Date: 20030210
Docket: T-626-96
Neutral Citation No.: 2003 FCT 140
BETWEEN:
HUSSEIN FARZAM
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
(Delivered from the Bench at Ottawa,
Ontario on February 10, 2003)
[1] This is a motion for summary judgment, brought on behalf of the defendant. Its fundamental thrust is based upon allegations of prescription or limitation of the plaintiff's action. At the hearing, the defendant abandoned its secondary plea that it had no duty of care (see Anns v. Merton London Borough Council, [1978] AC 728 and Cooper v. Hobart, [2001] 3 S.C.R. 537) or any actionable duty for that matter. Of course, the defendant did not abandon this plea in the sense that, if and when the case goes to trial, the plea can be made again.
[2] The plaintiff is an immigrant from Iran. He arrived in this country in October of 1988. He obtained a work authorization from the Department in January of 1989 and he obtained landed status in November of 1991. From the outset, and indeed it would appear even prior to his coming into Canada, the plaintiff had made it clear to Immigration Officials that it was his wish that his wife whom he had married in 1984 in Tehran should, in due course, join him in Canada. There were a number of delays in dealing with the plaintiff's attempts to bring his wife to Canada, but in the end, and in part because of those delays, a Minister's permit was issued to allow her to come to Canada in January 1994.
[3] Unfortunately, as the plaintiff alleges, this was too late because his wife had been told on several occasions by Immigration Officials in Tehran that no proper application had been made to bring her when apparently this was not in fact the case. Indeed, what appears to have happened, and for what ever reason, is that two files were made for the wife's application and materials which were placed in one file did not appear in the other. That is why the plaintiff's wife was misinformed as to what he had done in order to bring her here. In any event, and be that as it may, she lost faith in the plaintiff and apparently divorced him in December of 1993.
[4] The present action was launched in August of 1995 in the Ontario Superior Court. At the defendant's request, that Court stayed the action allowing it to be recommenced in this Court which was duly done. But, the defendant accepts, and I certainly do not demur, that the effective date for counting for purposes of the limitation of actions is the date of the institution of the Ontario action, namely August 1995.
[5] The plaintiff's statement of claim can conveniently be divided into three quite separate claims. First, there is a claim based on alleged misrepresentations made to the plaintiff by an Immigration Official, outside of Canada, prior to the plaintiff ever coming to this country. Second, there is a claim based upon an alleged loss of employment opportunities because after his arrival here, the plaintiff was treated as a refugee claimant and, therefore, could not without authorization, obtain employment. And the third, is of course, the claim for damages resulting from the alleged marriage breakdown due to the defendant's negligent actions.
[6] I take the view that this action sounds solely in negligence. In argument, plaintiff's counsel attempted to assert claims based upon alleged breach of fiduciary duty, but not only was such breach not alleged, and therefore, cannot now be relied upon, but also in my view, there are no facts shown by the plaintiff which would support the essentials of a claim for breach of fiduciary duty. The plaintiff has not shown that he was particularly vulnerable, indeed the material before me indicates quite clearly that from an early stage after his arrival in Canada, he obtained the assistance of legal aid and had legal advice given to him. In my view, while it is true that the categories of fiduciary duty are not closed, they do not include the duties owed by Immigration Officials to immigrants who are in a position to and do obtain legal assistance for their dealings with the Department.
[7] The motion, as I said at the outset, is based upon limitation periods having expired when the action was brought. Two applicable limitation periods are alleged. The first is the 6 month period enacted by the Ontario Public Authorities Protection Act (R.S.O. 1990, c. P. 38). That statute is applicable to proceedings in this Court by the operation of section 32 of the Crown Liability and Proceedings Act (R.S.C. 1985, c. C-50). It extends its protection, however, only with regard to allegations of conduct, acts or omissions taking place within Ontario. With respect to conduct taking place outside Ontario, the same section of the Crown Liability and Proceedings Act enacts a 6 year limitation period.
[8] Clearly, in my view, on any reading and under either statute, the first two of the plaintiff's claims were out of time when the action was brought. What ever may have been said to him or not said to him before he arrived in Canada, was said or not said prior to October 1988. The action launched in August 1995 was out of time. By the same token, what ever job opportunities might have been closed to him because he was a convention refugee claimant, and did not have authority to work, that situation ended when he was issued authorization to work in January of 1989. Once again, whether we view the prescriptive period as 6 months or 6 years is immaterial because both periods had long since gone by when the action was brought. I would only add when making a finding that parts of the plaintiff's claim are subject to limitation, that there is absolutely nothing in this record to support a claim of non-discoverability due to an alleged medical condition on the plaintiff's part. In fact, there is no medical evidence of any kind.
[9] Now, turning to the claim or that part of the claim based upon the acts and omissions of the defendant and its officials in dealing with the request that the plaintiff's wife come to Canada, there is evidence upon which the Court might find that the delay in dealing with the wife's application was due to negligence in either the Tehran or Damascus offices of the defendant. Immigration Officials in those offices do not enjoy the protection of the Ontario Public Authority Protection Act in respect of acts or omissions done by them in those offices. Accordingly, that part of the claim which is based upon alleged negligence by officials in overseas offices of the Department appears to be timely and should not be dismissed.
[10] However, the claim must be limited to acts or omissions by officials of the Department committed outside Canada, and that part of it, which may be based upon acts or omissions of officials in Ontario, must likewise be dismissed.
[11] Accordingly, the motion will be allowed in part only and the plaintiff's action will be dismissed in so far as it claims damages for loss of employment opportunities, for misrepresentations made to him prior to his arrival in Canada and also for any claims based on failure to admit plaintiff's wife to Canada in so far as those claims rest upon alleged negligence of officers of the defendant not committed outside of Canada.
(Later)
[12] The defendant will have its costs of $1,500, payable forthwith and in any event of the cause.
ORDER
The plaintiff's action is dismissed in so far as it claims damages for loss of employment opportunities and for misrepresentations made to him prior to his arrival in Canada. The plaintiff's claims based on failure to admit his wife to Canada are also dismissed in so far as they rest upon alleged negligence of officers of the defendant not committed outside of Canada.
Costs to the defendant in the amount of $1,500 payable forthwith and in any event of the cause.
Judge
Ottawa, Ontario
February 10, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-626-96
STYLE OF CAUSE: HUSSEIN FARZAM v. HER MAJESTY THE QUEEN
DATE OF HEARING: February 10, 2003
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: February 10, 2003
APPEARANCES:
David Hughes FOR PLAINTIFF
Michael Roach FOR DEFENDANT
SOLICITORS ON THE RECORD:
Barnes Sammon LLP
Ottawa, Ontario FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT