NOVA SCOTIA IMMIGRANTION LAWSUIT FINALLY SETTLED

The long saga of the Nova Scotia provincial nominee program economic stream law suit is finally over:

Immigrant class action suit is over


By Donalee Moulton

The Lawyers Weekly



Vol. 31, No. 35

(January 27, 2012)





A class action lawsuit that pitted the Nova Scotia government against immigrants who paid to come live and eventually start a small business in the province is over. Both sides have signed off on an agreement approved by the Supreme Court of Nova Scotia that will give roughly 365 eligible individuals up to $63,750 each.

Each party is claiming victory -- for themselves and their opponent -- in a suit that brings finality to a well-intended but ill-fated program and also established a new way to manage class action suits.

"The key benefit to the province is that the settlement agreement captures all the claims that could be made by class members with respect to fees paid to the Nova Scotia Nominee Program," said Greg McMullen, an associate with Branch MacMaster LLP in Vancouver, which represented the plaintiff. "This should bring the last chapter of the troubled program to a close and let everyone move on."

The province agrees that finality is a positive outcome. It enables class members to submit a claim and gives the province some financial peace of mind, said Tom Peck, spokesman for Nova Scotia's Office of Immigration in Halifax. "All potential class members will be bound by the settlement agreement unless they opt out of the class action. Once the opt-out period has passed, the province will not be subject to any further lawsuits outside of the settlement agreement unless brought by a nominee who opted out of the class action."

Nova Scotia's nominee program is the first step in an application process for a permanent resident visa to Canada. It is used to recruit and select immigrants who intend to settle in the province. The class action involves immigrants who paid to come to Nova Scotia under a defunct arm of the program known as the "economic stream." The initiative, which ran from 2003 to 2006, was intended to attract entrepreneurs and help them establish a business. In return, the immigrants paid an upfront sum (upwards of $100,000) to live and work in the province.

The program did not pan out as planned. Instead, the approach proved controversial -- having immigrants pay to come to the province was hotly debated -- and concerns were raised about the operation of the program.

A special report on the economic stream prepared by the Office of the Auditor General in 2008 found "significant deficiencies" in the program.

One area of concern was the lack of mentorship programs, which was considered a key element of the economic stream and a component paid for by the immigrants. "We concluded the objective to provide nominees with a mentorship position was not met. Only 210 of the 532 economic nominees landed in Canada participated in mentorships," provincial Auditor General Jacques Lapointe stated in his 33-page report.

The final step in the demise of the economic stream is the class action suit. "The class is made of everyone who paid fees to the Nova Scotia Nominee Program, landed in Canada, and became a permanent resident, and hasn't already received a refund," McMullen said.

"In the original claim," he said, "the proposed class was limited to people who had not signed a 'mentorship contract,' meaning they did not have the work experience that was promised under the Nova Scotia Nominee Program. However, the settlement agreement incorporated two sub-classes: one for class members who did not sign a mentorship contract and one for class members who did."

Members of the non-mentorship class will receive $75,000 while members of the mentorship class will receive $75,000 less any amounts they were previously paid as salary or other benefits during their mentorship, Peck said. From this payment for both classes will be deducted the 15 per cent contingency fee for class counsel.

Reaching eligible individuals has been a focus, McMullen said. "No matter how big a settlement benefit is, class members can't claim if they don't find out about the settlement."

Ensuring a wide distribution of material to potential class members was a focus -- and broke new ground in class action lawsuits in Canada.

"The notice program includes a 'skip search' provision so that if any mail or email is returned to sender or the province becomes aware that someone has not received notice, the province will retain a skip searcher to try to update the address for that class member," said McMullen said. "To the best of our knowledge, this is the first settlement agreement in Canada to include a skip search provision."

Streamlining the claim form was also critical, he said. "[N]o matter how good the benefits, if the claim form is too complicated, the take-up rate will drop. We knew this would be especially true for a class made up of people who are new to Canada, many of whom are not familiar with the Canadian legal system, or face significant language barriers.

"For non-mentorship class members, the claim form is one page and only asks for the most basic of information and a photocopy of the details page of the class member's current passport," he noted. "For mentorship class members, the form is just over one page and requires some supporting documentation to show how much money was earned during the mentorship."

While Nova Scotia's nominee program still exists to attract immigrants to the province, the economic stream no longer exists. "This stream was closed to new applicants on July 1, 2006," said Peck. "The province will not be reinstating it."