The procedure in Mr. Tim Leahy's words taken from his website www.unfaircic.comThe Procedure
The litigation is not a class-action but, rather, consists of individual litigants with their own case. In all likelihood, the individual cases will be consolidated and heard together. If so, there would be two classes of litigants; viz. those who applied before 27 February 2008 and those who applied between 27 February 2008 and 26 June 2010. The Court may make the same decision for both classes or fashion a different one for each class.
In an application counsel argue before a judge. There are no witnesses; rather, each side may adduce an affidavit, stating the facts on which counsel will rely. Opposing counsel has the right to question the person who signed the affidavit. If so, it would be done with a court reporter recording the questioning, and the questioning would be limited to the contents of the affidavit. Given that there are unlikely to be any disputed facts, it is unlikely that CIC's lawyer will bear the cost of examining the litigant. (The cost would range between $750 and $1,000 each.)
For the action, witnesses may be called. However, because the facts will really not be in dispute, it is more likely that, if the action is to be decided on the merits, it will be based on the affidavit submitted in the application.The Litigation
Litigation has been initiated to oblige CIC to assess the files of the litigants. For each litigant, there are two proceedings. The first seeks an order requiring CIC to assess and finalize their application; and the second seeks an award of damages comparable to the income the applicant (and spouse) would have earned in Canada in their professions(s) had CIC honoured its commitment to process their file in the time-frame it estimated when it enticed the applicant to apply to immigrate to Canada.
The first, called an "application", requires the Court to agree to hear the case — to grant leave — whereas the second, an "action", does not require leave. However, CIC may be expected within a month of initiation of the action to ask the Federal Court to dismiss it. If the Court permits the action to proceed, CIC will be at risk of having to pay out hundreds of millions of dollars if all its victims joined the litigation. It would be wise, therefore, for CIC to offer immediately to settle. If so, it can be expected to offer to assess and finalize the litigants' files in exchange for dropping the demand for damages. If settlement is offered, it would probably not occur until about six months into the process.
If there is no settlement, the application may be expected to heard about nine months after litigation has been initiated. The judge is unlikely to render a decision at the hearing but, rather will "reserve" the decision. How long the judge will take to release the decision is unknown, but one to four months would be the norm.Effect of the Decision
The Court's ruling will apply only to the people who have joined the lawsuit (the "litigants"). Thus, if we win, CIC will only have to assess the litigants' files and may continue to ignore those of everyone else with a file CIC has tossed into its black hole — unlike in a class-action lawsuit, where everyone in the same class would be treated equally. The objective of the mandamus application will be to have the Court impose, or CIC agree to, a specific time-frame to assess and to finalize the litigants' application. Likewise, if the actions for damages are decided on the merits, the amount awarded will be based upon the litigant's own facts.
If, however, there is a settlement, if CIC agrees to pay any damages, it will likely be the same amount to everyone — and the amount will be significantly less than the requested amount. However, it will come with a promise to assess and finalize the FSW file within a specified time-frame, which would likely mean that the immigrant-visas will be issued roughly twelve months after the litigants have submitted up-dated forms and documents.
After the litigation has ended, CIC could — and should — abandon its queue-jumping processing policy, effectively ending the indefinite warehousing of FSW applications. Nevertheless, CIC will still be obliged to finalize the litigants FSW applications within the specified time-frame. Thus, that change should not negatively affect the litigants.Steps to Take
For those who wish to proceed, the first step would be to sign an agreement and the second would be to provide the required information for the statement, called an affidavit, which the litigant will need to sign before a notary public. The affidavit will provide the facts required to argue the matter and will provide the basis for the statement-of-claim in the action for damages.
The information required for the agreement is:
photo for PR card for FSW applicant who waited for a file lodged before 26 June 2010 to be assessed
applicant's legal name (same as CIC is using),
the file number (B04XX XXXXX),
visa-post where the file is being warehoused,
litigant's telephone number and email address and
city/state/country where the retainer agreement is signed.
The information required for the affidavit and statement-of-claim is:
applicant's city/state/country of residence;
date visa-post received file (see receipt on the AoR);
date AoR estimated processing would commence or end;
NOC for intended occupation(s) of applicant (Schedule 3) and spouse (Schedule 1),
province identified on IMM8 as destination in Canada;
visa-post's response to request for assessment and
anything else which might be useful to know.
AoR = Acknowledgement of Receipt; i.e., the first letter received from the visa post.
For the cost to participate, please send an email to: contact @ unfairCIC.com.