Dear litigant, From Tim Leahy
Time for some up-dates. After working overnight on Thursday, I completed the last two written submissions for the January 14th-16th hearings and served and filed them on Friday. The four groups are:
1. files lodged before 27 February 2008 which
a. have never been assessed,
b. were assessed before 29 March 2012 (and joined after June 14th) and
c. were assessed after March 29th and underwent medicals; and
2. files lodged between 27 February 2008 and 25 June 2010.
DoJ has objected to inclusion of the MI 1 litigants -- all four of them -- having their case heard on January 14th-16th and sent a letter to that effect to the Court after working hours on Thursday. When I filed my last two written arguments -- for 1b and 1c -- I enclosed a letter, identifying the four lead cases and explaining why I am proceeding in the manner; i.e., our group initially included two classes (pre-Bill C-50 and MI 1) but on March 29th the Minister divided former into assessed and not-assessed and on June 29th created a fourth class (post-March-29th-assesssed); and, thus, I have not added a new group; I am only dealing with the sub-groups CIC has created.
I really do not know why Marin Anderson, DoJ counsel, did not object to 1b, too. Maybe he just didn't read the letter which had accompanied that filing, where I alerted counsel that I would be filing three more lead cases. However, if he should decide to do so now, I will advise the Court that (a) he is not counsel involved in your litigation -- and he is not; he is lead counsel in the Toronto-based 87.4 batch -- and (b) he lost his chance to complain when he did not raise that issue when he objected to the MI 1. But, in any event, I doubt that Justice Barnes will allow Martin Anderson to decide whom I may represent and whose cases I may pursue.
The judge who has been selected to preside at the hearing is Mr. Justice Rennie, who issued the June 14th decision in our favour. I am pleased that it is he because he had said: "the Protocol (Agreement) governs", but CIC has refused to honour it. He should be sympathetic for the pre-June 14th litigants and those in 1b and 2 because they fall squarely under his June 14th ruling. His real challenges will be: (a) applying the same ruling for the post-June 14th 1a litigants and (b) ruling on s. 87.4 itself. (He can uphold s. 87.4 but still enforce the Agreement. So, we're better positioned than the other counsels' litigants who can only win if s. 87.4 is struck down.)
The really good news is that Arthur, one of our astute Chinese litigants, emailed me the following link on Thursday night after I had printed my written submissions for 1a and was working on 1c.
http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob479B.asp
Although it does not apply to any of the litigants, it proves that I have been right all along: the Minister has the means to override the effect of s. 87.4, contrary to what DoJ has been arguing in Court. The Minister's having done so effectively means that DoJ has been lying to the Court with respect to enforcement of the Agreement. If anyone over there has any smarts, they'll immediately offer to settle our cases.
I was only able to include this argument in the 1c submissions because two of the others had been served and filed and the third was written, printed and bound. However, I will be able to raise it in the reply and on the 14th. So, Arthur has really helped everyone by having kept himself so current -- and did so within hours (if not minutes) of OB 479-B's being posted on the website.
Another interesting development is the fact that we have two versions of the Agreement. When I was writing the arguments, I noted that the excerpt I had quoted did not reflect omission of preceding text, contrary to how I would ordinarily have written it. That preceding text DoJ had included in its submissions on the motion and I had just presumed that it was accurate. DoJ's paragraph 14 has a clause saying, in effect, the "be guided by" obligation only applies to those who were in the litigation before the hearing; the version they had sent me does not have that limitation. So, I will have to get a copy from the Court to see which version DoJ filed with the Court -- DoJ wrote the Agreement; I made suggestions; they wrote the final version; I signed off on it, and they filed it with the Court. If it was my version, they are really going to be in big trouble with the Court. I just hope that they did not file the revised version -- not that it really matters for our argument -- because, if they did not, I will urge DoJ to settle immediately or I will advise the Court that they have been attempting to defraud the Court.
And, if you have not figured it out: Justice Barnes will never rule on our motion. We will just have to wait for Justice Rennie to rule.
Justice Barnes has proven himself adept at working for the Minister every step of the way. His setting the hearing for January 14th-16th not only gives him a way out of deciding our motion but it also forced applicants' counsel to withdraw their motion for class-certification, which had told us twice he opposes, because, although the decision could be appealed to the Federal Court of Appeal (FCA), the FCA could not hear it before January 14th, after which the issue would be moot. Moreover, if he had certified a group, and DoJ had not appealed, the class-action could not be properly organized in time for a January 14th hearing. More perniciously, however, is the early date prevents us from obtaining support from outside parties on my constitutional issue. They simply would not have time to obtain permission to file amicus briefs, let alone to write one. So, he will have cleared the decks for the Minister before the next Budget Bill, where I expect the Minister to insert a provision abolishing all economic-class applications not assessed before July 1st, when he will introduce new selection criteria for skilled workers and new investor and entrepreneur programs. The Minister coudn't've found a more amenable judge unless he could appoint his mother to the Bench.
I am grateful to all of you who do not send me weekly requests for up-dates. As for the few who do not seem to understand that, when I have nothing to say, I say nothing and insist on weekly, if not daily, updates, I have decided to cease responding to their emails. If they cannot remember anything important I did not include either in emails like this one or post on the website but only learned owing to their query, I would be grateful if they would show a little trust in my judgment and accept that they do not need to ask me every other day: "what is happening"?
The next step from my end -- besides beating back Martin Anderson's interference -- is to prepare questions for their witness, who is to file his/her affidavit by December 14th. I have not had time to think about what to ask beyond what I asked previously. If any of you have some suggestions, please read what I asked before -- no need to ask me what I have already asked -- and let me know your ideas. I asked more than I am technically allowed to ask, and DoJ refused to answer many of them, as you can see from the attachment. So, there is no guarantee that, even if asked, an answer will be forthcoming. Yes, I can file a motion, asking the Court to order the witness to answer. However, Justice Barnes has made certain that the hearing will take place before the time for doing so will have come.
Regards,
Tim
