Date:
20080613
Docket: A-11-08
Citation: 2008 FCA 215
CORAM: LINDEN J.A.
NADON
J.A.
SEXTON
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Appellant
and
ALAN HINTON and IRINA HINTON
Respondents
REASONS FOR JUDGMENT
SEXTON J.A.
Introduction
[1]
This is an
appeal of the Order of Mr. Justice Harrington (the “Motions Judge”) who granted
the Motion of Alan and Irina Hinton (the “respondents”) to treat their
application for judicial review of fees charged by the Minister of Citizenship
and Immigration (the “appellant”) pursuant to the Immigration and Refugee
Protection Regulations SOR/2002-227 and formerly enacted Regulations
(collectively, the “impugned regulations”) as an action and for their
action against the appellant to be certified as a class action. The respondents
sought to initiate a class action on behalf of those who paid processing fees prescribed
by the impugned regulations and thus charged
by the Department of Citizenship and Immigration Canada (“CIC”) with respect to various
immigration visas. They seek a partial refund and declaratory relief on the
basis that Her Majesty the Queen made a profit on the service, rendering the impugned
regulations contrary to the provisions of the Financial Administration Act,
R.S., 1985, c. F-11.
[2]
By virtue
of section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7 the
Federal Courts have exclusive original jurisdiction to hear and determine
challenges of the decisions of federal boards, commissions or other tribunals
by way of declaratory relief, certiorari, mandamus, etc. Pursuant
to this Court’s decision in Grenier v. Canada, 2005 FCA 348 (“Grenier”),
such challenges must be commenced by way of an application for judicial review,
rather than being collaterally attacked by way of an action.
[3]
Subsequent
to commencing their application for leave and judicial review on September 14,
2006, the respondents moved, in June, 2007, to simultaneously “convert” their
application into an action and have such an action certified as a class action.
It is this stage of the proceedings that is at issue in this appeal.
[4]
The
appellant takes the position that: (1) the originating leave application
commenced by the respondents pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), which only
questioned the vires of a single regulation, was not sufficiently broad
to encompass individuals affected by one of over forty other regulations, (2) a
damages claim could not be commenced prior to a final disposition of the
application for judicial review, and (3) a class action was not the preferable
procedure for the fair and efficient resolution of the common questions of law
and fact in determining the legal validity of the impugned regulations.
[5]
For the
reasons that follow I agree with the appellant on the first ground, but
disagree with respect to the second and third grounds. Thus in the result I
would allow the appeal in part by limiting the class of plaintiffs to consist
of individuals covered by the leave application, but without prejudice to the
right of the respondents or some other person on behalf of the remainder of the
proposed class to apply for leave for judicial review and to be added into the certified
class as limited by this judgment.
Facts
[6]
Since
approximately 1986, CIC has charged processing service fees to persons who
submit various applications under IRPA, including applications to temporarily
visit, work or study in Canada, applications to sponsor relatives living abroad
wishing to emigrate to Canada, and applications to come to Canada as a permanent resident. Pursuant
to the impugned regulations, different service fees are set for each kind of application.
[7]
On or
about May 30, 2003, Alan Hinton submitted an application to sponsor his wife,
who resided in Russia, to come to Canada.
A few months after Alan Hinton paid his processing fee, Irina Hinton was
notified by the Canadian Embassy in Moscow
to pick up her permanent residence visa. There was no immigration interview for
either of the respondents. Alan Hinton had paid $75. Based on a draft of an
internal CIC report of the costs of delivering immigration services obtained
through an Access to Information Act request, the respondents believe
that the “unit cost” for sponsorship determinations for spouses (including
children) was roughly half of what Mr. Hinton paid.
[8]
In March of
2005, a proposed class action, which included the respondents, was filed by way
of Statement of Claim against the appellant. That claim challenged the legal
validity of more than 40 current (and former) immigration service fees, enacted
between 1986 and 2002, on the basis that those fees violated section 19(2) of
the Financial Administration Act, which provides that the fees charged
by the federal government for a service cannot exceed the cost of providing it.
On June 26, 2006, because of Grenier, supra, the Motions
Judge (for clarification, Justice Harrington is the Case Management judge for
this entire proceeding and thus has presided over all stages of the proceeding)
decided in Momi v. Canada (MCI) 2006 FC 738 (“Momi”) to stay the
action so that an application for judicial review could be launched in its
place.
[9]
In Momi,
despite staying the class action, the Motions Judge made a number of comments
about the appropriateness of certification, and then concluded at paragraphs 81
& 83:
I have taken into
account the matters set out in Rule 299.18(2). Common questions of law or fact
predominate. There is not a significant number of members of the class who
would have a valid interest in individually controlling their separate actions.
It will cost a fortune to advance a claim, whether it is for one visa, or ten
million. It is difficult to think any member of the class would want to take
his or her separate action. Other possible means of resolving the claims are in
my view less practical and less efficient.
[…]
Although I am
dismissing the motion to certify at this time, the action remains under case
management. Nothing further need be done until the delays to appeal have
expired. If the Plaintiffs launch an appeal, the issue is whether this action
should be stayed and, if so, on what basis. If they do not appeal, the modalities
of the application for judicial review contemplated herein should be discussed.
[10]
Rather
than appeal, the respondents applied for leave to commence an application for
judicial review pursuant to section 72(1) of IRPA, filed September 14,
2006. The application was to review a decision of Citizenship and Immigration
Canada issued on or about May 30, 2003 wherein the Minister charged and Alan
Hinton paid $75 to the Receiver General for Canada for the determination of an application
for sponsorship for his wife. Unlike Momi, the leave application in this
case challenged only one CIC fee regulation: section 304 of the Immigration
and Refugee Protection Regulations which require that a sponsor pay a
service fee of $75 to have CIC process an application seeking to be a sponsor
for a member of the family class.
[11]
Concerned
that the application for leave had been out of time, the Court extended the time
for commencing the application. The Motions Judge ordered that the proceeding
be managed as a specially managed proceeding on November 17, 2006. The Motions Judge ultimately
granted the application for leave on April 24, 2007, and ordered the appointment
of a case management judge on May
14, 2007.
[12]
In June,
2007, the respondents moved to “convert” the application into an action and
certify it as a class action. Included in the proposed class were all the people
under impugned regulations, despite the application for leave only applying to
one regulation, namely section 304 of the current Immigration and Refugee Protection
Regulations.
Legislation
[13]
The substance of the
respondents’ claim lies in subsection
19(2) of the Financial Administration Act which provides:
Fees and charges for a service or the use of a
facility provided by or on behalf of Her Majesty in right of Canada that are
prescribed under subsection (1) or the amount of which is adjusted under
section 19.2 may not exceed the cost to Her Majesty in right of Canada of
providing the service or the use of the facility to the users or class of
users.
|
Le prix fixé en vertu
du paragraphe (1) ou rajusté conformément à l’article 19.2 ne peut excéder
les coûts supportés par Sa Majesté du chef du Canada pour la prestation des
services aux bénéficiaires ou usagers, ou à une catégorie de ceux-ci, ou la
mise à leur disposition des installations.
|
[14]
Section 18
of the Federal Courts Act provides, in part:
(1) Subject to section
28, the Federal Court has exclusive original jurisdiction
(a) to issue
an injunction, writ of certiorari, writ of prohibition, writ of mandamus
or writ of quo warranto, or grant declaratory relief, against any
federal board, commission or other tribunal; and
(b) to hear and
determine any application or other proceeding for relief in the nature of
relief contemplated by paragraph (a), including any proceeding brought
against the Attorney General of Canada, to obtain relief against a federal
board, commission or other tribunal.
…
(3) The remedies
provided for in subsections (1) and (2) may be obtained only on an
application for judicial review made under section 18.1
|
(1) Sous réserve de
l’article 28, la Cour fédérale a compétence exclusive, en première instance,
pour :
a) décerner
une injonction, un bref de certiorari, de mandamus, de
prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire
contre tout office fédéral;
b) connaître
de toute demande de réparation de la nature visée par l’alinéa a), et
notamment de toute procédure engagée contre le procureur général du Canada
afin d’obtenir réparation de la part d’un office fédéral.
[…]
(3) Les recours prévus
aux paragraphes (1) ou (2) sont exercés par présentation d’une demande de
contrôle judiciaire.
|
[15]
The powers
of the Federal Court on applications for judicial review are outlined by
subsection 18.1(3):
On an application for
judicial review, the Federal Court may
(a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
|
Sur présentation d’une
demande de contrôle judiciaire, la Cour fédérale peut :
a) ordonner
à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis
ou refusé d’accomplir ou dont il a retardé l’exécution de manière
déraisonnable;
b) déclarer
nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
|
[16]
In
contrast, the Federal Court’s concurrent original jurisdiction with respect to
actions against the Crown is provided by subsections 17(1) and (2):
(1) Except as
otherwise provided in this Act or any other Act of Parliament, the Federal
Court has concurrent original jurisdiction in all cases in which relief is
claimed against the Crown.
(2) Without
restricting the generality of subsection (1), the Federal Court has
concurrent original jurisdiction, except as otherwise provided, in all cases
in which
(a) the land,
goods or money of any person is in the possession of the Crown;
(b) the claim
arises out of a contract entered into by or on behalf of the Crown;
(c) there is a
claim against the Crown for injurious affection; or
(d) the claim
is for damages under the Crown Liability and Proceedings Act.
|
(1) Sauf disposition
contraire de la présente loi ou de toute autre loi fédérale, la Cour fédérale
a compétence concurrente, en première instance, dans les cas de demande de
réparation contre la Couronne.
(2) Elle a notamment
compétence concurrent en première instance, sauf disposition contraire, dans
les cas de demande motivés par :
a) la
possession par la Couronne de terres, biens ou sommes d’argent appartenant à
autrui;
b) un
contrat conclu par ou pour la Couronne;
c) un
trouble de jouissance dont la Couronne se rend coupable;
d) une
demande en dommages-intérêts formée au titre de la Loi sur la
responsabilité civile de l’État et le contentieux administratif.
|
[17]
Subsection
18.4(2) of the Federal Courts Act provides for the “conversion” of an
application into an action:
The Federal Court may,
if it considers it appropriate, direct that an application for judicial
review be treated and proceeded with as an action.
|
Elle peut, si elle
l’estime indiqué, ordonner qu’une demande de contrôle judiciaire soit
instruite comme s’il s’agissait d’une action.
|
[18]
All
decisions arising under IRPA can only be judicially reviewed subsequent
to the granting of leave, pursuant to section 72 of IRPA:
(1) Judicial review by the Federal Court with
respect to any matter – a decision, determination or order made, a measure
taken or a question raised – under this Act is commenced by making an
application for leave to the Court.
(2) The following provisions govern an
application under subsection (1):
(a) the application may not be made
until any right of appeal that may be provided by this Act is exhausted;
(b) subject to paragraph 169(f), notice
of the application shall be served on the other party and the application
shall be filed in the Registry of the Federal Court (“the Court”) within 15
days, in the case of a matter arising in Canada, or within 60 days, in the
case of a matter arising outside Canada, after the day on which the applicant
is notified of or otherwise becomes aware of the matter;
(c) a judge of the Court may, for
special reasons, allow an extended time for filing and serving the
application or notice;
(d) a judge of the Court shall dispose
of the application without delay and in a summary way and, unless a judge of
the Court directs otherwise, without personal appearance; and
(e) no appeal lies from the decision of
the Court with respect to the application or with respect to an interlocutory
judgment.
|
(1) Le contrôle
judiciaire par la Cour fédérale de toute mesure — décision, ordonnance,
question ou affaire — prise dans le cadre de la présente loi est subordonné
au dépôt d’une demande d’autorisation.
(2) Les dispositions
suivantes s’appliquent à la demande d’autorisation :
a) elle ne
peut être présentée tant que les voies d’appel ne sont pas épuisées;
b) elle doit
être signifiée à l’autre partie puis déposée au greffe de la Cour fédérale —
la Cour — dans les quinze ou soixante jours, selon que la mesure attaquée a
été rendue au Canada ou non, suivant, sous réserve de l’alinéa 169f),
la date où le demandeur en est avisé ou en a eu connaissance;
c) le délai
peut toutefois être prorogé, pour motifs valables, par un juge de la Cour;
d) il est
statué sur la demande à bref délai et selon la procédure sommaire et, sauf
autorisation d’un juge de la Cour, sans comparution en personne;
e) le
jugement sur la demande et toute décision interlocutoire ne sont pas
susceptibles d’appel.
|
[19]
Rule 299 outlines
the federal court regime governing class actions that was in force when the
respondents’ application was commenced. The conditions to certify a class are
provided in Rule 299.18:
(1) Subject to
subsection (3), a judge shall certify an action as a class action if
(a)
the pleadings disclose a reasonable cause of action;
(b)
there is an identifiable class of two or more persons;
(c)
the claims of the class members raise common questions of law or fact,
whether or not those common questions predominate over questions affecting
only individual members;
(d)
a class action is the preferable procedure for the fair and efficient
resolution of the common questions of law or fact; and
(e)
there is a representative plaintiff who
(i)
would
fairly and adequately represent the interests of the class,
(ii)
has
prepared a plan for the action that sets out a workable method of advancing
the action on behalf of the class and of notifying class members how the
proceeding is progressing,
(iii) does not
have, on the common questions of law or fact, an interest that is in conflict
with the interests of other class members, and
(iv) provides a
summary of any agreements respecting fees and disbursements between the
representative plaintiff and the representative plaintiff’s solicitor.
(2) All relevant
matters shall be considered in a determination of whether a class action is
the preferable procedure for the fair and efficient resolution of the common
questions of law or fact, including whether
(a)
questions of law or fact common to the members of the class predominate over
any questions affecting only individual members;
(b)
a significant number of the members of the class have a valid interest in
individually controlling the prosecution of separate actions;
(c)
the class action would involve claims that are or have been the subject of
any other action;
(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.
(3) If the judge
determines that a class includes a subclass whose members have claims that
raise common questions of law or fact not shared by all the class members so
that the protection of the interests of the subclass members requires that
they be separately represented, the judge shall not certify the action as a
class action unless there is a representative plaintiff who
(a)
would fairly and adequately represent the interests of the subclass;
(b)
has prepared a plan for the action that sets out a workable method of
advancing the action on behalf of the subclass and of notifying subclass
members how the proceeding is progressing;
(c)
does not have, on the common questions of law or fact for the subclass, an
interest that is in conflict with the interests of other subclass members;
and
(d)
provides a summary of any agreements respecting fees and disbursements
between the representative plaintiff and the representative plaintiff’s
solicitor.
|
(1) Sous réserve du
paragraphe (3), le juge autorise une action comme recours collectif si les
conditions suivantes sont réunies :
a) les
actes de procédure révèlent une cause d’action valable;
b) il
existe un groupe identifiable formé moins d’au moins deux personnes;
c) les
réclamations des membres du group soulèvent des points de droit ou de fait
collectifs, qu’ils prédominent ou non sur ceux qui ne concernent qu’un
membre;
d) le
recours collectif est le meilleur moyen de régler de façon équitable et
efficace les points de droit ou de fait collectifs;
e) un des
membres du groupe peut agir comme représentant demandeur et, à ce
titre :
(i)
représenterait
de façon équitable et appropriée les intérêts du groupe,
(ii)
a
élaboré un plan qui propose une méthode efficace pour poursuivre l’action au
nom du groupe et tenir les membres du groupe informés du déroulement de
l’instance,
(iii)
n’a
pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne
les points de droit ou de fait collectifs,
(iv)
communique
un sommaire des ententes relatives aux honoraires et débours qui sont
intervenues entre lui et son avocat.
(2) Afin de déterminer
si le recours collectif est le meilleur moyen de régler les points de droit
ou de fait collectifs de façon équitable et efficace, tous les facteurs
pertinents doivent être pris en compte, notamment les facteurs
suivants :
a) la
prédominance des points de droit ou de fait collectifs sur ceux qui ne
concernent que certains membres;
b) le
nombre de membres du groupe qui on véritablement intérêt à poursuivre des
actions séparées;
c) la
question de savoir si le recours collectif comprendrait des réclamations qui
ont été ou qui sont l’objet d’autres actions;
d) l’aspect
pratique ou l’efficacité des autres moyens de régler les réclamations;
e) la
question de savoir si la gestion du recours collectif créerait de plus
grandes difficultés que l’adoption d’un autre moyen.
(3) Si le juge
constate qu’il existe au sein du groupe un sous-groupe dont les réclamations
soulèvent des points de droit ou de fait collectifs que ne partagent pas tous
les membres du groupe de sorte que la protection des intérêts des membres du
sous-groupe exige qu’ils aient un représentant distinct, il n’autorise
l’action comme recours collectif que si un des membres du sous-groupe peut
agir comme représentant demandeur et, à ce titre :
a) représenterait
de façon équitable et appropriée les intérêts du sous-groupe;
b) a
élaboré un plan qui propose une méthode efficace pour poursuivre l’action au
nom du sous-groupe et tenir les membres du sous-groupe informés du
déroulement de l’instance;
c) n’a pas
de conflit d’intérêts avec d’autres membres du sous-groupe en ce qui concerne
les points de droit ou de fait collectifs;
d) communique
un sommaire des ententes relatives aux honoraires et débours qui sont
intervenues entre lui et son avocat.
|
[20]
The
contents of the Order for certification are delineated in Rule 299.19:
(1) An order
certifying an action as a class action shall
(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.
(2) If the judge
determines that a class includes a subclass whose members have claims that
raise common questions of law or fact not shared by all class members so that
the protection of the interests of the subclass members requires that they be
separately represented, the order certifying the action as a class action shall
include the information referred to in subsection (1) in respect of the
subclass.
|
(1) L’ordonnance
d’autorisation de l’action comme recours collectif contient les éléments
suivants :
a) la
description du groupe;
b) le nom
du représentant demandeur;
c) l’énoncé
de la nature des réclamations présentées au nom du groupe;
d) l’énoncé
des réparations demandées par ou contre le groupe;
e) l’énumération
des points de droit et de fait collectifs du groupe;
f) des
instructions quant à la façon dont les membres du groupe peuvent s’exclure du
recours collectif et la date limite pour le faire.
(2) Si le juge
constate qu’il existe au sein du groupe un sous-groupe dont les réclamations
soulèvent des points de droit ou de fait collectifs que ne partagent pas tous
les membres du groupe de sorte que la protection des intérêts des membres du
sous-groupe exige qu’ils aient un représentant distinct, l’ordonnance
d’autorisation de l’action comme recours collectif contient les éléments
visés au paragraphe (1) à l’égard du sous-groupe.
|
[21]
Rule 299.2
provides further guidance with respect to certifying a class:
A judge shall not
refuse to certify an action as a class action solely on one or more of the
following grounds:
(a)
the relief claimed includes a claim for damages that would require an
individual assessment after a determination of the common questions of law or
fact;
(b)
the relief claimed relates to separate contracts involving different class
members;
(c)
different remedies are sought for different class members;
(d)
the number of class members or the identify of each class member is not
known; or
(e)
the class includes a subclass whose members have claims that raise common
questions of law or fact not shared by all class members.
|
Le juge ne peut refuser
d’autoriser une action comme recours collectif en se fondant uniquement sur
l’un ou plusieurs des motifs suivants :
a) les
réparations demandées comprennent une réclamation de dommages-intérêts qui
exigerait, une fois les points de droit ou de fait collectifs tranchés, une
évaluation individuelle;
b) les
réparations demandées portent sur des contrats distincts concernant
différents membres du groupe;
c) les
réparations demandées ne sont pas les mêmes pour tous les membres du groupe;
d) le
nombre de membres du groupe ou l’identité de chacun des membres est inconnu;
e) il
existe au sein du groupe un sous-groupe dont les réclamations soulèvent des
points de droit ou de fait collectifs que ne partagent pas tous les membres
du groupe.
|
[22]
Rule 299.11
envisioned the possibility of a an application for judicial review being
treated as a class action in subsection 18.4(2) of the Federal Courts Act:
Rules 299.1 and 299.12
to 299.42 also apply to an application for judicial review that is to be
treated and proceeded with as an action under subsection 18.4(2) of the Act.
|
Les règles 299.1 et
299.12 à 299.42 s’appliquent notamment à une demande de contrôle judiciaire
dans le cas où la Cour a ordonné, en vertu du paragraphe 18.4(2) de la Loi,
qu’elle soit instruite comme une action.
|
[23]
Rules 299.1
to 299.42 were repealed effective December 13, 2007 – following the hearing under
appeal before the Motions Judge but prior to the release of his decision – and
replaced by Class Proceedings Rules 334.1 to 334.4 (as enacted by SOR/2007-301,
s.7).
Decision Below
[24]
The
Motions Judge granted an Order to convert the application for judicial review
into an action and certified the class action.
[25]
He
concluded that this Court’s decision in Grenier does not stand for the
proposition that a judicial review must be completed before an action can be
commenced, especially in light of the existence of section 18.4(2) of the Federal
Courts Act.
[26]
He
rejected the argument that the class action could not encompass fees chargeable
under the regulations which were not attacked in the original application for leave.
The Motions Judge said, at paragraphs 18 & 20:
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".
[…]
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.
[27]
The
Motions Judge then turned to the five-part test for certification as outlined
in Rule 299.18. Given that leave had already been granted for the application
for judicial review, the Motions Judge concluded that there was a reasonable
cause of action.
[28]
Excluding
those in the class who may face a six-year time bar defence, the Motions Judge
concluded that there was an identifiable class, namely plaintiffs alleging a
systemic violation of section 19(2) of the Financial Administration Act.
The 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 Her Majesty in Right of Canada
for a determination of any of the applications made pursuant to any one or more
of the impugned regulations, and who were informed of determination decisions
in respect of such applications on or after September 12, 2000.
[29]
There were
common questions of law or fact, as allegations of systemic violations of
section 19(2) of the Financial Administration Act permeated throughout.
The Motions Judge acknowledged that some sub-classes might have to be created if
it were established that different fees were determined by way of different
methodologies. He identified the common question of fact to be whether the fees
and charges for the service exceeded the cost to Her Majesty in Right of Canada
of providing the service to the plaintiff class. If that question of fact were
answered in the affirmative, the common question of law would be whether the
plaintiff class is entitled to recovery.
[30]
The
Motions Judge considered the factors outlined in Rule 299.18(2) to determine
whether or not a class action was the preferable procedure, and decided that
inquiry in the affirmative. He found that questions of law or fact common to
the members of the class predominated over questions affecting individual
members, once those who could face a time bar defence were eliminated from the
class. Given the small size of the award per member, he concluded that members
did not have a valid interest in individually controlling the prosecution of
separate actions.
[31]
The
Motions Judge did not agree with the appellant that the validity of the impugned
regulations were better considered in an ordinary judicial review. He also
rejected the appellant’s suggestion that the judicial review be converted into
an action only after an application for judicial review had been completed. He
noted that the validity of the impugned regulations cannot be determined purely
as a point of law, as the question was whether or not the appellant received a
profit, which is a question of fact. This would need to be determined by expert
evidence, he decided. The Motions Judge commented at paragraphs 42-3:
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.
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.
The Motions Judge also noted that the appellant had not
agreed to a test case or to a blanket extension of time: those options could
have militated towards preferring an application for judicial review.
[32]
Finally,
the Motions Judge was satisfied that the respondents would fairly and
adequately represent the interests of the class, and that they presented a
workable litigation plan.
Issues
[33]
Pursuant
to subsection 74(d) of IRPA, the Motions Judge granted leave to
appeal by certifying seven serious questions of general importance. They are:
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?
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?
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)?
[34]
The
appellant has framed this appeal in terms of three errors of law by the Motions
Judge. They are:
- He erred in holding that s. 18 of
the Federal Courts Act and Grenier permit a class action to
proceed in advance of, and instead of, a decision first being rendered on
the validity of the impugned immigration regulation through the outcome of
an application for leave and judicial review;
- He erred in defining the class to
include persons who paid fees pursuant to the immigration regulations
which were not challenged by way of the respondents’ application for leave
pursuant to s. 72(1) of IRPA; and
- He erred in finding that a class
action was the preferable procedure to fairly and efficiently determine
the legal validity of the impugned regulations.
It will be sufficient to address the appellant’s alleged
errors of law to adequately dispose of this appeal.
Standard of Review
[35]
A
determination of the correct procedure to follow in order to contest the vires
of the impugned regulations (as well as to claim a partial refund of fees paid
under such regulations) is a question of law for which no deference is accorded
and thus will be determined on a correctness standard: Housen v. Nikolaisen,
[2002] 2 S.C.R. 235 at paragraph 8.
[36]
With
respect to the certification decision itself, appellate courts should be
reluctant to interfere given the discretionary nature of assessing the
preferability of a class proceeding generally: Ward Branch, Class Actions in Canada (looseleaf) (Aurora: Canada Law Book,
2007) at ¶4.1850. As stated by the British Columbia Court of Appeal in J.L.G.
v. A.W.W. 2003
BCCA 367 at paragraph 22:
Absent an error of law
or principle the decision of a certification judge is discretionary. Under the Class
Proceedings Act the certification judge is the case management judge who is
seized with all aspects of management of a class proceedings at least up to
trial. The familiarity with the case thereby acquired is a reason to give
greater deference to decisions of the case management judge on certification
and procedural issues generally.
Analysis
In
the Federal Court, can a class action proceed in advance of a decision first
being rendered on the validity of an impugned immigration regulation?
Summary
[37]
Section 18
of the Federal Courts Act grants exclusive jurisdiction to the Federal
Courts to hear and determine challenges of decisions of federal boards by way
of certiorari, mandamus, declarations, etc. using the judicial
review procedure. The decision of this Court in Grenier underscored the
importance of this exclusive jurisdiction and holds that it cannot be
circumvented by launching a collateral attack by way of an action.
[38]
However, Grenier
does not hold that there must first be a successful application for
judicial review invalidating an impugned immigration regulation before proceeding
with a class action. There is also nothing stated in Grenier to suggest
that where an application for judicial review is treated as an action, a claim
for damages cannot be added to that action.
[39]
This
Court’s decision in Tihomirovs v. Canada 2005 FCA 308 (“Tihomirovs”)
confirmed that an application for judicial review could be the basis for a
class action prior to a complete disposition of the application for judicial
review, provided that subsection 18.4(2) of the Federal Courts Act were
employed to treat the application as an action and that the proposed class
action satisfies the criteria set out in what was then Rule 299.18.
A Review of Grenier:
What it Does and Does Not Stand For
[40]
The case
of Grenier concerned an action brought by an inmate seeking damages for
administrative and disciplinary segregations he faced while serving time in a
maximum security penitentiary. The inmate had not sought a judicial review of
the Institutional Head’s decision, even though he knew or ought to have known
of the effect of the decision upon him personally and knew or ought to have
known that judicial review was available to him if he wished to challenge the
decision. Following this Court’s decision in Tremblay v. Canada (2004)
244 D.L.R. (4th) 422 (F.C.A.), leave to appeal to S.C.C. refused
(file: 30424), Justice Létourneau concluded that a litigant who seeks to impugn
a federal agency’s decision is not free to choose between a judicial review
proceeding and an action in damages but must rather proceed by judicial review
in order to have the decision invalidated. According to Grenier, to assert such a claim
as an action as opposed to an application for judicial review would constitute
a collateral attack on the original decision in light of section 18 of the Federal
Courts Act.
[41]
Justice Létourneau explained the rationales and importance
of the exclusive jurisdiction outlined in section 18 of the Federal Courts
Act at paragraphs 24-6:
In creating the Federal
Court and in enacting section 18, Parliament sought to put an end to the
existing division in the review of the lawfulness of the decisions made by
federal agencies. At the time, this review was performed by the courts of the
provinces: see Patrice Garant, Droit administratif, 4th ed., vol. 2 (Les
Éditions Yvon Blais Inc., 1996), at pages 11 to 15. Harmonization of
disparities in judicial decisions had to be achieved at the level of the
Supreme Court of Canada. 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. The Federal Court of Appeal
is the court assigned to ensure harmonization in the case of conflicting
decisions, thereby relieving the Supreme Court of Canada of a substantial
volume of work, while reserving it the option to intervene in those cases that
it considers of national interest.
To accept that the
lawfulness of the decisions of federal agencies can be reviewed through an
action in damages is to allow a remedy under section 17. Allowing, for that
purpose, a remedy under section 17 would, in the first place, disregard or deny
the intention clearly expressed by Parliament in subsection 18(3) that the
remedy must be exercised only by way of an application for judicial review. The
English version of subsection 18(3) emphasizes on the latter point by the use
of the word "only" in the expression "may be obtained only on an
application for judicial review".
It would also judicially
reintroduce the division of jurisdictions between the Federal Court and the
provincial courts. It would revive in fact an old problem that Parliament
remedied through the enactment of section 18 and the granting of exclusive
jurisdiction to the Federal Court and, in the section 28 cases, the Federal
Court of Appeal. It is precisely this legislative intention that the Quebec
Court of Appeal recognized in the Capobianco case, supra, in
order to preclude the action in damages filed in the Superior Court of Québec
attacking the lawfulness of the decisions of federal boards, commissions or
other tribunals from leading, in fact and in law, to a dysfunctional
dismemberment of federal administrative law.
The
respondents emphasize – and I agree – that one of the primary concerns of this
Court in Grenier was also that an action should not be used as a way to
circumvent the procedural requirements and limitation periods outlined in
section 18 of the Federal Courts Act. Such concerns are of no relevance
in this proceeding as the respondents – after the Federal Court’s decision of Momi
– correctly commenced this proceeding by way of an application for judicial
review.
[42]
Grenier simply stands for the
proposition that certain civil actions against the Crown must be preceded by an
application for judicial review where the basis for the claim is a challenge to
the lawfulness, vires or legality of the federal board or tribunal’s
decision.
The Effect of Subsection
18.4(2) of the Federal Courts Act
[43]
Grenier says nothing about the impact
of subsection 18.4(2) of the Federal Courts Act, which provides that a
Federal Court judge may, if it is appropriate, direct that an application for
judicial review be treated and proceeded with as if it were an action. Indeed,
there was no need to do so as no judicial review had been commenced, and, as
such, no request for “conversion” had been made, either.
[44]
Subsection 18.4(2) is
a legislative response to the concerns expressed in some of the cases arising
prior to February 1, 1992 that an application for judicial review did not
provide appropriate procedural safeguards where declaratory relief was sought: Haig v. Canada (1992) 97 D.L.R. (4th)
71 (F.C.A.), aff’d on other grounds [1993] 2 S.C.R. 995 (“Haig”). For instance, an application may be
treated as if it were an action because facts necessary to render a decision on
the application cannot be established through affidavit evidence alone: Macinnis
v. Canada (Attorney General) [1994] 2 F.C. 464, [1994] F.C.J. No. 392
(QL) (C.A.) at para. 9. The provision places no
limits on the considerations which may properly be taken into account in
deciding whether or not to allow a judicial review application to be “converted”
into an action (Drapeau
v. Canada (Min. of National Defence) (1995), 179 N.R. 398 (F.C.A.)).
[45]
It is
trite to say that damages cannot be awarded on an application for judicial
review: Al-Mhamad v. Canada (Canadian Radio-Television and
Telecommunications Commission)
2003 FCA 45. However, there is very little jurisprudence that considers
whether, once an application for judicial review is treated as an action, a
claim for monetary remedies can be advanced in that action. In my opinion, it
can.
[46]
The
authorities are not yet in agreement on this issue. In Radil Bros. Fishing
Co. v. Canada (Minister of Fisheries and Oceans) et al, (1998), 158 F.T.R.
313 (T.D.) (“Radil Bros.”), Justice Rouleau, at paragraph 22, suggested
a more limited application to subsection 18.2(4) of the Federal Courts Act:
..the conversion of a
judicial review application into an action does not entitle the plaintiff to
subsequently file a Statement of Claim wherein different relief is sought than
that set out in the Originating Notice of Motion. The purpose of Rule 18.2(4) is
to permit a judicial review application to be proceeded with as if it were an
action; that is, with discoveries, and the presentation of witnesses and their
viva voce evidence. It does not create a new cause of action nor does it permit
a party to seek new or additional relief than that originally sought.
[47]
On the
other hand, and more recently, Justice Hugessen took a more liberal approach to
the provision in Shubenacadie Indian Band v. Canada (Attorney General) et al (2001), 202 F.T.R. 30 (T.D.),
aff’d 2002 FCA 255 (“Shubenacadie”), stating, at paragraph 4:
The Crown asserts that
section 18.4 of the Federal Court Act does not allow an applicant who has
become a plaintiff to add new claims or new parties to an action which has been
converted from a judicial review application. I do not agree. There is nothing
in the statutory text of section 18.4 [footnote omitted], nor in principle,
that would prevent the plaintiffs from doing what they have done. The rules of
the Court are extremely generous in respect of both amendments and joinder of
parties and causes of action and as a matter of principle, it would seem to me
that there is nothing that can be said against the joinder in a case such as
this. Indeed, as I mentioned during an earlier hearing, if the plaintiffs were
to institute a separate action claiming damages, it is entirely probable that
the Court would, at some stage, order either the consolidation or the joinder
of the two proceedings. If, at a later date the joinder turns out to be
cumbersome or otherwise inappropriate, the Court retains a discretionary power
under Rule 107 to order separate trials. That aspect of the Crown's motion is
accordingly without foundation.
[48]
In Noade
v. Blood Tribe, 2006 F.T.R. 87 (Proth.), Prothonotary Hargrave explored the
conflicting jurisprudence with respect to the ability to add new claims
following the “conversion” of an application to an action, and stated, at para.
12, that he preferred the approach of Mr. Justice Hugessen. So do I.
[49]
I am not
convinced that subsection 18.4(2) should be read narrowly so as to only apply
to the procedural aspects of an action, such as discoveries, the admission of viva
voce evidence, and the like. It is well recognized that the right to treat
an application as if it were an action is to compensate for certain procedural
inadequacies with the process underlying applications. In my mind, however, I
think it may sometimes also be appropriate to consider the remedial
inadequacies of an application for judicial review, as well. One problem with
applications for judicial review is that a remedy for damages cannot be sought.
In most applications for judicial review, this is not a major concern as the
desired remedy will usually lie in the form of mandamus, certiori,
or a declaration. Where it is of concern, however, is when a totally separate
action afterwards may be necessary in either Federal Court or a provincial
court to advance a claim for damages: this is a potentially undesirable
situation.
[50]
Sometimes,
such as the case at bar, it may prove too cumbersome to initiate a separate
action for damages either concurrently with, or subsequent to, an application
for judicial review. Instead of attempting a joinder, which is sometimes
inevitable, employing subsection 18.4(2) of the Federal Courts Act to
allow a claim for damages in a “converted” action should also be available. In
cases such as this one, it may even economise on scarce judicial resources.
Subsection 18.4(2) and Class
Proceedings – Justice Rothstein’s Instructions in Tihomirovs
[51]
The
appellant argues that allowing section 18.4(2) of the Federal Courts Act
to “convert” an application into an action prior to the judicial review running
its course constitutes a procedural charade that renders section 18 of the Federal
Courts Act meaningless. I do not agree.
[52]
The
existing jurisprudence as set by this Court in Tihomirovs acts as a
sufficient gatekeeper to ensure that parties like the respondents are not
simply “going through the motions.” Tihomirovs establishes that the criteria to seek certification of a
class action is a relevant consideration on a motion, pursuant to section
18.4(2) of the Federal Courts Act, to “convert” an application for judicial
review into an action.
Rothstein J.A. (as he then was) added at paragraph 14:
The second certified
question asks what the test is on a motion for conversion where the purpose is
to certify an action as a class action. Mr. Tihomirovs says the mere expressed
intention to initiate a class action satisfies the test. I am unable to agree.
Because judicial review is to provide for the speedy and summary resolution of
public law matters, it will always be necessary for the court to weigh the
advantages of a class action proceeding against the efficiency of a judicial
review proceeding. [Emphasis added.]
Conversion and certification applications should be heard
together, unless the simultaneous consideration of conversion and certification
can be demonstrated to be prejudicial: ibid. at para. 18.
[53]
The
Motions Judge explicitly followed the approach suggested by this court in Tihomirovs. As such, contrary to the argument of
the appellant, I find no problem in principle with conversion prior to a final
disposition of the application for judicial review.
[54]
I conclude
on this issue with one caveat. It would be an error to permit a claim for
monetary relief to be decided prior to determining the underlying basis for
liability – namely, the validity of the governmental decision, or in this case,
the regulation. Indeed, this is the logical way in which other actions
proceed. In patent infringement cases, the questions of the validity of the
patent and infringement of the patent are considered before one explores the
question of damages. Similarly, in tort law cases, liability is established
before damages are addressed. In a case such as this one, although all the
evidence on both issues may be heard together, vires ought to be decided
first before the question of whether the class members are entitled to a
partial refund is addressed.
In
a Class Proceeding Arising Under IRPA, Must the Application for Leave Encompass All
Members of the Class?
[55]
The
Motions Judge certified a class for all fees listed and collected pursuant to the
impugned regulations even though the original leave was granted to Alan Hinton
only as a representative of those paying the $75.00 sponsorship fee pursuant to
one regulation. In my opinion, the Motions Judge erred in doing so.
[56]
Subsection
72(1) of IRPA makes it clear that leave must be obtained for any
matter:
(1) Judicial review by the Federal Court with
respect to any matter – a decision, determination or order made, a
measure taken or a question raised – under this Act is commenced by making
an application for leave to the Court.
|
(1) Le contrôle
judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
|
|
|
[Emphasis added.]
[57]
In my
opinion, the Motions Judge erred in defining the class to include persons who
paid fees pursuant to the impugned regulations which had not been properly
challenged by way of application for leave pursuant to s. 72(1) of IRPA.
The leave application was restricted to the respondents, but it was permissible
to “convert” it into a class action to include people who were affected by the
same regulation, since the application for leave requested an Order for
declaratory relief that the regulation was ultra vires due to its
contravention of the Financial Administration Act. However, given the
mandatory language of subsection 72(1) of IRPA, the leave application
cannot be construed to include attacks on the other impugned regulations made
by the remainder of the class as certified by the Motions Judge.
[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.
Was
a class action the preferable procedure to fairly and efficiently determine the
legal validity of the impugned regulations?
[59]
In Caputo
v. Imperial Tobacco Ltd., [2005] O.J. No. 842 (QL) (Sup. Ct.) at paragraph 29, Winkler J., as he then
was, described the consideration of whether a class proceeding is the
preferable procedure for determining the common issues as “a matter of broad
discretion.” I am not convinced that the Motions Judge erred in law, principle,
or made a palpable and overriding error in fact in deciding that a class action
was a preferable proceeding to an application for judicial review.
[60]
At best,
the appellant’s argument on this issue discloses that there were some factors
that might militate against deciding that a class action is the preferable procedure.
The Motions Judge, for his part, found a number of factors indicating that a
class action was the preferable procedure, including (1) the greater simplicity
of the restitutionary award in the event of a successful claim; (2) the
appellant’s refusal to set a test case; and (3) the notion that findings of
fact would be more easily determined by way of discoveries and viva voce
evidence available only in an action. The respondents also pointed out that it
would be helpful if the entire class action were managed by a single Case
Management Judge, and that a class proceeding places the class members and the
appellant on a more equal footing.
[61]
The
appellant draws this Court’s attention to the obiter comments of Justice
Gonthier in Guimond v. Québec (Attorney General) [1996] 3 S.C.R. 347 at
paragraph 20: “it is not necessary to pursue a class action to obtain a
declaration of constitutional invalidity and therefore… it is generally
undesirable to do so.” However, courts have sometimes rejected this comment in
deciding whether a class action is a preferable procedure in public law cases:
see Nanaimo Immigrant Settlement Society v. British Columbia 2001 BCCA
75 at paragraphs 19-21, as an example.
[62]
For these
reasons I conclude that the Motions Judge did not err in exercising his
discretion to decide that a class action was the preferable procedure. I am not
satisfied that there exists a superior, alternative approach for the class
members to obtain a partial refund. As implied by the Motions Judge at
paragraph 39 of his decision, individual applications for judicial review would
not be practicable:
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.
Conclusion
[63]
For the reasons
above, I would allow the appeal in part to the extent that the class as
presently certified must be modified so as to be confined to the individuals
covered by the leave application. However, this holding is without prejudice to
the right of Mr. Hinton or another person to apply for leave, pursuant to
section 72 of IRPA, on behalf of persons affected by the other impugned regulations
and to be added into this class already certified.
[64]
No costs
will be awarded.
"J.
Edgar Sexton"
"I
agree
A.M.
Linden J.A."
"I
agree
M. Nadon J.A."