Samimifar v. Canada (Minister of Citizenship and Immigration) et al., (2007) 367 N.R. 140 (FCA)

• Judge: Sexton, Sharlow and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 25, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 367 N.R. 140 (FCA);2007 FCA 248

Samimifar v. Can. (M.C.I.) (2007), 367 N.R. 140 (FCA)

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: [2007] N.R. TBEd. JL.019

The Minister of Citizenship and Immigration and Her Majesty the Queen (appellants) v. Hassan Samimifar (respondent)

(A-485-06; 2007 FCA 248; 2007 CAF 248)

Indexed As: Samimifar v. Canada (Minister of Citizenship and Immigration) et al.

Federal Court of Appeal

Sexton, Sharlow and Ryer, JJ.A.

June 25, 2007.

Summary:

Samimifar, an Iranian national, came to Canada in 1985. In 1994 he was granted approval in principle for acceptance and processing of an application for permanent residence from within Canada. From 1994 to 2003, his application was subject to inaction or inattention; however, in January 2003, he was notified that he was inadmissible to Canada because there were reasonable grounds to believe that he was a member of a terrorist organization. A judicial review resulted in the quashing of that decision in May 2003. The redetermination had not taken place. In addition to continuing to pursue his administrative efforts to become a permanent resident, Samimifar commenced an action against the Minister of Citizenship and Immigration in August 2003. In subsequent amendments to the statement of claim, Samimifar added Her Majesty the Queen as a defendant. He claimed that the defendant, through her agent Minister, was negligent or in violation of his rights under ss. 7 and 24(1) of the Charter and sought declaratory relief under s. 52 of the Charter. Her Majesty the Queen sought summary judgment dismissing all or part of the claim, alleging that Samimifar failed to pursue his available judicial review remedies and there was no private law duty of care owed by immigration officials to Samimifar that would give rise to potential liability in negligence or that would allow recovery of damages pursuant to the Charter.

The Federal Court, in a decision reported (2006), 302 F.T.R. 163, dismissed Her Majesty the Queen's motion for summary judgment. Her Majesty the Queen appealed.

The Federal Court of Appeal dismissed the appeal.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Torts - Topic 9165.1 ].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - [See Torts - Topic 9165.1 ].

Torts - Topic 9165.1

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Immigration authorities - The Crown sought to dismiss a claim by an Iranian national (the plaintiff) for damages that he allegedly suffered as a result of a delay on the part of Citizenship and Immigration Canada in processing his application for permanent residence in Canada - The motions judge determined that the test for summary judgment was whether there was a genuine issue for trial - Having reviewed the evidence, the extensive caselaw that the motions judge was directed to and the detailed arguments of counsel, she determined that even though there were many difficulties with the plaintiff's case, it had not been established that his case was so doubtful that it did not deserve to be heard by the trial court - Accordingly the motions judge concluded that there was a genuine issue for trial and dismissed the Crown's motion - The Crown appealed - The Federal Court of Appeal stated that it was unable to discern any error of law or any palpable and overriding factual error on the part of the motions judge in reaching her decision and accordingly, without commenting upon the merits of the claim, the court dismissed the appeal with costs.

Counsel:

Marina Stefanovic and Margherita Braccio, for the appellant;

Lorne Waldman and Tanya Tokar, for the respondent.

Solicitors of Record:

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

Waldman & Associates, Toronto, Ontario, for the respondent.

This appeal was heard in Toronto, Ontario, on June 25, 2007, before Sexton, Sharlow and Ryer, JJ.A., of the Federal Court of Appeal. The following decision was delivered from the bench, for the court, by Ryer, J.A., on June 25, 2007.