Date: 20010206
Docket: T-1816-00
Citation: 2001 FCT 32
BETWEEN:
DAVINDER SINGH
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] In this action the plaintiff Mr. Singh seeks, in addition to damages and other relief, mandamus and injunctive relief. The defendant has brought a motion seeking an order striking the statement of claim without leave to amend.
[2] It is alleged in paragraphs 5, 6, 7 and 21 of the statement of claim that the action arises from the decision of a visa officer in Buffalo, U.S.A. made in February of 2000, to deny Mr. Singh's application for permanent residence in Canada. It further appears from paragraph 6 of the statement of claim, and from the affidavit of Martin Anderson filed in support of the defendant's motion, that such decision is already the subject of an application for judicial review brought by the plaintiff in Court File No. IMM-3786-00.
[3] This Court has previously held that in cases such as this, the proper course of action for a plaintiff is to pursue an application for judicial review pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, and then, if successful, to bring an action for damages (see: Zubi v. Canada (1993), 71 F.T.R. 168 (T.D.)). I agree.
[4] For that reason, this action should not have been brought at this time and should be struck out, with leave to the plaintiff to apply to the Court for leave to amend the statement of claim, if, and only if, the plaintiff is successful in his pending application for judicial review in Court File No. IMM-3786-00.
[5] Should a motion be made at that time to amend the claim, the proposed amended statement of claim must comply with the Rules of this Court, including what are now Rules 173, 174, 181 and 182 of the Federal Court Rules, 1998. I accept the submissions of the defendant that, as presently framed, the claim pleads insufficient material facts to allow the Court to regulate the proceedings in this action (see: Murray v. Public Service Commission et al. (1978), 21 N.R. 230 (F.C.A.) at page 236). It is not sufficient to plead bare assertions of a violation of a right. As well, a statement of claim should not plead evidence or advance argument.
[6] The defendant did not request costs, and none are awarded.
ORDER
[7] THEREFORE, IT IS ORDERED THAT:
The statement of claim is struck out, with leave to the plaintiff to apply to the Court for leave to amend the claim if, and only if, he is successful in his pending application for judicial review in Court File No. IMM-3786-00.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
February 6, 2001