Date: 20040519
Docket: T-2066-03
Citation: 2004 FC 732
Ottawa, Ontario, this 19th day of May 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
NAWAL HAJ KHALIL
ANMAR EL HASSEN, and ACIL EL HASSEN,
by her Litigation Guardian, NAWAL HAJ KHALIL
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Nawal Haj Khalil and her children Anmar El Hassen and Acil El Hassen, by her Litigation Guardian Nawal Haj Khalil (the "Plaintiffs") bring this action against Her Majesty the Queen (the "Defendant") seeking the following relief:
A declaration that section 34(1)(f) of the Immigration and Refugee Protection Act on its face and/or in its application and operation infringes the Plaintiffs' right to the freedoms of expression and association under section 2 of the Charter of Rights and Freedoms and is of no force and effect under section 52(1) of the Constitution Act, 1982, given that the sanction of inadmissibility was and can be premised entirely on lawful expressive activity and association. The denial of and delay in landing, and the resultant denial of family reunification, based on a person's journalistic career for the official representative of her people, strikes at the core of the freedoms of expression and association.
A declaration that section 34(1)(f) of the Immigration and Refugee Protection Act infringes on its face and/or in its application and operation section 15 of the Charter of Rights and Freedoms in proscribing activities which are lawful for Canadians and are in pursuit of an international recognized right to self determination, a fundamental human right for all peoples and in proscribing the association and activities of Palestinians engaged in the lawful activities of their representative organization, when others engaged in lawful activities on behalf of their state are not sanctioned by virtue of the relationship with the state, even though the state may engage in human rights violations, unless under section 35(1)(b) of the Immigration and Refugee Protection Act the state has been designated and the person has held a position of influence within the government.
A declaration that the failure of the Defendant to finalize the landing application of the Plaintiffs is negligent and in breach of their rights under section 7 of the Charter of Rights and Freedoms in a manner which is not in accord with the principles of fundamental justice, is in breach of their rights under sections 12 and 15 of the Charter of Rights and Freedoms, and is in breach of their freedoms of expression and association under section 2 of the Charter of Rights and Freedoms.
The Plaintiffs claim a just and appropriate remedy under section 24(1) of the Charter of Rights and Freedoms, including:
a. The above requested declarations;
b. General Damages;
c. Punitive Damages; and
d. Such further and other declaratory and other relief ...
[2] By notice of motion filed December 18, 2003, the Defendant sought an order striking the Plaintiffs' statement of claim or alternatively, an extension of time within which to file a statement of defence. The motion was dismissed by Prothonotary Milczynski and the Defendant now appeals pursuant to the Federal Court Rules, 1998, SOR/98-106, as amended, Rule 51.
FACTS
[3] The Plaintiffs, a mother and her two children, entered Canada on April 5, 1994. On December 21, 1994, they were determined to be Convention refugees. They subsequently applied for landing on January 11, 1995. They were notified that the application for landing had been approved in principle.
[4] The Plaintiff Nawal Haj Khalil was interviewed by the Canadian Security and Intelligence Service concerning her membership in the Palestinian Liberation Organization. She was later interviewed by an Immigration official to determine if she was a person described in section 19(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.
[5] By letter dated February 25, 2000, the Plaintiffs were informed by the interviewing Immigration officer that their application for landing had been refused because the adult Plaintiff had been found to be a person described in section 19(1)(f)(iii)(b) of the Immigration Act, supra.
[6] On March 15, 2000, the Plaintiffs commenced an application for leave and judicial review challenging the decision of the Immigration Officer that denied their application for landing. On February 21, 2001, leave for judicial review was granted.
[7] On October 22, 2001, the Minister sought an order allowing the application for judicial review and setting aside the challenged decision. On November 16, 2001, the application for judicial review was granted and the matter was referred back for redetermination.
[8] On March 1, 2002, the adult Plaintiff was interviewed by another Immigration Officer, also to determine admissibility pursuant to section 19(1)(f)(iii) of the Immigration Act, supra. On June 3, 2002, the adult Plaintiff forwarded written submissions on admissibility issues, and a Ministerial exception, pursuant to the Immigration Refugee and Protection Act, S.C. 2001, c. 27, as amended, ("IRPA") sections 34(1)(f) and section 34(2), respectively. A decision on the Plaintiffs' application for landing remains pending.
THE PROTHONOTARY'S DECISION
[9] By Order dated February 17, 2004, the Prothonotary dismissed the Defendant's notice to strike the Plaintiffs' statement of claim. She rejected the Defendant's arguments that the Plaintiffs' claim for declaratory relief can be obtained only upon an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7, as amended.
[10] The Prothonotary, in her analysis, recognized the Defendant's attempt to characterize the Plaintiff's action as seeking declaratory relief relative to the failure to process their application for landing in a reasonable time, as the result of negligence and in breach of their rights under 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"), together with a declaration that section 34(1)(b) of IRPA, either on its face or in its effect, breaches their rights pursuant to sections 12 and 15 of the Charter.
[11] The Prothonotary further acknowledged and accepted the Defendant's argument that declaratory relief against any federal board, commission or other tribunal is only available upon an application pursuant to section 18(3) of the Federal Courts Act, supra. She also noted that section 72(1) of IRPA requires that judicial review respecting any matter pertaining to a decision, determination or order made pursuant to IRPA is to be dealt with upon an application for leave to the Court.
[12] However, the Prothonotary concluded that the Plaintiffs' claim for declaratory relief does not relate to "any matter, determination or order made, a measure taken or a question raised" under IRPA. A prior decision had been set aside and no further decision was subsequently made. The Prothonotary found that the Plaintiffs are not obliged to bring an application for judicial review seeking an order of mandamus to compel the disposition of their application for landing, before initiating their action for damages. In this regard she referred to Zubi v. Canada (1993), 71 F.T.R. 168; Creed v. Canada (Solicitor General), [1998] F.C.J. No. 199 (T.D.) and Burton v. Canada, [1996] F.C.J. No. 1059 (T.D.).
[13] The Prothonotary commented upon the basis of the Plaintiffs' claim as follows:
What the Plaintiffs seek by way of declaratory relief is a direct and independent challenge to the constitutionality of subsection 34(1)(f) of IRPA. Without making any determination regarding the Plaintiffs' standing to proceed in this manner, there is no general or overriding prohibition applicable in the circumstances of this case, for the Plaintiffs proceeding by way of action instead of application for judicial review. On the contrary, where a proceeding does not relate to a decision of a federal board, commission or other tribunal, but is a direct attack against the legislation, the federal Crown cannot be brought before the Court by means of an application for judicial review, (Confederation des syndicats nationaux v. Canada, [1998] F.C.J. No. 144 (T.D.)).
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.
SUBMISSIONS
I) The Defendant
[14] The Defendant argues that the applicable standard of review is correctness since the nature of the motion before the Prothonotary potentially affected the final disposition of the action. Accordingly, this Court should review the matter on a de novo basis. Alternatively, the Defendant submits that the Order was clearly wrong and that the exercise of discretion by the Prothonotary was based upon a wrong principle or misapprehension of the facts.
[15] The Defendant says that, pursuant to section 18(3) of the Federal Courts Act, supra, the jurisdiction of the Court to grant declaratory relief against a federal board, commission or other tribunal may be obtained only upon an application for judicial review pursuant to section 18.1 of the Federal Courts Act, supra.
[16] The Defendant says that the Plaintiffs can obtain declaratory relief for a breach of their rights under the Charter upon an application for judicial review and in this regard, relies on Gwela v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.). Further, the Defendant relies on Machado v. Canada (1996), 124 F.T.R. 296 in support of the argument that the particular requirement for leave, in the context of the legislation governing immigration matters, favour the view that proceedings in that context should proceed by way of application, not by way of an action.
[17] The Defendant then refers to section 72(1) of the Immigration and Refugee Protection Act, supra, which provides as follows:
| Judicial review by the Federal Court with respect to any matter - a decision, determination or order made, a measure taken or a question raised - under this Act is commenced by making an application for leave to the Court. |
|
Le contrôle judiciaire par la Cour fédérale de toute mesure - décision, ordonnance, question ou affaire - prise dans le cadre de la présente loi est subordonné au dépôt d'une demande d'autorisation.
|
[18] The Defendant argues that the power to obtain declaratory relief against any federal board, commission or other tribunal is available only upon an application for judicial review. In this regard, the Defendant relies on Zubi, supra, Singh v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 174 (T.D.), Jama v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1256 (T.D.) and Zarzour v. Canada (Minister of Citizenship and Immigration) (2000), 268 N.R. 235 (C.A.).
[19] The Defendant also submits that the Prothonotary erred by defining the term "matter" too narrowly when she concluded that the Plaintiffs were not obliged to pursue an application for judicial review as the means of obtaining declaratory relief. In this regard, the Defendant relies on Krause v. Canada, [1999] 2 F.C. 476 (C.A.).
[20] The Defendant also argues that the Prothonotary erred in failing to acknowledge the leave requirement in IRPA.
[21] Finally, the Defendant submits that the present action is a disguised attempt to obtain an order for mandamus and for declaratory relief. The Defendant also argues that the Court can grant declaratory Charter relief upon an application for judicial review.
ii) The Plaintiffs
[22] The Plaintiffs agree with the Defendant concerning the applicable standard of review. However, they argue that the Prothonotary did not err, that this action is properly grounded, that they are not obliged to pursue an application for judicial review since there is no outstanding decision to attract the application of either section 18 of the Federal Courts Act, supra or section 72 of IRPA, and that their claim is an independent claim for damages arising from negligence and of breaches of their Charter rights.
[23] The Plaintiffs submit that the decisions relied on by the Defendant do not apply in the circumstances outlined by their statement of claim.
[24] The Plaintiffs say, specifically, that their challenge to the constitutionality of section 34(1) of IRPA is independent of IRPA but arises directly in relation to the rights under the Charter. The Plaintiffs submit that the Prothonotary made no error in her assessment of the basis of this claim.
ANALYSIS AND DISPOSITION
[25] The standard of review applicable to appeals from a prothonotary was addressed by the Federal Court of Appeal in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.). Unless the decision is clearly wrong, insofar as it was based upon a wrong legal principle or upon a misapprehension of the facts, involved the misuse of judicial discretion, or raised issues vital to the final disposition of the action, the decision should remain undisturbed on appeal.
[26] The effect of the Defendant's motion is to terminate the Plaintiffs' action. In Telefonaktiebolaget LM Ericsson v. Harris Canada Inc., [2002] F.C.J. No. 789. the Court decided that a de novo standard should apply when the decision could be described as interlocutory or final, depending upon the result. That standard applies here and I will consider the Prothonotary's decision on a de novo basis. The issue then is whether the Prothonotary made a reviewable error in dismissing the Defendant's motion.
[27] In my opinion, she did not. The Prothonotary correctly identified and rejected the Defendant's attempt to characterize the Plaintiffs' statement of claim as an application for declaratory relief in the matter of an order for mandamus that would attract the operation of section 18(3) of the Federal Courts Act, supra.
[28] The Prothonotary correctly identified the grounds of the Plaintiffs' claim as being first, a claim in negligence advanced in relation to the delay by the Defendant's servants and agents in finalizing their application for landing and second, a claim for breaches of Charter rights, both with respect to the issue of delay and to the breaches of their rights pursuant to section 7 of the Charter. The Plaintiffs seek damages relating to the cause of action based in negligence and also for the breach of Charter rights, pursuant to section 24 of the Charter.
[29] The Prothonotary recognized the right of the Plaintiffs to frame their cause of action. It is not open to the Defendant to impute a different manner of proceeding, that is an application for judicial review, when the Plaintiffs themselves did not choose that forum. Indeed, there is no existing decision which could be the basis of such a proceeding.
[30] In my opinion, the Prothonotary canvassed relevant jurisprudence and properly applied it. The Plaintiffs claim damages and according to Creed, supra and Burton, supra, that remedy is not available upon an application for judicial review.
[31] I refer to the more recent decision in Chesters v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 151. In that case, the Plaintiff had commenced an action seeking a declaration that the section of the Immigration Act, supra under which her application for permanent resident status was denied, was of no force and effect as being inconsistent with sections 7 and 15(1) of the Charter. She sought, as well, a declaration that she was entitled to permanent resident status in Canada and an exemption from any amended version of the impugned provision.
[32] The Defendant moved to strike the statement of claim or alternatively, to strike certain portions of the prayer for relief seeking declarations and a stay of that part of the action seeking damages pending a final decision on an application for judicial review, Associate Senior Prothonotary Giles dismissed the motion and said the following at paragraphs 4, 5 and 6 of his reasons:
4. I note that in my view, there are two or three categories of declaration involved in the prayer for relief. The relevant parts of that prayer for relief read as follows:
(a) a declaration that section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, is inconsistent with sections 7 and 15(1) of the Charter, and therefore is of no force and effect pursuant to section 52(1) of the Constitution Act 1982, and cannot be saved under section 1 of the Charter;
(b) a declaration that the defendant's denial of her application for permanent resident status on the grounds that she is inadmissible under section 19(1)(a)(ii) of the Immigration Act, is a violation of her rights under section 7 and section 15(1) of the Charter;
(c) a declaration that she is entitled to permanent resident status in Canada;
(d) in the event that s.19(1)(a)(ii) is found to be of no force and effect under s.52(1) of the Constitution Act, 1982, and the declaration of invalidity is suspended to allow the defendant to amend the impugned provisions, a constitutional exemption from the application from s.19(1)(a)(ii);
...
5. Dealing with declarations of the nature of that in subparagraph (a), I note, they would declare the legislation void. Subparagraph (a) does not in its face involve any federal board, commission or other tribunal. ... In addition, such a declaration is not on its face impugning a decision of any federal board, commission or other tribunal. It is impugning legislation of Parliament. I find that a declaration of this type may be sought in an action. ...
6. In my view, subparagraphs (b) and (c) of the prayer for relief must be struck out. Subparagraphs (a) and (d) can properly remain in an action to declare the legislation void and for damages (the "damage action"). Because I agree with the submissions of counsel for the plaintiff that the question of whether or not damages can be awarded for actions taken before legislation is found ultra vires is a matter that should be decided by the trial judge. I will not strike the damage action. I do not intend to stay the damage action because, in my view, the plaintiff can proceed with her action to have the legislation declared void and possibly to obtain damages whether or not the decision of the tribunal is set aside. ...
[33] This Order was not appealed but the Defendant made a further attempt to strike out the Plaintiff's action on the grounds of mootness. That motion was dismissed by Prothonotary Lafrenière. It is apparent from his reasons that the issue of the viability of a claim for damages in conjunction with a prayer for declaratory relief was raised again. In dismissing the motion, the Prothonotary referred to Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 where the Supreme Court of Canada acknowledged that although a remedy in damages will rarely be available in conjunction with a claim for constitutional invalidity, the possibility for such remedy, in exceptional circumstances, did exist.
[34] Upon appeal, cited as Chesters v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1135, Justice Dawson confirmed the decision of the Prothonotary and said, at paragraph 24:
24. As for the second alleged error, the making of an offer to land could have no effect on the plaintiff's right to claim damages arising out of events prior to the making of the offer to land. The Prothonotary was correct in concluding that the fact that an offer of landing was made had no bearing upon the issue as to whether, as a matter of law, damages can flow from allegedly unconstitutional actions of the government.
[35] In the result, the appeal is dismissed. Since the Defendant sought leave to file a defence if unsuccessful on this appeal, that relief is granted and there will be an extension of twenty (20) days from the date of this Order to file their statement of defence.
ORDER
The appeal is dismissed, with costs to the Plaintiffs. The Defendant shall file her statement of defence within twenty (20) days of the date of this Order.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-2066-03
STYLE OF CAUSE: NAWAL HAJ KHALIL ET AL v. ATTORNEY GENERAL OF CANADA
DATE OF HEARING: March 22, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: Heneghan J.
DATED: May 19, 2004
APPEARANCES BY: Ms. Barbara Jackman
For the Plaintiff
Mr. John Loncar
Mr. Tamrat Gebeyehu
For the Defendant
SOLICITORS OF RECORD: Ms. Barbara Jackman
Toronto, Ont.
For the Plaintiff
Mr. John Loncar
Mr. Tamrat Gebeyehu
Department of Justice Ontario Regional Office.
130 King St. W. Suite 3400, Box 36 Toronto, Ont.
M5X-1K6
For the Defendant