CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Permanent Residents |
Chesters v. Canada (Minister of Citizenship and Immigration)
IMM-1316-97
2001 FCT 783, Dawson J.
11/7/01
10 pp.
Appeal from Prothonotary's order dismissing defendant's motion for order plaintiff's action be dismissed as moot--Plaintiff's 1995 application for landing rejected on ground she had been found to be medically inadmissible pursuant to Act, s. 19(1)(a)(ii) as had multiple sclerosis--Subsequently obtained Minister's permit allowing her to remain in Canada--In 1997, plaintiff commenced action seeking declaratory relief based on argument Act, s. 19(1)(a)(ii) violating Charter, ss. 7, 15(1), and damages in amount of $100,000 for violation of Charter rights and for mental, emotional and psychological distress--ASP struck part of prayer for declaratory relief but refused to strike damage action--Following that order, plaintiff filed amended statement of claim seeking declaratory relief and damages; also brought application for judicial review to challenge decision not to grant landing and sought order to extend time for bringing application--Extension refused--Defendant made settlement offers--Defendant's offer has not yet been accepted and defendant has not granted landing to plaintiff--So long as plaintiff not landed, defendant's unaccepted settlement offer cannot render action moot--Prothonotary correctly determined that question as to whether plaintiff entitled to damages because her Charter rights violated remained "live controversy"--In so doing, Prothonotary correctly directed attention to test for mootness articulated by S.C.C. in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342--Plaintiff's action does not directly put landing in issue and not limited to claim for landing--No reviewable error in Prothonotary's conclusion there remains live controversy between parties because statement of claim raising issues of constitutionality of Act, s. 19(1)(a)(ii) and damages for alleged violation of plaintiff's Charter rights--So long as plaintiff does not accept defendant's offer of settlement and is not landed, cannot be said that declaration Act, s. 19(1)(a)(ii) unconstitutional academic to plaintiff, or that no tangible dispute between parties--Making of offer to land could have no effect on plaintiff's right to claim damages arising out of events prior to making of offer to land--Appeal dismissed--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a)(ii).