PRACTICE
Pleadings
Motion to Strike
Plaintiffs proposing class action on behalf of all those having applied, paid prescribed fees for permanent resident visas, work permits, student permits, temporary resident visas, renewal of temporary status—Alleging fees excessive, seeking restitution based on unjust enrichment, negligence— Defendant moving to strike statement of claim, dismiss action —At motion to strike stage, allegations of fact, i.e. fees paid exceeding defendant’s costs contrary to Financial Administration Act (FAA), taken to be true—Main thrust of motion is that fees validly levied, collected pursuant to various Immigration Regulations prevailing over FAA—FAA, s. 19(2) providing that fees for service not to exceed cost to Her Majesty of providing service—Not plain, obvious that by permitting fees under Immigration and Refugee Protection Act (IRPA) to be fixed by regulations, Parliament intended service fees could exceed cost—Not plain, obvious Parliament intended necessary services to be provided on more than cost‑recovery basis—FAA multipurpose statute—Court not prepared to accept, on motion to strike, regulation under other Act capable of circumventing FAA, s. 19(2)—Absent language to contrary, Regulations must conform to requirements of FAA—Defendant arguing plaintiffs not entitled to refund—Cases relied on dealing withtaxes—Here, service fees not taxes—Court not prepared to hold, in context of motion to strike, refund not available with respect to moneys collected, paid into public treasury that are not taxes—As to unjust enrichment cause of action, no plain, obvious juristic reason to deny recovery—Plaintiffs thus making out prima facie case, defendant not rebutting that case—Plaintiffs also setting out sufficient facts re: mutual mistake, money had and received causes of action—With respect to negligence, liability subject to determination of whether sufficient proximity to give rise to duty of care, and if so, whether policy considerations negating duty—Here, plain, obvious action in negligence cannot succeed—Motion granted in part—Financial Administration Act, R.S.C., 1985, c. F‑11, s. 19(2) (as am. by S.C. 1991, c. 24, s. 6)— Immigration and Refugee Protection Act, S.C. 2002, c. 27.
Momi v. Canada (Minister of Citizenship and Immigration) (IMM‑1669‑05, 2005 FC 1484, Harrington J., order dated 3/11/05, 18 pp.)