Date: 20081202
Citation: 2008 FC 1343
Dockets: IMM-5015-06
IMM-3195-08
IMM-3197-08
BETWEEN:
ALAN HINTON
IRINA HINTON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket:
IMM-3196-08
AND BETWEEN:
SVETLANA POTAPOVA AND
NIKOLAY POTAPOV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON
J.
[1]
This
is the latest effort by Alan and Irina Hinton, Baz Singh Momi and others to get
a class action underway for the recovery of an alleged profit of some $700
million on the issuance of visas, or equivalents, pursuant to 43 regulations
under the Immigration and Refugee Protection Act (IRPA), or its
predecessor. As matters currently stand, a class action has been certified in
IMM-5015-06; but, as a result of a decision of the Federal Court of Appeal, the
members of the class were restricted to those who paid fees under one
regulation. The applicants ask that the class be expanded to include all those
who paid under any of the 43 regulations.
[2]
The
legal basis is that while the Financial Administration Act authorizes the
Government to charge for services on a user-pay basis, it may not make a
profit.
A BRIEF HISTORY
[3]
The
history of this affair is reported at great length in Momi v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1484; Momi v. Canada (Minister
of Citizenship and Immigration), 2006 FC 738, [2007] 2 F.C.R. 291; Hinton
v. Canada (Minister of Citizenship and Immigration), 2008 FC 7 (Hinton no.
1); the decision of the Court of Appeal in Canada (Minister of Citizenship
and Immigration) v. Hinton, 2008 FCA 215 (Hinton no. 2) and in Hinton v.
Canada (Minister of Citizenship and Immigration), 2008 FC 1007 (Hinton no.
3).
[4]
It
began with a proposed class action in Momi. I stayed that action on the
grounds that, since the plaintiffs were attacking a decision of a federal board
or tribunal, their initial foray into this Court had to be by way of judicial
review, rather than by action. Furthermore, since this was an immigration matter,
they first had to apply for leave as required by section 72 of IRPA.
[5]
This
is exactly what the applicants did in Hinton no. 1. In their application for
leave and for judicial review, they cited the one regulation under which they
had paid a fee, always with the intention of obtaining leave and then moving
that the application for judicial review be converted into a class action
covering all 43 visas. Leave was granted, the application for judicial review
was converted into a class action, and the class was certified as all those who
had paid under any of the 43 visas for the years in question.
[6]
The
Minister took that decision to appeal.
[7]
In
Hinton no. 2, the Court of Appeal cut back the class as the application for
judicial review had been initially limited to just one of the 43 regulations.
The Court modified the class “…so as to be confined to the individuals covered
by the leave application”…, i.e. one regulation. However, it suggested a method
by which the entire class originally certified could be reconstituted. Mr.
Justice Sexton stated at paragraph 58:
In the present case, without dictating to the Motions Judge (as
Case Management Judge), or the respondents, how to rectify the situation, in my
view it would suffice for the respondents to simultaneously apply for leave
pursuant to section 72 of IRPA with respect to the remaining class
members and move that those remaining members be allowed to join the class as
modified by these reasons.
[8]
The
Hintons and Mrs. Hinton’s parents, the Potapovas, took this advice to heart.
However, they took a two-step approach. In IMM-3195-08, IMM-3196-08 and
IMM-3197-08, they applied for leave and for judicial review citing not only
regulations under which they had paid fees, but all 43 regulations in issue. In
Hinton no. 3, I granted leave. Section 72 of IRPA provides that the application
for leave is to be disposed of in a summary way and, unless otherwise directed,
without personal appearance. Given the complexity of this matter, I heard oral
argument and, in granting leave, issued reasons.
[9]
Now,
to use the words of the Court of Appeal, they ask that “…those remaining
members be allowed to join the class as modified by these reasons.” They ask
that I reinstate the class I originally certified.
THE MINISTER’S OPPOSITION
[10]
Following
the decision of the Federal Court of Appeal in Hinton no. 2, the Minister no
longer disputes the holding that a class action in Hinton is the preferred
procedure. He is prepared to concede that there is some evidentiary basis that
the class be expanded to cover a few of the 42 other types of visas, but only
with respect to certain specified years. He submits that the motion is
premature in that he wishes to exercise his right to cross-examine one Richard
Kurland on various affidavits. He hopes to establish by this cross-examination
that, save as aforesaid, the motions “…seeking joinder and expansion of the
currently defined class in Hinton are without adequate evidentiary support.”
[11]
The
affidavits of Mr. Kurland, on which more shall be said, were not filed in
support of these motions. Indeed, the motions are not accompanied by any
affidavit, and need not be, as Rule 363 of the Federal Courts Rules only
requires a party to set out in an affidavit facts to be relied upon that do not
appear in the Court record. The applicants are relying on the record as it was
when I granted leave to commence judicial review as required by section 72 of
IRPA (Hinton no. 3).
[12]
I
find that the Minister has no right to cross-examine Mr. Kurland on these motions.
It is not necessary to rule on the Hintons’ contention that the Minister had
waived such right of cross-examination as he may have had or that his position
constitutes an abuse of process. I do agree, however, that in essence the
Minister is asking that I reconsider my decision in Hinton no. 3. If I am
entitled to so do, which I rather doubt, I refuse.
AFFIDAVITS OF RICHARD
KURLAND
[13]
Mr.
Kurland is a solicitor who practices immigration law in Vancouver. Although
not counsel of record, he appears to be an instructing solicitor. He has filed a
number of affidavits throughout all these proceedings by which various
documents, such as annual reports by Citizenship and Immigration to Parliament,
were introduced into the Court record, as well as other government documents he
obtained through Access to Information. He was cross-examined in Momi,
but not in Hinton no. 1. His affidavits cover the same matters, but vary in
that the financial years at issue in Momi and in Hinton are not
quite the same.
[14]
He
executed an affidavit in support of the applications for leave and judicial
review in IMM-3195-08, IMM-3196-08 and IMM-3197-08. He simply confirmed and
reiterated what he had said earlier. The record in Hinton no. 1, including his
earlier affidavits and the exhibits appended thereto was reproduced and formed
part of the record upon which I granted leave. It is worth noting that under
section 12 of the Federal Courts Immigration and Refugee Protection Rules,
“unless a judge for special reasons so orders, no cross-examination of a
deponent of an affidavit filed in connection with an application is permitted
before leave to commence an application for judicial review is granted.” The
Minister did not seek leave to cross-examine Mr. Kurland before leave was
granted.
[15]
If
these matters were to continue as applications for judicial review, which they
are not, the Minister would have the absolute right to cross-examine Mr.
Kurland. However, one of the great advantages of an action, as I stated both in
Momi and in Hinton no. 1, is that evidence is not adduced by affidavits
and cross-examinations thereon, but rather by a full production of documents,
an examination for discovery and viva voce evidence at trial.
[16]
The
goal of the proposed cross-examination by the Minister is to obtain an admission
from Mr. Kurland that there is nothing in the record which provides an
evidentiary basis that the Government made any profit with respect to most of
the visas, most of the time, and therefore those who paid for such visas should
be excluded from the class. He relies upon Hollick v. Toronto (City), 2001 SCC 68, [2001] 3
S.C.R. 158, Hoffman v. Monsanto Canada Inc., 2003 SKQB 174, 44 C.P.C.
(5th) 290, MacKinnon v. National Money Mart Co. et al, 2004 BCSC 1533
and Hickey-Button v. Loyalist College of Applied Arts & Technology, (2006),
267 D.L.R. (4th) 601, 31 C.P.C. (6th) 390, for the
proposition that there must be an evidentiary basis for constituting one
particular class, rather than another.
[17]
I
disagree. There are two answers. The first, and I say this with respect, is
that I do not care what Mr. Kurland thinks. He is not an expert accountant. I
formed the view in Momi, Hinton no. 1 and Hinton no. 3, based on my own
review of what is essentially the same documentation that there is a fairly
arguable case, as well as a fairly arguable defence. I am not going to sift
through the same 1,500 pages of material a fourth time. It is time to move on.
[18]
The
second answer is that the cases cited by the Minister do not stand for the
proposition he advances. Evidence on a motion for certification deals with such
matters as common issues, a representative plaintiff, and preferable procedure.
All of this was dealt with in Hinton no. 1 and Hinton no. 2.
[19]
Indeed,
as stated by the Chief Justice at paragraph 25 of Hollick, above:
[…] In my view, the class representative must show some basis in
fact for each of the certification requirements set out in s. 5 of the Act, other
than the requirement that the pleadings disclose a cause of action. [My
emphasis]
[20]
Since
Hinton no. 1, the Federal Courts Rules have been amended to allow a
class judicial review. Prior thereto, an application for judicial review had to
be first converted into an action. However new rule 334.16(1)(a), like its
predecessor, simply provides that the pleadings disclose a reasonable cause of
action. The difference in applications under section 72 of IRPA is that the
originating document is the application for leave. It is in the context of a
perfected application that there ought to be some evidentiary basis disclosing
a reasonable cause of action.
[21]
I
subscribe to the view of Rothstein, J.A. (as he then was) in Tihomirovs v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 308 at paragraph 20:
I would observe that, in immigration matters, leave must be
obtained before judicial review may proceed. Therefore, in immigration matters,
when a judicial review application gives rise to conversion/ certification
applications, the question of whether there is a reasonable cause of action has
been determined and should not be an issue on the conversion/certification
applications. In the case of non-immigration judicial reviews, the
reasonableness of the cause of action will be argued by the parties. If it is
demonstrated that there is no reasonable cause of action, the conversion/
certification application will be dismissed. The judicial review may proceed
but the applicant will know that the prospects of success are dim.
[22]
In
essence, the Minister is indirectly asking that I vary my order in Hinton no.3.
Lord Denning, in his The Discipline of Law, quoted Sir George
Jessel as saying “I may be wrong and sometimes am, but I am never in doubt.” I
may be wrong, and sometimes am, and am often in doubt. I doubt it is plain and
obvious that the entire proposed class does not have a fairly arguable case. I decided, rightly or
wrongly, three times over in Momi and in Hinton nos. 1 and 3 that
that low threshold had been met. By restricting the class, in effect I am
being asked to drive most of the applicants from the judgment seat. As I said
in Hinton no. 3, in so doing I would be acting both perversely and
capriciously.
[23]
An
order shall issue reconstituting the original class.
“Sean Harrington”
Montréal,
Quebec
December
2, 2008
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