Ottawa, Ontario, December 6, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
and
HER MAJESTY THE QUEEN IN RIGHT OF
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Plaintiff, Mr. Hussein Farzam, is 42 years old. He left Iran in August of 1984 without his wife, Ms. Esmat Mohiti. On October 26, 1988, he arrived in Canada as a Government-assisted refugee (CR1) on a Minister's Permit. He became a landed immigrant on November 5, 1991. He made attempts before and after his landing to have his wife admitted in Canada as a member of the family class, either on a Minister's Permit or a permanent resident visa.
[2] On January 10, 1994, a Minister's Permit was issued for Ms. Mohiti to come to Canada. The Minister's Permit was sent to the Canadian Embassy in Tehran but was never claimed by Ms. Mohiti. The Canadian Embassy in Damascus, which was responsible for processing Ms. Mohiti's application to come to Canada, has no record of contact from the Plaintiff or Ms. Mohiti from January 10, 1994 to January 5, 1995. The Minister's Permit was later returned to the Embassy in Damascus and was ultimately destroyed on February 5, 1995.
[3] Sometime in May 1996, the Plaintiff brought the present action in damages against the Crown following the staying of a similar action launched in August of 1995 in the Ontario Superior Court. The Plaintiff alleges that officials of the Department of Citizenship and Immigration Canada (CIC) were negligent both in the processing of his application for permanent residency and of his wife's immigration file.
[4] However, as explained below, the Plaintiff's action has already been dismissed insofar as it claims damages for loss of employment opportunities and for misrepresentations made to him prior to his arrival in Canada. Moreover, the Plaintiff's claims based on failure to admit his wife to Canada have also been dismissed insofar as they rest upon alleged negligence of officers of the Defendant not committed outside of Canada (Farzam v. Canada (Her Majesty in Right of the Minister of Citizenship and Immigration), 2003 FCT 140, [2003] F.C.J. No. 203 (QL)).
RELATED PROCEEDINGS
[5] On September 16, 2002, the Defendant filed a motion for summary judgment in which it was argued that there was no genuine issue for trial. Essentially, the motion was based upon limitation periods having expired when the action was brought. The matter was decided on February 10, 2003 by Hugessen J. who allowed the motion in part on the grounds that the Plaintiff did not commence his action within the six-month or six year limitation periods provided for by section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 and section 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P-38, as the case may be.
[6] First, Hugessen J. took the view that the action of the Plaintiff could be divided into three distinct claims. The first claim was based on alleged misrepresentations made in 1988 to the Plaintiff by an Immigration official outside of Canada, prior to the Plaintiff ever coming to Canada. The second claim was based upon an alleged loss of employment opportunities at the time the Plaintiff arrived in Canada due to the Plaintiff's treatment as a refugee claimant, which allegedly precluded him from employment without authorization. The third claim dealt with damages resulting from an alleged marriage breakdown in 1993 due to the Defendant's alleged negligent actions; this resulted in the Plaintiff allegedly suffering depression (Farzam, supra at para. 5).
[7] Second, Hugessen J. considered that the Plaintiff's action lay solely in negligence and that there were no facts upon which the Plaintiff could support a claim for a 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. (Farzam, supra at para. 6)
[8] Third, Hugessen J. decided that the first two claims were out of time when the present action was brought, whether we view the prescriptive period as six months or six years. Accordingly, he ordered the dismissal of the Plaintiff's action insofar as it claims damages for loss of employment opportunities and for misrepresentations made to him prior to his arrival to Canada (Farzam, supra at para. 8).
[9] Fourth, Hugessen J. noted that Ms. Mohiti had "apparently" divorced the Plaintiff in December of 1993, which is before the issuance of the Minister's Permit in January 1994. He also remarked that there was some evidence of negligent conduct in either the Damascus or the Tehran offices in the processing of Ms. Mohiti's application to come to Canada. Apparently, two files had been opened, which resulted in Immigration officials misinforming Ms. Mohiti that the Plaintiff had not provided the required undertaking of assistance (as evidenced by a Telex dated June 4, 1993 addressed to Ms. Mohiti). Indeed, the Defendant has readily admitted this statement to be erroneous since the Plaintiff had already provided the undertaking of assistance sometime in June 1992. Since officials in Damascus or Tehran did not enjoy the protection of the Authority Protection Act in respect of acts or omissions done by them in those offices, the six-year limitation period applied. Accordingly, Hugessen J. found that the part of the claim which was based upon alleged negligence by officials in overseas offices appeared to be timely and should not be summarily dismissed. However, he also found that this was not the case with respect to allegations of negligent conduct of officials in Ontario which were time-barred. Therefore, Hugessen J. ordered the dismissal of the Plaintiff's claims based on failure to admit his wife to Canada insofar as they rest upon alleged negligence of officers of the Defendant not committed outside Canada.
[10] On March 12, 2003, the Plaintiff appealed the decision of Hugessen J. to the Federal Court of Appeal. On October 24, 2003, as a result of a status review, the Court of Appeal dismissed the Plaintiff's appeal. Accordingly, the only surviving element of the Plaintiff's action is the claim regarding the alleged failure to admit the Plaintiff's wife to Canada, insofar as it is based upon allegations of negligence against Immigration officials located outside Canada.
[11] Following a pre-trial conference, Madam Prothonotary Aronovitch summed up, in her order dated February 1, 2005, by reference to the above order of Hugessen J., the factual and legal framework applicable to the case at bar:
a) Whether, in the circumstances of this case, a prima facie duty of care was owed to the Plaintiff regarding the processing of his wife's application?
b) Whether the actions or omissions of CIC officials acting outside of Canada breached the applicable duty of care regarding the handling and processing of Ms. Mohiti's file?
c) In the event that liability can be established, what is the appropriate quantum of damages?
d) Is the successful party entitled to costs, and if so, in what amount?
[12] The parties having indicated their readiness to proceed at the earliest available opportunity, Lutfy C.J. issued on March 16, 2005 an order setting out the trial date as October 24, 2005, to be heard in Ottawa. Twelve days were set aside.
[13] On October 13, 2005, ten days before the present trial was set to begin, the Plaintiff filed a motion for adjournment on the basis that his brother and mother, Mr. Hassan Farzam and Mrs. Razia Farzam (the Iranian witnesses), whom he had asked to testify at the trial, were denied visitors' visas to come to Canada. On October 18, 2005, Lutfy C.J. dismissed the motion for an adjournment.
[14] Concurrently, on October 13, 2005, the Plaintiff also made a motion in writing to allow the introduction of two documents attributed to Ms. Mohiti as direct evidence at the trial, which was referred to me as trial judge. According to the Plaintiff these documents would provide evidence of the cause of the divorce Ms. Mohiti allegedly sought in December 1993. The first document was a letter apparently signed by Ms. Mohiti, dated April 13, 1993, addressed to the Plaintiff (the 1993 letter). The second document was a declaration apparently emanating from Ms. Mohiti and witnessed by a Notary Public in Iran, dated October 3, 1996 (the 1996 statement). Traditionally, the rule against hearsay renders inadmissible written statements that are tendered as proof of the truth or as proof of their content. For the purposes of the motion, I assumed that their authenticity had been established. I noted that Ms. Mohiti had "apparently" divorced the Plaintiff in December 1993, a fact that would have had to be proven at the trial. That being said, I found that the evidence in issue did not satisfy the separate requirements of "necessity" and "reliability". The Plaintiff knew for quite some time that he would need to demonstrate at trial the causation of the divorce, and that the best witness to testify on this issue would have been Ms. Mohiti herself. I decided that the right to cross-examine Ms. Mohiti on such a crucial issue should prevail under the specific circumstances of the case. Therefore, I determined that before the statements made by Ms. Mohiti in 1993 and 1996 are accepted as direct evidence, the Defendant should be able to cross-examine her at trial on all relevant facts and circumstances of the marriage breakdown and ensuing divorce. Accordingly, the motion was dismissed on October 21, 2005 (Farzam v. Canada(Her Majesty the Queen in right of the Minister of Citizenship and Immigration), 2005 FC 1432, F.C.J. No. 1757 (QL)).
[15] On October 21, 2005, which is less than one clear day before the scheduled trial, the Plaintiff filed and served a Notice of Motion for an Order allowing the Plaintiff to introduce the evidence of the Iranian witnesses at the trial through the use of a teleconferencing. The Plaintiff wished to enter Ms. Mohiti's personal reasons for divorcing him as direct evidence at the trial through the testimony by teleconference of the Iranian witnesses. The motion, which was vehemently opposed by the Defendant, was argued and debated before me at the opening of the trial on October 24, 2005. Again, I noted that important parts of the proposed testimonies would have a hearsay character and would also raise concerns as to the credibility of the Iranian witnesses who are respectively the mother and the brother of the Plaintiff. I found that it would be essential in these circumstances that the Court be able to observe the demeanor of the Iranian witnesses. In conclusion, the evidence presented by the Plaintiff failed to satisfy me that the issuance of an Order that the evidence of the Iranian witnesses be taken by telephone was in the interest of justice and would secure, at such a late date and in the absence of a detailed plan, the just, most expeditious and least expensive determination of the contested issues in this action. Accordingly, the motion was dismissed on October 26, 2005 (Farzam v. Canada(Her Majesty the Queen in right of the Minister of Citizenship and Immigration), 2005 FC 1453, F.C.J. No. 1776 (QL)).
[16] On November 2, 2005, after presenting his evidence, the Plaintiff through his counsel made an oral request before me for an order indefinitely adjourning this trial. Again, it was made on the basis that the testimonies of the Iranian witnesses were necessary and that their absence at the trial was not due to any contrivance on the Plaintiff's part. Those arguments had already been made in the Plaintiff's previous motion for adjournment of the trial and had been dismissed by Chief Justice Lutfy. This new request, which was treated as a formal Motion for Adjournment, was dismissed on the same day (Farzam v. Canada(Her Majesty the Queen in right of the Minister of Citizenship and Immigration), 2005 FC 1497). Accordingly, the trial continued with the presentation of the Defendant's evidence and ended on November 7, 2005 with the pleadings of counsel.
THE EVIDENCE AT TRIAL
[17] I accept the following parts of the Plaintiff's testimony inasmuch as they provide a useful background on the circumstances surrounding his marriage and the steps he has taken to have his wife admitted to Canada, or are otherwise relevant to the issues of damages and causation. With respect to the processing of both the Plaintiff's application for landing and Ms. Mohiti's application to come to Canada, I mostly rely on the documentary evidence and on the testimonies of the Defendant's witnesses who I have found to be entirely credible and more reliable than the Plaintiff.
Iranian Period (1963 to 1984)
[18] The Plaintiff was born in 1963 and grew up in Naghadeh, a town located in the province of Western Azerbayjan in Northern Iran, which is not too far from the Iraqi border. In 1984, the Plaintiff was studying at the university in Tabriz, a city located in the province of Eastern Azerbayjan, a few hours outside of his hometown. At the time of the Iranian New Year of 1984, the 20th of March in the Gregorian calendar, the Plaintiff had basically finished his first year of university studying electrical engineering at the university in Tabriz. It was during the two-week New Year's break, more specifically on March 20, 1984, the day of his own birthday, that the Plaintiff was married to Ms. Esmat Mohiti. The marriage was registered on March 28, 1984.
[19] The Plaintiff had known Ms. Mohiti for three years prior to getting married. They had met in high school. They were from the same neighbourhood. Although she was three and a half years younger than him, the Plaintiff thought she was quite mature for her age and very liberal minded. The Plaintiff and Ms. Mohiti shared similar world views and social views. They were very close. Their marriage was not arranged. The Plaintiff and Ms. Mohiti had a strong chemistry, a good connection.
[20] During the school year, which ended in April 1984, the Plaintiff was studying in Tabriz on weekdays and would come back to Naghadeh on weekends in order to see Ms. Mohiti. He would also go see how things were going at his business. At the time, he operated a manufacturing business located in Naghadeh which specialized in the manufacturing of agricultural products and pumps for deep water wells. The business employed six people. The Plaintiff had personally designed a deep water well pump and started producing it with the approbation of the Iranian Ministry of Heavy Machinery which had granted him a manufacturing license and some land to develop the project.
[21] During his first year at university in Tabriz, the Plaintiff was enrolled in electrical engineering. His first year coursework was comprised mostly of general courses, more specifically physics, chemistry and mathematics. He also took an introductory course in electrical engineering. Once his university school year ended in April of 1984, he came back from Tabriz and lived with his wife and his family in the family's home on 33 Sadeghi Street in Naghadeh. Although the Plaintiff and Ms. Mohiti shared the house with his mother, brother and two sisters, the couple had their own private quarters. From April to August 1984, he worked full-time at his business in Naghadeh.
[22] In that period, there was civil unrest in Iran. In 1980, Mr. Abolhasan Bani-Sadr had been elected president of Iran. His government was secular, although the country was called an Islamic Republic. A few months later, Iraq invaded Iran and the two countries were at war for the following eight years. Mr. Bani-Sadr was dismissed from office a year after his election. According to the Plaintiff, the hardliners started to take over. This affected him because he did not share the same views. He was not a religious man. The Plaintiff became involved with the Mojahedin. They were fighting the government. The Plaintiff considered himself a sympathizer.
[23] By the end of the summer of 1984, there had been many arrests. Several of the Plaintiff's friends had been arrested. One of his friends, whom he had known since grade 8, had been executed. At that point, the sympathizers would not meet publicly. They would meet underground, in safe houses, where they would discuss politics and social issues. In late August of 1984, the central safe house where they used to get together was raided. At the time, the Plaintiff had been out of town on business. He was testing the new deep water well device that he had designed in a rural area south of Naghadeh, almost an hour out of town. A friend who had escaped had reached him in time to let him know about the raid and the arrests. The Plaintiff knew that he would be arrested if he went back to Naghadeh. He feared for his life and decided to leave Iran. His intention was to go to Turkey and then to a Western country, including the possibility of coming to Canada. His wife would join him later. With the help of Kurdish fighters, he crossed the border to Iraq. Unfortunately, he got caught with a group of Iranian Kurds by the Iraqi Army. Ultimately, after having been interrogated and imprisoned, he ended up in the Shomeli refugee camp in Southern Iraq where he resided from 1984 to 1988.
Shomeli camp (1984 to 1988)
[24] The Shomeli camp was located in a desert area, in an old school building. The conditions were very primitive, very harsh. It was overcrowded. There were sometimes up to ten people to each classroom. For a few weeks, the Plaintiff slept on the floor. The Iraqis then gave them a thin foam mattress, a blanket and a pillow to sleep, and one pot, one pan and one spoon to eat. Forks were not allowed. These conditions were very stressful. To try to alleviate the stress, the Plaintiff would think about his wife. He would try to imagine what she was doing in Iran. His dream to be reunited with her kept the Plaintiff from falling into despair. The Plaintiff stated that he was aware that at least two people had committed suicide while in Shomeli.Mr. Massoud Ebady, another refugee from Iran, lived in the Shomeli camp from 1984 to 1986. He was a close friend of the Plaintiff during this period. He testified that the Plaintiff was constantly talking about his wife and how she was "the love of his life ... keeping him alive so far for the future, hoping for future".
[25] The first contact the Plaintiff had with an international agency was with the Red Cross. It seems that the organization was "in charge" of the Shomeli camp. The Plaintiff stated that the UNHCR had taken over the Red Cross's role in the summer of 1987 and started facilitating the refugee movement out of Iraq. On June 16, 1987, the UNHCR issued a resettlement registration form for the Plaintiff. He had provided a UNHCR officer with basic information regarding family members and dependants, his education and training, the languages he spoke, his work experience, etc. He had mentioned that he had a cousin in Sweden who might be able to support his efforts to resettle to that country. The Plaintiff provided a credible story and as such, he was considered an UNHCR mandate refugee. (However, since the Plaintiff had no passport and no identification papers, he was treated by the UNHCR and later on by the Canadian authorities as a "stateless" person.)
[26] Once the UNHCR concluded the refugee status of a person, it would send information regarding the fact that the person was to be considered for third country resettlement. As far as the Canadian immigration system worked back then, a visa officer would then have to assess if the person was in fact a Convention refugee. The officer would assess if there was a well-founded fear of persecution. According to Ms. Kathryn Porter, an experienced visa officer having extended experience working in Embassies in Athens, Damascus and Ottawa, and whose testimony I find entirely credible, during interviews, officers would seek to ascertain background information with regard to the political activities and criminality of refugee claimants to Canada. As such, the officer was able to determine if it agreed with the UNHCR's referral.
[27] The Plaintiff testified that he met with Mr. Stan Peryer for the first time on June 20, 1988, at the Shomeli camp. Mr. Peryer was a Canadian Immigration official working for the North Africa and Middle East branch of CIC in Cairo. Following their initial meeting, they scheduled an interview for the next day. They met on June 21, 1988. On that day, the Plaintiff filled out an application for permanent residence in Canada in the presence of Mr. Peryer. At this point, I accept the Plaintiff's testimony that from the outset, and indeed prior to his coming to Canada, he had made it clear to Canadian officials that he wished that his wife would join him in due course. That being said, and in view of the summary judgment rendered by Hugessen J., I reiterate that there cannot be any cause of action based on the representations allegedly made by Mr. Peryer to the Plaintiff to the effect that "it was in his best interests to immigrate to Canada and that he would be able to sponsor his wife as soon as he arrived in Canada".
Processing of the Plaintiff's application for landing from within Canada(1988 to 1991)
[28] When he arrived in Canada in October 1988, the Plaintiff had no passport and the required background checks had not been initiated or completed by the North Africa and Middle East branch of the CIC in Cairo. However, for whatever reason, he had been allowed to come to Canada as an Early Admission case under a Minister's permit seeking permanent residence, category CR1. This meant that the Plaintiff did not have permanent residence status when he arrived in Canada and, naturally, that he could not sponsor his wife. According to Ms. Porter, the Plaintiff's status at the moment of arrival in Canada was certainly unusual, even "exceptional". As she mentioned to the Court:
It's much easier for the person to have everything finished before they go, and when they land in Canada, everything is settled. They're a permanent resident and everything is neat and tidy from the time they arrive.
[29] As explained by Ms. Porter, all refugees processed abroad normally go through all the same steps as any other applicant for permanent residence. Background checks and medical checks have to be performed. They normally receive their immigration visa overseas. Refugees accepted abroad will be landed immediately upon arrival in Canada. The CR1 status refers to the fact that as a "Government-assisted Refugee", the Government would look after the refugee for their first year in Canada. But a refugee may also be admitted in Canada as a CR3, that is, as a refugee sponsored by a private group. In such a case, this means that there is already an organization or a group of people in Canada who have formally made a refugee sponsorship that has been approved by CIC and who have promised to look after the refugee for their first year in Canada.
[30] Interestingly, it appears that not all Iranians who have stayed at the Shomeli camp have been processed the same way as the Plaintiff. Indeed, Mr. Ebady, who had also been at the Shomeli camp from 1984 to 1986, was admitted as a CR3 and became a landed immigrant the day of his arrival in Canada on August 12, 1986. Defendant's counsel objected to this evidence on grounds of relevancy and I agree that this evidence is irrelevant insofar as it tends to demonstrate that the Defendant acted somewhat improperly in 1988. That being said, where it comes to ascertain whether an obligation to take reasonable care exists, as in this case, the nature of the relationship must be examined by the Court. As stated by McLachlin J. (as she then was) in Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 at 1151, "[p]roximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors" (cited with approval in Hercules Managements Ltd. V. Ernst & Young, [1997] 2 S.C.R. 195 at para. 23 and in Cooper v. Hobart, [2001] 3 S.C.R. 537 at para. 35). Indeed, in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, Iacobucci J. notes at para. 50 that "[e]xamples of factors that might be relevant to the inquiry include the expectations of the parties, representations, reliance and the nature of the property or interest involved".
[31] The Plaintiff's immigration file was handled in Canada by CIC regional office in Windsor who had asked Cairo to forward the Plaintiff's file (together with those of four other Iranians) in order to complete landing actions. While the Plaintiff's application for landing from within Canada was processed, the Minister's Permit was renewed from time to time. It took three years to process the Plaintiff's application. In the meantime, work permits were issued to him. From at least March 1989, Ms. Loretta Ferrara was the Immigration officer responsible for the processing of the Plaintiff's landing application.
[32] At this point, I note that there is evidence that either CIC Windsor or Cairo failed to take, in a timely fashion, appropriate steps to obtain the required background results concerning the Plaintiff. It was later admitted that "this case may have fallen through the cracks" (Telex from Cairo to CIC Windsor, dated December 17, 1989). However, again, this evidence is not relevant, insofar as it rests upon alleged negligence in the processing of the Plaintiff's personal immigration file. Neither can the Plaintiff make any claim based on missed work opportunities as decided by Hugessen J.
Plaintiff's initial attempt to have his wife come under a Minister's Permit (1990-1991)
[33] At the Plaintiff's initiative, and despite the fact that he was not yet a permanent resident, steps were formally initiated in March 1990 through CIC Windsor to have Ms. Mohiti come in Canada under a Minister's Permit. Indeed, on March 29, 1990, Ms. Ferrara sent a Telex to the Embassy in Damascus requesting that "subject's wife be allowed to proceed under permit and to please issue meds". Once the Telex was received in Damascus, a clerk working at the Registry created a file for Ms. Mohiti under number B265 1372 3. At that time, the Embassy in Damascus was the regional office responsible for five countries: Iran, Iraq, Syria, Lebanon and Jordan. The evidence was that the Embassy in Damascus was extremely busy during the relevant period of time processing upwards of 4,000 immigrant visas and 7,000 visitors' visas per year. In addition, the Registry was creating approximately 100 new files per day. Moreover, the Registry system was not computerized.
[34] Relying on the representations which were made to him by Ms. Ferrara, the Plaintiff testified that he expected Ms. Mohiti to be rapidly admitted into Canada under a Minister's Permit. But as the evidence conclusively establishes, it was not a decision that could be made by Ms. Ferrara. It either had to be made by the Minister himself or his designated delegate in Damascus. The evidence establishes that Ms. Ferrara's request to proceed under a Minister's Permit was not treated in a negligent manner by the Immigration officials in Damascus. In this respect, further essential information were needed before Damascus could process the application and recommend the issuance of a Minister's Permit as explained by both Ms. Porter and Mr. Rénald Gilbert whom I find entirely credible. Mr. Gilbert started working as a Foreign Service officer with External Affairs in 1987 and was posted as visa officer in New Delhi from 1988 to 1991 and Damascus from 1991 to 1994 before occupying later on higher functions in Ottawa and in Beijing. He testified that before a decision to issue a Minister's Permit could be made by the Canadian Embassy in Damascus, basic information was required from Ms. Mohiti. However, this information was not contained in Ms. Ferrara's Telex of March 1990.
[35] Ms. Mohiti had to provide Damascus with basic information and documents needed in order to process her Minister's Permit. The standard practice of visa offices was to send an application for permanent residence (IMM 8) to the applicant with instructions on how to complete the form, as well as identifying the documents that were required to be submitted with the completed form. Accordingly, an applicant had to provide a set of photographs, a copy of the passport, a copy of a birth certificate or ID card, a copy of the marriage contract and a police certificate. These documents would allow the visa officer to evaluate if she met the statutory requirements that there were no serious medical or background problems, including criminality or security issues. It would also allow the officer to evaluate the credibility of the marriage.
[36] In response to the request made by Ms. Ferrara, on April 24, 1990, the Damascus office promptly sent an application kit to Ms. Mohiti, from file B265 1372 3. However, the completed application forms were not returned to the Embassy in Damascus until October 1992. Given that Ms. Mohiti did not testify, there is no evidence as to why she delayed completing the forms. In the meantime, as will be now explained, Damascus had been advised by Ms. Ferrera on November 5, 1991, to treat Ms. Mohiti's file as a sponsorship application.
Plaintiff's subsequent attempt to have his wife come as a sponsored immigrant seeking permanent resident status (1991-1994)
[37] Damascus was still waiting to receive the completed forms sent to Ms. Mohiti in April 1990. In the meantime, both Ms. Ferrara and the Plaintiff were apparently expecting "something to happen" with the Minister's Permit. This did not materialize. However, Ms. Ferrara did not follow up with the Damascus office, having apparently been told to refrain from contacting Damascus because of its overflow of work. Again, whether Ms. Ferrara acted negligently or not is not directly relevant insofar as this part of the claim has been already dismissed by Hugessen J.
[38] In September 1991, CIC Windsor attempted to contact the Plaintiff by telephone; however, the Plaintiff no longer lived at the address on record. Despite the fact that the Plaintiff categorically affirmed that he had always promptly notified CIC of any change of address, at more than one occasion, the documentary evidence proves otherwise. During his cross-examination by Defendant's counsel, it would have been easy for the Plaintiff to admit forthwith that he may have forgotten to notify CIC of his changes of addresses. While the Plaintiff's persistence in denying an obvious fact does concern an essential element of his claim, it is nevertheless symptomatic of his general attitude in this case. He wholly blames the CIC officials. At no point was the Plaintiff ever ready to concede that he may have been responsible of any of the delays incurred in this case, even the slightest one. This seriously affects his overall credibility.
[39] The Plaintiff eventually obtained landed immigrant status on November 5, 1991. As there was still no Minister's Permit issued to Ms. Mohiti, the Plaintiff testified that in March 1992, he resorted to sponsoring his wife to have her admitted into Canada as a member of the family class. In the meantime, on November 5, 1991, the following message from Ms. Ferrara was sent by Telex to Damascus:
Considering the fact that it took 3 yrs in CDA to land Mr. Farzam as early admission case prefer you process his wife as immigrant not/not early admission under permit. Farzam landed 5nov91. was in agreement to immigration visa issuance for wife. Will forward 1344 when recd.
[40] Ms. Ferrara had nothing to gain in writing this Telex. The Plaintiff has never been accompanied by an interpreter at any one of the interviews he had with Mrs. Ferrara. The evidence conclusively establishes that the Plaintiff had an adequate comprehension of English and that he was able to speak in English. Therefore, I prefer Ms. Ferrara's testimony that she would not have written this Telex if she had not been instructed by the Plaintiff to process his wife as an immigrant being sponsored by him. The "1344 Form" which had been mentioned in the Telex is the sponsorship undertaking that a sponsor must complete in order to have an application for the issuance of a permanent resident visa processed abroad.
[41] Following the reception of Ms. Ferrara's Telex of November 5, 1991, the Damascus office opened a file bearing file number B 276 6558 4, to process the plaintiff's wife as an applicant for permanent residence and wrote back to CIC Windsor asking for her address. Thus, Damascus had mistakenly opened a second file for Ms. Mohiti.
[42] No Damascus registry employee has testified. The testimony of Mr. Gilbert who was there at that time is very general and he was not involved with the Iranian caseload. The Defendant has chosen not to convoke Mr. Pierre Trottier, the visa officer working in Damascus who was, at the time, directly responsible for the processing of the visa applications made by Iranian citizens. In 1994, Ms. Porter replaced him and was assigned to the Iranian caseload. Ms. Porter worked at this post for three years. She was asked by Defendant's counsel if, based on her experience, she could explain why the second file could have been created by the Damascus Registry on November 5, 1991. Her answer was negative:
Normally, before you create a file, you have to double check and see ---
Whenever there is a piece of information coming in, you double check to see if there is a file number on it; and if there is no file number on it, you would double check to make sure that there isn't already an existing file.
I can't say why. I mean, there is a slight difference in the name. That may have been the problem.
I can't say further than that.
[43] While she notes that "there is a slight difference in the name" Mrs. Porter implicitly suggests that some kind of error must have been made by the local people who were working at the Registry in Damascus. They were responsible for the opening of the immigration files and they should have "double checked to make sure that there [wasn't] already an existing file". Indeed, in Ms. Porter's Telex addressed to Headquarters in Hull, dated May 23, 1995, she categorically states that "our registry [is] at fault". Ms. Porter also explained that the personnel in Damascus were familiar with the different spellings or variations of names. Mr. Gilbert also testified that the Registry used a "Soundex" system. "It's based on the sound (...) so, it's a way to actually make sure we capture the various ways of spelling a name". Accordingly, I find that the Registry clerk who opened the second file was apparently negligent, as he or she did not make the proper verifications.
[44] At this point, I note that an objection has been made by Plaintiff's counsel to the general use of Ms. Porter's Telex dated May 23, 1995, as proof of its content. This memo was contemporaneously prepared by Ms. Porter on the basis of all the available information on file. Even if it is hearsay evidence, I find the document sufficiently reliable to admit it into evidence. Indeed, I note that most of its content is already supported by other direct documentary evidence or testimonial evidence. Ms. Porter had no reason to include information that was not coming from the existing files in the summary she prepared in May 1995. Besides, Ms. Porter was examined in chief and extensively cross-examined by Plaintiff's counsel on all aspects of her Telex. The methodology she used has not been questioned or seriously challenged by the Plaintiff. Indeed, the Telex in question simply reflects what had been done on the file and can be admitted on that basis. Accordingly, I dismiss the objection by Plaintiff's counsel.
[45] According to the uncontested documentary evidence accepted by the Court, the proper forms necessary for the processing of Ms. Mohiti's application for permanent residence were respectively returned by the Plaintiff and Ms. Mohiti in June and in October 1992. Indeed, the Plaintiff received a letter from CIC dated June 30, 1992, which confirmed that it had approved the application for sponsorship he had submitted. The letter stated:
Your sponsorship undertaking has no validity under the law until your relative has made an application abroad, at which time the sponsorship eligibility can be established. No additional action on your part is required at this time. The approval of your undertaking establishes that you are qualified to give the Undertaking. However, as indicated on the reverse of your copy (pink copy 3) of the Undertaking, it is not an indication or guarantee that your relative will be given an immigrant visa. For this reason, you should advise your relative not to terminate employment, dispose of property nor take any steps towards emigration until formally advised to do so by the Canadian visa office concerned.
As the average length of time for processing at the overseas office is presently unknown, we cannot make any queries regarding the status of your relative's case. Please keep in touch with your relative as he will be in the best position to advise you of contact he may have had with the Canadian Embassy or Consulate.
Please keep us advised of any change in your address in the event that we need to contact you.
In closing, may I strongly urge you, in your own interest, to ensure that any immigrants admitted under your own sponsorship are adequately protected against hospital and medical expenses through enrolment in available provincial hospital and medical plans.
Following the reception of the letter, the Plaintiff notified his wife. He sent her a copy of the form, a copy of his SIN number and the application form number so that she could go to the Canadian Embassy in Tehran and start the process. This was all he had to do. He sent the information to an address in Karaj, a city located west of Tehran where all his family had apparently relocated from Naghadeh in 1992. In the meantime, the Damascus office received the approval for sponsorship application on July 29, 1992, and placed it on file B276 6558 4, the second file which had been opened by the Registry in Damascus on November 5, 1991.
[46] Ms. Mohiti completed the application forms and signed them on August 24, 1992. She also provided a police record, a copy of her identity card and a copy of her marriage certificate. However, the forms were only received by the Damascus office on October 2, 1992. I entirely accept the Defendant's evidence in this regard.
[47] According to Mr. Gilbert and Ms. Porter, it would normally take Damascus between six months to one year to process an application for permanent residence visa. Where an interview was necessary, the Iranian applicant would either have to present himself or herself at the Embassy in Damascus or wait that a visa officer travel from Damascus to Tehran where the interview would be conducted at the local Embassy. The interview could be waived by the visa officer where the legitimacy of the marriage posed no doubt. In passing, the legitimacy of the marriage between the Plaintiff and Ms. Mohiti has never been put into question by CIC Windsor or Damascus. Assuming the proper steps were taken by Damascus (i.e. completion of the background checks) and Ms. Mohiti (i.e. return of the medical forms), this meant that Ms. Mohiti could expect to obtain her permanent resident visa somewhere before or around October 1993.
[48] Unfortunately, Damascus did not send the request for medical examinations to Ms. Mohiti before November 14, 1993. This is so because Damascus officials did not learn until September 28, 1993 that they were running two files. As already indicated, two files had been made for the wife's application: one which had been opened in 1990, file B265-1372 3 and one which had been opened in 1992, file B276-6558 4. Accordingly, materials which were placed under one file did not appear under the other. This also explain, why, on June 4, 1993, the Canadian Embassy in Damascus sent a Telex to Ms. Mohitistating that the Plaintiff had not submitted the undertaking of assistance, despite the fact that the Plaintiff's sponsorship application for his wife, which included the undertaking of assistance, had been duly approved and forwarded to Damascus a year before.
[49] It is not necessary to recite here all the steps the Plaintiff undertook in Canada to have the matter straightened out once he was informed by Ms. Mohiti, sometime in June 1993, that the Damascus office had "apparently" not yet received the undertaking of assistance. On June 18, 1993, he presented himself at CIC Windsor counter and asked to see Ms. Ferrara who categorically refused to see him and to look into the matter further. Apparently, the Plaintiff was told at this occasion by Ms. Kelly White, an officer working at CIC Windsor, that they would not act until the time frame would become "unreasonable". However reprehensible this former conduct may appear today, this evidence is irrelevant insofar as the present claim must be limited to acts or omissions by officials of the Defendant committed outside Canada. In any event, during the summer of 1994 the Plaintiff pursued his efforts to obtain clarification through the office of the Honourable Herb Gray, and with the help of Mr. Rob Harris of Legal Assistance of Windsor. They finally produced some result. On September 28, 1993, the Embassy in Damascus was made aware by Ms. Ferrara of the fact that they were running two files.
[50] On November 14, 1993, Damascus sent a request for medical examinations to Ms. Mohiti. On the issue of receipt of the medical instructions, Ms. Porter noted, in her Telex sent to Employment and Immigration Headquarters in Hull, Quebec on May 23, 1995, that the documents which were supposedly sent from Damascus on November 14, 1993 had apparently never been received by Ms. Mohiti. However, the Plaintiff has stated in cross-examination that the letter of instructions had been received by his family at the Karaj address.
[51] In the autumn of 1993, the Plaintiff moved from Windsor to Ottawa. He had asked for the help of the Honourable John Manley. It did not take long for Mr. Manley to get some answers from the responsible officials of CIC sometime in December 1993. On January 4, 1994, Ms. Annette Gauthier, an officer working at Section OPAM sent a Telex to Damascus whereby she mentioned the representations from Mr. Manley and the relevant facts of the case. She asked to be provided with status of the case and whether early admission had been considered for Ms. Mohiti. On January 10, 1994, a Minister's Permit was issued by the Canadian Embassy in Damascus for Ms. Mohiti to come to Canada. The Minister's Permit was valid until January 5, 1995.
Ms. Mohiti's imputed reasons to divorce the Plaintiff
[52] The Plaintiff testified that a week or so after Mr. Manley informed him that two files had been created in Damascus, he learned that his wife had left his family's home in Karaj. This poses the question of her whereabouts in Iran and of her reasons for divorcing the Plaintiff. It has not been conclusively established, as alleged by the Plaintiff, that Ms. Mohiti had divorced him in December 1993 and that she was still living, if she ever did, with the Plaintiff's family in Karaj. The Plaintiff further alleged that she divorced him because of the delays and the misstatement made to her in June 1993. The Plaintiff also affirmed that she thought that he had not provided the undertaking of assistance; he assured her it was not the case, but to no avail, she would not come to Canada anymore.
[53] The evidence provided by the Plaintiff at trial on Ms. Mohiti's imputed reasons to divorce is contradictory and unreliable. I find the Plaintiff not credible. He was just the contrary of a candid witness. His testimony on this key issue was not spontaneous and gave the impression that it was rehearsed. Moreover, during his testimony, he was more interested in putting a great emphasis on the fact that he was not responsible for what was happening and in putting all the blame on the Immigration officials, than in telling the whole truth.
[54] Ms. Mohiti did not testify at the trial. One of the central issues at trial revolved around the causation of the breakdown of the marriage and the ensuing divorce and remarriage of Ms. Mohiti in Iran. The best witness to give evidence on this aspect, including her reasons for not coming to Canada after a Minister's Permit was issued to her in January 1994, would have been Ms. Mohiti herself. In order to determine whether or not the delays and the misstatement made in June 1993 attributed to Immigration officials outside Canada constituted the proximate cause of Ms. Mohiti's "lost confidence" in the Plaintiff, it would have been necessary to hear her testimony in open court.
[55] If Ms. Mohiti had testified at the trial, the relative weight to be attributed to the evidence she would have provided concerning the marriage breakdown and the ensuing divorce would have turned on her overall credibility and her answers to a number of questions in cross-examination. For instance, where and with whom did she actually live after the Plaintiff had left Iran in August of 1994? How was her life in Iran? Was she happy there? Did she change as a person over the years? What where her projects with the Plaintiff? Did she have a life of her own in Iran? Was she receiving some kind of support, financial or otherwise, from the Plaintiff or his family? Did she expect that the Plaintiff would support her financially if she came to Canada? Did she receive any kind of assurance in this regard from the Plaintiff? Did she ask him if he had regular employment in Canada? Did she have a relationship with her own family? Were they making pressure on her to divorce the Plaintiff? What had convinced her to complete an application to obtain a permanent resident visa in Canada in the first place? What did she expect in coming to Canada? Was she making some kind of sacrifice? Why did she change her mind? When did she take the decision to divorce the Plaintiff? How did she obtain the divorce? What were the grounds? By whom was it pronounced? When and on what occasion did she met the man to whom she is now remarried?
[56] I note that in Ms. Mohiti's application form dated August 24, 1992, she stated that she had worked at a beauty institute in Karaj from October 1991 to March 1992. She also stated that she had lived at No. 111 Pasdaran Ave.in Naghadeh until August 1990 and had been living in a district of Tehran called Azadi since August 1990. It seems that the first address Ms. Mohiti had mentioned in her application was not the Plaintiff's family's home address in Naghadeh; rather, it was the address of her parent's home in Naghadeh. These statements from Ms. Mohiti are in direct contradiction of the Plaintiff's testimony. The latter has testified that Ms. Mohiti had lived at all times with the Plaintiff's family. According to the evidence, the Plaintiff's family address in Naghadeh was 33 Sadeghi Street and not 111 Pasdaran Ave.The Plaintiff also testified that all his family had moved to Karaj in 1992. Indeed, according to the evidence, the Plaintiff's family address in Karaj was No. 64, opposite to Park, 3rd, West St, Shahid Rejai Blvd, Block 2 of Zamin Shahri, 1st, West St. Shahin Vila, Karaj, which is the address indicated on the letter dated November 14, 1993. Then, how could Ms. Mohiti indicates in her application that she has been living in Azadi and not Karaj since August 1990?
[57] When specifically asked about the Azadi address, the Plaintiff ventured to explain that his wife stayed there for some time because it was closer to the Canadian Embassy than Karaj was. I find the Plaintiff's explanation implausible. Ms. Mohiti was not required to have a daily contact with the Canadian Embassy in Tehran since her application was directly processed through Damascus. Moreover, there are many other inconsistencies in the Plaintiff's testimony. The Plaintiff first testified that this family had moved from Naghadeh to Karaj in 1992 which, according to the Plaintiff, is "a city beside Tehran". Elsewhere in his testimony, he admits that Karaj is some 50 kilometres from Tehran and that Azadi is closer to Tehran. Speaking of the Azadi address the Plaintiff categorically affirms: "In 1990, when she went to this address, they just moved to Tehran. They haven't moved to Karaj. They went to move first to Tehran. It was her address there." For the first time in his testimony the Plaintiff suggests that his own family had moved to Tehran in 1990 together with Ms. Mohiti. However, after further questioning, the Plaintiff admits that in August 1992, Ms. Mohiti was still living in Tehran itself and not in Karaj. Then, when exactly did Ms. Mohiti move to Karaj?
[58] The Plaintiff also produced a number of telephone bills to demonstrate that he was often in communication with his family and wife in Iran. The Plaintiff produced telephone bills in evidence showing telephone numbers which were apparently those of his family in Naghadeh, during the years 1989 and 1990, and Karaj, during the year 1993. However, the Plaintiff has apparently kept no record of calls having been made to Iran in 1991 and 1992. I find this very surprising since the Plaintiff kept telephone bills for 1989 and 1990, as well as for 1993.
[59] The Plaintiff also testified that he was corresponding regularly with Ms. Mohiti. However, he wasn't quite certain of the number of letters he received from Ms. Mohiti, which were probably in the area of 20 to 25 after further questioning. Moreover, while he testified that he had turned those letters over to his former lawyer, they were never produced during the discovery process, except for the 1993 letter already discussed.But more importantly, the Plaintiff testified that he had later destroyed all these letters on the advice of Dr. Badarunisa Begum Khan, psychiatrist, who treated him for depression from 1996 to 2002. Dr. Khan, testified at this trial that she had never given such advice to the Plaintiff and that it was not the type of advice she would give to a patient. I have no reason to doubt the trustworthiness of Dr. Khan's statement. This greatly undermines the credibility of the Plaintiff where it comes to litigious matters in this case. In general, the Plaintiff was a very poor witness. It was impossible for him to be objective and he was reluctant to make even the slightest admission of personal blame or responsibility for what was happening to him. This affects the relative weight that this Court must give to the expert report since Dr. Khan mostly relied on the Plaintiff's statements.
[60] The Plaintiff also testified that on December 14, 1993 he had a long telephone conversation with Ms. Mohiti. During that telephone conversation, he tried to tell her that there had been a mistake and that he was not at fault. Whether she believed him or not, or had already divorced as suggested by the Plaintiff, there was nothing further the Plaintiff could do to convince her to come to Canada. The Plaintiff provided proof of this call by producing a telephone bill showing a number in Karaj, Iran. This is apparently the telephone number of his family in Karaj. According to his testimony, his wife had given him a six month ultimatum: "You fix the problem by this day, within six months. You fix it. Otherwise, I'm moving". The Plaintiff testified that "here, the date is coming and I'm desperate. I'm trying to explain things to them; that I [never] made a mistake. I really did everything: It's a mistake. But unfortunately, nobody contacted her to say that was a mistake. Nobody. Whatever I said, they couldn't believe it." (my emphasis). Apparently, the Plaintiff learned at that occasion that Ms. Mohiti had divorced him. Was the Plaintiff speaking to his wife or/and with other members of his family on the line? Then, who were they? In view of the credibility concerns I have already expressed, I have strong reasons to believe that the Plaintiff is not telling the whole truth about the purpose and object of that telephone conversation and that he is concealing relevant information from the Court.
[61] The Plaintiff stated that in July or August 1995, he learned Ms Mohiti had remarried. According to her birth certificate, Ms. Mohiti was remarried on August 7, 1995. That being said, on a balance of probabilities, I am ready to accept that Ms. Mohiti remarried sometime in July or August 1995. Accordingly, I conclude that she was already divorced. In this regard, Mr. Hassan Abbasi, who visited Naghadeh in 1996, stated that it was common knowledge in this small town that Ms. Mohiti had divorced the Plaintiff, that she was remarried and that she now had a baby. However, I cannot accept the Plaintiff's assertion that Ms. Mohiti had divorced him sometime in December 1993. There is no court judgment or official document confirming that a divorce was obtained by Ms. Mohiti in December 1993. This would be the best evidence of the divorce. Indeed, the evidence of any proceeding or record whatsoever of, in or before any court in a foreign state, may be given in any action or proceeding before this Court by an exemplification or certified copy thereof, purporting to be under the seal of the court in question, without any proof of the authenticity of the seal or of the signature of the justice or any other proof whatsoever (para. 23(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5). I am simply not satisfied by the general statement made by the Plaintiff and other Plaintiff's witnesses that official documents are difficult to obtain from Iranian authorities. Manifestly, for whatever reason, the Plaintiff has chosen not to instruct his former counsel to make attempts to obtain the officials documents related to the divorce. This is corroborated by Mr. David J. Hughes who testified that the plaintiff counted on relatives of his family to make proper inquiries in Iran. Mr. Hughes clarified in this regard: "so it was still at that stage up to the relative in-country, as I understood it, to provide us or locate the religious court where the divorce and re-marriage had been done. That was the end of it because, very shortly after that, he transferred the file to you", that is, to the Plaintiff's present counsel, Mrs. Silvia R. Maciunas.
[62] This brings us to the relative weight to be attributed the statements made out of court by Ms. Mohiti. At the trial, the authenticity of the 1993 and the 1996 documents attributed to Ms. Mohiti were proven, but without admission from the Defendant on the truth of their content. Whether I was right or wrong in dismissing the motion previously made by the Plaintiff to introduce it as direct evidence at the trial (Farzam v. Canada (Her Majesty the Queen in right of the Minister of Citizenship and Immigration), 2005 FC 1432), having now had the benefit of hearing all the witnesses and considering all the evidence, I attribute little weight to this hearsay evidence. The statements made by Ms. Mohiti in the 1996 document are very vague and do not conclusively establish that Ms. Mohiti relied on any misstatement made by Immigration officials in Damascus or Tehran as a particular ground to divorce the Plaintiff. There is no threat made by Ms. Mohiti that she will be filing for a divorce in the 1993 letter either. On the contrary, Ms. Mohiti states: "Please feel free to criticize my letter. If you are angry, please say so. I am opened to your criticism and your complaint".
[63] On the other hand, in the 1993 letter, Ms. Mohiti asks the Plaintiff to "be serious in your decisions and in what you are doing. Do not keep me waiting any longer. I have my own wishes and do not want to be wondering around in here [Iran]. I was not born to waste my life. I am not a child anymore. When I married you, I was 16 and [now] I am going to [be] 25 in Mehr [September or October depending on the day and month of the year]. Ms. Mohiti also complains in the 1993 letter that "[f]or more than two and a half months, I have been waiting to receive a letter from you ... meanwhile, because I was waiting for your letter and the response to the invitation letter, I did not go to Naghadeh (...) I want to have a clear future, whether to go to Naghadeh for good or not." Near the end of the 1993 letter, she informs the Plaintiff that "(...) my father calls every day and asks about my situation. He wants to know when I would get my response. Others do not leave me alone either."
[64] It has also been previously mentioned that the Court dismissed two motions for the adjournment of this trial on the basis that the Plaintiff's mother and brother (the Iranian witnesses) were denied visitor visas to come to Canada (see the order rendered by Lutfy C.J. on October 18, 2005 and Farzam v. Canada (Her Majesty in Right of the Minister of Citizenship and Immigration), 2005 FC 1497). I have also dismissed a motion to have the evidence of the Iranian witnesses collected by way of a telephone conference call (Farzam v. Canada(Her Majesty in Right of the Minister of Citizenship and Immigration), 2005 FC 1453). That being said, I note that at the trial the authenticity of three undated and unsworn statements attributed to the Iranian witnesses and to Goulsom Farzam (the sister of the Plaintiff) were proven but without admission from the Defendant on the truth of their content. Again, assuming that these statements reflect what these witnesses would have said in open court, having now had the benefit of hearing all the witnesses and considering all the evidence, I attribute little weight to this hearsay evidence. It is apparent that these statements are contradictory and are unreliable. Again, they cast serious doubts about the whereabouts of Ms. Mohiti and where and with whom she actually resided in Iran. They also strongly suggest that Ms. Mohiti applied to a court to get divorce only in December 1993, and not that she was already divorced as alleged by the Plaintiff when he had his telephone conversation with Ms. Mohiti on December 20, 1993. Concerning Ms. Mohiti's reasons for divorcing the Plaintiff, Hassan Farzam's letter suggests that "[t]he insistence of this family for divorce was so high that she was beaten twice by her father and once by her brother". This statement is also corroborated by Dr. Khan's report who mentions: "During this time his wife's parents began to put pressure on her to leave him. Eventually, she divorced him in 1993 and got married to someone else". Dr. Khan's statement is hearsay but comes from a statement previously made to her by the Plaintiff himself. All these hearsay statements contradict the Plaintiff's assertion that Ms. Mohiti divorced him in December 1993 and got married to someone else in 1995 because of some misstatement made by Immigration officials.
Parties' conduct during the validity of the Minister's Permit (January 1994 to January 1995)
[65] On January 10, 1994, a Minister's Permit was issued for Ms. Mohiti to come to Canada. It was valid for one year, that is until January 5, 1995. The evidence conclusively established that despite the issuance of a Minister's Permit, Ms. Mohiti, for whatever reasons, decided to stay in Iran. It is implausible that after all the steps he had taken to have his wife admitted in Canada, the Plaintiff would not communicate with Ms. Mohiti to inform her that a Minister's Permit had been issued in January 1994 and that all she had to do now was to pick it up at the Canadian Embassy in Tehran. Indeed, the Plaintiff testified at the trial that "he did not lose hope" to have her come to Canada; perhaps Ms. Mohiti had divorced him, but she had not yet remarried.
[66] The evidence conclusively establishes that the Minister's Permit was issued as a result of the Plaintiff's efforts and the intervention of various political constituents. Indeed, the various official correspondence addressed to the Plaintiff or his counsel already conclusively established that the Plaintiff was at no fault and that measures had been taken to speed up the processing of Mrs. Mohiti's Immigration file. The Plaintiff did not tell the Court whether he had sent or not these various letters to his wife and family in Iran. However, for whatever reason, he now wanted some sort of apology from the Canadian government; something official that could be directly addressed to Ms. Mohiti and which she would have been able to believe. Therefore, this would suggest that he or his family were still in communication in 1994 with Ms. Mohiti wherever she was in Iran.
[67] On May 20, 1994, Ms. Annette Gauthier from the Hull section sent a letter to the Plaintiff in which she explained the ordeal. The letter was addressed to the Plaintiff, not Ms. Mohiti. It is not clear whether or not the Plaintiff had given Ms. Gauthier the new address of Ms. Mohiti in Iran. In any event, the Plaintiff made a copy and sent Ms. Gauthier's letter to his family himself:
Re" (Mohiti) Esmat: Date of Birth: 20 March '63, Iran: I am providing you with this correspondence so that you can give it to your wife to indicate to her what was done on her case since January of 1990. It appears as though the Canada Immigration Centre in Windsor indicated to your counsel in January 1990, they have no objection to the issuance of a Minister Permit for your wife's early entry, however, no further action was taken. It was not until you submitted and undertaking to sponsor your wife in March 1992 that anything was sent to Iran for processing. At that point, it appears as though Tehran mistakenly opened two files. Therefore, on June 4, 1993, they sent your wife a telex informing her that they still did not have the undertaking of assistance from you. That was incorrect. The visa office in Damascus confirmed, in January 1994, that they were mistakenly operating two files on your wife's case -- files numbers B-0265-6558 and file number B-265-1372. Therefore, when your member of Parliament (Mr. John Manley) brought this case to our attention on January 4, 1994, we immediately contacted Damascus to ask that they review this case on humanitarian and compassionate grounds. They did, and in light of all the problems/errors made, they decided to issue a Minister's Permit for your wife's early entry to Canada.
A Minister's Permit was issued on January 10, 1994 valid to January 5, 1995. I hope this helps to convince your wife that you were not at fault in the length of time it took to finalize her case. Good luck.
[68] The Plaintiff was still unsatisfied by this letter. In his testimony, he did not indicate whether or not he asked his family to nevertheless send it to Ms. Mohiti.
[69] On August 1, 1994, the Embassy in Damascus was advised by Telex from the Embassy in Tehran that Ms. Mohiti had not collected the permit, and that the Embassy was unable to reach her by phone. On September 20, 1994, Damascus sent a Telex to CIC Windsor advising that Ms. Mohiti could not be accessed by phone or address. On September 28, 1994, CIC Windsor sent a Call in Notice to the Plaintiff advising that his wife could not be accessed by phone or address, and to please provide her current telephone number and address. On November 3, 1994, CIC Windsor sent a letter to Legal Assistance of Windsor advising that the September 28, 1994 Call in Notice to the Plaintiff had been returned to their office and asking that they forward it to the Plaintiff and to ensure that they are provided with the Plaintiff's current address.
[70] The Minister's Permit was returned to Damascus and was destroyed on February 5, 1995.
Plaintiff's depressive state (1995 to 2002)
[71] The Plaintiff learned that Ms. Mohiti apparently remarried in July or August 1995. Although Ms. Mohiti's birth certificate mention that she was married on August 7, 1995, the Plaintiff testified that he had found out about the marriage in late July 1995. In fact, he mentioned that on July 26, 1995, he had consulted for depression at a walk-in clinic after he had found out that Ms. Mohiti had remarried. It was only then that the Plaintiff lost all hope that he would ever be reunited with his wife. From that date on, the Plaintiff stated that he felt different. According to his testimony, depression started shortly thereafter. The Plaintiff testified that he became withdrawn. He could not enjoy anything and lost interest in many things. It affected his social life. He was irritable and sad. He had a very low self esteem. He had difficulty holding down proper jobs. At some point he worked as a dishwasher at a local restaurant. At another point, he worked at People's Jewellers. He would support himself financially on and off, but would often benefit from social assistance or Employment Insurance. He sought help to cope with his stress. He could not sleep. On September 20, 1995, he sought help at an Ottawa walk-in clinic with regard to his insomnia. He went back on September 23, on June 20, 1995, on July 26, 1995 and in January 1996. Every time they would prescribe him anti-depression drugs. However, there is no medical evidence confirming that the Plaintiff was indeed suffering of depression. This diagnosis was only put forward in 1996.
[72] In 1996, the Plaintiff was put on the waiting list to see a psychiatrist at the Ottawa General Hospital. The list was long. A doctor whose name is Bazarjani happened to give him some information concerning a psychiatrist that could see him faster, a doctor named John Dimock. He saw Dr. Dimock a few times. Dr. Dimock prescribed him 50 mg of Zoloft. After he stopped seeing Dr. Dimock, the Plaintiff saw Dr. Matuk, a family practitioner. She prescribed him Zoloft and other anti-depression drugs. She saw the Plaintiff while he was still waiting to be seen by Dr. Khan, a psychiatrist working at the Ottawa General Hospital. The Plaintiff stated that Dr. Matuk would always take the time to listen to him, counsel him, tried to comfort him.
[73] The Plaintiff saw Dr. Khan for the first time on April 24, 1996. In her first report dated July 29, 1996, Dr. Khan felt that the Plaintiff had been going trough "an adjustment disorder, with depressed mood". Medically speaking, this is not a "depression". She treated the condition for some time but the Plaintiff did not respond favourably to the treatment. She then concluded that he was truly depressed. In her report dated August 23, 2005, Dr. Khan explained how the management of his condition included pharmacotherapy (Zoloft and Clonazepam) as well as insight-oriented psychotherapy.
[74] When closely questioned by the Defendant's counsel about possible factors which could have resulted in the depressive state of the Plaintiff, Dr Khan stated that the following could have had a role. He was pre-occupied with legal proceedings. He was grieving the loss of his country. He was grieving the loss of his family. He was grieving the loss of his culture. He had difficulty adjusting to Canada. He was not able to get good employment. He was disappointed with his standard of living and the lack of financial success. He was isolated. He was not able to carry out his projects. He was in a refugee camp for four years. Dr. Khan stated that there is no way to quantify the impact each of these stressful issues had on the Plaintiff. However, she believed that the precipitating factor to the Plaintiff's depression was his "divorce". But when Dr. Khan refers in her report to the "divorce" she also assumes that Ms. Mohiti got remarried the same year she divorced him. Therefore, it is not clear whether the "precipitating factor" was the divorce itself or the subsequent remarriage of Ms. Mohiti. She also suggested the fact that the Plaintiff could not bring Ms. Mohiti to Canada, that he was separated from his family and that he was apparently made to be a "liar" in his ex-wife's eyes were other important factors. Dr. Khan ceased to treat the Plaintiff in October 2002 and there is no medical evidence of the actual medical condition of the Plaintiff.
Studies at Ottawaand Carleton Universities(1995-1997 and 2000-2005)
[75] During the period in which he was depressed, the Plaintiff started and pursued studying engineering. In the fall of 1995 he enrolled at the University of Ottawa. He was disappointed with the marks he received. He failed some classes, deferred others. He passed a few but was not satisfied at all with his results. It was a very disappointing term for the Plaintiff. Things did not improve during his second semester. He dropped some classes or deferred some of his exams with the assistance of a doctor's report. He did manage to get a B+ in Mechanical Drawing, but this mark was highly unsatisfactory to the Plaintiff since he had designed for so many years. He believed he had the potential to get an A+. At the end of the school year, he was asked to withdraw from the faculty. With a doctor's note from Dr. Matuk, the Plaintiff was able to explain why he had had such disappointing standings. The school allowed him to enrol for another year. Dr. Matuk had advised him not to study full-time.
[76] His second year at the University of Ottawa went as badly as the first one. He was studying part-time. He took a few courses in the fall of 1996 but did not do very well. He managed to get an A minus in "Communication in French". Again, the University had asked the Plaintiff to withdraw from the faculty. Again, he was able to demonstrate that he should be allowed to have another chance.
[77] In the fall of 1997, the Plaintiff started his third year at the University of Ottawa. His marks were as bad as the previous years:
They give me, three times, a chance. They asked me to withdraw in 1996 and '97, but always they allowed an exemption to go back, to register as an Engineering student full-time. But '98, that was the end of it. They never allowed me back, after that. I had to withdraw from the Department completely.
(...)
Basically, I had to withdraw from the university completely.
[78] He enrolled at Carleton Universityin the year 2000 but dropped out sometime after. He decided to go back in 2001 as a part-time student. His year went better. He wanted to get back to engineering but the school would not allow him to do so unless he would prove that he could maintain successful grades while studying full-time. The Plaintiff enrolled in environmental studies. He obtained a Bachelor's degree in 2005. Because he has not obtained a science degree, his job expectations are not high. While he could now be accepted in engineering at Carleton University, the Plaintiff testified that he is going to be 43 years old and doesn't want to go on studying.
Loss of past and future earnings
[79] The evidence establishes that since he has been admitted into Canada in 1988, the Plaintiff worked in different part time jobs, mostly in jewellery stores or other retail stores, such as Holt Renfrew. He was not always employed and some years he did not even work. I note that he received social assistance benefits from 1992 to 1995 inclusively and also in 2002. From 1990 to 2004, that is for a period of some 14 years, his highest total income was in 2000, with $17,051 (including the EI benefits he received). In 2004, he also benefited from two scholarships ($3,000 from the Canada Millennium Scholarship Foundation and $1,175 from Carleton University).
[80] Mr. Farzam claimed that, had it not been for the negligent acts of the Defendant, he had the potential to obtain a university degree in mechanical engineering and obtain work in this specific field. Thus, the Plaintiff claims loss of past and future earning against the Defendant. He also claims his tuition fees and the books he had to pay for while studying at the University. He testified that he owes the CIBC $3,800 and $17,849.32 which represent two student loans in "non-repayment status". At that point, I note that the Plaintiff did not satisfactorily explain to the Court why he did not start engineering studies in Canada before 1995. His explanation that it was because he was actively involved in trying to have his wife come to Canada is not a valid excuse in the circumstances. Considering the fact that he was not always working and that when he worked, it was always part-time, nothing really prevented him from starting engineering studies in Canada before 1995.
[81] In order to support his claim for economic losses, an actuary, Mr. Guy Martel, testified as an expert witness on behalf of the Plaintiff. He tried to calculate his loss of past and future earnings. The facts which were given to Mr. Martel for the completion of his expert report were based on different assumptions in regards to the expected earnings of the Plaintiff. His calculations were based on different time periods when the Plaintiff would have started working. The expert also compared the earnings the Plaintiff would have been entitled to if he had been working as a mechanical engineer, or if he had worked in a professional occupation in Public Relations and Communications or in the fields of Natural and Applied sciences. Mr. Martel then compared these earnings to the salary the Plaintiff actually earned. However, Mr. Martel's assumptions are not based on credible and reliable evidence. Moreover, the Plaintiff has offered no convincing proof that he mitigated his damages. Accordingly, I cannot accept any of the scenarios discussed by Mr. Martel in his expert report.
DETERMINATION OF THE VALIDITY OF THE PLAINTIFF'S CLAIMS
[82] Crown liability is vicarious, not direct. In order for the Crown to be liable, a plaintiff must show that a Crown servant or servants, acting within the scope of employment, breached a duty that was owed to the plaintiff. The plaintiff must also establish that the breach caused the plaintiff injury of a sort that would attract personal liability against a private person. The relevant portion of section 3 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended by S.C. 1990, c. 8, s. 21 (the CLPA) provides as follows: "the Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable (a) in respect of a tort committed by a servant of the Crown. The liability arising under subsection 3 of the CLPA is qualified by section 10: "No proceedings lie against the Crown by virtue of the paragraph 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provision of this Act have given rise to a cause of action in tort against that servant or that servants personal representative."
[83] In her order, dated February 1, 2005, Prothonotary Aronovitch framed the issues to be determined by the Court in this case in reference to the "A.B.C. rule". According to this rule, a plaintiff in a negligence action is entitled to succeed by establishing three things to the satisfaction of the court: (A) a duty of care exists; (B) there has been a breach to that duty; and (C) damage has resulted from that breach. This is the traditional English approach to negligence liability (Allen M. Linden, Canadian Tort Law, 7th ed. (Markham, On.: Butterworths, 2001) at 102 and cases referred to by the author). That being said, the following framework of analysis may be very useful: (1) the plaintiff must suffer some damage; (2) the damage suffered must be caused by the conduct of the defendant; (3) the defendant's conduct must be negligent, that is, in breach of the standard of care set by the law; (4) there must be a duty recognized by law to avoid this damage; (5) the conduct of the defendant must be a proximate cause of the loss or, stated in another way, the damage should not be too remote a result of the defendant's conduct; (6) the conduct of the plaintiff should not be such as to bar or reduce recovery, that is the plaintiff must not be guilty or contributory negligence and must not voluntary assume the risk (Canadian Tort Law, supra, at page 103). In the present case, whatever methodology is employed, the result is the same: the present action must fail as the requisite elements are not all met.
Lack of evidence on causation
[84] The evidence does not establish, on a balance of probability, that the acts of omissions of the CIC officials working outside Canada have caused, as alleged by the Plaintiff, the breakdown of his marriage and the ensuing divorce. I will not repeat everything that has already been mentioned on this issue in the preceding section (see in particular, my analysis of the evidence under the head "Ms. Mohiti's imputed reasons to divorce the Plaintiff"). I will however make the following comments.
[85] First, I observe that in leaving Iran in 1984 without his wife, the Plaintiff voluntarily assumed the risk that his wife may decide to stay in Iran. In this regard, the evidence established that the Plaintiff and Ms. Mohiti only lived together in Iran, as man and wife, for less than six months and that both were relatively young at the time. The couple had been already separated for four years before the Plaintiff arrived in Canada in 1988. Before Ms. Mohiti had returned her application form to the Canadian Embassy in Damascus in October 1992, four more years had passed. Whatever the Immigration officials in Damascus did or did not do, the time was running fast. Indeed, the Plaintiff was already at high risk because of the couple's long separation, here some eight years as of October 1992. The usual process of the application by Immigration officials in Damascus would require at least another six months, if not a whole year, which would bring us to October 1993.
[86] Second, the evidence on Ms. Mohiti's imputed reasons to divorce and to stay in Iran is circumstantial and not conclusive, as it is all based on hearsay. There is no documentary evidence before the Court regarding the date Ms. Mohiti divorced the Plaintiff and there is no credible or reliable evidence as to the reasons why she divorced the Plaintiff. Given the fact that Ms. Mohiti did not testify at the trial, there is absolutely no basis to make any inference that the marriage breakdown and ensuing divorce was caused by the negligent actions of Immigration officials. The fact that Ms. Mohiti refused to come to Canada after a Minister's Permit was issued in January 1994 points to the fact that there may have been other, more profound reasons than just the fact that there had been delays and a misstatement made in June 1993 in the processing of her immigration file. Ms. Mohiti did not testify at trial. The statements or reasons for divorcing attributed by the Plaintiff to Ms. Mohiti are equally consistent with other reasonable hypotheses. I also dismiss the Plaintiff's testimony on this essential element of his claim. I simply do not find him credible. In these circumstances, the Plaintiff has failed to meet his burden of proof to prove causation.
[87] Third, I note that Ms. Mohiti's decision to stay in Iran, to move back to Naghadeh, to divorce the Plaintiff, to remarry another man and to have a baby were all her own personal decisions, based on her own subjective considerations. While I accept that the Plaintiff was very much in love with Ms. Mohiti and that he did everything possible to convince his wife to come to Canada, unfortunately, this is not enough to establish causation. Manifestly, Ms. Mohiti was not willing to come to Canada anymore. Whatever her personal reasons were, the fact remains that Ms. Mohiti never claimed the Minister's Permit issued to her on January 10, 1994. Indeed, the Minister's Permit was valid until January 5, 1995.
[88] I reiterate that evidence of causation is essential in order to determine whether an action for negligence is made out (Allen Linden, Canadian Tort Law, supra, at 109ff). Here, I find that the damages suffered by the Plaintiff are the result of Ms. Mohiti's personal decision to stay in Iran and cannot be positively imputed to any act or omission committed by CIC officials outside Canada. In the present case, I conclude that the Plaintiff's claim is wholly deficient from an evidentiary point of view. This constitutes a valid ground to dismiss the Plaintiff's claim on this sole basis. However, since the issues of duty of care and damages have also been argued by counsel, I will also examine these issues.
No duty of care in the present case
[89] Counsel acknowledge that the proper approach for the Court to determine whether a duty of care exists here, is to resort to the "two-step approach" first set out by the House of Lords in Anns v. Merton London Borough Counsel, [1978] A.C. 728 (H.L).The test has been adopted by the Supreme Court of Canada in Kamloops v. Nielsen, [1984] 2 S.C.R. 2, at 10-12, and has been consistently applied by the courts in Canada even though it has apparently "been buried in the land of its birth" (Allen Linden, Canadian Tort Law, supra at 270).
[90] In Cooper, supra at para. 30, the Supreme Court describes this two-step approach as follows:
At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.
[91] In a companion case, Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, a quasi-governmental regulatory agency case, the Court summarized the teachings of Cooper, supra, explaining that the Cooper decision "revisits' Anns and "clarifies the express policy components to be considered at each stage" of the analysis, as follows:
At the first stage of the Anns test, the question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The focus at this stage is on factors arising from the relationship between the plaintiff and the defendant, including broad considerations of policy. The starting point for this analysis is to determine whether there are analogous categories of cases in which proximity has previously been recognized. If no such cases exist, the question then becomes whether a new duty of care should be recognized in the circumstances. Mere foreseeability is not enough to establish a prima facie duty of care. The plaintiff must also show proximity -- that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances. Factors giving rise to proximity must be grounded in the governing statute when there is one, as in the present case.
If the plaintiff is successful at the first stage of Anns such that a prima facie duty of care has been established (despite the fact that the proposed duty does not fall within an already recognized category of recovery), the second stage of the Anns test must be addressed. That question is whether there exist residual policy considerations which justify denying liability. Residual policy considerations include, among other things, the effect of recognizing that duty of care on other legal obligations, its impact on the legal system and, in a less precise but important consideration, the effect of imposing liability on society in general.
[92] At the first stage of the test, the Supreme Court has stated that the starting point is to determine whether there are "analogous categories of cases" in which proximity has been previously recognized. In this respect, the following categories are mentioned in Cooper, supra at para. 36:
What then are the categories in which proximity has been recognized? First, of course, is the situation where the defendant's act foreseeably causes physical harm to the plaintiff or the plaintiff's property. This has been extended to nervous shock (see, for example, Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907 (H.L.)). Yet other categories are liability for negligent misstatement: Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), and misfeasance in public office. A duty to warn of the risk of danger has been recognized: Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189. Again, a municipality has been held to owe a duty to prospective purchasers of real estate to inspect housing developments without negligence: Anns, supra; Kamloops, supra. Similarly, governmental authorities who have undertaken a policy of road maintenance have been held to owe a duty of care to execute the maintenance in a non-negligent manner: Just v. British Columbia, [1989] 2 S.C.R. 1228, Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445, etc. Relational economic loss (related to a contract's performance) may give rise to a tort duty of care in certain situations, as where the [page554] claimant has a possessory or proprietary interest in the property, the general average cases, and cases where the relationship between the claimant and the property owner constitutes a joint venture: Norsk, supra; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210. When a case falls within one of these situations or an analogous one and reasonable foreseeability is established, a prima facie duty of care may be posited.
[93] Counsel were unable to provide the Court with any case in which the Crown has been held liable in negligence on facts comparable to the Plaintiff's claim and I assume that none exist. While proximity has been recognized in cases where the nervous shock was the foreseeable consequence of an accident caused by the negligence of a defendant, in the present case, it was not reasonably foreseeable that the Plaintiff would be harmed in the way he alleges. I find that Immigration officials in Damascus could not reasonably anticipate or foresee, in the circumstances of this case, that the Plaintiff's wife would divorce him because of some additional delay or misstatement to the effect that the undertaking of assistance had not yet been provided by the Plaintiff. The damages allegedly suffered by the Plaintiff from the processing of his wife's file are simply too remote to give rise to the existence of any reasonably foreseeable harm. But even if I accept that foreseeability has been adequately established, as stated by the House of Lords in Hill v. Chief Constable of West Yorkshire, [1989] A.C. 53 (H.L.) at 60: "(...) foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between the plaintiff and the defendant (...)".
[94] In the case at bar, any relationship between the Plaintiff and the Defendant exclusively comes from the implementation of the Canadian immigration policy recognized by statute, namely, the Immigration Act, R.S.C. 1985, c. I-2. The Plaintiff came in 1988 as Government-assisted refugee (CR1) under a Ministerial Permit. The commitment taken by the Government to financially assist the Plaintiff came to an end one year after he was admitted. In November 1991, the Plaintiff became a landed immigrant. In this regard, the allegedly negligent actions by Immigration officials outside Canada occurred in the processing of a request made in 1990 for the issuance of a Minister's Permit to the Plaintiff's wife, and later, of an application made by her in 1992 for the issuance of a permanent resident visa. Despite the fact that a Minister's Permit was issued in 1994, Ms. Mohiti refused to come to Canada. In 1994, the relationship between the Plaintiff and the Defendant was one of a permanent resident who sponsored his wife to come to Canada. In the circumstances of this case, is this evidence enough to establish the requisite proximity of relationship between the Plaintiff and the Defendant?
[95] In this regard, the Supreme Court of Canada has stated in Cooper, supra at para. 43, that an examination of the policy of the statute is required to determine whether there exists the required proximity of relationship:
In this case, the factors giving rise to proximity, if they exist, must arise from the statute under which the Registrar is appointed. That statute is the only source of his duties, private or public. Apart from that statute, he is in no different position than the ordinary man or woman on the street. If a duty to investors with regulated mortgage brokers is to be found, it must be in the statute.
[96] Parliament has adopted an Immigration policy. One of the objectives of this policy is to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad. While the Government of Canada is responsible for the implementation of this policy, its resources are not unlimited. There are a number of budgetary, human and other external constraints. The policy statement contained in the Immigration Act does not create a strict liability to perform. That being said, in coming to Canada as a Convention refugee, the Plaintiff had to become a permanent resident before he could sponsor his wife. This may look unjust but this is the law of the land. He only became a landed immigrant in November 1991. Moreover, in view of Hugessen J.'s final decision, the Defendant is only accountable for the delays that were incurred as a result of negligent acts committed outside of Canada in the processing of Ms. Mohiti's application.
[97] In the present case, as in Cooper, the statute is the only source of the Crown's decision-making duties. It is trite law that admission of an alien to this country is a "privilege" determined by the Immigration Act and its applicable regulations. Ms. Mohiti was an "immigrant" and had to satisfy the statutory criteria for admissibility and all relevant regulatory requirements. While Ms. Mohiti did not satisfy those requirements, a Minister's Permit was issued to her in January 1994. There was certainly no obligation to issue a Minister's Permit to Ms. Mohiti beforehand. This decision was entirely discretionary under section 37 of the Immigration Act. In issuing a Minister's Permit, the delays in the processing of Ms. Mohiti's application for the issuance of permanent resident visa were taken into account by the Minister or his delegate. I cannot find that there has been a breach of any statutory duty in the processing of Ms. Mohiti's application for a permanent residence visa. Mrs. Mohiti returned it in October 1992. There was no particular statutory or regulatory delay imposed by the visa officer responsible for the processing of such application. Normally, it would take between six months to one year. If a decision whether to grant a permanent resident visa to Ms. Mohiti was improperly delayed, the remedy was to make an application for judicial review seeking the issuance of a writ of mandamus with leave of a judge of the Federal Court under section 82.1 of the Immigration Act (see Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211, [2003] 4 F.C. 189 (F.C.T.D.); Bhatnager v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 315 (F.C.T.D.)).
[98] The Defendant's learned counsel has submitted that a consideration of the statutory framework makes it clear that the requisite proximity in the relationship between the Plaintiff and the Crown has not been established so as to give rise to a private law duty of care. I entirely accept his argument. Indeed, there are a number of cases of this Court which support the point of view that the relationship between the government and the governed is not one of individual proximity, including in an immigration context: A.O. Farms Inc. v. Canada, [2000] F.C.J. No. 1771 at paras. 10-12 (F.C.T.D.) (QL); Benaissa v. Canada(Attorney General), 2005 FC 1220, [2005] F.C.J. No. 1487 at para. 35 (QL); Premakumaran v. Canada, 2005 FC 1131, [2005] F.C.J. No. 1388 at para. 25 (QL). The approach taken by the Court in these cases is compatible with the one taken in other jurisdictions, particularly in England.
[99] In W. v. Home Office, [1997] E.W.J. No. 3289 (QL),Imm. A.R. 302 (UK Ct. App. Civ. Div.), the English Court of Appeal dealt directly with the issue of the existence of a duty of care being owed by immigration officers in the context of an action for negligence. In that case, the plaintiff was from Liberia. He claimed asylum on his arrival in the U.K. and was detained. The immigration officer was not prepared to consider either his release from detention or his temporary admission into the U.K. (while his claim for asylum was being considered), until he had established that he was a citizen of Liberia. Unfortunately, the plaintiff's detention was prolonged because it had been thought that, while in detention, he had only scored three out a possible fifteen points on a test of his knowledge of Liberia, and that true Liberians would have found it easy to answer all the questions. It was subsequently discovered that he had not taken a test at all, and that the test, given to someone other than the plaintiff, had mistakenly been placed on the plaintiff's file. Immediately before the mistake had been discovered, the plaintiff had taken the test and passed in easily. This prompted the inquiries which revealed the mistake which had been made. The plaintiff was immediately released from detention and granted temporary admission into the U.K.
[100] Even though this was a case of an "operational" error, the Court of Appeal held that a duty of care had not arisen. In finding so, the Court of Appeal first examined the statutory powers conferred in the context of the overall scheme and policy of the U.K. Immigration Act. The following conclusions of the Court of Appeal are equally applicable to the circumstances of the present case at para. 21:
The powers given to immigration officers by the Act are quintessentially those which are enforced by judicial review and in the normal way if a decision to release an immigrant is improperly delayed the remedy is an order of mandamus, not to release the immigrant, but to come to a decision whether to release or not. If that decision is improperly taken the remedy is again to seek a prerogative order, this time certiorari, in both cases no personal cause of action exists which could give a right to recover damages for breach of statutory duty and no such duty is alleged. (Emphasis added)
[101] In finding that no duty of care existed, the Court of Appeal commented as follows at paras. 23-29:
It seems to us that the application of each of these principles to the situation under consideration is inconsistent with the existence of a duty of care being owed by the immigration officer to the immigrant who has been detained.
(...)
The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In concluding their inquiries and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servants to which the considerations outline above apply. As Lord Moulton put in it Everett v. Griffiths (supra).
If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences, the liberty of property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of the duty to the public and then leave him in peril by reason of the consequences of others of that decision, provided that he has acted honestly in making that decision.
Lord Moulton may in the context of that case have been contemplated immunity from suit for negligence but the sentiment supports the concent of its not being faire or reasonable to impose liability for negligence in the case of an immigrant officer performing his public duty.
[102] But, whether or not a prima facie duty of care had been established by the Plaintiff, it is clear, at the second stage of the analysis, that compelling residual policy considerations justify this Court to deny liability in the present case. In my view, it would not be just, fair and reasonable for the law of this land to impose a duty of care on those responsible for the administrative implementation of immigration policies of the kind which have been made in the case of the Plaintiff, absent evidence of bad faith, misfeasance, or abuse of process.
[103] In the case at bar, there is no evidence that Officials acting overseas intentionally or deliberately delayed the processing of Ms. Mohiti's application. As already mentioned, if the Plaintiff was concerned with the length of time that the CIC was taking to process his wife's application, he could have brought a judicial review application asking for a writ of mandamus. In fact, Hugessen J. specifically noted that the Plaintiff had been represented by counsel and was not "particularly vulnerable":
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.
[104] In my opinion, once the CIC Officials in Damascus were made aware towards the end of September 1993 that two files had been mistakenly opened by the Registry, steps were promptly taken to rectify the matter. In November 1993, a request for medical examination was addressed to Ms. Mohiti and, in any event, a Minister's Permit was issued in January 1994. This additional delay of three months is not unreasonable in the circumstances. Moreover, the Officials took account of the delays already incurred since Ms. Mohiti sent her full application, that is sometime in October 1992. A Minister's Permit was accordingly issued in January 1994 and this cured, in my opinion, any error or omission made by CIC's Officials in the processing of Ms. Mohiti's application to obtain a permanent resident visa. In the circumstances, this constitutes an absolute bar to the claims in damages presented by the Plaintiff. In my opinion, nothing further was required to be done by the Defendant once the Minister's Permit was issued in January 1994. Moreover, I wish to emphasize that there is no evidence that Ms. Mohiti had previously relied on the misstatement contained in the June 1993 Telex as a particular ground to divorce the Plaintiff. The Defendant was under no obligation to address an official "apology" to Ms. Mohiti and in any event, the letter of May 20, 1994 addressed to the Plaintiff by Ms. Gauthier was certainly sufficient in the circumstances.
[105] Delays in the processing of immigration applications are inherent to the system. Chances are high that inadvertent mistakes will be made in the opening of the file because of some misspelling of a name. This risk is great in the Arab or Islamic world. The Soundex system used in Damascus at the time, as explained by Mr. Gilbert in his testimony, did not guarantee that errors would not be made. Moreover, in those years, there was no electronic system and every check required human intervention. While there is an electronic system today, human errors are possible because files continue to be opened by humans. At that time, the Canadian Embassy in Damascus was the regional office responsible for five countries: Iran, Iraq, Syria, Lebanon and Jordan. The evidence was that the Embassy in Damascus was extremely busy during the relevant period of time processing upwards of 4,000 immigrant visas and 7,000 visitors' visas per year. In addition, the Registry was creating approximately 100 new files per day. Moreover, the Registry system was not computerized.
[106] As in Cooper, I also find that the recognition of a duty of care in the present case would result in the "spectre of unlimited liability" to an unlimited class of litigants. In fact, the class of persons to whom the duty of care would be owed would be immense (i.e. all applicants for permanent residence in Canada in the family class category). Accordingly, imposing a duty of care would trigger further claims, which (a) would require funds to be diverted and time to be devoted to enable them to be resisted, and (b) would be a drain on public resources if the claims were successful (Cooper, supra at para. 54). It would also be easy for litigants to make fraudulent claims as the Government has no control on a spouse's decision to divorce and not to come to Canada. Moreover, there is no way, unless considerable resources were invested by the Government, to verify whether or not a divorce obtained in a foreign jurisdiction was the result of delays of some error made by an Immigration Officer. The possibility of collusion between the spouses would also be greatly encouraged in these circumstances. In effect, the Crown would act as an unlimited insurer for every possible economic and emotional loss that a plaintiff claims to have suffered as a result of a delay or a bona fide error made in the processing of an immigration file.
[107] The residual policy factors outlined above are sufficient for finding that no duty of care was owed in the circumstances of this case. The English Court of Appeal in W. v. Home Office, supra, at para. 22 has well summarized the situation (quoting first from the speech of Lord Browne-Wilkinson in W. (Minors) v. Bedfordshire CC (1995), 2 A.C. 633 (H.L.)):
"a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance ... of statutory duties."
(...)
(5) It is less likely that a duty of care will be imposed on a person exercising his public duty i.e. even where the statutory duty is being implement, if:
(1) a potential conflict could arise between the carrying out of the public duty, and acting defensively for fear of an action in negligence being brought:
(2) where the category of public servant is one similar to the police of CPS as considered in Hill v. the Chief Constable of West Yorkshire [1989], 1 A.C. 53 and Elguzouli-Daf v. The Commissioner of the Metropolis [1995], Q.B. 335, and where
(a) the general sense of public duty of such servants is unlikely to be appreciably reinforced by the imposition of liability;
(b) the recognition of the existence of the a cause of action even in quite limited circumstances would likely lead to the bringing of a substantial number of cases, and a diversion of the public servants concerned away from their duties contrary to the general public's interest; and
(emphasis added)
(c) where the are other private law remedies available if there is a deliberate abuse of power, and public law remedies available to challenge decisions.
[108] In conclusion on the issue of the duty of care, I reiterate that CIC Officials act pursuant to the Immigration Act and its regulations. This statute is the only source of their powers and of their duties. Their duty was to the entire Canadian population as a whole, not just to the Plaintiff. Imposing a private law duty of care on these individuals for the benefit of the Plaintiff would conflict with their overall duty to the public. As such, imposing a duty of care would hamper the effective performance of the system of immigration control. In the case at bar, I have found no breach by the Immigration Officials outside Canada of their statutory duty to process the application for permanent resident visa returned by Ms. Mohiti in October 1992.
Damages not proven at trial or too remote to be recovered from the Defendant
[109] The Plaintiff has not remarried. He has no children. He has worked in part-time jobs ever since he was admitted into Canada. He currently works part-time in a jewellery store. Inconsolable since he learned that Ms. Mohiti was remarried on August 7, 1995, to another man in Iran, the Plaintiff claims that his depression prevented him from pursuing studies in mechanical engineering which he started in Ottawa in the fall of 1995. As a result, in his "Amended amended amended Statement of Claim" dated March 1, 2005, the Plaintiff is now seeking over 1.8 million dollars in damages plus pre and post judgment interest for emotional distress, depression and general pain and suffering; loss of care, guidance, affection and companionship from his former spouse; loss of reputation leading to alienation of affection from his family; loss of past and future earnings; loss of past and future pension plan and retirement income, long term disability, health care, and other fringe benefits; loss of business opportunity; loss of the contribution from his spouse to household maintenance and expenses; and special damages for out-of pocket expenses.
[110] I have no doubt that the Plaintiff is an unhappy and depressed individual. Things just did not work out the way he expected ever since he came to Canada in 1988. When he arrived in Canada after his stay in the Shomeli camp, the Plaintiff was already stressed and anxious to have his wife come to Canada. He was very angry when he learned that he could not sponsor her and thought he had been misled into emigrating to Canada. I note that today, he still does not accept any personal blame for the breakdown of his marriage and puts all the responsibility of his wife's divorce and his ensuing depression on the Defendant. This makes him a very angry individual. I guess that the damages claimed above reflect the Plaintiff's subjective view that he has suffered an irreparable harm which justifies his demand for millions of dollars in compensation from the Crown. There is no doubt that the whole process of his own admission to Canada, and later of Ms. Mohiti's admission to Canada has been very stressful for the Plaintiff. Throughout the trial, he appeared convinced that all the actions he had taken were the right ones and that the blame was to be put entirely on the Defendant. However, his testimony often demonstrated unreasonableness. Some of his answers were inflexible and incoherent when compared to the rest of the evidence. At times, he appeared more committed to demonstrate how CIC officials should be blamed for what had happened rather than truthfully answering the questions that had been asked. In some ways, he displayed unrealistic expectations. For example, according to him, the fact that he not studied since 1984 was not at all an issue; his background was in engineering. Even if he had not worked in the field or formally studied sciences for ten years, the Plaintiff was convinced that he had the potential for far better grades if it had not been for the fact that he had been depressed. However, objectively speaking, the damages claimed by the Plaintiff are not recoverable at law for the additional reasons indicated below.
[111] First, it was already been finally determined before the trial that there could be no cause of action for damages caused to the plaintiff as a result of misrepresentations made prior to his admission to Canada or of delays incurred or of loss of business opportunities flowing from any tort perpetrated by CIC Officials in Canada in the processing of his application of landing and of Ms. Mohiti's application to come to Canada. That being said, the other damages claimed by the Plaintiff are either not supported by the evidence or are too remote to be recovered from the Defendant.
[112] Second, apart from the damages claimed for alleged emotional distress and, out-of-pocket expenses and loss of reputation which have not been proven at trial, the Plaintiff is seeking recovery for pure economic loss. It is a well established principle of law that damages cannot be recovered if they are too remote. As stated by Linden in Canadian Tort Law, supra, at 323:
Negligent defendants who owe a general duty are not liable unless their conduct is the "proximate cause" of the plaintiff's losses. Causation alone is not enough; it must be demonstrated that the conduct is the proximate cause of the damage. Put another way, the losses or injuries incurred by the Plaintiff must not be "too remote" a consequence of the act.
[113] The economic losses claimed by the Plaintiff could not have been foreseen by the Immigration Officials outside Canada who processed Ms. Mohiti's application. As already mentioned, on January 10, 1994, a Minister's Permit was issued by the Canadian Embassy in Damascus for Ms. Mohiti to come to Canada. In this regard, there is no evidence that CIC Officials in Damascus or Tehranintentionally delayed the process or acted in bad faith. The Minister's Permit was valid until January 1995. Curiously, the Plaintiff did not explain why he did not communicate with Ms. Mohiti, if he ever did, to inform her that a Minister's Permit had been issued in January 1994 and that all she had to do was to pick it up at the Embassy in Tehran. For whatever reason, Ms. Mohiti decided to stay in Iran. Accordingly, the damages flowing from Ms. Mohiti's decision to divorce and to later remarry another man, which contributed to the ensuing depression suffered by the Plaintiff, were not a foreseeable consequence of the delays or negligent actions imputed to the Immigration Officials in Damascus and, accordingly, are too remote to be recoverable at law against the Defendant (see Vanek v. Great Atlantic & Pacific Co. of Canada, [1999] O.J. No. 4599 (Ont. C.A.) (QL), 48 O.R. (3d) 228.
[114] Third, whether or not they are foreseeable consequence of the negligent acts reproached to the employees of the Defendant, the Plaintiff is claiming damages for lost income based on the assumption that he would have graduated from university with a degree in mechanical engineering and would have found work as a mechanical engineer after graduation. This assumption is based on the other assumption that his wife would have come to Canada and provided help and support while he was pursuing his studies. This is complete speculation and contradicts the commitment made by the Plaintiff to financially support his spouse in his undertaking of assistance. Moreover, while the Plaintiff attributes his bad results to his depression, there is absolutely no reliable and credible basis in the evidence for assuming that the Plaintiff would have successfully completed the program and graduated with a degree in mechanical engineering. In addition, there is no basis for assuming that he would have found work as a mechanical engineer. Rather, the evidence establishes that the work history of the Plaintiff since he has been in Canada has been in retail. According to the income summary chart produced by the Plaintiff for the period from 1990 to 2004, the lowest income flowing from employment appearing on his T4 annual statements was $907 in 1990 and his highest was $13,644 in 2001. There is also no basis for any claim for a future loss of income, as there is no medical evidence as to any ongoing impairment of the Plaintiff's ability to work. Further, the Plaintiff testified that he made in 2005 his own specific decision not to go back into engineering at the age of 43. There is, therefore, no basis to claim any future loss of income as a mechanical engineer.
[115] Four, with respect to the stress, emotional distress and anxiety caused to the Plaintiff, as sponsor, by the delays in the processing of Ms. Mohiti's application, they are the normal consequences of any application made abroad by a sponsored applicant. It is generally accepted that a plaintiff is not entitled to recover for ordinary emotions such as grief, sorrow, or emotional distress. Here, the evidence is that the Plaintiff has simply suffered grief, sorrow and distress from his divorce (see Devji v. Burnaby(District), 1999 BCCA 599 at paras. 4 and 75, 180 D.L.R. (4th) 205 (B.C.C.A), leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 608 (QL); Lewis.N. Klar, Tort Law, 3rd ed. (Toronto: Thompson Carswell, 2003) at 427). In addition, the Plaintiff cannot claim for such things as anxiety, feeling of humiliation, shame and embarrassment. Mere emotional upsets, no matter how distressing, are not sufficient to found a cause of action (Allen Linden, Canadian Tort Law, supra, at 390).
[116] Five, I find that there is no medical evidence attesting that the depression for which the Plaintiff was later diagnosed in 1996 was concomitant to his learning, in December 1993, that his wife had divorced him and was no longer willing to come to Canada. Indeed, the evidence established that he did not lose hope in 1994 to have her come to Canada. In this regard, the Plaintiff took further steps in 1994 to obtain an official letter that could be directly addressed to Ms. Mohiti; a letter that would convince her that the Plaintiff was not at fault. While not directly addressed to Ms. Mohiti, such letter was indeed given to the Plaintiff on May 20, 2004. It appears that it was only after he learned that his wife had remarried in August of 1995, that the Plaintiff started to have symptoms associated with a milder form of depressive state. In this regard, I note that the Plaintiff's expert evidence is lacking. There is no medical evidence prior to April 1996. There is no medical evidence from October 2002 onwards. Dr. Khan testified that she diagnosed the Plaintiff with adjustment disorder with depressive mood and anxiety disorder with panic attacks. Dr. Khan also testified that there were a number of factors that led to that diagnosis. The Plaintiff was grieving loss of his country. He was missing the Iranian culture. He was suffering from a loss of independence. He was having difficulty adjusting. He was disappointed with his standard of living and lack of financial success. He was not able to carry out the projects that he wanted to. He had spent 4 years in a refugee camp. Given the number of factors involved, it is not appropriate or reasonable for this Court to find the Defendant responsible for the Plaintiff's depressive condition which may even have a chronic character. In any event, it is Ms. Mohiti who, for whatever reason, decided to divorce the Plaintiff. The Defendant cannot be held responsible for any consequences flowing from her decision. In addition, as stated above, damages flowing from the divorce are too remote to be recoverable against the Defendant.
[117] Six, with respect to the other damages claimed by the Plaintiff, there is no evidence of any loss of reputation leading to alienation of affection from his family and no evidence of any out-of-pocket expenses (except for tuition fees and books paid for University studies which are too remote to be recovered from the Defendant). There is no evidence that Ms. Mohiti relied, in any divorce proceeding, on the misstatement made in the June 1993 letter addressed to her by the Canadian Embassy in Damascus.
CONCLUSION
[118] For all these reasons, the Plaintiff's action must fail. In view of the result and after considering all relevant factors, costs of this action, including costs left in the cause in other related proceedings, are attributed to the Defendant. As a final note, I understand that the result of this case will perhaps be disappointing for the Plaintiff from a financial point of view. However, I sincerely hope that this Judgment, coming more than ten years after the Plaintiff initially took action in Ontario against the Defendant, will now help him to move on and to finally turn the page from what has been a sad and grieving episode of his life. Indeed, I wholly concur with the following statement Dr. Khan wrote in her expert report dated August 23, 2005: "(...) the medications are not enough for [the Plaintiff], he needs to move on, find a new mate, have the legal proceedings done and over with and start a reasonable happy life".
JUDGMENT
The Court dismisses the Plaintiff's action and the costs of this action, including the costs left in the cause in other related proceedings, are attributed to the Defendant.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-626-96
STYLE OF CAUSE: Hussein Farzam v. Her Majesty the Queen in Right of the Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 24 to November 7, 2005
AND JUDGMENT: THE HONOURABLE MR. JUSTICE MARTINEAU
APPEARANCES:
| Ms. Silvia R. Maciunas
|
|
| Mr. Michael Roach |
SOLICITORS OF RECORD:
| Ms. Silvia R. Maciunas Barrister & Solicitor Ottawa, Ontario
|
FOR THE PLAINTIFF |
| John H. Sims, Q.C. Deputy Attorney General for Canada |
FOR THE DEFENDANT |