Chesters v. The Queen, 2001 FCT 783

Date: 20010711

Docket: IMM-1316-97

Neutral citation: 2001 FCT 783

Ottawa, Ontario, Wednesday the 11^th day of July 2001

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

ANGELA CHESTERS

Plaintiff

-and-

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

AS REPRESENTED BY THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

-and-

COUNCIL OF CANADIANS WITH DISABILITIES

Intervener

                                      REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                This is an appeal by the defendant from the order of Prothonotary Lafrenière pronounced on March 30, 2001 by which he dismissed the defendant's motion for an order that the plaintiff's action not be heard on the ground that it is moot.

[2]                The parties dispute the applicable standard of review. The defendant relied upon Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) to assert that the learned Prothonotary improperly exercised his discretion on a question vital to the final issue of the case so that I ought to hear the matter de novo and exercise my own discretion.

[3]                The plaintiff argued that the Prothonotary's decision was not rendered as a result of the exercise of any discretion and relied upon Scott Steel Ltd. v. The Alarissa (1997), 125 F.T.R. 284 (F.C.T.D.) to submit that I should not interfere with the Prothonotary's findings of law and fact unless satisfied that the Prothonotary committed some error of law, or made findings of fact in a perverse or capricious manner, or as a result of a palpable or overriding error.

[4]                I am satisfied that in the present case the application of either standard leads to the same result: the appeal should be dismissed.

[5]                A brief review of the facts giving rise to the defendant's motion is required.

[6]                The plaintiff applied for admission to Canada as a permanent resident in June of 1994 on the basis of her marriage to a Canadian citizen. Subsequently, the plaintiff entered Canada as a visitor. In 1995 the plaintiff was advised that her application for landing was rejected on the ground that she had been found to be medically inadmissible pursuant to paragraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") because she has multiple sclerosis. Notwithstanding, the plaintiff was issued a minister's permit so as to allow her to remain in Canada.

[7]                In 1997 the plaintiff commenced this action and sought, among other things:

(a)            a declaration that section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, is inconsistent with sections 7 and 15(1) of the Charter, and therefore is of no force and effect pursuant to section 52(1) of the Constitution Act 1982, and cannot be saved under section 1 of the Charter;

(b)           a declaration that the defendant's denial of her application for permanent resident status on the grounds that she is inadmissible under section 19(1)(a)(ii) of the Immigration Act, is a violation of her rights under section[s] 7 and 15(1) of the Charter;

(c)            a declaration that she is entitled to permanent resident status in Canada;

(d)           in the event that s.19(1)(a)(ii) is found to be of no force and effect under s.52(1) of the Constitution Act, 1982, and the declaration of invalidity is suspended to allow the defendant to amend the impugned provisions, a constitutional exemption from the application from s.19(1)(a)(ii);

(e)            general damages in the amount of $100,000.00 for violation of her rights under the Charter and for mental, emotional and psychological distress, pursuant to section 24 of the Charter;

[8]                The defendant moved to strike the whole of the plaintiff's claim, and in the alternative sought to strike those portions of the prayer for relief which sought declaratory relief and to stay the claim for damages until an appropriate application for judicial review was finally decided. The defendant argued that the declaratory relief sought was relief available only on an application for judicial review, and that damages are not generally available under subsection 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") where the actions at issue are taken before legislation purporting to authorize those actions is set aside under section 52 of the Charter.

[9]                The Associate Senior Prothonotary heard that motion and determined the following:

In my view, subparagraphs (b) and (c) of the prayer for relief must be struck out. Subparagraphs (a) and (d) can properly remain in an action to declare the legislation void and for damages (the "damage action"). Because I agree with the submissions of counsel for the plaintiff that the question of whether or not damages can be awarded for actions taken before legislation is found ultra vires is a matter that should be decided by the Trial Judge. I will not strike the damage action. I do not intend to stay the damage action because, in my view, the plaintiff can proceed with her action to have the legislation declared void and possibly to obtain damages whether or not the decision of the tribunal is set aside.

[10]            No appeal was taken from that order.

[11]            Following that order the plaintiff filed an amended statement of claim which sought, in substance, the following relief:

(a)             a declaration that section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, is inconsistent with sections 7 and 15(1) of the Charter, and therefore is of no force and effect pursuant to section 52(1) of the Constitution Act 1982, and cannot be saved under section 1 of the Charter;

(b)            in the event that s.19(1)(a)(ii) is found to be of no force and effect under s.52(1) of the Constitution Act, 1982, and the declaration of invalidity is suspended to allow the defendant to amend the impugned provisions, a constitutional exemption from the application of s.19(1)(a)(ii);

(c)             general damages in the amount of $100,000.00 for violation of her rights under the Charter and for mental, emotional and psychological distress, pursuant to section 24 of the Charter;

[12]            The plaintiff also brought an application for judicial review to challenge the decision not to grant landing to her and sought, as was required, an order extending the statutory time period for the bringing of that application. The defendant opposed that extension, arguing that:

If the applicant is successful in her Charter challenge by way of an action, it is more appropriate for the applicant to seek a new determination of her application for landing by a new visa officer. Seeking judicial review of a three-year-old visa officer decision is inappropriate in the overall context of the proceedings brought by the applicant.

[13]            The extension was refused in August of 1997.

[14]            On August 30, 2000, the defendant made a written offer to settle the present proceeding which offer included landing of the plaintiff. That offer was rejected by the plaintiff on September 27, 2000.

[15]            On October 12, 2000, the defendant made a further offer to settle on the following terms:

(1)            the defendant will undertake to grant permanent residence status to the plaintiff, subject to satisfactory results in the required security and criminality checks;

(2)            the Minister of Citizenship and Immigration is in the process of reviewing policy with a view to exempting family class sponsored spouses, such as the plaintiff, from the application of s. 19(1)(a)(ii) of the Immigration Act (see enclosure);

(3)            the defendant is prepared to discuss the monetary aspects of the claim;

(4)            the plaintiff will discontinue the action; and

(5)            the parties will agree not to disclose the terms of settlement to members of the public.

[16]            The status of the matter at present is that the defendant's offer has not been accepted and the defendant has not granted landing to the plaintiff.

[17]            On those facts, in my view the succinct answer to the defendant's submission that the offer to land the plaintiff renders the issues before this Court moot is that so long as the plaintiff is not landed, the defendant's unaccepted settlement offer cannot render the action moot.

[18]            Turning to the reasons of the Prothonotary, in material part he wrote that:

The Defendant now seeks an order declaring the present action to be moot based on two grounds. First, the Defendant says that the foundation upon which the proceeding was launched has ceased to exist because an offer was made in writing on August 30, 2000 to land the Plaintiff.    Secondly, the Defendant submits that the Plaintiff's action cannot succeed because an award of damages cannot be coupled with a declaration of constitutional invalidity where the Plaintiff bases her claim for damages solely on the allegedly unconstitutional actions of the government.

With respect to the first ground, despite the able argument of counsel for the Defendant, I am not satisfied that the Defendant's offer to land the Plaintiff has rendered the present action moot. In passing, the fact that the offer was conditional does not impact on my decision. As a result of the decision of the Associate Senior Prothonotary, the Plaintiff's claim has been amended to remove the proposed remedy of landing. The Plaintiff seeks instead a declaration that section 19(1)(a)(ii) of the Immigration Act is inconsistent with sections 7 and 15 of the Charter and is of no force and effect and damages allegedly suffered as a result of the application of the unconstitutional provision. In my view, the question as to whether the Plaintiff is entitled to damages because her Charter rights were violated remains a live controversy between the parties.

As for the second ground, the same issue was raised before the Associate Senior Prothonotary in the Defendant's motion to strike and was dismissed. Although the doctrine of res judicata does not apply in that the Defendant is at liberty to raise this issue at trial, it is an abuse of process for the Defendant to re-litigate the very same issue determined against her in another interlocutory motion, absent new facts. The offer of landing is not material in my view.

Moreover, I am in complete agreement with the conclusions of the Associate Senior Prothonotary reproduced above. The Supreme Court of Canada established the general rule that an individual remedy under s. 24 of the Charter will rarely be available in conjunction with a declaration of constitutional invalidity, however it left open the door for such damage claims, albeit in exceptional circumstances (see Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 at 360). I am unable to conclude on the record before me that the facts in this case do not warrant a departure from the general rule. This is a matter for trial.

[19]            I find no error of fact or law in the Prothonotary's analysis. The Prothonotary determined that the question as to whether the plaintiff is entitled to damages because her Charter rights were violated remained a "live controversy". In so doing, the Prothonotary correctly directed his attention to the test for mootness articulated by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

[20]            Before me the defendant argued that the Prothonotary misapprehended the facts in two respects. First, it was said that because the plaintiff is now able to become a permanent resident in Canada and her medical inadmissibility is no longer at issue there is no dispute between the parties. Put another way, it was said that because the declaration for landing was struck from the original claim the Prothonotary erroneously concluded that landing was no longer at issue. Second, the defendant urged that the Prothonotary erred in finding that the offer to land was not material or a new fact so that he wrongly concluded that the defendant was re-litigating the "very same issue determined against her in another interlocutory motion".

[21]            As to the first alleged error, the defendant has not satisfied me that the Prothonotary misapprehended the nature of the plaintiff's claim. While at the end of the day the plaintiff certainly may hope to be landed (and I note parenthetically to be landed by right and not by the defendant's largesse as reflected in a settlement offer), it remains that the plaintiff's action does not directly put landing in issue and is not limited to a claim for landing. Therefore, I do not see any reviewable error in the Prothonotary's conclusion that there remains a live controversy between the parties because the statement of claim raises the issues of the constitutionality of paragraph 19(1)(a)(ii) of the Act and damages for the alleged violation of the plaintiff's Charter rights.

[22]            On the point that the plaintiff's action does not directly put landing in issue, it is worthy of note that in opposing the extension of time for the bringing of an application for judicial review the defendant represented to the Court in her submissions that a proper approach to the issue of landing was that the plaintiff's Charter challenge proceed by way of an action, to be followed (if successful) by a new application for landing. Certainly at that point the defendant did not advance the position that the declaration for landing was co-extensive and subsumed in the issue of the invalidity of paragraph 19(1)(a)(ii) of the Act and the plaintiff's damage claim.

[23]            In short, for so long as the plaintiff does not accept the defendant's offer of settlement and is not landed it cannot be said that a declaration that paragraph 19(1)(a)(ii) of the Act is unconstitutional is academic to the plaintiff, or that there is no tangible and concrete dispute between the parties.

[24]            As for the second alleged error, the making of an offer to land could have no effect on the plaintiff's right to claim damages arising out of events prior to the making of the offer to land. The Prothonotary was correct in concluding that the fact that an offer of landing was made had no bearing upon the issue as to whether, as a matter of law, damages can flow from allegedly unconstitutional actions of the government.

[25]            For these reasons, the appeal will be dismissed.

[26]            At the conclusion of oral argument counsel requested the opportunity to make written submissions to the Court on the issue of costs. The plaintiff and the intervener may serve and file written submissions within seven days of service of these reasons upon them. The defendant may, in turn, file and serve its response within seven days of service upon it of the submissions of both the plaintiff and the intervener. Thereafter, any reply submissions may be served and filed within four days of service of the defendant's submissions upon the plaintiff and the intervener.

ORDER

[27]            The defendant's appeal from the order of the Prothonotary pronounced on March 30, 2001 is dismissed.

[28]            The issue of costs is reserved for further submissions by the parties.

"Eleanor R. Dawson"

                                                                                                   Judge