IMM-1316-97
B E T W E E N:
ANGELA CHESTERS
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The plaintiff has sought declarations and damages in this action against the Crown and the Minister of Citizenship and Immigration. The Deputy Attorney General has moved by the motion before me, to strike the Statement of Claim in its entirety or, in the alternative, to strike those portions of the prayer for relief (paragraph 49) seeking declarations and staying the remainder of the action (that part seeking damages) until an appropriate application for judicial review is finally decided.
The Deputy Attorney General argues that s. 18 of the Federal Court Act by requiring that declaratory relief against the federal board commencing in other tribunal be obtained only on an application for judicial review, precludes obtaining declaratory relief in an action. The plaintiff argues that because the tribunal had no jurisdiction to determine that the legislation was void for infringing the Charter, this Court cannot so determine on a judicial review of a decision of the tribunal.
In addition, the Deputy Attorney General argues that damages are not generally awarded under s. 24(1) of the Charter where the actions complained of were taken before the legislation purporting to authorize the actions was set aside under s. 52. The plaintiff argues that while that may be the situation generally, this is arguably a special situation and whether or not it is should be determined at trial.
I note that in my view, there are two or three categories of declaration involved in the prayer for relief. The relevant parts of that prayer for relief read as follows:
| (a) a declaration that section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, is inconsistent with sections 7 and 15(1) of the Charter, and therefore is of no force and effect pursuant to section 52(1) of the Constitution Act 1982, and cannot be saved under section 1 of the Charter; |
| (b) a declaration that the defendant's denial of her application for permanent resident status on the grounds that she is inadmissible under section 19(1)(a)(ii) of the Immigration Act, is a violation of her rights under section 7 and section 15(1) of the Charter; |
| (c) a declaration that she is entitled to permanent resident status in Canada; |
| (d) in the event that s.19(1)(a)(ii) is found to be of no force and effect under s.52(1) of the Constitution Act, 1982, and the declaration of invalidity is suspended to allow the defendant to amend the impugned provisions, a constitutional exemption from the application from s.19(1)(a)(ii); |
Subparagraph (a) of paragraph 49 of the prayer for relief deals with the validity of the legislation and only consequential with the tribunal's decision if at all. Subparagraph (b) involves the tribunal's decision to deny the plaintiff her alleged rights which would be the proper subject for judicial review. Subparagraph (c) involves a decision that the tribunal could make, but I question the jurisdiction of this Court to make the declaration requested. Subparagraph (d) is in my view, dependent on subparagraph (a) and should stand or fall with it.
Dealing with declarations of the nature of that in subparagraph (a), I note, they would declare the legislation void. Subparagraph (a) does not in its face involve any federal board, commission or other tribunal. This type of declaration must be distinguished from the declaration mentioned in s. 18 of the Federal Court Act, if for no other reason than that it is beyond the powers of the central government to give exclusive jurisdiction to the Federal Court, the provincial courts having also the right to declare legislation ultra vires or find that it offends the Charter. In addition, such a declaration is not on it face impugning a decision of any federal board, commission or other tribunal. It is impugning legislation of Parliament. I find that a declaration of this type may be sought in an action. Subparagraph (b), as earlier indicated, involves impugning the decision of a board, commission or other tribunal and should rightly be sought only in judicial review proceedings.
In my view, subparagraphs (b) and (c) of the prayer for relief must be struck out. Subparagraphs (a) and (d) can properly remain in an action to declare the legislation void and for damages (the "damage action"). Because I agree with the submissions of counsel for the plaintiff that the question of whether or not damages can be awarded for actions taken before legislation is found ultra vires is a matter that should be decided by the Trial Judge. I will not strike the damage action. I do not intend to stay the damage action because, in my view, the plaintiff can proceed with her action to have the legislation declared void and possibly to obtain damages whether or not the decision of the tribunal is set aside. In any event, if the legislation is set aside, I question whether to impugn the tribunal's decision is a more efficient way of getting the plaintiff into Canada than making a fresh application to a tribunal which would be aware of any decision of this Court setting the legislation aside.
ORDER
Subparagraphs (b) and (c) of paragraph 49 of the Statement of Claim are struck out. The plaintiff shall have three (3) weeks within which to file an Amended Statement of Claim giving effect to the foregoing and also making any consequential changes. The defendant shall have thirty (30) days after service of an Amended Statement of Claim within which to file a Defence.
Costs of this motion shall be in the cause.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
July 9, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1316-97
STYLE OF CAUSE: ANGELA CHESTERS
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| HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: JULY 9, 1997
SOLICITORS OF RECORD:
Ms. Sharon Ffolkes Abrahams
| ARCH |
40 Orchard View Boulevard
Suite 255
Toronto, Ontario
M4R 1B9
Solicitor for the Plaintiff
George Thomson
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Court No. IMM-1316-97
Between:
ANGELA CHESTERS
Applicant
- and -
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER & ORDER