Date: 20080929
Docket: T-2256-07
Citation: 2008FC1090
Toronto, Ontario, September 29, 2008
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
BOUZARJOMEHR
BASSIJ
Plaintiff
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1]
THIS
MOTION is brought
by the Defendant to strike the Amended Statement of Claim in its entirety
without leave to amend.
[2]
The
Plaintiff (Mr. Bassij) is now a Canadian citizen. He arrived in Canada in 1987 from Iran and claimed refugee protection. His
road to citizenship has not been easy. Mr. Bassij claims in this proceeding
general damages in the amount of $1,000,000.00 for malicious or alternatively
negligent investigation, malicious prosecution, abuse of process, breach of his
charter rights, defamation, breach of his employment rights and wrongful
hindrance to his employment of education rights. He also seeks special and
exemplary damages in various amounts. His claim for damages arises from his
strongly held belief that he was not treated fairly or equitably by Immigration
Canada officials throughout the immigration process. In particular, his claim
focuses on events which occurred during his efforts to enter the United States
to write an exam and efforts to return to Canada in May, 1991. This event resulted in
him being charged in the United
States with
illegal entry to the United
States and being
incarcerated for nine days. Thereafter, relying on the advice of various
lawyers, he pleaded guilty to the charge. He also complains that Immigration Canada
officials lost his file during the period of June, 1991 through April, 1992
which resulted in significant delays in the processing of his refugee
application and that they failed to act appropriately with respect to spousal
sponsorship.
[3]
In his
Amended Statement of Claim he also details other events in the 1990’s which he
claims delayed the processing of his immigration application. These delays and
difficulties which he encountered with Immigration Canada officials, he says,
caused him harm by delaying his ability to obtain remunerative employment as a
professional engineer and caused him to endure nervous shock, insomnia, acute
anxiety and fear of persecution. He alleges that this contributed to the
break-up of his marriage and to the mental disorder from which his daughter now
suffers and for whom he is the sole caregiver.
[4]
The Crown
alleges three basic grounds on which it seeks to strike the Amended Statement
of Claim. First, they rely upon limitation periods in the Crown Liability
and Protection Act, R.S.C. 1985, c. C-50; second, they rely upon the
principles found in Grenier v. Canada, 2005 FCA 348, [2006] 2 F.C.R. 287
to the effect that no action in tort lies unless a litigant has proceeded by
way of judicial review to have decisions of a board or tribunal invalidated;
and, third, that as a matter of law there is no duty of care owed by Immigration
Canada officials to Mr. Bassij.
[5]
As this is
a motion to strike the allegations in Mr. Bassij’s Amended Statement of Claim,
those allegations must be accepted as true. Mr. Bassij, in his oral submissions,
passionately described the circumstances of his arrival in Canada and the events dealing with
Immigration Canada officials. Unfortunately, these events are well in the past
and any claims arising from these events are now statute barred. Even if the
lapse of time did not result in the striking of this claim, there are other significant
legal hurdles to Mr. Bassij’s claim. In the end result, for the reasons that
follow, this action must be struck.
[6]
Dealing
first with the time limitation, there is clear authority that where an action
is time-barred it may be struck [see, for example, Elrofaie v. Canada,
October 6, 2005, file T-2104-04, Order of Prothonotary Martha Milczynski; and, Miucci
v. Canada, 1991, 52 F.T.R. 216 (TD)]. Section 32 of the Crown Liability
and Proceedings Act provides that provincial limitation periods apply to
proceedings against the Crown arising in a province. As a result, subsection
7(1) of Ontario’s Public Authorities Protection Act, R.S.O. 1990, c.
C-38 applies. That means a six-month limitation period applies to the various
decisions of the Immigration Canada officials concerning Mr. Bassij’s status in
Canada. Even although Mr. Bassij
argues that he continues to suffer to this day, the continuance of the injury
or damage is with reference to the acts which caused the damage not the
continuation of the injury or damage itself [see Elrofaie, supra, at
para. 4]. The acts alleged to have caused the damage to Mr. Bassij ceased at
the absolute latest in 1998 at the time Mr. Bassij achieved permanent resident
status. These events are clearly well beyond the six-month limitation period.
[7]
With
respect to Mr. Bassij’s citizenship application any cause of action relating to
that application expired more than two years prior to the commencement of this
action and thus this action to the extent it relates to any events flowing from
the citizenship application is also time-barred. Applying a two-year
limitation period to the citizenship application arises by virtue of Ontario’s
Limitations Act, 2002, and thus any aspect of Mr. Bassij’s claim relating
to the citizenship application is similarly time-barred.
[8]
Even if I
am wrong regarding the application of the limitation periods and there is some
scintilla of a cause of action which survives the application of the limitation
periods, Mr. Bassij’s claim still fails because no judicial review was taken of
the immigration decisions [the Grenier principle] and, there is no
private law duty of care owed by Immigration Canada officials to Mr. Bassij.
Thus, there is no reasonable cause of action.
[9]
Immigration
decisions made in respect of Mr. Bassij’s case are presumed to be valid and
final unless set aside by way of, for example, judicial review. No judicial
review of any immigration decisions were undertaken by Mr. Bassij except for
the successful judicial review of the denial of his citizenship application in
2004. The decisions which were made concerning Mr. Bassij involve his denial
of re-entry, denial of designated class membership, spousal sponsorship
applications and delays in relation to his 1993 spousal sponsorship. The only
judicial review which Mr. Bassij undertook was the denial of citizenship on
which he was successful and which ultimately resulted in his obtaining Canadian
citizenship. Mr. Bassij, in effect, is seeking to impugn decisions made by
Immigration Canada officials. Thus, he should have engaged in a judicial
review proceeding. In Grenier, supra, the Federal Court of Appeal has
stated that a litigant is not free to choose between a judicial review proceeding
and an action in damages. The litigant must proceed by way of judicial review
in order to have the decision invalidated. There are many cases which have
applied this principle. Although Mr. Bassij clearly feels wronged by
Immigration Canada officials, he is nonetheless caught by the principle in Grenier,
and thus on this ground the claim should also be struck.
[10]
Dealing
with the duty of care, Mr. Bassij’s claim also fails because no private law
duty of care is owed by Immigration Canada officials to Mr. Bassij. In Khalil
v. Canada, 2007 FC 923, 160 C.R.R. (2d) 234, Justice
Carolyn Layden-Stevenson carefully analyzed the private law duty of care in
circumstances which bears some comparison to Mr. Bassij’s circumstances, and
concluded that no private law duty of care was owed to the plaintiffs. There,
the plaintiffs had alleged, inter alia, that there were delays in the
processing of their applications for permanent residence which caused them
harm. Even though Justice Layden-Stevenson found that there was unreasonable
and inordinate delays in the processing of their applications for permanent
residence, she concluded that there was no free-standing cause of action which
allowed them to claim damages for the harm which they alleged was caused by the
delays of the Immigration Canada officials. Again, Mr. Bassij is caught by the
determination in Khalil that there is no private law duty of care.
[11]
The
Respondent raised several other arguments as to why Mr. Bassij’s claim was an
abuse of process and should be struck out. Because of my conclusions on the
three points noted above, it is not necessary to engage in an analysis of the
remaining points raised by the Respondent. I have considered all of the
arguments in the written representations of the Respondent and, suffice it to
say, they add further support to the conclusion that this action must be
struck. I have also carefully reviewed Mr. Bassij’s written representations
and considered his affidavit in support of his position even though no evidence
is usually allowed on motions of this sort.
[12]
In coming
to the conclusion that this Amended Statement of Claim should be struck, I have
considered all of the allegations in the Amended Statement of Claim in light of
the teachings of the Supreme Court of Canada in Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959. Applying the test in Hunt v. Carey it is plain and
obvious, even on the most generous reading of Mr. Bassij’s Amended Statement of
Claim, that it cannot succeed. In his impassioned argument, Mr. Bassij
indicated that he wanted closure to these chapters of his life. While the
result of this motion may not be the result Mr. Bassij was seeking, in my view,
these matters must come to an end for the reasons noted above.
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