Toussaint v. Canada (Minister of Citizenship and Immigration), 2009 FC 873

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: June 23, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 873;(2009), 350 F.T.R. 109 (FC)

Toussaint v. Can. (M.C.I.) (2009), 350 F.T.R. 109 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. SE.006

Nell Toussaint (applicant) v. The Minister of Citizenship and Immigration (respondent) and Low Income Families Together and Charter Committee on Poverty Issues (intervenors)

(IMM-326-09; 2009 FC 873)

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

Federal Court

Snider, J.

September 4, 2009.

Summary:

Toussaint, a citizen of Grenada, came to Canada as a visitor in 1999 and overstayed her visitor's visa. She wanted to apply under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) for an exemption from the requirement that she apply for permanent residence from outside Canada on humanitarian and compassionate grounds, but she could not afford the $550 processing fee established by the Immigration and Refugee Protection (IRP) Regulations. She sought an exemption from the fee requirements but was refused. Toussaint applied for judicial review. Issues arose as to: (1) the applicable standard of review of the Minister of Citizenship and Immigration's decision not to consider waiving Toussaint's in-Canada application fee; (2) on a proper statutory interpretation of the relevant provisions of IRPA, whether s. 25 required the Minister 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 dismissed the 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. The court certified a number of questions for possible consideration by the Court of Appeal.

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 - Section 89 provided that administrative fees and situational waivers could be established by regulation - A foreign national, who could not afford to pay an inland processing fee as set by the Immigration and Refugee Protection (IRP) Regulations, claimed that the Minister should grant her an exemption from the fee requirements - The request was refused - The foreign national applied for judicial review, arguing that the Minister had to consider the exemption request - The Federal Court rejected this interpretation of the IRPA - The court interpreted s. 25(1), stating that "... s. 25(1) does 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 is without authority to do so. This interpretation is apparent when s. 25(1) is read harmoniously in its entire context and in its grammatical and ordinary sense, together with the scheme of IRPA, the object of IRPA and the intention of Parliament" - The court opined that s. 25(1) was available in respect of the substantive criteria or obligations under IRPA and not for administrative requirements - See paragraphs 21 to 33.

Aliens - Topic 10

Definitions and general principles - Administration fees - Toussaint, a foreign national who overstayed her visitor's visa, wanted to apply for an exemption on humanitarian and compassionate (H&C) grounds under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) from the requirement that she apply for permanent residence from outside Canada; however, she could not afford the $550 fee for inland processing of her application established by the Immigration and Refugee Protection Regulations (IRP Regulations) - She sought an exemption from the fee requirements, but was refused -Toussaint applied for judicial review, arguing that the refusal of the government to waive fees resulted in a situation where foreign nationals could be removed from Canada and separated from their children without consideration of the relevant H&C factors or the best interests of the children involved - That, she argued engaged s. 7 Charter interests and was inconsistent with the principles of natural justice - The Federal Court rejected Toussaint's argument - The court held that Toussaint's deportation prior to consideration of H&C factors did not engage the liberty and security issues protected by s. 7 of the Charter - In any event, the court opined that since neither the assessment of H&C factors or of the best interests of the child were principles of fundamental justice to which s. 7 of the Charter applied, it followed that there was no breach of s. 7 of the Charter - See paragraphs 34 to 51.

Aliens - Topic 10

Definitions and general principles - Administration fees - Toussaint, a foreign national who overstayed her visitor's visa, wanted to apply for an exemption on humanitarian and compassionate (H&C) grounds under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) from the requirement that she apply for permanent residence from outside Canada; however, she could not afford the $550 fee for inland processing of her application as set by the Immigration and Refugee Protection Regulations (IRP Regulations) - She sought an exemption from the fee requirements, but was refused - Toussaint applied for judicial review, alleging a breach of s. 15 of the Charter because the government failed to enact by regulation under s. 89 of IRPA, a waiver of fees for in-Canada H&C applications for persons who lived in poverty - The Federal Court held that there was no breach of s. 15 because it was not convinced that the application of the statutory scheme resulted in discrimination that effectively barred the H&C review for those foreign nationals living in poverty - However, assuming that there was discrimination, the court opined that there was no breach of s. 15 because poverty was not an analogous ground within the meaning of s. 15 - Further, even if poverty was accepted as an analogous ground, the court was not convinced that the distinction created a disadvantage by perpetuating prejudice or stereotyping - See paragraphs 52 to 108.

Aliens - Topic 10

Definitions and general principles - Administration fees - Toussaint, a foreign national who overstayed her visa, wanted to apply for an exemption on humanitarian and compassionate (H&C) grounds under s. 25(1) of the Immigration and Refugee Protection Act (IRPA) from the requirement that she apply for permanent residence from outside Canada; however, she could not afford the $550 fee for inland processing of her application as set by the Immigration and Refugee Protection Regulations (IRP Regulations) - She sought an exemption from the fee requirements but was refused - Toussaint applied for judicial review, arguing 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 acknowledged that a right of access to the courts, under the rule of law, was an essential element for the protection of the rights and freedoms of persons who might come before the courts; however, access to the Minister under s. 25(1) could not be equated to a right of access to the courts - The principles of in forma pauperis and the constitutional principle of the rule of law did not extend to discretionary administrative determinations - The rule of law could not be used to create a fee waiver in the context of H&C applications - See paragraphs 109 to 117.

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 - Toussaint, a visitor to Canada who overstayed her visa, 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, she could not afford the $550 fee for inland processing of her application - She 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 her that the request for an exemption from the fees was contrary to that legislative requirement - Toussaint applied for judicial review - The Federal Court stated that the applicable standard of review of the Minister's conclusion that an exemption from the fees was contrary to s. 10(1)(d) of the IRP Regulations was correctness - See paragraph 14.

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 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See first 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 - The Federal Court, 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" - See paragraph 16.

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See Aliens - Topic 2 ].

Cases Noticed:

Krena et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 522 (F.C.), refd to. [para. 8].

Gunther v. Canada (Minister of Citizenship and Immigration) et al., [2009] F.T.R. Uned. 519 (F.C.), refd to. [para. 8].

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. 9].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 16].

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. 19].

Monemi v. Canada (Solicitor General) (2004), 266 F.T.R. 31; 2004 FC 1648, refd to. [para. 23].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 24].

Varela v. Canada (Minister of Citizenship and Immigration) (2009), 391 N.R. 366; 2009 FCA 145, refd to. [para. 24].

Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. A98; 51 Imm. L.R.(3d) 262; 2005 FC 1357, refd to. [para. 24].

Nalbandian v. Canada (Minister of Citizenship and Immigration) (2006), 309 F.T.R. 1; 2006 FC 1128, refd to. [para. 24].

Keymanesh v. Canada (Minister of Citizenship and Immigration), [2007] 2 F.C.R. 206; 293 F.T.R. 285; 2006 FC 641, refd to. [para. 24].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 31].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422, refd to. [para. 39].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 41].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 41].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 41].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 41].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 55].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 57].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 59].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 59].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 60].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 63].

Veitch v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A27; 2008 FC 1400, refd to. [para. 66].

Tharmalingam v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 330; 2008 FC 463, refd to. [para. 66].

Palumbo v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 431; 2009 FC 706, refd to. [para. 66].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 71].

Boulter et al. v. Nova Scotia Power Inc. et al. (2009), 275 N.S.R.(2d) 214; 877 A.P.R. 214; 2009 NSCA 17, refd to. [para. 76].

Falkiner et al. v. Director of Income Maintenance (Ont.) et al. (2002), 159 O.A.C. 135; 59 O.R.(3d) 481 (C.A.), dist. [para. 78].

Falkiner v. Ontario (Minister of Community and Social Services) - see Falkiner et al. v. Director of Income Maintenance (Ont.) et al.

R. v. Banks (D.) et al. (2007), 220 O.A.C. 211; 84 O.R.(3d) 1; 2007 ONCA 19, leave to appeal denied (2007), 376 N.R. 394; 245 O.A.C. 400 (S.C.C.), refd to. [para. 83].

Guzman v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 411; 300 F.T.R. 110; 2006 FC 1134, affd. [2007] N.R. Uned. 133; 2007 FCA 358, leave to appeal dismissed (2008), 387 N.R. 400 (S.C.C.), refd to. [para. 87].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 94].

Hutterian Brethren of Wilson Colony et al. v. Alberta (2009), 460 A.R. 1; 390 N.R. 202; 2009 SCC 37, refd to. [para. 100].

Barker v. Manitoba (Registrar of Motor Vehicles) et al. (1987), 50 Man.R.(2d) 115; 47 D.L.R.(4th) 69 (Q.B.), refd to. [para. 100].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 102].

Polewsky v. Home Hardware Stores Ltd. et al. (2003), 174 O.A.C. 358; 66 O.R.(3d) 600 (Div. Ct.), refd to. [para. 110].

R. v. Lord Chancellor; Ex parte Witham, [1997] 2 All E.R. 779 (Q.B.), refd to. [para. 115].

R. v. Secretary of State for the Home Department; Ex parte Saleem, [2000] 4 All E.R. 814 (C.A.), refd to. [para. 115].

Moss v. R., [1997] T.C.J. No. 712, refd to. [para. 115].

Pearson v. Canada (2000), 195 F.T.R. 31 (T.D.), refd to. [para. 115].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 116].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 35]; sect. 15 [para. 53].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 11(1), sect. 25(1) [para. 9, Appendix]; sect. 89 [para. 10, Appendix].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 10(1)(d) [para. 12, Appendix]; sect. 66 [para. 9, Appendix]; sect. 307 [para. 11, Appendix].

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

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 16].

Counsel:

Andrew C. Dekany and Angus Grant, for the applicant;

Martin Anderson, Kristina Dragaitis and Ned Djordevic, for the respondent;

Amina Sherazee and Rocco Galati, for the intervenor LIFT;

Raj Anand, for the intervenor CCPI.

Solicitors of Record:

Andrew C. Dekany, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondents;

Amina Sherazee, for the intervenor LIFT;

Weir Foulds LLP, Toronto, Ontario, for the intervenor CCPI.

This application was heard at Toronto, Ontario, on June 23, 2009, by Snider, J., of the Federal Court, who delivered the following reasons for judgment on September 4, 2009.