Good day,
Thursday evening both parties' counsel met for an hour with the judge to decide how to proceed. Last Friday, the judge had issued an order which disturbed both parties because, rather than proceed with representative cases, he had ordered that affidavits and written arguments be prepared served and filed on all the cases. Clearly his understanding of what had been agreed on December 6th differed from what both parties had understood. The net result is that he has suspended the Friday the 13th order and given us until February 7th to set out a joint proposal on how to proceed or, if we do not agree entirely, he will impose the structure. After he has reviewed our joint submission, we will have another meeting.
Thursday evening both parties' counsel met for an hour with the judge to decide how to proceed. Last Friday, the judge had issued an order which disturbed both parties because, rather than proceed with representative cases, he had ordered that affidavits and written arguments be prepared served and filed on all the cases. Clearly his understanding of what had been agreed on December 6th differed from what both parties had understood. The net result is that he has suspended the Friday the 13th order and given us until February 7th to set out a joint proposal on how to proceed or, if we do not agree entirely, he will impose the structure. After he has reviewed our joint submission, we will have another meeting.
The big news to come out of the meeting was that the judge told us that the decision to grant leave has been made, which is to say, the Court will definitely hear our cases. In fact, he said that he has already requested that a date for the hearing be found. The Court clearly wants this issue to be decided as soon as possible. He also averred that the as-yet-to-be-revealed judge who will hear the case will agree to allow the matter to be appealed to the Federal Court of Appeal (FCA). While the appeal will mean that the cases will continue longer than otherwise, the fact that he is trying to arrange an early date for the hearing means that the delay will not be that great. In fact, both decisions could be rendered before the end of the year.
The judge expressed the Court's annoyance at more litigants joining the litigation. (The Court simply is not in a position to deal with large numbers of cases.) He said that, in addition to our then 550 cases, 100 (Persian) cases had been filed in Montréal and "a handful in Vancouver". So, I agree not to add additional applicants to the litigation. Thus, as matters currently stand, those who have not yet joined the litigation will not be able to do so. (I filed 66 new cases just before the meeting occurred.)
The procedural disagreement with CIC is that it wants only one case to be put forward per class. According to DoJ (Dep't of Justice), roughly two-thirds of the litigants applied before 27 February 2008 and one third between 27 February 2008 and 25 June 2010. DoJ has agreed to the judge's request to be advised how many are in each class.
Over the next two weeks, DoJ and I will try to work out a time-line for submitting written arguments and to cross-examine the CIC official who submits CIC's affidavit. I envision both parties submitting two affidavits, one addressing the facts specific to the individual litigant's case and the other addressing the general issues which apply to everyone. (Ordinarily we adduce one affidavit, and CIC often does not adduce any.) Also, usually no one is examined, but this time they know that their official will definitely be examined. We will be discussing whether those submitting our affidavits will be examined, too.
(Examinations occur around a table in a room and consist of each counsel questioning the deponent on the contents of his/her affidavit. It usually lasts 45 minutes to an hour. The questions are recorded and a written transcript is prepared for the Court.)
Within two weeks we will know if DoJ and I are on the same page with respect to the number of litigants per class. The only identified disagreement at this juncture is how many representative cases. They want only one; I would prefer candidates from each visa-post involved. Within two weeks, we will know whether we can agree on the number or whether the Court will have to decide. (If we have only one case, I have decided which one it will be, but it is not from Delhi or Damascus, where 90% of the files are to be found.) The Court did state that I will make that selection; not DoJ.
The next update should be in about one month. All written arguments and examinations should be concluded by June, which could mean that the Federal Court hearing may occur this summer.
