Date: 20040108
Ottawa, Ontario, this 8th day of January 2004
Present: The Honourable Mr. Justice Konrad von Finckenstein
BETWEEN:
SELLADURAI PREMAKUMARAN AND
NESAMALAR PREMAKUMARAN
Applicants
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a written motion pursuant to Rule 369 of the Federal Court Rules, 1998, SOR/98-106, wherein the Applicants request the following relief :
"1. An order to strike out all related records and documents concerning immigration to Canada in the files of Selladurai Premakumaran and Nesamalar Premakumaran and their siblings handled by the defendant and their branches overseas.
2. An order to strike out all related records and documents concerning immigration to Canada in the files of Selladurai Premakumaran and Nesamalar Premakumaran and their siblings, the defendant might have received through The Office of the Privacy Commission of Canada by other means.
3. A restrictive injunction preventing the use of these documents mentioned in (1) and (2) above for this proceeding, or other matters without the Plaintiffs knowledge.
4. As there was a conspiracy to commit an illegal act the Plaintiffs request this honourable court to considered [sic]striking out the statement of defence.
5. An order enquiring into the destruction of the Plaintiffs Original Immigration file.
6. An Order enquiring into reasons for removing and altering important details that held great importance in this case, and who was responsible for the tampering of the Plaintiffs files."
[2] By way of background, it should be noted that the Plaintiffs are a married couple who came to Canada from England in 1998 as independent immigrants. They have been unable to obtain jobs relevant to their foreign qualifications and experience. The Plaintiffs allege that government officials provided false and misleading information as to their ability to obtain relevant jobs in Canada and that the points system itself is misleading in this regard. In addition, they submit that the government has failed to provide them with sufficient training and opportunity to obtain relevant jobs in Canada. As a result, they allege that they have suffered mental agony and financial and job loss.
[3] On October 7th, 2003, Mr. Justice Noël ordered that a Case Management Judge be assigned and that the parties follow a specified timeline for subsequent procedural events in this matter Pursuant to this timeline, the Defendant was ordered to serve its Affidavit of Documents on the Plaintiffs by no later than November 28th, 2003. This matter came under my case management by order of Chief Justice Lutfy dated Nov 19th, 2003.
[4] The Plaintiffs made a request for information for copies of all of their records held by the Department of Citizenship and Immigration Canada, ("CIC"). In response CIC on October 31st 2003:
. sent to the Plaintiffs the documents requested with the exception of exempted information as allowed under sections 22(1)(b), 26 and 27 of the Privacy Act, R.S.C. 1985, c. P-21;
. advised the Plaintiffs that the physical files located in London, England which related to their immigration to Canada had been destroyed according to the departmental policy which governs the retention and disposal of files;
. advised the Plaintiffs that they were entitled to bring a complaint regarding the processing of their request to the Privacy Commissioner;
. advised the Plaintiffs that they had the right to request the correction of any errors or omissions that they believed existed in any of the enclosed information which originated with CIC, and enclosed a Record Correction Request Form for the Plaintiffs' use.
Issues
[5] The claims of the applicants can best be summarized into two issues
1. Are they entitled at this point in time to an order concerning the accuracy or destruction of documents in the hands of the respondents?
2. Are they entitled at this point in time to an order regarding the use of documents about the applicants presently in the hands of the respondents?
Analysis
[6] With regards to issue 1, the applicants have attached no affidavit or any other type of evidence to their application. The have also failed to direct this court to any law which would support their application.
[7] The applicants filed their motion prior to the delivery of documents by the respondents on November 20th. Consequently, their concern must relate to the documents obtained by virtue of the request made under the Privacy Act. Section 12 of that Act establishes a procedure for the correction of inaccurate information. Additionally it provides for complaints to the Privacy Commissioner under s. 29.
[8] There is nothing on the record which demonstrates that the applicants have availed themselves of any of these provision. These remedies should be exhausted before these matters are brought before this court.
[9] In respect of issue 2, the applicants again have produced no evidence or referred to any law to support their position but merely rely upon assertions. As this motion predates the production of documents, it cannot relate to the documents furnished by plaintiffs pursuant to the order of Mr. Justice Noël. Accordingly any concerns which the applicants may have regarding the production of documents are premature and are best dealt with at trial; concerns regarding documents otherwise in the hand of the respondents are not relevant to these proceedings.
ORDER
Accordingly this motion is dismissed with costs.
"K. von Finckenstein"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2048-01
STYLE OF CAUSE: SELLADURAI PREMAKUMARAN NESAMALAR PREMAKUMARAN
Applicant
AND
HER MAJESTY THE QUEEN
Respondent
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Justice Konrad von Finckenstein
DATED: ` January 8, 2004
WRITTEN REPRESENTATIONS BY:
Selladurai Premakumaran and
Nesamalar Premakumanran ON THEIR OWN BEHALF
Laura Dunham Department of Justice Canada
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Deputy Attorney General of Canada
FOR THE RESPONDENT