Date: 20011206
Docket: IMM-1316-97
Neutral Citation: 2001 FCT 1374
OTTAWA, ONTARIO, DECEMBER 6, 2001
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
ANGELA CHESTERS
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
LUTFY A.C.J.
1. In her letter filed on November 30, 2001, pursuant to Rule 35(2) of the Federal Court Rules, 1998, counsel for the defendant has requested a special sitting on December 20 or 21, 2001 for the hearing of a motion for summary judgment. The defendant's motion material was filed with counsel's correspondence. Counsel indicated that the duration of the motion would exceed two hours.
2. In this action, the plaintiff seeks a declaration that the medical inadmissibility provision based on excessive demands on health or social services in subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, ch. I-2, is inconsistent with section 7 and section 15 of the Charter. The plaintiff also seeks general damages of $100,000 for violation of her rights and for mental, emotional and psychological distress, pursuant to section 24 of the Charter.
3. By order dated February 24, 2000, the trial in this action was first scheduled for December 11, 2000. Upon the defendant's motion to adjourn and because counsel for the plaintiff acknowledged that the trial could not be completed within the five days he had originally indicated as its duration, the hearing was continued sine die. On December 18, 2000, the new trial date was set for January 7, 2002.
4. The defendant's motion for summary judgment is triggered by the new Immigration and Refugee Protection Act, S.C. 2001, c. 27, which was given royal assent on November 1, 2001 but has yet to come into force. According to the defendant, the plaintiff's claim is now moot because she would no longer be medically inadmissible under subsection 38(2) of the new legislation. While this appears to be the principal ground for the motion for summary judgment, the defendant also argues that damages are not recoverable for action taken pursuant to an unconstitutional statute because a retroactive remedy should not be available following a determination of invalidity.
5. After hearing the parties yesterday by telephone conference call, I declined to grant the special sitting for the hearing of this motion for summary judgment. In my view, to schedule the hearing of this motion for summary judgment some two weeks prior to trial would unduly disrupt the trial preparation. These are my reasons for declining the defendant's request.
6. Rule 213(2) requires that a defendant may move for summary judgment before the time of trial is fixed. See: British Columbia Ferry Corp. v. Canada (Minister of National Revenue), [1999] F.C.J. 1705 (T.D.) (QL). While I need not and do not decide the issue at this time, I am not persuaded that compliance with Rule 213(2) should be waived in the circumstances of this case where the original trial date was set almost two years ago.
7. After making an offer to land the plaintiff as part of the proposed settlement of this litigation in August 2000, the defendant moved for an order that this action should not be heard as it had become moot. That motion was dismissed by Prothonotary Lafrenière who set out the grounds of the relief being sought by the defendant in these terms:
The Defendant now seeks an order declaring the present action to be moot based on two grounds. First, the Defendant says that the foundation upon which the proceeding was launched has ceased to exist because an offer was made in writing on August 30, 2000 to land the Plaintiff. Secondly, the Defendant submits that the Plaintiff's action cannot succeed because an award of damages cannot be coupled with a declaration of constitutional invalidity where the Plaintiff bases her claim for damages solely on the allegedly unconstitutional actions of the government.
8. Prothonotary Lafrenière disposed of the first ground as follows:
With respect to the first ground, despite the able argument of counsel for the Defendant, I am not satisfied that the Defendant's offer to land the Plaintiff has rendered the present action moot. In passing, the fact that the offer was conditional does not impact on my decision. As a result of the decision of the Associate Senior Prothonotary, the Plaintiff's claim has been amended to remove the proposed remedy of landing. The Plaintiff seeks instead a declaration that section 19(1)(a)(ii) of the Immigration Act is inconsistent with sections 7 and 15 of the Charter and is of no force and effect and damages allegedly suffered as a result of the application of the unconstitutional provision. In my view, the question as to whether the Plaintiff is entitled to damages because her Charter rights were violated remains a live controversy between the parties.
[Emphasis added.]
9. Concerning the defendant's second argument that the plaintiff's action in damages cannot succeed, Prothonotary Lafrenière noted:
The Supreme Court of Canada established the general rule that an individual remedy under s. 24 of the Charter will rarely be available in conjunction with a declaration of constitutional invalidity, however it left open the door for such damage claims, albeit in exceptional circumstances (see Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 at 360). I am unable to conclude on the record before me that the facts in this case do not warrant a departure from the general rule. This is a matter for trial.
[Emphasis added.]
10. Subsequently, Justice Dawson dismissed the defendant's appeal of the decision of Prothonotary Lafrenière and, in awarding costs against the defendant, she noted that she had not been satisfied that the appeal from the order of Prothonotary Lafrenière should have been brought. The defendant did not challenge Justice Dawson's order before the Court of Appeal.
11. In the defendant's first attempt to have this action dismissed for mootness, the factual basis was that the defendant had offered the plaintiff landed immigrant status. In the proposed motion for summary judgment, the factual basis is the passage of the Immigration and Refugee Protection Act under which spouses of Canadian citizens, and the plaintiff is such a person, would be exempt from medical inadmissibility on the basis of excessive demand. For the defendant, "... there is no longer a live controversy or concrete dispute because the legislation has changed and the reason for the litigation has disappeared."
12. The defendant's first motion to dismiss was based on a settlement proposal to land the applicant which was not unrelated to the department's policy document entitled Exemptions from Excessive Demands Bars. This motion for summary judgment, as I understand it, is based on the legislative enactment of that policy proposal.
13. In my view, the factual basis for the motion to dismiss the action may have changed but the grounds remain the same. This is not to suggest that the principle of res judicata is a bar to the defendant's motion for summary judgment. Nor am I purporting to adjudicate the motion for summary judgment in these reasons. However, I have not understood how the passage of the new legislation impacts on Prothonotary Lafrenière's finding, confirmed on appeal before Justice Dawson, that "... the question as to whether the plaintiff is entitled to damages because her Charter rights were violated remains a live controversy between the parties." The plaintiff's action is grounded on the current legislation, not on the new Immigration and Refugee Protection Act which has yet to come into force. In his letter to the Court dated December 4, 2001, counsel for the plaintiff stated that the new legislation has no impact on this litigation.
14. In summary, with one month prior to the trial, the inconvenience and the unfairness to the plaintiff to interrupt her preparation for trial by being required to defend this second attempt to have the action dismissed for mootness outweigh the defendant's request, in the circumstances of this proceeding, to have a special sitting assigned on December 20 or 21 for the hearing of the motion for summary judgment.
ORDER
Accordingly, the request for a special sitting on December 20 or 21, 2001 for the hearing of the defendant's motion for summary judgment is denied.
"Allan Lutfy"
A.C.J.