Date: 20210416

Docket: T-1252-20

Citation: 2021 FC 332

Ottawa, Ontario, April 16, 2021

PRESENT: The Honourable Mr. Justice Pamel

BETWEEN:

SOHEIL SHARAFABADI

Appellant

and

MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP

Respondent

ORDER AND REASONS

[1] On April 5, 2018, an Immigration Officer dismissed the application for permanent residence made by Shaoshan Zhong in 2016 under the Spouse or Common-Law Partner in Canada Class [Decision] on the grounds that she had not satisfied the officer that she was a member of the family class; the officer was not satisfied that she and the applicant, Mr. Soheil Sharafabadi, the sponsoring spouse, had been cohabiting in a conjugal relationship.

[2] The Decision was never challenged on judicial review.

[3] Over two years later, on October 16, 2020, Mr. Sharafabadi commenced an action before this Court against the Minister of Citizenship and Immigration Canada [Minister] for damages in the amount of $1,822,500.00 based upon what Mr Sharafabadi claims to be the illegality of the Decision and a breach of his right to religious freedom under section 2(a) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. Nothing in the statement of claim purports to explain why the Decision was not challenged by way of judicial review.

[4] The relief being sought by Mr. Sharafabadi in his action was largely set out by Prothonotary Aylen in her Order. In addition to seeking damages as a result of the Decision, Mr. Sharafabadi submitted, amongst other things, that the Decision:

… denied the validity of the Plaintiff’s marital status and coerced the Plaintiff to indulge in “conjugal relationship” and coerced the Plaintiff to provide “evidence of Conjugal Relationship” as the precondition for grant of PR to his wife. These acts of Defendant violated religious rights protected by S. 2(a) of the Canadian Charter of Rights and Freedom. Practice of “conjugal relationship” is prohibited in Baha’i Religion and is a ground for immediate excommunication from the Baha’i Faith.

[5] Mr. Sharafabadi submitted that as a result of the Decision, he and his spouse have suffered both financially and emotionally by having to live apart – she lives and works in the United States – and can be together only every six months. As part of the relief, in addition to financial compensation, Mr. Sharafabadi sought, amongst other things, an order for the Minister to immediately issue permanent resident status to his wife, and that he be exempted from having his action proceed before this Court by way of case management.

[6] On December 22, 2020, Prothonotary Aylen granted the Minister’s motion dated November 19, 2020 [Motion to Strike] for an Order, amongst other things, striking Mr. Sharafabadi’s claim in its entirety without leave to amend on the basis that it did not disclose a reasonable cause of action. Putting aside for the moment the Minister’s additional request for an extension of time to file the Motion to Strike and the fact that Mr. Sharafabadi’s underlying action did not name the appropriate defendant (both being side issues as regards her ultimate decision), Prothonotary Aylen determined that Mr. Sharafabadi’s underlying action for damages flowed from the Decision itself which, as mentioned, was never challenged by way of judicial review.

[7] Consequently, Prothonotary Aylen concluded that the Decision remained valid and lawful, that the appropriate remedy for Mr. Sharafabadi was to seek judicial review of the Decision without the ability for damages to be claimed or awarded, and that the underlying action was simply a collateral attack on the Decision itself; she struck the statement of claim without leave to amend, with costs in favour of the Minister.

[8] Mr. Sharafabadi, who is self-represented, is now appealing from the Order of Prothonotary Aylen, including her decision to extend the time for the service and filing of the Motion to Strike. Mr. Sharafabadi is therefore asking this Court to (i) declare that the Motion to Strike was filed outside the required delay, (ii) issue default judgment against the Minister in the underlying action for damages, and (iii) to allow the introduction of new evidence as proof of his financial loss in support of his claim for default judgment.

[9] Finally, Mr. Sharafabadi also seeks an extension of time to file the present motion in appeal from Prothonotary Aylen’s Order.

I. Standard of Review

[10] The Federal Court of Appeal in Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215, confirmed that the applicable standard of review of Prothonotary orders is the one set out in Housen v Nikolaisen, 2002 SCC 33: issues of law are reviewed on a standard of correctness, whereas issues of fact and of mixed fact and law with no extricable issue of law are reviewed on a standard of palpable and overriding error (McCain Foods Limited v JR Simplot Company, 2021 FCA 4 at para 13).

[11] A palpable and overriding error is one which is obvious and apparent, the effect of which is to vitiate the validity of the reasons.

II. Analysis

[12] On the more preliminary issues, I grant Mr. Sharafabadi’s request for an extension of time to file the present motion in appeal. Therefore, in rendering my decision on the merits of his motion, I have taken into account his motion record, the motion record of the Minister, and Mr. Sharafabadi’s reply material. However, I also agree with Prothonotary Aylen in extending the delays for the filing of the Minister’s Motion to Strike.

[13] The applicable test for an extension of time is set out in Canada (Attorney General) v Hennelly, 1999 CanLII 8190 (FCA) at paragraph 3: the party seeking an extension of time must demonstrate:

1. a continuing intention to pursue his or her application;

2. that the application has some merit;

3. that no prejudice to the respondent arises from the delay; and

4. that a reasonable explanation for the delay exists.

[14] Here, the Minister initially filed the Motion to Strike in a timely fashion, but it was refused by the Registry for technical reasons; a corrected version of the Motion to Strike was served and filed five days later. Prothonotary Aylen considered the evidence and the arguments, and she was satisfied that an extension of time for the filing of the motion by the Minister was justified. I see no reason to overturn her conclusion.

[15] As for the other issues raised by Mr. Sharafabadi, I need not consider his request for default judgment as I am dismissing his appeal of Prothonotary Aylen’s Order on the basis of the reasons set out below. As a consequence, I do not see how the introduction of any new evidence in support of his alleged prejudice would assist me in my review of the matter, nor how its introduction would serve the interests of justice (Mazhero c Canada (Industrial Relations Board), 2002 FCA 295 at para 5). I am therefore also refusing his request to file new evidence.

[16] In short, Mr. Sharafabadi has not convinced me that Prothonotary Aylen’s Order contains any reviewable error.

[17] The relief being sought by Mr. Sharafabadi in the underlying action is predicated upon the unlawfulness or illegality of the Decision. However, as held by the Federal Court of Appeal in Canada v Grenier, 2005 FCA 348 [Grenier], any challenge of a decision of a federal agency must be undertaken by way of judicial review, without which an action for damages supposedly flowing from such a decision is not permitted as it would constitute an impermissible collateral attack on the Decision. As confirmed by the Federal Court of Appeal in Grenier, a decision of a federal agency retains its “legal force and authority, and remains juridically operative and legally effective, as long as it has not been invalidated by way of judicial review.”

[18] I accept that it is not always necessary for a plaintiff to first seek judicial review of an administrative decision prior to instituting suit, in particular where the action “is not an attempt to invalidate or render inoperative” the administrative decision, but where “the decision and the financial losses allegedly consequent to it constitute the very foundation of the damages claim” (Canada (Attorney General) v TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585 at p 587 [TeleZone]).

[19] However, in TeleZone, the plaintiff’s claim for damages was not predicated on the administrative decision, nor was the legality or lawfulness of that decision being questioned. Rather, the plaintiff asserted an independent civil cause of action against the Crown that purportedly resulted from the administrative decision, and sought damages flowing from what it claimed to be a breach of contract by the Crown. As stated by the Supreme Court at page 600, paragraph 19:

If a claimant seeks to set aside the order of a federal decision maker, it will have to proceed by judicial review, as the Grenier court held. However, if the claimant is content to let the order stand and instead seeks compensation for alleged losses (as here), there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks.

[Emphasis added.]

[20] The difficulty that Mr. Sharafabadi faces here is that the relief he seeks in his action calls for a ruling that the Decision was illegally issued and unlawful. Put another way, his claim for damages and for the other relief sought, including an order granting permanent resident status to his spouse, is predicated on a ruling that the Decision was improperly rendered.

[21] Consequently, I agree with Prothonotary Aylen that the underlying action constitutes, in effect, a collateral attack on the Decision; she was correct to strike the underlying action.

[22] Mr. Sharafabadi argues that rather than striking his action, Prothonotary Aylen should have suspended its prosecution until he applied for and obtained an extension of time to bring an application for judicial review; he cites this Court’s decision in Parrish & Heimbecker Limited v Canada, 2007 FC 789 in support of his argument.

[23] However, such a request was never made before Prothonotary Aylen, nor had Mr. Sharafabadi attempted to give any explanation as to the reason he did not seek judicial review in the two years between the Decision and the institution of his action. I can hardly fault Prothonotary Aylen for not considering a request that Mr. Sharafabadi neither made before her nor provided evidence in support.

[24] Nor can I see how Mr. Sharafabadi’s action could be saved by way of any amendment, unless of course one is crafted using reverse engineering. It is clear throughout his submissions that his claim to the relief he seeks is predicated on a ruling that the Decision was improper. This is not a case, as in TeleZone, where the underlying action can survive while the Decision stands (TeleZone at p 600, para 19).

[25] As for the claim of breach of Mr. Sharafabadi’s Charter rights, I agree with Prothonotary Aylen that such a claim is premised on a ruling that the Decision was unreasonable. As matters stand, the Decision remains valid and no damages can flow from it on this issue (Malkine v (Minister of Citizenship and Immigraton), 2007 FC 573). In addition, this is also an issue that should have been raised in judicial review (Kaur v Canada (Citizenship and Immigration), 2020 FCA 136 at para 10).

[26] Finally, Mr. Sharafabadi also raises an issue regarding a “change of venue”, however it is unclear how that issue is in any way relevant to his appeal. I suspect that Mr. Sharafabadi may be conflating the change of venue concept with the Minister’s argument before Prothonotary Aylen that Mr. Sharafabadi should have proceeded by way of judicial review of the Decision rather than bringing an action two years after the facts.

[27] I find no reviewable error in Prothonotary Aylen’s determination that Mr. Sharafabadi’s action is an impermissible collateral attack on the Decision. The appeal must be dismissed.

[28] The Minister seeks costs. I see no reason to deviate from the normal practice of awarding costs in line with my decision. Therefore, I will order costs payable to the Minister in the lump sum amount of $2,500, inclusive of costs below.

ORDER in T-1252-20

THIS COURT ORDERS that:

1. The motion in appeal is dismissed.
2. Costs in favour of the Minister of Immigration, Refugees and Citizenship in the amount of $2,500 inclusive of costs below on the Order dated December 22, 2020 are payable by Mr. Soheil Sharafabadi.

"Peter G. Pamel"

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

T-1252-20

STYLE OF CAUSE:

SOHEIL SHARAFABADI v MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP

MOTION IN WRITING CONSIDERED AT OTTAWA , ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES

ORDER AND reasons:

PAMEL J.

DATED:

april 16, 2021

APPEARANCES:

Soheil Sharafabadi

For The Appellant

On his own behalf

Meenu Alhuwalia

For The Respondent

SOLICITORS OF RECORD:

Attorney General of Canada

Calgary , Alberta

For The Respondent