Ottawa, Ontario, April 11, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] October 11, 2005 a regional director (Officer) of the Canada Border Services Agency decided that a performance bond granted by Ms. Tsang in the amount of $80,000.00 "is forfeited". Ms. Tsang seeks an order that this decision be set aside. For the reasons that follow, I have decided that the decision should be set aside and this matter should be placed before a different officer for determination.
FACTUAL CIRCUMSTANCES
[2] The following facts are not in dispute.
[3] On September 6, 2001, Ms. Tsang signed a performance bond by which she acknowledged that she was bound to Her Majesty the Queen in right of Canada in the "penal sum" of $80,000.00. The condition of the bond was that if Ms. Tsang's husband, Lai Cheong Sing, abided by the terms and conditions pursuant to which he was released from detention, Ms. Tsang's obligation would be void. The bond stated that if the terms or conditions of release were breached, "legal proceedings may be taken to enforce the bond".
[4] On June 21, 2002, after Mr. Lai's release from detention, the Convention Refugee Determination Division of the Immigration and Refugee Board found Mr. Lai not to be a Convention refugee and he was re-arrested. On June 28, 2002 (the same day as the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) came into effect) Mr. Lai was ordered released from detention on terms and conditions, one of which was that he or his wife post a performance bond in the amount of $80,000.00. The $80,000.00 performance bond posted under the predecessor legislation continued as the performance bond in place under the Act as required by the June 28, 2002 order and Mr. Lai was again released from detention.
[5] On August 13, 2005, Mr. Lai violated a term of the release order in that he did not return to his home prior to his 6:30 p.m. curfew. As a result, he was arrested at a restaurant at approximately 9:15 p.m.
[6] In consequence of this violation, a manager recommended to the Officer that the performance bond be forfeited. Ms. Tsang was notified of the breach and invited to make written representations as to why the performance bond should not be enforced. Through her counsel she made those submissions.
[7] After consideration of the submissions, the Officer decided:
I have determined LAI, CHEONG SING breached a condition imposed upon him that he was required to comply with. Subsection 49(4) of the Regulations has been triggered. The $80,000.00 performance bond guaranteed by the Mortgage in the amount of $80,000.00 Mortgage is forfeited.
[8] Subsection 49(4) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), referred to by the Officer, provides:
| 49(4) A sum of money deposited is forfeited, or a guarantee posted becomes enforceable, on the failure of the person or any member of the group of persons in respect of whom the deposit or guarantee was required to comply with a condition imposed. |
49(4) En cas de non-respect, par la personne ou tout membre du groupe de personnes visé par la garantie, d'une condition imposée à son égard, la somme d'argent donnée en garantie est confisquée ou la garantie d'exécution devient exécutoire. |
THE ERRORS ALLEGED
[9] Ms. Tsang asserts that the Officer erred in law in the following two respects. First, it is said that he failed to appreciate that he had a discretion to enforce or not to enforce the bond. Second, it is argued that he failed to appreciate that he had a discretion to consider the possibility of forfeiture of an amount less than the full sum of $80,000.00.
THE STANDARD OF REVIEW
[10] I am satisfied that the question of the proper parameters of an officer's discretion under subsection 49(4) of the Regulations is a question of law. It is an error of law, reviewable on the standard of correctness, for an officer not to consider whether to exercise any discretion delegated to the officer.
CONSIDERATION OF THE OFFICER'S DECISION
[11] A review of the Officer's reasons, set out in the letter that advised Ms. Tsang of the Officer's decision, satisfies me that he did appreciate that he had a discretion whether to enforce the performance bond but that on the facts before him the Officer was not persuaded that this was an appropriate case not to enforce the bond. I reach this conclusion because the Officer's reasons are generally responsive to the submissions advanced on Ms. Tsang's behalf and, if not aware of the discretion, there would be no reason for the Officer to consider, as the Officer did, the potential hardship to Ms. Tsang caused by forfeiture of $80,000.00. I find the Officer's somewhat inelegant use of the phrase "enforcement of the Regulations" does not mean, as submitted, that he viewed his choice to be either to enforce or not enforce the Regulations.
[12] A review of the Officer's reasons does not, however, similarly satisfy me that the Officer understood that the performance bond could be enforced in an amount less than $80,000.00.
[13] In oral argument counsel for the Minister confirmed that it was the Minister's position that the Officer could, as a matter of law, have made a decision that resulted in only a portion of the sum of $80,000.00 being collectible. This discretion was said to reside in the operation of sections 24.1, 24.2, and 25 of the Financial Administration Act, R.S., c. F-10, s.1 and the Debt Write-off Regulations, 1994, SOR/94-602. Given the Minister's concession that the Officer possessed a discretion to make a decision that resulted in less than $80,000.00 being collectible, it is unnecessary for me to consider the source of this discretion. I note that this discretion is acknowledged in Chapter 8 of the Citizenship and Immigration Canada Enforcement Manual which provides that where a guarantee is given by a third party, "the [decision-maker] will determine whether it is appropriate to settle for an amount less than that originally stipulated in a guarantee on a case-by-case basis, according to regional guidelines". Discretion to forfeit only one-half of the cash deposit was exercised in Khalife v. Canada(Minister of Citizenship and Immigration), 2006 FC 221 without apparent objection by the Minister.
[14] The existence of this discretion having been acknowledged in oral argument, the Minister argued that the Officer did not err because counsel for Ms. Tsang did not submit that a lesser amount should be forfeited and because the Officer viewed this to be a serious breach which should be sanctioned by nothing less than the forfeiture of the full amount. The Minister did not concede, as argued by Ms. Tsang, that the Officer acted on the understanding that he had no ability to enforce the bond in part.
[15] The Officer's reasons are silent on this point, and this discretion is not mentioned in the Officer's affidavit filed in this proceeding. The following excerpts from the cross-examination of the Officer on his affidavit are telling:
8. Q Now, from looking at the materials my understanding is that your understanding is that forfeiture is an all or nothing proposition, that either the whole amount is forfeited or none of it is forfeited, is that correct?
A Well, once I've described, you know, carried out the appropriate discretion I have got to make a determination, yes. If I decide that it is going to be forfeited it is all of it.
9. Q It is your own view that you have no authority to forfeit part of it, but not all of it, is that right?
A My decision is to enforce the bond if I have determined through my discretion that there has been a violation in effect the bond.
10. Q Now, I wanted to refer you to something that is an excerpt from the Immigration Manual, which can be found in the Applicant's record at page 41.
[...]
MR. MATAS: All right. It is the paragraph, it says, "The manager will determine whether it is appropriate to settle for an amount less than that originally stipulated in a guarantee on a case by case basis according to regional guidelines."
MS. RESNICK: Yes, we have that.
MR. MATAS: Yes, okay.
BY MR. MATAS:
11. Q Are there any regional guidelines in your region?
A Not that I'm aware of, Mr. Matas.
12. Q Now, that sounds to me to be contradictory to what you just told me, which says, "... appropriate to settle for an amount less than stipulated on a case by case basis ...", where as you are telling me it is either all or nothing. So, you can explain that to me?
A Where in applying the - - In dealing with an issue, first of all I have to look at each case on a case by case basis to determine whether or not a violation of the terms and conditions of the bond has taken place. And in this particular case after reviewing I decided that yes, it had taken place. And once that's been done, when the performance bond is taken the person giving it is checked to see if they have, you know, other income and that type of situation to determine whether or not they can live up to the bond if it is enforced. That is part of what we do. And once the decision is made that a breach has taken place, then the whole bond is enforced. It is not as if it is a portion of it, or whatever.
13. Q So you have never, in fact, settled for an amount less than originally stipulated?
A To the best of my knowledge, never.
14. Q And you have never even considered the possibility of settling for an amount less than originally stipulated?
A If I know that if a bond goes into a collection process under the Financial Administration Act, I have been aware that there has been changes taking place once we refer to the Department of Justice for collection. But I am not a part of that process. Once I've enforced the bond it has to be enforced, and then if it goes into Financial Administration Act collection where people don't comply, I am aware that there have been changes at that time.
15. Q But as far as you are concerned, in this case before you decided on forfeiture you did not consider whether it was appropriate to settle for an amount less than originally stipulated, is that right?
A My discretion I applied is whether or not there was a breach. Once there was a breach I then decided to enforce the bond as it was, the eighty thousand.
16. Q Okay, thank you.
[underlining added]
[16] In my view, this testimony establishes that the Officer failed to appreciate that the discretion he had was broader than simply to decide if the whole bond should be enforced. He failed to consider if less than $80,000.00 should be collected. This is an error of law that vitiates the Officer's decision.
[17] In the result, the application for judicial review will be allowed.
CERTIFICATION AND COSTS
[18] Both parties pose questions for certification. Ms. Tsang poses the following five questions:
1. Is an officer forfeiting a security deposit or enforcing guarantee in response to a breach of release conditions required to consider whether
a) to limit the forfeiture to an amount proportionate to the nature and extent of the breach,
b) the conditions of the deposit or guarantee were violated through no fault of the individual?
2. Does an officer forfeiting a security deposit or enforcing guarantee in response to a breach of release conditions have the legal authority to decide that a part only of the money deposited is to be forfeited or of the posted guarantee is to be enforced?
3. Under the transition provisions of the Immigration and Refugee Protection Act and Regulations, does the present [...] Immigration and Refugee Protection Act or the former Immigration Act provisions on forfeiture apply to a performance bond signed under the former Act to guarantee performance of conditions which are breached sine the present Act came into force?
4. If the answer to the third question is yes, are the answers to the first two questions any different for the former Immigration Act?
5. What is the standard of review for the exercise of a discretion of a Canada Border Service Agency officer in forfeiting a deposit or enforcing a guarantee under the Immigration and Refugee Protection Regulation 49(4)?
[19] The Minister poses the following question:
What, if any, is the scope of the CBSA Manager's discretion pursuant to s. 49(4) of the IRP Regs. with regard to enforcing a guarantee (i.e. Performance Bond)?
[20] In posing such question the Minister's submissions rely upon the recent Court of Appeal decision in Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126, a decision released after this matter was argued.
[21] The difficulty I have with the Minister's submissions on certification is that during oral argument, in response to a question I posed to counsel for the Minister as to whether the Officer had the discretion to determine that less than $80,000.00 would be forfeit, counsel responded that it was the Minister's position that the Officer could have made a decision that resulted in only a portion of the $80,000.00 being collectible. No argument was advanced by the Minister, as is advanced in the submission with respect to certification, that Khalife was decided per incurium1. Similarly, no submission was advanced that the Officer lacked authority to forgive a debt. While the submissions on certification note there is no evidence that the Officer is authorized to forgive debt, in response to a question I directed on the point counsel advised that she was awaiting instructions on the source or existence of such authority.
[22] In short, I am requested by the Minister to certify a question on a matter not argued before me and which does not accord with the Minister's position during the hearing, namely that the Officer could have made a decision that resulted in less that the full amount of the bond being collectible. I am not prepared to certify a question on a matter not fully argued before me and that was not necessary for me to decide on the basis of the case presented to me. In view of the Minister's position in his oral and written argument, I agree with counsel for Ms. Tsang that on this disposition of the case no serious question of general importance arises. No question is certified.
[23] I acknowledge that this may pose some uncertainty on the redetermination of this matter. However, on that redetermination, and any judicial review thereof, full argument may be advanced so that the issue may properly be decided with the benefit of that argument. Guidance may also be obtained as a result of the pending appeal in Khalife, cited above.
[24] As for costs, Ms. Tsang submits that special reasons exist so as to justify an award of costs. Those special reasons are said to be as follows. First, this is a case about money and it makes sense for costs to be awarded where a case is about money. Second, it is argued that the Officer's error of law justifies an award of costs.
[25] As a matter of law, special reasons may be found to exist if one party has unnecessarily or unreasonably prolonged proceedings, or where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith. The fact that a decision-maker reaches an erroneous conclusion does not by itself constitute a special reason for costs. While this dispute is about whether a sum of money was properly forfeited, the fact that money is involved similarly does not, by itself, constitute a special reason for costs.
[26] There is nothing in the conduct of this proceeding by the Minister that satisfies me that special reasons exist to justify an award of costs. No award of costs will be made.
1. Counsel did submit that Khalife was decided per incurium with respect to the standard of review, but the decision was only argued to be incorrect on this point.
JUDGMENT
[27] THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Officer is hereby set aside.
2. The matter is remitted for redetermination by a different Officer.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6458-05
STYLE OF CAUSE: TSANG MING NA
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: MARCH 29, 2006
APPEARANCES:
ESTA RESNICK FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAVID MATAS
BARRISTER AND SOLICITOR FOR THE APPLICANT
WINNIPEG, MANITOBA
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA