Date: 20040428
Docket: T-452-04
Citation: 2004 FC 630
BETWEEN:
INTERNATIONAL ASSOCIATION OF IMMIGRATION PRACTITIONERS (IAIP)
and SEAN SHANNON
Plaintiffs
and
HER MAJESTY THE QUEEN,
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
MARK DAVIDSON, and JOHNS AND JANES DOE
Defendants
[1] The Canadian Society of Immigration Consultants (CSIC) seeks leave to intervene in what may conveniently be described as the plaintiffs' motion for interlocutory injunctive relief. The defendants support the CSIC motion. The plaintiffs agree that CSIC should be granted intervener status, but maintain that the scope of the intervention should be limited.
BACKGROUND
[2] For context, I summarize the factual background giving rise to this motion. In so doing, I have endeavoured to provide only uncontested facts. The omission of the various allegations of impropriety is intentional.
[3] In October, 2002, an external advisory committee comprised of fourteen members (including consultants, lawyers, and public interest representatives) was created to provide recommendations to the Minister of Citizenship and Immigration (the Minister) on the regulation of immigration consultants. On May 8, 2003, the advisory committee submitted its report to the Minister recommending that a self-regulatory body for the regulation of immigration consultants be created. The committee recommended that a non-share capital corporation be created under the Canada Corporations Act to operate as the regulatory body and that the government recognize this new organization as the single body for the immigration consulting profession.
[4] In May, 2003, the Minister formed a secretariat to work toward implementation of the advisory committee recommendations. On October 8, 2003, a non-share capital corporation - CSIC - was incorporated under Part II of the Canada Corporations Act. Its mandate, pursuant to the letters patent, is to regulate immigration consultants in the public interest and in so doing to establish a code of conduct, a complaint and disciplinary procedure, an educational program, and a compensation fund with respect to acts or omissions of its members.
[5] On October 31, 2003, the Minister issued a press release. It announced his support for CSIC, and his two-fold commitment to having the self-regulatory body operational by April, 2004, and to implementing the necessary changes to the immigration regulations within the same time frame. Canada Citizenship and Immigration (CIC) received approval from Treasury Board for the creation of a new contribution program permitting provision of up to $700,000 to CSIC for the 2003-2004 fiscal year and a conditionally refundable contribution loan of up to $500,000 for the 2004-2005 fiscal year.
[6] CIC officials, during the fall and winter of 2003, worked on the development of new immigration regulations that would limit those persons who represent individuals in immigration proceedings for fees to members in good standing of a provincial or territorial law society and members of CSIC. The proposed regulations were pre-published in the Canada Gazette on December 13, 2003, as was the Regulatory Impact Analysis Statement (RIAS). Comments were invited from interested individuals and groups.
[7] On December 19, 2003, the new Minister of Citizenship and Immigration issued a news release announcing the proposed changes to the regulations and indicating that upon their coming into effect, the government would communicate only with fee-charging immigration representatives who are CSIC members or members of a provincial or territorial law society. A four-year transitional period would apply with respect to applications within the system.
[8] On January 21, 2004, CSIC published an announcement in various Canadian newspapers indicating that immigration consultants were to file an intent to register with CSIC by February 6, 2004, to ensure that the processing of applications for registration would occur by April, 2004. On January 24th, it began accepting intent to register applications from consultants and allowed them until March, 2004, to submit their formal registration package following: payment of the remaining membership fee; purchase of approved errors and omissions insurance of at least $1,000,000; submission of police certificates; execution of a contract with CSIC stipulating agreement regarding adherence to the code of conduct and submission to the complaints and discipline mechanism.
[9] On January 31, 2004, CSIC finalized its criteria for transitional membership and posted the information on its website. For transitional membership, an applicant must: be a Canadian citizen, permanent resident or status Indian; have one year of related work experience as specified or have met certain educational requirements; have successfully passed a test related to ethics and knowledge; provide proof of good character through a police certificate and a statutory declaration attesting to no criminal record in any country or advising as to convictions. Testing was held at various centres in Canada, Dubai and Hong Kong and it continues in Canada.
[10] On April 1, 2004, the regulations were approved by the Governor-in-Council and registered pursuant to section 6 of the Statutory Instruments Act. On April 8th, the final version of the regulations was posted on the CIC website together with the final RIAS. A news release was issued announcing that the regulations would come into force on April 13, 2004. The regulations and the RIAS were published in the Canada Gazette on April 14, 2004.
[11] The plaintiff, International Association of Immigration Practitioners (IAIP), is a Canadian association of immigration consultants founded by Mr. Ramesh Dheer, its current president, and federally incorporated under letters patent on October 4, 1999. It is one of three national organizations of "immigration consultants". The other two are the Association of Immigration Counsel (AICC) and the Organization of Professional Immigration Consultants (OPIC). The plaintiff, Sean Shannon, a nine-year immigration consultant, earns his livelihood by representing clients before the Minister, the Immigration and Refugee Board (IRB) and the Canada Border Services Agency (CBSA). He is a member of the IAIP.
[12] Mr. Dheer was a member of the external advisory committee created to provide recommendations to the Minister on the regulation of immigration consultants. He was not a member of the group that was involved in the plans for implementation of the advisory committee's recommendations. He did not become a member of the CSIC board of directors. IAIP does not have representation on the CSIC board of directors. AICC and OPIC both have such representation.
[13] Throughout the process, the plaintiffs voiced oral and written objections to both CSIC and the Minister regarding the absence of participation by the public and members of the industry and the failure of the government to give fair notice to the industry. The plaintiffs challenged the government's jurisdiction to regulate immigration consultants. On March 3, 2004, the plaintiffs initiated actions in the Ontario Superior Court and in the Federal Court. The only distinction between the proceedings is that CSIC is named as a defendant in the Ontario action, but it is not a defendant in the action in this court.
[14] Without going into a detailed review of the statement of claim, the plaintiffs allegations are that the defendants' process is: ultra vires IRPA and the regulations thereunder; contrary to the constitutional requirements of the rule of law; a public misfeasance, abuse of process and non-existing authority; a pecuniary bias and conflict of interest; a breach of IAIP's and its members sections 7 and 15 Charter rights; a breach of natural justice at common law; an interference with economic interests; an illegal inducement to breach contractual obligations between the plaintiffs and their clients; a conspiracy compensable in law; a breach of the constitutional rights, under the preamble to the Constitution Act, 1867, as well as the plaintiffs' section 7 Charter rights; and a breach of the plaintiffs' rights under subsections 1(a) and (b) of the Canadian Bill of Rights. All of which, it is said, gives rise to general damages of $200,000; aggravated damages of $100,000; punitive damages of $500,000; damages for, among other things, lost revenue; and solicitor-client costs.
[15] On March 5, 2004, the plaintiffs filed a motion in this court returnable at general sittings at Toronto on April 19, 2004, against all defendants (except CSIC) for:
(a) (i) an interim order (in the nature) of prohibition, or stay, restraining CSIC from its announced and purported role as "regulator" and "licensor" of immigration consultants, or "other counsel" under s. 167 of the IRPA and s. 91 of the IRPA, until final disposition of this action;
(ii) an interim order, in the nature of prohibition, or stay, against the Minister and the Minister's officials, and the IRB, from barring "other counsel", pursuant to s. 167 of IRPA and the pronouncement of the Supreme Court of Canada in Mangat, from representing immigration clients before the Minister, the IRB, and the CBSA;
(b) costs of this motion and such further relief as counsel may advise and this Court deems just.
[16] I return now to the motion before me - the motion of CSIC to intervene in the plaintiffs' motion. I note that CSIC seeks leave to intervene only with respect to the plaintiff's motion for interlocutory relief. There is no request in relation to the main action.
ISSUE
[17] Whether CSIC should be granted the right to intervene and if so, to what extent.
ANALYSIS
[18] As noted earlier, the parties agree that CSIC should intervene and I consider that to be a strong indication that the order ought to be granted. Notwithstanding, the decision is a discretionary one and therefore, despite the consent, I must be satisfied that the matter is an appropriate one for intervention. I am so satisfied.
[19] To grant an intervention order, the court must consider the factors delineated in Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220 (F.C.A.):
(l) Is the proposed intervener directly affected by the outcome?
(2) Does there exist a justiciable issue and a veritable public interest?
(3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the court?
(4) Is the position of the proposed intervener adequately defended by one of the parties to the case?
(5) Are the interests of justice better served by the intervention of the proposed third party?
(6) Can the court hear and decide the case on its merits without the proposed intervener?
[20] Not all of the criteria must be met to succeed in becoming an intervener: Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 84 (T.D.) aff'd., [1990] 1 F.C. 90 (F.C.A.). Intervener status will not be denied on the basis that the proposed intervener has been named as a defendant in a parallel action. If the person seeking intervener status has an interest in the outcome of both actions, leave will be granted: C.J.A. v. University of Calgary, [1986] 72 N.R. 249 (F.C.A.). Conversely, intervention should not be permitted where the sole interest of the proposed intervener is jurisprudential in nature in the sense that the outcome of the case may have repercussions in another case: Anderson v. Canadian Customs and Revenue Agency 2003 FCA 352. Where a named defendant in a proceeding cannot adequately defend the interests of the proposed intervener or cannot adequately bring evidence of the effects upon the interests of the proposed intervener, intervener status may be granted: Merck Frosst Canada Inc. v. Minister of Health and National Welfare (1997), 72 C.P.R. (3d) 187 (F.C.T.D.).
[21] It is common ground that CSIC may be directly affected by the outcome of the plaintiffs' motion. Its ability to carry out its mandate could be suspended indefinitely if the plaintiffs were to be successful in their request for interlocutory relief. The challenges advanced by the plaintiffs deal with matters of public importance. In relation to the proposed intervener, the protection of recognized vulnerable members of the public is of particular significance.
[22] The plaintiffs have raised specific issues and allegations against CSIC concerning, among other things: its internal operations, creation, propriety, responsibility and function; its policies, by-laws, rules and forms, and the development thereof; its process in devising and implementing the statutory self-regulating scheme to regulate immigration consultants; its process and deliberation in appointing members to the board of directors; and its interactions, consultations and response from immigration consultants since the implementation of the regulatory scheme. These issues are separate and distinct to CSIC. It has intimate knowledge with respect to information, records and evidence that may respond to the allegations raised against it. The named defendants are not privy to some of the information, records and evidence that could respond to the allegations raised against CSIC and that may assist the court to make a proper determination of the issues on the motion.
[23] Regarding the interests of justice, it appears that the participation of CSIC will assist the court in determining the factual issues related to the proceeding and, in some respects, the legal issues arising therefrom. CSIC is uniquely positioned to address the specific issues and allegations the plaintiffs have raised against it. It is doubtful that the court can fairly determine the motion on its merits without the benefit of a full factual record. The CSIC evidence may directly impact on the issues raised by the plaintiffs. The participation of the proposed intervener, in my view, will assist in enabling the court to make a full and informed determination of the issues. In short, I am satisfied that the proposed intervention will assist in the determination of factual or legal issues related to the proceedings.
[24] What then of the scope of the intervention? There is agreement that CSIC will have the right to file affidavits and that it will also be afforded a right of cross-examination on the affidavits of the parties. I consider that approach to be both practical and sound. However, while the defendants support CSIC's request that it be permitted to present argument regarding all issues, the plaintiffs do not.
[25] The defendants say that the alleged facts and the acts of CSIC provide fodder for the constitutional arguments and the allegations regarding breach of Charter rights. While the defendants will argue the constitutionality issues, a response in relation to the society's actions and the alleged breaches of Charter rights is not possible. It is somewhat like a scrambled egg, say the defendants. There is undoubtedly such a co-mingling of the issues, it would be counter-productive to limit the scope of the legal argument.
[26] CSIC maintains that the facts are inextricably intertwined with the relief sought by the plaintiffs. While it is all well and good to say - limit the participation to the facts - where lies the dividing line? CSIC contends that the statement of claim is replete with allegations of acts and omissions of CSIC and that those allegations are relied upon by the plaintiffs to support their constitutional challenges, including the vires argument. Moreover, CSIC brings a societal interest - the betterment of immigration consulting practices. The government cannot adequately speak to that interest.
[27] The plaintiffs want the participation of CSIC limited to providing factual background. It is said that what the plaintiffs truly seek is relief against the Crown. The plaintiffs' counsel indicated that he would be quite happy to consent to striking any or all of the relief sought against CSIC on the motion. He further expressed consternation at being confronted with a "phantom" Crown. The defendant Crown, it is contended, is the competent and appropriate entity to address the issue of vires. The intervener should nourish the factual record for the benefit of the court and "let the Crown be the Crown". What the intervener is seeking, say the plaintiffs, is party status.
[28] The present situation is anomalous in that normally, when intervener status is granted, the threshold right to present argument follows. Disputes regarding the scope of the intervention usually relate to the rights to lead evidence and to cross-examine. Here, the debate is a reversal of the norm. As noted, all are agreed that CSIC should have the right to present evidence and cross-examine.
[29] I appreciate the plaintiffs' trepidation about being confronted with a "phantom" Crown and their position that the issue of vires is appropriately within the purview of the defendants' expertise. I am also mindful that the plaintiffs have indicated a willingness to strike any relief requested with respect to CSIC (on the motion) although no formal steps in this respect have been taken. I am not convinced that the plaintiffs' proposal would solve the dilemma in any event. The statement of claim, upon which the motion rests, contains allegations of acts and omissions of CSIC from which - and as a result of their interrelationship with - the alleged acts and omissions of the defendants give rise to constitutional and Charter breaches.
[30] Based on the representations of CSIC and the defendants as well as my review of the documentation in preparation for this motion, I am inclined to agree that the facts and issues arising from them are so interrelated that extraction is difficult and may only give rise to further potential difficulties as to which of the arguments is appropriately made by CSIC and which is appropriately made by the defendants.
[31] In American Airlines Inc. v. Canada (Competition Tribunal), [1989] 2 F.C. 88 (F.C.A.). aff'd., [1989] 1 S.C.R. 236, Iacobucci, C.J., as he then was, referred to the widely recognized and accepted principle that courts have an inherent authority or power to permit interventions basically on terms and conditions that they believe are appropriate in the circumstances. Effective and meaningful intervention will not necessarily displace the status of the parties. It is the interests of fairness that must prevail. Those comments remain apposite, provided that they are read in conjunction with Rule 109 of the Federal Court Rules, 1998.
[32] At the end of the day, it is a question of what is fair and what will assist in the determination of the factual or legal issues related to the proceeding. Redundancy does not assist the court. I am not persuaded that the defendants cannot fully protect the interests of CSIC on the vires issue and I see no necessity to receive arguments relative to vires from CSIC. As to the arguments relating to the remaining issues - including constitutional and Charter issues - I agree that the manner in which the plaintiffs have drafted the statement of claim leads to an interrelationship of facts and issues such that they are difficult to separate. Thus, I believe that CSIC should be permitted to present its arguments in this respect and that permitting it to do so will assist the court. However, the caveat is that CSIC has now had the benefit of reviewing the defendants' submissions in relation to the interlocutory matter because those submissions were filed prior to the general sittings on April 19th. CSIC should avoid redundancy and unless it has arguments that supplement those of the defendants, they should not be made.
[33] In the result, an order granting CSIC leave to intervene on the motion for interlocutory relief in the matter herein will issue. CSIC will be permitted to file affidavit evidence and will have rights of cross-examination on the affidavits filed by the parties. CSIC will not be permitted to submit argument on the issue of vires. It will be permitted to present argument with respect to the remaining issues - including constitutional and Charter issues - but must avoid redundancy.
[34] The parties and the intervener have agreed to the following schedule:
(1) The intervener's affidavits and record on motion are to be served and filed by May 5, 2004;
(2) Reply affidavits are to be served and filed by May 7, 2004;
(3) Cross-examinations are to be conducted during the week of May 10th and completed by May 13th;
(4) Compendia, if any, are to be served and filed by May 14, 2004;
(5) The motion for interlocutory relief will be heard at a special siting at Toronto on May 17, 2004, at 9:30 a.m.
[35] There will be no order with respect to costs.
"Carolyn Layden-Stevenson"
J.F.C.
Toronto, Ontario
April 28, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-452-04
STYLE OF CAUSE: INTERNATIONAL ASSOCIATION OF IMMIGRATION PRACTITIONERS (IAIP) and SEAN SHANNON
Plaintiffs
and
HER MAJESTY THE QUEEN, THE MINISTER OF CITIZENSHIP AND IMMIGRATION, MARK DAVIDSON, and JOHNS AND JANES DOE
Defendants
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 19, 2004
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY: Mr. Rocco Galati
FOR THE PLAINTIFFS
Mr. John Callaghan
Mr. Benjamin Na
FOR THE PROPOSED INTERVENORS
Ms. Marianne Zoric
Ms. Catherine Vasilaros
FOR THE DEFENDANTS
SOLICITORS OF RECORD: Galati, Rodrigues, Azevedo & Associates
Toronto, Ontario
FOR THE PLAINTIFFS
Mr. John Callaghan
Mr. Benjamin Na
FOR THE PROPOSED INTERVENORS
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE DEFENDANTS
FEDERAL COURT
TRIAL DIVISION
Date: 20040428
Docket: T-452-04
BETWEEN:
INTERNATIONAL ASSOCIATION OF IMMIGRATION PRACTITIONERS (IAIP)
and SEAN SHANNON
Plaintiffs
and
HER MAJESTY THE QUEEN, THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
MARK DAVIDSON, and JOHNS AND JANES DOE
Defendants
REASONS FOR ORDER