Date: 19981126
Docket: IMM-2306-98
BETWEEN:
| HENRY GLOBAL IMMIGRATION SERVICES |
Applicant
and -
CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of an alleged decision of Consul Murray A. Oppertshauser at the Canadian Consulate General in Hong Kong whereby the decision-maker advised the applicant as follows:
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Over the past several months we have received a number of serious complaints from your clients alleging deliberate miscommunication and misconduct on your part. As you can appreciate, our primary concern in these circumstances is to ensure that all applicants are treated in a fair and equitable manner. In light of the complaints received against you, all correspondence regarding your clients will be sent directly to their residential addresses. As well, we will no longer respond to enquiries received from you regarding the status of your clients" files. |
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The "applicants" referred to in the foregoing quotation were applicants for landing in Canada then resident, in most if not all cases, in the People"s Republic of China. The alleged decision is dated the 24th of April, 1998.
[2] The applicant, a business registered in November of 1995 in the Province of Ontario, is a consultant in immigration matters with its client-base consisting of persons seeking permanent residence in Canada, those persons being virtually all citizens of the People"s Republic of China. The applicant seeks the following relief;
| - an Order that the decision of the respondent, by its agent the decision-maker, be declared invalid or unlawful, set aside or quashed; |
| - an Order prohibiting the respondent from its acts of sending correspondence directly to the addresses of the applicant"s client against the instructions of those clients; |
| - an Order directing the respondent to respond to the enquiries of the applicant and to make a thorough investigation into the warnings of the applicant and the alleged complaints against the applicant; and |
| - an Order as to costs of this application in its favour. |
THE BACKGROUND
[3] The nature of the applicant and its business is indicated earlier in these reasons. Its clients, essentially citizens of the People"s Republic of China seeking permanent residence in Canada, indicated in their applications for permanent residence both their home addresses and a current mailing address being the address in Canada of the applicant. The explanation provided on behalf of the applicant for the choice of its address in Canada as its clients" mailing address is that the postal system in China had difficulty coping with the delivery of mail when the address to which mail is being sent in China is written in English, which was apparently the practice of the Consulate General in Hong Kong.
[4] The applicant had an agency agreement with a representative in Guangzhou, China. In November of 1997, the applicant terminated that arrangement and, as a result of the breakdown of its relationship with the agent and the atmosphere surrounding the termination of the arrangement, it feared that the former agent would attempt to disrupt its business.
[5] The applicant wrote to the Canadian Consulate General in Hong Kong advising of the termination of its relationship with its Guangzhou agent and warning of possible wrong- doing by that former agent. It suggested that the former agent might well pretend that the applicant"s clients were its own, would attempt to represent those clients itself, and would further attempt to ruin the reputation of the applicant.
[6] The applicant reiterated its concerns to the Consulate General on a number of occasions, provided the Consulate General with a list of its then current clients and requested that the Consulate General both be on guard and conduct an investigation with regard to the applicant"s concerns.
[7] The Consulate General in fact received a number of complaints, or alleged complaints, against the applicant from clients or former clients of the applicant. The Consulate General sent out a letter to approximately 40 clients or former clients of the applicant attempting to verify whether or not they were represented by the applicant. Among the responses received, only one confirmed an on-going relationship with the applicant. That response was considered suspect. Further complaints were received. No other investigation of the complaints of the applicant was conducted.
[8] The applicant continued to express concerns to the Consulate General including concerns that mail being sent directly to its clients or alleged clients was not being received.
[9] Essentially without acknowledging the applicant"s concerns, the alleged decision to deal only with the applicant"s clients at their home addresses and not to correspond with the applicant was taken.
THE ISSUES
[10] In the material before the Court and during the course of presentations before me, the following issues were identified:
| (a) was the respondent, as represented by the decision-maker, acting as a "federal board, commission or other tribunal" in advising the applicant as it did in the letter of the 24th of April, 1998 quoted in part earlier in these reasons? |
| (b) did the letter of the 24th of April, 1998 constitute a "decision" within the meaning of that term in section 18.1 of the Federal Court Act?1 |
| (c) is the applicant "anyone directly affected", as contemplated in subsection 18.1(1) of the Federal Court Act, by the alleged decision in respect of which relief is sought on this application for judicial review? |
| (d) did the decision-maker commit a reviewable error in arriving at the alleged decision communicated by the letter of the 24th of April, 1998? and |
| (e) is the relief sought on behalf of the applicant, or any of it, appropriate on the facts of this matter? |
It will be seen that the issues are, essentially, each contingent on those that precede it.
POSITIONS OF THE PARTIES AND ANALYSIS
| (a) "Federal board, commission or other tribunal" |
[11] The following definition appears in subsection 2(1) of the Federal Court Act (the "Act"):
| "federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
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"office fédéral" Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.
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[12] In Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services)2, not cited before me, Mr. Justice Décary wrote at page 700:
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The phrase "powers conferred by or under an Act of Parliament" found in the definition of a "federal board, commission or other tribunal" is particularly broad ... . |
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Mr. Justice Décary later continued at pages 701-702:
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When it amended paragraph 18(1)(a) of the Federal Court Act in 1990 to henceforward permit judicial review of decisions made in the exercise of a royal prerogative, Parliament unquestionably made a considerable concession to the judicial power and inflicted a significant setback on the Crown as the executive power, if one may characterize making the government still further subject to the judiciary as a setback. What appears from this important amendment is that Parliament did not simply make the "federal government" in the traditional sense subject to the judiciary, but intended that henceforth very little would be beyond the scope of judicial review [citations omitted]. |
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On the basis of the foregoing authority, and on the basis that this issue was not strongly contested before me, I conclude that the decision-maker was acting as a "federal board, commission or other tribunal" when he wrote the letter of the 24th of April, 1998 to the applicant.
| (b) Did the letter of the 24th of April, 1998 constitute a decision? |
[13] Subsections 18.1(1) and (3) of the Act read as follows:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
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18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande.
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| (3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. [emphasis added]
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(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_:
a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou don"t il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
[Je souligne]
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[14] Counsel for the applicant urged that the letter of the 24th of April, 1998 was clearly a decision but that, if it were not, it was nonetheless a "matter" within the scope of subsection 18.1(1) of the Act . Counsel for the respondent urged to the contrary that the letter in question did not constitute a reviewable decision or matter.
[15] In Hinson v. Canada (Minister of Citizenship & Immigration)3, Mr. Justice Cullen wrote:
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In Mahabir v. Canada (Minister of Employment & Immigration) ... [1992] 1 F.C. 133 (C.A.), Mahoney J.A. stated [at p. 140]: |
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A decision is reviewable under section 28 not only, as held by the earlier jurisprudence, if it is the decision the tribunal has been mandated by Parliament to make, but also if it is a final decision that disposes of a substantive question before the tribunal. |
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In Canada (Attorney General v. Mossop, [1993] 1 S.C.R. 554, the Supreme Court of Canada found that for a determination to constitute a "decision or order", the result must be a final determination. |
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[16] In Carvajal v. Minister of Employment and Immigration4 Mr. Justice McKeown emphasized that a mere "informational letter", particularly when written by a person not authorized to take a final decision, is not a decision subject to judicial review.
[17] Against the foregoing authorities, counsel for the respondent urged that the letter of the 24th of April, 1998 was in the nature of an informational letter and, whatever its nature, it was certainly not a final decision that disposed of a substantive question.
[18] I respectfully disagree with the position of counsel for the respondent. The letter of the 24th of April, 1998 was not merely informational. The evidence before me would indicate that the respondent had a policy or practice of corresponding with applicants for landing in Canada at their mailing addresses as identified in their applications for landing. Following complaints from applicants for landing who were clients of the applicant herein, and following a limited investigation, the respondent determined to vary from its policy or practice in respect of clients of the applicant and to correspond with them at their home addresses, notwithstanding that they indicated their mailing addresses in their applications for landing as being the address of the applicant. I cannot characterize that determination as being anything other than a decision. While it might be urged that it is nothing more than an administrative decision that does not dispose of a substantive question before the respondent, in light of the quotations from Gestion Complexe Cousineau above as to the breadth of judicial review, I conclude otherwise. Certainly, as between the respondent and the applicant, the decision, as reflected in the letter of the 24th of April, 1998 disposed of a "substantive question" placed before the respondent by the applicant.
[19] In summary then, I conclude that the letter of the 24th of April, 1998, constituted a reviewable decision.
| (c) Standing of the applicant to bring this application for judicial review |
[20] By reference to the terms of subsection 18.1(1) of the Act quoted earlier in these reasons, this issue essentially turns on whether or not the applicant is "anyone directly affected by the matter in respect of which relief is sought." In Friends of the Island Inc. v. Canada (Minister of Public Works)5, Madame Justice Reed wrote at page 283:
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I think the wording of subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted. (This assumes there is a justiciable issue and no other effective and practical means of getting the issue before the courts.) |
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[21] I conclude that there is here a justiciable issue.
[22] The particular circumstances of this "case" and the type of interest which the applicant holds can be summarized as follows: applicants for landing in Canada nominated the address of the applicant herein as their address to which communications regarding their applications for landing should be sent. Presumably they did so because they were relying on the applicant herein for advice as to how to make out their case for coming to Canada. It is a choice that I must assume they made voluntarily and with reasonable knowledge of the implications. In the result, I assume that the applicant herein became entitled to some sort of fee for its services. The "decision" here under review has the effect of precluding, or at the very least, seriously impeding the applicant herein from performing its advisory role to the applicants for landing. Arguably at least, the "decision" runs the risk of putting the applicant herein out of business, at least in relation to applicants for landing from the People"s Republic of China, the principle, if not only, source of the applicant"s business. On the basis of the foregoing analysis, I am satisfied that the circumstances of this case and the interest of the applicant justify status being granted. In essence, I am satisfied that the applicant is a person "directly affected" by the "decision".
[23] That leaves open the second issue referred to parenthetically by Madame Justice Reed, of whether or not there is an alternative effective and practical means of getting the question herein at issue before this Court. I am satisfied there is. If one or more of the applicant"s clients, the applicants for landing in Canada, felt seriously prejudiced by the "decision" to send all communications to his or her address rather than the address specified in his or her application for landing, that applicant for landing would, I am satisfied, clearly have standing to bring an application equivalent to the one now before the Court. However, I am satisfied that such an applicant would be hard pressed to justify seeking the range of relief that the applicant herein now seeks, and any relief that he or she might reasonably seek could not provide a result that would be satisfactory to remedy the potential detriment to the applicant herein.
[24] Against the foregoing analysis, I conclude that the applicant has standing to bring this application for judicial review.
| (d) Did the decision-maker commit a reviewable error in arriving at the "decision" here under review? |
[25] The only reviewable error alleged on behalf of the applicant is that the decision-maker failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe. Counsel for the applicant alleges that the respondent failed to respond to or acknowledge its letters of concern regarding the impact of the breakup of its relationship with its agent in China and failed to provide any detail of the alleged complaints made by applicants for landing against it and to provide an opportunity for it to respond to those complaints.
[26] In Shah v. Minister of Employment and Immigration6, Mr. Justice Hugessen wrote:
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It is common place that the content of the duty of fairness varies according to the circumstances. |
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The Court there concluded that, on the facts of the case before it, the content was minimal. After describing the decision there under review, Mr. Justice Hugessen continued:
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The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. |
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I am satisfied that the same can be said here. Later, Mr. Justice Hugessen continued:
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In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. |
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The decision that was before the Federal Court of Appeal and to which Mr. Justice Hugessen addressed his remarks was a decision not to recommend to the Governor-in-Council the exercise of discretion to grant an exception to an applicant from the requirements of subsection 9(1) of the Immigration Act.7 Thus, the applicant in the matter that was before the Court of Appeal, was an applicant for particular relief under the Immigration Act, not a mere agent, as here, for an applicant for relief under that Act. On the facts of this matter, I am satisfied that the content of the duty of fairness was no higher than in the case before the Court of Appeal.
[27] Against the duty of fairness, if any, applicable on the facts of this matter, I conclude the respondent made no reviewable error in arriving at the decision here under review.
[28] In light of my conclusions to this point, I need not address this issue since I have concluded there is no reviewable error that would warrant relief in favour of the applicant. That being said, if relief were warranted, I am satisfied that the relief being sought is significantly broader than can be justified. If I were to conclude that relief is warranted, that relief would be limited to the setting aside of the decision under review and the reference of the matter back for redetermination.
COSTS
[29] The respondent seeks costs, not merely on an ordinary basis, but on an extraordinary basis by reason of an offer of settlement transmitted to the applicant, at most, two days before the hearing scheduled for this matter where the only clear intervening day was the 11th of November, a day on which the offices of this Court, and many other offices, are not open for business. I am not prepared to take into account the offer of settlement, given the proximity in time between the time it was made and the date of the hearing of this matter. That being said, the respondent will have its costs, on the ordinary scale.
"Frederick E. Gibson"
Judge
Toronto, Ontario
November 26, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2306-98
| STYLE OF CAUSE: HENRY GLOBAL IMMIGRATION SERVICES |
- and -
| CITIZENSHIP AND IMMIGRATION CANADA |
DATE OF HEARING: THURSDAY, NOVEMBER 12, 1998
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON J.
DATED: THURSDAY, NOVEMBER 26, 1998
APPEARANCES: Mr. Cary Chiu
For the Applicant
Ms. Jocelyne Sigouin
For the Respondent
SOLICITORS OF RECORD: Maclaren and Corlett
| 45 O'Connor Street, Suite 1540 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981126
Docket: IMM-2306-98
Between:
| HENRY GLOBAL IMMIGRATION SERVICES |
Applicant
- and -
| CITIZENSHIP AND IMMIGRATION CANADA |
Respondent
REASONS FOR JUDGMENT
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1 R.S.C. 1985, c. F-7 (as amended)
2 [1995] 2 F.C. 694 (F.C.A.).
3 (1994), 26 Imm. L.R. (2d) 40 at 44 (F.C.T.D.).
4 (1994), F.T.R. 241.
5 [1993] 2 F.C. 229 (T.D.).
6 (1994), 170 N.R. 238 (F.C.A.), (not cited before me).
7 R.S.C. 1985, c. I-2.
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