IMM-2286-03
2005 FC 919
Mohsen Rasolzadeh (Representative Plaintiff)
v.
Her Majesty the Queen in right of Canada and The Minister of Citizenship and Immigration (Defendants)
Indexed as: Rasolzadeh v. Canada (F.C.)
Federal Court, Gibson J.--Toronto, April 11; Ottawa, April 13 and July 4, 2005.
Practice -- Judgments and Orders -- Consent Judgment -- Summary of proceedings leading to consent order, judgment, dismissal of proceedings encompassed by class action -- Plaintiffs "economic class" applicants for permanent residence under old Immigration Act allegedly unfavourably affected by transition to Immigration and Refugee Protection Act -- Plaintiffs/applicants commencing proceedings in Federal Court, but changes to transitional scheme achieving much of substantive relief sought -- Settlement negotiations ensuing, principal issue being time frame for clearance of outstanding pre-2002 applications -- Class action certified -- Terms of settlement finalized, notice and opt-out form delivered to class members -- Opt-out forms received, Court approving class action settlement -- Not in interests of justice to enforce rule requiring separate proceedings be commenced for each matter, decision sought to be reviewed as too many applicants in case at bar -- Consent order and judgment granted.
Practice -- Class Actions -- Plaintiffs "economic class" applicants for permanent residence under old Immigration Act commencing proceedings after allegedly being unfavourably impacted by Immigration and Refugee Protection Act transitional scheme -- Interim relief granted directing Minister of Citizenship and Immigration not finally reject pre-2002 "economic class" permanent residence applications -- Representative plaintiff's judicial review application treated, proceeded with as action--Conditions for certification of action, set out in Federal Courts Rules, s. 299.18(1), met -- Class action settled, therefore dismissed.
This was a summary of the proceedings that led to a consent order and judgment and to the dismissal of 148 proceedings that had been consolidated with a 149th proceeding into a single class action. The class action represented 12,545 plaintiffs/applicants who were in turn representative of a class of nearly 100,000 "economic class" applicants for permanent residence in Canada and their dependants.
The plaintiffs/applicants applied for permanent residence under the old Immigration Act. The new Immigration and Refugee Protection Act and regulations came into force on December 15, 2001 and the plaintiffs/applicants were allegedly unfavourably impacted by the transitional scheme announced. This led to the commencement of proceedings in the Federal Court by the plaintiffs/applicants. Interim relief was granted on June 20, 2003 directing the Minister of Citizenship and Immigration to refrain from finally rejecting applications for permanent residence in the "economic class" submitted before January 1, 2002. The interim relief order also directed the Minister to provide persons whose applications for visas were affected with a notice, although none were issued by reason of a series of Court orders. Changes to the transitional scheme came into effect in December 2003, achieving much of the substantive relief sought by the plaintiffs/applicants. Settlement negotiations ensued.
Held, the consent order and judgment was granted and the class action dismissed.
Preliminary discussions were initiated in December 2003 and the principal issue was the time frame for clearance of the outstanding inventory of "economic class" applications filed prior to 2002. Terms of settlement were finalized by the Fall of 2004.
Pursuant to an order on October 29, 2004, the representative plaintiff's application for judicial review was to be treated and proceeded with as an action, thus bringing the application within the scope of the class action rules. A motion for certification of the action was then filed. The five conditions for certification are set out in subsection 299.18(1) of the Federal Courts Rules. These conditions do not need to be as rigorously applied in a settlement context. Here, the five conditions for certification were met and the action was certified as a class action. Appended to the certification order was a notice to the class regarding the proposed settlement of the class action and a "Class member Opt-Out From" to be delivered to all class members in accordance with an "Implementation Instruction." The notice also identified four class counsel, and advised of guaranteed dates for selection decisions according to the dates of the original application.
594 opt-out forms were received and on March14, 2005, the Court approved the settlement of the class action. Final approval was obtained by order and judgment dated April 13, 2005.
Although the Federal Courts Rules imply that for each decision or matter sought to be judicially reviewed, a separate proceeding should be commenced, it would not have been in the interests of justice to enforce that rule in the case at bar as applications for judicial review encompassed within the scope of this matter, in one case, included 2,643 applicants. The dilemma presented by judicial review proceedings with many common issues but unique factual bases involving large numbers of individuals was left for another day.
statutes and regulations judicially
considered
Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4.
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.4(2) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28). |
| Federal Courts Rules, SOR/98-106, ss. 1 (as am. by SOR/2004-283, s. 2), 299.1 (as enacted by SOR/2002-417, s. 17), 299.11 (as enacted idem), 299.18 (as enacted idem), 299.37(1) (as enacted idem). |
| Immigration Act, R.S.C., 1985, c. I-2. |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27. |
cases judicially considered
considered:
Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189; (2003), 224 D.L.R. (4th) 739; 227 F.T.R. 272; 27 Imm. L.R. (3d) 157; 2003 FCT 211; Borisova v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 408; 237 F.T.R. 87; 29 Imm. L.R. (3d) 163; 2003 FC 859; Hollick v. Toronto (City), [2001] 3 S.C.R. 158; (2001), 205 D.L.R. (4th) 19; 42 C.E.L.R. (N.S.) 26; 13 C.P.C. (5th) 1; 24 M.P.L.R. (3d) 9; 277 N.R. 51; 152 O.A.C. 279; 2001 SCC 68; Gariepy v. Shell Oil Co. (2002), 21 C.L.R. (3d) 98 (Ont. S.C.J.).
CONSENT ORDER AND JUDGMENT approving the settlement of a class action instituted by applicants for permanent residence in the "economic class" and dismissing all proceedings encompassed by the class action. Consent order and judgment granted; class action dismissed.
appearances:
Ronald Foerster, Lorne Waldman, Richard Kurland, Dan Miller, class counsel.
Rudolf J. Kischer, Arturo S. Alafriz, Ray G. Baril, Q.C., David L. Rosenblatt, Stéphane Duval, Mitchell S. Brownstein, Colin R. Singer for members of the class.
Kevin Lunney, Helen C. H. Park, William B. Hardstaff, Daniel Latulippe for defendants.
solicitors of record:
Borden Ladner Gervais LLP, Toronto, Waldman & Associates, Toronto, Kurland, Tobe, Vancouver, Dan Miller, Toronto, class counsel.
Deputy Attorney General of Canada for defendants.
The following is a summary of immigration proceedings concluding with a consent order and judgment in a class action rendered in English by
Gibson J.:
INTRODUCTION
[1]By order and judgment dated April 13, 2005, the Court dismissed without costs 148 proceedings instituted before this Court, all of which had been consolidated with a 149th proceeding into a single class action under the foregoing style of cause. The substance of the Court's order and judgment was in the following terms:
2. This Order and Judgment constitutes:
(a) Full and final resolution and release of all claims and causes of action that have been or could have been raised by any Class Member, as that expression is defined in the Settlement Agreement annexed hereto as Schedule "II" to this Order and Judgment, other than those who "opted-out" of the Settlement Agreement in accordance with its terms, in the 149 Proceedings to which the Settlement Agreement applies, including claims for prerogative relief;
(b) Full and final release by all Class Members, other than those who "opted-out" of the Settlement Agreement in accordance with its terms, of the Minister of Citizenship and Immigration and each and every of his or her past, present and future servants, agents and officers, from any and all liability or damages for the processing of the Class Members' applications for immigrant visas;
(c) An Order of prohibition against all Class Members, other than those who opted-out of the Settlement Agreement in accordance with its terms, from making any claim or commencing or maintaining any action or proceeding against any third party, including any person or corporation or Her Majesty the Queen in Right of Canada arising from or in connection with any claim that could arise against the Minister of Citizenship and Immigration or his or her agents, servant[s] or officers for contribution or indemnity or any other relief other than by way of judicial review instituted by any Class Member of any decision denying his or her application for an immigrant visa.
3. The Minister of Citizenship and Immigration shall provide an interim report to this Court and to Class Counsel, showing the Minister's progress toward meeting the terms of the Settlement Agreement, at least every ninety (90) days following the date of this Order and Judgment, unless a judge of the Federal Court and Class Counsel agree in writing to extend the time for the provision of any such report.
4. The Injunction and Pre-Certification Notice Order, as defined in Article 1(d) of the Settlement Agreement is hereby cancelled and rendered of no force or effect. The reference to "Article 10(c) of the Settlement Agreement", contained in paragraph 3 of the Court's Order herein of the 14th of March, 2005 is amended to constitute a reference to "Article 10(d) of the Settlement Agreement".
5. In all other respects, this representative class action is dismissed without costs.
[2]The Court's order and judgment not only dismissed the 148 proceedings earlier referred to, it provided for the settlement of the class action that represented the 149th proceeding. The class action represented 12,545 plaintiffs and applicants before the Court and, according to an affidavit filed on behalf of the respondents on March 10, 2005, those plaintiffs and applicants were in turn representative of a class of very nearly 100,000 "economic class" applicants, that is to say, federally selected skilled workers, self-employed persons and entrepreneur and investor applicants for permanent residence in Canada. Since each "economic class" applicant equated to approximately 2.6 persons, taking into account dependants of each applicant, the total number of persons affected, from all corners of the world, amounted to approximately 260,000.1
[3]The events and processes leading to the consolidation of the various proceedings before this Court into a class action and to the settlement of the class action is the subject of this brief paper. It has been prepared for the purposes of the record, particularly in view of the fact that many of the proceedings that were consolidated were applications for judicial review which cannot be made the subject of class proceedings in this Court unless the Court directs that they be treated and proceeded with as an action.2
MILESTONES ALONG THE WAY
| (a) The announcement of December 15, 2001 and the introduction into the House of Commons of the Bill to enact the Immigration and Refugee Protection Act |
[4]The applicants and plaintiffs, and indeed all of the very nearly 100,000 "economic class" applicants, applied for immigration to Canada, as members of the "economic class" before the end of 2001. Their applications had not proceeded to a selection decision before March 31, 2003 and they were thus impacted, allegedly unfavourably, by the transition, in its original form announced December 15, 2001, from the scheme governing under the Immigration Act3 and related regulations, to the scheme under the Immigration and Refugee Protection Act4 and related regulations. The impact of that transition and of the inability of officials in the Department of Citizenship and Immigration to fully implement the transitional arrangements that had been put in place is well described in Dragan v. Canada (Minister of Citizenship and Immigration)5 and need not be repeated here. In the result, the first of the proceedings within the scope of this eventual class action, with one notable exception that will not be commented on here, was commenced on March 27, 2003. Additional proceedings followed to December 11, 2003.
| (b) Interim relief |
[5]By mid-June 2003, some 6,000 "economic class" applicants were parties to proceedings commenced before this Court. On June 17, 2003, the Court considered applications for interim relief in favour of potential class members. By order dated June 20, 2003, amended July 10, 2003, interim relief in the following terms was granted:
| 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 skilled worker, self-employed, entrepreneur and investor applicants referred to in subsection 8(1) of the Immigration Regulations 1978, other than provincial nominees, and who have not been provided notice of a decision thereon before 20th of June, 2003, save and except in the cases of such applicants who notify the Respondent in writing of their consent to a final rejection or where a failure to finally reject the application would violate the terms of a settlement between the applicant and the Respondent, or of any Order of a Canadian court, which settlement was formally entered into, or which court order was issued before, the 20th of June, 2003. This direction shall continue in force until further order of this Court. |
| 2. The Respondent is further directed forthwith 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, in the form set out as Appendix "A" to this Order. |
Reasons in support of the Court's order were issued on July 10, 2003 [Borisova v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 408 (F.C.)].
[6]The first paragraph of the order was determined upon following consideration of the well-known factors to be considered on an application for an injunction, that is to say, whether or not a serious issue to be tried on the matters brought before the Court on behalf of the applicants and plaintiffs exists, secondly, whether or not the applicants and plaintiffs would suffer irreparable harm if an injunction were not issued, and finally, the balance of convenience between the applicants/plaintiffs on the one hand and the respondents on the other. The Court found in favour of the applicants/plaintiffs on the first two issues. On the third issue, balance of convenience, the Court wrote [at paragraph 30]:
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.
[7]With regard to the second paragraph of the order, the Court wrote [at paragraph 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.6
[8]While the injunctive and pre-certification notice order may have remained in force, in whole or in part, until repealed by the order and judgment issued on April 13, 2005, its direct impact was somewhat limited. The respondent Minister continued to process the applications for permission to enter Canada of members of the "economic class" made by persons who were affected. Where the result of that processing was a decision in favour of an applicant, a visa issued. Where the result did not favour an applicant, no rejection was issued but the result was placed "in inventory" so that, with or without further consideration, on the lifting of the injunction, a rejection notice could follow. The notice requirement reflected in the second paragraph of the order inflicted a very substantial burden on the respondent Minister. While much preliminary work was done towards complying with the notice requirement, in the end result, the notice never issued by reason of a series of orders of this Court granting delays in implementation of the obligation created. Once again, the obligation was finally lifted by the order and judgment of April 13, 2005.
(c) Elimination of the transitional scheme
[9]On September 18, 2003, effective December 1, 2003, the then-Minister of Citizenship and Immigration announced changes to the transitional scheme applicable to "economic class" applicants that dramatically affected the applicants and plaintiffs before the Court and other members of the putative class. In his affidavit earlier referred to, David Manicom described the impact of the announcement in the following terms:
The proposed changes were made and came into effect on December 1, 2003 (December regulations). The December regulations effectively erased the March 31, 2003 deadline for assessments under the former Act. Under the December regulations, all those who had applied in federal economic categories prior to January 1, 2002 are being assessed under the former Immigration Act and regulations, as well as under the IRPR [the Immigration and Refugee Protection Regulations], against the new, lower pass mark of 67 points, whichever is most favourable.
The benefit of these regulatory changes was also extended to all those applicants who applied prior to January 1, 2002 and whose applications had been refused following the expiry of the transitional scheme on March 31, 2003 or who had withdrawn their applications between January 1, 2002 and December 1, 2003. New transitional classes were created for their benefit, permitting them to apply for assessment under the new transitional scheme.
Finally, MCI committed to doing selection assessments of the affected cases at each mission in a generally chronological order, and to treat new applications under the newly created Transitional Classes on the basis of the original application date.
It should be noted that this latter commitment is with regard to applications at the selection stage. Applications which had received a positive selection decision prior to the entry into force of the December regulations are still to be processed to conclusion. Freezing the processing of applications which were beyond the selection stage would have led to the expiry of medical results, police certificates and other time-sensitive documents. It would also have jeopardized MCI's ability to meet 2003 and 2004 levels commitments.
[10]In effect, the announced changes achieved much of the substantive relief that the applicants and plaintiffs before the Court and other members of the putative class were seeking. In an affidavit sworn on March 3, 2005, and filed in support of the motion brought by class counsel seeking approval by the Court of the settlement agreement entered into, Mr. Lorne Waldman, one of the class counsel, commented on the September 18, 2003 announcement in the following terms:
I have carefully reviewed the regulations which are now in effect in order to determine whether or not they adequately address the issue of retroactivity as it was being applied to the class. I am satisfied that the combination of the elimination of retroactivity for all pending applications combined with the measures that allow class members who have been rejected to, in essence, re-open their applications without cost, are adequate to protect all of the members of the class. I am satisfied that these regulations have eliminated for the members of the class all of the effects of the government's previous decision to apply the new regulations retroacti-vely. . . .
Thus, the stage was set for settlement negotiations.
(d) The settlement negotiations and the draft agreement
[11]To the best of the Court's knowledge, preliminary discussions regarding settlement were initiated on behalf of the respondents in December 2003. The principal issue was the timeframe for clearance of the "backlog", that is to say the outstanding inventory of "economic class" applications filed prior to 2002 and related applications referred to in the quotation from David Manicom's affidavit that appears above. While the Court was not directly involved in the settlement negotiations, counsel on both sides were very helpful in keeping the Court informed, and consulted the Court on a number of occasions during the eight to ten-month period of negotiations and finalization of the details of the agreement.
[12]The issue of processing times was complex. The number of applications, and thus applicants and their dependants, is large. They are distributed throughout the world. Responsibility for processing their applications lies with seven processing centres in Africa and the Middle East, ten processing centres in Asia and the Pacific region, ten processing centres in Europe and thirteen processing centres in the Western Hemisphere.
[13]Annual immigration levels are presented to Parliament. According to the affidavit of David Manicom, they are a "cornerstone of Canadian government policy and reflect difficult choices that must be made between ensuring Canada's economic prosperity on the one hand and re-uniting families on the other." Resources available for processing are limited and geographically widespread. Approval rates are entirely unpredictable. Processing times vary dramatically. The obvious "simple" solution of injecting additional resources is not in the least simple. Finally, the infrastructure in place in Canada to aid in the transition of new immigrants to Canada to Canadian conditions and realities, while essential to the smoothest possible transition, is also limited.
[14]On the other side of the equation, the members of the putative class had already been waiting for decisions for a significant period of time, in some cases a substantial period of time. In effect, the lives of the applicants and their family members were "on hold." Their expectations and those of their counsel and other advisers were high.
[15]By the early autumn of 2004, terms of settlement had essentially been finalized.
[16]The settlement agreement, to this point a draft settlement agreement, extended to 14 pages which, together with the 5 schedules to the agreement, led to a total of 57 pages. The settlement agreement itself consists of a preamble setting out the background to the litigation and its current status. There follows the substance of the agreement which is comprised of 20 articles including articles on interpretation, on tax liabilities, on "no oral modifications or waivers", and on enurement, governing law and counterparts. More substantively, the agreement includes articles on class definition, the benefits of the settlement to class members, orders of this Court that would be sought pursuant to the agreement, an article dealing with delivery of a notice to the class by the Department of Citizenship and Immigration, posting of information by the Department of Citizenship and Immigration on its Web site and on the Internet dealing with the proposed class action, the statement of claim, the draft settlement agreement itself and the notice to the class, an article on the right of a class member to submit written objections to the draft settlement agreement, another on finalization of the settlement agreement by this Court and finally, an article on class members' right to "opt-out of the final settlement agreement."
[17]Three articles deal with the right of the Department of Citizenship and Immigration to terminate the final settlement agreement in strictly defined circumstances, and the effect of termination by the Department of Citizenship and Immigration.
[18]The Department's right to terminate is of particular interest but will not be reviewed further since the right was not exercised.
[19]Finally, the agreement provides for monitoring reports by the Department of Citizenship and Immigration following final approval by this Court of the settlement, for the payment of amounts to counsel for applicants and plaintiffs before the Court, and lastly, for a final order of this Court. The schedules to the agreement include the "court approved" legal notice from Citizenship and Immigration Canada to be sent to all class members and the "Class Member Opt-Out Form."
| (e) The class action, certification, notice to class members and the opportunity to "opt-out" |
[20]A motion on consent was filed on October 8, 2004 which resulted in an order of October 29, 2004 granting leave for judicial review on the application of Mohsen Rasolzadeh. Mr. Rasolzadeh had applied for permanent residence in Canada in the "economic class" on or about February 2, 2000 at the Canadian Embassy in Ankara, Turkey. The order further provided that, pursuant to subsection 18.4(2) of the Federal Courts Act, Mr. Rasolzadeh's application for judicial review was to be treated and proceeded with as an action, in the result, bringing Mr. Rasolzadeh's application for judicial review within the scope of the Court's class action rules. Finally, Mr. Rasolzadeh was granted leave to file a statement of claim in a form attached to his notice of motion.
[21]A notice of motion for certification of Mr. Rasolzadeh's action was filed, once again on consent.
[22]The Federal Courts Rules are quite specific on the preconditions to certification and the matters to be considered on a motion for certification. For ease of reference, section 299.18 [as enacted by SOR/2002-417, s. 17] of the Rules is set out in a schedule to this summary. In the circumstances of this matter, subsection 299.18(3) had no application.
[23]Counsel identified as "class counsel" in the settlement agreement and counsel for the respondents filed extensive and very helpful submissions in support of certification. They noted that subsection 299.18(1) of the Rules uses mandatory language to indicate that the Court must grant certification in the event that the five conditions in that rule are met and subsection 299.18(3) does not apply. They noted that the class action scheme provided for in this Court's Rules, while essentially new and to this point not the subject of detailed consideration, provides criteria for certification identical to the criteria in class action legislation in certain provinces, particularly the criteria provided in the Class Proceedings Act of British Columbia.7
[24]Counsel urged that the Court's class action rules should be construed generously. In support of this proposition, in addition to one other authority, counsel cited Hollick v. Toronto (City)8 where the Chief Justice, for the Court, wrote at paragraph 14:
The legislative history of the Class Proceedings Act, 1992, [of Ontario] makes clear that the Act should be construed generously.
The Chief Justice continued at paragraph 15:
The Act reflects an increasing recognition of the important advantages that the class action offers as a procedural tool. As I discussed at some length in Western Canadian Shopping Centres . . . class actions provide three important advantages over a multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public. In proposing that Ontario adopt class action legislation, the Ontario Law Reform Commission identified each of these advantages: . . . In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters. [Citations omitted; emphasis added.]
Counsel urged that, in cases of certification as part of a settlement, as here, courts have been less stringent in the application of conditions such as those in subsection 299.18(1) of the Rules than they might otherwise be. For this proposition, counsel cited Gariepy v. Shell Oil Co.9 where Justice Nordheimer wrote [at paragraph 27]:
The requirements for certification in a settlement context are the same as they are in a litigation context . . . their application need not . . . . be as rigorously applied in the settlement context, principally because the underlying concerns over the manageability of the ongoing proceeding are removed.
[25]Against the foregoing general principles, counsel reviewed the facts underlying this class action against each of the five criteria in subsection 299.18(1) of the Rules citing very helpful authorities from provincial courts and the Supreme Court of Canada. In the result, I was satisfied that the five conditions for certification set out in subection 299.18(1) were met.
[26]By order dated November 10, 2004, the Court certified Mr. Rasolzadeh's action as a class action. The order defined the persons constituting the "class", appointed Mr. Rasolzadeh as representative plaintiff for the class, and identified the common issues among the members of the class. It appended to the order a "Notice" to the class and a "Class member Opt-Out Form." The order directed that the "Notice" and "Opt-Out form" be delivered by the respondent Minister to all class members, "as soon as practical". It required that the delivery to class members be made in accordance with a rather complex "implementation instruction", also appended to the order, and that all steps within the control of the defendants be taken to ensure the mailing or other final distribution of the notice to the class members be completed by December 9, 2004. Finally, the order provided that the earlier notice to provide pre-certification notice to proposed class members reflected in the Court's order of June 20, 2003, was cancelled, an impact that was confirmed in two later orders of the Court. Four class counsel were identified in the notice which was entitled "Notice of Proposed Settlement of a Class Action Lawsuit in Canada, Relating to Certain Economic Class Applicants Seeking Immigrant Visas."
[27]The notice provided an opportunity extending to March 1, 2005, for class members to file objections to the proposed settlement of the class action, which, itself, was briefly described in the notice. Objections were to be sent to the Court and to one of the class counsel identified for that purpose.
[28]Pursuant to the settlement agreement, the notice advised that members of the class who submitted their applications for visas in the "economic class" in 1999 or earlier would receive selection decisions by February 1, 2006, that those who submitted their applications in 2000 would receive their selection decisions by February 1, 2007, and that those who submitted their applications in 2001 would receive their selection decisions by August 1, 2008. Not surprisingly, a number of objections were filed, essentially all being based on the additional time that would elapse before any selection decision would be guaranteed.
| (f) Interim approval of the settlement |
[29]As earlier noted, class members had until March 1, 2005, to respond to the notice regarding the proposed settlement that was provided to them sometime in December 2004 or January 2005. With the expiration of the response period, by motion dated March 9, 2005, class counsel sought an order approving the settlement of the class action and consequential and related relief. By order dated March 14, 2005, following a hearing in Toronto with video conference connections to Montréal, Edmonton and Vancouver, the Court essentially granted the class counsels' motion. The substance of the Court's order was in the following terms:
- The settlement of this action as set out in the draft Settlement Agreement dated November 3, 2004 between the Minister of Citizenship and Immigration ("MCI") and the 17 Proceedings Lawyers, as defined therein (the "Settlement Agreement") attached to the Notice of Motion as Tab "A" is approved.
- The Injunction and Pre-Certification Notice Order, as defined in Article 1(d) of the Settlement Agreement, shall be cancelled and rendered of no force or effect, upon signification of MCI, in accordance with Article 10(c) [sic, should read (d)] of the Settlement Agreement that MCI intends to proceed with the settlement.
- The Settlement Agreement, as approved by this Court shall be posted by MCI on its web site, along with the Class Member Opt-Out Form, no later than March 18, 2005. Such materials shall remain posted on MCI's web site until the date on which this Court grants its final approval of the settlement in accordance with article 15 of the Settlement Agreement.
A total of 594 opt-out forms were received by class counsel.
[30]The Minister of Citizenship and Immigration formally notified the Court of the defendants' intention to proceed with the settlement on April 8, 2005. That notification represented an acknowledgement by the defendants that circumstances justifying withdrawal by the defendants from the settlement agreement, in accordance with its terms, did not exist or, if they did, the Minister had determined not to exercise the option to withdraw.
| (g) Final settlement approval |
[31]By motion filed April 11, 2005, class counsel, on behalf of the representative plaintiff, sought final approval of the settlement of the class action.
[32]By order and judgment dated April 13, 2005, the Court granted the essence of the relief sought. All proceedings before the Court that were encompassed by the class action were dismissed without costs. The substance of the order and judgment is quoted in paragraph 1 of this summary.
CONCLUSION
[33]This summary constitutes the "reasons" that were contemplated by a paragraph 6 in the order of April 13, last. In fact, they are not reasons but are more accurately a "summary", and indeed a rather brief summary, of steps in the case management process leading to the eventual first settlement of a class action in this Court that was achieved by the order and judgment. The process involved the initiation of 149 separate proceedings in this Court. It involved approximately 20 teleconferences connecting the Court and counsel in Montréal, Toronto, Edmonton and Vancouver as well as 3 hearings in Toronto that were audio and video linked to Montréal, Edmonton and Vancouver.
[34]In at least one small respect, the Federal Courts Rules were rather badly bent. Those Rules at least imply that for each decision or matter sought to be judicially reviewed before the Court, a separate proceeding should be commenced. Applications for judicial review encompassed within the scope of this matter in fact, in one case, included 2,643 applicants, each with his or her own decision or matter to be reviewed on particular and unique facts. This Judge is satisfied that it would not have been in the interests of justice to enforce the one decision or matter/one application for judicial review rule in this particular context. That is not to say that if the totality of the proceedings before the Court had not been converted to a class action, it would have been within the capacity of this Court to effectively and with justice deal with an application for judicial review involving so many applicants and decisions or matters.
[35]A solution to the dilemma presented by judicial review proceedings with many common issues but unique factual bases and involving large numbers of individuals, is for another day.
POSTSCRIPT
[36]The Court wishes to extend its thanks to all counsel who were part of this process. As earlier noted, applicants and plaintiffs were represented by 17 separate counsel situated in Montréal, the Greater Toronto Area, Edmonton and Vancouver. Particular thanks must go to the 4 counsel from among the 17 who were eventually nominated as class counsel. The respondents were represented by counsel from the Department of Justice situated, once again, in Montréal, Toronto, Edmonton and Vancouver.
[37]The goodwill, imagination and determination exhibited by all counsel made the Court's role in the case management of these proceedings and in their eventual settlement interesting, challenging and, eventually, successful. This Judge, on behalf of the Court, is satisfied that the eventual outcome, at least to this point, represents a model of a just, reasonable and relatively inexpensive determination of all of the proceedings at issue.
[38]The Court looks forward to monitoring the regular reports from the respondents dealing with progress toward elimination of the backlog of relevant applications for entry to Canada in the "economic class."
SCHEDULE
(Paragraph 22)
299.18 (1) Subject to subsection (3), a judge shall certify an action as a class action if
(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(d) a class action is the preferable procedure for the fair and efficient resolution of the common questions of law or fact; and
(e) there is a representative plaintiff who
(i) would fairly and adequately represent the interests of the class,
(ii) has prepared a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying class members how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff and the representative plaintiff's solicitor.
(2) All relevant matters shall be considered in a determination of whether a class action is the preferable procedure for the fair and efficient resolution of the common questions of law or fact, including whether
(a) questions of law or fact common to the members of the class predominate over any questions affecting only individual members;
(b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;
(c) the class action would involve claims that are or have been the subject of any other action;
(d) other means of resolving the claims are less practical or less efficient; and
(e) the administration of the class action would create greater difficulties than those likely to be experienced if relief were sought by other means.
(3) If the judge determines that a class includes a subclass whose members have claims that raise common questions of law or fact not shared by all the class members so that the protection of the interests of the subclass members requires that they be separately represented, the judge shall not certify the action as a class action unless there is a representative plaintiff who
(a) would fairly and adequately represent the interests of the subclass;
(b) has prepared a plan for the action that sets out a workable method of advancing the action on behalf of the subclass and of notifying subclass members how the proceeding is progressing;
(c) does not have, on the common questions of law or fact for the subclass, an interest that is in conflict with the interests of other subclass members; and
(d) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff and the representative plaintiff's solicitor.
1 Affidavit of David Manicom filed March 10, 2005, defendants' motion record, filed March 19, 2005.
2 See the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8, s. 14)], s. 18.4(2) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28], and ss. 299.1 [as enacted by SOR/2002-417, s. 17] and 299.11 [as enacted idem] of the Federal Courts Rules, SOR/98-106 [s. 1 (as am. by SOR/2004-283, s. 2)].
3 R.S.C., 1985, c. I-2.
4 S.C. 2001, c. 27 in force, with some exceptions not applicable here, June 28, 2002.
5 [2003] 4 F.C. 189 (T.D.).
6 S. 299.37(1) [as enacted by SOR/2002-417, s. 17] of the Federal Courts 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.
7 R.S.B.C. 1996, c. 50, s. 4.
8 [2001] 3 S.C.R. 158.
9 (2002), 21 C.L.R. (3d) 98 (Ont. S.C.J.).