1. Is the desire to seek certification of a class action 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?

2. If so, what is the test for conversion in the circumstances? Does it include consideration of the factors listed in rule 299.18, which sets out the test for certification of a class action?

FACTS

[2] On February 1, 2002, Andrejs Tihomirovs applied for permanent residence under the provisions of the Immigration Act, R.S.C. 1985, c. I-2. His application was not processed prior to the coming into force of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27, on June 28, 2002.

[3] Mr. Tihomirovs is of the view that had his application been dealt with under the Immigration Act, it would have been successful. He also believes that he will not meet the requirements of the new legislation. As a consequence, Mr. Tihomirovs brought an application for judicial review wherein he seeks an order of mandamus, or a permanent mandatory injunction, directing the Minister of Citizenship and Immigration to assess his application in accordance with the former legislation.

[4] Mr. Tihomirovs sought an order directing that his application for judicial review be converted to an action. His intention is to have the action certified as a class action brought on behalf of all skilled worker, self-employed, entrepreneur and investor applicants for permanent residence who submitted their applications between January 1, 2002, and June 28, 2002 (excluding provincial nominees and those destined for the Province of Quebec).

[5] Counsel for Mr. Tihomirovs says that his intention is that not only should 21 other judicial review applicants be included in the class action, but that the class be open to some 40,000 individuals who applied for permanent residence in Canada between January 1 and June 28, 2002, who did not file judicial review applications.

ANALYSIS

[6] There is no provision in the Federal Courts Rules, SOR/2004-283, for class judicial review proceedings. If the matter is to proceed on a class basis, certification of a class will require that the judicial review be converted to an action pursuant to subsection 18.4(2) of the Federal Courts Act, R.S., 1985, c. F-7; 2002, c. 8, s. 14:

18.4(2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

18.4(2) Elle peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.

[7] The Minister acknowledges that rule 299.11 says that the rules applicable to class actions apply to an application for judicial review that is to be treated and proceeded with as an action under subsection 18.4(2). Rule 299.11 provides:

299.11 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.

299.11 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.

Nonetheless, the Minister submits that the proper interpretation of rule 299.11 is that an intention to initiate a class action cannot be grounds for conversion of a judicial review to an action under subsection 18.4(2). Only if a conversion order is made on the basis of some other ground would it then be open to move for certification of the converted action as a class action.

[8] The primary basis of the Minister's argument is that the Federal Courts Rules do not extend the class action scheme to judicial reviews. Citing proceedings before the Rules Committee of the Court and the Regulatory Impact Analysis Statement which accompanies the Rules (SOR/2002-417) incorporating the Class Action Scheme into the Federal Courts Rules in 2002, the Minister says this exclusion of class proceedings in judicial review applications was deliberate. He says that subsection 18.4(1) of the Act is a statutory expression of the public interest in having public law disputes resolved speedily:

18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.

18.4 (1) Sous réserve du paragraphe (2), la Cour fédérale statue à bref délai et selon une procédure sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre des articles 18.1 à 18.3.

Conversion for class action purposes would delay proceedings contrary to the intent of subsection 18.4(1). Therefore, an intention to initiate a class action cannot be the basis for an application to convert a judicial review to an action under subsection 18.4(2).

[9] I am unable to agree with the Minister. In Drapeau v. Canada (Minister of National Defence) (1995), 179 N.R. 398 (F.C.A.), Hugessen J.A. (as he then was), for the majority, found that there were no limits placed on the considerations which may be taken into account in a subsection 18.4(2) application:

... In our view, s. 18.4(2) 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. The desirability of facilitating access to justice and avoiding unnecessary cost and delay is certainly one of them.

[10] I agree with Hugessen J.A. I see no reason why an intention to certify an action as a class action is not a consideration on conversion when that is the reason for conversion.

[11] Rule 299.11 expressly contemplates that the class action rules apply to a matter originally commenced as a judicial review and converted under subsection 18.4(2). Since subsection 18.4(2) does not limit the considerations to be taken into account on a conversion application, it must follow that an intention to certify a class action is not excluded from consideration.

[12] I agree with the Minister that the intention of judicial review proceedings is to have public law matters decided in a summary manner. However, as I will explain, this is not a bar to conversion. It is just another consideration to be taken into account on the application for conversion.

[13] I would answer the first certified question in the affirmative.

[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.

[15] Where certification of a class action is the objective of the conversion application, it seems to me that the relevant considerations are those pertaining to whether certification will be granted. These considerations are set out in rules 299.18(1) and (2):

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;

(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

...

(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.

299.18 (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 d'au moins deux personnes;

c) les réclamations des membres du groupe soulèvent des points de droit ou de fait collectifs ...

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 :

...

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.

The matters referred to in rule 299.18 are intended to guide the court in determining whether or not an action should be certified as a class action. It seems to me that it logically follows that the same considerations should guide the court in deciding whether or not a judicial review should be converted to an action for the purposes of certification of the action as a class action.

[16] Where the reason advanced to support an application for conversion is an intention to certify a class action and an applicant is unable to satisfy the court that a class action should be certified, it would follow that justification for conversion has not been made out. If a certification application would fail, the conversion application should also fail.

[17] Technically, of course, conversion must precede certification because a judicial review cannot be certified for class proceedings. In other words, the judicial review must first be converted to an action before certification can be granted. Therefore, it may be suggested that having to satisfy the criteria for certification before a conversion order is made is to put the cart before the horse.

[18] The practical answer is that both conversion and certification applications should be heard and considered together. If the evidence satisfies the certification tests, conversion should be ordered followed immediately by a certification order. Only if a party can demonstrate the simultaneous consideration of conversion and certification would be prejudicial should conversion be dealt with in advance of certification. However, in such case, I would think the considerations applicable to certification would still be applicable to conversion unless it could be shown otherwise.

[19] To answer the Minister's concern that conversion for the purpose of certifying a class action defeats the purpose of judicial review, the question of the preferable procedure is a matter to be taken into account in the conversion/certification proceeding. The court will look at the questions of practicality and efficiency and which procedure will provide the least difficulty for resolving the matter. For example, a multiplicity of judicial review proceedings, which a class action might avoid, might also be avoided if the parties agree to treat one judicial review as a test case for other judicial reviews dealing with the same issue. These and other considerations should allow the court to determine whether to grant conversion and certification.

[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.

[21] For these reasons, I am of the view that where the intention of conversion is to certify an action as a class action, the conditions in rule 299.18 will normally be as relevant to the conversion application as they are to the application for certification. Of course, as there are no limits on the matters the court may consider relevant in a conversion application, I do not rule out other matters being taken into account by the court. However, the focus will normally be on the conditions for certification in rule 299.18.

[22] I would answer the certified questions as follows:

1. A desire to seek certification of a class action is a relevant consideration on a motion to convert a judicial review into an action under subsection 18.4(2). However, such desire is not sufficient to justify conversion.

2. The matters relevant for consideration on an application for conversion for the purpose of certifying a class action include those in rule 299.18. As a practical matter, the applications for conversion and certification should be heard and considered together unless a party can demonstrate prejudice in doing so. Then, where the applications for conversion and certification are considered together, if the test for certification is satisfied, a conversion order should be made and it should immediately be followed by an order certifying the class action.

[23] The appeal should be allowed, the judgment of the Federal Court set aside and the matter remitted to the Federal Court judge for redetermination in accordance with these reasons. There should be no order as to costs.

"Marshall Rothstein"

J.A.

"I agree

Gilles Létourneau J.A."

"I agree

B. Malone J.A"

FEDERAL COURT OF APPEAL

Names of Counsel and Solicitors of Record

DOCKET: A-169-05

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Appellant

- and -

ANDREJS TIHOMIROVS

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: SEPTEMBER 13, 2005

REASONS FOR JUDGMENT

BY: ROTHSTEIN J.A.

CONCURRED IN BY: LÉTOURNEAU J.A.

MALONE J.A.

DATED: SEPTEMBER 28, 2005

APPEARANCES BY:

Mr. Kevin Lunney FOR THE APPELLANT

Mr. Dan Miller FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE APPELLANT

Dan Miller

Barrister & Solicitor

Toronto, Ontario FOR THE RESPONDENT

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Canada (Minister of Citizenship and Immigration) v. Tihomirovs, 2005 FCA 308

Citations2005 FCA 308

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2005 FCA 308