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CROWN - Actions by and against Crown - Negligence by Crown

Tuesday, June 12, 2018 @ 8:08 AM  


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Motion by Immigration Canada to strike a third party claim. Two international students commenced a proposed class action against a college, alleging that it misrepresented that its general arts and science program would qualify for a work permit under Immigration Canada’s post-graduate work permit program. The college commenced a third party claim against Immigration Canada for contribution and indemnity for the students’ damages, alleging negligence and misfeasance in public office. Immigration Canada moved to strike on the basis that the third party claim did not disclose a reasonable cause of action.

HELD: Motion allowed in part. The negligence claim was struck, but the college was granted leave to deliver a fresh as amended third party claim to plead misfeasance in public office. Immigration Canada did not have a duty of care to the college. Since immigration officers generally did not owe a private law duty of care to applicants under immigration statutes, there was no duty of care to the college. The college did not have a proximate relationship with Immigration Canada. The college’s relationship to Immigration Canada was as a member of the public with a tangential interest. The limited interactions that the college had with Immigration Canada were indirect, derivative or collateral to the direct interactions between the students and Immigration Canada. Immigration Canada’s duties were to the public and the imposition of a duty of care to the college would interfere with Immigration Canada’s duties to administer the immigration scheme in the public interest. The college adequately pleaded the material elements of a legally viable claim of misfeasance in public office. The third party claim described a claim based on immigration officials maliciously targeting the college’s students for the purpose of harming it.

Goyal v. Niagara College of Applied Arts and Technology, [2018] O.J. No. 2293, Ontario Superior Court of Justice, P.M. Perell J., April 30, 2018. Digest No. TLD-June112018003