Onuschak v. Canadian Society of Immigration Consultants et al., (2009) 357 F.T.R. 22 (FC)

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: October 21, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 357 F.T.R. 22 (FC);2009 FC 1135

Onuschak v. CSIC (2009), 357 F.T.R. 22 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. DE.007

Katarina Onuschak (applicant) v. Canadian Society of Immigration Consultants and the Board of Directors of Canadian Society of Immigration Consultants (respondents)

(T-1425-09; 2009 FC 1135)

Indexed As: Onuschak v. Canadian Society of Immigration Consultants et al.

Federal Court

Harrington, J.

November 5, 2009.

Summary:

Onuschak was a member of the Canadian Society of Immigration Consultants. She applied for various declarations pertaining to her eligibility to run for office and as to the validity of the nomination and election proceedings currently in place and other relief. At issue was whether the Society was a federal board, commission or other tribunal within the meaning of the Federal Courts Act such that the Federal Court had the jurisdiction to review the following: "a. Are the restrictions on nomination promulgated by the Nominating Committee invalid ultra vires the Nominating Committee or the Board of Directors, because they are inconsistent with the by-laws?" and "b. Does the Board of Directors have the authority to impose preconditions on a member of the Society's right to participate in meetings of the corporation?".

The Federal Court held that the Society was a federal board, commission or other tribunal within the meaning of the Federal Courts Act and it had jurisdiction to review the issues presented.

Courts - Topic 4016

Federal Court of Canada - Jurisdiction - Federal Court - General - The Federal Court stated that "following a series of Supreme Court decisions, [...] it is now clear that the Federal Court only has jurisdiction if: a. The dispute pertains to a federal legislative class of subject; b. There is actual operative applicable federal law, be it statute, regulation or common law, pertaining to the pith and substance of the litigation; and c. The administration of that federal law has been confided to it." - See paragraph 5.

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal boards, commissions or tribunals - Onuschak was a member of the Canadian Society of Immigration Consultants - She applied for various declarations pertaining to her eligibility to run for office and as to the validity of the nomination and election proceedings currently in place and other relief - At issue was whether the Society was a federal board, commission or other tribunal within the meaning of the Federal Courts Act such that the Federal Court had the jurisdiction to review the following: "a. Are the restrictions on nomination promulgated by the Nominating Committee invalid ultra vires the Nominating Committee or the Board of Directors, because they are inconsistent with the by-laws?" and "b. Does the Board of Directors have the authority to impose preconditions on a member of the Society's right to participate in meetings of the corporation?" - The Federal Court held that the Society was a federal board, commission or other tribunal within the meaning of the Federal Courts Act and it had jurisdiction to review the issues presented - The Society was a non-government organization, incorporated without share capital under the Canada Corporations Act - By regulation under the Immigration and Refugee Protection Act, members of the Society were recognized as "authorized representatives" who could appear in immigration proceedings and charge for their services - Internal management could not be separated from the only purpose for which the Society existed, the regulation of immigration consultants - The elections and operating by-laws bore directly upon the Society's activities - In this case, the Society purported to exercise authority over Onuschak as a member of the Society, a member who was entitled to seek judicial review as she was "directly affected" within the meaning of s. 18 of the Federal Courts Act - The Minister delegated to the Society the power to set the rules and had prohibited immigration consultants from charging fees or having a right of standing in administrative proceedings unless they were members of the Society - Thus, licensing, standards and membership all formed part of a single whole.

Cases Noticed:

Canadian Pacific Ltd. and Incan Ships Ltd. v. Quebec North Shore Paper Co. and Quebec and Ontario Transportation Co., [1977] 2 S.C.R. 1054; 9 N.R. 471, refd to. [para. 5].

Canada v. McNamara Construction (Western) Ltd. et al., [1977] 2 S.C.R. 654; 13 N.R. 181, refd to. [para. 5].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241; 28 D.L.R.(4th) 641, refd to. [para. 5].

Associated Metals & Minerals Corp. et al. v. Ship Evie W et al., [1978] 2 F.C. 710; 20 N.R. 50 (F.C.A.), affd. [1980] 2 S.C.R. 322; 31 N.R. 584, refd to. [para. 6].

Jackson v. Canada (Attorney General) (1997), 141 F.T.R. 1 (T.D.), refd to. [para. 9].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [para. 12].

Law Society of Upper Canada v. Canada (Minister of Citizenship and Immigration) et al., [2009] 2 F.C.R. 466; 383 N.R. 200; 2008 FCA 243, refd to. [para. 12].

DRL Vacations Ltd. v. Halifax Port Authority, [2006] 3 F.C.R. 516; 274 F.T.R. 293; 2005 FC 860, refd to. [para. 23].

Toronto Independent Dance Enterprise v. Canada Council, [1989] 3 F.C. 516; 30 F.T.R. 20 (T.D.), dist. [para. 25].

Antares Shipping Corp. v. Ship Capricorn et al., [1980] 1 S.C.R. 553; 30 N.R. 104; 111 D.L.R.(3d) 289, refd to. [para. 26].

Terrasses Jewellers Inc. v. Triglav, [1983] 1 S.C.R. 283; 54 N.R. 321, refd to. [para. 26].

Quebec and Ontario Transportation Co. v. Ship Incan St. Laurent and Incan Ships Ltd., [1979] 2 F.C. 834; 29 N.R. 39; 104 D.L.R.(3d) 139 (F.C.A.), affd. [1980] 2 S.C.R. 242; 33 N.R. 528, refd to. [para. 28].

Des Champs v. Conseil des écoles séparées catholiques de langue fançaise de Prescott-Russell, [1999] 3 S.C.R. 281; 245 N.R. 201; 125 O.A.C. 279, refd to. [para. 29].

Canada v. Prytula; Canada v. Rhine, [1980] 2 S.C.R. 442; 34 N.R. 290, refd to. [para. 30].

Roseau River Anishinabe First Nation v. Atkinson et al. (2003), 228 F.T.R. 167; 2003 FCT 168, refd to. [para. 31].

Canatonquin et al. v. Gabriel et al., [1980] 2 F.C. 792; [1981] 4 C.N.L.R. 61 (F.C.A.), refd to. [para. 31].

Sparvier v. Cowessess Indian Band No. 73 et al., [1994] 1 C.N.L.R. 182; 63 F.T.R. 242 (T.D.), refd to. [para. 31].

Laurent v. Fort McKay First Nation (2009), 393 N.R. 379; 2009 FCA 235, refd to. [para. 32].

Devil's Gap Cottagers (1982) Ltd. v. Rat Portage Indian Band et al., [2009] 2 F.C.R. 267; 331 F.T.R. 87; 2008 FC 812, refd to. [para. 32].

MIL Davie Inc. v. Société d'exploitation et de développement d'Hibernia ltée (1998), 226 N.R. 369; 85 C.P.R.(3d) 320; 1998 CarswellNat 814 (F.C.A.), refd to. [para. 33].

Holt Cargo Systems Inc. v. ABC Containerline N.V. (Bankrupt) et al., [2001] 3 S.C.R. 907; 280 N.R. 1; 2001 SCC 90, refd to. [para. 33].

Grenier v. Canada (2005), 344 N.R. 102; 2005 FCA 348, refd to. [para. 35].

Counsel:

Lorne Waldman, for the applicant;

John Callaghan and Benjamin Na, for the respondents.

Solicitors of Record:

Lorne Waldman & Associates, Toronto, Ontario, for the applicant;

Gowling Lafleur Henderson, LLP, Toronto, Ontario, for the respondent.

This matter was heard on October 21, 2009, at Toronto, Ontario, by Harrington, J., of the Federal Court, who delivered the following judgment on November 5, 2009.