Van Vlymen v. Canada (Solicitor General), 2004 FC 1054

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: April 08, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FC 1054;(2004), 258 F.T.R. 1 (FC)

Van Vlymen v. Can. (2004), 258 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. AU.029

David Clare Van Vlymen (applicant) v. Solicitor General of Canada (respondent)

(T-211-00; 2004 FC 1054)

Indexed As: Van Vlymen v. Canada (Solicitor General)

Federal Court

Russell, J.

August 3, 2004.

Summary:

The applicant was a Canadian citizen incarcerated in the United States of America. He applied under s. 6 of the Transfer of Offenders Act and Regulations for approval of his transfer to Canada. The applicant applied for judicial review, alleging significant delay in making the decision. Shortly after the application was brought, the respondent approved his transfer. The respondent argued that the application was now moot. The applicant requested that part of his application be converted to an action for damages.

The Federal Court held that the application was not moot. The court found that between approximately January 1991 and March 2000, the respondent neglected and/or deliberately failed to consider the applicant's request for a transfer and/or refused that request. The court held that the respondent thereby breached the applicant's ss. 6(1) and 7 Charter rights and the common law duty to act fairly in processing the transfer application. The court ordered complete disclosure of all materials and documentation in the respondent's possession relevant to the matters complained of by the applicant and costs to the applicant on a solicitor/client basis, payable forthwith. The court held that it was not possible to convert the application to an action as the court had now completed the judicial review process of the application and granted the applicant most of the relief sought by way of judicial review.

Administrative Law - Topic 3214

Judicial review - General - Remedies - The applicant was a Canadian citizen incarcerated in the United States of America - He applied under s. 6 of the Transfer of Offenders Act and Regulations for approval of his transfer to Canada - The applicant applied for judicial review, alleging significant delay in making the decision - He sought, inter alia, damages - The Federal Court held that it had no jurisdiction to award damages in judicial review proceedings - See paragraph 119.

Civil Rights - Topic 505

Mobility rights - General - Right to enter Canada or a province - The applicant was a Canadian citizen incarcerated in the United States of America - He applied under s. 6 of the Transfer of Offenders Act and Regulations for approval of his transfer to Canada - The applicant applied for judicial review, alleging significant delay in making the decision - Shortly after the application was brought, the respondent approved his transfer - The Federal Court found that between approximately January 1991 and March 2000, the respondent neglected and/or deliberately failed to consider the applicant's request for a transfer and/or refused that request - The court held that the respondent thereby breached the applicant's s. 6(1) Charter right to enter Canada, his s. 7 Charter rights to liberty and security of his person, and the common law duty to act fairly in processing the transfer application - The court ordered disclosure of materials and documentation to the applicant and, given the respondent's reprehensible conduct, costs on a solicitor/client basis, payable forthwith.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See Civil Rights - Topic 505 ].

Civil Rights - Topic 1369.2

Security of the person - Institutional inmates - Transfers - [See Civil Rights - Topic 505 ].

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - [See Civil Rights - Topic 505 ].

Civil Rights - Topic 8380.21

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Discovery or production of evidence - [See Civil Rights - Topic 505 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The applicant was a Canadian citizen incarcerated in the United States of America (US) - He applied under s. 6 of the Transfer of Offenders Act and Regulations for approval of his transfer to Canada - The applicant applied for judicial review, alleging significant delay in making the decision - Shortly after the application was brought, the respondent approved his transfer - The Federal Court held that approval of the transfer did not render the application moot - The real "matter" that was the focus of the application was not the respondent's decision approving the applicant's return to Canada to serve out his prison sentence; it was the roughly 10 years of procrastination, evasiveness, obfuscation and general bad faith by the respondent that ensured that the applicant remained in the US prison system as long as possible, and that postponed the transfer decision in favour of the applicant until formal legal proceedings were commenced against the respondent - See paragraph 80.

Practice - Topic 2493

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Conversion to or from formal action - The applicant was a Canadian citizen incarcerated in the United States of America - He applied under s. 6 of the Transfer of Offenders Act and Regulations for approval of his transfer to Canada - The applicant applied for judicial review, alleging significant delay in making the decision - Shortly after the application was brought, the respondent approved his transfer - The applicant requested that part of his application be converted to an action for damages - The Federal Court found that the respondent breached the applicant's ss. 6(1) and 7 Charter rights, and the common law duty to act fairly in processing the transfer application - The court held that it was not possible to convert the application to an action as the court had now completed the judicial review process of the application and granted the applicant most of the relief sought by way of judicial review.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Civil Rights - Topic 505 ].

Cases Noticed:

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 13].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1; 2002 SCC 68, refd to. [para 14].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 16].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161; 90 D.L.R.(4th) 289, refd to. [para. 17].

Solis v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 272 (T.D.), refd to. [para. 17].

Lavoie et al. v. Canada et al. (1999), 242 N.R. 278; 174 D.L.R.(4th) 588 (F.C.A.), affd. (2002), 284 N.R. 1; 210 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 19].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182; 48 C.C.C.(3d) 193, refd to. [para. 22].

United States of America v. Burns and Rafay (2001), 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 23].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 50 C.C.C.(2d) 353, refd to. [para. 31].

Mooring v. National Parole Board et al., [1996] 1 S.C.R. 75; 192 N.R. 161; 70 B.C.A.C. 1; 115 W.A.C. 1; 104 C.C.C.(3d) 97, refd to. [para. 31].

Garcia v. Crestbrook Forest Industries Ltd. (No. 2) (1994), 45 B.C.A.C. 222; 72 W.A.C. 222; 119 D.L.R.(4th) 740 (C.A.), refd to. [para. 40].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 24 W.A.C. 284; 74 B.C.L.R.(2d) 311 (C.A.), refd to. [para. 40].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 40].

Canada v. Amway Corp. et al., [1986] 2 C.T.C. 339; 72 N.R. 211 (F.C.A.), refd to. [para. 40].

Bank of Credit and Commerce International (Overseas) Ltd. (Liquidation) et al. v. Akbar et al. (2001), 150 B.C.A.C. 58; 245 W.A.C. 58; 2001 BCCA 204, refd to. [para. 41].

Stiles v. Workers Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), refd to. [para. 41].

Koehler v. Warkworth Institution Disciplinary Court (Independent Chairperson) et al. (1991), 45 F.T.R. 87 (T.D.), refd to. [para. 41].

Sun Life Assurance Co. of Canada v. Ritchie et al. (2000), 136 B.C.A.C. 215; 222 W.A.C. 215; 2000 BCCA 231, leave to appeal refused (2000), 264 N.R. 393; 152 B.C.A.C. 319; 250 W.A.C. 319 (S.C.C.), refd to. [para. 42].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 44].

MacKay et al. v. Manitoba (1989), 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 48].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 58].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 58].

Irwin Toy Ltd. v. Quebec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 73].

Sauvé v. Canada (Chief Electoral Officer) et al., [2000] 2 F.C. 117; 248 N.R. 267 (F.C.A.), refd to. [para. 73].

Sauvé v. Canada (Chief Electoral Officer) et al., [2002] 3 S.C.R. 519; 294 N.R. 1; 2002 SCC 68, refd to. [para. 73].

Al-Mhamad v. Canadian Radio-Television and Telecommunications Commission et al., [2003] N.R. Uned. 2; 2003 CarswellNat 186; 2003 FCA 45, refd to. [para. 119].

Lussier v. Collin, [1985] 1 F.C. 124 (F.C.A.), refd to. [para. 119].

Authors and Works Noticed:

Batchelor, Carol, Statelessness and the Problem of Resolving Nationality Status (1998), 10 Int'l J. of Refugee Law 156, p. 159 [para. 20].

Chan, J.M.M., The Right to a Nationality as a Human Right: the Current Trend Towards Recognition (1991), 12 Human Rights L.J. 1, p. 8 [para. 21].

Counsel:

John W. Conroy, for the applicant;

Keitha Richardson and Curtis Workun, for the respondent.

Solicitors of Record:

Conroy & Company, Abbotsford, British Columbia, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, B.C., on April 8, 2004, by Russell, J., of the Federal Court, who delivered the following decision on August 3, 2004.