Date: 20060815
Docket: IMM-5186-05
Citation: 2006 FC 978
Ottawa, Ontario, August 15, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
PETER ANTHONY COLACO
SAVITA COLACO
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
SUPPLEMENTAL REASONS FOR
JUDGMENT AND JUDGMENT
[1]
In my Reasons for Judgment rendered on July 19, 2006 in this case, I
allowed either party to propose a certified question. The Respondent has now
done so and proposes the following question for certification:
Does the reasoning of the Supreme
Court of Canada decision of Hilewitz and de Jong apply to
individuals applying to immigrate to Canada as skilled workers?
[2]
The Applicants oppose the certification of a question and have submitted
that the issue which the Respondent seeks to raise on appeal “is not a new
question”.
[3]
It is clear to me that the question proposed by the Respondent would be
determinative of the outcome of this case because the scope of the Supreme
Court of Canada decision in Hilewitz v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 706 was the sole basis upon
which I ruled in favor of the Applicants. While I have some reservations about
the seriousness of the question proposed, I am not completely satisfied that
the issue which the Respondent now seeks to raise was squarely addressed by the
Supreme Court of Canada in Hilewitz or
in the other cases which that Court cited with approval.
[4]
This issue is also one which has been raised in earlier cases before
this Court. In Hossain v. Canada (M.C.I.), [2006] F.C.J. No. 602, 2006
FC 475, Justice Johanne Gauthier was asked to certify a similar question in the
context of a family member with a medical disability. There, the issue was
held to be premature and not determinative, albeit potentially “relevant in the
future”.
[5]
Subsequently, in Kirec v. Canada (M.C.I.), [2006]
F.C.J. No. 1017, 2006 FC 800, Justice Pierre Blais was asked to rule on the
application of the Hilewitz case to the skilled worker category of
immigrant. He found it unnecessary to deal with that issue because the family
had not presented an adequate factual basis for the issue to be resolved.
[6]
There is an arguable ambiguity in the reasoning of the Court in Hilewitz,
one interpretation of which would support the Respondent’s position. I will,
therefore, certify the question proposed by the Respondent in this case.
JUDGMENT
THIS COURT ADJUDGES that the following question be
certified in this case:
Does the
reasoning of the Supreme Court of Canada in Hilewitz v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 706 apply to individuals applying to immigrate to Canada as
skilled workers?
"R.
L. Barnes"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5186-05
STYLE OF CAUSE: PETER
ANTHONY COLACO ET AL
v.
MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 28, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: BARNES, J.
DATED: August 15, 2006
APPEARANCES:
Mario
Bellissimo FOR APPLICANTS
Catherine
Vasilaros FOR
RESPONDENT
SOLICITORS
OF RECORD:
Mario
Bellissimo FOR
APPLICANT
Ormston,
Bellissimo, Rotenberg
Barristers
& Solicitors
Toronto, Ontario
John H. Sims,
Q.C. FOR
RESPONDENT
Deputy Attorney
General of Canada
Department of
Justice
Ontario Regional Office
Toronto,
Ontario
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