Ottawa, Ontario, November 30, 2006
PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1]
This is a motion for summary judgment brought by the Crown (the
defendant) arising out of an action between Elena and Peter Miller (the
plaintiffs) and the Crown, whereby the Millers are suing the Crown for
negligence and damages allegedly caused solely by the delay in processing Ms.
Miller’s application for permanent residence.
THE FACTS
[2]
The female plaintiff, Elena Miller, is a Russian. She resided in Canada
during the 1990s with her Russian husband under assumed names and identities until
both were discovered to be spies engaged in covert activities for their native
land. In May 1996, a security certificate was issued against Ms. Miller and was
found to be reasonable by Justice Rothstein, then of this Court, in June 1996.
Thereafter, Ms. Miller and her then husband were found inadmissible to Canada
and were deported.
[3]
A few months before these events, Ms. Miller had met Dr. Peter
Miller, the other plaintiff, in Canada and they had formed a relationship. Once
back in Russia, Ms. Miller divorced her Russian husband, resigned from the
Russian secret service, and married Dr. Miller in Moscow in December 1996. The
Russian authorities placed her under a five-year travel ban.
[4]
On December 11, 1998, Dr. Miller filed a permanent residence
sponsorship application for his wife as a member of the family class.
[5]
In September 2000, Mary Coulter, a visa officer in Moscow,
requested an interview with Ms. Miller in order to establish the genuineness of
her marriage with Dr. Miller. A month’s notice of the interview was sent to Ms.
Miller, however, she was not present at her interview on October 23, 2000,
claiming and notifying the embassy that she had received the notice too late to
attend. Accordingly, a new interview date was arranged for March 27, 2001.
[6]
On the latter date Ms. Miller was interviewed by Ms. Coulter who
expressed to Ms. Miller that she had serious concerns both with regards to the bona
fides of the marriage, and Ms. Miller’s inadmissibility to Canada. During
the interview, Ms. Coulter advised Ms. Miller that she would make best efforts
to send a decision by the end of April, 2001, and on April 26, 2001, Ms.
Coulter sent her interview notes and draft plan of action to Ms. Diane Toikko,
Security Review, advising that she wished to issue a refusal by April 30, 2001.
[7]
On April 26, 2001, Ms. Coulter was advised by Security Review not
to proceed with a final decision at that time because the question of the
Minister’s involvement was being explored since Ms. Miller had made a specific
request for ministerial relief by way of exception. It was ultimately decided
that the matter of the Minister’s relief had to be dealt with prior to issuing
a final decision on the application.
[8]
On May 1, 2001, Ms. Coulter advised Ms. Miller’s counsel of the
expected delay in rendering a final decision on her case. On May 11, 2001, Ms.
Coulter received instructions from Ms. Toikko that if she determined that
section 19(1)(e) of the former Immigration Act (the Act) did not apply,
then she should prepare a memorandum to Ian Taylor, Director of Security
Review, summarizing the principle elements of the case.
[9]
On May 25, 2001, Ms. Coulter advised Ms. Miller that the decision
would be further delayed. On June 18, 2001, Ms. Coulter drafted the required
memorandum with a request for additional guidance regarding possible
inadmissibility under section 19(1)(e) of the Act. Ms. Coulter recalls
receiving further input from Ms. Toikko in the late summer / early fall of 2001.
[10]
In November 2001, Ms. Coulter prepared a memorandum expressing
the opinion that Ms. Miller was inadmissible to Canada pursuant to what is now
section 34(1)(f) of the Immigration and Refugee Protection Act, S.C.
2001 c.27 (IRPA) and that her admission would be detrimental to the
national interest.
[11]
In August of 2002, Ms. Coulter left the visa post. At the time of
her departure, the Minister’s exemption decision had not yet been made, and
accordingly Ms. Coulter’s decision on both eligibility and inadmissibility
never became final.
[12]
On March 4, 2004, the Millers commenced this civil action.
[13]
In early 2004, the Security Branch of the Canadian Border
Services Agency (CBSA) reviewed Ms. Miller’s application and prepared a
recommendation to the Minister. The CBSA recommended to the Minister that
relief not be granted on the grounds that Ms. Miller did not demonstrate any
positive contribution to Canadian society nor had she demonstrated that her
presence in Canada would not be detrimental to the national interest.
[14]
The recommendation to the Minister was disclosed to the Millers
in the spring of 2004. Following this disclosure, the Millers made written
representations. On August 16, 2004, these representations were put before the
Minister along with the recommendation and other supporting documents. On March
8, 2005, the Minister concurred with the recommendation of the CBSA and
declined to exercise her executive prerogative.
[15]
On April 7, 2005, Ms. Miller’s application for landing was
formally refused by a new visa officer, Michael McCaffrey.
[16]
The Millers challenged the decision by way of an application for
judicial review. They sought to set aside the decision of the Minister on the
basis that the Minister breached the duty of fairness, erred in law in
exercising her discretion and rendered a decision that is patently unreasonable.
The Federal Court granted leave, but judicial review was ultimately dismissed
by Chief Justice Lutfy. During the judicial review proceedings, the plaintiffs
did not seek mandamus, nor did they advance any allegation of bias,
malice, misfeasance or bad faith on the part of officials.
[17]
The Millers now press their civil action alleging that due to the
unreasonable delay in processing Ms. Miller’s application for permanent
residence, they are entitled to compensatory damages under the tort law of
negligence and under the Canadian Charter of Rights and Freedoms,
(the Charter).
[18]
The Crown asks for judgment dismissing the action pursuant to
Rules 213-216 on the basis that the case is so doubtful that it does not
deserve consideration by the trier of fact at trial, that there are no material
facts in dispute, and that there is no genuine issue for trial raised by the
plaintiffs in their claim with respect to any of the causes of action.
THE MOTION FOR SUMMARY JUDGMENT
[19] In particular, the Crown advances three main arguments:
a. The plaintiffs failed to exhaust administrative law remedies.
The action constitutes a collateral attack on the decision to refuse the
application for landing; if the plaintiffs' complaint is for delay they could
and should have sought mandamus to force an earlier decision.
b. There was no duty of care owed to the plaintiffs in processing
Ms. Miller’s sponsorship application, and hence no possible claim for negligence
and ensuing damages.
c. There are no genuine issues raised with respect to certain
allegations of Charter violation.
THE MALE PLAINTIFF’S AFFIDAVIT
[20]
As a preliminary issue, the Crown seeks
to strike out or have me rule that no weight be given to, portions of or all of
Dr. Miller’s affidavit as they do not always contain facts but opinionated and
argumentative statements. (Deigan v. Canada (Minister of Industry),
[1996] F.C.J. No. 1360 (QL); (1996) 206 N.R. 195, at para. 2, and Ly v.
Canada (M.C.I.), [2003] F.C.J. No. 1496 (QL); 2003 FC 1184, at para.10).
[21] There can be no doubt that the affidavit of the male plaintiff is tendentious and argumentative. Paragraphs 8, 10 and 11 are typical of the language used:
8. From the very beginning, I believe that the
immigration officials involved in handling Elena’s application for landing and
request for a Ministerial exemption had no intention of letting her come to
Canada to live with me. Ms. Coulter’s initial conclusion that our marriage was
not genuine appeared to me to be a way for her to refuse the application and
try to avoid having to forward Elena’s request for an exemption to the
Minister. She had received extensive evidence about our relationship, including
our efforts to maintain contact with each other - phone bills, my passport
stamps showing travel to Russia,
and pictures, as well as statements from our family members about the strength
of our relationship. Her conclusion was not tenable and in fact was later
dropped as a ground of refusal. However, it was indicative of how officials
treated Elena’s application throughout the years it took to process it to
conclusion. I was at the Canadian Embassy in Moscow the day of Elena’s interview with Ms. Coulter. Although Ms. Coulter
expressed some concerns to Elena about the genuineness of our marriage, she did
not even talk to me. She was aware that I was there and would talk to her.
…
10. The officials involved in handling Elena’s application were not
honest with us. They led Elena and me to expect that a decision would be
forthcoming within specific time frames which were never met. They raised our
expectations, with no intention to satisfy them. Even early on in Elena’s
application, in the spring of 1999, she was issued medical instructions which
she completed in June, 1999, paying for the cost of having these done. The medical
approval was valid to May 28, 2000. I cannot understand why immigration
officials would require that she pay to have a medical examination completed
when her application would not be finalized until years after the medical
approval had expired. I had taken the issuance of the medical forms to Elena as
a positive sign that her application was being processed in a timely fashion,
because I understood from our counsel, that applicants were not normally put to
the expense of completing medicals unless a decision was expected during the
time that the medical clearance was valid.
11. The officials involved in handling Elena’s file were not honest with
us about their intention to recommend refusal of her application. I expected
that we could have effective input into the decision making process by
providing immigration officials with our account of Elena’s case. We were
permitted to provide information and make submissions but this was only because
officials had to appear to be fair. They were not fair, because they never had
any intention of seriously considering a positive recommendation in Elena’s
case. Through the years we kept making submissions and hoping that Elena’s
application would be finalized successfully. Not once during this time, before
she actually received the negative recommendation in May, 2004 and was provided
with an opportunity to respond to it, were we advised by any immigration
official that they were intransigent on their position that Elena should not be
granted an exemption. It makes it worse when there is a process which holds out
a promise of fair treatment, but it is actually a sham. It would have be better
if officials had been honest in advising us that Elena had no hope of obtaining
a Ministerial exemption. Then at least we could have made clear decisions on
how to work out our marriage and where we lived, instead of waiting and waiting
and hoping and hoping for her application to be resolved successfully.
[22]
The opinions, beliefs, hopes, and attributions of motive of the
deponent are not evidence that the things believed or hoped for, and the malice
attributed by him to officials existed and in the absence of objective facts to
support them they prove nothing.
[23]
Notwithstanding its impropriety, however, I decline to strike out
this affidavit since I can see no purpose being served by doing so at this
stage in the proceedings. Rather, I shall simply disregard those parts of the
affidavit raising issues of bad faith and improper conduct in the decision
making process since I consider that, in any event, those questions should have
been put forward in the judicial review application which, it will be recalled,
was launched long after the present action and thus at a time when everything
now alleged was known to the plaintiffs. It is now too late to bring up these
matters.
THE SAMIMIFAR DECISION
[24]
At the hearing of the present motion both counsel devoted a large
amount of time to a discussion of a very recent decision of my colleague
Justice Snider in the case of Samimifar v. Canada (M.C.I.), [2006] F.C.J. No. 1626 (QL); 2006 FC 1301. Counsel for the moving
defendant sought in great detail to persuade me that the case was wrongly
decided in law and that I should not follow it for that reason. Similarly,
counsel for the responding plaintiffs tried to persuade me that the decision
was sound, settled all the legal issues before me, and should be followed. Both
invitations are misplaced and I decline them. It is not my role to sit in
appeal of or to criticize my colleagues' judgments any more than it is to
endorse them. If the judgment is determinative of the issues before me it
should be followed; if it is not, it is irrelevant.
[25]
In fact, after carefully
studying and considering the Samimifar judgment I have concluded that
although it bears some striking similarities to this case and deals with
virtually all the same questions of law as are advanced by counsel before me,
the differences between the two fact patterns are far more important than the
similarities. While Samimifar also involved a civil claim against the
Crown for alleged negligent delay in the treatment of an application for
landing, the period of time involved was far longer, (some nine years as
opposed to the period of a little over three years between December 2001 when
the female plaintiff first became free to travel out of Russia and the final
refusal in early 2005, which is the maximum these plaintiffs can complain of).
Similarly, Justice Snider had before her objective fact evidence which allowed
her to find that the trier of fact at trial might reasonably conclude that
there had been misbehaviour on the part of the official charged with the
decision; this contrasts strongly with the affidavit of the male plaintiff on
which I have already commented. Likewise, there was evidence before my
colleague which she found might support a finding at trial of a sufficiently
proximate relationship between the relevant officials and the plaintiff to give
rise to a duty of care, a necessary prerequisite to any claim based on alleged
negligence; that is not the case here and the male plaintiff's constant stream
of self-serving letters cannot by itself create such a relationship. The
evidence here does not show that the officials concerned ever had any duty
other than to the Canadian public, namely, to assess as best they could a claim
by an unmasked Russian spy to an exemption and special treatment by the country
whose hospitality she had so grossly abused. It also shows that they never, at
any time, gave either plaintiff good reason to believe that there was any
reasonable expectation of a favourable decision.
[26]
This brings me to what, to my mind, is the most important
distinction between this case and the decision in Samimifar, namely that
the latter still had opened to him the possibility of having his application
for landing accepted. His application had been once refused but that decision
had been set aside on judicial review and a new decision was still pending at
the time of Justice Snider's judgment. Furthermore, she seems to have
considered the possibility of a favourable final decision not to have been
unreasonable. In the case of the female plaintiff that possibility no longer
exists: the Minister has refused the application, this Court has dismissed the
application for judicial review and no appeal has been taken from that
judgment. Neither of these plaintiffs could have (nor in my view at any time
have had) any reasonable expectation of a favourable ultimate outcome.
[27]
Furthermore, the application for judicial review could and should
have included any allegations of bad faith, sham or similar misconduct on the
part of officials. It did not and the plaintiffs cannot now relitigate matters
which they could have raised on judicial review.
[28]
Thus, the present plaintiffs' claim is for an allegedly negligent
and improper delay in refusing to the female plaintiff a right which, by
definition she never had. Any expectation of a favourable decision is now known
to have been lacking in reasonable foundation. Whatever duty the Minister may
or may not have owed to her, it certainly did not extend to a duty of informing
her as to the probable outcome before the final decision was taken. (Indeed,
had any official ventured to suggest to the plaintiffs that their application
was utterly forlorn, that in itself might well have constituted valid grounds
for judicial review.) The decision itself being now beyond reproach, no alleged
negligence in the process leading to it can give rise to a claim in damages.
[29]
There is one other respect in which Justice Snider's decision
highlights the distinction between the two cases; in both cases the plaintiffs
had claimed damages on the basis of an alleged breach of Charter section 7
rights. After citing the decision of the Supreme Court in Blencoe
v. B.C. Human Rights Commission, [2000] 2 S.C.R.
307 and noting that a Charter claim for damages for delay for an alleged
section 7 breach in administrative decision making must be
"exceptional", my colleague found that the allegations and evidence
before her were sufficient to raise an issue for trial on this question. I can
only say on the basis of the allegations and evidence before me, noting
particularly the far shorter time period involved, the established absence of
any right on the part of the female plaintiff, and the unsatisfactory nature of
the plaintiff's evidence, that this case does not reach what my colleague
described as the "very high" threshold established by the Supreme
Court. There is no genuine issue for trial on the question of damages for
Charter breach.
[30]
In summary, the decision in Samimifar canvassed and
reviewed in detail all the same questions of law raised in the present motion
but the result was entirely driven by the particular facts and evidence
produced in that case. The differences between the two cases, highlighted
above, dictate the opposite result here.
CONCLUSION
[31] I conclude that the Crown's motion should be allowed and the plaintiffs' action dismissed with costs.
ORDER
THIS COURT ORDERS that:
The motion for summary
judgment is allowed and the plaintiffs' action is dismissed, the whole with
costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2064-04
STYLE OF CAUSE: ELENA MILLER AND PETER MILLER v. HER MAJESTY THE QUEEN
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 9, 2006
REASONS FOR ORDER: HUGESSEN J.
APPEARANCES:
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BARBARA JACKMAN
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MARINA STEFANOVIC
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SOLICITORS OF RECORD:
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BARBARA JACKMAN TORONTO, ONTARIO
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JOHN H. SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO
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