Unusable plane tickets, hotel cancellation fees, ruined vacations: Could travelers frustrated at not receiving their passports in time sue the federal government for compensation? Lawyers consulted by The duty consider that such an action is possible, but not without pitfalls.
It is obviously possible to sue the federal government, which has already been done on many occasions, immediately establishes the professor of public law at the University of Sherbrooke Guillaume Rousseau.
He points out, however, that in order to use this special procedure of collective action, an additional step must be taken compared to other ways of initiating a lawsuit: that of authorization. A judge then examines the case and verifies whether it meets the criteria allowing people who consider themselves wronged to proceed “as a group”. If so, the magistrate gives the green light to the prosecution, which can go ahead.
The judge thus called upon to authorize a collective action must, for example, ask himself whether it is appropriate for the situation. We can think here that it would be preferable to hundreds or thousands of individual prosecutions, underlines Professor Rousseau.
But to be successful, it will be necessary that travelers who have suffered damages (some of them have canceled their trip at great expense or have missed days of work to queue, even at night, in order to obtain the precious travel document) prove that the federal government was at fault.
In public law, there is fault when a person adopts a behavior which deviates from that of the reasonable person. “Here, has the government acted as a good administrator? asks Professor Rousseau. In other words, is it to blame for not having enough employees to process the many passport applications filed when the health restrictions began to be lifted? Should he allocate more resources to the passport office? Or hire more employees — and sooner — in anticipation of the resumption of international travel?
The “pandemic argument”
Such a collective action “is not won in advance, but it is not impossible either”, judge Me Anne-Julie Asselin, lawyer with Trudel, Johnston and Lespérance, who leads numerous class actions in Quebec.
According to her, “the major difficulty of the case” is to prove the fault of the federal state. Me Alexandre Brosseau-Wery, associate lawyer at Kugler Kandestin, is a little more optimistic: “It could, at first sight, be a good recourse. »
But both raise the same pitfall: to justify its failures and delays, the state could raise as a defense the pandemic, which sent many of its employees on sick leave and forced it to assign certain them to other tasks. Not to mention the shortage of personnel that is rampant everywhere.
This “pandemic argument” has already been raised by several defendants in court in recent times, recalls Ms.e Asselin. But two years later, is the argument still valid? Courts may become less receptive to this over time. And then, there are still things that could have been planned by the government, says the lawyer.
Me Brosseau-Wery is of the same opinion: “It is conceivable that, if he had acted diligently and proactively, he could have put in place the necessary to meet the higher demand”, and meet his own standards and deadlines for passport processing. Moreover, it was the federal government itself that lifted some of the travel restrictions, which led to a high demand for this official document.
Another strong argument could be used against the federal government, argues Professor Rousseau: section 6 of the Canadian Charter of Rights and Freedoms, which provides that “every Canadian citizen has the right to remain in, enter or leave Canada. ‘get out “.
Preventing a citizen from traveling across borders could “constitute a fault. And when it comes to rights protected by the Charter, the courts are not very receptive to excuses such as “administrative problems”, he adds.
Temerity and Immunity
On the other hand, M.e Asselin points out that warnings on the government’s website instructed travelers not to buy plane tickets without having their passport in hand. This may not entirely exonerate the federal government, but could possibly lead to a sharing of responsibility, she believes: Ottawa could plead that the purchase of tickets was reckless. Federal Social Development Minister Karina Gould raised this argument herself.
To this, some might reply that at a certain period, the passport office only processed requests from travelers who had a flight departing within 48 hours.
There is also an additional difficulty when suing the government: the whole question of the immunity enjoyed by the State in certain circumstances, recalls Ms.e Brosseau-Wery. The court must determine whether the harmful situation results from a political decision (for example, in the case of a cycle path, deciding whether or not to build it) or operational (the maintenance of said path so that it is safe) , he illustrates.
Because the State benefits from a relative immunity as regards its decisions of a political nature, except in cases of bad faith.
The limit between a decision of a political or operational nature is however often difficult to establish, judges the lawyer. But this immunity, if applicable, can work in favor of the government and defeat the prosecution, adds Me Asselin.