A‑372‑05
2006 FCA 213
Selladurai Premakumaran and Nesamalar Premakumaran (Appellants)
v.
Her Majesty the Queen (Respondent)
Indexed as: Premakumaran v. Canada (F.C.A.)
Federal Court of Appeal, Linden, Nadon and Evans JJ.A.—Edmonton, May 29; Ottawa, June 9, 2006.
Crown — Torts — Appeal from Federal Court decision dismissing action against Canadian government for fraud, negligent misrepresentation in skilled worker immigration context on ground no genuine issue for trial pursuant to Federal Courts Rules, r. 213 — Claiming Canadian immigration material, practices deceptive — In law of negligence, novel duty issue must be analyzed in two‑step process — Court must determine preliminary question: whether case falling in category in which case law establishing duty of care owed — Two‑stage process not necessary in present case because claim of liability for negligent misstatement falling in category in which duty of care owed — Five general requirements for imposing liability for negligent misrepresentations examined — Appellants not demonstrating genuine issue to be tried on four of five requirements — Appeal dismissed.
Practice — Dismissal of Proceedings — Appeal from Federal Court decision dismissing action against Canadian government for fraud, negligent misrepresentation in skilled worker immigration context on ground no genuine issue for trial pursuant to Federal Courts Rules (Rules), r. 213 — Test Court to apply to determine whether to grant motion for summary judgment under Rules, r. 213 examined — Court correctly exercising discretion, dismissing action in entirety because case clearly without foundation.
This was an appeal from a Federal Court decision dismissing an action against the Canadian government for fraud and negligent misrepresentation in the skilled worker immigration context on the ground that there was no genuine issue for trial pursuant to rule 213 of the Federal Courts Rules. The appellants immigrated to Canada from the United Kingdom believing that work opportunities for accountants were better in this country. They were accepted as immigrants in the skilled worker category but had difficulty finding suitable work once they moved to Canada. For nearly eight years, the appellants did menial work to survive causing them and their children severe economic, physical and psychological damage. The male appellant had been trained in the field of accounting but was unable to secure employment in his field until recently. They claimed that the Canadian immigration system is unfair since it too often abandons people who have been enticed to come here and does practically nothing to enable them to find work and to function at their full capacity in Canada. They alleged inter alia that the material supplied by the immigration officials was outdated and misleading, particularly regarding certain job categories that were supposed to be in high demand (eg. accountants), that the points system used to select skilled immigrants is deceptive and flawed, that the information regarding the processing fees charged to immigrant applicants was false and that they were not assisted in finding jobs in Canada. The appellants sought damages as well as a mandamus ordering the federal government to do certain things to fix the immigration system and to apologize publicly. The defendant brought a motion for summary judgment to dismiss the appellants’ claims. The issue was whether the Federal Court was correct in dismissing the case.
Held, the appeal should be dismissed.
The Federal Court correctly granted the motion for summary judgment and dismissed the case in its entirety, including the claims of fraudulent and negligent misrepresentation. It applied the correct test i.e. whether the case was so doubtful that it “does not deserve consideration by the trier of fact at a future trial.” It was correct in finding no evidence of fraud, that the complaint about the alleged misuse of the processing fees was unfounded and that the unusual remedies sought were not among those available to the Court to grant. Although it also correctly dismissed the claim of negligent misrepresentation, that issue was further examined in light of recent developments.
Case law has established that, in the law of negligence, a novel duty issue must be analyzed in a two‑step process. At stage one, foreseeability and factors going to the relationship between the parties must be considered with a view to determining whether a prima facie duty of care arises. At stage two, the issue is whether this duty is negated by other, broader policy considerations. As for the legal burden of proof at trial, the plaintiff must establish a prima facie duty of care and once this is done “the evidentiary burden of showing countervailing policy considerations shifts to the defendant, following the general rule that the party asserting a point should be required to establish it.” However, the preliminary point the Court must decide is whether the case law has already established a duty of care because, if the case is within either a category in which precedent has held that a duty is owed or an analogous category, it is unnecessary to go through the two‑stage test, which is reserved only for novel duty situations. Moreover, because case law has not abolished the doctrine of precedent, only new duty situations, not established categories and those analogous thereto are to be analyzed with the newly framed test.
Thus the two‑stage duty test need not have been undertaken in this case. The essence of the negligence claim herein was one of “liability for negligent misstatement”, an existing category of case listed in case law where proximity can be posited. An action in tort may lie, in appropriate circumstances, for damage caused by negligent misstatement or negligent misrepresentations. The five general requirements for imposing liability for negligent representations are set out by the S.C.C. in Queen v. Cognos Inc., which affirmed that a duty of care exists with respect to representations when a “special relationship” between the representor and representee is present. A “special relationship” exists prima facie when reliance by the representee is both reasonably foreseeable and reasonable in the circumstances. The prima facie duty established by foreseeable reasonable reliance may be negatived by policy considerations when, for example, concerns of indeterminate liability are present.
The appellants failed to demonstrate a genuine issue to be tried on four of the five established elements. First, although the relationship between the government and the governed in respect of policy matters is not one of individual proximity, it is possible in appropriate circumstances for a tort duty to be owed by government officials to furnish non‑negligent information when a duty of care with respect to representations would ordinarily arise. In this case, no duty of care arose since there was no special relationship of proximity and reliance to support a duty. There were no personal, specific representations of fact made to the particular appellants upon which they could reasonably have relied. Second, the material given to the appellants did not raise a genuine issue that it is “untrue, inaccurate or misleading”, even though the appellants may, on the basis of it, have actually been led to believe that the conditions in Canada were better than they really were. Third, there was also no evidence of any negligence by any government official in the preparation of the documentation nor in the oral information provided to the appellants. Finally, even if a genuine issue was raised, there was doubt as to whether there was sufficient actual reliance on the information given by the government to the appellants for this information to be held to have been the cause of their coming to Canada. The appellants visited Canada, spoke to relatives and others about Canada, consulted an employment agency and had other family and security reasons to come to Canada, in addition to finding work in the accounting field.
statutes and regulations judicially
considered
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], s. 15.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C‑50, ss. 1 (as am. by S.C. 1990, c. 8, s. 21), 3 (as am. by S.C. 2001, c. 4, s. 36), 10 (as am. idem, s. 40).
Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 213.
cases judicially considered
applied:
Cooper v. Hobart, [2001] 3 S.C.R. 537; (2001), 206 D.L.R. (4th) 193; [2002] 1 W.W.R. 221; 96 B.C.L.R. (3d) 36; 160 B.C.A.C. 268; 8 C.C.L.T. (3d) 26; 277 N.R. 113; 2001 SCC 79; Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Childs v. Desormeaux, [2006] 1 S.C.R. 643; (2006), 266 D.L.R. (4th) 257; 39 C.C.L.T. (3d) 163; 30 M.V.R. (5th) 1; 210 O.A.C. 315; [2006] R.R.A. 245; 2006 SCC 18; Queen v. Cognos Inc., [1993] 1 S.C.R. 87; (1993), 99 D.L.R. (4th) 626; 45 C.C.E.L. 153; 14 C.C.L.T. (2d) 113; 93 CCLC 14,019; 147 N.R. 169 60 O.A.C. 1; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165; (1997), 146 D.L.R. (4th) 577; 115 Man. R. (2d) 241; 35 C.C.L.T. (2d) 115; 211 N.R. 352; 139 W.A.C. 241; Hedley Byrne & Co., Ltd. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.).
considered:
Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263; (2003), 233 D.L.R. (4th) 193; 11 Admin. L.R. (4th) 45; 19 C.C.L.T. (3d) 163; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69; Spinks v. Canada, [1996] 2 F.C. 563; (1996), 134 D.L.R. (4th) 223; 19 C.C.E.L. (2d) 1; 12 C.C.P.B. 81 (C.A.).
referred to:
NFL Enterprises L.P. v. 1019491 Ontario Ltd. (1998), 85 C.P.R. (3d) 328; 152 F.T.R. 109; 229 N.R. 231 (F.C.A.); Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68; (1995), 184 N.R. 307 (C.A.); ITV Technologies Inc. v. WIC Television Ltd. (2001), 11 C.P.R. (4th) 174; 199 F.T.R. 319; 2001 FCA 11; Donoghue v. Stevenson, [1932] A.C. 562 (H.L.); Just v. British Columbia, [1989] 2 S.C.R. 1228; (1989), 64 D.L.R. (4th) 689; [1990] 1 WW.R. 385; 41 B.C.L.R. (2d) 350; 41 Admin. L.R. 161; 1 C.C.L.T. (2d) 1; 18 M.V.R. (2d) 1; 103 N.R. 1; Gauthier v. Canada (Attorney General) (2000), 225 N.B.R. (2d) 211; 185 D.L.R. (4th) 660; 23 C.C.P.B. 275 (C.A.); Luo v. Canada (Attorney General) (1997), 33 O.R. (3d) 300; 145 D.L.R. (4th) 457; 28 C.C.E.L. (2d) 304; 9 C.P.C. (4th) 343 (Div. Ct.); Gadutsis et al. v. Milne et al., [1973] 2 O.R. 503; (1972), 34 D.L.R. (3d) 455 (H.C.); Windsor Motors Ltd. v. District of Powell River (1969), 4 D.L.R. (3d) 155; 68 W.W.R. 173 (B.C.C.A.); H.L. & M. Shoppers Ltd. et al. v. Town of Berwick et al. (1977), 28 N.S.R. (2d) 229; 82 D.L.R. (3d) 23; 3 M.P.L.R. 241 (S.C.T.D.); Jung et al. v. District of Burnaby et al. (1978), 91 D.L.R. (3d) 592; [1978] 6 W.W.R. 670; 7 C.C.L.T. 113 (B.C.S.C.); Bell et al. v. City of Sarnia (1987), 59 O.R. (2d) 123; 37 D.L.R. (4th) 438 (H.C.J.); Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; (1990), 71 Man. R. (2d) 81; 74 D.L.R. (4th) 636; 5 C.C.L.T. (2d) 1; [1990] I.L.R. 1‑2672; 116 N.R. 1; 44 O.A.C. 81; Hodgins v. Hydro‑Electric Commission of the Township of Nepean, [1972] 3 O.R. 332; (1972), 28 D.L.R. (2d) 174 (Co. Ct.); revd (1973), 10 O.R. (2d) 713 (C.A.); affd [1976] 2 S.C.R. 501; (1975), 60 D.L.R. (3d) 1; Moin v. Blue Mountains (Town) (2000), 13 M.P.L.R. (3d) 1; 135 O.A.C. 278 (Ont. C.A.); Granitile Inc. v. Canada (1998), 41 C.L.R. (2d) 115; 82 O.T.C. 84 (Ont. Gen. Div.); Sevidal et al. v. Chopra et al. (1987), 64 O.R. (2d) 169; 41 C.C.L.T. 179; 2 C.E.L.R. (N.S.) 173; 45 R.P.R. 79 (H.C.J.); Halifax (Regional Municipality) v. David (2003), 216 N.S.R. (2d) 325; 2003 NSSC 171; affd (2004), 228 N.S.R. (2d) 91; 245 D.L.R. (4th) 700; 27 C.C.L.T. (3d) 213; 3 M.P.L.R. (4th) 61; 2004 NSCA 138; Farzam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1659.
APPEAL from a Federal Court decision ((2005), 33 C.C.L.T. (3d) 307; 2005 FC 1131) dismissing an action against the Canadian government for fraud and negligent misrepresentation in the skilled worker immigration context on the ground that there was no genuine issue for trial. Appeal dismissed.
appearances:
Selladurai Premakumaran and Nesamalar Premakumaran on their own behalf.
Brad Hardstaff for respondent.
solicitors of record:
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1]Linden J.A.: The appellants are immigrants to Canada from the United Kingdom. Mr. Premakumaran was born in Sri Lanka and Mrs. Premakumaran in Malaysia. They had earlier immigrated to the United Kingdom, became citizens and were living there quite comfortably when they began to investigate the idea of coming to Canada. They had relatives in Canada and they believed that there was work opportunity here for accountants, a field in which Mr. Premakumaran was involved.
[2]They were accepted as immigrants in the professional skilled immigrant category and came to Canada in 1998, but they had real difficulty finding suitable work. Mr. Premakumaran, though trained in accounting, was not fully qualified in Canada as a C.M.A., C.G.A. or C.A. by the relevant licensing bodies, whose criteria differed from the British, where he was also not fully licensed.
[3]For nearly eight years, Mr. Premakumaran and Mrs. Premakumaran had to do menial work to keep them and their four children alive causing them severe economic, physical and psychological damage.
[4]The appellants blame this on the Canadian government. They contend that the material supplied to them by the immigration officials was outdated and misleading in that it stated, inter alia, that accountants were needed in Canada. They also argue that the points system used to select skilled immigrants is deceptive and flawed, as the process misrepresents that selected applicants have been screened for special occupational skills and experience that will be readily transferable to the Canadian labour market. In fact, the appellants argue, overseas qualifications, skills and experience are not recognized by the Canadian market. The appellants allege that the respondent was aware of these problems, and knowingly perpetuated the appellants’ mistaken perceptions by not disclosing these facts to them during the application process or upon their acceptance as immigrants to Canada.
[5]Having filled out more than 4,000 application forms over eight years, however, Mr. Premakumaran was unable, until quite recently, to secure employment in his field. The appellants admit that they were given no guarantees of work. Mr. Premakumaran also admits that to be a fully licensed accountant in Canada he knew he had to become qualified according to official Canadian standards, which he has not done to this day.
[6]The appellants allege that they were misled by the information and documentation supplied to them, that they were treated unequally, contrary to the 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]], and that they were not provided with adequate assistance in finding jobs in Canada. They have bravely sought to focus public attention on the unfairness of the Canadian immigration system, which, they say, entices people to come here, but which too often abandons them and does little or nothing to enable them to find work and to function at their full capacity in Canada. Their efforts in this regard appear to have met with some success, in that policy initiatives have recently been announced by the federal government to improve the foreign credential recognition process in the future for people in their position.
[7]The appellants instituted this law suit, alleging fraudulent and negligent misrepresentation causing them financial, physical and psychological harm. It was also claimed that false information was disseminated about certain job categories that were supposed to be in high demand and about the use of the processing fees which were charged to applicants for immigration. As remedies, damages were sought for expenses and pain and suffering, as well as a mandamus ordering the federal government to do certain things to fix the immigration system and to apologize publicly.
[8]The defendant brought a motion for summary judgment, seeking to dismiss the appellants’ claims under rule 213 of the Federal Courts Rules [SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)], which permits the Court to do so where there is “no genuine issue for trial”. The test to be applied by the motions Judge is whether the case is so doubtful that it “does not deserve consideration by the trier of fact at a future trial”. One need not show that the plaintiff “cannot possibly succeed”, only that the case is “clearly without foundation”. (See NFL Enterprises L.P. v. 1019491 Ontario Ltd. (1998), 85 C.P.R. (3d) 328 (F.C.A.), at page 329; see also Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68 (C.A.), at page 82; ITV Technologies Inc. v. WIC Television Ltd. (2001), 11 C.P.R. (4th) 174 (F.C.A.), at paragraph 4).
[9]Employing this test, the motions Judge (2005 FC 1131) dismissed the action [(2005), 33 C.C.L.T. (3d) 307 (F.C.)], including the claims of fraudulent and negligent misrepresentation, the allegations that the processing fees were not used as professed and the unusual relief requested in paragraphs 2(g) to 2(l) of the third amended statement of claim.
[10]I am of the view that the motions Judge correctly exercised his discretion in dismissing this case, in its entirety. He was correct to hold that there was no evidence of fraud, that the complaint about the alleged misuse of the processing fees was unfounded, and that the unusual remedies sought were not among those available to the Court to grant. Nor was there any foundation in fact for the section 15 Charter arguments advanced before us.
[11]As for the allegations of negligent misrepresen-tation, the motions Judge was also correct in dismissing that claim, but, since there have been some recent developments in the jurisprudence on this issue, this Court is of the view that a brief review of the current state of the law on this issue might be appropriate.
[12]The Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537 has recently clarified and restructured the Canadian approach to the duty issue in the law of negligence. Building on the neighbour principle of Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) and the more nuanced test in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), and of course, the Cooper case, a novel duty issue must now be analyzed in a two‑step process, another version of which was recently set out in Childs v. Desormeaux, [2006] 1 S.C.R. 643 as follows (at paragraph 11):
(1) is there “a sufficiently close relationship between the parties” or “proximity” to justify imposition of a duty and, if so,
(2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise?
[13]It is also now clear, since Childs, that the further effort to clarify the Anns/Cooper test in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, describing it as a three-step process, has not been adopted. The Supreme Court in Childs explained that “[t]here is no suggestion that Odhavji was intended to change the Anns test; rather it merely clarified that proximity will not always be satisfied by reasonable foreseeability” (paragraph 12).
[14]In summary, the Supreme Court in Childs, concluded (at paragraph 12):
What is clear is that at stage one, foreseeability and factors going to the relationship between the parties must be considered with a view to determining whether a prima facie duty of care arises. At stage two, the issue is whether this duty is negated by other, broader policy considerations.
[15]Also in Childs, the Supreme Court clarified the burden of proof issue, at least as far as the legal burden at trial: the plaintiff must establish a prima facie duty of care and once this is done “the evidentiary burden of showing countervailing policy considerations shifts to the defendant, following the general rule that the party asserting a point should be required to establish it” (paragraph 13). No comment was made about the onus on motions to strike out pleadings or for summary judgment.
[16]Before doing the Anns/Cooper analysis, however, the Supreme Court reaffirmed in Childs that a “preliminary point” arises: the court must decide whether the jurisprudence has already established a duty of care because, if the case is within either a category in which precedent has held that a duty is owed or an analogous category, it is “unnecessary to go through the Anns analysis”, which is reserved only for novel duty situations (paragraph 15). The doctrine of precedent has not been abolished by Cooper. As the Court explains in Childs, “[t]he reference to categories simply captures the basic notion of precedent” (paragraph 15). It is, therefore, only new duty situations, not established categories and those analogous thereto, that are to be analyzed with the newly framed test (Childs, paragraph 15).
[17]This review of the current state of the law demonstrates that the full Anns/Cooper analysis need not have been undertaken in this case. The essence of the negligence claim in this case is one of “liability for negligent misstatement”, an existing category of case listed in Cooper v. Hobart, where proximity can be posited (paragraph 36). The Canadian law in this area was well‑articulated prior to Cooper v. Hobart in two Supreme Court of Canada decisions, the Queen v. Cognos Inc., [1993] 1 S.C.R. 87 and Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165.
[18]Since the now‑famous decision in Hedley Byrne & Co., Ltd. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), courts have recognized that an action in tort may lie, in appropriate circumstances, for damage caused by negligent misstatement or negligent misrepresentations. In Queen v. Cognos Inc., the Supreme Court of Canada summarized the jurisprudence in this area and outlined five general requirements for imposing liability for negligent representations [at page 110]:
. . . (1) there must a duty of care based on a “special relationship” between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresen-tation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.
[19]Cognos affirmed that a duty of care exists with respect to representations when a “special relationship” between the representor and representee is present. As explained in Hercules, utilizing the Anns v. Merton test, such a “special relationship” exists prima facie when reliance by the representee is both reasonably foreseeable and reasonable in the circumstances. The Hercules decision identified five general indicia of reasonable reliance (at paragraph 43):
(1) The defendant had a direct or indirect financial interest in the transaction in respect of which the representation was made.
(2) The defendant was a professional or someone who possessed special skill, judgment, or knowledge.
(3) The advice or information was provided in the course of the defendant’s business.
(4) The information or advice was given deliberately, and not on a social occasion.
(5) The information or advice was given in response to a specific enquiry or request.
[20]Hercules further explained that the prima facie duty established by foreseeable reasonable reliance may be negatived by policy considerations when, for example, concerns of indeterminate liability are present on the facts of the particular case. So too, in the case of governmental liability, if the conduct is a policy decision, it may not give rise to liability. Tort liability is imposed only if the conduct occurs in the course of operational implementation of policy (Just v. British Columbia, [1989] 2 S.C.R. 1228).
[21]The appellants in this case failed to demonstrate a genuine issue to be tried on four of the five elements set out in Cognos.
[22]On the first element of duty, the Hercules indicia of reasonable reliance must be borne in mind. In general, the relationship between the government and the governed in respect of policy matters is not one of individual proximity. However, consistent with sections 3 [as am. by S.C. 2001, c. 4, s. 36] and 10 [as am. idem, s. 40] of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C‑50 [s. 1 (as am. by S.C. 1990, c. 8, s. 21)] which make the Crown liable for the damages for which it would be liable “if it were a person”, it is possible in appropriate circumstances for a tort duty to be owed by government officials to furnish non‑negligent information, when a duty of care with respect to representations would ordinarily arise.
[23]For example, in Spinks v. Canada, [1996] 2 F.C. 563 (C.A.), a public service employer was found liable in tort based on its negligent provision of information to an employee concerning his pension options (see also Gauthier v. Canada (Attorney General) (2000), 225 N.B.R. (2d) 211 (C.A.); Luo v. Canada (Attorney General) (1997), 33 O.R. (3d) 300 (Div. Ct.)). In other cases, municipalities have been found liable for the negligent advice provided by their employees to persons inquiring about zoning restrictions or other regulations (see Gadutsis et al. v. Milne et al., [1973] 2 O.R. 503 (H.C.); Windsor Motors Ltd. v. District of Powell River (1969), 4 D.L.R. (3d) 155 (B.C.C.A.); H.L. & M. Shoppers Ltd. et al. v. Town of Berwick et al. (1977), 28 N.S.R. (2d) 229 (S.C.T.D.); Jung et al. v. District of Burnaby et al. (1978), 91 D.L.R. (3d) 592 (B.C.S.C.); Bell et al. v. City of Sarnia (1987), 59 O.R. (2d) 123 (H.C.J.)). Tort duties have also been recognized in diverse other contexts in which employees of government agencies or authorities negligently provided incorrect advice or misleading representations: see Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; Hodgins v. Hydro‑Electric Commission of the Township of Nepean, [1972] 3 O.R. 332 (Co. Ct.), revd re no negligence (1976), 10 O.R. (2d) 713 (C.A.), affd [1976] 2 S.C.R. 501; Moin v. Blue Mountains (Town) (2000), 13 M.P.L.R. (3d) 1 (Ont. C.A.); Granitile Inc. v. Canada (1998), 41 C.L.R. (2d) 115 (Ont. Gen. Div.); Sevidal et al. v. Chopra et al. (1987), 64 O.R. (2d) 169 (H.C.J.); Halifax (Regional Municipality) v. David (2003), 216 N.S.R. (2d) 325 (S.C.), affd re: negligent misrepresentation (2004), 228 N.S.R. (2d) 91 (C.A.).
[24]In this case, however, no duty of care arises. As the motions Judge correctly found, no special relationship of proximity and reliance is present on the facts of this case. There were no personal, specific representations of fact made to these particular appellants upon which they could reasonably have relied. The printed documentation and information given to them was merely general material for them to use in making an application for immigrant status. As the motions Judge observed, it is not correct to say that someone [at paragraph 25] “who picks up a brochure or reads a poster at the High Commission is a ‘neighbour’” and is owed a duty as a result. More is required. The information given to the appellants contained no guarantees of work, nor of guaranteed success in the licensing procedure, nor that any particular assistance would be forthcoming. The statement that Mr. Premakumaran would “have no trouble finding a job” was made by his brother, not a counter clerk at the High Commission, as found by the motions Judge. There is no evidence of any special relationship that could be relied on to support a duty in this case.
[25]As for element (2) from Cognos, the material given to the appellants has not been shown to raise a genuine issue that it is “untrue, inaccurate or misleading”, even though the appellants may, on the basis of it, have actually been led to believe that the conditions in Canada were rosier than they really were.
[26]With respect to element (3), there is no evidence of any negligence by any government official in the preparation of the documentation nor in the oral information provided to the appellants. While the list of needed jobs that included the accountant category may not have been completely up to date, as alleged by the plaintiffs, it has not been shown that there is a genuine issue as to whether it was negligent to use that list.
[27]As to element (4), even if there was a genuine issue raised above, there is doubt whether there was sufficient actual reliance on the information given by the government to the appellants, for this information to be held to have been the cause of their coming to Canada. While the information certainly may have influenced the appellants’ decision, they visited Canada, they spoke to relatives and other people about Canada, they consulted an employment agency, and they had other family and security reasons to come to Canada, in addition to finding work in the accounting field. The causal role of the representations in question has not been established sufficiently to raise a genuine issue. (See Farzam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1659, at paragraph 88.)
[28]The appeal will be dismissed.
Nadon J.A.: I agree.
Evans J.A.: I agree.