Federal Court Decisions

Date: 20060131

Docket: T-1646-05

Citation: 2006 FC 100

"SIMPLIFIED ACTION"

BETWEEN:

ALLY DHALLA, AMIN MEGHJI

and FOREFRONT MIGRATION LTD.

Plaintiffs

and

HER MAJESTY THE QUEEN

as represented by her agent THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Defendant

REASONS FOR ORDER

PHELAN J.

INTRODUCTION

[1]                The Plaintiffs appeal an order of Prothonotary Lafrenière whereby he dismissed the Plaintiffs' entire Statement of Claim. The motion to strike the Statement of Claim was dealt with in writing.

[2]                This Court had the benefit of more fulsome written and oral presentations than were available to Prothonotary Lafrenière. Even so, the Court can find no good reason to overturn the Prothonotary's decision.

BACKGROUND

[3]                The Plaintiffs commenced an action seeking damages in negligence, bad faith, discrimination, defamation, malfeasance and wrongful interference with contractual relations.

[4]                The first Plaintiff, Ally Dhalla, is a citizen of Kenya whose application for permanent residence was refused because he only received 51 out of the 71 points required for his application. A critical aspect of the denial of his application was his failure to establish his English language skills.

[5]                The second Plaintiff, Amin Meghji, Mr. Dhalla's uncle, and a Canadian citizen residing in Edmonton, had arranged employment for Mr. Dhalla.

[6]                The third Plaintiff, Forefront Migration Ltd., is an immigration consulting company who represented Mr. Dhalla in his permanent residence application.

[7]                Without setting out the whole of the Statement of Claim, the essence of the claim is that in the processing and rendering of its permanent resident decision, the Respondent's agents committed all of these wrongful acts including bad faith in requiring an English test, and negligence for much the same reason.

ANALYSIS

[8]                The Supreme Court has held that pleadings should be struck and an action dismissed only where it is plain and obvious on a generous reading of the pleadings that the plaintiff(s) cannot succeed. (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980)

[9]                The Court is most reluctant to strike a claim as it has been through novel actions that the law has developed. However, in my view, as drafted, this claim has no chance of success.

[10]            The Statement of Claim is totally dependent on the legitimacy of the Respondent's decision to deny the permanent residence application. However, if that decision stands in law (as it must until it is overturned), all of the actions of the Respondent's agents are likewise correct. The alleged wrongful acts, as pleaded, have no independent life or status.

[11]            The Federal Court of Appeal in decisions such as Canada v. Tremblay (F.C.A.), [2004] 4 F.C.R. 165, direct the Court to examine the real basis for the cause of action in determining whether it is a collateral attack on a decision which should more properly be dealt with under s. 18 of the Federal Courts Act.

[12]            In this instance, the Plaintiffs say that they do not want to attack nor do they care if the Respondent's decision remains in place; Mr. Dhalla has decided not to continue his efforts to secure permanent residence in Canada.

[13]            More recently in Grenier v. Canada, 2005 F.C.A. 348, the Court of Appeal has held that collateral attacks on administrative decisions cannot be allowed. Where the decision remains valid, that in "itself forecloses a finding of negligence". (See paragraph 61 of Grenier, above.)

[14]            As the Statement of Claim is currently drafted, the Plaintiffs cannot avoid the finding that all of its heads of action are an indirect attack on the validity of the process and the decision itself. Therefore, the Plaintiffs cannot use a collateral attack on that decision to sustain their damages claim.

[15]            The appeal of Prothonotary Lafrenière's decision is denied with costs.

"Michael L. Phelan"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1646-05

STYLE OF CAUSE:                           ALLY DHALLA et al

                                                            and

                                                            HER MAJESTY THE QUEEN as represented by her agent THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Vancouver, B.C.

DATE OF HEARING:                       January 23, 2006

REASONS FOR :                               The Honourable Mr. Justice Phelan

DATED:                                              January 31, 2006

APPEARANCES:

Mr. Lawrence Wong	FOR THE PLAINTIFFS
Ms. Cheryl Mitchell Mr. Scott Nesbitt	FOR THE DEFENDANT

SOLICITORS OF RECORD:

WONG PEDERSON LAW OFFICE Barristers & Solicitors Vancouver, B.C.	FOR THE PLAINTIFFS
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia	FOR THE DEFENDANT