Toronto, Ontario, September 7th, 2005
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] This is the second motion on behalf of Her Majesty the Queen (the "Crown") seeking an order to strike out the Plaintiff's statement of claim on the grounds that it does not disclose a reasonable cause of action and that the action is moot.
[2] The action involves a claim for damages against the Crown based on negligence, as well as s. 24 of the Charter of Rights and Freedoms (the "Charter") for breach of the Plaintiff's Charter rights, owing to the failure of the Crown to finalize the Plaintiff's application for landing application in a timely manner.
[3] On November 30, 2004, Prothonotary Milczynksi disposed of the Crown's first motion. In light of the Plaintiff's concession that the pleading was defective, she ordered that the original pleading be struck because it lacked material facts and particulars necessary to permit the Defendant to plead intelligently in response. However, at the request of counsel for the Plaintiff, Prothonotary Milczynski granted leave to amend the statement of claim within 30 days to correct the deficiencies identified by the Crown. An appeal by the Crown of the order granting leave to amend was dismissed by Simpson, J. on February 7, 2005. The Plaintiff served and filed the amended statement of claim on December 30, 2004.
[4] The issue to be determined on this motion is whether, given the facts pleaded, the Plaintiff has established a reasonable cause of action. In other words, are the Plaintiff's allegations substantively adequate to provide the relief claimed?
Facts
[5] For the purposes of a motion to strike, the facts pleaded in a statement of claim must be taken as proven: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 475. The following is a summary of the facts contained in the amended pleading.
[6] The Plaintiff is a citizen of Algeria who came to Canada in September 1995 as a refugee claimant. His refugee claim was initially rejected, however that decision was set aside on judicial review. The Plaintiff was determined to be a Convention refugee on November 27, 1997.
[7] The Plaintiff submitted an application for permanent residence in Canada in February of 1998. The Plaintiff had a criminal record in Canadaand was the subject of reports by the Canadian Security Intelligence Service ("CSIS"). A CSIS report from August 18, 1999 indicates that the Plaintiff did not disclose a six-month stay in England before coming to Canada.
[8] The Plaintiff's application for landing was approved in principle on September 6, 2000. Dissatisfied with the pace of the Crown in finalizing his application for landing, the Plaintiff brought an application for leave and for judicial review in this Court seeking mandamus. The leave application was dismissed on May 24, 2000.
[9] The Plaintiff made repeated requests to immigration officials to finalize his application for landing. By letter dated July 20, 2001, the Plaintiff's former counsel was advised by immigration officials that it would take another six to eight months to finalize the Plaintiff's landing application as the matter concerned national security. The Plaintiff was the subject of another CSIS report on September 9, 2002 indicating that the Plaintiff, when interviewed, was asked about his knowledge of a number of other Muslims who had lived in Montreal.
[10] The Plaintiff brought the present action against the Crown in November 2003 seeking a declaration that the Crown's failure to finalize his application for landing was negligent and in breach of his Charter rights. He was granted permanent resident status on June 24, 2004.
[11] At paragraph 10 of the amended statement of claim, the Plaintiff alleges that officers of the Crown "deliberately failed to process his application for landing in a timely fashion, knowing that harm to the Plaintiff was a reasonably foreseeable consequence of their failure". He claims that as a result of the delay, he has had difficulties in settling and integrating into Canadian society. The Plaintiff also claims that he has suffered psychological distress, anxiety, and depression, humiliation, shame, and embarrassment, due to his failure to integrate, and to his inability to maintain relationships because of restrictions on travel.
[12] The Plaintiff seeks damages based on the Crown's negligence and breaches of sections 2, 7, 12, and 15 of the Charter based on the "inordinate, intentional and deliberate" delay in processing the Plaintiff's application for landing, motivated by "racial and/or ethnic profiling". He alleges that the breaches were all reasonably foreseeable consequences of the delay by the Crown, and are therefore actionable in tort, as well as under the Charter.
Legal principles
[13] The test to strike out pleadings is whether it is plain and obvious that the case is beyond doubt: Hunt v. Carey Can. Inc., [1990] 2 S.C.R. 959 at page 980.
[14] Rule 174 of the Federal Courts Rules ("Rules") sets out the fundamental principle that a pleading must contain a concise statement of the material facts on which a party relies. It follows that all of the facts which a party must prove to establish a cause of action must be legally complete.
[15] When a particular cause of action is pleaded, the claim must contain material facts satisfying all the necessary elements of the cause of action. Otherwise, the inevitable conclusion would be that such a claim discloses no reasonable cause of action: Howell v. Ontario (1998), 159 D.L.R. (4th) 566 (Ont. Div. Ct.).
[16] A statement of claim should be also struck where it contains a radical defect, or where the plaintiff is seeking relief for acts that are not proscribed under the law.
Analysis
[17] The Crown submits that the amended pleading is fatally flawed in that material facts have not been pleaded to support the essential elements of causes of action in negligence and for breaches of the Charter. The Crown maintains that, in any event, there is no duty of care owed to the Plaintiff in the circumstances of this case since there is no statutory duty under the Immigration and Refugee Protection Act ("IRPA") to land a permanent resident within a specified time, particularly when dealing with matters of national security.
[18] The Plaintiff counters that the facts set out in the amended statement of claim are sufficient to pass the test for striking a pleading, which is a high one. The Plaintiff argues that the Crown is essentially asking the Court to rule on the substantive issues between the parties in the context of a motion to strike, which is not appropriate where the claim discloses a cause of action.
[19] I will deal with the Crown's two arguments in turn.
Lack of material facts
[20] With respect the sufficiency of the material facts, the Crown submits that the Plaintiff has no grounds for asserting that the Crown acted negligently or breached his rights under the Charter. For the reasons that follow, I agree that, even when read liberally, the amended pleading suffers from a fatal deficiency. The bare assertion that unidentified servants of the Crown deliberately failed to process the Plaintiff's application for landing in a timely fashion does not, in my view, support an arguable cause of action, either in negligence, or under the Charter.
[21] In Dow Chemical Co. v. Kayson Plastices & Chemicals Ltd. (1966), 47 C.P.R. 1 (Ex. Ct.), Jackett, P. held that a conclusion of law pleaded without material facts is defective and may be struck out as an abuse of process. Jackett, P. emphasized that a court proceeding is not a speculative exercise that entitles a party to simply plead a conclusion of law in the hope that facts supporting the conclusion may surface during discoveries:
The facts must be alleged in such a way that the Court can be satisfied that, assuming the truth of what is alleged, the plaintiff has an arguable cause of action. It would be no answer to an application to strike out in such a case for the plaintiff to say that, if he is allowed to have unrestricted discovery of the defendant, he may then be in a position to plead a cause of action.
[22] The allegations of negligence contained in the amended statement of claim, and in particular, at paragraphs 10, 18 and 19, do not even remotely meet the requirements of the Rules, notwithstanding that the Plaintiff was given an opportunity to salvage his pleading through amendment. The Plaintiff submits that he outlined in the amended statement of claim the steps that he took to ensure that his application was processed in a reasonable time frame. He also pleaded that officers of the Crown were aware of the harm which accrues from leaving a recognized Convention Refugee in limbo over an extended period of time, uncertain of status and safe haven.
[23] The facts pleaded fail however to disclose any factual basis for the allegation that the Crown acted negligently or, as the Plaintiff alleges, "inordinately", "intentionally" and "deliberately" delayed the processing of the Plaintiff's application for landing. In fact, when invited to clarify the allegations during oral submissions before me, counsel for the Plaintiff insisted that nothing more was required.
[24] The essential elements of the tort of negligence are a duty of care, breach of the duty, causal connection between the breach of duty and the injury, and actual loss. Full particulars of the allegations of negligence should have been provided, such as "what each allegation of such wrongful act is, and the when, what, by whom and to whom of the relevant circumstances": Lana International Ltd. v. Menasco Aerospace Ltd. (1996), 28 O.R. (3d) 343 (Gen. Div.).
[25] It is important to bear in mind that the pleadings not only define the issues to be determined at trial, but also serve to frame the scope of discovery. Pleadings should therefore not be allowed to stand where it is clear that the person making the allegation has no evidence to support it.
[26] Similar deficiencies are noted in the allegations of breaches of sections 2, 7, 12 and 15 of the Charter, which are all premised on the same general and inadequate facts. With respect to sections 2 and 7 of the Charter, the Plaintiff does not plead how government action has engaged one or more of the protected interests that have been infringed, namely, freedom of expression, freedom of association, life, liberty and security of the person. Nor has he pleaded facts to establish that any deprivation of these rights was not in accordance with the principles of fundamental justice. Sections 2 and 7 are simply not engaged by the facts as pleaded.
[27] In order to engage section 12 of the Charter, the Plaintiff was required to plead that the action involves some treatment or punishment by the state, and that such treatment is cruel and unusual. A mere prohibition on certain conduct, even if it results in cruel and unusual effects, does not qualify as treatment under s. 12. The test for cruel and unusual is that the action must be "so excessive as to outrage standards of decency": Rodriguez v. British Columbia(Attorney General), [1993] 3 S.C.R. 519. The Plaintiff has failed to plead any state action which could conceivably constitute treatment and punishment, or cruel and unusual treatment. The allegations are bare assertions of conclusions with no factual underpinnings.
[28] With respect to s. 15(1) of the Charter, there are no facts pleaded to support a claim of discrimination based on racial or ethnicity (other than a bald allegation), or any other ground of discrimination.
[29] As for obtaining a remedy under s. 24 of the Charter, a plaintiff must establish an adequate factual foundation that his Charter rights or freedoms have been infringed or denied. Furthermore, damages under subsection 24(1) of the Charter will only be awarded against government action if there is proof of elements such as bad faith, malice, grievous misconduct, gross negligence, wilful disregard or unreasonable of a government agent. The Plaintiff has not pleaded material facts or a cause of action that could sustain such a finding: Chrispen v. Prince Albert(City) Police Department, [1997] S.J. No. 360; Alford v. Canada(Attorney General), [1997] B.C.J. No. 251.
[30] For the above reasons, I conclude that there is a radical defect in the amended statement of claim and that it should not be allowed to stand.
No duty of care
[31] Although it is not necessary for me to deal with the arguments of the Crown based on the failure to plead a duty of care in light of the above conclusions, for the sake of completeness, I would make the following observations.
[32] Under sections 3 and 10 of the Crown Liability and Proceedings Act, Crown liability is vicarious, not direct. The duty of care owed to a plaintiff by the Crown is the same as that which would be owed by a private party. The law requires that individuals must take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour. In order for a duty of care to exist, there must be proximity between the Plaintiff's loss and the negligent conduct of the Defendant, as well as a reasonable foreseeability that the plaintiff will suffer harm as a result of the acts or omissions of the Defendant.
[33] The actions or omissions of officials of the Minister that are complained of were acts or omissions of public servants performed within the scope of their employment. Even if sufficient material facts had been pleaded establishing breaches or damages, it would appear that the Crown owed no duty of care to the Plaintiff in the particular circumstances of this case. Mere delay, absent further facts, does not constitute a reasonable cause of action.
[34] The existence of a duty of care is a legal issue that can determined on a motion to strike: Cooper v. Hobart, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562. Whether a reasonable cause of action exists in negligence on the face of the pleading requires a two-step analysis to determine whether a statutory or common law duty exists. At the first stage of the test, the question is whether the circumstances disclose reasonably foreseeable harm and proximity to establish a prima facie duty of care.
[35] Even if foreseeability has been adequately pleaded by the Plaintiff, some further ingredient would be needed to establish the requisite proximity of relationship between the Plaintiff and the Crown: Hill v. Chief Constable of West Yorkshire, [1989] A.C. 53 (H.L.). In Cooper, the Supreme Court of Canada directed that an examination of the policy of the statute under which the officers of the Crown are appointed must be conducted to decide whether there exists the required proximity of relationship to create a statutory duty of care. If such a duty of care to the Plaintiff exists, it must be found in the statute, namely the Immigration and Refugee Protection Act.
[36] One of the statutory objectives of IRPA is the protection of Canadians and the maintenance of the security of Canadian Society (s. 3(1)(h) IRPA). There is no statutory duty on the Minister however to render a decision in a specific amount of time. Moreover, the Minister is under no statutory obligation to follow any deadline in processing permanent residence applications. Although a common law duty of care may arise, the facts pleaded in the amended statement of claim do not support a cause of action.
[37] In W. v. Home Office, [1997] E.W.J. No. 3289, the English Court of Appeal dealt directly with the issue of the existence of a duty of care being owed by immigration officers in the context of an action for negligence. The Court first examined the statutory powers conferred in the context of the overall scheme and policy of the U.K. Immigration Act and concluded, as follows, that a duty of care did not arise in the circumstances:
[21] The powers given to immigration officers by the Act are quintessentially those which are enforced by judicial review and in the normal way if a decision to release an immigrant is improperly delayed the remedy is an order of mandamus, not to release the immigrant, but to come to a decision whether to release or not. If that decision is improperly taken the remedy is again to seek a prerogative order, this time certiorari. In both cases no personal cause of action exists which could give a right to recover damages for breach of statutory duty and no such breach is alleged.
...
[23] It seems to us that the application of each of these principles to the situation under consideration is inconsistent with the existence of a duty of care being owed by the immigration officer to the immigrant who has been detained.
...
[28] The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply. As Lord Moulton put it in Everett v Griffiths (supra):
If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of the duty to the public and then leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision.
[29] Lord Moulton may in the context of that case have been contemplating immunity from suit for negligence but the sentiment supports the concept of it not being fair or reasonable to impose liability for negligence in the case of an immigration officer performing his public duty. [emphasis added]
[38] Even if the Plaintiff could establish a prima facie duty of care, it is plain and obvious that he cannot succeed at the second stage of the analysis set out in Cooper based on the facts pleaded. The question at the second stage is whether there exist residual policy considerations which justify denying liability. These policy considerations are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally.
[38]
[39] In my view, it would not be just, fair and reasonable for the law to impose a duty of care on those responsible for the administrative implementation of immigration decisions of the kind which have been made in the case of the Plaintiff, absent evidence of bad faith, gross negligence, or undue delay.
[40] First, there is nothing in the statutory scheme to suggest that simple mistakes or errors in the processing of applications for landing resulting in delay should give rise to a right of compensation. The opposite is true.
[41] Second, applicants for permanent residence have viable alternative remedies by way of mandamus and judicial review. Mandatory orders could be made to put any alleged mistake or non-performance right.
[42] Third, as in Cooper, the spectre of indeterminate liability would loom large if a common law duty of care was recognized as between the Crown and an applicant based solely on the negative impact of delay on the applicant, as opposed to actual misconduct on the part of immigration officials. The class of persons to whom the duty of care would be owed is large, i.e., all applicants for permanent residence in Canada. Imposing a duty of care would trigger further claims, which (a) would require funds to be diverted and time to be devoted to enable them to be resisted, and (b) would be a drain on public resources if the claims were successful. Indeed, as in Cooper, one must consider the impact of a duty of care on the taxpayers of Canada generally.
[43] Fourth, and more importantly, imposing a duty of care would hamper the effective performance of the system of immigration control. As the English Court of Appeal in W. v. Home Office stated in summarizing the applicable principles, (quoting first from the speech of Lord Browne-Wilkinson in W. (Mienors) v. Bedfordshire CC, [1995] 2 A.C. 633):
...a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance ... of ... statutory duties.
[44] A common law duty must not be inconsistent with the performance by the authority of its statutory duties and powers in the manner intended by Parliament, or contrary in any other way to the presumed legislative intention.
Conclusion
[45] I conclude that the amended statement of claim fails to concisely set out the material facts on which the purported causes of action are based. In addition, it plain and obvious that the amended statement of claim, as pleaded, does not disclose any reasonable cause of action. Given that the Plaintiff has already been provided an opportunity to correct the deficiencies, but failed to do so, I consider it just and appropriate to strike out the amended statement of claim, without leave to amend.
ORDER
THIS COURT ORDERS that
1. The amended statement of claim is struck out, without leave to amend.
2. Costs of the motion, hereby fixed in the amount of $1,000.00, shall be paid by the Plaintiff to the Defendant.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2065-03
STYLE OF CAUSE: KARIM BENAISSA
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 19, 2005
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE P.
DATED: SEPTEMBER 7, 2005
APPEARANCES BY:
Barbara Jackman FOR THE PLAINTIFF
Stephen H. Gold FOR THE DEFENDANT
SOLICITORS OF RECORD:
Jackman & Associates
Barristers & Solicitors
Toronto, Ontario FOR THE PLAINTIFF
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE DEFENDANT