More than 5,500 people who applied for permanent residence under the Immigration Act, which was repealed by Parliament effective June 28, 2002, have instituted proceedings in the Federal Court seeking to compel the Minister of Citizenship and Immigration to assess their applications under the criteria that was in place at the time they filed their applications. The applicants have challenged the retroactive application of the regulations under the Immigration and Refugee Protection Act, which came into force on June 28, 2002.
Transition regulations were enacted at the behest of the House of Commons Standing Committee on Citizenship and Immigration to deal with the situation of the approximately 120,000 people who applied for permanent residence prior to January 1, 2002, the approximate date upon which people had notice of the retroactive imposition of the new Act. Testimony before the committee indicated that the government would be able to process the 120,000-person backlog before March 31, 2003. The most recent evidence from the minister indicated that 104,000 people were still in backlog.
On June 20, 2003, Justice Frederick Gibson of the Federal Court-Trial Division granted the applicants’ motion to restrain the minister from finally rejecting the applications of these 104,000 people who applied before January 1, 2002, pending any further order of the court. The applicants asserted that the minister, through his officials, failed to process the applications in backlog in anything approaching a timely manner, and therefore there existed a strong public interest in favour of relief to the members of the putative class. In determining the balance of convenience, the judge concluded that this argument had merit and that the public interest favoured the members of the putative class over the public interest of the minister in carrying out his current statutory and regulatory obligations in connection with members of the putative class.
The judge also ordered that the minister “forthwith” send out a notice to each of the 104,000 people who could be members in a potential class action advising them of the nature of the legal proceedings in Canada, the status of their visa applications and participation in the proposed class actions.
The applicants/prospective class members were represented by Borden Ladner Gervais LLP, with a team that included Ronald Foerster, Adam Dodek and Benjamin Trister (immigration); by Lorne Waldman of Waldman & Associates; and by Dan Miller in Toronto. The Minister of Citizenship and Immigration was represented by Urszula Kaczmarczyk, Mary-Louise Wcislo, Leena Jaakkimainen and Kevin Lunney of the Department of Justice.
On September 28, 2003, the Minister of Citizenship and Immigration Denis Coderre, announced that he intended to reverse the policy on retroactivity. On October 18, the Government of Canada pre-published amendments to the Immigration and Refugee Protection Regulations, which will now permit applicants for permanent residence who applied before January 1, 2002, to be assessed based on the criteria in place when they applied.