Docket: A-108-16
Citation: 2016 FCA 296
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CORAM:
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STRATAS J.A.
WEBB J.A.
WOODS J.A.
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BETWEEN:
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DANILO MAALA
ALMACÉN
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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Heard at Toronto, Ontario, on November 22, 2016.
Judgment delivered from the Bench at Toronto, Ontario, on November
22, 2016.
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REASONS FOR JUDGMENT OF THE COURT BY:
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WEBB
J.A.
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Docket: A-108-16
Citation:
2016 FCA 296
|
CORAM:
|
STRATAS J.A.
WEBB J.A.
WOODS J.A.
|
|
BETWEEN:
|
|
DANILO MAALA
ALMACÉN
|
|
Appellant
|
|
and
|
|
HER MAJESTY THE
QUEEN
|
|
Respondent
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
November 22, 2016).
WEBB J.A.
[1]
The Appellant’s Amended Statement of Claim dated
September 23, 2014 was struck by an Order of the Prothonotary dated August 10,
2015 (2015 FC 957) without leave to amend. The Appellant then brought a motion
before the Federal Court to set aside this Order. This motion was dismissed by
Order and reasons of Russell J. dated March 9, 2016 (2016 FC 300). This appeal
is from this Order of Russell J.
[2]
The Appellant commenced the action in the
Federal Court following the denial of the Appellant’s application to remain in
Canada on Humanitarian and Compassionate grounds pursuant to section 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the H&C Decision). The
claim alleged various causes of action including misfeasance in public office,
negligence, and breaches of the Canadian Charter of Rights and Freedoms.
The Appellant also filed an application for leave and judicial review of the
H&C Decision. This application for leave was denied by Shore J. and a
subsequent motion for reconsideration of this decision was dismissed. The test
before Shore J. was whether there were fairly arguable issues in relation to the
H&C Decision. Since leave was denied and the motion for reconsideration
dismissed, the conclusion is that there were no fairly arguable issues.
[3]
The Prothonotary struck the Appellant’s Amended
Statement of Claim on the basis that, based on the facts as pled, this
Statement of Claim did not disclose a reasonable cause of action. The
Prothonotary also stated that, in the alternative, he would have struck this
Statement of Claim as an abuse of process since, in his view, this was an
attempt to re-litigate the decision of Shore J. to dismiss the application for
leave in relation to the H&C Decision.
[4]
Russell J. reviewed the decision of the
Prothonotary on a de novo basis and dismissed the Appellant’s motion to
set aside the Order of the Prothonotary on the basis that it was an abuse of
process as it “is simply an attempt to re-litigate the
reasonableness of the H&C decision, and the Court has already dealt with
the reasonableness of that decision” (paragraph 46 of his reasons).
Russell J. also found that he would dismiss the motion on the basis that, based
on the facts as alleged in this Statement of Claim, no reasonable cause of
action was disclosed.
[5]
In this Court, the Appellant submitted that, at
the time of the issuance of the Statement of Claim, the application for leave
had not been decided. This changes nothing: once the leave application was
decided, none of the issues against the validity of the decision were fairly
arguable. In these circumstances an action based on the validity of the
decision cannot succeed and, in our view, the foundation of his claim is the
unreasonableness of the H&C Decision.
[6]
The Appellant submits that the Supreme Court
holdings in Attorney General of Canada v. TeleZone Inc., 2010 SCC 62,
[2010] 3 S.C.R. 585 (TeleZone) and five related cases support his
position in this appeal. We disagree. None of the six cases involved a prior
related proceeding that was determined by a court to be not fairly arguable. In
the TeleZone cases the Supreme Court did not repeal the doctrine against
re-litigation – that doctrine applies here.
[7]
In this appeal, we have not been persuaded that
Russell J. committed any reviewable error in dismissing the Appellant’s motion
and therefore, the appeal will be dismissed, with costs.
"Wyman W. Webb"
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