Date:
20130513
Docket:
IMM-2755-13
Citation:
2013 FC 496
Toronto, Ontario, May 13, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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UNITED STEEL, PAPER AND
FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION
(UNITED STEEL WORKERS)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION; THE MINISTER OF
HUMAN
RESOURCES AND SKILLS
DEVELOPMENT
CANADA
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Respondents
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REASONS FOR ORDER AND
ORDER
[1]
The
Respondents have brought a motion to strike this Application on the grounds
that:
a)
The
Applicant is not a party directly affected by the matter in respect of which
relief is sought pursuant to s. 18.1 of the Federal Courts Act;
b)
The
Applicant has no other basis upon which to assert standing to bring this
application for judicial review;
c)
The
issue of standing is sufficiently ripe for a preliminary determination by this
Court before the granting of leave and the hearing of the judicial review
application in this matter; and
d)
Such
further and other grounds as counsel may advise and this Honourable Court may
permit.
[2]
The
Respondents support their motion with the affidavit of Rebecca Coleman, a
paralegal at the Department of Justice, Canada. The Applicant (Responding Party
on the Motion) has filed the affidavit of Mark Hunter Rowlinson, Assistant
National Director for Canada of the Applicant, in reply. There has been no
cross-examination upon either affidavit.
[3]
The
underlying application brought by the Applicants, United Steel Workers, seeks leave
and judicial review of a decision or decisions of an officer or officers of
Human Resources and Skills Development Canada (HRSDC), of an unknown date, to
issue Labour Market Opinions (LMO) under section 203 of the Immigration and
Refugee Protection Regulations, SOR/2002-227, as amended (IRPR); allegedly
determining that offers of employment by the Royal Bank of Canada (RBC), and
entities known as IGate, to an unknown number of workers from India to work in
regulatory and financial applications in Toronto, Ontario, would likely result
in a neutral or positive effect on the labour market in Canada. The Applicant,
not having access to those LMO’s, brought a motion, pursuant to Rule 14(2) of
the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22,
for an Order directing that the Respondents provide a copy of the Tribunal
Record in their possession to the Court and to the Applicant. The motion now
before me arose in the context of that motion for production of the Tribunal
Record and, by agreement of the parties, has been heard prior to the
determination of the motion for production and the application for leave and
judicial review.
[4]
In
the evidence put forward by the Respondents, it appears that there is only one
LMO respecting only one person that is at issue in these proceedings. The LMO
has been produced but, as the Applicant’s Counsel points out, not any other
materials that may be in the Respondents’ records that may be pertinent.
Apparently, upon receipt of this LMO, the Applicant has started another
proceeding in this Court for leave and judicial review (IMM-3247-13). Counsel
for each of the parties agreed that this new proceeding is not relevant to the
issue before me.
[5]
The
motion seeking production of the Tribunal Record also sought to add the Royal
Bank of Canada and a number of IGate entities as Respondents. This motion has
been deferred pending determination of the present motion respecting standing
of the Applicant.
[6]
In
respect of the issues before me, Counsel for the Respondents agreed that the
Respondents bore the burden both of persuading me that the motion should be
disposed of now, and that the relief sought should be granted.
[7]
I
will first consider whether it is appropriate, at this stage of the
proceedings, to hear and dispose of the motion to strike the application on the
basis of lack of standing. As a general rule, the Court is reluctant to strike
out an application on a preliminary motion largely for reasons of judicial
economy. It is often just as economical to hear the entire application, as it
is to hear a preliminary motion. However, with respect to a preliminary
objection as to standing, the Supreme Court of Canada in Findlay v Canada
(Minister of Finance), [1986] 2 S.C.R. 607, per Le Dain J, for the Court, has
stated that when the Court has a sufficient record before it for a proper
determination as to standing, it has discretion to hear the issue by way of a
preliminary motion. He wrote at paragraph 16:
Finally, before examining the question of standing,
something should perhaps be said concerning the assumption underlying the
judgments below and the argument in this Court that the issue of standing can
be properly determined with final effect in this case as a preliminary matter
on a motion to strike.
. . .
This question was also considered by the High Court
of Australia in Australian Conservation Foundation Inc. v. Commonwealth of
Australia (1980), 28 A.L.R. 257, where the opinion was expressed that it is a
matter of judicial discretion, having regard to the particular circumstances of
a case, whether to determine the question of standing with final effect as a
preliminary matter or to reserve it for consideration on the merits. The Court
held that for reasons of cost and convenience this judge had properly exercised
that discretion in dealing with the question of standing as a preliminary
matter and striking out the statement of claim. Assuming that the question
whether an issue of standing to sue may be properly determined as a preliminary
matter in a particular case is one which a court should consider, whether or
not it has been raised by the parties, I agree with the view expressed in the
Australian Conservation Foundation case. It depends on the nature of the issues
raised and whether the court has sufficient material before it, in the way of
allegations of fact, considerations of law, and argument, for a proper
understanding at a preliminary stage of the nature of the interest asserted. In
my opinion the present case is one in which the question of standing can be properly
determined on a motion to strike. The nature of the respondent’s interest in
the substantive issues raised by his action is sufficiently clearly established
by the allegations and contentions in the statement of claim and the statutory
and contractual provisions relied on without the need of evidence or full
argument on the merits.
[8]
In
the present motion, I am satisfied that the parties have presented a sufficient
record and arguments as to the issue of standing. Counsel for the Applicant in
oral argument suggested that there might be more evidence once a complete
Tribunal Record was filed, but I view this as speculative and I consider that I
have before me an adequate record so as to dispose of the motion. Therefore, as
an exercise of my discretion, I find that it is appropriate to deal with the
motion at this time.
[9]
Next,
the Court must consider the basis upon which the Applicant asserts that it has
standing to bring these proceedings. The Applicant is not the person “directly
affected”, to use the words from section 18.1 of the Federal Courts Act,
RSC 1985, c. F-7, by the Labour Market Opinion in question. The Applicant
concedes at paragraph 3 of its Memorandum of Argument that it does not
represent any workers at the Royal Bank and, in fact, there are no unionized
workers at the Royal Bank. The nature of its standing as asserted by the
Applicant is public interest standing.
[10]
The
Supreme Court of Canada, in its recent unanimous decision written by Justice
Cromwell, Canada (Attorney General) v Downtown Eastside Sex Workers United
Against Violence Society, [2012] 2 S.C.R. 524, has thoroughly reviewed the
question of public interest standing. I repeat what Cromwell J wrote at
paragraphs 1, 2, 18, 20, 22, 23 and 27:
1 This appeal is concerned with the law of
public interest standing in constitutional cases. The law of standing answers
the question of who is entitled [page531] to bring a case to court for a
decision. Of course it would be intolerable if everyone had standing to sue for
everything, no matter how limited a personal stake they had in the matter.
Limitations on standing are necessary in order to ensure that courts do not
become hopelessly overburdened with marginal or redundant cases, to screen out
the mere "busybody" litigant, to ensure that courts have the benefit
of contending points of view of those most directly affected and to ensure that
courts play their proper role within our democratic system of government:
Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at p. 631. The traditional
approach was to limit standing to persons whose private rights were at stake or
who were specially affected by the issue. In public law cases, however,
Canadian courts have relaxed these limitations on standing and have taken a
flexible, discretionary approach to public interest standing, guided by the
purposes which underlie the traditional limitations.
2 In exercising their discretion with respect to
standing, the courts weigh three factors in light of these underlying purposes
and of the particular circumstances. The courts consider whether the case
raises a serious justiciable issue, whether the party bringing the action has a
real stake or a genuine interest in its outcome and whether, having regard to a
number of factors, the proposed suit is a reasonable and effective means to
bring the case to court: Canadian Council of Churches v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236, at p. 253. The courts
exercise this discretion to grant or refuse standing in a "liberal and
generous manner" (p. 253).
. . .
18 In Minister of Justice of Canada v. Borowski,
[1981] 2 S.C.R. 575, the majority of the Court summed up the law of standing to
seek a declaration that legislation is invalid as follows: if there is a
serious justiciable issue as to the law's invalidity, "a person need only
to show that he is affected by it directly or that he has a genuine interest as
a citizen in the validity of the legislation and that there is no other
reasonable and effective manner in which the issue may be brought before the
Court" (p. 598). At the root of this appeal is how this approach to
standing should be applied.
. . .
20 My view is that the three elements identified
in Borowski are interrelated factors that must be weighed in exercising
judicial discretion to grant or deny standing. These factors, and especially
the third one, should not be treated as hard and fast requirements or
free-standing, independently operating tests. Rather, they should be assessed
and weighed cumulatively, in light of the underlying purposes of limiting
standing and applied in a [page540] flexible and generous manner that best
serves those underlying purposes.
. . .
22 The courts have long recognized that
limitations on standing are necessary; not everyone who may want to litigate an
issue, regardless of whether it affects them or not, should be entitled to do
so: Canadian Council of Churches, at p. 252. On the other hand, the increase in
governmental regulation and the coming into force of the Charter have led the
courts to move away from a purely private law conception of their role. This
has been reflected in some relaxation of the traditional private law rules
relating to standing to sue: Canadian Council of Churches, at p. 249, and see
generally, O. M. Fiss, "The Social and Political Foundations of
Adjudication" (1982), 6 Law & Hum. Behav. 121. The Court has
recognized that, in a constitutional democracy like Canada with a Charter of
Rights and Freedoms, there are occasions when public interest litigation is an
appropriate vehicle to bring matters of public interest and importance before
the courts.
23 This Court has taken a purposive approach to
the development of the law of standing in public [page541] law cases. In
determining whether to grant standing, courts should exercise their discretion
and balance the underlying rationale for restricting standing with the
important role of the courts in assessing the legality of government action. At
the root of the law of standing is the need to strike a balance "between
ensuring access to the courts and preserving judicial resources": Canadian
Council of Churches, at p. 252.
. . .
27 The concern about screening out "mere
busybodies" relates not only to the issue of a possible multiplicity of actions
but, in addition, to the consideration that plaintiffs with a personal stake in
the outcome of a case should get priority in the allocation of judicial
resources. The court must also consider the possible effect of granting public
interest standing on others. For example, granting standing may undermine the
decision not to sue by those with a personal stake in the case. In addition,
granting standing for a challenge that ultimately fails may prejudice other
challenges by parties with "specific and factually established
complaints": Hy and Zel's Inc. v. Ontario (Attorney General), [1993] 3
S.C.R. 675, at p. 694.
[11]
The
law prior to the Eastside Sex Workers case was summarized by the Federal
Court of Appeal in its unanimous decision written by Sexton JA in Public
Mobile Inc v Canada (Attorney General), [2011] 3 FCR 344. I repeat what he
wrote at paragraph 56:
56 Unless public interest standing is granted,
the Order in Council would therefore effectively be immune from judicial
review. Ensuring that no government action is beyond the reach of the courts is
fundamental to the rule of law. Indeed, in Canadian Council of Churches, the
Supreme Court wrote that "the basic purpose for allowing public interest
standing is to ensure that legislation is not immunized from challenge"
(at page 256; see also Hy and Zel's Inc. v. Ontario (Attorney General); Paul
Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, at page
692). It is important that the requirements for public interest standing not be
applied mechanistically (Corp. of the Canadian Civil Liberties Assn. v. Canada
(Attorney General) (1998), 40 O.R. (3d) 489 (C.A.), at pages 497 and 519 (per
Charron J.A.), leave to appeal denied, [1999] 1 S.C.R. vii). Instead, the
Court's application of the test should be informed by the factual context and
policy issues at play, including the spectre of immunizing government action
from review by the courts and the public importance of [page375] the issue
raised by the applicant (see Odynsky, at paragraph 61; Harris v. Canada, [2000]
4 F.C. 37 (C.A.); Downtown Eastside Sex Workers United Against Violence Society
v. Canada (Attorney General), 2010 BCCA 439, 324 D.L.R. (4th) 1 (Downtown
Eastside Sex Workers), at paragraph 41).
[12]
The
genesis of the modern law of public interest standing is the decision of the
Supreme Court of Canada in Canadian Council of Churches v Canada (Minister
of Employment and Immigration), [1992] 1 S.C.R. 236. The judgment of the Court
was written by Cory J. I repeat what he wrote at paragraph 36:
36 The whole purpose of granting status is to
prevent the immunization of legislation or public acts from any challenge. The
granting of public interest standing is not required when, on a balance of
probabilities, it can be shown that the measure will be subject to attack by a
private litigant. The principles for granting public standing set forth by this
Court need not and should not be expanded. The [page253] decision whether to
grant status is a discretionary one with all that that designation implies.
Thus undeserving applications may be refused. Nonetheless, when exercising the
discretion the applicable principles should be interpreted in a liberal and
generous manner.
[13]
To
summarize these decisions, I view the current jurisprudence with respect to
public interest standing to be:
•
The
Court is to take a flexible, discretionary approach.
•
Three
factors are to guide the Court in its considerations:
▪ Does the case
raise a serious justiciable issue?
▪ Does the party
bringing the proceeding have a real stake or genuine interest in the outcome?
▪ Is the proposed
proceeding a reasonable and effective means for bringing the matter to Court?
•
The
Court should take a liberal and generous approach in its consideration of the
matter.
Does this Case
Raise a Serious Justiciable Issue?
[14]
The
Respondents (Applicants on this motion) concede at paragraph 35 of their
Memorandum that on a low standard, the application for leave raises a serious
issue. However, they argue, as concluded at paragraph 39 of their Memorandum,
that it is far from clear that the issue requires judicial intervention.
[15]
There
are, unlike the Eastside Sex Workers case, no constitutional issues
raised in these proceedings. No Charter issues have been raised. No
challenges to the underlying legislation have been raised.
[16]
Should
the application proceed, and if leave is granted, the issues will be one or
more of procedural fairness, correctness of the decision, and/or reasonableness
of the decision.
[17]
In
oral argument, Counsel for the Applicant United Steel Workers argued that the
case is likely to expose flaws and weaknesses in the administration of the
system dealing with LMO’s and admission of foreign workers into Canada. I view this as speculative, and with some apprehension, as the proceeding may be
more likely to become a means for seeking publicity and politicizing, rather
than the determination of a justiciable issue.
Does United
Steel Workers have a Real Stake or Genuine Interest in the Outcome?
[18]
United
Steel Workers does not represent any persons affected by the decision at issue.
Unlike the case considered by my colleague Campbell J in Construction and
Specialized Workers Union, Local 1611 v Canada (Minister of Citizenship and
Immigration), 2012 FC 1353, the United Steel Workers does not have a long
history of representing workers in the affected industry. At best, it has
represented workers and a few call centres operated by a different bank.
[19]
While
conceding that the United Steel Workers is a reputable organization and is
earnest in seeking to bring this application, I view the connection of the United
Steel Workers with the workers and industry at issue here to be tenuous, at
best. I contrast this with the finding of the Supreme Court in Canadian
Council of Churches at paragraph 39, where it found that the applicant had
the “highest possible reputation and has demonstrated a real and continuing
interest in the problem of refugees and immigrants”. I also contrast this
case with that of Public Mobile where there were only about a half a
dozen companies competing in the mobile phone business and one of them was
allowed to challenge a perceived indulgence granted to another.
Is
the Proposed Proceeding a Reasonable and Effective Means for Bringing the
Matter to Court?
[20]
I
have no doubt that, as the record shows, the United Steel Workers is a
well-funded organization with substantial in-house legal resources, and with
the ability to retain first-class outside legal representation. It is
undoubtedly highly capable of instituting and conducting litigation of many
kinds.
[21]
The
record indicates that the United Steel Workers made reasonable efforts to seek
out persons who would lend support to and possibly become parties to
proceedings such as this. Only two anonymous phone calls were the result. The
newspapers provide the identity of one individual who would have been an
appropriate party to a proceeding such as this. That individual has not come
forward. There is nothing in the record to indicate what may or may not have motivated
this apparent lack of interest, or even whether that individual had been
specifically approached.
[22]
While
the United Steel Workers present an effective Applicant, I must consider what
is the real “matter” before the Court. In this regard, I turn back to my
consideration as to what the issue is. The issue is judicial review of a single
LMO. The issue is not a broad-ranging enquiry into the administration of the
foreign workers programme. If the individual or individuals directly affected
are not interested in bringing an application - and there is no organization
having a long history of representing such individuals - I am reluctant to
agree that another well-funded and legally equipped organization with only a tenuous
interest in these individuals should be permitted to come forward with an
agenda not only to address their specific problems, but to endeavour possibly
to pursue larger interests.
Liberal and
Generous Manner
[23]
I
am mindful of the words of the Supreme Court in the Canadian Council of
Churches that the approach of the Court in matters such as this should be
of a “liberal and generous manner”, and of the direction of that Court in Eastside
Sex Workers that “all of the other relevant considerations being equal, a
plaintiff with standing as of right, is to be preferred (emphasis
added).
[24]
Here,
there is no Applicant as of right. That person - or those persons -
have not come forward.
[25]
There
is no constitutional or Charter issue at stake. The validity of
legislation is not at issue.
[26]
Applying
a “purposive” approach, even in a liberal and generous manner, I find that with
respect to the matters that are to be judicially determined in this matter, are
such that the interest of the United Steel Workers in such matters is too
remote. I will not in these circumstances exercise my discretion and grant the
United Steel Workers public interest standing.
[27]
The
motion will be allowed. The application will be struck out. There are no
special reasons for granting costs.
[28]
If
either party considers that there is a basis for the certifying a question,
submissions shall be made in writing within ten (10) days from the date of this
Order.
ORDER
FOR
THE REASONS PROVIDED:
THIS
COURT ORDERS that:
1.
The
motion is granted;
2.
The
application is struck out;
3.
No
Order as to costs; and
4.
If
either party considers that this is a matter for certifying a question,
submissions in writing shall be made within ten (10) days from the date of this
Order.
“Roger
T. Hughes”
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