Construction and Specialized Workers' Union, Local 1611 v. Canada (Citizenship and Immigration)

Construction and Specialized Workers' Union, Local 1611 v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2013-05-21
Neutral citation
2013 FC 512
File numbers
IMM-11316-12
Notes
A correction was made on March 6, 2015.
Reported Decision
Decision Content
Date: 20130521
Docket: IMM-11316-12
Citation: 2013 FC 512
Ottawa, Ontario, May 21, 2013
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
CONSTRUCTION AND SPECIALIZED WORKERS' UNION, LOCAL 1611; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 115
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION CANADA; THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA; HD MINING
INTERNATIONAL LTD.; CANADIAN DEHUA
INTERNATIONAL MINES GROUP INC.;
AND HUIYONG HOLDINGS (BC) LTD.
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants challenge a decision made under Canada’s Temporary Foreign Worker Program [TFWP] which is administered by Human Resources and Skills Development Canada [HRSDC] and Citizenship and Immigration Canada [CIC]. It appears that this is the first time a positive decision made under the TFWP has ever been challenged.
[2] The Applicants were granted public interest standing by the Court to bring this application for leave and judicial review. Specifically, they challenge the decision of Officer MacLean of HRSDC to issue positive Labour Market Opinions [LMOs] under section 203 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], to HD Mining International Ltd. [HD Mining]. Officer MacLean issued these positive LMOs because he decided that offers of employment by HD Mining to 201 workers from China to do the work of extracting a bulk sample from HD Mining’s coal properties near Tumbler Ridge, British Columbia [the Murray River Project], would likely result in “a neutral or positive effect on the labour market in Canada.”
[3] The novelty of this application, the recent public interest in the TFWP and the significance of the issues to the Applicants, the corporate Respondents and the Ministers, made for a hard-fought application. All counsel are thanked for their comprehensive written and oral submissions. Five pre-hearing motions remained outstanding at the commencement of the hearing on the merits and were argued over a full day. Before the merits were heard, I issued oral rulings to be followed by formal Reasons and Orders for all but part of one motion which was reserved and is dealt with in these Reasons for Judgment.
BACKGROUND
The Parties
[4] The Applicants are trade unions who represent mining workers in British Columbia. They do not represent any workers of HD Mining at the Murray River Project. As previously noted, they were granted public interest standing by Order of Justice Campbell dated November 22, 2012, “because, realistically, no other means exist to engage judicial accountability with respect to the decision-making that has occurred within an important government strategy to maintain the economic health of Canada.”
[5] HD Mining describes its principal business activity as “mine properties development, mines development, [and] coal mining.” HD Mining applied for LMOs on March 2, 2012, and March 15, 2012, to bring 201 temporary foreign workers [TFWs] from China to Canada to fill 201 positions at the Murray River Project which were stated to be “necessary to work on the construction of the decline/shaft and complete bulk sample mining of coal” [the Bulk Sample Work]. Ten positive LMOs were issued by Officer MacLean of HRSDC on April 25, 2012, and, as is noted above, it is his decision to issue these positive LMOs that is under review.
[6] The Respondent Huiyong Holdings (BC) Ltd. is the controlling shareholder of HD Mining.
[7] Canadian Dehua International Mines Group Inc. [CDI] owns 40 per cent of the shares of HD Mining. The Murray River Project was previously to have been undertaken by CDI. In March 2011, CDI applied for LMOs for 92 foreign workers most of whom, according to Officer MacLean in his Bulk Request Assessment and Recommendation, a document described below, were underground coal miner and underground coal support and service workers. CDI received positive LMOs on April 15, 2011.
[8] Officer MacLean writes that he was advised by HD Mining that CDI “was not able to secure work permits” for these 92 foreign workers and HD Mining subsequently “assumed responsibility for the development and operation” of the Murray River Project and “essentially” HD Mining resubmitted the request for 84 of the 92 original foreign workers, together with LMOs for an additional 117 foreign workers, for a total of 201 foreign workers. More will be said of this later; however, the basis for the difference in the number of foreign workers requested between CDI and HD Mining was stated to be that CDI, unlike HD Mining, “did not include the construction of the mine shaft simultaneously with the construction of the decline.” Officer MacLean, when assessing the HD Mining application, did consider information in the CDI LMO file. Again, more will be said of this later.
[9] The two Respondent Ministers, the Minister of HRSDC and the Minister of CIC each are responsible for a portion of the TFWP. HRSDC, through Service Canada, is responsible for issuing LMOs. CIC, based in part on the LMO, is responsible for issuing work permits to the foreign workers covered by the LMOs permitting them to enter and work in Canada.
The Temporary Foreign Worker Program
[10] The Ministers write in their memorandum that the TFWP is designed to “facilitate the entry of foreign workers from other countries to fill labour shortages.” Workers under the TFWP require work permits issued by CIC pursuant to section 200 of the Regulations in order to enter Canada. Paragraph 200(1)(c)(iii) of the Regulations stipulates that a CIC officer “shall issue a work permit to a foreign national if, among other things, the foreign national has been “offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (e).”
[11] The positive determination required to be made by the CIC officer under paragraphs 203(1)(a) to (e) of the Regulations includes, in paragraph 203(1)(b), a determination by an officer “on the basis of an opinion provided” by HRSDC whether “the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada.”
[12] The “opinion” provided by HRSDC is the LMO. Paragraphs 203(3) (a) to (f) of the Regulations stipulate the factors the officer is to consider when issuing an opinion as to whether “the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada:”
(a) whether the employment of the foreign national is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
(b) whether the employment of the foreign national is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
(c) whether the employment of the foreign national is likely to fill a labour shortage;
(d) whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;
(e) whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and
(f) whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.
HD Mining’s LMO Applications and the Assessment Process
[13] On March 2, 2012, HD Mining submitted an application for 84 TFWs it required to construct the decline at the Murray River Project. On March 15, 2012, it submitted a further application for 117 TFWs it required for shaft construction. In total, HD Mining sought ten LMOs covering 201 TFWs in six job categories, as follows: 65 Underground Production and Development Miners, 16 Underground Conveyor Operators, 14 Underground Coal Ventilation Workers, 8 Underground Coal Dewater Workers (Mine Service and Support Workers), 14 Mechanics-Mining Machinery, 30 Underground Production and Development Miners, 16 Underground Conveyor Operators, 7 Underground Coal Ventilation Workers, 16 Underground Coal Mine Timbermen, and 15 Mechanics-Mining Machinery.
[14] On April 2, 2012, Officer MacLean of Service Canada was assigned to process these requests. He worked full-time on these applications between April 10, 2012, and April 25, 2012. In his affidavit, sworn March 19, 2013, Officer MacLean describes the process he followed in assessing these LMO applications. He conducted labour market information [LMI] research, identified the National Occupation Classification [NOC] codes that corresponded to the positions referenced in the applications, assessed the prevailing wage rates for the applicable NOCs, reviewed proof of recruitment and advertising, and conducted telephone interviews with representatives of HD Mining.
[15] In addition to independent research, as noted above Officer MacLean accessed Service Canada’s file on the LMO application submitted the previous year by CDI. He attests that “I was not the program officer who assessed and approved the 2011 CDI LMOs but I reviewed the file information and any LMI research conducted during the assessment of that file for background information.” Officer MacLean was cross-examined on his access to and reliance on the CDI LMO file and, as discussed below, the fact that that entire file was not included in the Certified Tribunal Record [CTR] is a significant matter of dispute.
[16] Officer MacLean’s assessment of the LMO applications is contained in “Assessment Notes” that he prepared and retained in the computer records of HRSDC. When his assessment was completed, he filled out an internal form entitled “Bulk Request Assessment and Recommendation” which briefly sets out a summary of the request, the wages and working conditions, recruitment efforts, and the officer’s comments. He attests that HRSDC requires that this form be completed when an officer foresees “issuing a positive LMO involving more than 50 positions in a specific occupation.” Officer MacLean transmitted his Bulk Request Assessment and Recommendation form by email of April 23, 2012, to a number of persons stating that “Any comments, guidance, objections, etc would be appreciated.” No substantive feedback was received, and Officer MacLean issued ten positive LMOs to HD Mining covering the 201 TFWs.
PRE-HEARING MOTIONS
[17] As noted earlier, five outstanding motions were heard at the commencement of the hearing. Rulings and Orders have issued on all except the motion - Motion #2, which challenges the admissibility of affidavits sworn by Curtis Harold and Douglas Sweeney, which was taken under reserve.
Motion #2
[18] By motion filed March 28, 2013, CDI challenged the admissibility of the following:
a. Affidavit #1 of Curtis Harold, sworn March 8, 2013; and
b. Affidavit of Douglas Sweeney, sworn March 13, 2013.
[19] The Applicants’ purpose in filing the affidavits of Mr. Harold and Mr. Sweeney was to support its submission that HD Mining misrepresented to HRSDC the nature of its mining operation at the Murray River Project. They submit that these affidavits show that HD Mining had represented to the BC Ministry of Natural Resource Operations, when it applied for a Bulk Sample Permit, that the mining technique it would use for that purpose was room and pillar and not long-wall mining. This is said to be contrary to the statement in the letter submitted with the LMO applications, that “HD Mining will be utilizing a long-wall mining construction method” which had not been used in Canada.
[20] In the submission of the Applicants, this evidence shows that HD Mining had obtained the LMOs through misrepresentation. Moreover, it was submitted, if the Court found that Officer MacLean erred in his decision, this evidence went to whether the Court ought to, as HD Mining requested, exercise its discretion and refuse to set the LMOs aside.
[21] At the close of argument, I held that it was premature to rule on the admissibility of these affidavits without having heard full submissions on the merits. Having now heard the parties’ submissions on the merits and having considered the parties submissions on the motion, I find that these two affidavits are not admissible in the application. Moreover, as I discuss below, even if they had been admitted, they would have been given no weight as they are unreliable and do not support the claim of the Applicants that HD Mining misrepresented anything to HRSDC.
Affidavit #1 of Curtis Harold, sworn March 8, 2013
[22] Mr. Harold is a business agent for one of the Applicant unions. He attended at the offices of the BC Ministry of Natural Resource Operations “where arrangements had been made to make available materials submitted by HD Mining for the Murray River Project.” Mr. Harold met Diane Howe, the Deputy Chief Inspector of Mines, who had been informed that he would be coming to copy the application HD Mining had submitted for the Murray River Project.
[23] He says that Ms. Howe “took me to a table with a number of binders of documents” which she described as “the application I had requested.” He was also provided with “an electronic version of the application, which Ms. Howe copied.” Mr. Harold says that he was later informed by counsel for the Applicants that he had been provided with “the wrong file.”
[24] Consequently, Mr. Harold re-attended at the Ministry offices and was directed by Ms. Howe to a table of binders. He says that “I confirmed with Ms. Howe that these materials had been received from HD Mining and were in relation to the Murray River Project, and I inspected the documents and confirmed this was the case.” Again, he was provided with an electronic version of the application file and was told to take the four large binders, rather than copy them, as they were copies of the original file. He says that he then sent both the electronic file and the paper file to the Applicants’ lawyers.
[25] Although he swears that he was provided with both an electronic and paper copy of the Ministry’s file, he attaches only a small part of it to his affidavit, which makes it impossible for the Court to make any assessment whether the entire contents of the application supports what he claims.
[26] Specifically, Mr. Harold attached to his affidavit three Exhibits, which he describes as follows:
10. I attach as Exhibit “A” to my affidavit a copy of the “Notice of Work Application: Murray River Coal Bulk Sample Project” dated June 30, 2011 which was included in both the electronic and paper versions of the materials I was provided by the Ministry of Natural Resource Operations on February 15, 2013, and including the support document “First Aid and Mine Rescue Emergency Response”, but excluding the other support documents..
11. I attach as Exhibit “B”: to my affidavit a copy of the Attachment “C” to the Notice of Work Application, titled “Murray River Bulk Sample Design” which I was also provided by the Ministry of Natural Resource Operations on February 15, 2013. This document was only included in the paper version of the file that I copied.
12. I attach as Exhibit “C” to my affidavit a copy of extracts of the “Supplement to Notice of Work Application – Murray River Project Bulk Coal Sample” dated January 18, 2012, including the covering letter, List of Documents, Updated Equipment List, and Safety Procedures for Bulk Sample Mining. I was also provided this document by the Ministry of Natural Resource Operations on February 15, 2013. This document was only included in the paper version of the file that I copied.
13. The supplement to Notice of Work Application was the most recent document included in the materials that I was provided by the staff at the Ministry of Natural Resource Operations. I did ask if they had any further documents that pertained to the Murray River Project and I was told that I had been provided with all of the documents they had in relation to the Murray River Project.
[27] CDI opposes the admissibility of this affidavit and these Exhibits, in part, based on a submission that the Applicants, in filing this material, are trying to do an end-run around an earlier pre-hearing Order of this Court. Before being granted leave in this application, the Applicants sought leave to file an affidavit in reply attaching thereto as exhibits the two documents attached as Exhibits A and B to Mr. Harold’s affidavit. Leave was refused by Justice Manson, who wrote that those documents “are outdated and do not reflect the supplemental information in respect of HD Mining’s operations provided to the Ministry of Energy, Mines and Natural Gas, in the period of January 2012 through January 2013, including the time the labour market opinions (LMOs) were applied for in March 2012.”
[28] In finding that the Applicants’ proposed information was outdated, Justice Manson relied on information contained in Affidavit 3 of Michael Xiao sworn February 22, 2013, which had been filed in response to the Applicants’ motion. In it Mr. Xiao swears to filing plans and drawings up to January 2013. The reference by HD Mining to that affidavit in its memorandum was the subject of a motion and it was ruled that the reference to it was improper.
[29] CDI also objects to the admissibility of Mr. Harold’s affidavit on the basis that it includes hearsay evidence and contains materials not before the decision-maker.
[30] Rule 10 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 [the Immigration Rules] speaks to an applicant filing “supporting affidavits verifying the facts relied on by the applicant in support of the application.” Justice Manson noted that “this Court has granted some latitude in permitting documents to be provided beyond those before the decision maker;” however, an affidavit filed in support must be confined to facts within the personal knowledge of the deponent. Hearsay is admissible provided necessity and reliability are established: Zheng v Canada (Minister of Citizenship and Immigration), 2002 FCT 1152. The Applicants made no effort to establish that it was “necessary” that the affidavit with its attachments be sworn by someone other than the government official responsible for maintaining these official documents. I suspect no such argument was available because Ms. Howe, who would have been an appropriate affiant, was apparently very co-operative with and helpful to the Applicants.
[31] Further, I do not find that this evidence is reliable. Mr. Harold swears that he was provided with a paper and an electronic copy but some of the exhibited documents are found only in one source. In particular, the Supplement to Notice of Work Application – Murray River Project Bulk Coal Sample dated January 18, 2012, which was not before Justice Manson, was found only in the paper version of the file. This makes suspect the truth of the statement that Ms. Howe has provided a full paper and electronic copy of the application.
[32] More troubling is the hearsay statement from Mr. Harold that he was told, by some unnamed person, that he had been “provided with all the documents they had in relation to the Murray River Project” and that the most recent document was the Supplement to Notice of Work Application – Murray River Project Bulk Coal Sample dated January 18, 2012. It is troubling because no source of this information is stated by Mr. Harold and because Justice Manson references information provided to the Ministry “in the period January 2012 through January 2013” (emphasis added). In light of this Court’s prior statement that there was information provided up to January 2013, evidence to the contrary, to be reliable, had to be based on personal knowledge, not hearsay.
[33] As the affidavit does not meet the test for an exception to the admissibility of hearsay evidence in applications under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], it is not admissible.
Affidavit of Douglas Sweeney, sworn March 13, 2013
[34] Mr. Sweeney is a former Chief Inspector of Mines for British Columbia. He swears that he was “in touch” with Ms. Howe and had requested that she provide him with “a copy of the Bulk Sample Permit that was issued to HD Mining for the Murray River Project, as well as the Notice of Work Application.” In Ms. Howe’s email to him she writes:
Attached is a copy of the Bulk Sample permit for the Murray River project. I just checked on the [Notice of Work] and it is an immense document and sorry but I will not be able to get a copy for your review, we just don’t have the time or the folks that can help put it together in a timely way.
Mr. Sweeney goes on in his affidavit to attest that he “was, however, able to get a copy of the Notice of Work Application from the Steelworkers and from Mr. Gordon, as described above.” What is “described above” is that Mr. Gordon, counsel for the Applicants provided him with a copy of:
Affidavit #3 of Michael Xiao, as well as with the Notice of Work Application, Murray River Coal Bulk Sample Project dated June 30, 2011 and submitted by HD Mining, as well as portions of the Supplement to the Notice of Work Applications, Murray River Coal Bulk Sample Project dated January 12, 2012 [sic], which portions included a covering letter addressed to Diane Howe, the Deputy Chief Inspector of Mines Reclamation and Permitting, a List of Documents, Updated Equipment List, and Bulk Sample Related Safety Procedures.
[35] This evidence raises additional concerns. First, according to Curtis Harold, on February 15, 2013, Ms. Howe provided him with an electronic copy of the Ministry’s file as well as a paper copy. That file material included the Notice of Work; however, very shortly thereafter Ms. Howe tells Mr. Sweeney that she can’t get him a copy because “we just don’t have the time or the folks that can help put it together in a timely way.” How can that be if a paper and an electronic version had already been assembled and given to Mr. Harold?
[36] Second, the Bulk Sample Permit issued to HD Mining on March 15, 2012 which Ms. Howe sent to Mr. Sweeney was, one would assume, contained in the Ministry’s file; however, this permit was not included in the allegedly complete materials she provided to Mr. Gordon on February 15, 2013 – eleven months after the permit was issued. We know that it was not included because Mr. Gordon says that the most recent document the Ministry had, a copy of which was given to him, was the Supplement to the Notice of Work Application which is dated January 18, 2012.
[37] These concerns offer further reason to question the completeness of the materials Mr. Harold was given and has produced. It also brings sharply into question the accuracy of the hearsay statement provided to Mr. Harold in his affidavit that the Supplement to the Notice of work dated January 18, 2012, was the most recent document in the Ministry files.
[38] In any event, Mr. Sweeney swears, based on his review of “portions of the Supplement to the Notice of Work Application dated January 12, 2012 [sic]”, including the Updated Equipment List and Bulk Sample Related Safety Procedures, that “there is no indication in these documents that long wall mining will be used” nor does the equipment “list any long wall mining machinery.” I agree with CDI that Mr. Sweeney is offering an opinion based on these documents when he has not been qualified to provide one. Further, he is basing his opinion on documents that the Court has previously found to be “outdated.”
[39] In addition to those opinions, Mr. Sweeney lastly offers his opinion in paragraph 7 of his affidavit that “under paragraph 2(d) of the Bulk Sample Permit” HD Mining would be prevented from changing the method of bulk sampling. However, there is no paragraph 2(d) of the Bulk Sample Permit. This may, as was submitted by the Applicants, have been in error and he may have meant to reference paragraph 2(c); nonetheless, it does little to support any view that he has offered reliable evidence, even if it was not objectionable as opinion evidence.
[40] For these reasons, I find that the affidavit of Mr. Sweeney is not admissible. In any event, had it been accepted, it would have been given no weight. It is simply not reliable evidence as it relies in large part on Mr. Harold’s affidavit and its exhibits which I have found not to be reliable.
[41] Accordingly, I find that the Affidavit #1 of Curtis Harold, sworn March 8, 2013, and the Affidavit of Douglas Sweeney, sworn March 13, 2013, are inadmissible and are to be struck from the record.
ISSUES
[42] The parties raised a number of issues going to the merits of the application, which I summarize as the following:
1. Whether the Court has or should extend the time limit for seeking leave in this case;
2. Whether the decision-maker has provided a proper record under Rule 17 of the Immigration Rules and, if it has not, what is the remedy for that breach;
3. Whether portions of Officer MacLean’s affidavit ought to be struck as an attempt to bolster the reasons for decision;
4. Whether HD Mining materially misrepresented the nature of the work in its LMO applications;
5. What is the appropriate standard of review of an officer’s decision to grant a positive LMO; and
6. Whether Officer MacLean made a reviewable error in deciding to issue positive LMOs to HD Mining.
ANALYSIS
1. Extension of Time
[43] The decision under review that positive LMOs would issue was made and communicated to HD Mining by correspondence dated April 25, 2012. Paragraph 72(2)(b) of IRPA provides that when an application for leave and judicial review concerns a decision made in Canada, as this one was, the applicant is required to serve and file it “within 15 days … after the day on which the applicant is notified of or otherwise becomes aware of the matter.” Paragraph 72(2)(c) provides that “a judge of the Court may, for special reasons, allow an extension of time for filing and serving the application.”
[44] HD Mining says that it “strains credulity” to accept that the Applicants did not have knowledge of the LMO decisions at an earlier date given that one of the Applicant unions has members, and officials, and an office in Tumbler Ridge, and there was local media on this issue as early as Spring 2011. This is speculative. The best evidence as to when the Applicants first became aware of the positive LMOs having issued is found in the affidavit of Brian Cochrane, Business Manager of the International Union of Operating Engineers, Local 115 and Affidavit #2 of Mark Olsen, Business Manager of the Construction and Specialized Workers’ Union, Local 1611, both of whom swear that they first became aware when the Vancouver Sun reported it on or about October 10, 2012. Both were cross-examined extensively but the evidence of neither was shaken. Accordingly, their evidence is accepted. By operation of paragraph 72(2)(b) of IRPA, the Applicants’ time for serving and filing an application for leave and judicial review expired October 25, 2012.
[45] In their Application for Leave and Judicial Review, filed November 2, 2012, the Applicants specifically requested an extension of time as required by the Immigration Rules. HD Mining, the only Respondent that filed submissions, opposed both the leave and the extension of time request.
[46] Rule 6 of the Immigration Rules stipulates that “a request for an extension of time shall be made in the application for leave in accordance with form IR-1” and that “a request for an extension of time shall be determined at the same time, and on the same materials, as the application for leave” [emphasis added]. Justice Russell granted leave but did not specifically address the request for an extension of time in his Order.
[47] HD Mining submits that the question of leave remains a live issue and, relying on Deng Estate v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 59 [Deng Estate] and Khalife v Canada (Minister of Citizenship and Immigration), 2006 FC 221 [Khalife], submits that “where the order granting leave to submit the application for judicial review is silent on this preliminary issue (as it is in this case), it should not be presumed that an extension of time has been granted.”
[48] In Deng Estate, the Court of Appeal expressly agreed with the following statement by Justice Tremblay-Lamer in Canada (Minister of Human Resources Development) v Eason, 2005 FC 1698, which, although it dealt with a decision of a member of the Pension Appeal Board, was stated by the Court of Appeal to be a “similar situation” to the immigration matter before it:
However, as stated above, the member was silent on the issue of extension of time. The respondent suggests that as leave to appeal cannot be granted unless an extension of time is also granted, it can be inferred from the member's decision to grant leave that she also granted an extension of time. I disagree. While Mr. Eason did apply for the extension of time and for leave, it cannot automatically be inferred that the member turned her mind to the issue of extension of time simply because she granted leave. The granting of an extension of time must be explicitly considered by the decision maker. A member exceeds his jurisdiction, or fails to exercise his jurisdiction, if he grants leave to appeal without also granting an extension of time within which to appeal. [emphasis added]
[49] Absent the decision of the Court of Appeal in Deng, I would have thought that it would be proper to presume, in the absence of contrary evidence, that a leave judge considering an application that includes a request for an extension of time, properly applied the provisions of Rule 6 of the Immigration Rules and did not exceed his jurisdiction by granting leave when no extension of time had been granted. Absent Deng, I would also have thought, given the express wording of Rule 6 that a request for an extension of time is to be heard “at the same time” as the leave application, that it is the leave judge alone and not the judge hearing the application that has jurisdiction to grant the extension of time. However, I feel that I am bound by the Court of Appeal’s decision in Deng Estate and will thus determine whether to grant an extension of time because Justice Russell did not specifically address this request in his Order granting leave.
[50] The requested extension of time is granted. I am satisfied that the test summarized in Patel v Canada (Minister of Citizenship and Immigration), 2011 FC 670 [Patel] is met. Under that test, an applicant must establish “a) a continuing intention to pursue the application; b) that the application has some merit; c) that no prejudice arises from the delay; and d) that a reasonable explanation for the delay exists:” Patel, above, at para 12.
[51] The evidence filed establishes a continuing intention to pursue the application once the Applicants learned of the LMOs. Counsel was retained, including an expert in immigration law, efforts were made to gain access to the decisions at issue and research was conducted as to how to attack the impugned decisions. The application has some merit. Justice Russell, although he dismissed a motion for an injunction, found that a serious issue had been raised and found there to be an arguable issue when he granted leave. The fact that the parties argued the merits of the application for nearly three days itself points to there being an arguable case.
[52] Despite the best efforts of counsel for HD Mining, I am not convinced that it will suffer prejudice if the extension of time is granted. It argues that it has “spent tens of millions of dollars preparing the project” and that it has relied on the LMOs “in good faith and has arranged all of its planning and contracting according to a complex work plan with many interrelated steps leading to completion of the bulk sample.” Be that as it may, the prejudice that needs to be considered here is the prejudice, if any, that accrued between the deadline for bringing an application and the day the application was actually brought, not the entire period fifteen days after the day when the LMO decisions were communicated to HD Mining. The Applicants filed this application on November 2, 2012, meaning, based on my finding about the Applicants’ state of knowledge, they were only just over a week late. HD Mining has not argued that any significant prejudice accrued to it during this short time. Granted, this situation is somewhat unique and potentially unfair to HD Mining since this application was brought by third parties, on a timeframe coinciding with their subjective knowledge. Accordingly, a broader conception of prejudice may be warranted. However, even if one applied a broader concept of prejudice, there is no proof that any part of these expended funds will be lost if this application proceeds, or will be lost even if the application is successful. HD Mining expended these funds and made these preparations based on its belief that the Murray River Project was a viable coal mine that will generate substantial profit for the company. That remains unchanged. It may be that HD Mining will have to adjust its operation if this application is successful; however, any possible prejudice to HD Mining that might result must be weighed against the public interest in having the LMO decision reviewed by a court.
[53] Lastly, a reasonable excuse for the delay has been established. As submitted by the Applicants, this is “first instance” litigation of a decision they did not have and is against parties the identity of which was uncertain. It is hardly surprising in such circumstances that the law firms retained would require some time to ascertain just how to attack the impugned decisions and on what basis. Moreover, what is a reasonable excuse will depend on the length of the delay. As I noted above, the Applicants were just over a week late. That delay is relatively short in view of the complexities of this case. For these reasons, I grant the extension of time requested by the Applicants.
2. The Record
[54] The Applicants submit that the Ministers have not provided a proper record because the CTR is both under and over-inclusive.
[55] Rule 17 of the Immigration Rules provides as follows:
17. Upon receipt of an order under Rule 15, a tribunal shall, without delay, prepare a record containing the following, on consecutively numbered pages and in the following order:
(a) the decision or order in respect of which the application for judicial review is made and the written reasons given therefor,
(b) all papers relevant to the matter that are in the possession or control of the tribunal,
(c) any affidavits, or other documents filed during any such hearing, and
(d) a transcript, if any, of any oral testimony given during the hearing, giving rise to the decision or order or other matter that is the subject of the application for judicial review,
and shall send a copy, duly certified by an appropriate officer to be correct, to each of the parties and two copies to the Registry.
17. Dès réception de l’ordonnance visée à la règle 15, le tribunal administratif constitue un dossier composé des pièces suivantes, disposées dans l’ordre suivant sur des pages numérotées consécutivement :
a) la décision, l’ordonnance ou la mesure visée par la demande de contrôle judiciaire, ainsi que les motifs écrits y afférents;
b) tous les documents pertinents qui sont en la possession ou sous la garde du tribunal administratif,
c) les affidavits et autres documents déposés lors de l’audition,
d) la transcription, s’il y a lieu, de tout témoignage donné de vive voix à l’audition qui a abouti à la décision, à l’ordonnance, à la mesure ou à la question visée par la demande de contrôle judiciaire,
dont il envoie à chacune des parties une copie certifiée conforme par un fonctionnaire compétent et au greffe deux copies de ces documents.
[56] The Applicants submit that the 922 page CTR filed and served by the Minister of HRSDC pursuant to Rule 17 of the Immigration Rules is under-inclusive because it does not include all of the documents that Officer MacLean “looked at and consulted” when making his assessment of the HD Mining LMOs, namely, the entire file generated for the LMOs that were issued about a year earlier to CDI. They submit that the record is over-inclusive because the CTR includes documents that were admittedly copied from a file other than the HD Mining LMO file.
[57] I agree with the submission of the Applicants that because no one other than the Minister in an immigration related application is involved in the preparation of the tribunal record, a great deal of trust is reposed in him or her by the opposite party and by the Court to prepare a proper and complete record. I also agree with them that “an incomplete record alone could be grounds, in some circumstances, for setting aside a decision under review” [emphasis added]: Parveen v Canada (Minister of Citizenship and Immigration) (1999), 168 FTR 103 at para 9, per Reed J.; and see also Machalikashvili v Canada (Minister of Citizenship and Immigration), 2006 FC 622; Kong v Canada (Minister of Employment and Immigration) (1994), 73 FTR 204, and Ahmed v Canada (Minister of Citizenship and Immigration), 2003 FCT 180.
[58] The Ministers submit that the jurisprudence cited above shows that setting aside a decision on the basis of an incomplete record should be done only when the omitted material is “clearly essential,” “particularly material,” or “critical” to an issue and was relied upon by the decision-maker. They submit that material alleged by the Applicants to have been omitted from the CTR does not meet this test, even if it is relevant and ought to have been included in the CTR.
[59] Rule 17 of the Immigration Rules stipulates that in addition to the impugned decision, affidavits and documents filed during the hearing, and a transcript, if any, the CTR is to contain “all papers relevant to the matter that are in the possession or control of the tribunal” [emphasis added]. The Ministers submit that guidance as to the test of relevance is found in the Court of Appeal decision Pathak v Canada (Canadian Human Rights Commission) ( re Royal Bank of Canada), [1995] FCJ 555 [Pathak]. In Pathak, the decision under review was a decision of the Human Rights Commission dismissing Mr. Pathak’s complaint. The CTR included everything that was before the Commission when it made that decision, including a report of a Commission investigator. However, in addition, the applicant sought to have included in the record all of the information that was before the investigator when he made his report.
[60] A judge of the Trial Division directed the Human Rights Commission to file certified copies of documents relied upon by the investigator in preparing his report pursuant to the Federal Court Rules, CRC 1978, c 663, which provided that a party to a judicial review application could request documents of the decision-maker. Rule 1612(4) further provided that such requested documents “must be relevant to the application for judicial review.” Given the similarity of that language to that of Rule 17 of the Immigration Rules, I agree with the Ministers that this authority offers guidance as to the test of relevance.
[61] The Court of Appeal in Pathak held that these additional documents were not relevant. It held that the investigator’s report must be presumed to be a faithful and complete summary of the evidence before him and it further noted that there was no attack in the notice of application on his report. Accordingly, it held that the eviden