Tihomirovs v. Canada (Minister of Citizenship and Immigration), 2005 FC 479

Date: 20050412

Docket: IMM-8863-04

Citation: 2005 FC 479

Ottawa, Ontario, April 12, 2005

Present:           The Honourable Madam Justice Mactavish                                    

BETWEEN:

                                                       ANDREJS TIHOMIROVS

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                On February 1, 2002, Andrejs Tihomirovs applied for permanent residence under the provisions of the Immigration Act. His application was not processed prior to the coming into force of the Immigration and Refugee Protection Act on June 28, 2002.

[2]                Mr. Tihomirovs is of the view that had his application been dealt with under the Immigration Act, it would have been successful. He also believes that he will not meet the requirements of the new legislation. As a consequence, Mr. Tihomirovs brought an application for judicial review wherein he seeks an order of mandamus, or a permanent mandatory injunction, directing the respondent Minister of Citizenship and Immigration to assess his application in accordance with the former legislation.

[3]                Mr. Tihomirovs now seeks an order directing that this application for judicial review be treated and proceeded with as an action. Should the motion be granted, it is Mr. Tihomirovs' intention to seek to have the action certified as a class action brought on behalf of all skilled worker, self-employed, entrepreneur and investor applicants for permanent residence, excluding provincial nominees and those destined for the province of Quebec, who submitted their applications between January 1, 2002 and June 28, 2002.     

Factual Background Relating to Mr. Tihomirovs' Application for Permanent Residence

[4]                Mr. Tihomirovs is a civil engineer, who resides in Latvia. He wishes to move with his family to Canada. To this end, he filed an application for permanent residence on February 1, 2002 as part of the federal skilled worker class.

[5]                At the time that Mr. Tihomirovs' application for permanent residence was filed, he was to be assessed according to the selection criteria set out in the Immigration Regulations, 1978, SOR/78-172. Mr. Tihomirovs deposes that he believes that he would have received a score of 74 points under this regime. At the time, a candidate needed 70 points to succeed.

[6]                Mr. Tihomirovs further deposes that under the new selection criteria embodied in the Immigration and Refugee Protection Regulations, SOR/2002-227, he would only receive 65 points. The pass mark is now 67 points, and thus Mr. Tihomirovs is of the view that while he would have qualified for immigration under the old regime, he is no longer eligible.

[7]                According to Mr. Tihomirovs, this is the only obstacle impeding his immigration to Canada.

[8]                By Mr. Tihomirovs' estimation, there are approximately 40,000 people in the same situation as he is.

Related Litigation

[9]                The introduction of new selection criteria for applications for permanent residence in the Immigration and Refugee Protection Regulations has spawned a great deal of litigation brought by individuals whose applications for permanent residence were pending as of June 28, 2002.

[10]            On February 21, 2003, Justice Kelen found that the Minister had breached his implied duty to use his reasonable best efforts to assess the applications for permanent residence of a group of 102 individuals in a timely manner. These individuals had filed their applications for permanent residence prior to January 1, 2002. (Individuals filing applications for permanent residence before January 1, 2002 will henceforth be referred to as "Group A" applicants).

[11]            As a result, Justice Kelen issued writs of mandamus requiring that the respondent assess these applications in accordance with the selection criteria established under the Immigration Act, and to complete these assessments by March 31, 2003: Dragan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 260.

[12]            No relief was granted by Justice Kelen with respect to applications for permanent residence filed between January 1, 2002 and the coming into force of the Immigration and Refugee Protection Act on June 28, 2002 ("Group B" applications). In Justice Kelen's view, the proper interpretation of the transitional provisions contained in section 361 of the Immigration and Refugee Protection Regulations was that applications for permanent residence filed after January 1, 2002 were to be assessed in accordance with the new legislative regime.

[13]            Numerous other proceedings dealing with related issues moved forward under case management. One of these proceedings was Mr. Tihomirovs' application for judicial review. Mr. Tihomirovs' application was originally joined with those of 153 other named individuals. Of these, 133 applicants belonged to Group A, whereas 21 applicants, including Mr. Tihomirovs, belonged to Group B.

[14]            On September 18, 2003, the respondent advised that the Immigration and Refugee Protection Regulations would be amended so that Group A applications would be assessed in accordance with the selection criteria established under the former legislation.

[15]            Late in 2003, the respondent agreed to settle the litigation brought by Group A applicants. All parties agreed to consent to the certification of one of the Group A proceedings as a class action. Certification was granted, on consent, on November 10, 2004: Mohsen Rasolzadeh v. Her Majesty the Queen and Minister of Citizenship and Immigration, IMM-2286-03. The settlement agreement was approved by the Court on April 11, 2005.

[16]            On October 15, 2004, the Court ordered that the claims of Group B applicants, including that of Mr. Tihomirovs, be severed from those of the Group A applicants. The Court further ordered that the claims of the 21 Group B applicants proceed as separate judicial reviews, with the commencement date of each being recorded as June 19, 2002.

[17]            Of this group of 21 Group B applicants, it is Mr. Tihomirovs who has come forward to act as a class representative, in the event that the matter is certified as a class action. To this end, he now seeks to have his application for judicial review treated and proceeded with as an action, to allow a motion to then be brought in order to have the matter certified as a class action.

Issue

[18]            Thus the question for the Court is whether, in the circumstances, Mr. Tihomirovs' application for judicial review should be treated and proceeded with as an action. For ease of reference, this process will be referred to as "converting" an application for judicial review to an action.

[19]            In addressing this question, it is necessary to consider the appropriate test to be applied on a motion for conversion, and, in particular, what weight, if any, should be given to the desire of an applicant to apply for class action certification.

Conversion Generally

[20]            The conversion of applications for judicial review to actions is governed by the provisions of section 18.4 of the Federal Courts Act, R.S., 1985, c. F-7, s. 1; 2002, c. 8, s. 14, which provides:

[21]       In Canada (Attorney General) v. Macinnis, [1994] 2 F.C. 464, the Federal Court of Appeal observed that "One should not lose sight of the clear intention of Parliament to have applications for judicial review determined wherever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible".

[22]       As a consequence, the Court held that "It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2) of the Act."

[23]       A much broader view of the scope of the discretion conferred by subsection 18.4(2) of the Federal Courts was taken by the Federal Court of Appeal the following year in Drapeau v. Canada (Minister of National Defence) (1995), 179 N.R. 398, where it was held by a majority of the Court that a motions judge does not err in giving consideration to the desirability of avoiding a multiplicity of proceedings on a motion for conversion. In the view of the majority in Drapeau, Macinnisshould not be read as limiting a motions judge's discretion in cases where conversion to an action is sought on grounds apart from alleged evidentiary considerations.

[24]       The majority further observed that subsection 18.4(2) of the Act placed no limits on the factors that can properly be considered on a conversion motion, and that "The desirability of facilitating access to justice and avoiding unnecessary cost and delay is certainly one of them".

Conversion to Allow for Class Proceedings

[25]       It bears noting that, at the time that the Federal Court of Appealwas called upon to deal with the motions for conversion in Macinnis and Drapeau, the Federal CourtsRules did not provide for the possibility of class actions. That changed in 2002, with the introduction of Rules 299.1 to 299.42.

[26]       In Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1573, Justice Russell was asked to convert an application for judicial review to an action, in part so as to enable the applicants to apply to have the proceeding certified as a class action. Justice Russell framed the issue before him as whether "a manifest and continuing intention to seek class certification by the Applicants should be a factor that is taken into account when exercising the Court's discretion under subsection 18.4(2)".

[27]       In coming to the conclusion that conversion should be permitted, Justice Russell noted that Drapeau places no limits on the factors that the Court may consider on a motion for conversion, stating that:

            [9] Because the Federal Court of Appeal has deliberately drawn attention to the Macinnis decision in Drapeau and has told us how Macinnis should not be read, it seems to me that I am bound to follow Drapeau and that I must assume for purposes of this motion that "subsection 18.4(2) places no limits on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action" and that the "desirability of facilitating access to justice and avoiding unnecessary cost and delay is certainly one of them."

[28]       After considering the circumstances of the case before him, Justice Russell went on to observe that:

[53] Because it has always been the avowed intent of the Applicants to seek class action certification, and because, in my view, the facts that lie behind these motions make it entirely reasonable and appropriate that they should do so (and this is not to anticipate or guess at the result of any such attempt), it seems to me that it would be tantamount to a denial of the rights of the Applicants, and those they seek to represent, to deprive them of the opportunity to seek class action certification by denying them conversion under subsection 18.4(2) at this stage.

[54] I cannot grant or even consider the Applicants' prayer for class action certification as part of this motion. But if I deny them conversion, I will, in effect, be making a decision to deny them class certification because, without conversion, such certification is not available to them under the present Rules.

[55] In my view, this is a fundamental access to justice issue that Drapeau says is a legitimate consideration when the Court is asked to exercise its discretion under subsection 18.4(2) of the Act.

[29]       For reasons that will be discussed more fully further on in this decision, in relation to the issue of certification, the respondent's appeal of Justice Russell's decision in Chen was quashed by the Federal Court of Appeal: Chen v. Canada (Minister of Citizenship and Immigration), 2005FCA 56.

Position of the Parties

[30]       According to Mr. Tihomirovs, his desire to apply to have this matter certified as a class action forms a sufficient basis, by itself, to have this application converted to an action.

[31]       In the alternative, Mr. Tihomirovs submits that the Court should consider whether the issues raised by his application arguably meet the five-part test for certification set out in Rule 299.18 of the Federal CourtsRules. That is, the Court should consider whether it is arguable that his claim discloses a reasonable cause of action, that there is an identifiable class of two or more individuals, that the claims of these individuals raise common questions of fact and law, that proceeding by way of a class proceeding would be a preferable procedure, and that he is a suitable class representative.

[32]       Put another way, Mr. Tihomirovs says that the Court should satisfy itself that the desire on the part of Mr. Tihomirovs to have this matter proceed as a class action is neither frivolous nor vexatious.

[33]       While conceding that he faces an uphill battle, given that Justice Russell's decision in Chen is directly against him, counsel for the respondent nevertheless points out that section 18 of the Federal CourtsAct makes it clear that matters such as this are to be dealt with summarily.        

[34]       According to the respondent, if leave to convert Mr. Tihomirovs' application for judicial review to an action is granted, and certification is subsequently denied, Parliament's intention in this regard will have been frustrated.

[35]       Further, the respondent points out that in Drapeau, Mr. Drapeau was simultaneously bringing an application for judicial review and an action. While allowing the application for judicial review to be converted to an action permitted both matters to proceed in tandem, the Court was nevertheless going to have to deal with Mr. Drapeau's action in any event. In contrast, in this case, if certification is denied, the Court will be left to deal with an unnecessary action.     

[36]       The respondent also points to the history of the class action Rules, observing that while the discussion paper prepared by the Court's Rules Committee originally contemplated having the class proceeding provisions apply equally to both applications for judicial review and actions, ultimately the decision was made to have the Rules apply only to actions. In that context, the respondentsays, allowing applicants to convert their applications for judicial review to actions purely for the purposes of allowing them to seek certification would do violence to the clear intent behind the Rules.

[37]       Insofar as the five-part test for certification is concerned, the respondent argues that the issues raised by Mr. Tihomirovs have already been disposed of by Justice Kelen in Dragan, and that, as a result, the claim raised no reasonable cause of action. According to the respondent, the new arguments that Mr. Tihomirovs claims to be raising that were not dealt with in Dragan were in fact either dealt with by Justice Kelen, or lack an evidentiary foundation.

[38]       The respondent submits that the issues raised by Mr. Tihomirovs' case are legal in nature, and as such are entirely amenable to being dealt with by way of an application for judicial review. Further, Mr. Tihomirovs can achieve the result he seeks on behalf of others affected by the transitional provisions in the Immigration and Refugee Protection Act through the vehicle of a declaration granted in the context of his case.    

Analysis

[39]       Class actions allow for improved access to justice for those who might otherwise be unable to seek vindication of their rights through the judicial system. Class actions also enhance judicial economy, allowing a single action to decide large numbers of claims involving similar issues: Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534.

[40]       Recognizing that Drapeau does not limit the factors that may be considered on a motion for conversion, I agree with the view espoused by Justice Russell in Chen that the intention of an applicant to seek class action certification is a relevant factor to consider on a motion to convert an application for judicial review to an action.

[41]       I will not address several of the respondent's arguments, such as whether Mr. Tihomirovs can achieve the resolution that he seeks on behalf of himself and others by means of a declaratory order issued in the context of his application for judicial review. A determination as to the preferable procedure to be followed in a given set of circumstance is one of the elements of the five-part test for certification. I do not believe that it is appropriate to carry out a preliminary assessment as to whether this case will be able to satisfy the five-part test for certification at this juncture in the proceedings. In my view, it is more appropriate to have this triage or 'gatekeeper' function carried out at the certification stage, when the five criteria in Rule 299.18 can be fully canvassed.^[1]

[42]       That said, there may well be cases where it is so clear on the face of the application for judicial review that the nature of the application is so manifestly unsuited to proceeding by way of class action that conversion should not be permitted. Without opining in any way on the merits of Mr. Tihomirovs' claim, this is not one of those cases.          

[43]       As Justice Russell noted, refusing leave to convert in circumstances such as this results in effectively denying certification to Mr. Tihomirovs, as without his application being converted to an action, certification will be unavailable to him.

[44]       I agree that this raises an issue of access to justice. In the circumstances, I am prepared to exercise my discretion and to direct that Mr. Tihomirovs' application for judicial review be treated and proceeded with as an action.

Conclusion

[45]       For these reasons, the motion is granted. Mr. Tihomirovs' application for judicial review shall be treated and proceeded with as an action. Mr. Tihomirovs shall have 15 days in which to deliver a Statement of Claim.

Certification

[46]       The Minister proposes the following questions for certification:

1.             Is a desire to seek certification of a class action a relevant consideration on a motion, pursuant to section 18.4(2) of the Federal CourtsAct, to convert an application for judicial review into an action? and

2.              If so, what is the test for conversion in the circumstances? Does it include consideration of the factors listed in Rule 299.18, which sets out the test for certification of a class action?

[47]       Mr. Tihomirovs agrees that these questions raise issues of general importance and should be certified.

[48]       An order allowing the conversion of an application for judicial review to an action is interlocutory in nature. In Geza v. Canada (Minister of Citizenship and Immigration) (2001), 266 N.R. 158, the Federal Court of Appeal held that while such an interlocutory order could be appealed, it was first necessary that a question or questions be certified by the motions judge.

[49]       No questions were certified by Justice Russell in Chen. Nevertheless, the Minister endeavoured to appeal Justice Russell's decision to the Federal Court of Appeal. The applicants/plaintiffs were successful in having the appeal quashed on the grounds that it arose out of an application for judicial review in an immigration matter, and no question had been certified by Justice Russell.

[50]       As a consequence, to date, there has been no appellate consideration of the weight, if any, that should be attributed to the intention of a party to seek to apply to have a matter certified as a class action, in assessing whether or not the application for judicial review should be converted to an action. Nor has there been any appellate consideration of the test to be applied in such circumstances.      

[51]       In this context, the questions suggested by the Minister raise serious issues of general importance which transcend the interests of the parties. In addition, the answers to these questions would be determinative of the appeal. As a consequence, the questions will be certified.

                                                                       ORDER

THIS COURT ORDERS that:

1.          Application for judicial review IMM-8863-04 shall be treated and proceeded with as an action pursuant to subsection 18.4(2) of the Federal Courts Act;

2.          Mr. Tihomirovs shall have 15 days in which to deliver a Statement of Claim;

3.          The following questions of general importance are certified:

1.             Is a desire to seek certification of a class action a relevant consideration on a motion, pursuant to section 18.4(2) of the Federal CourtsAct, to convert an application for judicial review into an action? and

2.              If so, what is the test for conversion in the circumstances? Does it include consideration of the factors listed in Rule 299.18, which sets out the test for certification of a class action? and

4.        No order is made as to costs.

               "Anne L. Mactavish"                   

Judge                                

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-8863-04

STYLE OF CAUSE:                          ANDREJS TIHOMIROVS

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      April 5, 2005

REASONS FOR ORDER

AND ORDER :                               MACTAVISH J.

DATED:                                             April 12, 2005

APPEARANCES:

Dan Miller

For the Applicant

Kevin Lunney

For the Respondent

SOLICITORS OF RECORD:

Dan Miller

Barrister & Solicitor

Toronto, ON

For the Applicant

John H. Sims, Q.C.

Deputy Attorney General of Canada

For the Respondent