Travel document class-action suit jumps first hurdle
Cost to the government could be more than $700 million in refunded fees
Ian Mulgrew
Vancouver Sun
Saturday, January 05, 2008
A Coquitlam couple has won the first round in a $700-million-plus legal battle to force Ottawa to reimburse people overcharged for more than 12 million visas and other travel documents.
Federal Court Judge Sean Harrington gave the green light Friday for Alan and Irina Hinton's class-action lawsuit to proceed and told both sides to immediately file the requisite documents.
The Hintons stand to gain only an estimated $36.69 — the overcharge on her spousal sponsorship fee, but the costs to the government will be enormous if its estimates are correct.
“We're just thrilled: It's not the money, it's the principle,” said Alan Hinton, a 30-year-old computer software worker.
“We recognized that the government was overcharging for this service and we just felt it only right we complain. There's a lot of people in our situation and it's a hardship.”
In May 2003, Hinton paid $75 to the government so his wife could come to Canada from the former Soviet Union.
“This was way too much to charge and the government must be held accountable,” he said.
Hinton and others want the fees declared illegal and the difference between the fee and the actual cost of creating the travel documents returned with interest. The couple initially applied for a judicial review of the fee but recent federal Court of Appeal rulings indicated such lawsuits should proceed as class actions.
After reviewing the case during a hearing in Vancouver last November, Judge Harrington agreed. In certifying the suit, Judge Harrington pointed out that under a judicial review only the fee paid by Hinton would be considered by the court; as a class action, more than 40 fees will be reviewed.
“There is judicial economy, access to justice is easier and more economical, and were it not for this form of action there would be little incentive to apply to the courts for redress, because, if the applicants are right, individual loss is minor but the overall loss is substantial,” he said.
If the important issues raised are to be addressed, Judge Harrington said it must be through a class-action suit.
The case is about a systemic violation by the government, not a single individual case.
Why, for instance, would the Hintons pay thousands in legal fees to recover a paltry sum?
“The Minister [of Immigration] takes the position that the cost of the service exceeded the revenue,” Judge Harrington said. “If so, that is a perfectly valid defence. The best way to get to the bottom of things is by an action.”
Hinton's lawyer Richard Kurland said this is the first contested class-action lawsuit certified by the court.
The legal question in the case centres on whether Ottawa charged more for the travel documents than they cost to create.
Under the federal Financial Administration Act, the Crown can profit from services it provides only by first obtaining Parliament's permission.
Kurland says the previous Liberal administration did not do that because it didn't want to suffer politically by admitting it was profiting on the backs on immigrants and their families.
Now, he said, the Conservative government is faced with the same problem — it has not reduced the fees and continues to reap the illicit profit.
“An extra $37 might mean very little in Vancouver,” Kurland emphasized.
“But in a little town outside of Moscow, that's a lot of money. For a family in a Third World country, these extra fees can amount to thousands of dollars and are a crushing amount.”
If successful, the suit could affect millions of individuals who applied for various federal travel documents between April 1, 1994 and March 31, 2004.
That's a big “if.”
Since his appointment by Prime Minister Jean Chretien in 2003, Harrington has not shirked from being a gadfly on the bench.
From the beginning his decisions, occasionally sprinkled with quotes from Shakespeare, have made headlines, and triggered appeals. In 2004, he outraged Ottawa by ruling it could not order an environmental review of a soil incinerator in Atlantic Canada because the project was nearly built and no longer in the planning stage.
Two years ago, he lambasted Ottawa for showing “little compassion” towards a Filipino nanny who fought for a decade to stay in Canada only to be rejected by the immigration department. He said she could stay.
Similarly, he briefly prevented a violent Winnipeg gang member from being deported back to his native Somalia.
But Ottawa managed to meet his concerns and whisk the 26-year-old thug out of the country.
Last year, Harrington left mouths agape with an astonishing interpretation of what constitutes freedom of religion. He quixotically delayed the deportation of a failed South American refugee claimant so he could finish converting to Judaism from Christianity. Harrington said the man's wife and rabbi would be unable to participate in the final stages if he were thrown out of the country.
And in another controversial decision last year, Judge Harrington ordered Canada's privacy commissioner Jennifer Stoddart to investigate an American website even though she insisted she had no jurisdiction outside of the country.
Once again he has stood up for the little guy.
Still, this action has a long way to go before anyone is reimbursed, no matter how paltry the
sum.
imulgrew@png.canwest.com
