PRACTICE |
Commencement of Proceedings |
Khalil v. Canada
T-2066-03
2004 FC 732, Heneghan J.
19/5/04
13 pp.
Appeal from dismissal of motion to strike statement of claim seeking declaration Immigration and Refugee Protection Act (IRPA), s. 34(1)(f) unconstitutional--Prothonotary rejected Crown's arguments plaintiffs' claim for declaratory relief can be obtained only upon application for judicial review pursuant to Federal Courts Act (Act), s. 18.1--Concluded plaintiff's claim for declaratory relief not relating to "any matter, determination or order made, a measure taken or a question raised" under IRPA--Prior decision denying application for landing set aside and no further decision made--Prothonotary correctly identified and rejected defendant's attempt to characterize plaintiffs' statement of claim as application for declaratory relief in matter of order for mandamus that would attract operation of Act, s. 18(3)--Prothonotary correctly identified grounds of plaintiff's claim as being first, claim in negligence advanced in relation to delay by defendant's servants and agents in finalizing application for landing and second, claim for breaches of Charter rights, both with respect to issue of delay and to breaches of Charter, s. 7 rights-- Prothonotary recognized right of plaintiffs to frame their cause of action--In dismissing motion, Prothonotary referred to Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347, where Supreme Court of Canada acknowledged that although remedy in damages will rarely be available in conjunction with claim for constitutional invalidity, possibility for such remedy, in exceptional circumstances, did exist--Appeal dismissed --Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18(3) (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5; 2002, c. 8, s. 27)--Immigration Refugee and Protection Act, S.C. 2001, c. 27, s. 34(1)(f).