Paszkowski v. Canada, docket IMM-5510-97

Date: 19980122

Docket: IMM-5510-97

BETWEEN:

     RYSZARD PASZKOWSKI

     Plaintiff

AND:

     HER MAJESTY THE QUEEN,

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     and THE ATTORNEY GENERAL OF CANADA

     Defendants

     ORDER AND REASONS FOR ORDER

ROULEAU, J.

[1]      This is an application for an interlocutory injunction pursuant to Rule 469(1) of the Federal Court Rules pending the resolution of an action brought by the applicant by way of Statement of Claim filed December 30, 1997. The claim seeks a declaration that the applicant was granted landed immigrant status on December 11, 1984 and has the right to enter and remain in Canada.

[2]      In early January of 1998, Nadon J. of this Court granted an interim injunction granting a stay of deportation proceedings against the applicant. Subsequent to that hearing, and by way of telephone conference, he further ordered that all affidavit evidence as well as the respective Motion Records of the parties be filed no later than January 15, 1998.

[3]      On that date, the Crown filed the affidavit of Mr. Anthony Hannaford and indicated that Her Majesty would not be filing any further affidavits. However, on January 20, 1998, the Crown filed its Motion Record and included therein the affidavit of Mr. Robert Ferguson sworn November 5, 1996, together with a group of exhibits attached thereto.

[4]      At the commencement of the hearing before me, counsel for the applicant objected to the late filing of this affidavit material, on the grounds that it was not in compliance with the order of Nadon, J. He further submitted that a considerable portion of the respondent's Factum was based on this material. The applicant maintained that due to the dilatoriness of the material being filed, it would be prejudicial to his client to allow it in.

[5]      Upon hearing submissions, I ordered that Mr. Ferguson's affidavit and all exhibits attached thereto be expunged. In addition, I ordered that paragraphs 4 through 11, as well as paragraphs 16 through 21 be struck from the respondent's Factum. The Crown was simply unable to provide me with any satisfactory explanation justifying its behaviour.

[6]      I then turned to the merits of this application. I directed from the Bench that I was satisfied that there was a serious issue to be tried and that counsel need only address the issues of irreparable harm and balance of convenience.

[7]      Counsel for the Crown nevertheless raised a question with respect to the Court's jurisdiction arguing that it was not within the Court's purview to grant the relief claimed since this was an immigration matter and accordingly the proper procedure was by way of judicial review. I do not disagree with the line of cases upon which counsel relied in support of his argument. However, these cases are clearly distinguishable from the present one. They involved matters where decisions had been rendered by an administrative tribunal pursuant to the Immigration Act and were therefore subject to the Immigration Rules which require that they proceed by way of judicial review after having obtained leave. That is not the situation before me. Here, there is no decision being challenged that has not already been dealt with in previous proceedings. The issue in this action is the applicant's permanent status, a question which has never been debated nor has any decision ever been rendered from which one could seek judicial review. The only remedy available to Mr. Paszkowski therefore is by way of Statement of Claim.

[8]      With respect to irreparable harm, the applicant argued that there was some threat to his safety and well being should he be returned to Poland. In response, the Crown relied upon the affidavit of Mr. Hannaford to which is attached a letter from the First Secretary of the Polish Embassy in Canada asserting that if the applicant were returned to Poland he would not be in any physical danger, that he would be provided with Polish travel documents and that he would not be prosecuted, since any allegations of wrong doing on his part are now prescribed by law.

[9]      On the question of balance of convenience, counsel for the applicant points out that Mr. Paszkowski has been a resident of this country for the past twelve years, is married and his wife has been granted refugee status, that they have two sons who were born in Canada, that over the years he has been granted work permits and has been employed throughout, and that there has been no suggestion of wrong doing, nor is he a threat to the security of Canada.

[10]      The Crown's response was that to return him to Poland would not impede the further process of this proceeding and should it ultimately be determined in his favour, Mr. Paszkowski would be at liberty to return.

[11]      Even if I were to accept that should the applicant be returned to Poland there exists no threat to his security or freedom and that should the outcome of this litigation prove to be favourable to him, he would be allowed to return; I must still balance this against the fact that he has been here for twelve years, has been employed, has not been involved in any wrongdoing and has a wife and two children residing in Canada.

[12]      The question here is not whether Mr. Paszkowski was involved in illegal activities in Poland or in Germany. The fundamental issue raised by Mr. Paszkowski's Statement of Claim is whether he was in fact granted landed immigrant status on December 11, 1984 and therefore has the right to return and remain in Canada pursuant to section 4 of the Immigration Act, R.S.C. 1985, c. I-2.

[13]      If I had any doubts in my mind with respect to finding in favour of the applicant based on balance of convenience, they are resolved by the Federal Court of Appeal's decision in Turbo Resources Ltd. v. Petro Canada Inc., 24 C.P.R. (3d) 1, wherein Stone J.A. stated at p. 20:

[14]      For these reasons, the interlocutory injunction is hereby granted and shall remain in effect until the final disposition of this matter on the merits.

[15]      The defendant is hereby allowed to February 15, 1998 to file its Statement of Defence.

                                     JUDGE

OTTAWA, Ontario

January 22, 1998