Date: 20110609
Docket: IMM-2244-11
Citation: 2011
FC 669
Vancouver, British
Columbia, June 9, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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THE CANADIAN SOCIETY OF IMMIGRATION
CONSULTANTS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The
Applicant in this matter is the Canadian Society of Immigration Consultants
(the Society or CSIC). CSIC is currently named in s. 2 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations)
as the regulatory body of immigration consultants whose members are “authorized
representatives”. As such, CSIC members may represent, advise or consult
with persons who are the subject of a proceeding or application under the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). In a press release
communicated to the public on March 18, 2010, the Minister of Citizenship and
Immigration (the Minister), the Respondent in this matter, announced that CSIC
would be replaced by a group known as the Immigration Consultants of Canada
Regulatory Council (the ICCRC). An amendment to s. 2 of the Regulations
to effect this change was pre-published in Part I of the Canada Gazette on
March 19, 2011.
[2]
By
Notice filed April 4, 2011, CSIC commenced an application for leave and
judicial review of the decision of the Minister to revoke CSIC’s designation as
the regulator of immigration consultants. In this motion, CSIC seeks an order
of this Court to stay the decision of the Minister until the underlying
application for leave and judicial review has been finally determined.
[3]
For
the following reasons, I have concluded that the motion should be dismissed.
II. Issues
[4]
The
overarching question before me in this motion is whether CSIC is entitled to
the equitable remedy of an interlocutory injunction. It is well-established in
relevant jurisprudence (RJR-MacDonald Inc v Canada (Attorney General),
[1994] 1 S.C.R. 311; American Cyanamid Co et al v Ethicon Inc et al,
[1975] FCJ No 1123) that entitlement to injunctive relief is based on
establishing all elements of a tri-partite test.
[5]
Thus,
the issues before me are:
1. Is there a serious
question to be tried?
2. Will CSIC suffer irreparable
harm if the injunctive relief is not granted?
3. Does the balance of
convenience favour CSIC?
III. Preliminary Matter
[6]
A
few days prior to the hearing of the motion for a stay, CSIC filed a motion
seeking to admit the affidavit of Lorne Sossin, Dean of Osgoode Law School.
Dean Sossin was retained as an “expert” by CSIC to provide an opinion on the
issue of the reviewability of the decision to revoke the designation of CSIC.
[7]
The
problem that I have with Dean Sossin’s affidavit is that it consists solely of
a legal opinion on a matter of Canadian domestic law. As such, it is not
admissible evidence (see, Brandon (City) v Canada, 2010 FCA 244, [2010]
FCJ No 1202, at para 27; Eurocopter v Bell Helicopter Textron Canada Ltée,
2010 FC 1328, [2010] FCJ No 1650, at para 11; Pan American World Airways Inc
v The Queen and the Minister of Transport, [1979] 2 FC 34 (TD) at para 21,
affirmed [1980] FCJ No 1158 (FCA), 120 DLR (3d) 574, affirmed [1981] 2 SCR
565).
[8]
The
affidavit does not meet the test of necessity as described in R v Mohan,
[1994] 2 S.C.R. 9. The Supreme Court in Mohan set out four
requirements to be met before expert evidence is accepted in a trial: (a)
relevance; (b) necessity in assisting the trier of fact; (c) the absence of any
exclusionary rule; and (d) a properly qualified expert. In the very recent case
of Masterpiece Inc v Alavida Lifestyles Inc, 2011 SCC 27, [2011] SCJ No
27, the Supreme Court reiterated its support for this test and, with respect to
the requirement of “necessity”, stated the following (at para 75):
In
considering the standard for the second of these requirements, “necessity”, the
Court [in Mohan] explained that an expert should not be permitted
to testify if their testimony is not “likely to be outside the experience and
knowledge of a judge”.
[9]
The
Dean Sossin affidavit will not be admitted – for purposes either of this motion
or as part of the Applicant’s Record for the application for leave and judicial
review.
IV. Background
[10]
Foreign
nationals, who wish to visit, work or live permanently in Canada, frequently need
assistance to weave their way through the requirements of IRPA and the Regulations.
Parliament, recognizing that non-lawyer consultants may provide such services
but that unregulated consultants are not in the public interest, provided the
Governor-in-Council (GIC) with the ability to regulate “who may or may not
represent, advise or consult with a person who is the subject of a proceeding
or application before the Minister, an officer or the [Immigration and Refugee Board]”
(IRPA, s 91).
[11]
In
2004, the Regulations were amended (SOR/2004-59) to recognize members of
CSIC as “authorized representatives” under s. 2 of Regulations:
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“authorized
representative” means a member in good sanding of a bar of a province, the
Chambre des notaires du Québec or the Canadian Society of Immigration
Consultants incorporated under Part II of the Canada Corporations Act
on October 8, 2003. [Emphasis added]
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«
représentant autorisé » Membre en règle du barreau d’une province, de la
Chambre des notaires du Québec ou de la Société canadienne de consultants en
immigration constituée aux termes de la partie II de la Loi sur les
corporations canadiennes le 8 octobre 2003.
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[12]
A
detailed history of the origins of CSIC is described in the Federal Court of
Appeal decision in The Law Society of Upper Canada v Canada (Minister of
Citizenship and Immigration), 2008 FCA 243, [2008] FCJ No 1093. I will not
repeat that history in this decision. However, the following paragraphs set out
the key facts directly relevant to this motion.
[13]
Public
criticisms of immigration consultants and CSIC have been ongoing since at least
2006. While CSIC may question the legitimacy of some of its critics, there is
no question that the organization has been the subject of significant negative
comments. As a result of the perceived problems with immigration consultants,
the Parliamentary Standing Committee on Citizenship and Immigration was
mandated by Parliament to study immigration consultants. CSIC was the focus
of much of the Committee’s attention. After public hearings across Canada, where many individuals
and organizations were heard, the Standing Committee issued a lengthy report –
“Regulating Immigration Consultants” – in June 2008. The Report contained a
number of recommendations, including a recommendation that CSIC be restructured
as a “new regulator” under stand-alone legislation. The Minister examined a
number of options and, apparently for policy reasons, determined that, rather
than stand-alone legislation, amendments could be made to IRPA and the Regulations
to provide for better governance and accountability of immigration consultants.
[14]
Bill
C-35 was introduced into Parliament on June 8, 2010, by the Minister. Of
importance, the proposed legislation expanded the regulatory oversight over
immigration consultants and provided that the Minister could, by regulation,
designate or change a regulator of immigration consultants. While Bill C-35
received Royal Assent on March 3, 2011, no date has been set for its coming
into force. Until Bill C-35 comes into force, a change of the regulator can
only be made by the GIC, in accordance with s. 91 of IRPA, as it
currently exists.
[15]
On
June 8, 2010, the Minister announced that Citizenship and Immigration Canada
(CIC) would launch a selection process to identify the governing body for
immigration consultants. On June 12, 2010, a Notice of Intent was
published in the Canada Gazette advising of a “competitive public selection
process.” On August 28, 2010, a further Notice was published in the Canada
Gazette inviting submissions from candidate entities “interested in performing
the responsibilities of a governing body for the regulation of immigration
consultants”. A number of selection criteria were set out in the Notice.
Four entities submitted proposals. A Selection Committee was struck to review
submissions and to provide recommendations to the Minister
as to which entities satisfied the “necessary competencies”. In its
Report, provided to the Minister on January 27, 2011, the Selection Committee
found that the Institute of Chartered Canadian Immigration Practitioners
(ICCIP) met the selection factors described in the Notice and that the CSIC
“largely” met the factors. The Committee observed that ICCIP, in its
submission, “made a concerted effort to demonstrate how the ICCIP would
fully address areas of concerns that were expressed by the Standing Committee”
and that CSIC “missed the opportunity to demonstrate how CSIC would address
areas of concern”.
[16]
The
Standing Committee Report was presented to the Minister along with a Memorandum
from the Deputy Minister who set out three options that could be followed; the
recommended option was to proceed to recommend to the GIC that the Regulations
be amended so that ICCIP would be the regulator of immigration consultants.
[17]
ICCIP
has subsequently incorporated as ICCRC.
[18]
On
March 18, 2011, the Minister issued a News Release announcing that a notice
would be published in the Canada Gazette proposing to amend the Regulations
so that ICCRC would become the regulator of immigration consultants. On March
19, 2011, the proposed regulatory amendments were pre-published in the Canada
Gazette. The proposed amendments are:
1. To
amend s. 2 of the Regulations to replace CSIC in the definition of
“authorized representative” with ICCRC; and
2. To
amend s. 13.1(2) of the Regulations to provide a transition period of
120 days for members of CSIC to continue to act as “authorized
representatives”.
[19]
As
described in a document on the website of the Secretariat of the Treasury Board
of Canada entitled “Guide to the Regulatory Policy”, pre-publication of a
regulatory proposal is Step 7 in a process leading to GIC approval of a
regulatory instrument. Pre-publication of a proposed regulation, together with
a Regulatory Impact Analysis Statement (RIAS), “allows for public scrutiny and
comment on the proposal”. In this case, 30 days was allowed for comment. After
this period expires, the proposed regulations may be updated. At the very
least, if the proposal is not changed, the RIAS must be amended to reflect the
comments received. Additional approvals must be obtained from Treasury Board.
No regulation is enacted before the Treasury Board Ministers make a decision to
recommend approval of the regulatory proposal by the GIC. Finally, the
proposed regulatory instrument is sent to the GIC for approval. The Governor
General makes the regulation by signing it and the regulation is then
registered.
[20]
In
summary, at this time, the amendments to the Regulations have been
pre-published in the Canada Gazette and comments have been received. There is
little information before the Court on the current status of the amendments. We
do have one indication that the Minister is proceeding on the track to
implementation. That evidence is a further Contribution Agreement with ICCRC,
entered into on or about May 24, 2011. Beyond that contract, which is
conditional on the regulatory amendments, there is no evidence as to when (or
if) the amendments will be enacted.
V. Analysis
A. Serious Issue
[21]
The
first question to be asked on the tri-partite test is whether the application
for judicial review of the Society raises a serious issue. The threshold to be
met on the matter of serious issue is very low. With respect to the
seriousness of the issue to be tried, the Supreme Court of Canada in RJR-MacDonald,
above, at 337-338, held:
The
threshold is a low one. ... Once satisfied that the application is neither
vexatious nor frivolous, the motions judge should proceed to consider the
second and third tests, even if of the opinion that the plaintiff is unlikely
to succeed at trial. A prolonged examination of the merits is generally neither
necessary nor desirable.
[22]
As
reflected in its Notice of Application and explained more fully in oral
submissions on this motion, CSIC claims that the process leading to the
Minister’s decision to put forward the amendments to the Regulations was
flawed in a number of ways. The alleged serious issues include the following:
• the
Minister failed to comply with the principles of natural justice and procedural
fairness;
• the
Minister made his decision to replace CSIC on the basis of irrelevant
considerations; specifically, the Minister relied on factors or competencies
that were not identified in the Request for Submissions published August 28,
2010;
• the
Minister erred by failing to comply with the legitimate expectations of CSIC
that the process used to select the “new regulator” would be fair, open and
transparent; and,
• the
Minister’s conduct, including his statements and involvement prior to and
during the selection process, gave rise to a reasonable apprehension of bias.
[23]
One
of the key questions in this judicial review is the extent to which a decision
of the Minister to proceed with the amendments to the Regulations is
subject to a duty of fairness. The Minister presents strong arguments,
based on a consistent line of authorities (see, in particular, Canada (Attorney General) v
Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735) that legislative decisions, such as
this, are not subject to a duty of fairness. CSIC responds that, in general,
ministerial decisions should be examined and assessed on a spectrum from
administrative in nature to legislative. In this case, CSIC submits, a
particular individual or entity has been singled out for adverse treatment.
Thus, it argues, the Ministerial decision upon which the regulatory amendments
are to be made is more administrative in nature and should be subject to the
duty of fairness.
[24]
In
my view, CSIC has a very difficult case to win. Nevertheless, on the very low
threshold of “neither frivolous nor vexatious”, I am prepared to accept that
there is a “serious issue”.
B. Irreparable Harm
[25]
The
second prong of the tri-partite test is irreparable harm. Even though I have
accepted that there is a serious issue, CSIC has failed to establish that
it would suffer irreparable harm if this injunctive relief is not granted.
[26]
Irreparable
harm is “harm which either cannot be quantified in monetary terms or which
cannot be cured because one party cannot collect damages from the other” (RJR-MacDonald,
above, at 135). To satisfy this branch of the test, evidence of such harm must
be clear and non-speculative and must not be “simply based on assertions” (Canada
(Attorney General) v United States Steel Corp, 2010 FCA 200, [2010] FCJ No
902, at para 7 [US Steel]). It also must consist of harm that would
accrue between the hearing of this motion and disposition of the application
for leave and judicial review.
[27]
CSIC
puts forward the following arguments on the question of irreparable harm:
• CSIC’s
fears are not speculative as the Minister has clearly announced his intentions
and the amendments to the Regulations are ready for enactment;
• The
denial of a stay will render the underlying judicial review nugatory (Ghahremani
v Canada (Minister of Citizenship and Immigration), 2009 FC 722, [2009] FCJ
No 883, at para 12; Resulaj v Canada (Minister of
Citizenship and Immigration), 2003 FC 1168, [2003] FCJ No 1474; S.A. v Canada (Minister of
Citizenship and Immigration), 2010 FC 549, [2010] FCJ No 653);
• CSIC will
be wound down;
• CSIC
will be forced to dismiss its 38 employees;
• There
would be an “irrevocable detrimental impact on the Society, its employees,
its members, the vast majority of whom approve of the Society as the
regulator of the profession, and the public”; and
• CSIC
will be exposed to significant third party liability.
[28]
I
first observe that the proposed regulatory amendment has not been enacted.
There is no time line for the enactment of which anyone is aware (other than
perhaps the Minister and the GIC). This makes any allegation of irreparable
harm speculative. The Minister’s stated intentions are not sufficient for this
Court to assume that the regulatory amendment will be passed by the GIC prior
to the consideration of the application for leave and judicial and, if leave is
granted, the hearing of the application.
[29]
Moreover,
even if the proposed regulatory change is enacted by the GIC, I have little
evidence that CSIC will be irreparably harmed in the period between this motion
and the final determination of the application for leave and judicial review. I
accept that it is possible that CSIC will ultimately be “wound down”, if the
amendments are enacted. However, there is no evidence that the 38 people currently
employed by the CSIC will immediately be out of work. In the absence of
evidence to the contrary, I presume that the CSIC will still have funds
collected from its members to continue operations during this interim period
and to prepare for an orderly winding down, if necessary.
[30]
CSIC
asserts that its members will suffer an “irrevocable detrimental impact” if
this injunctive relief is not granted. This alleged harm amounts to no more
than a bald assertion. Moreover, irreparable harm to be assessed is that to
CSIC and not to its members. In that regard, I have no evidence of harm
that would come to the CSIC members. With respect to potential financial harm –
such as third party liability – I simply have insufficient evidence of the
nature of either the financial position of CSIC or of the extent of third
party liabilities. No financial information was provided on this motion upon
which I could conclude that there would be irreparable financial harm.
[31]
The
final aspect of irreparable harm is alleged to be the consequences if the
proposed amendments to the Regulations are passed. CSIC argues that, if
the amendments are passed, it will be unable to challenge the decision of the
GIC. In other words, CSIC asserts that its application for judicial review will
be moot. This does not, in and of itself, constitute irreparable harm (see, for
example, US Steel, above, at para 17).
C. Balance of Convenience
[32]
Since
CSIC has not met its burden to demonstrate that it would suffer irreparable
harm, there is no need to address the balance of convenience.
VI. Conclusion
[33]
For
these reasons, I would dismiss the motion.
[34]
The
parties suggest that this proceeding continue as a specially managed
proceeding. I agree that this would assist the parties and the Court in
determining the merits of the application for leave and judicial review.
[35]
Finally,
I note, with great appreciation, the cooperation of counsel for both parties in
bringing this motion to a hearing in such short order and the high quality of
the written and oral submissions.
ORDER
NOW THIS COURT ORDERS that:
1. The motion to
admit the affidavit of Dean Lorne Sossin is dismissed and the affidavit is inadmissible
for purposes of this motion and for the application for leave and judicial
review;
2. The
motion is dismissed; and
3. Pursuant
to Rule 383 of the Federal Courts Rules, this proceeding will continue
as a specially managed proceeding.
“Judith
A. Snider”
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