Date: 19980618
Docket: IMM-4189-97
IMM-418-98
BETWEEN:
INTERNATIONAL CHARTERING SERVICES LTD.,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
1 These reasons arise out of the Motion of the Respondent, the Minister of Citizenship and Immigration (the "Minister") to strike out the Application of International Chartering Services Ltd. ("International Chartering") for Leave and for Judicial Review of a decision to assess International Chartering for the expense of dealing with stowaways who came to Vancouver aboard the Espirito Santo in May of 1992.
2 The Application to strike out is unsuccessful for the Judicial Review Application of International Chartering is far from being an exceptional case which, in the words of Mr. Justice of Appeal Strayer is "so clearly improper as to be bereft of any possibility of success" (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. [1995], 1 F.C. 588 at 600). Rather it is an application which ought to be tested at a full hearing. I now consider this in more detail, beginning with some relevant background.
BACKGROUND
3 In May of 1992 the Brazilian cargo vessel Espirito Santo arrived in Vancouver from Kaoshiung, Taiwan, complete with four stowaways. The ship, owned by Navegacao Mansur S.A. of Brazil was on charter to Medmar Lines Inc. of Piraeus, Greece. International Chartering, a British Columbia company, in the business of providing agency services to tramp vessels (as opposed to ships coming to British Columbia on a regular schedule) were agents for the charterers. The charterers, Medmar Lines, instructed International Chartering to prepare the usual general customs declaration for the ship owners, but that and the forwarding of advice from Canadian Immigration, to the Brazilian owners, would appear to be the only connection which International Chartering had with the Brazilian owners.
4 In any event the four stowaways were detained aboard by order of the Canadian Immigration authorities and were subsequently ordered to report ashore to the Immigration authorities. The vessel sailed without them.
5 Subsequently, by letters of 28 August 1992, the Canada Immigration Centre in Vancouver advised International Chartering that as a transportation company it was liable for deposits of $5,000.00 for each of the stowaways under Section 92(2) of the then current Immigration Act (the "Act"). International Chartering, which took the position that it was neither an agent for the ship owner nor a transportation company, forwarded the demands to owners, who have not paid.
6 In July of 1997, relying upon the 1992 demands for deposits the Crown issued certificates, pursuant to Section 92.1 of the current Act (a section which was not in effect when the stowaway incident arose) which it filed in the Federal Court: a certificate on filing has the same effect as if it were a judgment of the Court. On the basis of the certificates the Crown obtained writs of execution against International Chartering. The present accounts of Citizenship and Immigration Canada, for dealing with the stowaways, which include the cost of returning two of them to Kenya and for which the Immigration authorities hold International Chartering responsible as a transportation company, amounts to some $40,000.00, as set out in billings of 1 April 1998.
7 At this point International Chartering has put up security in the Court and has brought this proceeding for Judicial Review, specifically for declarations that the certificates are invalid and that the whole procedure does not apply to International Chartering.
MOTION TO STRIKE OUT
8 The Respondent submits that the Court lacks jurisdiction to hear this application for review by reason of an absence of any decision, as such, which would make review under Section 18.1 of the Federal Court Act possible. The Respondent refers to Rule 419 as applicable on this motion, which is now Rule 221. It would be more appropriate to refer to Rule 208, which allows an objection to the jurisdiction of the Court and pursuant to which a motion may be supported by affidavit: see for example Cairns v. Farm Credit Corp. (1992), 2 F.C. (T.D.) 115 and Mobarakizadeh v. Canada (1994), 72 F.T.R. 30, both decisions of the Trial Division, for the proposition that what is now Rule 208 is to be preferred, but that it is not improper to challenge jurisdiction under what is now Rule 221.
9 The Minister's position, reduced to its essentials, is that he did not render a decision or order which is subject to review, but merely filed certificates, pursuant to Section 92.1 of the Act. The mere act of filing the certificates is said to be procedural or administrative and does not constitute a decision or order of a federal board, commission or other tribunal for the purposes of review pursuant to Section 18.1 of the Federal Court Act. The Respondent goes on to submit that, if there is an irregularity in the assessment, the proper remedy is not one of judicial review, but rather should have been by way of a protest by International Chartering, when it first received the demands in 1992, and then by way of an action to quash or set aside the certificate.
10 The Applicant raises a number of interesting points in reply including that it was neither a transportation company nor the agent of a transportation company at the relevant time and that the Minister, in issuing certificates, relies on legislation which was neither in force in 1992 nor, when enacted, of any retroactive effect.
CONSIDERATION
11 The simplest analyses is that the proper remedy to deal with a summary proceeding is not to move to have it summarily struck out, but rather to press on to a hearing date. An alternate approach is to point out that the certificates might well be nullities, or perhaps more correctly unlawful, and if that is the case the Applicant's two proceedings certainly have a chance of success.
12 Dealing with the first alternative, Mr. Justice Muldoon in Kahalil Hasam v. The Attorney General of Canada, an unreported 11 May 1998 decision in Actions T-316-98 and T-379-98, took the approach that one ought to give effect to the main principle in the David Bull case, that "the proper way to contest a groundless originating motion is to argue the point at the hearing of the motion," (David Bull, supra, at page 597).
13 In the present instance, to accept the Respondent's argument for dismissal, necessarily requires the acceptance of a number of hotly contested propositions including as to the status of International Chartering as a transportation company and as to permissible procedures, particularly as to the applicability of certificates filed with the Federal Court, a remedy which, as I will later point out, did not exist at the relevant time. If such a remedy did not exist the filing of certificates must have been not an administrative or procedural step, but a decision of someone, presumably the Minister. An application containing so much in the way of conflicting evidence and views ought not to be summarily struck out, for it may be disposed of at a review hearing in a summary manner. As Mr. Justice Muldoon pointed out in Hasam (supra) at page 2, "the respondent should focus on the hearing if it or she or he believes that the application will be dismissed.".
14 The Court has, however, picked up and applied the dicta of Mr. Justice of Appeal Strayer in David Bull at page 600, a part of which I have already quoted, but will refer to in its fuller context. At pages 596 and 597 Mr. Justice of Appeal Strayer explained the absence of a provision in the Federal Court Rules for striking out motions:
"The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. Even though it is important both to the parties and the Court that futile claims or defences not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading under Rule 419. Further, the process of striking out is much more feasible in the case of actions because there are numerous rules which require precise pleadings as to the nature of the claim or the defence and the facts upon which it is based. There are no comparable rules with respect to notices of motion. Both Rule 319(1) [as am. by SOR/88-221, s. 4], the general provision with respect to applications to the Court, and Rule 1602(2) [as enacted by SOR/92-43, s. 19], the relevant rule in the present case which involves an application for judicial review, merely require that the notice of motion identify "the precise relief" being sought, and "the grounds intended to be argued." The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appeal and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of interlocutory motion to strike.".
However, at page 600 we come to the following comments:
"For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the "gap" rule, as if this were an action. This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.".
Here we have the view that an originating notice of motion might be dismissed in an instance in which it "is so clearly improper as to be bereft of any possibility of success". This dicta of Mr. Justice of Appeal Strayer is an indication that there is, on occasion and in an exceptional case, a need for a procedure by which to strike out an originating motion. One might even argue that there is some recognition of this in the current wording of the Rules bearing on striking out. Rule 419(1) referred to the striking out of a pleading: a motion is clearly not a pleading. While new Rule 221(1) still refers to the striking out of a pleading, the term "pleading" is now more broadly defined than in the pre-1998 Rules. It is defined, in Section 2, as:
"... a document in a proceeding in which a claim is initiated, defined, defended or answered.".
This would seem broad enough to include an originating notice of motion. However Rule 221, governing striking out itself, is included in Part 4 of the Rules: Rule 169 provides that Part 4 does not apply to applications. Thus one is left with the exceptional instance test of an improper originating notice of motion bereft of any possibility of success. Counsel for the Respondent submits that this is the case in the present instance. This leads to the second basic approach, that of jurisdiction, the issuance and effect of the certificates and whether this is an exceptional case in which the application ought to be struck out.
15 When this matter first arose, in 1992, the Immigration Act definition of a transportation company was narrow:
"'Transportation Company' means a person or group of persons carrying or providing for the transportation of persons ... and includes any agent thereof ... so carrying or providing for the transportation of persons; (Immigration Act, 1976-77, Chap. 52, s. 2, being Chap. I-2, R.S.C. 1985).".
On the material it is arguable and perhaps even a fact that International Chartering, which owned no vessels, which did not engage in the transporation of passengers and which was an agent for a charterer, not the agent for a transportation company, was not a transportation company as defined in the Act at the time. To elaborate, the Espirito Santo was not a passenger carrying ship, but rather a cargo vessel. There is no evidence that the Applicant was in the business of carrying passengers or, for that matter, of transporting anything. Here I would also refer to Jiang Sheng Co. Ltd. v. The Trans Aspiration, a 14 April 1998 decision in Action A-442-97, in which the Federal Court of Appeal notes that carriage is generally, absent a partnership or joint venture agreement, not a joint venture between charterer and owner. There is no evidence of any such partnership between the charterer and the owner of the Espirito Santo. It is arguable and indeed doubtful that the charterer of the Espirito Santo was a carrier or was transporting anything. Thus it is difficult to imagine that the Applicant, as agent of the charterer, is an agent of a transportation company.
16 Returning to the statutory rights that the Minister had in 1992, the Minister's remedies consisted of making a direction to a transportation company as to a deposit (Section 92(2)), failing which an immigration officer, at the direction of the Minister, might seize and hold the vessel until the master or transportation company paid the assessment (Section 92(4)). The Minister, at the relevant time, June of 1992, had no remedy for an ignored demand for security other than to seize the ship.
17 It was not until February of 1993, by way of Chapter 49 of the Revised Statutes of Canada, 1992, well after the present stowaway incident took place, that Section 92.1 of the present Immigration Act came into effect, allowing the Minister to issue a certificate of the sort issued in the present instance. Section 119 of the Act, R.S.C. 1992, Chap. 49, a transitional provision, clearly prevents the Minister from a retroactive application of the remedy of a certificate:
"The financial liability of a person under any provision of the Immigration Act amended by this Act that arises from any act or omission done by the coming into force of the amendment to that provision shall be determined as though the amendment were not in force.".
18 Counsel for the Respondent does not leave matters here, but goes on to submit that the issuance of the certificates is not in any way a ministerial decision. Counsel refers to Singh v. Canada (1994), 27 Imm. L.R. (2d) 176 at 178 - 179, for the proposition that the act of certifying a debt as owing is not the making of a decision, but merely a step in a debt collecting procedure. But here the procedure, by reason of Section 119 of the present Immigration Act, did not exist so far as the claim against International Chartering arising out of the Espirito Santo stowaway incident in May of 1992. The certificates thus become not merely a procedure, but some form of an ad hoc collection remedy invented and applied by the decision of someone in the immigration department, presumably the Minster.
19 Clearly, on this possible analysis, the Minister made an improper decision and wrongly issued the certificates. Such certificates would be nullities. Now you cannot move to quash a nullity, however the courts are always willing, if there is some purpose in doing so, to grant a declaration to the effect that a decision is totally invalid or, as De Smith, Woolf & Jowell on Judicial Review of Administrative Action put it in the 1995 edition:
"There can be no purpose in purporting to keep alive a decision which is devoid of all content. Subject to there being some purpose in obtaining the decision of a court, if a court comes to the conclusion that a decision is totally invalid or of no effect, it will normally readily be prepared to grant a declaration to this effect. Strictly speaking there is nothing to be achieved in the case of a decision which is a nullity in making an order of certiorari. You cannot quash something which is already a nullity. However, in practice adopting a pragmatic approach and so avoiding becoming involved in issues as to the quality and status of an invalid administrative decision, the court will be prepared to make an order of certiorari without resolving the complex issue as to whether or not this was strictly necessary." (page 812).
20 On this analysis the Applicant's proceeding ought not to be dismissed for the Respondent has not met the test set up by Mr. Justice Stayer in the David Bull case, of the proceeding being "so clearly improper as to be bereft of any possibility of success", to which I referred earlier. This is the sort of analysis, the testing of whether a judicial review application might be struck out in reliance upon the David Bull case, that Mr. Justice Nadon used in The Association of Canadian Distillers v. The Minister of Health, an unreported decision of 4 June 1998 in Action T-338-98. Mr. Justice Nadon notes that the Court of Appeal is not encouraging respondents to bring motions to strike out originating notices of motion, but rather, even where the applicant appears to have a weak case, to file a respondent's record and to argue the merits at the eventual hearing, for "to adopt any other procedure would defeat one of the clear purposes of the judicial process which is designed to provide the parties with a summary procedure to deal with the issues raised in the proceedings." (page 4).
CONCLUSION
21 Counsel for the Respondent made a number of involved submissions as to why the Application of International Chartering ought to be struck out at this juncture. I have written about those with some possible substance. I have concluded that the request for Judicial Review by International Chartering is not one which "is so clearly improper as to be bereft of any possibility of success". It is not the exceptional case referred to by Mr. Justice of Appeal Strayer in his reasons in the David Bull case.
22 Counsel both made submissions as to costs. Counsel for the Applicant expressed a real concern as to the propriety of the motion and the resulting expense, particularly given the chastisement given the Respondent in the David Bull case. He felt the motion ought not to have been brought and that a lump sum assessment for costs, payable forthwith, would be an appropriate award. Counsel for the Respondent felt it was a novel and unique motion with merit.
23 The difficulty I have with this motion, as an exceptional case within the exception in David Bull, is that to accept the Respondent's argument for striking out one must ignore much of what is set out in the material in support of the originating notice of motion, the plain wording of the Immigration Act as it stood from time to time and the submissions which counsel for the Applicant was bound to make and did make. I am certain this is not the sort of judicial review application that ought to fall within the David Bull exception to the general rule that judicial review matters ought to be decided on their merits in a summary manner after a full hearing. The Applicant will have its costs, in any event, at the end of the day.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
18 June, 1998
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