Haj Khalil et al. v. Canada, 2009 FCA 66

• Judge: Décary, Sexton and Blais, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 04, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FCA 66;(2009), 389 N.R. 48 (FCA)

Haj Khalil v. Can. (2009), 389 N.R. 48 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. AP.021

Nawal Haj Khalil, Anmar El Hassen and Acil El Hassen (appellants) v. Her Majesty the Queen (respondent)

(A-469-07; 2009 FCA 66)

Indexed As: Haj Khalil et al. v. Canada

Federal Court of Appeal

Décary, Sexton and Blais, JJ.A.

March 6, 2009.

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 dependent 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, 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, in a decision reported 317 F.T.R. 32, dismissed the plaintiffs' action, but remained seized of the matter with respect to the determination of costs.

The Federal Court, in a decision reported 324 F.T.R. 168, ordered the plaintiffs to pay Canada costs totalling $305,000. The plaintiffs appealed.

The Federal Court of Appeal dismissed the appeal.

Aliens - Topic 1234

Admission - Immigrants - Application for admission - Delays - Delay in processing refugee's permanent residence application - [See Aliens - Topic 4106 , Civil Rights - Topic 660.2 , 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 - The plaintiffs appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 13 and 16.

Aliens - Topic 1747

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

Aliens - Topic 4106

Practice - Costs - To or against Minister, Crown, Canada, etc. - 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 dependent spouse abroad - Admissibility concerns arose - In 2003, while their permanent resident application was pending, the plaintiffs sued Canada for damages because of the delay in the processing of their permanent residence application, alleging, inter alia, negligence and Charter violations (s. 7) - The Federal Court dismissed the plaintiffs' claims in their entirety - As to costs, the court noted that Canada prevailed on most issues - The plaintiffs succeeded only in relation to a partial finding of delay - The trial encompassed 36 days - The issues were novel in the context of an action, but the court opined that administrative law remedies were available to address the matter of delay and the Charter arguments could have been advanced on an application for judicial review - The court agreed with the Crown that this was a private action in which the plaintiffs sought more than $3,000,000 in damages - The mere fact that the action involved a public authority was insufficient to transform the "nature of this negligence/personal injury litigation" - The court saw no reason to depart from the normal rule that costs should follow the event and awarded lump sum costs of $125,000 plus disbursements of $180,000 to be paid by the plaintiffs to Canada - The plaintiffs appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 15, 16 and 24.

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - Delay in processing refugee's 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 dependent 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 - The plaintiffs appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 12 and 16 to 24.

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 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 - The plaintiffs appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 12 and 16 to 24.

Practice - Topic 7029

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Novel or important point - [See Aliens - Topic 4106 ].

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Public interest or test case - [See Aliens - Topic 4106 ].

Practice - Topic 7035

Costs - Party and party costs - Entitlement - The Crown or governmental bodies - [See Aliens - Topic 4106 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Aliens - Topic 4106 ].

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 - The plaintiffs appealed - The Federal Court of Appeal dismissed the appeal - See paragraphs 1 to 11 and 16 to 24.

Cases Noticed:

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

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; 2001 SCC 79, refd to. [para. 6].

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

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 7].

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; 2000 SCC 44, refd to. [para. 12].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 12].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 12].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 13].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2006), 304 F.T.R. 222; 2006 FC 1457, refd to. [para. 13].

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; 2000 SCC 69, refd to. [para. 14].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 18].

Counsel:

Barbara Jackman and Leigh Salsberg, for the appellants;

Marina Stefanovic and Amy Lambiris, for the respondent.

Solicitors of Record:

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

John H. Sims, Q.C., Deputy Attorney General of Canada, for the respondent.

This appeal was heard in Toronto, Ontario, on March 4, 2009, by Décary, Sexton and Blais, JJ.A., of the Federal Court of Appeal. The following decision was delivered by the court on March 6, 2009, at Ottawa, Ontario.