Date: 20060511
Docket: A-110-05
A-129-05
Citation: 2006 FCA 178
CORAM: LINDENJ.A.
NOËL J.A.
SHARLOW J.A.
BETWEEN: A-110-05
CHINESE BUSINESS CHAMBER OF CANADA, GLOBAL IMMIGRATION CONSULTING GROUP INC., and TU CUONG ("VICTOR") LE
Appellants
and
HER MAJESTY THE QUEEN, THE MINISTER OF CITIZENSHIP AND IMMIGRATION, MARK DAVIDSON, and JOHNS AND JANES DOES
Respondents
and
CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Intervener
BETWEEN: A-129-05
CHINESE BUSINESS CHAMBER OF CANADA, GLOBAL IMMIGRATION CONSULTING GROUP INC., and TU CUONG ("VICTOR") LE
Appellants
and
HER MAJESTY THE QUEEN, THE MINISTER OF CITIZENSHIP AND IMMIGRATION, MARK DAVIDSON, and JOHNS AND JANES DOES
Respondents
and
CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Intervener
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on May 11, 2006)
LINDENJ.A.
[1] These two appeals are brought from a decision of the Federal Court (MacTavish J.), dated January 28, 2005 (2005 FC 142, reported as (2005), 45 Imm. L.R. (3d) 40, 137 A.C.W.S. (3d) 182), which denied the appellants' motion for an interim injunction. The appellants' sought an order staying the enforcement of the Regulations Amending the Immigration and Refugee Protection Regulations, Regulation SOR/2004-59; P.C. 2004-326, so as to prevent the respondents from barring non-members of the Canadian Society of Immigration Consultants (CSIC) from acting as counsel in immigration proceedings, pending the trial in this matter. The Regulations at issue, which came into force on April 13, 2004, restrict those who may represent, advise or consult with persons subject to immigration proceedings or those making immigration applications. Under these Regulations, only lawyers, members of the Chambre des notaires du Québec or members of the CSIC may act for a fee in immigration matters before the Minister of Citizenship and Immigration, an officer or the Immigration and Refugee Board.
[2] The Motions Judge concluded that the second and third prongs of the applicable tripartite test laid down in RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 were not established, as the appellants had not shown that they would suffer irreparable harm if the stay were not granted, and the balance of convenience was not in their favour. Accordingly, the motion was dismissed with costs. These appeals challenge the decision on the stay and the award of costs.
[3] The Motions Judge correctly observed that the test to be used in the context of an interlocutory motion to stay the application of a legislative provision on constitutional grounds is the tripartite test laid down in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 [Metropolitan Stores], as confirmed by the Supreme Court of Canada in RJR-MacDonald, supra. Hence, in order to succeed in their motion, the appellants had to establish that there is a serious issue to be tried, that irreparable harm will result if the injunction is not granted, and that the balance of convenience favours the granting of the injunction.
[4] An interlocutory injunction is a remedy of a discretionary nature. The limited role of an appellate court in reviewing such discretionary decisions is well-established. This Court may substitute its discretion for that of the Motions Judge if she gave insufficient weight to all the relevant considerations. In addition, this Court may intervene if the Motions Judge's conclusion was predicated upon an incorrect determination with respect to a question of law, or a palpable and overriding error of fact.
[5] After noting that the threshold for the serious issue aspect of the test is "not high" (Reasons at para. 45), the Motions Judge concluded that she was "prepared to assume, without deciding, that the underlying action raises one or more issues that satisfy the 'serious issue' branch of the tripartite test" (para. 51). Like the Motions Judge, at this stage we see no simple legal issue here which could resolve the matter in favour of the appellant and which would come within the exception described in RJR-MacDonald, supra at para. 55.
[6] The Motions Judge therefore moved on to consider the second branch of the test, irreparable harm. She concluded that considerations with respect to this aspect must be limited to the circumstances of the moving parties themselves, and thus determined that none of the appellants would suffer irreparable harm if the motion were not granted.
[7] Contrary to the appellants' submission, the Motions Judge was correct to limit the scope of the irreparable harm element to the appellants' own interests. As the decision in RJR-MacDonald makes clear, considerations related to the respondent or third parties are properly taken into account in the third branch of the RJR-MacDonald test.
[8] The onus is upon the appellants, as the party seeking the injunction order, to establish irreparable harm. The constitutional nature of the rights involved does not relieve the appellants of this requirement. The appellants have not directed this Court to any evidence or considerations to undermine the Motions Judge's finding that none of them face irreparable harm if the stay is not granted. Indeed, on the evidence produced it is hard to see any harm at all to the appellants. Accordingly, the Motions Judge's finding with respect to irreparable harm cannot be disturbed.
[9] Having found no error in the Motions Judge's conclusion with respect to irreparable harm, it is not necessary to address the third branch of the RJR-MacDonald test, namely the balance of convenience. However, if we were to consider this element, we would find no error in the Motions Judge's conclusion. The appellants have not convinced the Court that the public interest benefits that they allege will flow from the granting of the relief sought outweigh the public good that must, at this stage of the proceedings, be presumed to arise from the Regulations at issue.
[10] The appellants also appeal the Motions Judge's order with respect to costs, arguing that having regard to the nature of the application and the public importance of the issues raised, no costs should have been awarded below against the appellants.
[11] With respect to the appellants' challenge to the Motions Judge's costs order, the appellants have not demonstrated to us that the order was founded on an error of principle or was plainly wrong (McCain Foods Ltd. v. C.M. McLean Ltd., [1980] 1 F.C. 534 at para. 4; Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303 at para. 27).
[12] We would therefore dismiss these appeals with costs, both with respect to the stay and with respect to the costs order. Costs of these appeals are fixed, on consent, at $2,000.00, inclusive of all disbursements.
"A.M. Linden"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-110-05
A-129-05
STYLE OF CAUSE: CHINESE BUSINESS CHAMBER OF CANADA, GLOBAL IMMIGRATION CONSULTING GROUP INC., and TU CUONG ("VICTOR") LE
Appellants
and
HER MAJESTY THE QUEEN, THE MINISTER OF CITIZENSHIP AND IMMIGRATION, MARK DAVIDSON, and JOHNS AND JANES DOES
Respondents R
and
CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Intervener
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 11, 2006
REASONS FOR JUDGMENT OF THE COURT BY: (LINDEN, NOËL, SHARLOW JJ.A.)
DELIVERED FROM THE BENCH BY: LINDEN J.A.
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