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From: tel@myforefront.com
To: nilson406@hotmail.com
CC: hncslx@gmail.com
Dear XX,
Thank you for your query and your interest in the litigation. You wrote:
1In your answer:we have two categories of litigants; viz., those who applied before 27 February 2008 and those who applied afterwards but before 26 June 2010 .Is it means the two categories of litigants will be a community? As one joint litigation or divide them into two litigations?
Answer: When I initiated a similar case in 2002, when CIC changed the law so that those who had not been assessed by 1 April 2003 would be assessed under the newer, stricter criteria, five other lawyers followed me and between us we had over 120 litigants, divided into three categories; viz., (a) those who had applied before plans for new regulations were announced, (b) those who applied after the proposed regulations were released for comments and (c) those who applied after the regulations were finalized. The Department of Justice (DoJ) moved that all 120+ cases be consolidated into one case and selected one file, Dragan, as the case under which we would proceed. I was very upset because Mr. Dragan was a category (c) applicant, and all of mine were category (a) -- as were 99 others. DoJ immediately said that it was not a trick but that we'd make arguments jointly but address each of the categories separately. In the end the Court ordered the category (a) applicants be assessed before the April 1st deadline; i.e., in six weeks; but dismissed the category (b) and (c) cases.
I expect that this time, the Court will do the same, by which I mean combine all the cases into one court case but render a decision per category, which in our case is two. (As it stands now, however, only category 1 applicants have approached me.) This time, unlike before, the category 2 applicants have an argument, as you rightly pointed out; viz., they were promised one-year processing, which promise the Minister failed to honour, and now they're in the same boat as you, floating away from shore but not as far afloat at the SAP applicants.
2 What's your litigation reasons?
Answer: There will be two different cases and, with respect to the applications (which see assessment) the argument will be the same but the evidence different. The argument will be two-fold for the applications; viz., .
a) CIC accepted payment for a service but has failed to provide the service,
b) CIC is discriminating against the applicants by, in effect, refusing to assess their files and
c) they can't change the rules and apply them retrospectively.
With regard to (c), that was the argument in Dragan but we lost it. However, I convinced the other counsel not to appeal the decision to the Federal Court of Appeal and we convinced the Federal Court of Appeal to refuse to hear DoJ's appeal. I still believe that the judge as wrong and, thus, even if we lose on (c), it may still be appealed and finally settled.
However, it does not matter whether we lose on (c) because, if we win on (a) and (b), we still win; and that's the reason for the second case, which we could not initiate in 2002 because, until last year when the Supreme Court of Canada struck down the Federal Court's rule prohibiting suits for damages unless and until the litigant prevailed in an application, we could not seek damages.
The second suit seeks damages; viz., lost wages. Because you have identified your occupations, we have an occupation to use. For most occupations, our department of labour (Service Canada) has average wages per occupation per province. Thus, we know how much you would have earned. The starting point for SAP applicants would be the date HK/BJ stated it anticipated finalizing your application; for category 2, it is one year after submission of their application. The ending date is whenever your visas are issued.
In this litigation, it actually does not matter whether CIC may lawfully create the discriminatory processing queue because, even if it may, it does not follow that it may never get to your files. Moreover, they promised category 2 one-year processing, enticing them to apply; and promised to assess your files on a FIFO method but have broken the contractual terms. Therefore, they owe you damages.
In other words, the state may confiscate your house (for a proper public purpose) but it has to pay you fair market value for its action. Likewise, even if CIC may lawfully change the rules, it must compensate you for your loses. The best CIC can argue in this respect is that you could have withdrawn your application once it became clear what they were doing. Okay, fine, but when did that date arise? Clearly after Bill C-50 went into effect -- meaning that at a minimum you should be paid through that date -- but, I would argue, even longer because CIC never said that they policy would result in category 1 files never being assessed. In fact, it still has not expressly stated as much. Therefore, only once it became obvious -- and CIC will have to pick that date -- would the liability end.
Now, as I said, I don't expect CIC to pay damages but, rather, if the Court rejects DoJ's bid to have the second case dismissed, I expect CIC to offer to assess your files if you agree to drop the suit seeking damages. Thus, the real issue -- and it has not been litigated to my knowledge -- is whether CIC has to pay damages for changing the rules; not whether it may lawfully change them. As I said, the state may seize your house but must pay you for having done so. Likewise, a party may break a contract but, if so, is liable for damages. You paid for an assessment within the foreseeable future; CIC took the money but has failed to honour the terms. In other words, our argument is not new but rather it's as old as the courts themselves. What is new is applying contract law to CIC.
I hope that I have adequately addressed your questions. There is no question but that my approach has never been done before. Thus, there is a risk that it will not succeed. However, if you do nothing, there is no question what the result will be. Therefore, I believe that it is worth the risk.
Finally, I should mention that I have opted to go this route, as opposed to via class-action, because, with a class action, even those who do not participate will benefit, whereas in this case, the litigants only will benefit directly from the Court's ruling. If what occurred in Dragan occurs again, a second wave of litigation will ensue -- a class-action lawsuit -- but by the time it runs its course, the litigants in my suit will already have the Canadian immigrant visas. To be sure, in Dragan, I received only $20,000 from the Court, whereas the lawyers who stood on my shoulders received $2.9 million from CIC. However, my clients' files were assessed within six weeks, and the class-action lawsuit was not settled until seven months later, after which 105,000 files were processed on a visa-post FIFO method. Therefore, I've opted for this approach so that those who are willing to stand up for their rights benefit whereas those who sit on their hands may wave good-bye to them when they board their flights to Canada.
Regards,
Tim
2011/9/6 ninilson <nilson406@hotmail.com>
From: tel@myforefront.com
To: nilson406@hotmail.com
CC: hncslx@gmail.com
Dear XX,
Thank you for your query and your interest in the litigation. You wrote:
1In your answer:we have two categories of litigants; viz., those who applied before 27 February 2008 and those who applied afterwards but before 26 June 2010 .Is it means the two categories of litigants will be a community? As one joint litigation or divide them into two litigations?
Answer: When I initiated a similar case in 2002, when CIC changed the law so that those who had not been assessed by 1 April 2003 would be assessed under the newer, stricter criteria, five other lawyers followed me and between us we had over 120 litigants, divided into three categories; viz., (a) those who had applied before plans for new regulations were announced, (b) those who applied after the proposed regulations were released for comments and (c) those who applied after the regulations were finalized. The Department of Justice (DoJ) moved that all 120+ cases be consolidated into one case and selected one file, Dragan, as the case under which we would proceed. I was very upset because Mr. Dragan was a category (c) applicant, and all of mine were category (a) -- as were 99 others. DoJ immediately said that it was not a trick but that we'd make arguments jointly but address each of the categories separately. In the end the Court ordered the category (a) applicants be assessed before the April 1st deadline; i.e., in six weeks; but dismissed the category (b) and (c) cases.
I expect that this time, the Court will do the same, by which I mean combine all the cases into one court case but render a decision per category, which in our case is two. (As it stands now, however, only category 1 applicants have approached me.) This time, unlike before, the category 2 applicants have an argument, as you rightly pointed out; viz., they were promised one-year processing, which promise the Minister failed to honour, and now they're in the same boat as you, floating away from shore but not as far afloat at the SAP applicants.
2 What's your litigation reasons?
Answer: There will be two different cases and, with respect to the applications (which see assessment) the argument will be the same but the evidence different. The argument will be two-fold for the applications; viz., .
a) CIC accepted payment for a service but has failed to provide the service,
b) CIC is discriminating against the applicants by, in effect, refusing to assess their files and
c) they can't change the rules and apply them retrospectively.
With regard to (c), that was the argument in Dragan but we lost it. However, I convinced the other counsel not to appeal the decision to the Federal Court of Appeal and we convinced the Federal Court of Appeal to refuse to hear DoJ's appeal. I still believe that the judge as wrong and, thus, even if we lose on (c), it may still be appealed and finally settled.
However, it does not matter whether we lose on (c) because, if we win on (a) and (b), we still win; and that's the reason for the second case, which we could not initiate in 2002 because, until last year when the Supreme Court of Canada struck down the Federal Court's rule prohibiting suits for damages unless and until the litigant prevailed in an application, we could not seek damages.
The second suit seeks damages; viz., lost wages. Because you have identified your occupations, we have an occupation to use. For most occupations, our department of labour (Service Canada) has average wages per occupation per province. Thus, we know how much you would have earned. The starting point for SAP applicants would be the date HK/BJ stated it anticipated finalizing your application; for category 2, it is one year after submission of their application. The ending date is whenever your visas are issued.
In this litigation, it actually does not matter whether CIC may lawfully create the discriminatory processing queue because, even if it may, it does not follow that it may never get to your files. Moreover, they promised category 2 one-year processing, enticing them to apply; and promised to assess your files on a FIFO method but have broken the contractual terms. Therefore, they owe you damages.
In other words, the state may confiscate your house (for a proper public purpose) but it has to pay you fair market value for its action. Likewise, even if CIC may lawfully change the rules, it must compensate you for your loses. The best CIC can argue in this respect is that you could have withdrawn your application once it became clear what they were doing. Okay, fine, but when did that date arise? Clearly after Bill C-50 went into effect -- meaning that at a minimum you should be paid through that date -- but, I would argue, even longer because CIC never said that they policy would result in category 1 files never being assessed. In fact, it still has not expressly stated as much. Therefore, only once it became obvious -- and CIC will have to pick that date -- would the liability end.
Now, as I said, I don't expect CIC to pay damages but, rather, if the Court rejects DoJ's bid to have the second case dismissed, I expect CIC to offer to assess your files if you agree to drop the suit seeking damages. Thus, the real issue -- and it has not been litigated to my knowledge -- is whether CIC has to pay damages for changing the rules; not whether it may lawfully change them. As I said, the state may seize your house but must pay you for having done so. Likewise, a party may break a contract but, if so, is liable for damages. You paid for an assessment within the foreseeable future; CIC took the money but has failed to honour the terms. In other words, our argument is not new but rather it's as old as the courts themselves. What is new is applying contract law to CIC.
I hope that I have adequately addressed your questions. There is no question but that my approach has never been done before. Thus, there is a risk that it will not succeed. However, if you do nothing, there is no question what the result will be. Therefore, I believe that it is worth the risk.
Finally, I should mention that I have opted to go this route, as opposed to via class-action, because, with a class action, even those who do not participate will benefit, whereas in this case, the litigants only will benefit directly from the Court's ruling. If what occurred in Dragan occurs again, a second wave of litigation will ensue -- a class-action lawsuit -- but by the time it runs its course, the litigants in my suit will already have the Canadian immigrant visas. To be sure, in Dragan, I received only $20,000 from the Court, whereas the lawyers who stood on my shoulders received $2.9 million from CIC. However, my clients' files were assessed within six weeks, and the class-action lawsuit was not settled until seven months later, after which 105,000 files were processed on a visa-post FIFO method. Therefore, I've opted for this approach so that those who are willing to stand up for their rights benefit whereas those who sit on their hands may wave good-bye to them when they board their flights to Canada.
Regards,
Tim
2011/9/6 ninilson <nilson406@hotmail.com>
Dear Sir:
I'm writing to you because I'v read your letter “Action Overview” and your answer online for Mr liu, one chinese immigrant candidate submit his application before 27 February 2008 . Mr liu, others over 50 chinese and me ,we're a large group of chinese immigrant candidate Applied before 27 February 2008, just as called 91 SAP skilled worker applicants,pre-Bill C-50 applicants.Afterwards, the policy has changed three times. Now our cases become oldest cases, become Lase Priority Cases as your chart showed in your “Action Overview”. ALL chinese SAP applicants submit to HONGKONG Embasy have waiting over four years except sending one simply application form and our cases haven't been processed now.
We appriciate your action for our applicants before 26 June 2010, and are intrested in litigation. But we 91 SAP applicants before 27 February 2008, we want to know some questions. 1In your answer:we have two categories of litigants; viz., those who applied before 27 February 2008 and those who applied afterwards but before 26 June 2010 .Is it meana the two categories of litigants will be a community? As one joint litigation or devide them into two litigations? 2 What's your litigation reasons? CIC has abandoned its long-applied 'first in, first out'? If it makes, can it make CIC cancel Bill C-50?CIC boasted one-year processing ? but it's to those who applied after 27 February 2008but before 26 June2010, not to us before 27 February 2008. Does the reason adapt to us? If the two categories of litigants is are as a community,It means contradiction, 91 SAP applicants are the first category to apply, now bacome the last priority cases. Other category applicants apply later, but prior to process. And most 227 applicants have been processed now, the left applicants are less. 91 SAP applicants have more reasons to be processed. Because the applicants afterwards has jump the queue, we are injured mostly .We're afraid it will disadvantage to the litigation.And maybe more Chinese 91 applicants will hesitate to join the litigation. Can you think about to make a litigation just including applicants applied before 27 February 2008?
I will expect we will cooperate smoothly.
It will be highly appreciated if you can reply me as soon as possible.
Yours sincerely
XX XX
XX XX
最后编辑: 2011-09-09
