Date: 20040326
Docket: IMM-577-04
Citation: 2004 FC 464
Ottawa, Ontario, this 26th day of March, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
CHEN, Tsai-Cheng, PENG, Sheng-Chien,
WU, Chin-Chung, LIN, Chin Yuan,
KUO, Nai Wei, WANG, Hsiu Shan, HSIEH, Tze-En,
HUNG, Mei Ying, KO, Ching Yi, KO, Yu Fan,
KO, Yu Chu, HSU, Tase Yuen, CHANG, Lien Fang,
CHEN, Yuan Hsing, LIN, Cheng-I, CHEN, Ping-Hung,
HSIEH, Tsung-Jen, CHEN, Yueh-Yin, FANG CHANG, Shu-Min,
PUI, Kwan Kay, LAI, Yung-Liang, CHANG, Ting Hui,
CHANG, Fang Ming, LEI, Manuel Joao,
LIN, Yung Nien, HUANG HSU, Li-Mei, FANG, Ming-Tau,
LIU, Kun Yung, CHEN, Kun-Wen, TSENG, Hung Yu,
CHANG, Mao, MENG, Lin Yu, TAI, Yu-Hu,
YANG, Cheng-Kang, CHEN, Wen Shing,
YU, Chung-Wen, YU, Wei-Chung
LIN, Shih Chun, CHANG, Lei-Fa,
CHAO, Lin Shu, HSU, Pao Hua
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
INTRODUCTION
[1] All of the 41 Applicants in this case have been permanent residents of Canada since some time before the coming into force, on June 28, 2002, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"). The IRPA replaced the Immigration Act, R.S.C. 1985, c.1-2 (the "former Act"). In this motion, they are applying for injunctive relief, as described below.
[2] The main basis of the concern of the Applicants is that the rules for permanent residents, as they have known them for many years, have changed. Those changes affect them in two main ways:
· Firstly, as of December 31, 2003, they need permanent resident ("PR") cards or Travel Documents to board a Canada-bound commercial carrier, whereas no such documentation was required in the past. Thus, they are being screened overseas before they board an airplane rather than just at the Port of Entry in Canada.
· Secondly, the test for maintaining status (and, thus, entitlement to a PR card) for a permanent resident who does not meet newly imposed physical presence requirements has changed from establishing that there is no intent to abandon Canada to whether there are humanitarian and compassionate ("H & C") grounds that warrant continuation of the permanent residence status.
[3] In spite of 18 months between the coming into force of the IRPA and the effective date of the PR card requirement, these changes have resulted in hardship on the Applicants. Separation of families, where it occurs, is always difficult, even when it is temporary.
[4] Underlying this motion is an application for leave and for judicial review seeking, inter alia, orders compelling the Minister of Citizenship and Immigration (the "Minister") to process their applications for PR cards within 10 days of the order by taking into account whether the Applicants have the intent to abandon Canada as their place of permanent residence. There has been no decision on whether leave will be granted. In addition, a number of actions have been commenced in this Court involving these and other similarly situated persons. It is the wish of the Applicants to have this judicial review treated and proceeded with as a class action pursuant to the Federal Court Rules, 1998. All of this is at a very preliminary stage.
RELIEF SOUGHT
[5] In this motion, the Applicants are seeking an order directing the Minister, until such time as the underlying case managed claims are finally determined:
a) to refrain from prohibiting Canada-bound commercial carriers to board Canadian permanent residents not in possession of PR cards;
b) to refrain from making any negative residency obligation determinations overseas on the Applicants and permanent residents whose H & C applications are still pending;
c) alternatively, to refrain from prohibiting Canada-bound commercial carriers to board the Applicants and permanent residents whose applications for PR Cards based upon H & C grounds are still pending;
d) alternatively, to refrain from denying the issuance of Travel Documents pursuant to s. 31(3) of the IRPA to the Applicants and permanent residents whose applications for PR Cards based on H & C grounds are still pending;
e) to provide a Notice of Proposed Class Action Legal Proceedings to all permanent residents whose applications for PR cards or Travel Documents have been refused, or in respect of whom a s. 44 report or a negative residency obligation determination has been issued in the last 60 days before the granting of this order, as well as to any permanent residents so refused or reported after the granting of this order.
ISSUES
[6] The parties are agreed that, as in any motion for an interim injunction, the Applicants must satisfy the conjunctive tri-partite test described in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (C.A.) (QL). Accepting the applicability of this test to the present motion, the Applicants must satisfy me that:
7. There is a serious issue to be tried in the underlying application;
8. The Applicants will suffer irreparable harm if the relief is not granted; and,
3. The balance of convenience, considering the total situation of both parties, favours the Applicants.
[7] In this case, there is also a jurisdictional question with respect to each of the elements of relief sought by the Applicants. That is, can the Court grant the requested relief?
[8] Finally, there are the issues related to the proposed class action. If I find that the requested relief ought to be granted with respect to these Applicants, the further question is whether it should be expanded to the putative class as it was in Borisova v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1114 (F.C.) (QL). Finally, regardless of whether the balance of the injunctive relief is granted, there is the issue of whether a notice should be sent to members of the putative class.
BACKGROUND
[9] It is helpful to describe the background of the issues in this case. Particularly relevant are the differences in the treatment of permanent residents under the former Act and the IRPA and the impact of the change from one regime to another on the Applicants and similarly situated persons.
Permanent Residence under the former Act
[10] The key aspects of the permanent residence provisions of the former Act were as follows:
· A permanent resident was issued with a proof of landing document (IMM 1000) that indicated his status as a permanent resident. The IMM 1000 was not proof of permanent resident status; rather it was evidence of landing only;
· Upon boarding an air carrier, there was no statutory requirement for the carrier to verify the existence of this document;
· If the permanent resident was out of Canada for more than 183 days in any one year period, he was deemed to have abandoned Canada and could rebut this presumption by showing that he had no intent to abandon Canada (former Act, s. 24(2)).
Permanent Residence Cards under IRPA and the Regulations
[11] Permanent residents under the former Act automatically became permanent residents under the IRPA. The IRPA brought into being a new scheme for documentation of permanent residents. All permanent residents are now to be provided with a document indicating their status as a permanent resident ("PR card") (s. 31(1)). A valid PR card is presumptive evidence that the cardholder has permanent residence status.
[12] For persons becoming permanent residents since IRPA came into force, the PR cards will issue as a matter of course. However, the Applicants and all other persons who were permanent residents before the coming into force of the IRPA have been required to apply for their PR cards.
Residency Obligation
[13] Under IRPA, all permanent residents must comply with a residency obligation (s. 28(1)). The residency obligation is tied to the issuance of the PR card; when applying for a PR card, permanent residents under the former Act are required to satisfy the residency obligation of the IRPA. For most permanent residents, the basic residency requirement of presence in Canada for a total of 730 days in every five-year period (s. 28(2)) is easily satisfied. For the Applicants and persons in a similar situation, this residency obligation has created a problem.
[14] Persons may satisfy the residency obligation and obtain a PR card either by meeting the physical or deemed presence requirements (s. 28(2)(a) or (b)) or by justifying the retention of permanent residence status on the basis of humanitarian and compassionate ("H & C") considerations (s. 28(2)(c)). The Applicants in this motion and the putative class of persons in the proposed class actions claim that they do not meet the requirements of physical presence set out in s. 28(2)(a) or (b). Accordingly, they must rely on the H & C provisions of s. 28(2)(c) to obtain a PR card.
Obligation of Commercial Carriers
[15] For permanent residents who did not, as of December 31, 2003, hold PR cards and were out of Canada or planned a trip outside Canada, the most immediate effect has been on their ability to fly back to Canada. Section 148(1) of the IRPA prohibits an airline from carrying a passenger to Canada unless they hold a "prescribed document". As of December 31, 2003, when s. 259(a) and (e) of the Immigration and Refugee Protection Regulations (the "Regulations") came into force, a PR card or an official Travel Document became "prescribed documents". As a result, airlines now carry a statutory obligation to verify the status of persons coming into Canada.
Travel Documents
[16] Permanent residents without PR cards may also travel to Canada with a Travel Document. For security reasons, PR cards are printed and must be picked up in Canada. For someone who is out of Canada, but meets the statutory requirements for issuance of a PR card, a Travel Document shall be issued if an officer of the Department of Citizenship and Immigration ("CIC") is satisfied that:
1. they comply with the residency obligation in s. 28(2)(a) or (b) (s. 31(3)(a)); or
2. a positive H & C determination under s. 28(2)(c) has been made
(s. 31(3)(b)); or
3. they were physically present in Canada at least once in the past 365 days and they have (s. 31(3)(c)):
- appealed to the Immigration Appeal Division against a decision made outside Canada on the residency obligation under s. 28 (s. 63(4) provides for such an appeal); or
- the time for making an appeal under s. 63(4) has not expired.
[17] Unlike a PR card, a Travel Document is not a status document; rather, it is a document that is issued in lieu of a status document to allow the holder to return to Canada, where he may pick up his PR card, if it is available, or apply for the PR card, if he has not yet done so, or pursue his appeal to the Immigration Appeal Division. Permanent residents may apply for Travel Documents at any Canadian visa office.
[18] In an urgent situation and if satisfactory documentation is produced to demonstrate that the permanent resident meets the physical presence requirements of s. 28(2)(a) and the permanent resident has not lost permanent resident status pursuant to s. 46 of IRPA, an application for a Travel Document is usually processed within 24 hours.
[19] If the person does not satisfy the physical presence provisions, the file is referred to the program manager at the visa office for review. At this stage, the H & C determination, if necessary, is made. A positive H & C determination satisfies the residency obligation under s. 28 of IRPA and overcomes any breach of the requirements for physical presence. It also allows the issuance of a Travel Document. This H & C determination, however, takes time.
Other means of Returning to Canada
[20] In some cases, a permanent resident agrees to travel to Canada as a visitor. In these cases, CIC issues a Temporary Resident Visa ("TRV") to the person if he advises CIC in writing that he waives his appeal rights with respect to the negative residency obligation determination and is otherwise eligible for a TRV.
[21] Finally, permanent residents who fail to satisfy any of the above, may still be able to return to Canada. Section 175 of IRPA provides that these persons may obtain a Travel Document to return to Canada if the Immigration Appeal Division is of the view that they are required to appear at the hearing of their appeal.
APPLICABILITY OF THE BORISOVA DECISION
[22] The Applicants rely heavily on Borisova, supra, a decision of Justice Gibson of this Court, and submit that it is an authority for granting the requested relief. In Borisova, supra, Justice Gibson granted interim injunctive relief to a class of Applicants who, as here, had not yet obtained leave for their underlying applications for judicial review and whose applications had not yet been converted to a class action. The Applicants were individuals who had applied for permanent resident status in the economic class under the former regulations. Under IRPA and the new Regulations, a heavier burden is placed on Applicants in this class to prove the merits of their application. Absent injunctive relief, the imposition of this heavier burden was considered by Justice Gibson to cause irreparable harm to the Applicants. Justice Gibson determined that under ss.18(1) and (3) of the Federal Courts Act, this Court had the jurisdiction to grant the interim relief requested by the Applicants at such an early stage in the proceedings. Accordingly, he issued an injunction preventing the Minister from finally determining the Applicants' applications under the IRPA.
[23] Specifically, Justice Gibson ordered the Minister (i) to refrain from finally rejecting applications for permanent residence submitted before January 1, 2002 by skilled worker, self-employed, entrepreneur and investor Applicants referred to in s. 8(1) of the former regulations who had not been provided with notice of a decision before the date of the order; and (ii) to provide to persons whose applications seeking immigrant visas were affected by part (i) of the order, a notice regarding the proposed class action legal proceedings. Justice Gibson also found that the direction to refrain is an "interim order" as contemplated by s. 18.2 of the Federal Courts Act, and that it is within the jurisdiction of the Court to issue such a direction.
[24] The decision in Borisova, supra followed the decision of Justice Kelen in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 260 (T.D.) (QL).
In that case, similarly situated persons had been successful in a judicial review seeking mandamus to require the Minister to process their visa applications by the deadline of March 30, 2003 under the former regulatory scheme.
[25] Although interim relief was granted in Borisova, supra, I note a number of very significant differences between the facts of that case and the one before me.
1. The nature of the changes to the legislative framework
The Courts in both Borisova, supra and Dragan, supra were dealing with changes to the regulatory framework for the processing of permanent residence applications and not to a new statutory regime. The potential permanent residents applied under the 1978 regulations, which prescribed how units of assessment were to be awarded. The changes contained in the Regulations, which came into effect on March 31, 2003, required a different and, unarguably, more stringent manner of awarding units of assessment.
Here, the Applicants are facing a brand new concept that is included in the statute (IRPA) itself-the notion of a PR card and the requirement for air carriers to confirm outside Canada that permanent residents have these cards.
Particularly with respect to the request that Canada-bound commercial carriers board Canadian permanent residents not in possession of PR cards, this difference is very significant. Practically, granting the motion would necessitate a suspension of legislation, not just for the Applicants but, for all persons boarding a Canada-bound carrier. While in Borisova, supra, it was possible to separate affected persons by the date of their applications, how could commercial carriers identify only the Applicants?
2. The nature of the harm to the affected persons
As discussed below with respect to the issue of irreparable harm, the change to the process in Borisova, supra was readily identifiable and quantifiable. In this case, it is speculation only that the new process of requiring a residency obligation will result in harsher treatment of permanent residents.
3. Expectations of affected persons
In Borisova,supra, the Applicants in respect of whom the injunctive relief was granted had all filed their applications for permanent residence in Canada with a reasonable expectation that their applications would be processed in accordance with the provisions of the former Act. Many of the potential immigrants had been waiting for their applications to be processed for years. Such is not the case here. The PR cards are a new feature of the IRPA for which there is no precedent in the former Act. Further, with the delay in implementation of the PR cards from June 2002, when the IRPA came into force, and December 31, 2003, when the requirement for PR cards became operative, permanent residents had 18 months in which to understand the new provisions and to arrange their affairs, if necessary, to take the new laws into account. There was significant publicity initiated by CIC to inform permanent residents of the effects of the residency obligations.
Although there has been delay in completing the processing of applications where reliance on a H & C determination is being made, processing of all of the applications involved in this motion has been commenced and is ongoing.
[26] Given these significant differences, I am satisfied that the decision in Borisova, supra has little applicability to the facts before me.
ANALYSIS OF TRI-PARTITE TEST ELEMENTS
[27] I will now consider each element of the test for granting injunctive relief.
Is there a serious issue to be tried?
[28] The Applicants submit that the underlying application raises a number of serious issues. For purposes of this motion, I will assume, without deciding, that the underlying application does raise issues that satisfy this branch of the tri-partite test.
Have the Applicants demonstrated irreparable harm?
Stranding of Applicants
[29] The first possible irreparable harm is that permanent residents are being stranded overseas or are unable to leave Canada. The evidence simply does not support that this is the case except, possibly, in the rarest of cases. In fact, the Applicants did not point to one single situation where a permanent resident under the former Act has been permanently barred from returning to Canada pursuant to the IRPA. Through the issuance of Travel Documents at overseas posts, it appears that most, if not all, of the Applicants will be able to return to Canada.
[30] There is admittedly a delay in processing the necessary documentation where the application for a PR card proceeds on the basis of a H & C determination. This has led to some unfortunate consequences. For example, some Applicants were unable to be with their families for the Chinese New Year and one Applicant was unable to attend a family funeral. But, to date, this delay has not, in my view, been excessively long; certainly, it comes nowhere near the lengthy delays encountered by the applicants in Borisova, supra and Dragan,supra.
[31] Thus, harm to the Applicants is, at this time, speculative.
Change in test for continuing of permanent residence status
[32] There is no question - the IRPA has changed the test for determining whether someone is a permanent resident. The Applicants point to one particular aspect of that determination that, in their view, constitutes irreparable harm. That is the replacement of the "intent to abandon Canada as his place of residence" with a H & C assessment. While agreeing that there has been a change, the parties disagree on whether the new test is more onerous. The Applicants argue that it is and the Respondent submits that the new requirements are less onerous and more flexible. This disagreement was not present in Borisova, supra where all parties were agreed that the new regulatory regime presented a higher standard. It was on the basis of the much higher test to be met that Justice Gibson reached his conclusion that the Applicants had shown irreparable harm.
[1] With respect to the issue of irreparable harm, Justice Gibson stated at paragraph 27 as follows:
"I turn then to the question of irreparable harm. I am satisfied that it is trite to say that the opportunity to immigrate to Canada, particularly from "third world" or "developing" countries is viewed by many as a singularly attractive goal, the loss of which, or even the reduction of the likelihood of success on which, is not compensable in damages. Many members of the putative class would suffer such a loss or reduction of the likelihood of success if their applications were to be processed under the new criteria. [emphasis added]"
[2] In Kanes v. Canada (Minister of Employment and Immigration), (1993) 69 F.T.R. 48 at paragraph 10, another case that involved an immigration matter, Justice Reed commented that:
"I find irreparable harm exists in this case, not as the result of a series of possibilities but as a certainty. The harm which befalls the applicant, if a stay order is not granted, is that he is not allowed to seek landing on the basis of having proved a credible basis to his refugee claim. He will only
be able to seek landing after having met a much heavier burden of proof: that applicable before the C.R.D.D. Given the value put on obtaining permanent residence within this country, by those coming particularly from third world countries, the heavier burden of proof clearly, in my view, constitutes irreparable harm."
[3] Thus, the jurisprudence of this Court from an immigration context makes it clear that a higher threshold for entry into Canada may constitute irreparable harm. However, such a conclusion demands two findings: first, that the harm is not just a possibility but a certainty; and, second, that the burden or threshold has been raised significantly. In this case, I am not satisfied that the replacement of an "intent to abandon" test with an H & C determination would either: (a) result in the exclusion of certain of the Applicants who could have satisfied the criteria of the former Act; or (b) create a higher burden of proof.
[4] Unlike the situation in Borisova, supra, there is no clear measure of the difference between the old regime and the new. If a permanent resident is unable to satisfy the residency obligation on H & C grounds, how do I know that he would not also fail an "intent to abandon" test? Parties referred me to several decisions of the Immigration Appeal Division that dealt with the meaning of an "intent to abandon Canada" provision (Bossio v. Minister of Citizenship and Immigration T98-00394 (IAD); Duckworth v. Canada (Minister of Citizenship and Immigration), [1997] I.A.D.D. No. 920 (QL) and others). Having reviewed those decisions, I would view the factors that were assessed as very similar to some of the factors that would be examined in a H & C determination. An intention to abandon Canada, as a test, appears to include some of the same notions or factors that are considered in the course of a H & C determination.
[5] Support for this view can be found in a recent decision of the Immigration Appeal Division (Kuan v. Canada (Minister of Citizenship and Immigration), [2003] I.A.D.D. No. 638 at paragraph 20 (Q.L.)) where the panel briefly compared the two measures of continuing permanent residence:
"While the physical residency requirements are now simply a matter of mathematical calculation, it is important to note that the [Immigration Appeal] Division and, indeed, an immigration officer, has discretion, formerly unavailable to either under the rubric of the former Act, to permit the retention of status notwithstanding a permanent resident's insufficient period of physical residency in the relevant period. The Division has also recognized, in its decisions under the current Act in this area, that an individual's intention throughout a period or periods of extended physical residency outside Canada is a relevant factor to consider in its assessment of an appeal based on discretionary grounds."
[6] Two thoughts emerge from this passage. The first is that there is new or added discretion under the IRPA (new Act). Second, the Immigration Appeal Division has recognized that intent is a relevant factor under the IRPA. Given these conclusions, how can the Applicants say that they are worse off under the new rules?
[7] In conclusion, the Applicants have failed to establish irreparable harm. Since the test for injunctive relief is conjunctive, this conclusion is dispositive of this motion. However, in the event that I have overlooked some possible irreparable harm and therefore erred in this conclusion, I will go on to address the balance of convenience.
Where does the balance of convenience lie?
[8] An assessment of the balance of convenience requires a weighing of the interests. The weight to be attached to particular factors must be assessed on the basis of the facts in each case. As articulated by the Supreme Court of Canada in RJR - MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paragraph 80, the factors which must be considered are:
· the nature of the relief sought and of the harm that the parties contend they will suffer;
· the nature of the legislation which is under attack; and,
· where the public interest lies.
Nature of the relief sought and harm to Applicants:
[33] The relief sought in this motion (and, indeed, in the underlying application for leave and judicial review) is effectively a suspension of certain provisions of the IRPA and the Regulations. This is a very significant step to take without the opportunity to hear arguments on a full record. Further, the subject matter of the underlying application is complex. For this motion alone, there were 11 volumes and over 4000 pages of submissions. Parties had difficulty in completing their oral submissions on this motion in a full day of argument.
[34] The dramatic step of suspending the operation of legislation cannot be taken lightly. In a motion of this complexity with the serious consequences of granting the requested relief, I would need to see very serious harm to the Applicants. As discussed in the section above on irreparable harm, I was unable to find the serious harm alleged by the Applicants. The inconvenience of applying for a PR card or Travel Document and the associated delay encountered by those Applicants who cannot easily meet the residency obligations of s. 28 of IRPA is not sufficient to outweigh the impact of suspending legislation.
Nature of the legislation
[35] As discussed above, the legislative framework for permanent residents contained in IRPA is not simply a refinement of the permanent residence provisions of the former regulations. Rather, these new provisions have added substantial new concepts and features. The notion of residency obligation, although featured in a minor way in the former Act, is now spelled out in terms which are different from and go far beyond the deemed abandonment concept of the former Act. The PR card was not contained in the former Act. Further, a significant feature of the new provisions is the direct relationship to security. This is discussed below under "public interest".
[36] Finally, this legislation affects a very large number of persons beyond the Applicants in this case. Anyone who is now or will become a permanent resident of Canada will be entitled to a status document. As an indication of the magnitude of the impact, I need only look to the fact that over 600,000 PR card applications have been processed in the past year for existing permanent residents. This number is in addition to the cards issued to new permanent residents.
[37] Accordingly, the legislative scheme that the Applicants seek to interrupt pursuant to this motion is far reaching and, given the large number of PR cards already issued, would likely create confusion. The Applicants have failed to demonstrate that the suspension of the legislation would itself provide a public benefit (RJR - MacDonald, supra).
Public interest
[38] A clear starting point for viewing the public interest in this case is the objective of the legislative framework in question. The objectives of the IRPA with respect to immigration are set out in s. 3(1). While acknowledging the object of maximizing the benefits of immigration (s. 3(1)(a)), also acknowledged is the object to protect the health and safety of Canadians and to maintain the security of Canadian society (s. 3(1)(h)).
[39] The provisions in question in this motion are directly and clearly related to security for Canadians. There can be no doubt that documentary identification of permanent residents through PR cards that are issued under strict controls is in the public interest. As stated in the Regulatory Impact Analysis Statement ("RIAS") that accompanied the Regulations:
| These [PR card system] provisions are being introduced in support of the issuance of a secure status document to reduce the incidence of fraud and misuse associated with the current record of landing document (IMM 1000). These provisions serve as an integral component ensuring the safety and security of Canadian society. |
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[40] Further security is provided by placing a burden on transportation companies to confirm the status of persons coming to Canada before they enter Canada. Logically, this is preferable to allowing inadmissible persons to travel to Canada where removal is often difficult. Lifting this burden-even temporarily-could allow inadmissible persons to arrive at Canada's borders. In my view, this will offend the public interest, as expressed in the objectives of the IRPA and in the RIAS. Other aspects of the relief sought by the Applicants are equally unappealing and could also lead to undesirable consequences.
[41] The Applicants seek, in the alternative, an order that would prevent the Respondent from denying the issuance of Travel Documents to the Applicants and permanent residents whose applications for PR Cards based on H & C grounds are still pending. While some of the Applicants may be in this category, it is possible that persons who were once permanent residents and now offshore have ceased to be permanent residents, as defined under the IRPA. Simply by making an application on H & C grounds, such persons, if this relief is granted, would be issued a Travel Document. Surely, the Canadian interests are best served by conducting some level of review. In any event, as I have seen, the level of scrutiny for Travel Documents is minimal and the requirements are not onerous.
Conclusion
[42] In summary, the Applicants have not demonstrated that they will suffer irreparable harm without the requested injunctive relief. Further, the balance of convenience strongly favours the Respondent. Accordingly, the Applicants have failed to meet the test for granting injunctive relief in this motion.
JURISDICTION TO GRANT REQUESTED RELIEF
[43] Given my conclusion that the Applicants have failed to satisfy the test for the granting of the relief requested, it is unnecessary for me to consider whether the relief sought by the Applicants is beyond the jurisdiction of this Court to provide.
PROVIDING NOTICE TO THE PUTATIVE CLASS
[44] One of the requested remedies in this motion is that the Respondent provide notice to the putative class. Although this request appears to stand on its own, it must also be governed, in my view, by the tri-partite test. Accordingly, since I am not persuaded that the Applicants, and, by extension, the putative members of the proposed class action can demonstrate irreparable harm or that the balance of convenience favours them, I would dismiss this request as well. However, even if this request can be considered separately, I would not agree to grant this relief.
[45] In Pearson v. Inco Ltd. (2001), 57 O.R. (3d) 278 (leave to appeal denied [2002] O.J. No. 2134 (S.C.J.) (QL)), a case involving a proposed class action, the Plaintiff brought a motion to the Ontario Superior Court of Justice for an order compelling the Defendant to produce a list of the proposed class members. In that case, as here, there were no certified class proceedings. Although the question addressed by the Court in that case involved the propriety of the Defendant approaching the putative class members prior to the certification, the discussion by Justice Nordheimer reflects a number of reasons why Court direction to putative class members should be done only in exceptional circumstances.
"A concern which is not raised by, and is fundamental to the resolution of, this issue is the degree to which counsel for the proposed representative plaintiff can purport to act for, or be considered to represent the interests of, all members of the proposed class. At this stage there is, of course, no certified class proceeding. Therefore there has yet to be a determination that this proceeding is an appropriate one for treatment as a class proceeding with the consequent binding effect that such a proceeding has on the members of the class that is certified. In that regard, the members of the proposed class are very much like non-parties to the ordinary proceeding....
...members of the proposed class ought not to be treated any differently [from how] non-parties to any other action would be treated subject to one exception. The exception is where either the plaintiff or the defendant purports to communicate, or otherwise deal, with members of the proposed class in a fashion, and to a degree, that would visit an injustice on those persons or would otherwise undermine the integrity of the class proceeding itself. Intimidating conduct such as occurred in Vitelli v. Villa Giardino Homes Ltd. (2001), 54 O.R. (3d) 334 (S.C.J.), or seeking to have their claims settled without adequate information as to their rights as might have resulted in Lewis v. Shell Canada Ltd. (2000), 48 O.R. (3d) 612 (S.C.J.), are examples of the exception. The exception, however, should not be made the rule or else the court will inevitably be drawn into a painstaking examination of all pre-trial activity undertaken by the parties-a clearly undesirable result. To a large degree, members of a proposed class are like anyone else. They have an obligation to protect their own interests and, in that regard, to seek their own advice. At the same time, they have the right to conduct their own affairs as they see fit without interference from this court."
[46] What I take from this judgment is that an order from this Court requiring notice to putative class members should only be done in exceptional circumstances. Such circumstances can arise if a defendant is dealing with the proposed class members in a way that undermines the integrity of the class proceeding itself. A defendant could undermine the integrity of the class by intimidating conduct or by attempting to settle claims knowing that the putative class members do not have adequate information. In essence, bad faith, or something nearing unconscionable conduct, would be required, in my view, to cause the Court to vary from the ordinary course of not intervening in pre-trial activities. That includes recognizing that persons have an obligation to protect their own interests and to seek legal advice when they feel they need it. I am not persuaded that such exceptional circumstances have arisen here.
[47] I cannot see anything that remotely approaches bad faith, intimidating conduct or unconscionable behaviour on the part of CIC. Certainly, there was some initial confusion on how the new provisions were to be applied. Such confusion and some mistakes (such as requesting a waiver of appeal rights in some cases) are unfortunate but do not, in and of themselves, constitute unconscionable conduct. However, the record demonstrates that the Respondent has corrected certain initial errors and continues to diligently address problems as they arise. The fact that the operating manuals and informational brochures have undergone a number of revisions is not, as the Applicants allege, evidence that the Respondent is not acting in good faith; rather, it is confirmation that CIC is positively acting to address issues as they arise and to advise all parties of their rights through these published resources.
[48] Further, the Respondent is acting to ensure that there are adequate resources to carry out the H & C determinations, to issue Travel Documents in the minimum time and to minimize the disruption and hardships to separated families.
[49] Once again, this case can be readily distinguished from Borisova, supra where there was clear demonstration that the government had allocated insufficient resources to the problems that were reasonably apparent.
[50] For these reasons, I decline to grant the request that a notice be delivered to the putative class members.
CONCLUSION
[51] For all of these reasons, the motion will be denied.
[52] With respect to the possible certification of these matters as a class action, there is no question that the road forward will be very long and difficult. Further, the result sought by the Applicants and putative class members-a return to the former statutory regime of no PR cards and an intent to abandon test-involves complex review of legislation and its validity. As discussed with counsel at the close of argument of this motion, it may be preferable for one sample case involved in the underlying application for mandamus to be brought before this Court on an expedited basis. As the underlying judicial review application and the related claims are currently being case managed, such a process may be a faster and simpler way of addressing the issues and could possibly spare the parties considerable expense. Counsel for the Respondent indicated that she would cooperate with any such approach.
ORDER
THIS COURT ORDERS THAT the motion is denied.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-577-04
STYLE OF CAUSE: Tsai-Cheng Chen et al v. the Minister of Citizenship
and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 2, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Mr. Lawrence Wong FOR APPLICANTS
Ms. Brenda Carbonell
Ms. Banafsheh Sokhansanj
Mr. Sean Gaudet FOR RESPONDENT
SOLICITORS OF RECORD:
Wong Pederson Law Offices FOR APPLICANTS
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada