Pelishko v. Canada (Minister of Citizenship and Immigration), 2003 FCT 88

Date: 20030128

Docket: IMM-4493-00

Neutral citation: 2003 FCT 88

Ottawa, Ontario, this 28^th day of January, 2003

Present:           THE HONOURABLE MR. JUSTICE BEAUDRY                                      

BETWEEN:

                                             OLEG VOLODYMYROVYCH PELISHKO

                                                                                                                                                       Applicant

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Oleg Volodymyrovich Pelishko (the "applicant") has brought a motion for two orders. In one of the orders, pursuant to Rule 104(b) of the Federal Court Rules, 1998 (the "Rules"), Hal Watson ("Watson") would join the respondent as a necessary party to this proceeding. The second order, pursuant to subsection 467(1) of the Rules, would compel Watson to appear before this Court to show cause why he should not be held in contempt of court.

ISSUES

[2]                 Should Watson be joined as a party to these proceedings?

[3]                 Is Watson in violation of an order of this Court such that he should be ordered to appear before the Court and show cause why he should not be held in contempt of court?

[4]                 For the following reasons, this motion shall be dismissed.

BACKGROUND

[5]                 The applicant is seeking permanent residence in Canada. His initial application was considered by a visa officer, N.M. Egan (the "officer"). The officer denied the application for permanent residence on the ground that the experience of the applicant was insufficient for him to be admitted to Canada based on his intended profession according to the National Occupational Classification ("NOC").

[6]                 By order of O'Keefe J. on August 31, 2001, the decision of the officer was set aside, and the Court ordered that the application of the applicant for permanent residence be remitted to a different visa officer for consideration. The reasons of the order of O'Keefe J. specified that the visa officer who was to review the file should assess the remaining work experience of the applicant, as the failure of the first visa officer to do so constituted a reviewable error.

[7]                 The matter was remitted to the Visa Office, where it was reviewed by Watson. The applicant alleges that Watson issued a refusal letter, dated April 26, 2002, without first considering the work experience gained by the applicant prior to obtaining his degree. An application for judicial review had been filed and was subsequently discontinued on July 15, 2002. The applicant highlights in his affidavit the passages from the refusal letter issued by Watson. Those passages give rise to his allegations that Watson still failed to consider the experience the applicant gained prior to obtaining his diploma, which is the error impugned by O'Keefe J. in his judgment. It is the applicant's view, on this basis, that Watson is in direct violation of the order of O'Keefe J. and should therefore be held in contempt of court.

SUBMISSIONS

Applicant

a) Joinder of a Party

[8]                 Subsection 104(1) of the Rules provides the Court with the following powers:

This subsection of the Rules is applicable in the present case. The presence of Watson before this Court is necessary to ensure that all matters in dispute can be completely determined.

[9]                 The Federal Court of Appeal considered the bases on which one should be added as a party to a proceeding in its decision in Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125 (C.A.). The Court adopted the rule developed in an English case, Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357. In that case, the Court held that it is only necessary to join a person as a party when he should be bound by the result of that action. The question to be settled must therefore be an issue in the action which cannot be "effectually and completely" settled unless the person sought to be joined is a party.

[10]            Watson is a necessary party and ought to be bound by the result of this application. Watson deliberately disobeyed the order of O'Keefe J. in failing to consider experience gained by the applicant before he obtained his diploma. This puts him directly in contempt of a court order and he should be held directly accountable.

b) Contempt of Court

[11]            Paragraph 466(b) of the Rules provides that someone who fails to obey an order of the Court is guilty of contempt of Court:

[12]            In order to obtain a show cause order, the applicant must establish, beyond a reasonable doubt, three elements: actual personal knowledge of the court's order; that the person alleged to be in contempt is the primary actor, either actually or by express or implied authorization; and the required degree of mens rea. In the case of civil contempt, as alleged in the present case, the element of mens rea need not be met.

[13]            The applicant submits that the two remaining elements have been met. The Computer-Assisted Immigration Processing System ("CAIPS") notes prepared by Watson indicate that he was aware of the order of O'Keefe J. The notes also indicate that he was aware that the Court order required all of the work experience of the applicant, including that amassed prior to the awarding of his degree, be included. In addition, Watson was the primary actor who had express authorization to make a decision when reviewing the application for permanent residence submitted by the applicant.

[14]            The order of O'Keefe J. is clear in stating that the visa officer should take the work experience in question into account. Watson did not follow the directions set out in the order. This is evidenced by remarks in his CAIPS notes and in the letter of refusal sent to the applicant. In ignoring the evidence of the work experience of the applicant prior to the completion of his diploma, Watson was in contempt of a Court order.

Respondent

a) Joinder of a Party

[15]            Watson should not be brought as a party to the present proceeding because the decision under this matter (IMM-4393-00) was by visa officer N.M.Egan on August 9, 2000. The judicial review application in IMM-4393-00 was decided and finally concluded when O'Keefe J. issued his Reasons for Order and Order on August 31, 2001.

[16]            The applicant filed his notice of application in IMM-2478-02 on May 29, 2002. The decision under review in that matter was precisely the same one referred in paragraph 3 of this motion purportedly under IMM-4493-00: the April 26, 2002 decision of Watson.

[17]            The grounds of the applicant's application in IMM-2478-02 and IMM-4493-00 are identical except for the allegation that Watson should be held in contempt of court.

[18]            Since on July 15, 2002, the applicant filed a Notice of Discontinuance of his application in IMM-2478-02, the notice of the present motion (November 29, 2002) in IMM-4493-00 should be barred on the principles of res judicata and abuse of process.

[19]            On res judicata, the respondent cites Yamani v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1162, [2002] F.C.J. No. 1550, (T.D.) (QL), at paragraph 20, in which Kelen J. noted the principles of estoppel summarized in Apotex Inc. v. Merck and Co., 2002 FCA 210, [2002] F.C.J. No. 811, at paragraphs 24 and 25, (F.C.A) (QL).

b) Contempt of Court

[20]            Even if the CAIPS notes are not properly before this Court, Watson did assess or take into account the applicant's work experience before the applicant obtained his degree. He assessed that experience by deciding not to award any points for it.

[21]            The only order issued by O'Keefe, J. was to refer the matter back for redetermination by a different visa officer.

[22]            The Minister complied with this order by referring the matter to Watson and the latter complied with the order by reassessing the remaining work experience of the applicant.

[23]            Both parties are asking for costs on this motion.

ANALYSIS

Joinder of a Party

[24]            The Minister is a proper party to proceedings in which an applicant challenges a decision made in the name of the Minister by one of his agents. Immigration officers authorized to perform the functions for which discretion is given to them under the Immigration Act, R.S.C. 1985, c. I-2, do so in the name of the Minister.

[25]            The test for necessity of joinder of a party expressed in Stevens, supra, is not applicable in the instant case in respect of Watson. It is the usual practice in actions against the Minister to have the decision maker file an affidavit on behalf of the Minister, and to be available for cross-examination by the applicant on that affidavit. This is a case, where Watson can participate as an affiant on behalf of the Minister should the applicant seek judicial review. It is not a case in which Watson must be added as a party in order to have the issues "effectually and completely" settled.

[26]            It is also not appropriate to add Watson as a party in order to render him personally bound by the determination of this Court. The relief sought by the applicant, and the relief granted by the order of O'Keefe J., was against the Minister. It is only the Minister who is bound by such an order. The Minister carries out what such orders require him to do, such as have applications redetermined through his representatives.

[27]            Watson is only one such representative. If his decision is challenged by way of judicial review, and the Court orders that his decision be set aside and sent back for redetermination, the Minister will be bound to have another of his agents review the case. Watson would have no role to play in that decision. Accordingly, the motion for an order joining Watson as a party to these proceedings must be dismissed.

Contempt of Court

[28]            A useful and widely cited decision with respect to contempt proceedings is the judgment of this Court in Bhatnager v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 3 (T.D.). In that case, a contempt order was sought against the Minister for disobeying an order to produce a file pursuant to an order of mandamus.

[29]            In his decision, Strayer J. (as he then was) made the following observation:

[...] I accept that in contempt proceedings one must construe strictly the order allegedly violated since a finding of guilt or innocence is involved [...].

[30]            Under the heading "Order" in the decision of O'Keefe J., the order appears in this fashion:

The application for judicial review is allowed and the matter is referred to a different visa officer for reconsideration.

[31]            The decision of O'Keefe J. points to the error which he considered reviewable and which provides reasoning for his order, but his order does not explicitly require the Minister to consider all of the applicant's work experience. The only effect of the order is that the decision of the first visa officer is set aside and is of no legal effect. The only obligation to the Minister was that he had to refer the matter to a different visa officer for reconsideration. The Minister complied with this direction by sending the file to Watson. Therefore, no contempt can be found as this order was not disobeyed.

[32]            Furthermore, the order clearly cannot be enforced against Watson in his personal capacity. He was aware that the order had been made. However, as discussed above, the only effect of the order was to set aside the previous decision, albeit with an explanation as to why it was being set aside, and to direct the Minister to have the file reconsidered by a different officer.

[33]            Watson, being aware of the order, is presumed to know the effect of the order. He did in fact assess the work experience of the applicant as can be noted in the CAIPS notes (Applicant's motion record, page 16):

I AM STILL NOT SATISFIED THAT APPLICANT HAS 1 YR EXP AS A COMPUTER PROGRAMMER. HIS CLAIMED EXP IN THE UKRAINE IS BEFORE HE OBTAINED HIS DEGREE WHICH WOULD HVE (sic) QUALIFIED HIM FOR THE OCCUPATION: IT DOES NOT APPEAR THAT HE HAS BEEN ABLE TO OBTAIN ANY EMPLOYMENT AS A COMP PROGRAMMER SINCE LEAVING THE UKRAINE. LOGICALLY IF HE WAS QUALIFIED AS A COMPUTER PROGRAMMER HE WOULD HAVE OBTAINED SUCH EMPLOYMENT IN CANADA. I CANNOT AWARD HIM ANY POINTS FOR EXP AS A COMP PROGRAMMER AND THE OCCUPATION OF HEAVY EQUIP OPERATOR FOR WHICH HE MAY HAVE EXP IS NOT IN DEMAND. I THREFORE (sic) REFUSE THIS APPLICATION.

[34]            The most serious consequence that Watson may have faced as a result of repeating the error impugned in the first decision, had the Court had rendered judgment on a subsequent judicial review, is that he would have seen the fruits of his efforts invalidated by a Court. In the event, the judicial review application was discontinued.

[35]            Since Watson is not personally named in the order and was not served with a copy of it, he is not liable by virtue of that order.

Costs

[36]            I consider very serious a motion to obtain contempt orders; such orders are quasi criminal in nature and should only be granted in the clearest of circumstances (Telus Mobility v. Telecommunications Workers Union, 2002 FCT 1268, [2002] F.C.J. No. 1744 (T.D.) (QL). Accordingly, an award of $750 shall be paid by the applicant to the respondent under subparagraph 400(3)(k)(i) of the Rules:

[37]            This motion is dismissed. The applicant shall pay to the respondent a sum of $750 for costs.

                                                  ORDER

THIS COURT ORDERS that:

1.         This motion is dismissed.

2.         The applicant shall pay to the respondent a sum of $750 for costs.

________________________

Judge