Date: 20090331
Docket: T-447-09
Citation: 2009
FC 333
Toronto, Ontario, March 31, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CANADIAN
ARAB FEDERATION (CAF)
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
last minute motion heard in Toronto on March 30th, 2009 for an
interim injunction to set aside the decision of the Minister of Citizenship &
Immigration (the Minister), communicated by letter to the applicant on March
18, 2009, advising them that the proposed new annual funding contract for the
applicant’s English language instruction class for newcomers to Canada was cancelled
and would not be renewed beyond its March 31st termination date. Accordingly,
the applicant requests that the Court render its decision by March 31st,
i.e. today.
FACTS
[2]
The
applicant organization, the Canadian Arab Federation (CAF) was incorporated
under the Canada Corporations Act on April 27, 1982. Its objectives
include increasing and encouraging the coordination of Arab organizations in
Canada; strengthening the identity of Arab societies, organizations and
communities in Canada and in the Arab homeland; stimulating and providing
relief efforts to alleviate suffering in Canada and the Arab homeland; engaging
in other charitable efforts as determined by the organization’s directors; and
disseminating information about and encouraging support for Arab causes, and in
particular the suffering of the Palestinian people, in Canada and in the Arab
homeland.
[3]
The
applicant has operated a program called the Language Instruction for Newcomers
to Canada (LINC) Program, instructing newcomers to Canada in English as a Second Language (ESL),
for the past eleven years. The majority of newcomers accessing the program are
not Arab, but Chinese. Funding for the program has been provided by
Citizenship & Immigration Canada (CIC) under an annual funding contract
worth approximately $1 million.
[4]
The
funding contracts between the applicant and Citizenship & Immigration are signed
annually or biannually. The current funding was meant to continue for two
years but in 2008, CIC announced that it would continue for a third year into
2010. A contract for the 2009-2010 year was negotiated and approved. The
applicant’s national executive director and the project and program manager
both believed that finalizing the details of this contract was a mere formality
and that the funding for 2009-2010 was in place.
[5]
In
expectation of this funding, the applicant hired a number of individuals. The
applicant states that without the funding, many of these positions would have
to be eliminated or reduced to part time. The applicant states that the
teachers in the program are not likely to lose their jobs, as the applicant has
been advised that the program will be transferred to another agency; however
the applicant has hired a number of individuals who work partly under the
funding contract and partly under other contracts, including the administrator
of the program, the IT support administrator, and the Outreach/Communications
Coordinator. The applicant also leased a space and equipment and obtained
insurance as a result of the funding.
[6]
On March
18, 2009, the President of CAF, Mr. Khaled Moummar, received a letter from
Mr. Rick Stewart, the Associate Assistant Deputy Minister of
Operations at CIC, advising him that funding to CAF was being cancelled because
of “serious concerns” about public statements made by Mr. Moummar and other CAF
members that the letter characterized as promoting “hatred, anti-Semitism and
support for the banned terrorist organizations Hamas and Hezbollah.” The
letter stated that these public statements raised “serious questions about the
integrity” of CAF and had “undermined the Government’s confidence in the CAF as
an appropriate partner for the delivery of settlement services to newcomers.”
The letter concluded:
Accordingly, we will be seeking to work
with the CAF to wind down the Agreement and to ensure that there will be as
little disruption as possible to the clients currently receiving services from
the CAF under the LINC program…I hope that, given our mutual desire to do what
is best for our clients, we can work together to make certain that the
transition is as straightforward as possible. (Application Record, p. 123)
[7]
The
applicant denies that it, or any of its members, supports terrorism or
anti-Semitism. The applicant states that the comments made by Mr. Moummar at a
rally protesting ongoing Israeli attacks in Gaza were made in reference to the positions
taken by politicians justifying these attacks. Mr. Moummar quoted an American
professor, Norm Filkenstein, who described Prime Minister Harper and Mr.
Ignatieff as “whores of war.” Mr. Moummar stated that this label should also
apply to the Minister of Citizenship & Immigration, Jason Kenney and the
junior Minister of Foreign Affairs, Peter Kent.
[8]
Accordingly,
the applicant suggests that calling the Minister Jason Kenney a “political
whore of war for Israel” prompted Mr. Kenney to
cancel the applicant’s annual $1 million funding. The respondent disputes that
this was the cause, and states that it was not the insult to the Minister per
se but rather the “anti-Semitism” and “sympathy with terrorists” that
caused Mr. Kenney to cancel the funding. At this early stage of the legal
proceeding, the respondent has not produced evidence of any other statements or
actions by the applicant that caused the Minister to cancel the applicant’s
funding.
[9]
The
applicant states that its objectives include bridging the divide between Jewish
and Arab communities and that it works with other communities to combat racism
and hate crimes. Mr. Moummar and other members of CAF are critical of Israel because they support a
Palestinian right to self-determination. The applicant states that criticism
of Israel’s policies is not
anti-Semitic. The applicant also states that both prior and following Mr.
Moummar’s comments, CAF had been characterized by Minister Kenney as
“anti-Semitic” on a number of occasions.
[10]
The
respondent admits that negotiations for a further agreement with the applicant
for LINC services from April 1, 2009 to March 31, 2010 had been completed, and
a draft contract had been completed. It appears from the preliminary evidence
that the respondent had agreed that the contract would be renewed on April 1,
2009.
[11]
The
respondent, after deciding on March 18, 2009, not to extend the contract or
enter into a new contract with the applicant, agreed to continue providing
language instruction to the applicant’s clients, take over the applicant’s
employment contracts with its 6 language instructors, 3 childminders, 1
coordinator and 1 administrative assistant, take over the applicant’s existing
lease where it delivers the LINC program, and cover any other expenses of the
CAF with respect to the LINC program.
[12]
As a
result, at the hearing, the applicant listed the 4 remaining job titles of persons
employed by the applicant whose salaries would have been paid in part by the
new LINC contract as of April 1,2009 in the following amounts:
1. the Executive Director - $18,200;
2. the Bookkeeper - $40,768;
3. the Central Communications/Outreach Officer -
$12,792; and
4. the IT Technical Support person - $42,821.
The total of these lost salaries is $114,581.
ISSUES
[13]
The issue
on this motion is whether the applicants have satisfied the tri-partite test
for an interim injunction In RJR-MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311, the Supreme Court the Court stated that an
applicant must establish three principles in order to be granted an interim
injunction:
1.
that there
is a serious issue to be tried;
2.
that the
applicants would suffer irreparable harm is a stay is not granted; and
3. that the balance of
convenience favours granting the injunction.
Serious Issue
[14]
The
applicants submit that there are four serious issues raised in this
application:
1.
whether
the Minister is prevented from cancelling or refusing to extend the LINC
funding due to promissory estoppel or the legitimate expectations of the
applicant or breach of oral contract to extend;
2.
whether
the Minister breached the duty of fairness in cancelling or refusing to extend
funding without providing the applicant with a fair opportunity to respond to
his concerns;
3.
whether
the Minister’s decision is arbitrary and illegal in that it is essentially a
sanction against the exercise of free expression by the president of CAF and
other unnamed individuals; and
4.
whether
the Minister is biased or can reasonably be apprehended to be biased such that
his decision cannot stand.
To obtain an interim injunction, it is only necessary to
establish that the alleged serious issue is not frivolous – i.e. that it is a
serious issue according to a low threshold of probability of success.
Legitimate Expectations
[15]
The
applicant cites Mount Sinai Hospital Center v. Quebec, 2001 SCC 41, 200
D.L.R. (4th) 193, wherein Supreme Court found that the Mount Sinai
Hospital Center had a legitimate expectation that the Minister of Health and
Social Services would issue a new permit because the Minister had previously stated
it would be forthcoming. The Court stated at paragraph 30:
The doctrine of legitimate expectations is sometimes treated as a
form of estoppel, but the weight of authority and principle suggests that an
applicant who relies on the doctrine of legitimate expectations may show, but
does not necessarily have to show, that he or she was aware of such conduct, or
that it was relied on with detrimental results. This is because the focus is on
promoting "regularity, predictability, and certainty in government's
dealing with the public
Fairness
[16]
In Pelletier
v. Canada (AG), 2005 FC 1545, 275 F.T.R. 108, a case involving the
termination of the applicant’s employment, Mr. Justice Simon Noël, found that the
duty of fairness included an obligation to give the affected person a right to
be heard.
[17]
It is
trite law that the respondent Minister, Mr. Jason Kenney, has the legal duty as
either a Minister of the Crown or an administrator to act in accordance with
the duty of fairness which is:
1.
to advise the
applicant that he intends to cancel the new proposed contract and provide the
applicant with his reasons for doing so;
2.
to provide
the applicant with a full opportunity to respond, i.e. to tell the applicant’s
side of the story; and
3.
to
consider the applicant’s response fairly before making his final decision.
The Court notes that counsel for the respondent made no
representations against this legal obligation on the part of the respondent Mr.
Kenney, and noted as an officer of the Court that the he could not disagree
with this applicable principle of law.
[18]
The Court finds
that the evidence to date demonstrates that the respondent Minister did
probably breach his legal duty to act fairly to the applicant. The Court would
have expected the respondent to respect this elementary and fundamentally
important principle and rule of law.
Freedom of Expression
[19]
The applicant
submits that the Minister’s decision would have a chilling effect on free
expression. The applicant cites the test set out by the Supreme Court in Irwin
Toy v. Quebec (A.G.) (1989) 1 S.C.R. 927, which requires that the Court
determine:
1.
whether
the activity of the litigant falls within the protected sphere of s. 2(b); and
2.
whether
the purpose of the government action is to restrict freedom of expression.
Bias
[20]
The
applicant submits that the Minister can be reasonably apprehended to have been
biased against CAF. The applicant has included, as Exhibit K of the
Applicant’s affidavit, a list of incidents demonstrating the Minister’s bias
towards CAF and his opinion that it is an “anti-Semitic organization.”
[21]
I am
satisfied that the applicant has raised a serious issue with respect to the
duty to act fairly. I do not need to decide for the purpose of this motion if
the other issues also meet the low threshold for serious issue.
Irreparable Harm
[22]
The
applicant submits that it would suffer irreparable harm in two ways: first, it
would lose its employees without the funding, and second, the application to
judicially review the decision would be moot as the program would already be
dismantled by the time the application came before this Court. The applicants
state that these harms cannot be easily compensated in damages.
[23]
In order
to establish irreparable harm, an applicant must show that the harm caused could
not later be compensated through damages. As I stated in White v. E.B.F.
Manufacturing Ltd., 2001 FCT 1133, 15 C.P.R. (4th) 505 at
paragraph 13:
¶ 13 ... The second question is
whether damages will provide the plaintiff with an adequate remedy. An interlocutory
injunction is a discretionary and equitable remedy which will not be granted in
the absence of the applicant showing irreparable harm. “Irreparable” refers to
the nature of the harm suffered rather than its magnitude. It is harm which
cannot be quantified in monetary terms or which cannot be cured with
damages....
[24]
The
applicant submits that the harm it would suffer if the funding was cancelled
meets this test. As the Minister has committed to assisting with the
transition and has stated that the LINC program would be transferred to another
agency, it is clear that the program would not be “dismantled.” However, the
applicant has also argued that it would have to terminate its employment of a
number of employees who work in support of the LINC.
[25]
The
applicant has quantified the exact amounts it would lose under the 2009-2010
LINC contract – namely approximately $114,000 as the portions of the salaries
the LINC contract contributed to the salaries of the applicant’s four employees
noted above in paragraph 12. This hard and clear evidence shows that the
applicant’s damages can be quantified and cured with damages – which means they
do not qualify as “irreparable harm”.
[26]
If the
applicant succeeds on this application for judicial review, it can sue the
respondent Minister Kenney for damages for breach of contract or other causes
of action.
[27]
The
applicant also claims that the cancellation of this contract will put the
applicant out of business. The Court finds that the applicant has many other
important aspects to its business which will continue without the LINC contract
so that this does not constitute irreparable harm.
[28]
The Court also
finds that the cancellation of the LINC contract will not affect the right of
the applicant and its officers to engage in legal free speech in Canada, so that this does not equate
to irreparable harm. If, on judicial review, the Minister is found to have
cancelled the applicant’s funding without due regard to fairness simply because
the applicant disagreed with the Minister’s political positions, the applicant
would be entitled to recover damages. There is not, therefore, a chilling
effect on the applicant’s free speech if this interim injunction is not
granted.
Balance of Convenience
[29]
Since the
Court has found no irreparable harm, in all of the circumstances the Court
finds the balance of convenience favours the Minister.
CONCLUSION
[30]
Does the Minister of Citizenship and Immigration
have the right to cancel the contract with the Canadian Arab Federation for
this ESL program for new Canadians because its president made public comments attacking
the Minister’s political positions and personal character? Is it appropriate
for government to cancel the contract because the Canadian Arab Federation
loudly protests the Israeli invasion of Palestine, and calls a Canadian cabinet minister a name for not opposing the
Israeli invasion?
[31]
Being a target of public criticism is part of
holding political office. If the Minister decided to cancel the English as a Second Language funding contract
for the Canadian Arab community simply because he was called a name in the heat
of a political protest against the Israeli attacks in Gaza,
his decision should not stand. It was not unexpected that the Arab community would be repulsed by Israel’s invasion of Gaza. Naturally, the Arab community was
upset that the Canadian government did not strongly protest this attack. Many
reputable Canadian Jews were similarly opposed to Israel’s attack on Gaza.
[32]
However, the Court recognizes that Mr. Kenney
alleges that the Canadian Arab Federation is racist, anti-Semitic, and a
supporter of a terrorist organization and that it was for these reasons that he
cancelled the contract, and not because he was called a name.
[33]
Regardless of his reasons for cancelling the
funding contract, the Minister clearly owes a duty to the Canadian Arab
Federation to give them notice that he intends to cancel the contract, provide
the reasons for cancelling the contract, and give the Canadian Arab Federation
an opportunity to respond before making his decision. The Minister may have
breached the duty of fairness in this regard. For that reason the Minister’s
decision may be set aside by the Court after a full hearing. This is a serious
issue, an elementary principle of administrative law, and the Minister and his
officials must act according to the law.
[34]
In this case the Minister has made arrangements
so that the CAF employees working exclusively on the LINC contract will
continue to be employed and the LINC program will continue. Accordingly, the employees
of the Canadian Arab Federation and the community that it serves will not
suffer irreparable harm. As a result, the Court will not grant an interim
injunction. At the same time, this application for judicial review of the
Minister’s decision can proceed and the Canadian Arab Federation may
obtain a decision declaring that the Minister’s decision was illegal. Following
that, the Canadian Arab Federation may be entitled to commence an action for
damages, but that is all in the future.
[35]
On the
other hand,
at the full hearing of this application to set aside the decision of Minister
Kenney, the Minister’s evidence may satisfy the Court the applicant
should not be extended funding for the reasons cited by Mr. Kenney, namely
anti-Semitism, hate mongering and support of terrorism. The Court will decide this
question after a full hearing of the evidence on both sides.
[36]
For these
reasons, this motion for an interim injunction must be dismissed.
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