Date: 20061218
Docket: IMM-5015-06
Citation: 2006
FC 1520
Toronto, Ontario, December 18, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ALAN
HINTON and IRINA HINTON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
proceeding was commenced by way of an application for leave under the Immigration
and Refugee Protection Act, S.C. 2001, c-27 (IRPA) and the Federal Courts
Immigration and Refugee Protection Rules, SOR/2002-232 (FC Immigration
Rules). The essential issue is vastly different from the usual applications for
leave in that the point of the application is to seek a determination as to
whether the Minister is charging appropriate fee in respect of processing of
sponsorship application.
[2]
This
proceeding is an endeavour to deal with the decision of this Court in Momi
v. Canada (MCI), 2006 FC 738 which considered an unsuccessful attempt to
certify a class action. The Hintons, applicants in the present proceeding, were
specifically mentioned in these Reasons in paragraphs 72 to 79 which included
mention that the Minister took the position that the Hintons were in a possible
conflict of interest in the Momi proceedings. Counsel for the Hintons
has indicated that this was the motivation for institution of these
proceedings.
[3]
The FC
Immigration Rules, Rule 12(2) provide that, on an application for leave, no
cross-examination shall be permitted unless a judge permits it for special
reasons. Such special reasons exist here; this is a proceeding more in the
nature of a challenge to legislation or in respect of constitutionality. It
seeks a declaration that would have broad effect in respect of all
proceedings of its type. I question whether the proceedings could have been
brought as an ordinary challenge by way of action or application just as one would
challenge any other statute or, regulation or fees order. Apparently, at least
some are of the belief that anything to do with IRPA, must just go
through the awkward and, in my view unnecessary, process of seeking leave.
[4]
In any
event, the judge considering whether leave should be granted in a matter as
serious as this should have the benefit of as complete a record as possible.
Therefore, the Order as requested will be granted.
ORDER
For the Reasons given;
THIS COURT ORDERS that:
1.
The
applicant is given leave to cross-examine the respondents, Guilia Cantagallo
and Kathleen O’Connor upon their affidavits filed herein;
2.
The
applicant is granted leave to file an affidavit or affidavits in response to
those of Richard Kurland;
3.
The
respondent is given leave to file an affidavit or affidavits in response to
those provided for in paragraph 2, above, if so advised;
4.
The
parties shall provide a timetable on or before January 9, 2007 for taking the
steps required in this Order and the provision of memoranda on the leave
application with a view to accomplishing all of the aforesaid expeditiously.
5.
No Order
as to costs.
“Roger
T. Hughes”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5015-06
STYLE OF CAUSE: ALAN
HINTON and IRINA HINTON v. THE
MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 18, 2006
REASONS FOR ORDER
AND ORDER : HUGHES J.
DATED: December 18, 2006
APPEARANCES:
Mr. Lorne
Waldman FOR THE
APPLICANTS
Mr. Lorne
McClennaghan FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Waldman &
Associates
Toronto, Ontario FOR
THE APPLICANTS
John H. Sims,
Q.C.
Deputy Attorney
General of Canada FOR
THE RESPONDENT
Email this Content