Date: 20091013
Docket: IMM-1069-09
Citation: 2009
FC 1024
Ottawa, Ontario, October 13, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ZYMRYTE
CUNI
and TIGRAN CUNI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
June 28,
2008 is a day that Zymryte Cuni will never forget. That is the day she last saw
her husband. That was the day she and her infant son Tigran arrived in Canada. They filed a refugee claim.
Her husband was supposed to join them but was detained in England and never made it here. Relying
on misinformation, she withdrew their claim for refugee protection in an
attempt to reunite with her husband. However, she could not leave Canada because she had no travel
documents. She attempted to reinstate their claim. Her application was rejected
by the Refugee Protection Division (RPD) of the Immigration and Refugee Board.
This is a judicial review of that decision.
THE FACTS
[2]
The
Applicant and her husband come from Kosovo, a part of the former Republic of Yugoslavia which declared its
independence
in 2008.
[3]
The family
was flying to Toronto via London. They kept apart as Ms. Cuni
and their son were flying on false German passports. It is not known what
papers her husband was using. In any event, he was turned back in London and is said to be in hiding
in Albania.
[4]
Ms. Cuni’s
evidence, which was before the RPD, and which in no way has been contradicted, is
that it took her some time to trace her husband. She wanted to be reunited with
him.
[5]
She went
to the RPD’s office in Toronto and was informed that in
order to leave the country she had to withdraw her refugee claim. She did so.
Perhaps she thought that she would then be removed from Canada and that the Canadian
authorities would arrange travel documents for her. However there has been no effort
on the authorities’ part to remove her. The record contains no information as
to what efforts she has made to obtain travel documents with Canada’s aid, or directly from
Kosovo, or the United Nations.
[6]
Realizing
she was not then in a position to join her husband she sought to have her
refugee claim reinstated. It was only at this juncture that she obtained the
benefit of legal counsel.
THE LAW
[7]
This case
is governed by Rule 53 of the Refugee Protection Division Rules which
provides that the division “must allow the application if it is established
that there was a failure to observe a principle of natural justice or if it is
otherwise in the interests of justice to allow the application.”
[8]
The essence
of the decision of the RPD is that “the arguments advanced by counsel on the
Application do not disclose any breach of natural justice. The claimants
withdrew their claims voluntarily. The fact that the claimants did not have a
hearing in these circumstances does not amount to a breach of natural justice.
In this regard, the merits of the claims, which have not been tested, are not
relevant.”
[9]
The
information given to Ms. Cuni by someone at the RPD office on Victoria Street in Toronto was incorrect. She did not need to
withdraw her refugee claim in order to leave the country. Her problem is that
without proper travel documents no airline will accept her. Had she had a valid
passport, she could have left the country without notifying the RPD, which in due
course would have come to the conclusion that she had abandoned her claim.
[10]
The RPD has
missed the point. She was misled by the RPD and it is in the interests of
justice that this matter be sent back for re-determination and re-instatement.
[11]
It matters
not that the person at the desk at the Victoria Street office was undoubtedly acting in good
faith and was not in a position of authority. How was Ms. Cuni to know that? The
operating procedures manuals clearly state an Applicant is usually acting under
the belief that she is dealing with the Government.
[12]
There are
few cases on point. The two cited by the Respondent turn on their own facts and
are not helpful (Sathasivam v. Canada (Minister of Citizenship and Immigration),
2004 FC 438 and Ohanyan v. Canada (Minister of Citizenship and Immigration), 2006 FC 1078).
[13]
It is a
fact of life that each of us deals with bureaucrats almost on a daily basis,
and that we rely on the information provided. Sometimes, as in this case, we
are provided with incorrect information upon which we act. In MacKenzie v.
Canada (Attorney General) 2007 FC 481, 2007 FCJ No 645, 311 FTR 157 I had
occasion to refer to negligent misrepresentation.
[14]
The decision of the House of Lords in Hedley
Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465,
which has its following in Canada, stands for the proposition that a negligent,
though honest, misrepresentation may give rise to an action in damages for
financial loss, quite apart from any contractual or fiduciary relationship, as
the law will impose a duty of care when one seeks information from another who
is possessed of a special skill, trusts that person to exercise due care, and
that person knew or should have known that reliance was being placed on that skill
and judgment. Although this is not an action in damages the same fundamental
principle holds true.
[15]
The relationship between one whom at the time was more or less
stateless and the government of the place in which she finds herself is, or
should be, special. In Lloyds Bank v. Bundy, [1975] 1 Q.B. 326, Sir Eric
Sachs discussed special relationships, more
particularly confidential relationships, which may arise in unusual and widely
differing sets of circumstances. He had thought it neither feasible nor
desirable to attempt to draw demarcation lines around that relation. He said at
page 341:
:Such
cases tend to arise where someone relies on the guidance or advice of another,
where the other is aware of that reliance and where the person upon whom
reliance is placed obtains, or may well obtain, a benefit from the transaction
or has some other interest in it being concluded.
[…]
Confidentiality, a relatively little used word, is being here adopted,
albeit with some hesitation, to avoid the possible confusion that can arise
through referring to “confidence.” Reliance on advice can in many circumstances
be said to import that type of confidence which only results in a common law
duty to take care—a duty which my co-exist with but is not coterminous with
that of fiduciary care.
[16]
Ms. Cuni
relied on the advice she was given. She had reason to believe that the information
was correct, and she acted upon it to her detriment. It is in the interests of
justice that someone not be led astray because of faulty advice given by an
employee of the RPD.
[17]
Although
not before me, may I say that the human issue here, as opposed to the legal
one, is family reunification. If Ms. Cuni would prefer to join her husband in Albania or wherever, should help not
be forthcoming? If she leaves Canada she is now on notice she is
abandoning her refugee claim.
ORDER
THIS COURT ORDERS that the application for judicial
review is granted. The matter is referred back to another decision maker to be
dealt with in accordance with the reasons given. There is no question of
general importance to certify.
“Sean Harrington”
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