What can be done when an immigration officer acts in bad faith?
We need to first define this legal term of art. Bad faith by a public officer was described in the case of Enterprises Sibeca Inc. V. Frelighsburg (Municipalite),  3 S.C.R. 304 as follows:
“The concept of bad faith is flexible, and its content will vary from one area of law to another. As LeBel J. noted inFinney v. Barreau du Québec, 2004 SCC 36 (CanLII),  2 S.C.R. 17, 2004 SCC 36, the content of the concept of bad faith may go beyond intentional fault (at para. 39):
Bad faith certainly includes intentional fault, a classic example of which is found in the conduct of the Attorney General of Quebec that was examined in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC),  S.C.R. 121. Such conduct is an abuse of power for which the State, or sometimes a public servant, may be held liable. However, recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed. The act, in terms of how it is performed, is then inexplicable and incomprehensible, to the point that it can be regarded as an actual abuse of power, having regard to the purposes for which it is meant to be exercised . . . .
Based on this interpretation, the concept of bad faith can encompass not only acts committed deliberately with intent to harm, which corresponds to the classical concept of bad faith, but also acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith […]”
In Beltran v. Canada (Minister of Citizenship & Immigration),  F.C.J. No. 633 the Applicant sought sought a permanent stay of his inadmissibility hearing. The government had information concerning the applicant since 1989. However, the government chose not to raise any concerns until 22 years later. The Court found that the delay was “inexcusable” and “the applicant was not given a fair opportunity to answer the case against him.” The Court also found it was “abusive to issue an opinion in 2009 that the applicant was inadmissible considering that the authorities were aware of his situation for 22 years.”
Raj Sharma JD LLM