Extracts of some noteworthy text from Tim Leahy's updates of the past:
4 November 2015: "I am comforted, however, by the thought that it is far easier to write a decision dismissing our case than it is to write one granting us the relief we are seeking. The fact that Justice Russell, who presided over hearings this week in Toronto, has not yet released his decision implies that he is working on the wording which will give us the relief we seek while protecting the decision from being overturned in the Federal Court of Appeal.
So, I'm sorry. We just have to continue waiting. While the change in government does not guarantee success, it is a major help because it means that, if Justice Russell seeks promotion to the Federal Court of Appeal, he is not required to rule against us, as Justice Rennie did in Tabingo (the so-called class action for FSW's) and justices Boivin and Gleason did in my investor litigation, after which all three were quickly elevated to the Federal Court of Appeal."
2 September 2015: "Mr. Galati appears to have gotten across to Justice Russell our arguments, including putting to rest DoJ's argument that the Minister would be acting "contrary to Law" if he honoured the Agreement. Justice Russell appears to have accepted the argument I had been making since June 2012. Likewise, the Court appears to have understood the constitutional issues, which DoJ counsel appeared never to have grasped (or, knowing that it is correct, feign puzzlement).
The good news is that DoJ finally admitted that the Agreement governs both groups, saying "If the Agreement is enforceable, it would govern both those who applied before Liang and those who applied afterwards". They argue -- and there were three lawyers on the other side, as there always have been -- however, that passage of s. 87.4 terminated the Agreement, too -- but it clearly did not.
The importance of that concession is that it opens the door to Justice Russell to rule in our favour on the Agreement and not to have to rule on the constitutional issues. Thus, we can win without the Government losing big time. (However, after October 19th, the Government is likely to be gone in any event.)
While no decision was given, and Justice Russell has yet to express his view on the main issues, because he appears to have understood them and all the main points were addressed, I am very happy with what occurred today, especially DoJ's concession that, if the Agreement is enforceable, it applies all litigants. As I said, the concession permits Justice Russell to rule in everyone's favour without having to rule against the Government, per se, allowing the other 80,000 files to remain closed but yours to be processed. A small loss for CIC but a huge win for each of you."
16 March 2015: "As you know, DoJ is trying to have some of the litigants removed from our group, and we're limiting those to be removed only to those who have already had the files processed to completion. The dispute is limited to those who were in more than one litigation group.
In a teleconference with both counsel, Justice Campbell revealed that he understands the issues and agreed that it makes sense to have all those who joined before the Liang decision have their files attached to the lead case, IMM-1-13 (Back) and those who joined afterwards, to follow IMM-6828-12 (Gong).
Justice Campbell did not, however, rule on who should be excluded because the lists DoJ presented are in no recognizable order, whereas the lists I prepared are in order of file number and alphabetically by visa post. He suggested that we try to reach an agreement on which files are to be included and, where we do not agree, he will make a ruling.
Again, the only people at risk are those who were also in the Tabingo litigation. There is no legal basis for excluding them, and, because we have an honest judge, who is not seeking elevation to the Federal Court of Appeal, I expect Justice Campbell to dismiss DoJ's motion and to grant ours. But, that ruling will not come until after we have worked out a joint list.
I have asked Rocco, and he has agreed, to have DoJ go through our lists and identify those litigants whom it wants excluded and to explain why. Until they have done so -- and we have addressed it -- Justice Campbell will not be making a ruling on the issue."
19 December 2014: "This week, we presented DoJ with our revision of their revised list of those who are included in the litigation group.
DoJ excluded from the list all those who have already had their files assessed (and whom I had failed to delete) and those who also had cases in the so-called class-action litigation (Tabingo). I contacted everyone who had been deleted to ascertain if their file had been assessed and added back to the list everyone who advised that their file had not been assessed.
Rocco Galati and I share the view that inclusion in another litigation group does not justify excluding one arbitrarily from either group. If DoJ persists in excluding any of those whom I added back to the list, the Court will have to decide the matter. We will not accede to DoJ improper demand. (I told them if they wanted them in only one group, exclude them from the Tabingo group.)
We are only talking about a few of the 1,300 litigants in the group. So, please do NOT ask me if you were excluded. I notified all those who were and added back all those who confirmed that their file had not been assessed. If I did not notify you, DoJ accepts that you are in the group."
28 March 2014: Judge Barnes advised both parties that he has agreed to grant leave for both representative cases and that the hearing will be in September.
The main issue will be enforcement of the Agreement, signed and filed with the Court in February 2012, promising to apply the ruling in the lead cases for the other cases. However, because Minister Kenney had the unassessed files abolished, CIC refused to honour the Agreement for the files which Bill C-38 closed. DoJ argues also that the Agreement only applies to those who joined before 18 June 2012 although Justice Barnes had directed on 26 June 2012 that those who joined afterwards would be governed by it.
Therefore, in September, we will be arguing (a) the Agreement is binding, (b) it applies to everyone in the group, no matter when they joined, and (c) further that for a reason not argued in the “class-action” lawsuit, s. 87.4 does not negate the applicants’ right to have their files processed. If we succeed, all who have joined the group before the ruling will have their files activated and decided on the merits.
4 February 2014: "We have two lead cases, addressing three issues:
1. Back, IMM-1-13:
a. never assessed pre-Bill C-50 applicants
b. who joined the litigation before the Liang decision (before 14 June 2013)
2. Gong: those who joined after 14 June 2013 and
a. were never assessed or
b. were assessed after 29 March 2012.
If you (a) joined the litigation group (by submitting a signed retainer agreement and making the first payment) and (b) received this email from me, you are in one sub-category or the other. There is no need to ask me if or in which. Both cases, as I said, will be argued the same day before the same judge.
We have now received instructions regarding Back and Gong as the lead cases concerning the validity of s, 87.4 of IRPA as it concerns: a) those cases under the Protocol (Back) and b) those whose inclusion under the Protocol is disputed, as well as the effect of reaching a selection decision after March 29, 2012 (Gong)."
