Paszkowski v. Canada (Attorney General) et al., 2006 FC 198

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: November 15, 2005
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 198;(2006), 287 F.T.R. 116 (FC)

Paszkowski v. Can. (A.G.) (2006), 287 F.T.R. 116 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. FE.058

Elzbieta Paszkowski (plaintiff) v. The Attorney General of Canada, The Minister of Citizenship and Immigration, Hugh Lovekin, Randy Gurlock, and Robert Ferguson (defendants)

(T-2071-04; 2006 FC 198)

Indexed As: Paszkowski v. Canada (Attorney General) et al.

Federal Court

Mosley, J.

February 15, 2006.

Summary:

The plaintiff claimed that Citizenship and Immigration Canada officials committed the torts of public misfeasance and malfeasance by delaying the processing of her June 5, 1990, permanent residence application and that her Charter rights were violated. The defendants moved for summary judgment to dismiss the plaintiff's action.

The Federal Court granted the motion and dismissed the plaintiff's action.

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - On June 5, 1990, the plaintiff applied for permanent residence - The plaintiff brought an action, claiming, inter alia, that the delay by Citizenship and Immigration Canada officials in processing her application for permanent residence violated her s. 15 Charter rights - The plaintiff asserted that she was denied the right to the equal benefit of the law because the defendants would not process her application separate from, and without considering, the circumstances of her husband - The Federal Court granted a motion for summary judgment to dismiss the action - The plaintiff failed to show how s. 15(1) of the Charter had been infringed by the application of the statutory provisions governing permanent residence applications - See paragraph 98.

Limitation of Actions - Topic 7541

Actions against the Crown - Torts or delicts - General - The plaintiff claimed that Citizenship and Immigration Canada officials committed the torts of public misfeasance and malfeasance by delaying the processing of her June 5, 1990, permanent residence application - The plaintiff argued, inter alia, that the defendants were under a duty to inform the plaintiff of a change in the Immigration Act which took effect on February 1, 1993, and to promptly process her application for permanent residence after that date without considering her husband's status as an inadmissible criminal - At issue was whether the plaintiff's action was statute barred by the two year limitation periods in the applicable Ontario and Alberta Limitations Acts - The Federal Court held that the plaintiff's claims were statute-barred - The plaintiff was presumed to have known the state of the law and therefore should have acted more diligently in bringing forward her cause of action within the prescribed period - The defendants owed no duty to the plaintiff to inform her of the amendment or to reprocess her application after February 1, 1993 - See paragraphs 66 to 71.

Limitation of Actions - Topic 9324

Postponement or suspension of statute - Fraud - Fraudulent or wilful concealment - The plaintiff claimed that Citizenship and Immigration Canada officials committed the torts of public misfeasance and malfeasance by delaying the processing of her June 5, 1990, permanent residence application - The plaintiff argued, inter alia, that the defendants knew information about the plaintiff's husband which they deliberately concealed from the adjudicator who found him to be inadmissible in 1990, which affected the plaintiff's application for landing - At issue was whether the plaintiff's action was statute barred by the two year limitation periods in the applicable Ontario and Alberta Limitations Acts - The plaintiff relied on s. 4(1) of the Alberta Limitations Act, which provided that the running of time was suspended during any period in which the defendant fraudulently concealed the fact that "the injury for which a remedial order is sought has occurred" - The Federal Court held that the running of the prescription period was not suspended by reason of fraudulent concealment - Where a "special relationship" existed, such as a fiduciary relationship, the withholding of information could constitute fraudulent concealment - However, there was no fiduciary relationship between the parties in this case - See paragraphs 59 to 62.

Practice - Topic 5374

Dismissal of action - Grounds - General and want of prosecution - Collateral attack on administrative decision - On June 5, 1990, the plaintiff applied for permanent residence - By a letter dated June 4, 1991, the plaintiff was notified that her application could not be processed as her husband was criminally inadmissible - In 1993, s. 46.04(3) of the Immigration Act was repealed and re-enacted without the reference to an inadmissible non-dependant family member - In 1997, the plaintiff re-applied for permanent residence - She was granted permanent residence in 2001 - The plaintiff claimed that Citizenship and Immigration Canada officials committed the torts of public misfeasance and malfeasance by delaying the processing of her permanent residence application and that her Charter rights were violated - The Federal Court held that the plaintiff's action was in the nature of a collateral attack on the June 4, 1991, decision to deny her application for landing - To succeed in her action, she had to establish that that decision was incorrectly made or that the continuing decision not to land her was wrong - The court concluded that "Having failed to ask a court to invalidate those decisions by way of applications for judicial review within the time limits fixed by the statute, it would be inappropriate to allow her to circumvent those requirements by bringing an action for damages" - See paragraphs 72 to 81.

Torts - Topic 9165.1

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Immigration authorities - The plaintiff claimed that Citizenship and Immigration Canada officials committed the torts of public misfeasance and malfeasance by delaying the processing of her June 5, 1990, permanent residence application - The Federal Court granted a motion for summary judgment to dismiss the claims - The plaintiff had not established, prima facie, that she was owed a duty of care by the immigration officials who dealt with her application for permanent residence - It was not reasonably foreseeable that the plaintiff would be harmed in the ways she alleged by the denial of her claim - The necessary proximity was not established - See paragraphs 82 to 97.

Cases Noticed:

Paszkowski v. Canada (Minister of Citizenship and Immigration) et al., [2001] F.T.R. Uned. 58; 11 Imm.L.R.(3d) 28; 103 A.C.W.S.(3d) 400 (T.D.), refd to. [para. 2].

Granville Shipping Co. v. Pegasus Lines Ltd. S.A. et al., [1996] 2 F.C. 853; 111 F.T.R. 189 (T.D.), refd to. [para. 36].

MacNeil et al. v. Canada (Minister of Indian Affairs and Northern Development) (2004), 316 N.R. 349; 2004 FCA 50, refd to. [para. 38].

ITV Technologies Inc. v. WIC Television Ltd., [2001] N.R. Uned. 33; 2001 FCA 11, refd to. [para. 39].

Cairns et al. v. Farm Credit Corp. et al., [1992] 2 F.C. 115; 49 F.T.R. 308 (T.D.), refd to. [para. 42].

Canada (Conseil Des Ports Nationaux) v. Langelier, [1969] S.C.R. 60; 2 D.L.R.(3d) 81, refd to. [para. 42].

Dix v. Canada et al.(2001), 290 A.R. 281; 2001 ABQB 256, refd to. [para. 42].

Farzam v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 91; 2003 FCT 140, refd to. [para. 46].

Marshall v. Canada, [2005] F.T.R. Uned. 162; 137 A.C.W.S.(3d) 522; 2005 FC 257, refd to. [para. 46].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429, refd to. [para. 50].

Kitchen v. Royal Airforces Association, [1958] 2 All E.R. 241 (C.A.), refd to. [para. 60].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, refd to. [para. 60].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 60].

Kruger v. R., [1986] 1 F.C. 3; 58 N.R. 241; 17 D.L.R.(4th) 591 (F.C.A.), refd to. [para. 62].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1; 30 D.L.R.(4th) 481, refd to. [para. 67].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 67].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 67].

Nepean Hydro Electric Commission v. Ontario Hydro, [1982] 1 S.C.R. 347; 41 N.R. 1, refd to. [para. 67].

Thompson & Alix Ltd. v. Smith, [1933] S.C.R. 172, refd to. [para. 67].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 31 D.L.R.(4th) 481, refd to. [para. 69].

McFarlane v. Canada, [1997] F.C.J. No. 1559 (T.D.), refd to. [para. 69].

Baron v. Canada, [2000] F.T.R. Uned. 137; 95 A.C.W.S.(3d) 655 (T.D.), refd to. [para. 69].

Tremblay v. Canada (Procureur général), [2004] 4 F.C.R. 165; 327 N.R. 160; 244 D.L.R.(4th) 422 (F.C.A.), leave to appeal denied (2004), 338 N.R. 393 (S.C.C.), refd to. [para. 73].

Ding v. Canada, [2005] F.T.R. Uned. 288; 138 A.C.W.S.(3d) 667; 2005 FC 442, refd to. [para. 76].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 76].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1; 24 C.R.(4th) 281; 107 D.L.R.(4th) 342, refd to. [para. 76].

Veleta v. Canada (Minister of Citizenship and Immigration) (2005), 273 F.T.R. 108; 254 D.L.R.(4th) 484; 2005 FC 572, refd to. [para. 76].

Szebenyi v. Canada (1999), 247 N.R. 290; 91 A.C.W.S.(3d) 936 (F.C.A.), refd to. [para. 77].

Grenier v. Canada (2005), 344 N.R. 102; 2005 FCA 348, consd. [para. 79].

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. 85].

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

Anns v. Merton London Borough Council, [1978] A.C. 728, refd to. [para. 86].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 10 D.L.R.(4th) 641, refd to. [para. 86].

Premakumaran v. Canada, [2005] F.T.R. Uned. 678; 33 C.C.L.T.(3d) 307; 2005 FC 1131, consd. [para. 87].

Benaissa v. Canada (Attorney General), [2005] F.T.R. Uned. A68; 2005 FC 1220, consd. [para. 89].

Farzam v. Canada (Minister of Citizenship and Immigration) (2005), 284 F.T.R. 158; 144 A.C.W.S.(3d) 375; 2005 FC 1659, consd. [para. 90].

Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189; 227 F.T.R. 272; 2003 FCT 211, refd to. [para. 94].

Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315; 35 A.C.W.S.(2d) 253 (T.D.), refd to. [para. 94].

Chrispen v. Kalinowski, [1998] 8 W.W.R. 190; 156 Sask.R. 58; 148 D.L.R.(4th) 720 (Q.B.), refd to. [para. 99].

Chrispen v. Prince Albert (City) Police Department - see Chrispen v. Kalinowski.

Alford et al. v. Canada (Attorney General) et al., [1997] B.C.T.C. Uned. 123; 31 B.C.L.R.(3d) 228; 68 A.C.W.S.(3d) 826 (S.C.), refd to. [para. 99].

Counsel:

Graham Price, for the plaintiff;

Brad Hardstaff, for the defendants.

Solicitors of Record:

Graham Price, Calgary, Alberta, for the plaintiff;

John H. Sims, Q.C., Deputy Attorney General of Canada, Edmonton, Alberta, for the defendants.

This motion was heard on November 15, 2005, at Calgary, Alberta, before Mosley, J., of the Federal Court, who delivered the following decision on February 15, 2006.