Docket: IMM-1569-11
Citation: 2011 FC 1085
Ottawa, Ontario, September 21,
2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
JEFFREY HEMLIN
|
|
|
|
Applicant
|
|
and
|
|
|
THE CANADIAN SOCIETY OF IMMIGRATION
CONSULTANTS and
THE DISCIPLINE COUNCIL OF THE CANADIAN
SOCIETY OF IMMIGRATION CONSULTANTS
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR ORDER AND ORDER
[1]
This
is a motion by the applicant for:
a) An order staying the current
disciplinary proceedings commenced by the Respondents against the Applicant
pending the results of the Applicant’s application for leave and judicial
review;
b) An order prohibiting the
Respondents from commencing future disciplinary proceedings against the
Applicant pending the results of the Applicant’s application for judicial
review; and,
c) An order of mandamus,
directing CSIC to remove all public notices of the disciplinary proceedings
against the applicant from its website, and directing CSIC and its employees
from releasing information to the public about the proceedings;
[2]
At
the hearing of this matter, the relief requested in paragraph a) was the main
thrust of the argument. The relief requested in paragraphs b) and c) were
mentioned as being in the motion.
Factual Background
[3]
The
applicant has been an immigration consultant since March 1985.
[4]
The
Canadian Society of Immigration Consultants’ (CSIC) mandate is to regulate its
members. CSIC was created pursuant to letters patent issued October 8, 2003.
[5]
The
purposes of the society include the following:
1. To regulate in the public
interest eligible persons who are members of the Corporation and advise or
represent individuals, groups and entities in the Canadian immigration process
(“Immigration Consultants”), as determined in accordance with the policies and
procedures published by the Corporation from time to time.
2. To establish a code of conduct
to be followed by Immigration Consultants regulated by the Corporation.
3. To establish a complaint and
disciplinary procedure in respect of the conduct of Immigration Consultants
regulated by the Corporation.
[…]
9. To do all such other things as
may be necessary or incidental to the furtherance of the foregoing objects and
purposes.
[6]
The
Immigration and Refugee Protection Regulations, SOR/2002-227, state that
only members of provincial law societies, law students or members of CSIC may
represent a person for a fee in immigration matters.
[7]
CSIC
has established a complaints and discipline policy to deal with complaints
against members.
[8]
Complaints
were filed against the applicant which were investigated. As a result of the
investigation, the manager of CSIC’s complaints, compliance and discipline
department referred the matters to the discipline council for a hearing.
[9]
The
discipline council is a tribunal that is separate from the investigative arm of
CSIC. One to three members of the discipline council are selected to form a
panel to adjudicate disciplinary cases. In this case, a panel of three members
was selected (the panel).
[10]
The
panel’s hearings took place on September 8, 9, 14 and 15, 2010, to deal with
the allegations against the applicant.
[11]
The
panel issued its reasons for decision on October 29, 2010 and found the
allegations to be well founded.
[12]
The
panel’s decision did not deal with the penalty aspect of the findings.
[13]
The
applicant filed an appeal of the panel’s decision. The parties agreed that this
appeal would be heard after the hearing of the penalty aspect of the findings
(disposition hearing).
[14]
The
disposition hearing was held on March 15, 2011 but no decision was released on
the penalty aspect of the case.
[15]
The
applicant filed an application for judicial review of the panel’s decision on
March 9, 2011, which was served on CSIC on March 10, 2011.
[16]
CSIC
informed the applicant on or about February 11, 2011 that it agreed to stay the
imposition of whatever penalty that was imposed on the applicant pending the
disposition of his appeal. As well, it agreed to stay the imposition of any
penalty until the judicial review application was dealt with.
[17]
The
applicant raised a number of issues he submitted were serious issues to be
tried.
Issue
[18]
Should
the applicant be granted a stay of proceedings?
Analysis and Decision
[19]
The
applicant presented to the Court on April 7, 2011, the affidavit of Dianne
Toth, sworn to on the same day. I will allow the affidavit to be filed but I do
not consider it to have relevance to this motion. The issue in question in the
judicial review underlying the motion had already been determined prior to the
later judicial review being filed. In any event, even had I considered the
material to be relevant, it would not have been sufficient to change my
decision on the motion.
[20]
The
Federal Court of Appeal in Toth
v Canada (Minister of Employment and
Immigration)
(1988), 86 NR 302 (FCA) outlined at page 305, the requirements that must be met
in order to obtain a stay of proceedings:
This Court, as well as other appellate
courts have adopted the test for an interim injunction enunciated by the House
of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396… As
stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid
requires, for the granting of such an order, that the applicant demonstrate,
firstly, that he has raised a serious issue to be tried; secondly, that he
would suffer irreparable harm if no order was granted; and thirdly that the
balance of convenience considering the total situation of both parties, favours
the order.
[21]
I
would like to first discuss the issue of irreparable harm.
[22]
The
applicant has submitted that he will suffer irreparable harm as he will lose
income and his professional reputation will suffer damage.
[23]
With
respect to loss of income, CSIC has undertaken to stay the imposition of any
penalty that may be imposed until after the disposition of the applicant’s
appeal and this application for judicial review. It seems to me that this deals
with the applicant’s loss of income argument.
[24]
The
applicant also submits that there will be damage to his reputation, which would
amount to irreparable harm, if the stay is not granted.
[25]
In
Butterworth v College of Veterinarians of Ontario [2001] OJ No 5265
(SCJ), a case where the applicant sought a stay of proceedings prior to the
disciplinary hearing, alleging that this professional and personal reputation
would suffer irreparable harm, the Court stated at paragraphs 14 to 17:
14 The second issue is irreparable harm
- harm which either cannot be quantified in monetary terms or which cannot be
cured.
15
The
basis of this argument is that the prospective damage to the applicant's
personal and professional reputation constitutes irreparable harm.
16
If
that argument prevails, then the same argument might be made in every
discipline case against a professional. The allegations remain what they are -
mere allegations and nothing more until proved. The Discipline Committee has
not yet decided anything (except the stay application and other interlocutory
matter - not germane to this application). I do not agree that merely embarking
on a discipline hearing will irreparably harm the applicant's reputation. The
allegations against Dr. Butterworth here are of an extremely serious nature but
as I say they are mere allegations.
17
In
any event if the matter proceeds the Discipline Committee may accept the
applicant's argument that it is without jurisdiction and there may be no
hearing. I am not persuaded that the applicant will suffer irreparable harm if
the hearing is not stayed.
[26]
And
finally, in Marler v Law Society of Upper Canada [2009] OJ No
654 (SCJ) at paragraph 9, the Court stated:
.
. . In my view, the applicant has not shown that there will be irreparable
harm. He is continuing in the practice of law. If, at the end of the discipline
hearing he is found guilty of professional misconduct, he has a right of appeal
to the Appeal Tribunal. If at the end of the day he is found not guilty, there
will have been no harm in any event. If it should transpire that he is found
guilty and that he was denied a fair hearing, any efforts that may turn out to
have been wasted may be made the subject of a costs award if the circumstances
justify it.
[27]
After
having reviewed the file material and for the above noted reasons, the
applicant has not satisfied me that he will suffer irreparable harm if the stay
is not granted. I do not believe that the continuation of a disciplinary
hearing will irreparably harm the applicant’s reputation, on the facts of this
case. As well, the applicant would be allowed to continue to work as an
immigration consultant until the discipline proceedings and the judicial review
proceedings are complete.
[28]
As
the applicant must meet all three branches of the tri-partite test in order to
obtain a stay, the motion for a stay must be dismissed. I need not discuss the
remaining two branches of the test.
[29]
I
am not prepared, based on the material before me, to grant the relief requested
in paragraphs b) and c) of the motion. This relief can always be requested by
application.
[30]
The
applicant’s motion is dismissed with costs.
ORDER
IT IS
ORDERED that the applicant’s motion is dismissed with costs.
“John
A. O’Keefe”
Email this Content