Dragan v. Canada (Minister of Citizenship and Immigration), (2003) 227 F.T.R. 272 (TD)

JudgeKelen, J.
CourtFederal Court (Canada)
Case DateFebruary 21, 2003
JurisdictionCanada (Federal)
Citations(2003), 227 F.T.R. 272 (TD)

Dragan v. Can. (M.C.I.) (2003), 227 F.T.R. 272 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. MR.005

Laurentiu Dragan (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3020-02; 2003 FCT 211)

Indexed As: Dragan v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Kelen, J.

February 21, 2003.

Summary:

On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into force and repealed the Immigration Act. Transitional regulations enacted under the IRPA extended the time to process permanent residence (economic class) applications filed before January 1, 2002, to March 31, 2003. 102 applicants who applied for permanent residence before January 1, 2002, sought mandamus to have their applications assessed under the old Immigration Act and regulations or to have their applications assessed prior to March 31, 2003, fearing that they would not qualify for permanent residence under the new legislation. Also for the same reason, 22 applicants who had applied for permanent residence under the Immigration Act between January 1 and June 28, 2002, sought mandamus to have their applications assessed under the old legislation. The 124 applications were consolidated.

The Federal Court of Canada, Trial Division, granted a writ of mandamus respecting the 102 applicants who applied for permanent residence before January 1, 2002, requiring the Minister to assess them in accordance with the old Act and regulations on or before March 31, 2003. The applications for judicial review respecting those applicants who filed between January 1 and June 28, 2002 were dismissed. The court cautioned that "this Court proceeding only applies to the applications which are the subject of this consolidated application. The parties have worked hard over the past five months to have these cases heard before March 31, 2003. At this point, it is too late for the court to consider before March 31, 2003 any new applications for a writ of mandamus with respect to the remaining 80,000 to 120,000 visa applications filed before January 1, 2002".

Aliens - Topic 3

Definitions and general principles - Legislation - Transitional provisions - General - On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into force and repealed the Immigration Act - Transitional provisions were included in the IRPA regulations - The Federal Court of Canada, Trial Division, stated that the "the [new] regulations, in full compliance with the authorizing section of the Act (s. 201), make certain transitional exceptions from the general retrospective regime. These exceptions only apply to applications filed before January 1, 2002. In particular, s. 361(3) provides that, until March 31, 2003, units of assessment shall be awarded to economic class applicants who applied before January 1, 2002 in accordance with the former Regulations. Section 361(5) provides that, beginning from April 1, 2003, such applicants will be assessed under the new Regulations but will have to obtain a minimum of 70 points (as opposed to the general pass-mark of 75) to qualify in the federal skilled worker class. In my opinion, these provisions clearly express the intent of the Governor-in-Council to apply the new selection system to all applicants before January 1, 2002 who have not been assessed prior to April 1, 2003, with the concession that applicants who applied before January 1, 2002 will be given a 5 point bonus under the new system." - See paragraph 36.

Aliens - Topic 3

Definitions and general principles - Legislation - Transitional provisions - General - On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into force and repealed the Immigration Act - Transitional provisions were set out in s. 361 of the IRPA regulations, respecting, inter alia, pending permanent residence (economic class) applications - The Federal Court of Canada, Trial Division, interpreted s. 361 - The court held that s. 361 was validly authorized retrospective legislation and should operate according to its terms - The court stated that this meant that economic class applications filed after January 1, 2002, were to be assessed under the new Regulations, and applications filed before January 1, 2002 would be assessed under the old regulations up until March 31, 2003 - See paragraphs 32 to 37.

Aliens - Topic 3

Definitions and general principles - Legislation - Transitional provisions - General - On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into force and repealed the Immigration Act - Transitional regulations enacted under the IRPA extended the time to process permanent residence (economic class) applications filed before January 1, 2002, to March 31, 2003 - 102 applicants who applied for permanent residence before January 1, 2002, sought to have their applications assessed under the Immigration Act and regulations or to have their applications assessed prior to March 31, 2003, fearing that they would not qualify for permanent residence under the new legislation - The Federal Court of Canada, Trial Division, granted mandamus and ordered the Minister of Citizenship and Immigration and his officers to award units of assessment for these applicants in accordance with the former regulations on or before March 31, 2003 - Under the transitional provisions of the new legislation, the Minister had an implied duty to use his reasonable best efforts to assess pre-January 1, 2002, applications before March 31, 2003 - The evidence established that the Minister made no such effort and treated the outstanding applications as if there was no looming deadline - The court cautioned that its decision applied only to these 102 applicants - See paragraphs 1 to 66.

Aliens - Topic 3

Definitions and general principles - Legislation - Transitional provisions - General - On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into force and repealed the Immigration Act - Transitional regulations enacted under the IRPA extended the time to process permanent residence (economic class) applications filed before January 1, 2002, to March 31, 2003 - 22 applicants who applied for permanent residence under the Immigration Act between January 1 and June 28, 2002, sought to have their applications assessed under the former legislation, fearing that they would not qualify under the new legislation - The Federal Court of Canada, Trial Division, dismissed these applications based on its interpretation of the transitional regulations under the IRPA - The court held that applications filed after January 1, 2002 were to be assessed under the new Regulations - See paragraph 37.

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class (incl. skilled workers) - [See all Aliens - Topic 3 ].

Statutes - Topic 6711

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Regulations - [See second Aliens - Topic 3 ].

Cases Noticed:

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241; [1989] 3 W.W.R. 456; 57 D.L.R.(4th) 458; 65 Alta. L.R.(2d) 97; 35 Admin. L.R. 1, refd to. [para. 33].

Upper Canada College v. Smith (1920), 61 S.C.R. 413, refd to. [para. 33].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 34].

Chen v. Canada (Secretary of State) (1995), 91 F.T.R. 76 (T.D.), refd to. [para. 37].

Tsiafakis v. Minister of Manpower and Immigration (1977), 15 N.R. 39; 73 D.L.R.(3d) 139 (F.C.A.), refd to. [para. 38].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 39].

Bhatnager v. Minister of Employment and Immigration and Canada (Secretary of State for External Affairs), [1985] 2 F.C. 315 (T.D.), refd to. [para. 49].

Dee v. Canada (Minister of Citizenship and Immigration) (1998), 46 Imm. L.R.(2d) 278 (T.D.), refd to. [para. 50].

Conille v. Canada (Ministre de la Citoyenneté et de l'Immigration), [1999] 2 F.C. 33; 159 F.T.R. 215 (T.D.), refd to. [para. 51].

Platonov v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 260 (T.D.), refd to. [para. 52].

Bouhaik v. Canada (Ministre de la Citoyenneté et de l'Immigration, [2001] F.T.R. Uned. 482, refd to. [para. 53].

Kanes v. Canada (Minister of Citizenship and Immigration) (1993), 72 F.T.R. 226 (T.D.), refd to. [para. 57].

Meikle v. Canada (Minister of Citizenship and Immigration) (1993), 137 F.T.R. 304 (T.D.), refd to. [para. 57].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3(1)(f), sect. 5 [para. 7]; sect. 11(1) [para. 43]; sect. 190 [para. 8]; sect. 201 [para. 9].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 361(1) [para. 11].

Counsel:

Timothy Leahy, David Rosenblatt, Marvin Moses, Lawrence Wong and Mitchell Brownstein, for the applicant;

Leena Jaakkimainen, Daniel Latulippe, Keith Reimer and Brad Gotkin, for the respondent.

Solicitors of Record:

Immigration North America, Toronto, Ontario, Rosenblatt Associates, Toronto, Ontario, Moses and Associates, Toronto, Ontario, Chang and Boos, Toronto, Ontario, Brownstein, Brownstein and Associates, Montreal, Quebec, Bohbot and Associates, Montreal, Quebec and Lawrence Wong and Associates, Vancouver, British Columbia, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on February 4 and 5, 2003, at Toronto, Ontario, before Kelen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on February 21, 2003.

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29 practice notes
  • Jia v. Canada (Minister of Citizenship and Immigration), (2014) 457 F.T.R. 73 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • June 4, 2014
    ...F.C. 33 ; 159 F.T.R. 215 (T.D.), refd to. [para. 69]. Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 ; 227 F.T.R. 272; 2003 FCT 211 , dist. [para. Vaziri v. Canada (Minister of Citizenship and Immigration) (2006), 300 F.T.R. 158 ; 2006 FC 1159 , refd to.......
  • Paszkowski v. Canada (Attorney General) et al., 2006 FC 198
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • November 15, 2005
    ...144 A.C.W.S.(3d) 375; 2005 FC 1659, consd. [para. 90]. Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189; 227 F.T.R. 272; 2003 FCT 211, refd to. [para. Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315; 35 A.C.W.S.(2d) 253 (T.D.), refd to. [p......
  • Godinez Ovalle v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AU.014
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • July 8, 2015
    ...to removal order) - [See Administrative Law - Topic 3503 ]. Cases Noticed: Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 227 F.T.R. 272; 2003 FCT 211, refd to. [para. 14]. Stanizai v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 188; 2014 FC 74, r......
  • Farzam v. Canada (Minister of Citizenship and Immigration), (2005) 284 F.T.R. 158 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • November 7, 2005
    ...Yorkshire, [1989] A.C. 53 (H.L.), refd to. [para. 93]. Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189; 227 F.T.R. 272; 2003 FCT 211, refd to. [para. Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.), refd to. [para. 97]. A.O. Farms ......
  • Request a trial to view additional results
29 cases
  • Jia v. Canada (Minister of Citizenship and Immigration), (2014) 457 F.T.R. 73 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • June 4, 2014
    ...F.C. 33 ; 159 F.T.R. 215 (T.D.), refd to. [para. 69]. Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 ; 227 F.T.R. 272; 2003 FCT 211 , dist. [para. Vaziri v. Canada (Minister of Citizenship and Immigration) (2006), 300 F.T.R. 158 ; 2006 FC 1159 , refd to.......
  • Paszkowski v. Canada (Attorney General) et al., 2006 FC 198
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • November 15, 2005
    ...144 A.C.W.S.(3d) 375; 2005 FC 1659, consd. [para. 90]. Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189; 227 F.T.R. 272; 2003 FCT 211, refd to. [para. Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315; 35 A.C.W.S.(2d) 253 (T.D.), refd to. [p......
  • Godinez Ovalle v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AU.014
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • July 8, 2015
    ...to removal order) - [See Administrative Law - Topic 3503 ]. Cases Noticed: Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 227 F.T.R. 272; 2003 FCT 211, refd to. [para. 14]. Stanizai v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 188; 2014 FC 74, r......
  • Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • September 5, 2006
    ...3 S.C.R. 1100 ; 176 N.R. 1 , refd to. [para. 38]. Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 ; 227 F.T.R. 272, supplementary reasons 228 F.T.R. 52 (T.D.), affd. [2003] N.R. Uned. 134 ; 2003 FCA 233 , refd to. [para. Hanano v. Canada (Minister of Citi......
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