BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] Andrejs Tihomirovs applied for permanent residence on February 1, 2002, under the provisions of the former Immigration Act. His application was not processed prior to the coming into force of the Immigration and Refugee Protection Act on June 28, 2002.
[2] Mr. Tihomirovs is of the view that had his application been assessed in accordance with the criteria contained in the Immigration Act, it would have been successful. He also believes that he will not meet the requirements of the new legislation. As a consequence, Mr. Tihomirovs has brought an application for judicial review wherein he seeks an order of mandamus, or a permanent mandatory injunction, directing the respondent Minister of Citizenship and Immigration to assess his application in accordance with the former legislation.
[3] Mr. Tihomirovs now seeks to have his application for judicial review treated and proceeded with as an action. At the same time, he moves to have the action certified as a class action brought on behalf of all skilled workers, self-employed, entrepreneur and investor applicants for permanent residence, excluding provincial nominees and those destined for the province of Quebec, who submitted their applications between January 1, 2002 and June 28, 2002.
[4] For the reasons that follow, I am not persuaded that Mr. Tihomirovs meets the five-part test for certification set out in Rule 299.18 of the Federal Courts Rules, and that, as a result, certification would not be granted. As a consequence, the motion to have his application for judicial review treated and proceeded with as an action is dismissed.
[5] Given my conclusion in relation to the conversion issue, it is thus unnecessary to deal formally with the motion for certification.
Factual Background Relating to Mr. Tihomirovs' Application for Permanent Residence
[6] Mr. Tihomirovs is a civil engineer, who resides in Latvia. He wishes to move with his family to Canada. To this end, he filed an application for permanent residence on February 1, 2002, as part of the federal skilled worker class.
[7] At the time that Mr. Tihomirovs' application for permanent residence was filed, the applicable selection criteria were those set out in the Immigration Regulations, 1978, SOR/78-172. Mr. Tihomirovs deposes that he believes that he would have received a score of 74 points under this regime. At the time, a candidate needed 70 points to succeed.
[8] Mr. Tihomirovs further deposes that under the new selection criteria embodied in the Immigration and Refugee Protection Regulations, SOR/2002-227, he would only receive 65 points. The pass mark is now 67 points. Thus Mr. Tihomirovs is of the view that while he would have qualified for immigration to Canada under the old regime, he is no longer eligible.
[9] According to Mr. Tihomirovs, this is the only obstacle impeding his immigration to Canada.
[10] By Mr. Tihomirovs' estimation, there are approximately 40,000 people in his situation. Factoring in the dependent family members included in these applications, there are an estimated 100,000 people in the putative class. These individuals are primarily resident outside of Canada, and come from all corners of the globe.
Related Litigation
[11] The introduction of new selection criteria for applications for permanent residence in the Immigration and Refugee Protection Regulations has spawned a great deal of litigation brought by individuals whose applications for permanent residence were pending as of June 28, 2002.
[12] On June 27, 2002, Justice Heneghan dismissed a motion for a quia timet injunction brought by a group of individuals, including Mr. Tihomirovs, whose applications for permanent residence were pending as the Immigration and Refugee Protection Act was about to come into force. Justice Heneghan concluded that, although the motion was framed as a motion for an interlocutory injunction, it was, in reality, a request for a determination of the validity of the new legislation. No foundation having been established to support such a challenge, there was no basis on which to grant the relief sought. Accordingly, the motion was dismissed: Borisova v. Canada(Minister of Citizenship and Immigration), IMM-2819-02.
[13] On February 21, 2003, Justice Kelen found that the Minister had breached his implied duty to use his reasonable best efforts to assess the applications for permanent residence of a group of 102 individuals in a timely manner. These individuals had filed their applications for permanent residence prior to January 1, 2002. (Individuals filing applications for permanent residence before January 1, 2002 will henceforth be referred to as "Group A" applicants).
[14] Group A applicants are governed by the provisions of subsection 361(3) of the Regulations, the relevant portions of which provide that:
| 361. (3) During the period beginning on the day on which this section comes into force and ending on March 31, 2003, units of assessment shall be awarded to a foreign national, in accordance with the former Regulations, if the foreign national is an immigrant who....
(b) before January 1, 2002, made an application for an immigrant visa under those Regulations that is still pending on the day on which this section comes into force and has not, before that day, been awarded units of assessment under those Regulations. [emphasis added]
|
361. (3) Pendant la période commençant B la date d'entrée en vigueur du présent article et se terminant le 31 mars 2003, les points d'appréciation sont attribués conformément B l'ancien rPglement B l'étranger qui est un immigrant qui :
b) d'autre part, a fait, conformément B ce mLme rPglement, une demande de visa d'immigrant avant le 1er janvier 2002, pendante B l'entrée en vigueur du présent article, et n'a pas obtenu de points d'appréciation en vertu de ce rPglement. [Je souligne] |
[15] Having found that the Minister failed to assess the applications of the Group A applicants in a timely manner Justice Kelen issued writs of mandamus requiring that the respondent assess these applications in accordance with the selection criteria established under the Immigration Act, and to complete these assessments by March 31, 2003: Dragan v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 260, 2003 FCT 211.
[16] No relief was granted by Justice Kelen with respect to those applications for permanent residence which were filed between January 1, 2002 and the coming into force of IRPA on June 28, 2002 ("Group B" applications). In Justice Kelen's view, the proper interpretation of the transitional provisions contained in subsection 361(3) of the Regulations, when read in conjunction with section 190 of IRPA was that applications for permanent residence filed after January 1, 2002 were to be assessed in accordance with the new legislative regime.
[17] Section 190 of IRPA provides that applications that were pending at the time that IRPA came into force would be governed by the provisions of the new legislation. Section 201 of IRPA allowed for regulations to be passed governing the transition between the old Immigration Act and the new statutory regime. It was under this authority that subsection 361(3) of the Regulations was enacted, creating an exception for applications filed prior to January 1, 2002.
[18] Numerous other proceedings dealing with related issues moved forward under case management, one of which was Mr. Tihomirovs' application for judicial review. Mr. Tihomirovs' application was originally joined with those of 153 other named individuals. Of these, 133 involved Group A applicants, whereas 21 applicants, including Mr. Tihomirovs, belonged to Group B.
[19] On June 17, 2003, Justice Gibson issued an injunction, preventing the Minister from finally rejecting the Group A applications, pending the outcome of the litigation. No relief was granted with respect to the Group B litigants, including Mr. Tihomirovs. According to Justice Gibson, the publication of draft Regulations in mid-December of 2001 made it clear that applicants applying in 2002 would be assessed in accordance with the new regime. Thus anyone applying for permanent residence after the commencement of 2002 could have had no reasonable expectation that his or her application would be considered under the provisions of the Immigration Act and Regulations: Borisova v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1114, 2003 FC 859.
[20] On September 18, 2003, the Minister announced that the Regulations would be amended so as to permit Group A applications to be assessed in accordance with the selection criteria established under the former legislation.
[21] Late in 2003, the Minister agreed to settle the litigation brought by the Group A applicants. All parties consented to the certification of one of the Group A proceedings as a class action, and certification was granted on November 10, 2004: Rasolzadeh v. Her Majesty the Queen and Minister of Citizenship and Immigration, IMM-2286-03. The settlement agreement was approved by the Court on April 11, 2005: Rasolzadeh v. Her Majesty the Queen and Minister of Citizenship and Immigration, [2005] F.C.J. No. 1165, 2005 FC 919.
[22] In the meantime, on October 15, 2004, Justice Gibson ordered that the claims of the Group B applicants, including that of Mr. Tihomirovs, be severed from those of the Group A applicants. The Court further ordered that the claims of the Group B applicants proceed as separate judicial reviews, with the commencement date of each being recorded as June 19, 2002.
[23] Of these Group B applicants, it is Mr. Tihomirovs who has come forward to act as a class representative, in the event that the matter is certified as a class action. To this end, he first seeks to have his application for judicial review treated and proceeded with as an action. Should that motion be successful, he then seeks to have the action certified as a class action.
History of this Litigation
[24] It is also helpful to have some understanding of the procedural history of Mr. Tihomirovs' own application for judicial review, in order to put the present motions into context.
[25] Mr. Tihomirovs originally brought his motion to have his application for judicial review treated and proceeded with as an action by itself, without an accompanying motion for certification.
[26] In a decision dated April 12, 2005, I reviewed the existing jurisprudence regarding the conversion of applications for judicial review to actions and concluded that the principle of access to justice required that the motion be granted.
[27] In coming to this conclusion, I did not consider any of the elements of the five-part test for certification, as I was of the view that those factors should be considered at the time that the certification motion was addressed, and not before.
[28] On appeal, the Federal Court of Appeal held that the five factors identified in the test for certification set out in Rule 299.18 of the Federal Courts Rules were indeed relevant to the determination of whether the application for judicial review should be treated and proceeded with as an action: Tihomirovs v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1597, 2005 FCA 308.
[29] Moreover, as a matter of practice, the Federal Court of Appeal determined that in such circumstances, a motion for conversion should not be brought in advance of the motion for certification, but rather should be considered at the same time as the certification motion. According to the Federal Court of Appeal, if the test for certification is met, a conversion order should then issue, followed immediately by an order certifying the class action: Tihomirovs,
at ¶ 18.
[30] It follows that if the test for certification is not met, then the motion for conversion should be dismissed.
[31] With this understanding of the procedural and factual context of this motion, I turn now to consider the general principles governing to class actions.
General Principles Governing to Class Actions
[32] Class actions allow for improved access to justice for those who might otherwise be unable to seek vindication of their rights through the traditional litigation process. Class actions also enhance judicial economy, allowing a single action to decide large numbers of claims involving similar issues. Finally, class actions encourage behaviour modification by those who cause harm: Western Canadian Shopping Centres Inc. v. Bennett Jones Verchere, [2001] 2 S.C.R. 534, 2001 SCC 46; Hollick v. Toronto(City), [2001] 3 S.C.R. 158, 2001 SCC 68; and Rumley v. British Columbia, [2001] 3 S.C.R. 184, 2001 SCC 69.
[33] In the above trilogy of cases, the Supreme Court of Canada also held that an overly restrictive approach to the application of class action certification legislation must be avoided, so that the benefits of class actions can be fully realized.
[34] Moreover, as the Supreme Court noted in the Hollick case:
... the certification stage focuses on the form of the action. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action. [at ¶ 16]
Applicable Provisions of the Federal Courts Act and Rules
[35] The Federal Court Rules were amended in 2002 in order to provide for class actions. There is currently no provision in the Rules for class judicial review proceedings. As a consequence, if this matter is to proceed on a class basis, an order must first be granted directing that this application for judicial review be treated and proceeded with as an action. For ease of reference, this process will be referred to as "converting" an application for judicial review to an action.
[36] The conversion of applications for judicial review to actions is governed by the provisions of section 18.4 of the Federal Courts Act, R.S., 1985, c. F-7, s. 1; 2002, c. 8, s. 14, which provides that:
| 18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
(2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
|
18.4 (1) Sous réserve du paragraphe (2), la Cour fédérale statue B bref délai et selon une procédure sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre des articles 18.1 B 18.3.
(2) Elle peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action |
[37]
|
|
 |
[38] It should be noted that Rule 299.18(1) uses mandatory language, providing that a court shall grant certification, where all five elements of the test are satisfied.
[39] By the same token, it must also be noted that the list contained in Rule 299.18(1) is conjunctive. As a consequence, if an applicant fails to meet one of the five listed criteria, the certification motion must fail: Auton v. BC (Minister of Health), [1999] B.C.J. No. 718, at ¶ 40.
[40] Also relevant is Rule 299.2, which states that:
| 299.2 A judge shall not refuse to certify an action as a class action solely on one or more of the following grounds:
(a) the relief claimed includes a claim for damages that would require an individual assessment after a determination of the common questions of law or fact;
(b) the relief claimed relates to separate contracts involving different class members;
(c) different remedies are sought for different class members;
(d) the number of class members or the identity of each class member is not known; or
(e) the class includes a subclass whose members have claims that raise common questions of law or fact not shared by all class members. SOR/2002-417, s. 17. [emphasis added]
|
299.2 Le juge ne peut refuser d'autoriser une action comme recours collectif en se fondant uniquement sur l'un ou plusieurs des motifs suivants :
a) les réparations demandées comprennent une réclamation de dommages-intérLts qui exigerait, une fois les points de droit ou de fait collectifs tranchés, une évaluation individuelle;
b) les réparations demandées portent sur des contrats distincts concernant différents membres du groupe;
c) les réparations demandées ne sont pas les mLmes pour tous les membres du groupe;
d) le nombre de membres du groupe ou l'identité de chacun des membres est inconnu;
e) il existe au sein du groupe un sous-groupe dont les réclamations soulPvent des points de droit ou de fait collectifs que ne partagent pas tous les membres du groupe. DORS/2002-417, art. 17. [Je souligne]
|
[41] As I read this provision, the use of the word "solely" or "uniquement" means that while the enumerated factors may indeed be relevant considerations on a motion for certification, none of these factors, either singly, or combined with other factors listed in the provision, will, by themselves, provide a sufficient basis to decline certification.
[42] This conclusion is confirmed by the wording of Rule 299.18, which requires the judge hearing the certification motion to consider all relevant matters, including, but presumably not limited to, the five factors listed in the Rule.
[43] With this understanding of the relevant Rules, I turn next to consider whether Mr. Tihomirovs has satisfied each of the elements of the test for certification.
Analysis
[44] In addressing this question, it should be noted that due to the relatively recent introduction of the class action process in this Court, there is very little Federal Court jurisprudence governing the certification process.
[45] The Federal Courts Rules regarding the certification of class actions are, however, essentially the same as the corresponding British Columbia rules: Sylvain v. Canada (Agriculture and Agri-Food), [2004] F.C.J. No. 1955, 2004 FC 1610, at ¶ 26; Rasolzadeh, previously cited, at ¶ 23. The Rules are also very similar to those in Ontario: Le Corre v. Canada(Attorney General), [2004] F.C.J. No. 212, 2004 FC 155, at ¶ 17. As a consequence, the jurisprudence that has developed in those jurisdictions is of considerable assistance in determining whether or not certification is appropriate in this case.
[46] With this in mind, I turn now to consider each of the factors enumerated in Rule 299.18.
a) Is There a Reasonable Cause of Action?
[47] The parties are in agreement that the test to be imposed at this stage is whether it is plain and obvious that the pleadings do not disclose a reasonable cause of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at ¶ 32-33. The parties also agree that this is a low threshold: Peppiatt et al. v. Nicol et al., [1993] O.J. No. 2722, (1993), 16 O.R. (3d) 133, at 140-1, Denis v. Bertrand & Frère Construction Co., [2000] O.J. No. 5783.
[48] At this juncture, it should be noted that the Federal Court of Appeal has observed that, in the context of proposed class actions arising in the immigration context, the "reasonable cause of action" element of the test for certification will ordinarily have already been determined by the time that the case gets to the conversion/certification stage by virtue of the fact that leave would have had to have been granted for the application for judicial review to proceed to this stage: Tihomirovs, previously cited, at ¶ 20.
[49] While this is true for applications commenced after June 28, 2002, there was no requirement for Mr. Tihomirovs to obtain leave to pursue his application for judicial review in this case, as his application for judicial review was filed with the Court prior to the coming into force on June 28, 2002 of the leave requirements for decisions made outside of Canada.
[50] It must also be noted that, as a consequence of the fact that this proceeding was commenced as an application for judicial review, we do not have 'pleadings' in this case in the conventional sense of the word. What we do have is Mr. Tihomirovs' Notice of Application for Judicial Review, as well as the draft Statement of Claim, which he proposes to file in the event that he is successful on his motion to convert his application for judicial review to an action.
[51] Mr. Tihomirovs' Notice of Application for Judicial Review simply recites the grounds on which judicial review may be sought as they are set out in subsection 18.1(4) of the Federal Courts Act. This includes the blanket assertions that the respondent Minister acted without jurisdiction in relation to the administration of the Immigration and Refugee Protection Act and Regulations, and in refusing to exercise his jurisdiction.
[52] Mr. Tihomirovs' draft Statement of Claim pleads that the Minister had a duty to assess the immigration applications of the members of the proposed class in accordance with the selection scheme established under the former Immigration Act, as well as in accordance with the selection scheme established under IRPA. The draft Statement of Claim goes on to plead that the Minister breached that duty, and, in addition, recites the same grounds that were listed in the Notice of Application for Judicial review: namely those listed in subsection 18.1(4) of the Federal Courts Act.
[53] Insofar as the relief sought is concerned, Mr. Tihomirovs' Notice of Application for Judicial Review seeks an order of mandamus, compelling the Minister to assess his application for permanent residence in accordance with the selection criteria established under the Immigration Act.
[54] In his draft Statement of Claim, the relief sought by Mr. Tihomirovs is expanded to include a request that the applications for permanent residence of the members of the proposed class be assessed in accordance with the selection criteria established under IRPA, as well as in accordance with the Immigration Act criteria.
[55] The draft Statement of Claim also seeks orders of certiorari quashing any negative decisions that may have been made with respect to Mr. Tihomirovs' application for permanent residence, or with respect to the applications of any of the members of the proposed class where those refusals were based upon an assessment carried out solely under the IRPA criteria.
[56] The question then is whether the 'pleadings' before me disclose a reasonable cause of action. As noted, Mr. Tihomirovs' Notice of Application for Judicial Review and his draft Statement of Claim simply make the bare assertion that the Minister exceeded his jurisdiction, or acted without jurisdiction in administering the transitional provisions of IRPA. In this regard, this Court has already determined in Dragan that subsection 361(3) was validly enacted subordinate legislation, and was intra vires section 201 of IRPA. Thus, on their face, the 'pleadings' do not disclose a reasonable cause of action.
[57] Mr. Tihomirovs acknowledges that at paragraph 37 of Dragan, Justice Kelen also determined that Group B applicants had no right to be assessed under the former selection grid. However, Mr. Tihomirovs advances two arguments that were evidently not raised in Dragan, which, he says, support his position that there is merit to the claims of the Group B members.
[58] Having carefully considered the matter, I find that even if I go beyond the bare wording of the Notice of Application for Judicial Review and that of the proposed draft Statement of Claim, and consider the various legal arguments advanced by Mr. Tihomirovs, I nonetheless come to the same conclusion.
[59] The first of Mr. Tihomirovs' new arguments is based upon principles of statutory interpretation, which, he says, lead to the conclusion that the division of the applicants whose applications for permanent residence were pending at the coming into force of IRPA into two categories (Group A and Group B applicants), through the enactment of subsection 361(3) of the Regulations, was ultra vires IRPA.
[60] In this regard, Mr. Tihomirovs points to section 201 of IRPA, which provides:
| 201. The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters. [emphasis added]
|
201. Les rPglements régissent les mesures visant la transition entre l'ancienne loi et la présente loi et portent notamment sur les catégories de personnes qui seront assujetties Btout ou partie de la présente loi ou de l'ancienne loi, ainsi que sur les mesures financiPres ou d'exécution. [Je souligne] |
[61] Mr. Tihomirovs argues that although the term "classes" is not specifically defined anywhere in the legislation, it is a term of art as it is used in IRPA, and refers to groups of would-be immigrants, categorized by selection criteria. Group A and Group B applicants thus form a single, indivisible, class of "economic class" applicants.
[62] According to Mr. Tihomirovs, there is no authority under IRPA for regulations to be enacted purporting to categorize groups of applicants by the date of their applications for permanent residence. According to Mr. Tihomirovs, the date of an individual's application is a completely arbitrary and irrelevant consideration, and that a legislative interpretation that would lead to distinctions that are arbitrary and irrational should be avoided in favour of an interpretation that does not create such absurd distinctions. In this regard, Mr. Tihomirovs relies upon decisions such as R. v. Paré, [1987] 2 S.C.R. 618, at ¶ 29.
[63] Mr. Tihomirovs further contends that dividing economic class applicants into two groups, depending upon the dates upon which their applications were filed, does not lead to consistent standards, and thus does not respect paragraph 3(1)(f) of IRPA.
[64] In support of his argument that the temporal distinction contained in subsection 361(3) is an arbitrary one, Mr. Tihomirovs points to the fact that the draft regulations that were pre-published in the Canada Gazette on December 15, 2001 treated everyone who applied for permanent residence before June 28, 2002 in the same way: that is, they were all to be assessed in accordance with the new regime. It was only as a result of public pressure, Mr. Tihomirovs says, that the Group A applicants were grandfathered under the old rules, while the Group B applicants were not.
[65] Having carefully considered Mr. Tihomirovs' arguments, I am satisfied that it is plain and obvious that they cannot succeed.
[66] When the Immigration and Refugee Protection Act is reviewed in its entirety, it becomes abundantly clear that the term "classes" as it is used in section 201 cannot reasonably be restricted in the manner suggested by Mr. Tihomirovs.
[67] The term "classes" appears throughout the legislation, and does not simply refer to groups of would-be immigrants, categorized by selection criteria as Mr. Tihomirovs suggests: see, for example, subsection 6(1), which refers to classes of individuals designated by the Minister to carry out delegated responsibilities under the Act, and subsection 88(2), which allows for regulations to be made with respect to classes of persons to whom loans may be made.
[68] Thus, when the words of section 201 are read in their entire context, and given their grammatical and ordinary meaning, it is plain and obvious that Parliament intended that regulations could be made in relation to various groups of individuals sharing a common attribute.
[69] The common attribute in question here is the time period in which the applications for permanent residence were filed. Given that what we are dealing with is a transitional provision, it cannot reasonably be said that a temporal requirement tied to the date on which an application was filed is an arbitrary or irrelevant consideration.
[70] Moreover, it is clear that the choice of the January 1, 2002 cut-off date was not an arbitrary one, as Mr. Tihomirovs would have me believe. As was noted in Borisova, there was indeed a principled basis behind the choice of January 1, 2002 as a cut-off date: that is, the fact that, as a result of the publication of draft Regulations in mid-December of 2001, it was clear that applicants applying in 2002 would be assessed in accordance with the new regime. As a consequence, no one applying after that date could have had a reasonable expectation that his or her application would be considered under the provisions of the Immigration Act and Regulations.
[71] Giving the term "classes" its ordinary meaning is also consistent with the admonition of the Federal Court of Appeal that, as "framework" legislation, IRPA should be interpreted in a manner that allows for regulatory flexibility: De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2119, 2005 FCA 436, at ¶ 39.
[72] It is also plain and obvious to me that Mr. Tihomirovs' attack on the vires of section 361(3) of the Regulations founded upon the wording of section 201 of IRPA cannot succeed, based upon the wording of section 201 itself, which authorizes the enactment of regulations governing the transition between the Immigration Act and IRPA, including measures regarding classes of persons who will be subject, in whole or in part, to one Act or the other.
[73] Giving the word "including" its ordinary meaning, I am satisfied that it is clear that IRPA does not limit the power of the Governor in Council to enact regulations with respect to the transitional scheme in the manner suggested by Mr. Tihomirovs. The use of the word "including" necessarily implies that the power is broader than the enabling words that follow.
[74] Finally, even if I were to accept all of Mr. Tihomirovs' arguments, and find that section 361(3) of the Regulations is ultra vires IRPA, the result would be that the provision, with its distinction between pre- and post-January 1, 2002 applications, would have to be struck down. The applications for permanent residence of Mr. Tihomirovs and the other members of the proposed class would then be governed by section 190 of IRPA, which provides that applications pending at the time that IRPA came into force in June of 2002 were to be governed by the new legislation.
[75] This is, of course, precisely the result that Mr. Tihomirovs seeks to avoid through this litigation.
[76] Mr. Tihomirovs' second argument is that since his application for permanent residence was perfected prior to the coming into force of the new regulations, the Minister had a statutory duty to ensure that his file was dealt with in a timely fashion, and that the Minister failed to do so. Relying upon the decision of the Federal Court of Appeal in Apotex v. Canada (A.G.), [1994] 1 F.C. 742, aff'd [1994] 3 S.C.R. 1100, Mr. Tihomirovs submits that the Minister should now be compelled to assess his application, as well as all other applications for permanent residence perfected prior to the coming into force of IRPA, under the selection grid established under the Immigration Act.
[77] It is plain and obvious to me that this argument is similarly destined to fail. The situation that confronted the Federal Court of Appeal in the Apotex case is clearly distinguishable on a number of bases from that which presents itself here.
[78] Unlike the situation in Apotex, the legislation in question here clearly provides for a transitional scheme between the earlier legislative regime and the new one, establishing rules as to how cases in process at the time that the new legislation came into force were to be handled. There is nothing in the Apotex decision that would allow the Court to disregard the clear intention of Parliament in this regard.
[79] There is also an important factual distinction between the situation in Apotex and the present case in that Mr. Tihomirovs has already brought an earlier court application to have his application for permanent residence assessed in accordance with the old legislation, which request was refused: Borisova v. Canada (Minister of Citizenship and Immigration),
IMM-2819-02.
[80] Finally, for mandamus to be available, there must be a demand for performance, and a reasonable time for the Minister to comply with the demand: Apotex, at ¶ 45. What Mr. Tihomirovs is seeking is an order requiring that all Group B applicants be assessed in accordance with the selection grid established under the old Immigration Act, regardless of when the
individual applications were filed, as long as they were filed in the six month period leading up to the coming into force of IRPA on June 28, 2002. This would mean that an order of mandamus would thus be available in the case of an application filed on June 27, 2002 - one day before the new legislation came into effect, and before the Minister would have any time - let alone a reasonable time - to deal with the application.
[81] For these reasons, Mr. Tihomirovs has failed to satisfy the first element of the test for certification. Having so concluded, it is not, strictly speaking, necessary to address the remaining criteria for certification. However, in the event that a reviewing court takes a different view of this matter, I will proceed to consider the other criteria articulated in Rule 299.18.
b) Is There an Identifiable Class of Two or More Persons?
[82] The Supreme Court of Canada has observed that the definition of the class "is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment": Western Canadian Shopping Centres Inc., previously cited, at ¶ 38.
[83] As the Supreme Court also noted in the Hollick case previously cited, at ¶ 21, this requirement is not an onerous one. In order to satisfy this criterion, Mr. Tihomirovs must show that there is an identifiable class of two or more persons, which class is not unlimited, and which is defined by reference to objective criteria: Hollick, at ¶ 17.
[84] However, Mr. Tihomirovs must also be able to show that the class is not unnecessarily broad: that is, that the class could not be defined more narrowly without arbitrarily excluding people who share a common interest in the resolution of the common issue.
[85] The class proposed by Mr. Tihomirovs is:
i) Persons who submitted an application for permanent residence in Canada between January 1, 2002 and June 28, 2002 in the skilled worker, self- employed, entrepreneur and investor categories (referred to in subsection 8(1) of the Immigration Regulations, 1978), excluding provincial nominees and those destined for Quebec;
ii) All dependent family members as defined in the Immigration and Refugee Protection Regulations of persons referred to in (i), above.
[86] Mr. Tihomirovs says that the class is not unlimited, as it is made up of approximately 40,000 members who submitted immigration applications during the relevant time period, and their dependent family members.
[87] Moreover, Mr. Tihomirovs submits that the class is defined by objective criteria, namely the date when an immigration application was received at a visa post.
[88] The Minister submits that Mr. Tihomirovs' definition of the class is overly broad, as it would include many persons who do not need the relief sought in these proceedings, specifically those who have already obtained a visa, or who will qualify for a visa under IRPA. Mr.
Tihomirovs conceded at the hearing that those individuals who have already received their visas should not properly be included in the class. However, he maintains that those individuals who may qualify for visas under IRPA at some point in the future should be left in the class until such time as decisions are rendered in relation to their applications.
[89] Mr. Tihomirovs also conceded at the hearing that individuals who have already received a negative decision, and who have unsuccessfully challenged the regulations imposing the new assessment grid, would not be able to re-litigate the issue, and should thus be excluded from the class.
[90] The Minister says that the class definition proposed by Mr. Tihomirovs would also include persons who have already had their applications for visas refused, and who failed to commence an application for judicial review within 60 days, as is required by paragraph 72(2)(b) of IRPA for matters arising outside of Canada. According to the Minister, these claims would be barred by this limitation period.
[91] Mr. Tihomirovs contends that these individuals should be able to enjoy the benefit of a class action, although he was unable to point to any jurisprudence to support his position. Instead, he drew an analogy to the rights of individuals injured in a plane crash to participate in a class action brought in a provincial court, regardless of whether or not the individuals in question had commenced their own actions within the relevant limitation period.
[92] I am of the view that the Minister is correct, and that individuals whose applications for permanent residence have been refused, and who did not commence an application for judicial review within 60 days of the decision, cannot now go back and attempt to resurrect their rights to challenge the decisions in question through their participation in a class action.
[93] In coming to this conclusion, I note that while the Federal Courts Rules with respect to the certification of class actions are similar to those in British Columbia and Ontario, there is one very important difference between the provincial regimes and that governing class actions at the federal level. That is, the provincial class action regimes are established by statute, whereas at the federal level, class actions are entirely creatures of the Federal Courts Rules.
[94] This distinction is critical as it relates to the implications of statutory limitation periods for individuals seeking to involve themselves in class proceedings.
[95] Both the British Columbia and Ontario class proceedings legislation provide that insofar as potential class members are concerned, the operation of limitation periods will be suspended or "tolled" until such time as the individuals in question either opt out of, or are excluded from the class, or until such time as the proceeding is concluded without the claim of the individual having been dealt with: see sections 38.1 and 39 of the British Columbia Class Proceedings Act, R.S.B.C. 1996, c.50, and section 28 of the Ontario Class Proceedings Act, S.O. 1992, c.6.
[96] A proceeding could be terminated without the claim of an individual having been dealt with where, for example, the class is not certified, or the claim is otherwise disposed of without having been dealt with on its merits.
[97] In contrast, there is no comparable provision for the suspension of limitation periods in the class actions regime at the federal level. This is not surprising, given that limitation periods are matters of substance, and, as is the case here, are ordinarily provided for in the governing statute. In the absence of a federal class action statute authorizing the suspension of limitation periods, the issue could not have been addressed through subordinate legislation such as the Federal Courts Rules.
[98] There are also compelling public policy considerations favouring this view, in particular, the desirability for finality in litigation: see, for example, Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44.
[99] Thus, after excluding those individuals from the class who have received positive decisions in relation to their applications for permanent residence, as well as those who received negative decisions and did not challenge those decisions in a timely manner, and those whose challenges to the legality of the scheme have already been rejected, we are left with a group of individuals who submitted applications for permanent residence in Canada between January 1, 2002 and June 28, 2002 in the skilled worker, self-employed, entrepreneur and investor categories (referred to in subsection 8(1) of the Immigration Regulations, 1978), excluding provincial nominees and those destined for Quebec, who have not yet received a decision in
relation to their applications, or who have received a negative decision, and the time for seeking judicial review has not yet expired. I am of the view that this much narrower group of individuals, together with their dependents, constitute a limited, identifiable class defined by reference to objective criteria
[100] As a consequence, with these refinements, I am satisfied that the second criterion for certification could be satisfied.
c) Do the Claims of the Class Members Raise Common Questions of Law or Fact?
[101] The Minister concedes that the claims of the members of the putative class raise at least one common issue of law or fact, which the Minister identifies as "whether the members of the proposed class are entitled to have their applications for permanent residence assessed in accordance with the provisions of the former Immigration Act and the Immigration Regulations, 1978."
[102] In light of this concession, the third criteria for certification has been satisfied.
d) Is a Class Action the Preferable Procedure for the Fair and Efficient Resolution of the Common Questions of Law or Fact?
[103] In answering this question, Rule 299.18(2) of the Federal Courts Rules directs that the Court consider all relevant matters, including whether:
| (a) questions of law or fact common to the members of the class predominate over any questions affecting only individual members;
(b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;
(c) the class action would involve claims that are or have been the subject of any other action;
(d) other means of resolving the claims are less practical or less efficient; and
(e) the administration of the class action would create greater difficulties than those likely to be experienced if relief were sought by other means. |
a) la prédominance des points de droit ou de fait collectifs sur ceux qui ne concernent que certains membres;
b) le nombre de membres du groupe qui ont véritablement intérLt B poursuivre des actions séparées;
c) la question de savoir si le recours collectif comprendrait des réclamations qui ont été ou qui sont l'objet d'autres actions;
d) l'aspect pratique ou l'efficacité des autres moyens de régler les réclamations;
e) la question de savoir si la gestion du recours collectif créerait de plus grandes difficultés que l'adoption d'un autre moyen.
|
[104] The submissions of both parties focused on the last two of the enumerated factors.
[105] Before proceeding to consider the submissions of the parties in relation to this issue, it should be observed at the outset that, as a general rule, judicial review will allow for the speedy and summary resolution of public law matters: Tihomirovs, supra, at ¶ 14.
[106] That is, judicial review will ordinarily be a relatively inexpensive and expeditious means of determining the validity of a legislative scheme, without the considerable expense and delay that necessarily comes from having to notify potential class members and administer their claims.
[107] It should also be noted that, having regard to the nature of the issues raised by this case, there has been no suggestion that the discovery process is necessary, or that oral testimony needs be adduced at a trial in support of Mr. Tihomirovs' claim.
[108] Instead, Mr. Tihomirovs submits that the desirability of providing ready access to justice militates heavily in favour of certification in this case. In this regard, he says that requiring each member of the proposed class to commence his or her own application for judicial review would result in many of these individuals being denied relief, as negative decisions may have been rendered some time ago in their cases, and they would thus be out of time to challenge the Regulation.
[109] In other words, Mr. Tihomirovs is again arguing that the certification of a class action in this case would allow for the resurrection of the rights of Group B applicants, which rights may have otherwise expired many months ago.
[110] I have already determined that the class action provisions of the Federal Courts Rules cannot operate to override the limitation period contained in paragraph 72(2)(b) of the Immigration and Refugee Protection Act, and that, as a result, Group B applicants who have already received a negative decision in connection with their applications for permanent residence, and have allowed their rights to expire, cannot properly be included in the proposed class. Therefore, this argument cannot support a finding that a class action would be the preferable procedure to be followed in this case.
[111] The fact that paragraph 72(2)(b) of IRPA is not an absolute bar, and does contemplate extensions of time being granted for the commencement of applications for judicial review, does not, in my view assist Mr. Tihomirovs. Decisions such as Canada(Attorney General) v. Hennelly (1999), 244 N.R. 399 (FCA) have established that, in order to obtain such an extension, the Court must be satisfied that:
1. the individual applicant has the continuing intention to pursue the application;
2. there is some merit to the application;
3. no prejudice to the respondent arises as a result of the delay; and
4. there is a reasonable explanation for the delay.
[112] Thus, an individualized assessment of the circumstances of each applicant is required before the Court can exercise its discretion to extend the time for bringing the applications. If the Court were required to assess the situation of each member of the proposed class, on a case-by-case basis, in order to determine whether they should be permitted to advance their claim as part of the class, notwithstanding that more than 60 days had passed since the decision was made in their case, most, if not all, of the efficiencies gained by proceeding by way of a class action would be lost. Indeed, such a requirement would impose a significant additional drain on scarce judicial resources.
[113] With respect to those individuals whose applications for permanent residence have not yet been finally determined, Mr. Tihomirovs argues that, because these individuals are scattered around the globe, it is necessary that they receive notice of the proceeding in order to be able to derive any benefit from any future decision that the Court might make. Otherwise these individuals may never learn of the decision in Mr. Tihomirovs' case, and would thus be unable to derive any benefit from a positive decision in his case.
[114] Mr. Tihomirovs also says that the fact that many of the members of the proposed class lack the financial resources to pursue their rights through individual applications for judicial review, do not speak either English or French, are unfamiliar with the Canadian legal process, and do not have ready access to Canadian counsel, all militate in favour of the matter being allowed to proceed as a class action.
[115] Moreover, allowing Mr. Tihomirovs' application for judicial review to proceed as a test case is not a satisfactory way to proceed, he submits, as by the time his case is resolved, other members of the proposed class will have received negative decisions in relation to their applications, and the 60 day limitation period for them to seek judicial review may have expired.
[116] Finally, Mr. Tihomirovs argues that to require each member of the proposed class to launch their own application for judicial review would be repetitive and unnecessarily expensive, and would place an undue burden on the judicial system.
[117] Most of Mr. Tihomirovs' arguments are premised on the assumption that a determination of the legality of the Regulations would have to be made in every individual case. That is, he seems to assume that even if he is ultimately successful in his own application for judicial review, the decision in his case would have no impact on the applications of the other members of the proposed class.
[118] This is simply not the case. Indeed, a declaration, whether obtained in an action or in the context of an application for judicial review, may determine the rights of a class of people in much the same way as a class proceeding: Auton v. British Columbia, previously cited, at ¶ 47.
[119] As the respondent pointed out, the Minister is obliged to follow the law. As a consequence, should the Court ultimately declare that the regulation in question is ultra vires, and that members of the proposed class are entitled to have their applications for permanent residence assessed in accordance with the criteria set out in the Immigration Act, the Minister will be obliged to act accordingly. This will be the case, whether or not individual members of the proposed class assert their right to have their applications treated in this fashion.
[120] As a result, there is no need to ensure that all of the members of the proposed class be party to a class action in order to derive a benefit from a favourable decision in Mr. Tihomirovs' case. Moreover, requiring that notice be given of the litigation and of the court's resolution of the common question will only add unnecessary cost and delay to the process.
[121] The only members of the proposed class, as I have refined it, who would not be able to derive a benefit from a positive decision in Mr. Tihomirovs' case are those individuals who may receive negative decisions in relation to their applications for permanent residence between now and the time that Mr. Tihomirovs' application for judicial review is finally decided, and who do not preserve their rights by seeking judicial review of those decisions in a timely manner.
[122] By itself, this consideration does not, in my view, justify the conclusion that a class action would be the preferable procedure for resolving the common issues raised by this case. While the giving of notice to those who may potentially be negatively affected by the Regulation is an important consideration, in light of the fact that I have already found it to be plain and obvious that Mr. Tihomirovs' application is destined to fail, the complexities and expense of proceeding by way of class action do not, in my view, outweigh the efficiencies that would be achieved by having the issues raised by Mr. Tihomirovs determined in the context of his application for judicial review.
[123] I would further observe that while it is impossible to speculate as to how many individuals could potentially find themselves in the situation described above, if their situation is a matter of concern to Mr. Tihomirovs, it would certainly be open to him to seek to have the hearing of his application for judicial review expedited, thereby limiting the number of people potentially so affected.
[124] For these reasons, Mr. Tihomirovs has failed to satisfy me that a class action would be the preferable procedure for the resolution of the issues raised by this case.
e) Is Mr. Tihomirovs a Suitable Representative Plaintiff?
[125] The requirements for establishing that the proposed representative plaintiff would indeed be an appropriate one are set out in Rule 299.18(1)(e). This provision requires that it be established that the proposed representative plaintiff:
| (i) would fairly and adequately represent the interests of the class,
(ii) has prepared a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying class members how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff and the representative plaintiff's solicitor.
|
(i) représenterait de façon équitable et appropriée les intérLts du groupe,
(ii) a élaboré un plan qui propose une méthode efficace pour poursuivre l'action au nom du groupe et tenir les membres du groupe informés du déroulement de l'instance,
(iii) n'a pas de conflit d'intérLts avec d'autres membres du groupe en ce qui concerne les points de droit ou de fait collectifs,
(iv) communique un sommaire des ententes relatives aux honoraires et débours qui sont intervenues entre lui et son avocat. |
[126] The Minister initially challenged Mr. Tihomirovs' suitability as a representative on the basis that he was potentially in a conflict of interest in relation to some of the other members of the class by virtue of the fact that he was a party to the Borisova application, and others were not.
[127] When counsel for the Minister was asked to clarify this argument at the hearing, he indicated that he would consider whether to pursue the argument. The argument was not mentioned again, and I understand it to have been abandoned. No other argument has been advanced by the Minister as to why Mr. Tihomirovs would not be a suitable representative plaintiff.
[128] Having considered the factors enumerated in Rule 299.18(1)(e), I am satisfied that Mr. Tihomirovs has met the requirements of this provision, and that he would be a suitable representative plaintiff.
[129] In this regard, I note that Mr. Tihomirovs has undertaken to fairly and adequately represent the interests of the class, and that no reason has been advanced to suggest that he would not do so.
[130] Mr. Tihomirovs has prepared a litigation plan for the proposed class action that sets out a workable method of advancing the action on behalf of the class and of notifying class members how the proceeding is progressing, and thus satisfies the second requirement of the Rule.
[131] As was noted previously, while the Minister initially suggested that Mr. Tihomirovs could be in a conflict of interest vis-à-vis some of the other members of the class, this argument was abandoned at the hearing. Having reviewed the matter myself, it does not appear that there are any facts or circumstances that would place Mr. Tihomirovs in a conflict of interest. As a consequence, I am satisfied that the third requirement has been met.
[132] Finally, Mr. Tihomirovs has provided a summary of the agreement between himself and his counsel with respect to fees and disbursements, satisfying the final element of the test.
[133] I am therefore satisfied that Mr. Tihomirovs would be a suitable representative plaintiff.
Conclusion
[134] As was noted earlier, the list contained in Rule 299.18(1) is conjunctive. Having failed to satisfy two of the criteria for certification, it follows that a motion for certification would not be successful. As a consequence, the motion to convert Mr. Tihomirovs' application for judicial review to an action should be and will be dismissed.
[135] Having refused to allow Mr. Tihomirovs' application for judicial review to be treated and proceeded with as an action, it is not necessary to deal further with the motion for certification.
Costs
[136] The Minister does not seek his costs of this motion. Mr. Tihomirovs does not seek an order of costs in relation to this motion, simply submitting that he should be entitled to his costs at the end of the day, should his claim succeed.
[137] In the circumstances, there will be no order of costs.
Certification of a Question
[138] Given that these motions arise in the context of an immigration proceeding, there was some question in the minds of counsel as to whether it is necessary for the Court to certify a question in accordance with the provisions of subsection 74(d) of the Immigration and Refugee Protection Act in order for either party to have a right of appeal from this decision.
[139] Counsel asked for time to consider their positions on this matter. The parties shall have 10 days from the date of this decision in which to file submissions as to whether any right of appeal from this decision is dependent upon the certification of a question. In this regard, counsel should address the decision of the Federal Court of Appeal in Chen v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 214, 2005 FCA 56.
[140] The parties shall also propose any question or questions that either side may feel are appropriate for certification within the same time frame.
[141] Both parties will then have five days to respond to the other's submissions, following which an order will issue.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8863-04
STYLE OF CAUSE: ANDREJS TIHOMIROVS v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 9, 2006
REASONS FOR ORDER : MACTAVISH, J.
APPEARANCES:
Mr. Dan Miller FOR THE APPLICANT
Mr. Kevin Lunney FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAN MILLER
Barrister and Solicitor
200 Finch Street West
Suite 335
Toronto, Ontario
M5R 3W4 FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Department of Justice
Deputy Attorney General of Canada
Toronto, Ontario
M5X 1K6 FOR THE RESPONDENT