Samimifar v. Canada (Minister of Citizenship and Immigration) et al., 2006 FC 1301

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: September 26, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 1301;(2006), 302 F.T.R. 163 (FC)

Samimifar v. Can. (M.C.I.) (2006), 302 F.T.R. 163 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. NO.060

Hassan Samimifar (plaintiff) v. The Minister of Citizenship and Immigration and Her Majesty The Queen (defendants)

(IMM-6468-03; 2006 FC 1301)

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

Federal Court

Snider, J.

October 30, 2006.

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 dismissed Her Majesty the Queen's motion for summary judgment.

Civil Rights - Topic 1321

Security of the person - Immigration - General - Samimifar, an Iranian national, came to Canada in 1985, and had been unsuccessfully seeking to become a permanent resident since his arrival - The claim was approved in principle in 1994 but was subject to inattention or inaction - In 2003, he sued the Minister of Citizenship and Immigration and subsequently added Her Majesty the Queen as a defendant, claiming Charter damages based on psychological harm caused by negligence or unreasonable delay - Her Majesty the Queen moved for summary judgment dismissing the claim, arguing that s. 7 was not engaged and, in any event, damages could not be awarded under s. 24(1) of the Charter where there was no evidence of "bad faith" or "willful disregard" - The Federal Court refused to grant summary judgment on this ground - The court stated that the pleadings disclosed an issue as to whether s. 7 was engaged and the issue of whether the alleged deprivation of his right to security of the person was in accordance with the principles of natural justice was a question better left for trial - As to damages, the court stated that the pleadings, while not using the words "bad faith" or "wilful disregard" laid out a pattern that, if proven, could be considered to be a gross departure from the behaviour expected from public servants - The court opined that possibly "bad faith" or "willful disregard" were not essential to the claim for damages - See paragraphs 70 to 79.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 1321 ].

Courts - Topic 4039

Federal Court of Canada - Jurisdiction - Federal Court - Civil actions - [See Courts - Topic 4075 ].

Courts - Topic 4052

Federal Court of Canada - Jurisdiction - Federal Court - Requirement of lack of other remedy - [See Courts - Topic 4075 ].

Courts - Topic 4074

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Summary judgment proceedings - The Federal Court noted that summary judgment should be granted where there is no genuine issue for trial - The court reviewed the considerations to be applied in determining whether summary judgment should be granted - See paragraphs 13 to 15.

Courts - Topic 4075

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Commencement of action - Samimifar, an Iranian national, came to Canada in 1985 and sought permanent residence (PR) status - In 1994 his application was approved in principle - From 1994 to 2003, his application was subject to inaction or inattention - In January 2003, he was notified that he was inadmissible (terrorism connections) - 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 and Her Majesty the Queen alleging that the delay between 1994 and 2003 in processing his permanent residence claim constituted negligence and Charter violations - Her Majesty the Queen sought summary judgment dismissing the claim, arguing that Samimifar was precluded from bringing this action because he did not first seek relief by way of extraordinary remedy under s. 18.1 of the Federal Courts Act - The Federal Court refused to grant summary judgment on this ground, holding that Samimifar was not precluded from bringing his action - See paragraphs 16 to 41.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - [See Courts - Topic 4075 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Civil Rights - Topic 1321 , Courts - Topic 4074 , Courts - Topic 4075 and Torts - Topic 9165.1 ].

Torts - Topic 9165.1

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Immigration authorities - Samimifar, an Iranian national, came to Canada in 1985, and had been unsuccessfully seeking to become a permanent resident since his arrival - The claim was approved in principle in 1994 but was subject to inattention or inaction - In 2003, he commenced an action against the Minister of Citizenship and Immigration and subsequently added Her Majesty the Queen as a defendant, claiming the delay in processing his claim constituted negligence - Her Majesty the Queen sought summary judgment dismissing the claim, alleging that 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 refused to grant summary judgment on these grounds - The court stated that on the question of duty of care, sufficient facts had been pleaded to show a prima facie case that the defendant, in this particular situation, owed a duty of care to Samimifar and he should be permitted to bring this question before the trial judge - The court stated further, that policy considerations did not preclude the imposition of a duty of care where an immigration officer, as alleged in this case, completely ignored a file - See paragraphs 42 to 69.

Cases Noticed:

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299, refd to. [para. 7].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

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. 13].

Premakumaran v. Canada (2006), 351 N.R. 165; 2006 FCA 213, refd to. [para. 14].

Newtec Print & Copy Inc. v. Woodley, [2001] O.T.C. Uned. B13 (Sup. Ct.), leave to appeal refused [2001] O.J. No. 5634 (Div. Ct.), refd to. [para. 14].

Mensah v. Robinson, [1989] O.J. No. 239 (H.C.), refd to. [para. 14].

Trojan Technologies Inc. v. Suntec Environmental Inc. (2004), 320 N.R. 322; 2004 FCA 140, refd to. [para. 14].

Tremblay v. Canada (Procureur général), [2004] 4 F.C.R. 165; 327 N.R. 160; 2004 FCA 172, leave to appeal refused (2004), 338 N.R. 393 (S.C.C.), dist. [para. 16].

Grenier v. Canada (2005), 344 N.R. 102; 2005 FCA 348, dist. [para. 16].

Mohiuddin v. Canada (2006), 295 F.T.R. 96; 2006 FC 664, dist. [para. 16].

Dhalla et al. v. Canada (Minister of Citizenship and Immigration) (2006), 286 F.T.R. 255 (F.C.), dist. [para. 16].

Morgan v. Canada (1998), 117 B.C.A.C. 296; 191 W.A.C. 296 (C.A.), refd to. [para. 16].

Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.), refd to. [para. 16].

Khalil v. Canada (Minister of Citizenship and Immigration) (2004), 252 F.T.R. 292; 2004 FC 732, refd to. [para. 30].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 43].

W. v. Home Office, [1997] E.W.J. No. 3289 (C.A.), dist. [para. 47].

Premakumaran v. Canada, [2005] F.T.R. Uned. 678 (F.C.), affd. (2006), 351 N.R. 165; 2006 FCA 213, dist. [para. 51].

Benaissa v. Canada (Attorney General), [2005] F.T.R. Uned. A68 (F.C. Protho.), dist. [para. 57].

Farzam v. Canada (Minister of Citizenship and Immigration) (2005), 284 F.T.R. 158; 2005 FC 1659, dist. [para. 61].

A.O. Farms Inc. v. Canada (Minister of Agriculture) et al., [2000] F.T.R. Uned. 510 (T.D.), refd to. [para. 61].

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. 66].

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

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, refd to. [para. 71].

Swerid v. Persoage et al., [1996] M.J. No. 172 (Q.B. Master), refd to. [para. 76].

Pinnock v. Ontario, [2001] O.J. No. 2921 (Sup. Ct.), refd to. [para. 79].

Osborne v. Ontario (Attorney General) et al. (1996), 10 O.T.C. 256 (Gen. Div.), affd. (1998), 115 O.A.C. 291 (C.A.), refd to. [para. 79].

Howell et al. v. Ontario (1998), 61 O.T.C. 336; 159 D.L.R.(4th) 566 (Gen. Div.), refd to. [para. 79].

Pearson v. Canada (2006), 297 F.T.R. 121; 2006 FC 931, refd to. [para. 82].

Hawley et al. v. Bapoo et al., [2005] O.T.C. 894; 76 O.R.(3d) 649 (Sup. Ct.), refd to. [para. 83].

Authors and Works Noticed:

Roach, Kent, Constitutional Remedies in Canada (2004), para. 11.560 [para. 85].

Counsel:

Lorne Waldman and Lobat Shadrehashemi, for the plaintiff;

Marina Stefanovic and Claire le Riche, for the defendants.

Solicitors of Record:

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

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

This motion was heard on September 26, 2006, at Toronto, Ontario, before Snider, J., of the Federal Court, who delivered the following reasons for order at Ottawa, Ontario, on October 30, 2006.