Brink v. Canada

Brink v. Canada
Court (s) Database
Federal Court Decisions
Date
2022-08-26
Neutral citation
2022 FC 1231
File numbers
T-465-21
Decision Content
Date: 20220826
Docket: T-465-21
Citation: 2022 FC 1231
Ottawa, Ontario, August 26, 2022
PRESENT: The Honourable Mr. Justice Zinn
PROPOSED CLASS PROCEEDING
BETWEEN:
MICHAEL PHILIPPUS BRINK and
FUH-CHII YANG
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
ORDER AND REASONS
[1] There are two motions before the Court. The Plaintiffs seek an Order certifying this action as a class proceeding pursuant to Part 5.1 of the Federal Courts Rules, SOR/98-106 [the Rules]. The Defendant seeks an Order striking the Statement of Claim in its entirety, without leave to amend.
[2] Counsel for the parties are to be credited with the thoughtfulness of their written and oral submissions on both motions. Notwithstanding the brevity of these Reasons, the Court has spent considerable time considering and weighing their competing submissions.
[3] Ultimately, I have concluded that the Defendant’s motion must succeed and the Plaintiffs’ motion must fail. Both for the same reason. Although the Plaintiffs have identified that the group required to pay fees to obtain permanent resident status and Canadian citizenship is treated differently than others, that distinction is not based on any prohibited ground of discrimination. As a consequence, the Plaintiffs have failed to establish that their Statement of Claim discloses a reasonable cause of action.
Background
[4] Canada requires foreign nationals to pay a fee to acquire permanent resident status and to pay a fee to become a citizen [collectively the Fees].
[5] The first component of the Fees is a fee, prescribed by subsection 303(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the IRPA Regulations] of $500 “payable by a person for the acquisition of permanent resident status.” The parties describe this as The Right of Permanent Residence Fee [RPRF]. The RPRF was introduced in 1995 as the “Right of Landing Fee”, and was initially $975 (Immigration Act Fees Regulations, amendment, SOR/95-120). For ease of reference, section 303 is appended to these reasons as Appendix A.
[6] The second component of the Fees is a fee, prescribed by section 32 of the Citizenship Regulations, SOR/93-246, of $100 “to be paid for the right to be a citizen … on a person who is eighteen years of age or over … and is payable by the person at the time of making the application” but is refunded if citizenship is not granted. The parties describe this as The Right to be a Citizen Fee [RCF]. The RCF was introduced in 1995 (Citizenship Regulations, 1993, amendment SOR/95-122).
[7] Those who are Canadian citizens is set out in section 3 of the Citizenship Act, RSC 1985, c C-29, attached as Appendix B.
[8] The Plaintiff Michael Brink is an immigrant who resides in Canada. On May 10, 2017, as a resident in South Africa, he applied to become a permanent resident of Canada. He paid the RPRF and his application was granted. On March 17, 2018, he became a permanent resident and he came to Canada in 2019.
[9] The Plaintiff Fuh-Chii Yang was born in Taiwan and came to Canada in 2015. He is a permanent resident of Canada. On July 13, 2009, he applied to be a citizen of Canada and paid the RCF. There is no evidence in the record whether his application has been granted.
[10] In brief, the Plaintiffs assert that they “were subject to fees to which an individual born in Canada was not subject.” “The fees are discriminatory and [they] are entitled to restitution of those unconstitutional fees.”
[11] The Statement of Claim alleges the following causes of action:
a) Breach of section 15 of the Canadian Charter of Rights and Freedoms [the Charter];
b) Breach of paragraphs 1(a) and (b) of the Canadian Bill of Rights [the Bill of Rights]; and
c) Breach of section 10 of the Québec Charter of Human Rights and Freedoms.
[12] The Plaintiffs informed the Court that they are no longer relying on paragraph 1(a) of the Bill of Rights or section 10 of the Québec Charter of Human Rights and Freedoms.
[13] The Plaintiffs allege direct and indirect discrimination and at paragraph 40 of the Statement of Claim plead that the distinction created by the Fees is “based on national or ethnic origin, or country of origin.”
[14] The Plaintiffs propose that the Class be defined as
All individuals who were not born in Canada and between September 8, 2014 until the date of the court’s trial judgment, have paid, or would otherwise be subject to the following fees:
a. Right of Permanent Residence Fee (the “Permanent Resident Subclass”); and/or
b. Right to be a Citizen Fee (the “Citizen Subclass”),
excluding those who:
c. have received a refund of the Right of Permanent Residence Fee under subsection 303(4) of the Immigration and Refugee Protection Regulations; or
d. have received a refund of the Right to be a Citizen Fee under section 33 of the Citizenship Regulations.
[15] The Plaintiffs estimate the size of the Class, as of July 31, 2021, to be:
Permanent Resident Subclass: 880,647 individuals, and
Citizens Subclass: 1,040,635 individuals.
[16] The Plaintiffs’ common issues proposed in their Notice of Motion were reduced at the hearing to the following:
…
2. Do the enactments for charging of the Right to be a Citizen Fee and/or Right of Permanent Residence Fee violate the Class Members’ constitutional rights under section 15 of the Charter?
a. If so, can any of those enactments be saved under section 1 of the Charter?
3. Do the enactments for charging of the Right to be a Citizen Fee and/or Right of Permanent Residence Fee violate the Class Members’ legal rights enshrined under subsection 1(d) of the Canadian Bill of Rights?
…
6. Should the enactments for charging of the Right to be a Citizen Fee and/or Right of Permanent Residence Fee be struck down?
a. Alternatively, should all of [sic] some of the Class Members be granted a constitutional exemption from the Right to be a Citizen Fee and/or Right of Permanent Residence Fee
7. Are some or all of the Class Members entitled to restitution of the Right to be a Citizen Fee and/or Right of Permanent Residence Fee?
8. Should the Defendant be ordered to pay moral damages for harm to the dignity of the Class Members, or alternatively nominal damages?
9. Should the Defendant be ordered to pay punitive damages, costs of this Action, and/or an elevated pre-judgment and post-judgment interest rate for its collection of the impugned fees?
10. Can an aggregate monetary award be made pursuant to Rule 334.28(1) of the Federal Court [sic] Rules?
11. What special mode of proof should the Court adopt if any individual issues remain to be adjudicated, or if Class Members seeks [sic] to claim further damages specific to their individual circumstances?
[17] The five requirements for certification of an action as a class proceeding are set out in Rule 334.16, as follow:
The pleading must disclose a reasonable cause of action;
There must be an identifiable class of two or more persons;
The claims of the class must raise common questions of law or fact;
A class proceeding must be the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
There must be a representative plaintiff who
would fairly and adequately represent the interests of the class;
has prepared a plan for the proceeding that sets out a workable method of advancing the action and notifying the members of its progress;
does not have an interest in conflict with the other class members regarding the common questions of law and fact; and
has provided a summary of the agreement with legal counsel respecting fees and disbursements.
[18] The Defendant submits that the Plaintiffs fail to meet any of these requirements. Moreover, it submits, both in response to the certification motion and on its own motion to strike, that the discrimination claim as pleaded does not disclose a reasonable cause of action. It says that there is no distinction based on an enumerated or analogous ground under section 15 of the Charter.
Preliminary Objection
[19] Prior to the hearing the Plaintiffs alerted the Court that they objected to the “eleven documents spanning 87 pages” which the Defendant submitted on April 12, 2022, in its Supplementary Book of Authorities. Each document is a Regulatory Impact Analysis Statement [RIAS] relating to amendments made to regulations directed at the Fees.
[20] The Plaintiffs submitted that the RIASs are not authorities but evidence that had to be introduced through a witness. Additionally, the Plaintiffs noted that six of the eleven RIASs were not cited in the Defendant’s memoranda and they expressed concern that the Defendant might rely on them to raise new submissions.
[21] The Defendant assured the Plaintiffs and the Court that it would not raise any new argument at the hearing and it did not.
[22] The Defendant observed that “the Plaintiffs’ reliance on some of the relevant RIASs in the Affidavit of Roxy Hamidi (not an expert witness) would put the Court in a position of potentially making findings on partial information.” The Defendant submits that all it was doing was putting all of the RIASs before the Court to provide complete context.
[23] The Defendant also brought to the Court’s attention the decisions in Paradis Honey Ltd v Canada (Attorney General), 2014 FC 215, rev’d 2015 FCA 89, stating:
These decisions were rendered in the context of a motion to strike (in class action/certification context) and are directly relevant and conclusively authoritative for the admission and use of RIASs on a motion to strike in the certification context.
[24] I do not find this authority to be helpful. It is true that the Trial Judge on the motion to strike references the RIASs that were placed before the Court, as does the dissenting Judge in the Federal Court of Appeal. However, the objection raised was the submission of the Defendant that “these RIASs are associated with specific regulations which were no longer in force during the material time of the Plaintiffs’ complaint.” There was no objection raised as to their admissibility or whether they constituted evidence rather than providing authority for some submission to be made.
[25] While the Plaintiffs here reference RIASs in their record, they appear to do so with respect to their certification motion, not in response to the motion to strike.
[26] Rule 221(2) of the Rules makes it clear that “[n]o evidence shall be heard on a motion for an order [to strike a [pleading].” To the extent that the Defendant seeks to use the RIASs in this manner, it is not permitted. To the extent that the RIASs are relevant to the certification motion, the Court accepts them as permissible evidence. I qualify this by saying that statements made in the RIASs are accepted as providing a context for the IRPA Regulations, and no more.
[27] In the end, I have been able to make the determination that the Statement of Claim discloses no reasonable cause of action without considering any of the RIASs.
Do the pleadings disclose a reasonable cause of action?
[28] The first requirement for certification is that the Court must be satisfied that “the pleadings disclose a reasonable cause of action.” The Federal Court of Appeal has made it clear that in assessing this requirement, the Court is not to assess the odds of a cause of action ultimately succeeding (see Wenham v Canada (Attorney General), 2018 FCA 199 [Wenham] at para 29). “The test is whether a cause of action has been pleaded that is not plain and obvious to fail” [Wenham at para 31].
[29] The Plaintiffs submit that “[t]he correct approach is to consider whether the pleadings, as they stand or may reasonably be amended, disclose a question that is not doomed to fail” (citing Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19 [Atlantic Lottery] at para 90).
[30] The Plaintiffs stated this proposition a number of times in their oral submissions and appeared to be extending an invitation to the Court to do their work and propose appropriate revisions to ensure that the Statement of Claim did disclose a reasonable cause of action. That, in my view, is not what Atlantic Lottery holds.
[31] That broad statement of the dissenting judge in Atlantic Lottery cites as its authority Hunt v Carey Canada Inc, [1990] 2 SCR 959 [Hunt] at p. 978, quoting Minnes v Minnes (1962), 39 WWR 112 (BCCA) [Minnes], at pp. 116 and 122. Minnes was an appeal of an order striking out the statement of claim and dismissing the action on the ground that the statement of claim discloses no cause of action and is frivolous and vexatious. Justice Tysoe, for the majority, described the statement of claim as being “inaptly and inartistically worded” but found that he was able to discern the substance of the claim, to which the defendants pleaded. It was in that circumstance that the court referenced amendment to the statement of claim – amendments to address drafting deficiencies.
[32] Such a view was taken in Lin v Airbnb, Inc, 2019 FC 1563 at para 46, where Justice Gascon noted:
I concede that the pleadings could have been drafted with much more clarity and details regarding the actual product involved in Mr. Lin’s claim. Especially in a context where, in section 54 invoked by Mr. Lin to underlay his cause of action, the notion of “product” is a central element. However, at this certification stage, I must adopt a generous reading of the pleadings. The pleadings should be read as a whole and be given a liberal interpretation, with a view to accommodating any inadequacies in the allegations and without fastening onto matters of form (Operation Dismantle v The Queen, [1985] 1 SCR 441 at para 14; Wenham at para 34; John Doe FCA at para 51; Shah v LG Chem Ltd., 2018 ONCA 819 [Shah] at paras 74, 76; Finkel v Coast Capital Savings Credit Union, 2017 BCCA 361 [Finkel] at para 17). [emphasis added]
Facts Pleaded
[33] The facts pleaded by the Plaintiffs in their Statement of Claim relevant to the issue of whether it discloses a reasonable cause of action are the following:
Mr. Brink is an immigrant who now resides in Canada, paid the RPRF and became a permanent resident.
Mr. Yang was a permanent resident of Canada and paid the RCF to become a Canadian citizen.
The Fees are not fees for services provided under the Immigration and Refugee Protection Act, SC 2001, c 27 or the Citizenship Act but bear “all the hallmarks of a tax.”
The Fees are “charged to individuals that are not born in Canada, and individuals born in Canada are not charged for the same rights and/or privileges.”In this way they create a distinction “based on national or ethnic origin, or country of origin.”
Whether the Fees are characterized as a tax or a regulatory charge “does not change the substance of the claim that these payments are discriminatory and unconstitutional.”
The Fees “[distinguish] between individuals born in Canada (who are not charged these taxes for the same rights and/or privileges) and individuals born outside Canada” and “impose a burden on individuals born outside Canada that perpetuates, reinforces, or exacerbates a disadvantage for individuals that were not born in Canada.”
Statutes Pleaded
[34] Section 15 of the Charter guarantees equal protection and equal benefit of the law:
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15 (1) La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques.
[35] Section 1(b) of the Bill of Rights recognizes the right to equality before the law and the protection of the law without discrimination based on specified human rights and freedoms:
1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
1 Il est par les présentes reconnu et déclaré que les droits de l’homme et les libertés fondamentales ci-après énoncés ont existé et continueront à exister pour tout individu au Canada quels que soient sa race, son origine nationale, sa couleur, sa religion ou son sexe :
…
[…]
(b) the right of the individual to equality before the law and the protection of the law;
b) le droit de l’individu à l’égalité devant la loi et à la protection de la loi;
[36] Both parties focused their submissions on the Charter, with scant mention of the Bill of Rights. I shall do likewise. The analysis as to whether the claim discloses a reasonable cause of action under the Charter applies equally to whether there is any reasonable cause of action asserted under the Bill of Rights. Each requires that there be a distinction based on a prohibited ground of discrimination.
The Distinction
[37] The Supreme Court of Canada in R v Kapp, 2008 SCC 41 at para 17, directed that a section 15 analysis should be directed to two questions:
1. Does the law create a distinction based on an enumerated or analogous ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
[38] The Defendant submits that the substance of the Plaintiffs’ claim is that there is a distinction in treatment between those born in Canada and those born outside Canada. In fact, Plaintiffs’ counsel made that statement in oral submissions. If this is the basis of the distinction, one must then ask whether this equates to discrimination on the basis of an enumerated or analogous ground.
[39] The Defendant correctly notes that while the Plaintiffs’ claim as drafted alleges discrimination based on “national or ethnic origin, or country of origin,” the alleged basis for the discrimination expanded. In the Plaintiffs’ memorandum in support of the certification motion, they plead that the Fees “create a distinction based on an enumerated ground (i.e. national or ethnic origin) and also the analogous ground of citizenship” [emphasis in original].
[40] In their oral submissions, the Plaintiffs stated that the basis for discrimination between the two groups is “national origin, ethnic origin, those are the enumerated grounds, and then analogous grounds would include citizenship, birth, or place of birth.”
[41] In brief, the Plaintiffs submit that the Fees offend the Charter and the Bill of Rights because they discriminate between those born in Canada and those not born in Canada based on national origin, ethnic origin, citizenship, birth (meaning birth or status as described in the International Covenant on Civil and Political Rights), or place of birth.
[42] They further submit that “the task today is not to determine conclusively which one it could fit under but the task is limited to whether there’s an arguable case that our facts here could fit in one or more of those grounds.”
[43] It is only if the distinction between the group required to pay the Fees and the group that is not required to pay the Fees is based on one of the alleged bases of prohibited discrimination that the Plaintiffs can be said to have advanced a reasonable cause of action. If not, then it is plain and obvious that this action cannot succeed.
[44] I turn then to consider each of the alleged bases of distinction and consider whether the distinction raised is based on that ground.
The Alleged Ground of Distinction
National Origin
[45] National origin refers to the nation where a person was born, or more broadly where that person's ancestors came from.
[46] The distinction between the two groups – those who must pay the Fees and those who are not required to pay the Fees – is not based on national origin because there are persons in each group with a variety of national origins, and some with the same national origin.
[47] While it is generally the case that those born in Canada are automatically Canadian citizens, subsection 3(2) of the Citizenship Act specifically provides that children born in Canada to a diplomatic or consular officer of a foreign government, and certain specified others, are not Canadian citizens.
[48] A person falling within subsection 3(2) of the Citizenship Act would have a national origin of Canada but be required to pay the Fees.
[49] By way of corollary, paragraph 3(1)(b) of the Citizenship Act also provides that children born outside Canada to parents, one of whom is a Canadian citizen, are Canadian citizens.
[50] A person falling within section 3 of the Citizenship Act could have a national origin of a country other than Canada but not be required to pay the Fees.
[51] Accordingly, the basis of the distinction between those required to pay the Fees and those who are not is not national origin.
Ethnic Origin
[52] “Ethnic origin” refers to the ethnic or cultural origins of a person and/or the person’s ancestors. It is not uncommon in Canada to refer to oneself or others as a hyphenated Canadian e.g. Indian-Canadian, German-Canadian, Lebanese-Canadian, etc. In so doing one is describing the person by his or her ethnic origin.
[53] Canada, as the Plaintiffs note, is a country of immigrants. The ethnic origin of those born in Canada encompasses most or all of the cultural or ethnic origins. As such, I fail to see that there is an arguable case that the distinction raised in this litigation is based on ethnic origin. The ethnic origin of those born in Canada and not required to pay the Fees parallels that of those not born in Canada who may be required to pay the Fees.
Citizenship
[54] Is citizenship the basis of the distinction? Is it non-Canadian citizens who are required to pay the Fees and Canadian citizens who are not?
[55] It is certainly the case that Canadian citizens are not required to pay either the RPRF or the RCF. However, not all non-Canadian citizens are required to pay the Fees.
[56] Subsection 303(2) of the IRPA Regulations describes a number of persons who are exempt from paying the RPRF. Many are persons born outside Canada. These include family members and dependent children of the principal applicant for permanent resident status. Also included is a broad range of family members of persons sponsoring permanent residents.
[57] Certain non-Canadians are also exempt from paying the RCF. The Fee Schedule attached as Exhibit I to the affidavit of Roxy Hamidi lists several exempt categories of person. These include a minor applying as an adult under subsection 5(1) of the Citizenship Act, a minor being granted citizenship under subsection 5(2) of the Citizenship Act, and a minor adoptee.
[58] Accordingly, the basis of the distinction between those required to pay the Fees and those who are not is not citizenship.
Birth
[59] During oral submissions, the Plaintiffs raised as a possible analogous ground of discrimination “birth or status” as referenced in the International Covenant on Civil and Political Rights [the Covenant].
[60] There is no definition of this term in the Covenant, and none was offered by the Plaintiffs. Since Canada is a signatory and has agreed to take steps to ensure that our Federal laws encompass the Covenant, the Court assumes that the Charter and the Bill of Rights do so. Accordingly, the analysis herein relating to those statutes applies to the Covenant prohibition against discrimination because of birth.
Place of Birth
[61] For the reasons set out above relating to national origin, persons in either of the two groups may have been born anywhere. Accordingly, the distinction is not made on the basis of place of birth.
Conclusion
[62] It is unquestionable that the Plaintiffs have identified two groups. They both belong to a group that is required to pay the Fees. Their group is distinguished from the group of persons not required to pay the Fees. As is described above, the basis of that distinction is neither an enumerated or analogous ground of discrimination in section 15 of the Charter. Accordingly, it is plain and obvious that a claim asserting discrimination between these groups on the basis of the Charter is bound to fail.
[63] The Defendant’s motion to strike without leave to amend is granted. The Plaintiffs’ motion to certify the action as a class proceeding is dismissed.
[64] Subsequent to oral submissions being received, the Plaintiffs provided two additional authorities to the Court:
The Plaintiff is writing to draw the Court’s attention [sic] a class action decision (British Columbia v. Apotex Inc., 2022 BCSC 1383 at paras. 3, 13, 42, 45, 48-50, 52-54, 58, and 60). This recent case touches upon the two procedural issues that were also on the Motions, namely the sufficiency of the Defendant’s notice of motion and compliance with the specific rules for affidavits on a class action certification motion.
It has also come to the Plaintiff’s attention that, on August 17, 2022, the Federal Court of Appeal released a decision regarding the approach to extrinsic evidence on a motion to strike in the context of a class action (Mohr v. National Hockey League, 2022 FCA 145 at paras. 55-60 and 65-68).
[65] Neither decision is relevant as the decision above was reached without the need to consider extrinsic evidence.
[66] The Defendant did not seek costs.
ORDER in T-465-21
THIS COURT ORDERS that:
The Plaintiffs’ motion to certify this action as a class proceeding is dismissed;
The Defendant’s motion to dismiss the action, without leave to amend, is granted; and
No costs are ordered.
"Russel W. Zinn"
Judge
Appendix A
DIVISION 4
Right of Permanent Residence
SECTION 4
Droit de résidence permanente
Fee — $500
Frais de 500 $
303 (1) A fee of $500 is payable by a person for the acquisition of permanent resident status.
303 (1) Des frais de 500 $ sont à payer par toute personne pour l’acquisition du statut de résident permanent.
Indexation
Indexation
(1.1) The fee set out in subsection (1) shall be indexed at 09:00:00 a.m. Eastern daylight time on April 30, 2022, and every two years after that on April 30 at that same time, in accordance with the cumulative percentage increase to the Consumer Price Index for Canada, published by Statistics Canada, for the two previous years, rounded to the nearest five dollars.
(1.1) Les frais prévus au paragraphe (1) sont indexés à 9 h 0 min 0 s, heure avancée de l’Est, le 30 avril 2022, puis tous les deux ans suivants, le 30 avril à cette heure, selon l’augmentation cumulative en pourcentage de l’indice des prix à la consommation pour le Canada, publié par Statistique Canada, des deux années précédentes, le montant des frais étant arrondi au multiple de 5 $ le plus près.
Exception
Exceptions
(2) The following persons are not required to pay the fee referred to in subsection (1):
(2) Les personnes ci-après ne sont pas tenues au paiement des frais prévus au paragraphe (1) :
(a) a person who is a family member of a principal applicant and is a dependent child referred to in paragraph (b) or (c) of the definition family member in subsection 1(3);
a) la personne qui est un membre de la famille du demandeur principal et qui est un enfant à charge visé aux alinéas b) ou c) de la définition de membre de la famille au paragraphe 1(3);
(b) a principal applicant who is a foreign national referred to in paragraph 117(1)(b), (f) or (g);
b) le demandeur principal qui est un étranger visé à l’un des alinéas 117(1)b), f) ou g);
(b.1) a principal applicant in Canada who has made an application in accordance with section 66 and is a dependent child of a permanent resident or of a Canadian citizen;
b.1) la personne au Canada qui est le demandeur principal dans une demande faite conformément à l’article 66 et qui est un enfant à charge d’un résident permanent ou d’un citoyen canadien;
(b.2) a member of the permit holder class who is a dependent child of
b.2) la personne qui est membre de la catégorie des titulaires de permis et est un enfant à charge d’une des personnes suivantes :
(i) a member of the permit holder class who has made an application to remain in Canada as a permanent resident, or
(i) un membre de la catégorie des titulaires de permis qui a fait une demande de séjour au Canada à titre de résident permanent,
(ii) a permanent resident or a Canadian citizen;
(ii) un résident permanent ou un citoyen canadien;
(c) a protected person within the meaning of subsection 95(2) of the Act who has applied to remain in Canada as a permanent resident, and their family members;
c) la personne protégée au sens du paragraphe 95(2) de la Loi qui a fait une demande de séjour au Canada à titre de résident permanent, ainsi que les membres de sa famille;
(c.1) a person who is a member of the protected temporary residents class and is described in paragraph 151.1(2)(b) and the family members included in their application;
c.1) la personne qui est membre de la catégorie des résidents temporaires protégés et qui est visée à l’alinéa 151.1(2)b), et les membres de sa famille visés par sa demande;
(d) a person who is a member of the Convention refugees abroad class, and the family members included in their application; and
d) la personne qui est membre de la catégorie des réfugiés au sens de la Convention outre-frontières et les membres de sa famille visés par sa demande;
(e) a person who is a member of a humanitarian-protected persons abroad class, and the family members included in their application.
e) la personne qui est membre d’une catégorie de personnes protégées à titre humanitaire outre-frontières et les membres de sa famille visés par sa demande.
Payment
Paiement
(3) The fee referred to in subsection (1) is payable
(3) Les frais doivent être acquittés :
(a) in the case of an application by or on behalf of a person for a permanent resident visa, before the visa is issued; and
a) dans le cas de la demande de visa de résident permanent, avant la délivrance du visa;
(b) in the case of an application by or on behalf of a foreign national to remain in Canada as a permanent resident, before the foreign national becomes a permanent resident.
b) dans le cas de la demande de séjour à titre de résident permanent, avant que l’intéressé ne devienne résident permanent.
Remission
Remise
(4) The fee referred to in subsection (1) is remitted if the person does not acquire permanent resident status, in which case the fee shall be repaid by the Minister to the person who paid it.
(4) Remise est accordée des frais prévus au paragraphe (1) si la personne n’acquiert pas le statut de résident permanent; le ministre rembourse alors les frais à la personne qui les a acquittés.
Transitional — subsection (4)
Disposition transitoire relative au paragraphe (4)
(5) For the purpose of subsection (4), if the fee was paid before the day on which this subsection comes into force, the amount to be remitted and repaid — except to the extent otherwise remitted — is $975.
(5) Pour l’application du paragraphe (4), si les frais ont été acquittés avant l’entrée en vigueur du présent paragraphe, la remise et le remboursement s’élèvent à 975 $, moins toute somme déjà remise à ce titre.
Transitional — remission
Disposition transitoire — remise
(6) Despite subsections (4) and (5), in the case where the fee of $975 was paid in accordance with paragraph (3)(a), a portion of that fee in the amount of $485 is remitted and shall be repaid — except to the extent otherwise remitted — by the Minister to the person who paid the fee if
(6) Malgré les paragraphes (4) et (5), dans le cas où des frais de 975 $ ont été acquittés conformément à l’alinéa (3)a), remise est accordée de la somme de 485 $ — moins toute somme déjà remise à ce titre — laquelle correspond à une partie de ces frais et est remboursée par le ministre à la personne qui les a acquittés si la personne à l’égard de laquelle les frais ont été acquittés :
(a) the person in respect of whom the fee was paid has, on or before the day on which this subsection comes into force, not yet acquired permanent resident status and they are a person referred to in any of paragraphs 117(1)(a), (c), (d) or (h); or
a) est visée par l’un ou l’autre des alinéas 117(1)a), c), d) et h) et n’a pas encore acquis le statut de résident permanent à la date d’entrée en vigueur du présent paragraphe;
(b) the person in respect of whom the fee was paid acquires permanent resident status on or after the day on which this subsection comes into force and they are not a person referred to in any of paragraphs 117(1)(a), (c), (d) or (h).
b) n’est pas visée par l’un ou l’autre des alinéas 117(1)a), c), d) et h) et acquiert le statut de résident permanent à la date d’entrée en vigueur du présent paragraphe ou à une date ultérieure.
Appendix B
PART I
The Right to Citizenship
PARTIE I
Le droit à la citoyenneté
Persons who are citizens
Citoyens
3 (1) Subject to this Act, a person is a citizen if
3 (1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne :
(a) the person was born in Canada after February 14, 1977;
a) née au Canada après le 14 février 1977;
(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen;
b) née à l’étranger après le 14 février 1977 d’un père ou d’une mère ayant qualité de citoyen au moment de la naissance;
(c) the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship;
c) ayant obtenu la citoyenneté — par attribution ou acquisition — sous le régime des articles 5 ou 11 et ayant, si elle était âgée d’au moins quatorze ans, prêté le serment de citoyenneté;
(c.1) the person has been granted citizenship under section 5.1;
c.1) ayant obtenu la citoyenneté par attribution au titre de l’article 5.1;
(d) the person was a citizen immediately before February 15, 1977;
d) ayant cette qualité au 14 février 1977;
(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act;
e) habile, au 14 février 1977, à devenir citoyen aux termes de l’alinéa 5(1)b) de l’ancienne loi;
(f) before the coming into force of this paragraph, the person ceased to be a citizen for any reason other than the following reasons and did not subsequently become a citizen:
f) qui, avant l’entrée en vigueur du présent alinéa, a cessé d’être citoyen pour un motif autre que les motifs ci-après et n’est pas subséquemment devenu citoyen :
(i) the person renounced his or her citizenship under any of the following provisions:
(i) elle a renoncé à sa citoyenneté au titre de l’une des dispositions suivantes :
(A) paragraph 19(2)(c) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1951, c. 12, s. 1(3),
(A) l’alinéa 19(2)c) de la Loi sur la citoyenneté canadienne, S.C. 1946, ch. 15, édicté par S.C. 1951, ch. 12, art. 3,
(B) paragraph 19(2)(c) of the Canadian Citizenship Act, R.S.C. 1952, c. 33,
(B) l’alinéa 19(2)c) de la Loi sur la citoyenneté canadienne, S.R.C. 1952, ch. 33,
(C) subparagraph 19(1)(b)(iii) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 5,
(C) le sous-alinéa 19(1)b)(iii) de la Loi sur la citoyenneté canadienne, S.R.C. 1952, ch. 33, édicté par S.C. 1967-68, ch. 4, art. 5,
(D) subparagraph 18(1)(b)(iii) of the former Act,
(D) le sous-alinéa 18(1)b)(iii) de l’ancienne loi,
(E) section 8 of the Citizenship Act, S.C. 1974-75-76, c. 108, or
(E) l’article 8 de la Loi sur la citoyenneté, S.C. 1974-75-76, ch. 108,
(F) section 9 of this Act,
(F) l’article 9 de la présente loi,
(ii) the person’s citizenship was revoked for false representation, fraud or concealment of material circumstances under any of the following provisions:
(ii) sa citoyenneté a été révoquée pour cause de fausse déclaration, fraude ou dissimulation de faits essentiels au titre de l’une des dispositions suivantes :
(A) paragraph 21(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15,
(A) l’alinéa 21(1)b) de la Loi sur la citoyenneté canadienne, S.C. 1946, ch. 15,
(B) paragraph 19(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1950, c. 29, s. 8,
(B) l’alinéa 19(1)b) de la Loi sur la citoyenneté canadienne, S.C. 1946, ch. 15, édicté par S.C. 1950, ch. 29, art. 8,
(C) paragraph 19(1)(b) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as it read before the coming into force of An Act to amend the Canadian Citizenship Act, S.C. 1967-68, c. 4,
(C) l’alinéa 19(1)b) de la Loi sur la citoyenneté canadienne, S.R.C. 1952, ch. 33, dans ses versions antérieures à l’entrée en vigueur de la Loi modifiant la Loi sur la citoyenneté canadienne, S.C. 1967-68, ch. 4,
(D) paragraph 19(1)(a) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 5,
(D) l’alinéa 19(1)a) de la Loi sur la citoyenneté canadienne, S.R.C. 1952, ch. 33, édicté par S.C. 1967-68, ch. 4, art. 5,
(E) paragraph 18(1)(a) of the former Act,
(E) l’alinéa 18(1)a) de l’ancienne loi,
(F) section 9 of the Citizenship Act, S.C. 1974-75-76, c. 108, or
(F) l’article 9 de la Loi sur la citoyenneté, S.C. 1974-75-76, ch. 108,
(G) section 10 of this Act, or
(G) l’article 10 de la présente loi,
(iii) the person failed to make an application to retain his or her citizenship under section 8 as it read before the coming into force of this paragraph or did make such an application that subsequently was not approved;
(iii) elle n’a pas présenté la demande visée à l’article 8, dans ses versions antérieures à l’entrée en vigueur du présent alinéa, pour conserver sa citoyenneté ou, si elle l’a fait, la demande a été rejetée;
(g) the person was born outside Canada before February 15, 1977 to a parent who was a citizen at the time of the birth and the person did not, before the coming into force of this paragraph, become a citizen;
g) qui, née à l’étranger avant le 15 février 1977 d’un père ou d’une mère ayant qualité de citoyen au moment de la naissance, n’est pas devenue citoyen avant l’entrée en vigueur du présent alinéa;
(h) the person was granted citizenship under section 5, as it read before the coming into force of this paragraph, the person would have, but for that grant, been a citizen under paragraph (g) and, if it was required, he or she took the oath of citizenship;
h) qui a obtenu la citoyenneté par attribution sous le régime de l’article 5, dans ses versions antérieures à l’entrée en vigueur du présent alinéa — et, si elle y était tenue, prêté le serment de citoyenneté — et qui, n’eût été cette attribution, aurait été une personne visée à l’alinéa g);
(i) the person had been a citizen other than by way of grant, ceased to be a citizen for a reason other than the reasons referred to in subparagraphs (f)(i) to (iii), was subsequently granted citizenship before the coming into force of this paragraph under any of the following provisions and, if it was required, he or she took the oath of citizenship:
i) qui, avant l’entrée en vigueur du présent alinéa, a obtenu la citoyenneté par attribution sous le régime de l’une des dispositions ci-après — et, si elle y était tenue, prêté le serment de citoyenneté — après avoir cessé d’être citoyen, pour un motif autre que les motifs visés aux sous-alinéas f)(i) à (iii), alors qu’elle avait qualité de citoyen autrement que par attribution :
(i) subsection 10(1) of the Citizenship Act, S.C. 1974-75-76, c. 108,
(i) le paragraphe 10(1) de la Loi sur la citoyenneté, S.C. 1974-75-76, ch. 108,
(ii) subsection 5