Date: 20050128
Docket: T-1319-04
Citation: 2005 FC 142
Ottawa, Ontario, January 28, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
CHINESE BUSINESS CHAMBER OF CANADA,
GLOBAL IMMIGRATION CONSULTING GROUP INC.,
and TU CUONG ("VICTOR") LE
Plaintiffs
and
HER MAJESTY THE QUEEN,
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
MARK DAVIDSON,
and JOHNS AND JANES DOE
Defendants
and
CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Intervener
REASONS FOR ORDER AND ORDER
[1] On April 13, 2004, regulations came into effect that govern who may represent, advise or consult with persons subject to immigration proceedings or those making immigration applications. Since that date, only lawyers, members of the Chambre des notaires du Québec or members of the Canadian Society of Immigration Consultants (CSIC) may act for a fee in immigration matters.
[2] The moving parties now seek an interim order staying the enforcement of the regulations, so as to prevent the respondents from barring immigration consultants who are not members of CSIC from acting as counsel in immigration matters pending the trial in this matter.
[3] Amongst other arguments, the moving parties say that the new regulations are ultra vires the Immigration and Refugee Protection Act, and that there has been an improper delegation of the legislative function to regulate immigration consultants to a private company, namely CSIC. The moving parties further contend that the fees charged by CSIC constitute unconstitutional taxation, that CSIC has an illegal monopoly and that the process leading up to the creation of CSIC, as well as the regulatory scheme itself, breaches sections 7 and 15 of the Canadian Charter of Rights and Freedoms and other constitutional norms.
Identification of the Parties
a) The Moving Parties
[4] The Chinese Business Chamber of Canada (CBCC) is a private Ontario corporation established to advance the interests of the Chinese business community, in particular, and the Chinese community generally, in Canada. The CBCC has approximately 1,000 members, a small number of whom work as immigration consultants.
[5] Tu Cuong ("Victor") Le is an immigration consultant in the city of Toronto. Mr. Le is the sole officer, director and shareholder of the Global Immigration Consulting Group Inc. (Global). Mr. Le provides services to Global as an immigration consultant. Since August 13, 2004, Mr. Le has been a member of CSIC.
b) The Respondents
[6] The Minister of Citizenship and Immigration (MCI) is responsible for the administration
of the Immigration and Refugee Protection Act.
[7] Mark Davidson is the Executive Director of the Secretariat on Regulating Immigration Consultants established by the MCI. Mr. Davidson is also currently a non-voting member of the Board of Directorsof CSIC, representing the MCI.
[8] The Respondents, "Johns and Janes Doe", are other officials of the MCI whose identities at this time are unknown to the moving parties. They are alleged to be co-tortfeasors, whose names are to be ascertained at a later date.
c) The Intervener
[9] The Canadian Society of Immigration Consultants is a federally incorporated, non-profit
organization established to regulate immigration consultants, in the public interest. CSIC has
approximately 1,400 members, with another 600 applications for membership currently being
processed.
Relevant Statutory Provisions
[10] In order to properly understand the issues involved in this case, it is necessary to be aware of the history of the statutory and regulatory provisions in Canada's immigration law relating to the limitations imposed on those entitled to act in immigration matters.
[11] The starting point in this discussion is section 114 of the former Immigration Act, R.S.C. 1985, c. I-2 (now repealed), which provided that:
s. 114(1) The Governor in Council may make regulations
....
(v) requiring any person, other than a member of the bar of any province, to make application for and obtain a licence from such authority as is prescribed before that person may appear before an adjudicator or the Board as counsel in exchange for any fee, reward or other form of remuneration whatever;
Le gouverneur en conseil peut, par règlement
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v) exiger de quiconque comparaît devant un arbitre ou la Commission en qualité de procureur rétribué sans être membre du barreau d'une province qu'il soit titulaire d'une autorisation délivrée à cet effet par les autorités habilitées à le faire aux termes des règlements;
[12] Notwithstanding that the Immigration Act conferred the statutory power to regulate who could appear before the Immigration and Refugee Board or the Governor in Council, there was evidently some question as to whether the federal government could in fact legislate in this area, or whether this would represent an encroachment on provincial jurisdiction. As a result, no such regulations were ever passed.
[13] In June of 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) came into force. The relevant sections of IRPA provide that:
| s. 5(1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act. .....
s. 91 The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board. ......
s. 167(1) Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.
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Le gouverneur en conseil peut, sous réserve des autres dispositions de la présente loi, prendre les règlements d'application de la présente loi et toute autre mesure d'ordre réglementaire qu'elle prévoit. .....
Les règlements peuvent prévoir qui peut ou ne peut représenter une personne, dans toute affaire devant le ministre, l'agent ou la Commission, ou faire office de conseil. .....
L'intéressé peut en tout cas se faire représenter devant la Commission, à ses frais, par un avocat ou un autre conseil.
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[14] Meanwhile, in 2001, the Supreme Court of Canada rendered its decision in Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113. In Mangat, the Supreme Court determined that while the provinces do indeed have the power to regulate professions, including the legal profession, it is Parliament that has jurisdiction over the areas of immigration and naturalization. Flowing from this is the authority to provide for the powers of immigration tribunals. One of these powers is the power to regulate who may appear before such tribunals.
[15] Mangat went on to determine that in the event that there was a conflict between federal and provincial legislation in this area, the federal legislation would be paramount.
[16] With the jurisdictional question resolved, the Regulations Amending the Immigration and Refugee Protection Regulations, Regulation SOR/2004-59; P.C. 2004-326 came into force on April 13, 2004. The operative portions of these regulations ("the immigration consultant regulations") make the following additions to the Immigration and Refugee Protection Regulations:
| s. 2 "authorized representative" means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003. .....
s. 13.1(1) Subject to subsection (2), no person who is not an authorized representative may, for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.
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"représentant autorisé" Membre en règle du barreau d'une province, de la Chambre des notaires du Québec ou de la Société canadienne de consultants en immigration constituée aux termes de la partie II de la Loi sur les corporations canadiennes le 8 octobre 2003. ......
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| Sous réserve du paragraphe (2), il est interdit à quiconque n'est pas un représentant autorisé de représenter une personne dans toute affaire devant le ministre, l'agent ou la Commission, ou de faire office de conseil, contre rémunération.
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| s. 13.1(2) A person who is not an authorized representative may, for a period of four years after the coming into force of this section, continue for a fee to represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board, if
(a) the person was providing any of those services to the person who is the subject of the proceedings or application on the coming into force of this section; and (b) the proceeding or application is the same proceeding or application that was before the Minister, an officer or the Board on the coming into force of this section.
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Quiconque n'est pas un représentant autorisé peut, pour la période de quatre ans suivant la date d'entrée en vigueur du présent article, continuer de représenter une personne dans toute affaire devant le ministre, l'agent ou la Commission, ou de faire office de conseil, contre rémunération, si les conditions suivantes sont réunies:
a) il agissait à ce titre à l'égard de cette personne à l'entrée en vigueur du présent article; b) l'affaire est la même que celle qui était devant le ministre, l'agent ou la Commission à l'entrée en vigueur du présent article.
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[17] It is these regulations, and the events leading up to the creation of the Canadian Society of Immigration Consultants, that give rise to this litigation.
Background Context
[18] With this understanding of the legislative history, I turn now to the facts and allegations giving rise to this motion.
[19] There has been a long-recognized need to regulate immigration consultants in Canada. Unqualified and unscrupulous consultants have been known to take advantage of vulnerable prospective immigrants and refugees. This is detrimental, not only to the victims of these consultants, but also to Canada's international reputation, as well as her economic and national security interests.
[20] All of the parties in this case agree that immigration consultants should be regulated. What the moving parties object to is how it is being done.
[21] A number of studies have been conducted over the years in order to determine the best way in which to regulate immigration consultants. These studies have resulted in a number of recommendations. By way of example, in November of 1995, the sub-committee established by the Standing Committee on Citizenship and Immigration to examine the issue recommended that the federal government use the power in the Immigration Act to enact regulations prescribing authorities to licence immigration consultants appearing in immigration matters. To this end, the Committee recommended the creation of an independent, self-governing body to licence immigration consultants.
[22] As was noted earlier in this decision, nothing was done in this regard for several years.
[23] On October 3, 2002, in the wake of the Mangat decision, Citizenship and Immigration Canada announced the creation of an external advisory committee to identify specific concerns with respect to the immigration consulting industry, and to recommend solutions to the then Immigration Minister, Denis Coderre. The Advisory Committee was made up of experts in the field, including lawyers, refugee advocates, academics and several immigration consultants.
[24] After extensive consultations with stakeholders, the Advisory Committee submitted its report in May of 2003. Amongst many other recommendations, the Committee recommended the establishment of a statutory, self-regulating body for the regulation of immigration consultants.
[25] On October 8, 2003, CSIC was incorporated. According to its letters patent, the mandate of CSIC was to regulate immigration consultants, in the public interest, and, in so doing, to establish a code of conduct, a complaints and disciplinary process and a compensation fund to protect persons who have sustained losses as a result of the acts or omissions of immigration consultants. CSIC was also mandated to develop national educational programs for immigration consultants.
[26] The four incorporating directors of CSIC were all members of the Advisory Committee established by Minister Coderre. At least one of the original directors was an immigration consultant. Since then, the Board has been expanded to include additional immigration consultants.
[27] A press release issued by the Minister's office on October 31, 2003 announced the incorporation of CSIC, and advised that by April of 2004, CSIC would be in a position to provide protection to vulnerable applicants. On December 19, 2003, a further press release announced proposed changes to the Immigration and Refugee Protection Regulations, which would mandate that the Government of Canada would only communicate with fee-charging representatives if they were members of CSIC or a provincial or territorial law society.
[28] At the same time that the press release was issued, the draft regulations were pre-published, with interested parties being provided 30 days in which to comment on the proposed regulations.
[29] On January 21, 2004, CSIC published an announcement in a number of regional and national newspapers advising that non-lawyer immigration consultants could file an 'intent to register' with CSIC, along with a payment of $500, no later than February 6, 2004, in order to be recognized as a registered consultant at the time that the immigration consultant regulations came into force in April of 2004.
[30] CSIC's by-laws, which contain the details of the regulatory scheme governing immigration consultants, were published on March 29, 2004. On April 1, 2004, the immigration consultant regulations were approved by the Governor-in-Council. The regulations came into force on April 13, 2004.
[31] Since its incorporation, CSIC has set up an office, hired staff, established information technology systems and infrastructures, and a website.
[32] In accordance with its by-laws, CSIC has also developed membership requirements, including a fee structure. As well, it has developed a code of conduct for its members, and a complaints and discipline process. CSIC has established errors and omissions insurance requirements and competency testing programs.
[33] Of the estimated 6,000 - 7,000 immigration consultants in Canada, approximately 1,400 have become "transitional" members of CSIC since April 13, 2004. Transitional members are allowed to represent prospective immigrants and refugees, for a fee. Another 600 or so applications are currently being processed. Once a comprehensive testing process is finalized, transitional members will be examined, and those passing the examination will become full CSIC members.
Mr. Le's Application for CSIC Membership
[34] Mr. Le paid his $500 preliminary registration fee on January 31, 2004, and filed his notice of intent to register on February 21, 2004, thereby completing the first steps in becoming a transitional member of CSIC. He passed the initial competency test on March 22, 2004.
[35] On April 7, 2004, CSIC sent Mr. Le a form for him to complete in order to obtain insurance coverage. Mr. Le paid the balance of his fees and his insurance premiums on April 20, 2004. The following day, Mr. Le was told that he still had to provide CSIC with a number of other documents before his application for membership could be processed.
[36] In May and June of 2004, a number of Mr. Le's clients had their visa applications returned because he was not an "authorized representative" within the meaning of the immigration consultant regulations.
[37] Mr. Le sent some, but not all, of the requested documents to CSIC on June 30, 2004. On July 13, 2004, CSIC sent Mr. Le an e-mail, advising him that his application would not be processed until such time as he had submitted an Errors and Omissions Authorization form, a Statutory Declaration listing his business relationships, and a Statutory Declaration declaring that he had no criminal record, or, alternatively, providing details of any convictions that he might have. Mr. Le was also asked to provide an original RCMP clearance certificate.
[38] On August 6, 2004, Mr. Le provided the requested information by mail. His covering letter indicates that he had previously provided CSIC with a copy of the RCMP clearance certificate, although there is no suggestion in the correspondence that any of the other information sought by CSIC had previously been provided by Mr. Le.
[39] On August 11, 2004, evidently not yet having received Mr. Le's August 6 correspondence, CSIC again e-mailed Mr. Le, reminding him of the documents necessary to complete his application. Mr. Le's August 6 correspondence was received by CSIC the following day.
[40] On August 13, 2004, the day after CSIC received the last of the required documentation from Mr. Le, his application for CSIC membership was approved. Since becoming a member of CSIC, Mr. Le has not encountered any difficulties in his dealings with the federal government on behalf of his clients.
Issues
[41] Although the moving parties initially requested an interim order of prohibition, prohibiting the enforcement of the immigration consultant regulations, this request was abandoned at the hearing.
[42] As a result, the only issue before me is whether the moving parties are entitled to a stay of the enforcement of the regulations, so as to prevent the respondents from barring non-members of the Canadian Society of Immigration Consultants (CSIC) from acting as counsel in immigration proceedings, pending the trial in this matter.
Governing Principles
[43] In RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311, the Supreme Court of Canada confirmed that the test to be used in the context of an application to stay the application of a legislative provision on constitutional grounds is the tripartite test laid down in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110.
[44] The parties agree that, in order to succeed, the moving parties must establish that there is a serious issue to be tried, that irreparable harm will result if the injunction is not granted, and that the balance of convenience favours the granting of the injunction.
Is There a Serious Issue to Be Tried?
[45] The threshold for the serious issue aspect of the tripartite test for an interlocutory injunction is usually not high. Indeed, as the Supreme Court of Canada noted in RJR-MacDonald:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary or desirable. (at para. 50)
[46] There are, however, two exceptions to this principle. The first exception arises where the result of the interlocutory motion will, in effect, amount to a final determination of the action. That is not the case here. The second exception comes into play when a question of constitutionality presents itself as a simple question of law.
[47] In cases which fall within what the Supreme Court of Canada has described as "the extremely narrow confines" of this second exception, the presiding judge will not have to examine the irreparable harm or balance of convenience components of the RJR-MacDonald test, as the constitutional question will be finally determined, and an interlocutory stay would thus be unnecessary: RJR-MacDonald, at para. 55.
[48] In this case, many of the moving parties' submissions have a constitutional basis. In this context, CSIC urges me to take a hard look at the merits of the moving parties' arguments, and to come to a final determination of the merits of the action. According to CSIC, this would avoid CSIC being forced to operate under something of a cloud until such time as the action is finally determined.
[49] It should be noted that this request comes from the intervener, and not from the respondents themselves, who have argued the case on the basis of the traditional RJR-MacDonald approach. While I have given CSIC's request careful consideration, I am not persuaded that this case falls within the second RJR-MacDonald exception, as at least some of the constitutional questions in issue in this case cannot properly be considered to be pure questions of law.
[50] The resolution of a number of the issues raised by the moving parties will depend on a determination of the underlying factual matrix. Some of these facts are in dispute, with many being highly contentious. I will not, therefore, embark on an extensive review of the merits of the moving parties' case.
[51] Instead, for the purposes of this motion, I am prepared to assume, without deciding, that the underlying action raises one or more issues that satisfy the 'serious issue' branch of the tripartite test. The question then is whether the moving parties have satisfied the second and third parts of the RJR-MacDonald test. These questions will each be addressed in turn.
Have the Moving PartiesSatisfied the Irreparable Harm Component of the RJR-MacDonaldTest?
a) Irreparable Harm to Who?
[52] The moving parties submit that in determining whether the denial of the requested stay will result in irreparable harm, I should not limit my consideration to the circumstances of the moving parties themselves, but instead should also consider the harm that will be suffered by would-be immigrants to Canada and by the Chinese business community in Canada, at large. The moving parties further contend that I should also consider the ongoing damage caused by the immigration consultant regulations to the integrity of the Immigration and Refugee Protection Act itself at this stage in the analysis.
[53] In support of this expansive view of the reach of the irreparable harm component of the RJR-MacDonald test, the moving parties cite paragraph 67 of the RJR-MacDonald decision, where the Supreme Court states that it would "reject an approach which excludes consideration of any harm not directly suffered by a party to the application".
[54] The moving parties also rely on the decision of the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 as authority for the proposition that the irreparable harm component of the RJR-MacDonald test can be satisfied by having regard to the harm that will be sustained by non-parties to the action or application. In Toth, in examining whether a stay of removal should be granted in the immigration context, the Court of Appeal considered the harm that would be suffered by members of the applicant's family, by the family business, and by others who were dependent upon the family business for their livelihood.
[55] A review of the RJR-MacDonald decision discloses that the quotation relied upon by the moving parties comes from the portion of the decision wherein the Supreme Court discusses the ambit of the analysis that should be carried out under the balance of convenience head of the tripartite test. In this context, the Court held that in constitutional litigation, both moving parties and respondents ought to be able to rely on considerations of the public interest in their submissions regarding where the balance of convenience lies.
[56] With respect to the question of irreparable harm, what the Supreme Court had to say in RJR-MacDonald was that:
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. [at para. 58] (emphasis added)
[57] While Toth does indeed seem to suggest that a Court can consider the harm that will be suffered by strangers to the litigation under the head of irreparable harm, this suggestion arises in the context of an application to stay a removal from Canada rather than in a constitutional challenge to legislation, whereas RJR-MacDonald involves an attempt to stay the enforcement of regulations on constitutional grounds. As such, RJR-MacDonald is on all fours with the present situation. Further, RJR-MacDonald post-dates Toth, and is a case of higher authority, emanating as it does from the Supreme Court of Canada.
[58] As a result, I am satisfied that at this stage of the analysis, it is incumbent upon the moving parties to demonstrate that they themselves will suffer irreparable harm if the stay is not granted. I will therefore proceed now to examine the situation of each of the moving parties, in turn.
b) Will Mr. Le Suffer Irreparable HarmIf the Stay Is Not Granted?
[59] Mr. Le asserts that he has suffered damage because of what he says were the delays in the processing of his membership application by CSIC. He also claims to have suffered damage to his reputation as a result of his clients having had their visa applications returned because he was not a member of CSIC at the time that the applications were submitted. According to Mr. Le, this has resulted in a diminution in the number of referrals that he receives. This, he says, constitutes irreparable harm.
[60] While the immigration consultant regulations came into effect on April 13, 2004, Mr. Le did not become a member of CSIC until some four months later. To the extent that Mr. Le may have suffered damage to his reputation as a result of his unsuccessful attempts to file new visa applications prior to becoming a member of CSIC, an examination of the record discloses that Mr. Le was, to a large extent, the author of his own misfortune in that he did not provide CSIC with all of the necessary documents to complete his application until mid-August. Indeed, within 24 hours of satisfying the application requirements, Mr. Le was accepted as a transitional member in CSIC.
[61] It should also be noted that while Mr. Le asserts that he has suffered damage to his reputation and his business as a result of his clients having had their visa applications returned, he has not provided any financial statements or other evidence to back up this claim.
[62] There is a further difficulty with Mr. Le's argument. In order to be entitled to a stay, an applicant must establish that irreparable harm will occur between the time of the motion for the stay and the time at which the matter is finally disposed of: Butterfield v. Attorney General of Canada, 2005 FC 19; [2005] F C.J. No. 37, and Bandzar v. Canada (Minister of Citizenship and Immigration), (2000), 186 F.T.R. 148.
[63] Even if I were to accept that Mr. Le has suffered damage to his reputation and attendant financial harm, any damage to Mr. Le in this regard has already been done. At this point, Mr. Le is a member of CSIC, and he can now continue to represent individuals in immigration matters. It is therefore difficult to see how the damage that Mr. Le says that he has suffered would be alleviated if the stay were granted.
[64] Although Mr. Le did not say this in either his affidavit or his cross-examination, his counsel argues that Mr. Le would somehow be vindicated in the Chinese community if a stay were granted. Not only does this argument lack an evidentiary foundation, it is also speculative. Proof of irreparable harm must be clear and not speculative: Nature Co. v. Sci-Tech Educational Inc., (1992) 41 C.P.R. (3d) 359 at 367.
[65] As a result, Mr. Le has not persuaded me that he will suffer irreparable harm if the stay is not granted.
c) Will Global Suffer Irreparable HarmIf the Stay Is Not Granted?
[66] As a corporation, Global is not itself subject to the Immigration and Refugee Protection Act or the immigration consultant regulations, nor is it eligible for membership in CSIC. The harm that Global alleges that it will suffer if the stay is not granted is the same harm alleged by Mr. Le.
[67] Mr. Le is Global's sole officer, director and shareholder, and the only immigration consultant providing services to the company. Although it has an independent legal status, Global is, for all intents and purposes, Mr. Le's alter ego. As a result, all of my comments in the preceding section apply to Global, and I find that it has not established that it will suffer irreparable harm if the stay is not granted.
d) Will the CBCC Suffer Irreparable HarmIf the Stay Is Not Granted?
[68] This leaves the CBCC. Like Global, the CBCC is not subject to the Immigration and Refugee Protection Act or the immigration consultant regulations, nor is it eligible for membership in CSIC. Unlike Global, the CBCC is not even directly involved in immigration consulting. Rather, some of the CBCC members act as immigration consultants.
[69] According to the evidence of Sean Hu, CBCC's President, the CBCC has approximately 1,000 members. Of these, Mr. Hu says some 30-35 are involved in immigration consulting, although only Mr. Le and Mr. Hu have been identified by name. However, the Affidavit of Mark Davidson indicates that on the CBCC's web page dealing with "Member's Businesses", only two people list immigration consulting as their area of business. It is not, however, necessary to resolve this conflict in the evidence at this stage of the proceedings.
[70] As I understand the CBCC's argument, it says that it will suffer irreparable harm if the stay is not granted because those of its members who are engaged in immigration consulting are losing money as a result of the introduction of the immigration consultant regulations.
[71] I have already decided that the moving parties must demonstrate that they themselves will suffer irreparable harm if the stay is not granted, and that harm to third parties is not relevant at this stage in the analysis. Insofar as the CBCC itself is concerned, Mr. Hu testified on his cross-examination that no one has dropped out of the CBCC as a consequence of the coming into force of the immigration consultant regulations. Assuming, therefore, without deciding, that the CBCC has standing to challenge the immigration consultant regulations, given that it is not directly affected by them, I find that the CBCC has not established that it will suffer irreparable harm if the stay is not granted.
[72] Having found that the moving parties have not established that they will suffer irreparable harm if the requested stay is not granted, it is not, strictly speaking, necessary to address the third component of the RJR-MacDonald test. Nevertheless, in the interests of completeness, I will also examine where the balance of convenience lies.
Where Does the Balance of Convenience Lie?
a) Governing Principles
[73] In Metropolitan Stores (previously cited), the Supreme Court discussed this third branch of the test as requiring "a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits." (at p.129, per Beetz J.).
[74] In weighing the balance of convenience in cases involving constitutional challenges to legislation, special attention has to be paid to the public interest. As the Ontario Court of Justice noted in Ainsley Financial Corp. v. Ontario Securities Commission (1993), 14 O.R. (3d) 280:
Interlocutory injunctions involving a challenge to the constitutional validity of legislation or to the authority of a law enforcement agency stand on a different footing than ordinary cases involving claims for such relief as between private litigants. The interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of private litigants. (at p. 303-4; cited with approval in RJR-MacDonald, supra, at para. 64).
[75] The government does not have a monopoly on the public interest: it is open to both sides in the dispute to rely upon public interest considerations. In this context, "public interest" includes the concerns of society as a whole, as well as the specific interests of identifiable groups: RJR-MacDonald, at paras. 65 and 66.
[76] That is, it is in the context of the balance of convenience analysis that the Court can properly consider the effect that granting or not granting the stay will have on those not directly involved in the litigation. A careful balancing of these interests is required.
[77] In Harper v. Canada (Attorney General) [2000] 2 S.C.R. 764, the Supreme Court stated that it is not necessary for the government to demonstrate that an impugned law will produce a public good. This is presumed at this stage of the proceeding.
[78] As the Supreme Court stated in RJR-MacDonald :
[The balance of convenience] test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. [at para. 71]
[79] Thus, where a party seeks to stay legislation enacted to protect the public, the public interest will weigh heavily in favour of denying the injunction. It will only be in the clearest of cases that a court will grant an interlocutory injunction against the enforcement of a law on the grounds of alleged unconstitutionality: Harper, at para. 9.
b) Analysis
[80] The moving parties argue that the status quo should be maintained pending the trial of this action. According to the moving parties, the status quo means the non-regulation of immigration consultants.
[81] In this regard, the moving parties argue that the issue of the regulation of immigration consultants has been debated for some 20 years, yet CSIC was created and the immigration consultant regulations enacted with undue haste. The CSIC licencing scheme is not yet fully up and running at this stage, with only transitional CSIC memberships having been granted. The core proficiency examination for CSIC members will not be held until before June of 2005, at the earliest.
[82] Against this must be considered the damage that will be suffered by immigration consultants who may be competent and reputable, but are nonetheless unable to meet the CSIC membership requirements, whether by reason of their limited ability to speak either French or English, or because they are neither Canadian citizens nor permanent residents.
[83] The immigration consultant regulations will also unduly limit the choices available to would-be immigrants to Canada, the moving parties say, to the detriment of both the individuals in question and to the Canadian economy as a whole.
[84] According to the moving parties, if the immigration consultant regulations are allowed to continue to operate pending the trial of this matter, the administration of justice will be brought into disrepute.
[85] Finally, the moving parties say that the damage that is being done by the immigration consultant regulations is wholly disproportionate to what has been accomplished to date with respect to the regulation of immigration consultants. As a result, the moving parties submit that the balance of convenience clearly favours the granting of a stay.
[86] The burden is on the moving parties to demonstrate the public interest benefits that will flow from the granting of the relief sought: North of Smokey Fishermen's Assn, v. Canada (Attorney General) (2003), 229 F.T.R. 1 at para. 24. In my view, the evidence before the Court falls far short of establishing a public interest benefit of sufficient magnitude as to tip the balance of convenience in favour of the moving parties.
[87] Those would-be refugees and immigrants who had immigration consultants acting for them at the time that the immigration consultant regulations came into force will not be negatively affected by the regulations. The transitional provisions of the regulations permit consultants who are not members of CSIC to continue to act on applications submitted before the regulations came into force for another four years.
[88] Insofar as would-be immigrants and refugees seeking to make claims after April 13, 2004 are concerned, CSIC now has approximately 1,400 members, with another 600 applications for membership currently being processed. There is no evidence before me of any would-be immigrants who have been unable to find an immigration consultant to assist them with their cases.
[8] Although Mr. Hu testified as to his belief that enactment of the immigration consultant regulations amounted to an attempt to drive Chinese immigration consultants out of business, there is no evidence before me of any Chinese immigration consultant having been refused membership in CSIC. Nor is there any hard evidence before me as to how many immigration consultants there are - Chinese or otherwise - who will be unable to meet CSIC's membership criteria, and who will, therefore, be put out of business by the regulations. The moving parties have therefore failed to demonstrate that this is a wide-ranging problem.
[90] The moving parties' argument that the administration of justice will be brought into disrepute if the immigration consultant regulations are allowed to continue to operate pending the trial of this matter is predicated on a conclusion of law regarding the legality of the immigration consultant regulations - a conclusion that is not yet proven.
[91] The immigration consultant regulations are aimed at the protection of vulnerable persons and the preservation of the integrity of the immigration process, both of which are clearly in the public interest. Indeed, all of the parties agree that regulation in this area is both necessary and long overdue.
[92] An interlocutory injunction against the enforcement of a law on the grounds of alleged unconstitutionality should only be granted in the clearest of cases. At this stage in the process, the immigration consultant regulations must be presumed to be producing a public good. There is evidence before me as to the considerable progress that has been made by CSIC in the regulation process, which will be disrupted if the stay is granted. It follows, therefore, that the public interest would be harmed if the enforcement of the regulations is stayed.
[93] In my view, these considerations significantly outweigh any potential harm identified by the moving parties. Accordingly, I find that the balance of conveniencefavours the respondents.
Conclusion
[94] Even if I assume for the purposes of this motion that the moving parties have raised one or more serious issues, they have not satisfied the irreparable harm component of the tripartite test, nor have they persuaded me that the balance of convenience favours the granting of a stay of the enforcement of the immigration consultant regulations.
[95] For these reasons, the motion is dismissed.
ORDER
THE COURT THEREFORE ORDERS THAT:
1. This motion for an interlocutory injunction is dismissed; and
2. Each party shall have two weeks to serve and file their submissions in writing regarding costs. The parties will each then have one further week in which to serve and file any reply submissions.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1319-04
STYLE OF CAUSE: CHINESE BUSINESS CHAMBER OF CANADA,
GLOBAL IMMIGRATION CONSULTING GROUP
INC., and TU CUONG ("VICTOR") LE
Plaintiffs
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HER MAJESTY THE QUEEN, THE MINISTER OF CITIZENSHIP AND IMMIGRATION, MARK DAVIDSON, and JOHNS AND JANES DOE
Defendants
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CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Intervener
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 12-13, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: JANUARY 28, 2005
APPEARANCES BY:
Mr. Rocco Galati FOR THE PLAINTIFF
Ms. Marianne Zoric
Ms. Catherine Vasilaros FOR THE DEFENDANT
Mr. John Callaghan
Mr. Benjamin Na FOR THE INTERVENER
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SOLICITORS OF RECORD:
Mr. Rocco Galati
Toronto, Ontario FOR THE PLAINTIFF
Mr. John H. Simms, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE DEFENDANT
Gowling Lafleur Henderson, LLP
Toronto, Ontario FOR THE INTERVENER