Docket: T-2193-14
Citation:
2015 FC 1122
[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, brought four
actions for damages against Her Majesty the Queen, the defendant, claiming that
employees of the Department of Citizenship and Immigration Canada [CIC] committed
a fault by including a statement on two of the open work permits he received.
[2]
Mr. Cissé alleges that he suffered damages in
relation to the statement and is claiming a total of 11 million dollars
for defamation, affecting the dignity of his person, infringing his fundamental
rights, violating his privacy and disseminating his peresonal information.
[3]
Since his actions were consolidated, only one
judgment will be delivered.
[4]
The Court finds that Mr. Cissé did not establish
fault on the part of the defendant or damages flowing from a possible fault.
[5]
At the hearing, Mr. Cissé testified on his own
behalf while Ruth Anne Weisman, a senior program specialist at CIC, testified
for the defendant.
[6]
The Court will first repeat each party’s
allegations and the evidence they filed in support of those allegations and
will then examine whether Mr. Cissé discharged his burden of proof.
II.
Allegations of the parties
[7]
The Court refers the parties to the facts
presented in docket T-2191-14 with respect to the events that occurred prior to
the spring of 2012 because they are not relevant in this proceeding. Regarding
that period, we will only mention here that Mr. Cissé arrived in Canada on
February 1, 2009, and that he then received a work permit valid until May
5, 2011, which authorized him to work only for DMR Conseil and according to the
terms and conditions set out therein.
[8]
On February 24, 2012, Mr. Cissé applied for
refugee status in order to, according to his testimony, obtain an open work
permit under section 206 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR]. Mr. Cissé in fact received a first open
work permit on March 21, 2012, and he received two others successively, one in
April 2013 and one in April 2014, filed respectively as Exhibits P‑15,
P-16 and P-17 at the hearing.
[9]
The open work permits issued to Mr. Cissé in
2013 and 2014 included a statement that had not appeared on the permit issued
to him in 2012. One of the permits was marked [translation]
“Not valid for employment in businesses related to the sex
trade such as strip clubs, massage parlours or escort services”, and the
other was marked “Not valid for employment in
businesses related to the sex trade such as strip clubs, massage parlours or
escort services.”
[10]
Moreover, Mr. Cissé testified that he had been
filmed without his knowledge during the winter of 2010 when he was using the
shower room of a charitable organization in Montréal. He said that he had also
been investigated after he was hired by PAYZA based in Montréal, Quebec, and he
claims that the company found the film showing him taking a shower naked and posted
it on the Internet. Mr. Cissé filed a copy of the contract between him and PAYZA
on June 18, 2012, but he did not file anything with respect to a film or its posting.
[11]
Mr. Cissé maintains that the statement added to
his 2012 and 2013 open work permits resulted from CIC’s discovery of the film mentioned
above and that the statement targeted him specifically. He also submits that
the only reason the statement was added was to ridicule and humiliate him. Mr.
Cassé did not adduce any evidence that CIC employees knew about the film.
[12]
Mr. Cissé filed in evidence Operational Bulletin
449, [OB 449] of July 13, 2012 (Exhibit P-18), pointing to the statement that
this bulletin has expired. He admitted during his testimony that he did not
know whether all open work permits include this statement.
[13]
Ruth Anne Weisman said that the statement
included on the open work permits issued to Mr. Cissé in 2013 and 2014 has
appeared on all open work permits since July 2012, in accordance with a new
policy adopted on July 13, 2012. She also filed in evidence OB 449 dated July
13, 2012 (Exhibit D-23), which she stated she had drafted.
[14]
Ms. Weisman testified that the CIC’s computer
system statement automatically includes the statement on every open work permit
when the code corresponding to an open work permit is entered and that the purpose
of this procedure is to protect foreign nationals.
[15]
Ms. Weisman filed in evidence a copy of two
applications to change conditions of stay, extend stay or remain in Canada as a
worker that were completed by Mr. Cissé and two excerpts from Mr. Cissé’s files,
i.e. exhibits D-19, D-20, D-21 and D‑22, and she stated that nothing in
these applications shows that CIC employees knew that the film referred to by
Mr. Cissé existed.
III.
Issues
[16]
The Court must determine whether Mr. Cissé (1) established
the existence of a fault that engaged the defendant’s civil liability, (2) demonstrated
the damages that he claims he suffered and (3) proved that the damages were
caused by the fault of the defendant.
IV.
Position of the parties
A.
Mr. Cissé
[17]
Mr. Cissé submits that the defendant committed a
fault by including the above-noted statement on his 2013 and 2014 open work
permits. He argues that the defendant defamed him, affected the dignity of his
person, infringed his fundamental rights, violated his privacy and disseminated
his personal information by including this statement on his open work permits.
[18]
He contends that the inclusion of this statement
on his 2013 and 2014 open work permits stems from CIC’s discovery of a film
showing him naked in the showers of a charitable organization and not from OB
449 of July 2012 because it was expired and is not supported by the relevant
regulations.
B.
Defendant’s position
[19]
The defendant submits generally that her
employees did not commit a fault by issuing open work permits with the
above-noted statement because that statement has been included on all open work
permits since July 2012 under a policy initially adopted pursuant to paragraph 185(b)(i)
of the IRPR to protect foreign nationals, that Mr. Cissé was not personally
targeted, that CIC was not aware of the film Mr. Cissé is referring to, that
the harm he alleges is not attributable to her and that, in addition, Mr. Cissé
did not submit any evidence of any damages.
V.
Analysis
[20]
Mr. Cissé relies on the fact that OB 449 states
that it is expired in arguing that this bulletin is of no value, that it is ipso
facto not applicable and was also not applicable in 2013 and 2014. The
Court cannot concur with this position.
[21]
First, the printed version of OB 1449 has a 2014
printing date, which is after Mr. Cissé’s work permits were issued. The
defendant’s witness confirmed that OB 449 was issued in July 2012 and that it
remained in effect until the policy was included in the manuals published for
this purpose.
[22]
Moreover, there is no evidence that CIC
employees were aware of the film that Mr. Cissé refers to, assuming that the film
exists based on Mr. Cissé’s testimony, or that they targeted him personally by
adding this condition to his work permit. On the contrary, the defendant
clearly showed that the statement was a direct result of the adoption of a
policy aimed at protecting vulnerable foreign nationals and that it has been included
on all open work permits in this category since July 2012.
[23]
Accordingly, the defendant did not commit any
fault that engaged its civil liability. No defamation or breach of privacy or
dissemination of personal information occurred by including the statement on
the open work permits issued by CIC to Mr. Cissé, and he did not submit any
evidence of the damages he claims to have suffered.
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