Haj Khalil et al. v. Canada, (2007) 317 F.T.R. 32 (FC)

• Judge: Layden-Stevenson, J.
• Court: Federal Court (Canada)
• Case Date: September 18, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 317 F.T.R. 32 (FC);2007 FC 923

Haj Khalil v. Can. (2007), 317 F.T.R. 32 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. SE.020

Nawal Haj Khalil, Anmar El Hassen and Acil El Hassen, by her Litigation Guardian Nawal Haj Khalil (plaintiffs) v. Her Majesty the Queen (defendant)

(T-2066-03; 2007 FC 923)

Indexed As: Haj Khalil et al. v. Canada

Federal Court

Layden-Stevenson, J.

September 18, 2007.

Summary:

The plaintiffs, a mother and her two children, were Convention refugees who came to Canada in 1994 and sought to become permanent residents. The plaintiff's husband, who remained in Gaza, was included in the permanent resident application as a dependant spouse abroad. There were admissibility concerns about the plaintiff's and her husband's relationship with the Palestinian Liberation Organization. In 2003, while their permanent resident application was pending, the plaintiffs issued a statement of claim against Canada for damages because of the delay in the processing of their permanent residence application, alleging negligence and Charter violations (s. 7). The plaintiffs also sought a declaration that s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA), which rendered those who were members of organizations believed to be involved in espionage, subversion or terrorism, inadmissible, was unconstitutional as being contrary to ss. 2 and 15 of the Charter.

The Federal Court dismissed the plaintiffs' action.

Aliens - Topic 1234

Admission - Immigrants - Application for admission - Delays - Delay in processing refugee's permanent residence application - [See Aliens - Topic 1655 , Civil Rights - Topic 660.2 , Courts - Topic 4021 and Torts - Topic 9165.1 ].

Aliens - Topic 1655

Exclusion and expulsion - Immigration - Deportation - Grounds for - Inadmissibility - Exception - Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest (IRPA, s. 34(2)) - The primary plaintiff, a 57 year old stateless Palestinian and a Convention refugee, along with her husband and two children, sought a declaration that s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA), which rendered those who were members of organizations believed to be involved in espionage, subversion or terrorism, inadmissible, was unconstitutional - The plaintiffs claimed that s. 34(1)(f) was unconstitutional because the remedy of ministerial exemption under s. 34(2) of the IRPA was illusory - Section 34(2) provided that the grounds of inadmissibility in s. 34(1) did not constitute inadmissibility in respect of permanent residents or foreign nationals who satisfied the Minister of Citizenship and Immigration that their presence in Canada would not be detrimental to the national interest - The Federal Court dismissed the action - The court held the plaintiffs' claim failed because it constituted an attack on the manner in which the legislation was administered rather than the validity of the legislation itself - No s. 34(2) determination had been made regarding the plaintiff - Should the decision be negative, it could be judicially reviewed on the basis that the provision was applied unconstitutionally - See paragraphs 11 and 330 to 347.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - [See Aliens - Topic 1655 , Civil Rights - Topic 1854.1 and Civil Rights - Topic 5662 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - Delay in processing permanent residence application - The plaintiffs, a mother and her two children, were Convention refugees who came to Canada in 1994 and sought to become permanent residents - The primary plaintiff's husband, who remained in Gaza, was included in the permanent resident application as a dependant spouse abroad - There were admissibility concerns about involvement with the Palestinian Liberation Organization - In 2003, while their permanent resident application was still pending, the plaintiffs sued Canada for damages over the delay in processing their application, alleging Charter violations (s. 7) - The plaintiffs claimed that the delay deprived them of their s. 7 rights to liberty and security of the person in a manner that was not in accordance with the principles of fundamental justice (i.e., the delay impacted the family autonomy and caused the mother psychological harm) - The Federal Court dismissed the plaintiffs' action - The court held that the plaintiffs failed to establish that their liberty interests under s. 7 of the Charter were engaged on the facts of this matter - The s. 7 security of the person interests were not engaged because the alleged psychological harm was not state imposed - Since the court found that the plaintiffs failed to establish a deprivation of their rights to liberty or security of the person, it was not necessary to determine whether the alleged deprivation was in accordance with the principles of fundamental justice - See paragraphs 10 and 258 to 295.

Civil Rights - Topic 1206

Security of the person - General - Right to family autonomy - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 1206.5

Security of the person - General - Right to psychological integrity - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 1327

Security of the person - Immigration - Permanent residence - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 1854.1

Freedom of speech or expression - Limitations on - Membership in terrorist organizations - The primary plaintiff, who was a 57 year old stateless Palestinian and a Convention refugee, sought a declaration that s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA), which rendered those who were members of organizations believed to be involved in espionage, subversion or terrorism, inadmissible, was unconstitutional as being contrary to s. 2 of the Charter - The plaintiff claimed that on its face or in its application and operation, s. 34(1)(f) violated her rights to freedom of expression and freedom of association - The Federal Court dismissed the action - The court stated that the plaintiffs' attack on the constitutionality of s. 34(1)(f) of the IRPA on the premise that it contravened s. 2 of the Charter was authoritatively determined by the Supreme Court of Canada in Suresh v. MCI (2002) - In Suresh the court held that Canada's inadmissibility provisions did not infringe s. 2 of the Charter with respect to conduct occurring prior to entry to Canada - See paragraphs 11 and 300 to 311.

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See Civil Rights - Topic 1854.1 ].

Civil Rights - Topic 2159.1

Freedom of association - Limitations on - Associations with terrorist organizations - [See Civil Rights - Topic 1854.1 ].

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - [See Civil Rights - Topic 1854.1 ].

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - The primary plaintiff, who was a 57 year old stateless Palestinian and a Convention refugee, sought a declaration that s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA), which rendered those who were members of organizations believed to be involved in espionage, subversion or terrorism, inadmissible, was unconstitutional as being contrary to s. 15 of the Charter - The Federal Court dismissed the plaintiffs' action - The court stated that the s. 15 challenge failed because the plaintiff had not demonstrated that she was treated differentially by virtue of her nature as a stateless Palestinian (i.e., the court rejected the plaintiff's characterization of the applicable analogous ground) - Therefore her claim failed at the first stage of the s. 15 analysis - See paragraphs 312 to 329.

Civil Rights - Topic 8351

Canadian Charter of Rights and Freedoms - Application - Exceptions - Crown immunity or other bars to actions against Crown - [See Courts - Topic 4021 ].

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal Boards, Commissions or tribunals - Exhaustion of judicial review remedies - The plaintiffs, a mother and her two children, were Convention refugees who came to Canada in 1994 and sought to become permanent residents - The primary plaintiff's husband, who remained in Gaza, was included in the permanent resident application as a dependant spouse abroad - There were admissibility concerns about involvement with the Palestinian Liberation Organization - In 2003, while their permanent resident application was still pending, the plaintiffs issued a statement of claim against Canada for damages over the delay in the processing of their permanent residence application, alleging negligence and Charter violations (s. 7) - As a threshold issue, the Crown argued that in light of Grenier v. Canada (2006, F.C.A.), the plaintiffs had to successfully and in a timely fashion exhaust their available judicial review remedies, including mandamus before they could proceed with an action for damages - The Federal Court held that the Crown was estopped from raising this argument because it amounted to a collateral attack on a prior Federal Court order which rejected a request by the Crown to dismiss the plaintiffs' statement of claim - The court stated that "... res judicata aside, in the absence of further guidance from the Federal Court of Appeal, I am not prepared to hold, as a threshold ruling, that the plaintiffs' action is barred for failure to seek mandamus as a result of the ruling in Grenier ..." - See paragraphs 133 to 153.

Courts - Topic 4039

Federal Court of Canada - Jurisdiction - Federal Court - Civil actions - [see Courts - Topic 4021 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Courts - Topic 4021 ].

Torts - Topic 61

Negligence - Causation - Causal connection - [See Torts - Topic 9165.1 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Torts - Topic 9165.1 ].

Torts - Topic 9165.1

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Immigration authorities - The plaintiffs, a mother and her two children, were Convention refugees who came to Canada in 1994 and sought to become permanent residents - There were admissibility concerns about involvement with the Palestinian Liberation Organization - The plaintiffs sued Canada for damages over a delay in the processing of their permanent residence application, alleging negligence - The primary plaintiff, the mother, claimed, inter alia, that the delay caused her depression and interfered with her ability to find work and attend college - The Federal Court dismissed the plaintiffs' action - The court stated that although the plaintiffs established that there was unreasonable and inordinate delay in the processing of their applications for permanent residence since 2002, delay was not a free-standing cause of action - There was insufficient proximity between the plaintiffs and the defendant (Canada) to found a private law duty of care - Additionally, there were compelling policy reasons that militated against the imposition of such a duty - The court stated that even if it had found that a private law duty of care existed and was breached, causation was not established - Consequently, the plaintiffs could not succeed in negligence - See paragraphs 9, 72 to 125 and 154 to 257.

Cases Noticed:

Grenier v. Canada, [2006] 2 F.C.R. 287; 344 N.R. 102; 262 D.L.R.(4th) 337 (F.C.A.), refd to. [para. 127].

Prentice v. Royal Canadian Mounted Police, [2006] 3 F.C.R. 135; 346 N.R. 201; 264 D.L.R.(4th) 742 (F.C.A.), leave to appeal dismissed [2006] 1 S.C.R. viii; 356 N.R. 390, refd to. [para. 127].

Prentice v. Canada - see Prentice v. Royal Canadian Mounted Police.

Samimifar v. Canada (Minister of Citizenship and Immigration) et al. (2007), 367 N.R. 140; 2007 FCA 248, affing. (2006), 302 F.T.R. 163; 58 Imm. L.R.(3d) 24 (F.C.), refd to. [paras. 130, 131].

Ayangma v. Canada (2003), 313 N.R. 312 (F.C.A.), refd to. [para. 132].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 133].

Robb Estate et al. v. St. Joseph's Health Centre et al., [2001] O.A.C. Uned. 23; 5 C.P.C.(5th) 252 (C.A.), refd to. [para. 136].

Metro Can Construction Ltd. v. Minister of National Revenue (2001), 273 N.R. 273; 203 D.L.R.(4th) 741 (F.C.A.), refd to. [para. 136].

Tremblay v. Canada (Procureur général), [2004] 4 F.C.R. 165; 327 N.R. 160; 244 D.L.R.(4th) 422 (F.C.A.), refd to. [para. 138].

White (Peter G.) Management Ltd. v. Canada (2007), 314 F.T.R. 284; 2007 FC 686, refd to. [para. 142].

Morgan v. Canada (1998), 117 B.C.A.C. 296; 191 W.A.C. 296 (C.A.), refd to. [para. 145].

Szebenyi v. Canada (1999), 247 N.R. 290 (F.C.A.), refd to. [para. 149].

Paszkowski v. Canada (Attorney General) et al., [2007] 2 F.C.R. 507; 287 F.T.R. 116; 51 Imm. L.R.(3d) 299 (F.C.), refd to. [para. 150].

Szebenyi v. Canada, [2007] 1 F.C.R. 527; 292 F.T.R. 253 (F.C.), affd. (2007), 362 N.R. 88; 2007 FCA 118, leave to appeal dismissed (2007), 317 F.T.R. 32 (S.C.C.), refd to. [para. 151].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 157].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, refd to. [para. 157].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, refd to. [para. 157].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 157].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315, refd to. [para. 157].

B.D. et al. v. Children's Aid Society of Halton Region et al. (2007), 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 157].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 158].

Jiminez-Perez and Reid v. Minister of Employment and Immigration et al., [1984] 2 S.C.R. 565; 56 N.R. 215, refd to. [para. 162].

Premakumaran v. Canada, [2007] 2 F.C.R. 191; 351 N.R. 165; 270 D.L.R.(4th) 440 (F.C.A.), leave to appeal dismissed [2006] 2 S.C.R. xi; 362 N.R. 390, refd to. [para. 164].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 168].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 170].

Brewer Bros. et al. v. Canada (Attorney General), [1992] 1 F.C. 25; 129 N.R. 3; 80 D.L.R.(4th) 321 (F.C.A.), refd to. [para. 171].

Farzam v. Canada (Minister of Citizenship and Immigration) (2005), 284 F.T.R. 158 (F.C.), refd to. [para. 175].

Benaissa v. Canada (Attorney General), [2005] F.T.R. Uned. A68; 142 A.C.W.S.(3d) 946 (F.C. Protho.), refd to. [para. 177].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 187].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 195].

Addison & Leyen Ltd. et al. v. Canada Customs and Revenue Agency (2007), 365 N.R. 62; 2007 SCC 33, refd to. [para. 199].

Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341; 249 N.R. 385 (F.C.A.), refd to. [para. 201].

Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404; 242 N.R. 173 (F.C.A.), refd to. [para. 201].

Hanke v. Resurfice Corp. et al. (2007), 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 234].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 236].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 261].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 261].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 262].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 263].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 263].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 269].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 269].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 269].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 273].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1, refd to. [para. 273].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 285].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 288].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 304].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 304].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 322].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 323].

Auton v. British Columbia (Attorney General) - see Auton et al. v. British Columbia (Minister of Health) et al.

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2006), 304 F.T.R. 222; 149 C.R.R.(2d) 340; 58 Imm. L.R.(3d) 181 (F.C.), refd to. [para. 324].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481; 188 D.L.R.(4th) 385 (C.A.), refd to. [para. 331].

R. v. Long, 2007 ONCJ 340, refd to. [para. 331].

Hitzig et al. v. Canada (2003), 177 O.A.C. 321; 231 D.L.R.(4th) 104; 177 C.C.C.(3d) 449 (C.A.), refd to. [para. 331].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1, refd to. [para. 333].

Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2007), 311 F.T.R. 193; 2007 FC 381, refd to. [para. 342].

Soe v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 307; 2007 FC 461, refd to. [para. 342].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2 [para. 301]; sect. 7 [para. 258].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1)(f) [para. 17]; sect. 34(2) [para. 18].

Counsel:

Barbara Jackman and Leight Salsberg, for the plaintiffs;

John Loncar, Lois Knepflar, Marina Stefanovic, Amy Lambiris, Tamrat Gebeyehu, Janet Chisholm and Ladan Shahrooz, for the defendant.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the plaintiffs;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This action was heard at Toronto Ontario, by Layden- Stevenson, J., of the Federal Court, on April 16-19, 23-27, 30, May 1-4, 7-11, 14, 18, 22-24, 28-30 and June 5-8, 13, 14, 27-29, 2007. Further submissions were received on July 31 and August 9, 24 and 31, 2007. Layden-Stevenson, J., delivered the following reasons for judgment for the court at Ottawa, Ontario, on September 18, 2007.