Hinton v. Canada (Minister of Citizenship and Immigration)

Hinton v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-12-18
Neutral citation
2006 FC 1520
File numbers
IMM-5015-06
Notes
Digest
Decision Content
Date: 20061218
Docket: IMM-5015-06
Citation: 2006 FC 1520
Toronto, Ontario, December 18, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ALAN HINTON and IRINA HINTON
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This proceeding was commenced by way of an application for leave under the Immigration and Refugee Protection Act, S.C. 2001, c-27 (IRPA) and the Federal Courts Immigration and Refugee Protection Rules, SOR/2002-232 (FC Immigration Rules). The essential issue is vastly different from the usual applications for leave in that the point of the application is to seek a determination as to whether the Minister is charging appropriate fee in respect of processing of sponsorship application.
[2] This proceeding is an endeavour to deal with the decision of this Court in Momi v. Canada (MCI), 2006 FC 738 which considered an unsuccessful attempt to certify a class action. The Hintons, applicants in the present proceeding, were specifically mentioned in these Reasons in paragraphs 72 to 79 which included mention that the Minister took the position that the Hintons were in a possible conflict of interest in the Momi proceedings. Counsel for the Hintons has indicated that this was the motivation for institution of these proceedings.
[3] The FC Immigration Rules, Rule 12(2) provide that, on an application for leave, no cross-examination shall be permitted unless a judge permits it for special reasons. Such special reasons exist here; this is a proceeding more in the nature of a challenge to legislation or in respect of constitutionality. It seeks a declaration that would have broad effect in respect of all proceedings of its type. I question whether the proceedings could have been brought as an ordinary challenge by way of action or application just as one would challenge any other statute or, regulation or fees order. Apparently, at least some are of the belief that anything to do with IRPA, must just go through the awkward and, in my view unnecessary, process of seeking leave.
[4] In any event, the judge considering whether leave should be granted in a matter as serious as this should have the benefit of as complete a record as possible. Therefore, the Order as requested will be granted.
ORDER
For the Reasons given;
THIS COURT ORDERS that:
1. The applicant is given leave to cross-examine the respondents, Guilia Cantagallo and Kathleen O’Connor upon their affidavits filed herein;
2. The applicant is granted leave to file an affidavit or affidavits in response to those of Richard Kurland;
3. The respondent is given leave to file an affidavit or affidavits in response to those provided for in paragraph 2, above, if so advised;
4. The parties shall provide a timetable on or before January 9, 2007 for taking the steps required in this Order and the provision of memoranda on the leave application with a view to accomplishing all of the aforesaid expeditiously.
5. No Order as to costs.
“Roger T. Hughes”
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5015-06
STYLE OF CAUSE: ALAN HINTON and IRINA HINTON v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 18, 2006
REASONS FOR ORDER
AND ORDER : HUGHES J.
DATED: December 18, 2006
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANTS
Mr. Lorne McClennaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT