On December 18th, Justices Roger Hughes and Elizabeth Heneghan jointly denied four investor
(IIP) applicants’ motions for an injunction to bar Jason Kenney from introducing legislation to
abolish their investor applications so long as their court cases existed. In so doing, both justices distorted
the applicants’ arguments in order to find case law on which to rely to justify giving the Minister
the green light to abolish current IIP files and, in so doing, to encourage the Minister to deprive
the Federal Court of its jurisdiction to dispose of litigation which comes before it.
Justice Hughes held: “… Applicant’s Counsel has conceded that the Court does not have jurisdiction to
order that Parliament should not pass legislation, particularly legislation that has not been drafted
or is in bill form only. Counsel said that what was being sought is an Order that the Minister negotiate
with the Applicant or exempt the Applicant from any unfavourable effects of new legislation. The
Applicant has not requested such an exemption from the Minister. There has not been shown before
me any basis upon which the Court could order such negotiation or an exemption.”
This “finding” was entirely contrary to the evidence before Justice Hughes. The motion sought to bar
the Minister from introducing legislation, not to force him to negotiate. Applicants’ counsel had stated
that, if the Minister was intent on issuing such legislation, he had four ways to comply with such
an injunction and to legislate the abolition of the investor files. One means was to settle with the
applicants. However, Justice Hughes, in pursuit of his personal agenda, chose to pervert the actual
argument in order to give the chimera of legitimacy to his ruling.
Justice Hughes, likewise, held: “the Applicant has failed to provide in the record, any substantial
evidence as to delay or procrastination by the Minister or Minister’s officials”. However, the
applicant had provided the relevant dates, including the date of Justice Hughes’ own order, issued in
July 2011, ordering CIC to finalize the case at its own somnolent pace; and the Minister’s lawyers did
not dispute those facts. Thus, the undisputed relevant facts were before Justice Hughes, but he preferred
to ignore the truth in order not to impede the Minister from abolishing over 20,000 investor files.
Justice Heneghan joined Justice Hughes in distorting what the applicants were seeking in order to
justify abdicating the Court’s duty to protect its own jurisdiction. Justice Heneghan held: “The
Applicant’s arguments are premised upon the theory that the [Minister] may introduce legislation that
will ‘abolish’ his outstanding IIP application before the Court can deal with the application for an
Order of mandamus. I accept [the Minister’s] submissions … that there is no evidence that legislation
is proposed that will affect the outstanding IIP applications. The Court cannot enjoin proposed or
potential legislation” and proceeded to rely on case-law saying that the Court may not interfere
with legislation before Parliament. There is, however, no case law which holds that the Court may
not restrain a minister from stripping the court of its jurisdiction by legislating away the underlying
court cases. Therefore, Justice Heneghan distorted the actual motion in order to deny it. In so doing,
she distinguished herself from Justice Hughes who claimed, contrary to fact, that the case law before
him contained such decisions when it does not.
Before both of the judges was CIC’s official acknowledgement that it is considering abolishing the
investors’ files just has it had the skilled worker files. The Minister’s lawyers did not deny that the
Minister was planning to legislate the investor applications into oblivion.
The IIP applicants will continue their cases, asking the Federal Court to order CIC to finalize their
cases in 2013, hoping that they will find a judge who cares more about the duty to the Law and to
Canada than to being in Jason Kenney’s good graces. The race is now on to see who will act faster:
The Federal Court or Jason Kenney’s allies in Parliament. The fate of 20,000 investor applicants
and their families – as well as their billions of dollars of investments in Canada – hang in the balance.