Begum v. Canada (Citizenship and Immigration)

Begum v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-10-10
Neutral citation
2018 FCA 181
File numbers
A-169-17
Notes
Reported Decision
Decision Content
Date: 20181010
Docket: A-169-17
Citation: 2018 FCA 181
CORAM:
PELLETIER J.A.
GAUTHIER J.A.
DE MONTIGNY J.A.
BETWEEN:
SAJU BEGUM
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
ONTARIO COUNCIL OF AGENCIES SERVING IMMIGRANTS and SOUTH ASIAN LEGAL CLINIC OF ONTARIO
Interveners
Heard at Toronto, Ontario, on May 10, 2018.
Judgment delivered at Ottawa, Ontario, on October 10, 2018.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
PELLETIER J.A.
GAUTHIER J.A.
Date: 20181010
Docket: A-169-17
Citation: 2018 FCA 181
CORAM:
PELLETIER J.A.
GAUTHIER J.A.
DE MONTIGNY J.A.
BETWEEN:
SAJU BEGUM
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
ONTARIO COUNCIL OF AGENCIES SERVING IMMIGRANTS and SOUTH ASIAN LEGAL CLINIC OF ONTARIO
Interveners
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] Saju Begum appeals from a decision rendered by Justice Russell of the Federal Court dated April 26, 2017 (2017 FC 409). The Federal Court dismissed the appellant’s application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada (the IAD) dated July 7, 2016, by which it dismissed the appellant’s appeal of an immigration officer’s decision denying her request to sponsor her father, mother and five siblings for permanent residency in Canada.
[2] The Federal Court has certified the three following serious questions of general importance:
a) Given that s. 133(1)(j) and s. 134 of the Immigration and Refugee Protection Regulations (IRPR) were amended and came into force on January 2, 2014, should the Immigration Appeal Division (IAD) have retroactively applied the amended version of these regulations to a case where the applicant’s Notice of Appeal to the IAD was filed before the amended version of the regulations came into force?
b) Does paragraph 133(1)(j) of the Immigration and Refugee Protection Regulations violate section 15 of the Canadian Charter [of] Rights and Freedoms (the “Charter”)?
c) Does paragraph 133(1)(j) of the Immigration and Refugee Protection Regulations violate section 7 of the Charter?
[3] For the following reasons, I would dismiss the appeal without costs.
I. Factual context
[4] The appellant is a Canadian citizen born in Bangladesh. She moved to Canada in 1994 and was sponsored by her husband. In 1999, she acquired Canadian citizenship. She and her husband had five children, all under the age of 18 at the time of the application before the Federal Court. The appellant’s husband is a taxi driver and the sole source of income for the family.
[5] In 1996, the appellant’s husband sponsored his father, mother and his four dependent siblings for permanent residence in Canada. In 2004, the appellant and her family visited her parents and siblings in Bangladesh. Two years after that visit, the appellant was diagnosed with “adjustment disorder with mixed anxiety and depressed features, mild in severity”. The appellant explained that her symptoms of depression began following her visit to Bangladesh and were due to the lack of social support and the separation from her family she felt upon her return. In 2012, she was diagnosed with depression by her family physician and she was prescribed psychotropic medication, which she no longer takes. In 2015, the appellant was assessed by a psychologist for the purpose of the hearing before the IAD. She was diagnosed with a severe level of depression, a severe level of post-trauma distress and the likely presence of Posttraumatic Stress Disorder, purportedly due to her long-term separation from her parents and siblings, her lack of social support, as her husband works a great deal, and the fact that she had no other family in Canada.
[6] In 2008, the appellant submitted an application to sponsor her parents and five siblings. Her husband initially co-signed the application, but was then removed as co-signer because he failed to meet sponsorship requirements. His father and some siblings had received social assistance benefits during the sponsorship, which had not been repaid. Moreover, during his sponsorship of the appellant, the appellant’s husband and the appellant both received Ontario Works payments.
[7] Under the relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) and the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the IRPR), the appellant had to demonstrate that she could support 14 people. A visa officer refused the application on September 19, 2011, on the basis that the appellant did not meet the minimum necessary income (MNI) requirement under the governing regulations.
[8] Before turning to the decisions of the IAD and the Federal Court, a quick overview of the legislative framework is in order.
II. Legislative framework
[9] Section 12(1) of the IRPA provides for the selection of permanent residents on the basis of family reunification:
Family reunification
Regroupement familial
12 (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
12 (1) La sélection des étrangers de la catégorie « regroupement familial » se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère ou à titre d’autre membre de la famille prévu par règlement.
…
[…]
[10] However, section 120 of the IRPR requires that a sponsorship be provided for a request for permanent residence to proceed on the basis of family reunification:
Approved sponsorship application
Parrainage
120 For the purposes of Part 5,
120 Pour l’application de la partie 5, l’engagement de parrainage doit être valide à l’égard de l’étranger qui présente une demande au titre de la catégorie du regroupement familial et à l’égard des membres de sa famille qui l’accompagnent, à la fois :
(a) a permanent resident visa shall not be issued to a foreign national who makes an application as a member of the family class or to their accompanying family members unless a sponsorship undertaking in respect of the foreign national and those family members is in effect; and
a) au moment où le visa est délivré;
(b) a foreign national who makes an application as a member of the family class and their accompanying family members shall not become permanent residents unless a sponsorship undertaking in respect of the foreign national and those family members is in effect and the sponsor who gave that undertaking still meets the requirements of section 133 and, if applicable, section 137.
b) au moment où l’étranger et les membres de sa famille qui l’accompagnent deviennent résidents permanents, à condition que le répondant qui s’est engagé satisfasse toujours aux exigences de l’article 133 et, le cas échéant, de l’article 137.
[11] Details are provided in sections 130 to 134 of the IRPR. Section 130 set outs the criteria to become a sponsor:
Sponsor
Qualité de répondant
130 (1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who
130 (1) Sous réserve des paragraphes (2) et (3), a qualité de répondant pour le parrainage d’un étranger qui présente une demande de visa de résident permanent au titre de la catégorie du regroupement familial ou une demande de séjour au Canada au titre de la catégorie des époux ou conjoints de fait au Canada aux termes du paragraphe 13(1) de la Loi, le citoyen canadien ou résident permanent qui, à la fois :
(a) is at least 18 years of age;
a) est âgé d’au moins dix-huit ans;
(b) resides in Canada; and
b) réside au Canada;
(c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10.
c) a déposé une demande de parrainage pour le compte d’une personne appartenant à la catégorie du regroupement familial ou à celle des époux ou conjoints de fait au Canada conformément à l’article 10.
…
[…]
[12] Section 131 of the IRPR provides that an undertaking from the sponsor be given to the Minister of Citizenship and Immigration. This undertaking obliges the sponsor, pursuant to section 132, to reimburse the government of the province concerned in the event that the sponsored foreign national receives benefits from social assistance programmes during the period set out in subsection 132(1). The duration of that undertaking is defined in subsection 132(2) and is based on criteria such as the relationship between the sponsor and the sponsored foreign national, the age of the sponsored foreign national and the status of the foreign national in Canada. Section 133 of the IRPR sets out the requirements for sponsors. Among these requirements is the MNI requirement, set out at paragraph 133(1)(j) of the IRPR. Below is the text as amended and in effect as of January 1, 2014:
Requirements for sponsor
Exigences : répondant
133 (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
133 (1) L’agent n’accorde la demande de parrainage que sur preuve que, de la date du dépôt de la demande jusqu’à celle de la décision, le répondant, à la fois :
…
[…]
(j) if the sponsor resides
j) dans le cas où il réside :
(i) in a province other than a province referred to in paragraph 131(b),
(i) dans une province autre qu’une province visée à l’alinéa 131b) :
(A) has a total income that is at least equal to the minimum necessary income, if the sponsorship application was filed in respect of a foreign national other than a foreign national referred to in clause (B), or
(A) a un revenu total au moins égal à son revenu vital minimum, s’il a déposé une demande de parrainage à l’égard d’un étranger autre que l’un des étrangers visés à la division (B),
(B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application, if the sponsorship application was filed in respect of a foreign national who is
(B) a un revenu total au moins égal à son revenu vital minimum, majoré de 30 %, pour chacune des trois années d’imposition consécutives précédant la date de dépôt de la demande de parrainage, s’il a déposé une demande de parrainage à l’égard de l’un des étrangers suivants :
(I) the sponsor’s mother or father,
(I) l’un de ses parents,
(II) the mother or father of the sponsor’s mother or father, or
(II) le parent de l’un ou l’autre de ses parents,
(III) an accompanying family member of the foreign national described in subclause (I) or (II) …
(III) un membre de la famille qui accompagne l’étranger visé aux subdivisions (I) ou (II),
…
[…]
[13] However, at the time the appellant filed her appeal of the refusal to grant her application for sponsorship to the IAD, on September 30, 2011, another version of the MNI was in effect (it was in effect until 31 December 2013) (pre-2014 MNI):
Requirements for sponsor
Exigences : répondant
133. (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
133. (1) L’agent n’accorde la demande de parrainage que sur preuve que, de la date du dépôt de la demande jusqu’à celle de la décision, le répondant, à la fois :
…
[…]
(j) if the sponsor resides
j) dans le cas où il réside :
(i) in a province other than a province referred to in paragraph 131(b), has a total income that is at least equal to the minimum necessary income…
(i) dans une province autre qu’une province visée à l’alinéa 131b), a eu un revenu total au moins égal à son revenu vital minimum […]
…
[…]
[14] The MNI is defined at section 2 of the IRPR:
minimum necessary income means the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published annually by Statistics Canada under the Statistics Act, for urban areas of residence of 500,000 persons or more as the minimum amount of before-tax annual income necessary to support a group of persons equal in number to the total number of the following persons:
revenu vital minimum Le montant du revenu minimal nécessaire, dans les régions urbaines de 500 000 habitants et plus, selon la version la plus récente de la grille des seuils de faible revenu avant impôt, publiée annuellement par Statistique Canada au titre de la Loi sur la statistique, pour subvenir pendant un an aux besoins d’un groupe constitué dont le nombre correspond à celui de l’ensemble des personnes suivantes :
(a) a sponsor and their family members,
a) le répondant et les membres de sa famille;
(b) the sponsored foreign national, and their family members, whether they are accompanying the foreign national or not, and
b) l’étranger parrainé et, qu’ils l’accompagnent ou non, les membres de sa famille;
(c) every other person, and their family members,
c) toute autre personne — et les membres de sa famille — visée par :
(i) in respect of whom the sponsor has given or co-signed an undertaking that is still in effect, and
(i) un autre engagement en cours de validité que le répondant a pris ou cosigné,
(ii) in respect of whom the sponsor’s spouse or common-law partner has given or co-signed an undertaking that is still in effect, if the sponsor’s spouse or common-law partner has co-signed with the sponsor the undertaking in respect of the foreign national referred to in paragraph (b). (revenu vital minimum)
(ii) un autre engagement en cours de validité que l’époux ou le conjoint de fait du répondant a pris ou cosigné, si l’époux ou le conjoint de fait a cosigné l’engagement avec le répondant à l’égard de l’étranger visé à l’alinéa b). (minimum necessary income)
[15] Finally, section 134 of the IRPR provides for income calculation rules and specifies that the sponsor’s total income is primarily calculated on the basis of the last notice of assessment issued pursuant to the Income Tax Act, R.S.C., 1985 c. 1 (5th Supp.) or an equivalent document.
III. Decisions below
A. Visa Officer’s Decision
[16] As previously mentioned, the Visa Officer advised the appellant on September 19, 2011 that her request to sponsor her father had been denied since she did not meet the MNI requirement (as set out at paragraph 133(1)(j)).
[17] In a letter also dated September 19, 2011, sent to her father, it was specified that the application for a permanent resident visa as a member of the family class had been denied since “subparagraph 133(1)(j)(i) of the Regulations states that if the sponsor resides in a province other than Quebec, the sponsor must have a total income that is at least equal to the minimum necessary income” (Appeal Book, at p. 288).
[18] The Visa Officer determined that this requirement was not met at the time the sponsorship application was filed. Accordingly, the application for permanent residency could not be allowed, pursuant to paragraph 120(b) of the IRPR in effect at that time. Pursuant to subsection 11(1) of the IRPA, the Visa Officer refused the application.
B. The IAD Decision
[19] Since the appellant did not challenge the validity of the Visa Officer’s decision except on constitutional grounds, the IAD first reviewed whether special relief was warranted in light of the circumstances of the case. It noted that the appellant had the burden to prove “on a balance of probabilities, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case” (IAD Reasons, at para. 13).
[20] The IAD found that no such special relief was warranted since “physical separation alone is not sufficient to invoke special relief and there was insufficient evidence about hardship or any unusual and serious circumstances that might permit the imposition of special relief” (IAD Reasons, at para. 40). It was particularly concerned with the fact, on the one hand, that the appellant had not provided sufficient evidence regarding her income and that of her husband, and, on the other hand, that there was little evidence, other than generalities, that the appellants would be self-sufficient if they came to Canada. The IAD applied paragraph 133(1)(j) and section 134 of the amended IRPR for a 14-member family and determined that the applicable MNI ranged from $137,189 to $140,597 in 2013 to 2015, whereas the appellant’s estimated income was $10,000 in both 2014 and 2015.
[21] Regarding the appellant’s suffering caused by her separation from her family and its negative impacts on her mental health, the IAD noted that she left her family over 20 years ago to immigrate to Canada, and that there were alternative solutions to the immigration of her family to Canada, such as visits between the appellant and her family and the use of telecommunications (particularly internet software such as Skype). It was also concerned with the fact that the appellant refused to follow her doctor’s advice and take medication for her depression. Thus, it concluded that there was no evidence that the appellant would suffer any specific hardship from the dismissal of her appeal, and that the negative factors outweighed the positive ones.
[22] On the constitutional challenge, the IAD began by summarizing at length the expert evidence that was presented at the hearing, as well as the affidavit evidence. The IAD agreed with the appellant that section 27 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), was an interpretative guide. However, it disagreed with the appellant’s submission that the evidence on file showed that the MNI requirement weakens the multicultural makeup of Canadian society. It noted that subsection 133(4) of the IRPR provides important exceptions to the MNI requirement.
[23] The IAD denied the appellant’s claim under section 15 of the Charter. It considered that there was a lack of specific evidence relating to the appellant’s “race” other than her country-of-origin description, and that the evidence regarding her disability was insufficient. Most of the evidence submitted was broad and generic, and did not relate to the appellant’s specific situation. The IAD also found that the appellant had not established that section 133 of the IRPR created a distinction based on listed or analogous grounds. The evidence was insufficient to “produce a real comparative group, or demonstrate the actual impact of [section 133 of the IRPR] on that group” (IAD Reasons, at para. 105). No causal connection between the impugned provision and a disproportionate or adverse effect on the appellant was demonstrated. In view of these findings, the IAD did not address the question of whether the distinction was discriminatory.
[24] Regarding the section 7 challenge, the IAD outlined that the Charter does not provide for a right to family reunification or an unqualified right to enter or remain in Canada. Moreover, the MNI requirement must be placed in the broader legislative context of the IRPA, which also provides for an alternative means for her relatives to be granted a permanent resident visa: the humanitarian and compassionate circumstances. The evidence about the psychological harm suffered by Ms. Begum was also not sufficient enough, in the IAD’s view, to engage section 7 of the Charter. Finally, the IAD concluded that even if there was a deprivation of the appellant’s right to liberty and security, it would be made in accordance with the principles of fundamental justice. Indeed, the MNI requirement is not fundamentally unfair to the appellant, and subsection 67(3) of the IRPR, which provides for an examination of humanitarian and compassionate circumstances, provides sufficient procedural fairness.
[25] Given these conclusions, an analysis of section 1 of the Charter was not deemed required.
C. The Federal Court’s Decision
[26] The Federal Court first summarized at great length the IAD Decision as well as the parties’ submissions. The Court then determined that the issue of whether the pre-2014 or the post-2014 version of section 133 of the IRPR applied, as well as the related procedural fairness issues raised by the appellant, were reviewable under the correctness standard. The constitutional questions involving sections 7 and 15 of the Charter, in his view, also attracted the correctness standard of review, while the issues of the IAD’s assessment of the evidence and the exercise of its discretion to grant the application on humanitarian and compassionate grounds was reviewable on a standard of reasonableness.
[27] As for the application of sections 133 and 134 of the IRPR, the Federal Court confirmed the IAD’s decision to apply the amended provisions, since the IAD proceeds on a de novo basis. The IAD decides whether or not to grant the application based on the provision in force at the time of its decision. The Federal Court held that the existence of an appeal does not change the fact that the appellants have no accrued rights to have their application decided under certain provisions. Gill v. Canada (Minister of Citizenship and Immigration), 2012 FC 1522, was correctly decided and has been applied by the Federal Court in Burton v. Canada (Minister of Citizenship and Immigration), 2016 FC 345, and Patel v. Canada (Minister of Citizenship and Immigration), 2016 FC 1221.
[28] The Federal Court rejected the appellant’s argument that the IAD breached procedural fairness in failing to notify her that it would be applying the amended version of the IRPR. It concluded that the procedure was not unfair since the IAD raised the issue of the IRPR version to be applied and requested submissions from the parties. In the appellant’s Notice of Constitutional Question, it was also clear that the constitutional challenge applied to both the pre-2014 and post-2014 version of paragraph 133(1)(j).
[29] On the question of whether section 15 of the Charter was breached, the Federal Court agreed with the IAD that the appellant was unable to establish an adverse impact on the intersectional basis of sex, race and disability. The IAD followed the guiding jurisprudence and appropriately concluded that the evidence was too “generic” and “indirect” to establish the necessary adverse impact on the appellant or the group concerned. While evidence on the larger social, political and legal context is relevant, it does not eliminate the need for evidence directed to the impact on the individual.
[30] The Federal Court concluded, as did the IAD, that Dr. Galabuzi and Professor Mykitiuk’s evidence was not sufficient to establish an adverse impact on Ms. Begum on the basis of her sex, race or disability. The IAD’s conclusion that Ms. Begum failed to establish a causal connection between the denial of her sponsorship for MNI reasons and the intersectional grounds she raised was endorsed by the Federal Court. As the Court stated, “the governing jurisprudence also makes it clear that ‘the main consideration must be the impact on the individual or the group concerned,’ and this is where the Applicant’s evidence fell short” (Federal Court Reasons, at para. 179).
[31] The Federal Court also dismissed the claim based upon section 7 of the Charter. The Court rejected the appellant’s contention that the IAD had not addressed the interests protected by the right to life, liberty and security of the person, and had not assessed her psychological evidence. In the Federal Court’s view, the appellant failed to establish that there was a sufficient causal connection between the government action embodied in paragraph 133(1)(j) and the deprivation of her right to liberty or security. The separation of the appellant from her family is a choice that she made when she decided to come to Canada, and she must be taken to have known that family reunification would not be automatic. The Supreme Court has made it clear that family members do not have an unqualified right to enter or remain in Canada. Moreover, the evidence does not establish that the psychological harm alleged by the appellant was sufficient to engage section 7 of the Charter. That being the case, the Federal Court was unable to find any reviewable error with respect to the IAD’s conclusion that section 7 is not engaged on the facts of this case and that it was therefore unnecessary to provide lengthy reasons explaining why it rejected the appellant’s assertion that the MNI requirement was unfair and breached the principles of fundamental justice. In light of these conclusions, the Federal Court did not assess the section 1 arguments.
[32] Finally, the Federal Court concluded that there were no reviewable errors rendering the IAD Decision unreasonable. More specifically, it cannot be said that the IAD ignored and misconstrued evidence. Its reasons show that it was fully aware of the facts, considered the expert evidence, and provided reasons for its conclusions on said evidence. The IAD did not fail to address special relief. It also acknowledged the importance of considering the best interests of the child, which in its view needed to be given substantial weight, but weighed its conclusions against the other factors at play, as provided for by case law. The Federal Court dismissed the appellant’s assertion that the reasons were inadequate, specifying that perfection is not required and that when read as a whole, it is substantially transparent, intelligible and justified.
IV. Issues
[33] This appeal raises the three following certified questions:
Given that s. 133(1)(j) and s. 134 of the IRPR were amended and came into force on January 2, 2014, should the IAD have retroactively applied the amended version of these regulations to a case where the appellant’s Notice of Appeal to the IAD was filed before the amended version of the regulations came into force?
Does paragraph 133(1)(j) of the IRPR violate section 15 of the Charter?
Does paragraph 133(1)(j) of the IRPR violate section 7 of the Charter?
V. Analysis
[34] In an appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative tribunal, the applicable standard of appellate review is that set out by the Supreme Court in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47. Accordingly, we must step into the shoes of the Federal Court and determine, first, whether it identified the appropriate standard of review, and, second, assess whether it applied the standard correctly. In other words, we must for all intents and purposes conduct the judicial review analysis afresh.
[35] The parties agree that the Federal Court correctly found that the standard of review for all three questions is that of correctness. The issue of whether the pre-2014 or the post-2014 version of section 133 applied is a pure question of law; while the IAD has expertise on the application of the IRPR, the retroactive or retrospective application of a provision clearly falls outside of its specialized expertise. It is also a question of law that is of general importance for the legal system as a whole, upon which no deference is warranted: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 55.
[36] I am also of the view that the Federal Court was right to apply the correctness standard to the constitutional questions involving sections 7 and 15 of the Charter. That being said, the extricable findings of fact and the assessment of the evidence upon which the constitutional analysis is premised are entitled to deference. As the Supreme Court stated in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407 [Consolidated Fastfrate] at paragraph 26:
The parties agree that the applicable standard of review in cases of constitutional interpretation is correctness: see Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at p. 17. However, as the respondent Teamsters also note, the ALRB’s constitutional analysis rested on its factual findings. Where it is possible to treat the constitutional analysis separately from the factual findings that underlie it, curial deference is owed to the initial findings of fact: see Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, at para. 19…
(See also: Conseil de la Nation Innu Matimekush-Lac John c. Association des employés du nord québécois (CSQ), 2017 CAF 212 at paras. 18-19; Northern Air Solutions Inc. v. United Food and Commercial Workers Canada, Local 175, 2015 FCA 259 at para. 5; CHC Global Operations (2008) Inc. v. Global Helicopter Pilots Association, 2010 FCA 89 at para. 22.)
[37] Thus, the standard of reasonableness applies to questions of fact.
A. Given that s. 133(1)(j) and s. 134 of the IRPR were amended and came into force on January 2, 2014, should the IAD have retroactively applied the amended version of these regulations to a case where the appellant’s Notice of Appeal to the IAD was filed before the amended version of the regulations came into force?
[38] The appellant argued that the IAD and the Federal Court erred in applying the amended version of paragraph 133(1)(j) of the IRPR to her appeal. Relying on the presumption that new legislation affecting substantive rights only apply prospectively unless a clear legislative intent to the contrary can be discerned, she also pointed out that not only is there no transitional provisions dealing with appeals filed before the new MNI requirement came into effect, but that the Regulatory Impact Analysis Statement and Citizenship and Immigration Canada (CIC) Operational Bulletin confirmed that the new MNI requirement is not meant to be applied retroactively. As interesting as this argument may be, this is not a question that is properly before us as it should not have been certified in the first place.
[39] It is well established that for a question to be properly certified pursuant to section 74 of the IRPA, it must be dispositive of the appeal. In the case at bar, it clearly does not matter whether one applies the original or amended version of paragraph 133(1)(j) of the IRPR. Based on the pre-2014 MNI requirement, in order to support 14 people (the 7 she sought to sponsor as well as her family members), the appellant would have needed a minimum income of $92,181 for 2007 (the taxation year immediately preceding the date of filing of the sponsorship application). Yet her income for that year was $1,200. She therefore would not have met the MNI requirement even under its original version. Needless to say, she does not meet the new MNI threshold either, which is 30 percent higher than the old one (between $137,189 to $140,597 in 2013 to 2015). In similar circumstances, this Court found that the certified question is not dispositive of the appeal, as it does not matter which version of the requirements was applied: see Sran v. Canada (Minister of Citizenship and Immigration), 2018 FCA 16.
[40] The appellant also argued that her right to procedural fairness was breached because the IAD failed to advise her that it would be applying the amended version of paragraph 133(1)(j) and section 134 to her sponsorship appeal. In my view, the Federal Court was correct to reject that argument. As the Federal Court pointed out, the transcript reveals that the issue was raised with the appellant’s counsel towards the end of the hearing, such that counsel could have made submissions in that respect. More importantly, it appears that the appellant’s challenge to the constitutional validity of paragraph 133(1)(j) of the IRPR was directed to the MNI as such, rather than to any particular version of that requirement. Indeed, her Notice of Constitutional Question makes it clear that she intended to question the validity of any MNI, not just the pre-2014 or the post-2014 version of paragraph 133(1)(j). Accordingly, it is to be presumed that the appellant marshalled evidence and made arguments that went to any MNI, and a careful examination of the record bears this out. At the hearing, counsel for the appellant was unable to explain what difference it would have made to her argument whether the pre-2014 or the post-2014 version was applied. I find, therefore, that the appellant was not prevented from making her case as forcefully and compellingly as possible.
B. Does paragraph 133(1)(j) of the IRPR violate section 15 of the Charter?
[41] The appellant contends that the Federal Court erred in several respects in reviewing the IAD decision, and made errors of law as well as reviewable errors in its evidentiary findings.
[42] First, the appellant argues that both the IAD and the Federal Court applied the wrong legal test to her section 15 claim in disregarding the larger social, political and legal context of the case and in failing to analyze the social science evidence, dismissing it as too generic and indirect. The appellant also claims that the Federal Court erred in dismissing her argument on the basis that it could not find a comparator group. She also argues that the IAD also misapprehended the notion of a comparator group by defining it as the group to which the appellant is a member as opposed to the group against which the appellant’s conditions should be assessed. Relying on the decision of the Supreme Court in Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 [Withler], she alleges it is not necessary to pinpoint a mirror comparator when the discrimination is indirect; in such cases, the focus must be on the effect of the law and the situation of the claimant group. As a result, the IAD and the Federal Court should have considered the sociological disadvantages faced by women, people with disabilities and members of racialized groups in order to assess the impact of the MNI requirement on the appellant.
[43] With respect to the evidentiary findings, the appellant contends that the IAD erred in dismissing her claim at least in part because it did not consider her to be a “racialized” person, despite the evidence that, in the Canadian context, the term “racialized people” includes visible minorities “who are non-Caucasian in race or non-white in colour” (Affidavit of Professor Galabuzi, Appeal Book, at p. 726, para. 13). The appellant is also of the view that the IAD erred in conflating section 15 arguments with the humanitarian and compassionate considerations, and in stating that most of the socio-economic disadvantages faced by people in the appellant’s situation can be addressed through the availability of special relief pursuant to paragraph 67(1)(c) of IRPA. Finally, the appellant takes exception to the characterization of the social science evidence that she introduced as being too “generic” or “indirect”, and stresses that all the relevant evidence connecting the socio-economic disadvantages of the groups to the situation of prospective sponsors was completely ignored.
[44] The starting point to understanding the meaning and purpose of section 15 of the Charter is the seminal decision of the Supreme Court in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews]. In that case, Justice McIntyre made it clear that the concept of human dignity that underlies the equality guarantee calls not only for formal equality (“things that are alike should be treated alike”), but, more importantly, for substantive equality (Andrews, at p. 166). Since the drawing of distinctions is inseparable from legislative action, the challenge has been to come up with a framework to identify those distinctions that are discriminatory. As Justice McIntyre stated, “[i]t must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality” (at p. 164; see also pp. 167, 168 and 182). The key concept, therefore, will be that of discrimination, which Justice McIntyre defined, at page 174, as:
…a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
[45] The approach proposed by Justice McIntyre was applied in a series of cases over the years, and evolved into a two-step approach best summarized by Justice McLachlin (as she then was) in Miron v. Trudel, [1995] 2 S.C.R. 418 at para. 128:
…First, the claimant must show a denial of “equal protection” or “equal benefit” of the law as compared with some other person. Second, the claimant must show that the denial constitutes discrimination…
[46] It was not entirely clear, however, when a distinction based on an enumerated or analogous ground would not also be discriminatory. The Supreme Court came to grips with that question in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law]. In that case, the Court considered the jurisprudential developments in equality law, and tried to refine the concept of discrimination. Specifically, it held that substantive equality would be infringed only where adverse differential treatment by the government has a negative effect on a person’s human dignity. Writing for a unanimous Court, Justice Iacobucci summarized the “three broad inquiries” that a court should undertake when called upon to determine a claim under subsection 15(1) of the Charter. First, the court must decide whether the impugned law draws a formal distinction between the claimant and others on the basis of one or more personal characteristics, or fails to take into account the claimant’s already disadvantaged position within Canadian society, thereby treating differently, in a substantive way, the claimant and others on the basis of one or more personal characteristics. Second, the court must deal with whether the basis for the differential treatment is an enumerated or analogous ground. Third, the court must determine, by answering the following question, whether the law has a purpose or effect that is discriminatory:
Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, r