T-2592-96
Between:
| HUY VAN NGUYEN, |
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
JOHN A. HARGRAVE
PROTHONOTARY
The Defendant moves in writing pursuant to Rule 324 to strike out the Plaintiff's action, which is for damages for wrongful detention by Immigration authorities, on the basis of want of a reasonable cause of action. At issue is first whether a release from detention by an Immigration adjudicator pending the execution of a deportation order precludes a subsequent arrest in this instance and second, whether a plaintiff seeking merely damages for the actions of an administrative body must begin by obtaining declaratory relief by way of judicial review and only then bring an action for damages.
BACKGROUND
The facts are set out in brief form in the statement of claim. For the purposes of a motion to strike out for lack of a cause of action I am required to assume them to be true.
The Plaintiff, a permanent resident, came from Hong Kong, as a stateless person, in 1991. He is married to a Canadian permanent resident with whom he has had three children. He subsequently acquired a criminal record and was ordered deported. In January of 1996 the Minister of Immigration issued a certificate indicating that in her opinion the Plaintiff represented a danger to the public in Canada.
On completing his sentence the Plaintiff remained in Immigration custody pending removal from Canada. However it transpired that the Vietnamese Government would not provide travel documents. Mr. Nguyen was eventually released on the order of an Immigration adjudicator on 4 October, 1996. The release was subject to bonding and various terms, all of which the Plaintiff conscientiously obeyed. However on 15 November, 1996 he was arrested by Immigration officers, contrary to the adjudicator's order of 4 October, 1996, and was placed in the Immigration Detention Centre in Vancouver, where he remains at this time.
The statement of claim sets out that as a result of arbitrary and unlawful arrest and detention the Plaintiff has suffered serious harm. The Plaintiff seeks damages for wrongful arrest and false imprisonment, together with punitive damages.
CONSIDERATION
The test I am to apply in striking out an action for want of a reasonable cause of action is that set out in Attorney General of Canada v. Inuit Tapirisat [1980] 2 S.C.R. 735 at 740: as I have indicated the facts pleaded in the statement of claim are to be considered true and further, the Court should not strike out the action unless it is plain and obvious and beyond doubt that the case cannot succeed. This places a heavy burden on a defendant moving to strike out a statement of claim for want of a cause of action. The Crown must show that Mr. Nguyen's statement of claim is devoid of merit and cannot possibly succeed.
The Defendant's first submission is that an Immigration adjudicator's order releasing a person who is subject to a deportation order does not preclude a subsequent arrest. The Defendant refers to Bhatti v. Canada (Minister of Citizenship and Immigration), (1996) 112 F.T.R. 274, upheld by the Federal Court of Appeal (1996) 199 N.R. 154. Mr. Bhatti had obtained refugee status in Canada through some form of a misrepresentation or concealment of a material fact. He was ordered deported. He left Canada, for the United States, in 1995. About a year later he returned to Canada and was subsequently arrested by the Immigration and Passport Section of the RCMP pursuant to an outstanding warrant. Several days later an Immigration adjudicator concluded that Mr. Bhatti was not likely to pose a danger to the public and therefore released him on a bond and subject to terms similar to those which applied to Mr. Nguyen in the present instance.
About a week later Mr. Bhatti was arrested on a new warrant, with his removal from Canada scheduled for the next day. Mr. Bhatti obtained a stay of the deportation order. He then came before the Federal Court to argue that his recent arrest was illegal in that an Immigration adjudicator had ordered his release. In upholding the arrest as lawful, Mr. Justice Nöel made a comment which is key to the present situation:
| [13] Obviously, in the absence of some new element, the Minister could not simply proceed to re-arrest a person who had been released by an adjudicator in the hope of obtaining an order for his or her continued detention from a different adjudicator .... But that is not what took place here. The arrest was made for the sole purpose of effecting removal from Canada. (Bhatti at page 278). |
That the fresh arrest in Bhatti was made because of a new element, effecting the immediate removal of Mr. Bhatti from Canada, differentiates the situation from that of Mr. Nguyen. In Mr. Nguyen's instance he has been in custody for some eight months. The evidence does not indicate that any new element was introduced into Mr. Nguyen's situation, for he had obeyed the terms of his release, set by the Immigration adjudicator. Further, there is no apparent intention to immediately deport Mr. Nguyen for he is a stateless person for whom Immigration Canada cannot obtain travel documents.
The Defendant defines false imprisonment as the intentional and total confinement of a person against his will without lawful justification. Giving the statement of claim a reasonable reading and assuming it to be true the Plaintiff has established just that test. The onus is on the Defendant to show that it is beyond doubt that the Plaintiff would not succeed. The Defendant has failed to meet the test for striking out for she has failed to show a clear and uncontroverted right to re-arrest the Plaintiff following his release by an Immigration adjudicator.
As an alternative the Defendant says that the Immigration officers who arrested and detained the Plaintiff were acting as a federal board, commission or other tribunal, within the meaning of the Federal Court Act and that what the Plaintiff seeks, in effect, is a declaration that the decision of the Immigration officers to arrest and detain him was unlawful. The Defendant, quite correctly, refers to a number of instances in which the Court has struck out statements of claim, as disclosing no reasonable cause of action, where the relief sought was declaratory in nature. Such relief is provided by section 18(1) of the Federal Court Act, thus falling within the mandatory provision of section 18(3) of the Act, as relief against a federal board, commission or tribunal, which may be obtained only through judicial review. Counsel for the Defendant refers to Zubi v. Canada (1993) 71 F.T.R. 168, a decision of Mr. Justice Cullen, as an illustration of this rule.
The facts giving rise to the Zubi decision are simple. The Plaintiff, allegedly without cause, was transferred from a minimum security to a medium security institution. He sued the Crown, in an action, principally for a declaration, but also for a small amount of damages. At issue was whether Mr. Zubi might bring his proceeding by an action, as opposed to an application for judicial review. Mr. Justice Cullen pointed out that Mr. Zubi's statement of claim sought declaratory relief and not simply damages against the Crown. Declaratory relief is that contemplated by section 18(1) of the Federal Court Act. Section 18(3) of the Act provides that the relief set out in section 18(1) of the Act, including declaratory relief, "...may be obtained only on an application for judicial review under section 18.1." Mr. Justice Cullen concluded that the proper course would be for the plaintiff to bring an application for judicial review and then, if he were successful, commence an action for damages.
The distinction between Mr. Zubi's action and Mr. Nguyen's present action is that the former sought relief primarily of a declaratory nature, with damages as an adjunct, while the latter brings an action for damages, with no reference whatsoever to declaratory relief.
Counsel for the Defendant refers to three cases, in addition to the Zubi decision, in which statements of claim were struck out for want of a reasonable cause of action where relief was in the nature of that referred to in section 18(1) of the Federal Court Act.1 Section 18 (1) provides the jurisdiction to the Court to issue injunctions, various writs and to grant declaratory relief against a federal board, commission or other tribunal. In each of the three additional cases referred to by counsel the relief sought was either declaratory or declaratory together with a stay of an order. There is no reference to damages in any of the three cases. They do not assist the Defendant.
The Defendant's counsel next submits that except in the "clearest of circumstances" relief coming within section 18(1) of the Federal Court Act must be sought by way of an application for judicial review. This test, "clearest of circumstances", upon which the Defendant relies, is one which seems to have originated in Mr. Justice Muldoon's decision in Prince Edward Island Potato Board v. Canada (Minister of Agriculture) (1992) 56 F.T.R. 150 at 152. The Potato Board case involved a motion to convert an application by originating notice of motion into a formal action. It is a test applying in that context, not where the issue is whether an action, in which only damages are claimed and in a circumstance where, according to the Plaintiff, a declaration would be of no value, ought to be transmogrified into a judicial review proceeding claiming a declaration.
I do not agree that a plaintiff in the position of Mr. Nguyen seeking damages must, in all circumstances, first bring an application for a declaration by way of judicial review and only then, if the application is successful, bring an action for damages. This is doubly so when a declaration would serve no useful purpose. It is a sound principle that where there might be several approaches or procedures, a court should impose the least intrusive remedy capable of leading to the desired cure. There is no utility in requiring the Plaintiff to try to obtain something which is not even hinted at in the statement of claim, declaratory relief, relief which counsel in his submission decries as of no assistance to the Plaintiff, in order to, many months later, begin a second piece of litigation through which to claim damages.
CONCLUSION
The present statement of claim sets out briefly and in the clearest language that the claim is one for damages for an arbitrary and unlawful arrest and detention. The point is a narrow one, the answer to which Mr. Justice Nöel, in the Bhatti case, felt was obvious, that a re-arrest of a person, released by an adjudicator, in the absence of some new element, is wrong. That remark may be dicta, but it is a sensible remark. Thus I cannot say that the Plaintiff's action,
beyond doubt, is futile, devoid of merit and cannot possibly succeed. Indeed, the action might possibly succeed. The motion is dismissed. Costs will be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
July 11, 1997
Vancouver, British Columbia
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: HUY VAN NGUYEN
- and -
HER MAJESTY THE QUEEN
COURT NO.: T-2592-96
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF COUNSEL
REASONS FOR ORDER OF JOHN A. HARGRAVE, PROTHONOTARY, dated July 11, 1997
WRITTEN REPRESENTATIONS BY:
Mr. Charles R. Darwent for Plaintiff
Mr. W. Brad Hardstaff for Defendant
SOLICITORS OF RECORD:
Mr. Charles R. Darwent for Plaintiff
Edmonton, AB
Mr. George Thomson for Defendant
Deputy Attorney General of Canada
__________________
1 The cases to which counsel refers are: Mobarakizadeh v. Canada (1993), 72 F.T.R. 30 (F.C.T.D.); Afram et al v. Canada (1994), 88 F.T.R. 224 (F.C.T.D.); and Sivaraj v. Canada (M.C.I.) (1966), 107 F.T.R. 64 (F.C.T.D.) (upheld on appeal A-42-96, A-72-96, A-74-96, May 23, 1996, F.C.A.).