Federal Court Decisions

 

 

 

Date: 20061123

Docket: IMM-2256-06

Citation: 2006 FC 1419

 

 

BETWEEN:

COLLEY WEST SHIPPING COMPANY LTD.

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT

 

PHELAN J.

I.          INTRODUCTION

[1]               The Applicant is a Vancouver-based company providing services to ships visiting the port on an irregular, occasional or non-repeat basis. The Respondent seeks to recover the cost of deporting a stowaway who entered Canada 12 years ago on the basis that the Applicant is an agent of a transportation company and therefore is liable for the costs of removal. This is the judicial review of the decision to require the Applicant to pay the costs of removal.

 

II.         BACKGROUND

[2]               The Applicant company is the result of an amalgamation of 461633 B.C. Ltd., Colley Motorships West Ltd. and Colley West Shipping Ltd. At the time of the events leading to the alleged liability, the company involved was Colley Motorships West Ltd. As nothing turns on the corporate structure, the Applicant will be referred to as “Colley”.

 

[3]               Colley was in 1994 and is now engaged in providing services to the shipping industry on a fee for services basis or on a commission basis. It works exclusively for tramp vessels, their owners, operators and charterers. The ship M/V Macedonia Hellas was a tramp ship when it visited in 1994.

 

[4]               The services provided by Colley to tramp ships (if appointed directly by the owner) included vessel inbound and outbound clearance, arranging for pilotage and tug services, on-board assistance to the Master, liaison with stevedores, terminal operators, Canadian Wheat Board/Grain Clearance Association, arranging for provisioning services, and, with express written authority, document issuance such as bills of lading.

 

[5]               Colley did not have any general authority to bind in law whoever engaged Colley’s services or otherwise pledge the credit of the ship, the owner, operator or charterer.

 

[6]               On October 3, 1994, Michael Aloyce Kirango (Kirango), a citizen of Tanzania, entered Canada, along with four others, as a stowaway on the ship. He was found to be inadmissible.

 

[7]               On October 5, 1994, a Marine Immigration Officer sent a notice to Colley advising that the ship had brought in improperly documented stowaways. The notice went on to point out that the Immigration Act holds a transportation company liable for detention and deportation costs. The department therefore asked for a deposit of $5,000 for each stowaway.

Please be advised that the Immigration Act holds the transportation company liable for detention and deportation costs (Immigration Act 87(3) (sic) and we, therefore, are asking for a deposit of five thousand dollars ($5,000.00) per person under the authority of Section 92 of the Immigration Act.

 

[8]               The next correspondence was a letter dated November 14, 1994 from the law firm of Campney and Murphy providing the deposit. The Respondent puts great importance on this letter because it contains a statement that any refunds are to be sent to the law firm and “not the ship’s agent in Vancouver, Colley Motorships West Ltd.”. (There appears to be some confusion as to whether these events occurred in October or November 1994.)

 

[9]               Thereafter the matter became dormant except for a letter of January 29, 1996, not from Colley but from the Campney and Murphy law firm, inquiring as to the status of Kirango and when it could expect the return of its deposit.

 

[10]           Between 1995 and 2005 Kirango unsuccessfully sought refugee status, and developed a long criminal record for crimes of theft, forceable entry, robbery, failure to comply, impaired driving and assault. He was also arrested three times by immigration officials and released on terms which he failed to meet. Finally, after some time, the Canadian Border Services Agency (CBSA) secured proof of Kirango’s nationality and began the process of deporting him.

 

[11]           On April 4, 2006, Ms. Fernandez (Fernandez), an Enforcement Officer with CBSA, contacted Colley to inform it that Kirango was ready for removal and that Colley was responsible for conveying Kirango to Tanzania or to pay the removal costs if CBSA carried out the removal. It is this decision, that Colley as agent is responsible for removal costs, which is under review.

 

[12]           CBSA took the position with Colley and its counsel that Colley had notified CIC in 1994 that it was the agent for the M/V Macedonia Hellas. This was denied by Colley. CBSA took the position that at no time prior to April 2006 did Colley advise CIC that it was not the agent for the ship.

 

[13]           Colley refused to make the removal arrangements. As a consequence, it was advised that it was liable for approximately $23,000 removal costs less the $5,000 deposit made by Campney and Murphy and other deposits (not provided by Colley) in respect of the other stowaways.

 

[14]           The evidence (or lack of it) in this case is problematic. Colley, never thinking it had any liability, had destroyed its old files years ago consistent with its practice of destroying files older than seven years old.

 

[15]           The events of September-October 1994 were the only time that Colley dealt with this ship. Colley’s evidence was put in by its President, Richard Barlow, who was President of Colley Motorships West Ltd. He addressed the very limited way in which Colley dealt with the ship, that it had nothing to do with the posting of security and that all it did was provide some services for a fee. He also confirmed that Campney and Murphy was acting for the owners, not for Colley.

 

[16]           The evidence of the Respondent was much less direct. Fernandez began her employment at CBSA in 2003 and had no knowledge of the events in 1994 except as could be reconstructed from documents or from conversations with others.

 

[17]           The Respondent’s records were acknowledged to be somewhat incomplete. There were two officers directly involved in the 1994 events, at least one of whom (Beaver) is still employed with the Government of Canada, is in Ottawa, and provided some information to Fernandez. He was never put forward as a witness nor made available for cross-examination.

 

[18]           While there are no written reasons for this decision, the April 4, 2006 communication from Fernandez relies upon s. 148(1)(f) of the Immigration Refugee Protection Act (IRPA), which reads:

 

[19]           The Immigration and Refugee Protection Regulations (Regulations) go on to outline how the responsibilities in s. 148 are to be met:

 

[20]           A “transporter”, as used in the Regulations, is defined as:

 

[21]           The effect of all these provisions, from the Respondent’s perspective, is that Colley, as agent, was responsible for the costs of removal.

 

III.       ANALYSIS

[22]           The Applicant raises three issues in this judicial review:

(a)        Does the Immigration Act in force in 1994 or does the current IRPA apply to the issue of agency?

(b)        Was Colley an agent under the terms of the applicable legislation?

(c)        Was there a breach of procedural fairness in the manner in which this matter was dealt with either by the absence of reasons or delay?

 

A.        Standard of Review

[23]           Were it not for the decision of Justice Dawson in Greer Shipping Ltd.v. Canada (The Minister of Citizenship and Immigration) (T.D.), [2001] 2 F.C. 357 that the standard is reasonableness simpliciter, I would have had no hesitation in concluding that the decision to demand compensation for removal on the basis of agency is a matter of law for which the standard is correctness.

 

[24]           The decision that the Respondent’s officials made is principally one of law – whether the Applicant is an “agent” under the statute. Determinations of agency are matters that courts deal with regularly and have greater expertise in them than government officials. This is a matter of determining liability. It is also one in which the government has a direct financial interest. The very legalistic nature of the issue coupled with relative expertise and direct government interest (here, in particular, if Colley is not liable, the government must absorb the removal costs) outweigh such factors as the purpose of the legislation and the limited review under s. 18 of the Federal Courts Act.

 

[25]           Therefore, I would, if it was necessary to decide, conclude that the standard of review is correctness. However, in my view, the result will be the same whether the standard is correctness or reasonableness simpliciter.

 

B.         Retrospectivity

[26]           There appears to be no serious debate that the issue of agency must be determined as of 1994 and therefore under the Immigration Act. IRPA might apply in respect of the notification and demand for removal costs because pending matters under the Immigration Act are governed by IRPA (s. 190 IRPA).

 

[27]           The issue in this case is not, in reality, the obligation to pay but whether Colley was an agent in 1994. The consequences of that determination may lead to the obligation to pay under either piece of legislation. However, the existence of the agency relationship must be based on the 1994 legislation.

 

C.        Agency

            (1)        Principles

[28]           While the Greer decision was reversed and the Federal Court of Appeal refused to answer the certified question as to agency, Justice Dawson’s consideration of the agency issue has relevance.

 

[29]           As Justice Dawson concluded, the term “agent” is capable of two meanings. It can be used in the generic sense to refer to someone who is a representative or medium of another. It can also mean a more formal relationship where one is considered at law to represent in a manner so as to be able to affect the principal’s legal position with strangers to the agency relationship.

 

[30]           There are also many types of agency relationships and principles including agents with general authority and those with limited or specific authority or mandates. There is also the issue of implied or ostensible authority arising from the principal’s conduct. According to the doctrine of implied warranty of authority, an individual falsely holding himself out as an agent will become liable when he contracts with third parties who believe he is acting as an agent. The Respondent apparently gave no thought to any of these principles of agency when determining that Colley was an agent for purposes of the Immigration Act.

 

[31]           The classic definition of an agency relation is one “that exists between two persons, when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal’s legal principle in respect of strangers to the relationship by the making of contracts or the disposition of property”. (Fridman’s Law of Agency (7^th ed.) (Toronto : Butterworth’s 1996) at 11)

 

[32]           The same author defines, at p. 32, an independent contractor as “one who by agreement, usually for reward, provides services for another”.

 

[33]           In the new legislation the type of “agent” was clarified to mean a person who provides services as a representative. The prohibition against carrying illegal immigrants contained in s. 148 of IRPA covered agents who, by virtue of s. 2 of the Regulations, provided representative services.

 

[34]           The term “agent” contained in the Immigration Act could be interpreted so broadly as to cover even the most limited type of agency relationship. The Canadian Wheat Board could be an agent for the ship/owners but that agency is for purposes of loading grain. A customs broker may be an agent for the ship/owners but with a limited mandate related to customs clearances. It would be unreasonable to give such a broad meaning to the term “agent” as to encompass all types of agents (many of whom are more properly independent contractors providing goods or services) with limited specific mandates.

 

[35]           Justice Dawson in Greer touched upon this problem in concluding that the more restrictive meaning reflected in the French version of “transportation company” best accords with the Parliamentary intent to discourage transportation companies from bringing in illegal entrants.

 

[36]           Giving a broad meaning to the term will not accomplish this legislative goal of discouraging the transportation of illegals, although it will pass off the costs of removals from the public to an innocent third party shipping agent. It is evident that the Respondent pursued Colley because, while Colley may not have had “deep pockets”, it had the only pockets available in Canada and infinitely the easier to pursue than the ship or its owners/operators.

 

[37]           What is also equally evident is that the Respondent never considered the issue of the nature and type of Colley’s agency, whether it was a true agent or what the limitations of its authority may have been. It simply found documents (none of them provided by Colley) which referred to it as an agent and concluded that Colley was an agent for purposes of IRPA and the Immigration Act. It never turned its mind to whether Colley was in reality an independent contractor with no authority to bind the ship, its owners or operators.

 

[38]           Even if the standard of review is reasonableness, the Respondent failed to turn its mind to relevant considerations in reaching its conclusions.

 

(2)        Evidence

[39]           As indicated earlier, the documentary evidence in this case is problematic because it is incomplete through no fault of anyone. However, the Court is asked, at a minimum, to find that the Respondent’s reconstruction of events and the meaning it has given to documents is at least reasonable.

 

[40]           The Applicant put forward its President who was knowledgeable about the business and could, in the absence of the company’s records, speak to the matter both specifically and generally as to usual business practice. The Respondent put forward any officer who had no direct knowledge of the facts, and who could not speak to the reasons for concluding in 1994 that Colley was the agent for purposes of the Act. I prefer the evidence of the Applicant.

 

[41]           The Respondent relies on a number of documents to support its interpretation of events and its conclusion that Colley was the agent for purposes of the Immigration Act. However, the most direct evidence of an official who dealt with the file, who dealt with the documents and who may have been the actual decision-maker, was never put forward.

 

[42]           This failure to put that official forward deprived the Applicant of an opportunity to directly ask questions relevant to the decision; not a fatal flaw since the questions could have been asked through Fernandez. However, it did undermine the ability of the Court to understand the rationale behind the conclusions, the context and the interpretation given to the documents. A few examples will suffice to make the point about context and interpretation and the failure to establish reasonableness, much less correctness. The Applicant and the Court were handicapped in making the “probing inquiry” to which the reasonableness standard is subject.

 

[43]           The Respondent puts great reliance on the October 5, 1994 notice sent to Colley advising it that the Respondent holds the transportation company liable for bringing in improperly documented persons. This, the Respondent says, shows that it understood Colley to be the agent for purposes of the Immigration Act and Colley never challenged this point until April 2005.

 

[44]           However, the letter never directly says that CIC considered Colley as agent to be liable for the demanded deposit. It is equally consistent that CIC merely expected Colley to pass this information on to the ship owners or whomever. The failure to challenge this notice cannot be taken as an admission or a holding out of authority as agent.

 

[45]           The next event, and one in which the Respondent places great reliance, is the letter from Campney and Murphy of November 14, 1994 to Mr. Leuszler which enclosed the deposit demanded on October 5, 1994. The letter instructs, and it is this which gives the Respondent comfort, to pay any refunds to Campney and Murphy and “not the ship’s agent in Vancouver, Colley Motorships West Ltd.”. This, the Respondent says, is proof that Colley was the agent for purposes of the Immigration Act.

 

[46]           The letter is open to a better, more logical and reasonable interpretation. The October 5, 1994 notice would appear to have been passed on to the ship’s owners/operators who instructed counsel to put up the deposit. It is a direct repudiation that Colley was to have any authority or responsibility for this immigration matter.

 

[47]           It answers the suggestion that Colley allowed its agency position to stand until 2005 when money was demanded by the Respondent. If CIC officials were labouring under a misapprehension as to Colley’s status in this immigration matter, they ought not to have been after this letter. If anyone shows as an agent in respect of this matter, it is the law firm. The firm confirms its role in this matter (and, by implication, the absence of any role for Colley) by its follow-up letter of January 29, 1996 inquiring as to the status of the stowaways and the possibility of a refund.

 

[48]           In the face of this clear evidence, the Respondent has no explanation of how it could have considered Colley as the agent for purposes of the Immigration Act.

 

[49]           The Respondent also relied on other documents to support its position; none of them from Colley or even Colley’s principal/customer. A series of internal government records list Colley as the “transporter”. A 1996 “Stowaway” document lists Colley or the “Original Depositor”, a statement which is totally inaccurate. The fact that government records mischaracterize Colley’s role cannot constitute Colley as an agent.

 

[50]           The Respondent put forward a faxed copy of a telex dated September 29, 1994 from the ship’s master to Manhattan Shipping Ltd. describing the stowaways being securely locked upon entering Canadian waters. That telex apparently was sent from “Manhattan Shipping VCR” to someone in CIC with a handwritten notation in the writing of the sender “FYI Owner’s protective agent is Colley Motorways West””.

 

[51]           Other than testifying that this document was found in the CIC file, there is no evidence that it played any role in the conclusion as to Colley’s status or liability. The document is at best equivocal as it suggests some limitation on Colley’s agency status. It is put in evidence without explanation, context or background.

 

[52]           In the face of these documents and absent any explanation as to how the Respondent concluded that Colley was an agent for purposes of the Immigration Act, I find that the decision is both incorrect and unreasonable. On this record it is unreasonable to conclude that Colley was such an agent and it was unreasonable for the Respondent to continue to rely on that conclusion for the past 12 years.

 

D.        Procedural Fairness

[53]           The Applicant complained that there were breaches of procedural fairness because there are no reasons for the decision, that it was not notified of the decision regarding its “agent” status in a timely manner and that there was significant delay in the prosecuting of this file.

 

[54]           In assessing the duty of fairness owned, the five factors in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 must be considered. In this case, it is important to note that the decision is principally administrative, the consequences are purely financial and there are no procedures or other matters which suggest a high level of procedural protection.

 

[55]           There has been delay in this matter and while releasing Kirango three times may have exacerbated the delay, the delays were also caused by a number of factors which cannot be attributed to the Respondent.

 

[56]           The Applicant did, in fact, receive reasons. The correspondence in April 2006 gives the Respondent’s rationale, such as it was. The failure to make the 1994 decision-maker available for cross-examination undermined the Respondent’s ability to show that its conclusion was reasonable.

 

[57]           As to notice, the letter of October 5, 1994 did make reference to the Immigration Act s. 87(3). The fact that Colley did not understand that CIC was looking to it for possible liability may explain why it did not object. However, it does not mean that it did not have notice of the Respondent’s position. Colley did not understand its alleged liability but it was not misled or misinformed.

 

[58]           There has been no breach of procedural fairness.

 

IV.       CONCLUSION

[59]           For the reasons stated, the Respondent’s decision is both incorrect and unreasonable. This judicial review will be granted, and the demand for payment of removal costs is quashed.

 

[60]           At the request of the parties, the Court agreed to allow them time to consider whether these reasons give rise to a certified question. Therefore, the parties shall have five days from release of these reasons to make any submissions as to whether a question should be certified after which the formal Judgment shall issue.

 

 

 

“Michael L. Phelan”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2256-06

 

STYLE OF CAUSE:                          COLLEY WEST SHIPPING COMPANY LTD.

 

                                                            and

 

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

 

 

PLACE OF HEARING:                    Vancouver, Ontario

 

DATE OF HEARING:                      November 14, 2006

 

REASONS FOR JUDGMENT:       Phelan J.

 

DATED:                                             November 23, 2006

 

 

 

APPEARANCES:

 

Mr. Peter Swanson	FOR THE APPLICANT
Ms. Helen Park	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

BERNARD & PARTNERS Barristers & Solicitors Vancouver, British Columbia	FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia	FOR THE RESPONDENT