sponsorship application had been refused was issued in a letter dated that same day.
[30] The defendant argues that the plaintiff was ineligible because the residency obligation had not been fulfilled. The sponsorship application form indicated that Canada was not his only country of residence. In his sponsor questionnaire, Mr. Yodjeu indicated that he was not living in Canada at that time. The mailing address given by the plaintiff was in France, as was the telephone number he provided. In addition, the return address for the sponsorship application mailed in Canada was in France.
[31] The defence is specific about the residency obligation. A review of section 130 of the Regulations is insufficient. We must also refer to section 133 of the Regulations to understand that the residency obligation in Canada extends from the filing of the sponsorship application until a decision is made.
[32] The notice of decision dated August 7, 2012, was returned on September 27, 2012, and indicated that the recipient could not be identified. This indicates that Mr. Yodjeu did not receive the decision dated August 7, 2012.
[33] A change of address was communicated to CIC on October 19, 2012, when the plaintiff allegedly contacted the Montreal Call Centre. With the address corrected through the change of address process, it was therefore on November 2, 2012, that the letter from August 7 was sent to Mr. Yodjeu. The letter notifying him that his sponsorship application had been refused bore the date November 2.
[34] Thus, a new phase of the file began on November 9, 2012, when the plaintiff alleged in an email that he had been living in Canada since early May 2012. The plaintiff provided documents on December 19, 2012, seeking to show that he had been living in Canada for some time. As we will see, this “evidence” dated back only to August 2012.
[35] Despite the refusal on August 7, 2012 (or on November 2), the plaintiff had indicated in his sponsorship application that he wanted the review of the permanent residence application to continue; that explains the new communications from the plaintiff starting in September 2012 and the manner in which the new documents and information submitted by Mr. Yodjeu were sent by CIC to Dakar, Senegal, where the permanent residence application was processed. They were received on February 23, 2013. The permanent residence application for Mr. Yodjeu’s spouse and daughter was refused on May 22, 2013 (letter of refusal amended on June 4, 2013, to correct an error in the sponsor’s name).
[36] The refusal of the permanent residence application was appealed before the IAD that same day. Moreover, a work or study permit, which allows temporary residence, was granted to Ms. Mbakop on September 5, 2013; the same day, a temporary resident visa was issued for the couple’s daughter. On September 18, 2013, Ms. Mbakop and the couple’s daughter arrived in Canada. Nevertheless, the appeal before the IAD continued its course.
[37] On December 12, 2013, the Minister, through one of his agents, consented to the appeal, and the appeal was therefore allowed on December 27, 2013, meaning that a new review by a different decision‑maker was ordered by the IAD in accordance with the usual procedure. It appears that in order to complete the review, additional information and documents were requested on May 15, 19 and 23, 2014. Ms. Mbakop and their daughter were granted permanent resident status on or around June 30, 2014.
[38] Thus, Her Majesty The Queen argues that its agents had committed no fault justifying an award of damages. If harm was caused, it was the result of Mr. Yodjeu’s negligence in preparing his sponsorship application, in which residence in Canada at the appropriate time was not established. The plaintiff’s negligence in changing his address was also a source of the difficulties he encountered. Furthermore, the processing times for the file were reasonable, given the numerous sponsorship applications.
[39] The amended statement of defence notes at paragraph 41 that if the plaintiff had provided information and evidence in order to establish his residence at the time the sponsorship application was filed, the sponsorship application and the permanent residence application might have succeeded earlier.
[40] The defence also focused directly on the alleged conflict of interest of the Senegalese employee at the Canadian Embassy in Dakar. It appears that Mr. Yodjeu filed a complaint on August 28, 2013, with the CIC Call Centre in Montreal. The defendant argues that said employee did not know Mr. Yodjeu. Her job at the embassy consisted, inter alia, of entering data into the Global Case Management System [GCMS]; she made two entries regarding the plaintiff’s file, one on February 19, 2013, to acknowledge receipt of documents sent by the plaintiff and one on June 4, 2013, to correct an error reported by the plaintiff after receiving the notice of refusal on May 22, 2013. The defendant argues that the plaintiff’s file was being handled by another employee tasked with making those decisions. In fact, the locally hired employee accused of a conflict of interest had no decision‑making authority of any kind whatsoever.
[41] But there is more. The Canadian Embassy in Dakar complained about alleged harassment by the plaintiff. In fact, following his complaint on August 28, 2013, Mr. Yodjeu was informed on September 2, 2013, that the person had no decision‑making authority. Subsequently, on September 4, 2013, the plaintiff made his allegation based on his claim that he and this person had worked for the same bank. The defendant argues that he was mistaken, with one having worked for Ecobank‑Senegal and the other for Ecobank‑Cameroon, two legally distinct entities. In addition, the defendant argues that the plaintiff tried to contact this person outside of work through various means, forcing her to close her social media accounts. The allegations continued on September 30, 2013. That led to a formal response from CIC that same day in which it reiterated that the file had been processed appropriately and ordered that communications be suspended until the appeal had been decided.
[42] As for the alleged damages, the defendant states that it is not liable. In any case, they would be unwarranted and grossly exaggerated, in addition to being unproven. Lastly, the plaintiff is arguing on behalf of others by seeking remedies for his spouse and their daughter.
IV. The incidents that led to the motion for summary judgment
[43] In an order dated January 11, 2016, the Chief Justice of this Court noted that 360 days had passed since the statement of claim was issued (August 22, 2014) with no requisition for pre‑trial conference being filed, which led him to appoint Prothonotary Morneau as the judge responsible for managing the proceeding.
[44] The parties submitted a time frame on February 1, 2016 (a counsel to defend Mr. Yodjeu’s interests was assigned to the case at that time). The time frame approved by Prothonotary Morneau by order on February 4, 2016, stated that the defendant could amend its defence no later than February 29 and that the requisition for pre‑trial conference had to be submitted no later than May 31, 2016.
[45] The Court does not intend to detail the numerous incidents and skirmishes that marked the development of this case in 2016; however, it may be useful to refer to one incident that occurred in May 2016
[46] Mr. Yodjeu wrongly believed that his action could be heard before the end of 2016. But for that to happen, the pre‑trial conference still had to be held, for which the deadline of May 31, 2016, had been set, by order on February 4, 2016, for the filing of the pre‑trial conference memorandum. However, counsel for the defendant refused to provide their availabilities for such a conference as long as the plaintiff was fixated on the topic of the alleged damages against his spouse and their daughter.
[47] In fact, on May 12, 2016, the plaintiff announced that he wanted to add his spouse and their daughter as plaintiffs. That led to an exchange of correspondence resulting in the order by Prothonotary Morneau on May 20, 2016, in which he suspended the time frame ordered on February 4, 2016. This whole episode is related in paragraphs 17 to 27 of the order dated October 20, 2017 (2017 FC 940).
[48] The aspect of that exchange of correspondence that is relevant to the motion for summary judgment is that the defendant announced clearly (and formally as of May 17, 2016) that a motion for summary judgment would be filed and that the plaintiff was not authorized to argue on behalf of others.
V. The motion for summary judgment
[49] A notice of motion was filed on July 5, 2016; the defendant cited rule 213 to request a summary judgment.
[50] The defendant argues that the action in extracontractual liability cannot succeed because the action has no factual basis; thus, the plaintiff cannot demonstrate fault, which of course means that the two other grounds for the action, namely, the damage caused and the causal connection between the alleged fault and the damage caused, cannot be demonstrated.
[51] It is submitted that all the evidence needed to settle the dispute is available and that the Court may find that there is no genuine issue for trial.
[52] Rules 213 to 216 allow a party to a dispute to file a motion for summary trial or summary judgment. In this case, the defendant has chosen a summary judgment. There is no doubt that the defendant was authorized to file this motion. This motion concerns the entire action and not, as might have been the case, only a portion of the issues raised. Authors Letarte et al. thus describe the purpose of the summary judgment or trial at paragraph 4‑42 of Recours et procédures devant les Cours fédérales, LexisNexis, 2013:
[translation]
Thus, the goal of both the summary judgment and the summary trial is to bring as expeditious and economical a resolution to the proceeding as possible. In fact, the trial of an action is very costly in terms of both time and money for the parties and for the judicial system. The motion for summary judgment or summary trial is often an appropriate procedural vehicle for summarily dismissing an action, a defence or a portion thereof at a preliminary stage of the debate.
[53] The burden is very clearly on whoever is seeking to obtain the summary judgment. Rule 215 establishes that the motion for summary judgment can be granted only if the Court is satisfied that there is no genuine issue for trial. In this case, the parties would need to administer their evidence through affidavit with cross‑examination on affidavit made out of court, so that the Court could determine whether there is a genuine issue for trial with respect to the statement of claim or of defence. Ultimately, it is up to the defendant to establish the necessary facts to obtain the summary judgment. The issue to be determined is whether the success of Mr. Yodjeu’s application is so dubious that there is no need to hold a trial. In fact, rule 214 specifically provides that the party responding to a motion for summary judgment must submit its own evidence to demonstrate that there is a genuine issue for trial:
Facts and evidence required
Faits et éléments de preuve nécessaires
214 A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial.
214 La réponse à une requête en jugement sommaire ne peut être fondée sur un élément qui pourrait être produit ultérieurement en preuve dans l’instance. Elle doit énoncer les faits précis et produire les éléments de preuve démontrant l’existence d’une véritable question litigieuse.
Allegations alone do not suffice; there must be evidence (Rude Native Inc v Tyrone T. Resto Lounge, 2010 FC 1278, paragraphs 15–18; Trevor Nicholas Construction Co Limited v Canada, 2011 FC 70, paragraph 44).
[54] My colleague Madam Justice Gagné applied the summary of the general principles in the matter set out by Madam Justice Tremblay‑Lamer in Granville Shipping Co v Pegasus Lines Ltd, [1996] 2 FCR 853 [Granville Shipping]. It serves as a useful guide that Justice Gagné reproduced at paragraph 27 of her reasons for judgment in Morin v Canada, 2013 FC 670, another immigration case. The passage from Granville Shipping reads as follows:
I have considered all of the case law pertaining to summary judgment and I summarize the general principles accordingly:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al);
2. there is no determinative test (Feoso Oil Ltd. v. Sarla (The)) but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Ltd. v. Gillespie. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework (Blyth and Feoso);
4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feoso and Collie);
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman and Sears);
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross‑examined before the trial judge (Forde and Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a “hard look” at the merits and decide if there are issues of credibility to be resolved (Stokes).
[55] In Canada (Attorney General) v Lameman, 2008 SCC 14; [2008] 1 SCR 372 [Lameman], the Supreme Court of Canada firmly establishes the principles that govern summary judgments:
[11] For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute or counter the defendant’s evidence, or risk summary dismissal: Murphy Oil Co. v. Predator Corp. (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff’d (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must “put its best foot forward” with respect to the existence or non‑existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30.
[Emphasis added. See also Buffalo v Canada, 2016 FCA 223, paragraph 47.]
[56] The Supreme Court of Canada encouraged the lower courts to use summary judgments in appropriate cases, and, in so doing, sought a genuine culture shift (Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 [Hryniak], paragraphs 28 and 32). We must of course beware of generalizations or blind borrowing from other cases that follow rules other than our Rules (Manitoba v Canada, 2015 FCA 57). However, the applicable standard according to the Ontario Rules of Civil Procedure (R.R.O. 1990, Reg. 194), which was applied in Hryniak, has a clear relationship with the standard presented in rule 215 of the Rules. Rule 215 stipulates that the Court must be “satisfied that there is no genuine issue for trial with respect to a claim or defence”, while Ontario Rule 20.04 states that “[t]he court shall grant summary judgment if . . . (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.
[57] However, it appears that the final test set out by the Supreme Court in Hryniak is the Court’s ability to provide a fair and just adjudication on a motion for summary judgment. I see no reason why that test would not apply in our case. That rule of caution seems all the more important to me because Mr. Yodjeu is not retaining the services of counsel. This caution is thus articulated at paragraph 50 of Hryniak:
[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[58] Ultimately, the Court must consider the evidence in the context of a motion for summary judgment to determine whether there is a genuine issue for trial. The plaintiff must refute this or present his own evidence. However, if the Court is satisfied that there is “no genuine issue for trial” (in French, “pas de véritable question litigieuse”), a summary judgment is thus rendered.
VI. Analysis
[59] Mr. Yodjeu has been in possession of the motion for summary judgment since July 2016, that is, more than a year before the hearing was held in late October 2017. According to the Rules, the motion may only be brought at least 20 days before the hearing date, during which time the reply record must be served and filed not later than 10 days before the hearing date. Mr. Yodjeu therefore had ample time to file his evidence in order to “put [his] best foot forward” as stated at paragraph 11 of Lameman, reproduced at paragraph 55 of these reasons. In fact, Mr. Yodjeu had filed his action on August 22, 2014: he had more than three years “to put [his] best foot forward”. Moreover, the Court allowed him to submit the new evidence that he considered relevant, despite the doubts expressed in this regard by the Court (order dated October 20, 2017 (2017 FC 940), paragraph 32 et seq.). In other words, the plaintiff was given every opportunity to compile his reply record as he saw fit.
[60] Nevertheless, this matter is simple once we trim away the diversions in which the plaintiff too often lost himself (order by Justice Bell dated October 2, 2017). The final result is that the Court can consider only the evidence and arguments that have been presented to it. The matter that is before the Court is the action undertaken by Mr. Yodjeu regarding the manner in which Crown officials processed his sponsorship application and the permanent residence application of his spouse and their daughter. Nothing more. The disputes that the plaintiff might have wanted to initiate against the Canadian Human Rights Commission or the Privacy Commissioner are different from the action that he instituted in August 2014.
[61] The defendant, who is the moving party in this case, filed four affidavits into evidence with numerous supporting exhibits. Those affidavits come from the main actors. Three are from the decision‑makers at each stage of this matter, and the fourth is from the person who was responsible as the manager of the immigration program in Dakar (a team of around 20 employees):
· Steven Owen is the individual who made the initial decision on the plaintiff’s sponsorship application;
Chantal Kidd made the decision on the permanent residence application for Ms. Mbakop and the couple’s daughter. At the time, she was a temporary employee at the Canadian Embassy in Senegal;
Karine Santerre is the person who recommended that the appeal from the refusal to grant permanent residence to the spouse and the couple’s daughter be conceded;
Isabelle Ouellet was responsible for the immigration program at the Canadian Embassy in Senegal.
Those four witnesses were presented to establish the facts, from the point of view of the moving party and defendant to the action, and to elaborate on the decisions that were made. They all responded to the written cross‑examination that they underwent by Mr. Yodjeu in November 2016.
The instituted action
[62] I consider it relevant to reiterate the framework in which the motion for summary judgment was brought. The action instituted by Mr. Yodjeu in August 2014 presented certain facts about the refusals issued, namely the refusal to grant the sponsorship application and the permanent residence application for Ms. Mbakop and their daughter. This was followed by what Mr. Yodjeu referred to as [translation] “my accusations”.
[63] Essentially, it must be understood that this constitutes the fault alleged by the plaintiff, which he must demonstrate in order to have any hope of his action succeeding. These allegations are as follows:
a) the person hired locally in Dakar allegedly processed Mr. Yodjeu’s file when this was likely to place her in a conflict‑of‑interest situation;
b) a person referred to as “SOW” allegedly backdated the refusal of t