Date: 20100608
Docket: T-639-10
Citation: 2010 FC 617
Edmonton, Alberta, June 8, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ZOLTAN
ANDREW SIMON
Plaintiff
and
HER
MAJESTY THE QUEEN IN THE RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1]
The
defendant is seeking an order that the statement of claim be struck, without
leave to amend. The defendant also sought alternative remedies in the event
this relief was not granted. I have concluded that the statement of claim must
be struck without leave to amend and, accordingly, the alternative remedies
need not be explored.
[2]
In January
1999 the plaintiff sponsored Margarita Reyes, his then wife, and her two sons
as permanent residents of Canada. He signed a sponsorship
agreement with her whereby he undertook to provide her essential needs. He is
adamant that he had no such agreement with Canada.
[3]
In June
2000, she and her sons left him and they began to receive social assistance
benefits from the Province of British Columbia. Mr. Simon was unaware of these
payments or that the Province of British Columbia held him
as their sponsor liable to repay them until some time in 2007.
[4]
In 2008
and again in 2009 the Province of British Columbia
garnisheed funds standing to his credit in his tax account with Revenue Canada.
[5]
Mr. Simon
has since remarried and he sought to sponsor his new family to come to Canada. That application was
refused because Mr. Simon was found to be in default of his previous
undertaking. That application was unsuccessfully appealed to the Immigration
and Refugee Board of Canada, Immigration Appeal Division. This Court refused
leave to judicially review that decision.
[6]
At the
hearing of this motion, Mr. Simon was clear that he is not seeking to challenge
the decisions made by the immigration authorities; rather he is seeking to
challenge the “financial decisions.”
[7]
When asked
to explain specifically what he was seeking through this action, he said that
he was seeking
a. A declaration that he has no
“effective debt” owed in connection with the undertaking he gave in January
1999;
b. A declaration that his current
wife and her son are entitled to visas to visit him in Canada; and
c. His costs.
[8]
Mr. Simon
argues that there is no “effective debt” owed by him because there was no
agreement between him and the Government of Canada to repay the payments that were
made by British
Columbia, that
the payments to Mrs. Reyes were excessive and improper, and that, in any event,
the amounts claimed from him are statute barred. In short, his position is
that he has never owed anything to the Province of British Columbia on account of its
payments to Mrs. Reyes and that it improperly garnisheed his tax account with
Revenue Canada.
[9]
The
question of whether he had an agreement with Canada may or may not have been determined
between Canada and himself by the decisions of the IAD and this Court in IMM-6265-09;
however, it is clear to me that his current dispute is not directly with the
Federal Government but with the Province of British Columbia. In this respect it is noted that he commenced litigation
in the British Columbia Superior Court against both the Province of British Columbia and the
Government of Canada with respect to these financial claims. He says that the
action has been discontinued by him but the Court record shows otherwise. The
state of that action is irrelevant to this motion.
[10]
What is
critical is that the plaintiff’s financial dispute is not directly with Canada and the real dispute he has
does not fall within the jurisdiction of this Court. In my view, he should be
seeking his declaration and repayment of the funds taken illegally, in his
view, against the Provincial authorities in the B.C. Superior Court, either in
the action already commenced or in a new one.
[11]
The second
remedy he seeks in this action is a declaration that his new family may be
issued visitors visas. There is nothing in the record that indicates that any
application for a visitor visa has been made, let alone denied. Counsel for the
respondent informed the Court that the government has no record of any such
application and Mr. Simon did not suggest otherwise. Accordingly, although a
remedy might well be available in this Court if the visa applications are
denied, there is currently no foundation for the remedy sought.
[12]
Accordingly,
for these reasons, the motion is granted and the statement of claim is struck
without leave to amend.
[13]
Both
parties sought costs in the amount of $500.00 which, in my view, is a
reasonable amount. Costs of $500.00 are awarded to the defendant.
ORDER
THIS COURT ORDERS that:
1. The statement of claim filed
in this action is struck, without leave to amend; and
2. The defendant is awarded its
costs fixed at $500.00, inclusive of fees, disbursements, and taxes.
"Russel
W. Zinn"
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