2004 FC 1573
IMM-577-04
CHEN, Tsai-Cheng, PENG, Sheng-Chien, WU, Chin-Chung, LIN, Chin Yuan, KUO, Nai Wei, WANG, Hsiu Shan, HSIEH, Tze-En, HUNG, Mei Ying, KO, Ching Yi, KO, Yu Fan, KO, Yu Chu, HSU, Tase Yen, CHANG, Lien Fang, CHEN, Yuan Hsing, LIN, Cheng-I, CHEN, Ping-Hung, HSIEH, Tsung-Jen, CHEN, Yueh-Yin, FANG CHANG, Shu-Min, PUI, Kwan Kay, LAI, Yung-Liang, CHANG, Ting Hui, CHANG, Fang Ming, LEI, Manuel Joao, LIN, Yung Nien, HUANG HSU, Li-Mei, FANG, Ming-Tau, LIU, Kun Yung, CHEN, Kun-Wen, TSENG, Hung Yu, CHANG, Mao, MENG, Lin Yu, TAI, Yu-Hu, YANG, Cheng-Kang, CHEN, Wen Shing, YU, Chung-Wen, YU, Wei-Chung, LIN, Shih Chun, CHANG, Lei-Fa, CHAO, Lin Shu, HSU, Pao Hua (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
IMM-1467-04
CHU, Kar Ho and PENG, Jang-Yang Alex (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Chen v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Russell J.--Vancouver, November 2 and 8, 2004.
Practice -- Conversion of judicial review application into action -- Additional relief sought: joinder, consolidation, leave to amend pleadings -- Federal Courts Act, s. 18.4(2) as exception to rule judicial review applications dealt with in summary way -- Review of case law as to when s. 18.4(2) resorted to -- Drapeau v. Canada (Minister of National Defence) adopted more expansive approach to s. 18.4(2) as placing no limits on matters considered in deciding whether to allow conversion -- Immigration context considered -- Whether intention to seek class action certification matter to be considered -- Motion granted -- Deficiencies in record before Court such that grounds raised by applicant could not be addressed -- Conversion, consolidation avoiding multiplicity of proceedings.
Citizenship and Immigration -- Immigration Practice -- Motion for direction judicial review applications in immigration matters be converted into actions; consolidation, amendment of pleadings -- Minister arguing IRPA, s. 74(c) (judge to dispose of application summarily, without delay) precluding conversion of immigration matter -- Concerned for integrity of immigration process, considering volume of appeals, delays in immigration enforcement -- Also arguing inconsistencies between IRPA, Federal Courts Act to be resolved in former's favour -- Arguments rejected -- Court incapable of determining, weighing facts due to significant gaps in record such as how Minister handled humanitarian and compassionate applications under IRPA, s. 28(2)(c) -- Similar evidentiary problems regarding IMM.1000 record of landing documentation issued under former Act -- Without operational, systemic evidence dangerous to decide whether IMM.1000 treated as mere matter of administrative convenience -- Jurisdictional issue: whether document confiscation by overseas officers under IAD jurisdiction or could be brought directly to F.C.
The present motion sought a direction that judicial review applications in two immigration files proceed as actions; joinder or consolidation with certain other actions and leave to amend the pleadings of the four consolidated actions to constitute one action.
Discretion to direct that a judicial review application proceed as an action is provided by Federal Courts Act, subsection 18.4(2) as an exception to the general rule that such matters be dealt with "without delay and in a summary way". In Macinnis v. Canada (Attorney General), Décary J.A. explained that, in general, it is only where the facts cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2), because Parliament clearly intended that judicial review applications be determined whenever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible. Speculation that hidden evidence will come to light is not a basis for ordering a trial. The principal consideration is whether the factual basis for deciding the issues can be generated by affidavit evidence. But, in Drapeau v. Canada (Minister of National Defence), the Federal Court of Appeal adopted a more expansive approach to the subsection. Hugessen J.A., writing for the majority, did not read Macinnis as limiting a motion judge's discretion where conversion is sought on grounds other than alleged evidentiary requirements. The Court of Appeal having deliberately drawn attention to Macinnis in its Drapeau decision, the last-mentioned case had to be followed on the point that "subsection 18.4(2) places no limits on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action". Even so, the Court should not entirely abandon what was taught in Macinnis regarding Parliamentary intent that judicial review applications be dealt with expeditiously. However, the following words in Macinnis could no longer be taken as meaning what they appear to say: "It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2) of the Act".
In the immigration context, the Minister, concerned for the integrity of the immigration process, suggested that the IRPA, paragraph 74(c) provision that "the judge shall dispose of the application without delay and in a summary way" might preclude conversion of an immigration matter into an action. Alternatively, a highly restrictive approach should be taken in view of the volume of appeals which cause delays in immigration enforcement. The Minister added that inconsistencies between the IRPA and the Federal Courts Act should be resolved in favour of the former. The Court could not, however, detect any real inconsistencies between the IRPA and the Federal Court Rules, 1998 or any indication of Parliamentary intent that immigration matters are not to be dealt with in accordance with the teaching of Drapeau.
The grounds relied upon by applicants in seeking a subsection 18.4(2) direction were: (1) the evidentiary record required for the relief sought could not be furnished by affidavit evidence; (2) the legal issues were too complex, and factual issues too detailed to be dealt with satisfactorily upon judicial review; (3) avoidance of a multiplicity of proceedings; (4) the judicial review process provides inadequate procedural safeguards; (5) class action certification would require conversion to an action; and (6) the just, most expeditious, and least expensive resolution of issues herein would be accomplished by conversion to an action, joinder, consolidation and class action certification.
The Minister argued that the desire to seek class action certification under rule 299.11 was not a ground for conversion; the test for conversion had first to be met independently of any intent to seek class action certification. One of the other arguments advanced by the Minister was that, if the Court proceeds with the judicial review application, a decision on the issue of retroactivity contrary to the Charter, and the appropriateness of mandamus, would provide the basis for a rule 220 "question of law" motion and assist all parties to narrow the factual and legal issues for purposes of the proposed class action. The Minister was of the view that the evidentiary basis for a meaningful judicial review was already available and that conversion would serve only to delay resolution of the matters in dispute.
Held, conversion, joinder and consolidation should be ordered and leave to amend the pleadings granted, but the Court could not even consider prayer for class action certification on this motion.
Considering that much of relief sought herein is declaratory in nature, the ambiguities and evidentiary gaps in the record were such that there could not be a satisfactory consideration of the grounds of complaint and the availability of the remedies sought. Essential facts could not be established or weighed on the present record. There was a significant gap in the evidence as to how many refusals of permanent residence were based on paragraph 28(2)(c), what the reasons for refusals were and whether the best interests of children were taken into account. As pointed out by Snider J. while disposing of a previous injunctive relief application, the Minister need not give an undertaking to produce information upon cross-examination in a judicial review proceeding. The record provides an inadequate picture of how the Minister handled humanitarian and compassionate applications under IRPA, paragraph 28(2)(c). Similar evidentiary problems arose as to the impact and status of IMM.1000 record of landing documentation issued under the former Immigration Act and its significance as a status document under IRPA, subsection 31(3). The fact that the Minister's position on IMM.1000 record of landing documentation is stated in various public documents did not provide the Court with the means to address the grounds advanced by applicants. On the disputed question as to whether the IMM.1000 record of landing was treated merely as a matter of administrative convenience prior to enactment of the IRPA, it would be dangerous for the Court to make a decision without the public record being nourished by operational and systemic evidence of how such documentation was actually handled. The differences between the parties on the jurisdictional issue as to whether the matter of the confiscation of documentation by overseas officers can be brought directly to Federal Court or falls under IAD jurisdiction could not be resolved on the record because what actually took place in relation to document seizures and waiver of appeal rights had not been sufficiently canvassed in the evidence gathered to date and could not be adequately addressed under judicial review procedures.
So far as applicants relied on rule 3 (requiring the just, expeditious, and least expensive determination on merits), the Court could not say whether access to justice and cost avoidance were better promoted by an action than by judicial review. But, on the question of avoiding a multiplicity of proceedings, given the evidentiary problems of the record, procedural efficiencies pointed in the direction of conversion and consolidation.
On the issue of class action certification, the Minister having not yet consented to certification, the Court was faced squarely with the question of whether applicants' intention to seek certification is a factor to be considered by the Court when exercising its subsection 18.4(2) discretion. It was noted that, while the Court's Rules Committee had concluded in 2000 that the proposed class proceedings rules should apply to both actions and applications, the scheme incorporated into the Rules in 2002 applied to actions only. This explains the necessity for rule 299.11 whereby an application can be brought within the class action regime if "it is to be treated and proceeded with as an action under subsection 18.4(2) of the Act". Rule 299.11 contemplates that a decision to proceed under subsection 18.4(2) must have been made before the rule comes into play. In answering the question, the Court should follow the teaching in Drapeau, that subsection 18.4(2) does not limit the considerations that may be taken into account in deciding whether to allow conversion. In all the circumstances, to deprive applicants of an opportunity to seek class action certification by denying conversion would constitute a denial of the rights of applicants and those they seek to represent. This was a fundamental access to justice issue, something the Drapeau decision says is a legitimate consideration.
The case for joinder under rule 102 and consolidation (rule 105) was made by letter from the Minister's counsel to the Court pointing out that both the judicial reviews and actions were based on similar grounds. There was here sufficient commonality to warrant consolidation. Furthermore, the policy of avoiding a multiplicity of proceedings while promoting the less expensive expeditious determination of proceedings would be promoted by consolidation. Nor could the Court see that this would cause the Minister any appreciable prejudice. Leave to amend the pleadings followed inevitably from conversion and consolidation.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15.
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.4 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28), 18.5 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28), 28 (as am. idem, s. 35). |
| Federal Court Rules, 1998, SOR/98-106, RR. 3, 75, 102, 105, 220, 299.1-299.42 (as enacted by SOR/2002-417, s. 17). |
| Immigration Act, R.S.C., 1985, c. I-2. |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 28(2)(c), 31(3), 72(2)(a), 74(c). |
cases judicially considered
applied:
Drapeau v. Canada (Minister of National Defence) (1995), 179 N.R. 398 (F.C.A.); affg (1995), 119 F.T.R. 146 (F.C.T.D.).
considered:
Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464; (1994), 113 D.L.R. (4th) 529; 25 Admin. L.R. (2d) 294; 47 M.P.L.R. (3d) 162; 166 N.R. 57 (C.A.).
referred to:
Chen v. Canada (Minister of Citizenship and Immigration) (2004), 250 F.T.R. 285; 35 Imm. L.R. (3d) 122 (F.C.); Sivamoorthy v. Canada (Minister of Citizenship and Immigration), 2003 FCT 307; [2003] F.C.J. No. 437 (QL).
authors cited
Federal Court of Canada Rules Committee. Class Proceedings in the Federal Court of Canada: A Discussion Paper, Ottawa: June 9, 2000.
"Proposed Regulations", Can. Gaz. 2001.I.4400-4401.
MOTION for a direction that certain judicial review applications proceed as actions; joinder, consolidation with certain other actions; and leave to amend the pleadings of the four consolidated actions. Motion allowed.
appearances:
Rocco Galati for applicants.
Brenda Carbonell for respondent.
solicitors of record:
Galati, Rodrigues and Associates, Toronto, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
Russell J.:
THE MOTION
[1]The principal relief sought in this motion is: a direction that the judicial review applications in IMM-1467-04 and IMM-577-04 be treated and proceeded with as actions; joinder and/or consolidation of the converted actions with the actions in IMM-10140-03 and IMM-576-04; and leave to amend the pleadings of the four consolidated actions to constitute one action.
BACKGROUND
[2]The background to this matter has already been set out with exemplary economy and precision by Madam Justice Snider in her reasons for order and order of March 26, 2004 [Chen v. Canada (Minister of Citizenship and Immigration) (2004), 250 F.T.R. 285 (F.C.)], which dealt with an earlier application for injunctive relief against the Minister, and there is no need to repeat that account here.
CONVERSION
[3]The discretion to direct that the judicial review applications in IMM-1467-04 and IMM-577-04 (leave has been granted) be treated and proceeded with as actions is governed by section 18.4 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8. s. 28] of the Federal Courts Act [R.S.C., 1985, c. F-7, s. 1 (as am. by S.C. 2002, c. 8, s. 14)]:
18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
(2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
[4]The case law gloss on these provisions is well-known and is referred to by the applicants and the Minister in their materials. The usual starting point is the judgment of the Federal Court of Appeal in Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464, where Décary J.A., writing for the Court, had the following to say at pages 469-473:
Any attempt to interpret subsection 18.4(2) has to begin with the following statement by Muldoon J. with respect to the approach to be taken when applying it:
| Section 18.4 of the Federal Court Act makes it clear that, as a general rule, an application for judicial review or a reference to the Trial Division shall be proceeded with as a motion. The section dictates that such matters be heard and determined "without delay and in a summary way". As an exception to the general rule, provision is made in s. 18.4(2) for an application for judicial review to be proceeded with as an action. The new and preferred course of procedure, however, is by way of motion and that course should not be departed from except in the clearest of circumstances. |
Of interest, also, is the reminder by Reed J. that:
| . . . on judicial review the role of the court is to review the decision made by the decision-maker but not to supplant that decision-making process. |
and the following comments by Strayer J.:
| For these reasons I am unsympathetic to the arguments of the respondents that there are difficult technical factual determinations to be made which will require pleadings and a trial and the cross-examination viva voce of experts and others. It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected. Whether society would be well served by the Court performing either of these roles, which I gravely doubt, they are not the roles conferred upon it in the exercise of judicial review under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7]. |
| I am therefore not going to direct that this matter be tried by way of an action. I think many of the concerns of the respondents can be met if the parties focus on the real issues. |
It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2) of the Act. One should not lose sight of the clear intention of Parliament to have applications for judicial review determined whenever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible. The "clearest of circumstances", to use the words of Muldoon J., where that subsection may be used, is where there is a need for viva voce evidence, either to assess demeanour and credibility of witnesses or to allow the Court to have a full grasp of the whole of the evidence whenever it feels the case cries out for the full panoply of a trial. The decision of this Court in Bayer AG and Miles Canada Inc. v. Minister of National Health and Welfare and Apotex Inc. where Mahoney J.A. to some extent commented adversely on a decision made by Rouleau J. in the same file, is a recent illustration of the reluctance of the Court to proceed by way of an action rather than by way of an application.
Strayer J. in Vancouver Island Peace Society, and Reed J. in Derrickson have indicated that it is important to remember the true nature of the questions to be answered by the Court in judicial review proceedings and to consider the adequacy of affidavit evidence for answering those questions. Thus, a judge would err in accepting that a party could only introduce the evidence it wants by way of a trial if that evidence was not related to the narrow issues to be answered by the Court. The complexity of the factual issues would be, taken by itself, an irrelevant consideration if the conflicting expert affidavits on which they are based are related to the issues before the tribunal rather than issues before the Court. In the same vein, speculation that hidden evidence will come to light is not a basis for ordering a trial. A judge might be justified in holding otherwise if there were good grounds for believing that such evidence would only come to light in a trial, but the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior.
We do not think a better factual basis is necessary for determining Charter issues in comparison with other issues. It is true that constitutional facts are unusual in that they are often about social trends, but before a judge concludes that Charter issues require a trial, there must be some reason to believe in the inadequacy of affidavits to establish a factual basis. To proceed by way of motion is not to be equated with proceeding in a "factual vacuum", since affidavit evidence is fully available. The proposition that Charter issues can be properly decided only following a trial flies in the face of the innumerable decisions of this Court, the Supreme Court of Canada and other courts that have been made on application or following other summary process, or by appeal from such decisions. There is absolutely no reason to grant Charter cases a special status.
The complexity of legal issues is not, in itself, a relevant consideration. These issues would be complex whether they were argued in the course of an application or in the course of an action.
Time is also not in itself a relevant consideration for transforming an application into an action. The volume of the affidavit evidence to be filed, the time needed by counsel to submit their case are not related to the way the proceedings are held. We appreciate that applications have taken more and more of the time of the Trial Division and that what used to be for a judge a motions'day has become more often than not a motions' week. The system obviously needs to be adapted to these new requirements of the post-Charter era, but the solution cannot be, because it flies in the face of Parliament's will, to alleviate the burden of a motions judge by converting an application to an action.
A party's subjective reason for desiring viva voce evidence would also be an irrelevant consideration. A party's desire to have his day in court is not a good reason for allowing a trial.
In the case at bar, with respect, the learned Motions Judge was too much concerned with the complexity of the issues raised and the fact that there were Charter issues, and not concerned enough with what should have been the main consideration, i.e. whether the factual basis for deciding those issues could be properly generated by affidavit evidence. This is clearly a ground for intervention by this Court.
We have examined the pleadings and the records in two earlier applications in the Trial Division on which the respondent has relied in the present application. There are, indeed, complex issues and facts, but we have not been persuaded that a hearing in a summary way would prevent the parties and the Court from dealing adequately with the application for judicial review. On the contrary, it seems to us that the matters complained of by the respondent are entirely related to the procedure followed by the Board. Procedure being a matter well within the expertise of the Court, the issues are not so complex as to require production of documents, discovery, Ievidence with cross-examination, and the full panoply of a trial. [Footnotes omitted.]
[5]Macinnis represents a narrow approach to subsection 18.4(2) and expresses "the reluctance of the Court to proceed by way of an action rather than by way of an application." The case suggests a general rule that it is "only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2) of the Act."
[6]In Drapeau v. Canada (Minister of National Defence) (1995), 179 N.R. 398 (F.C.A.), a somewhat differently constituted panel of the Federal Court of Appeal took a much more expansive approach to subsection 18.4(2). Hugessen J.A., writing for the majority, provided the following guidance [at paragraph 1]:
Chevalier, D.J., and I are of the view that a motions judge, seized of a motion to convert an application for judicial review into an action pursuant to subsection 18.4(2), does not err in giving consideration to the desirability of avoiding a multiplicity of proceedings. In the present case the motions judge was dealing with attacks upon a series of decisions, alleged to have been made in bad faith and in breach of natural justice, which were said to have caused damage to the plaintiff. She considered that in those circumstances it was "appropriate" to allow the plaintiff to proceed by way of a single action. We agree with her that this Court's judgment in MacInnis v. Canada (Attorney General), [1994] 2 F.C. 464; 166 N.R. 57 (F.C.A.), dealt with different circumstances and should not be read as limiting a motions judge's discretion in cases where conversion is sought on grounds other than alleged evidentiary requirements. In our view, s. 18.4(2) places no limits on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action. The desirability of facilitating access to justice and avoiding unnecessary cost and delay is certainly one of them. [Footnote omitted.]
[7]Stone J.A., who had sat on Macinnis, was clearly worried by this approach because he provided a notable oral dissent, although in his reasons he does not overtly assert the narrow approach of Macinnis, but confines himself to the specific issue of whether the avoidance of a multiplicity of proceedings is sufficient justification for the exercise of the discretion embodied in subsection 18.4(2) [at paragraph 6]:
In my view, s. 18.4(2) of the Federal Court Act was not intended to allow a person who seeks relief in an application for judicial review to have the application converted to an action simply because the applicant subsequently decides to assert an action in tort for damages arising out of the same circumstances even though, as the Trial Judge found, to do so would avoid a multiplicity of proceedings. It is my perception that the purpose of the subsection does not include converting to an action in these circumstances. As I read that subsection in the context of sections 18.1-18.5 as a whole, its purpose is to better enable the Court to determine whether the particular relief claimed and available only on an application for judicial review should be granted or denied rather than to convert the application to an action simply because the applicant therein now seeks to claim damages in tort in that way. [Footnote omitted.]
[8]It may be that there is no conflict between the approach taken in Macinnis with the one asserted in Drapeau because, as Hugessen J.A. explains in Drapeau, "this Court's judgment in MacInnis [sic] v. Canada . . . dealt with different circumstances and should not be read as limiting a motions judge's discretion in cases where conversion is sought on grounds other than alleged evidentiary requirements."
[9]Because the Federal Court of Appeal has deliberately drawn attention to the Macinnis decision in Drapeau and has told us how Macinnis should not be read, it seems to me that I am bound to follow Drapeau and that I must assume for purposes of this motion that "subsection 18.4(2) places no limits on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action" and that the "desirability of facilitating access to justice and avoiding unnecessary cost and delay is certainly one of them."
[10]This does not mean, it seems to me, that I should abandon entirely the teaching of Macinnis and "lose sight of the clear intention of Parliament to have applications for judicial review determined whenever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible" (pages 470-471) but I think I must abandon an interpretation of Macinnis that assumes that the following words mean what they appear to say: "It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2) of the Act" (page 470).
THE IMMIGRATION CONTEXT
[11]The Minister is, in my view, rightly concerned about the integrity of the immigration process and the approach to dealing with immigration matters now embodied in the Immigration and Refugee Protection Act [S.C. 2001, c. 27] (IRPA) and the Regulations promulgated pursuant to that Act. The Minister questions, in fact, whether paragraph 74(c) of IRPA "the judge shall dispose of the application without delay and in a summary way" precludes conversion of an immigration matter into an action and cautions that, even if it does not, a highly restrictive approach should be taken to conversion in the immigration context because, to quote the Minister, the "development of Federal Court immigration practice demonstrates Parliament's intention to insure that matters proceed summarily thereby reducing the volume of appeals and the consequent delays in immigration enforcement." The Minister also argues as follows:
A consistent theme in Division 8 of the IRPA is that immigration matters are to proceed summarily, without delay. Another consistent theme in the IRPA and the Federal Court IRP Rules is that inconsistencies between IRPA and the Federal Courts Act or between the IRPA and the Federal Court IRP Rules are to be resolved in favour of the IRPA.
[12]After examining the statutory and regulatory provisions cited by the Minister, and the authorities advanced in favour of the Minister's arguments for a particular caution in the context of immigration disputes, I cannot detect any real inconsistencies between the scheme of IRPA and the Federal Court Rules, 1998 [SOR/98-106], or any evidence of Parliamentary intent that, when considering a direction under subsection 18.4(2) of the Federal Courts Act, immigration applications give rise to particular considerations that are not encompassed by the general teaching of Drapeau that "subsection 18.4(2) places no limits on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action." (paragraph 1)
[13]I agree with the Minister that subsection "18.4(2) provides for conversion of a judicial review into an action as an exception to s. 18.4(1)," but the exception is intended to be applicable in all contexts, and any particular considerations that might arise in applying subsection 18.4(2) to immigration matters, including specific provisions of IRPA and its Regulations, can be addressed by following the general guidance provided by Drapeau.
[14]Also, as was candidly conceded by counsel at the hearing of this motion, the Minister has seen fit to consent to conversion to an action on other occasions, thus indicating that IRPA does not prevent an immigration judicial review application from proceeding as an action in appropriate circumstances.
GROUNDS ADVANCED
[15]The applicants rely upon various grounds to seek a direction under subsection 18.4(2) in the present case:
1. the required evidentiary record for the relief which they seek and the legal basis for that relief cannot be established and assembled for the Court through affidavit evidence;
2. there are complex legal and detailed factual issues in the applications that cannot be dealt with satisfactorily by way of judicial review and which make this a proper case for proceeding by way of an action;
3. there are access to justice issues and a need to avoid unnecessary costs and a multiplicity of proceedings that require conversion to an action;
4. because the primary relief sought by the applicants is declaratory, the judicial review process does not provide appropriate procedural safeguards. Those safeguards can only be secured by proceeding as an action;
5. the applicants' intention to seek a class action certification requires conversion to an action because the class action scheme found in the Federal Court Rules, 1998 (rules 299.1-299.42 [as enacted by SOR/2002-417, s. 17]) applies to actions but does not apply to judicial review applications;
6. the just, most expeditious and least expensive determination of the issues raised in the judicial review applications requires conversion to an action, joinder, consolidation and class action certification.
[16]The Minister seeks to resist conversion in the present case because it would be inconsistent with the scheme and intent of IRPA to abandon summary proceedings in favour of an action and because, in any event, the applicants cannot meet the test for conversion as established by the relevant case law.
[17]The Minister argues, in particular, that the desire to seek certification as a class, pursuant to rule 299.11 of the Federal Court Rules, 1998, is not a ground for conversion and that the applicants must first meet the test for conversion independently of any desire or intent to seek class certification. The Minister says that the Federal Court Rules, 1998 "do not contemplate conversion of a judicial review into an action for the purpose of becoming a class but, the possibility of certification of a class if the test for conversion is met."
[18]The Minister also says that in both IMM-577-04 and IMM-1467-04 there is already a sufficient evidentiary base to enable the Court to make a determination on the issues raised and the relief sought by way of judicial review proceedings.
[19]With reference to some of the specifics of both applications, the Minister also raises the following points for the Court's consideration:
1. in IMM-577-04 the applicant seeks a combination of declaratory relief and mandamus. The focus of the review is on the permanent resident card process and whether there has been undue delay in completing PR card applications. The issue is moot with respect to mandamus because all of the PR card applications have now been processed;
2. also in IMM-577-04, the issue of whether the provisions of IRPA that deal with residency requirements and obligations are being applied in a retroactive manner that is contrary to sections 7 and 15 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] raises purely legal considerations that can be determined by reference to IRPA;
3. as regards the requests for declaratory relief in relation to the processing of PR card applications and the issuance of travel documents overseas, the Minister's representatives have already, in cross-examination, provided evidence as to how the inventory of PR card cases was created, and have already admitted the errors that were made at the outset of the travel document process. There has also been cross-examination on current staffing levels and the inventory of PR card applications in Vancouver. Consequently, "there is sufficient evidence before the Court to enable the Court to provide any combination of the extraordinary remedies" if the Court in judicial review proceedings considers it as necessary to do so;
4. the Court should proceed with the judicial review applications because a decision on the issue of retroactivity contrary to the Charter, and the appropriateness of mandamus, will provide the basis for a "question of law" motion pursuant to rule 220 and assist all parties to narrow the legal and factual issues for purposes of the proposed class action;
5. the Court's determination on the judicial review applications will assist in the disposition of the extant actions in IMM-576-04 and IMM-10140-03 and/or permit the parties to move directly to settlement.
[20]In short, the Minister's view is that the evidentiary base for a meaningful judicial review of the issues is already available; conversion is unnecessary and will only delay resolution of the matters in dispute as well as the proposed parallel class actions.
ANALYSIS
[21]Of the various grounds advanced by the applicants for a direction under subsection 18.4(2), I only regard the following as being material on the facts before me.
The Evidentiary Case
[22]Taking into account the relief that the applicants are seeking in the judicial review applications--much of it declaratory in nature (as set out in the applications and their further memoranda of argument)--there are evidentiary gaps and ambiguities in the present record that, in my view, render it inadequate for a satisfactory consideration of the grounds of complaint and the availability of the remedies sought. The fact that the legal and factual issues are complex, and that Charter and constitutional issues are involved, does not concern me and, in my view, is irrelevant. Those kinds of issues can be adequately addressed on judicial review provided there is an adequate evidentiary base on the record. However, my reading of the affidavits and cross-examinations produced to date suggests to me that essential facts cannot be satisfactorily established or weighed on the present record.
[23]For example, at the centre of this dispute is the issue of the rights of permanent residents to enter and remain in Canada and how the humanitarian and compassionate considerations referred to in paragraph 28(2)(c) of IRPA (including the best interests of children) were applied, or not applied, in this case.
[24]The respondent takes the position that there is already sufficient evidence on the record to enable the Court to deal with this issue. By and large, however, the record suggests to me that the respondent has indicated through its representatives and afffiants that much of the information on this issue is simply not available. The Minister has not indicated how many permanent residents' refusals were based upon paragraph. 28(2)(c), what the reasons for those refusals were, and whether the best interests of children were taken into account. So there appears to be, on this issue, a significant gap in the evidence as to the systemic reality and conduct of the respondent's officials. As Madam Justice Snider pointed out when she considered the injunction application, the Minister is not required to undertake to produce information requested at a cross-examination in judicial review proceedings and, as the applicants pointed out in the hearing of this motion before me, the Minister was quite within her rights, in terms of the procedures for judicial review, to refuse to give undertakings or have her representatives inform themselves fully before giving evidence. In addition, the Minister has taken the position --once again, entirely correctly it seems to me--that the transcripts of the cross-examinations cannot be used in other proceedings and that the cross-examinations could not stand adjourned. The Minister's representatives have acknowledged to date that they were remiss in the handling of some aspects of the H&C factors, but as regards the specific grounds referred to in the applications, there is insufficient evidence for a meaningful determination.
[25]So, in my view, the record provides an inadequate picture of how the Minister handled H&C applications under paragraph 28(2)(c) of IRPA. This evidence is needed because the applicants say they qualified as permanent residents under paragraph 28(2)(c) and that they were not treated in accordance with that provision. This also affects, among other things, the section 7 Charter issues raised by the applicants.
[26]It seems to me that the Court requires evidence on this issue that can only be obtained if the matter goes forward as an action.
[27]Similar evidentiary problems arise on the record concerning the impact and status of IMM.1000 record of landing documentation issued under the former Immigration Act [R.S.C., 1985, c. I-2] and its signifi-cance as a status document under subsection 31(3) of IRPA.
[28]The Minister concedes that there is considerable difficulty surrounding the issue of the seizure of record of landing documents and that some officers did not understand the correct procedure. Dispute exists between the parties as to whether this documentation was taken incorrectly in some instances.
[29]The Minister also says, however, that the status of IMM.1000 record of landing documentation is a matter of public record that is set out in various manuals and regulatory impacts put out by the Minister. She says that, prior to IRPA, IMM.1000 record of landing was an administrative document and a matter of policy and procedure. Post-IRPA, the status of this documentation is made clear by regulation. Hence, the Minister takes the position that the dispute over record of landing documentation is not a question of fact, and the status of such documents is merely a question of interpretation of what the Minister has said on this issue, which is a matter of public record.
[30]In any event, the Minister says that the refusal of travel documents overseas is not a matter that is properly before the Court in these applications because such a refusal should go before the IAD, which has the jurisdiction to determine any matter of fact and law, and then by way of judicial review to this Court if the parties are not satisfied.
[31]In my view, the fact that the Minister's position on IMM.1000 record of landing documentation is stated in various public documents does not provide the Court with the means to address the grounds put forward by the applicants. For example, the applicants dispute that, before IRPA, IMM.1000 record of landing documentation was a matter of administrative convenience, so it would be dangerous for the Court to make a decision of this issue without having the public record nourished by operational and systemic evidence of how such documentation was actually handled. Additional evidence is also required on how record of landing documentation was seized and otherwise dealt with by overseas officers. The Minister concedes that there is significant confusion in this area on the present record.
[32]The applicants' position is that section 18.5 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28] of the Federal Courts Act does not bar them from coming to the Court directly with this matter because it is essentially an issue over which the IAD has no jurisdiction. They say that a right of appeal as contemplated by paragraph 72(2)(a) of IRPA is not triggered in this case. The physical confiscation of documentation by overseas officers, which the Minister concedes was improper in some instances and gives rise to extremely contentious issues as to what actually happened, does not, say the applicants, bring paragraph 72(2)(a) of IRPA and the IAD jurisdiction into play. Hence, there is nothing to prevent the applicants from approaching the Court directly in this case.
[33]In my view, the differences between the parties on even this jurisdictional issue cannot be resolved on the present record because the issue of what actually happened in relation to seized documentation, and the possible waiver of appeal rights, has not been canvassed sufficiently in the evidence gathered to date, and cannot be adequately addressed under judicial review proce-dures.
[34]The Minister's handling of H&C issues and IMM.1000 record of landing documentation does not exhaust the points at issue between the parties, but these matters, in my view, are central to the dispute and the grounds in the applications, and I do not believe that an adequate evidentiary base exists to allow for them to be dealt with on judicial review.
The Just, Most Expeditious and Least Expensive Determination on the Merits
[35]The applicants point to the general mandate contained in rule 3 of the Federal Court Rules, 1998 as a further basis to justify directing an action on this motion. In theory at least, Drapeau appears to suggest that such considerations may be germaine and that the "desirability of facilitating access to justice and avoiding unnecessary costs and delay" can certainly be taken into account.
[36]However, on the facts and arguments before me, I cannot say, apart from the evidentiary issues, whether access to justice and the avoidance of delay and cost are better promoted by an action rather than judicial review. In the normal course, one would expect summary proceedings to cost less and take less time, but if evidentiary issues cannot be adequately addressed by way of judicial review, then a just determination on the merits will require directing an action.
[37]On the present motion, the considerations that have already been addressed in relation to the evidentiary issues are applicable here and no further discussion is required on costs and delay.
[38]The avoidance of a multiplicity of proceedings was a very contentious issue in Drapeau. On the facts of that case, Stone J.A., in his oral dissent, rejected the Motions Judge's [(1995), 119 F.T.R. 146 (F.C.T.D.)] rationale of allowing conversion to a trial to "avoid a multiplicity of proceedings in view of the expressed intention of the applicant to institute an action for damages."
[39]The majority dismissed the appeal in Drapeau and specifically found that "a motions judge, seized of a motion to convert an application for judicial review into an action pursuant to subsection 18.4(2), does not err in giving consideration to the desirability of avoiding a multiplicity of proceedings."
[40]In the present case, of course, it has to be kept in mind that the applicants are test applicants in an application for judicial review that specifically requests an order that it "be treated and proceeded with as a proposed class action pursuant to rule 299.11 of the Federal Court Rules, 1998."
[41]This is also a case where, in a letter dated September 8, 2004 to the Court dealing with a case management conference requested by counsel for the applicants, counsel for the Minister has stated categorically that a "comparison of the written submissions in the judicial reviews and the Statements of Claims [sic] indicates that both the judicial reviews and the actions are based on similar grounds. The principal difference between the actions and the judicial reviews lies in the remedies sought."
[42]This was offered by the Minister as a rationale for proceeding with the judicial reviews, so that major issues in the actions could be predetermined in a summary fashion that would "provide all concerned with an opportunity to narrow the legal and factual issues in the proposed class actions. The Court's determination on the judicial review may even dispose of the actions and/or permit the parties to move directly to settlement."
[43]Faced with the evidentiary problems inherent in the judicial review applications, however, these words from counsel for the Minister appear to me to be a highly persuasive argument for conversion to allow an opportunity to have all matters decided in a consolidated action. In my view, given the evidentiary problems of the present record, procedural efficiencies point in the direction of conversion and consolidation.
Class Action Certification
[44]The applications for judicial review indicate that class action certification was part of the strategy from the very beginning. Rule 299.11 of the Federal Court Rules, 1998, makes it clear that class action certification can only occur on these applications if they are treated and proceeded with as an action under subsection 18.4(2) of the Federal Courts Act. The applicants' argument is that, if conversion is granted, the two reviews may be joined along with the two existing actions and, following an amendment to the pleadings and consolidation of all four actions, class certification can then be dealt with.
[45]At this stage, of course, we do not have the Minister's consent to class certification so that the Court is faced squarely with the problem of whether a manifest and continuing intention to seek class certification by the applicants should be a factor that is taken into account when exercising the Court's discretion under subsection 18.4(2).
[46]Although counsel in this motion have not drawn it to my attention, I take notice of the fact that the Rules Committee of the Federal Court of Canada circulated a discussion paper in 2000 entitled "Class Proceedings in the Federal Court of Canada" in which the Rules Committee noted that "in some types of immigration cases, claimants will often be making similar or identical arguments which could be litigated in a class proceeding," and that "issues can arise in applications that could involve substantial numbers of persons being affected in a similar manner to the applicant." The Rules Committee, therefore, came to the conclusion that its proposed class proceedings rules should "apply to both actions and applications." See Federal Court of Canada Rules Committee, Class Proceedings in the Federal Court of Canada: A Discussion Paper (Ottawa: June 9, 2000), at pages 24, 28 and 29.
[47]On November 21, 2002, a class action scheme was incorporated into the Federal Court Rules, 1998 as rules 299.1-299.42. Significantly, however, this scheme applies only to actions and not to applications. Hence the need for rule 299.11 that allows for a judicial review application in the Federal Court to come under the class action regime provided "it is to be treated and proceeded with as an action under subsection 18.4(2) of the Act."
[48]The rationale for rule 299.11 appears to be that the Rules Committee concluded that because judicial review applications in the Court of Appeal pursuant to section 28 [as am. by S.C. 2002, c. 8, s. 35] of the Federal Courts Act should not be heard as class proceedings, a rule was needed to permit applications at the trial division level to benefit from the class action scheme. Hence the introduction of rule 299.11. See "Proposed Regulations", Can.: Gaz. 2001.I.4400-4401.
[49]Subsection 18.4(2) of the Act does not say, of course, that conversion should be allowed where applicants wish to seek class certification and avail themselves of the benefits of rule 299.11; and rule 299.11 clearly contemplates, in my view, that a decision to proceed with an action under subsection 18.4(2) of the Act must have been made before rule 299.11 applies.
[50]However, the issue now before the Court is whether a declared and continuing intent to seek class action certification should be a factor for the Court to take into account when a motion for conversion under subsection 18.4(2) of the Act is before the Court. The applicants take the position that it is a material factor, while the Minister regards this as a highly complex issue that requires justification of conversion on other grounds before rule 299.11 can be invoked.
[51]It appears to me that in order to answer this question, the Court must fall back on Drapeau and its teaching that "subsection 18.4(2) places no limits on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action."
[52]It also seems to me that this Court has the authority to convert the applications presently before the Court into actions if it considers it appropriate to do so for the purpose of allowing the applicants to seek certification as a class action.
[53]Because it has always been the avowed intent of the applicants to seek class action certification, and because, in my view, the facts that lie behind these motions make it entirely reasonable and appropriate that they should do so (and this is not to anticipate or guess at the result of any such attempt), it seems to me that it would be tantamount to a denial of the rights of the applicants, and those they seek to represent, to deprive them of the opportunity to seek class action certification by denying them conversion under subsection 18.4(2) at this stage.
[54]I cannot grant or even consider the applicants' prayer for class action certification as part of this motion. But if I deny them conversion, I will, in effect, be making a decision to deny them class certification because, without conversion, such certification is not available to them under the present Rules.
[55]In my view, this is a fundamental access to justice issue that Drapeau says is a legitimate consideration when the Court is asked to exercise its discretion under subsection 18.4(2) of the Act.
Conclusions on Conversion
[56]On the facts before me I am prepared to allow conversion on two distinct and separate grounds. First of all, I believe that the narrow evidentiary considerations referred to in Macinnis are satisfied by the applicants. Once the evidentiary difficulties inherent in the present record and judicial review process are acknowledged, cost and procedural efficiencies also lend weight to the conversion argument. Secondly, on the specific facts of this case, I believe that the applicants and those they seek to represent should not be deprived of the right to seek class action certification and avail themselves of the advantage of rule 299.11 at this stage in the proceedings by the Court's refusal to exercise its discretion under subsection 18.4(2) to direct an action.
JOINDER AND CONSOLIDATION
[57]The applicants also request that, following conversion, IMM-577-04 and IMM-1467-04 be joined and/or consolidated with the actions in IMM-10140-03 and IMM-576-04 that arise out of the same factual context.
[58]It seems to me that the case for joinder (rule 102) and consolidation (rule 105) have already been made by the Minister in the letter of September 8, 2004, from Ms. Carbonell to the Court, in which it was asserted that "both the judicial reviews and the actions are based on similar grounds." My own review of the applications and the pleadings suggests that: we have two or more persons represented by the same solicitor in which common questions of law and fact arise out of the proceedings; the relief claimed arises from substantially the same set of facts; there is sufficient commonality to warrant consolidation within the terms of rule 105 and Sivamoorthy v. Canada (Minister of Citizenship and Immigration), 2003 FCT 307, and that the underlying policy objectives of avoiding a multiplicity of proceedings and promoting an inexpensive and expeditious determination of proceedings would be significantly promoted by consolidation. In the present case there are common parties, common legal and factual issues, common causes of action, parallel evidence and the likelihood that the outcome of one case will resolve the others. Nor can I see that joinder and/or consolidation would result in the minister suffering any appreciable prejudice or injustice.
[59]The Minister has indicated that, should the Court allow conversion in the present case, the Minister does not oppose consolidation provided the pleadings are amended to exclude extraordinary remedies and the plaintiffs are confined to seeking declaratory relief. The Minister appears to take the position that the inclusion of extraordinary relief in the resulting claim will give rise to insurmountable difficulties and confusion, particularly if the matter should come to appeal.
[60]This is consistent with the Minister's position, asserted in Ms. Carbonell's letter of September 8, 2004, that the "principal difference between the actions and the judicial reviews lies in the remedies sought."
[61]I cannot, however, discover any jurisprudence or principle that would rule out consolidation on the basis of the inclusion of extraordinary relief in the claim or the difficulties of dealing with extraordinary relief on appeal.
AMENDMENT TO PLEADINGS
[62]The final aspect of the relief that the applicants seek in this motion (in the event that conversion, joinder and consolidation are allowed) is leave to amend the pleadings in IMM-577-04, IMM-1467-04, IMM-576-04 and IMM-10140-03 into one statement of claim.
[63]In my view, leave to amend on the facts before me follows inevitably from conversion and consolidation. In accordance with rule 75, the Minister has not suggested any conditions that need to be imposed to protect her rights if leave to amend is granted. Consequently, I am prepared to allow the proposed amendments to reflect consolidation of the four actions following conversion of IMM-577-04 and IMM-1467-04.
ORDER
1. IMM-577-04 and IMM-1467-04 shall be treated and proceeded with as actions pursuant to subsection 18.4(2) of the Federal Courts Act.
2. IMM-577-04 and IMM-1467-04 shall be joined and consolidated with the actions in IMM-576-04 and IMM-10140-03.
3. Leave is hereby granted to the parties pursuant to rule 75 to amend the pleadings to reflect the joinder and consolidation referred to in 2 above, such amendments to be effected within 45 days of the date of this order.
4. No order is made as to costs.