This is the latest update from Tim Leahy:
Good Day,
Today I took our dear Mr. Justice Barnes at his word and formally requested the Minister to access s. 25.1 (as he did for those who were issued visas after June 29th despite their files having been closed because they had been assessed after March 28th). Needless to say, I do not expect the Minister to do so. Therefore, following Justice Barnes' words, I will file a new court case on January 2nd, asking that the Court enforce the Agreement. On January 8th, I will file a motion asking that the case be turned into a class-action exclusively for those who are a part of the Emam contingent. Therefore, our group will close on January 5th.
I have taken this approach because, even if we prevail at the January 14th-16th hearing, it will only mean that 86,000+ files will have been reinstated. Justice Rennie said that he will refuse to issue mandamus for the litigants, making the litigation next to worthless. Moreover, the losing party may be expected to appeal to the Federal Court of Appeal. In contrast, if the Court agrees to hear our case, we should have the decision this coming spring.
Today I also submitted to the Federal Court of Appeal a notice-of-appeal of Justice Barnes December 14th ruling. It was my Christmas present for Justice Barnes (because I have no coal to put in his slockings). Although the statute bars appeals of motions -- and only allows appeal of decisions if a question is certified -- there are two grounds for getting to the FCA; viz., if the judge failed to exercise his jurisdiction or is biased. I raised both grounds. First, he claimed not to have the power to enforce the Agreement; i.e., he failed to exercise his jurisdiction; and, second, he should have declined to rule on the motion because (a) he had prejudged the issue even before I had written my submissions and (b) he so vehemently and publicly berated me that his bias is transparent. The Registry is seeking direction from the Federal Court of Appeal as to whether it will allow the appeal. I will let you know the result.
So, we will be advancing on two different fronts while the s. 87.4 litigation reaches a crescendo in mid-January. So long as one of these three paths overcomes CIC's obstacles, you will prevail.
Finally, I expect to move into Phase II for the litigants whose files were not closed when I file actions for damages for them. DoJ will counter a month later with a motion asking the Court to dismiss the litigation. If it declines to do so, we can do the same for the closed files. However, because s. 87.4(5) denies access to the Court for those whose files 87.4 closed, I do not want that issue to colour the outcome of the expected motion-to-dismiss. If we win on that issue, we can deal with the second one.
Thus, while the situation looks rather dismal at present, the war is not lost; rather, we are at the same stage as was London when Nazi bombs were reigning down on it and Winston Churchill defiantly proclaimed: "This is not the end. It is not even the beginning of the end. But, it is, perhaps the end of the beginning." Ultimately, he vanquished his Nazis. Let us hope that we, too, will vanquish our Nazis and their collaborators.
Regards,
Tim
