Szebenyi v. Canada, 2007 FCA 118

Date: 20070322

Docket: A-271-06

Citation: 2007 FCA 118

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        EVANS J.A.

BETWEEN:

ISTVAN SZEBENYI

            Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Toronto, Ontario, on March 20, 2007.

Judgment delivered at Toronto, Ontario, on March 22, 2007.

REASONS FOR JUDGMENT BY:                                                                             SEXTON J.A.

CONCURRED IN BY:                                                                                                DÉCARY J.A.

                                                                                                                                       EVANS J.A.

Date: 20070322

Docket: A-271-06

Citation: 2007 FCA 118

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        EVANS J.A.

BETWEEN:

ISTVAN SZEBENYI

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

SEXTON J.A.

[1]               This is an appeal from the decision of Heneghan J. in the Federal Court in Szebenyi v. Her Majesty The Queen, 2006 FC 602, wherein she dismissed an action by Istvan Szebenyi (the “Appellant”) against Her Majesty the Queen (the “Respondent”) seeking $6,000,000.00 in damages for alleged negligence in the handling of his mother’s sponsorship application.

[2]               In February 1993, the Appellant, a Canadian citizen, applied under the former Immigration Act, R.S.C. 1985, c. I-2 (”Immigration Act”) and the former Immigration Regulations, SOR/78-172 to sponsor his Hungarian parents for immigration to Canada. As part of the application process, the Appellant’s parents were required to undergo medical examinations by a Designated Medical Practitioner on May 19, 1993. The medical report from the examination of his mother, Gizella Szebenyi, revealed she had Type-II Non-Insulin Dependant Diabetes, otherwise known as Diabetes Mellitus. Although initial protein urinalysis and blood sugar tests yielded negative results, a further test conducted on September 8, 1993 showed a positive result for protein. As a result of these tests, Gizella Szebenyi was determined to be medically inadmissible pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act. During an interview at the Canadian Embassy in Budapest in April 1994, the Appellant’s parents were told that Mrs. Szebenyi had two options available, either to apply for a Minister’s permit pursuant to the Immigration Act or to repeat the medical examination. The Appellant’s mother availed herself of the latter option, but was unable to alter her status as inadmissible.

[3]               This action was commenced by Statement of Claim filed on February 16, 1998, before the Appellant’s parents’ visa application had been refused by Citizenship and Immigration Canada. The visa application was finally refused by letter dated August 16, 2000. The Appellant unsuccessfully attempted to appeal this decision to the Immigration Appeal Division. Rather than seek judicial review of this decision, however, the Appellant chose to pursue this action for damages.

[4]               The Appellant’s claims are based upon the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 and the Federal Courts Act, R.S.C. 1985, c. F-7. He claims to have suffered emotional distress and nervous shock as a result of the way his parents’ application was handled. In addition, he claims that he has suffered pecuniary damages, under the headings of loss of opportunity and economic loss, as a result of the actions of the Respondent’s servants, agents and employees.

[5]               Justice Heneghan concluded that these facts did not give rise to an action in tort against the Respondent. Although she found that the Appellant had suffered depression, she was not prepared to conclude that this condition or any emotional stress he suffered was caused by the servants or agents of the Respondent. Moreover, she concluded that the Respondent owed no duty of care to the Appellant in the circumstances. I am satisfied that the trial judge made no errors in drawing these conclusions.

[6]               The trial judge’s conclusions with respect to causation are findings of fact and therefore should not be interfered with absent a palpable and overriding error (Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at paragraph 70). The Appellant has not succeeded in pointing us to any such error. Heneghan J. noted that the medical records submitted indicated that the Appellant was suffering from depression in 1994. Likewise, she emphasized that it was the Appellant and his parents who failed to avail themselves of the options available to them, such as pursuit of a Minister’s permit. I am unable to say that these facts could not support the trial judge’s finding that the Appellant’s depression and emotional stress were not direct consequences of the actions of the Respondent’s employees in processing his mother’s visa application.

[7]               With respect to the question of whether the Respondent owed the Appellant a duty of care in the circumstances of this case, the trial judge correctly identified that the appropriate test to apply is that set out by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) and adopted by the Supreme Court of Canada in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2. The first step of this test requires the Court to assess whether the harm was a reasonably foreseeable consequence of the defendant’s actions and whether there is a relationship of sufficient proximity between the plaintiff and the defendant to give rise to a prima facie duty of care (Design Services Ltd. v. Canada, 2006 FCA 260 at paragraph 46). To assess whether a sufficiently close relationship exists, the governing statute, in this case the Immigration Act, must be examined (Cooper v. Hobart, [2001] 3 S.C.R. 537 at paragraph 43; Farzam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1659 at paragraph 94-95). The trial judge found that the Appellant had no right to the issuance of a visa to his mother, but only to make the sponsorship application and to appeal a negative decision in respect of that application to the Immigration Appeal Division. In these circumstances, she concluded that there was an insufficiently close relationship between the Respondent and the Appellant to give rise to a prima facie duty of care. The Appellant has been unable to show the Court any basis on which to depart from this conclusion of the trial judge.

[8]               Accordingly, I would dismiss the appeal with costs.

                                                                                                            “J. Edgar Sexton”

“I agree

                                   Robert Décary”                              

                                          J.A.

“I agree

                                  John M. Evans”            

                                          J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-271-06       

STYLE OF CAUSE:                          ISTVAN SZEBENYI v. HER MAJESTY THE QUEEN

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      MARCH 20, 2007

REASONS FOR JUDGMENT:       SEXTON J.A.

CONCURRED IN BY:                     DÉCARY J.A.

                                                            EVANS J.A.

DATED:                                             MARCH 22, 2007

APPEARANCES:                

Istvan Szebenyi                         FOR THE APPELLANT (on his own behalf)

Lorne McClenaghan                             FOR THE RESPONDENT

SOLICITORS OF RECORD: 

Istvan Szebenyi

Oshawa, Ontario                                  FOR THE APPELLANT (on his own behalf)

John H. Sims, Q.C.

Deputy Attorney General of Canada     FOR THE RESPONDENT