Here is the text of Tim Leahy's latest email to me (received a few hours ago).
Subject line of the email: possible certified question
Good day,
Here are my ideas on proposed questions for certification. It will be Rocco who will be submitting them, and we have not discussed anything yet.
In order to appeal a decision, the deciding judge must "certify a question of general importance", which is defined as one (a) where, if answer in the opposite manner would reverse the decision and (b) which is important to more than just the litigant. So long as at least one question is certified, all issues may be raised at the Federal Court of Appeal (FCA).
Proposed Questions for Certification
1. Does a ruling, directly affecting over 1,000 litigants, constitute a decision of “general importance” in that its disposition concerns more than a single litigant, and, thus, requires certification of its central issue; viz., whether the Protocol is enforceable?
2. Where a ruling uphold a provision, challenged on grounds either not previously raised; i.e., concealed in a budget bill; or, when raised previously; i.e., the alleged unconstitutionality of baring the Court from hearing cases; not expressly rejected; i.e., no analysis the issue is to be found in those decisions; and that provision affects, according to Justice Rennie, 600,000 plus their dependants) [Liang at ¶4], has an issue of “general importance” been identified?
3. Does the principle of stare decisis apply when a superior court has rejected a legal argument without having met the Sheppard test; [2002] 1 S.C.R. 869]; of providing analysis and a cogent reason for having done so?
4. Does a lower court commit reversible error when it holds itself bound by a superior court’s ruling when that ruling contains no explanation of how or why the alleged finding was made?
5. Is the constitutional imperative of judicial independence violated when a provision inserted into a budget bill bars the Court from adjudicating cases which that provision spawns?
6. Is a court’s obligation to apply the law as written coterminous with the authority of a court to rule on a litigant’s case?
7. If Parliament may inoculate itself from judicial scrutiny, may it bar a theoretically independent court from continuing to dispose of pre-existing proceedings; i.e., after the Crown has charged X with terrorism, may Parliament bar the Court from ruling on the charge?
8. Who has the burden of proving that a provision, tucked into a budget bill and totally unrelated to the budget, received customary parliament scrutiny the Crown or party asserting the obvious [¶62]?
9. Is reversible error committed by accepting sans evidence that customary parliament scrutiny occurred for a provision, tucked into a budget bill, but unrelated to a budget?
10. Does customary parliament review occur where the Government tucked a provision, unrelated to a budget, into a budget bill, where, if the budget bill is defeated, the Government’s MP’s, who voted against the budget, will lose their job?
11. Does a Court err when it holds that a provision, concealed in a budget bill and totally unrelated to the bill’s stated purpose, constitutes the “Parliament’s clear will and intent” [¶93]?
12. When a vested right; i.e., honouring of the Protocol; pre-exists a statutory provision, which abolishes the underlying basis of that vested right, is that vested right abolished although the statutory provision, drafted by the party who created the vested right, does not purport to terminate the force and effect of that vested right?
13. Is the Minister free to escape vicarious liability when his lawyer drafts and signs an agreement, which he is committed to honour, because it was not the lawyer who had already conceived a scheme to avoid honouring the agreement in the event that the applicants won, but, rather, senior officials, including his deponent [¶32]?
14. Where a party drafts, signs and files with the Court an agreement he had no intention of honouring, is that party deceiving both the Court and the other party?
15. Where the Court refuses to enforce an agreement the Crown drafted, signed and filed with the Court, is the Court encouraging the Crown to defraud both the Court and the opposing party, thereby bringing the administration of justice into disrepute?
16. In the legal apartheid of immigration law, is the black letter law that, where ambiguity is claimed to exist, it should interpreted in favour of the non-drafting party of no force and effect when the Crown drafts the document, which it claims to be ambiguous?
17. If this black letter law applies even in the legal apartheid of immigration law, does a judge err by blaming the non-drafting party for the ambiguity he holds the Crown intentionally crafted in order to con the opposing party and any honourable judge?
18. Does the Supreme Court’s holding that a provision “must be interpreted having regard to the object, text and context of the provision, considered together”, Medovarsky v MCI, [2005] SCR 2 529, 2005 SCC 51; only apply if, by adhering to this rule, only the Crown wins?
19. If, however, equality before the law has not legally been abolished in the legal apartheid of immigration law, would “having regard to the object, text and context of the provision” mean, because the lead litigant prevailed and has his immigrant-visa application processed to visa issuance, that his co-litigants, too, are entitled to the same result – especially when any other interpretation would mean that the Minister intended to deceive the Court and the other litigants and, if permitted to succeed, that the Court encourages such deceit?
20. Keeping in mind that, only after the Protocol had been filed, did the Minister moot the possibility of terminating the files and never before in the history of the Dominion has any Government terminated pending immigration files – which files the Minister kept telling the applicants would be processed “in due course” [¶¶33,43,48, Liang] – did the Supreme Court of Canada err in Public School Boards' Assn. of Alberta v. Alberta (A-G), 2000 SCC 2, [2000] 1 SCR 44, where it held: “Neither the Court nor opposing counsel should have to engage in clairvoyance”; or, if it did not, do Supreme Court rulings not apply in the legal apartheid of immigration law unless they favour the Minister?
21. If, however, this Court is bound to adhere to Supreme Court pronouncements even when they favour applicants, has the Court committed further legal error by having imposed on Mr. Leahy to duty to be clairvoyant [¶97]?
22. Is Williams, 129 FTR 240 (FCA), where the FCA held that “when [...] there is no evidence to the contrary, the Court must assume that the decision maker acted in good faith bad law...”, now bad law: i.e., must private counsel presume that DoJ lawyers are acting in bad faith and, where they fail to do so, the Court properly rules against their clients?
23. If Wiliams is not bad law, does reversible error result when the Court holds that applicants’ counsel erred in acting on the basis that the Minister and his lawyers were acting in good faith and in a manner consistent with the lawyer’s duty under the Professional Rules of Conduct?
24. Does the statutory rule on interpretation also apply to the Court’s claiming that Clause 14’s “possible disposition” of the applicants’ files? [The Court holds that it means that the respondent knew that it was intending to abolish the files and, thus, in order to shield itself from being obliged to honour the Protocol, inserted “possible disposition”. It could, however, equally mean that “possible disposition” related to the contingency that the applicant must prevail in the lead case before mandamus would follw.] If so, does “possible disposition” mean that the respondent deceptively inserted “possible”, as opposed to the clear “unless barred by law”; or does it mean “possible disposition assuming that the applicants prevail”?
25. Does the Court’s holding that applicant’s counsel should have known that “possible dispassion” meant that the Minister was planning to terminate the files mean that Justice Barns was asleep at the switch when he permitted this terminology or that he was fully aware of that possibility and choose to ratify the deceit; i.e., does the Court have any responsibility in this matter?
26. Where a decision turns on an issue the prevailing party never asserted and the Court concealed from the losing party until using it to rule against it; i.e., that (a) applicant’s counsel could reasonably have known that the Minister was planning to terminate the files and should have insisted on clearer wording and (b) was in a position to impose terms upon the Crown; has the Court committed reversible err by, putting it politely, being “coy”, as Justice Muldoon so eloquently expressed in Chowdhury v. MCI, (1998) 43 ImmLR(2d), applied in Forooghm v. MCI, 2012 FC 1171, Phelan., J.
27. Did the Court deny the applicants procedural fairness by concealing from their counsel a finding he made on an issue the respondent never made, which finding the Court deployed to allow the Crown not to honour its promise to the applicants?
28. Where the Court and Crown advise applicants’ counsel that they want all the cases to proceed together and the Court said that, if the parties do not agree, it would impose its own terms, does the Court bring the administration of justice into disrepute by bending over backwards to allow the Crown to wiggling out of the agreement?
29. Where the Court required the applicants to join together under a lead case, and where, after drafting the Protocol, the respondent tucks a provision into a budget bill in order to avoid honouring the agreement, would ruling in the applicants’ favour nunc pro tunc to the date the Protocol was filed constitute acting “irrespective of Parliament’s clear will and intent” [¶93]?
30. Where the Court rules that the respondent’s use of A25.2 to rectify its error in issuing immigrant visas to applicants assessed after 29 March 2012 and visaed after 29 June 2012 applied “only to a small number of individuals” [¶72] and there is no evidence on record to how many applicants were involved, has the court made a finding-of-fact not supported by the record?
31. While Justice Rennie in Tabingo was dealing with what he said were 600,000 applications [Liang at ¶4] when he referred to the beneficiaries OB 479-B as “small number”, would it not follow that, because enforcing the Protocol would only affect 1,000± applicants, per Tabingo, it would be applied “only to a small number of individuals”?
32. Is the Supreme Court of Canada’s ruling in Suresh binding in disposing of the applicant’s citing to s. 25 and s. 25.2 to as a means to overcome the respondent’s claim that the Minister would be “acting contrary to law” in refusing to honour the Protocol [¶73] or, may it be distinguished in order to ensure justice and avoid encouraging fraud?
33. Who, in ruling in the Minister’s favour, properly defined the parameter of s. 25 (and its subsequently added provisions): Justice Kelen in De Guzman at ¶¶53-55, 2004 FC 1276, where he held that it may be used to overcome any provision or Justice Russell, who at ¶71, held that it may not be used to overcome any provision Parliament enacted?
Subject line of the email: possible certified question
Good day,
Here are my ideas on proposed questions for certification. It will be Rocco who will be submitting them, and we have not discussed anything yet.
In order to appeal a decision, the deciding judge must "certify a question of general importance", which is defined as one (a) where, if answer in the opposite manner would reverse the decision and (b) which is important to more than just the litigant. So long as at least one question is certified, all issues may be raised at the Federal Court of Appeal (FCA).
Proposed Questions for Certification
1. Does a ruling, directly affecting over 1,000 litigants, constitute a decision of “general importance” in that its disposition concerns more than a single litigant, and, thus, requires certification of its central issue; viz., whether the Protocol is enforceable?
2. Where a ruling uphold a provision, challenged on grounds either not previously raised; i.e., concealed in a budget bill; or, when raised previously; i.e., the alleged unconstitutionality of baring the Court from hearing cases; not expressly rejected; i.e., no analysis the issue is to be found in those decisions; and that provision affects, according to Justice Rennie, 600,000 plus their dependants) [Liang at ¶4], has an issue of “general importance” been identified?
3. Does the principle of stare decisis apply when a superior court has rejected a legal argument without having met the Sheppard test; [2002] 1 S.C.R. 869]; of providing analysis and a cogent reason for having done so?
4. Does a lower court commit reversible error when it holds itself bound by a superior court’s ruling when that ruling contains no explanation of how or why the alleged finding was made?
5. Is the constitutional imperative of judicial independence violated when a provision inserted into a budget bill bars the Court from adjudicating cases which that provision spawns?
6. Is a court’s obligation to apply the law as written coterminous with the authority of a court to rule on a litigant’s case?
7. If Parliament may inoculate itself from judicial scrutiny, may it bar a theoretically independent court from continuing to dispose of pre-existing proceedings; i.e., after the Crown has charged X with terrorism, may Parliament bar the Court from ruling on the charge?
8. Who has the burden of proving that a provision, tucked into a budget bill and totally unrelated to the budget, received customary parliament scrutiny the Crown or party asserting the obvious [¶62]?
9. Is reversible error committed by accepting sans evidence that customary parliament scrutiny occurred for a provision, tucked into a budget bill, but unrelated to a budget?
10. Does customary parliament review occur where the Government tucked a provision, unrelated to a budget, into a budget bill, where, if the budget bill is defeated, the Government’s MP’s, who voted against the budget, will lose their job?
11. Does a Court err when it holds that a provision, concealed in a budget bill and totally unrelated to the bill’s stated purpose, constitutes the “Parliament’s clear will and intent” [¶93]?
12. When a vested right; i.e., honouring of the Protocol; pre-exists a statutory provision, which abolishes the underlying basis of that vested right, is that vested right abolished although the statutory provision, drafted by the party who created the vested right, does not purport to terminate the force and effect of that vested right?
13. Is the Minister free to escape vicarious liability when his lawyer drafts and signs an agreement, which he is committed to honour, because it was not the lawyer who had already conceived a scheme to avoid honouring the agreement in the event that the applicants won, but, rather, senior officials, including his deponent [¶32]?
14. Where a party drafts, signs and files with the Court an agreement he had no intention of honouring, is that party deceiving both the Court and the other party?
15. Where the Court refuses to enforce an agreement the Crown drafted, signed and filed with the Court, is the Court encouraging the Crown to defraud both the Court and the opposing party, thereby bringing the administration of justice into disrepute?
16. In the legal apartheid of immigration law, is the black letter law that, where ambiguity is claimed to exist, it should interpreted in favour of the non-drafting party of no force and effect when the Crown drafts the document, which it claims to be ambiguous?
17. If this black letter law applies even in the legal apartheid of immigration law, does a judge err by blaming the non-drafting party for the ambiguity he holds the Crown intentionally crafted in order to con the opposing party and any honourable judge?
18. Does the Supreme Court’s holding that a provision “must be interpreted having regard to the object, text and context of the provision, considered together”, Medovarsky v MCI, [2005] SCR 2 529, 2005 SCC 51; only apply if, by adhering to this rule, only the Crown wins?
19. If, however, equality before the law has not legally been abolished in the legal apartheid of immigration law, would “having regard to the object, text and context of the provision” mean, because the lead litigant prevailed and has his immigrant-visa application processed to visa issuance, that his co-litigants, too, are entitled to the same result – especially when any other interpretation would mean that the Minister intended to deceive the Court and the other litigants and, if permitted to succeed, that the Court encourages such deceit?
20. Keeping in mind that, only after the Protocol had been filed, did the Minister moot the possibility of terminating the files and never before in the history of the Dominion has any Government terminated pending immigration files – which files the Minister kept telling the applicants would be processed “in due course” [¶¶33,43,48, Liang] – did the Supreme Court of Canada err in Public School Boards' Assn. of Alberta v. Alberta (A-G), 2000 SCC 2, [2000] 1 SCR 44, where it held: “Neither the Court nor opposing counsel should have to engage in clairvoyance”; or, if it did not, do Supreme Court rulings not apply in the legal apartheid of immigration law unless they favour the Minister?
21. If, however, this Court is bound to adhere to Supreme Court pronouncements even when they favour applicants, has the Court committed further legal error by having imposed on Mr. Leahy to duty to be clairvoyant [¶97]?
22. Is Williams, 129 FTR 240 (FCA), where the FCA held that “when [...] there is no evidence to the contrary, the Court must assume that the decision maker acted in good faith bad law...”, now bad law: i.e., must private counsel presume that DoJ lawyers are acting in bad faith and, where they fail to do so, the Court properly rules against their clients?
23. If Wiliams is not bad law, does reversible error result when the Court holds that applicants’ counsel erred in acting on the basis that the Minister and his lawyers were acting in good faith and in a manner consistent with the lawyer’s duty under the Professional Rules of Conduct?
24. Does the statutory rule on interpretation also apply to the Court’s claiming that Clause 14’s “possible disposition” of the applicants’ files? [The Court holds that it means that the respondent knew that it was intending to abolish the files and, thus, in order to shield itself from being obliged to honour the Protocol, inserted “possible disposition”. It could, however, equally mean that “possible disposition” related to the contingency that the applicant must prevail in the lead case before mandamus would follw.] If so, does “possible disposition” mean that the respondent deceptively inserted “possible”, as opposed to the clear “unless barred by law”; or does it mean “possible disposition assuming that the applicants prevail”?
25. Does the Court’s holding that applicant’s counsel should have known that “possible dispassion” meant that the Minister was planning to terminate the files mean that Justice Barns was asleep at the switch when he permitted this terminology or that he was fully aware of that possibility and choose to ratify the deceit; i.e., does the Court have any responsibility in this matter?
26. Where a decision turns on an issue the prevailing party never asserted and the Court concealed from the losing party until using it to rule against it; i.e., that (a) applicant’s counsel could reasonably have known that the Minister was planning to terminate the files and should have insisted on clearer wording and (b) was in a position to impose terms upon the Crown; has the Court committed reversible err by, putting it politely, being “coy”, as Justice Muldoon so eloquently expressed in Chowdhury v. MCI, (1998) 43 ImmLR(2d), applied in Forooghm v. MCI, 2012 FC 1171, Phelan., J.
27. Did the Court deny the applicants procedural fairness by concealing from their counsel a finding he made on an issue the respondent never made, which finding the Court deployed to allow the Crown not to honour its promise to the applicants?
28. Where the Court and Crown advise applicants’ counsel that they want all the cases to proceed together and the Court said that, if the parties do not agree, it would impose its own terms, does the Court bring the administration of justice into disrepute by bending over backwards to allow the Crown to wiggling out of the agreement?
29. Where the Court required the applicants to join together under a lead case, and where, after drafting the Protocol, the respondent tucks a provision into a budget bill in order to avoid honouring the agreement, would ruling in the applicants’ favour nunc pro tunc to the date the Protocol was filed constitute acting “irrespective of Parliament’s clear will and intent” [¶93]?
30. Where the Court rules that the respondent’s use of A25.2 to rectify its error in issuing immigrant visas to applicants assessed after 29 March 2012 and visaed after 29 June 2012 applied “only to a small number of individuals” [¶72] and there is no evidence on record to how many applicants were involved, has the court made a finding-of-fact not supported by the record?
31. While Justice Rennie in Tabingo was dealing with what he said were 600,000 applications [Liang at ¶4] when he referred to the beneficiaries OB 479-B as “small number”, would it not follow that, because enforcing the Protocol would only affect 1,000± applicants, per Tabingo, it would be applied “only to a small number of individuals”?
32. Is the Supreme Court of Canada’s ruling in Suresh binding in disposing of the applicant’s citing to s. 25 and s. 25.2 to as a means to overcome the respondent’s claim that the Minister would be “acting contrary to law” in refusing to honour the Protocol [¶73] or, may it be distinguished in order to ensure justice and avoid encouraging fraud?
33. Who, in ruling in the Minister’s favour, properly defined the parameter of s. 25 (and its subsequently added provisions): Justice Kelen in De Guzman at ¶¶53-55, 2004 FC 1276, where he held that it may be used to overcome any provision or Justice Russell, who at ¶71, held that it may not be used to overcome any provision Parliament enacted?