Federal Court Decisions

Date: 20150720

Docket: T-2502-14

Citation: 2015 FC 884

Ottawa, Ontario, July 20, 2015

PRESENT: The Honourable Mr. Justice Zinn

PROPOSED CLASS ACTION PROCEEDING

ORDER AND REASONS

[1]               The defendants move to strike the Statement of Claim, without leave to amend.  They submit that it discloses no reasonable cause of action, and is riddled with deficiencies such that the “claim is beyond particularizing or amending [and] should be struck in its entirety.”  I agree; however, the plaintiffs ought to be granted an opportunity to file an amended claim that properly and specifically sets out their claim(s).

[2]               The present Statement of Claim comes close to being incomprehensible.  The claim appears to assert that the plaintiffs have suffered damages and loss as a result of the delay, misfeasance, discrimination, negligence, and illegality in the processing of Labour Market opinions [LMOs], Labour Market Impact Assessments [LMIAs], work permits and permanent residence applications.

[3]               This is a proposed class action proceeding against two Ministers for certain alleged acts and omissions, and against Her Majesty the Queen for the tortious acts and omissions of her officials and servants, including the two Ministers.

[4]               It is alleged that all of the plaintiffs applied for, and were denied, LMO or LMIA assessments, on Temporary Work Permits [TWP], Work Permits [WP], or Provincial Nominee Program [PNP] permanent resident consideration.  The plaintiffs are sorted into eight groups (it is unclear to the court whether some plaintiffs appear in more than one group), as described in paragraph 2 of the Statement of Claim, as follows:

[Group 1] “are all Foreign Temporary Workers, [TFW] pursuant to the IRPA Regulations, under the authority of s. 12(2) of the IRPA, who applied for Foreign Temporary Worker permits and were denied because no Labour Market Opinion ("LMO") or Labour Market Impact Assessment ("LMIA") had been processed by the Defendant Minister of Employment and Social Development (formerly Minister for Human Resources and Social Development), following which the Minister of Immigration and his officials denied them work permits due to the inordinate, inexplicable, and actionable delay by the Minister of Human Resources and Social Development, contrary to his statutory duty to process, pursuant to s. 3(1)(f) of the IRPA, which applications were filed and denied to the Plaintiffs set out in, and in accordance with,"Schedule A" of the within Statement of Claim;”

[Group #2] “are all Foreign Temporary Workers, pursuant to the IRPA Regulations, who were denied permits based on the erroneous, arbitrary, and ultra vires assessment that the Plaintiffs' trade or work category lack a labour market "shortage", which refusals were made based on conceded facts by the Defendants that:

(i) that no statistics existed with respect to "shortages";

(ii) that the Defendant Ministers expressed, publicly, that they hoped to have such statistics as to shortages, by 2015; and

(iii) that the best-placed authority as to shortages are the Provincial, local Labour authorities, industries, and trade unions;

which applications were filed and denied to the Plaintiffs set out in, and in accordance with, "Schedule B" to the within statement of claim;”

[Group #3] “were denied LMO/LMIA consideration due to illegal and ultra vires Ministerial directions and instructions by the Minister of Employment and Social Development, of a moratorium up to June 201h, 2014, which moratorium was applied nationally even though it arose from a local problem in Western Canada with no such problem existing in Ontario, particularly with the "ethnic food sector", and further which instructions were due to the incompetence and ultra vires LMO/LMIA assessments, as well as the impossible and onerous policies and requirements then imposed on June 20'h, 2014, looking forward beyond June 20'h, 2014, which included some of the following:

(i) commit to hiring and training Canadians at high wage rates even though the employers cannot find Canadians willing and able to be trained and, further, if a company failed to find and train a Canadian worker over a 3-5 year period, then the company could face l year in jail and a $100,000 fine;

(ii) agree to let in Ministry of Employment and Development (Human Resources and Social Development) investigators into their office, unannounced and without warrant, to review and take all company records; Ministry of Employment and Development (Human Resources and Social Development) investigators also were given ability to enter residential premises;

which LMO/LMIA applications, were filed and denied to the Plaintiffs set out in, and in accordance with "Schedule C' of the within Statement of Claim;”

[Group #4] were denied, contrary to law, and by way of illegal and ultra vires policy change and Minister's instructions, which policies and changes changed after the Plaintiffs' application was submitted, but before a decision on the assessment was made, whereby the new policies and instructions were applied to the LMO/LMIA, resulting in a refusal of the application, and actionable damages caused to the Plaintiffs set out in, and in accordance with "Schedule D" of the within Statement of Claim;

[Group #5] were denied an LMO/LMIA assessment and decision in order to .renew their work permits, due to arbitrary, and ultra vires, compliance order(s) against their employers and Plaintiffs which made it impossible to obtain a decision, such as:

(i) the inexcusable, inordinate delay in processing and verifying which could take 5-6 months;

(ii) making assessments, and assumptions regarding commercial, market and labour standard conditions which did not accord with reality and were based on mere assumptions without evidence, when the expertise, evidence, and information lay with local Provincial authorities, industries, and unions which were not accessed by the Defendants' officials;

(iii) while they called them "investigations" with respect to the compliance orders, the Defendants' officials in fact never showed up at work-sites, or offices, to speak to employers or employees; and

(iv) while an employer was under "compliance review", all applications for that employer were not processed;

which resulted in the denial of an LMO/LMIA assessment for the Plaintiffs who applied for one, prior to the arbitrary compliance orders were put in place, but before an assessment/decision could be made, which caused actionable damages for the Plaintiffs as set out in, and in accordance with "Schedule E' of the within Statement of Claim;”

[Group #6] “were not able to apply for required LMO/LMIA, to renew their work permits, due to arbitrary, and ultra vires, arbitrary changes to LMO/LMIA Rules for which these Plaintiffs made it impossible to obtain a decision, which rules include such orders as:

(i) the Defendants' officials would change the wage rates without notice;

(ii) the Defendants' officials would change the advertising requirements without notice;

(iii) the Defendants' officials would charge their analysis of their "labour market" statistics without notice; and

(iv) the Defendants' officials would change language requirements without notice;

which resulted in the denial of an LMOILMIA assessment for the Plaintiffs who applied for one, prior to the arbitrary rules were put in place, but before an assessment/decision could be made, which caused actionable damages for the Plaintiffs as set out in, and in accordance with "Schedule F' of the within Statement of Claim;”

[Group #7] “were eligible Provincial Nominee Program ("PNP") Applicants in Ontario who applied but, because of either illegal and ultra vires "quota" and inexplicable, illegal, and actionable delay by the Defendant Minister of Immigration, as well as superimposing and overriding provincial criteria and selection with irrelevant and ultra vires federal criteria, will not receive an answer to their application for their permanent residence, and will see removal proceedings against them before a decision can be made, thus causing actionable damages to these Plaintiffs as set out, and in accordance with "Schedule G'' of the within Statement of Claim;”

[Group #8] “who qualify for the "PNP" Programme in Ontario but who, because of the illegal, arbitrary, and ultra vires Federal "quota" by the Defendant Minister of Immigration, as well as super imposing and overriding provincial criteria and selection with irrelevant and ultra vires federal criteria, will not be processed, and subject to removal proceedings prior to a decision and thus caused actionable damages to the Plaintiffs as set in, and in accordance with "Schedule H” of the within Statement of Claim;”

[5]               The plaintiffs submit that “the substantive issues” in this motion have been dealt with by the court in Cabral et al v Canada (Minister of Citizenship and Immigration) et al, T-2425-14, which is referred to as “the companion case” and they argue that the basis of the within motion is “virtually indistinguishable, in law, and that the within motion to strike ought to be dismissed, as was largely the case in T-2425-14.”

[6]               I agree with the defendants that the ruling on the motion to strike in T-2425-14 is of limited assistance in deciding the within motion because the subject matter of the actions are significantly different.  I also agree with the defendants that the ruling in T-2425-14 is relevant in two respects: (i) whether the motion should be heard orally rather than in writing, and (ii) with respect to the plaintiffs’ challenge to section 49 of the Federal Courts Act which bars jury trials should be struck.  For the reasons given in T-2425-14, I find that this motion may be properly disposed of in writing pursuant to Rule 369 of the Federal Courts Rules, and that the allegation challenging section 49 of the Federal Courts Act, must be struck from the Statement of Claim.

[7]               The defendants submit that the plaintiffs, as TFWs, are “without standing with respect to claims concerning the processing of applications for [LMO/]LMIAs and thus paragraphs 2(a)-(f) and 6(a)-(f) do not disclose a reasonable case of action.”  It is accurate, as the defendants plead that LMOs and LMIAs are applied for and issued to employers, not the workers hired under them.  However, it is not plain and obvious that a worker cannot be adversely affected by the failure or delay of Canada to issue a LMO or LMIA to a prospective employer which would have permitted the worker to be hired.  On the other hand, it is unclear to the court that the claim, as currently drafted, pleads that all or any of the plaintiffs would have been hired as temporary workers had these documents been issued.

[8]               I am far from convinced that it is plain and obvious that none of these plaintiffs have a possible claim against the defendants; however, as presently drafted, the Statement of Claim cannot stand.  The Statement of Claim suffers from a number of deficiencies that cannot be cured simply by striking its offensive parts for what would remain would not make sense.  These deficiencies include the following:

1.      The plaintiffs have not responded to what appears to be an accurate submission by the defendants that “the title of the proceeding lists 236 plaintiffs but upwards of 90 are listed twice [and] seven plaintiffs appear multiple times with names spelled in different ways making it unclear whether they are duplicate or different plaintiffs.”  This must be corrected in order that the defendants know who is bringing the action and without that information they are unable to mount much if any specific defence.

2.      The Schedule “B” plaintiffs are described in paragraph 2(b) as having been denied permits but in Schedule “B” the plaintiffs are described as having been denied “LMIAs”.  This inconsistency must be resolved.

3.      The Schedule “A” plaintiffs are described as having been denied LMIAs, but in Schedule “A” the plaintiffs list the dates they applied for work permits, which is not relevant to the claim these plaintiffs are advancing.  Again, this must be resolved.

4.      “In paragraph 12(a), the plaintiffs make passing reference to a ‘criminal law duty of care, under s. 126 of the Criminal Code” [but] no facts are pleaded in respect of this claim, nor is this alleged duty of care otherwise referenced in the pleading.”  Absent such particulars, this pleading should be struck.

[9]               The defendants submit that “the plaintiffs plead no material facts supporting a claim that delays in the processing of applications for LMIAs are actionable.”  The plaintiffs plead that there were delays in processing the LMOs and LMIAs and that those delays were “inordinate, inexplicable and actionable.”  I do not accept, as the defendants suggest, that the claim must set out the dates of application, the date of denial, and the processing time that passed.  Those facts can be discovered through a demand for particulars if the information is not otherwise available to the defendants.  It is not necessary for the purposes of pleading.  On the other hand, the plaintiffs must plead more than mere delay.  Without pleading the basis for its assertion that there was a delay (such as comparing the processing time to an average, or basing the processing on some specific direction or policy), the defendants cannot respond.

[10]           I agree with the defendants that the plaintiff s’ pleading that they have been or will be denied permanent resident visas owing to ‘quotas’, ‘delays’,  and ‘ultra-vires federal criteria’ is far too general.  The plaintiffs must plead material facts to establish the alleged quota, delay and ultra-vires claims, and plead facts the support the allegation that they have been or will be denied permanent resident visas to which they would otherwise be entitled.

[11]           I agree with the defendants that the “plaintiffs allege certain Ministerial instructions, policies, compliance orders, rules, quotas, and ‘federal criteria’ are ‘illegal and ultra-vires’” without specifically identifying them or stating how they are illegal or ultra-vires.  Absent this information, the pleading is deficient as it lacks material facts necessary for the defendants to respond to the allegation.

[12]           The Statement of Claim, insofar as it makes allegations relating to TFWP, LMIAs, the PNP, the Federal Skilled Workers Program, the Federal Trades Program, work permits, permanent residence visas, compliance orders, assessments of labour shortages, and the food-services moratorium of 2014, is deficient because there are no facts or insufficient facts pled to permit the defendants and the court to understand the bases of these claims.  I agree with the defendants that these pleadings are “neither complete nor intelligible.”

[13]           I further agree with the defendants that it appears that part of this claim, as it relates to the plaintiffs in T-2425-14, is duplicative.  If so, and to that extent, it is improper.

[14]           These irregularities and material deficiencies are sufficient, in the court’s view, to strike the Statement of Claim in its entirety; however, because there may be an actionable claim by some of these plaintiffs, they will be granted leave to file a Fresh Statement of Claim within sixty (60) days that conforms to these reasons, failing which the claim will be dismissed.

ORDER

THIS COURT ORDERS that:

1.                  The Statement of Claim is struck in its entirety;

2.                  The plaintiffs are granted leave to file a Fresh Statement of Claim within sixty (60) days of this Order that complies with the Reasons provided, failing which the action will be dismissed; and

3.                  Costs are in the cause.

"Russel W. Zinn"

FEDERAL COURT

SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: