Momi v. Canada (Minister of Citizenship and Immigration), 2006 FC 738

Date: 20060612

Docket: IMM-1669-05

Citation: 2006 FC 738

Ottawa, Ontario, June 12, 2006

PRESENT:      The Honourable Mr. Justice Harrington

BETWEEN:

BAZ SINGH MOMI; DR. PARVEZ ALI KHAN;

DR. ARCHANA PARIKH; PAIMAN HAIBODI;

N. MAGPOC RAMOS; PANKAJ SHARMA;

JIGNESH T. SHAH; VA VING TENG;

CHENCG HUA CHU; HSUEH WEI PAN

HUNG CHIH CHEN

Plaintiffs

and

HER MAJESTY THE QUEEN AS REPRESENTED BY HER

AGENT, THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

REASONS FOR ORDER AND ORDER

[1]                Irena Popapova was born back in the U.S.S.R in 1978. Since then, her country changed; the world changed; and her life changed. She married Alan, a Canadian, and immigrated here. In order to obtain a permanent residency visa, an application fee had to be paid. Upon her arrival, she was welcomed with another fee, a landing fee. Now she and Alan, the Hintons, somewhat to their surprise I think, find themselves at centre stage of a proposed class action on behalf of an estimated 2 to 3 million people who paid application fees for some 9 to 10 million immigration visas, authorizations or permits. The fees currently range from $75 for a Temporary Resident Visa to $1,050 for a Permanent Resident Visa. They claim they were overcharged by more than 700 million dollars. They want that money back.

[2]                The defendant, whom I shall call the "Minister" or occasionally the "Crown", has filed a vigorous three-pronged defence. He alleges that the services were actually rendered at a loss. He strenuously denies that the business of government has been financed on the backs of immigrants. That being said, however, even if a profit were realized, that profit is lawful as the fees collected were specifically set out in various regulations. Finally, even if the fees were unlawfully imposed, there is no remedy. The law does not allow a refund.

[3]                The action as it currently stands is in the name of eleven individual plaintiffs. It cannot proceed as a class action unless it is so certified by the Court. The Federal Courts Rules impose five requirements for certification, one of which is that there be a representative plaintiff who possesses certain qualities and who has or will do certain things. This is where the Hintons come in.

[4]                Another requirement is that a class action be the preferable procedure for the fair and efficient resolution of common questions of law or fact. Although a class action may well be the preferred procedure, it is a prohibited procedure, at least at this stage. The claim must begin in this Court as an application for judicial review, be converted into an action, and then certified as a class action. Although this rigmarole has the appearance of giving victory to form over substance, each intermediate step raises important issues which simply cannot be ignored.

[5]                If they are to succeed, the plaintiffs must establish three things. Firstly, the fees generated by the Immigration and Refugee Act Regulations, and its predecessors, must exceed the cost of rendering the service. Secondly, the regulationswhich established the fees from time to time must be declared invalid. Finally, there must be no legal reason which entitles the Minister to keep the excess fees. The question of the validity of the Regulations would normally be ruled upon, at least in this context, in an application for judicial review.

DISPOSITION

[6]                I have come to the conclusion that it is premature to certify this action as a class action, and so must dismiss the motion. I am prepared to stay the action so that an application for judicial review may be launched. These are my reasons.

[7]                In the Federal Courts Act, Parliament chose to draw a distinction between actions against the Federal Crown and the judicial review of decisions of federal boards, commissions or other tribunals. Under Section 17, the Federal Court and the Provincial Courts have concurrent jurisdiction over the Crown. However, in virtue of Section 18, the Federal Court has exclusive jurisdiction to review decisions of federal boards, save specified boards whose decisions are reviewed by the Federal Court of Appeal pursuant to Section 28.

[8]                The 9 to 10 million decisions to collect application fees were hardly discretionary, but nevertheless are decisions subject to judicial review (Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 at paragraphs 51 and following). The fee collectors were obliged to administer the Regulations which had been enacted by Order in Council. In so enacting, the Governor in Council is in and of itself a federal board, commission or tribunal (Saskatchewan Wheat Pool v. Canada(Attorney General) (1993), 67 F.T.R. 98, 107 D.L.R. (4th) 190, Mr. Justice Rothstein and Saskatchewan Wheat Pool v. Canada(Attorney General) (1993), 107 D.L.R.(4th) 63 (Saskatchewan Court of Appeal).

[9]                Since the Federal Court has jurisdiction both over the Crown at large, and over federal boards and tribunals, non-compliance with the form of action is normally an irregularity which may be remedied. Rule 57 of the Federal Courts Rules says so. However, the broader question is whether an individual is entitled to disregard judicial review, and attendant time limits, by attacking the decision collaterally, such as by way of a money action. The courts, particularly the Federal Court of Appeal, have wrestled with this thorny issue for years. In Budisukma Puncak Sendirian Berhad v. Canada (2005), 338 N.R. 75, 2005 FCA 267, [2005] F.C.J. No. 1302 (QL), the Court noted that the question had not, to that point, been definitively resolved. The issue was decided later last year in Grenier v. Canada 2005 FCA 348, [2005] F.C.J. No. 1778 (QL), after this action was launched.

[10]            Our Federal Courts Rules contemplate the possibility of a class action, but not a class application for judicial review. However, Section 18.4(2) of the Federal Courts Act allows the Court to treat an application for judicial review as an action (conversion), and then Rules 299 and following permit an action to be certified as a class action. In Tihomirovs v. Canada(Minister of Citizenship and Immigration) 2005 FCA 308, [2005] F.C.J. No. 1597, Mr. Justice Rothstein noted that where the reason advanced to support a motion to convert a judicial review into an action was to certify a class action, both the motion to convert and the motion to certify should be heard and considered together. It would be pointless to convert such an application into an action unless the Court would also be prepared to issue a class certification order. He said:

¶ 19       To answer the Minister's concern that conversion for the purpose of certifying a class action defeats the purpose of judicial review, the question of the preferable procedure is a matter to be taken into account in the conversion/certification proceeding. The court will look at the questions of practicality and efficiency and which procedure will provide the least difficulty for resolving the matter. For example, a multiplicity of judicial review proceedings, which a class action might avoid, might also be avoided if the parties agree to treat one judicial review as a test case for other judicial reviews dealing with the same issue. These and other considerations should allow the court to determine whether to grant conversion and certification.

[11]            The proceedings in Tihomirov, supra, began in the right form, an application for judicial review. The proceedings in this case began in the wrong form; an action commenced by the filing and serving of a Statement of Claim. Having said all that, I nevertheless propose to analyze the five requirements which must be met before an action can be certified as a class action. It would be a disservice to the parties, an affront to the administration of justice, and a terrible waste of judicial resources if, at my instigation, the parties embark on what has to be a very complicated and complex judicial review only to find that that I would not have certified the action as a class action in the first place.

[12]            The balance of these reasons are broken down into the following four parts:

HISTORY OF CLASS ACTIONS

[13]            Class actions are not really new. They have been around, in one form or another, for centuries. Although one normally thinks of a plaintiff having a personal claim and suing a defendant for an order to pay money, to do something, or to stop doing something, representative actions are common enough. One need only think of a trustee who sues on behalf of the beneficiaries of a trust, or a bailee in possession of goods who sues on behalf of the bailor. In order to manage such proceedings, different Courts, at different times, have set up various rules of practice.

[14]            Suffice it to say for the purposes of this case that the class action originated in the English Courts of Equity in the late 17^th and early 18^th centuries. It was recognized that litigation needed more flexibility, and less rigidity.

[15]            In 2006 SCC 19">Bisaillon v. Concordia University 2006 SCC 19, the Court noted:

¶ 16       The class action has a social dimension. Its purpose is to facilitate access to justice for citizens who share common problems and would otherwise have little incentive to apply to the courts on an individual basis to assert their rights [...] This Court has already noted that legislation on class actions should be construed flexibly and generously [...]

[Cited cases omitted]

[16]            In Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 on appeal from the Court of Appeal for Alberta, Chief Justice McLachlin stated three important advantages of a class action over a multiplicity of individual actions. First, there is judicial economy in that unnecessary duplication is avoided. Second, litigation costs are spread over a large number of plaintiffs. This makes access to justice easier in that the advancement of claims is more economical than if pursued on an individual basis. Finally, these actions ensure that actual and potential wrong doers modify their future behaviour. Without such actions, those who cause widespread but individually minor harm may not otherwise have their conduct called into account.

[17]            In addition to Western Canadian Shopping Centres, supra, there are two other Supreme Court decisions which permeate these reasons: Hollick v. Toronto(City), [2001] 3 S.C.R. 158, and Rumley v. British Columbia, [2001] 3 S.C.R. 184.

EVENTS LEADING UP TO CERTIFICATION

[18]            The fundamental premise of the plaintiffs' case is that they were overcharged on applications submitted from 1 April 1994 to 11 March 2005, the latter being the date the Statement of Claim was issued.

[19]            This fundamental premise challenges three widespread and preconceived notions. The first is that governments spend money, they do not make money. The second is that if a government department claims to have made money, there must be something wrong with the books. Finally, the government can charge whatever it likes to whomever it likes. If the government establishes a cost recovery program based on user fees, and makes a profit, so be it. If the electorate does not like it, it can vote someone else in.

[20]            The Statement of Claim alleges a series of annual reports given to Parliament by the Minister. The allegation is that a profit in excess of 700 million dollars was generated by visa and similar immigration applications. The plaintiffs draw a distinction between these application fees, and the landing fees. It is common ground that the visa and similar application fees are service fees, while the landing fees are privileges. The plaintiffs accept that the Minister can charge what he likes for a privilege. The plaintiffs seek no recovery with respect to landing fees.

[21]            However, with respect to visa type application fees, they point out that pursuant to Section 19(2) of the Financial Administration Act, such fees "may not exceed the cost to Her Majesty in Right of Canada of providing the service to users or class of the users."

[22]            The plaintiffs originally sought recovery of the excess service fees on the basis of unjust enrichment, mutual mistake, money had and received, and negligence. The Minister moved to have the Statement of Claim struck and the entire action dismissed for failing to disclose a cause of action. It was argued that the fees were validly levied and collected in virtue of Regulations under the Immigration and Refugee Protection Act (IRPA) and its predecessor, the Immigration Act, notwithstanding the Financial Administration Act. Even if the Regulations were invalid, the plaintiffs were not entitled to a refund as the defendant had changed its position. The money had come into the Consolidated Revenue Fund and finances the general expenses of government. The Crown had thus changed its position, which is a juristic reason why there is no unjust enrichment.

[23]            That motion was brought under Federal Courts Rule 221. The Rule requires that the Court only look at the Statement of Claim. No other pleadings, and no evidence, may be considered.

[24]            The test on such applications is whether it is "plain and obvious" that the Statement of Claim discloses no reasonable cause of action (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959). I granted the application in so far as it related to allegations based on negligence (Momi v. Canada(Minister of Citizenship and Immigration 2005 FC 1484). I did not strike the remaining allegations or dismiss the action because if there is a chance that the plaintiffs might succeed, they should not be "driven from the judgment seat" at the outset. It was not for the Court at that stage to weigh the plaintiffs' chances of success.

[25]            All the first Momi decision stands for is that it is not "plain and obvious" that the Statement of Claim does not disclose a cause of action. It could well be held when the case is heard on the merits that no cause of action has been established. Hunt, supra also put it another way. An action cannot be struck on the basis of the allegations in the Statement of Claim unless it is beyond a reasonable doubt that no cause of action has been disclosed. When the case is actually heard on the merits, the burden is upon the plaintiffs to establish their case on the balance of probabilities, a far more onerous task.

THE FIVE PART TEST FOR CERTIFICATION

[26]            In Western Canada Shopping Centres, supra, Chief Justice McLachlin recommended that it would be better if the skeletal rules of practice, then current in Alberta, were fleshed out. At that time, the Federal Courts Rules also lacked detail, leaving it to individual judges to deal with individual cases on an ad hoc basis. Specific class action rules, Rule 299.1 and following, were added in 2002. The key is that a proposed class action must be certified before it can proceed on behalf of anyone other than the plaintiffs specifically named therein. The rest is detail.

[27]            Subject to that detail, a judge "shall" certify an action as a class action if five conditions are met:

a)                      The pleadings must disclose a reasonable cause of action;

b)                      There must be an identifiable class of at least two persons;

c)                      The claims of the class members must raise common questions of law or fact;

d)                      A class action must be the preferable procedure for the fair and efficient resolution of those common questions;

e)                      Finally, there must be a representative plaintiff who would fairly and adequately represent the interest of the class, has provided a workable litigation plan, is not in conflict of interest with other class members and has provided a summary of fee and disbursement arrangements with the class' solicitor.

[28]            I shall deal with each of these conditions in turn.

a) Reasonable Cause of Action

[29]            Federal Courts Rule 299.18(1)(a) requires that:

Subsection 3 deals with subclasses, on which more will be said.

[30]            A pleading ("acte de procédure") is defined in Rule 2 of the Federal Courts Rules as meaning:

The record contains three pleadings, so defined: the Statement of Claim, the Statement of Defence and the Reply thereto.

[31]            There is a major textual difference between Rule 221 and Rule 299.18. Rule 221 specifically provides that no evidence shall be heard on a motion to strike a pleading for failing to disclose a reasonable cause of action or defence, as the case may be. Rule 299.18 is silent. Rule 299.17 requires an affidavit in support of the motion for certification, and contemplates that the defendant may file an affidavit in reply. Not only were affidavits filed on behalf of both parties, but attached as exhibits thereto was a considerable amount of material, including the annual reports to Parliament cited in the Statement of Claim.

[32]            If I were unencumbered by precedent, I might have been tempted to take the sworn and documentary evidence into account. Rule 299.17 does not purport to limit the scope of affidavit evidence to issues other than the disclosure of a reasonable cause of action. It could be said that pleadings do not "disclose", they "allege".

[33]            However, I have had the advantage of reading the decision of the Court of Appeal in Le Corre v. Canada(Attorney General) 2005 FCA 127, [2005] F.C.J. No. 590 (QL). Although the rationale of that case was that the Statement of Claim did not disclose a reasonable cause of action, the Court emphasized that all the pleadings must be considered. However, affidavits and documents attached thereto are not pleadings.

[34]            It has been clearly laid down that the pleadings disclose a reasonable cause of action for the purposes of certification if it is not plain and obvious that the claim is deficient (Western Canadian Shopping Centres, supra, paragraphs 14 and 45, and Le Corre, supra). The only difference between a motion to strike a Statement of Claim and a motion to certify is that in the latter the burden is on the plaintiff, while under Rule 221(1)(a) the burden is on the defendant.

[35]            The Statement of Claim discloses a reasonable cause of action if it is not plain and obvious, or beyond reasonable doubt, that the action will not succeed. Indeed, as per Le Corre, supra, the test under Rules 221 and 299.18 is the same, and I have already dismissed the Minister's motion to strike (save as regards allegations of negligence).

[36]            In essence, the Statement of Defence repeats the same grounds invoked in the Minister's application to have the Statement of Claim struck. It alleges the six-year statute of limitations set out in Section 39 of the Federal Courts Act, as the Statement of Claim, on its face, covers applications either made, or made and processed, more than six years before the Statement of Claim was issued. Neither the 30-day delay to apply for judicial review as required by Section 18.1 of the Federal Courts Act nor the 15-day, and in some cases 60-day, delay contemplated by Section 72(2) of IRPA were invoked.

[37]            If it were relevant to take into account the affidavits filed on behalf of the Minister, the weight of which is considerably diminished because much of the information was either provided on information and belief, or by affiants who were not appropriate record keepers within the meaning of the Canada Evidence Act, one would appreciate that all three of the basic premises this action challenges are relied upon by the Minister. He says the services were provided at a loss (governments spend money, they do not make money). Secondly, there is something wrong with the books, at least as interpreted by the plaintiffs. Finally, if the program made a profit, so be it.

[38]            The Statement of Claim alleges that Citizenship and Immigration Canada provided reports to Parliament which set out various annual costs for the services received by the putative plaintiff class, as well as the annual fees generated thereby. For example, the plaintiff class paid $213.4 million in the government fiscal year ending 31 March 1999. The total cost was alleged to be $108.7 million, which suggests a profit of $104.7 million.

[39]            However if one is entitled to consider the report for that year, the plaintiffs have not painted the complete picture. The report breaks down Citizenship and Immigration's activities into five "business lines". The expenses alleged by the plaintiffs were the expenses said to be incurred in one of the five lines, without taking into account the cost of services supplied by other government departments. For the year ending 31 March 1999, the estimated total cost of those services was $155.5 million. However, if one were to prorate that estimate, which was not broken down into the five business lines, the claim of the plaintiffs would only be reduced by $23.94 million, which still leaves the Crown with a profit in excess of $80 million for that year. The reports themselves say nothing about what is included in expenses, and what is not. Are common expenses at Embassies spread out over different departments? If so, how? How are security clearances conducted by CSIS charged? What about overhead?

[40]            The plaintiffs are also criticized in that it is said that they could have and should have made specific allegations with respect to the report to Parliament for the year ending 31 March 2004. Based on the same methodology they used for the other years, the service was provided at a loss without even taking into account estimated expenses incurred by other government departments. However, it cannot be said that services were necessarily rendered in the same fiscal year in which the fee was paid. The fees are paid in advance. Obviously, if a fee were paid on 31 March, the services would be rendered in the next fiscal year. Although some of the visa applications, such as those of a temporary nature, may be processed quickly, others, such as permanent residency visas, which require security checks, could be spread out over a number of fiscal years.

[41]            Although I am of the view that the Statement of Claim, and the pleadings as a whole, disclose a reasonable cause of action as regards some members of the proposed class, the same cannot be said with respect to those who filed applications on or after 1 April 2003. The Statement of Claim makes no allegations with respect to the 2003-2004 fiscal year, and so can hardly be said to have disclosed a reasonable cause of action. Furthermore, for those who filed on or after 1 April 2004, it is impossible to allege a profit as the 2004-2005 fiscal year had not ended when the Statement of Claim was filed 11 March 2005.

b) Identifiable Class

[42]            Rule 299.18(1)(b) also requires that:

[43]            There is certainly a class of two or more persons. The problem, as asserted by the Minister, is that there are many classes. Fees were first introduced for permanent resident applications and other visas or authorizations in February 1986. There were nine separate phases through to June 1997. In June 2002, the Immigration Act Fees Regulations were repealed and the new Immigration and Refugee Protection Regulations came into force. Most fees were carried over, but there were some changes. The plaintiffs identify some 52 types of visa or similar applications. The difference between the size of the potential class, some 2 to 3 million, and the number of applications in issue, some 9 to 10 million (both of which I have just reduced), lies in the fact that many individuals would have made more than one application.

[44]            Leaving aside timebar, if the case proceeds, it may be necessary to create subclasses. However at this stage, to paraphrase Rumley, supra, all the plaintiffs allege a systemic violation of Section 19(2) of the Financial Administration Act. It may well be that this allegation will prove to be ill-founded. Although one might assume for the moment that expenses could be projected reasonably accurately, income may fluctuate considerably depending on the number of applications and other vagaries such as currency exchange rates. There is no reason to breakdown the class now. In Rumley, supra, the class covered those who attended residential schools over a period in excess of 40 years.

[45]            There is at least one obvious potential subclass: those against whom a time bar defence has been raised. It is more convenient to discuss this issue as a common question, below.

[46]            As noted in Western Canadian Shopping Centres, supra:

54       The defendants' contention that there are multiple classes of plaintiffs is unconvincing. No doubt, differences exist. Different investors invested at different times, in different jurisdictions, on the basis of different offering memoranda, through different agents, in different series of debentures, and learned about the underlying events through different disclosure documents. Some investors may possess rescissionary rights that others do not. The fact remains, however, that the investors raise essentially the same claims requiring resolution of the same facts. While it may eventually emerge that different subgroups of investors have different rights against the defendants, this possibility does not necessarily defeat the investors' right to proceed as a class. If material differences emerge, the court can deal with them when the time comes.

[47]            To conclude on this point, there is an identifiable class.

c) Common Questions of Law or Fact

[48]            Rule 299.18(1)(c) also requires:

[49]            The alleged systemic violation of the Financial Administration Act is the common question of both fact and law. The Regulations establish different fees for different visa applications. They do not indicate that the amount of different fees was determined by anything other than a single methodology. If relevant, the evidence, such as it is, suggests that the different fees are really a function of the time required to process different types of applications.

[50]            There is certainly one issue which does not apply to the proposed class as a whole. Those whose cause of action arose more than six years before the filing of the Statement of Claim face a potential timebar defence based on Section 39 of the Federal Courts Act.

i) The Knight Case

[51]            After the motion for certification was heard, the British Columbia Court of Appeal handed down its decision in Knight v. Imperial Tobacco Canada Ltd. 2006 BCCA 235. As that case has obvious relevance to the case at bar, the parties were reconvened to give them an opportunity to make representations as to its significance.

[52]            Mr. Knight instituted an action in May 2003, alleging that the marketing of the defendant's "light" and "mild" cigarettes was false and misleading. He proposed a class action on behalf of all those who purchased their light or mild cigarettes on or after 5 July 1974. However, taking into account the six-year statute of limitations, the Court of Appeal limited the class to those who purchased such cigarettes within six years of the institution of the action. In so doing, the Court was careful not to purport to hold that those who purchased such cigarettes before that date were time barred. Rather, it was of the view that the limitation defence as a whole could not be tried as a common issue because limitations inherently call for individual assessment of individual circumstances, and so it refused to include those who faced a prima facia time bar defence. It relied upon the decision of the Supreme Court in Novak v. Bond, [1999] 1 S.C.R. 808 where Chief Justice McLachlin said:

¶ 90       I conclude that delay beyond the prescribed limitation period is only justifiable if the individual plaintiff's interests and circumstances are so pressing that a reasonable person would conclude that, in light of them, the plaintiff could not reasonably bring an action at the time his or her bare legal rights crystallized.    The task in every case is to determine the point at which the plaintiff reasonably could bring an action, taking into account his or her own interests and circumstances.

[53]            I find this reasoning most persuasive. However in this case, there are three possible points when time began to run, the date the application fee was paid, the date the service was provided (or to put it more accurately the date the applicant was given notice that the decision was made), and the date when a plaintiff could have reasonably ascertained that the Crown may have made a profit.

[54]            On this last point, the parties agreed that the last annual report publicly available six years before this action was instituted on 11 March 2005, that is to say available on 11 March 1999, was the report for the 1997-1998 fiscal year, a year which ended 31 March 1998. The parties were unable to say with certainty when that report would have been available. These reports are usually available by the end of October. It is agreed, however, that it certainly would have been available by the end of December 1998. It does not much matter, for only those with respect to whom a decision had been made by 31 March 1998 might have been in position to know when the Statement of Claim was filed that the Crown may have made a profit.

[55]            Counsel for the plaintiffs proposed that the Court could certify a class who paid application fees on or after 11 March 1999, so as to avoid putting the time bar issue in the forefront. The Minister had no objection. Counsel was careful to say that they were not conceding that persons who paid application fees before that day would be forever barred from joining the class. The idea is that if other parts of the case developed as they hoped, they would then move to have the class expanded, and then to deal with the six-year time bar issue. Since I am not certifying any class, it would be unfair in this guideline part of my reasoning to be so restrictive. However, I would say that I would not be prepared to include those who had been informed of decisions by 31 March 1998.

d) Is A Class Action The Preferable Procedure?

[56]            Apart from a class action, there are a number of other possibilities to consider. There could, for instance, be a test case by way of judicial review. Within the context of an action, apart from a class action, there could be a test case, a joinder, or a consolidation (Hollick, supra, paragraphs 28 and following, and Tihomirovs, supra, paragraph 18).

[57]            If the plaintiffs are to succeed, at some point in time a judicial review will have to be treated as an action, and possibly consolidated with this action. The plaintiffs seek a money judgment. As a condition precedent, they need a declaration that the fee regulations are invalid. That may be done by judicial review. However, it has been held that an action in damages against the Crown is beyond the scope of judicial review. See for example Al-Mhamad v. Canada( CRTC) 2003 FCA 45, (2003) 120 A.C.W.S. (3) 351. Although this is not an action for damages, it is an action for unjust enrichment, which has been met with a number of defences including Her Majesty's allegation that she has changed her position. Any change of position would not be a decision of a federal board or tribunal. It has to be properly characterized as a defence to an action.

[58]            It is tempting to simply allow the action as it now is to proceed. In [1977] 1 S.C.R. 147">Hamel v. Brunelle, [1977] 1 S.C.R. 147, Mr. Justice Pigeon reminded us "that procedure [should] be the servant of justice not its mistress." In Sweet v. Canada, [1999] F.C.J. No. 1539, Mr. Justice Décary characterized the fine, and sometimes difficult, distinctions between actions and judicial reviews as an "unfortunate merry-go-round [which] is a waste of resources for the litigants as well as for the Court." Furthermore, Federal Courts Rule 3 requires the Rules to be interpreted and applied to secure the just, most expeditious, and least expensive determination on the merits.

[59]            If this was simply a matter of procedure, I would know what to do with these two different forms of proceedings. I would do what Lord Denning M.R. did in Letang v. Cooper, [1964] 2 All. E.R. 929 at page 932:

I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century MAITLAND said "the forms of action we have buried but they still rule us from their graves." But we have in this Century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. LORD ATKIN told us what to do about them:

"When these ghosts of the past stand in the path of justice, clanking their medieval chains, the proper course for the judge is to pass through them undeterred. See United Australia, Ltd. v. Barclays Bank Ltd.    [1940] 4 All E.R. 20 at p. 37"

[60]            Unfortunately, there are two hurdles which the plaintiffs have to address and overcome. The first is that they are too late to seek a judicial review. They must obtain an extension of time. Secondly, if the judicial review is under IRPA, they must obtain leave. The test on leave applications is not whether the "pleadings disclose a reasonable cause of action". Rather, the test is whether there is a fairly arguable case on the record (Bains v. Canada (Minister of Employment and Immigration) (1990), 109 N.R. 239 (FCA), [1990] F.C.J. No. 457 (QL)). Although this standard is not so high as to demonstrate likelihood of success based on the balance of probabilities, the bar is definitely higher than a showing that it is not plain and obvious that there is no cause of action. Furthermore, there is no appeal of a decision of this Court of a judicial review under IRPA unless "...the judge certifies that a serious question of general importance is involved and states the question." (Section 74(d))

[61]            Following the decision of the Court of Appeal in Tihomirovs, supra, the matter came back to this Court. In Tihomirovs v. Canada(Minister of Citizenship and Immigration) 2006 FC 197, Madam Justice Mactavish was satisfied that the pleadings (no record was put before her) did not disclose a reasonable cause of action. However, she also expressed concern that the proposed class would include persons whose applications for visas had been refused and who had failed to commence an application for judicial review in a timely manner. See paragraphs 90 and following. Since the pleadings did not otherwise disclose an action she did not have to consider whether time should be extended.

[62]            Under Section 18.1(2) of the Federal Courts Act, an application for judicial review shall be made within 30 days after communication to the parties. It seems rather peculiar that one has only 30 days to seek review of a decision based on an allegedly invalid regulation, but that appears to be the joint effect of Saskatchewan Wheat Pool Inc., supra, andGrenier, supra. In Grenier, the Federal Court of Appeal distinguished its earlier decision in Sweet, supra, because in one but not the other the 30-day delay had accrued.

[63]            Of course, the Court may extend the delay, but that issue is not before me at this time.

[64]            The question of leave as a precondition to judicial review arises from Section 72(1) of IRPA which provides:

[65]            The plaintiffs do not attack the contents of the Regulations, only the cost of the application fees. It is important to note that the various regulations were made by the Governor General in Council on the recommendation of both the Minister of Citizenship and Immigration and the Treasury Board. The various proclamations in the Canada Gazette refer both to IRPA or its predecessor and to the Financial Administration Act.

[66]            The question of leave was not before me and should be left for another day. If the application for judicial review is under IRPA, section 72(2) thereof provides that the application shall be filed within 15 days or 60 days depending on whether the matter arose within Canada or not. It does not matter whether the delay be 15 days, 30 days, or 60 days, any application for judicial review by any proposed member of the class is out of time, unless time is extended by the Court.

[67]            IRPA also provides that judicial review must be heard "no sooner than 30 days and no later than 90 days" of leave being granted (Section 74). The complexity of this case makes it impossible to meet that delay.

[68]            The question is not whether an application for judicial review should be treated as (converted into) an action, the question is when. It may well be that the validity of the regulations can be dealt with by judicial review, assuming without deciding that income exceeds cost. If the regulations are struck down, I very much lean to the view that the ascertainment of whether or not income exceeded cost in fact as well as the reasonableness of any budgetary calculations are better dealt with in an action. There is no examination for discovery in judicial review, and experts testify therein by way of affidavit. Discovery of documents, a viva voce examination for discovery, and live in Court testimony by financial experts, and perhaps others, would be crucial. An action would also avoid the thorny problem of reconstituting the record as it was before the decision-maker. The fee takers probably had no more than a set of guidelines. What did the Governor in Council have?

[69]            Unlike Hollick, supra, there is no alternative compensation scheme available.

[70]            In summary, if the matter runs its course, at some point an application for judicial review, an offshoot of the current action, would have to be treated as an action, and certified as a class action.

e) A Representative Plaintiff

[71]            Finally, Rule 299.18(1)(e) requires that:

[72]            The plaintiffs first proposed that one of the eleven named plaintiffs, Pankaj Sharma, act as a representative plaintiff, together with Suham Caricote Armando, who had not been specifically named as a plaintiff. They both gave affidavits. Thereafter, Ms. Armando refused to be cross-examined. The cross-examination of Mr. Sharma, who was in India, began by telephone. There was considerable difficulty in communication. The proposed class has withdrawn their names as representative plaintiffs. This is where the Hintons come into the picture.

[73]            Their representative status is opposed because they were recruited, and know nothing about immigration law. They were cross-examined on their affidavits.

[74]            The Rules require that the Hintons provide a summary of agreements respecting fees and disbursements. It should come as no surprise that a contingency fee and disbursement arrangement is in place. Indeed, who would attack the validity of regulations and be prepared to spend hundreds of thousands of dollars to recover say 20% of the $75 paid for a temporary visa?

[75]            One would hardly expect lay persons, including immigrants to Canada, to have professional knowledge of immigration law and class action procedure. Indeed, most lawyers do not. The Hintons consider there was a basic unfairness in the process. I am satisfied that they would fairly and adequately present the interests of the class.

[76]            They have prepared a litigation plan. The cornerstone of the proposal is that the Court first focus on one fiscal year. The results of that analysis might well either bring the entire action to an end, or persuade the Minister to settle.

[77]            Although the plan is workable, it is premature because an application for judicial review must be instigated and then treated as action, which action must then be certified. As discussed under the preferable procedure section hereof, I am not prepared to speculate as to whether an application for judicial review will be instigated, and, if so, at what stage thereof a motion would be made to treat it as an action, and to certify it as a class action. The validity of the Regulations which have been called into question could well be decided in the judicial review application. The final decision therein might have the effect of rendering this action moot for all intents and purposes.

[78]            In any event, as the motion for certification was contested on all fronts during the two days which were allotted, I stated that we would only discuss the modalities of the plan, and perhaps improve it, only after a decision was made on whether to certify. Since the motion to certify is dismissed, there is no point to discuss the plan now.

[79]            However, it was also asserted by the Minister that the Hintons are in a conflict of interest. They only straddle a few types of visa applications and have no interest in the other types. Furthermore, they are not subject to the potential six-year time bar defence while some of those who remain are, if, for instance, time began to run on payment of the application fee.

[80]            As stated earlier in these reasons, I am satisfied at this stage that the allegation of the systemic violation of the Financial Administration Act is common to all. The vast majority of those who might face a six year limitation have been eliminated from the class. There may have to be some fine tuning at some future point.

CLOSING COMMENTS

[81]            I have taken into account the matters set out in Rule 299.18(2). Common questions of law or fact predominate. There is not a significant number of members of the class who would have a valid interest in individually controlling their separate actions. It will cost a fortune to advance a claim, whether it is for one visa, or ten million. It is difficult to think any member of the class would want to take his or her separate action. Other possible means of resolving the claims are in my view less practical and less efficient. It could facetiously be said that the administration of a class action creates a greater difficulty than if there were separate actions, because the individual actions would inevitably fall. Ten individuals within the class had filed separate actions in 2001 on the same grounds advanced in this case i.e. that the actual cost of the service was less than the fees charged. None of those actions proceeded. Some where discontinued and others were dismissed by reason of the plaintiff failing to respond to motions of the defendant. If anything, they show that the plaintiffs on a practical level can only advance if they make common cause.

[82]            For the reasons given, I am of the view that the proposed class is too broad. It would be limited to those who on or after 1 April 1994 paid or on whose behalf fees were paid under the various regulations and who did not have a final decision communicated to them until after 31 March 1998. Furthermore, those who filed applications on or after 1 April 2003 would also be excluded as the pleadings do not disclose a reasonable cause of action.

[83]            Although I am dismissing the motion to certify at this time, the action remains under case management. Nothing further need be done until the delays to appeal have expired. If the Plaintiffs launch an appeal, the issue is whether this action should be stayed and, if so, on what basis. If they do not appeal, the modalities of the application for judicial review contemplated herein should be discussed.

[84]            Without prejudice to the plaintiffs' right to appeal, I call upon the parties to discuss between themselves the future of this action. Once an appeal has been launched or the delays have expired, or at such earlier time as the parties may agree, the plaintiffs are directed to request a further case management conference.

ORDER

            THIS COURT HEREBY ORDERS that the motion to certify this action as a class action be dismissed.

"Sean Harrington"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-1669-05

STYLE OF CAUSE:                           BAZ SINGH MOMI; DR. PARVEZ ALI KHAN;

DR. ARCHANA PARIKH; PAIMAN HAIBODI;

N. MAGPOC RAMOS; PANKAJ SHARMA;

JIGNESH T. SHAH; VA VING TENG;

CHENCG HUA CHU; HSUEH WEI PAN

HUNG CHIH CHEN v.

HER MAJESTY THE QUEEN AS REPRESENTED BY HER AGENT, THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Vancouver, British Columbia (April 26 and 27, 2006)

and Ottawa, Ontario/Vancouver, British Columbia (Teleconference June 8, 2006)

DATE OF HEARING:                       April 26-27, 2006 and June 8, 2006

REASONS FOR ORDER:                HARRINGTON J.

DATED:                                              June 12, 2006

APPEARANCES:

Mr. Gerald A. Cuttler Mr. Richard T. Kurland	FOR THE PLAINTIFFS
Mr. Donald J. Rennie (April 26 and 27) Mr. R. Keith Reimer Ms. Banafsheh Sokhansanj (April 26 and 27) Mr. Scott Nesbitt (June 9)	FOR THE DEFENDANT

SOLICITORS OF RECORD:

Kurland Tobe Barristers and Solicitors Vancouver, British Columbia	FOR THE PLAINTIFFS
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE DEFENDANT