Date:
20061030
Docket: IMM-6468-03
Citation: 2006 FC 1301
Ottawa, Ontario, October 30,
2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HASSAN
SAMIMIFAR
Plaintiff
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
AND HER MAJESTY THE QUEEN
Defendants
REASONS FOR ORDER AND ORDER
I. Introduction
[1] Mr.
Hassan Samimifar (the Plaintiff or Mr. Samimifar) is an Iranian national who
came to Canada in 1985. In
the 21 years since his arrival, Mr. Samimifar has been seeking legal status as
a permanent resident (PR) of Canada. To date, he has been unsuccessful.
[2] On
November 14, 1994, Mr. Samimifar was granted approval-in-principle to accept
and process an application for permanent residence from within Canada. He
submitted his application for PR status. From then until January 2003, Mr.
Samimifar’s application appears to have been subject to inattention, inaction
and delay for reasons which he alleges amount to negligence and breach of his
s. 7 Charter rights. Finally, in January 2003, he was informed that his
PR application was refused, on the basis that he was inadmissible to Canada under s.
34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), because there were reasonable grounds to believe that he was a
member of a terrorist organization. A judicial review resulted in the quashing
of this decision in May 2003; the re-determination has not taken place.
[3] In
addition to continuing to pursue his administrative efforts to become a
permanent resident, Mr. Samimifar commenced an action against the Minister of
Citizenship and Immigration by filing a Statement of Claim with this Court on
August 20, 2003. In subsequent amendments to the Statement of Claim, Mr.
Samimifar has added Her Majesty the Queen as a Defendant. He claims that the
Defendant, through her agent Minister, was negligent or in violation of his
rights under ss. 7 and 24(1) of the Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 (the Charter). He also seeks
declaratory relief under s. 52 of the Charter.
[4] In
the motion before me, Her Majesty the Queen seeks summary judgment dismissing
all or part of the claim set out in the Further Amended Statement of Claim.
This motion is brought pursuant to Rules 213 to 219 of the Federal Court
Rules, SOR/98-106, which provisions are set out in Appendix A to these
reasons. Briefly, the Defendant submits that there is no issue for trial given
that:
- Mr. Samimifar has
failed to pursue his available judicial review remedies;
- There is no private
law duty of care owed by immigration officials to Mr. Samimifar that would
give rise to potential liability in negligence or that would allow
recovery of damages pursuant to the Charter.
II. Proper Party to the Action
[5] In
his pleadings, Mr. Samimifar named both the Minister of Citizenship and
Immigration (Minister) and Her Majesty the Queen as Defendants in this action.
Mr. Samimifar concedes that the proper party to this action in Her Majesty the
Queen. The cause of action will be amended accordingly.
III. Issues
[6] The
overarching issue in this case is whether there is a genuine issue for trial,
within the meaning of the Federal Court Rules. In determining this
question, the following sub-issues arise:
- What
is the test for summary judgment?
- Is
Mr. Samimifar precluded from bringing this action because he did not first
seek relief by way of extraordinary remedy under s. 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7?
- Is
there an actionable private duty of care owed by the Defendant to Mr.
Samimifar that would give rise to potential liability in negligence?
- Can
Mr. Samimifar seek damages for breach of his Charter rights?
[7] The Defendant
also questioned Mr. Samimifar’s ability to obtain a declaration under the Charter.
Mr. Samimifar concedes that a claim for damages brought under s. 24(1) of the Charter
cannot normally be combined with a declaration under s. 52(1) of the Charter
(Mackin v. New Brunswick (Minister
of Finance), [2002] 1 S.C.R. 405).
IV. Analysis
A. Nature of Claim
[8] The issues
raised by this motion relate to the Further Amended Statement of Claim filed by
Mr. Samimifar. I will begin by reviewing the nature of the pleadings.
[9] Mr. Samimifar
bases his claim on unreasonable delay and abuse of process caused by the
Defendant. He claims damages in the amount of $5,000,000 in negligence and
under ss. 7 and 24(1) of the Charter as a result of: loss of business
and employment opportunities; loss of education opportunities; out of pocket
expenses for, among other things, medical expenses for his common-law wife and
children; and, emotional distress and suffering. Mr. Samimifar claims that the
Minister and officials of Citizenship and Immigration Canada (CIC) were put on
notice of their delay in processing his applications for landing and of the distress
and harm he was suffering as a result.
[10] Mr.
Samimifar also seeks a declaration that his rights under ss. 7 and 24(1) have
been violated.
[11] The
essence of Mr. Samimifar’ claims are, in my view, reflected in paragraphs 29 to
31 of his Further Amended Statement of Claim.
29. The plaintiff submits
that the delay in the processing of his application was the result of improper
allegation of resources on the part of the government of Canada. A large number of files that
were in the 1989 backlog were sent to the Hamilton office and were neglected there for long
time periods of time. CSIS had dealt with the plaintiff by 1995. They have not
expressed any further interest in him and hence the delay between the initial
decision and the final determination which was subsequently overturned are all
the responsibility of the government of Canada. This delay was not the result of any
need for further investigation but rather the result of neglect on the part of
the immigration authorities.
30. The defendant, including
immigration officials processing the plaintiff’s file, owe a duty of care to
the plaintiff. There is sufficient proximity between the defendant and the
plaintiff that a duty of care can be imposed. The plaintiff alleges that the
defendant breached this duty of care and failed to conform to the standard of
care owed to the plaintiff. Given that the delay in processing the plaintiff’s
application resulted in the plaintiff not having permanent status in Canada and also given that the
plaintiff repeatedly put immigration authorities on notice of the distress he
was suffering as a result of the delay, it was reasonably foreseeable that the
plaintiff would suffer harm as a consequence of their actions.
31. The plaintiff’s emotional
and financial life has been severely disrupted as a result of the neglect in
the handling of his application and this has caused the plaintiff severe and
profound emotional distress and grave economic loss.
[12] From my
understanding of Mr. Samimifar’s pleadings, and his affidavit and submissions
on this motion, the period of alleged delay that gives rise to his claims in
damages begins in 1994, when he was approved in principle for PR status, and
either 2001, when CIC undisputedly began to take action on his file, or 2003,
when Mr. Samimifar was refused admissibility to Canada. Hence, the pertinent
time frame is 7 to 9 years in length. I make these statements for convenience,
without making any conclusive findings of fact.
B. Issue #1: What is the test for
summary judgment?
[13] The parties
agree: summary judgment should be granted where there is no genuine issue for
trial (Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C.
853, 111 F.T.R. 189 at para. 8 (T.D.)).
[14] The Court in Granville
established a number of considerations or principles to be applied in
determining whether summary judgment should be granted. These have been widely
adopted by the Court and, in some instances, have been augmented by additional
jurisprudence. Of most relevance to the motion before me are the following.
(i)
There
is no determinative test, but the general question is whether the case is so
doubtful it deserves no further consideration. The Defendant does not need to
show that the plaintiff “could not possibly succeed at trial”, only that the
case is “clearly without foundation” (see also Premakumaran v. Her Majesty
the Queen, 2006 FCA 213 at para. 8);
(ii)
Each
case should be interpreted within its own factual context;
(iii)
Question
of fact and law may be determined on the motion, if it can be done on the
material before the Court; however, where there is a genuine issue of
credibility, a trial will generally be required to allow the judge the
opportunity to observe the demeanour of the witness(es) (Newtec Print &
Copy Inc. v. Woodley, [2001] O.J. No. 4180 (QL) at para. 34 (Ont. S.C.),
leave to appeal to Ont. Sup. Ct. refused, [2001] O.J. No. 5634; Mensah v. Robinson,
[1989] O.J. No. 239 (Ont. H.C.J.) (QL)); see esp. Trojan Technologies, Inc.
v. Suntec Environmental Inc., [2004] F.C.J. No. 636 (C.A.) (QL), 2004 FCA
140 at paras. 19-22).
(iv)
Summary
Judgment should not be granted if the necessary facts cannot be found or it
would be unjust to do so;
(v)
Where
the outcome depends on serious issues of credibility or where the material
facts are in dispute, the matter should proceed to trial (see above); the judge
should take a “hard look” at the evidence, beyond a mere appearance of
evidentiary conflict.
[15] With these
principles in mind, I turn to the specific issues raised on this motion.
C. Issue #2: Availability of
Judicial Review Remedies
[16] The Defendant
characterizes Mr. Samimifar’s claim as a complaint against the negative
permanent resident decision made in June 2003; the delay leading up to that
decision, beginning in 1994 when he was approved in principle for PR status, is
part of that decision. From this starting point, the Defendant argues that Mr.
Samimifar must challenge that decision by way of judicial review, not civil
action, a process which was begun and, until the re-determination, continues.
In summary form, the Defendant’s arguments are as follows:
- The
Federal Court of Appeal has clearly stated that a party cannot bring an
action which amounts to a collateral attack on a final, administrative
decision and that a plaintiff must exhaust administrative remedies before
proceeding with a claim of damages (The Queen v. Tremblay, [2004] 4
F.C.R. 165, 2004 FCA 172, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No.
307 and Her Majesty the Queen v. Grenier, 2005
FCA 348; which decisions have been followed by this Court in Mohiuddin
v. Canada, 2006 FC 664; and Dhalla v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 132 (F.C.))
- Section
72(1) of IRPA, which expressly contemplates that “any matter – a
decision, determination or order made, a measure taken or a question
raised – under this Act” may be challenged by judicial review, is further
support for the Defendant’s position.
- During
the period of the delay, Mr. Samimifar should have sought a writ of mandamus
by way of judicial review (Morgan v. Canada, [1998] B.C.J. No. 2882
(QL), 117 B.C.A.C. 296 (B.C.C.A.), citing Bhatnager v. Canada (Minister
of Employment and Immigration), [1985] 2 F.C. 315 (F.C.T.D.)).
- Mandamus remains
an option for Mr. Samimifar.
[17] I will begin
this portion of the analysis by reviewing the jurisprudence relied on by the
Defendant.
(1) The Queen v. Tremblay
[18] In Tremblay,
above, a former member of the Canadian Forces brought an action challenging his
mandatory retirement, seeking damages, a reinstatement of his employment, and a
declaration that the regulation setting the retirement age and a portion of the
Canadian Human Rights Act be declared invalid. The pertinent portion of
the Court of Appeal’s reasons is this:
Obviously,
the applicant cannot obtain reinstatement in the Canadian Forces as well as
damages for loss of salary unless he first attacks the decision bearing on his
retirement on the basis that the legislation underlying the retirement is
inoperative under the Charter. The invalidity of this decision is at the
heart of his claim and the relief sought depends on this alleged invalidity.
The respondent will only be entitled to reinstatement once the decision is
declared invalid. Damages can only be claimed once the reinstatement is ordered
[at para. 14.]
[19] Addressing specifically the plaintiff’s claim for damages,
the Court reaffirmed that the decision giving rise to the damages must first be
invalidated by way of judicial review (at paras. 28-30).
[20] This decision of the Court of Appeal is, in my view,
distinguishable. Mr. Samimifar is not attacking the PR decision; rather, he is
attacking the delay and seeking damages for the consequences that flowed from
that delay.
(2) The Queen v. Grenier
[21] Grenier, above,
dealt with an action by a prison inmate for damages resulting from a decision
of the institutional head to put him in administrative segregation for 14 days.
The plaintiff had not sought judicial review within the required time frame of
30 days. In effect, the plaintiff, in Grenier, was seeking the remedy
that he had failed to pursue in a timely fashion by way of judicial review.
Once again, the situation before me is quite different.
[22] I also note
the passage quoted by the Court of Appeal, at para. 15 of Grenier, from
the Federal Court decision below it:
The Federal Court applied the [principle
from Zarzour v. Canada, [2000] F.C.J. No. 2070 (F.C.A.) (QL)] to the
facts in this case, and it cannot be criticized for doing so. At paragraph 8 of
his decision, the judge hearing the appeal summarized his perception of the law
on the issue as follows:
It
appears from the precedents applicable in this matter that, in cases in which
the decision giving rise to the harm is still operative at the time the remedy
is sought, the aggrieved party cannot make use of an action but must proceed by
way of judicial review: Sweet v. Canada, [1999] F.C.J. No. 1539, on
line: QL; Zarzour, supra; Tremblay, supra. Conversely,
where the decision which gave rise to the alleged harm is no longer effective
at the time, it is possible for the applicant to bring an action claiming
damages: Creed v. Canada (Solicitor General), [1998] F.C.J.
No. 199, on line: QL; Shaw v. Canada, [1999] F.C.J. No. 657, on line:
QL.
[Emphasis
added.]
[23] In my view,
this passage favours Mr. Samimifar. I think it can be rightly said that the
alleged delay caused by the Defendant is no longer effective, because a final
decision (which result is not material to Mr. Samimifar’s claims in damages)
has been made.
[24] The Court of
Appeal went to say that, in that case, the effect of the decision continued to
be effective (having a bearing on the plaintiff’s administrative record, among
other things; see para. 17) and stating that any decision of a federal agency
continues to be effective unless and until being declared invalid (at para. 18).
It is arguable that the remainder of the Court of Appeal’s reasons do not
necessarily apply to the case at bar, since the delay before me is: (a) not a
decision, as such; and (b) no longer affects Mr. Samimifar. Even if the delay
can be said to be a decision (i.e. a decision to refuse to act on the PR
application), that decision is now null and void, since a decision on the PR
application was in fact made.
(3) Collateral
Attack
[25] Grenier is also
cited for the principle that a complainant cannot bring an action as a
“collateral attack” on a decision that can be or could have been pursued by way
of judicial review.
[26] Is Mr.
Samimifar, in effect, bringing a collateral attack on the administrative
decisions that have or are to be made in his case? Just because Mr. Samimifar
wishes to acquire Canadian permanent residence, which status requires
administrative decisions by the Minister, does not automatically mean that Mr.
Samimifar brings a collateral attack. In this case, the statement of claim
demonstrates that the overall basis for Mr. Samimifar’s claim in damages is not
the effect of the administrative decision (the refusal of PR status). Indeed,
the outcome of the admissibility decision is mostly irrelevant. Rather, the
alleged damages arise purely from the length of time, said to be unreasonable,
that the Defendant took in processing the file and finally coming to a
decision.
[27] In my view, Grenier
supports a conclusion that an action can be brought against a federal agency if
the decision (or the effect of a delay in making a decision) is no longer
active or effective on the plaintiff and provided that it is not a collateral
attack on an administrative decision.
[28] I would
include one caveat. Any claims to damages that stem from Mr. Samimifar’s lack
of PR status – that is, some or all claims for loss of income or business
opportunity or out of pocket expenses – cannot be sustained in this action. The
outcome of Mr. Samimifar’s PR application has not been determined. Although it
was refused, that decision was quashed on judicial review with consent of the
Crown and is now pending a re-determination. Since it is not known whether Mr.
Samimifar is admissible, no damages based on a lack of PR status can be linked
to the alleged delay. This is because there is no guarantee that, if the Minister
had made an admissibility determination earlier, Mr. Samimifar would have
become a permanent resident. Indeed, such claims for damages would be a
form of collateral attack. Thus, to the extent that the damages are based on a
lack of status as a permanent resident, they should be struck. Thus, for
example, in para. 38 of his Further Amended Statement of Claim, Mr. Samimifar
complains of the “lost opportunity to gain better employment, education and
business opportunities”. I would strike that portion of the claim.
(4) Other
Jurisprudence
[29] Similarly,
one can distinguish the other cases cited by the Defendant. In Dhalla,
above, the Statement of Claim was “totally dependent on the legitimacy of the
Respondent’s decision to deny the permanent residence application” (at para.
10). In Mohiuddin,
the plaintiff sought damages for the actions of the Minister, in wrongly
forming the opinion that the MQM-A organization was of a terrorist nature, and
distributing a package of documentation on the terrorist nature of the MQM-A to
immigration officers.
[30] The only case that has considered this issue in the context
of a delay is the decision of Khalil v. Canada, 2004 FC
732. In that case, Ms. Khalil was determined to be a Convention refugee in 1994
and her application for landing was approved in principle in 1995. In 2000, she
was advised that she was inadmissible to Canada. A judicial
review of the inadmissibility decision was allowed and the re-determination was
still outstanding. Ms. Khalil commenced an action. Justice Heneghan was
considering an appeal of a Prothonotary’s decision refusing a motion to strike
the statement of claim. The appeal was dismissed. At para. 13, Justice Heneghan, quoted
and approved of the Prothonotary’s description of the plaintiff’s claim:
With
respect to the Plaintiffs' claims for monetary relief, the Plaintiffs plead two
causes of action - the first is an action for damages for regulatory negligence
- the Plaintiffs allege a breach of a duty of care for the failure to make a
decision in a timely fashion. Second, the Plaintiffs' claim the delay was such that
the [sic] their rights pursuant to section 7 of the Charter were
breached, giving rise to damages under subsection 24(1) of the Charter. Both
claims are for damages and are properly brought by way of action.
[31] Thus, Khalil
was decided on remarkably similar facts to the instant case.
[32] In dismissing
the appeal, Justice Heneghan also determined that the delay in finalizing the
plaintiff’s PR application did not relate to “any matter, determination or order made, a
measure taken or a question raised" as specified by s. 72(1) of IRPA.
[33] Given the
Court of Appeal decisions in Tremblay and Grenier, Khalil
does not stand for a proposition that a claimant cannot be forced to proceed by
way of judicial review. However, where the nature of the claim is not a
collateral attack on a reviewable administrative decision, Khalil
continues to be applicable. Further, in my view, Khalil is correct to
the extent that a claim for damages as a result of delay does not relate to “any matter - a
determination or order made, a measure taken or a question raised – under this
Act" as specified by s. 72(1) of IRPA. A delay in action appears to
fall outside the wording of this section.
(5) Availability of Mandamus
[34] The Defendant
correctly points out that Mr. Samimifar always had the right to bring an
application for mandamus during the period of delay and that he failed
to do so. Should Mr. Samimifar be barred from bringing this action because he
should have sought mandamus during the period of delay?
[35] While
Mr. Samimifar could have brought such an application during the period of
delay, the effect of the PR application refusal in 2003 has been that those
rights have been exhausted; one cannot bring an application for mandamus
once the requested decision or action has been taken. Logically, the principles
in Grenier, Tremblay and other cases can only apply if the
plaintiff has a judicial review remedy available. As stated in Mohiuddin at para. 17, “…if
judicial review is available, the plaintiff must pursue that avenue … [.]” The
problem here, of course, is that judicial review was available but may
no longer be available.
[36] Had Mr. Samimifar
commenced his action prior to the inadmissibility determination in 2003, my
conclusion might have been different. In that situation, mandamus was
available and would have been of practical effect.
[37] A similar
question was dealt with by the Prothonotary in a decision dismissing the
Plaintiff’s motion to strike (Order dated February 5, 2004). As described in
the Order, the Defendant restricted her argument to strike “on the grounds that
at any time during the past eighteen years, the Plaintiff could, and should
have filed an application with the Court for an order of mandamus.” In
her endorsement to the Order, the Prothonotary characterized the Defendant’s
arguments as an assertion that there is a duty on the Plaintiff to mitigate his
damages by bringing an application for mandamus. The Prothonotary
stated, “Whether or not the Plaintiff was under a duty to mitigate his damages
. . . . is a matter for the trial judge to consider following a finding of
liability”. I agree.
[38] This conclusion is
supported by the case of Morgan, above. The case involved a claim for
damages based upon the failure of the Canadian Human Rights Commission to deal
expeditiously with Mr. Morgan’s claim against the Canadian Armed Forces. After
a trial, the British Columbia Court of Appeal dismissed the claim, apparently
on the basis that Mr. Morgan could have, during the period of delay sought mandamus;
in other words, the delay was largely attributable to Mr. Morgan. In my view,
the case demonstrates that the availability of mandamus in the context
of any particular claim and a plaintiff’s behaviour during the delay are
relevant facts to be determined by the trial judge.
[39] The Defendant argues
that Mr. Samimifar may still bring an application for mandamus. While
there may be a theoretical ability to so, there is no practical possibility. At
this time, Mr. Samimifar is awaiting a new admissibility hearing. In any event,
a writ of mandamus would not address the delay from 1994 to 2003.
(6) Conclusion on
Issue #1
[40] At first blush, the
Court of Appeal’s findings in Grenier and Tremblay appear to
preclude Mr. Samimifar’s actions. However, having considered those decisions, I
am not persuaded that this jurisprudence can be applied to the facts before me.
Applying these cases to the substance of Mr. Samimifar’s claim is akin to
fitting a square peg into a round hole. In sum, I am satisfied that:
- In general, Mr. Samimifar’s claim is not in
the nature of a collateral attack on the June 2003 decision that refused
his application for permanent residence on the basis that he was
inadmissible to Canada;
- The delay complained of is not part of the
negative PR decision in June 2003;
- This is not a case where Mr. Samimifar has
failed to exhaust his administrative remedies;
- To the extent that
Mr. Samimifar’s claims for damages are based on a lack of status as a
permanent resident, they should be struck as being, in effect, a
collateral attack on the administrative decision;
- Section 72(1) of IRPA is not
applicable; and
- The fact that Mr. Samimifar did not bring
an application for mandamus during the period of delay may be
relevant, at trial, to the mitigation of damages, but is not relevant at
this stage.
[41] Accordingly, I conclude
that Mr. Samimifar is not precluded from bringing this action because he did
not first seek relief by way of extraordinary remedy under s. 18.1 of the Federal
Courts Act.
D. Issue #3: Potential liability in
negligence
[42] The
Defendant submits that there is no cause of action in negligence. The Defendant
argues that Mr. Samimifar has not pleaded any relationship between himself and
the government officials referred to in the Further Amended Statement of Claim
that would support a claim in negligence.
[43] The
two-part test to be applied is that set out in Anns v. Merton London Borough
Council. Specifically, the Court must determine:
1.
Whether
the circumstances disclose reasonably foreseeable harm and proximity sufficient
to establish a prima facie duty of care?
2.
If
so, whether there exist residual policy considerations which justify denying
liability?
[44] I will
examine each of these in the context of the pleadings at issue.
(1)
Prima Facie Duty of Care
[45] In
general, the relationship between the government and the governed in respect of
policy matters is not one of individual proximity (Premakumaran v. Canada,
[2006] F.C.J. No. 893 at para. 22 (C.A.)). Nevertheless, there
are situations where the Crown is liable as a person and a duty of care exists
(see ss. 3 and 10 of the Crown Liability and Proceedings Act, R.S.C.
1985, c. C-50). The question in this claim is whether the duty could arise on
these facts.
[46] The
cases cited by the Defendant appear to set an exceedingly high bar in a case
such as this that involves public officials and decision makers. Do these cases
apply to preclude Mr. Samimifar’s action?
(a)
W. v. Home Office
[47] A case cited
by the Defendant (and that has been cited, with approval, in other Canadian
cases) is the decision of the English Court of Appeal in W. v. Home
Office, [1997] E.W.J. No. 3289 (English C.A.). In that case, the
plaintiff was detained upon his arrival from Liberia on the basis
of mistaken information. When this mistake was discovered, the plaintiff was
immediately released from detention and granted temporary admission into the U.K. The
plaintiff commenced a lawsuit against the defendant for negligence. The
allegations of negligence were seen to be divided into two categories. The
first is an allegation that the defendant conducted the original interviews
negligently by failing to ask the right questions and/or by failing to require
the plaintiff to sit the Liberian Nationality Test. The second allegation is
that the defendant was negligent in placing someone other than the plaintiff’s
questionnaire and answer on the plaintiff’s immigration file.
[48] The Court of
Appeal found that an immigration officer did not owe a duty of care to the
plaintiff. In coming to this conclusion, the Court of Appeal said (at para.
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.
[49] The Court of
Appeal found that there was no proximity between the plaintiff and immigration
officers that gave rise to a duty of care.
[50] The facts
before me differ in a significant way. Arguably, there is proximity between the
Plaintiff and Ms. K., the officer who was allegedly responsible for processing
Mr. Samimifar’s application. Ms. K. and Mr. Samimifar were in regular contact
with one another during much of the period of delay. Further, Mr. Samimifar
relied directly on Ms. K. assuming that she would process his permanent
residence application in a timely fashion. Finally, this case is arguably about
the failure of the Defendant – and, in particular, one agent of the Defendant –
to carry out her statutory duties for a period of seven to nine years.
(b) Premakumaran
v. Canada
[51] In the case
of Premakumaran v. Canada, [2005] F.C.J. No. 1388 (F.C.), aff’d [2006]
F.C.J. No. 893 (C.A.), the Crown brought a motion for summary judgment against
the plaintiffs’ action for fraudulent misrepresentation with regard to the use
of a misleading point system and negligent misrepresentation that certain job
categories are in high demand in Canada and false information with regard to
the use of application processing fees. The plaintiffs were a married couple
who came to Canada from England in 1998 as
immigrants under the category of Professional Skilled Immigrants.
[52] Justice von
Finckenstein found that the defendant owes a duty of care to the public as a
whole and not to the individual plaintiffs. Consequently, he concluded that the
plaintiffs did not meet the first stage of the test in Anns. Thus, he
found that there was no genuine issue for trial regarding the negligent
misrepresentation allegation. He allowed the summary judgment motion and
dismissed the plaintiffs’ action.
[53] In affirming
this decision, the Court of Appeal stated (at para. 24):
In this case, however, no duty of care arises. As the Motion
Judge correctly found, no special relationship of proximity and reliance is
present on the facts of this case. There were no personal, specific
representations of fact made to these particular appellants upon which they could
reasonably have relied. The printed documentation and information given to them
was merely general material for them to use in making an application for
immigrant status. As the Motions Judge observed, it is not correct to say that
someone “who picks up a brochure or reads a poster at the High Commission is a
‘neighbour’” and is owed a duty as a result. More is required. [Emphasis
added.]
[54] Once again,
there are significant distinguishing features. Justice von Finckenstein pointed
out, at para. 20, that the plaintiffs did not allege that any particular Crown
servant committed a tort against them. In contrast, in the Further Amended
Statement of Claim, Mr. Samimifar alleges that Ms. K. was too busy with other
work, did not have the appropriate security clearance to work on his file, and
also took sick leave (para. 19). While Mr. Samimifar does not specifically
state that Ms. K. committed a tort against him, the inference is clear from a
number of allegations in the pleadings:
- This
delay was not the result of any need for further investigation but rather
the result of neglect on the part of the immigration authorities (para.
29).
- The
defendant, including immigration officials processing the plaintiff’s
file, owe a duty of care to the plaintiff (para. 30).
- The
plaintiff’s emotional and financial life has been severely disrupted as a
result of the neglect in the handling of his application and this has
caused the plaintiff severe and profound emotional distress and grave
economic loss (para. 31).
[55] Consequently,
the reader would understand that a critical aspect of the claim of negligence
is directed at Ms. K.
[56] Arguably, the
“more” that is required by the Court of Appeal occurred here with Mr.
Samimifar. Mr. Samimifar had a personal relationship with the immigration
officers handling his file and, in particular, Ms. K. He was in constant
communication with them since he would inquire about the status of his file.
They were on notice of the harm that he was suffering because of the delay. Mr.
Samimifar spoke to immigration officers numerous times and relied on them to
process his application in a timely fashion.
(c) Benaissa v. Canada (Attorney
General)
[57] The Defendant
also cites Benaissa v. Canada (Attorney General),
[2005] F.C.J. No. 1487 at para. 37 (F.C.) (QL), in which Prothonotary
Lafreniere cited W. v. Home Office, above for the
proposition that the process whereby the decision making body gathers
information and comes to its decision cannot be the subject of an action in
negligence.
[58] In Benaissa,
the defendant was successful in a motion to strike the plaintiff’s amended
statement of claim on the grounds that it did not disclose a reasonable cause
of action and that the action was moot. The case, on its face, appears very
relevant as it dealt with a delay in processing an application for permanent
residence in Canada. The
plaintiff brought an action against the Crown in November 2003 seeking a
declaration that CIC’s failure to finalize his application for landing was
negligent and in breach of his Charter rights.
[59] Prothonotary
Lafreniere found that the plaintiff made a bare assertion that unidentified
servants of the Crown deliberately failed to process the plaintiff’s
application for permanent residence in a timely fashion. As well, he found that
the facts pleaded failed to disclose any factual basis for the allegation that
the Crown acted negligently. He pointed out that, even if sufficient material
facts had been pleaded established breaches or damages, it would appear that the
Crown owed no duty of care to the plaintiff in the particular circumstances of
his case. He said (at para. 33): “Mere delay, absent further facts, does
not constitute a reasonable cause of action”. [Emphasis added].
[60] Unlike the
plaintiff in Benaissa, Mr. Samimifar is not making a bare assertion; he
has set out a factual basis for the allegation that the Defendant acted
negligently, including naming a specific immigration officer, Ms. K. As well,
arguably, there is more than mere delay here by the Defendant. In my
view, Benaissa is distinguishable on the basis that the facts, as
pleaded in the amended statement of claim by the plaintiff in Benaissa,
did not support a cause of action while the facts as pleaded by Mr. Samimifar
could, if sustained at trial, support a cause of action for negligence.
Although there is no statutory duty on the Minister to render a decision in a
specific amount of time, a common law duty of care may arise if the facts are
sufficient to support the action. Arguably this is the case here.
(d) Farzam v. Canada (Minister
of Citizenship and Immigration)
[61] In Farzam v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 2035 (F.C.), the plaintiff
sued the Crown for damages resulting from an alleged marriage breakdown in 1993
due to the negligence of immigration officials in Damascus in processing either
a Minister’s Permit or a permanent resident visa for his wife. Justice
Martineau found that it would be unfair, unjust and unreasonable to impose a
duty of care on immigration officers. In coming to this conclusion, he found
that it was not reasonably foreseeable that Ms. Mohiti would divorce the
plaintiff because of some additional delay or misstatement to the effect that
the undertaking of assistance had not yet been provided by the plaintiff.
Justice Martineau relied on A.O. Farms Inc. v. Canada, [2000] F.C.J. No.
1771, Benaissa, above, and Premakumaran, above, for the point of
view that the relationship between the government and the governed is not one
of individual proximity. He pointed out (at para. 105): “Delays in the
processing of immigration applications are inherent to the system.”
[62] Farzam is
distinguishable on the basis that, in the case before me, it is reasonably
foreseeable that negligently processing Mr. Samimifar’s permanent residence
application would cause him emotional distress and anxiety. However, as Justice
Martineau pointed out (at para. 93):
But even if I accept that forseeability has been adequately
established, as stated by the House of Lords in Hill v. Chief
Constable of West Yorkshire, [1989] 1 A.C. 53 (H.L.) at 60: “(…)
foreseeability of likely harm is not in itself a sufficient test of liability
in negligence. Some further ingredient is invariably needed to establish the
requisite proximity of relationship between the plaintiff and the defendant
(…)”.
[63] Although
delays in the processing of immigration applications are inherent to the
system, in my view, there was more than mere delay in the Plaintiff’s
situation.
[64] In
sum on the question of duty of care, the jurisprudence relied on by the
Defendant is distinguishable. I agree that the Further Amended Statement of
Claim could be clearer with respect to the role of one particular officer in
the processing of his application. Nevertheless, I believe that it would be
appropriate to allow Mr. Samimifar to further amend his statement of claim to
rectify this deficiency. On this question of duty of care, I believe that
sufficient facts have been pleaded to show a prima facie case that the
Defendant, in this particular situation, owed a duty of care to Mr. Samimifar.
Mr. Samimifar should be permitted to bring this question before the trier of
fact at trial.
(2) Existence of
residual policy considerations
[65] The second
prong of the test in Anns is whether residual policy considerations
exist which justify denying liability? In Benaissa, above at paras.
40-43, Prothonotary Lafreniere pointed out four policy considerations:
First, there is nothing in the statutory scheme to suggest
that simple mistakes or errors in the processing applications for landing
resulting in delay should give rise to a right of compensation. The opposite is
true.
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.
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.
Fourth, and more importantly, imposing a duty of care would
hamper the effective performance of the system of immigration control…
[66] In
Farzam, above, Justice Martineau cited the same policy consideration
discussed in Cooper with regards to the “spectre of unlimited liability.
After citing Cooper, he pointed out, at para. 106, that “in effect, the
Crown would act as an unlimited insurer for every possible economic and
emotional loss that a plaintiff claims to have suffered as a result of a delay
or a bona fide error made in the processing of an immigration file”.
[67] While these
policy considerations are very compelling, I am unsure whether they are
sufficiently compelling for the Court to deny liability on the facts of this
case. I do not believe that policy considerations preclude the imposition of a
duty of care where an immigration officer completely ignores a file. Mr.
Samimifar has produced disturbing evidence that appears to show that Ms. K. was
assigned this file, even without the requisite security clearance, and that, in
spite of requests from others in her department, continued to ignore Mr.
Samimifar’s case. If these facts are true, the actions of Ms. K. and, more
generally, CIC officials are far outside of what we expect from our public
service. Indeed, failing to impose a duty of care at this minimal level would
not be consistent with the principles of accountability of our public service.
Surely, there must be some level of service that one can expect in the context
of these immigration matters.
[68] At trial, the
Defendant may be able to provide a satisfactory explanation of why this matter
languished for at least seven years. Given the unusual nature of the claim
before me, involving allegations against a particular immigration officer in
the context of the harm allegedly suffered by Mr. Samimifar, I am not persuaded
that this action should be summarily dismissed on broad policy grounds.
(3) Conclusion on
Issue #3
[69] In sum, there
is a genuine issue for trial regarding the negligence allegation. Mr. Samimifar
has persuaded me that there is some foundation for his claim in negligence.
Consequently, this is not an issue that can be dealt with on a motion for
summary judgment. I acknowledge that there are many difficulties with Mr.
Samimifar’s case. Nevertheless, he should be allowed to bring forward further
evidence at trial and have the issue of negligence dealt with fully by the
trial judge.
E. Issue #4: Damages for
breach of Charter rights
[70] In paragraph
39 of his Further Amended Statement of Claim, Mr. Samimifar claims that:
The conduct of the Canadian officials has caused the severe
emotional stress which engages section 7 and the unconscionable delay in making
a determination has resulted in the violation of section 7, life, liberty and
security of the person rights of the plaintiff
Therefore, he
claims damages under s. 24(1) of the Charter.
[71] An analysis
of rights under s. 7 of the Charter involves addressing two questions
(see: Blencoe v. B.C. Human Rights Commission, [2000] 2 S.C.R. 307 at
para. 47):
- Has
the plaintiff been deprived of the right to “life, liberty and security of
the person”?
- Was
the deprivation contrary to the principles of natural justice?
(1) Engagement of
s. 7
[72] With respect
to the first threshold question, Blencoe reinforced the principle that “serious
state-imposed psychological stress” can constitute a breach of an individual’s
security of the person. However, Justice Bastarache, speaking for the majority
in Blencoe, at para. 83, cautioned that:
It is only in exceptional cases where the state interferes
in profoundly intimate and personal choices of an individual that state-caused
delay in human rights proceedings could trigger the s. 7 security of the person
interest. While these fundamental personal choices would include the right to
make decisions concerning one's body free from state interference or the
prospect of losing guardianship of one's children, they would not easily
include the type of stress, anxiety and stigma that result from administrative
or civil proceedings.
[73] Thus,
psychological stress and effects caused by a delay in processing an application
for permanent residence could trigger the security of the person interest in
“exceptional cases”. However, the threshold is very high. The Supreme Court did
not agree that Mr. Blencoe, who had been waiting for three years for an inquiry
to be held into allegations of sexual harassment, met that standard for the
engagement of s. 7. This determination was made even though the Court
acknowledged that Mr. Blencoe’s life had been “terribly affected” (at para.
64).
[74] Has Mr.
Samimifar’s life been so affected that s. 7 of the Charter is engaged?
To answer this question, I turn first to his statement of claim or in his
affidavit filed in support of this motion. In his statement of claim, Mr.
Samimifar alleges that the situation has caused “severe and profound emotional
distress” (paragraph 31). There are other references to “severe emotional
stress” and emotional stress to the plaintiff and his wife. These bare
assertions cannot, in my view, support the s. 7 claim. However, in his
affidavit, Mr. Samimifar provides a fuller description of the effects of the delay.
He states at para. 16 that:
The delays have also caused stress in my family life. I
often have trouble sleeping because my future and my family’s future [are] so
uncertain. I find that I feel hopeless and depressed about my situation after
so many years of waiting to receive [a] decision on my status in Canada. My life has been in limbo
for over twenty years. I am very anxious about the future and worry all of the
time about the precarious and vulnerable situation that my family is living in.
My eldest daughter is well aware of everything that has happened. She is very
worried about the future of our family and it breaks my heart to see how this
entire process has affected her so dramatically.
[75] Mr. Samimifar also attaches psychological assessments for
himself and his wife. The professional who carried out the assessment concluded
that both Mr. Samimifar and his wife have suffered from chronic depression and
anxiety and from symptoms associated with depression and anxiety. In the text
of his report, the psychologist appears to link the condition of Mr. Samimifar
and his wife to the delay in processing his claim.
[76] This evidence, in my view, indicates that there is an issue
for trial.
The alleged harm extends beyond mere grief, sorrow, or emotional distress,
which would likely not satisfy the threshold in Blencoe, above, (Farzam v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1659, [2005] F.C.J. No. 2035 at para. 115 (F.C.)
(QL); Swerid
v. Persoage et al.,
[1996] M.J. No. 172 (Man. Q.B.)). Despite the Defendant’s assertions, Mr.
Samimifar has put forward at least some evidence that he has suffered severe
psychological harm. Whether the type of stress, anxiety and stigma allegedly
suffered by Mr. Samimifar is sufficient to meet the threshold for a s. 7
violation is a complex matter requiring a full view of the evidence at trial.
[77] Thus, I am
satisfied that the pleadings disclose an issue as to whether s. 7 is engaged.
(2) Fundamental
Justice
[78] The second part of this test requires that the Court
consider whether the alleged deprivation of Mr. Samimifar’s right to security
of the person was in accordance with the principles of natural justice. The
Court in Blencoe did not reject the notion that delay by state officials
could result in a determination that the conduct was not consistent with the
principles of natural justice. In particular, was the behaviour of one of the
officials who had carriage of Mr. Samimifar’s file for a significant part of
the period of delay so egregious as to constitute a breach of the s. 7
requirement for fundamental justice? In light of the facts pleaded, answering
the question will require an extensive review of the behaviour of the officials
who bore responsibility for Mr. Samimifar’s file during the period between 1994
and 2003. In my view, this question is better left for trial.
(3) Availability of
damages under s. 24(1)
[79] The final argument of the Defendant on the Charter
issue is that Charter damages can only be sought where the Crown has
acted in bad faith or with willful disregard (see Pinnock v. Ontario,
[2001] O.J. No. 2921 (Ont. S.C.J.), where the Court describes bad faith as
“willful disregard”; Osborne v. Attorney General (Ontario),
[1996] O.J. No. 2678, aff’d [1998] O.J. 4457 (Ont. C.A.); Howell v. Ontario
(1998), 159 D.L.R. (4th) 566 (Ont. Ct. Gen. Div.)). However, I am not so
certain.
[80] My first response is that the pleadings, while not using the
words “willful disregard” or “bad faith” certainly lay out a pattern that, if
proven at trial, would be considered to be a gross departure from the behaviour
expected from our public servants. Thus, it is arguable that the pleadings are
adequate for a claim for Charter damages.
[81] Secondly, I am not persuaded that the law is as settled as
the Defendant submits. It may be that bad faith or willful disregard is not
essential to the claim.
[82] In Pearson v. Canada, 2006 FC 931, [2006] F.C.J. No.
1175 (F.C.) (QL), Justice Yves De Montigny wrote the following, in the context
of deciding whether a provincial, statutory limitation period applied to a
claim for damages under the Charter:
It
is also well established that the award of damages, both compensatory and
punitive, is a remedy available to an individual whose rights have been
infringed by the state… If there were any remaining doubts on this issue, they
were finally put to rest in MacDonald Inc. v. Canada (A.G.),
[1994] 1 S.C.R. 311. Writing for a unanimous court, Justices Sopinka and Cory
stated at p. 342 that "[t]his Court has on several occasions accepted the
principle that damages may be awarded for a breach of Charter
rights".
Despite
this clear pronouncement to the effect that damages can be a remedy for a Charter
breach, there have been very few cases where such damages have been awarded. As
a result, it is not yet entirely clear on what legal basis such damages rest.
In most cases where damages have been awarded, there has been no real
discussion of the underlying principles. For example, there has been much
debate as to whether section 24(1) of the Canadian Charter creates a
separate and independent right to damages, or whether the infringement of a
guaranteed right must be equated to the wrongful behaviour requirement allowing
the victim to claim damages according to the general legal regime of civil
liability. Similarly, there has been disagreement about the need for bad faith on the part of the government actor before damages
can be awarded. I shall revert to these issues later on in these reasons [at
paras. 48-49].
[83] Justice De Montigny did not decide, in that case, whether
bad faith was a requirement, but noted that the case law across the country has
gone in every direction on the issue. He recommended the recent decision of
Justice Ducharme in Hawley v. Bapoo, 76 O.R. (3d)
649; [2005] O.J. No. 4328 (Ont. S.C.J.) (QL) for a broader review of the
jurisprudence.
[84] In Hawley,
Justice Ducharme does indeed canvass much of the relevant law, including the
cases cited by the Defendant, in which courts have sometimes imposed a
requirement of bad faith, sometimes not, and sometimes imposed unclear
requirements.
[85] Justice
Ducharme himself rejected the imposition of a fault requirement on the
government or government actor, finding that the requirement was contrary to
the spirit and intent of the Charter (at paras. 194-197). He held that
any malice, bad faith, or gross negligence on behalf of the Crown was instead
relevant when considering “what the just and appropriate remedy is in a particular
case” (at para. 196). At para. 197, Justice Ducharme adopted a passage from
Professor Roach in his text Constitutional Remedies in Canada:
There is much to be said for the proposition that the defendant's state
of mind should only be relevant to the extent, if any, required to find a violation
of a Charter right. Malice or gross negligence could perhaps justify
awarding extra damages, but a fault requirement, independent of the violation
of the right sits uneasily with fundamental principles of Charter
interpretation which stress the effects as opposed to the purposes of State
action. The structure of the Charter suggests that once there had been a
violation that is not justified under s. 1, the next issue should be whether
damages would be an appropriate and just remedy [K. Roach, Constitutional
Remedies in Canada (Aurora, Ont.: Canada Law Book, 2004) at para. 11.560].
[86] I find the
reasoning in Hawley persuasive. It follows that it is possible for Mr.
Samimifar to establish Charter damages on the basis of negligence or
unreasonable delay. On the basis of the facts before me, I am not able to state
that such a claim is without foundation.
(4) Conclusion on
Issue #4
[87] In
conclusion, I believe that there is a genuine issue to be tried with respect to
Charter damages based on psychological harm caused by negligence or
unreasonable delay.
V. Overall Conclusion
[88] The
Court is permitted to dismiss claims pursuant to Rule 213 of the Federal
Court Rules when the case is so doubtful that it does not deserve
consideration by the trier of fact at a future trial. In the case before me, I
am not satisfied that the requirement for granting summary judgment has been
met. I am not able to hold that the case is without foundation. Rather, Mr.
Samimifar has raised allegations of fact regarding the processing of his PR
application that should, in my view, be explored at trial.
[89] For
these reasons, the motion will be dismissed.
[90] As
discussed above, there are two areas that should be clarified in the Further
Amended Statement of Claim. In that regard, I would allow Mr. Samimifar a
period of time to provide a further amendment that would:
(a) clarify his
claim as it relates to the actions of Ms. K.; and
(b) remove any
claims for damages that are based on a lack of status as a permanent resident.
[91] Although
the Defendant argued that costs should not be awarded, I see no reason to
depart from the usual practice of awarding costs to the successful party.
ORDER
This Court orders that:
- The motion is
dismissed with costs to the Plaintiff, in any event of the cause.
- The Plaintiff will
have 30 days from the date of this Order to serve and file a Further
Further Amended Statement of Claim;
- The Defendant will
have 30 days from the date of service of the Further Further Amended
Statement of Claim to file a Further Further Statement of Defence; and
- The filing dates
provided in this Order may be amended upon consent of both parties and
written notice to the Court.
“Judith A.
Snider”
____________________________
Judge
APPENDIX “A”
to the
Reasons for Order and Order dated October
30, 2006
in
HASSAN SAMIMIFAR
and
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
AND HER MAJESTY THE QUEEN
IMM-6468-03
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Federal
Courts Rules
Where
available to plaintiff
213. (1) A plaintiff may, after the defendant has filed a
defence, or earlier with leave of the Court, and at any time before the time
and place for trial are fixed, bring a motion for summary judgment on all or
part of the claim set out in the statement of claim.
Where available to
defendant
(2) A defendant may, after serving and filing a defence and at any time
before the time and place for trial are fixed, bring a motion for summary judgment
dismissing all or part of the claim set out in the statement of claim.
Obligations
of moving party
214. (1) A party may bring a motion for summary judgment in an
action by serving and filing a notice of motion and motion record at least 20
days before the day set out in the notice for the hearing of the motion.
Obligations of
responding party
(2) A party served with a motion for summary judgment shall serve and
file a respondent's motion record not later than 10 days before the day set
out in the notice of motion for the hearing of the motion.
Mere denial
215. A response to a motion for summary
judgment shall not rest merely on allegations or denials of the pleadings of
the moving party, but must set out specific facts showing that there is a
genuine issue for trial.
Where
no genuine issue for trial
216. (1) Where on a motion for summary judgment the Court is
satisfied that there is no genuine issue for trial with respect to a claim or
defence, the Court shall grant summary judgment accordingly.
Genuine issue of
amount or question of law
(2) Where on a motion for summary judgment the Court is satisfied that
the only genuine issue is
(a) the amount to which the moving party is entitled, the Court
may order a trial of that issue or grant summary judgment with a reference
under rule 153 to determine the amount; or
(b) a question of law, the Court may determine the question and
grant summary judgment accordingly.
Summary judgment
(3) Where on a motion for summary judgment the Court decides that there
is a genuine issue with respect to a claim or defence, the Court may
nevertheless grant summary judgment in favour of any party, either on an
issue or generally, if the Court is able on the whole of the evidence to find
the facts necessary to decide the questions of fact and law.
Where motion
dismissed
(4) Where a motion for summary judgment is dismissed in whole or in
part, the Court may order the action, or the issues in the action not
disposed of by summary judgment, to proceed to trial in the usual way or
order that the action be conducted as a specially managed proceeding.
Effect
of summary judgment
217. A plaintiff who obtains summary
judgment under these Rules may proceed against the same defendant for any
other relief and against any other defendant for the same or any other
relief.
Powers of Court
218. Where summary judgment is refused or is
granted only in part, the Court may make an order specifying which material
facts are not in dispute and defining the issues to be tried, including an
order
(a) for payment into court of all or part of the claim;
(b) for security for costs; or
(c) limiting the nature and scope of the examination for
discovery to matters not covered by the affidavits filed on the motion for
summary judgment or by any cross-examination on them and providing for their
use at trial in the same manner as an examination for discovery.
Stay of
execution
219. In making an order for summary
judgment, the Court may order that enforcement of the summary judgment be
stayed pending the determination of any other issue in the action or in a
counterclaim or third party claim.
|
|
Règles
des Cours fédérales
Requête du demandeur
213. (1) Le
demandeur peut, après le dépôt de la défense du défendeur — ou avant si la
Cour l’autorise — et avant que l’heure, la date et le lieu de l’instruction
soient fixés, présenter une requête pour obtenir un jugement sommaire sur
tout ou partie de la réclamation contenue dans la déclaration.
Requête du défendeur
(2) Le défendeur peut, après avoir signifié et déposé sa
défense et avant que l’heure, la date et le lieu de l’instruction soient
fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout
ou partie de la réclamation contenue dans la déclaration.
Obligations du requérant
214. (1) Toute
partie peut présenter une requête pour obtenir un jugement sommaire dans une
action en signifiant et en déposant un avis de requête et un dossier de
requête au moins 20 jours avant la date de l’audition de la requête indiquée
dans l’avis.
Obligations de l’autre partie
(2) La partie qui reçoit signification d’une requête en
jugement sommaire signifie et dépose un dossier de réponse au moins 10 jours
avant la date de l’audition de la requête indiquée dans l’avis de requête.
Réponse suffisante
215. La réponse à une requête en jugement sommaire ne peut
être fondée uniquement sur les allégations ou les dénégations contenues dans
les actes de procédure déposés par le requérant. Elle doit plutôt énoncer les
faits précis démontrant l’existence d’une véritable question litigieuse.
Absence de véritable question litigieuse
216. (1)
Lorsque, par suite d’une requête en jugement sommaire, la Cour est convaincue
qu’il n’existe pas de véritable question litigieuse quant à une déclaration
ou à une défense, elle rend un jugement sommaire en conséquence.
Somme d’argent ou point de droit
(2) Lorsque, par suite d’une requête en jugement
sommaire, la Cour est convaincue que la seule véritable question litigieuse
est :
a) le montant auquel le requérant a droit, elle peut
ordonner l’instruction de la question ou rendre un jugement sommaire assorti
d’un renvoi pour détermination du montant conformément à la règle 153;
b) un point de droit, elle peut statuer sur celui-ci et
rendre un jugement sommaire en conséquence.
Jugement de la Cour
(3) Lorsque, par suite d’une requête en jugement
sommaire, la Cour conclut qu’il existe une véritable question litigieuse à
l’égard d’une déclaration ou d’une défense, elle peut néanmoins rendre un
jugement sommaire en faveur d’une partie, soit sur une question particulière,
soit de façon générale, si elle parvient à partir de l’ensemble de la preuve
à dégager les faits nécessaires pour trancher les questions de fait et de
droit.
Rejet de la requête
(4) Lorsque la requête en jugement sommaire est rejetée
en tout ou en partie, la Cour peut ordonner que l’action ou les questions
litigieuses qui ne sont pas tranchées par le jugement sommaire soient
instruites de la manière habituelle ou elle peut ordonner la tenue d’une
instance à gestion spéciale.
Effet du jugement sommaire
217. Le demandeur qui obtient un jugement sommaire aux termes
des présentes règles peut poursuivre le même défendeur pour une autre
réparation ou poursuivre tout autre défendeur pour la même ou une autre
réparation.
Pouvoirs de la Cour
218. Lorsqu’un jugement sommaire est refusé ou n’est accordé
qu’en partie, la Cour peut, par ordonnance, préciser les faits substantiels
qui ne sont pas en litige et déterminer les questions qui doivent être
instruites, ainsi que :
a) ordonner la consignation à la Cour d’une somme d’argent
représentant la totalité ou une partie de la réclamation;
b) ordonner la remise d’un cautionnement pour dépens;
c) limiter la nature et l’étendue de l’interrogatoire
préalable aux questions non visées par les affidavits déposés à l’appui de la
requête en jugement sommaire, ou limiter la nature et l’étendue de tout
contre-interrogatoire s’y rapportant, et permettre l’utilisation de ces
affidavits lors de l’interrogatoire à l’instruction de la même manière qu’à
l’interrogatoire préalable.
Sursis
d’exécution
219. Lorsqu’elle rend un jugement sommaire, la Cour peut
surseoir à l’exécution forcée de ce jugement jusqu’à la détermination d’une
autre question soulevée dans l’action ou dans une demande reconventionnelle
ou une mise en cause.
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