Docket: A-142-15
Citation:
2016 FCA 69
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CORAM:
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WEBB J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
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BETWEEN:
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ALEXANDR SIN
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS
FOR JUDGMENT
WEBB J.A.
[1]
This is an appeal from the Order of Justice
O’Reilly of the Federal Court dated March 4, 2015 (2015 FC 276) striking
Alexandr Sin’s claim against the Crown on the basis that it was plain and
obvious that his claim could not succeed and dismissing Mr. Sin’s motion for an
order for pre-certification notice for a class proceeding. Mr. Sin had been
claiming damages and losses from the Crown as a result of the Government of
Canada terminating his application for permanent residence in Canada as an
investor. For the reasons that follow, I would dismiss this appeal.
Background
[2]
Mr. Sin applied to immigrate to Canada from
Russia in 2009 as an investor under the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the IRPA) and the Immigration and Refugee
Protection Regulations, SOR/2002-227. Prior to his application being
approved, the Government of Canada terminated all of the pending investor
applications (including Mr. Sin’s) by amending the IRPA (Economic Action Plan Act No 1, amending the IRPA, s.
87.5).
[3]
Pursuant to the legislative amendments that
terminated the pending applications, the application fee was returned to the
individual (subsection 87.5(4) of the IRPA) and an amount equal to any
investment that had been made by such individual was also paid, without
interest, to that person (subsection 87.5(5) of the IRPA).
[4]
Mr. Sin filed his claim on August 11, 2014. He
also brought a motion “for an order that a
pre-certification notice of the commencement and nature of the … proposed class
proceeding be provided forthwith to the proposed class members by e-mail or
website posting or otherwise.”
[5]
The Crown brought a motion to strike his claim
on the basis that it was plain and obvious that it cannot succeed. As noted
above, the Federal Court Judge granted the Crown’s motion and struck Mr. Sin’s
claim. Since his claim was struck, his motion for a pre-certification notice
was dismissed.
Standards of Review
[6]
As a result of the decision of this Court in Decor
Grates Inc. v. Imperial Manufacturing Group Inc., 2015 FCA 100, 472 N.R.
109, the standards of review that are applicable when this Court is reviewing a
discretionary decision of a lower court are those standards as set out in Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Findings of fact
(including inferences of fact) will stand unless it is established that the
Federal Court Judge made a palpable and overriding error. For questions of
mixed fact and law, the standard of correctness will apply to any extricable
question of law and otherwise the standard of palpable and overriding error
will apply. An error is palpable if it is readily apparent and it is overriding
if it changes the result.
Issue
[7]
The issue in this appeal is whether the Federal
Court Judge erred in striking Mr. Sin’s claim. If so, should Mr. Sin’s motion
for an order for pre-certification notice be granted?
Analysis
[8]
Subsection 87.5(7) of the IRPA provides
that:
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87.5(7) No right
of recourse or indemnity lies against Her Majesty in right of Canada in
connection with an application that is terminated under subsection (1),
including in respect of any contract or other arrangement relating to any
aspect of the application.
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87.5(7) Nul n’a
de recours contre Sa Majesté du chef du Canada ni droit à une indemnité de sa
part relativement à une demande à laquelle il est mis fin par application du
paragraphe (1), notamment à l’égard de tout contrat ou autre forme d’entente
qui a trait à la demande.
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[9]
This subsection is clear and unambiguous. Since
Mr. Sin’s application was terminated under subsection 87.5(1) of the IRPA,
this subsection would preclude him from recovering any amount from the Crown in
relation to the claim that he had filed.
[10]
Mr. Sin’s argument, however, was that this
provision has to be read in light of the Foreign Investment Promotion and
Protection Agreement treaties (the FIPA treaties) and Free Trade Agreement
treaties that Canada has signed. In particular, Mr. Sin relies on the
Canada-Russia FIPA which is dated November 20, 1989.
[11]
Mr. Sin acknowledges that none of the FIPAs
(including the Canada-Russia FIPA) have been implemented by statute. However,
Mr. Sin argues that, notwithstanding the lack of any statute implementing the
FIPAs, subsection 87.5(7) of the IRPA should be read as only applying to
any applicant who was applying from a country other than a country with which
Canada has entered into a FIPA. As a result, in Mr. Sin’s view, subsection
87.5(7) of the IRPA would not apply to any applicant who was applying
from a country (including Russia) with which Canada had signed a FIPA. I do not
agree.
[12]
In Baker v. Minister of Citizenship and
Immigration, [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817, the majority of the
Justices of the Supreme Court of Canada stated that:
69 Another
indicator of the importance of considering the interests of children when
making a compassionate and humanitarian decision is the ratification by Canada
of the Convention on the Rights of the Child, and the recognition of the
importance of children's rights and the best interests of children in other
international instruments ratified by Canada. International treaties and
conventions are not part of Canadian law unless they have been implemented by
statute: Francis v. The Queen, [1956] S.C.R. 618, at p. 621; Capital
Cities Communications Inc. v. Canadian Radio-Television Commission, [1978]
2 S.C.R. 141, at pp. 172-73. I agree with the respondent and the Court of
Appeal that the Convention has not been implemented by Parliament. Its
provisions therefore have no direct application within Canadian law.
(emphasis added)
[13]
As noted by the Supreme Court of Canada, “[i]nternational treaties and conventions are not part of
Canadian law unless they have been implemented by statute”.
[14]
This was again recently reiterated in Kazemi
Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, where
the majority of the Justices of the Supreme Court of Canada stated the
following:
149 Even
if we were to adopt the appellants' interpretation of art. 14 and there was international
consensus on this issue, it must be noted that the existence of an article in a
treaty ratified by Canada does not automatically transform that article into a
principle of fundamental justice. Canada remains a dualist system in respect of
treaty and conventional law (Currie, at p. 235). This means that, unless a
treaty provision expresses a rule of customary international law or a
peremptory norm, that provision will only be binding in Canadian law if it is
given effect through Canada's domestic law-making process (Health Services and
Support -- Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC
27, [2007] 2 S.C.R. 391, at para. 69; Capital Cities Communications Inc. v.
Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, at pp. 172-73;
Currie, Public International Law, at p. 235). The appellants have not argued,
let alone established, that their interpretation of art. 14 reflects customary
international law, or that it has been incorporated into Canadian law through
legislation.
[15]
Mr. Sin did not argue that the Canada-Russia
FIPA reflects customary international law and he acknowledges that it has not
been implemented by any statute of Parliament. As a result, this FIPA is not
part of the domestic law of Canada and cannot amend an act of Parliament.
Therefore, I do not agree that subsection 87.5(7) of the IRPA should be
read in light of the Canada-Russia FIPA.
[16]
Since, as acknowledged by Mr. Sin in his
memorandum, this conclusion would end his claim, there is no need to address the
question of whether the Canada-Russia FIPA would contemplate the claim that Mr.
Sin was making.
[17]
As a result, I would dismiss the appeal, with
costs.
"Wyman W. Webb"
“I agree.
Richard Boivin J.A.”
“I agree.
Yves de Montigny J.A.”
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