Chesters v. Canada ( Minister of Citizenship and Immigration )
IMM-1316-97
Giles A.S.P.
9/7/97
4 pp.
Motion to strike action for declaration and damages initiated by plaintiff as denied permanent resident status on grounds inadmissible under Immigration Act, s. 19(1)(a)(ii) -Seeking (a) declaration Act, s. 19(1)(a)(ii) inconsistent with Charter, ss. 7, 15 and of no force and effect under Constitution Act, 1982, s. 52; (b) declaration defendant's denial of application for permanent resident status on ground inadmissible under Act, s. 19(1)(a)(ii) violating rights under Charter, ss. 7, 15; (c) declaration entitled to permanent resident status in Canada; (d) in event s. 19(1)(a)(ii) found of no force and effect under s. 52, and declaration of invalidity suspended to allow defendant to amend impugned provisions, constitutional exemption from application of Act, s. 19(1)(a)(ii)-(a) not on its face involving any federal board, commission or other tribunal, rather, impugning legislation of Parliament-Declaration of this type may be sought in action-(b) involving decision of board, commission or other tribunal and should rightly be sought only in judicial review proceedings-Thus, (b) and (c) of prayer for relief must be struck out-(a) and (d) can properly remain in action to declare legislation void and for damages as question of whether or not damages can be awarded for actions taken before legislation found ultra vires matter to be decided by Trial Judge-Damage action neither struck nor stayed-Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a)(ii) -Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15-Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.