Toussaint v. Canada (Minister of Citizenship and Immigration), (2011) 417 N.R. 356 (FCA)

JudgeSharlow, Dawson and Layden-Stevenson, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateJanuary 19, 2011
JurisdictionCanada (Federal)
Citations(2011), 417 N.R. 356 (FCA);2011 FCA 146

Toussaint v. Can. (M.C.I.) (2011), 417 N.R. 356 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.R. TBEd. MY.011

Nell Toussaint (appellant) v. Minister of Citizenship and Immigration (respondent) and Charter Committee on Poverty Issues (intervenor)

(A-408-09)

Ben Ndungu (appellant) v. The Minister of Citizenship and Immigration (respondent)

(A-501-09; 2011 FCA 146; 2011 CAF 146)

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

Federal Court of Appeal

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

April 29, 2011.

Summary:

Two foreign nationals (Toussaint and Ndungu) wanted to apply under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) for an exemption on humanitarian and compassionate grounds from the requirement that they apply for permanent residence from outside Canada, but they could not afford the $550 processing fee established by the Immigration and Refugee Protection (IRP) Regulations (ss. 10(1)(d) and 307). They sought an exemption from the fee requirements but were refused. The foreign nationals applied for judicial review. Issues arose as to: (1) the applicable standard of review; (2) on a proper statutory interpretation of the relevant provisions of IRPA, whether s. 25 required the Minister of Citizenship and Immigration to consider a request to waive the fee for an in-Canada s. 25 application; (3) whether the provisions of IRPA or the IRP Regulations that purported to prevent foreign nationals, who were indigent or on social assistance, from seeking a waiver of fees for services under IRPA, were invalid or inoperative on the basis of s. 7 or 15 of the Charter; or (4) whether the failure of the government to provide for the waiver of fees was contrary to the rule of law and the common law constitutional right of access to the courts.

The Federal Court, in a decision reported 350 F.T.R. 109, dismissed Toussaint's application. The court held that the Minister's conclusion that an exemption from the fees was contrary to s. 10(1)(d) of the Regulations was reviewable on the standard of correctness. The court held that s. 25(1) of the IRPA did not require that the Minister consider a request to exempt a foreign national from the payment of fees established pursuant to s. 89 of IRPA and the relevant IRP Regulations. Indeed, the Minister was without authority to do so. The court held that there was no breach of s. 7 or 15 of the Charter and the failure of the government to provide for the waiver of fees was not contrary to the rule of law or the common law constitutional right of access to the courts. Subsequently, Ndungu's application was also dismissed - see [2009] F.T.R. Uned. 828. The foreign nationals appealed.

The Federal Court of Appeal agreed with the Federal Court on the constitutional and Charter issues, but disagreed respecting the interpretation of s. 25(1), and for that reason allowed the appeals. The court held that on a proper interpretation of s. 25(1) the Minister was obliged to consider a request for an exemption from the requirement in s. 10(1)(d) of the Regulations to pay a fee for processing an application under s. 25(1). The Minister, therefore, erred in law when he rejected the foreign nationals' s. 25(1) applications on the basis that s. 25(1) did not give him the authority to waive the fee. The court referred both matters to the Minister for consideration of the requests for a waiver of the fees.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - Section 25(1) of the Immigration and Refugee Protection Act (IRPA) provided that the Minister of Citizenship and Immigration could exempt a foreign national from any applicable criteria or obligation in the IRPA on humanitarian and compassionate grounds - Two foreign nationals wanted to apply for a s. 25(1) exemption from the requirement that they apply for permanent residence from outside Canada; however, they could not afford the $550 for inland processing application fee established by the Immigration and Refugee Protection (IRP) Regulations (ss. 10(1)(d) and 307) - They claimed that the Minister should grant them an exemption from the fee requirements - The request was refused - The foreign nationals applied for judicial review, arguing that the Minister had to consider the exemption request - An applications judge rejected that interpretation of the IRPA - The foreign nationals appealed - The Federal Court of Appeal allowed the appeal on this ground - The court held that s. 25(1) gave the Minister the authority to grant a request made by a foreign national in Canada to waive the requirement in s. 10(1)(d) of the Regulations to pay the fee stipulated by s. 307 of the Regulations for a s. 25(1) application - Therefore, the Minister erred in law when he rejected the foreign nationals' s. 25(1) applications on the basis that s. 25(1) did not give him the authority to waive the fee - The Minister had an obligation to consider the exemption request - See paragraphs 31 to 55.

Aliens - Topic 10

Definitions and general principles - Administration fees - Two foreign nationals wanted to apply for an exemption on humanitarian and compassionate grounds under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) from the requirement that they apply for permanent residence from outside Canada; however, they could not afford the $550 fee for inland processing of the applications established by s. 307(a) of the Immigration and Refugee Protection Regulations (IRP Regulations) - They were refused an exemption from the fee requirements - They applied for judicial review, raising s. 7 Charter arguments - The Federal Court of Appeal opined that the s. 7 rights of the foreign nationals were not engaged by the failure of the Minister to consider their requests for a fee waiver because: (1) their removal from Canada prior to consideration of the humanitarian and compassionate grounds raised in their s. 25(1) applications did not deprive them of their right to life, liberty or security of the person; and (2) they had not been deprived of any rights without the application of the principles of fundamental justice - See paragraph 58.

Aliens - Topic 10

Definitions and general principles - Administration fees - Two foreign nationals (Toussaint and Ndungu) wanted to apply for an exemption on humanitarian and compassionate grounds under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) from the requirement that they apply for permanent residence from outside Canada; however, they could not afford the $550 inland processing fee as set by the Immigration and Refugee Protection Regulations - They sought an exemption from the fee requirements, but were refused - The foreign nationals alleged a breach of s. 15 of the Charter - The Federal Court of Appeal held that s. 25(1) gave the Minister of Citizenship and Immigration the authority to waive the fee - The court stated that "If there were no provision in the IRPA or the Regulations for the waiver of the fee for a s. 25(1) application by a foreign national living in poverty in Canada, that would not constitute discrimination against Ms. Toussaint or Mr. Ndungu contrary to s. 15(1) of the Charter on the ground of 'poverty' or 'being a person in receipt of social assistance'" - That was so because the s. 15(1) claim failed on the facts, the absence of a provision for a fee waiver did not affect access to a process for claiming a legal right, and "poverty" or "being in need of social assistance" were not analogous grounds for purposes of s. 15(1) - See paragraph 59.

Aliens - Topic 10

Definitions and general principles - Administration fees - Two foreign nationals wanted to apply for an exemption on humanitarian and compassionate grounds under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) from the requirement that they apply for permanent residence from outside Canada; however, they could not afford the $550 fee for inland processing of the applications as set by the Immigration and Refugee Protection Regulations - They sought an exemption from the fee requirements but were refused - The foreign nationals claimed that the government's failure to provide for the waiver of fees for foreign nationals who could not afford the processing fee was contrary to the common law constitutional right of access to the courts or to the rule of law - The Federal Court of Appeal held that s. 25(1) gave the Minister of Citizenship and Immigration the authority to waive the fee - The court opined that "The absence of a provision for the waiver of fees is not contrary to the common law constitutional right of access to the courts or to the rule of law. Access to the Minister under s. 25(1) of the IRPA is not the same as, or analogous to, access to the courts because the Minister's authority under s. 25(1) is limited to providing an exceptional discretionary benefit. In the context of the immigration provisions of the IRPA, the rule of law cannot be used to create a fee waiver where none exists in the legislation" - See paragraph 60.

Aliens - Topic 10

Definitions and general principles - Administration fees - [See Aliens - Topic 2 ].

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - [See Aliens - Topic 2 and first, second and third Aliens - Topic 10 ].

Aliens - Topic 1221

Admission - Immigrants - Application for admission - General - [See Aliens - Topic 2 ].

Aliens - Topic 1229

Admission - Immigrants - Application for admission - Immigrant visa - Exemptions - [See Aliens - Topic 2 and first, second and third Aliens - Topic 10 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - Two foreign nationals wanted to apply under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) for an exemption from certain requirements of the IRPA on humanitarian and compassionate grounds (i.e., the requirement that permanent residence applications be made from outside Canada) - However, they could not afford the $550 fee for inland processing of her application - They sought an exemption from the requirement in s. 10(1)(d) of the Immigration and Refugee Protection Regulations (IRP Regulations) that applications had to be accompanied by the appropriate fee before they would be processed - A delegate of the Minister of Citizenship and Immigration informed them that the request for an exemption from the fees was contrary to that legislative requirement - The foreign nationals applied for judicial review, raising constitutional and statutory interpretation issues - An applications judge, applying the correctness standard, dismissed the applications - The foreign nationals appealed again - The Federal Court of Appeal agreed that the Minister was owed no deference on the question of statutory interpretation or the constitutional issues raised - The court therefore applied the standard of correctness - See paragraph 29.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - [See Aliens - Topic 1304 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - [See first Aliens - Topic 10 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See first Aliens - Topic 10 ].

Civil Rights - Topic 1001.1

Discrimination - Immigration - Immigrants (incl. permanent residence applications, humanitarian and compassionate considerations, etc.) - [See second Aliens - Topic 10 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - [See first Aliens - Topic 10 ].

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - [See second Aliens - Topic 10 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See second Aliens - Topic 10 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See second Aliens - Topic 10 ].

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - [See third Aliens - Topic 10 ].

Constitutional Law - Topic 114

Definitions - Rule of law - [See third Aliens - Topic 10 ].

Courts - Topic 1403

Administration - General - Access to courts - [See third Aliens - Topic 10 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - An applications judge, in interpreting s. 25 of the Immigration and Refugee Protection Act, utilized the following approach explained in Driedger on the Construction of Statutes (2nd Ed.): "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" - On appeal, the Federal Court of Appeal agreed with the principles set out by the applications judge - See paragraph 30.

Words and Phrases

Any applicable criteria or obligation of this Act - The Federal Court of Appeal discussed the meaning of this phrase as it appeared in s. 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraphs 32 to 55.

Cases Noticed:

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. 30].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161; 90 D.L.R.(4th) 289, refd to. [para. 38].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 4]; sect. 26 [para. 13]; sect. 39, sect. 41 [para. 9]; sect. 89 [para. 16].

Immigration and Refugee Protection Act Regulations (Can.),  Immigration  and Refu-

gee Protection Regulations, SOR/2002-227, sect. 10(1)(d), sect. 66 [para. 15]; sect. 307(a) [para. 19].

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

Counsel:

Andrew C. Dekany and Angus Grant, for the appellant, in action no. A-408-09;

Rocco Galati, for the appellant, in action no. A-501-09;

Martin Anderson, Kristina Dragaitis and Mahan Kermati, for the respondent, in both actions;

Raj Anand, for the intervenor, in action no. A-408-09.

Solicitors of Record:

Andrew C. Dekany, Toronto, Ontario, for the appellant, in action no. A-408-09;

Rocco Galati Firm Professional Corporation, Toronto, Ontario, for the appellant, in action no. A-501-09;

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

This appeal was heard in Toronto, Ontario, on January 19, 2011, before Sharlow, Dawson and Layden-Stevenson, JJ.A., of the Federal Court of Appeal. The following decision was delivered by Sharlow, J.A., for the court, in Ottawa, Ontario, on April 29, 2011.

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