Here's an excerpt from the e-mail received from Tim Leahy:
On Tuesday, September 18th, Justice Barnes refused to enjoin CIC from acting on the provision Jason Kenney tucked into Bill C-38, the budget implementation bill, abolishing the immigrant visa applications of 86,000+ skilled workers, who had been waiting in the immigration queue for four to eight years. Justice Barnes did not, however, rule on the legality of the provision closing the FSW applications. A different judge will make that ruling sometime in mid- to late-2013.
Applicants’ counsel were seeking an injunction barring CIC from (a) destroying the FSW files and (b) refunding the processing fee so long as the matter was before the courts. CIC told the Federal Court that it would not destroy the files for two years, obviating any need to enjoin it from doing so; and Justice Barnes dismissed applicants’ counsels’ concern that, if FSW applicants cashed the refund cheques, they would lose their right to have their files processed if the applicants’ litigation prevailed. Justice Barnes stated that, in his view, all they would have to do would be to repay the refund cheque and their file would be reinstated. Justice Barnes appears to fear upsetting Jason Kenney by impeding his effort to abolish as many files as he can in order to have a “just in time” process.
Applicants’ counsel themselves were not united on the need for such an injunction, believing, as Justice Barnes ruled, that their litigants interested were protected. The real need for the injunction was for the FSW applicants who have not joined the litigation. If they cash the refund cheque, applicants’ counsel fear, the FSW applicants will be signing away their right to have their files processed. Justice Barnes cited no authority at the hearing to support his view that all they would have to so would be to repay the fee. If he truly believes what he said, Justice Barnes will affirm this view in his written reasons for denying the injunction. Justice Barnes did state, however, that applicants’ counsel may raise the issue again if CIC reverses its pledge not to destroy the FSW files for two years.
The injunction was needed because the Federal Court has not ruled on whether the litigation should proceed as a true class-action lawsuit or as individual litigants moving forward together. In a class-action, all members of the class will receive the same benefit if the litigation prevails. In managed litigation, the ruling will only govern the fate of those who joined the litigation, leaving those who have not joined out in the cold. The Court set the hearing on class certification for November 16th.
Justice Barnes reiterated his preference for managed litigation over a class-action lawsuit. Justice Barnes had previously stated that, because, if the Court strikes down the provision closing the FSW files, the result would affect all FSW applicants, there is no need to certify a class. That view, however, presumes that those who cash their refund cheques will not, by so doing, have effectively abandoned their immigrant-visa application.
The approach, therefore, Justice Barnes took at the hearing on the injunction is more important than the ruling itself. The more important decisions he will take will be on the motion seeking to enforce the Agreement for the unfairCIC.com group and on the issue of permitting a class-action lawsuit. The former can come any day now; the latter, not until late November at the earliest. Justice Barnes revealed on September 18th that he is not comfortable ruling against Jason Kenney, preferring instead to have counsel for both sides reach their own agreement. The test of this approach, however, will come when he rules on the unfairCIC.com motion. If Justice Barnes refuse to enforce the Agreement, he will make clear that applicants’ counsel should never sign an agreement with Immigration Canada because it may break the agreement, and the Federal Court will stand idly by, looking the other way. Likewise, if Justice Barnes refuses to enforce the Agreement and refuses to set the other litigants’ cases down for hearings, he will demonstrate that “managed proceedings” area fraud.
Therefore, although Justice Barnes’ denying the injunction is meaningless in so far as the actual litigants are concerned because CIC has agreed not to destroy the files – only those who cash a refund cheque may be at risk – how he rules on the unfairCIC.com motion will affect how applicants should proceed in the challenge to the closing of their files, making a true class action as the only credible, viable option. While the optics of the ruling will inflict Angst on those whose files have been closed, it has no bearing on the merits of their cause. And, if CIC keeps its word – and Justice Barnes’ puts in his written reasons that cashing a refund cheque will not mean that they have abandoned their FSW applications – the injunction would have been redundant anyway.
Regards,
Tim
On Tuesday, September 18th, Justice Barnes refused to enjoin CIC from acting on the provision Jason Kenney tucked into Bill C-38, the budget implementation bill, abolishing the immigrant visa applications of 86,000+ skilled workers, who had been waiting in the immigration queue for four to eight years. Justice Barnes did not, however, rule on the legality of the provision closing the FSW applications. A different judge will make that ruling sometime in mid- to late-2013.
Applicants’ counsel were seeking an injunction barring CIC from (a) destroying the FSW files and (b) refunding the processing fee so long as the matter was before the courts. CIC told the Federal Court that it would not destroy the files for two years, obviating any need to enjoin it from doing so; and Justice Barnes dismissed applicants’ counsels’ concern that, if FSW applicants cashed the refund cheques, they would lose their right to have their files processed if the applicants’ litigation prevailed. Justice Barnes stated that, in his view, all they would have to do would be to repay the refund cheque and their file would be reinstated. Justice Barnes appears to fear upsetting Jason Kenney by impeding his effort to abolish as many files as he can in order to have a “just in time” process.
Applicants’ counsel themselves were not united on the need for such an injunction, believing, as Justice Barnes ruled, that their litigants interested were protected. The real need for the injunction was for the FSW applicants who have not joined the litigation. If they cash the refund cheque, applicants’ counsel fear, the FSW applicants will be signing away their right to have their files processed. Justice Barnes cited no authority at the hearing to support his view that all they would have to so would be to repay the fee. If he truly believes what he said, Justice Barnes will affirm this view in his written reasons for denying the injunction. Justice Barnes did state, however, that applicants’ counsel may raise the issue again if CIC reverses its pledge not to destroy the FSW files for two years.
The injunction was needed because the Federal Court has not ruled on whether the litigation should proceed as a true class-action lawsuit or as individual litigants moving forward together. In a class-action, all members of the class will receive the same benefit if the litigation prevails. In managed litigation, the ruling will only govern the fate of those who joined the litigation, leaving those who have not joined out in the cold. The Court set the hearing on class certification for November 16th.
Justice Barnes reiterated his preference for managed litigation over a class-action lawsuit. Justice Barnes had previously stated that, because, if the Court strikes down the provision closing the FSW files, the result would affect all FSW applicants, there is no need to certify a class. That view, however, presumes that those who cash their refund cheques will not, by so doing, have effectively abandoned their immigrant-visa application.
The approach, therefore, Justice Barnes took at the hearing on the injunction is more important than the ruling itself. The more important decisions he will take will be on the motion seeking to enforce the Agreement for the unfairCIC.com group and on the issue of permitting a class-action lawsuit. The former can come any day now; the latter, not until late November at the earliest. Justice Barnes revealed on September 18th that he is not comfortable ruling against Jason Kenney, preferring instead to have counsel for both sides reach their own agreement. The test of this approach, however, will come when he rules on the unfairCIC.com motion. If Justice Barnes refuse to enforce the Agreement, he will make clear that applicants’ counsel should never sign an agreement with Immigration Canada because it may break the agreement, and the Federal Court will stand idly by, looking the other way. Likewise, if Justice Barnes refuses to enforce the Agreement and refuses to set the other litigants’ cases down for hearings, he will demonstrate that “managed proceedings” area fraud.
Therefore, although Justice Barnes’ denying the injunction is meaningless in so far as the actual litigants are concerned because CIC has agreed not to destroy the files – only those who cash a refund cheque may be at risk – how he rules on the unfairCIC.com motion will affect how applicants should proceed in the challenge to the closing of their files, making a true class action as the only credible, viable option. While the optics of the ruling will inflict Angst on those whose files have been closed, it has no bearing on the merits of their cause. And, if CIC keeps its word – and Justice Barnes’ puts in his written reasons that cashing a refund cheque will not mean that they have abandoned their FSW applications – the injunction would have been redundant anyway.
Regards,
Tim
