Date: 20071107
Docket: T-1758-07
Citation: 2007 FC 1155
Ottawa, Ontario, November 7,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ZOLTAN
ANDREW SIMON
Plaintiff
and
HER MAJESTY THE QUEEN
ELIZABETH II
(REPRESENTING CANADA)
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Zoltan
Andrew Simon has commenced a simplified action against Her Majesty the Queen
Elizabeth II (representing Canada). In addition to his claim for damages,
Mr. Simon seeks an order from this Court granting a Canadian visitor’s visa
(now known as a temporary resident permit) to his current wife. Mr. Simon
further asks that the Court recommend to various federal and provincial public
officials that certain unidentified forms be reviewed and updated.
[2]
The
defendant has now brought a motion to strike Mr. Simon’s statement of claim.
According to the defendant, the statement of claim does not disclose a
reasonable cause of action, does not contain the level of material fact
disclosure required of a pleading, is frivolous and vexatious, and amounts to
an abuse of process. Moreover, the defendant submits that Mr. Simon has not
exhausted the administrative remedies available to him.
[3]
For
the reasons that follow, I am of the view that the statement of claim must be
struck.
Background
[4]
As
I understand it, the heart of Mr. Simon’s claim relates to his inability to
sponsor his third (and current) wife for permanent residency as a member of the
family class under the Immigration and Refugee Protection Act.
[5]
Mr.
Simon had evidently sponsored an earlier wife (the “second wife”), who had
subsequently left him, and gone on to collect social assistance benefits in British
Columbia.
As part of his sponsorship of his second wife, Mr. Simon had given an
undertaking to repay any social assistance benefits paid to his spouse. This
he evidently has not done.
[6]
Subparagraph
133(1)(g)(i) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, provides that a sponsorship application may only be approved if
the sponsor is not in default of any such undertaking. It appears that because
Mr. Simon is in default of the undertaking given in relation to his sponsorship
of his second wife, his application to sponsor his third wife was refused.
Analysis
[7]
Motions
to strike are governed by Rule 221 of the Federal Courts Rules,
SOR/98-106. For such a motion to be granted, it must be plain and obvious that
the action cannot succeed, assuming the facts alleged in the statement of claim
to be true: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R.
(4th) 321.
[8]
Moreover,
the statement of claim should be read as generously as possible, in a manner
that accommodates any inadequacies in the allegations that are merely the
result of deficiencies in the drafting of the document: see Operation Dismantle
Inc. v. R., [1985] 1 S.C.R. 441, at ¶14.
[9]
Mr.
Simon’s statement of claim is lengthy, and at times difficult to understand.
Many parts of the claim simply state conclusions of law, without reference to
any material supporting facts.
[10]
Some
aspects of the claim appear to relate to Mr. Simon’s unhappiness with the
social assistance policy of the government of British Columbia. As I
understand it, Mr. Simon blames the availability of what he characterizes as
generous social assistance benefits in that province for contributing to the
breakdown of his second marriage, as it gave his former spouse the economic
freedom to leave him, against his wishes.
[11]
Although
it is not clear if any relief is being claimed in this regard, Mr. Simon’s
statement of claim also refers to garnishment proceedings initiated by the
Family Maintenance Enforcement authorities in British Columbia. These
proceedings evidently relate to support orders made for the benefit of Mr.
Simon’s first wife and his children.
[12]
Whatever
Mr. Simon’s complaints may be against the policies and actions of the
government of British
Columbia,
they are clearly outside the jurisdiction of this Court, and as such it is
plain and obvious that this aspect of Mr. Simon’s claim cannot succeed.
[13]
The
remainder of Mr. Simon’s claim appears to relate to the refusal of his
sponsorship application with respect to his third wife. Mr. Simon acknowledges
that this decision is the subject of proceedings currently pending before the
Immigration Appeal Division of the Immigration and Refugee Board.
Nevertheless, Mr. Simon wishes to pursue this action, as he is of the view that
the IAD proceedings will take several months to complete, and this action may
allow him to have his wife visit him in Canada more
quickly.
[14]
Subsection
63(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
clearly confers the right to appeal to the IAD on an individual who has
received a negative decision in relation to an application to sponsor a foreign
national as a member of the family class.
[15]
In
Grenier v. Canada, [2005] F.C.J. No. 1778, the Federal Court of Appeal
held that a litigant who wishes to impugn the decision of a federal agency
cannot choose whether to proceed by way of an application for judicial review
or an action for damages. According to the Federal Court of Appeal, section 18
of the Federal Courts Act mandates that a plaintiff
who wishes to bring action against the Crown in civil liability for damages
must first exercise the remedies that he or she is offered by administrative
law: see also Prentice v. Canada, [2006] 3 F.C.R.
135, at & 76.
[16]
As
a consequence, to the extent that the claim relates to the refusal of Mr.
Simon’s second sponsorship application, it is plain and obvious that the action
cannot succeed.
[17]
Finally,
the focus of much of Mr. Simon’s concern seemingly relates to the form of the
undertaking that he signed in relation to his sponsorship of his second wife,
although neither the nature of these concerns nor the alleged defects in the
form are clearly explained in the statement of claim.
[18]
In
this regard, I would observe that the form of the undertaking is to a large
extent dictated by the provisions of section 131 of the Immigration and
Refugee Protection Regulations.
[19]
Moreover,
to the extent that Mr. Simon is of that view that reliance on the undertaking
that he gave in the earlier sponsorship is somehow unfair in the circumstances
of his case, it is open to him to raise whatever arguments he may have based
upon humanitarian and compassionate considerations in the context of his appeal
under subsection 63(1) of the Immigration and Refugee Protection Act:
see IRPA, section 65.
[20]
For
these reasons, I find that it is plain and obvious that the action cannot
succeed. As a result, the statement of claim is struck out, without prejudice
to Mr. Simon’s right to initiate a new action, one he has exhausted his
administrative remedies. The defendant is entitled to her costs, which are
fixed at $500.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the defendant’s motion is granted. The statement of claim is
struck out, without prejudice to Mr. Simon’s right to initiate a new action,
one he has exhausted his administrative remedies. The defendant shall have her
costs, fixed in the amount of $500.
“Anne
Mactavish”
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