Docket: T-2191-14
Citation:
2015 FC 1121
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, September 28, 2015
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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THIERNO CISSÉ
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Plaintiff
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and
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HER MAJESTY THE
QUEEN
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Defendant
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JUDGMENT AND REASONS
I.
Introduction
[1]
Thierno Cissé, the plaintiff, has brought an
action in damages against Her Majesty the Queen, the defendant, alleging that agents
of Citizenship and Immigration Canada [CIC] committed a fault in refusing to
issue him the open work permit that he had applied for. Mr. Cissé alleges
that he suffered harm as a result of this refusal and claims $15 million
in damages.
[2]
The Court finds that Mr. Cissé has not
established any fault on the part of the defendant or any damage stemming from
a possible fault.
[3]
At the hearing, Mr. Cissé testified on his
own behalf, while Ruth Anne Weisman, a senior program specialist at CIC,
testified for the defendant.
[4]
The Court will begin by summarizing the
allegations of each party and the evidence that they filed in support of these
allegations and will then turn to examining whether Mr. Cissé discharged
his burden of proof.
II.
Allegations of the parties
[5]
In spring 2008, Mr. Cissé, a citizen of
Senegal, and DMR Consulting, a division of Fujitsu Consulting (Canada) Inc.
[DMR Consulting], entered into a contract of employment that provided, among
other things, that Mr. Cissé would take on the position of systems
delivery adviser in Canada, effective May 15, 2008, as appears from the
copy of said contract filed by Mr. Cissé as Exhibit P-1.
[6]
Mr. Cissé testified that he first obtained a
Quebec Acceptance Certificate [QAC] through the Information Technology Worker
Program and then applied to Canadian immigration authorities in Dakar, Senegal,
for a temporary resident visa [TRV] and a work permit. The processing time for
this application was longer than the advertised 45 days for this sort of
application, and in January 2015, DMR Consulting gave him confirmation
that his new starting date would be January 19, 2009 (Exhibit P-3). On
December 22, 2008, the Canadian authorities issued Mr. Cissé a TRV
and an application approval letter for his work permit, which he would receive
upon arrival in Canada.
[7]
On January 29, 2009, DMR Consulting
informed Mr. Cissé by email that his employment contract had been cancelled. A
copy of this email was filed as Exhibit P-4. In his testimony, Mr. Cissé
confirmed that he was in Paris when he heard the news but nevertheless chose to
travel on to Canada.
[8]
On February 1, 2009, Mr. Cissé thus arrived
in Canada and received a work permit, valid until May 5, 2011, a copy of
which was filed as Exhibit P-2. This work permit was restricted to
Mr. Cissé’s prospective position at DMR Consulting, and he confirmed that
he therefore could not work for any employer other than the one named on his
work permit without first obtaining a new work permit, which limited his
options considerably.
[9]
In October 2010, Mr. Cissé applied to the CIC
Case Processing Centre-Vegreville for an open work permit so that he could work
for an employer other than the one named on the work permit he already had. At
the hearing, Mr. Cissé stated that this application was based on
section 208 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[IRPR], reproduced in the appendix to these reasons. On this subject, and in
response to question from the Court, he confirmed that he does not have and has
never had a resident permit.
[10]
Around February 2011, Mr. Cissé contacted the
CIC Call Centre to inquire about his application and was told that it had been
refused on January 10, 2011. He told the agent that he had not received a
letter notifying him of the refusal, and he confirmed his address so that a new
letter could be sent. In short, Mr. Cissé confirmed that he finally received
the refusal letter in March 2011, and this letter stated that his work
permit application had been refused because a favourable new labour market
impact assessment was required first and none had been issued. A copy of that
letter was filed as Exhibit P-6.
[11]
Mr. Cissé alleged that he called the CIC Call
Centre back and that an agent told him that there was no way for him to contest
the refusal.
[12]
Mr. Cissé testified that he continued looking
for work after his application was refused, that he remained in Canada after
his work permit expired in May 2011, and that on February 24, 2012,
he claimed refugee protection in order to obtain an open work permit. In September 2013,
at the hearing of his refugee protection claim before the Refugee Protection
Division of the Immigration and Refugee Board, Mr. Cissé received a number
of documents, including one that he claimed to be the basis for CIC’s refusal
to issue the open work permit he applied for in October 2010.
[13]
According to Mr. Cissé, that document, an excerpt
from electronic notes in CIC’s CAIPS database (Exhibit P‑9) confirmed
that DMR Consulting had submitted incorrect information to CIC, and that CIC
then relied on that information to refuse to issue him the open work permit
that he had applied for in October 2010. The sentence on which Mr. Cissé
bases his claims reads as follows: [translation]
“His starting date at DMR was May 15, 2008”.
[14]
Mr. Cissé submits that he met the requirements
for receiving a work permit under section 208 of the IRPR, above, but that
CIC’s agents refused his application without cause, on the basis of the
information contained in Exhibit P-9, above, thereby committing a fault.
[15]
The defendant called Ruth Anne Weisman as a
witness. In essence, Ms. Weisman filed in evidence copies of excerpts from
Mr. Cissé’s electronic file confirming information such as the dates and
type of applications made by Mr. Cissé. She confirmed that Mr. Cissé had
applied for an open work permit and that CIC had refused the application
because he did not meet the criteria under the IRPR. She also confirmed that
Mr. Cissé did not have a temporary resident permit, that he claimed
refugee protection in March 2012, and that he then received three (3) open
work permits—one in 2012, one in 2013 and one in 2014.
III.
Issues
[16]
The Court must determine whether Mr. Cissé has
proven (1) that the defendant committed a fault engaging her liability, (2)
that he suffered the damage he claims to have suffered, and (3) that the damage
was caused by the fault of the defendant.
IV.
Positions of the parties
A.
Position of Mr. Cissé
[17]
Mr. Cissé submits that the defendant
committed a fault in refusing his application for an open work permit. He
raises three arguments in particular.
[18]
First, Mr. Cissé submits that the defendant
should have granted him an open work permit when he applied for one in October
2010 because, first, he could apply for a permit to work in Canada and, second,
he met the requirements for issuing one under section 208 of the IRPR. On
this point, Mr. Cissé submits that the fact that he already had a work
permit and a TRV when he applied for an open work permit exempted him from
having to hold a temporary resident permit. Thus, CIC based its refusal on
incorrect personal information that DMR Consulting had provided to it through the
information contained in Exhibit P-9.
[19]
Second, Mr. Cissé submits that the
defendant incorrectly informed him that he had no possible recourse regarding
the refusal of his application for an open work permit.
[20]
Third, Mr. Cissé submits that the defendant
deliberately violated his fundamental rights by sending the letter refusing his
open work permit application to the wrong address, thus causing him
considerable mental distress.
[21]
Mr. Cissé tried to raise arguments relating
to the Canadian Charter of Rights and Freedoms, Quebec’s Charter of
human rights and freedoms, and Ontario’s Human Rights Code, but
since the procedures for raising such arguments were not followed, the
defendant objected. Having taken this objection under advisement, I allow it
for the reasons raised by the defendant.
B.
Position of the defendant
[22]
In general terms, the defendant submits that her
agents committed no fault in refusing the open work permit application made by Mr. Cissé
in 2010, that the damage he alleges cannot be attributed to her and, what is
more, that Mr. Cissé did not present any evidence of any damage
whatsoever.
[23]
The defendant submits that Mr. Cissé has no
vested right to an open work permit; that, on the contrary, such a permit is a
privilege; and that to obtain one, he had to prove to an immigration officer’s
satisfaction that he met the regulatory requirements, in compliance with
section 11 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [Act], which he did not do.
[24]
The defendant submits that Mr. Cissé chose
to come to Canada knowing that he no longer had a job and that it was up to him
to inquire about his rights after his application for an open work permit was
refused.
V.
Analysis
[25]
Mr. Cissé relies on section 199 of the
IRPR to submit that he could apply to the CIC Case Processing Centre-Vegreville
for a new work permit in October 2010 because, at the time, he already had a
work permit. The Court agrees with this statement.
[26]
Mr. Cissé then relies on section 208 of
the IRPR to submit that he should have received the open work permit he applied
for in October 2010 and that the defendant committed a fault in not issuing it.
The Court cannot accept this position.
[27]
Section 208 is in Part 11 of the IRPR,
which deals with workers, more specifically, in Division 3, the division
related to the issuance of work permits, and this section is entitled “Humanitarian reasons”.
[28]
Paragraph 208(b) of the IRPR provides
that “[a] work permit may be issued . . . to
a foreign national in Canada who cannot support themself without working, if
the foreign national holds a temporary resident permit issued under subsection
24(1) of the Act that is valid for at least six months” [emphasis added].
[29]
However, the evidence shows that Mr. Cissé
did not hold a temporary resident permit when he applied for an open
work permit in October 2010; at that time, he held a work permit and
a TRV.
[30]
He therefore did not qualify for the issuance of
an open work permit under section 208 of the IRPR.
[31]
Furthermore, although Mr. Cissé did not
raise section 206 of the IRPR at the hearing, his pleadings suggest that
he raised it as well to support his right to the issuance of the open work
permit he applied for in October 2010. However, it is clear that
section 206 of the IRPR did not apply to Mr. Cissé at that time because
he had not yet filed his claim for refugee protection. In any event, he
obtained open work permits under that section after he filed his claim for
refugee protection.
[32]
The Court is therefore satisfied that Mr. Cissé
did not meet the regulatory requirements that would have allowed him to obtain
an open work permit in October 2010 and that CIC’s agents did not commit
any fault in refusing to issue one to him. Thus, the defendant committed no
fault such that her civil liability was engaged.
[33]
What is more, Mr. Cissé did not present any
evidence relating to the damage he allegedly suffered.
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