Premakumaran v. Canada, 2005 FC 1131

Date: 2005-08-18

Docket: T-2048-01

Citation: 2005 FC 1131

Ottawa, Ontario, this 18^th day of August, 2005

Present:           THE HONOURABLE MR. JUSTICE von FINCKENSTEIN                                           

BETWEEN:

SELLADURAI PREMAKUMARAN and

NESAMALAR PREMAKUMARAN

                                                                                                                                             Plaintiffs

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                           Defendant

                                            REASONS FOR ORDER AND ORDER

[1]                The Plaintiffs, Selladurai Premakumaran and Nesamalar Premakumaran, are a married couple who came to Canada from England in 1998 as immigrants under the category of Professional Skilled Immigrants. Upon visiting the Canadian High Commission in London, England (the "High Commission") in January of 1996, the Plaintiffs discovered that the Defendant was seeking skilled workers for employment in Canada.

[2]                They sought information in written form, including the Self-Assessment Guide for Skilled Workers (the "Guide"), a pamphlet distributed by the High Commission and spoke to an employee of the High Commission who directed them to the various advertisements and application processes. During their brief conversation, Mr. Premakumaran told the clerk he was an accountant and she pointed out that the position of accountant was on the Occupations List which is a list maintained by the Defendant.

[3]                Since coming to Canada, the Plaintiff Selladurai Premakumaran ("Mr. Premakumaran") has been unsuccessful in obtaining employment as an accountant in Canada. On June 7, 2003 the Plaintiffs filed a Third Amended Statement of Claim making the following three allegations:

1. The Defendant was negligent and committed fraudulent misrepresentation with regard to the conditions governing immigration to Canada through the use of a misleading point system for the entry into Canada of professionally skilled immigrants;

2. The Defendant was negligent in that it misrepresented that certain job categories are in high demand in Canada such as those possessed by the Plaintiffs; and

3. The Defendant provided false information with regard to the use of application processing fees.

As a result, they allege that they have suffered financial, physical and emotional hardship.

[4]                The Plaintiffs seek damages totalling approximately $ 125,000.00, including the various expenses they incurred in establishing themselves in Canada. These expenses include amounts paid for moving expenses and airline tickets, the cost of upgrading skills, various loans and the purchase of a vehicle in order to secure employment. In addition to financial compensation in the amount of $ 125, 000.00, the Plaintiffs seek a mandamus ordering the federal government to

i)     issue a public apology,

ii)    enact policies to ensure that foreign qualifications are uniformly accepted across Canada (by the municipal, provincial and federal governments),

iii)    establish an agency to assist new immigrants with the conversion of foreign qualifications and

iv)    enact improved training programs for officials in overseas embassies.

[5]                As discoveries and productions of documents have been completed, the Plaintiffs are seeking to have a trial date set. The Defendant now brings a motion for Summary Judgment under Rule 216(3) of the Federal Court Rules seeking dismissal of the Plaintiffs' claim.

[6]                The relevant Federal Court Rules to be considered are rules 213, 214 and 215 which provide as follows:

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.

(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.

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.

(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.

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.

[7]                In a motion for summary judgment a court will apply the principles established by the Court of Appeal in Feoso Oil Limited v. "Sarla" (The) [1995] 3 F.C. 68 at para 13:

A number of decisions have arisen under Rule 20 of the Ontario Rules of Civil Procedure [O. Reg. 560/84] from which Rules 432.1 to 432.7 derive. Subrule 20.04(2) of those Rules, like our Rule 432.3(1), provides that where 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." In Pizza Pizza Ltd. v. [ho]Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.), Henry J. after reviewing several earlier decisions of Ontario courts, had this to say at pages 237-238:

In my opinion, there is a lower threshold that is contemplated by the new Rule 20 and the case law developing. It is that the court, in taking a hard look at the merits, must decide whether the case merits reference to a judge at trial. It will, no doubt, have to go to trial if there are real issues of credibility, the resolution of which is essential to determination of the facts. That aside, however, the rule now contemplates that the motions judge will have before him sworn testimony in the affidavits and other material required by the rule in which the parties put their best foot forward. The motions judge, therefore, is expected to be able to assess the nature and quality of the evidence supporting "a genuine issue for trial"; the test is not whether the plaintiff cannot possibly succeed at trial; the test is whether the court reaches the conclusion that the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial; if so then the parties "should be spared the agony and expense of a long and expensive trial after some indeterminate wait" (per Farley J. in Avery).

While this case deals with the former Rule 432.1, it applies equally to the present Rule 213.

[8]                The court also notes the observation of Strayer J.A. in NFL Enterprises L.P v. 1019491 Ontario Ltd. (1998) 85 C.P.R. (3d) 328) at p 329:

We also have in mind jurisprudence dealing with similar rules, as set out by the Court in Feoso Oil Ltd. v. "Sarla" (The), [1995] 3 F.C. 68 at 81-82:

The intention appears to be that claims or defences clearly without foundation should not take up the time and incur the costs of a trial. To this end, as Henry J. stated in Pizza Pizza . . . both sides are required to "put their best foot forward". Theresponding party cannot hold back in the hope that the motion will fall of its own weight... (Emphasis added)

ISSUES

[9]                This application poses the following issues; is there a genuine issue for trial regarding the Plaintiffs' allegations of:

1. Fraudulent misrepresentation by the Defendant in the use of a misleading the point system for entry into Canada of professionally skilled immigrants;

2. Negligent misrepresentation and false advertising by the Defendant of certain job categories being in high demand;

3. The provision of false information by the Defendant regarding the use of application processing fees; and

4. The relief requested by the Plaintiffs in paragraphs 2(g) to (l) of the Third Amended Statement of Claim.

Fraudulent Misrepresentation

[10]            The Plaintiffs allege fraudulent misrepresentation due to the use of a misleading point system used by the High Commission. (Self-Assessment Guide for Skilled Workers, Defendant's Motion Record, Tab 4, pp. 6-12.) This system is used to evaluate workers immigrating to Canada and examines education, vocational preparation, occupation and language capabilities, among other things.

[11]            The Defendant asserts that there is no evidence of fraud in this case and allegations of fraud cannot be made against the government as a whole.   

[12]            The test for fraudulent misrepresentation is a stringent one. As stated by Rothstein J. in Westwood Shipping Lines Inc. v. Geo International Inc., [1999] F.C.J. No. 405 at para 10:

A fraudulent misrepresentation consists of a representation of fact made without belief as to its truth or made recklessly without regard to whether it is true or false and which causes the person to whom it was made to act on it.   

[13]            The Plaintiff, Mr. Premakumaran visited the office of the High Commission, spoke to a counter clerk and obtained some reading material, including a copy of the Guide. He admits he was told by the government official that there would be no guarantees that he would obtain work once in Canada (Examination for discovery of Selladurai Premakumaran, Defendant's Motion Record, pp. 137-138). The Plaintiffs also state in their written submissions that "(n)o part of the Plaintiff Statement of Claim states about the promise of a job." (Plaintiffs' Motion Record, Plaintiffs' Written Representation to Defendant's Notice of Motion for Summary Judgment, para 43.) Further, the Guide contains the statement "(i)t is your responsibility to find employment once you arrive." (Self-Assessment Guide for Skilled Workers, Defendant's Motion Record, Tab 3, Exhibit E, p. 33.)

[14]            The Plaintiff's assertions, even if completely proven at trial, do not meet the test for fraudulent misrepresentation as stated in Westwood Shipping, supra. Thus, nothing would be gained from trying this issue.

Negligence and Negligent Misrepresentation

[15]            The Plaintiffs argue that the Defendant negligently misrepresented the general conditions governing immigration to Canada and falsely advertised the conditions related thereto. They state that these promotional efforts caused them to make inquiries at the High Commission about immigrating to Canada and that they were directed to statements contained in various advertisements which state that "(i)f your present job description fits our Occupations List, then Canada needs your expertise." (Third Amended Statement of Claim, Plaintiffs' Motion Record, Tab 3, p. 7)

[16]            The Defendant contends that the documentation the Plaintiff obtained, including the Guide, was clear that it is the responsibility of the applicant to establish that his or her credentials will be accepted in Canada.

[17]            It may very well be that the High Commission's advertising contained statements such as those referred to in paragraph 15 above. However, the Guide also contains several references to the onus being on the applicant to provide evidence of his or her qualifications. The Guide also states that the applicant must "provide evidence of (...) training and experience in the labour market and demonstrate that they meet Canadian standards" (Emphasis added) (Self-Assessment Guide for Skilled Workers, Defendant's Motion Record, Tab 3, Exhibit E, p. 2). The fact that Mr. Premakumaran's occupation in Britain appeared to match positions listed by the High Commission as being in demand in Canada is not the end of the process. The Guide leaves no doubt that any applicant must show that his skills and experience are acceptable in the Canadian market, including any particular province(s).

[18]            Mr. Premakumaran during discovery stated that he spoke to a counter clerk at the High Commission who told him he should have little trouble finding a job in Canada. He, however, also admitted that in addition he was told that he would have to prove his credentials in the application process. Mr. Premakumaran had told the clerk that he was an accountant with an accounting designation. Ultimately, Mr. Premakumaran was advised that he would have to take several courses to upgrade his skills in order that he may obtain the same accounting designation in Canada. (Defendant's Motion Record, Tab 3, Exhibit D, p. 87)

[19]            The Plaintiffs allege that they were owed a duty of care in their dealings with the Defendant. The Defendant asserts that no duty of care exists between individuals in the Plaintiffs' position and Crown servants.

[20]            The Plaintiffs do not allege that any particular Crown servant committed a tort against them. They claim the system itself is misleading. As it was created and is maintained by the Defendant, the Defendant was negligent in its treatment of the Plaintiffs.

[21]            In Levasseur v. Canada, [2004] F.C.J. No. 1197, Mactavish J. examined the issue of negligence and stated at para 69:

In order to succeed in an action in negligence, a plaintiff must establish that the defendant owes him a duty of care, that there has been a breach of that duty, and that damages flow from that breach. That is, a causal link must be established between the acts or omissions of the defendant and the alleged injury: see A.M. Linden & L.N. Klar, Canadian Tort Law, 11th Ed. (Toronto: Butterworths Canada Ltd., 1999).

[22]            In examining negligence, the relationship between the parties, also known as proximity, must be assessed. In Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) Lord Wilberforce expressed the test for proximity in the following terms at pp. 751-752:

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter-in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise (...)

[23]            As stated in Cooper v. Hobart, [2001] 3 S.C.R. 537 at paras 22 and 23:

(...) Henceforward, liability would lie for negligence in circumstances where a reasonable person would have viewed the harm as foreseeable. However, foresee ability alone was not enough; there must also be a close and direct relationship of proximity or neighbourhood.

But what is proximity? For the most part, lawyers apply the law of negligence on the basis of categories as to which proximity has been recognized in the past. However, as Lord Atkin declared in Donoghue v. Stevenson, the categories of negligence are not closed. Where new cases arise, we must search elsewhere for assistance in determining whether, in addition to disclosing foresee ability, the circumstances disclose sufficient proximity to justify the imposition of liability for negligence.

[24]            Hugessen J. provided an excellent analysis of negligence in the context of government actions in A. O. Farms Inc v. Canada, [2000] F.C.J. No. 1771 where he stated at paragraphs 10-12:

What I have said is enough to dispose of the present motion. However, since both counsel have spoken of it, it is incumbent on me, I think, to say a few words about the more modern approach to claims in negligence against public authorities known in legal shorthand as the Anns/Kamloops [See Note 4 below] test. As I understand it, that test has two branches. First, the Court asks whether there is a relationship of proximity between the plaintiff and the authority such as to give rise to a duty of care.    Next, one asks whether there are statute or policy considerations which mitigate, colour or negate such duty.

                      Note 4: Anns v. Merton London Borough Council, [1978] A.C. 728, Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2">[1984] 2 S.C.R. 2.

Here it seems to me that on both branches of the test the action must fail. The relationship between the government and the governed is not one of individual proximity. Any, perhaps most, government actions are likely to cause harm to some members of the public. That is why government is not an easy matter. Of course, the government owes a duty to the public but it is a duty owed to the public collectively and not individually. The remedy for those who think that duty has not been fulfilled is at the polls and not before the Courts.

Very similar considerations, it seems to me, apply to the second branch of the test. A public authority must be free to make its choices with an eye only to their political consequences, not to the possibility of being sued for damages. That is the primary policy consideration underlying the Welbridge and Guimond decisions with which I started these Reasons and they are equally applicable here. Government, when it legislates, even wrongly, incompetently, stupidly, or misguidedly is not liable in damages. That, in essence, is what the plaintiff has alleged and it discloses, in my view, no cause of action for trial.

[25]            In light of the foregoing facts and jurisprudence, I find that nothing would be gained by allowing this issue to proceed to trial. The Defendant owes a duty of care to the public as a whole and not to the individual Plaintiffs. The Plaintiffs cannot be considered a "neighbour" for these purposes and no such relationship should be created between the Defendant and individual members of the public. The concept of proximity cannot be interpreted as meaning that everyone who picks up a brochure or reads a poster at the High Commission is a "neighbour".

[26]            The Plaintiffs not having met the first leg of the test in Anns v. Merton London Borough Council, supra, I need not consider the second leg of the test. In passing, I would also note that the Plaintiffs also did not plead any specific facts in response to the Defendant's motion as required by Rule 215.

False Information on the Use of Processing Fees

[27]            The Plaintiffs allege that the Defendant has provided false information on the use of processing fees. At discovery they referred to the Guide which states at page 18:

The Canadian Government has decided that more of the costs of providing immigrant visa service must be shifted from Canadian taxpayers to those benefiting from the services. (Emphasis added)          

(Self-Assessment Guide for Skilled Workers, Plaintiffs' Motion Record, Tab 4, p. 18-19)

The Plaintiffs claim that the Guide refers to all immigration services and argue that they did not receive any of the benefits owed to them. (Third Amended Statement of Claim, Plaintiffs' Motion Record, Tab 3, para 15.) They assert that they should have access to services such as immigration centres that would assist them in their search for employment.

[28]            The Defendant argues that the Plaintiffs simply misread the excerpt of the Guide which refers to the use of immigrant visa processing fees and not immigrant services in general.

[29]            There are two problems with the Plaintiffs' contention. First, the above quote refers to shifting costs from the government to immigrants. It is a justification for user fees, it has nothing to do with benefits to immigrants. Secondly, it refers to "immigrant visa services" I fail to see how it can be read as "immigration services".

[30]            The language of the Guide does not support the construction advanced by the Plaintiffs. It is simply not capable of being read the way the Plaintiffs suggest it should be read. In addition, Mr. Premakumaran admitted in discovery that he was not told he would be given assistance to find employment. He stated "if you go to places, anywhere you move, you have to find a job on your own." (Examination of Selladurai Premakumaran, Defendant's Motion Record, Tab 3, Exhibit A, p. 139.)

[31]            Consequently, I do not see how the Plaintiffs' contention could be advanced by a trial of this issue.

Relief Sought at Paragraphs 2(g) to 2(l) of the Third Amended Statement of Claim

[32]            The relief sought at paragraphs 2(g) to 2(l) of the Third Amended Statement of Claim reads as follows:

g.                    The defendant should take serious view of what had befallen the plaintiffs and order an open public apology,

h.                    That a legal precedence in this matter be introduced so that those who seek immigration to Canada are ensured legal rights as per the provisions of the Canadian Charter of Rights and Freedom,

i.                      A legal precedent that must be placed to reflect the condition under which the immigration requires for any prospective skilled immigrants to be gainfully employed in Canada without any prejudice. This will naturally mean that if qualifications, education, skills, experience, English language and or French language ability gained in any other parts of the world is used as the criteria for the selection process to obtain entry visas than it must be readily accepted by nationwide Canada,

j.                     That an agency by set up to help professional and skilled immigrants who possess relevant, adaptable, transferable skills who may face similar problems,

k.                   That the three levels of government in Canada namely municipal, provincial and federal recognize foreign credentials, skills and experience and facilitate spontaneously those with such qualifications to contribute towards Canada's economy and needs,

l.                      That, Canadian diplomatic officials in various High Commissions and Embassies overseas be trained to provide information to aspiring immigrants who are genuine. They should be strongly advised against providing false information and hopes and even to misrepresent and be held liable for severe censure should they be found to have failed in these obligations and responsibilities, (...)

(Third Amended Statement of Claim, Plaintiffs' Motion Record, Tab 3, pp. 4-5.)

[33]            The relief sought above is largely related to policy issues. It is not the role of the courts to order that agencies be set up to assist immigrant workers, nor can the courts order that the municipal, provincial and federal governments recognize certain skills or credentials. These issues are not justiciable but have to be settled at the ballot box.

Conclusion

[34]            In Granville Shipping Co. v. Pegasus Lines Ltd. (T.D.), [1996] 2 F.C. 853 Tremblay-Lamer J. summarized the principles regarding summary judgment. The considerations relevant to the present case are as follows:

(...)

2. (...) whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;

(...)

6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (...);

7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (...)         

[35]            Applying the above principles to the present case, I find that this case does not deserve consideration by the trier of fact at a future trial. The Plaintiffs' credibility is not in issue. All the relevant facts are before the Court. Even if the Court accepted the Plaintiffs' version of events as recounted in discovery, this action would still not succeed for the reasons outlined above.

Affidavit

[36]            An affidavit sworn by Anne-Marie Longnarath on June 1, 2005 was included in the materials filed under this motion by the Defendant. The Plaintiffs questioned the validity of her affidavit and the attached exhibits. By order dated January 8, 2004, this Court stated that the Plaintiffs' concerns regarding the Longnarath affidavit were premature and would be dealt with at trial.

[37]            The Defendant in its Reply for Summary Judgment pointed out that the affidavit of Ms. Longnarath, sworn June 1, 2005, that was included with the materials filed for this motion is a different affidavit than that referred to in the Order of January 8, 2004. The Defendant further contends that the CAIPS notes (Computer Assisted Immigration Processing System) are admissible under the business records exception to the hearsay rule.

[38]            The exhibit to the affidavit sworn June 1, 2005 is a printout of the CAIPS notes. The notes detail contact the Plaintiffs had with immigration services and contain various comments.

[39]            The Court in Tajgardoon v. Canada (Minister of Citizenship and Immigration) (T.D.), [2001] 1 F.C. 591 at 602 stated the following with regard to the admissibility of CAIPS notes:

The conclusion flowing from a traditional analysis of the law is that the CAIPS notes would be admissible at the instance of the applicant as admissions against interest but would not be admissible in the hands of the respondent because they are self-serving hearsay statements.

[40]            This is an action as opposed to a judicial review, however, the same rule applies. Thus the CAIPS notes are not admissible for the truth of their content. However, this is of little relevance as, in any event, I reached my conclusion without any reference to the CAIPS notes.

                                                                       ORDER

THIS COURT ORDERS that this motion be allowed. The action of the Plaintiffs is dismissed.

This case is under case management, yet counsel for the Defendant brought this motion without prior notice to the case management judge. Given these circumstances, there will be no order as to costs.

" Konrad W. von Finckenstein "

Judge

                                                                FEDERAL COURT

                                                         SOLICITORS OF RECORD

DOCKET:                                            T-2048-01

STYLE OF CAUSE:                             SELLADURAI PREMAKUMARAN and

NESAMALAR PREMAKUMARAN

and

HER MAJESTY THE QUEEN

PLACE OF HEARING:                         Ottawa, Ontario

DATE OF HEARING:                           August 15, 2005 (via Teleconference)

REASONS FOR ORDER

AND ORDER:                                      The Honourable Justice von Finckenstein

DATED:                                               August 18, 2005

APPEARANCES:

SOLICITORS OF RECORD: