Li v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Dawson, Layden-Stevenson and Mainville, JJ.A.
• Citation: (2011), 420 N.R. 30 (FCA),2011 FCA 110
• Date: 15 March 2011

Li v. Can. (M.C.I.) (2011), 420 N.R. 30 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. AP.014

Tao Li (appellant) v. The Minister of Citizenship and Immigration (respondent)

(A-295-10; 2011 FCA 110)

Indexed As: Li v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Dawson, Layden-Stevenson and Mainville, JJ.A.

March 28, 2011.

Summary:

Li, a Canadian citizen, sponsored his parents to become permanent residents. He submitted his sponsorship application to the Minister of Citizenship and Immigration on August 7, 2003, and paid a sponsorship fee of $75 and permanent residence (PR) application fees totalling $1,025, payable pursuant to ss. 295(1)(a) and 295(3)(a) of the Immigration and Refugee Protection Regulations. The sponsorship application was approved on October 12, 2005, and the parents submitted applications for permanent residence on November 1, 2005. They were issued permanent resident visas on February 15, 2007. Li applied for judicial review on February 19, 2009, seeking a declaration that s. 295(3)(a) of the Regulations was ultra vires in that it conflicted with s. 19 of the Financial Administration Act, which authorized fees on a cost recovery basis, and that the Minister behaved illegally in charging him the PR application fee. Such a declaration was a prerequisite to the action for damages that Li intended to bring against the Minister to recover the PR application fee.

The Federal Court, in a decision reported at 376 F.T.R. 195, dismissed the application. The fees provided for in s. 295(3) were not illegal. The following question was certified as a serious question of general importance: "Is Immigration and Refugee Protection Regulation 295(3)(a), as applied to sponsored immigrant visa applications made by parents and grandparents, ultra vires on the ground it is inconsistent with s. 19 of the Financial Administration Act?".

The Federal Court of Appeal answered "no" and consequently dismissed the appeal. Requiring the simultaneous payment of the fees for both applications could be justified under the nexus or reasonable connection test, particularly in light of the fact that the fees for processing the visa application could be refunded in the event the sponsorship application was not successful.

Administrative Law - Topic 7525

Delegated powers - Validity of delegated powers - Rules or regulations - Ultra vires - [See first Aliens - Topic 1287 ].

Aliens - Topic 10

Definitions and general principles - Administration fees - [See both Aliens - Topic 1287 ].

Aliens - Topic 1203

Admission - Immigrants - Statutory policy - [See second Aliens - Topic 1287 ].

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - Fees - The applicant sponsored his parents to become permanent residents - Pursuant to s. 295(3)(a) of the Immigration and Refugee Protection Regulations, the applicant was charged a permanent residence application fee together with the fee for processing the sponsorship application - The applicant sought a declaration that s. 295(3)(a) was ultra vires in that it conflicted with s. 19 of the Financial Administration Act (FAA), which authorized fees on a cost recovery basis - The reviewing judge dismissed the application, but certified the following question: "Is Immigration and Refugee Protection Regulation 295(3)(a), as applied to sponsored immigrant visa applications made by parents and grandparents, ultra vires on the ground it is inconsistent with s. 19 of the Financial Administration Act?" - The Federal Court of Appeal answered "no" - Simultaneous payment of the fees was justified under the nexus or reasonable connection test - First, a requirement to pay fees in advance of services could be prescribed under s. 19 - The purpose of s. 19 was to ensure that, in appropriate prescribed situations, users of a government service assumed at least part of the cost of providing the service - Also, s. 20(2) of the FAA and the Repayment of Receipts Regulations allowed for the refund of money paid to a public officer for a purpose that had not been fulfilled - Second, the practical realities were that the sponsorship application had no independent utility from the permanent resident visa application - Both applications were interrelated and interdependent - Third, in those rare cases where a sponsorship application was not approved, the sponsor was given an opportunity to withdraw his sponsorship application, thus allowing the fees collected for processing the permanent resident visa application to be refunded - See paragraphs 23 to 34.

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - Fees - The applicant sponsored his parents to become permanent residents - Section 295(3)(a) of the Immigration and Refugee Protection Regulations required the simultaneous payment of a permanent residence application fee and a sponsorship application fee - The applicant argued that it was unreasonable for the government to collect the permanent resident visa application processing fees some 34 months in advance of the service they related to - The Federal Court of Appeal stated that "the problem with this rationale is that it implies that the Court may enter into the realm of policy decision making. There are often competing demands on government services and it is the role and responsibility of the government to address these competing demands ... In the absence of a legislative or constitutional constraint on the regulatory choices made by government, courts will not interfere to compel their own regulatory preferences" - See paragraphs 35 to 37.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - A reviewing judge dismissed the appellant's judicial review application seeking, among other things, a declaration that s. 295(3)(a) of the Immigration and Refugee Protection Regulations was ultra vires s. 19 of the Financial Administration Act - The Federal Court of Appeal stated that, in these circumstances, the determination of the validity or vires of regulations on administrative law grounds was subject to the correctness standard - "In an appeal involving a constitutional challenge, where it is possible to treat the constitutional analysis separately from the factual findings that underlie it, deference is owed to the initial findings of fact ... I see no reason why the same approach should not be used where the challenge is based on administrative law principles rather than on constitutional law principles" - See paragraphs 13 and 14.

Crown - Topic 672

Authority of Ministers - Exercise of - Enactment of regulations - [See both Aliens - Topic 1287 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - [See first Aliens - Topic 1287 ].

Cases Noticed:

Eurig Estate v. Ontario Court (General Division), Registrar, [1998] 2 S.C.R. 565; 231 N.R. 55; 114 O.A.C. 55, appld. [para. 10].

Canadian Shipowners Association et al. v. Canada (Attorney General) (1987), 137 F.T.R. 216 (T.D.), affd. (1998), 233 N.R. 162 (F.C.A.), appld. [para. 11].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, appld. [para. 12].

Saputo Inc. et al. v. Canada (Attorney General) (2011), 414 N.R. 45; 2011 FCA 69, appld. [para. 12].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 13].

Sunshine Village Corp. v. Parks Canada et al., [2004] 3 F.C.R. 600; 320 N.R. 331; 2004 FCA 166, refd to. [para. 13].

Mercier v. Correctional Service of Canada et al. (2010), 404 N.R. 275; 2010 FCA 167, refd to. [para. 13].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al., [2009] 3 S.C.R. 407; 395 N.R. 276; 469 A.R. 150; 470 W.A.C. 150; 2009 SCC 53, refd to. [para. 14].

CHC Global Operations (2008) Inc. v. Global Helicopter Pilots Association (2010), 401 N.R. 37; 2010 FCA 89, refd to. [para. 14].

620 Connaught Ltd. et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 131; 371 N.R. 200; 2008 SCC 7, appld. [para. 23].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, appld. [para. 25].

Irving Oil Ltd. et al. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 37].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd. et al. v. National Harbours Board.

De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655; 345 N.R. 73; 2005 FCA 436, refd to. [para. 37].

Statutes Noticed:

Financial Administration Act, R.S.C. 1985, c. F-11, sect. 19(1), sect. 19(2) [para. 20]; sect. 20(2) [para. 21].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 295(1)(a), sect. 295(3), sect. 304 [para. 22].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Lorne Waldman, for the appellant;

Marie-Louise Wcislo and David Cranton, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on March 15, 2011, before Dawson, Layden-Stevenson and Mainville, JJ.A., of the Federal Court of Appeal. In reasons for judgment written by Mainville, J.A., the Court of Appeal delivered the following judgment at Ottawa, Ontario, dated March 28, 2011.