.....disappointing if true...........http://o.canada.com/2012/07/13/would-be-newcomers-caught-in-legal-quagmire/
OTTAWA — A group of would-be immigrants, who successfully sued the government over processing delays, will soon learn whether the bulk of them will remain out of luck in terms of their quest to come to Canada thanks to a new law that allows Citizenship and Immigration to toss out more than a quarter-of-a-million old applications.
The Federal Court ruled last month, just two weeks before Bill C-38 became law, that the government must process all the applications it takes into the system and that the delays, some going back nine years, were unjustified.
The court ordered the government to finalize the lead litigant's case by Oct. 14.
While the court didn't issue separate rulings for each of the 900 litigants involved, their lawyer Tim Leahy said an agreement was struck with the government in February to apply the principles in the lead case to the others.
But that was before Bill C-38 and in a document filed in Federal Court this week, the government argued the new law — eliminating some 280,000 unassessed federal skilled worker applications received prior to February 27, 2008 and refunding their $130 million in application fees — trumps their agreement.
“The applications of approximately 635 of the applicants involved in this proceeding were terminated by operation of law,” the government argued. “The minister is bound by the law of Canada and has no discretion to process these terminated applications contrary to the law.”
As for the litigants who are not among the 280,000 — including those who received a positive assessment before March 29 — government lawyers said they would present a proposal for processing those applications by July 16.
Leahy, however, argued his clients had a “vested right” to have their files processed according to the February agreement and that “the discretion is there” for Minister Jason Kenney to “behave honourably.
“Political ambition and ego impede the honourable administration of the law,” he argued, noting the new law doesn't prevent the government from assigning new file numbers to his clients' cases and finalizing them, nor does it nullify the February agreement.
Leahy further argued that more than two dozen of his clients were doubly penalized since they were instructed after the March 29 deadline to take costly medical exams, submit photographs and pay a head tax even though the government was planning to cancel their applications.
Leahy said Justice Robert Barnes must ultimately decide whether to order Citizenship and Immigration to honour the agreement and process all the files, including those impacted by Bill C-38. He could also order each case to be heard separately, Leahy said, or simply “wash his hands of the matter” and suggest the litigants get involved in a class action lawsuit that's already in the works.
While Leahy isn't currently involved, a handful of lawyers representing about 700 other applicants are in the process of preparing their case.
Lorne Waldman, an immigration lawyer involved in the pending suit, said the constitutional argument they will put forward will be that C-38 ought to be “struck down” because it denies applicants “due process.”
“These applicants applied in good faith, some as long as seven years ago. They paid their fees and were told that their applications would be processed,” he said.
“We are arguing that is it is inconsistent with our Charter and Bill of RIghts to take away the right to apply to come to Canada in this fashion.”
The lawyers involved in the class action negotiated a 90-day reprieve with the federal government just before the bill received Royal Assent on June 29. The deal effectively prevents the government from destroying the files before the lawyers file their case in Federal Court.
It should be noted that a favourable ruling for Leahy's litigants would have no bearing on the thousand of other applicants impacted by Bill C-38.
tcohen @ postmedia.com