Date: 19980318
Docket: IMM-2294-96
IMM-2296-96
IMM-2297-96
BETWEEN:
AB CAPITAL CORPORATION, KLC CAPITAL CORPORATION LIMITED,
MOUNT ROYAL CAPITAL CORPORATION, PEI GROWTH
FUND CORPORATION, KLC MANAGEMENT LTD.,
MTR MANAGEMENT CORPORATION AND
PEI GROWTH MANAGEMENT CORPORATION LTD.
Applicants
- AND -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] Before me is a motion by the applicants for leave to broaden the grounds of their applications for judicial review so as to include administrative bias, for leave to make, file and serve a further affidavit by Paul R. Salewski, and to strike out the affidavit of David Webber, sworn on July 4, 1997.
[2] Before discussing the issues which are before me, a few words concerning the applications for judicial review are necessary. These applications arise as follows. Many of the applicants are funds which the Minister of Citizenship and Immigration (the "Minister") approved in the context of the Immigrant Investor Program set up pursuant to the Immigration Regulations , SOR/78-172. The other applicants are the managers of the funds approved by the Minister. By reason of the Minister"s approval, the funds were required by the Regulations to invest minimum amounts in the active business operations of two or more eligible Canadian businesses. In March 1996, the Minister suspended approval of the funds because two of the funds had not made the investments required by the Regulations. The prior approvals of the other funds, as related funds, were also suspended. The applicants reorganized their investments in an attempt to bring themselves back in line with the statutory requirements. The Minister however found that the applicants continued to be in a state of non-conformity. By their applications for judicial review, the applicants attack, inter alia , the Minister"s decision to suspend approval of the funds and the Minister"s refusal to reinstate the suspended funds.
[3] I begin with that part of the motion which seeks to strike the affidavit of David Webber sworn on July 4, 1997. On February 17, 1997, a first affidavit of David Webber, sworn on February 14, 1997 (the "Webber affidavit"), was filed by the respondent in response to the applications for judicial review.
[4] The applicants challenged the Webber affidavit sworn on February 14, 1997 and, as a result, Pinard J., on March 7, 1997, struck paragraphs 10 to 20, 24, 56, 61 and 83 "on the grounds that they are essentially argumentative in that they contain mere statements of the law, legal opinion or both".
[5] In response to the Webber affidavit, the applicants filed the affidavit of John M. Scott sworn on March 21, 1997. The Scott affidavit was challenged by the respondent and, on May 20, 1997, MacKay J. ordered that paragraphs 5, 6, 8, 9, 11, 13 and 14 thereof be struck. By his order, MacKay J. allowed the applicants to file and serve further and better affidavits in response to matters raised by David Webber in his affidavit. Further, MacKay J. allowed the respondent to file and serve further and better affidavits in reply to whatever affidavits the applicants would file.
[6] Pursuant to the Order of MacKay J., the applicants filed the affidavits of Marlene Bell sworn on June 18, 1997, and of Brian Rogers, sworn on June 13, 1997. The respondent then filed a second affidavit of David Webber in reply.
[7] In my view, the second affidavit of David Webber should be struck in its entirety. Firstly, the affidavit does not constitute a reply to the affidavits of John M. Scott, Marlene Bell and Brian Rogers. Rather, it is my view that the second Webber affidavit is an attempt to redraft certain paragraphs of the first affidavit which Mr. Webber and the respondent now believe deserve greater emphasis.
[8] Secondly, the second Webber affidavit is mostly argumentative. This is quite obvious when one reads, for example, paragraphs 46 and 47 where Mr. Webber deals with the affidavits of Brian Rogers and Marlene Bell. Other paragraphs in the second Webber affidavit simply constitute Mr. Webber"s opinion on certain matters.
[9] I am therefore of the view that all of Mr. Webber"s affidavit sworn on July 4, 1997 should be struck.
[10] With respect to that part of the applicants" motion which seeks leave to file the affidavit of Paul Salewski, counsel for the applicant conceded during the hearing that if I concluded that the second Webber affidavit should be struck from the record, then the applicants should not be allowed to file and serve a further affidavit of Paul Salewski. I agree.
[11] I now turn to the last issue. The applicants seek to add a claim of administrative bias to the grounds already raised in their applications for judicial review. For this part of their motion, the applicants rely, inter alia, on the affidavit of Mr. Robert Fu sworn on January 21, 1998.
[12] In alleging bias, the applicants" position is that certain officials of the Department of Citizenship and Immigration Canada ("CIC") who participated, directly or indirectly, in the Minister"s decision to suspend approval of the funds had ulterior motives. In his affidavit, Mr. Fu sets forth the reasons why he believes that there existed bias on the part of these officials. Specifically, Mr. Fu states that Brent Hamel, Guy Pilot and John Martin, now work for private funds which compete with the applicant funds. Further, Mr. Fu states that CIC officials described the applicant funds as "high risk" simply to cause difficulty to the applicant funds "by delaying and impeding the evaluation of the immigration applications of investors in such funds".
[13] Simply put, Mr. Fu alleges that the approvals of the two funds were suspended not because CIC officials believed that suspension was the proper determination on the facts before them, but rather by considerations which had as their purpose the advancement of their personal careers.
[14] I agree entirely with counsel for the respondent that there is no evidence before me to support such allegations. Obviously, the applicants do not have, at this stage of the proceedings, the burden of satisfying me on a balance of probabilities. However, they must adduce some evidence to convince me that it would be fair in the circumstances to allow them to add a further ground to their applications for judicial review. I have not been so persuaded. It is quite clear on the record why the approvals of the applicant funds were suspended. After the initial suspension, the two funds conceded that they had not, in fact, made the investments required by the Regulations. The debate raised by the judicial review applications concerns primarily the Minister"s decision not to reinstate the funds. The affidavits which have already been filed by both sides address that debate. In my view, the applicants" attempt to add this new ground is simply a fishing expedition. I will not allow it.
[15] Consequently, that part of the application shall be denied.
"MARC NADON"
Judge
Ottawa, Ontario
March 18, 1998.