Nalliah v. Canada (Solicitor General) et al., (2004) 264 F.T.R. 148 (FC)

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: November 16, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 264 F.T.R. 148 (FC);2004 FC 1649

Nalliah v. Can. (2004), 264 F.T.R. 148 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] F.T.R. TBEd. DE.012

Vivekananthan Nalliah (applicant) v. The Solicitor General for Canada and The Minister of Citizenship and Immigration (respondents)

(IMM-9071-04; 2004 FC 1649; 2004 CF 1649)

Indexed As: Nalliah v. Canada (Solicitor General) et al.

Federal Court

Snider, J.

November 24, 2004.

Summary:

Nalliah applied for leave and for judicial review of a negative decision of a pre-removal risk assessment (PRRA) dated September 9, 2004. He hoped that this judicial review would evolve into a class action including as plaintiffs all individuals (approx. 3700) who received negative PRRA decisions made between December 12, 2003 and October 8, 2004. In this motion, Nalliah sought injunctive relief suspending the effect of the negative decisions made between these dates and also sought an order for directions.

The Federal Court dismissed the motion for injunctive relief, but issued directions respecting how to notify those removed from Canada about the progress of the class action.

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment - Judicial review - Injunction pending - [See Aliens - Topic 1797.1 ].

Aliens - Topic 1797.1

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation order - Injunction or prohibition to stop execution of - Nalliah applied for judicial review of a negative decision of a pre-removal risk assessment (PRRA) dated September 9, 2004 - He hoped that the judicial review would evolve into a class action including as plaintiffs all individuals (approx. 3700) who received negative PRRA decisions made between December 12, 2003 and October 8, 2004 - Nalliah claimed that the PRRA program during this time frame lacked independence and impartiality - Nalliah sought an injunction suspending the effect of the negative decisions made between these dates and enjoining removals - The Federal Court refused to grant an injunction - The court held that although there was a serious issue for trial, irreparable harm was not established - The court opined that the balance of convenience favoured refusing the injunction - See paragraphs 1 to 47.

Injunctions - Topic 1610

Interlocutory or interim injunctions - Circumstances when injunction will not be granted - [See Aliens - Topic 1797.1 ].

Practice - Topic 209.8

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Notice to members of class - Nalliah applied for judicial review of a negative decision of a pre-removal risk assessment (PRRA) dated September 9, 2004 - He hoped that this judicial review would evolve into a class action including as plaintiffs all individuals (approx. 3700) who received negative PRRA decisions made between December 12, 2003 and October 8, 2004 - Nalliah sought injunctive relief - The Federal Court dismissed the motion for injunctive relief - The court, however, agreed that the effect of the denial of the injunctive relief would be the removal of members of the putative class making it impossible to locate these people - The court, therefore, ordered counsel to develop a plan to issue class action notices and use the Canada Border Services Agency website to inform members of the putative class of developments in the case - See paragraphs 49 to 53.

Cases Noticed:

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 4].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 4].

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.), refd to. [para. 5].

Borisova et al. v. Canada (Minister of Citizenship and Immigration) (2003), 237 F.T.R. 87 (F.C.), refd to. [para. 7].

North American Gateway Inc. v. Canadian Radio-Television and Telecommunications Commission (1997), 214 N.R. 146 (F.C.A.), refd to. [para. 11].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 20].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.) (2001), 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 20].

Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206; 249 N.R. 28 (F.C.A.), refd to. [para. 24].

Resulaj v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 675 (F.C.), refd to. [para. 24].

Grant v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 74; 2002 FCT 141, refd to. [para. 26].

Mikhailov et al. v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 1 (T.D.), refd to. [para. 26].

Frankowski v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 162 (T.D.), refd to. [para. 26].

Csanyi et al. v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 642 (T.D.), refd to. [para. 26].

Atakora v. Minister of Employment and Immigration (1993), 68 F.T.R. 122 (T.D.), refd to. [para. 26].

Kim v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 201; 2003 FCT 321, refd to. [para. 30].

Selliah et al. v. Canada (Minister of Citizenship and Immigration), [2004] N.R. Uned. 132 (F.C.A.), refd to. [para. 31].

Membreno-Garcia v. Minister of Employment and Immigration (1992), 55 F.T.R. 104 (T.D.), refd to. [para. 38].

Smith (L.) v. Minister of Employment and Immigration (1992), 58 F.T.R. 292 (T.D.), refd to. [para. 38].

Chen et al. v. Canada (Minister of Citizenship and Immigration) (2004), 250 F.T.R. 285 (F.C.), refd to. [para. 50].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 112(1) [para. 9].

Counsel:

Lorne Waldman, Krassina Kostadinov and D. Clifford Luyt, for the applicant;

Marie-Louise Wcislo, Rhonda Marquis, Angela Marinos and Anshumala Juyal, for the respondents;

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This motion was heard at Toronto, Ontario, on November 16, 2004, by Snider, J., of the Federal Court, who released the following decision on November 24, 2004.