Borisova v. Canada (Minister of citizenship and immigration)

Borisova v. Canada (Minister of citizenship and immigration)
Court (s) Database
Federal Court Decisions
Date
2003-07-10
Neutral citation
2003 FC 859
File numbers
IMM-2819-02
Notes
Reported Decision
Decision Content
Federal Court Reports Borisova v. Canada (Minister of Citizenship and Immigration) (F.C.) [2003] 4 F.C. 408
Date: 20030710
Citation: 2003 FC 859
Docket: IMM-2819-02 Cross-reference: IMM-2117-03
BETWEEN:
GALINA BORISOVA ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND
Docket: IMM-2280-03
PREM SAMEL SATYA DASS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND
Docket: IMM-2282-03
GURMIT SINGH ANAND
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND
Docket: IMM-2286-03
MOHSEN RASOLZADEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
On Tuesday the 17th of June, 2003, the Court considered applications for interim relief on the Court files identified in the Style of Cause to these reasons. The hearing was held in Toronto with video connections to Montreal, Edmonton and Vancouver. On consent of counsel appearing before the Court, three counsel in Vancouver made brief interventions in the proceeding on behalf of their clients. Counsel for the Borisova Applicants was authorized to argue the Borisova Applicants' motion on behalf of applicants and plaintiffs who have instituted six (6) other similar proceedings before this Court. In all, the hearing potentially impacted some 6,000 applicants and plaintiffs before the Court. An affiant on behalf of the Respondent estimates that the Order issued following the hearing will impact approximately 104,000 individuals seeking visas to enter Canada on a permanent basis.[1]
At the close of the hearing, the Court indicated to counsel that an Order reflecting the result of the hearing would issue on an urgent basis to protect the integrity of the affected class or classes of individuals seeking to immigrate to Canada. The Court also indicated that reasons for its Order would follow.
In the result, an Order issued on Friday the 20th of June, 2003. The substantive paragraphs of the Order read as follows:
1. The Minister of Citizenship and Immigration (the "Respondent") is directed to refrain from finally rejecting applications for permanent residence submitted before the 1st of January, 2002 by economic class applicants seeking immigrant visas, and who have not been provided notice of a decision thereon before the date of this Order, save and except in the cases of such applicants who notify the Respondent in writing of their consent to a final rejection. This direction shall continue in force until further order of this Court.
2.The Respondent is further directed to provide to persons whose applications seeking immigrant visas are affected by paragraph 1 of this Order a notice in the language in which the Respondent has heretofore communicated with them, substantially to the effect of the form set out as Appendix "A" to this Order, except that the heading in that Appendix "expected hearing date" and the paragraph appearing under that heading shall be deleted. Counsel who participated or observed at the hearing giving rise to this Order shall use their best efforts to reach agreement on the form of such notice within ten (10) days of the date of this Order and thereafter shall forthwith submit any agreed form for approval by the Court. In the event that no agreement can be reached on the form of a notice within the time provided, counsel for the Respondent shall forthwith report to the Court indicating areas of agreement as to the form of notice, areas of disagreement and alternative proposals in such areas. Thereafter, a further Order of the Court will issue fixing the form of a notice.
3. In all other respects, the motions before the Court in these matters on the 17th day of June, 2003, are dismissed.[2]
While the substance of the Order reflects substantial relief in favour of individuals seeking to immigrate to Canada, and a significant continuing burden for the Respondent, the Order is not as broad in its terms as certain of the Applicants before the Court were seeking. It also seeks to provide a mechanism whereby individuals seeking to come to Canada who are now, for whatever reason, prepared to abandon that ambition, at least for the moment, may "opt out" of the continuing impact of the Order either unconditionally or on terms settled between themselves and the Respondent.
These are the Reasons for the Order issued.
BACKGROUND
When the individuals seeking to immigrate to Canada who are impacted by the Court's Order (the "putative class") and others in respect of whom relief was sought filed their applications for permanent residence, the recently repealed Immigration Act[3] (the "former Act") and the corresponding Regulations, the Immigration Regulations, 1978[4] (the "1978 Regulations"), were still in force. On the 28th of June, 2002, in general terms, the former Act and the 1978 Regulations were repealed and replaced by the Immigration and Refugee Protection Act[5] (the "IRPA") and the Immigration and Refugee Protection Regulations[6] (the "IRPR").
The regulatory impact analysis statement[7] in relation to the IRPA and the IRPR, at page 214 to 216 of the cited Volume, explained the rather dramatic changes to the regulatory scheme impacting the putative class in the following terms:
VIII - SKILLED WORKERS - PART 6, DIVISION 1, AND PART 20, DIVISION 11
Description
Subsection 12(2) of the Immigration and Refugee Protection Act (IRPA) provides for the selection of immigrants as members of an economic class based on their ability to become successfully established in Canada. These regulations create such a class. The Economic Class includes the following classes: The Federal Skilled Worker class, the Quebec Skilled Worker Class, the Self-employed Person Class, the Investor Class, the Entrepreneur Class and the Provincial Nominee Class. The Regulations for the Federal Skilled Worker Class establish the selection criteria and prescribe the weight to be given to each selection factor. Subject to transitional rules, these requirements will be applied to all applications for the Skilled Worker Class received after the coming into force of the IRPA and to applicants who had applied before the coming into force who have either not had a selection interview or had a decision by an officer to waive their selection interview.
VIII - TRAVAILLEURS QUALIFIÉS - PARTIE 6, SECTION 1 ET PARTIE 20, SECTION 11
Description
Le pararaphe 12(2) de la Loi sur l'immigration et la protection des réfugiés (LIPR) prévoit la sélection d'immigrants dans la catégorie « immigration économique » en fonction de leur capacité d'établir au Canada. Ces dispositions réglementaires créent cette catégorie d'immigration économique, qui comprend les catégories suivantes : les travailleurs qualifiés (fédéral), les travailleurs qualifiés (Québec), les travailleurs autonomes, les investisseurs, les entrepreneurs et les candidats des provinces. Les dispositions réglementaires concernant la catégorie des travailleurs qualifiés (fédéral) établissent les critères de sélection et le poids à accorder à chacun des facteurs de sélection. Sous réserve de règles transitoires, ces exigences seront appliquées à toutes les demandes reçues dans la catégorie des travailleurs qualifiés après l'entrée en vigueur de la Loi et qui, soit n'ont pas encore eu d'entrevue de sélection, soit ont été exemptées de l'entrevue de sélection par un agent.
The need for program change
IMPROVE THE ECONOMIC SUCCESS RATE OF FEDERAL SKILLED WORKERS
- by updating the selection system to reflect the need of the modern labour market.
Justification des modifications
AMÉLIORER LE TAUX DE RÉUSSITE ÉCONOMIQUE DES TRAVAILLEURS QUALIFIÉS (FÉDÉRAL)
- en actualisant le système de sélection en fonction des besoins du marché du travail moderne.
The current selection system, originally crafted in the late 1960s, was build around an "occupational demand" micro-management model. This model envisages the Government matching an immigrant's single "intended" occupation to narrow Canadian labour market demand niches. In the modern, dynamic Canadian economy, this form of micro-management is no longer practicable or desirable - occupational demand may change faster than governments can adapt and immigrants are not selected on the basis of flexible skills. Additionally, in the modern labour market, individuals' occupations and careers tend to be more varied making the single "intended occupation" premise increasingly outdated.
Le système de sélection actuel, mis sur pied vers la fin des années 1960, a été construit autour d'un modèle de micro-gestion axé sur les « professions en demande » . Ce modèle vise à jumeler la profession qu'un immigrant a l'intention d'exercer à une niche étroite sur le marché du travail canadien. Dans l'économie moderne et dynamique du Canada, ce type de micro-gestion n'est ni possible ni souhaitable - la demande peut changer plus rapidement que les gouvernements ne peuvent s'adapter et les immigrants ne sont pas choisis en fonction de l'adaptabilité de leurs compétences. De plus, dans le marché du travail moderne, les professions et les carrières tendent à être plus variées, ce qui rend le concept de « profession envisagée » de plus en plus désuet.
This was the conclusion of the Prime Minister's Advisory Council on Science and Technology Expert Panel on Skills in its 1998 report entitled Stepping Up: Skills and Opportunities in the Knowledge Economy:
The rapid change in the demand for skills and the continuous emergence on new skill sets means that the present Skilled Worker selection system, focused as it is on an essentially static list of "occupations in demand", cannot meet the needs of our dynamic economy.
C'est la conclusion à laquelle en est arrivé le Groupe d'experts sur les compétences du Conseil consultatif du Premier Ministre sur les sciences et la technologie dans son rapport de 1998 intitulé Viser plus haut: Compétence et esprit d'entreprise dans l'économie du savoir:
En raison de l'évolution rapide de la demande de compétences et de l'émergence continue de nouveaux ensembles de compétences, le système actuel dit de « sélection de travailleurs qualifiés » , fondé essentiellement sur une liste statique de « professions en demande » , n'est pas en mesure de répondre aux besoins de notre économique dynamique.
The present selection system is heavily biased in favour of professional education, as the Education, Experience and Educational and Training factors, taken as a whole, place more emphasis on university-educated applicants as opposed to those with skilled trade or technical occupations. Canada's modern labour market values all forms of quality education and training, not just those that lead to a university degree.
- by selecting federal skilled workers who will perform better economically in Canada.
Le système de sélection actuel est fortement biaisé en faveur de la formation universitaire, puisque pris ensemble, les facteurs Études, Expérience, et Étude et formation favorisent les demandeurs ayant une formation universitaire plutôt que les techniques et gens de métier. Le marché du travail moderne du Canada valorise tous les types d'études et de formation de qualité, non seulement ceux qui mènent à un diplôme universitaire.
- en sélectionnant des travailleurs qualifiés (fédéral) qui ont des meilleures chances de réussite économique au Canada.
The Federal Skilled Worker selection model is designed to identify economic immigrants who will be able to provide a significant economic benefit to Canada. This is not to imply that economic immigrants do not also
Le modèle de sélection des travailleurs qualifiés (fédéral) est conçu pour identifier les membres de la catégorie immigration économique qui seront en mesure de faire une contribution économique importante à la
provide important social benefits to Canada, but the primary goal of their selection should be their positive economic impact. Not only is this beneficial to Canada, but to the immigrant as well. Prior to 1988, economic immigrants consistently averaged higher employment earnings than the general Canadian population, even as early as one year after they arrived in Canada.
société canadienne. Cela ne signifie pas que l'immigration économique n'a pas d'avantages importants pour le Canada sur la plan social, mais l'objectif principal de la sélection des membres de cette catégorie devrait être leur effet économique positif. Cela est non seulement bénéfique pour le Canada, mais aussi pour l'immigrant lui-même. Avant 1988, les revenus d'emploi moyens des membres de la composante économique étaient régulièrement plus élevés que ceux de la population générale du Canada, même du Canada, même à peine un an après leur arrivée au Canada.
Historically, skilled worker immigrants have economically outperformed other immigrants and have even economically outperformed the average Canadian worker. While still outperforming other immigrants, the performance of new skilled worker immigrants in the 1990s has fallen below that of the average Canadian tax filer, as shown in Table 1 below.
[Table 1 omitted]
Historiquement, les travailleurs qualifiés immigrants ont réussi mieux que les autres immigrants, et même mieux que le travailleur canadien moyen, sur le plan économique. Au cours des années 1990, même s'il dépassait encore celui d'autres immigrants, le rendement des nouveaux travailleurs qualifiés immigrants a été inférieur à celui du contribuable canadien moyen, tel que le démontre le Tableau 1.
[Tableau 1 omis]
It is now taking university-educated immigrants up to 10 year to reach the employment earnings of comparably educated Canadians. Canadian unemployment and social assistance data also show the less successful record of recent skilled worker immigrants over those who arrived in the 1980s. While there are, no doubt, many factors responsible for this trend, the present outdated and unresponsive selection system has played an important role.
Les immigrants ayant fait des études universitaires mettent maintenant jusqu'à 10 ans pour gagner des revenus d'emplois équivalant à ceux des Canadiens ayant un niveau de scolarité comparable. Des données sur le chômage et l'aide sociale démontrent aussi une baisse du taux de réussite des travailleurs qualifiés récemment immigrés par rapport à ceux arrivés aux cours des années 1980. Cette tendance est sans doute attribuable à de nombreux facteurs, mais le système de sélection actuel, désuet et inadapté, y a joué un rôle important.
The current selection system permits the selection of individuals with lower levels of educational attainment. For example, approximately 10 percent of skilled worker immigrants now have a secondary level education or less. Yet, in the modern knowledge-based Canadian labour market, over 70 percent of new jobs in Canada require some form of post secondary education, and Human Resources and Development Canada (HRDC) predicts that fewer than 6 percent of job openings in the next five years will be available for those with less than a high school education. It is not in the long-term interest of the Canadian economy to
Le système de sélection actuel permet de choisir des personnes qui ont moins de scolarité. Par exemple, environ 10 p. 100 des travailleurs qualifiés immigrants ont maintenant un diplôme d'études secondaires ou moins. Mais dans le marché du travail canadien moderne, axé sur le savoir, plus de 70 p. 100 des nouveaux emplois au Canada exigent des études postsecondaires, et Développement des Ressources humaines Canada (DRHC) prévoit qu'au cours des cinq prochaines années, moins de 6 p. 100 des débouchés seront offerts à des personnes ayant une scolarité inférieure au secondaire. Il n'est pas dans l'intérêt de l'économie canadienne de choisir des membres de la
economic immigrants who will have such narrow labour market options upon their arrival in Canada.
catégorie immigration économique qui ont très peu de débouchée à leur arrivée sur le marché du travail canadien.
The present selection system does not recognize the considerable economic and social benefits to Canada of having skilled immigrants with direct Canadian experience. There is considerable evidence that employees place a premium on Canadian work experience and education.
Le système de sélection actuel ne reconnaît pas les importants avantages économiques et sociaux des immigrants qualifiés qui ont déjà une expérience de travail directe au Canada. On dispose d'une preuve abondante selon laquelle les employeurs recherchent des travailleurs qui ont acquis une formation ou une expérience de travail au Canada.
During the course of consideration of the IRPA and the IRPR in Parliament, the changes impacting the putative class were a matter of significant concern. That element of the background to these reasons and the related order was considered by my colleague Justice Kelen in Dragan v. Canada (Minister of Citizenship and Immigration)[8]. For ease of reference, Justice Kelen's summary of the facts that were before him, as they related primarily to persons who would have been members of the putative class if their applications for immigration to Canada had not been dealt with before the 31st of March, 2003, is reproduced as Appendix B to these reasons.
None of the applications for immigration to Canada of members of the putative class were finally dealt with before the 31st of March, 2003 despite the fact that, on cross-examination on his affidavit, an officer in the Respondent's department acknowledged that, for those in relation to whom an interview was not required, the Minister and his officials in many cases had before them all of the information and documentation required to enable them to make final determinations with relatively little further expenditure of time and effort on each individual case.
Evidence before the Court indicates that the Respondent, through his officials, has, since the 31st of March, 2003, commenced to reject certain of the applications of members of the putative class.
ANALYSIS LEADING TO THE ORDER ISSUED
1) The direction to refrain
a) The Court's jurisdiction
Subsections 18(1) and (3) of the Federal Court Act[9]("the Act") read as follows:
18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal
...
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
8. (1) Sous réserve de l'article 28, la Section de première instance a compétence exclusive, en première instance, pour_:
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître de toute demande de réparation de la nature visée par l'alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d'obtenir réparation de la part d'un office fédéral.
...
(3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d'une demande de contrôle judiciaire.
It was not in dispute before me that section 28 of the Act does not operate to limit the jurisdiction of the Trial Division[10]under section 18 on the facts of this matter. Further, I am satisfied that it was not in dispute before me that the direction to refrain is in the nature of an injunction and that the Respondent is, once again on the facts of this matter, a "federal board, commission or other tribunal". Each of the underlying applications before the Court are applications for judicial review made under section 18.1 of the Act. In each of such applications, there is a request that the Court direct under subsection 18.4(2) of the Act that the application for judicial review be "...treated and proceeded with as an action", and if so treated and proceeded with, be converted to a class action.
Subsection 18.2 of the Act reads as follows:
18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.
18.2 La Section de première instance peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive.
I am satisfied that it is beyond question that the direction to refrain is an "interim order" as contemplated by section 18.2 of the Act.
Given my conclusion with respect to jurisdiction, the critical questions remaining are, I am satisfied, the following: first, whether an interim order made under section 18.2 of the Act can extend to members of a class, here a very substantial number of members of a putative class, which putative class comprises the Applicants before the Court, but also includes many persons who are not before the Court; and secondly, if the answer to the first question is "yes", then whether the making of such an order is justified on the materials before the Court and the submissions at hearing.
b) Extension to members of the putative class
With the approval of the Governor-in-Council pursuant to subsection 46(1) of the Act, the Federal Court Rules, 1998[11]were amended by SOR/2002-417 to include Rules 299.1 to 299.4 governing class actions before this Court (the "Class Action Rules"). I emphasize that the new Rules govern "class actions" and not "class proceedings" and that therefore they do not extend to class judicial review applications. That being said, as earlier noted, the applications before the Court all seek direction that they be "...treated and proceeded with as ... action[s]." The Court has taken the position that it is inappropriate to consider providing such direction unless and until leave is given by the Court, as required, to proceed with the application for judicial review.
Leave has been given with respect to the Borisova matter. The process is under way to perfect the applications for leave on the other three matters before the Court. That being said, there are a range of parallel proceedings in the nature of applications for judicial review in which the process leading to perfection of leave applications is not advancing, or is advancing more slowly than for the Dass, Anand and Rasolzadeh matters. The Court has taken the further position that, in the interests of justice, further steps on each of the applications for judicial review should eventually proceed in lock step in order to ensure that applicants within the putative class whose applications for judicial review might be granted leave and might be directed to be treated and proceeded with as actions will not be disadvantaged in eventually taking part in a certification process under the Class Action Rules.
In short then, by reason of: first, the fact that the Court's Class Action Rules relate only to actions, and I am satisfied that this includes judicial review applications that are to be "...treated and proceeded as ...action[s]"; secondly, the number of related proceedings before the Court instituted by a significant number of counsel in Montreal, Toronto, Edmonton and Vancouver, the number of applicants within the putative class and the difficulty in communicating with them; and finally, the Court's very limited experience with its Class Action Rules, the Court is, I regret to say, a significant time from any decision on certification of a class action. I am satisfied that the foregoing realities should not work to the disadvantage of members of the putative class. That being said, the interests of members of the putative class cannot be considered without at the same time having regard to the public interest reflected in the earlier quoted extract from the relevant Regulatory Impact Statement.
In Western Canadian Shopping Centres Inc. v. Dutton[12], the Chief Justice, for the Court, wrote at paragraphs [33] and [34]:
...The absence of comprehensive legislation means that courts are forced to rely heavily on individual case management to structure class proceedings. This taxes judicial resources and denies the parties ex ante certainty as to their procedural rights. One of the main weaknesses of the current Alberta regime is the absence of a threshold "certification" provision. In British Columbia, Ontario, and Quebec, a class action may proceed only after the court certifies that the class and representative meet certain requirements. In Alberta, by contrast, courts effectively certify ex post, only after the opposing party files a motion to strike. It would be preferable if the appropriateness of the class action could be determined at the outset by certification.
Absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them: ... . However desirable comprehensive legislation on class action practice may be, if such legislation has not been enacted, the courts must determine the availability of the class action and the mechanics of class action practice. [citations omitted]
This Court now has in place comprehensive class action rules that provide for an early certification process. However, for reasons that are not important here, the Court's rules do not facilitate a clear and straight-forward process where parties, by reason of some or all of the reliefs they are seeking, must proceed, not by action but by judicial review. In keeping with the direction from the Supreme Court of Canada, I am satisfied that this Court should not allow the nature of its processes to unduly disadvantage members of a putative class.
In order to protect the integrity of the class, I am satisfied that it was and remains appropriate, and indeed imperative, for the Court to direct interim relief in the nature of the direction to refrain provided, assuming of course, that relief in the nature of an injunction is justified in law.
I take comfort in the fact that there is precedent for this Court to reach out to parties not before the Court. While the facts in Canada (Human Rights Commission) v. Canadian Liberty Net[13] are very different from those now before the Court, I am satisfied that the reasoning reflected in paragraphs 35 to 37 in the majority reasons in that matter support the conclusion that I have reached based upon a liberal interpretation of section 44 of the Act. That section reads as follows:
44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or on such terms and conditions as the Court deems just.
44. Indépendamment de toute autre forme de réparation qu'elle peut accorder, la Cour peut, dans tous les cas où il lui paraît juste ou opportun de le faire, décerner un mandamus, une injonction ou une ordonnance d'exécution intégrale, ou nommer un séquestre, soit sans condition soit selon les modalités qu'elle juge équitables.
The majority of the Supreme Court in Canadian Liberty Net relied on the words "other relief" in section 44 of the Act. For ease of reference, I quote in part paragraphs 35 to 37 from that decision to which I have earlier referred:
...In a federal system, the doctrine of inherent jurisdiction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court.
As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts, ... Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction.
In this case, I believe it is within the obvious intendment of the Federal Court Act and the Human Rights Act that s. 44 grant jurisdiction to issue an injunction in support of the latter. ...
Substituting the IRPA for the Canadian Human Rights Act, I am satisfied that precisely the same can be said on the facts of this matter.
c) A direction in the nature of an injunction
It is trite law that the test for the grant of an order of the nature here under consideration is three fold: first, there must be a serious issue to be tried; secondly, on the facts of this matter, irreparable harm to the members of the putative class must be demonstrated if the order is not granted; and finally, it must be demonstrated that the balance of convenience, taking into account the public interest, favours the members of the putative class.
The threshold for establishing serious issue to be tried is a low one. In North American Gateway Inc. v. Canada (Canadian Radio Television and Telecommunications Commission)[14], Justice MacDonald wrote at paragraphs [10] and [11]:
The jurisprudence directs that the threshold of "serious issue to be tried" is a low one. The earlier jurisprudence suggested that the applicant had to establish a prima facie case before a stay would be granted. Since the decisions of the Supreme Court of Canada in Metropolitan Stores Limited v. Manitoba Food and Commercial Workers et al., and R.J.R. MacDonald, ..., the courts have held that the threshold is much lower: the applicant need only satisfy the Court that the matter on appeal is neither frivolous nor vexatious.
I am mindful that this lower threshold is most often applied in Charter cases and where fundamental issues of public policy are at stake. I note, though, that this Court has applied this same low threshold in non-Charter cases: . In any event, I am of the view that where the Court is asked to review a decision of a party vested with the pubic interest like the CRTC, the lower standard of "frivolous or vexatious" should apply. [citations omitted, emphasis added]
I am satisfied that, on the facts of this matter, the Respondent is "... a party vested with the public interest..." and that therefore the lower standard of "frivolous or vexatious" should apply. Against that standard, I am satisfied that the reasons of my colleague Justice Kelen in Dragan, supra, clearly demonstrate that the applications for judicial review that underlie this matter, which reflect to a very significant degree the issues in Dragan against a different time frame, is met. The issues in Dragan were determined by the Court of Appeal to be moot. The basis of the determination was that each of the Applicants who were successful before Mr. Justice Kelen had his or her application for an immigrant visa finally determined before the 31st of March, 2003. Such is not the case with members of the putative class. I am satisfied that this distinction is sufficient to ensure that the matters now before the Court are not moot.
I turn then to the question of irreparable harm. I am satisfied that it is trite to say that the opportunity to immigrate to Canada, particularly from "third world" or "developing" countries is viewed by many as a singularly attractive goal, the loss of which, or even the reduction of the likelihood of success on which, is not compensable in damages. Many members of the putative class would suffer such a loss or reduction of the likelihood of success if their applications were to be processed under the new criteria. In Kanes v. Canada (Minister of Employment and Immigration)[15], Justice Reed wrote at paragraph [10]:
I find irreparable harm exists in this case, not as the result of a series of possibilities but as a certainty. The harm which befalls the applicant, if a stay order is not granted, is that he is not allowed to seek landing on the basis of having proved a credible basis to his refugee claim. He will only be able to seek landing after having met a much heavier burden of proof: that applicable before the C.R.D.D.. Given the value put on obtaining permanent residence within this country, by those coming particularly from third world countries, the heavier burden of proof clearly, in my view, constitutes irreparable harm. ...
I find the foregoing reasoning to be directly applicable to the facts of this matter and, based on that reasoning, I am satisfied that many members, if not all members, of the putative class would suffer irreparable harm if the direction to refrain that I have issued had not been granted.
Finally, I turn to the question of balance of convenience. Counsel for the Respondent urges that the Respondent is under an obligation to apply the law as it now stands and that therefore the balance of convenience lies in his favour. By contrast, it is argued for the Applicants that the Respondent was under the same obligation in relation to members of the putative class from the time they filed their applications for immigration to Canada until the law, as it applied to them, changed following the 31st of March, 2003. It is urged that, through his officials, the Minister failed to do so in anything approaching a timely manner and that therefore there exists a strong public interest in favour of relief to the members of the putative class.
I am satisfied that both of these arguments have merit and that it therefore becomes a matter of balancing of competing public interests. I have concluded that the public interest in favour of the members of the putative class, taken together with the private interests of the members of that class, outweighs the public interest in ensuring that the Minister carries out, in a timely way, his current statutory and regulatory obligations in relation to members of the putative class, until proceedings currently before the Court, whether or not continued as a class action, are finally determined.
d) Conclusion with respect to the direction to refrain
Based on my conclusions as to jurisdiction of this Court and as to the test for relief in the nature of an injunction, I concluded in favour of the members of the putative class and issued the direction to the Minister to refrain from final negative dispositions of applications by members of the putative class for immigration to Canada except in circumstances where a member of the putative class consents to such a disposition.
2) Mandatory Notice
Rule 299.37(1), within the Court's new Class Action Rules, reads as follows:
A judge may, at any time, order any party to give any notice that the judge considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding. [emphasis added]
Le juge peut, à tout moment, ordonner à une partie de donner tout avis qu'il estime nécessaire à la protection des intérêts d'un membre du groupe ou d'une partie ou à la conduite équitable de l'instance. [je souligne]
Rule 299.37(1) is strikingly similar to subsection 19(1) of the Ontario Class Proceedings Act[16]. That subsection read as follows:
19(1) At any time in a class proceeding, the court may order any party to give such notice as it considers necessary to protect the interests of any class members or party or to ensure the fair conduct of the proceeding. [emphasis added]
While, as I earlier indicated, the two provisions are strikingly similar, Rule 299.37(1) may in fact be broader in that it does not restrict the authority to direct that notice be given to a time "...in a class proceeding".
In Lewis v. Shell Canada Ltd.[17], in the context of an uncertified class action, the plaintiffs sought an order restraining the defendant from communicating with potential class members pending the disposition of the issue of certification or, in the alternative, an order that notice of the commencement and nature of the class proceeding be published pursuant to section 19 of the Class Proceedings Act, and that such notice be delivered to a claimant by the defendant prior to the settlement of a claim between the claimant and the defendant. The alternative relief sought was in the nature of the notice here at issue except that, given the nature of the putative class here at issue, "publication" of a notice would appear to the Court to be problematic. Mr. Justice Cumming wrote at paragraphs [10] to [12] of his reasons:
Shell submits in the case at hand that the plaintiffs have not brought forward any specific evidence of impropriety on Shell's part in its settlement involvement. No parties who have settled with Shell have come forward to complain. Therefore, Shell submits, there is not any justification for any order requiring Shell to not settle claims without first advising claimants that they may have rights as putative class members in the class action.
I disagree with Shell's position. A class action has important differences in its characteristics from an individual action. One distinction with a class proceeding is that there are absent class members, many of whom may very well not be aware of the commencement of the class action until the published notices upon a certification. In the case at hand, the plaintiffs are anxious to proceed to a certification hearing as soon as possible. However, the motion for certification cannot take place until July 6 and 7, 2000, because Shell, quite understandably, will not be in a position to respond until that date. Shell is awaiting the completion of a scientific report relating to the emission of March 16, 2000.
It is of interest that Justice Cumming, after concluding as he did, went on to indicate that he implied no impropriety on Shell's part in respect of its dealings to the time of the hearing before him with specific claimants. I wish to emphasize that, like Justice Cumming, I make no implication or finding of impropriety on the part of the Respondent in his dealings with members of the putative class, to date. I find that any such finding or implication is unnecessary to reach a conclusion equivalent to that reached by Justice Cumming.
Against the words of Rule 299.37(1), I have concluded that a notice in the nature of that which I have ordered is necessary "to protect the interests" of putative class members and "to ensure the fair conduct" of any class action that eventually might arise out of the proceedings now before the Court. I regret to say that the time frame for the maturing of any class action on behalf of the putative class is likely to be significantly longer than the time frame that Justice Cumming faced when he arrived at his conclusion.
Finally, I interpret the words "at any time" in Rule 299.37(1) in accordance with their ordinary meaning. I am satisfied that it would be entirely contrary to a fair and liberal application of the Court's Class Action Rules to interpret those words as being limited to a time after a class action has been certified or until after leave has been granted, if it should be, on all the applications for judicial review now before the Court and those applications have been directed to be treated and proc