Date: 20000331
Dockets: IMM-2294-96
IMM-2296-96
IMM-2297-96
BETWEEN:
ATLANTIC PRUDENCE FUND CORPORATION,
ATLANTIC GROWTH FUND CORPORATION LIMITED,
AB CAPITAL CORPORATION,
KLC CAPITAL CORPORATION LIMITED,
MOUNT ROYAL CAPITAL CORPORATION,
PEI GROWTH FUND CORPORATION,
ATLANTIC PRUDENCE MANAGEMENT CORPORATION,
GRT MANAGEMENT CORPORATION,
ABT MANAGEMENT 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
DAWSON, J.
[1] Before me is a motion by the applicants for leave to amend the notices of application so as to seek declaratory relief in lieu of mandamus and to add to the grounds of their applications for judicial review allegations that the Minister took into account irrelevant considerations and made her decision in bad faith and for purposes not contemplated by the Immigration Act (R.S.C. 1985, c. I-2) or Regulations. The applicants also request that the proceeding be managed as a specially managed proceeding and that the Court set a timetable for the continuation of the proceeding.
[2] The respondent agrees that the applicants ought to be permitted to amend the notices of application to claim declaratory relief but opposes any amendment to the grounds.
[3] The respondent consents to an order that the proceeding be specially managed and that the Court impose a timetable on the proceeding as proposed by the applicants in Schedule B to the notice of motion, with some minor alterations.
[4] The applicants previously brought a motion to broaden the grounds of their applications to include allegations of administrative bias. That motion was heard by Justice Nadon who dismissed the motion (AB Capital Corp. v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm.L.R. (2d) 150 (F.C.T.D.)).
[5] In dismissing the motion Justice Nadon found that there was no evidence before him to support the allegations which the applicants sought to add. He stated, at paragraph 14 of his reasons:
| 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 it would be fair in the circumstances to allow them to add a further ground to their applications for judicial review. |
[6] Since that motion was brought the applicants have received documentation relevant to this proceeding pursuant to requests made under the Access to Information Act (R.S.C. 1985, c. A-1). Further, two individuals associated with some of the applicants were charged with a criminal offence and a preliminary hearing was held into the charge. Additional documents were disclosed in the preliminary inquiry.
[7] Accordingly in support of this motion to amend the pleadings the applicants put before the Court evidence not available when the earlier motion was made. As well, the amendments now sought are different in substance to that previously considered by the Court.
[8] A notice of application may be amended at any time. The governing principle is that in the absence of prejudice to the opposing party amendments should be allowed if they will assist in determining the real issues between the parties: Scottish & York Insurance Co. v. Canada, [1999] F.C.J. No. 277, Court File No. A-34-98, decision dated March 1, 1999 (F.C.A.).
[9] To this I would add, as stated by Justice Nadon in the earlier proceeding involving the parties, that the applicants must adduce some evidence to convince the Court that it would be fair in the circumstances to allow them to add a further ground to their applications for judicial review.
[10] I have concluded that there is now some evidence to convince the Court that it is fair to allow the applicants to amend their applications. This includes evidence of the dissemination of rumours by representatives of the Minister around the time of the decisions which are the subject of this proceeding to the effect that one of the persons associated with the applicants had attempted to bribe an official of the respondent and that two of the persons associated with the applicants were connected with the Triad, a Chinese organized crime organization. There is also evidence of an e-mail sent at about the same time by an official of the Ministry responsible for the administration of the Immigrant Investor Program to a Director-General which suggested a course of action which ". . . would be far more effective, in our opinion, and would be more likely to hurt the group where it really hurts".
[11] I have not considered the evidence contained in Exhibit 1 to the affidavit of Mr. Stratas, filed in support of the motion. At the commencement of the hearing of the motion the respondent made a preliminary objection to the admissibility of the evidence. For reasons given during the hearing I ordered that Exhibit 1 be struck.
[12] In the light of the evidence now before the Court and the absence of any evidence adduced by the respondent as to prejudice, I conclude that leave should be given to the applicants to amend the applications as they seek.
[13] I have given careful consideration as to whether or not any terms should be imposed on the granting of the amendments. The respondent sought a term that after service upon her of the evidence to be filed in support of the amended application she be given the right, if so advised, to make an unopposed application to have the proceeding treated and proceeded with as an action as provided in section 18.4(2) of the Federal Court Act (R.S.C. 1985, c. F-7). The respondent sought this form of protective order as at present she is not in a position to assess whether or not the evidence to be adduced in support of the allegations is such that issues of credibility will be raised so that the matter, in fairness, should be decided on the basis of the viva voce evidence.
[14] Until the evidence to be adduced in support of the applications is available it is not possible for anyone to determine whether or not it is appropriate that the matter proceed by way of action. In that circumstance I am not prepared to make it a term of granting leave to amend that the applicants not oppose a motion brought to have the applications treated as an action.
[15] In the result, leave is given to amend the notices of application so as to conform to the form set out in the Schedules A, B and C attached to the notice of motion filed herein.
[16] It is ordered that the proceeding be specially managed.
[17] It is also ordered that the matter proceed on the timetable set forth in Schedule B to the notice of motion, save that in items 1 and 2 each party will have eight weeks to file and serve their affidavits and documentary exhibits.
[18] There remains extant on the Court file a motion filed by the respondent on June 5, 1998 by which the respondent requested an order of the Court to set a timetable for the steps required. This order will dispose of that motion.
[19] Counsel for the applicants is within ten days of delivery of these reasons to prepare a draft order incorporating the matters set out herein which order, within that time, is to be circulated to counsel for the respondent for consent as to form and filing. If counsel are unable to agree, the terms of the order may be spoken to.
OTTAWA, Ontario
March 31, 2000
Judge