Attacking the H&C fee in Toussaint v Minister of Citizenship and Immigration (FCA)
For those living in Canada without immigration status, life can be difficult. There are many reasons why these individuals ended up here. A good portion would have left their country of origin with little financial resources, sometimes because it was no longer safe for them, or perhaps because they had no prospects for a good life. The lack of proper documents in Canada means that finding a decent job, or attending school to upgrade skills is usually out of the question. It is easy to understand that people in this situation are often trapped in a cycle of poverty.
One of the options available to regularize their immigration status is an application for permanent residence on Humanitarian & Compassionate (H&C) grounds, pursuant to subsection 25(1) of the Immigration and Refugee Protection Act (IRPA). People making this application hope that proper immigration status will allow them to contribute to, and benefit from, Canadian society openly. The H&C application, however, comes with a steep fee requirement: $550. For those without financial means, the fee may be so prohibitively high that the individual cannot afford to make the H&C application at all, which may ultimately reinforce the cycle of poverty.
This case can be viewed as a part of a broader campaign to alleviate the hardship of making an H&C application so that people in this situation have a way out. The political campaign to this end –Drop the Fee–came and went without any change to the Government’s policy, so efforts now turn to the law for results.
The claimant in this case is Nell Toussaint: a Grenadian national who entered Canada as a visitor in 1999. She stayed past the expiry of her visitor’s visa and remains to date in Canada without permanent resident status. Ms. Toussaint submitted an H&C application, but did not submit proof of payment of the fee, as required by paragraph 10(1)(d) of the Immigration and Refugee Protection Regulations (Regulations). Instead she submitted evidence of her poverty and a request that the fee be waived.
The Ministerial delegate responded with a letter which said that if Toussaint wanted her application to be considered at all, she would first have to pay the required fee. It is this decision which is the subject of judicial review.
Sharlow JA of the Federal Court of Appeal framed the issues as follows:
1. On a proper interpretation of subsection 25(1) of the IRPA, is the Minister of Citizenship and Immigration (the “Minister”) obliged to consider a request for an exemption from the requirement in paragraph 10(1)(d) of the Regulations, to pay a fee for processing an application under subsection 25(1)?
2. If not, then has the failure of the Governor in Council to enact regulations permitting the waiver of fees for foreign nationals living in poverty who wish to make an in-Canada application for permanent resident status pursuant to subsection 25(1) of the IRPA infringed:
(a) the rights of the appellants under sections 7 or 15 of the Charter, or
(b) the rule of law or the common law constitutional right of access to the courts?
Snider J of the Federal Court answered all of these questions in the negative. Sharlow JA’s reasoning, which will be outlined below, answered the first question in the affirmative, and confirmed the lower court in the second question.
Issue 1: Statutory interpretation of the H&C discretion
At the time of the Minister’s decision on Toussaint’s application, subsection 25(1) of the IRPA read (emphasis mine):
The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, … examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
The claimant asserted that the plain meaning of the underlined phrase was broad enough to give the Minister the discretion to grant an exemption from the $550 fee, since the fee itself is an “obligation of this Act” under paragraph 10(1)(d). On this view, the Minister’s actions amounted to the error of fettering discretion. The Minister interpreted the same phrase as referring only to the admissibility criteria located in sections 34 to 42 of the IRPA.
Deciding that the provision may reasonably bear both interpretations, Sharlow JA turns to the context and objectives of the statutory scheme to try to choose the better interpretation. Looking at the contextual factors, Sharlow JA rejects all of the Minister’s arguments and decides that the claimant’s interpretation is the better reading of subsection 25(1).
Perhaps most significant of these factors is the rejection of the argument that the Minister’s interpretation was more consistent with the statutory objectives of the IRPA. The Minister cited paragraphs 3(1) (a), (c), and (e) of the IRPA in support of the proposition that permitting a discretionary fee waiver would be inconsistent with the IRPA provisions of pursuing maximum economic benefits of immigration, supporting the development of a strong and prosperous economy, and promoting the goal of the successful integration of permanent residents to Canada (para 42). Sharlow JA says that these same objectives may be more consistent with facilitating a process that might lead to individuals in Toussaint’s position being granted permanent resident status. This reasoning directly overturns that of Snider J, who accepted the Minister’s arguments on this point. Sharlow JA also seems troubled by the possibility that a claimant would be exempted from the financial admissibility requirements contained in section 39, but would still be required to pay the H&C fee (para 50).
Thus, on this analysis of the statutory language and context, Sharlow JA’s accepts that the proper interpretation of subsection 25(1) of the IRPA obliges the Minister to consider requests for exemptions from the fee requirement.
Issue 2(a): Does the failure to enact regulations violate section 7 or 15 of the Charter?
Although the Court could have decided the issue on statutory interpretation, Sharlow JA took the opportunity to reaffirm Snider J’s reasoning in the court below on these questions. Sharlow JA’s reasons do not elaborate extensively on these constitutional matters, so one must look to the lower court’s decision to fill in the gaps.
With respect to section 7, the Court reaffirms its position that removal from Canada prior to consideration of the H&C application from Canada does not deprive an individual of life, liberty or security of the person. Snider J notes that there was no evidence concerning risk of life, liberty, or security of the person, and that even if there was, the IRPA provided adequate safeguards before deportation to ensure that any such deprivation of section 7 rights would not occur (para 38, Federal Court judgment). The lower court denied that access to H&C assessment prior to deportation constitutes a principle of fundamental justice. Rather, it was within the discretion of Parliament to enact legislation which mandated fees to access the process (para 47, Federal Court judgment). The court denied that the best interests of the child could qualify as a principle of fundamental justice, re-affirming the finding of McLachlin CJ in Canadian Foundation for Children, Youth and the Law v. Canada, 2004 SCC 4, para 12.
With respect to section 15, Sharlow JA does not agree that “poverty” or “being in receipt of social assistance” was an analogous ground protected by the Charter. Furthermore, the Court concludes that there is no evidence that individuals living in poverty suffer disproportionate hardship owing to the fee requirement. In fact, the lower court cited figures showing that individuals in poverty still, in fact, file H&C applications (para 96, Federal Court judgment).
Issue 2(b): Does the failure to enact regulations violate the rule of law or right of access to courts?
The claimant also argued that the failure to provide for a waiver of fees violated her common law right to access the courts. The claimant asked the court to extend the principle established in Polewsky v. Home Hardware Stores Ltd., 66 O.R. (3d) 600, which held that failing to waive a court fee for indigent individuals violated their common law right to access to courts. Snider J, while acknowledging that there is a fundamental right of access to the courts, believed the flaw in the argument was found in equating that right with a right to access the Minister’s discretionary powers under subsection 25(1). In her view, as confirmed by Sharlow JA, subsection 25(1) of IRPA is a discretionary decision for which there is no right to access (see FC para 114).
Applying the ruling from Imperial Tobacco British Columbia v. Imperial Tobacco Canada, 2005 SCC 49, that the Rule of Law doctrine cannot be used to invalidate legislation based on its content, both levels of court summarily reject the argument that the Rule of Law invalidates the provisions which call for the H&C fee.
Appeal to the SCC
At the time of writing this post, the claimant’s application for leave to appeal to the Supreme Court of Canada is pending. In deciding whether to hear this case, the Court will no doubt bear in mind the amendments to the IRPA, which added subsection 25(1.1) to the H&C application:
(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.
On my reading of this provision, the payment of the H&C fee is now a precondition to the exercise of ministerial discretion under subsection 25(1). The effect of this is to render the previous debate about statutory interpretation moot for H&C applications going forward. It may also strengthen an argument which claims that the correct interpretation of the provisions pre-amendment allowed for the waiver of fees.
As pointed out in the claimant’s application for leave (para 18), the constitutional determinations by the Federal Court and Federal Court of Appeal will continue to have a direct bearing on the current version of the IRPA. If the arguments which the claimant puts forward are successful, subsection 25(1.1) could be deemed constitutionally invalid.
It is for the SCC to decide whether the constitutional questions raised by the claimants are worth hearing. In my view, the most interesting constitutional argument here is the section 15 claim. It asks the court to consider poverty, conceived as a social construction, as an analogous ground for discrimination. Without doubt, this argument is an uphill climb. (see para 51 of application for leave). The claimant has to contend with previous decisions which have held that economic disadvantage and income level are not analogous grounds under section 15. However, it is important to note that various human rights legislation from the provinces do now recognize “social condition” and “receipt of public assistance” as potential grounds for discrimination. If the court decides to take on this case, I would expect the legal debate to focus heavily on this issue.
For our individual claimant, Toussaint, the Federal Court of Appeal decision is a small victory. It means that her H&C application will be sent back to the Minister to consider whether her circumstances justify waiving the H&C fee. For those interested in the broader campaign against the H&C fee, this example also shows how quickly a legal battle may be rendered irrelevant by legislative change. The true remedy will need to be sought in the legislative realm by advocating for an amendment or repealing subsection 25(1.1) of the IRPA. However given the current political climate, my advice to those involved in the campaign: don’t hold your breath.