Dragan v. Canada (Minister of Citizenship and Immigration), (2003) 228 F.T.R. 52 (TD)

JudgeKelen, J.
CourtFederal Court (Canada)
Case DateFebruary 21, 2003
JurisdictionCanada (Federal)
Citations(2003), 228 F.T.R. 52 (TD)

Dragan v. Can. (M.C.I.) (2003), 228 F.T.R. 52 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. MR.042

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

(IMM-3020-02; 2003 FCT 281)

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

Federal Court of Canada

Trial Division

Kelen, J.

March 7, 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On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into force and repealed the Immigration Act.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, in a decision reported 227 F.T.R. 272, 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 22 applicants who filed between January 1 and June 28, 2002 were dismissed. The court invited submissions regarding questions of serious general importance which ought to be certified for appeal and regarding the award of legal costs.

The Federal Court of Canada, Trial Division, in the decision reported below, dealt with the costs issues and certified the following question for consideration on appeal:

"In view of the Court's findings of fact with respect to the legislative history and intent of subsection 361(3) of the Immigration and Refugee Protection Regulations regarding immigrant visa applications filed before January 1, 2002, does the respondent have an implied duty to use his reasonable best efforts to assess such applications before March 31, 2003?"

(The court noted however that the Court of Appeal was not confined to answering only the certified question).

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 - The court subsequently certified a question for appeal respecting the Minister's duty to process the applications by March 31 - See paragraphs 1 to 13.

Aliens - Topic 4105

Practice - Costs - For special reasons - 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 - A motions judge 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 - The Federal Court of Canada, Trial Division, held that there were "special reasons" in this case within the meaning of rule 22 of the Federal Court Immigration and Refugee Protection Rules warranting an award of party and party costs to the 102 applicants - See paragraphs 14 to 16.

Aliens - Topic 4105

Practice - Costs - For special reasons - 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 - A motions judge 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 - The Federal Court of Canada, Trial Division, held that there were no "special reasons" in this case within the meaning of rule 22 of the Federal Court Immigration and Refugee Protection Rules warranting an award of costs to these 22 applicants - See paragraph 17.

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 3].

Gyamfuah et al. v. Minister of Employment and Immigration (1994), 80 F.T.R. 58; 25 Imm. L.R.(2d) 89 (T.D.), refd to. [para. 6].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 12].

Platonov v. Canada (Minister of Citizen-ship and Immigration) (2000), 192 F.T.R. 260 (T.D.), refd to. [para. 15].

Lominadze v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 310 (T.D.), refd to. [para. 15].

Dee v. Canada (Minister of Citizenship and Immigration) (1998), 46 Imm. L.R.(2d) 278 (F.C.T.D.), refd to. [para. 15].

D'Almeida v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 380; 1 Imm. L.R.(3d) 309 (T.D.), refd to. [para. 15].

Minister of Employment and Immigration v. Ermeyev et al. (1994), 83 F.T.R. 158 (T.D.), refd to. [para. 15].

Statutes Noticed:

Federal Court Immigration and Refugee Protection Rules - See Immigration and Refugee Protection Act Regulations (Can.).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 74 [para. 6].

Immigration and Refugee Protection Act Regulations (Can.), Federal Court Immigration and Refugee Protection Rules, SOR/2002-232, rule 22 [para. 14].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 361(1) [para. 8].

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 matter was dealt with on the basis of written submissions by Kelen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on February 21, 2003.

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2 practice notes
  • Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • September 5, 2006
    ...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 Citizenship and Immigration) (2004), 257 F......
  • Akram v. Can. (M.C.I.), 2004 FC 826
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • June 7, 2004
    ...and Immigration (1994), 80 F.T.R. 58 (T.D.), refd to. [para. 27]. Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 52 (T.D.), refd to. [para. Bath v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 530 (T.D.), refd to. [para. 27]. Counsel: ......
2 cases
  • Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • September 5, 2006
    ...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 Citizenship and Immigration) (2004), 2......
  • Akram v. Canada (Minister of Citizenship and Immigration), 2004 FC 826
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • June 7, 2004
    ...and Immigration (1994), 80 F.T.R. 58 (T.D.), refd to. [para. 27]. Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 52 (T.D.), refd to. [para. Bath v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 530 (T.D.), refd to. [para. 27]. Counsel: ......

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