Date: 20030307
Docket: IMM-3020-02
Neutral citation: 2003 FCT 281
BETWEEN:
LAURENTIU DRAGAN
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(With respect to certified question and legal costs)
KELEN J.:
[1] On February 21, 2003 the Court delivered its Reasons for Order and Order granting writs of mandamus in 102 applications set out in Schedule "A" to the Order and dismissing 22 applications set out in Schedule "B" to the Order. In the Reasons, the Court invited the parties to file submissions in writing regarding any question of serious general importance which ought be certified for appeal, and regarding the award of legal costs. On March 4, 2003 the Court received the final set of submissions.
MOOTNESS
[2] Four of the six counsel for the applicants contend that the Court ought not certify a question for appeal because any such appeal would be moot. The writs of mandamus that have been granted are time sensitive, in that they require that the Minister and his visa officers assess the applicants before the statutory deadline of March 31, 2003 set out in subsection 361(3) of the Immigration Refugee and Protection Regulations.
[3] The Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at paragraph 15 set out the principles relating to mootness, which I will paraphrase as follows:
- 1. the Court may decline to decide a case which raises merely a hypothetical or abstract question;
- 2. the principle of mootness applies when the decision of the Court will not have the effect of resolving some controversy which affects or may affect the rights of the parties;
- 3. if the decision of the Court will have no practical effect on such rights the Court will decline to decide the case;
- 4. the case may be said to be moot if events have occurred so that no present live controversy exists which affects the rights of the parties; and,
5. the Court has the discretion to part from its policy or practice of not hearing moot cases.
[4] Applying the principle of mootness to the Order in this case, it is clear that after March 31, 2003 the raison d'être of the Order granting 102 writs of mandamus will have disappeared. The purpose of the Order and the writs of mandamus is to require the Respondent and his visa officers, on or before March 31, 2003, interview and assess the 102 applicants for immigrant visas and award units of assessment in accordance with the former Immigration Regulations.
[5] In any event, mootness is an issue for the parties to present for consideration to the Federal Court of Appeal. The Federal Court of Appeal has the discretion to depart from the Court's policy or practice not to decide cases which have become moot. For this reason, this Court will not refrain from certifying a question for appeal because any such appeal would be moot.
CERTIFICATION OF QUESTION
[6] An appeal from the Order in this case to the Federal Court of Appeal may be made only if a Judge of the Trial Division certifies that a serious question of general importance was involved and states the question in accordance with section 74 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the "IRPA"). The question should be one that transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application, see Gyamfuah v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 89, 80 F.T.R. 58.
No questions proposed from four counsel for the Applicants
[7] Four of the six counsel for the applicants submit that the Order is limited to the applicants in this proceeding so that there is no issue or question of general importance which should be certified for appeal. The same four counsel submit, in any event, that the matter will be moot before the Federal Court of Appeal can hear the case.
Mr. Wong's proposed questions
[8] Mr. Lawrence Wong, one of the counsel for the applicants, proposed the following questions for certification:
- 6. Whether section 361 of Immigration and Refugee Protection Regulations, SOR/2002-227 (the "new Regulations") is ultra vires for the following reasons:
- (g) it violates section 11 of the Charter;
- it violates subsection 3(3)(d) of the IRPA
by denying equal benefits of the law to all backlog applicants.
- 2. Whether section 43 of the Interpretation Act is only a presumption that can be rebutted and does not confer substantive right if even accrued or accruing right is established?
- 3. Whether the language of section 190 of IRPA is expressly retrospective and therefore renders subsection 43(c) of the Interpretation Act inapplicable in all circumstances except as provided in Part 5 Transitional Provisions under IRPA.
Mr. Rosenblatt's proposed questions
[9] Mr. David Rosenblatt, one of the counsel for the applicants, proposed the following questions for certification:
- 4. Is the Federal Court of Appeal's holding in Wong v. Canada (Minister of Employment and Immigration) (1986), 64 N.R. 309 and Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763 binding upon the Trial Division with respect to the issue of lock-in date?
- 5. Was there sufficient evidence before the Court to find that sections 190 and 201 of IRPA expressly rescind vested rights?
- 6. Was there sufficient evidence before the Court to conclude that Parliament, in passing section 190 and 201 in the year 2001, intended to allow the retrospective application of selection criteria and pass mark that the respondent did not reveal until June 2002?
- 7. Can it be said that Parliament gave its informed consent to the retrospective application of the new Regulations' selection criteria and pass mark in circumstances in which the Standing Committee found, and the assistant deputy minister confirmed, that the future regulations were "supposed to make it much easier to get into this country . . . but the regulations . . . go in the reverse direction" (Affidavit of Jillian Schneider, Tab B4, p. 42)?
- 8. Regarding applications filed after December 31, 2002 that were dismissed: does pre-publication of selection criteria in December 2001 constitute "adequate notice", especially given that the final selection criteria published in June 2002 are significantly different than the proposed selection criteria?
After considering the Respondent's submissions, Mr. Rosenblatt advised the Court that he agreed that his questions need not be certified.
The Respondent's proposed questions
[10] Mr. Brad Gotkin, of counsel for the respondent, proposed the following questions for certification:
- 9. Can the recommendations of a Parliamentary Standing Committee give rise to an implied duty to use reasonable best efforts to act?
- 10. Is it an error to conclude that sections 190 of the IRPA and sections 361 of the new Regulations gave rise to an implied duty to assess all applications submitted before January 1, 2002 under the former Immigration Act, R.S.C. 1985, c. I-2?
- 11. Can a reviewing court grant mandamus:
- (a) On the basis that the respondent had a legal duty to process the visa applications within a specified time frame?
- (b) Without considering whether, in each case, an unreasonable delay had occurred?
- 4. For the purposes of a mandamus application are the following considerations relevant:
- (a) The recommendation of a Parliamentary Standing Committee;
- (b) The allocation of immigration revenues from cost recovery fees; and
- (c) The number of officials processing visa applications overseas?
- 5. Are the effects of delay and prejudice proper considerations when determining if there has been an unreasonable delay in the context of the test for mandamus?
Questions to be certified
[11] The Court has decided that these applications do raise a serious question of general importance and the following question will be certified:
In view of the Court's findings of fact with respect to the legislative history and intent of subsection 361(3) of the Immigration and Refugee Protection Regulations regarding immigrant visa applications filed before January 1, 2002, does the respondent have an implied duty to use his reasonable best efforts to assess such applications before March 31, 2003?
Court of Appeal may consider all questions
[12] After certifying a question for appeal, the Federal Court of Appeal is not confined to answering the certified question and may consider all questions raised by the parties. See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 12:
[...] The wording of s. 83(1) [of the former Act] suggests, and [Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982] confirms, that if a "question of general importance" has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here.
[13] For example, counsel proposed questions for certification with respect to the retrospectivity of sections 190 and 201 of IRPA. The Court decided that the language of these sections is sufficiently clear to convey the legislative intent that the law should apply retrospectivity, and that the jurisprudence supports that proposition. Accordingly, the Court is not satisfied that this is a question which warrants certification. However, the Court of Appeal is not confined to the certified question and may consider all questions proposed by counsel that would be determinative of the appeal after a question has been certified by this Court.
COSTS
[14] By reason of section 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/2002-232, the applicants need to demonstrate that there are "special reasons" justifying an award of costs in their favour. Section 22 states:
22. No costs shall be awarded to or payable by any party in respect of an application or an appeal under these Rules unless the Court, for special reasons, so orders.
22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande ou l'appel introduit en application des présentes règles ne donne pas lieu à des
dépens.
[15] An award of costs under section 22 is distinct from an award in the nature of damages, see Platonov v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 260. Costs have been awarded in cases where one of the parties has unnecessarily or unreasonably prolonged the proceedings, see Lominadze v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 310, Dee v. Canada (Minister of Citizenship and Immigration) (1998), 46 Imm. L.R. (2d) 278 (F.C.T.D.), and D'Almeida v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 309 (F.C.T.D.). Costs have also been awarded against the Minister where the Minister's officials have put another party through a great deal of unnecessary trouble and expense, see Canada (Minister of Employment and Immigration) v. Ermeyev (1994), 83 F.T.R. 158.
[16] The Court is satisfied that "special reasons" exist which warrant the awarding of costs to the applicants in Schedule "A" to the Order granting 102 applicants writs of mandamus. The Court concluded that the respondent neglected his implied duty to use reasonable best efforts to assess the applications before March 31, 2003. If the respondent had complied with that duty, it would not have been necessary for the applicants to incur the legal expense of these applications. However, the Court declines to award costs on a solicitor and client basis as sought by the applicants for the reason that there was no bad faith. Accordingly, the Court will award the applicants in Schedule "A" to the Order costs on a party-and-party basis as set out below.
[17] The respondent seeks costs from the 22 unsuccessful applicants in Schedule "B" to the Order. The respondent has not identified any "special reasons" for the award of costs to the respondent with respect to these applications, and the Court sees no reason to award such costs.
Basis for assessment of party-and-party costs
[18] The party-and-party legal costs awarded the 102 Applicants in Schedule "A" to the Order shall be for the assessable services under the following items in the Table to Tariff B plus reasonable disbursements. Costs shall be assessed under Column III. The number of units shall be as shown below in relation to each item.
[19] Each of the applications allowed shall be entitled to an award of counsel fees for Item 1, namely the preparation and filing of the originating documents including the affidavits and application records. For all other items, each counsel who participated in the assessable service itemized herein is entitled to one counsel fee per item since the work for each item was the same regardless of the number of applications involved.
Column III
ITEM UNITS
A. Originating Documents and Other
Pleadings
3. Preparation and filing of originating 5 for each application
documents and application records for
each application in Schedule "A" to
the Order.
B. Motions
4. & 5. Preparation for uncontested 3
and contested motions, including all
materials - per motion.
6. Appearance on a motion, per hour. 2
C. Examinations
8. Preparation for each examination and cross- 3
examination, including examinations
on affidavits.
9. Attending for each examination and cross- 2
examination, per hour.
D. Pre-Trial and Pre-Hearing Procedures
10. Preparation for each teleconference, including 2
memorandum.
11. Attendance at each teleconference, per hour. 2
13. Counsel fee:
(a) preparation for hearing, 5
(b) preparation for hearing, per day 2
in Court after the first day.
E. Hearing
14. Counsel fee per hour:
(a) to first counsel, per hour in Court; 2
15. Preparation and filing of written submissions, 5
requested by the Court after hearing.
[20] Each counsel seeking an assessment of costs shall prepare a bill of costs in accordance with these Reasons to be taxed in the event the parties are unable to agree.
"Michael A. Kelen" _______________________________
J.F.C.C.
Ottawa, Ontario
March 7, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3020-02
STYLE OF CAUSE: LAURENTIU DRAGAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 4 AND 5, 2003
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: MARCH 7, 2003
APPEARANCES BY: Mr. Timothy Leahy,
Mr. David Rosenblatt,
Mr. Marvin Moses,
Mr. Lawrence Wong,
Mr. Mitchell Brownstein,
For the Applicant
Ms. Leena Jaakkimainen,
Mr Daniel Latulippe,
Mr. Keith Reimer,
Mr Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Immigration North America, Toronto
Rosenblatt Associates, Toronto
Moses and Associates, Toronto
Chang and Boos, Toronto
Brownstein, Brownstein and Associates, Montreal
Bohbot and Associates, Montreal
Lawrence Wong and Associates, Vancouver
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030307
Docket: IMM-3020-02
BETWEEN:
LAURENTIU DRAGAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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