OMNIBUS BUDGET BILL, C-38
- Thread starter Mancilla
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Summary of the hearing of Backloggers Litigation held on June 5th:
The hearing went reasonably well, but the judge has deferred issuing his decision. He is, however, well aware that he has to deal with Bill C-38 and that, once it has passed, his options are limited.
The judge also agreed to allow others to join our litigation. In response to DoJ's raising the issue, the deciding judge suggested that the managing judge might be the person to make that decision. So, we have a small window for others to join. At present we are 885.
The judge would have liked to have known the estimated processing time given at the time the litigants' files were initiated because, knowing those facts would allow him to decide if the processing was excessive; e.g., if, when a person applied in 2007, she was told it would take five years, processing would not be excessive, but, if she had been told two years, it could be. However, because we are proceeding on the basis of a representative case, that information was not before the Court.
The judge asked DoJ counsel a few questions which revealed that he has concerns with their argument. The first was about the issue of "processing exceeding the time ordinarily required". The judge asked: "What is the starting point: when the application is filed or the rules are subsequently changed?" (or words to that effect) DoJ counsel never really answered the question.
Because DoJ is arguing that the Court has no jurisdiction to review "policy" decisions, mandamus may not issue because the Ministerial Instructions are policy, the judge asked: "If Ministerial Instructions cannot be reviewed, under what circumstances can mandamus ever be issued?" (Because the minister can always make new instructions whenever it suits him.)
In order to appeal a decision, the judge must certify a question. DoJ counsel asked the judge to certify two questions: (1) Does the Court have the authority to review Ministerial Instructions" and (2) "Does the Court have the power to issue an order, back-dated to before March 29th" (as I had requested)? The significance of this request is two-fold: First, it reveals that DoJ is worried that we might win the case (because only the losing party appeals a decision); second, after she had raised this issue, Justice Rennie did not turn to me and ask: "Do you have any questions for certification?" It could be that he was just tired or it could be that he expects us to win and, therefore, there was no reason to ask the question.
The judge also asked me the timing I wanted if mandamus is issued. (I said: assess within two weeks of receipt of new forms and documentation and finalize within one year.) He asked DoJ counsel's view on that timing, but she really did not answer the question, which is to say, she did not assert that CIC could work within that time-frame. Instead, she said that, once BIll C-38 is passed, the court's order will become null and void.
So, we have to wait. Justice Rennie appears to understand the issues and to be displeased with the minister's approach. However, he will also have to insulate a ruling in our favour from BIll C-38 or it will all be for naught. In summation: we do not have a decision but the hearing went reasonably well.
The hearing went reasonably well, but the judge has deferred issuing his decision. He is, however, well aware that he has to deal with Bill C-38 and that, once it has passed, his options are limited.
The judge also agreed to allow others to join our litigation. In response to DoJ's raising the issue, the deciding judge suggested that the managing judge might be the person to make that decision. So, we have a small window for others to join. At present we are 885.
The judge would have liked to have known the estimated processing time given at the time the litigants' files were initiated because, knowing those facts would allow him to decide if the processing was excessive; e.g., if, when a person applied in 2007, she was told it would take five years, processing would not be excessive, but, if she had been told two years, it could be. However, because we are proceeding on the basis of a representative case, that information was not before the Court.
The judge asked DoJ counsel a few questions which revealed that he has concerns with their argument. The first was about the issue of "processing exceeding the time ordinarily required". The judge asked: "What is the starting point: when the application is filed or the rules are subsequently changed?" (or words to that effect) DoJ counsel never really answered the question.
Because DoJ is arguing that the Court has no jurisdiction to review "policy" decisions, mandamus may not issue because the Ministerial Instructions are policy, the judge asked: "If Ministerial Instructions cannot be reviewed, under what circumstances can mandamus ever be issued?" (Because the minister can always make new instructions whenever it suits him.)
In order to appeal a decision, the judge must certify a question. DoJ counsel asked the judge to certify two questions: (1) Does the Court have the authority to review Ministerial Instructions" and (2) "Does the Court have the power to issue an order, back-dated to before March 29th" (as I had requested)? The significance of this request is two-fold: First, it reveals that DoJ is worried that we might win the case (because only the losing party appeals a decision); second, after she had raised this issue, Justice Rennie did not turn to me and ask: "Do you have any questions for certification?" It could be that he was just tired or it could be that he expects us to win and, therefore, there was no reason to ask the question.
The judge also asked me the timing I wanted if mandamus is issued. (I said: assess within two weeks of receipt of new forms and documentation and finalize within one year.) He asked DoJ counsel's view on that timing, but she really did not answer the question, which is to say, she did not assert that CIC could work within that time-frame. Instead, she said that, once BIll C-38 is passed, the court's order will become null and void.
So, we have to wait. Justice Rennie appears to understand the issues and to be displeased with the minister's approach. However, he will also have to insulate a ruling in our favour from BIll C-38 or it will all be for naught. In summation: we do not have a decision but the hearing went reasonably well.
My aim is to, make aware Canadian People and those who are planning to immigrate to Canada, about the workings of PARLIAMENT, The Elected Representatives and how in the name democracy and having majority they pass laws that are un-ethical, undemocratic and against universal law of nature.
Let people decide who should they select to GOVERN THEM!!!!
Let people decide who should they select to GOVERN THEM!!!!
On the eve passage of Bill C-38, the Federal Court issued a decision, declaring unlawful CIC's policy of warehousing indefinitely older federal skilled worker applications in favour of the current batch. The litigation, commenced 28 October 2011, pre-dates the Minister's March 30th announced that he would close all FSW files lodged before 27 February 2008 and not assessed as of 29 March 2012 and, thus, does not address s. 87.4 (hidden in Bill C-38). The decision applies directly only to the 900 applicants who participated in the litigation.
The litigation included applicants who had applied either before 27 February 2008 or between that date and 25 June 2010. While the former group -- about 750 -- are subject to s. 87.4, CIC agreed in writing in January that it would be "guided by" the decision in the lead cases. If the Minister honours this promise, the Minister's closing of roughly 80,000 applications (affecting about 280,000) will have their files assessed and finalized within a specified time-frame.
In the lead case, the Court ordered CIC to finalize the file by October 14th. However, because his file had been assessed in 2010, only medicals and up-dated police clearances are required. For the other litigants, the time-frame (which must still be negotiated) will likely be longer.
For those not involved in the litigation, new litigation is currently being prepared to challenge the closing of the files and will be formally launched after Parliament passes Bill C-38.
The litigation included applicants who had applied either before 27 February 2008 or between that date and 25 June 2010. While the former group -- about 750 -- are subject to s. 87.4, CIC agreed in writing in January that it would be "guided by" the decision in the lead cases. If the Minister honours this promise, the Minister's closing of roughly 80,000 applications (affecting about 280,000) will have their files assessed and finalized within a specified time-frame.
In the lead case, the Court ordered CIC to finalize the file by October 14th. However, because his file had been assessed in 2010, only medicals and up-dated police clearances are required. For the other litigants, the time-frame (which must still be negotiated) will likely be longer.
For those not involved in the litigation, new litigation is currently being prepared to challenge the closing of the files and will be formally launched after Parliament passes Bill C-38.