2003 FC 859
IMM-2819-02
Galina Borisova et al. (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
and
IMM-2280-03
Prem Samel Satya Dass (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
and
IMM-2282-03
Gurmit Singh Anand (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
and
IMM-2286-03
Mohsen Rasolzadeh (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Borisova v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Gibson J.--Toronto, June 17; Ottawa, July 10, 2003.
Citizenship and Immigration -- Immigration Practice -- Processing of permanent residence applications filed prior to December 31, 2001, not dealt with before March 31, 2003 -- Immigration Act, Regs. repealed as of June, 2002, replaced by Immigration and Refugee Protection Act (IRPA) and Regs. -- Regulatory Impact Analysis Statement (RIAS) explaining necessity for dramatic changes to regulatory scheme -- Single "intended occupation" premise outdated -- Canada now seeking immigrants providing significant economic benefit to Canada -- House of Commons Standing Committee determining old criteria should apply to backlog members till March 31, 2003 -- No corporate commitment to clearing backlog -- Some 104,000 applications not dealt with by deadline though, in many cases, officials had information needed for decision -- Minister has begun rejecting these people under new criteria -- Court issuing direction, in nature of injunction, Minister refrain from further rejections pending further Court order.
Administrative Law -- Judicial Review -- Injunctions -- Processing of permanent residence applications filed before December 31, 2001, not dealt with before March 31, 2003 -- New Legislation dramatically altering criteria for acceptance -- House of Commons standing Committee determining old criteria to apply to backlog till March 31, 2003 -- Government department failing to clear backlog by deadline, some 104,000 applications not yet dealt with -- In many cases, officials had all information needed to make decision -- Minister has begun rejecting backlog members under new criteria -- Under Federal Court Act, s. 18(1), (3), T.D. empowered to grant injunctions, prohibition against federal board -- Direction to refrain in nature of injunction -- MCI federal board -- Direction to refrain "interim order" under s. 18.2 -- While new class action rules not extending to judicial review applications, direction here sought to have applications proceed as actions -- Long time until Court ready to decide on certification of class action herein -- That should not disadvantage putative class members -- Interim relief essential to preserve integrity of class -- Court's statutory jurisdiction not to be narrowly construed -- Matter not frivolous, vexatious as injunction threshold met -- Matter not moot -- Irreparable harm to persons from "third world" countries denied immigration to Canada -- Balance of convenience in applicants' favour -- No relief for those applying after 2001 as lacking reasonable expectation applications considered under old criteria -- No relief herein for those already rejected under new criteria -- Order to go directing MCI to refrain from finally rejecting proposed class action members until further Court order.
Practice -- Class actions -- Repeal of former immigration legislation; new statute, regulations dramatically changing acceptance criteria -- Old criteria to be applied to backlog of applicants until certain deadline -- Corporate commitment to clearing backlog prior to deadline lacking -- Whether interim restraining order should be granted against MCI -- Whether can extend to members of class not before Court -- Federal Court class action rules inapplicable to judicial review applications but direction sought treating instant applications as actions -- Long time before Court able to decide on certification of class action herein due to large number of applicants, lawyers, Court's inexperience with class action rules -- In absence of comprehensive class action legislation, Courts having to rely on case management to structure class proceedings -- Unsatisfactory as taxes judicial resources, denies parties certainty as to procedural rights -- F.C. class action rules not facilitating process where parties, due to relief of sought, proceeding by judicial review -- Class action rules provide judge may, at any time, order giving of notice necessary to ensure fair proceeding -- Notice maybe ordered prior to certification -- No relief granted persons already rejected who may have come within putative class.
The Court's order herein will impact upon some 104,000 persons who had filed permanent residence applications prior to the repeal of the Immigration Act and the Immigration Regulations, 1978 in June, 2002. The Regulatory Impact Analysis Statement (RIAS) issued in relation to the Immigration and Refugee Protection Act and Regulations explained the dramatic changes to the regulatory scheme. Program change was said to be necessitated by the fact that, in the modern, dynamic Canadian economy, the single "intended occupation" premises had become outdated. In the "knowledge economy", a static list of "occupations in demand" failed to meet current needs. The new selection model was designed to identify "immigrants who will be able to provide a significant economic benefit to Canada". Previously, selection criteria favoured those having University education, but history reveals that it is skilled workers who have outperformed not only other immigrants but also the average Canadian worker. The fact that skilled worker immigrants of the 1990's have underperformed those who arrived in the 1980's could be explained in part by the unresponsive selection system.
Due to concerns expressed at the House of Commons Standing Committee on Citizenship and Immigration, it was determined that the old criteria should apply to backlog members until March 31, 2003 but, as found by Kelen J. in Dragan v. Canada (Minister of Citizenship and Immigration), no corporate commitment was made to process the inventory on a priority basis to clear this backlog". No member of the putative class here at issue had been finally dealt with before March 31, 2003 although it was admitted, under cross-examination, that in many of these cases government officials had before them all the information needed to make final determinations and could have done so without much expenditure of time and effort. The Minister has now begun rejection certain members of the putative class.
Held, a direction to refrain, in the nature of an injunction, should issue, restraining the Minister from finally rejecting class members, except for those who give written consent to final rejection, pending further order of this court.
Federal Court Act, subsections 18(1) and (3) empower the Trial Division to issue injunctions and writs of prohibition against any federal board, commission or tribunal upon an application for judicial review. A direction to refrain as in the nature of an injunction and the Minister is a "federal board, commission or other tribunal". The underlying applications herein are for judicial review. The direction to refrain is an "interim order" within Act, subsection 18.2.
The first question for determination is whether an interim order under section 18.2 can extend to members of a class which includes many not before the Court. The second question is whether such order would be here justified.
With the approval of the Governor's in Council, the class action rules were, in 2002, added to the Federal Court Rules, 1998. These govern "class actions": and do not extend to class judicial review applications. Applicants have, however, sought a direction that these applications be treated and proceeded with as actions. This Court's position is that leave is required for such direction to be made. Leave has already been given in one of these applications, that of Borisova. The process is under way in respect of the other three matters before the Court. For a number of reasons, it will be some length of time before this court will be ready to decide on certification of a class action. These include: number of proceedings commenced by lawyers at Toronto, Montreal, Edmonton and Vancouver, the number of applicants within the putative class and the difficulty in communicating with them along with the Court's inexperience with the new class action rules. But members of the putative class ought not to be disadvantaged by these circumstances. In addition, the Court had to take into account the public interest as explained by the RIAS.
It has been said by the Supreme Court, in Western Canadian Shopping Centres Inc. v. Dutton, that, in the absence of comprehensive class action legislation, courts are compelled to rely on individual case management to structure class proceedings. This is an unsatisfactory situation, since it taxes judicial resources and denies parties certainty as to their procedural rights. While the Federal Court now has in place class action rules which provide for an early certification process, they do not facilitate a clear, straight forward process where parties, on account of the relief sought, have to proceed by way of judicial review. To protect the integrity of the class, it was imperative that interim relief be directed. There is precedent for the Court reaching out to parties not before it. In Canadian Liberty Net, the Supreme Court, with reference to section 44 of the Federal Court Act, said that "the doctrine of inherent jurisdiction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court".
There are three requirements for granting direction in the nature of an injunction: (1) serious issue to be tried; (2) irreparable form if order not granted; (3) balance of convenience. As to serious issue, the threshold is a low one. Applicant no longer need make out a prima facie case but only satisfy a court that matter is neither frivolous or vexatious. The Federal Court of Appeal has held that this lower standard applies to cases involving the public interest: North American Gateway Inc. v. Canada (CRTC). That standard is here applicable, respondent being a party vested with the public interest. The instant matter was to be distinguished from Dragan so far as mootness is concerned as in that appeal a case each applicant had his immigrant visa application finally determined prior to the deadline.
As for irreparable harm, the loss of the chance to come to Canada from a "third world" country would be considered by many as a one not compensable in damages. Many members of the putative class will have reduced chances of success if considered under the new criteria. Absent this direction to refrain, most, if not all, putative class members would suffer irreparable form.
On the question of balance of convenience, while the Minister is under an obligation to apply the law as it now stands, he was also under an obligation to apply the law as it now stands, he was also under an obligation to members of the putative class from the time their applications were filed until the law, as applied to them, changed after the deadline. The public interest of the putative class members along with their private interests outweigh the public interest in the Minister carrying out, in a timely way, his current statutory and regulatory obligations pending final determination of these Court proceedings.
The Court's Class Action Rules provide that a judge may, at any time, order any party to give any notice that the judge considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding. The words "at any time" in subsection 299.37(1) of the Rules should be accorded a fair and liberal interpretation and not restricted to a time after a class action has been certified or leave granted for the applications to proceed as actions.
Relief should be denied to those who applied for immigration after December 2001, but before June 28, 2002 (the date the IRPA and IRPR came into force). The evidence was that a draft of the IRPR, published in mid-December, 2001, made it clear that applicants after year end would be dealt with under the new regime. Those who made application after 2001 could have had no reasonable expectation that their cases would be considered in accordance with the former Act and Regulations nor could relief be granted, in these proceedings, to persons already rejected under the new criteria who may have been embraced within the putative class. The Court would not comment on whether such persons could seek relief from this or some other court in a different form of proceeding.
The court was in no position to issue directions as to how members of the putative class might be communicated with. A proposal for directions could be made to the case management judge.
statutes and regulations judicially
considered
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
| Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 19(1). |
| Federal Court Act, R.S.C., 1985, c. F-7, ss. 18(1) (as am. by S.C. 1990, c. 8, s. 4), (3) (as am. idem), 28 (as am. idem, s. 8), 18.1 (as enacted idem, s. 5), 18.2 (as enacted idem), 18.4(2) (as enacted idem), 44, 46(1) (as am. idem, s. 14). |
| Federal Court Rules, 1998, SOR/98-106, rr. 299.1 (as enacted by SOR/2002-417, s. 17), 299.2 (as enacted idem), 299.3 (as enacted idem), 299.4 (as enacted idem), 299.37(1) (as enacted idem), 385(1), 397(2). |
| Immigration Act, R.S.C., 1985, c. I-2. |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27. |
| Immigration and Refugee Protection Regulations, SOR/2002-227. |
| Immigration Regulations, 1978, SOR/78-172. |
cases judicially considered
applied:
Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 224 D.L.R. (4th) 739; 227 F.T.R. 272 (F.C.T.D.); Kanes v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 48 (F.C.T.D.); Lewis v. Shell Canada Ltd. (2000), 48 O.R. (3d) 612 (S.C.); Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; (1998), 157 D.L.R. (4th) 385; 6 Admin. L.R. (3d) 1; 22 C.P.C. (4th) 1; 224 N.R. 241; North American Gateway Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission) (1997), 47 Admin. L.R. (2d) 24; 74 C.P.R. (3d) 156; 214 N.R. 146 (F.C.A.).
distinguished:
Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCA 233; [2003] F.C.J. No. 813 (C.A.) (QL).
considered:
Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534; (2000), 286 A.R. 201; 201 D.L.R. (4th) 385; [2002] 1 W.W.R. 1; 94 Alta. L.R. (3d) 1; 8 C.P.C. (5th) 1; 272 N.R. 135.
APPLICATIONS for interim relief on behalf of some 104,000 persons, who may be included in a proposed class action, seeking to have their permanent residence applications determined in accordance with the now repealed Immigration Act and Regulations. Applications granted in part.
appearances:
Dan Miller for applicants (IMM-2280-03).
Ronald Foerster, Lorne Waldman and Adam M. Dodek for applicants (IMM-2282-03, IMM-2280-03 and IMM-2286-03).
Urszula Kaczmarczyk, Marie-Louise Wcislo for respondent.
Dennis Tanck (IMM-2283-03) for intervener.
Lawrence Wong (IMM-2685-03) for intervener.
Richard Kurland (IMM-2117-03) for intervener.
Lorri M. Adams (IMM-2117-03) observer.
Elaine Doyon (IMM-2213-03) observer.
Darrah McManamon (IMM-2434-03) observer.
Cheryl D. Mitchell observer.
David W. Tyndale observer.
Helen Park observer.
solicitors of record:
Dan Miller, Toronto, for applicants (IMM-2280-03).
Lorne Waldman, Toronto, for applicants.
Ronald Foerster, Adam M. Dodek and Borden Ladner Gervais LLP, Toronto, for applicants.
Deputy Attorney General of Canada for respondent.
Dennis Tanck, Vancouver, for intervener.
Richard Kurland, Kurland Tobe, Vancouver, for intervener.
Lawrence Wong, Vancouver, for intervener.
The following are the reasons for order and order rendered in English by
Gibson J.:
INTRODUCTION
[1]On Tuesday the June 17, 2003, the Court considered applications for interim relief on the Court files identified in the style of cause to these reasons. The hearing was held in Toronto with video connections to Montréal, Edmonton and Vancouver. On consent of counsel appearing before the Court, three counsel in Vancouver made brief interventions in the proceeding on behalf of their clients. Counsel for the Borisova applicants was authorized to argue the Borisova applicants' motion on behalf of applicants and plaintiffs who have instituted six other similar proceedings before this Court. In all, the hearing potentially impacted some 6,000 applicants and plaintiffs before the Court. An affiant on behalf of the respondent estimates that the order issued following the hearing will impact approximately 104,000 individuals seeking visas to enter Canada on a permanent basis.1
[2]At the close of the hearing, the Court indicated to counsel that an order reflecting the result of the hearing would issue on an urgent basis to protect the integrity of the affected class or classes of individuals seeking to immigrate to Canada. The Court also indicated that reasons for its order would follow.
[3]In the result, an order issued on Friday June 20, 2003. The substantive paragraphs of the order read as follows:
| 1. The Minister of Citizenship and Immigration (the "Respondent") is directed to refrain from finally rejecting applications for permanent residence submitted before the 1st of January, 2002 by economic class applicants seeking immigrant visas, and who have not been provided notice of a decision thereon before the date of this Order, save and except in the cases of such applicants who notify the Respondent in writing of their consent to a final rejection. This direction shall continue in force until further order of this Court. |
| 2. The Respondent is further directed to provide to persons whose applications seeking immigrant visas are affected by paragraph 1 of this Order a notice in the language in which the Respondent has heretofore communicated with them, substantially to the effect of the form set out as Appendix "A" to this Order, except that the heading in that Appendix "expected hearing date" and the paragraph appearing under that heading shall be deleted. Counsel who participated or observed at the hearing giving rise to this Order shall use their best efforts to reach agreement on the form of such notice within ten (10) days of the date of this Order and thereafter shall forthwith submit any agreed form for approval by the Court. In the event that no agreement can be reached on the form of a notice within the time provided, counsel for the Respondent shall forthwith report to the Court indicating areas of agreement as to the form of notice, areas of disagreement and alternative proposals in such areas. Thereafter, a further Order of the Court will issue fixing the form of a notice. |
| 3. In all other respects, the motions before the Court in these matters on the 17th day of June, 2003, are dismissed.2 |
[4]While the substance of the order reflects substantial relief in favour of individuals seeking to immigrate to Canada, and a significant continuing burden for the respondent, the order is not as broad in its terms as certain of the applicants before the Court were seeking. It also seeks to provide a mechanism whereby individuals seeking to come to Canada who are now, for whatever reason, prepared to abandon that ambition, at least for the moment, may "opt out" of the continuing impact of the order either unconditionally or on terms settled between themselves and the respondent.
[5]These are the reasons for the order issued.
BACKGROUND
[6]When the individuals seeking to immigrate to Canada who are impacted by the Court's order (the "putative class") and others in respect of whom relief was sought filed their applications for permanent residence, the recently repealed Immigration Act3 (the former Act) and the corresponding Regulations, the Immigration Regulations, 19784 (the 1978 Regulations), were still in force. On 28 June, 2002, in general terms, the former Act and the 1978 Regulations were repealed and replaced by the Immigration and Refugee Protection Act5 (the IRPA) and the Immigration and Refugee Protection Regulations6 (the IRPR).
[7]The Regulatory Impact Analysis Statement7 in relation to the IRPA and the IRPR, at pages 214-216 of the cited Volume, explained the rather dramatic changes to the regulatory scheme impacting the putative class in the following terms:
VIII--SKILLED WORKERS--PART 6, DIVISION 1, AND PART 20, DIVISION 11
Description
Subsection 12(2) of the Immigration and Refugee Protection Act (IRPA) provides for the selection of immigrants as members of an economic class based on their ability to become successfully established in Canada. These regulations create such a class. The Economic Class includes the following classes: The Federal Skilled Worker Class, the Quebec Skilled Worker Class, the Self-employed Person Class, the Investor Class, the Entrepreneur Class and the Provincial Nominee Class. The Regulations for the Federal Skilled Worker Class establish the selection criteria and prescribe the weight to be given to each selection factor. Subject to transitional rules, these requirements will be applied to all applications for the Skilled Worker Class received after the coming into force of the IRPA and to applicants who had applied before the coming into force who have either not had a selection interview or had a decision by an officer to waive their selection interview.
The need for program change
IMPROVE THE ECONOMIC SUCCESS RATE OF FEDERAL SKILLED WORKERS
| -- by updating the selection system to reflect the need of the modern labour market. |
The current selection system, originally crafted in the late 1960s, was build around an "occupational demand" micro-management model. This model envisages the Government matching an immigrant's single "intended" occupation to narrow Canadian labour market demand niches. In the modern, dynamic Canadian economy, this form of micro-management is no longer practicable or desirable-- occupational demand may change faster than governments can adapt and immigrants are not selected on the basis of flexible skills. Additionally, in the modern labour market, individuals' occupations and careers tend to be more varied making the single "intended occupation" premise increasingly outdated.
This was the conclusion of the Prime Minister's Advisory Council on Science and Technology Expert Panel on Skills in its 1998 report entitled Stepping Up: Skills and Opportunities in the Knowledge Economy:
| The rapid change in the demand for skills and the continuous emergence on new skill sets means that the present Skilled Worker selection system, focused as it is on an essentially static list of "occupations in demand", cannot meet the needs of our dynamic economy. |
The present selection system is heavily biased in favour of professional education, as the Education, Experience and Educational and Training factors, taken as a whole, place more emphasis on university-educated applicants as opposed to those with skilled trade or technical occupations. Canada's modern labour market values all forms of quality education and training, not just those that lead to a university degree.
| -- by selecting federal skilled workers who will perform better economically in Canada. |
The Federal Skilled Worker selection model is designed to identify economic immigrants who will be able to provide a significant economic benefit to Canada. This is not to imply that economic immigrants do not also provide important social benefits to Canada, but the primary goal of their selection should be their positive economic impact. Not only is this beneficial to Canada, but to the immigrant as well. Prior to 1988, economic immigrants consistently averaged higher employment earnings than the general Canadian population, even as early as one year after they arrived in Canada.
Historically, skilled worker immigrants have economically outperformed other immigrants and have even economically outperformed the average Canadian worker. While still outperforming other immigrants, the performance of new skilled worker immigrants in the 1990s has fallen below that of the average Canadian tax filer, as shown in Table 1 below.
[Table 1 omitted]
It is now taking university-educated immigrants up to 10 year [sic] to reach the employment earnings of comparably educated Canadians. Canadian unemployment and social assistance data also show the less successful record of recent skilled worker immigrants over those who arrived in the 1980s. While there are, no doubt, many factors responsible for this trend, the present outdated and unresponsive selection system has played an important role.
The current selection system permits the selection of individuals with lower levels of educational attainment. For example, approximately 10 percent of skilled worker immigrants now have a secondary level education or less. Yet, in the modern knowledge-based Canadian labour market, over 70 percent of new jobs in Canada require some form of post-secondary education, and Human Resources and Development Canada (HRDC) predicts that fewer than 6 percent of job openings in the next five years will be available for those with less than a high school education. It is not in the long-term interest of the Canadian economy to economic immigrants who will have such narrow labour market options upon their arrival in Canada.
The present selection system does not recognize the considerable economic and social benefits to Canada of having skilled immigrants with direct Canadian experience. There is considerable evidence that employees place a premium on Canadian work experience and education.
[8]During the course of consideration of the IRPA and the IRPR in Parliament, the changes impacting the putative class were a matter of significant concern. That element of the background to these reasons and the related order was considered by my colleague Justice Kelen in Dragan v. Canada (Minister of Citizenship and Immigration).8 For ease of reference, Justice Kelen's summary of the facts that were before him, as they related primarily to persons who would have been members of the putative class if their applications for immigration to Canada had not been dealt with before March 31, 2003, is reproduced as Appendix B to these reasons.
[9]None of the applications for immigration to Canada of members of the putative class were finally dealt with before March 31, 2003 despite the fact that, on cross-examination on his affidavit, an officer in the respondent's department acknowledged that, for those in relation to whom an interview was not required, the Minister and his officials in many cases had before them all of the information and documentation required to enable them to make final determinations with relatively little further expenditure of time and effort on each individual case.
[10]Evidence before the Court indicates that the respondent, through his officials, has, since March 31, 2003, commenced to reject certain of the applications of members of the putative class.
ANALYSIS LEADING TO THE ORDER ISSUED
| (1) The direction to refrain |
| (a) The Court's jurisdiction |
[11]Subsections 18(1) [as am. by S.C. 1990, c. 8, s. 4] and (3) [as am. idem] of the Federal Court Act9 (the Act) read as follows:
18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
. . .
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
[12]It was not in dispute before me that section 28 [as am. by S.C. 1990, c. 8, s. 8] of the Act does not operate to limit the jurisdiction of the Trial Division10 under section 18 on the facts of this matter. Further, I am satisfied that it was not in dispute before me that the direction to refrain is in the nature of an injunction and that the respondent is, once again on the facts of this matter, a "federal board, commission or other tribunal". Each of the underlying applications before the Court are applications for judicial review made under section 18.1 [as enacted idem, s. 5] of the Act. In each of such applications, there is a request that the Court direct under subsection 18.4(2) [as enacted idem] of the Act that the application for judicial review be "treated and proceeded with as an action", and if so treated and proceeded with, be converted to a class action.
[13]Subsection 18.2 [as enacted idem] of the Act reads as follows:
18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.
[14]I am satisfied that it is beyond question that the direction to refrain is an "interim order" as contemplated by section 18.2 of the Act.
[15]Given my conclusion with respect to jurisdiction, the critical questions remaining are, I am satisfied, the following: first, whether an interim order made under section 18.2 of the Act can extend to members of a class, here a very substantial number of members of a putative class, which putative class comprises the applicants before the Court, but also includes many persons who are not before the Court; and secondly, if the answer to the first question is "yes", then whether the making of such an order is justified on the materials before the Court and the submissions at hearing.
| (b) Extension to members of the putative class |
[16]With the approval of the Governor in Council pursuant to subsection 46(1) [as am. by S.C. 1990, c. 8, s. 14] of the Act, the Federal Court Rules, 199811 were amended by SOR/2002-417, section 17 to include rules 299.1 to 299.4 governing class actions before this Court (the Class Action Rules). I emphasize that the new Rules govern "class actions" and not "class proceedings" and that therefore they do not extend to class judicial review applications. That being said, as earlier noted, the applications before the Court all seek direction that they be "treated and proceeded with as . . . action[s]." The Court has taken the position that it is inappropriate to consider providing such direction unless and until leave is given by the Court, as required, to proceed with the application for judicial review.
[17]Leave has been given with respect to the Borisova matter. The process is under way to perfect the applications for leave on the other three matters before the Court. That being said, there are a range of parallel proceedings in the nature of applications for judicial review in which the process leading to perfection of leave applications is not advancing, or is advancing more slowly than for the Dass, Anand and Rasolzadeh matters. The Court has taken the further position that, in the interests of justice, further steps on each of the applications for judicial review should eventually proceed in lock step in order to ensure that applicants within the putative class whose applications for judicial review might be granted leave and might be directed to be treated and proceeded with as actions will not be disadvantaged in eventually taking part in a certification process under the class action rules.
[18]In short then, by reason of: first, the fact that the Court's Class Action Rules relate only to actions, and I am satisfied that this includes judicial review applications that are to be "treated and proceeded as . . . action[s]"; secondly, the number of related proceed-ings before the Court instituted by a significant number of counsel in Montréal, Toronto, Edmonton and Vancou-ver, the number of applicants within the putative class and the difficulty in communicating with them; and finally, the Court's very limited experience with its Class Action Rules, the Court is, I regret to say, a significant time from any decision on certification of a class action. I am satisfied that the foregoing realities should not work to the disadvantage of members of the putative class. That being said, the interests of members of the putative class cannot be considered without at the same time having regard to the public interest reflected in the earlier quoted extract from the relevant Regulatory Impact Analysis Statement.
[19]In Western Canadian Shopping Centres Inc. v. Dutton12, the Chief Justice, for the Court, wrote at paragraphs 33 and 34:
The absence of comprehensive legislation means that courts are forced to rely heavily on individual case management to structure class proceedings. This taxes judicial resources and denies the parties ex ante certainty as to their procedural rights. One of the main weaknesses of the current Alberta regime is the absence of a threshold "certification" provision. In British Columbia, Ontario, and Quebec, a class action may proceed only after the court certifies that the class and representative meet certain requirements. In Alberta, by contrast, courts effectively certify ex post, only after the opposing party files a motion to strike. It would be preferable if the appropriateness of the class action could be determined at the outset by certification.
Absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them: . . . . However desirable comprehensive legislation on class action practice may be, if such legislation has not been enacted, the courts must determine the availability of the class action and the mechanics of class action practice. [Citations omitted.]
[20]This Court now has in place comprehensive class action rules that provide for an early certification process. However, for reasons that are not important here, the Court's rules do not facilitate a clear and straight forward process where parties, by reason of some or all of the reliefs they are seeking, must proceed, not by action but by judicial review. In keeping with the direction from the Supreme Court of Canada, I am satisfied that this Court should not allow the nature of its processes to unduly disadvantage members of a putative class.
[21]In order to protect the integrity of the class, I am satisfied that it was and remains appropriate, and indeed imperative, for the Court to direct interim relief in the nature of the direction to refrain provided, assuming of course, that relief in the nature of an injunction is justified in law.
[22]I take comfort in the fact that there is precedent for this Court to reach out to parties not before the Court. While the facts in Canada (Human Rights Commission) v. Canadian Liberty Net13 are very different from those now before the Court, I am satisfied that the reasoning reflected in paragraphs 35 to 37 in the majority reasons in that matter support the conclusion that I have reached based upon a liberal interpretation of section 44 of the Act. That section reads as follows:
44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or on such terms and conditions as the Court deems just.
[23]The majority of the Supreme Court in Canadian Liberty Net relied on the words "other relief" in section 44 of the Act. For ease of reference, I quote in part paragraphs 35 to 37 from that decision to which I have earlier referred:
In a federal system, the doctrine of inherent jurisdiction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court.
As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts, . . . Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction.
In this case, I believe it is within the obvious intendment of the Federal Court Act and the Human Rights Act that s. 44 grant jurisdiction to issue an injunction in support of the latter.
Substituting the IRPA for the Canadian Human Rights Act [R.S.C., 1985, c. H-6], I am satisfied that precisely the same can be said on the facts of this matter.
| (c) A direction in the nature of an injunction |
[24]It is trite law that the test for the grant of an order of the nature here under consideration is three fold: first, there must be a serious issue to be tried; secondly, on the facts of this matter, irreparable harm to the members of the putative class must be demonstrated if the order is not granted; and finally, it must be demonstrated that the balance of convenience, taking into account the public interest, favours the members of the putative class.
[25]The threshold for establishing serious issue to be tried is a low one. In North American Gateway Inc. v. Canada (Canadian Radio-Television and Telecommuni-cations Commission),14 Justice McDonald wrote at para-graphs 10 and 11:
The jurisprudence directs that the threshold of "serious issue to be tried" is a low one. The earlier jurisprudence suggested that the applicant had to establish a prima facie case before a stay would be granted. Since the decisions of the Supreme Court of Canada in Metropolitan Stores Limited v. Manitoba Food and Commercial Workers et al., . . . and R.J.R. MacDonald, . . ., the courts have held that the threshold is much lower: the applicant need only satisfy the Court that the matter on appeal is neither frivolous nor vexatious.
I am mindful that this lower threshold is most often applied in Charter cases and where fundamental issues of public policy are at stake. I note, though, that this Court has applied this same low threshold in non-Charter cases: . . . In any event, I am of the view that where the Court is asked to review a decision of a party vested with the pubic interest like the CRTC, the lower standard of "frivolous or vexatious" should apply. [Citations omitted; emphasis added.]
[26]I am satisfied that, on the facts of this matter, the respondent is "a party vested with the public interest" and that therefore the lower standard of "frivolous or vexatious" should apply. Against that standard, I am satisfied that the reasons of my colleague Justice Kelen in Dragan, supra, clearly demonstrate that the applications for judicial review that underlie this matter, which reflect to a very significant degree the issues in Dragan against a different time frame, is met. The issues in Dragan were determined by the Court of Appeal to be moot. The basis of the determination was that each of the applicants who were successful before Mr. Justice Kelen had his or her application for an immigrant visa finally determined before March 31, 2003. Such is not the case with members of the putative class. I am satisfied that this distinction is sufficient to ensure that the matters now before the Court are not moot.
[27]I turn then to the question of irreparable harm. I am satisfied that it is trite to say that the opportunity to immigrate to Canada, particularly from "third world" or "developing" countries is viewed by many as a singularly attractive goal, the loss of which, or even the reduction of the likelihood of success on which, is not compensable in damages. Many members of the putative class would suffer such a loss or reduction of the likelihood of success if their applications were to be processed under the new criteria. In Kanes v. Canada (Minister of Employment and Immigration),15 Justice Reed wrote at paragraph 10:
I find irreparable harm exists in this case, not as the result of a series of possibilities but as a certainty. The harm which befalls the applicant, if a stay order is not granted, is that he is not allowed to seek landing on the basis of having proved a credible basis to his refugee claim. He will only be able to seek landing after having met a much heavier burden of proof: that applicable before the C.R.D.D. Given the value put on obtaining permanent residence within this country, by those coming particularly from third world countries, the heavier burden of proof clearly, in my view, constitutes irreparable harm.
[28]I find the foregoing reasoning to be directly applicable to the facts of this matter and, based on that reasoning, I am satisfied that many members, if not all members, of the putative class would suffer irreparable harm if the direction to refrain that I have issued had not been granted.
[29]Finally, I turn to the question of balance of convenience. Counsel for the respondent urges that the respondent is under an obligation to apply the law as it now stands and that therefore the balance of convenience lies in his favour. By contrast, it is argued for the applicants that the respondent was under the same obligation in relation to members of the putative class from the time they filed their applications for immigration to Canada until the law, as it applied to them, changed following March 31, 2003. It is urged that, through his officials, the Minister failed to do so in anything approaching a timely manner and that therefore there exists a strong public interest in favour of relief to the members of the putative class.
[30]I am satisfied that both of these arguments have merit and that it therefore becomes a matter of balancing of competing public interests. I have concluded that the public interest in favour of the members of the putative class, taken together with the private interests of the members of that class, outweighs the public interest in ensuring that the Minister carries out, in a timely way, his current statutory and regulatory obligations in relation to members of the putative class, until proceedings currently before the Court, whether or not continued as a class action, are finally determined.
| (d) Conclusion with respect to the direction to refrain |
[31]Based on my conclusions as to jurisdiction of this Court and as to the test for relief in the nature of an injunction, I concluded in favour of the members of the putative class and issued the direction to the Minister to refrain from final negative dispositions of applications by members of the putative class for immigration to Canada except in circumstances where a member of the putative class consents to such a disposition.
| (2) Mandatory Notice |
[32]Subsection 299.37(1) of the Rules [as enacted by SOR/2002-417, s. 17], within the Court's new Class Action Rules, reads as follows:
299.37 (1) A judge may, at any time, order any party to give any notice that the judge considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding. [Emphasis added.]
[33]Subsection 299.37(1) is strikingly similar to subsection 19(1) of the Ontario Class Proceedings Act, 1992.16 That subsection read as follows:
19.(1) At any time in a class proceeding, the court may order any party to give such notice as it considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding. [Emphasis added.]
[34]While, as I earlier indicated, the two provisions are strikingly similar, subsection 299.37(1) may in fact be broader in that it does not restrict the authority to direct that notice be given to a time "in a class proceeding".
[35]In Lewis v. Shell Canada Ltd.,17 in the context of an uncertified class action, the plaintiffs sought an order restraining the defendant from communicating with potential class members pending the disposition of the issue of certification or, in the alternative, an order that notice of the commencement and nature of the class proceeding be published pursuant to section 19 of the Class Proceedings Act, 1992, and that such notice be delivered to a claimant by the defendant prior to the settlement of a claim between the claimant and the defendant. The alternative relief sought was in the nature of the notice here at issue except that, given the nature of the putative class here at issue, "publication" of a notice would appear to the Court to be problematic. Mr. Justice Cumming wrote at paragraphs 10 to 12 of his reasons:
Shell submits in the case at hand that the plaintiffs have not brought forward any specific evidence of impropriety on Shell's part in its settlement involvement. No parties who have settled with Shell have come forward to complain. Therefore, Shell submits, there is not any justification for any order requiring Shell to not settle claims without first advising claimants that they may have rights as putative class members in the class action.
I disagree with Shell's position. A class action has important differences in its characteristics from an individual action. One distinction with a class proceeding is that there are absent class members, many of whom may very well not be aware of the commencement of the class action until the published notices upon a certification. In the case at hand, the plaintiffs are anxious to proceed to a certification hearing as soon as possible. However, the motion for certification cannot take place until July 6 and 7, 2000, because Shell, quite understandably, will not be in a position to respond until that date. Shell is awaiting the completion of a scientific report relating to the emission of March 16, 2000.
[36]It is of interest that Justice Cumming, after concluding as he did, went on to indicate that he implied no impropriety on Shell's part in respect of its dealings to the time of the hearing before him with specific claimants. I wish to emphasize that, like Justice Cumming, I make no implication or finding of impropriety on the part of the respondent in his dealings with members of the putative class, to date. I find that any such finding or implication is unnecessary to reach a conclusion equivalent to that reached by Justice Cumming.
[37]Against the words of subsection 299.37(1) of the Rules, I have concluded that a notice in the nature of that which I have ordered is necessary "to protect the interests" of putative class members and "to ensure the fair conduct" of any class action that eventually might arise out of the proceedings now before the Court. I regret to say that the time frame for the maturing of any class action on behalf of the putative class is likely to be significantly longer than the time frame that Justice Cumming faced when he arrived at his conclusion.
[38]Finally, I interpret the words "at any time" in subsection 299.37(1) of the Rules in accordance with their ordinary meaning. I am satisfied that it would be entirely contrary to a fair and liberal application of the Court's Class Action Rules to interpret those words as being limited to a time after a class action has been certified or until after leave has been granted, if it should be, on all the applications for judicial review now before the Court and those applications have been directed to be treated and proceeded with as actions. Such an interpretation requires that the words "class member" in subsection 299.37(1) be read as "class member or putative class member". I adopt that interpretation in order to give to the words "at any time" the meaning which I am satisfied is consistent with reasonable protection of the interests of members of the putative class and the fair conduct of any resulting class action.
[39]In the result, the mandatory notice element of the order followed.
RELIEFS SOUGHT AND NOT GRANTED
[40]The motion on behalf of the Borisova applicants sought a direction to refrain or injunctive relief in favour of a somewhat wider range of individuals than was sought in the motions on behalf of the other three applicants, as the Borisova matter included both individuals who submitted their applications for immigration to Canada before January 1, 2002 and individuals who submitted their applications for immigration to Canada after December, 2001 and prior to June 28, 2002, the date on which the IRPA and the IRPR came into force.
[41]The Court determined the evidence before it with respect to the wider range of persons who submitted their applications for immigration before January 1, 2002 to be unsatisfactory.
[42]With respect to those who submitted their applications for immigration to Canada after December 2001 and prior to the June 28, 2002, the evidence before the Court demonstrated that a draft of the IRPR was published in mid-December of 2001 and clearly demonstrated that persons applying after December 2001 would be dealt with under the IRPA regime when it came into force. At the same time, the Government had clearly demonstrated its commitment to bringing the new regime into force at a relatively early date and certainly within the time frame that left those applying after 2001 with no reasonable expectation that their applications would be finally disposed of under the former Act and the 1978 Regulations. In the result, the Court concluded that individuals within the extended class in whose favour the Borisova motion sought relief could not successfully demonstrate that they would suffer irreparable harm in the absence of such relief.
[43]The Borisova applicants, unlike the Dass, Anand and Rasolzadeh applicants, sought costs of their motion. The Court determined that, at this early stage of proceedings brought by members of the putative class, it was too early to fairly evaluate the question of entitlement to costs.
[44]As earlier noted, there was evidence before the Court that some individuals who may have been within the putative class when a proceeding before this Court to which they were a party applicant or could have been a party applicant was commenced have since had their applications to immigrate to Canada rejected under the IRPA and the IRPR criteria. Without commenting on whether such individuals might have recourse to relief before this or any other court through a different form of proceeding, the Court is satisfied that no relief is available to them under the applications underlying the motions now before the Court or like applications that are or might at a later date come before the Court. Thus, no interim relief was granted in their favour.
[45]Finally, the Dass, Anand and Rasolzadeh applicants sought "directions to all parties to the proceedings as to how they should communicate with members of the putative class". The Court interpreted this request for relief as relating to members of the putative class who are not currently before the Court since there is no evidence that members of the putative class who are before the Court are having difficulty communicating with their respective counsel.
[46]Subsection 385(1) of the Federal Court Rules, 1998, provides in part as follows:
385. (1) A case management judge or a prothonotary assigned under paragraph 383(c) shall deal with all matters that arise prior to the trial or hearing of a specially managed proceeding and may
(a) give any directions that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits;
[47]The vast majority of proceedings before the Court brought by members of the putative class are under case management with this judge designated as case management judge. New proceedings brought by members of the putative class and seeking similar reliefs continue to be designated for case management under the same case management judge. Thus, paragraph 385(1)(a) of the Rules provides authority for the giving of directions of the nature sought. That being said, the membership of the putative class is very broad and widely disbursed. No evidence was before the Court as to the nature of the directions that counsel might have considered appropriate and reasonably effective. The Court itself was simply not in a position to formulate appropriate directions. In the result, the directions requested were not given. If, at a later date, a proposal for appropriate directions comes before the case management judge, it will be considered.
CONCLUSION
[48]For the foregoing reasons, the reliefs contained in the order herein of June 20, 2003, and no other reliefs, were provided.
1 Respondent's motion record, Tab 2. Affidavit of Robert Orr, paragraph 6, definition "Group A people".
2 By Order dated the 10 July, 2003, paragraphs 1 and 2 of the order of 20 June, 2003 were amended. For the expression "economic class applicants seeking immigration visas", the following was substituted: "skilled worker, self-employed, entrepreneur and investor applicants referred to in subsection 8(1) of the Immigration Regulations, 1978 other than provincial nominees". A further exception was also provided. Paragraph 2 was modified to clarify that the required notice is to be provided forthwith. The form of notice is annexed as a schedule to the order of 10 July 2003 and is Appendix A to these reasons.
3 R.S.C., 1985, c. I-2.
4 SOR/78-172.
5 S.C. 2001, c. 27.
6 SOR/2002-227.
7 Canada Gazette Part II, Vol. 136, Extra No. 9, 14 June, 2002; Respondent's Authorities, Tab 5.
8 (2003), 224 D.L.R. (4th) 739 (F.C.T.D.); appeal dismissed as moot, 2003 FCA 233; [2003] F.C.J. No. 813 (C.A.) (QL).
9 R.S.C., 1985, c. F-7.
10 Since the hearing of this matter, the Trial Division of the Federal Court has become the "Federal Court".
11 SOR/98-106.
12 [2001] 2 S.C.R. 534.
13 [1998] 1 S.C.R. 626.
14 (1997), 47 Admin. L.R. (2d) 24 (F.C.A.).
15 (1993), 69 F.T.R. 48 (F.C.T.D.).
16 S.O. 1992, c. 6.
17 (2000), 48 O.R. (3d) 612 (S.C.).
APPENDIX A
Notice of Proposed Class Action Legal Proceedings in Canada
TO: PROSPECTIVE CLASS MEMBERS
RE: APPLICATIONS FOR PERMANENT RESIDENCE TO CANADA FILED BEFORE JANUARY 1, 2002, in the skilled worker, self-employed, entrepreneur and investor classes:
The Government of Canada is sending you this Notice in compliance with a Court Order from Mr. Justice Gibson of the Federal Court of Canada. The Order is dated June 20, 2003, and relates to proposed class actions against the Minister of Citizenship and Immigration of Canada. It potentially affects applications for permanent residence in Canada filed in the skilled worker, self-employed, entrepreneur and investor classes, prior to January 1, 2002. The Minister is required to inform you of the following:
1. Nature of the Legal Proceedings in Canada:
Several proposed class actions have been filed in the Federal Court. The main purpose of these actions is to compel the Minister to assess or possibly re-assess some applications filed before January 1, 2002 under the selection rules in place at the time. The proposed class actions also request damages. An award of damages means money might be paid to you as a result of the Court's decision in this matter. In some cases, damages are requested as an alternate remedy, if the Court decides that the Minister doe not need to assess the pre-January 2002 applications under the old selection rules. In other cases, damages are the only remedy requested. You may be entitled to damages if any of these proposed class actions are successful in Canada.
2. What is happening with your application seeking a visa?
The Department of Citizenship and Immigration is continuing to process cases, and you may continue to receive requests for additional information or be invited for an interview. Visas will be issued to applicants who are favourably assessed. If you submitted your application seeking an immigrant visa before January 1, 2002, your application will not be finally rejected by the Department of Citizenship and Immigration, unless you advise the Department of Citizenship and Immigration in writing that you consent to a final rejection of your case.
3. Participating in the proposed class actions:
You don't need to do anything now. You will receive a letter from the Department of Citizenship and Immigration if a Court decision is made permitting a class action to proceed. You can then decide whether you wish to participate in the class action, or not.
4. Advising the Department of Citizenship and Immigration of your change of address:
You should advise the Department of Citizenship and Immigration if your address changes. You should do this through the visa office where you submitted your application for permanent residence. Please include your visa file number (which appears at the top of this letter) when communicating information about any change of your address to the visa office. You might not be advised of future developments in the proposed class actions, or receive the benefits of any remedy obtained, if you fail to notify the Department of Citizenship and Immigration of changes to your address.
5. More information about the proposed class actions:
For further information about the proposed class actions and how they may affect you, you may contact any of the lawyers in Canada listed below at no charge to you, with the exception that "collect" long distance telephone calls may not be accepted. Please note that the Department of Citizenship and Immigration and its visa offices will not respond to any questions from you or your representative regarding this Notice or the proposed class actions.
6. Lawyers in Canada who can answer your question about this Notice and the proposed class actions:
[Names of lawyers in Canada, their addresses and other contact information omitted.]
APPENDIX B
FACTS
Legislative History
(a) Committee Meetings
11. On December 15, 2001, the Respondent tabled the proposed new Regulations which created a new selection system for immigrants and transitional provisions. Under subsection 5(2) of IRPA, the Respondent must table proposed Regulations with respect to certain subject matters before Parliament, and Parliament shall refer the proposed Regulations to the appropriate Parliamentary Committee.
12. In January, February and March, 2002, the House of Commons Standing Committee on Citizenship and Immigration (the "Committee") held hearings to consider the proposed new Regulations. It is clear that there was wide-spread condemnation by the Committee that the Regulations will apply to, and prejudice, the thousands of applicants for an immigrant visa who applied under the former Regulations before the government announced the new Regulations. The proposed Regulations were to take effect at the same time as the new Act, viz., June 28, 2002.
13. On February 26, 2002 the Respondent "accepted the fairness and equity concerns" raised before the Committee that applicants for immigrant visas filed before the new Regulations were announced ought be assessed under the selection criteria in effect at the time they applied. The Minister announced that such applicants would continue to be selected under the current selection criteria until January 1, 2003, and that skilled workers and business immigrants who have not received a selection decision prior to January 1, 2003, would be subject to the new selection criteria under the new Regulations but with a reduced pass mark of 70 points instead of 75. The Respondent also announced that visa applicants whose applications have not received a preliminary evaluation called a paper screening, can request a recall of their application and request a refund of the processing fee since they originally applied with the expectation that they would be assessed under the old selection criteria.
14. This announcement did not allay the fairness and equity concerns of the Parliamentarians on the Committee. On March 12, 2002 Ms. Joan Atkinson, Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration appeared before the Committee. She testified about the six month extension announced by the Minister and said at page 14 of the transcript:
| "We feel that the six months gives us adequate time to address a good proportion of that backlog . . . again, the objective is to try to mitigate the impact of retroactivity and mitigate the impact of this transition period . . . . |
15. The Parliamentarians on the Committee were not satisfied. They questioned Ms. Atkinson about the number of applications in the system before the proposed Regulations were announced that would not be processed by January 1, 2003. At page 25 of the transcript, Ms. Atkinson said:
| . . . our international region believed that by January 1, 2003, they will hopefully have dealt with about 90,000 applications of those 120,000 people awaiting a selection decision. So that's a little better picture than the one I just gave you . . . . |
From this point forward, the Committee understood that there would be 30,000 applications filed under the old system which would not be processed by January 1, 2003. Members of the Committee decided that the Regulations ought to be amended to extend the time for processing these old applications until March 31, 2003 so that they can be processed under the old selection criteria. The witness for the Respondent was asked if these applications can be given a priority so that they can be dealt with under the old system by this time. Ms. Atkinson implied at page 28 of the transcript that this could be done:
| We can look at how we can put resources toward trying to deal with those individuals who are in that inventory and to process as many as we can under the old system before the new system has to apply. That's an option that could be pursued. Without additional resources, we have to decide where we would take resources from to put into places such as Beijing and other places where he have large inventories. That can be done. |
(b) Committee Report
16. In March 2002 the House of Commons Standing Committee on Citizenship and Immigration issued a Report regarding "The Regulations under the Immigration and Refugee Protection Act". In the first section of the Report under the heading entitled "Retroactivity", the Committee stated:
| . . . Unfortunately, by January 1, 2003 there will still be approximately 30,000 files remaining. |
| Although the Committee appreciates the government's responsiveness on this issue, we have concluded that the revised proposal does not go far enough. Those who will not have received a selection decision before the end of 2002 have the same hopes and dreams of immigrating to Canada as those who will receive a decision before that time. We believe that more of an effort can and must be made to process as many of these applications as possible by extending the deadline by three months. |
| . . . We therefore recommend that processing of applications received before December 21, 2001 should continue until the end of March, 2003. |
17. The Committee recommended the extension together with four other recommendations so that applications filed before December 31, 2001 would be processed by March 31, 2003. These four other recommendations were at follows:
| 1. the Respondent make a corporate commitment to process the inventory on a priority basis; |
| 2. the visa posts with a significant inventory should reassess their general policies regarding personal interviews so as to process more applications before the deadline; |
| 3. special teams should be sent to visa posts with large inventories to process backlogs so that applicants are not disadvantaged by their place of application; and, |
| 4. for fairness and equity the government should increase resources dedicated to processing the applications. |
Respondent disregarded Committee's recommendations
18. When the Governor-in-Council passed the proposed Regulations. It accepted the recommendation from the Parliamentary Committee and extended the time frame from December 31, 2002 to March 31, 2003. However, the evidence before this Court makes clear that while the new Regulations extended the deadline until March 31, 2003:
| 1. no corporate commitment was made to process the inventory on a priority basis to clear this backlog; |
| 2. the visa posts with a significant inventory did not reassess their general policies regarding personal interviews so as to process more applications before the deadline; |
| 3. the respondent did not send special teams to visa posts with large inventories to process backlogs; and, |
| 4. the respondent did not increase resources dedicated to processing these applications. |
In this way, the respondent ignored the Parliamentary Committee's recommended course of action so as to be able to process the applications filed before January 1, 2002 by the entended deadline of March 31, 2003.
Purpose and intent of the extension to March 31, 2003
19. The purpose and intent of extending the time frame for assessing applications filed before January 1, 2002 was to provide time to assess those applications. The Minister first extended the time line from June 28, 2002 until December 31, 2002 to "address concerns about fairness and equity". Since it was clear to the Committee that there would still be 30,000 applications in this category pending on December 31, 2002, the Parliamentary Committee recommended the time frame be further extended to March 31, 2003.
The Numbers
20. When this matter was heard the respondent did not have a reasonable grasp on the number of applications for immigrant visas which were filed before January 1, 2002, and which will not be processed by March 31, 2003. In evidence before the Committee on March 12, 2002, the officials for the respondent advised the Committee that there would be 30,000 such applications not processed by December 31, 2002. Based on the evidence before this Court, which was subject to cross-examination, it is clear that the respondent provided the Committee will significantly incorrect numbers. Rather than the 30,000 such applications expected to be outstanding as of December 31, 2002, the evidence established that there will be 80,000 to 120,000 such applications expected to be outstanding as of March 31, 2003. Of course, this hearing is only with respect to 124 applications.
The adverse effect of the new Regulations on the Applicants
21. It is not necessary to detail the differences between the former Regulations and the new Regulations on the applicants. It is clear that the applicants are concerned that they will be denied a visa under the new Regulations, while they would be granted a visa if they are assessed under the 1978 Regulations. For this reason, the applicants believe that they will lose important rights to a Canadian visa if they are to be assessed under the selection criteria in the new Regulations. The Court is satisfied that the applicants have legitimate concerns in this regard.
Delays and the visa application process
22. The 124 applications, which are the subject of this consolidated application, were filed at 21 different overseas visa offices. The evidence is clear that these offices have experienced exponential increases in immigrant visa applications and the visa offices only process a limited number of applicants per year in accordance with a quota assigned by the respondent. As a result, there is a backlog at many visa posts where applicants must wait years for an interview. The visa application process is explained at the respondent's website dated June 5, 2002 entitled "Canadian Immigration Mission Overseas--A Quick Guide to Visa Offices; Where They Are, What they Do and Who Works There". The visa application process is explained as follows:
| The application is assessed at a visa office. This involves confirming the identity of the applicant, determining the eligibility for immigration, and determining if the applicant meets security, medical and criminal requirements. Sometimes, this can be done through the mail. Complicated cases may require interview. The visa officer must make the decision whether to issue or refuse the visa. |
The evidence established that the visa application is initially "paper screened" by a case analyst who makes a preliminary "immigrant assessment record summary". At this stage, the visa applicant is assigned a number of units of assessment, and a visa officer decided whether the application is denied on the basis of the preliminary assessment, whether the application is denied on the basis of the preliminary assessment, whether the application is granted without requiring an interview, or whether the applicant should be scheduled for an interview. The evidence established that this paper screening step only takes between 10 and 15 minutes. In 2001, for all immigrant categories worldwide, 48% of the applications were granted at this stage without requiring an interview.
23. If an interview is required following the paper screening, the applicants are placed in a notional queue, which visa offices frequently reported takes 15 months. The average length of the interview, when it does take place, is about 1 hour. At that point, the visa officer assesses a final award of units of assessment unless certain matters arise at the interview which require verification.
Example of the delay
24. To give one actual example, the Court will refer to the application filed by Mr. Majumdar Anup Kumar (hereinafter referred to as Mr. Majumdar), Court docket No. IMM-3077-02.
| (e) Mr. Majumdar filed an application for permanent residence in Canada at the Canadian visa office in Hong Kong on June 1, 1999. Mr. Majumdar is a mechanical engineer with a Bachelor of Mechanical Engineering and with twelve years work experience. All the necessary documents and the required visa processing fee in the amount of $1,100 were sent with the application. |
| (f) On August 5, 1999 the Hong Kong visa office acknowledged receipt of the visa application with the correct fee payment, assigned the application a file number, and advised that an initial assessment of the application would be conducted within the next "6 months". |
| (g) On October 21, 1991 the Hong Kong visa office advised that the initial assessment of the application had been completed and that the applicant would be notified within "15 months" regarding an interview date and that interviews generally take place 2-3 months following the notification letter (15 months from October 21, 1999 is January 21, 2001). |
| (h) Since the 15 month period expired without any contact from the visa office, on June 12, 2001 (20 months later), counsel for the applicant sent a letter to the program manager for the respondent at the Hong Kong office requesting an interview date and status report. |
| (i) There was no response to the letter so counsel sent a "reminder fax" to the program manager on August 22, 2001. The fax noted that counsel had left "several telephone messages on the program manager's voice mail". |
| (j) As of the date of the hearing, Mr. Majumdar has not been contacted by the visa office in Hong Kong and has not been scheduled for an interview, notwithstanding that this application was filed 44 months ago. |
25. Mr. Majumdar deposed that he would not qualify under the new immigration selection criteria for skilled workers, that he would have qualified for a visa under the former Regulations, and that he had invested more than $6,000 and over three years of his life toward his application for a Canadian visa.
Immigration revenue from cost recovery fees charged visa applicants
26. Immigration revenue from cost recovery fees that were charged to visa applicants and collected by all visa missions for the fiscal year end of March 31, 2002 totalled $310 million. The budget expenditures for overseas visa offices in 2002 was $185.8 million. Accordingly, the government collected $125 million more in visa application cost recovery revenue that it spent in 2002 for overseas visa offices. The evidence established that this revenue is deposited in the Consolidated Revenue Fund. The evidence also established that the respondent did not make any request in 2002 for additional resources or budget allocations to process the backlog of visa applications by March 31, 2003.
SWAT Teams
27. The evidence established that the respondent sent special teams, called SWAT teams, to overseas visa offices in 2001 to clear backlogs at missions with large inventories. The respondent requested and obtained extra resources from the government in 2001 for this purpose. The Committee recommended that such SWAT teams be used in 2002 to clear backlogs. However, the respondent made no request for extra resources for such SWAT teams to clear backlogs prior to March 31, 2003. The evidence of Mr. Daniel Jean, Director General of International Region, Citizenship and Immigration Canada established that such SWAT teams can be put together from experienced officials based in Ottawa and that the necessary training for the SWAT teams takes two weeks.
Number of officials processing visa applications overseas
28. The actual number of immigration officials in overseas offices processing applications for visas declined in 2002 compared with 2001. Immigration staff at overseas visa offices in 2002 totalled 1,366, compared with 1,403 in 2001.
No effort to process backlog before March 31, 2003
29. In the cross-examination of Mr. Daniel Jean, the principal witness for the respondent, Mr. Jean said there is no temporary objective, program or personnel in place to clear the backlog of applications because the respondent is meeting its immigration target levels. Mr. Jean confirmed that there were no new resources deployed to clear the backlog.
Hong Kong Visa Office closed for three months
30. About 11,000 applications received before January 1, 2002 in Hong Kong will likely not be processed as of March 31, 2003. The Hong Kong visa office closed for three months in the summer of 2002 and thereby stopped assessing applicants. The purpose of the closure was to train the Hong Kong staff on the new Act.
Applicants are not queue jumpers
31. It is important to note that the applicants in this have followed the Canadian rules and Canadian law to seek admission to Canada. They are not "queue jumpers". Moreover, these applicants are generally skilled workers who believe that the would qualify for landing in Canada under the former Regulations.