Premakumaran v. Canada, 2006 FCA 213

• Judge: Linden, Nadon and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 29, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FCA 213;(2006), 351 N.R. 165 (FCA)

Premakumaran v. Can. (2006), 351 N.R. 165 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. JN.039

Selladurai Premakumaran and Nesamalar Premakumaran (appellants) v. Her Majesty the Queen (respondent)

(A-372-05; 2006 FCA 213)

Indexed As: Premakumaran v. Canada

Federal Court of Appeal

Linden, Nadon and Evans, JJ.A.

June 9, 2006.

Summary:

The appellants were immigrants in the professional skilled immigrant category who claimed that they were misled about the Canadian job situation by immigration au-thorities. The appellants commenced an ac­tion against the federal Crown, alleging fraudu­lent and negligent misrepresentation and discrimination. As remedies, damages were sought for expenses and pain and suf­fer­ing, as well as a mandamus ordering the federal government to do certain things to fix the immigration system and to apolo­gize public­ly. The Crown moved for sum­mary judg­­ment seeking to dismiss the appel­lants' claims.

The Federal Court, in a decision reported [2005] F.T.R. Uned. 678, granted summary judg­ment dismissing all claims. The appel­lants appealed.

The Federal Court of Appeal dismissed the appeal.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepre­sentation - [See Torts - Topic 77 ].

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - [See Torts - Topic 77 ].

Practice - Topic 5384

Dismissal of action - Application or mo­tion for dismissal - Circumstances when granted - The appellants, a husband and wife, immigrated to Canada in the pro­fes­sional skilled immigrant category - The husband had worked in the accounting field but since he did not have a recog­nized accounting designation he was un­able to find suitable work in Canada - The appellants sued the federal Crown, claim­ing fraudulent and negligent misrep­resenta­tion, that the processing fees were not used as professed and discrimination contrary to the Charter - They claimed that they were mis­led by the information and documen­ta­tion supplied to them by immi­gration au­thor­ities and that they were not provided with adequate assistance in find­ing jobs in Canada - As remedies they sought damages and mandamus requiring the federal gov­ern­ment to do certain things to fix the im­migration system and to apo­logize pub­licly - The Crown moved for summary judg­ment seeking to dismiss the appellants' claims - The Federal Court of Appeal af­firmed the dismissal of all claims.

Torts - Topic 76

Negligence - Duty of care - General prin­ciples - The Federal Court of Appeal re­viewed recent developments in the juris­prudence of the Supreme Court of Canada on the duty issue in the law of negligence - The court held that when a novel duty is­sue arose, the court had to first decide whether the jurisprudence had already es­tablished a duty of care because if the case was within either a category in which pre­ce­dent had held that a duty was owed or an analogous category, it was unneces­sary to go through the Anns/Cooper analy­sis, which was reserved only for novel duty sit­uations - Once it was established that the court was dealing with a new duty situa­tion, then the situation should be analyzed using the newly formulated two-step test set out by the Supreme Court in the Childs v. Desmoreaux case (2006) (i.e., (1) was there a sufficiently close relation­ship be­tween the parties or proxim­ity to justify imposition of a duty and, if so, (2) were there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom the duty was owed or the damages to which breach might give rise) - See para­graphs 11 to 16.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The appel­lants, a husband and wife, immigrated to Canada in the professional skilled immi­grant category - The husband had worked in the accounting field but since he did not have a recognized accounting designation he was unable to find suitable work in Can­ada - The appellants sued the federal Crown, alleging, inter alia, negligent mis­representation by immigration authorities about the job situation in Canada - The Crown moved for summary judgment dis­miss­ing the claim - The Federal Court of Appeal affirmed the dismissal of the claim - The court held that in this case a full Anns/Cooper analysis need not be under­taken because the claim was in essence one of liability for negligent mis­statement, an existing category of case where proximity could be posited - The court noted that the Supreme Court of Canada had established five elements for imposing liability for neg­ligent representa­tions - Here, the appel­lants failed to estab­lish a genuine issue to be tried on four of the five elements - See paragraphs 11 to 28.

Torts - Topic 8981

Duty of care - Particular relationships - Negligent words - General principles - [See Torts - Topic 77 ].

Torts - Topic 9151

Duty of care - Particular relationships - Claims against public officials, authorities or boards - General - [See Torts - Topic 76 .

Cases Noticed:

NFL Enterprises Limited Partnership v. 1019491 Ontario Ltd. et al. (1998), 229 N.R. 231; 85 C.P.R.(3d) 328 (F.C.A.), refd to. [para. 8].

Feoso Oil Ltd. v. Ship Sarla, [1995] 3 F.C. 68; 184 N.R. 307 (F.C.A.), refd to. [para. 8].

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, refd to. [para. 12].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 12].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 12].

Childs v. Desormeaux et al. (2006), 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 12].

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. 13].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 17].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 17].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), refd to. [para. 18].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 20].

Spinks v. Canada, [1996] 2 F.C. 563; 195 N.R. 184 (F.C.A.), refd to. [para. 23].

Gauthier v. Canada (Attorney General) (2000), 225 N.B.R.(2d) 211; 578 A.P.R. 211 (C.A.), refd to. [para. 23].

Luo v. Canada (Attorney General) (1997), 33 O.R.(3d) 300 (Div. Ct.), refd to. [para. 23].

Gadutsis et al. v. Milne et al., [1973] 2 O.R. 503 (H.C.), refd to. [para. 23].

Windsor Motors Ltd. v. Powell River (District) (1969), 4 D.L.R.(3d) 155 (B.C.C.A.), refd to. [para. 23].

H.L. & M. Shoppers Ltd. et al. v. Berwick (Town) et al. (1977), 28 N.S.R.(2d) 229; 43 A.P.R. 229 (T.D.), refd to. [para. 23].

Jung v. Burnaby (District) (1978), 91 D.L.R.(3d) 592 (B.C.S.C.), refd to. [para. 23].

Bell et al. v. Sarnia (City) (1987), 59 O.R.(2d) 123 (H.C.), refd to. [para. 23].

Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; 116 N.R. 1; 71 Man.R.(2d) 81; 44 O.A.C. 81, refd to. [para. 23].

Hodgins v. Hydro-Electric Commission of Nepean (Township), [1972] 3 O.R. 332 (Co. Ct.), revd. (1976), 10 O.R.(2d) 713 (C.A.), affd. [1976] 2 S.C.R. 501; 6 N.R. 451, refd to. [para. 23].

Moin v. Blue Mountains (Town) - see Moin v. Collingwood (Township).

Moin v. Collingwood (Township) (2000), 135 O.A.C. 278 (C.A.), refd to. [para. 23].

Granitile Inc. et al. v. Canada et al. (1998), 82 O.T.C. 84 (Gen. Div.), refd to. [para. 23].

Sevidal et al. v. Chopra et al. (1987), 64 O.R.(2d) 169 (H.C.), refd to. [para. 23].

David et al. v. Halifax (Regional Munici­pality) et al. (2003), 216 N.S.R.(2d) 325; 680 A.P.R. 325 (S.C.), affd. (2004), 228 N.S.R.(2d) 91; 723 A.P.R. 91 (C.A.), refd to. [para. 23].

Farzam v. Canada (Minister of Citizenship and Immigration) (2005), 284 F.T.R. 158; 144 A.C.W.S.(3d) 375; 2005 FC 1659, refd to. [para. 27].

Counsel:

Selladurai Premakumaran and Nesamalar Premakumaran, on their own behalfs;

Brad Hardstaff, for the respondent.

Solicitors of Record:

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

This appeal was heard in Edmonton, Al­berta, on May 29, 2006, by Linden, Nadon and Evans, JJ.A., of the Federal Court of Appeal. The following judgment of the court was delivered in Ottawa, Ontario, by Linden, J.A., on June 9, 2006.