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Federal Skilled Worker 

Federal Court Hearing

January 14-16, 2013


25 April 2013

Dear Applicants and Counsel,

As many of you know by now the Federal Court of Canada has dismissed the application for judicial review.  We are very disappointed but want to thank many of you that have taken the time to write in and show your support.

Do We Appeal?

We have taken a few days to closely review the decision and have decided we do intend to seek instructions from our clients to proceed with an appeal. Some clients have already advised us they wish to move forward with the appeal. Clearly Justice Rennie certified questions for appeal, which he did not have to do, so that the Federal Court of Appeal could review his findings and the very serious issues this case entails.  The litigation is unprecedented and affects hundreds of thousands of people and therefore warrants further consideration by a three judge panel at the Court of Appeal.

What This Means for Applicants

At present, it appears that the Federal Government intends to continue with its plan to eliminate pre-February 28th, 2008 files. As part of this process, government processing fees will be returned to applicants and this will continue.  Should an appeal be successful processing of files would resume and/or leave to appeal to the Supreme Court of Canada is a possibility.

Next Step 

We must file the appeal within thirty days of Justice Rennie’s decision. Appeals are usually heard at the Federal Court of Appeal within 8-9 months.  Given the importance of this case, the fundamental issues that remain unsettled, the number of lives this profoundly affects, we are prepared to move forward with this appeal and not charge you additional legal fees. Given the thousands of dollars this appeal would cost we would appreciate, without obligation on your part, a $150.00 contribution per main applicant. Payment can be made by cash/debit card, e-transfer, direct deposit at any TD bank, wire transfer, certified cheque, money order, bank draft, or credit card by calling into our office to process your credit card payment by telephone. You may contact Parminder Kaur in our Accounting Department at pk@bellissimolawgroup.com and discuss your preferred payment method.

You will have to communicate your intention to join the appeal and sign a new retainer agreement by Friday May 10th, 2013.

Court Costs

There always remains the possibility the Federal Court and/or Federal Court of Appeal can award costs against the applicants, although the likelihood of this is low considering the public interest in Constitutional litigation.  Justice Rennie has asked for submissions on costs within twenty days of his decision.

Can I Join the Appeal?

No, only those clients who filed an application for leave at the Federal Court will be permitted to be part of the proceeding before the Federal Court of Appeal.

What if I Do Not Want to Appeal? 

There is no obligation that you join the appeal and should the law be struck down you may still benefit.  However, we cannot take any more steps on your behalf and/or include you in any potential settlements should those arise. We will close your file.

Closing Remarks 

We appreciate this has been a very long and frustrating journey, but it is one that has not necessarily concluded.  We remain committed to this process and will continue to work diligently on your behalf.  We await your instructions.

Sincerely Yours,

Mario D. Bellissimo


April 19, 2013

The Federal Court of Canada has dismissed the application for judicial review. However, Mr. Justice Rennie, who issued the ruling, has left the door open for a possible appeal.

The Decision

On March 29th, 2012, Citizenship and Immigration Canada (CIC) announced that all applications made to the FSWP before February 27th, 2008 would be eliminated without review. Many applicants wished to challenge this decision, and several hundred added their names to a possible class action lawsuit.

The lawyers representing the applicants argued, among other points, that the decision to eliminate the backlog was in violation of two laws: the Canadian Bill of Rights and Canadian Charter of Rights and Freedoms.

Justice Rennie expressed sympathy for the plight of would-be applicants. In his official decision, he stated that “applicants have waited in the queue for many years only to find the entrance door closed. They see the termination of their hope for a new life in Canada to be an unfair, arbitrary and unnecessary measure.”

Despite his sympathy, his ultimate conclusion was that CIC’s actions were in fact within the bounds of both the Bill of Rights and the Charter. As applications were ‘terminated by operation of law’, the court would not proceed further in challenging the government.

What This Means for Applicants

At present, it appears that the Federal Government intends to continue with its plan to eliminate pre-February 28th, 2008 files. As part of this process, government processing fees will be returned to applicants.

Attorney David Cohen was among the lawyers representing applicants in this legal proceeding. “I am, of course, extremely disappointed in the outcome to date,” he said. “I still feel strongly that the government’s decision to terminate the applications of individuals who waited patiently and played by all the rules is both unethical and immoral. Unfortunately, the Federal Court determined that it was not illegal.”

Applicants whose files are scheduled to be eliminated are not precluded from reapplying for Canadian immigration, if eligible. A revised FSWP will be opening its doors to applicants on May 4th, 2013. In total, there are over 60 programs that can lead to Canadian Permanent Residency.

Room for Appeal

While we are very disappointed with the decision, appealing the judge’s decision remains an option, the Court did certify questions for the Federal Court of Appeal to consider.  We are currently studying the decision and will report back to you next week.

Click here to read the decision.

Mario D. Bellissimo

April 3, 2013

We are still awaiting the decision of the Honourable Justice Rennie and we’ll announce via Twitter (@bellissimolaw) and Facebook  as soon as we have the decision.

Once we review the decision we will then post further details regarding its implications.

Thank you.

Mario D. Bellissimo

March 19, 2013 

Mario D. Bellissimo Takes Part in Google+ Interview with TVO Producer Hilary Clark Regarding FSW Backlog Litigation

Click here to watch the interview

March 7, 2013

Today at the Ontario Bar Association seminar where I was honored to be a speaker – The Honourable Chief Justice Crampton announced that the Honourable Justice Rennie will render a decision on the FSW backlog litigation by the end of this month.

Mario D. Bellissimo

February 6, 2013

The Honourable Justice Rennie has made the following announcement:

“The Court invites written submissions from the parties on whether the Canadian Charter of Rights and Freedoms (Constitution Act, 1982 (80) 1982, c.11 (UK), Schedule B, Part I) applies to the applicants, as non-citizens residing outside of Canada. Submissions due February 22, 2013 with right of reply to the applicants by March 1, 2013”

January 28, 2013

Dear All,

Although we cannot comment on the details of the legal arguments given this matter is active before the Federal Court, we will continue to update you on the progress of the matter.

On Friday January 25th, the Department of Justice responded by providing comments with respect to the statistics we presented relating to applicants’ country of national origin and residence as part of the section 15 Charter submissions.  They also provided their response to the proposed certified questions to the Federal Court of Appeal. All materials are now with the Honourable Justice Rennie for a decision.

Given the sheer volume of materials and the number of applicants’ issues that have been raised it will take some time for a decision.

We will update you as soon as we hear anything from the Federal Court.

Mario D. Bellissimo

January 21, 2013

Click here to watch the latest announcement from Mario D. Bellissimo

January 17, 2013

We have just completed three days of hearings in the Federal Court of Canada. My co-counsel, Mario Bellissimo made oral submissions on behalf of our clients. Also making oral submissions on behalf of the applicants were Lorne Waldman, Rocco Galati, Matthew Jeffery and Lawrence Wong. Whether we ultimately win or lose this case, all participating counsel should be commended. They all provided compelling arguments. The hearings concluded with the judge asking both sides to submit questions that they feel should be certified for appeal. Briefly put, a certified question is one that is of national importance and there may be a number of questions that the court certifies. This part of the process will be completed by the end of next week. After that, we wait for the decision of the Court. There is no time limit for the decision but it will likely be handed down relatively soon. After that the losing side will decide if they wish to appeal. As events unfold we will make further posts on this thread.

Co-counsel, David Cohen

January 16, 2013

We concluded our legal arguments by 12:30 p.m. on day two.  The Department of Justice began their submissions after the lunch break and defend the changes as in the best interests of a better, more flexible just in time immigration system.  Constitutional arguments in defence of section 15 and 7, amongst others, began and will conclude on day three.

Mario D. Bellissimo

January 15, 2013

Day one in the class action proceeding has concluded.  The Honourable Mr. Justice Rennie heard arguments from 9:30 a.m. to 4:00 p.m. I made extensive submissions for over two hours asking the Court to strike the law on constitutional grounds as having no force and effect.  Applicant’s arguments will end by 12:00 p.m. tomorrow at which time the Department of Justice will present its responding arguments.  We will keep you posted.

Mario D. Bellissimo

January 14, 2013

Dear All,

On behalf of the hundreds of applicants we represent we walk into Federal Court on your behalves today, January 14th 2013. We did not and do not assume this responsibility lightly and so our team has spent hundreds of hours over the past several months preparing for this very complex case to present our arguments with force and clarity.  It is likely the hearing will require the full three days with a final opportunity on Wednesday for the Applicants to present their reply arguments after the Department of Justice responds to our opening submissions.

We will attempt to provide daily updates over the next few days.

Thank you.

Mario D. Bellissimo

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