Vancouver, British Columbia, Friday, the 2nd day of December, 2005
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
LUKA VINCENT aka VINCENT LUKA;
CHRISTA LUKA; and ANTON MAJITHRAJ JESUTHASAN
aka ANTHON JESURAJAH
- and -
REASONS FOR ORDER AND ORDER
[1] Mr. Luka Vincent (aka "Vincent Luka"), Ms. Christa Luka and Mr. Anton Majithraj Jesuthasan (aka "Anton Jesurajah") appeal from the Order dated May 27, 2005 by which Prothonotary Milczynski dismissed this action, without leave to amend in respect of Ms. Luka and Mr. Jesuthasan and with leave to amend in respect of Mr. Luka. Her Majesty the Queen (the "Defendant") moved to strike the Statement of Claim pursuant to Rule 221of the Federal Courts Rules, SOR/98-106 (the "Rules").
[2] The effect of the Prothonotary's Order was to strike out the Plaintiffs' action. Accordingly, the applicable standard of review is the de novo standard; see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.).
[3] Rule 221(1)(a) provides as follows:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, |
221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu'il ne révèle aucune cause d'action ou de défense valable; |
Rule 221(2) provides that when a party seeks to strike a pleading pursuant to this provision, no evidence can be submitted. The viability of the cause of action is to be assessed strictly on the basis of the pleading. The general test upon a motion to strike is whether the Statement of Claim is plain and obvious that the claim discloses no reasonable cause of action; see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. In a motion pursuant to Rule 221(1), the allegations in the pleading are to be accepted as true; see Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R 441. The following facts appear from the Statement of Claim.
[4] The Plaintiffs Luka Vincent and Christa Luka are married to each other; they are Canadian citizens. The Plaintiff Anton Majithraj Jesuthasan is a nephew of Ms. Christa Luka. He came to Canada in 1994 as a refugee claimant and was found to be a Convention refugee in 1995.
[5] Mr. Jesuthasan was arrested as a suspect by the Toronto Police and held in custody until December 2001. During this time, he was placed in Immigration detention by the Defendant. After Ms. Luka posted a cash bond of $6,000.00, he was released from Immigration detention on December 28, 2001, upon certain conditions including a curfew and weekly reporting to the Defendant.
[6] On June 25, 2002, Mr. Jesuthasan was again taken into custody by the Defendant, on the grounds that he had breached his curfew. The Plaintiff Mr. Luka posted a cash deposit of $10,000.00, as well as a performance bond in the amount of $15,000.00 and on July 10, 2002, Mr. Jesuthasan was released from Immigration detention, on terms and conditions that did not include a curfew.
[7] On October 31, 2002, Mr. Jesuthasan was again taken into custody for breach of curfew. The Defendant declared forfeiture of the $10,000.00 cash bond and referred the performance bond of $15,000.00 to a collection agency for collection and in that regard, garnished Mr. Luka's salary as well as his tax return and GST refunds.
[8] On August 1, 2003, the criminal charges of failing to appear, assault with a weapon, assault causing bodily harm, "Weapons Dangerous" and breach of undertaking against Mr. Jesuthasan were dismissed. On December 9, 2003, Mr. Jesuthasan was acquitted of the remaining criminal charges of "Threaten Bodily Harm" and dangerous operation of a motor vehicle.
[9] On July 5, 2004, the Defendant signed an opinion pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, pursuant to section 115(2)(b), to the effect that Mr. Jesuthasan should not be allowed to "remain in Canada based on the nature and severity of acts committed ... ".
[10] Mr. Jesuthasan was advised on or about November 14, 2003 that he could appeal but was unable to do so, due to lack of financial recourse resulting from the garnishment of Mr. Luka's wages.
[11] On July 16, 2004, the Defendant acknowledged in writing that "... the terms of the bonds were not, in fact, breached ..." by Mr. Jesuthasan.
[12] On August 14, 2004, Mr. Jesuthasan was removed from Canada by the Defendant. On or about December 1, 2004, the Plaintiffs commenced this action, seeking general, special and punitive damages and a declaration that Anton's deportation from Canada is a nullity, as well as an order that the Defendant cause to be expunged any R9 rating upon the credit rating of the Plaintiffs Mr. Luka and Ms. Luka.
[13] The Defendant relies, in this appeal, upon the written arguments filed as part of the motion record before the Prothonotary. The Defendant argues that the Plaintiffs do not allege any facts to support an action for breach of his constitutional rights pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter").
[14] In my opinion, this appeal should be dismissed. I agree with the submissions of the Defendant that the pith and substance of the Plaintiffs' claim relate to administrative decisions taken pursuant to the Immigration Act R.S.C. 1985, c. I-2, as amended and the Immigration and Refugee Protection Act S.C. 2001, c. 27, as amended. Such decisions are properly reviewable by means of an application for judicial review, pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. There is no evidence that the Plaintiffs, or any of them, instituted such proceedings.
[15] There is nothing in the Statement of Claim to support a claim in tort against the Defendant. The fact that certain criminal charges against Mr. Jesuthasan were dismissed does not give rise to a claim in tort against the Defendant in respect of his immigration status in Canada. Likewise, the fact that the Defendant admitted, in writing, that the terms of the bonds were not breached does not support a cause of action against her. The Plaintiff, Mr. Luka, was reimbursed those monies by the Defendant. If there is a claim for interest, Mr. Luka is free to bring an action in that regard.
[16] The Statement of Claim discloses no reasonable cause of action on the part of Mr. Luka or Ms. Luka relative to the Defendant's action in forfeiting the cash bonds and the performance bond. Ms. Luka certainly has no claim in respect of the bonds which were pledged by her husband. There is no basis for the Plaintiffs' claim for damages.
[17] The Defendant also argued that the Plaintiffs' action should be struck, pursuant to Rule 221(b) as being an abuse of the process of the Court. This allegation is based upon the record of the interaction of Mr. Jesuthasan with the agents and employees of the Defendant arising from his status in Canada as a Convention refugee.
[18] From my review of the record, I am satisfied that Mr. Jesuthasan had access to a variety of administrative procedures to seek review of the various decisions that were made, affecting his status in Canada. He did not do so. His resort to this Court, by way of an action for damages, when he should have followed other procedures, constitutes abuse of process. I agree with the conclusion of the Prothonotary in this regard.
[19] In the result, the appeal is dismissed. If the parties cannot agree on costs, brief submissions can be made no later than December 17, 2005.
ORDER
The appeal is dismissed. If the parties cannot agree on costs, brief submissions can be made on or before December 17, 2005.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2141-04
STYLE OF CAUSE: LUKA VINCENT ET AL. and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
PLACE OF HEARING: August 22, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Heneghan
DATED: December 2, 2005
APPEARANCES BY:
Charles Anipare FOR THE APPLICANT
Ann-Margaret Oberst FOR THE RESPONDENT
SOLICITORS OF RECORD:
Charles Anipare
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney
General of Canada FOR THE RESPONDENT