Date: 20060609
Docket: A-372-05
Citation: 2006 FCA 213
CORAM: LINDENJ.A.
NADON J.A.
EVANS J.A.
BETWEEN:
SELLADURAI PREMAKUMARAN and
NESAMALAR PREMAKUMARAN
Appellants
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
LINDENJ.A.
[1] The appellants are immigrants to Canada from the United Kingdom. Mr. Premakumaran was born in Sri Lanka and Mrs. Premakumaran in Malaysia. They had earlier immigrated to the United Kingdom, became citizens and were living there quite comfortably when they began to investigate the idea of coming to Canada. They had relatives in Canada and they believed that there was work opportunity here for accountants, a field in which Mr. Premakumaran was involved.
[2] They were accepted as immigrants in the professional skilled immigrant category and came to Canada in 1998, but they had real difficulty finding suitable work. Mr. Premakumaran, though trained in accounting, was not fully qualified in Canada as a C.M.A., C.G.A. or C.A. by the relevant licensing bodies, whose criteria differed from the British, where he was also not fully licensed.
[3] For nearly eight years Mr. Premakumaran and Mrs. Premakumaran had to do menial work to keep them and their four children alive, causing them severe economic, physical and psychological damage.
[4] The appellants blame this on the Canadian government. They contend that the material supplied to them by the immigration officials was outdated and misleading in that it stated, inter alia, that accountants were needed in Canada. They also argue that the points system used to select skilled immigrants is deceptive and flawed, as the process misrepresents that selected applicants have been screened for special occupational skills and experience that will be readily transferable to the Canadian labour market. In fact, the appellants argue, overseas qualifications, skills and experience are not recognized by the Canadian market. The appellants allege that the respondent was aware of these problems, and knowingly perpetuated the appellants' mistaken perceptions by not disclosing these facts to them during the application process or upon their acceptance as immigrants to Canada.
[5] Having filled out more than 4,000 application forms over eight years, however, Mr. Premakumaran was unable, until quite recently, to secure employment in his field. The appellants admit that they were given no guarantees of work. Mr. Premakumaran also admits that to be a fully licensed accountant in Canada he knew he had to become qualified according to official Canadian standards, which he has not done to this day.
[6] The appellants allege that they were misled by the information and documentation supplied to them, that they were treated unequally, contrary to the Charter of Rights and Freedoms, and that they were not provided with adequate assistance in finding jobs in Canada. They have bravely sought to focus public attention on the unfairness of the Canadian immigration system, which, they say, entices people to come here, but which too often abandons them and does little or nothing to enable them to find work and to function at their full capacity in Canada. Their efforts in this regard appear to have met with some success, in that policy initiatives have recently been announced by the federal government to improve the foreign credential recognition process in the future for people in their position.
[7] The appellants instituted this law suit, alleging fraudulent and negligent misrepresentation causing them financial, physical and psychological harm. It was also claimed that false information was disseminated about certain job categories that were supposed to be in high demand and about the use of the processing fees which were charged to applicants for immigration. As remedies, damages were sought for expenses and pain and suffering, as well as a mandamus ordering the federal government to do certain things to fix the immigration system and to apologize publicly.
[8] The defendant brought a motion for summary judgment, seeking to dismiss the appellants' claims under Rule 213 of the Federal Court Rules, which permits the Court to do so where there is "no genuine issue for trial". The test to be applied by the Motions Judge is whether the case is so doubtful that it "does not deserve consideration by the trier of fact at a future trial". One need not show that the plaintiff "cannot possibly succeed", only that the case is "clearly without foundation". (See N.F.L. Enterprises L.P. v. 1019491 Ontario Ltd. (1998), 85 C.P.R. (3d) 328, at p. 329; see also Feoso Oil Limited or "Sarla" (The), [1995] 3 F.C. 68, para. 13; ITV Technologies Inc. v. WIC Television Ltd.(2001), 199 F.T.R. 319 at para. 4 (F.C.A.)).
[9] Employing this test, the Motions Judge dismissed the action, including the claims of fraudulent and negligent misrepresentation, the allegations that the processing fees were not used as professed and the unusual relief requested in paragraphs 2(g) to 2(l) of the Third Amended Statement of Claim.
[10] I am of the view that the Motions Judge correctly exercised his discretion in dismissing this case, in its entirety. He was correct to hold that there was no evidence of fraud, that the complaint about the alleged misuse of the processing fees was unfounded, and that the unusual remedies sought were not among those available to the Court to grant. Nor was there any foundation in fact for the section 15 Charter arguments advanced before us.
[11] As for the allegations of negligent misrepresentation, the Motions Judge was also correct in dismissing that claim, but, since there have been some recent developments in the jurisprudence on this issue, this Court is of the view that a brief review of the current state of the law on this issue might be appropriate.
[12] The Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537 has recently clarified and restructured the Canadian approach to the duty issue in the law of negligence. Building on the neighbour principle of Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) and the more nuanced test in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), and, of course, the Cooper case, a novel duty issue must now be analyzed in a two-step process, another version of which was recently set out in 2006 SCC 18">Childs et al v. Desormeaux et al, 2006 SCC 18 as follows (at para. 11):
(1) is there "a sufficiently close relationship between the parties" or "proximity" to justify imposition of a duty and, if so,
(2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise.
[13] It is also now clear, since Childs, that the further effort to clarify the Anns/Cooper test in Odhavji Estate v. Woodhouse, [2003] S.C.J. No. 74, [2003] 3 S.C.R. 263, describing it as a three step process, has not been adopted. The Supreme Court in Childs explained that "there is no suggestion that Odhavji intended to change the Anns test, rather it merely clarified that proximity will not always be satisfied by reasonable foreseeability" (para. 12).
[14] In summary, the Supreme Court in Childs, supra, concluded (at para. 12):
What is clear is that at stage one, foreseeability and factors going to the relationship between the parties must be considered with a view to determining whether a prima facie duty of care arises. At stage two, the issue is whether this duty is negated by other, broader policy considerations.
[15] Also in Childs, the Supreme Court clarified the burden of proof issue, at least as far as the legal burden at trial: the plaintiff must establish a prima facie duty of care and once this is done "the evidentiary burden of showing countervailing policy considerations shifts to the defendant, following the general rule that the party asserting a point should be required to establish it" (para. 13). No comment was made about the onus on motions to strike out pleadings or for summary judgment.
[16] Before doing the Anns/Cooper analysis, however, the Supreme Court reaffirmed in Childs that a "preliminary point" arises: the court must decide whether the jurisprudence has already established a duty of care because, if the case is within either a category in which precedent has held that a duty is owed or an analogous category, it is "unnecessary to go through the Anns analysis", which is reserved only for novel duty situations (para. 15). The doctrine of precedent has not been abolished by Cooper. As the court explains in Childs, "the reference to categories simply captures the basic notion of precedent" (para. 15). It is, therefore, only new duty situations, not established categories and those analogous thereto, that are to be analysed with the newly framed test (Childs, supra, para. 15).
[17] This review of the current state of the law demonstrates that the full Anns/Cooper analysis need not have been undertaken in this case. The essence of the negligence claim in this case is one of "liability for negligent misstatement", an existing category of case listed in Cooper v. Hobart, where proximity can be posited (para. 36). The Canadian law in this area was well-articulated prior to Cooper v. Hobart in two Supreme Court of Canada decisions, The Queen v. Cognos Inc., [1993] 1 S.C.R. 87 and Hercules Management Ltd. v. Ernst and Young, [1997] 2 S.C.R. 165.
[18] Since the now-famous decision in Hedley Byrne v. Heller, [1963] 2 All E.R. 575, courts have recognized that an action in tort may lie, in appropriate circumstances, for damage caused by negligent misstatement or negligent misrepresentations. In Queen v. Cognos Inc., [1993] 1 S.C.R. 87, the Supreme Court of Canada summarized the jurisprudence in this area and outlined five general requirements for imposing liability for negligent representations:
33 . . . (1) there must a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said representation; (4) the representee must have relied, in a reasonable manner, on said misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.
[19] Cognos affirmed that a duty of care exists with respect to representations when a "special relationship" between the representor and representee is present. As explained in Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, utilizing the Anns v. Merton test, such a "special relationship" exists prima facie when reliance by the representee is both reasonably foreseeable and reasonable in the circumstances. The Hercules decision identified five general indicia of reasonable reliance (at para. 43):
(1) The defendant had a direct or indirect financial interest in the transaction in respect of which the representation was made.
(2) The defendant was a professional or someone who possessed special skill, judgment, or knowledge.
(3) The advice or information was provided in the course of the defendant's business.
(4) The information or advice was given deliberately, and not on a social occasion.
(5) The information or advice was given in response to a specific enquiry or request.
[20] Hercules further explained that the prima facie duty established by foreseeable reasonable reliance may be negatived by policy considerations when, for example, concerns of indeterminate liability are present on the facts of the particular case. So too, in the case of governmental liability, if the conduct is a policy decision, it may not give rise to liability. Tort liability is imposed only if the conduct occurs in the course of operational implementation of policy (Just v. British Columbia, [1989] 2 S.C.R. 1228).
[21] The appellants in this case failed to demonstrate a genuine issue to be tried on four of the five elements set out in Cognos.
[22] On the first element of duty, the Hercules indicia of reasonable reliance must be borne in mind. In general, the relationship between the government and the governed in respect of policy matters is not one of individual proximity. However, consistent with sections 3 and 10 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 which make the Crown liable for the damages for which it would be liable "if it were a person", it is possible in appropriate circumstances for a tort duty to be owed by government officials to furnish non-negligent information, when a duty of care with respect to representations would ordinarily arise.
[23] For example, in Spinks v. Canada, [1996] 2 F.C. 563 (C.A.), a public service employer was found liable in tort based on its negligent provision of information to an employee concerning his pension options (see also Gauthier v. Canada (Attorney General) (2000) 225 N.B.R. (2d) 211 (C.A.); Luo v. Canada (Attorney General) (1997), 33 O.R. (3d) 300 (Div. Ct.)). In other cases, municipalities have been found liable for the negligent advice provided by their employees to persons inquiring about zoning restrictions or other regulations (see Gadutsis et al v. Milne et al., [1973] 2 O.R. 503 (H.C.); Windsor Motors Ltd. v. District of Powell River (1969), 4 D.L.R. (3d) 155 (B.C.C.A.); H.L. & M. Shoppers Ltd et al v. Town of Berwick et al (1977), 28 N.S.R. (2d) 229 (S.C.); Jung v. Burnaby (District) (1978), 91 D.L.R. (3d) 592 (B.C.S.C.); Bell et al v. City of Sarnia (1987), 59 O.R. (2d) 123 (H.C.)). Tort duties have also been recognized in diverse other contexts in which employees of government agencies or authorities negligently provided incorrect advice or misleading representations: see Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; Hodgins v. Nepean (Township) Hydro-Electric Commission, [1972] 3 O.R. 332, rev'd re no negligence (1976), 10 O.R. (2d) 713, aff'd [1976] 2 S.C.R. 501">[1976] 2 S.C.R. 501; Moin v. Blue Mountains (Town) (2000), 135 O.A.C. 278 (O.C.A.); Granitile Inc. v. Canada (1998) 82 O.T.C. 84 (O.C.J.); Sevidal et al. v. Chopra et al (1987), 64 O.R. (2d) 169 (H.C.); Halifax(RegionalMunicipality) v. David(2003), 216 N.S.R. (2d) 325 (S.C.), aff'd re negligent misrepresentation (2004), 228 N.S.R. (2d) 91 (C.A.).
[24] In this case, however, no duty of care arises. As the Motions 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. The information given to the appellants contained no guarantees of work, nor of guaranteed success in the licensing procedure, nor that any particular assistance would be forthcoming. The statement that Mr. Premakumaran would "have no trouble finding a job" was made by his brother, not a counter clerk at the High Commission, as found by the Motions Judge. There is no evidence of any special relationship that could be relied on to support a duty in this case.
[25] As for element (2) from Cognos, the material given to the appellants has not been shown to raise a genuine issue that it is "untrue, inaccurate or misleading", even though the appellants may, on the basis of it, have actually been led to believe that the conditions in Canada were rosier than they really were.
[26] With respect to element (3), there is no evidence of any negligence by any government official in the preparation of the documentation nor in the oral information provided to the appellants. While the list of needed jobs that included the accountant category may not have been completely up to date, as alleged by the plaintiffs, it has not been shown that there is a genuine issue as to whether it was negligent to use that list.
[27] As to element (4), even if there was a genuine issue raised above, there is doubt whether there was sufficient actual reliance on the information given by the government to the appellants, for this information to be held to have been the cause of their coming to Canada. While the information certainly may have influenced the appellants' decision, they visited Canada, they spoke to relatives and other people about Canada, they consulted an employment agency, and they had other family and security reasons to come to Canada, in addition to finding work in the accounting field. The causal role of the representations in question has not been established sufficiently to raise a genuine issue. (See Farzam v. Canada(Minister of Citizenship and Immigration) (2005), 144 A.C.W.S. (3d) 575, 2005 FC 1659 at para. 88).)
[28] The appeal will be dismissed.
"A.M. Linden"
"I agree
M. Nadon J.A."
"I agree
John M. Evans J.A."
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