Date: 20040302
Docket: IMM-5992-02
Citation: 2004 FC 308
Ottawa, Ontario, March 2, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
KLM ROYAL DUTCH AIRLINES
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Citizenship and Immigration Canada (the respondent), dated on or about October 15, 2002, that the applicant owes $114,715.68 to the respondent for the removal costs of one Mohamed Moussa Mouhoumed.
THE FACTS
[2] Mr. Mouhoumed came to Canada on January 19, 1999, from Lyons, France, on one of the applicant's flights. He arrived at Dorval airport with a false French passport. A deportation order was issued the same day, but was stayed because Mr. Mouhoumed claimed refugee status. He was not granted refugee status because he did not proceed.
[3] On May 19, 2001, and July 9, 2001, the respondent had unsuccessfully attempted to deport a man by the name of Amiin Musse Maxamed (Musse) to Somalia, by using scheduled commercial flights; he became violent and the respondent decided that it would be necessary to have officers accompany him to the last point of embarkation.
[4] Around July 30, 2001, the respondent learned the true identity of Musse. It was Mr. Mouhoumed.
[5] On July 31, 2001, the respondent sent a notice to the applicant informing it that it had the obligation to transport Mr. Mouhoumed to Djibouti.
[6] On August 9, 2001, the applicant confirmed, in writing, that it would transport Mr. Mouhoumed to Djibouti.
[7] On September 3, 2001, the respondent, with the applicant's consent, attempted to remove Mr. Mouhoumed to Djibouti. It failed. The following day, September 4, 2001, the applicant received a letter from the respondent stating that, because of Mr. Mouhoumed's resistance and behaviour, the pilot had ordered that he get off the plane. Moreover, because it was the third attempt to deport him, the services of a private flight (Sky Service) would have to be used the next time.
[8] On September 6, 2001, the applicant advised the respondent that it refused to pay the costs of chartering a private plane.
[9] On September 10, 2001, the respondent wrote to the applicant to remind it of its obligation as a carrier.
[10] On September 25, 2001, the applicant attempted to convey Mr. Mouhoumed by using a scheduled KLM flight and by having Mr. Mouhoumed escorted by three individuals. Once again, Mr. Mouhoumed behaved in such a way that the pilot ordered that he get off the plane.
[11] On October 1, 2001, the applicant made a new proposal to the respondent for Mr. Mouhoumed's removal to Dubai: reserving the nose of the plane for him and his escorts. They would then continue their journey between Dubai and Djibouti on a commercial flight.
[12] On October 5, 2001, the proposal was rejected.
[13] On October 10, 2001, the respondent made a counter-proposal for the Dubai-Djibouti trip and asked that a plane be chartered for that part of the flight.
[14] On October 12, 2001, the applicant replied that if Mr. Mouhoumed was unruly while on the commercial flight, an agreement would be made with Air Djibouti to get a separate section in the plane.
[15] On October 23, 2001, the respondent informed the applicant that it was dissatisfied with the proposal because it believed that it was too uncertain, as there was no guarantee that Mr. Mouhoumed and his escort would be transported safely on the Air Djibouti flight. The applicant did not give any guarantee that Air Djibouti would agree to make a part of the aircraft available to KLM. The respondent warned that it would itself reserve a small private plane for the Dubai-Djibouti trip. This letter was not answered.
[16] On October 30, 2001, the respondent wrote to the applicant to inform it that it had decided to charter a plane to proceed with the removal of Mr. Mouhoumed and that the applicant was responsible for the removal costs.
[17] On November 5, 2001, the applicant was advised, in writing, that the respondent had deported Mr. Mouhoumed of its own initiative on November 4, 2001, and that the costs amounted to $114,715.68.
[18] On March 1, 2002, the respondent wrote to the applicant asking it to reimburse the costs incurred, which was refused.
[19] On October 15, 2002, the respondent advised the applicant that, unless the amount of $114,715.68 was paid on or before October 31, 2002, the amount of the security provided by the applicant could be forfeited to Her Majesty in right of Canada under subsection 148(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT STATUTORY PROVISIONS
[20] The relevant provisions of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) are:
| 85.(1) Subject to subsection (2), a transportation company that has brought a person to Canada may be required by the Minister to convey that person, or cause that person to be conveyed. |
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85(1) Sous réserve du paragraphe (2), le transporteur qui a amené une personne au Canada, peut être tenu responsable par le ministre du transport de celle-ci à destination : |
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| (a) to the country from which that person came to Canada or to such other country as the Minister may approve at the request of the company, in the case of a person who is allowed to leave Canada pursuant to subsection 20(1) or 23(4), (4.01) or (4.20) or who is required to leave Canada by reason of the making of a rejection order; |
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| a) du pays d'où elle est arrivée, ou du pays approuvé par le ministre à la demande du transporteur, dans le cas d'une personne qui est autorisée à quitter le Canada en vertu des paragraphes 20(1) ou 23(4), (4.01) ou (4.2) ou qui est forcée de le quitter par suite d'une mesure de refoulement; (b) to the United States, in the case of a person who is required to leave Canada by reason of the making of a direction to return to that country pursuant to subsection 20(2) or 23(5); or |
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(b) des États-Unis, dans le cas d'une personne à qui il a été ordonné de retourner dans ce pays aux termes des paragraphes 20(2) ou 23(5); |
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| (c) to such country as is determined pursuant to subsection 52(2) or (3), in the case of a person who is required to leave Canada by reason of the making of a removal order. |
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(c) du pays désigné conformément aux paragraphes 52(2) ou (3), dans le cas d'une personne qui doit quitter le Canada par suite d'une mesure de renvoi. |
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| 87(1) Where, pursuant to section 85 or 86, a transportation company is required to convey a person, or cause a person to be conveyed, from Canada, it shall be notified of that requirement and be given an opportunity to convey that person, or to cause that person to be conveyed, on one of its own vehicles or otherwise. |
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87(1) Le transporteur doit être avisé de l'obligation de transport que lui imposent les articles 85 et 86 et doit avoir la possibilité de s'en acquitter au moyen de ses propres véhicules ou pour tout autre moyen. |
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| (2) Where a transportation company referred to in subsection (1), after having been notified, is not prompt in furnishing transportation, the Minister may direct that arrangements be made for the removal from Canada, by another transportation company and at the expense of Her Majesty, of the person to be conveyed from Canada. |
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(2) Si le transporteur, une fois avisé, ne fait pas diligence, le ministre peut ordonner que les dispositions soient prises pour faire effectuer le transport par un autre transporteur, aux frais de Sa Majesté. |
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| (3) The transportation company referred to in subsection (1) is liable, on demand, to reimburse Her Majesty for all removal costs incurred under subsection (2) in respect of the person conveyed from Canada. |
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(3) Dans le cas visé au paragraphe (2), le transporteur à qui incombait le transport est tenu de rembourser à Sa Majesté, sur demande, les frais de renvoi. |
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| 88(1) Every transportation company that is required to convey any person who is ordered removed from Canada is rejected from Canada or is allowed or required to leave Canada shall |
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88(1) Le transporteur requis de transporter une personne qui est renvoyée ou refoulée du Canada ou qui est autorisée ou contrainte à partir est tenu de : |
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| (a) detain and guard safely the person concerned until that person can be placed on board the vehicle on which he is to be conveyed; and |
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a) la surveiller jusqu'à ce qu'elle soit à bord du véhicule qui doit la transporter; |
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| (b) accept on board such vehicle, guard safely and convey the person in accordance with the removal or rejection order or other order or direction. |
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(b) la prendre à bord du véhicule, la surveiller et la transporter en conformité avec les mesures ou instructions la concernant, notamment la mesure de renvoi ou de refoulement. |
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ANALYSIS
The appropriate standard of review
[21] In Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Supreme Court of Canada reiterated that the pragmatic and functional approach used in U.E.S. Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and Pushpanathan v. MCI, [1998] 1 S.C.R. 982, must be applied when conducting a judicial review to determine the appropriate standard of review. The pragmatic and functional approach requires an analysis of four contextual factors.
The presence or absence of a privative clause or statutory right of appeal
[22] In this case, the respondent's decision was made under section 87 of the former Act, which does not contain an explicit privative clause. However, the Parliament did not authorize the appeal of the Minister's decisions to a court. Further, judicial review is only possible with leave of the court. The former Act thereby provided a limited review mechanism, which militates in favour of judicial deference.
Relative expertise
[23] Sections 85 to 88 of the former Act provide that the Minister can hold the transportation company liable for having brought a person who is inadmissible. In order to do this, Parliament conferred a broad discretion on the Minister regarding the choice of the country to which this person will be deported (subsection 85(1)). Moreover, when the transportation company that brought the person is not prompt in furnishing transportation, the Minister may choose another transportation company (subsection 87(2)). These decisions therefore call upon the experience and knowledge of the Minister, who is more familiar in this area than a Court. This consideration militates in favour of deference.
The purpose of the legislation
[24] In Flota Cubana de Pesca v. M.C.I., [1998] 2 F.C. 303, the Federal Court of Appeal addressed the purpose of Part V of the former Act. Stone J.A. explains that the object of the Act is to discourage transportation companies from conveying persons to Canada who are not legally entitled to be or remain here. He states, at paragraph 33:
Part V of the Act reveals that its overarching purpose is to transfer the costs associated with the entry of persons without status into Canada, and their subsequent removal, from the federal government to the transportation companies which brought these persons into the country. The provisions of Part V also assist in furthering the overall object of the Act by discouraging transportation companies from conveying persons to Canada who are not legally entitled to be or remain here.
[25] The provisions therefore require an assessment of the facts. Generally, the assessment of the facts is an issue that is left to the administrative decision-maker. Further, the fact that Parliament chose to give a broad discretion to the Minister in the application of these provisions militates in favour of a greater deference (Dr. Q., supra, paragraph 31).
The nature of the question
[26] In this case, the Minister had to determine whether the transportation company, once notified, was not prompt, in which case he could order the removal by another transportation company, in accordance with subsection 87(2) of the former Act. It is therefore a question of mixed fact and law. This factor militates in favour of less deference.
[27] In light of this analysis, I find that the applicable standard of review is that of reasonableness simpliciter. In such a case, the role of the judge is to review the reasons for the decision and verify if any of these reasons can stand up to a somewhat more probing analysis. If the decision is supported by a tenable explanation, even if it is not one that the court finds compelling, it will not be unreasonable. In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, the Supreme Court wrote on this point:
[55] A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[56] This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [Emphasis added]
Application of the reasonable decision standard to the Minister's decision
[28] The applicant submits that the respondent has not demonstrated the applicant's liability as a "transportation company" under the Act. Further, even if it is established that the applicant, as a "transportation company", must be held liable for Mr. Mouhoumed's removal costs, the removal costs incurred by the respondent's unilateral decision to charter a private plane from Montréal to Djibouti were unreasonable and excessive and, consequently, it cannot be required to reimburse them.
[29] The applicant further argues that, by proceeding with the deportation without advising it, the respondent acted unfairly.
[30] Initially, it is clear from the evidence in the record that the applicant was the transportation company responsible for returning Mr. Mouhoumed to Djibouti. The applicant admitted its liability in a letter that it addressed to the respondent dated October 1, 2001: "KLM has, as per section 87(1) been given the opportunity to meet our obligation using our own vehicles and we have been prompt in furnishing transportation each time, therefore we will not accept any charges for a private charter aircraft to Djibouti."
[31] The applicant attempted, on two occasions, to transport Mr. Mouhoumed on board one of its commercial flights, but failed. Mr. Mouhoumed's behaviour was excessive and the pilot ordered him to get off the plane on both occasions. The respondent had itself attempted, twice before, to remove him on regular commercial flights and these attempts were also unsuccessful.
[32] It is for this reason that the respondent refused the applicant's last proposal, because although the applicant suggested reserving the nose of one of its planes for Mr. Mouhoumed and his escorts on a flight from Montréal to Dubai, Mr. Mouhoumed and his escorts would then have had to be placed on an Air Djibouti commercial flight from Dubai to Djibouti.
[33] As we saw earlier, in the applicant's letter dated October 12, 2001, it indicated that, if Mr. Mouhoumed were to repeat this violent behaviour, it would make the necessary arrangements to reserve part of the Air Djibouti plane for the passenger and his escorts.
[34] The respondent was not satisfied with this arrangement because it was uncertain. In fact, there was no guarantee that Mr. Mouhoumed and his escort would be transported safely in such a way as to ensure the success of the trip, since the applicant had not given any assurance that Air Djibouti would have consented to place part of the aircraft at the applicant's disposal on a commercial flight.
[35] This is why, in its letter dated October 23, 2001, the respondent had proposed that the applicant itself reserve a small chartered plane for the journey from Dubai to Djibouti. This proposal went unanswered.
[36] As the applicant had not acted promptly, after being notified several times, the respondent then availed itself of the option provided in subsection 87(2) of the former Act, and made its own arrangements for Mr. Mouhoumed's removal.
[37] In this case, I am persuaded that this decision was reasonable. According to the Canadian Oxford Dictionary, the word "prompt" means "acting without delay . . . made, done, etc. readily or at once", which means that the transportation company must fulfill its obligation quickly. The evidence in the record shows that the earlier attempts to deport Mr. Mouhoumed had failed. After giving the applicant the possibility, over a period of three months, to fulfill its obligation, it was reasonable for the respondent to conclude that the applicant had not been prompt.
[38] Moreover, contrary to the applicant's claims, I am satisfied that the principles of natural justice were not breached because the applicant was notified several times of its obligation as transporter. The respondent did not act in a covert fashion and I do not see any sign of bad faith on its part throughout this matter. To the contrary, the evidence reveals that the respondent gave the applicant many opportunities to make an arrangement that it would find adequate, considering the special needs required for Mr. Mouhoumed's transportation by plane.
[39] In conclusion, given Mr. Mouhoumed's violent behaviour upon the many attempted removals, the fact that the commercial flight suggested by the applicant between Dubai and Djibouti did not satisfy the respondent's safety concerns, and considering the applicant's silence regarding the respondent's last proposal and the three-month period that passed, in my opinion the decision satisfies the reasonableness standard because it is supported by a tenable explanation, even if it is not one that the court finds compelling (Law Society of New Brunswick v. Ryan, supra).
[40] For these reasons, the application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed without costs.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-5992-02
STYLE OF CAUSE: KLM ROYAL DUTCH AIRLINES v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 19, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Danièle Tremblay-Lamer
DATE OF REASONS: March 2, 2004
APPEARANCES:
Herbert Brownstein For the applicant
Michel Pépin For the respondent
SOLICITORS OF RECORD:
BROWNSTEIN, BROWNSTEIN & ASSOCIATES For the applicant
1310 Greene Avenue
Suite 750
Montréal, Quebec
H3Z 2B2
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Montréal, Quebec