Date: 20150427

Ottawa, Ontario, April 27, 2015

PRESENT:    The Honourable Mr. Justice Zinn

BETWEEN:

JUVENAL DA SILVA CABRAL, PEDRO MANUEL GOMES SILVA, ROBERT ZLOTSZ, ROBERTO CARLOS OLIVEIRA SILVA, ROGERIO DE JESUS MARQUES FIGO, JOAO GOMES CARVALHO, ANDRESZ TOMASZ MYRDA, ANTONIO JOAQUIM OLIVEIRA MARTINS, CARLOS ALBERTO LIMA ARAUJO, FERNANDO MEDEIROS CORDEIRO, FILIPE JOSE LARANJEIRO HENRIQUES, ISAAC

MANUEL LEITUGA PEREIRA, JOSE FILIPE CUNHA CASANOVA

Docket: T-2425-14

Plaintiffs

and

MINISTER OF CITIZENSHIP AND IMMIGRATION, MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT, HER MAJESTY THE QUEEN

Defendants

ORDER AND REASONS

[1]       The defendants move to strike the Statement of Claim, without leave to amend. They submit that it does not comply with the Federal Courts Rules, SOR/98-106, as amended [the

Rules], discloses no reasonable cause of action, is scandalous, frivolous or vexatious, and constitutes an abuse of the court’s process.

[2]       This is a proposed class action proceeding. Each of the plaintiffs applied for permanent resident status, pursuant to subsection 12(2) of the Immigration and Refugee Protection Act, SC

2001, c 27 [the Act], and section 87.2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations] as members of the Federal Skilled Trades Class [FSTC]. They say that they met all of the requirements under the FSTC, except the language requirement. Specifically, they did not meet the requirements of the International English Language Testing System [IELTS] test created by Cambridge University and adopted by the Minister of Citizenship and Immigration [the Minister].

[3]       The plaintiffs allege that the IELTS is a higher standard than the Canadian Language Benchmark referenced in subsection 70(2) of the Regulations. They further assert that it caters to “English English” or “Australian English” speakers rather than to “Canadian English” speakers.

[4]       Each plaintiff, not having passed the IELTS, requested that the officer perform a substitute evaluation of his or her ability to become economically established in Canada, as is provided for in subsection 87.2(4) of the Regulations. They say that the officer rejected their applications without considering whether to conduct a substituted evaluation because of a Ministerial policy directive that stipulates that no FSTC application was to be examined by an officer, unless the IETLS had been passed.

[5]       The plaintiffs allege that this policy is beyond the Minister’s authority and “favours nationals of English-speaking countries such as England, Ireland, Australia, and discriminates and excludes Portuguese, Italian, Polish, and other nationalities of skilled trades, on proven English language skills for a minimum of two years in their trade, in Ontario.” It is further alleged that the Minister has made public statements that “knowingly and illegally discriminate” against those who are not “English English” speakers in the administration of the FSTC programme.

[6]       The plaintiffs allege that the matters complained of constitute violations of sections 7 and

15 of the Charter, are acts of public misfeasance, done in bad faith or in the absence of good faith, and that they have denied the plaintiffs their statutory and constitutional rights. They claim general damages, aggravated damages, punitive damages, damages for legal fees, lost income, mental anguish, and breach of their Charter rights, as well as solicitor-client costs of the action.

[7]       The defendants assert that the Statement of Claim must be struck on a number of grounds, each of which is examined below.

[8]       The plaintiffs' claim is novel, as the defendants admit. The Federal Court of Appeal recently restated the jurisprudence with respect to motions to strike novel claims in Paradis Honey Ltd. v Canada (Minister of Agriculture), 2015 FCA 89 [Paradis Honey], at paras 116-

117:

In assessing whether a novel claim can survive a motion to strike, we must remember that the common law is in a continual state of responsible, incremental evolution. ... A novel claim should not be struck just because it is novel.

...

When courts consider a novel claim, they must keep in mind a line. On one side of the line is a claim founded upon a responsible, incremental extension of legal doctrine achieved through accepted pathways of legal reasoning. On the other is a claim divorced from doctrine, spun from settled preconceptions, ideological visions or freestanding opinions about what is just, appropriate and right.

The former is the stuff of legal contestation and the courts; the latter is the stuff of public debate and the politicians we elect.

[9]       In my view, the claim of the plaintiffs falls on the right side of the line – it is not divorced from doctrine. Although the factual matrix underlying the action is unique, claims against the Crown and Ministers for damages are not.

General Principles on Sufficiency of Pleadings

[10]     The defendants allege that “it is plain and obvious that none of the causes of action can be established on the basis of the facts alleged in the claim” and “there is no reasonable prospect that the claim will succeed.”

[11]     It is submitted that the pleading does not comply with Rules 174 and 181 of the Rules in that it fails to state the material facts relied on by the plaintiffs and fails to particularize the pleading of misfeasance (breach of trust).  I accept that the pleading is not a model of clarity and detail; however, I am satisfied that the plaintiffs have pleaded the material facts (and not the evidence required to prove those facts) in a manner sufficient to comply with Rule 174. I agree with the plaintiffs that the pleading references legislative provisions, which the defendants are allegedly directing officials to ignore or are themselves ignoring. This constitutes material facts sufficient to frame the cause of action pled.

[12]     The defendants’ complaint, in my view, is a complaint that the plaintiffs’ pleading has “no basis in fact” or is lacking an evidentiary foundation; however, that will depend on the evidence gathered and whether or not it supports the material facts pled. As Rule 174 provides, it is improper to plead evidence in a Statement of Claim.

No Reasonable Cause of Action Against Minister of Employment and Social Development

[13]     The defendants note, and I agree that the “core allegations are directed against the alleged conduct of the Minister of Citizenship and Immigration” and specifically Jason Kenney when he occupied that position. The only reference alleging improper conduct against the Minister of Employment and Social Development is in paragraph 10. There one finds an allegation that he entered into an accord with England and Ireland to assess and verify the credentials of foreign workers from those countries locally but that similar provisions did not apply to countries such

as Portugal, Italy or any other country. It is alleged that this conduct establishes that this Minister “knowingly and illegally” discriminated in the “administration of the Federal work permits.” It is also alleged that this Minister issues a disproportionately large number of work permits from Ireland, England and France. However, there is no allegation in the Statement of Claim that this Minister did not have authority to enter into the accord or that in any manner it impacted these plaintiffs. The pleading alleges that each of the plaintiffs has worked in Canada pursuant to a Federal work permit, and so it is difficult to see how the accord could have impacted them or how the number of such permits from some countries impacted their status. In

short, I agree with the defendants that the Minister of Employment and Social Development must be struck as a defendant, as well as the allegations in paragraph 10(b) and (c) that are specific to that Minister.

[14]     I do not agree with the defendants that it is sufficient to name Her Majesty the Queen as the sole defendant. There is an allegation, provided with some particularization, that the Minister of Citizenship and Employment, engaged in acts of misfeasance in public office and accordingly, he is a proper defendant.

Plaintiffs Have Not Pled the Essential Elements of the Cause of Action

[15]     I agree with the plaintiffs that the defendants’ submission that the essentials of the causes of action are not pled is largely based on a mischaracterization of the nature of their claims.

[16]     The claim is that the Minister’s actions were an abuse of authority and constituted misfeasance of office. It is not, as the defendants suggest, a claim for damages for breach of statute or for expressing government policy in issuing the directive that is pled. Nor have the plaintiffs pled any common law tort of discrimination; rather, they plead that the discriminatory acts constitute a breach of their Charter rights.

[17]     The defendants submit that the claim as drafted does not plead material facts or provide particulars necessary to support the claim of abuse of authority or misfeasance of public office. This tort requires that the public official act dishonestly or in bad faith. The plaintiffs plead that the Minister had a “clear statutory duty” to process their applications in accordance with the Act and Regulations and he deliberately directed his officials not to do so. Although the pleading is slight in terms of the Minister acting dishonestly, I find there is sufficient facts pled to found a claim that he acted in bad faith because a Minister is expected to know the “clear” terms of the

legislation under which he acts. Similarly, I find that the plaintiffs have pled sufficiently to found their claims for damages arising from a Charter breach.

Portions of the Claim are Immaterial

[18]     The defendants submit that the claim that section 49 of the Federal Courts Act barring jury trials is unconstitutional is “wholly immaterial to the present action.”  I agree. As the defendants note, there is no corresponding challenge to section 26 of the Crown Liability and Proceedings Act, RSC 1985, c C-50, which provides that “in any proceeding against the Crown, trial shall be without a jury.” In any event, if as the plaintiffs assert in their memorandum they want a jury trial, it will not occur in the trial of the action as pled. It is noted that the jury trial request was struck out in the Statement of Claim as issued.

[19]     If the plaintiffs wish to challenge the constitutionality of section 49 of the Federal Courts

Act, in order to obtain a jury trial of this action, they must do so prior to the trial of this action. As framed, the claim is immaterial to this action and must be struck.

Claim for Damages Should be Struck

[20]     The defendants ask that the damages claims be struck as they are lacking in particularity. How the quantum of damages is arrived at if the plaintiffs are successful will depend on the evidence adduced. At this stage, it is premature to strike these claims on the basis suggested.

Rule 369

[21]     The plaintiffs, in response to the Crown’s motion, indicated in writing and then in its memorandum that they wished to have the Crown’s motion heard orally and not under Rule 369. In their memorandum they submit that Rule 369 is unconstitutional and of no force or effect.

[22]     I agree with the defendants that motions such as that brought by the defendants are typically disposed of in writing. Generally, there is no need for an oral hearing and this case is not an exception to the rule.

[23]     I also agree with the defendants that the plaintiffs do not point to any jurisprudence in support of its assertion that Rule 369 is unconstitutional, violates section 7 of the Charter, and requires the consent of the parties. Absent any foundation, the plaintiffs’ suggestion that Rule

369 is unconstitutional is best described using the words of Justice Stratus in Paradis Honey as being “preconceptions, ideological visions or freestanding opinions.”

[24]     Lastly, the plaintiffs seek costs of this motion on a solicitor and client basis. Success on the present motion is divided, and in any event, in my view, none of the requirements in Rule

334.39(1) which might justify an award of costs is met.

ORDER

THIS COURT ORDERS that:

1.        The Minister of Employment and Social Development is struck as a party defendant;

2.        Paragraphs 10(b) and (c) and paragraph 21 of the Statement of Claim are struck;

3.        The defendants are granted an extension of time of 30 days from the date when the plaintiffs file an Amended Statement of Claim to reflect this Order in which to file their Statement of Defence;

4.        In all other respects the motion is dismissed;

5.        There is no order as to costs.

                 "Russel W. Zinn"                   Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                              T-2425-14

STYLE OF CAUSE:                              JUVENAL DA SILVA CABRAL ET AL v MINISTER OF CITIZENSHIP ET AL

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES ORDER AND REASONS:                    ZINN J.

DATED:                                                  APRIL 27, 2015

WRITTEN REPRESENTATIONS BY:

Rocco Galati                                                                                               FOR THE PLAINTIFFS

Angela Marinos

Meva Motwani

FOR THE DEFENDANTS

SOLICITORS OF RECORD:

Rocco Galati Law Firm Professional Corporation Toronto, Ontario

FOR THE PLAINTIFFS

William F. Pentney

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE DEFENDANTS

Comment:

"First Court Decision

April 27, 2015 is an important day.

First, it’s my wife’s birthday.

Second, it’s the birthday of Carlos Lima’s father. He was a man of honour.

Third , the Federal Court delivered the attached 10 page decision.

His Honour Mr. Justice Zinn took a tough, balanced, reasoned approach.

The Judge was clear that:

• We are the first group to ever raise the question of the Minister refusing to provide substituted evaluation for skilled workers who cannot pass the language exam 
• We are right in demanding that the Immigration Minister explain  his refusal to provide “substituted evaluation” for our clients
• The Minister has thirty days to explain himself

We look forward to the Minister’s explanation.

We regret that the Minister has already wasted 5 months by delaying the court process. Five months is a long time for workers living in fear.

We can only hope that 30 days from now that the Minister will put his cards on the table.

On April 13, 2015 Minister Alexander promised small business and the Portuguese community that he would be a Bento’s Auto Service Centre on Dundas St. this week.

The clock is ticking. "

Richard Boraks, April 27, 2015