Dee v. Canada (Minister of Citizenship and Immigration), docket IMM-5178-97

(NOVEMBER 24TH, 1998)

(COMMENCING AT 10:00 A.M.)

             THE COURT: It is just after two o'clock according to the clock on the wall, and the Court is ready to give reasons and make a decision since nothing, it seems, would be gained by delaying the matter.

             Despite the valiant, professional efforts of Mr. Fraser, the Court is of the view that the applicant must succeed. On this judicial review proceeding, the applicant, Dewey Go Dee, seeks a writ or Order of mandamus to compel the respondent, Minister of Citizenship and Immigration, to make a decision on the applicant's application for landing dated July 14th, 1995. The originating application for leave and judicial review was filed in this Court's registry on December 9th, 1997. The applicant came to Canada and has been in Canada since 1982. On a visitor's visa he came. Prior to the visa's expiry, he attempted to claim convention refugee status against the Philippines, then groaning under the regime of Ferdinand Marcos, but he was turned aside as being premature in the making of such claim since his visa was still in force. He returned to make a refugee claim on the day after his visa expired, and since he was an overstaying visitor, an inquiry was ordered but adjourned for the purposes of the refugee claim. The Minister denied refugee status and Mr. Dee applied to the former Immigration Appeal Board, which found him to be a Convention refugee. Some time later he was ordered deported. He appealed to the Appeal Division of the Immigration and Refugee Board under subsection 70(2)(a) of the then Immigration Act and won his appeal on humanitarian and compassionate grounds. The respondent was not content with the decision of the Appeal Division and brought an application for a judicial review to this Court. That application was dismissed by Mr. Justice Pinard, who certified no special question of general importance. Since then, a long story, the applicant has been attempting to gain landing in Canada. He obtained one advantage from the Appeal Division in that the Appeal Division, on humanitarian and compassionate grounds, decided that he could make his application for landing within Canada. He did that, and in November of 1995, the respondent approved, at last, his application for landing in principle. Now the respondent explains that "in principle" means that he may make the application all right within Canada, but he still has to meet all the other qualifications which an immigrant requires to have made. The applicant then seeks a decision from the Minister. The applicant's application has been going on for a long time and the applicant has been receiving from the respondent all sorts of promises: "we'll have your decision within a few months," "we'll have your decision within a few months," and they continue on.

     The last promise was from a Mr. Christopher Taylor of the department, who indicated some time ago that the applicant's request for rehabilitation, since that was foisted upon him because of certain allegations made in the Philippines, Mr. Taylor in his affidavit stated that in regard to the request for rehabilitation, "the decision will be made in thirty days of the information available on file," paragraph eleven of Mr. Taylor's affidavit.

     After much delay, which the respondent's counsel describes as considerable discussion within the department, Mr. Walsh, who was then solicitor for the applicant, asked, "What are these matters about extradition? What is your evidence of extraditable offences? What's behind this? Why are you delaying?" And he was told in no uncertain terms the department was not in a position to tell Mr. Dee. What are these matters? They appear to be matters which were long ago settled and known to the department since 1982 or 1983. And yet the department says, "Well, Mr. Dee, part of your requirements for becoming a landed immigrant are to show us that you have achieved rehabilitation," and one would not be surprised if Mr. Dee said, "Rehabilitation from what? What are the charges? What charges do you have against me and why are they secret?" There was some public knowledge, this Judge remembers from years ago, that Mr. Dee was accused by Ferdinand Marcos of having swindled the government of the Philippines. Mr. Ferdinand Marcos, history will see, was not the very best source for personal integrity in making such accusations. But now if they are there, if they are still extant, the respondent coyly will not reveal what they are to Mr. Dee, and so his application goes on, and is burdened by that, and it may be that the decision which the respondent now promises will be available by the end of February, 1999 may be based on those phantom charges which one cannot examine. If one cannot examine what is alleged against one, one can hardly make a defence. That is very basic fairness, which is the cornerstone of our judicial system. Mr. Taylor was cross-examined on his affidavit and he made some interesting answers. For example, at page eighteen of the transcript he is asked by Mr. Matas question 94:

That was found in a memo in the tribunal record which Mr. Matas put to Mr. Taylor. And Mr. Taylor answers in response to question 95:

So the charges which Mr. Taylor is instructed to decline to reveal are the ones he suggests Mr. Dee should dredge up and retain counsel in the Philippines to have his name cleared. That simply is not satisfactory under the standards of Canadian law, simply not, and it constitutes more delay, more delay. Now one could mention the various documents which have been mentioned in this thick record, the thick tribunal record, thick record of the applicant. But one might first of all consider the memorandum of argument filed by the Minister. First of all, on page six of nine, part II, Point In Issue, the Minister says, "Is the applicant entitled to a writ of mandamus ordering the respondent to make a decision on his application for permanent residence of the applicant?" And the respondent's submission is a marvel of brevity, one paragraph, paragraph fifteen: "The respondent agrees that the applicant is entitled to a decision on his application for permanent residence, but says that as the respondent is actively processing the applicant's application and a decision is expected within the next four months," dated November 5th, "a writ of mandamus is not appropriate, and the respondent respectfully requests that this application for a writ of mandamus be dismissed." A perusal of the file, which is not a matter, even if one be a speed reader, of only a few minutes, indicates that the applicant has been pressing for a prodigiously long time to get a decision on his application within Canada for landed immigrant status. It indicates that the respondent has been delaying. The respondent, which should be the department, which should be the pre-eminent expert on immigration law in Canada, seems not to know what to do in Mr. Dee's circumstances. And so there has been correspondence and consideration in the department back and forth, and in effect, they have been fending off Mr. Dee saying, "yes, yes, yes, well, we'll get you a decision," "well, we shall get you a decision," but they have never got Mr. Dee a decision. Now, it seems to be well understood that the department itself, the Minister, could be prepared to give a decision by the end of February, 1999. But the question which, in fairness, the Court asks in its discretion in this matter is, why in the world should Mr. Dee rely on that promise? There seems to be no good reason to do so. On the other hand, if mandamus went against the Minister to make a decision by the end of February, there apparently would be no prejudice to the Minister because the Minister seems to indicate that a decision could be made by the end of February.

             And so, in summation, the Court is prepared to grant mandamus to the applicant to compel the Minister to make a decision by the end of February at the latest, the end of February, 1999. That being said, the Court would prefer to have respective counsel for the parties draw up an agreed form of Order. If they cannot agree, then the Court will make its own form of Order. As to a serious question of general importance, counsel seem agreed on both sides that this is not the case for that, not on a mandamus, because although the respondent's counsel argued articulately and well against the mandamus, yet the mandamus is not the substantive matter, the mandamus is not the decision. This is in many ways a run-of-the-mill type of mandamus from which arises no serious question of general importance. That being said, what of costs? There is a long, sad story of being given a relatively soft answer, sometimes a hard answer, to turn away Mr. Dee in his efforts to have a decision on landing as a landed immigrant in Canada, and Mr. Dee is not responsible for this delay. Indeed, the delay has been so long his wife's health has deteriorated, as his might. He might fear that he would die without having landed immigrant status in Canada if he abided by the department's pace in coming to a decision. And so he has a sense of a real grievance, not just a sense of grievance, but he has a real grievance with the department over the years, and especially since 1995 when he made his last application for landing, to have costs, to compensate him, at least in that respect. He has not sued for wounded feelings, which seems popular these days, and perhaps the department should be thankful for that. But he should be compensated for his costs over these years. The Court would be willing to accord him solicitor-and-client costs. This is a special circumstance in the Court's opinion. Mr. Go Dee has been put to prodigious expenses, which perhaps Mr. Matas and Mr. Walsh never expect to even collect, but he has been put to expenses and for a long time, a long, hard time. And so the Court awards him costs on a solicitor-and-client scale for this application for mandamus. Now this application for mandamus is founded on the historical neglect of the respondent, so it seems to me that some of the costs would pre-date the application for mandamus since Mr. Dewey Go Dee's grievance does not start in July, 1995, but has already been afoot long before that. Now here the Court is going to ask some restraint on the part of the applicant. This is an application for mandamus. Had the Minister last week made a decision, it would have been a moot application for mandamus, and one may wonder why the Minister did not make that decision, but prefers to wait, prefers to rehash the old accusations by Ferdinand Marcos, or someone, and so the Court would counsel some restraint in solicitor-and-client costs as to how far back into the past they would go. And the assessment officer may know that the Court cautions a bit of restraint. But the Court cautions no restraint from July 14th, 1995 for solicitor/client costs. They are clearly awardable to the applicant. That presumably deals with all the outstanding issues, except this ought to be said: this Court commends counsel on both sides, each party's counsel, for a high degree of laudable professionalism in representing each one's client. Neither side, especially the respondent, ought not to feel in any way aggrieved by the first-class representation the respondent received from Mr. Fraser, let me name him. Not every client is a winner, but every lawyer is obliged to advocate every client's cause. If he takes a party as a client, then the lawyer is in for a penny, in for a pound, and the real test of a lawyer is how professionally the lawyer advocates the client's cause. The Court certainly respects Mr. Fraser in that regard. If there be any questions now, the Court would be pleased to try to answer them, but it seems that every issue has been dealt with. Yes?