Date: 20070531
Docket: T-989-06
Citation: 2007 FC 573
Ottawa, Ontario, May 31,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
VITALY BORISOVICH MALKINE
Plaintiff
and
MICHEL GAGNE,
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
AND HER MAJESTY THE QUEEN,
IN RIGHT OF CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1] The Plaintiff, Mr. Vitaly Borisovich Malkine, commenced an
action in this Court by way of a Statement of Claim filed June 16, 2006. A
motion to strike the Statement of Claim was argued before Prothonotary Tabib
who allowed the motion and struck the Statement of Claim (Order dated February
9, 2007). Mr. Malkine has brought a motion to appeal the Order of Prothonotary
Tabib.
[2] Since the decision of
the Prothonotary was vital to the case, I will review her decision de novo (Merck
& Co., Inc. v. Apotex Inc., 2003 FCA 488; [2004] 2 F.C.R. 459; leave to
appeal to S.C.C. refused, [2004] S.C.C.A. No. 80).
Background
[3] As set out in his
Statement of Claim, Mr. Malkine has been unsuccessfully trying to come to
Canada as a permanent resident pursuant to the provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), or as a landed
immigrant under the former Immigration Act, since 1994. The first
refusal of admission, in 1998, was overturned in a judicial review application
(177 F.T.R. 200; 3 Imm. L.R. (3d) 122). In 2002, Mr. Malkine sought an order of
mandamus (Court File No. IMM-1749-02) which was dismissed after the
Minister of Citizenship and Immigration (the Minister) consented to put a
timeline in place for considering his application. This process resulted in a
second refusal. Upon judicial review, the Minister consented to an order
setting aside the second decision (Court File No. IMM-885-03) and an Order was
issued to that effect. Mr. Malkine’s application was then reconsidered and
refused in a decision dated January 2, 2005 and signed by Officer Gagné (one of
the Defendants named in this action). Mr. Malkine did not apply for judicial
review of that decision. As noted above, Mr. Malkine commenced this action on
June 16, 2006.
Analysis
[4] It is well-established
that a Statement of Claim should not be struck unless it is "plain and
obvious" that the Statement of Claim discloses no reasonable cause of action
(Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980). This places a
heavy burden on the moving party (British Columbia Native Women's Society v.
Canada, [2001] 4 F.C. 191 at 205, 2001 FCT 646). In addition, the following
principles (as set out in Mohiuddin v. Canada, 2006 FC 664 at para. 12, [2006]
F.C.J. No. 874 (F.C.)(QL)) are relevant to this motion:
- The facts in the Statement of Claim should
be accepted as proven (Hunt, above at 979).
- The Statement of Claim must contain
sufficient pleadings to satisfy all necessary elements of the cause of
action (Howell v. Ontario (1998), 159 D.L.R. (4th) 566 at 576 (Ont. Div. Ct.), 61 O.T.C. 336; Benaissa
v. Canada (Attorney General), 2005 FC 1220 at para. 15, [2005] F.C.J.
No. 1487 (F.C.) (QL)).
- There must be facts to support the claim; a
bare assertion of a conclusion is not sufficient (Canadian Olympic
Assn. v. USA Hockey Inc., (1997), 74 C.P.R. (3d) 348 at 350-351
(F.C.T.D.), [1997] F.C.J. No. 824 (F.C.T.D.) (QL)).
[5] Mr. Malkine brings this
action pursuant to s. 17 of the Federal Courts Act, R.S.C. 1985, c. F-7.
In considering this motion to strike, regard must be had to the interaction
between ss. 17 and 18 of the Federal Courts Act and to the question of
the availability of judicial review to Mr. Malkine. In general, the
availability of judicial review to a complainant precludes an action (Grenier
v. Canada, 2005 FCA 348 at para. 20, [2005] F.C.J. No. 1778 (F.C.A.) (QL); Prentice
v. Canada (Royal Canadian Mounted Police), 2005 FCA 395 at para. 33, [2005]
F.C.J. No. 1954 (F.C.A.) (QL); Tremblay v. Canada, 2006 FCA 90 at para.
7, [2006] F.C.J. No. 354 (F.C.A.) (QL); Mohiuddin, above at para. 17; Renova
Holdings Ltd. v. Canada (Canadian Wheat Board), 2006 FC 71 at para. 39,
[2006] F.C.J. No. 92 (QL)).
[6] Mr. Malkine acknowledges
that he chose not to proceed with a judicial review because of the frustration
of many years of rejections by the Minister and his (or her) delegates. The
problem for Mr. Malkine is that the choice of whether to proceed by judicial
review is not his to make (Grenier, above at para. 20).
[7] In argument before me,
Mr. Malkine argued that he is not seeking to overturn the decision of Officer
Gagné. Rather, he submits that the essence of the claim is that there is an
unlawful agreement or conspiracy that sought to deprive him of his ability to
gain permanent resident status in Canada. As a result of this conspiracy, he argues that
his reputation as a Russian Senator has suffered. He seeks damages arising from
the conspiracy and not as a result of a negative decision of a particular visa
officer.
[8] There are many problems
with this interpretation of the statement of claim. The biggest problem is that
this description ignores the very relief that Mr. Malkine has claimed. If
successful in this action, Mr. Malkine would, in effect, obtain a declaration
that the January 2, 2005 decision was “improperly reached” and a declaration
that he is admissible to Canada under the IRPA.
That is precisely what he could have obtained through a successful judicial
review. In spite of couching his submissions in terms of liability for a
conspiracy, Mr. Malkine is asking this Court to overturn the January 2, 2005
decision; no other conclusion is possible. Mr. Malkine’s claim is no more than
a collateral attack on the January 2, 2005 decision and those that preceded it.
[9] To support my conclusion
in this regard, I need only turn to the very substance and words of Mr.
Malkine’s Statement of Claim. Specifically, he could have sought to have the
decision of Officer Gagné overturned on the basis that:
- The January 2, 2005 decision was
“improperly reached” (Statement of Claim, para. 1(a));
- The opinions, facts and conclusions
expressed in the decision “regarding any alleged misrepresentation or
misconduct of the Plaintiff either at the immigration interview or in any
documentation supplied by him were not true and were neither factual nor
inaccurate, and were reached by the said Defendant Gagné without providing
procedural fairness to the Plaintiff . . .” (Statement of Claim, para.
1(b));
- “[T]he statements . . . as to the Plaintiff
being either a criminal, associated with any criminal act or being
associated with any criminal or associated with any organized crime in any
way whatsoever, were not true, neither factual nor accurate and were
reached by the said Defendant Gagné without providing procedural fairness
to the Plaintiff and lacked either factual or evidentiary substance”
(Statement of Claim, para. 1(c));
- Officer Gagné “acted in concert in the
processing of the Plaintiff’s application for a permanent residence visa
both unfairly and in a manner that was patently unreasonable” (Statement
of Claim, para. 1(d)); and
- “[T]he refusal to grant the Plaintiff a
permanent resident visa was the result of an unlawful agreement” (Statement
of Claim, para. 1(f)).
Assuming the allegations to be true (which I
must do for purposes of a motion to strike), these would all have constituted
grounds upon which the January 2, 2005 decision could have been overturned.
[10] Some of these claims are
expanded on in the Statement of Claim. But, even on reading the balance of the
Statement of Claim, I can find little that could not have been considered in
the context of a judicial review. A good example of this is para. 72, where Mr.
Malkine states:
[…]
Defendant Gagné was also under instructions to refuse the Plaintiff in that the
Plaintiff’s answers to the questions were unfairly received by the Defendant
Gagné who being under the said instruction had bias to refuse the application
by turning whatever the Plaintiff said into yet another reason to refuse the
Plaintiff’s application.
In effect, Mr. Malkine is arguing that Officer
Gagné fettered his discretion or that there was a reasonable apprehension of
bias. These are clearly grounds upon which the January 2, 2005 decision could
have been overturned.
[11] Further, much of the
damages claimed to have been suffered by Mr. Malkine relates to the fact that
he has been denied permanent resident status in Canada. For example, in para. 78 of the Statement
of Claim, he states that he has been unable to directly manage his investments
in Canada. This is a direct
result of the decision declaring him to be inadmissible. He cannot now
re-litigate matters which could have been raised on judicial review (see, Miller
v. Her Majesty the Queen, 2006 FC 1446 at para. 27).
[12] In argument before me,
Mr. Malkine appears to have modified his position and does not now argue that
he seeks admission to Canada. That, however, is not
what is stated in the Statement of Claim; indeed, admission to Canada appears, on my reading
of the Statement of Claim, to be his primary concern.
[13] Mr. Malkine now
emphasizes that his reputation as a Russian Senator has suffered because of the
repeated refusals he has received. However, the only reference to his
reputation in the Statement of Claim (para. 80(b)) is nothing more than a bare
assertion unsupported by any facts.
[14] One of the arguments
raised by Mr. Malkine is that he was not aware of the alleged conspiracy until
long after the decision of Officer Gagné. This is not specifically pleaded in
the Statement of Claim. However, even if it had been, that would not have given
Mr. Malkine the automatic right to proceed by way of an action. It is possible
that, upon discovery of this information (assuming that there was some specific
information or something more than a mere suspicion), Mr. Malkine could have
sought an extension of the time for bringing an application for judicial
review. Once again, I state that Mr. Malkine has no right to choose to proceed
by way of s. 17 of the Federal Courts Act rather than by judicial
review.
[15] In sum, this is a clear
case of a collateral attack on a decision that could have been the subject of a
judicial review.
[16] Mr. Malkine claims
damages; damages are not available to Mr. Malkine on judicial review.
Accordingly, I turn my mind to the claim of damages. In her Order, the
Prothonotary also considered this aspect of Mr. Malkine’s Statement of Claim. I
have reproduced the comments of Prothonotary Tabib on this question in full
since, having reviewed the submissions of the parties and considered the
question de novo, I am in full agreement with her reasoning and adopt it
as my own:
What
is left of the statement of claim are the allegations of paragraphs 10 to 68,
and the following paragraphs of the statement of claim, going to the damages
claimed and their relationship (such as it can be discerned) to the alleged
wrongdoing:
“78.
(…) As a result of the finding of misrepresentation by the Defendant Gagne, the
Plaintiff has been prohibited from entering Canada to visit with his son for
two years from the date of the said interview and the said “Letter”. Moreover,
because of the said finding unlawfully reached by the Defendant Gagne, the
Plaintiff has been unable to directly manage his investments in Canada.
79.
The Plaintiff states and the fact is that it now become apparent that resort
to the Federal Court was nothing more than a useless endeavour since the only
relief that could be provided by that Court was to send the matter back for
further re-determination and that the ensuing delay in getting to the Court
would be both substantial and prejudicial to the Plaintiff since the matter had
been proceeding as of 1994.
80.
The Plaintiff states and the fact is that by reason of the unlawful actions
of the Defendants as particularized, he has undergone:
a. A great deal of expense,
trouble, time, and interruption of his business activities, as well as legal
costs and other damages related to thirteen years of pursuing a futile
proceeding;
b. He has suffered damage through
[sic] his reputation by reason of the findings of criminality which have
severely prejudiced him in the carrying on of his business; and
c. The loss of monies with
respect to his inability to enter Canada to supervise his business investments
has severely affected his livelihood in Russia.
81.
The Plaintiff therefore claims damages in the sum of $36,000,000.00.”
The damages alleged to have been suffered
by the Plaintiff in the last part of paragraph 78, of being prohibited from
entering Canada and being unable to directly manage his
investment, are clearly said to flow from the determination of January 2, 2005.
As that determination has not been challenged on judicial review, it remains
valid and lawful, and no damages can be claimed or awarded as a result.
Paragraph 79 does not set out a specific
claim for damages. As was the case for paragraphs 69 to 78, that paragraph’s
allegation of the futility and uselessness of the judicial review process is
premised on the alleged unlawfulness of the decision of January 2, 2005, and
cannot form the basis of a claim for damages. Likewise, paragraph 80(a) claims
for expenses, trouble, time and interruption of the Plaintiff’s business
activities, legal costs and other damages related to “thirteen years of
pursuing a futile procedure”. The Court has recognized, in Samimifar v.
Canada (MCI), [2006] F.C.J. No. 1626; 2006 FC 1301 that in appropriate
circumstances, a claim for Charter damages or damages for intentional torts may
lie against the Crown for delay in processing a claim, and such a claim might
arguably be open to the Plaintiff (if properly pleaded) in respect of those
processes and decisions that were invalidated in judicial review proceedings. However,
the claim, as clearly set out in paragraph 80(a), is not for a delay in
processing an application but for the inconvenience and costs of the entire
process on the basis that it was futile (implicitly, because the ultimate
result was allegedly and unlawfully preordained). Considering that the decision
of January 2, 2005 stands as a valid determination of the Plaintiff’s
inadmissibility to Canada, the claim for damages as framed must
fail.
Paragraph 80(b) claims for damage to the
Plaintiff’s reputation caused by “findings of criminality”. Insofar as those
findings are alleged to be contained in the decision of January 2, 2005, they
cannot be claimed to be wrongful or negligent.
The only other decision which allegedly
contained finding of criminality and might therefore remotely form the basis of
a claim for damage is the decision resulting from the “third process”. As
mentioned above, the allegations of wrongdoing related to that process are
limited to allegations of breach of statutory duty, which is not recognized as
a nominate tort (see arguments and jurisprudence set out at paragraphs 51 to 59
of the Defendants’ written representations). In order for the actions of the
visa officer to amount to an actionable tort, they would need to amount to the
tort of misfeasance in public office or unlawful conspiracy, for which specific
allegations of intent to cause damage to the Plaintiff, or of knowledge that
damage would be caused coupled with knowledge of illegality must be pleaded
(see Hunt and Carey v. Canada Inc., [1990] 2 S.C.R. 959 and other
arguments and jurisprudence at paragraphs 61 to 65 of the Defendants’ written
representations). The statement of claim simply makes no such allegation, and
the Plaintiff’s counsel, at the hearing, did not suggest that any specific
amendments could or would be made to cure this fatal defect. I therefore find
that the statement of claim discloses no reasonable cause of action for the
claims made in paragraph 80(b).
Finally, paragraph 80(c) presents a claim
for damages flowing directly from the Plaintiff’s inability to enter Canada. This claim cannot succeed, as the statement of claim makes
it plain that the Defendants’ inadmissibility results from the valid and
subsisting decision of January 2, 2005.
[17] In conclusion, I am in
complete agreement with Prothonotary Tabib that this action should be struck
without leave to amend.
[18] Mr. Malkine is not
without a remedy. It may be open to him to commence a new action provided that
the pleadings consist of essential facts grounding a cause of action that could
not have been brought in an application for judicial review. In addition, Mr.
Malkine may now re-apply for permanent residence or a temporary resident visa.
In the event that one of those applications is refused, I see nothing that
would prevent Mr. Malkine from raising, in an application for leave and
judicial review, the arguments and seeking remedies (other than damages) that
have been part of his statement of claim.
[19] For these reasons, the
motion for appeal of the decision of Prothonotary Tabib is dismissed with costs
to the Defendants.
ORDER
This
Court orders
that:
1. The motion of the
Plaintiff is dismissed;
2. The decision of
Prothonotary Tabib is affirmed (including as to costs);
3. The Plaintiff’s
Statement of Claim is struck and the action dismissed; and
4. Costs of this motion of
appeal are awarded to the Defendants.
“Judith A. Snider”
_________________________
Judge
Email this Content