Back v. Canada (Citizenship and Immigration)

Back v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2016-02-29
Neutral citation
2016 FC 257
File numbers
IMM-1-13, IMM-6828-12
Notes
Digest
Decision Content
Date: 20160229
Dockets: IMM-6828-12
IMM-1-13
Citation: 2016 FC 257
Ottawa, Ontario, February 29, 2016
PRESENT: The Honourable Mr. Justice Russell
Docket: IMM-6828-12
BETWEEN:
HAIYAN GONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-1-13
AND BETWEEN:
YOUNG MI BACK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] These are applications pursuant to s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for a writ of mandamus, compelling the Respondent to process the Applicants’ permanent residence applications under the Foreign Skilled Worker [FSW] class, which were terminated by s 87.4(1) of the Act.
II. BACKGROUND A. Legislative Amendments [2] Legislative amendments to the Act have eliminated the legal obligation of Citizenship and Immigration Canada [CIC] to process every FSW application and request received. The amendments, made by way of Bill C-50, also empowered the Minister of Citizenship and Immigration [Minister] to implement Ministerial Instructions in regards to processing priorities and requests in accordance with the Government of Canada’s immigration goals, including reduced application processing times, and greater overall efficiency.
[3] The first of these Ministerial Instructions was published in the Canada Gazette on November 29, 2008 as s 87.3 of the Act [MI-1]. The subsection applied to applications and requests received on or after February 27, 2008 and served to limit the processing of new FSW applications to those who met specific eligibility criteria, including a priority occupation list.
[4] More recently, in April 2012, amendments have also included the insertion of s 87.4 into the Act. This subsection eliminated part of the backlog of FSW applications by cancelling those made prior to February 27, 2008, where no selection decision had been made before March 29, 2012.
B. Litigation Background [5] Former counsel for the Applicants initiated a series of applications for leave and judicial review in 2011, seeking mandamus for a significant number of pending FSW applications. The applicants fell into two distinct groups: those who had submitted FSW applications prior to the coming into force of s 87.3 [Pre-Bill C-50 Group], and those who had submitted FSW applications after the coming into force of s 87.3, and were therefore subject to the conditions of MI-1 [MI-1 Group].
[6] The litigants were brought under case-management and Emam v Canada (Minister of Citizenship and Immigration), 2012 FC 1477 [Emam], was selected as the lead case. Under the direction of Justice Barnes, the parties prepared a protocol to promote expediency and better organize the litigation [the Protocol]. Setting out the “common lead issues to be resolved,” the Protocol stated:
13. If the Court disposes of the representative case on the basis of the Ministerial Instructions, the Applicants agree that this would therefore result in applications being dismissed. Accordingly, the other Applicants will discontinue their applications should the Federal Court’s decision not be appealed to the Federal Court of Appeal.
14. If the Respondent’s arguments fail, the Respondent will be guided by the decisions in the representative cases, subject to appeal rights being exhausted, on the possible disposition of the remaining cases held in abeyance.
The Protocol was signed by the parties in February 2012 and two representative cases were chosen for the litigation: IMM-9634-11 [Liang] represented the Pre-Bill C-50 Group and IMM-137-12 [Gurung] represented the MI-1 Group: Liang v Canada (Citizenship and Immigration), 2012 FC 758.
[7] In Liang, above, the Court found that the delay in processing Mr. Liang’s application for a skilled worker visa exceeded, without any explanation or justification, the Minister’s own projected time frame. Finding that there had been an implied refusal to perform a legal duty, Justice Rennie granted mandamus. In Gurung, above, the Court found that the Minister had provided justification for the delay by way of a concern regarding misrepresentation. As such, relief was declined.
[8] Following Liang, those litigants whose FSW applications had been terminated by s 87.4 sought direction as to how the decision should be applied to enable their applications to be processed. Mr. Justice Barnes decided that the relief in Liang did not apply and that the applications remained terminated under s 87.4: Emam, above.
[9] The Federal Court and the Federal Court of Appeal heard challenges to the validity of s 87.4, and confirmed that it did indeed terminate FSW applications, and did not violate the Canadian Bill of Rights, the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter], the rule of law, or judicial independence: Tabingo v Canada (Citizenship and Immigration), 2013 FC 377 [Tabingo]; Austria v Canada (Citizenship and Immigration), 2014 FCA 191 at paras 75-77 [Austria].
[10] In February 2014, the Court received correspondence in respect of the applications of the Pre-Bill C-50 Group that the Respondent now regarded as terminated, but that had been held in abeyance pending the result in Austria, above. The parties to this litigation decided that this group of applications should be divided into the two representative cases: Back v Canada (Citizenship and Immigration) [Back] and Gong v Canada (Citizenship and Immigration) [Gong].
C. Back and Gong [11] The determination of whether an application appropriately comes under Back is based on whether the application was filed with the Federal Court before the decision in Liang, above. The determination of whether an application appropriately comes under Gong is based on whether the application was filed with the Federal Court after the decision in Liang.
[12] Ms. Young Mi Back is a Korean citizen and her application is the lead case for applications challenging s 87.4 and whose inclusion under the Protocol is not disputed. Ms. Back filed her FSW application on January 15, 2008. Her case represents those applicants who applied prior to February 27, 2008.
[13] Ms. Haiyan Gong is the lead for all applications challenging s 87.4 and whose inclusion under the Protocol is disputed, as well as the effect of a selection decision after March 29, 2012. Ms. Gong filed her FSW application on September 1, 2006. Her case represents applicants who applied after February 27, 2008 but before June 25, 2010.
III. MATTERS UNDER REVIEW [14] The two representative cases for these applications were decided similarly. As a result of both applications being made before February 27, 2008, and having not received selection decisions prior to March 29, 2012 neither was processed by CIC. The applications were terminated on June 29, 2012 by operation of s 87.4(1) of the Act.
IV. ISSUES [15] As argued before me at the hearing of this application, the principal issues to be addressed by this Court are:
1. The enforceability of the Protocol signed by the parties;
2. The applicability and constitutionality of s 87.4 of the Act;
3. Whether the Applicants relied to their detriment on the legitimate expectation that their applications would be processed to completion;
4. Whether the Minister can be compelled by s 25.2 of the Act to process the Applicants’ FSW applications;
5. Whether s 87.4 of the Act breaches judicial independence and the Applicants’ access to justice rights; and,
6. Whether the application of s 87.4 of the Act is an abuse of process.
V. STANDARD OF REVIEW [16] Essentially, this is an application for mandamus. The Applicants are asking the Court to order the processing of their FSW applications. Consequently, the Court will apply the well-established principles set out by Justice de Montigny in Singh v Canada (Citizenship and Immigration), 2010 FC 757 at para 48:
The necessary conditions to be met for the issuance of a writ of mandamus have been set out by the Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, at para. 45; aff’d [1994] 3 S.C.R. 1100) and aptly summarized by my colleague Justice Danièle Tremblay-Lamer in the following terms:
(1) there is a public legal duty to the applicant to act;
(2) the duty must be owed to the applicant;
(3) there is a clear right to the performance of that duty, in particular:
(a) the applicant has satisfied all conditions precedent giving rise to the duty;
(b) there was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; and
(4) there is no other adequate remedy.
Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33, (T.D.) at para. 8
VI. STATUTORY PROVISIONS [17] The following provisions of the Act are applicable in this proceeding:
Humanitarian and compassionate considerations – Minister’s own initiative
Séjour pour motif d’ordre humanitaire à l’initiative du ministre
25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
25.1 (1) Le ministre peut, de sa propre initiative, étudier le cas de l’étranger qui est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 — ou qui ne se conforme pas à la présente loi; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.
Public policy considerations
Séjour dans l’intérêt public
25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.
25.2 (1) Le ministre peut étudier le cas de l’étranger qui est interdit de territoire ou qui ne se conforme pas à la présente loi et lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, si l’étranger remplit toute condition fixée par le ministre et que celui-ci estime que l’intérêt public le justifie.
Instructions on Processing Applications and Requests
Instructions sur le traitement des demandes
87.3 (1) This section applies to applications for visas or other documents made under subsections 11(1) and (1.01), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada.
87.3 (1) Le présent article s’applique aux demandes de visa et autres documents visées aux paragraphes 11(1) et (1.01) — sauf à celle faite par la personne visée au paragraphe 99(2) —, aux demandes de parrainage faites au titre du paragraphe 13(1), aux demandes de statut de résident permanent visées au paragraphe 21(1) ou de résident temporaire visées au paragraphe 22(1) faites par un étranger se trouvant au Canada, aux demandes de permis de travail ou d’études ainsi qu’aux demandes prévues au paragraphe 25(1) faites par un étranger se trouvant hors du Canada.
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration par le gouvernement fédéral.
(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions:
(3) Pour l’application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment des instructions:
(a) establishing categories of applications or requests to which the instructions apply;
(a) prévoyant les groupes de demandes à l’égard desquels s’appliquent les instructions;
(a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request;
(a.1) prévoyant des conditions, notamment par groupe, à remplir en vue du traitement des demandes ou lors de celui-ci;
(b) establishing an order, by category or otherwise, for the processing of applications or requests;
(b) prévoyant l’ordre de traitement des demandes, notamment par groupe;
(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and
(c) précisant le nombre de demandes à traiter par an, notamment par groupe;
(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.
(d) régissant la disposition des demandes dont celles faites de nouveau.
(3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect.
(3.1) Les instructions peuvent, lorsqu’elles le prévoient, s’appliquer à l’égard des demandes pendantes faites avant la date où elles prennent effet.
(3.2) For greater certainty, an instruction given under paragraph (3)(c) may provide that the number of applications or requests, by category or otherwise, to be processed in any year be set at zero
(3.2) Il est entendu que les instructions données en vertu de l’alinéa (3)c) peuvent préciser que le nombre de demandes à traiter par an, notamment par groupe, est de zéro.
(4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister.
(4) L’agent — ou la personne habilitée à exercer les pouvoirs du ministre prévus à l’article 25 — est tenu de se conformer aux instructions avant et pendant le traitement de la demande; s’il ne procède pas au traitement de la demande, il peut, conformément aux instructions du ministre, la retenir, la retourner ou en disposer.
(5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.
(5) Le fait de retenir ou de retourner une demande ou d’en disposer ne constitue pas un refus de délivrer les visa ou autres documents, d’octroyer le statut ou de lever tout ou partie des critères et obligations applicables.
(6) Instructions shall be published in the Canada Gazette.
(6) Les instructions sont publiées dans la Gazette du Canada.
(7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act.
(7) Le présent article n’a pas pour effet de porter atteinte au pouvoir du ministre de déterminer de toute autre façon la manière la plus efficace d’assurer l’application de la loi.
Federal Skilled Workers
Travailleurs qualifiés (fédéral)
87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.
87.4 (1) Il est mis fin à toute demande de visa de résident permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la conformité de la demande aux critères de sélection et autres exigences applicables à cette catégorie.
(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.
(2) Le paragraphe (1) ne s’applique pas aux demandes à l’égard desquelles une cour supérieur a rendu une décision finale, sauf dans les cas où celle-ci a été rendue le 29 mars 2012 ou après cette date.
(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.
(3) Le fait qu’il a été mis fin à une demande de visa de résident permanent en application du paragraphe (1) ne constitue pas un refus de délivrer le visa.
(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.
(4) Les frais versés au ministre à l’égard de la demande visée au paragraphe (1), notamment pour l’acquisition du statut de résident permanent, sont remboursés, sans intérêts, à la personne qui les a acquittés; ils peuvent être payés sur le Trésor.
(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).
(5) Nul n’a de recours contre sa Majesté ni droit à une indemnité de sa part relativement à une demande à laquelle il est mis fin en vertu du paragraphe (1).
VII. ARGUMENT A. Applicants (1) Subsection 87.4 of the Act [18] The Applicants submit that, following the decision in Liang, the Respondent refused to apply the signed Protocol and asserted that s 87.4 of the Act barred it from doing so. The Applicants say that where s 87.4 prevents the application of the Protocol, its constitutionality as well as its operability and applicability, is challenged.
[19] The Applicants also say that application of the Protocol would not violate s 87.4 and it would not violate the law to apply the Protocol by way of s 25 of the Act. The Applicants further submit that in the event that application of the Protocol is a violation of the law, ss 87.4(2) and (5) are unconstitutional and of no force and effect because these two subsections, effectively, tell the Court what and how to decide cases currently before it. This is something, the Applicants submit, that is wholly and flagrantly unconstitutional, upsetting the individual Charter right to due process (including access to judicial review as well as the right to sue in tort against individuals), and the judicial independence of the Court: Dunsmuir v New Brunswick, 2008 SCC 9 at paras 27-31 [Dunsmuir].
[20] The Applicants submit that the present applications (both pre- and post-Liang) were made prior to s 87.4’s coming into force. The application of the subsection therefore represents an inappropriate and retroactive instruction by the legislature to a Superior Court.
[21] The Applicants further submit that should the Court find s 87.4(2) to be unconstitutional, s 87.4(1) cannot be interpreted to be applicable to the Applicants’ cases, as they were filed prior to the coming into force of s 87.4(1) on June 29, 2012. To terminate applications, which are in the Court and filed prior to the coming into force of the very section that purports to terminate them, would breach the independence of the judiciary doctrine, as well as the constitutional right to judicial review.
[22] Noting the vast jurisprudence which has confirmed the maxim that there is no right without a remedy, the Applicants submit that to deny them the right to argue the appropriate remedy is to deny their constitutional right to judicial review, for which leave has been granted: R v Mills, [1986] 1 SCR 863; Nelles v Ontario, [1989] 2 SCR 170.
(2) Abuse of Process [23] The Applicants further argue that the Respondent’s position constitutes an abuse of process that ought to be remedied by the Court for a number of reasons. First, the Respondent’s officials were aware, prior to signing the Protocol, that the decision to terminate the FSW decisions had already been made. Second, the relevant applications had been filed prior to s 87.4’s enactment. Third, notwithstanding issues relating to s 87.4, s 25 of the Act remains available to apply the terms of the Protocol. Fourth, the Respondent improperly asserts that the Protocol issue is governed by res judicata as a result of the decision in Tabingo, above.
(3) Alternative Relief via s 25 [24] The Applicants further submit that, as a matter of the proper administration of justice, and curing an abuse of process, even if ss 87.4(2) and (5) are constitutional, the Protocol, in its substance, ought to be enforced by way of s 25 of the Act, on humanitarian and compassionate, and public policy grounds, in order to maintain the integrity of the administration of justice and underlying Rule of Law.
(4) Costs [25] The Applicants submit that the circumstances of the case warrant the awarding of solicitor-client costs.
B. Respondent (1) Subsection 87.4 of the Act [26] The Respondent submits that many of the Applicants’ arguments have already been thoroughly considered and dismissed by the Court and the Federal Court of Appeal, and s 87.4 has already been ruled as valid law.
[27] The Respondent says that, under the Protocol, the results in the two representative cases were to guide the Respondent’s approach to processing the other FSW applications. However, the Protocol does not establish any vested right to processing or the expectation of a global result. The result in Liang was not, as suggested by the Applicants, fully successful. Its applicability to the present applications should be scrutinized, particularly given that the decision is silent about FSW applications terminated by law.
[28] The Protocol indicated that the Respondent would be “guided” by the result in Liang, but did not go so far as to bind the Respondent to any particular relief. The Protocol did not provide a vested right to continued processing, nor a legitimate expectation that would preclude termination. It was expressly limited to the representative cases in the Liang litigation. Furthermore, the Respondent cannot, by virtue of signing the Protocol, simply disregard duly enacted legislation or bind Parliament in some way. The Respondent says that the broad language of s 87.4(1) captures all described FSW applications including those subject to a case-management agreement – the clear and broad wording used by Parliament makes this determinative.
[29] The Respondent submits that it cannot be legally compelled to use s 25.2 of the Act, as it is predicated on public policy grounds – a form of relief not contemplated by the jurisprudence.
[30] The Applicants’ argument that s 87.4 impairs judicial independence should not succeed as it has been rejected by the Federal Court and the Federal Court of Appeal (Tabingo, above, at paras 50-59). Furthermore, the argument fails on principle as the right to judicial review is not absolute and can be displaced by legislation, and “adjudicated rights” are not exempted from the effects of legislation: Gustavson Drilling (1964) Ltd v Minister of National Revenue, [1977] 1 SCR 271; Federal Courts Act, RSC 1985, c F-7, ss 18 and 18.1; Act, s 72(1); Johnson & Johnson Inc v Boston Scientific Ltd, 2006 FCA 195. In addition, the Respondent asserts that mandamus is available only for a breach of duty imposed by public law.
(2) Abuse of Process [31] The Respondent says that relief cannot be obtained by the Applicants on grounds relating to an abuse of process, as neither the termination of the FSW applications nor the absence of humanitarian and compassionate relief is abusive.
[32] That one of the Respondent’s officials may have been aware of a potential future policy plan to terminate FSW applications at the time of the Protocol’s signing does not properly establish an abuse of process. The Applicants have made this assertion without demonstrating that the official authorizing the Protocol was the same individual that they reference, and without acknowledgment of the fact that no legislation relating to the termination of the applications had been introduced at the time the Protocol was signed.
[33] As regards the assertion that an abuse of process flows from the Respondent’s res judicata argument, the Respondent submits that this has no validity. The Applicants’ reliance on the decision in United States v Cobb, 2001 SCC 587 [Cobb] is misplaced, given its completely different factual nature and issues. The remedy sought in Cobb was not one precluded by statute.
[34] The Respondent submits that, even if abuse of process was properly established, the Applicants have failed to demonstrate that the public interest warrants a remedy in this case. In any event, the relief being sought is not within the boundaries of the law, as the Court should not ignore a relevant statutory provision, or order mandamus on terminated FSW applications: Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at para 120.
(3) Alternative Relief via s 25 [35] The Applicants’ request for alternative relief should not succeed because it presumes that the Protocol provided for something that it did not. Any reliance on such an expectation by the Applicants was undone by s 87.4, as termination of the FSW applications removes any presumed entitlement to alternative relief.
[36] The Respondent further submits that the Applicants’ request for $1,000,000.00 is a disguised petition for damages, which cannot be sought under judicial review: Al-Mhamad v Canada (Radio-Television and Telecommunications Commission), 2003 FCA 45 at para 3. Furthermore, the award of damages flowing from termination is disallowed by s 87.4(5) of the Act.
(4) Costs [37] Noting the high bar that must be met prior to the awarding of costs by the Federal Court, the Respondent references a series of “disparaging comments” made by the Applicants and submits that any petitioning on the part of the Applicants for costs against the Respondent would be inappropriate: Ndungu v Canada (Citizenship and Immigration), 2011 FCA 208 at para 7; Federal Court Immigration and Refugee Protection Rules, SOR/93-22, Rule 22.
VIII. ANALYSIS A. The Protocol [38] The Applicants argue that the Court should enforce the Protocol in their favour and order the Minister to process their FSW applications in accordance with the Protocol. Alternatively, they say that if s 87.4 removed the “vested rights” given to them under the Protocol then that provision is unconstitutional for various reasons.
[39] The “vested rights” claimed by the Applicants appear at paragraph 14 of the Protocol which reads as follows:
If the Respondent’s arguments fail, the Respondent will be guided by the decisions in the representative cases, subject to appeal rights being exhausted, on the possible disposition of the remaining cases held in abeyance.
[40] It is immediately apparent from the clear wording of this paragraph that the Applicants have no “vested rights” to enforce. Not only does the paragraph say that “the Respondent will be guided by the decisions in the representative cases,” it also says “on the possible disposition of the remaining cases held in abeyance” (emphasis added). It doesn’t say “on the disposition of the remaining cases held in abeyance.” The word “possible” has to have a meaning, otherwise it would not have been inserted. To refer to “possible disposition” means, inevitably, that disposition may not be possible; and it may not be possible for a variety of reasons.
[41] The Applicants’ present position is that the Minister is now obliged to process their FSW applications irrespective of the impact of s 87.4. But the Protocol clearly contemplates, in my view, that disposition of their applications may not be possible. The Protocol says nothing specific about what is to happen if the law applicable to the Applicants’ FSW applications changes before they can be dealt with, but it is obvious why the Protocol does not say that the applications will be dealt with irrespective of any changes to the law. The Minister could never enter into such an undertaking because it would involve a promise to ignore the will of Parliament as expressed in applicable legislation. There is no evidence before me to suggest that the Minister intended to provide such an undertaking and, even if he did, it could not trump the effect of any validly enacted Parliamentary legislation that impacted the applications at issue. An undertaking to be “guided by” decisions in representative cases does not include a promise to process applications even if they are validly terminated by Parliament. If counsel acting at the time of the Protocol had intended such an undertaking, then he should have asked for it. Had he done so, the answer would be obvious: it is not possible.
[42] Justice Barnes has already referred to this situation in his December 14, 2012 order in Emam, above:
[7] It is self-evident that Justice Rennie’s decision in Liang and Gurung, above, offers no present guidance for the resolution of those matters affected by the Jobs, Growth and Long-Term Prosperity Act. As Justice Rennie noted “each case must be determined on a case-by-case basis” to establish whether a satisfactory explanation exists for any inordinate processing delay. If the Respondent is correct that this legislation is unambiguous and valid, there is nothing left to consider and Justice Rennie’s decision offers no guidance to the disposition of those terminated applications. If that legislation is upheld, it cannot be bypassed or ignored by the Court on the basis of an unsubstantiated assertion of unfairness or, indeed, on any basis. It remains to be seen if the pending challenge will be successful, but until that matter is determined the Court is required to assume the validity of the legislation.
[43] In my view, then, there is no basis upon which the Court could order mandamus based upon the Protocol alone. The Applicants must convince the Court that either s 87.4 does not apply to their FSW applications or, if it does, that the provision is unconstitutional.
B. Applicability of s 87.4 [44] Subsection 87.4 of the Act reads as follows:
Federal Skilled Workers
Travailleurs qualifiés (fédéral)
87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.
87.4 (1) Il est mis fin à toute demande de visa de résident permanent faite avant le 27 février 2008 au titre de la catégorie réglementaire des travailleurs qualifiés (fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux règlements, quant à la conformité de la demande aux critères de sélection et autres exigences applicables à cette catégorie.
(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.
(2) Le paragraphe (1) ne s’applique pas aux demandes à l’égard desquelles une cour supérieur a rendu une décision finale, sauf dans les cas où celle-ci a été rendue le 29 mars 2012 ou après cette date.
(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.
(3) Le fait qu’il a été mis fin à une demande de visa de résident permanent en application du paragraphe (1) ne constitue pas un refus de délivrer le visa.
(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.
(4) Les frais versés au ministre à l’égard de la demande visée au paragraphe (1), notamment pour l’acquisition du statut de résident permanent, sont remboursés, sans intérêts, à la personne qui les a acquittés; ils peuvent être payés sur le Trésor.
(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).
(5) Nul n’a de recours contre sa Majesté ni droit à une indemnité de sa part relativement à une demande à laquelle il est mis fin en vertu du paragraphe (1).
[45] In Tabingo, above, Justice Rennie found that s 87.4 was valid legislation:
[139] Mandamus is available to compel a public authority to perform a duty that it is obligated to do under its enabling statute. As I have found that section 87.4 of the IRPA unambiguous and constitutionally valid legislation, the applications are terminated and the respondent has no legal duty to continue to process them. There can be no order for mandamus.
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[147] As noted earlier, the applicants have waited in the queue for many years only to find the entrance door closed. They see the termination of their hope for a new life in Canada to be an unfair, arbitrary and unnecessary measure. However, section 87.4 is valid legislation, compliant with the rule of law, the Bill of Rights and the Charter. The applications have been terminated by operation of law and this Court cannot order mandamus.
[46] All appeals from Justice Rennie’s decision in Tabingo were dismissed by the Federal Court of Appeal. See Austria, above.
[47] The Applicants argue that Justice Rennie did not, in Tabingo, deal with the scope and constitutionality of s 87.4(2). They claim that this subsection saves their applications from termination because, even though their applications fall within s 87.4(1), s 87.4(2) exempts from termination any applications that were already before the Court, including their own.
[48] It is clear from the record that neither application at issue in this case had received a selection decision prior to March 29, 2012. Hence, the Applicants argue that they fall within the exemption of s 87.4(2).
[49] As I understand the Applicants’ argument, it is to the effect that the Protocol is a final determination of the Court, so that all cases subject to the Protocol are exempted from s 87.4(1) by virtue of s 87.4(2). The Applicants point to paragraph 17 of the Protocol as effecting this result. That paragraph reads as follows:
Pending the outcome of the representative cases, all other related cases shall be held in abeyance, along with any new applications for leave and judicial review subsequently filed and brought to the attention of the Case Management Judge. The Respondent shall continue to be relieved of the requirement to file a Notice of Appearance in any new leave application filed.
[50] It is difficult to see how the Protocol could qualify as a “final determination” of an “application” that was made “on or after March 29, 2012.” The Protocol is nothing more than a case management device, created to deal with a large number of cases that have similar legal issues. If it finally determines anything, it determines the process that will be followed to lead to a final determination. It is not a final determination of the “application” and, as I have already discussed, the Protocol contemplates in paragraph 14, the “possible disposition” of remaining cases. In short, I cannot find that s 87.4(2) exempts the Applicants from s 87.4(1).
C. Constitutionality of s 87.4 [51] As previously discussed, Justice Rennie in Tabingo, above, has already found s 87.4 to be valid legislation, compliant with the Rule of Law, the Bill of Rights and the Charter. This finding has been endorsed by the Federal Court of Appeal.
[52] The Applicants now wish to raise a number of constitutional arguments which they allege were not before Justice Rennie in Tabingo. In particular, they say that if s 87.4(2) terminates FSW applications that were before the Court on judicial review applications, then it is of no force and effect because it violates judicial independence and a fair and impartial judiciary.
[53] Because s 87.4(2) provides for an exception to s 87.4(1), which I have found is not applicable to the Applicants, then it seems to me that the Applicants’ constitutional arguments are really directed at s 87.4(1), because their FSW applications are terminated pursuant to that subsection.
[54] In order to avoid the impact of Tabingo, the Applicants assert that they are bringing new constitutional and Charter arguments to bear upon s 87.4, relying on the Supreme Court of Canada’s decisions in Canada (Attorney General) v Bedford, 2013 SCC 72 at para 42 [Bedford] and Carter v Canada (Attorney General), 2015 SCC 5 at para 44 [Carter].
[55] Paragraph 42 of Bedford reads as follows:
In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
[56] Paragraph 44 of Carter reads as follows:
The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101 (S.C.C.), at para. 42).
[57] Despite the Applicants’ insistence that they are raising new constitutional issues to challenge the validity of s 87.4, it seems to me that many of their arguments have already been addressed by this Court and the Federal Court of Appeal so that I am bound to follow and apply those precedents.
[58] First of all, Tabingo, Austria and Shukla v Canada (Citizenship and Immigration), 2012 FC 1461 [Shukla], all make it clear that s 87.4, upon coming in force, immediately terminated all FSW applications that are described in s 87.4(1). That description includes the Applicants’ FSW applications. The Federal Court of Appeal provided the following guidance in Austria:
[76] The appellants had the right to appl