AFIFI v. BRITISH COLUMBIA (MINISTER OF JOBS, TOURISM AND SKILLS TRAINING), 2020 BCSC 1451

The doctrine of collateral attack does not preclude a party from initiating a separate action against the Crown for damages concurrent with an application for judicial review.

Randa Ahmed Gamaleldin Hassan Afifi (‘the plaintiff’) applied under the entrepreneur immigration stream of the Provincial Nominee Program (PNP), with a view to establishing a business in British Columbia, to secure Permanent Residence. In B.C, the PNP is operated by the Ministry of Jobs, Tourism and Skills Training and is designed to attract qualified investors and workers to British Columbia. Immigration, Refugees and Citizenship Canada (IRCC) considers the applicants that are nominated and determines whether the candidate ought to be granted permanent resident status in Canada. In 2012, the plaintiff applied to the PNP under the entrepreneur immigration program which was approved in 2013, and she then entered into a performance agreement to establish a beauty salon and spa business in Whistler, B.C. But, after opening the business in Whistler the Plaintiff encountered difficulties to get qualified staff to work at this location and requested for permission to relocate the business to Chilliwack, B.C. The request was approved and the plaintiff and the defendant entered into a new performance agreement in 2013, the expectations of which were identical to the 2015 Performance Agreement, with the exception of the business location.

Thereafter in January 2017, the plaintiff submitted a final report to the PNP seeking the province’s nomination, which was required in order for her to apply for permanent resident status through the IRCC. On April 13, 2017, the PNP approved the plaintiff’s nomination and issued a nomination certificate. The plaintiff was informed that she must apply to IRCC for permanent residence prior to the expiration of the nomination certificate, which was to expire on October 17, 2017. However, the Plaintiff did not inform the PNP and sold the business in late 2017, while her application was pending with the IRCC. On January 24, 2019, in a written decision, the defendant notified the plaintiff that the nomination certificate was withdrawn and the IRCC has also been intimated of the same. On April 3, 2019, the plaintiff filed an application seeking judicial review of this administrative decision issued on January 24, 2019, by the British Columbia Minister of Jobs, Tourism and Skills Training where after plaintiff also filed the Notice of a Civil Claim (NOCC) claiming a breach of contract in connection with the same event.

On this, the Court observed that the present claim fails to set out any of the material facts necessary for a claim of breach of contract, rather it lacks to constitute the essential elements of a contract itself and no reference to any specific binding legal obligation between the parties is even highlighted by 2013 and 2015 Performance Agreements or the NOCC. The Court, further relying on the judgment of the SCC in Canada v. TeleZone Inc., 2010 SCC 62 discussed the “Doctrine of Collateral Attack” which laid down that an attack made in proceedings other than those whose specific object is the reversal, variation or nullification of the order or judgment and ruled that it does not preclude a party from initiating a separate action against the Crown for damages concurrent with an application for judicial review, however, the applicability of the doctrine was contextual and depends upon the circumstances of the case. In the light of this, the court ruled to adjourn the defendant’s application to strike the amended NOCC for abuse of process and ordered the plaintiff to deliver a further amended NOCC, in compliance with R. 3-1 of the SCCR to the defendant within 60 days.