Court Documents




		HINTON STATEMENT OF CLAIM, & HINTON STATEMENT OF DEFENCE

Court File Number: IMM-5015-06

FEDERAL COURT

CLASS ACTION

ALAN HINTON

IRINA HINTON

PLAINTIFFS

and

HER MAJESTY THE QUEEN

DEFENDANT

______________________________________________________________________

STATEMENT OF CLAIM

______________________________________________________________________

TO THE DEFENDANT: A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiffs. The claim made against you in set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are required to prepare a statement of defence in Form 171B prescribed by the Federal Court Rules serve it on the plaintiff’s solicitor or, where the plaintiff does not have a solicitor, serve it on the plaintiff, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS after this statement of claim is served on you, if you are served within Canada.

If you are served in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period for serving and filing your statement of defence is sixty days.

Copies of the Federal Court Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against you in your absence and without further notice to you.

Date: [JAN 18 2008] Issued by: [MAGGIE LAU REGISTRY OFFICER]

TO: Solicitor for the Defendant

Deputy Attorney General of Canada

First Canadian Place, Exchange Tower

Box 36. Suite 3400

Toronto, Ontario

M5X IK6

[LORNE WALDMAN]

_________________

Lorne Waldman

Barrister & Solicitor

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

Solicitor for the Plaintiffs

CLAIM

1. The Plaintiff, Alan Hinton (“Alan”) is a senior computer systems consultant who resides at 5-98 Begin St., Coquitlam, British Columbia, V3K 6M9.

2. The Plaintiff, Irena Hinton (“Irena”), a communications assistant, who resides with the Plaintiff.

3. Alan and Irena are husband and wife.

4. The Defendant is Her Majesty the Queen as represented by her agent, the Minister of the Citizenship and Immigration.

5. On or about May 30, 2003 the Alan submitted an application to sponsor Irena for permanent residency in Canada. At that time, he paid the sponsorship application processing fee of $75.00, pursuant to a decision of the Minister of Citizenship and Immigration Canada (CIC), and as was required by s. 304(1) of the Immigration and Refugee Protection Regulations SOR/2002-227, in order to be provided the service of processing of his application.

6. The Plaintiffs are members of a class of persons (hereinafter referred to as the "Plaintiff Class" ) who, at any time during the period April 1, 1994 to March 31, 2004 (the "Material Period") paid a fee or charge (hereinafter referred to as the "Fee" or the "Fees") to the Defendant for a determination of any of the applications made pursuant to any one or more of the Regulations (hereinafter referred to as the "Fee Regulations") listed on Schedule "A" hereto (hereinafter referred to as the "Service" or "Services"), and who were informed of determination decisions in respect of such applications on or after 12 September, 2000 and the Plaintiff Class includes all such persons regardless of the outcome of their application as well as all such applications that are currently in progress.

7. Excluded from the Plaintiff Class are:

(a) the following ten individuals who took action against Her Majesty, which actions have either been discontinued or dismissed:

(i) Hui Jin, T- 1546-01

(ii) Armit Sethi, T-1544-01

(iii) Sumie Takahashi. T-1545-01

(iv) Kong Shu Xian, T-1547-01

(v) Yang Fang. T-1943-01

(vi) Libing Shu, T-1940-01

(vii) Ying Tian. T-1924-01

(viii) Minoko Watanabe, T-1941-01

(ix) Cheng Yue, T-1942-01

(ix) Wei Zhang, T-1944-01

(b) those persons who submitted an application seeking an immigrant visa before January 1, 2002, in the skilled worker, self-employed, entrepreneur and investor categories (referred to in subsection 8(1) of the former Immigration Regulations, 1978), excluding provincial nominees and those destined to Quebec:

(i) whose applications had not received a selection decision before April 1, 2003;

(ii) whose applications were refused after March 31, 2003 and before December 1, 2003, and who have reapplied on or before December 31, 2004;

(iii) whose applications were withdrawn on or after January 1, 2002 and before December 1, 2003, and who have reapplied on or before December 31, 2004;

(iv) whose applications were refused under the Immigration Act and then referred back by the Federal Court, the Federal Court of Appeal, or the Supreme Court of Canada, and were awaiting a decision on December 1, 2003;

and all family members, as defined in the Immigration and Refugee Protection Regulations, of persons referred to in (a) through (d) above, including family members who were not listed in the application.

8. The Defendant possesses, maimains and controls records concerning virtually every person in the Plaintiff C\ass in the usual and ordinary course of the Defendants activities. In particular, the Defcndant's records contain the following information regarding the Plaintiff Class:

(a) The identity persons in the Plaintiff Class;

(b) The number of persons in the Plaintiff Class;

(d) The Fees that persons in the Plaintiff Class paid to the Defendant for a Service;

(e) The cost of providing the Services to the Plaintiff Class.

9. At all material times, Immigration and Refugee Protection Regulations SOR/2002-227 and all of the Fee Regulations have been required to conform to Financial Administration Act, R.S., 1985, c. F-11. (the “FAA”)., and in particular, Section 19 of the FAA, which states:

“19. (1) The Governor in Council may, on a recommendation of the Treasury Board,

(a) by regulation prescribe the fees or charges to be paid for a service or the use of a facility provided by or on behalf of Her Majesty in right of Canada by the users or classes of users of the service or facility; or

(b) authorize the appropriate Minister to prescribe by order those fees or charges, subject to such terms and conditions as may be specified by the Governor in Council.

(2) Fees and charges for a service or the use of a facility provided by or on behalf of Her Majesty in right of Canada that are prescribed under subsection (1) or the amount of which is adjusted under section 19.2 may not exceed the cost to Her Majesty in right of Canada of providing the service or the use of the facility to the users or class of users” (emphasis added)

“19. (1) Sur recommandation du Conseil du Trésor, le gouverneur en conseil peut:

a) fixer par règlement, pour la prestation de services ou la mise à disposition d'installations par Sa Majesté du chef du Canada ou en son nom, le prix â payer, individuellement ou par caégorie, par les bénéficiaires des services ou les usagers des installations;

b) autoriser le ministre compétent à fixer ce prix par arrêté et assortir son autorisation des conditions qu'il juge indiquées.

(2) Le prix fixé en vertu du paragraphe (1) ou rajusté conformément à l'article 19.2 ne peut excéder les coûts supportés par Sa Majesté du chef du Canada pour la prestation des services aux bénéficiaires ou usagers, ou â une catégorie de ceux- ci, ou la mise à leur disposition des installations.” (emphasis added)

10. Section 304(1) of the Immigration and Refugee Protection Regulations SOR/2002-227, and all of the Fee Regulations, are unlawful, unconstitutional and ultra vires because the Fees charged pursuant thereto exceed the cost to the Defendant of providing the Services thereunder, contrary to Section 19(2) of the FAA.

11. Further, and in the alternative, Section 304(1) of the Immigration and Refugee Protection Regulations SOR/2002-227, and all of the Fee Regulations, impose illegal taxes which the Defendant may not levy except with the authority of the Parliament or the legislature. Accordingly Section 304(1) of the Immigration and Refugee Protection Regulations SOR/2002-227 and all of the Fee Regulations are unlawful, unconstitutional and ultra vires, and the Plaintiff pleads and relies on the Constitution Act, 1867, ss.53.

12. Further, and in the alternative, the Fees for the Services charged by the Defendant and paid by the Plaintiff Class Section pursuant to 304(1) of the Immigration and Refugee Protection Regulations S0R/2002-227 and all of the Fee Regulations constitute an indirect tax to the extent that they exceed the cost of providing the Services to the Plaintiff Class. Accordingly they are unlawful, unconstitutional and ultra vires in that they violate a principle central to democracy and the rule of law, being "no taxation without representation", and the Defendant is not entitled to retain any such indirect taxes as to do so would undermine the rule of law.

13. Further, and in the alternative, the Fees for the Services charged by the Defendant and paid by the Plaintiff Class Section pursuant to 304(1) of the Immigration and Refugee Protection Regulations SOR/2002-227 and all of the Fee Regulations were paid by the Plaintiff Class and received by the Defendant pursuant to a mutual mistake in that both the Defendant and the Plaintiff Class erroneously believed that the Defendant was lawfully charging and collecting the Fees paid by the Plaintiff Class for the Services. Accordingly. the Defendant must repay the Plaintiff Class the amount by which the Fees paid by the Plaintiff Class to the Defendant exceed the cost to the Defendant of providing the Services to the Plaintiff Class.

14. Further, and in the alternative, to the extent that the Fees for the Services charged by the Defendant and paid by the Plaintiff Class to the Defendant exceed the cost to the Defendant of providing the Services to the Plaintiff Class, the total amount of such excess Fees is money had and received by the Defendant for the use of the Plaintiff Class which belongs in Equity to the Plaintiff Class and must be repaid.

15. In the circumstances, the Plaintiff, and all members of the Plaintiff Class, have a right to restitution and are entitled to recover the portion of the Fees paid by them to the Defendant which exceed the cost to the Defendant of providing the Service to them.

16. Full particulars of the amount by which the Fees for the Services charged by the Defendant and paid by the Plaintiff Class to the Defendant during the Material Period exceed the cost to the Defendant of providing the Services to the Plaintiff Class are within the exclusive knowledge of the Defendant and will be provided following the conclusion the Defendant’s production of documents and examinations for discovery. Particulars presently known to the Plaintiff are set forth in the following paragraphs.

17. In the case of Mr. Hinton, who paid a fee of $75.00 for the determination of an application to sponsor his wife, the costs of the service was $36.69. The amount by which the Fees for the Service charged by the Defendant and paid in the case of Mr. Hinton exceed the cost is $38.31.

18. The amount by which the Fees for the Service charged by the Defendant and paid by the other class members exceed the cost is set out in Schedule “B” hereto.

19. The Department of Citizenship and Immigration reported to Parliament that the total annual Fees received by the Defendant for the Services paid by the Plaintiff Class during the Material Period were:

a) $145.1 million for the 1994-95 fiscal year;

b) $177.8 million for the 1995-96 fiscal year;

c) $172.4 million for the 1996-97 fiscal year;

d) $201.0 million for the 1997-98 fiscal year;

e) $213.4 million for the 1998-99 fiscal year;

f) $244.3 million for the 1999-00 fiscal year;

g) $280.5 million for the 2000-01 fiscal year;

h) $281.2 million for the 2001-02 fiscal year;

i) $218.7 million for the 2002-03 fiscal year; and,

j) $213.6 million for the 2003-04 fiscal year

Total: $2,148.0 million

17. The Department of Citizenship and Immigration reported to Parliament that the total annual costs for the Services paid by the Plaintiff Class during the Material Period were:

a) $ (not disclosed) for the 1994-95 fiscal year;

(Note: However, the annual costs during the fiscal years 1993-94; 1995-96; and 1996-97 were relatively constant at approximately $80.0 million)

b) $ 82.7 million for the 1995-96 fiscal year;

c) $ 86.0 million for the 1996-97 fiscal year;

d) $ 76.9 million for the 1997-98 fiscal year;

e) $108.7 million for the 1998-99 fiscal year;

f) $116.4 million for the 1999-00 fiscal year;

(Note: In its report for fiscal 2000-01, the Defendant modified the 1999-2000 fiscal year figure to $169.8 million.)

g) $215.7 million for the 2000-01 fiscal year;

h) $218.2 million for the 2001-02 fiscal year;

i) $185.1 million for the 2002-03 fiscal year; and,

j) $223.1 million for the 2003-04 fiscal year

Total: $1,392.8 million

(Note: If the Defendant’s original cost figure of $116.4 million for the 1999-2000 fiscal year is used, the total cost figure is $1,392.8 million. If the Defendant’s modified cost figure of $169.1 million is used for the 1999-2000 fiscal year, the total cost figure is $1,446.2 million.)

18. Accordingly, the amount by which the reported total annual Fees received by the Defendant for the Services paid by the Plaintiff Class during the Material Period exceeded the total reported annual costs for the Services paid by the Plaintiff Class during the Material Period is as follows:

a) $ “unknown” million for the 1994-95 fiscal year;

(Note: However, reported costs in prior and subsequent fiscal years were reasonably constant at $80 million per year. There is an estimated excess of $65.1 million for the 1994-1995 fiscal year.)

b) $ 95.1 million for the 1995-96 fiscal year;

c) $ 86.4 million for the 1996-97 fiscal year;

d) $124.1 million for the 1997-98 fiscal year;

e) $104.7 million for the 1998-99 fiscal year;

f) $ 74.5 million for the 1999-00 fiscal year;

(Note: If the Defendant’s modified cost figure of $169.1 million is used, the excess for the 1999-2000 fiscal year is $74.5 million. If the Defendant’s original cost figure of $116.4 million is used, the excess for the 1999-2000 fiscal year is $127.9 million.)

g) $ 64.8 million for the 2000-01 fiscal year;

h) $ 63.0 million for the 2001-02 fiscal year;

i) $ 33.6 million for the 2002-03 fiscal year; and,

j) - $ 9.5 million for the 2003-04 fiscal year

Grand Total: $701.8 million

(Note: If the Defendant’s modified cost figure for the 1999-2000 fiscal year is used, the grand total is $701.8 million. If the Defendant’s original cost figure for the 1999-2000 fiscal year is used, the grand total is $755.2 million.)

19. In the circumstances, during the Material Period the total amount by which the Fees paid by the Plaintiff Class to the Defendant have exceeded the cost to the Defendant of providing the Services to the Plaintiff Class and the total amount of the Defendant’s unjust enrichment and the corresponding deprivation of the Plaintiff Class is no less than $701.8 million.

The Plaintiff therefore claims as follows:

a) A Declaration that the Fee Regulations, and each of them are unlawful, unconstitutional and ultra vires;

b) Restitution of the portion of the Fees paid by the Plaintiff to the Defendant which exceeds the cost to the Defendant of providing the Service to the Plaintiff Class during the Material Period;

c) Restitution of the portion of the Fees paid by the Plaintiff Class to the Defendant which exceeds the cost to the Defendant of providing the Services to the Plaintiff Class during the Material Period;

d) A Declaration that all such excess Fees are held in trust for the Plaintiff and the Plaintiff Class;

e) An Order that all such excess Fees be repaid to the Plaintiff and the Plaintiff Class;

f) Interest;

g) Costs;

h) Further and other relief as this Honourable Court may deem just.

Dated at Toronto the [17]th day of January, 2008. The Plaintiff proposes that this action be tried at Toronto.

[LORNE WALDMAN]

________________________________________

LORNE WALDMAN

[LORNE WALDMAN] ________________________________________

[FOR] GERRY CUTTLER

SCHEDULE A

Application Type

Fee

Regulation Section

Immigration Act, 1976 Fees Regulations, SOR/86-64 PC. 1985-3767 Effective February 3, 1986

1

Extension of Visitor Status

$50-individual, $50-family

s. 5(1)(2)(3)

Immigration Act Fees Regulations, SOR/90-203, P.C. 1990-579 Effective April 1, 1990

2

Permanent Resident Application-Business Class

$500

s. 3(3)

3

Employment Authorizations

$75-individual, $150-group

s. 4(1) & (2)

Immigration Act Fees Regulations, SOR 91-244, P.C. 1991-621 Effective April 1, 1991

4

Permanent Resident Application-Dependants (<19, not a spouse)

$50

s. 3(4)(a), Schedule 1.(c); s. 3.(9)(a), Sch. 2(b); s. 3(6)

5

Employment Authorizations

$150 family

s. 4(3), Sch 3(c)

6

Visitor Visa

$50-individual, $100-family

s. 6.(2)&(3), Sch. 5(b) and (c)

7

Student Authorization

$75-individual, $150-family

s. 9(2)&(3), Sch. 8(b)&(c)

Immigration Act Fees Regulations SOR 92-185, P.C. 1992-557 Effective: April 1, 1992

8

Extension of Visitor Status

$50-individual, $100-family

s. 4(c)

9

Maximum Rate-Combination of Documents

$225

s.22; Sch. 21

Immigration Act, 1976 Fees Regulations SOR 92-499, PC #1992-1832 Effective: September 1, 1992

10

Permanent Resident Application-Business Class

$750

Sch. 2(a)

11

Employment Authorizations

$100-individual, $200-family, $200-group

Sch 3. (b)(c)(d)

Immigration Act Fees Regulations, SOR 93-144, P.C. #1993-534 Effective: April 1, 1993

12

Extension of Visitor Status

$60-individual

s. 5(2), Sched. 4(b)

13

Visitor Visa

$50-single entry, $75 multiple entry

s. 6(2); Sch. 5(b); s. 6 (3); Sch. 5(c)

14

Student Visa

$100

s. 9(2); Sch. 8(b)

15

Maximum Rate-Combination of Documents

$300

s.22; Sch. 21

Immigration Act Fees Regulations, SOR 94-389, P.C. 1994-860 Effective: June 1, 1994

16

Permanent Resident Application-Business Class

$825

Sch. 2(a)

17

Dependants (<19, not a spouse)

$100

s. 3(3)(a); Sch. 1(c)

18

Employment Authorizations

$125-individual, $250-group

Sch. 3(b), 3(c)

19

Extension of Visitor Status

$65-individual

Sch. 4(b)

20

Visitor Visa

$55-single entry; $85-multiple entry

s. 6(2), s. 6(3); Sch. 5(b)(c)

21

Student Authorization

$125-individual

Sch. 8(b)

22

Maximum Rate-Combination of Documents

$350

Sch. 21

Immigration Act Fees Regulations SOR/97-22, P.C. 1996-2003 Coming into Force; January 2, 1997

23

Permanent Resident Application-Business Class

$1000

Sch. (Section 3) item 2(4)(a) Column III

24

Dependants (<19, not a spouse)

$100

Sch. (Section 3) item 1(2) Column III; Item 2(2), Column III; Item 2(5), Column III; Item 2(7) Column III

25

Employment Authorizations

$150-individual; $450-group

Sch. (Section 3) item 5(1) Column III; Item 6 Column III

26

Extension of Visitor Status

$75

Sch. (Section 3) Item 3(1)(a)(b) Column II, Column III

27

Visitor Visa

$75-single; $150 multiple; $400 family

Sch. (section 3) item 3, (1)(a)(b), Column III; and Sch. Item 4(a)(b), Column III

28

Student Authorization

$125

Sch. (Section 3) Item 7(1), Column III

Immigration and Refugee Protection Regulations SOR/2002-227, June 11, 2002

29

Permanent Resident Visa – member of the investor class – principal applicant

$1050

s. 295(1)(b)(i)

30

Permanent Resident Visa – member of the investor class – a family member of the principal applicant who is 22 yrs of age or older or is less than 22 yrs of age and is a spouse or common-law partner

$550

s. 295(1)(b)(ii)

31

Permanent Resident Visa – member of the investor class - a family member of the principal applicant who is less than 22 yrs old and is not a spouse or common-law partner

$150

s. 295(1)(b)(iii)

32

Permanent Resident Visa - member of any other class or by a person referred to in s. 71 - principal applicant

$550

s. 295(1)(c)(i)

33

Permanent Resident Visa - member of any other class or by a person referred to in s. 71 - a family member of the principal applicant who is 22 yrs of age or older or is less than 22 yrs of age and is a spouse or common-law partner

$550

s. 295(1)(c)(ii)

34

Permanent Resident Visa - member of any other class or by a person referred to in s. 71 - a family member of the principal applicant who is less than 22 yrs old and is not a spouse or common-law partner

$150

s. 295(1)(c)(iii)

35

Payment by sponsor in respect of an application as a member of a family class or their family members

$475 + $75

s. 295(3)(a) & s. 304(1)

36

Temporary Resident Visa

$75-single entry; $150-multiple entry

s. 296(1); s. 297(1)

37

Temporary Resident Visas

$400 family maximum

s. 296(3), 297(2)

65

Work permits

$150-single; $450-maximum group

s. 299(1); s. 299(3)

38

Study Permits

$125

s. 300(1)

39

Permanent Resident Visa – member of the live-in caregiver class or as a protected person under 175(1) in respect of a principal applicant

$550

s. 301(1)(b)(i)

40

Permanent Resident Visa - member of the live-in caregiver class or as a protected person under 175(1) in respect of a family member of the principal applicant who is 22 yrs of age or older or is less than 22 yrs of age and is a spouse or common-law partner

$550

s. 301(1)(b)(ii)

41

Permanent Resident Visa - member of the live-in caregiver class or as a protected person under 175(1) in respect of a family member of the principal applicant who is less than 22 yrs old and is not a spouse or common-law partner

$150

s. 301(1)(b)(iii)

42

Payment by sponsor in respect of an application as a member of the spouse or common-law partner in Canada class or their family members

$475 + $75

s. 301(2)(a) & s.304(1)

43

Extension of Authority to remain in Canada as a temporary resident

$75

s. 305(1)

^{SCHEDULE B}

Application Type

Fee

Regulation Section

Minimum amount by which the Fees for the Service charged by the Defendant and paid by the other class members exceed the cost

Immigration Act, 1976 Fees Regulations, SOR/86-64 PC. 1985-3767 Effective February 3, 1986

1

Extension of Visitor Status

$50-individual, $50-family

s. 5(1)(2)(3)

$37.55 individual, and

$37.55-family

Immigration Act Fees Regulations, SOR/90-203, P.C. 1990-579 Effective April 1, 1990

2

Permanent Resident Application-Business Class

$500

s. 3(3)

$322.45

3

Employment Authorizations

$75-individual, $150-group

s. 4(1) & (2)

$26.10 individual, “determinable on a case by case basis”-group

Immigration Act Fees Regulations, SOR 91-244, P.C. 1991-621 Effective April 1, 1991

4

Permanent Resident Application-Dependants (<19, not a spouse)

$50

s. 3(4)(a), Schedule 1.(c); s. 3.(9)(a), Sch. 2(b); s. 3(6)

“determinable on a case by case basis”

5

Employment Authorizations

$150 family

s. 4(3), Sch 3(c)

“determinable on a case by case basis”

6

Visitor Visa

$50-individual, $100-family

s. 6.(2)&(3), Sch. 5(b) and (c)

$12.35 individual, “determinable on a case by case basis”-family

7

Student Authorization

$75-individual, $150-family

s. 9(2)&(3), Sch. 8(b)&(c)

$22.88 individual, “determinable on a case by case basis”-family

Immigration Act Fees Regulations SOR 92-185, P.C. 1992-557 Effective: April 1, 1992

8

Extension of Visitor Status

$50-individual, $100-family

s. 4(c)

$37.55 individual, “determinable on a case by case basis”-family

9

Maximum Rate-Combination of Documents

$225

s.22; Sch. 21

“determinable on a case by case basis”

Immigration Act, 1976 Fees Regulations SOR 92-499, PC #1992-1832 Effective: September 1, 1992

10

Permanent Resident Application-Business Class

$750

Sch. 2(a)

$572.45

11

Employment Authorizations

$100-individual, $200-family, $200-group

Sch 3. (b)(c)(d)

$51.11 individual; “determinable on a case by case basis”-family and group

Immigration Act Fees Regulations, SOR 93-144, P.C. #1993-534 Effective: April 1, 1993

12

Extension of Visitor Status

$60-individual

s. 5(2), Sched. 4(b)

$47.55

13

Visitor Visa

$50-single entry, $75 multiple entry

s. 6(2); Sch. 5(b); s. 6 (3); Sch. 5(c)

$12.35 single entry

14

Student Visa

$100

s. 9(2); Sch. 8(b)

$47.88

15

Maximum Rate-Combination of Documents

$300

s.22; Sch. 21

“determinable on a case by case basis”

Immigration Act Fees Regulations, SOR 94-389, P.C. 1994-860 Effective: June 1, 1994

16

Permanent Resident Application-Business Class

$825

Sch. 2(a)

$647.45

17

Dependants (<19, not a spouse)

$100

s. 3(3)(a); Sch. 1(c)

“determinable on a case by case basis”

18

Employment Authorizations

$125-individual, $250-group

Sch. 3(b), 3(c)

$76.10 individual, “determinable on a case by case basis”-group

19

Extension of Visitor Status

$65-individual

Sch. 4(b)

$52.55

20

Visitor Visa

$55-single entry; $85-multiple entry

s. 6(2), s. 6(3); Sch. 5(b)(c)

$17.35 single entry

21

Student Authorization

$125-indvidual

Sch. 8(b)

$72.88

22

Maximum Rate-Combination of Documents

$350

Sch. 21

“determinable on a case by case basis”

Immigration Act Fees Regulations SOR/97-22, P.C. 1996-2003 Coming into Force; January 2, 1997

23

Permanent Resident Application-Business Class

$1000

Sch. (Section 3) item 2(4)(a) Column III

$822.45

24

Dependants (<19, not a spouse)

$100

Sch. (Section 3) item 1(2) Column III; Item 2(2), Column III; Item 2(5), Column III; Item 2(7) Column III

“determinable on a case by case basis”

25

Employment Authorizations

$150-individual; $450-group

Sch. (Section 3) item 5(1) Column III; Item 6 Column III

$101.10 individual; “determinable on a case by case basis”-group

26

Extension of Visitor Status

$75

Sch. (Section 3) Item 3(1)(a)(b) Column II, Column III

$62.55

27

Visitor Visa

$75-single; $150 multiple; $400 family

Sch. (section 3) item 3, (1)(a)(b), Column III; and Sch. Item 4(a)(b), Column III

$37.35 single, $38.61 multiple; “determinable on a case by case basis”-family

28

Student Authorization

$125

Sch. (Section 3) Item 7(1), Column III

$72.88

Immigration and Refugee Protection Regulations SOR/2002-227, June 11, 2002

29

Permanent Resident Visa – member of the investor class – principal applicant

$1050

s. 295(1)(b)(i)

$872.45

30

Permanent Resident Visa – member of the investor class – a family member of the principal applicant who is 22 yrs of age or older or is less than 22 yrs of age and is a spouse or common-law partner

$550

s. 295(1)(b)(ii)

“determinable on a case by case basis”

31

Permanent Resident Visa – member of the investor class - a family member of the principal applicant who is less than 22 yrs old and is not a spouse or common-law partner

$150

s. 295(1)(b)(iii)

“determinable on a case by case basis”

32

Permanent Resident Visa - member of any other class or by a person referred to in s. 71 - principal applicant

$550

s. 295(1)(c)(i)

“determinable on a case by case basis”

33

Permanent Resident Visa - member of any other class or by a person referred to in s. 71 - a family member of the principal applicant who is 22 yrs of age or older or is less than 22 yrs of age and is a spouse or common-law partner

$550

s. 295(1)(c)(ii)

“determinable on a case by case basis”

34

Permanent Resident Visa - member of any other class or by a person referred to in s. 71 - a family member of the principal applicant who is less than 22 yrs old and is not a spouse or common-law partner

$150

s. 295(1)(c)(iii)

“determinable on a case by case basis”

35

Payment by sponsor in respect of an application as a member of a family class or their family members

$475 + $75

s. 295(3)(a) & s. 304(1)

$38.31 sponsorship

36

Temporary Resident Visa

$75-single entry; $150-multiple entry

s. 296(1); s. 297(1)

$37.35 single entry; $38.61 multiple entry

37

Temporary Resident Visas

$400 family maximum

s. 296(3), 297(2)

“determinable on a case by case basis”

65

Work permits

$150-single; $450-maximum group

s. 299(1); s. 299(3)

$101.10 single; “determinable on a case by case basis”-group

38

Study Permits

$125

s. 300(1)

$72.88

39

Permanent Resident Visa – member of the live-in caregiver class or as a protected person under 175(1) in respect of a principal applicant

$550

s. 301(1)(b)(i)

$372.50

40

Permanent Resident Visa - member of the live-in caregiver class or as a protected person under 175(1) in respect of a family member of the principal applicant who is 22 yrs of age or older or is less than 22 yrs of age and is a spouse or common-law partner

$550

s. 301(1)(b)(ii)

“determinable on a case by case basis”

41

Permanent Resident Visa - member of the live-in caregiver class or as a protected person under 175(1) in respect of a family member of the principal applicant who is less than 22 yrs old and is not a spouse or common-law partner

$150

s. 301(1)(b)(iii)

“determinable on a case by case basis”

42

Payment by sponsor in respect of an application as a member of the spouse or common-law partner in Canada class or their family members

$475 + $75

s. 301(2)(a) & s.304(1)

$38.31 sponsorship

43

Extension of Authority to remain in Canada as a temporary resident

$75

s. 305(1)

$62.55

FORM 171B - STATEMENT OF DEFENCE

Federal Courts Rules Rule 171

Court File No.: IMM-5015-06

FEDERAL COURT

BETWEEN :

ALAN HINTON

IRINA HINTON

Plaintiffs

and

HER MAJESTY THE QUEEN

Defendant

STATEMENT OF DEFENCE

1. The Deputy Attorney General of Canada, on behalf of Her Majesty the Queen (the "Defendant") denies each and every allegation in the Plaintiffs' Statement of Claim (the "Claim") and puts them to the strict proof of those allegations.

2. The Minister of Citizenship and Immigration is and was at ail material times, the Minister responsible for the administration of the former Immigration Act, R.S.C. 1985, c. 1-2 and the current Immigration and Refugee Protection Act, S.C. 2001, c. 27 and the Regulations passed pursuant to those two statutes.

3. The Defendant denies the Plaintiffs' allegations contained in paragraphs #4-#5, #8-#16, #17 (on page 8), #18 (on page 8), #19 (on page 8), #17 (on page 9), #18 (on page 10) and #19 (on page 11) of the Claim.

4. The Defendant has no knowledge of the allegations contained in paragraphs #1-#3 of the Claim.

5. With respect to paragraphs #6 and #7 of the Claim, the Defendant states the class is as defined in the Order of Justice Harrington, dated January 4, 2008, in Hinton v. M.C.I., IMM-5015-06.

6. At all material times, the Governor-in-Council has had the statutory authority to make Regulations respecting the payment of servioe fees to the Department of Citizenship and Immigration ("CIC") for application processing services provided by that federal Department and other federal Departments, under the Immigration Act and the Immigration and Refugee Protection Act, including prescribing the amounts of those fees, as follows:

(a) at all material times, pursuant to the Financial Administration Act;

(b) at all material times up to and including June 27, 2002, pursuant to the Immigration Act;

7. Pursuant to its statutory authority, the Governor-in-Council enacted the following Regulations ("Fee Regulations"):

(a) Immigration Act Fees Regulations, SOR/86-64 and subsequent amendments:

(b) Part 19 (Fees) of the Immigration and Refugee Protection Regulations, SOR 2002/227 and subsequent amendments.

8. The Fee Regulations prescribe various service fees payable to CIC ("CIC service fees”) for the Defendant's processing of various applications submitted to CIC (sponsorship, visitor, student, worker or immigrant applications) under the (former) Immigration Act and the (current) Immigration and Refugee Protection Act. These various CIC service fees and applications are listed in Schedule A to the Claim.

9. At all material times, these service fees charged by and payable to CIC, were charged pursuant to the authority of valid Fee Regulations.

10. CIC’s various service fees are set at amounts equal to or less than the Defendant's full costs of processing that particular type of application (sponsorship, visitor, student, worker or immigrant) submitted to CIC.

11. At all material times, these CIC service fees, charged by and payable to CIC pursuant to the Fee Regulations, were lawful and in accordance with the Financial Administration Act. The Defendant denies that CIC service fees charged to and paid by the Plaintiff c1ass under the Fee Regulations, exceeded the Defendant's full costs of processing the various applications submitted to CIC.

12. The Defendant states that the Fee Regulations prescribe CIC service fees which are equal to or less than the Defendant's full costs of processing the various applications submitted to CIC.

13. In answer to the allegations contained in paragraphs #17 (on page 9), #18 (on page 10) and #19 (on page 11) of the Claim, the Defendant states that in its annual “Departmental Performance Reports", CIC reports to Parliament the expenditures made by CIC alone. CIC’s "Departmental Performance Reports" do not report to Parliament the additional expenditures made by other federal government Departments in support of CIC’s programs and operations.

14. Pursuant to section 19(2) of the Financial Administration Act, CIC’s service fees properly take into account the Defendant's full costs of processing the applications submitted to CIC. Her Majesty's costs are not limited to, and are significantly greater than, CIC’s costs.

15. The Defendant denies that CIC charged illegal or indirect taxes. CIC’s service fees established in the Fee Regulations comply with the Financial Administration Act and therefore are not illegal or indirect taxes.

16. The Defendant denies that CIC charged its service fees by "mistake". Rather, CIC's service fees were established on a cost recovery basis and set at amounts equal to or less than the Defendant's full costs of processing the applications submitted to CIC.

17. Neither CIC nor the Defendant were unjustly enriched as alleged by the Plaintiffs, as a result of the payment of CIC service fees by the Plaintiff class. The Plaintiffs and the Plaintiff class have not suffered any deprivation and are not entitled to any restitution for "excess fees" or any other claim in equity.

18. The Defendant pleads and relies upon the Financial Administration Act, R.S., c. F-10 , s. 1 (in particular, sections 7, 8, 10, 17, 19, 19.1, and 19.3), the Federal Courts Act, R.S., 1985, c. F-7, s. 1; 2002, c. 8, s. 14 (in particular, section 39), the Crown Liability and Proceedings Act, R.S., 1985, c. C-50, s. 1; 1990, s. 8, s. 21 (in particular, section 32) and the Statutory Instruments Act, RS. 1985, c, S-22.

19. The Defendant requests that the Plaintiffs' claim be dismissed and the impugned Fee Regulations be declared lawful and constitutional.

February 15, 2008

[JOHN H. SIMS, QC per: Marie-Louise Wcislo]

John H. Sims, Q.C.

_____________________________

Deputy Attorney General of Canada

Per: Marie-Louise Wcislo

Department of Justice

Ontario Regional Office

The Exehange Tower

130 King St. West

Suite 3400 , Box 36

Toronto, Ontario

M5X 1K6

Tel: (416) 973-7547

Fax: (416) 954-8982

Solicitor for the Defendant

TO: Lerne Waldman and

Gerry Cuttler

c/o Waldman & Associates

Barristers and Solicitors

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

Tel : (416) 482-6501

Fax: (416) 489-9618

Solicitors for the Plaintiffs


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