PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Plaintiff
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND HER MAJESTY THE QUEEN,
IN RIGHT OF CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1] The Plaintiff, Mr. Vitaly Borisovich Malkine, commenced an action in this Court by way of a Statement of Claim filed June 16, 2006. A motion to strike the Statement of Claim was argued before Prothonotary Tabib who allowed the motion and struck the Statement of Claim (Order dated February 9, 2007). Mr. Malkine has brought a motion to appeal the Order of Prothonotary Tabib.
[2] Since the decision of the Prothonotary was vital to the case, I will review her decision de novo (Merck & Co., Inc. v. Apotex Inc., 2003 FCA 488; [2004] 2 F.C.R. 459; leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 80).
Background
[3] As set out in his Statement of Claim, Mr. Malkine has been unsuccessfully trying to come to Canada as a permanent resident pursuant to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), or as a landed immigrant under the former Immigration Act, since 1994. The first refusal of admission, in 1998, was overturned in a judicial review application (177 F.T.R. 200; 3 Imm. L.R. (3d) 122). In 2002, Mr. Malkine sought an order of mandamus (Court File No. IMM-1749-02) which was dismissed after the Minister of Citizenship and Immigration (the Minister) consented to put a timeline in place for considering his application. This process resulted in a second refusal. Upon judicial review, the Minister consented to an order setting aside the second decision (Court File No. IMM-885-03) and an Order was issued to that effect. Mr. Malkine’s application was then reconsidered and refused in a decision dated January 2, 2005 and signed by Officer Gagné (one of the Defendants named in this action). Mr. Malkine did not apply for judicial review of that decision. As noted above, Mr. Malkine commenced this action on June 16, 2006.
Analysis
[4] It is well-established that a Statement of Claim should not be struck unless it is "plain and obvious" that the Statement of Claim discloses no reasonable cause of action (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980). This places a heavy burden on the moving party (British Columbia Native Women's Society v. Canada, [2001] 4 F.C. 191 at 205, 2001 FCT 646). In addition, the following principles (as set out in Mohiuddin v. Canada, 2006 FC 664 at para. 12, [2006] F.C.J. No. 874 (F.C.)(QL)) are relevant to this motion:
- The facts in the Statement of Claim should be accepted as proven (Hunt, above at 979).
- The Statement of Claim must contain sufficient pleadings to satisfy all necessary elements of the cause of action (Howell v. Ontario (1998), 159 D.L.R. (4th) 566 at 576 (Ont. Div. Ct.), 61 O.T.C. 336; Benaissa v. Canada (Attorney General), 2005 FC 1220 at para. 15, [2005] F.C.J. No. 1487 (F.C.) (QL)).
- There must be facts to support the claim; a bare assertion of a conclusion is not sufficient (Canadian Olympic Assn. v. USA Hockey Inc., (1997), 74 C.P.R. (3d) 348 at 350-351 (F.C.T.D.), [1997] F.C.J. No. 824 (F.C.T.D.) (QL)).
[5] Mr. Malkine brings this action pursuant to s. 17 of the Federal Courts Act, R.S.C. 1985, c. F-7. In considering this motion to strike, regard must be had to the interaction between ss. 17 and 18 of the Federal Courts Act and to the question of the availability of judicial review to Mr. Malkine. In general, the availability of judicial review to a complainant precludes an action (Grenier v. Canada, 2005 FCA 348 at para. 20, [2005] F.C.J. No. 1778 (F.C.A.) (QL); Prentice v. Canada (Royal Canadian Mounted Police), 2005 FCA 395 at para. 33, [2005] F.C.J. No. 1954 (F.C.A.) (QL); Tremblay v. Canada, 2006 FCA 90 at para. 7, [2006] F.C.J. No. 354 (F.C.A.) (QL); Mohiuddin, above at para. 17; Renova Holdings Ltd. v. Canada (Canadian Wheat Board), 2006 FC 71 at para. 39, [2006] F.C.J. No. 92 (QL)).
[6] Mr. Malkine acknowledges that he chose not to proceed with a judicial review because of the frustration of many years of rejections by the Minister and his (or her) delegates. The problem for Mr. Malkine is that the choice of whether to proceed by judicial review is not his to make (Grenier, above at para. 20).
[7] In argument before me, Mr. Malkine argued that he is not seeking to overturn the decision of Officer Gagné. Rather, he submits that the essence of the claim is that there is an unlawful agreement or conspiracy that sought to deprive him of his ability to gain permanent resident status in Canada. As a result of this conspiracy, he argues that his reputation as a Russian Senator has suffered. He seeks damages arising from the conspiracy and not as a result of a negative decision of a particular visa officer.
[8] There are many problems with this interpretation of the statement of claim. The biggest problem is that this description ignores the very relief that Mr. Malkine has claimed. If successful in this action, Mr. Malkine would, in effect, obtain a declaration that the January 2, 2005 decision was “improperly reached” and a declaration that he is admissible to Canada under the IRPA. That is precisely what he could have obtained through a successful judicial review. In spite of couching his submissions in terms of liability for a conspiracy, Mr. Malkine is asking this Court to overturn the January 2, 2005 decision; no other conclusion is possible. Mr. Malkine’s claim is no more than a collateral attack on the January 2, 2005 decision and those that preceded it.
[9] To support my conclusion in this regard, I need only turn to the very substance and words of Mr. Malkine’s Statement of Claim. Specifically, he could have sought to have the decision of Officer Gagné overturned on the basis that:
- The January 2, 2005 decision was “improperly reached” (Statement of Claim, para. 1(a));
- The opinions, facts and conclusions expressed in the decision “regarding any alleged misrepresentation or misconduct of the Plaintiff either at the immigration interview or in any documentation supplied by him were not true and were neither factual nor inaccurate, and were reached by the said Defendant Gagné without providing procedural fairness to the Plaintiff . . .” (Statement of Claim, para. 1(b));
- “[T]he statements . . . as to the Plaintiff being either a criminal, associated with any criminal act or being associated with any criminal or associated with any organized crime in any way whatsoever, were not true, neither factual nor accurate and were reached by the said Defendant Gagné without providing procedural fairness to the Plaintiff and lacked either factual or evidentiary substance” (Statement of Claim, para. 1(c));
- Officer Gagné “acted in concert in the processing of the Plaintiff’s application for a permanent residence visa both unfairly and in a manner that was patently unreasonable” (Statement of Claim, para. 1(d)); and
- “[T]he refusal to grant the Plaintiff a permanent resident visa was the result of an unlawful agreement” (Statement of Claim, para. 1(f)).
Assuming the allegations to be true (which I must do for purposes of a motion to strike), these would all have constituted grounds upon which the January 2, 2005 decision could have been overturned.
[10] Some of these claims are expanded on in the Statement of Claim. But, even on reading the balance of the Statement of Claim, I can find little that could not have been considered in the context of a judicial review. A good example of this is para. 72, where Mr. Malkine states:
[…] Defendant Gagné was also under instructions to refuse the Plaintiff in that the Plaintiff’s answers to the questions were unfairly received by the Defendant Gagné who being under the said instruction had bias to refuse the application by turning whatever the Plaintiff said into yet another reason to refuse the Plaintiff’s application.
In effect, Mr. Malkine is arguing that Officer Gagné fettered his discretion or that there was a reasonable apprehension of bias. These are clearly grounds upon which the January 2, 2005 decision could have been overturned.
[11] Further, much of the damages claimed to have been suffered by Mr. Malkine relates to the fact that he has been denied permanent resident status in Canada. For example, in para. 78 of the Statement of Claim, he states that he has been unable to directly manage his investments in Canada. This is a direct result of the decision declaring him to be inadmissible. He cannot now re-litigate matters which could have been raised on judicial review (see, Miller v. Her Majesty the Queen, 2006 FC 1446 at para. 27).
[12] In argument before me, Mr. Malkine appears to have modified his position and does not now argue that he seeks admission to Canada. That, however, is not what is stated in the Statement of Claim; indeed, admission to Canada appears, on my reading of the Statement of Claim, to be his primary concern.
[13] Mr. Malkine now emphasizes that his reputation as a Russian Senator has suffered because of the repeated refusals he has received. However, the only reference to his reputation in the Statement of Claim (para. 80(b)) is nothing more than a bare assertion unsupported by any facts.
[14] One of the arguments raised by Mr. Malkine is that he was not aware of the alleged conspiracy until long after the decision of Officer Gagné. This is not specifically pleaded in the Statement of Claim. However, even if it had been, that would not have given Mr. Malkine the automatic right to proceed by way of an action. It is possible that, upon discovery of this information (assuming that there was some specific information or something more than a mere suspicion), Mr. Malkine could have sought an extension of the time for bringing an application for judicial review. Once again, I state that Mr. Malkine has no right to choose to proceed by way of s. 17 of the Federal Courts Act rather than by judicial review.
[15] In sum, this is a clear case of a collateral attack on a decision that could have been the subject of a judicial review.
[16] Mr. Malkine claims damages; damages are not available to Mr. Malkine on judicial review. Accordingly, I turn my mind to the claim of damages. In her Order, the Prothonotary also considered this aspect of Mr. Malkine’s Statement of Claim. I have reproduced the comments of Prothonotary Tabib on this question in full since, having reviewed the submissions of the parties and considered the question de novo, I am in full agreement with her reasoning and adopt it as my own:
What is left of the statement of claim are the allegations of paragraphs 10 to 68, and the following paragraphs of the statement of claim, going to the damages claimed and their relationship (such as it can be discerned) to the alleged wrongdoing:
“78. (…) As a result of the finding of misrepresentation by the Defendant Gagne, the Plaintiff has been prohibited from entering Canada to visit with his son for two years from the date of the said interview and the said “Letter”. Moreover, because of the said finding unlawfully reached by the Defendant Gagne, the Plaintiff has been unable to directly manage his investments in Canada.
79. The Plaintiff states and the fact is that it now become apparent that resort to the Federal Court was nothing more than a useless endeavour since the only relief that could be provided by that Court was to send the matter back for further re-determination and that the ensuing delay in getting to the Court would be both substantial and prejudicial to the Plaintiff since the matter had been proceeding as of 1994.
80. The Plaintiff states and the fact is that by reason of the unlawful actions of the Defendants as particularized, he has undergone:
a. A great deal of expense, trouble, time, and interruption of his business activities, as well as legal costs and other damages related to thirteen years of pursuing a futile proceeding;
b. He has suffered damage through [sic] his reputation by reason of the findings of criminality which have severely prejudiced him in the carrying on of his business; and
c. The loss of monies with respect to his inability to enter Canada to supervise his business investments has severely affected his livelihood in Russia.
81. The Plaintiff therefore claims damages in the sum of $36,000,000.00.”
The damages alleged to have been suffered by the Plaintiff in the last part of paragraph 78, of being prohibited from entering Canada and being unable to directly manage his investment, are clearly said to flow from the determination of January 2, 2005. As that determination has not been challenged on judicial review, it remains valid and lawful, and no damages can be claimed or awarded as a result.
Paragraph 79 does not set out a specific claim for damages. As was the case for paragraphs 69 to 78, that paragraph’s allegation of the futility and uselessness of the judicial review process is premised on the alleged unlawfulness of the decision of January 2, 2005, and cannot form the basis of a claim for damages. Likewise, paragraph 80(a) claims for expenses, trouble, time and interruption of the Plaintiff’s business activities, legal costs and other damages related to “thirteen years of pursuing a futile procedure”. The Court has recognized, in Samimifar v. Canada (MCI), [2006] F.C.J. No. 1626; 2006 FC 1301 that in appropriate circumstances, a claim for Charter damages or damages for intentional torts may lie against the Crown for delay in processing a claim, and such a claim might arguably be open to the Plaintiff (if properly pleaded) in respect of those processes and decisions that were invalidated in judicial review proceedings. However, the claim, as clearly set out in paragraph 80(a), is not for a delay in processing an application but for the inconvenience and costs of the entire process on the basis that it was futile (implicitly, because the ultimate result was allegedly and unlawfully preordained). Considering that the decision of January 2, 2005 stands as a valid determination of the Plaintiff’s inadmissibility to Canada, the claim for damages as framed must fail.
Paragraph 80(b) claims for damage to the Plaintiff’s reputation caused by “findings of criminality”. Insofar as those findings are alleged to be contained in the decision of January 2, 2005, they cannot be claimed to be wrongful or negligent.
The only other decision which allegedly contained finding of criminality and might therefore remotely form the basis of a claim for damage is the decision resulting from the “third process”. As mentioned above, the allegations of wrongdoing related to that process are limited to allegations of breach of statutory duty, which is not recognized as a nominate tort (see arguments and jurisprudence set out at paragraphs 51 to 59 of the Defendants’ written representations). In order for the actions of the visa officer to amount to an actionable tort, they would need to amount to the tort of misfeasance in public office or unlawful conspiracy, for which specific allegations of intent to cause damage to the Plaintiff, or of knowledge that damage would be caused coupled with knowledge of illegality must be pleaded (see Hunt and Carey v. Canada Inc., [1990] 2 S.C.R. 959 and other arguments and jurisprudence at paragraphs 61 to 65 of the Defendants’ written representations). The statement of claim simply makes no such allegation, and the Plaintiff’s counsel, at the hearing, did not suggest that any specific amendments could or would be made to cure this fatal defect. I therefore find that the statement of claim discloses no reasonable cause of action for the claims made in paragraph 80(b).
Finally, paragraph 80(c) presents a claim for damages flowing directly from the Plaintiff’s inability to enter Canada. This claim cannot succeed, as the statement of claim makes it plain that the Defendants’ inadmissibility results from the valid and subsisting decision of January 2, 2005.
[17] In conclusion, I am in complete agreement with Prothonotary Tabib that this action should be struck without leave to amend.
[18] Mr. Malkine is not without a remedy. It may be open to him to commence a new action provided that the pleadings consist of essential facts grounding a cause of action that could not have been brought in an application for judicial review. In addition, Mr. Malkine may now re-apply for permanent residence or a temporary resident visa. In the event that one of those applications is refused, I see nothing that would prevent Mr. Malkine from raising, in an application for leave and judicial review, the arguments and seeking remedies (other than damages) that have been part of his statement of claim.
[19] For these reasons, the motion for appeal of the decision of Prothonotary Tabib is dismissed with costs to the Defendants.
ORDER
This Court orders that:
1. The motion of the Plaintiff is dismissed;
2. The decision of Prothonotary Tabib is affirmed (including as to costs);
3. The Plaintiff’s Statement of Claim is struck and the action dismissed; and
4. Costs of this motion of appeal are awarded to the Defendants.
“Judith A. Snider”
_________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-989-06
STYLE OF CAUSE: VITALI BORISOVICH MALKINE v.
MICHEL GAGNE ET AL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 23, 2007
REASONS FOR ORDER
DATED: May 31, 2007
APPEARANCES:
Mr. Joseph R. Young FOR THE PLAINTIFF
Ms. Marlene I. Thomas for the DEFENDANts
Ms. Kristina Dragaitis
Mr. Lorne McClenaghan
SOLICITORS OF RECORD:
Mr. Joseph R. Young for the PLAINTIFF
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. for the DEFENdAnts
Deputy Attorney General of Canada