Date: 20040930
Docket: IMM-7207-03
Citation: 2004 FC 1333
Ottawa, Ontario, this 30th day of September, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
CESAR DANIEL ARO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of Argentina. He came to Canada in September 2000 and applied for refugee status on the basis that he feared persecution due to his sexual orientation. His claim was rejected in August 2001. The Applicant was ordered to appear for removal on April 11, 2002, at Niagara Falls and failed to do so. A warrant for his arrest was issued.
[2] In October 2002, the Applicant applied for a pre-removal risk assessment (PRRA). The PRRA officer found the Applicant did not face persecution, cruel and unusual treatment, torture or risk to life if returned to Argentina. This decision resulted in the enforcement of the removal order and the Applicant was directed to report on February 18, 2003, to receive his PRRA decision. The Applicant failed to attend.
[3] On August 30, 2003, the Applicant was arrested and detained following a routine traffic stop. Counsel retained by the Applicant communicated with the Immigration Division of the Immigration and Refugee Board several times inquiring as to when a detention review would be held.
[4] No detention review was held, instead after 96 hours of detention, the Applicant was removed from Canada on September 3, 2003.
[5] The Applicant alleges breach of natural justice and is asking for a mandamus ordering the Respondent to bring him back to Canada for the purpose of holding the detention hearing that the Applicant by virtue of s. 57(1) of the IRPA is entitled to and which was not held.
[6] During oral arguments, counsel for the Applicant conceded that if the Applicant had had his detention hearing in September of 2003, he would in all likelihood have been ordered to remain in detention given there had already been two occasions where he was to appear to present himself to authorities and failed to do so.
[7] While there has undoubtedly been a breach of the procedural protection afforded to the Applicant under s. 57(1) of IRPA, this does not mean relief will automatically be ordered. In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board [1994] 1 S.C.R. 202 Iaccobuuci, J. observed
53 In Administrative Law (6th ed. 1988), at p. 535, Professor Wade discusses the notion that fair procedure should come first, and that the demerits of bad cases should not ordinarily lead courts to ignore breaches of natural justice or fairness. But then he also states:
A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
In this appeal, the distinction suggested by Professor Wade is apt.
54 Likewise, it is apt to cite R. v. Monopolies and Mergers Commission, [1986] 1 W.L.R. 763 (C.A.). In that case, a Chairman interpreted a statute administered by his Commission in order to determine whether a take over proposal had been abandoned. When he decided that abandonment had, in fact, occurred, he stopped a monopolies and mergers reference at the threshold stage. Upon judicial review, the Court of Appeal held that the Chairman had properly interpreted the statute, but the court also held that he had no statutory authority to act alone. Nonetheless, the discretionary remedies at the disposal of the court were withheld, at least partly because "[g]ood public administration is concerned with substance rather than form" and because the Commission "would have reached and would now reach the same conclusion as did their experienced chairman" (p. 774). Given the circumstances of this case as I have described them, this statement is accurate here, although I would reiterate its exceptional character and would not wish to apply it broadly.
[8] This reasoning applies equally to this case. A detention review hearing if held, would have produced and would produce the same result as was obtained in the absence of such a hearing. Accordingly this Court declines to grant the relief requested.
[9] Applicant's counsel acknowledged the likely futility of the return of the Applicant for a detention review and requested, in case of a negative decision, generous if not punitive costs. I disagree; costs are meant to compensate litigation expenses not serve as damages facsimile. However, given that the Applicant's rights under s. 57(1) were breached, yet no remedy will be granted, the Applicant deserves to be awarded costs on a solicitor and client basis.
ORDER
THIS COURT ORDERS that this application be dismissed. However, given the exceptional nature of this case, the Applicant shall have his costs on a solicitor and client basis in this application.
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-7207-03
STYLE OF CAUSE: CESAR DANIEL ARO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 23, 2004
REASONS FOR ORDER
AND ORDER BY: von Finckenstein J.
DATED: September 30, 2004
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