Case information

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Civil procedure – Collateral attack – Abuse of process – Whether a dismissal of a leave application, for judicial review, filed after the commencement of an action for damages for the tortious misconduct of government officials in processing a visa application constitutes retroactive collateral attack with respect to the action for damages – Whether the Federal Court of Appeal decision is contrary to the holding of the Telezone line of cases – Whether the Federal Court of Appeal misapplied the clear case law on the import of the dismissal of a leave application, without reasons and the import of the dismissal of a leave application and its application to collateral attack, and the doctrine of re-litigation.

The Applicant, Mr. Almacén’s commenced an action in the Federal Court following the denial of his application to remain in Canada on Humanitarian and Compassionate (“H&C”) grounds pursuant to s. 25 of the Immigration and Refugee Protection Act. The claim alleged various causes of action including misfeasance in public office, negligence, and breaches of the Canadian Charter of Rights and Freedoms.

Mr. Almacén also filed an application for leave and judicial review of the H&C decision. The application for leave was denied by Shore J. and a subsequent motion for reconsideration was dismissed. The test before Shore J. was whether there were fairly arguable issues in relation to the H&C decision. Since leave was denied and the motion for reconsideration dismissed, the conclusion is that there were no fairly arguable issues.

Mr. Almacén’s Amended Statement of Claim was struck by an Order of the Prothonotary without leave to amend on the basis that, based on the facts as pled, the Statement of Claim did not disclose a reasonable cause of action. In the alternative, the Prothonotary said he would have struck the Statement of Claim as an abuse of process since, in his view, this was an attempt to re-litigate the decision of Shore J. to dismiss the application for leave in relation to the H&C decision. Mr. Almacén then brought a motion before the Federal Court to set aside the Prothonotary’s order. Russell J. dismissed the motion on the basis that it was an abuse of process as it was an attempt to re-litigate the reasonableness of the H&C decision, and the court had already dealt with the reasonableness of that decision. Russell J. also found that he would dismiss the motion on the basis that, based on the facts as alleged in the Statement of Claim, no reasonable cause of action was disclosed. An appeal of the decision was dismissed.