Date:
20090305
Docket: A-469-07
Citation: 2009 FCA 66
CORAM: DÉCARY
J.A.
SEXTON
J.A.
BLAIS
J.A.
BETWEEN:
NAWAL HAJ KHALIL
ANMAR EL HASSEN
ACIL EL HASSEN
Appellants
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT BY THE
COURT
[1]
This is an
appeal from the decision of Justice Layden-Stevenson (then of the Federal
Court), dismissing the appellants’ action for damages in respect of delay in processing
their applications for permanent residence. The appellants claimed that the
delay was both negligent, and infringed their Charter rights. The trial judge
also dismissed their Charter challenges to the validity of paragraph 34(1)(f)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).
She awarded substantial costs to the respondent.
[2]
The
reasons for judgment are reported at 2007 FC 923, [2008] 4 F.C.R. 53. The award
of costs is reported at 2007 FC 1184, 324 F.T.R. 168.
[3]
The primary appellant,
Nawal Haj Khalil, is a Syrian-born stateless Palestinian. Her husband, Riyad El
Hassen, resides in Gaza. The other appellants are Ms. Haj Khalil
and Mr. El Hassen’s now-adult children, Anmar El Hassen and Acil El Hassen, who
were both eventually granted permanent resident status in Canada by 2007.
[4]
All three appellants
came to Canada in 1994 and were recognized as Convention
refugees. They applied for landing in 1995.
[5]
Ms. Haj Khalil has been
deemed inadmissible as a former member of an organization engaged in terrorism
(Fatah) because she wrote or claims to have written for a Palestine Liberation
Organization (PLO) publication and was paid by Fatah from the late 1970s to
1993. Ms. Haj Khalil continues to wait for a resolution of the question
regarding her status in Canada.
[6]
Turning to
the claim in negligence, the trial judge found that the Minister did not owe
the appellants a duty of care. Applying the framework from Cooper v. Hobart,
2001 SCC 79, [2001] 3 S.C.R. 537, she first concluded that the alleged duty
did not fall within an existing category of duty. Thus, she went on to consider
the two-stage test for the recognition of a novel duty of care.
[7]
Relying
heavily on Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007]
3 S.C.R. 83, she held that there would be a conflict between a duty
to the appellants, and the Minister’s overarching duties to the public under
the IRPA. Therefore, the trial judge held that a prima facie duty of
care did not arise – even if she were to assume foreseeability for the sake of
her analysis, the potential for conflict was a “compelling policy reason” to
refuse to find proximity (at paras. 188, 190, 193).
[8]
She
further held that even if a prima facie duty of care existed, she would
have found it to be negated by residual policy considerations at the second
stage of the Cooper test (at para. 193). The availability of seeking an
order of mandamus to force a decision was considered an adequate
alternative remedy (at paras. 194-202), as contemplated by Justice Abella in Syl
Apps, supra at para. 28. Justice Layden-Stevenson also expressed concern
that if a duty of care was recognized, claimants would be able to appeal to the
Federal Court of Appeal as of right, circumventing the requirement in the IRPA
that a question of general importance be certified (at para. 203).
[9]
Further,
the trial judge expressed concern about the costs of litigation in these
circumstances. The costs to the parties (or in this case, legal aid), and the
strain on judicial resources also favoured that such issues be resolved through
administrative law remedies (at para. 205).
[10]
Finally,
Justice Layden-Stevenson felt that the spectre of indeterminate liability
“loomed large” if the proposed duty of care were recognized “solely on the
negative impact of delay on an applicant as opposed to actual misconduct on the
part of immigration officers” (at para. 207). For all of these reasons, she
held that no duty of care arose in the circumstances.
[11]
The trial
judge also held that even if a duty of care existed and was breached, the
appellants had not demonstrated that the alleged damages were caused by the
Minister’s negligence.
[12]
The trial
judge also dismissed the appellants’ claims that the delay violated section 7
of the Charter. She concluded that their interests in life, liberty, and/or
security of the person were not engaged on these facts. She held that her
findings on causation precluded a finding that the appellants were subjected to
“serious, state-imposed psychological stress” as contemplated in Blencoe v.
British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R.
307. Since she had already found that the delay did not cause the alleged harm,
any psychological stress could not possibly be state-imposed (at par. 293). She
suggested that, in any event, the interests engaged on these facts were not as
crucial as those in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005]
1 S.C.R. 791, or R. v. Morgentaler, [1998] 1 S.C.R. 30, where
psychological stress was intimately linked to physical suffering (at par. 294).
[13]
Justice
Layden-Stevenson disposed of the questions concerning the validity of paragraph
34(1)(f) of the IRPA primarily on the basis that they were
settled by prior cases. She found that the Supreme Court of Canada’s decision
in Suresh v. Canada (Minister of Citizenship and
Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, was dispositive of the section 2 claims. She
relied on Justice Snider’s conclusion in Al Yamani v. Canada (Minister of Citizenship and
Immigration) (2006),
2006 FC 1457, 304 F.T.R. 222, that paragraph 34(1)(f) also does not
violate section 15.
[14]
Finally,
Justice Layden-Stevenson found that the Supreme Court of Canada’s decision in Little
Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R.
1120, was a complete answer to the argument that the discretion vested in the
Minister under subsection 34(2) of the IRPA was illusory. If Ms. Haj Khalil
ultimately received a negative decision with respect to ministerial relief, she
could challenge that decision on judicial review (at paras. 345-346). The trial
judge was not prepared to strike down the legislation simply because it might
be applied in an unconstitutional manner (at para. 344).
[15]
The issue
of costs was reserved. In separate reasons, Justice Layden-Stevenson awarded
costs of $305, 000 against the appellants. She rejected their arguments that
they should be spared costs because they were public interest litigants, or
because junior counsel was acting on a pro bono basis. The litigation
took the form of an action seeking over $3 million in damages, and the Crown
prevailed on most issues. Accordingly, the trial judge saw no reason to depart
from the ordinary rule that costs follow the event.
[16]
We are of
the view that the appeal should be dismissed and that there is very little that
needs to be added to the thoughtful reasons of the learned judge.
[17]
With
respect to negligence, the appellants focus on the trial judge’s analysis
regarding the aspect of proximity in the duty of care analysis claiming that
she inappropriately balanced policy interests. The appellants allege that
duties under the IRPA are to facilitate the reunion of families in Canada and the settlement of
Convention refugees, and to protect the general public, but that these duties
are not irreconcilable. In fact, the appellants allege the conflict between a
new duty of care and the protection of the health, safety and security of the
Canadian public is speculative.
[18]
Counsel
relies extensively on the decision of the Supreme Court of Canada in Hill
v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC
41, [2007] 3 S.C.R. 129, which was issued after the impugned decision. The
relationship at issue in Hill was between police officers and individual
suspects. The Supreme Court of Canada expressly cautioned at paragraph 27
against extending the impact of its decision to other contexts. Any harm caused
to the appellants by the delay is not in the same range of severity as the harm
caused in Hill to the wrongfully convicted. In Hill, the harm
included ongoing investigation and criminal prosecution, wrongful conviction
and incarceration for 20 months. And in contrast to Hill, the appellants
were not left without recourse; they have open to them a remedy that is more
expedient, inexpensive and responsive, namely mandamus.
[19]
The
appellants argue that the factor of alternative remedy – in this case mandamus
– should not be considered at the time the Court is considering whether there
is proximity. They also argue that mandamus is not an adequate
alternative remedy as it does not give the Court the power to grant damages and
should, rather, be examined when the Court addresses the issue of mitigation of
damages.
[20]
These
arguments fly in the face of the rulings of the Supreme Court of Canada in Syl
Apps and Hill. In both cases the Supreme Court of Canada examined
the alternative remedy factor at the time it was examining the issue of
proximity (Syl Apps at para. 59; Hill at para. 35). In Hill
the Supreme Court of Canada had stated, at para. 31, that there could be
overlaps between stage one and stage two considerations, “the important thing [being]
that in deciding whether a duty of care lies, all relevant concerns should be
considered”.
[21]
Also, in Syl
Apps, the alternative remedy considered by the Court was the opportunity,
unrelated to compensation, given to a parent of a child to make an application
for review of a child’s status every six months (at para. 59). When the alleged
novel duty of care is grounded on delay on the part of the state, it seems
clear to us that the possibility of seeking an order of mandamus is a
factor that must be considered at either stage of the examination.
[22]
We are also
of the view that the trial judge committed no palpable or overriding error in
finding that there was a lack of causal connection between the delay in the
processing of Ms. Haj Khalil’s application and the damages she and her children
claimed. Nor do we find that she erred in law or in fact and law when she found
that there was no infringement of the appellants’ section 7 rights under the
Charter.
[23]
With
respect to the constitutional validity of section 34 of the IRPA, we find no
basis for determining that Justice Layden-Stevenson was wrong in applying the
Supreme Court of Canada’s decision in Suresh. Nor can we agree with the
appellants that the finding in Little Sisters is not a complete answer
to the argument that the discretion in subsection 34(2) does not save paragraph
34(1)(f) from being applied in an unconstitutional manner, as the
Supreme Court of Canada held that it did in Suresh.
[24]
With
respect to costs, the trial judge did not commit any reviewable error when she
exercised her discretion.
[25]
We would
dismiss the appeal with costs.
“Robert Décary”
“J.
Edgar Sexton”
“Pierre
Blais”
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