Date: 20090529
Docket: IMM-62-08
Citation: 2009 FC 559
Ottawa, Ontario, May 29,
2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
TIMOTHY E. LEAHY, Esq.
and
FOREFRONT MIGRATION LTD.
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal in writing by the Applicants, pursuant to Rules 51 and 369 of the Federal
Courts Rules (the Rules), from the February 23, 2009 decision
of Prothonotary Aalto, striking out the Applicants’ application for leave and
judicial review challenging the decision of John Burroughs, Consul (the
Consul), Canadian Consulate General in Hong Kong (the Consulate General) “made
covertly at an unknown date to refuse en masse sans interview work permits at Wing’s
Foods of Alberta Ltd. in Edmonton (File Nos. W070700215/16/17/18/19/25/26/27”
(the proceeding)).
[2]
The
application for leave and judicial review was launched naming Timothy E. Leahy,
Esq. and Forefront
Migration Ltd. (Forefront) as Applicants. Mr. Leahy signed the application “Timothy
E. Leahy – Applicant, General Counsel and Director Forefront Migration Ltd.” The principal remedy
sought by the Applicants is an order quashing “Consul Burroughs’ decision,
applied eight times”. Prothonotary Aalto granted the Minister’s motion to
strike on the ground the Applicants had no standing to initiate the proceeding
as they were not, as required by section 18.1(1) of the Federal Courts Act,
directly affected by the matter in respect of which relief is sought.
[3]
The
record indicates through the affidavit of Imelda On (Applicants’ Application
Record, page 31), she had formed some sort of association with Mr. Leahy in
2007 to seek Alberta employers
“who would retain us to fill their staff shortages” and that in June 2007, “Mr.
Leahy, who resides abroad, set up a Calgary office … and, in September 2007, my
son and I moved to Calgary so that I could devote more time to securing
contracts with Alberta employers”.
[4]
Imelda
On deposes she had secured Wing’s Foods of Alberta Ltd. as a client in February
2007. She states the owner of Wing’s Foods asked her to find ten workers,
preferably Cantonese-speaking, because that is the primary language of most of
his 50+ work force.
[5]
The
record shows she submitted the work permit applications to the Canadian
Consulate in Hong Kong. Her affidavit speaks of ten individuals who signed
employment contracts with Wing’s Foods for specified main duties and covering
terms of employment: hours of work, hourly pay, vacations, etc. She adds
Service Canada approved these contracts on June 23, 2007. She hand delivered
these applications to the Consulate General.
[6]
She
alleges that in August 2007, the Consulate embarked on a campaign to smear Mr.
Leahy by sending out letters to clients “falsely asserting that Mr.
Leahy does not meet the requirement for being an “authorized representative””,
which the letter stated includes anyone who is a “member in good standing of a
provincial … law society …”. The record shows Mr. Leahy sued for damages.
The standard of review
[7]
The
Federal Court of Appeal in Merck
& Co. v. Apotex Inc.,
2003 FCA 488, building on the Court’s decision in Canada v. Aqua-Gem
Investments Ltd. (C.A.), [1993] 2 F.C.
425, held that on an appeal from a Prothonotary’s decision, the reviewing court
should first determine whether the questions raised in the appeal are vital to
the final issue of the case. If so, the reviewing Court must determine the
matter de novo. If the vitality test is not met, then a Prothonotary’s
discretionary order is not to be set aside on appeal unless clearly wrong.
[8]
In
this case, the Prothonotary’s order is vital to the final issue of the case as
the Applicants’ application for leave and judicial review has been struck with
no possibility of amendment.
Analysis and Conclusions
[9]
Subsection
72(1) of the IRPA provides, by filing an application for leave and
judicial review in this Court from any decision made under IRPA.
[10]
The
Federal Courts Immigration and Refugee Protection Rules speak to
procedural rules dealing with application for leave and the prescribed form.
[11]
If
leave is granted, the matter proceeds on judicial review under the Federal
Courts Act. Section 18.1(1) of that Act provides an application for
judicial review may be made “by anyone
directly affected by the matter in respect of which relief is sought”.
[12]
Section
221.(1) of the Federal Courts Rules says the Court may strike a pleading
that is “scandalous, frivolous or vexatious”. In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.), the Federal
Court of Appeal held the Federal Court had inherent jurisdiction to dismiss an
application for judicial review “that was so clearly improper as to be bereft of any
possibility of success”.
[13]
Prothonotary
Aalto had
before him several motions from the Applicants seeking various orders including
an extension of time to seek leave and judicial review, a consolidation request
and a number of declaratory orders. He also had before him a motion to strike
the application for leave and judicial review on the grounds that its initiation
by the Applicants “is clearly improper and bereft of any possibility of
success” since they are not persons directly affected by Officer Burroughs’ decision.
Thus, says counsel for the Respondent, they lack standing.
[14]
Counsel
for the Respondent raised another ground namely that in one leave application, the
Applicants seek “eight different and unrelated work-permit decisions contrary
to Rule 302 of the Federal Courts Rules”, pointing out that “two of the
eight decisions being challenged had not (then) been rendered”.
[15]
Counsel
for the Respondent adds that, in the application for judicial review, the
Applicants are seeking an award of damages which they cannot do on judicial
review. This is a correct view of the law.
[16]
The
jurisprudence cited to the Prothonotary by the counsel for the Respondent on
persons directly affected is persuasive and determinative in this case. Mr.
Leahy did not attempt to rebut that jurisprudence.
[17]
In
the circumstances, the appeal must be dismissed with costs. I reached the same
result recently in Timothy E. Leahy, Esq. et al v. the Minister of
Citizenship and Immigration, 2009 FC 509.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES this appeal is dismissed
with costs.
“François Lemieux”
___________________________
Judge
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