Date: 20080104
Docket: IMM-5015-06
Citation: 2008 FC 7
BETWEEN:
ALAN HINTON
IRINA HINTON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON
J.
[1]
This
is the sequel to Momi v. Canada (Minister of Citizenship
and Immigration), 2006 FC 738, [2007] 2 F.C.R. 291. Momi is a
proposed class action taken by 11 plaintiffs on their own behalf as well as on
behalf of literally millions of others who applied for and paid processing fees
with respect to various immigration visas. They seek a partial refund on the
basis that Her Majesty made a profit on the service, contrary to the restraints
of the Financial Administration Act. They calculate the excess payments
to be more than $700 million dollars.
[2]
Were
it not for the decision of the Federal Court of Appeal in Grenier v. Canada,
2005 FCA 348, [2006] 2 F.C.R. 287, I would have certified Momi
as a class action. Grenier held that challenges to decisions of
Federal boards and tribunals must be by way of judicial review, rather than by
action. The fees in question are found in regulations enacted by Her
Excellency the Governor General in Council. As it has been held that such
statutory instruments are decisions of a Federal board or tribunal, I held the Momi
action was premature, and stayed it.
[3]
Alan
and Irina Hinton were prepared to act as the representative plaintiffs in Momi,
which is one of the requirements of a class action. Taking Momi to
heart, they applied for leave and for judicial review of the decision of
Citizenship and Immigration Canada dated on or about May 30, 2003 whereby the
Minister charged and Alan Hinton paid $75.00 to the Receiver General of Canada
for the determination of an application for sponsorship of his wife, Irina, the
whole pursuant to section 304 (1) of the Immigration and Refugee Protection
Regulations.
[4]
Although
the application was out of time (it should have been taken within either 15 or
30 days), the Court extended the delays and granted leave. The Hintons have
now moved that their application for judicial review be treated as and
proceeded with as an action, as permitted by section 18.4(2) of the Federal
Courts Act and that it be certified as a class action pursuant to Federal
Courts Rule 299.11. This is the very approach recommended by the Federal Court
of Appeal in Tihomirovs v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 308, [2006] 2 F.C.R. 531.
[5]
The
Minister opposes both aspects of the motion. She submits that the judicial
review should not be treated as an action, and, failing that, should not be
certified as a class action. In her view, none of the conditions which justify
a class action as laid down in Rule 299.18 has been met.
[6]
The
history, and benefits, of class actions were reviewed in Momi and need
not be repeated. We can proceed directly to the conditions of certification
required under Rule 219.18, i.e. a reasonable cause of action, an identifiable
class, common questions, preferred procedure and a representative plaintiff.
Although the Minister argues that the Hintons do not meet any of the required
conditions, she has two overarching submissions which percolate into all five
of the conditions. I think it better to deal with them at the outset. The
first is that in light of Grenier, the motion is still premature. The
second is that the proposed certification unduly expands what is in issue. The
application for judicial review only puts the validity of one fee, the spousal
sponsorship fee, in issue, while the motion before me puts more than forty fees
in issue.
Grenier Revisited
[7]
Grenier
was an inmate whose behaviour was perceived as a threat to a corrections
officer. He was found guilty of a disciplinary offence and sentenced to 14
days segregation. On the eve of the third anniversary of the decision he took
an action in damages in this Court. The validity of the Corrections and Conditional
Release Act, and the regulations thereunder, were not challenged. The
question considered by Mr. Justice Létourneau, speaking for the Court of
Appeal, was whether it was necessary for Mr. Grenier - - “to attack the
administrative segregation decision of the institutional head by way of
judicial review before bringing an action in damages” (para. 12).
[8]
He
pointed out that the under section 17 of the Federal Courts Act, the
Federal Court and the Provincial Courts have concurrent jurisdiction to try
actions in damages under the Crown Liability and Proceedings Act. However,
judicial review is reserved to the exclusive jurisdiction of the Federal Court
and the Federal Court of Appeal under sections 18 and 28.
[9]
The
following passages of Grenier are most important:
[24] […]In the interests of
justice, equity and efficiency, subject to the exceptions in section 28,
Parliament assigned the exercise of reviewing the lawfulness of the decisions
of federal agencies to a single court, the Federal Court. This review must be
exercised under section 18, and only by filing an application for judicial
review. […]
[33] It is especially important not
to allow a section 17 proceeding as a mechanism for reviewing the lawfulness of
the Federal Agency’s decision when this indirect challenge to the decision is
used to obviate the mandatory provisions of sub-section 18(3) of the Federal
Courts Act.
[10]
He
noted that the Quebec Court of Appeal had already acknowledged the Federal
Court’s exclusive jurisdiction to rule on the legality of decisions of a
Federal tribunal by way of judicial review (Canada v. Capobianco, 2005
QCCA 209, [2005] J.Q. No. 1155).
[11]
Combining
Grenier with the decisions of Mr. Justice Rothstein, as he then was, in Saskatchewan
Wheat Pool v. Canada (Attorney General), 67 F.T.R. 98, 107 D.L.R. (4th)
190, and the Saskatchewan Court of Appeal in Saskatchewan Wheat Pool v.
Canada (Attorney General), [1993] S.J. No. 436, 107 D.L.R. (4th) 63, I held
that by enacting the Regulations by Order in Council, the Governor
General in Council was acting as a Federal board, commission or tribunal,
subject to the superintending power of this Court. Thus Momi could not
commence as an action.
[12]
The
effect of Grenier was carefully considered by Mr. Justice Kelen in Agustawestland
International Ltd. v. Canada (Minister of Public Works and Government
Services), 2006 FC 767, [2006] F.C.J. No. 961, and again at 2006 FC 1371,
[2006] F.C.J. No. 1718. In the former, he “converted” an application for
judicial review into an action. As he said in the latter decision at
paragraphs 26 & 27:
[26] In my Reasons for Order dated
June 15, 2006, [2006]
F.C.J. No. 961, 2006 FC
767, I stated the following at paragraph 47:
In Grenier v. Canada, the Federal
Court of Appeal held that a person cannot indirectly
challenge the lawfulness of a decision, by way of an action for damages, that
is subject to judicial review within 30 days after the decision is made
pursuant to subsection 18.1(2) of the Federal Courts Act. I would add that
subsection 18(3) of the Federal Courts Act provides that the remedies of
judicial review may be obtained only on an application for judicial review
under section 18.1. The Grenier case applies to administrative decisions
which are generally subject to judicial review, not to acts by the Crown which
are normally subject to legal actions for breach of contract or tort. For this
reason, the plaintiff's action in this case for breach of contract and for tort
would not be barred if the plaintiff had not, as the plaintiff has, also
commenced applications for judicial review over the same subject matter.
[Footnotes
omitted]
[27] I shall elaborate. Grenier provides that an action in damages arising out of
a ministerial decision cannot precede the judicial review of the decision at
issue. However, I disagree with the defendants' submission that Grenier has the far-reaching effect of prohibiting an
action in damages from proceeding concurrently with
a judicial review. A review of the Court of Appeal's policy reasons in Grenier for prohibiting collateral attacks leads me to
conclude that the ratio of that judgment does not
extend to the facts of this case.
[13]
On
reconsideration, I question whether Grenier was simply intended to be
limited to administrative decisions or whether, as I thought, it also extended
to regulations enacted by Order in Council.
[14]
Grenier
was
not followed by the Newfoundland Court of Appeal in Genge v. Canada (Attorney
General),
2007 NLCA 60, [2007] N.J. No. 335. The Attorney General had moved to strike a
Statement of Claim which alleged that a seal fishery area had been closed when
in fact no such Order had been issued under the Marine Mammal Regulations and
the Fishery (General) Regulations. The action was for loss of revenue.
[15]
At
paragraph 34, L.D. Barry J.A. stated:
34 […] On the facts of Grenier,
Létourneau J.A. concluded that the claim should properly be characterized as in
essence a challenge to the authority of a warden to issue a segregation order
in the circumstances. If the reasoning employed should be interpreted as going
further in deciding that, as a matter of law, in every tort action regarding
federal administrative action, judicial review is a prerequisite for the
superior court of a province to have jurisdiction, however, the essence of the
claim should be properly characterized, I must disagree.
[16]
In
any event, nowhere is it stated in Grenier that a judicial review must
run its ordinary course, before an action can be commenced. The Rules allow that
a judicial review may be treated as an action and certified as a class action.
Rule 299.11 is quite specific as is the decision of the Federal Court of Appeal
in Tihomirovs, supra, a decision in which Mr. Justice Létourneau also
sat. I conclude that Grenier does not serve as a bar.
ONE FEE OR MANY FEES?
[17]
The
Hintons’ application for judicial review, as it currently stands, is limited to
the $75.00 fee paid pursuant to sub-section 304(1) of the Immigration and
Refugee Protection Regulations, SOR/2002 - 227. Prior to hearing this
motion, the Court directed that a draft Statement of Claim in support of the
proposed class action be filed. It puts into question some 43 types of visas,
authorizations and extensions. Twenty-eight relate to Regulations under
the former Immigration Act and fifteen under the current Regulations.
The Minister submits that a motion to treat a judicial review as a certified
class action cannot serve as the basis to question fees which are not the
subject of the original application for judicial review. Indeed, since revenue
and expenses are determined on an annual basis, it is possible that a profit
was made on one fee, one year, but not in another. Given a six-year time bar,
this could lead to 258 separate applications for leave and for judicial review,
each then subject to motions for leave, extensions of time and to be treated as
a class action.
[18]
Although
the Minister’s proposition may have merit in the abstract, section 19(2) of the
Financial Administration Act provides that “fees and charges for a
service … may not exceed the cost to Her Majesty -”. Notice the singular
“service” and the plural “fees”. As mentioned in Momi, the fee
differential for different types of visas may well depend on the amount of time
or labour required. There is no real basis at this stage for suggesting that
each “fee” is a distinct “service”.
[19]
This
case is a bit unusual in that the record comprises far more than the bare
pleadings. The various motions are replete with affidavits, and contrary to
the usual practice in immigration matters, permission was granted to
cross-examine before leave to commence the judicial review was granted. The
motion to convert was supported by affidavit, and an affidavit was filed in
reply.
[20]
At
its commencement, the Hintons’ application for judicial review had to be
limited to the single decision which directly affected them (rule 302). If rule
299.11 has any meaning, a converted judicial review which has been certified if
it were a class action must call into question more than one decision. It appears
that only one service is in issue. This is not to say that as the case
develops, sub-classes may have to be created with respect to specific fees.
The Five Part Test for
Certification
[21]
The
requirements of rule 299.18 were set out at paragraphs 26 and following of Momi:
[26] In Western Canada
Shopping Centres, 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 [SOR/2002-417, s. 17]. 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.
a) Reasonable
cause of Action
[22]
In
this context, a reasonable cause of action for the purposes of certification is
one that is not plainly and obviously deficient (Western Canadian Shopping
Centers Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534 and Le Corre v.
Canada (Attorney General), 2005 FCA 127, 347 N.R. 126). Notwithstanding the
Minister’s comment that the remark was obiter, in Tihomirovs,
above, Mr. Justice Rothstein pointed out that in the immigration context, leave
must first be obtained before applying for judicial review. Leave is not given
unless the Court considers there is a fairly arguable case. Furthermore, since
the application was out of time, the Court also had to be satisfied the delay was
justified and that the pleadings established a reasonable cause of action on
the merits. There is a reasonable cause of action.
b)
Identifiable Class
[23]
It
is clear that there is a class of two or more persons. The Minister’s position
is that there are 43 classes, or perhaps 258. However, as stated in Momi,
all potential plaintiffs allege a systemic violation of section 19(2) of the Financial
Administration Act. As the case may develop, it may become necessary to
create sub-classes. Furthermore, I would exclude from the overall class those
who may face a six-year time bar defence.
c) Common
Questions of Law or Fact
[24]
This
test has been met. As mentioned above, the systemic violation of section 19(2)
of the Financial Administration Act permeates throughout. Again, I
acknowledge that some sub-classes may have to be created if it is established
that different fees were determined by way of different methodologies.
d) Is a Class
Action the Preferable Procedure?
[25]
While
not downplaying the Minister’s other submissions, I think it accurate to say
that the main objection rested on this point. The actual text of rule 299.18(1)
(d) provides “Subject
to subsection (3), a judge shall certify an action as a class action if… (d) a
class action is the preferable procedure for the fair and efficient resolution
of the common questions of law or fact; …”.
[26]
Rule
299.18(2) requires certain matters to be considered in concluding whether a class
action is the preferable procedure. There are five such matters.
[27]
The
first is whether questions of law or fact common to the member of the class
predominate over questions affecting individual members. Common questions
predominate, as I will exclude from the class those individuals who may be
facing a time bar defence.
[28]
The
second is whether a significant number of the members of the class have a valid
interest in individually controlling the prosecution of separate actions. The
answer is clearly no. For instance, based on their calculations, the Hintons
would only be entitled to a recovery of $36.69. The costs will easily run into
the hundreds of thousands of dollars.
[29]
The
third matter to be considered is whether the class action would involve claims
that are or have been the subject of any other action. The Hintons have
excluded those who have amicably resolved another dispute with the Minister.
The only other individuals who were involved in other actions are the ten
individuals otherwise within the class who filed separate actions in 2001,
actions which were either discontinued or dismissed for want of prosecution. I shall
exclude them from the class.
[30]
The
crux of the matter is to be found in rule 299.18(2)(d) and (e): “(d) other means
of resolving the claims are less practical or less efficient; and (e)
the administration of the class action would create greater difficulties than
those likely to be experienced if relief were sought by other means.”
[31]
I
am guided by the words of Mr. Justice Rothstein in Tihomirovs, above, at
paragraphs 12 and 19:
[12] I agree with the Minister that the
intention of judicial review proceedings is to have public law matters decided
in a summary manner. However, as I will explain, this is not a bar to conversion.
It is just another consideration to be taken into account on the application
for conversion.
[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.
[32]
Tihomirovs was sent
back to the Federal Court for reconsideration. The issue in that case was
whether the applications for permanent residence of the proposed class be
assessed in accordance with the old criteria set out in the Immigration Act
or the new criteria under the Immigration and Refugee Protection Act. As
Madam Justice Mactavish stated in Tihomirovs v. Canada (Minister of
Citizenship and Immigration), 2006 FC 197, [2006] 4 F.C.R. 341, at
paragraphs 119 and 120:
[119] As the respondent
pointed out, the Minister is obliged to follow the law. As a consequence,
should the Court ultimately declare that the regulation in question is ultra
vires, and that members of the proposed class are entitled to have their
applications for permanent residence assessed in accordance with the criteria
set out in the Immigration Act, the Minister will be obliged to act
accordingly. This will be the case, whether or not individual members of the
proposed class assert their right to have their applications treated in this
fashion.
[120] As a result, there
is no need to ensure that all of the members of the proposed class be party to
a class action in order to derive a benefit from a favourable decision in Mr.
Tihomirovs' case. Moreover, requiring that notice be given of the litigation
and of the court's resolution of the common question will only add unnecessary
cost and delay to the process.
[33]
Consequently,
she did not convert Tihomirovs into an action, and certify it as a class
action. Her decision was followed by Mr. Justice von Finckenstein in Sander
Holdings Ltd. v. Canada (Minister of Agriculture), 2006 FC 327, 289 F.T.R.
221, recently upheld by the Court of Appeal, 2007 FCA 322, [2007] F.C.J. No.
1363. That case related to the Net Income Stabilization Program under the Farm
Income Protection Act. The Program was voluntary and set out what were
called Point of Sale Guidelines (POS). The guidelines were changed over the
life of the program. The plaintiffs argued that the change amounted to an
invalid amendment or were ultra vires the agreement, and that in any
event the defendant was obliged to reimburse amounts allegedly improperly
excluded from the relevant calculations.
[34]
As
I read Sander, the focus was on the legitimacy of the changes, although
at paragraph 57 Mr. Justice von Finckenstein did note that there were factual
differences in affidavits as to financial calculations. He was of the view that
there was no need for a trial and viva voce evidence to get the facts
properly established. He said: “Should the Plaintiff be successful in having
the POS declared ultra vires, that decision will have to be addressed by
the Defendant and appropriate action will undoubtedly ensue.” In this case, the
main focus is on financial calculations. If income did not exceed outgo, the
Regulations are perfectly valid.
[35]
The
Minister submits that the Hinton claim should continue on the narrow platform
of a judicial review. In simple terms, the Tribunal (the Governor in Council)
files the record before it when the decision was made, the applicants file their
motion record with supporting affidavits, the respondent files her motion
record which may or may not be supported by affidavit, cross-examinations
ensue, and then a hearing is scheduled. Although the respondent is not obliged
to put in affidavit evidence, she represents she would do so. Furthermore, the
Court under rule 313 may order other material to be filed, and even in special
circumstances authorize a witness to testify (rule 316). The validity of the
regulations are better considered in an ordinary judicial review and if declared
invalid, as noted by Madam Justice Mactavish in Tihomorovs, other
members of the proposed class would benefit from that declaration, without all
the unnecessary paraphernalia and expense of a class action.
[36]
I
do not agree. As aforesaid, the fundamental point is that the validity of the
regulations cannot be determined purely as a point of law. The regulations are
only invalid, or not fully enforceable, if Her Majesty made a profit. This is
essentially a question of fact on which the Court will need the benefit of
expert testimony. The Minister takes the position that the cost of the service
exceeded the revenue. If so, that is a perfectly valid defence. The best way to
get to the bottom of things is by an action.
[37]
The
tribunal record already produced in accordance with the Federal Courts Immigration
and Refugee Protection Rules is limited to the statutory instrument registered
and published in the Canada Gazette enacting the Immigration and Refugee
Protection Regulations. The bilingual record comprises a mere 25 pages. There
is no information whatsoever as to past expenses, past income, and future
projections.
[38]
Tihomorovs
was
a very different situation. The declaration was prospective. If Mr. Tihomorovs
succeeded, then those whose applications for permanent residence had not yet
been processed would be processed under the same regulations. In this case, all
the fees were paid in advance. Depending on the timeframe fixed by the Court,
the Minister estimates that over 12 million visas may be in issue.
[39]
The
Minister has not agreed to a test case, or to a blanket extension of suit time.
Unless protected now, as time goes by, members of the proposed class who do not
currently face a six-year time bar will in the future. Furthermore, without a
class action, the Court could theoretically be faced with millions of
applications for extension of time and applications for leave. Not very many
will bother. As I stated in Momi, above, at paragraph 16:
[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.
[40]
As
mentioned above, in an application for judicial review, the respondent may
decide not to put in affidavits, and in any event may be selective in terms of
the documentation produced and as to the matters deposed on affidavit. This has
been a recurring problem in Agustawestland, above.
[41]
In
an action, on the other hand, a party is required to issue an affidavit of
documents identifying all the documents in its possession, custody or control
that touch upon an issue, not simply those which were before the decision
maker. The representative of a party examined on discovery must testify to
knowledge, information and belief, not limiting himself or herself to personal
knowledge. The examination for discovery is far more intrusive, and well
designed to elicit admissions which could either shorten or bring the
proceedings to an end. The questions are based on the pleadings and are less
constrained than a cross-examination, which should automatically find its way
into the court record.
[42]
The
question is whether an exchange of affidavits, and cross-examinations thereon,
would be sufficient to allow the Court to tote up the expenses, which are the
real subject of controversy, and compare them to the revenue generated by the
visa program. Barring testimony at the hearing, which is not the standard
practice; the Court would be unable to pose questions of its own. Take for
example the affidavit of Tom Heinze, a law clerk, filed in opposition to the
motion. His assertions were on information and belief, but presumably his
affidavit would be replaced when the matter is heard on the merits by those
with personal knowledge. Among other things, he set out various expenses which
the Minister submits should be taken into account when considering the cost of
administering the service. One interesting item for the fiscal year commencing
1 April 2004 is the salary of the Federal Court and Federal Court of Appeal
judges, of which just over half was attributed to the visa program.
[43]
Leaving
aside whether the cost to Her Majesty should extend to the cost of maintaining
Parliament and judges, the figures raise an almost unlimited number of
questions. The Immigration and Refugee Protection Act takes less than
half of the Federal Court’s time, and the vast majority of that time relates to
refugee claims, not visa claims. The Court of Appeal only gets involved if a
serious question of general importance is certified. How was the percentage
determined? The costing is more properly dealt with on an examination for
discovery. Plaintiffs’ experts should have an opportunity to examine that
information before filing their affidavits and testifying in open court.
[44]
The
Minister submits that if it turns out that the narrow platform of an ordinary
judicial review, even with the Court ordering that more documentation be
produced and allowing for the testimony of witnesses in open court, is found
insufficient, then the judicial review could be converted into an action. To my
way of thinking, this proposal is far less practical and far less efficient
than converting now and through case management cutting back if, as and when
appropriate. By the same token, I do not think that the administration of a
class action would cause greater difficulties than if relief were sought by
other means.
[45]
The
Minister has expressed some concern over the sheer volume of applications which
would be covered by the class action. There may well be in excess of 12
million. This will not add up to 12 million plaintiffs, as some would have paid
more than one and perhaps several processing fees. Nevertheless, although
records may no longer be complete with respect to some of the earlier visas,
the Minister does have extensive records. Furthermore, the fees for the
different visas remained constant over the years. This is to be contrasted with
the recent decision of the Court of Appeal of Ontario in Cassano
v. Toronto-Dominion Bank, [2007] O.J. No. 4406, [2007] On.C.A. 781, where
Chief Justice Winkler, speaking for the Court, certified a class action
involving foreign currency transactions conducted with Visa credit cards issued
by the Bank. The Motions Judge noted that in 2003 alone there were in excess of
4 million Toronto-Dominion Bank Visa cards ([2005] O.T.C. 161, [2005] O.J. No.
845). One of the complaints was that the Bank charged a “conversion fee” which
was undisclosed and unauthorized. Rates of exchange, unlike the fees in this
case, change almost daily. The Bank estimated that it would take 1,500 people
about one year to identify and record the foreign exchange transactions on the
cardholder statements that are available only on microfiche and at a cost of
$48,500.000. However as Chief Justice Winkler stated:
[49] The economic argument advanced
by TD ignores the fact that the damages calculation would only be necessary if
TD is found to have breached the contract with its cardholders. Therefore, the
essence of TD’s argument is that the recovery phase of the litigation,
subsequent to a finding of liability, will cause it to incur significant
expense. It would hardly be sound policy to permit a defendant to retain a gain
made from a breach of contract because the defendant estimates its costs of
calculating the amount of the gain to be substantial. A principal purpose of the
CPA is to facilitate recovery by plaintiffs in circumstances where
otherwise meritorious claims are not economically viable to pursue. To give any
effect to the economic argument advanced by TD here would be to pervert the
policy underpinning the statute.
This concern is addressed in the Hinton
litigation plan, as the initial focus would be on a single year, a bifurcation
allowed under rule 106 and following.
e) Representative Plaintiff
[46]
I
am satisfied that the Hintons would fairly and adequately represent the
interests of the class. Their litigation plan sets out a workable method of
advancing the action and notifying class members of how the proceeding is
progressing (although the plan can and will be improved). They do not have a
conflict on the common questions of law or fact, and have provided a summary of
the agreement regarding fees and disbursements.
[47]
The
plan calls for notices to be given to class members through the plaintiffs’ solicitors’
website, the Citizenship and Immigration website, by notices at counsellor
offices and notices in Canadian newspapers which cater to recent immigrants.
These notices do not go far enough. For instance, those who paid for student
and other temporary visas are presumably no longer here, and have no particular
reason to visit the nominated websites. Many may not have computers. Until
these matters are refined, and given the real possibility of an appeal, I
dispense with notice as authorized by rule 299.34.
[48]
The
litigation plan is probably too ambitious in estimating that the matter would
be ready for trial in a year. However that is a detail which can be modified
from time to time through scheduling orders. I will order that a Statement of
Claim which is already in draft form be filed and served by January 31, 2008.
As a Statement of Defence was already filed in the Momi action, the
Minister’s Statement of Defence shall be due within the normal delays, that is
to say 30 days after service of the Statement of Claim.
Contents of Order
[49]
As
I am satisfied that this application for judicial review should be treated and
proceeded with as an action, and certified as a class action, rule 299.19
requires the order to:
(a)
describe the class;
(b)
state the name of the representative plaintiff;
(c)
state the nature of the claims made on behalf of the class;
(d)
state the relief claimed by or from the class;
(e)
set out the common questions of law or fact for the class; and
(f)
specify the time and manner for members to opt out of the class action.
The Momi Statement of Claim was
filed 11 March 2005, while the Hinton application for leave and for judicial
review was only filed 12 September 2006. This means that some individuals who
would have fallen within the Momi class are, by my reasoning, excluded
from the Hinton class because they may have to deal with a six-year time bar,
which is an individualized problem. On the other hand, in Momi I would
have excluded those who filed applications on or after 1 April 2003, as the
data for that fiscal year was not available when the Statement of Claim was
filed. However, it was available when the Hinton application was filed, and, as
with the other years, the plaintiffs have a reasonable cause of action. The Momi
action is still alive, and depending how the law develops, may possibly serve
as a class action for those who do not fall within the Hinton class.
[50]
Thus
the plaintiff class consists of those persons who, at any time during the
period 1 April 1994 to 31 March 2004, paid a fee or charge to the defendant for
a determination of any of the applications made pursuant to any one or more of
the regulations listed in Schedule A of the Order, and who were informed of
determination decisions in respect of such applications on or after 12
September 2000, and includes all such persons regardless of the outcome of
their application, as well as all such applications that are currently in
progress.
[51]
Excluded
from the class are the 10 individuals referred to in paragraph [29] hereof, as
well as those covered by an amicable settlement, being certain persons who
before 1 January 2002 submitted applications seeking an immigrant visa in the
skilled worker, self employed, entrepreneur and investor categories, excluding
provincial nominees and those destined to Quebec, as more precisely defined in
the accompanying Order.
[52]
The
representative plaintiffs are Alan Hinton and Irina Hinton.
[53]
The
nature of the claims, and the relief claimed by and on behalf of the class are:
a) a declaration that the fee
regulations, and each of them are unlawful, unconstitutional and ultra vires;
b) restitution of the portion of the fees
paid by the plaintiff class to Her Majesty which exceeds the cost of providing
the service to the plaintiff class during the period in question;
c) a declaration that all such excess
fees are held in trust for the plaintiff and the plaintiff class;
d) an order that such excess fees be
repaid to the plaintiff and the plaintiff class; and
f) interest.
[54]
The
common question of fact is whether the fees and charges for the service exceed
the cost to Her Majesty in Right of Canada of providing the service to the
plaintiff class. If so, the common question of law is whether the plaintiff
class is entitled to recovery.
[55]
As
stated earlier, the time and manner for members to opt out of the class is left
in abeyance for the time being.
Certified Questions
[56]
The
Regulations were issued on the recommendation of the Minister of Citizenship
and Immigration and the Treasury Board pursuant to the subsection 5(1) of the Immigration
and Refugee Protection Act (IRPA) and subsections 19(1)(a), 19.1(a) and
20(2)(ii) of the Financial Administration Act. An application for
judicial review under IRPA requires leave (s. 72). A negative judicial review
by the Federal Court under the Immigration and Refugee Protection Act is
normally final. An appeal to the Federal Court of Appeal only lies under s.
74(d) if the judge certifies that a serious question of general importance is
involved and states the question.
[57]
The
very fact that this is the first contested case certified as a class action
under rule 299 and following raises serious questions of general importance,
some of which I pose myself. I am quite uncertain whether the Immigration
and Refugee Protection Act should be read in such a way that one who is
directly affected by a regulation under the Act must obtain leave in
order to challenge the vires of the regulation, and has no right of
appeal if leave is not given. The serious questions of general importance which
I have certified are as follows:
a)
Is leave
required to commence an action for judicial review, the purpose of which is to
put in issue the vires of a regulation issued pursuant to the Immigration
and Refugee Protection Act?
b)
Must
claimants who seek recovery of money paid under a regulation alleged to be ultra
vires commence proceedings by way of judicial review?
c)
May a
judicial review, which is treated and proceeded with as an action, call into
question the vires of fee categories not paid by the representative
plaintiffs?
d)
Since recovery of money is beyond the scope of
judicial review, must the claimants await the outcome of judicial review before
commencing an action?
[58]
In
addition, and despite some overlapping, I certify the two questions posed by
the Minister as follows:
e) When the legality
of a federal Regulation is properly challenged in a judicial review application
in Federal Court, is it premature to “convert” that judicial review into an
action (pursuant to s. 18.4(2) of the Federal Court Act) before the
Federal Court has heard and rendered its decision disposing of the judicial
review?
f) When the central
legal issue in a proposed class action (launched pursuant to rule 299 of the Federal
Courts Rules) is the legality of a federal Regulation, does Grenier
(2005 FCA 348) require that the legality of the federal Regulation first be
determined by the Federal Court, through the process of judicial review
pursuant to s. 18(1) of the Federal Courts Act?
[59]
Although
the Hintons submitted there was no need to certify questions, in the event the
Court did determine a question ought to be certified they proposed the
following, which I also certify, notwithstanding some repetition with the
others:
g) Where the central
issue in an application for judicial review which is the subject of an
application for conversion and certification as a class action involves a mixed
question of fact and law in which resolution of disputed facts is critical to
the determination of these common questions of fact and law, and where in the
exercise of its discretion the Court concludes that it is appropriate to direct
that the application for judicial review be treated and proceeded with as an
action pursuant to sections 18.2 and 18.4(2) of the Federal Courts Act
and that the proceeding be converted as a class action pursuant to rule 299,
does Grenier preclude the Court from making such order and instead
require that the validity of the regulation in issue in the judicial review
first be determined without conversion or certification pursuant to section
18(1)?
[60]
In
summation, I am satisfied that the standard for a class action has been met.
There is judicial economy, access to justice is easier and more economical, and
were it not for this form of action there would be little incentive to apply to
the courts for redress, because, if the applicants are right, individual loss
is minor but the overall loss is substantial (Western Canadian Shopping
Centers, above, and Bisaillon v. Concordia University, 2006 SCC 19,
[2006] 1 S.C.R. 666).
[61]
There
is no reason to depart from the no-cost principle set out in rule 299.41.
“Sean Harrington”
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