Attaran v. Citizenship and Immigration Canada

Attaran v. Citizenship and Immigration Canada
Collection
Canadian Human Rights Tribunal
Date
2023-07-04
Neutral citation
2023 CHRT 27
File number(s)
T2163/3716
Decision-maker(s)
Thomas, David L.
Decision type
Decision
Grounds
Age
Family Status
Summary:
Dr. Amir Attaran is an American-born child of Iranian immigrants who moved to Canada as an adult. He applied to sponsor his parents to come to Canada in 2009. At that time, the Canadian Government was taking much longer to process immigration applications for “parents and grandparents” as opposed to other family sponsorship categories such as spouses and children. Dr. Attaran claimed that this was discrimination based on age, family status, race, and national or ethnic origin.
Although Dr. Attaran's parents were eventually approved for sponsorship and the process for parents and grandparents has changed since 2009, his complaint remained unresolved. The Canadian Human Rights Tribunal (the “Tribunal”) first confirmed that Dr. Attaran's parents possessed characteristics protected under the Canadian Human Rights Act (CHRA), including race, national or ethnic origin, family status, and age. Next, the Tribunal looked at whether specific government actions that contributed to the longer processing times for the parent and grandparent category are a “service” under the CHRA.
Dr. Attaran challenged the way Immigration, Refugees and Citizenship Canada implemented the “Levels Plans”. The “Levels Plans” are projections for how many people will be welcomed to Canada each year, broken down by category of immigrant.
Dr. Attaran also challenged the Ministerial Instructions. The Tribunal found that the Ministerial Instructions could not be considered a service under the CHRA.
The remaining allegation concerned the failure of the Minister to exercise his power to exempt parent and grandparent sponsors and applicants from any immigration regulations, which could be considered discriminatory on a prohibited ground under the CHRA. The Tribunal found that this allegation was basically an attack on offending regulations. Dr. Attaran and the Canadian Human Rights Commission did not establish that regulation-making is a service and specifically suggested that the Tribunal not determine that question.
The complaint was dismissed because Dr. Attaran failed to prove the essential elements of the case. While he showed different treatment and the ways in which applications for parents and grandparents were processed more slowly than other categories, he did not show that Immigration, Refugees and Citizenship Canada engaged in a discriminatory practice. For each allegation discussed above, either there was no adverse differential treatment established, or the adverse differential treatment alleged was explained by something that was not proven to be a “service” under section 5 of the CHRA.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT
27
Date:
July 4, 2023
File No.:
T2163/3716
Between:
Amir Attaran
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Immigration, Refugees and Citizenship Canada (formerly Citizenship and Immigration Canada)
Respondent
- and -
Chinese and Southeast Asian Legal Clinic
Interested party
Decision
Member:
David L. Thomas
Table of Contents
I. THE INQUIRY 1
II. DISPOSITION 3
III. THE PARTIES 3
IV. THE COMPLAINT 4
V. STATUTORY CONTEXT 6
VI. HISTORICAL CONTEXT OF THE COMPLAINT 8
VII. THE EXPERIENCE OF DR. ATTARAN AND HIS PARENTS 10
VIII. TERMINOLOGY 12
IX. WITNESSES 13
X. PRELIMINARY ISSUES 19
A. IS THE COMPLAINT MOOT? 19
B. DID THE FEDERAL COURT OF APPEAL MAKE FINDINGS IN ATTARAN-FCA ON ELEMENTS OF THE PRIMA FACIE TEST THAT BIND THE TRIBUNAL IN THIS INQUIRY? 21
XI. DISCRIMINATION LAW AND BURDEN OF THE COMPLAINANT 24
XII. MOORE TEST PART 1: THE COMPLAINANT HAS ESTABLISHED THAT HE HAS ONE OR MORE PROTECTED CHARACTERISTICS UNDER THE CHRA 25
A. Race and National or Ethnic Origin 26
B. Family Status 26
C. Age 28
XIII. MOORE TEST PART 2: HAS THE COMPLAINANT ESTABLISHED ADVERSE DIFFERENTIAL TREATMENT IN THE PROVISION OF A SERVICE BY THE RESPONDENT? 28
A. THE ALLEGED SERVICE(S) IN ISSUE AND NOT IN ISSUE 29
B. THE RESPONDENT DID NOT CONCEDE THAT ITS ACTIONS IN THE PROCESSING OF DR. ATTARAN’S APPLICATION CONSTITUTE A “SERVICE” UNDER THE CHRA. 31
C. THE LAW OF “SERVICES” 33
D. IRPA AND THE IRPA REGULATIONS NOT ALLEGED TO BE SERVICES 37
E. THE SIGNIFICANCE OF THE LEVELS PLANS IN THIS INQUIRY 38
a) Are the Levels Plans Binding? 45
F. MINISTERIAL INSTRUCTIONS 50
a) Did the IRCC’s Use of Ministerial Instructions involve the provision of a service? 50
b) Non-Deployment of Ministerial Instructions from 2008-2011 to Control Intake of Applications to Prevent Backlog Growth 56
c) Aggressive Ministerial Instructions (e.g. Caps, Moratoriums and Lotteries) are used for PGPs but not for Spouses and Children 58
d) The Minister’s non-use and use of Ministerial Instructions after 2008: analysis of alleged adverse differential treatment 60
XIV. Was the Minister’s Failure to Use the Authority under section 25.2(1) of IRPA, to Exempt PGP Applicants from Certain Financial Requirements Set out in the Regulations, Adverse Differential Treatment in the Provision of a Service? 62
XV. Whether IRCC engaged in any other of the alleged discriminatory practices when processing applications in the PGP category 69
A. Simultaneous submissions of applications for sponsorship and permanent residence 71
B. More favourable timing for requests for medical examinations for FC1s 74
C. Giving priority to so-called “wild card” relatives 76
D. Service Standards 78
E. The Processing of PGP Sponsorship Applications at CPC-Mississauga was suspended from May 2004 to September 2005 81
F. Deliberate Shifting of Resources Away from PGPs with the Family Class Re-Design Initiative in 2002-2004 leading to “Priority Processing” for FC1s 83
G. Was the Manner in which IRCC Reported Processing Times Reported to the Public for PGP Applications an Adverse Differential Treatment in the Provision of a Service? 84
H. Disproportionately low numbers of PGPs were admitted to Canada as Permanent Residents from 2007-2019 86
XVI. CONCLUSION ABOUT PRIMA FACIE CASE 88
XVII. Additional Rulings 89
A. Confidentiality Rulings 89
B. The Cabinet Privilege Disclosure Motion and Follow-Up Litigation 91
XVIII. ADDENDUM -The Bias Allegation 98
I. THE INQUIRY [1] This is the final decision on an inquiry before the Canadian Human Rights Tribunal (the “Tribunal” or “CHRT”) for a complaint that was filed more than a decade ago. The matter was before the Tribunal for over 6 years, with a hearing of 22 days and extensive written submissions that took place over a 13-month period in 2021 and 2022.
[2] This inquiry concerned the complaint of Dr. Amir Attaran (the “Complainant”) against Immigration, Refugees and Citizenship Canada (“IRCC” and formerly known as Citizenship and Immigration Canada or “CIC”) filed with the Canadian Human Rights Commission (“CHRC” or the “Commission”) on July 28, 2010. The Complainant alleges that discriminatory practices by the Respondent contributed to the significant delay in the processing of his application to sponsor his parents for immigration, as well as delays for other similar applicants, compared to other immigration categories under the Family Class (as defined in the Regulations to the Immigration and Refugee Protection Act, S.C. 2001, c. 27) (“IRPA”), contrary to section 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “CHRA” or the “Act”).
[3] The original prohibited grounds of discrimination alleged were the age and family status. Upon a written motion, I also permitted Dr. Attaran to amend his complaint to add the prohibited grounds of race, and national or ethnic origin (see 2017 CHRT 21).
[4] Initially the Commission declined to refer Dr. Attaran’s complaint to the Tribunal for an inquiry. The Commission dismissed his complaint on the basis that, although it appeared IRCC processed applications for parents and grandparents differently from sponsorship applications for spouses and dependent children, they were satisfied that it was the result of the exercise of ministerial discretion and that the complainant had not directly challenged the Minister’s authority to exercise such discretion.
[5] Dr. Attaran made an application for a judicial review of the Commission’s decision. The Federal Court dismissed Dr. Attaran’s application for judicial review. Dr. Attaran appealed the decision to the Federal Court of Appeal which, in their decision dated February 3, 2015, overturned the Federal Court’s finding and referred the matter back to the Commission (2015 FCA 37).
[6] The Commission eventually referred Dr. Attaran’s complaint to the Tribunal, where it was received on September 7, 2016. Case management before the Tribunal went on for a long time. There were numerous issues raised about the disclosure of documents. Many thousands of documents were eventually released by IRCC to Dr. Attaran through the disclosure process. Over the course of the pre-hearing period, 15 case management conference calls (CMCCs) were held and I wrote four rulings in response to written interlocutory motions.
[7] In August of 2017, the Chinese and South Asian Law Clinic (“CSALC”) in Toronto brought a motion to be added as an interested party to this complaint. CSALC is a not-for-profit organization incorporated under the laws of Ontario. It provides free legal services to and acts as an advocacy group for non-English speaking, low-income members of the Chinese, Vietnamese, Cambodian and Laotian communities living in Ontario. CSALC is also involved in law reform and has appeared before the Parliamentary Standing Committee on Citizenship and Immigration to make submissions on various topics, including family reunification and family class sponsorship applications. CSALC also engages in test case litigation from time to time. I concluded that CSALC possessed expertise that might assist the Tribunal in this matter. Their acceptance as an interested party was limited in accordance with wishes stated by the Complainant (see 2018 CHRT 6.)
[8] Unfortunately, the COVID-19 pandemic delayed the start of the hearing, which had originally been scheduled to start in-person in Ottawa in April 2020. Eventually, the hearing began on-line in February 2021, using the Zoom teleconference platform. There were two unplanned interruptions to the hearing (discussed below) resulting in hearing days re-scheduled to April and September 2021. Final oral arguments were scheduled to be heard in early 2022. However, the Complainant requested the cancellation of the oral hearing for personal reasons, and I approved that request after consultation with the other parties. In total, there were 22 hearing days in addition to written final arguments and then further written submissions in lieu of oral final arguments.
II. DISPOSITION [9] For the reasons that follow, I have concluded that the Complainant and the Commission have not substantiated this complaint. They have failed to establish a prima facie case demonstrating adverse differential treatment in the provision of a service by the Respondent.
III. THE PARTIES [10] The Complainant, Dr. Amir Attaran, testified that he was born and raised in California, as the only child to parents who immigrated there from Iran. He received a bachelor’s degree in neuroscience from University of California at Berkeley, and a master of science degree in biology from the California Institute of Technology (Caltech) in Pasadena. Dr. Attaran went on to complete his PhD in a biology-related discipline at the University of Oxford in England. Dr. Attaran then completed a bachelor of laws degree at the University of British Columbia. Before becoming a professor at the University of Ottawa, in both the Faculty of Law and the Faculty of Medicine, Dr. Attaran held academic positions at Harvard University and Yale University.
[11] Counsel for the Commission changed over the course of the long case management period. Long-time CHRC counsel, Maitre Daniel Poulin, reached his retirement before the matter went to hearing. He was replaced by Ms. Caroline Carrasco who was based abroad, for the early portions of the hearing. At the same time, the Complainant was in California with his parents, creating a ten-hour time zone difference between all the parties. Notwithstanding the great distance, the on-line platform allowed us to finish many hearing days and the Tribunal thanks Ms. Carrasco for keeping such late hours during that phase. The Commission was also ably represented throughout the preliminary and evidence portions of the inquiry by Ms. Sasha Hart.
[12] Counsel for the Respondent also changed over the course of the pre-hearing stage. Korinda McLaine and Abigail Martinez from the Department of Justice originally represented the Respondent. During the pre-hearing case management, they were eventually replaced by their colleagues, Sean Stynes and Kelly Keenan, who were also supported by co-counsel Susanne Wladysiuk and paralegal, Courtney Hughes.
[13] The interested party, the Chinese and Southeast Asian Legal Clinic, was represented by Jin Chien and Ada Chan.
IV. THE COMPLAINT [14] According to his original complaint form, Dr. Attaran filed the first part of his application (the “Part 1” application) to sponsor his parents for immigration in July of 2009. When he filed his complaint with the CHRC, he noted that the Respondent’s website indicated that IRCC was completing the processing of Part 1 applications to sponsor parents and grandparents (“PGPs”) approximately 37 months after their receipt. By contrast, the same website indicated IRCC was completing the processing of Part 1 sponsorship applications for spouses, common-law or conjugal partners, dependant children and certain other relatives (referred to as “FC1s”) in approximately 42 days (see Exhibit 1). Dr. Attaran alleged that the longer processing time constituted adverse differential treatment on prohibited grounds under the CHRA.
[15] IRCC ultimately approved Dr. Attaran’s application and his parents landed in Canada as permanent residents approximately a decade ago. However, Dr. Attaran’s final arguments allege multiple discriminatory practices involving systemic discrimination on behalf of all sponsors and their parents or grandparents in the Family Class who are “in a similar situation” to the one he was in when sponsoring his parents (Complainant’s Factum at paras. 3 and 5). As such, he seeks systemic as well as personal remedies for the discrimination he alleges.
[16] It should be noted that since filing his complaint, the regime for sponsorship of parents and grandparents has undergone considerable change, and some of the changes were addressed by parties during this inquiry. As a result, some allegations involve policies that are no longer in effect, and in some cases Dr. Attaran has addressed IRCC actions and adverse effects that did not apply to his own sponsorship application (Part 1 of the sponsorship application process) and his parents’ permanent residency applications (Part 2 of the application process). The other allegations will be addressed in these reasons, but the primary emphasis of the complaint was the long, disproportionate delay endured by the Attaran family and others who wished to sponsor a parent or grandparent to immigrate to Canada at that time.
[17] The length of time IRCC took from receipt to final approval of Dr. Attaran’s parents’ permanent residency application, and the fact that this time was longer than for applications in the other main Family Class category (FC1s) in the same time period, is not in dispute.
[18] Instead, the cornerstone of the Respondent’s position is that the factors which contributed to the longer processing times did not derive from services provided by IRCC or the responsible Minister. In 2019 the Respondent was granted an amendment to the Respondent’s Statement of Particulars to put in issue whether the alleged discriminatory practices occurred in the provision of a “service” (2019 CHRT 12). The Respondent accepts that in a general sense, processing applications is a service carried out by the Respondent. However, the Respondent insists that every aspect of the processing practices that are alleged to be discriminatory by the Complainant and Commission stemmed from a government action that was not a service under section 5 of the CHRA, and therefore, the complaint should be dismissed at the prima facie stage.
[19] In their final arguments, the Complainant and Commission emphasized that they do not take aim at the government actions of legislating IRPA, passing regulations, or the Cabinet’s approval of the target ranges for how many people may be admitted as permanent residents each year. Instead, the Complainant and Commission have specifically asked the Tribunal to evaluate whether IRCC engaged in a discriminatory practice when it processed the Complainant’s application to sponsor his parents and his parents’ associated application for permanent resident status. Among the acts that the Complainant and Commission allege were discriminatory practices during the processing of applications included discretionary decisions made by the Respondent, discretionary decisions made by the Minister when granting exemptions under s. 25.2(1) of IRPA, and the Minister’s issuance of Ministerial Instructions pursuant to s. 87.3. of IRPA.
V. STATUTORY CONTEXT [20] To properly put the complaint into context, it is necessary to describe the statutory, regulatory and policy regimes that affect Family Class applications like Dr. Attaran’s. Under IRPA, there are three main categories for immigration: Family Class; Economic Immigrants; and Refugees. Within each major group, there are sub-groups of immigrants for which there are different rules and requirements for admission to Canada.
[21] Under the Immigration and Refugee Protections Regulations (SOR/2002-227) (the “IRPA Regulations”), there is a definition under s. 117 of foreign nationals who potentially make up the Family Class eligible for sponsorship for immigration to Canada. Their eligibility is dependent on their relationship with their relative, who must be a Canadian citizen or permanent resident and otherwise eligible to sponsor them. While there are several different types of potential family class members, only two categories comprise the vast majority of applications received each year: a) FC1s (mainly spouses, partners and dependent children); and, b) PGPs (parents and grandparents) and also referred to sometimes as FC4s.
[22] Dr. Attaran’s complaint set out the two-step process for sponsoring a member of the Family Class. First, the prospective sponsor in Canada must complete the Part 1 sponsorship application about themselves which assists the Respondent in determining the applicant’s eligibility to be a sponsor. A number of factors are considered, including the applicant’s income level and ability to support the sponsored immigrant family member(s). The second part of the process is the sponsored relatives’ application (Part 2) which sets out information about them. The application process also includes background checks and results of a medical examination to ensure compliance with the statutory requirements applicable to all immigrants to Canada. In these reasons, both Part 1 and Part 2 together form the Attaran family’s “application”, while Part 1 may also be referred to as the application to sponsor and Part 2 may be referred to as the application for permanent resident status.
[23] Section 94 of IRPA, requires the responsible Minister to table in Parliament an annual report on the operation of IRPA in the preceding calendar year. Under s. 94(2)(b) of IRPA, this annual report must also include a description of the number of foreign nationals who became permanent residents, and the number projected to become permanent residents in Canada in the following year. The parties described the annual plan for projected new immigrants as the “Levels Plan”. While s. 94(1) states it is the responsibility of the Minister to present the annual report to Parliament, the way the Levels Plan is developed is not prescribed by the statutory regime. The character and significance of the Levels Plans is explored further below.
[24] In a general sense, IRPA is a statute that provides the framework for the immigration regime. It gives only an outline of the main structure of the program. It addresses matters like the broader objectives of the immigration program, general requirements for immigration (such as clear background and medical checks), details about the Immigration and Refugee Board and enforcement.
[25] The actual details about who gets into Canada, and who does not, is subordinated to the IRPA Regulations. The regulations set out the detailed requirements for each sub-category of immigration. The points assessment regime for the economic classes is outlined in detail. The requirements for the family classes and refugee classes are also set out in the IRPA Regulations.
[26] In addition to IRPA, the IRPA Regulations and the Levels Plans, the processing of immigration applications is also affected by Ministerial Instructions. In 2008, IRPA was amended by the addition of s. 87.3 which authorizes the Minister to create Ministerial Instructions in furtherance of the Government’s immigration goals. Ministerial Instructions and Section 87 are discussed in detail later in these reasons.
[27] Another type of action taken by the Minister that is in issue in this case is the issuing of exemptions from any applicable criteria or obligations under IRPA for a foreign national who is inadmissible or does not meet the normal requirements for immigration. The Minister has authority to issue exemptions for public policy considerations under section 25.2(1) of IRPA.
[28] In addition to the foregoing, the processing of immigration applications is also impacted by IRCC policy decisions. These are generally administrative decisions by IRCC directing its officers to implement processing in a particular manner.
VI. HISTORICAL CONTEXT OF THE COMPLAINT [29] When looking at the longer processing times for PGPs at the time of Dr. Attaran’s application, it is helpful to examine that time period in broader context. From an historical point of view, up until the late 1980s, Canadian immigration policy alternated between periods of large inflows targeted at specific economic goals and periods of virtual shut down of immigration in the face of poor domestic labour market conditions. Whereas the level of inflow was only 83,402 in 1985, by 1993 it was increased to nearly 250,000 and inflow levels have remained high ever since, currently at levels of approximately 400,000 – 500,000 new immigrants per year. The notion of curtailing immigration in periods of high domestic unemployment was abandoned in the 1990s in favour of perceived long-term goals of a sustained high-level of new immigrants. (See “The Economic Goals of Canada’s Immigration Policy: Past and Present” by Alan G. Green (Queen’s University) and David A. Green (University of British Columbia) submitted with the Complainant’s final written argument, which I will refer to as the Complainant’s “Factum.”)
[30] This historical change, the decision to keep immigration at high levels constantly, which began in the early 1990s, had a significant impact on this complaint and the processing of all PGP sponsorship applications. In order to be a sponsor for immigration of one’s parents or grandparents, one must first be a Canadian citizen or permanent resident. Secondly, one’s parents or grandparents must not already be in Canada as permanent residents or citizens. As such, the pool of potential sponsors is mostly comprised of new immigrants to Canada. As that pool grew considerably in size in the late 1990’s and early 2000s, so did the demand for sponsorship of PGPs.
[31] During the hearing, Dr. Attaran put a document to Mr. Glen Tetford, the Respondent’s witness responsible for Part 1 sponsorship application processing at the IRCC Case Processing Centre in Mississauga, Ontario (“CPC-Mississauga” or “CPC-M”). Mr. Tetford confirmed this document’s apparent veracity, and it was admitted as Exhibit 84. It was identified as an IRCC document called a “PGP Diagnostique” from 2017, which outlined the following history of IRCC’s intake of PGP sponsorship applications:
Until the early 2000's the department was able to keep pace with application intake, processing PGP applications with minimal delay. There were no numeric limits on application intake and processing largely kept pace with intake although in some cases PGP applications for permanent residence were processed over slightly longer time frames than those for Spouses and Partners.
However, by 2001 it was becoming apparent that PGP application intake was beginning to outpace the department's ability to process those applications, resulting in inventory backlogs and lengthening wait times…
The increased demand on the overall program and the department's response in the form of deliberate and strategic management of levels resulted in limits on the number of PGP cases to be processed annually. For the first time, in 2002, there was a backlog of PGP cases, and over a matter of months a marked increase in PGP processing times became the reality. By 2003 intake of sponsorship applications for PGPs reached 50,000 while the levels plan and attendant landings hovered around 20,000. As a result of ongoing application intake well in excess of levels targets, inventories continued to grow until 2011 when they reached over 168,000 PGP applicants with projected wait times of 6 -11 years for those in the queue.
[32] In 2002, the Government implemented a major overhaul of its immigration framework with the introduction of a new immigration act, IRPA, and then the IRPA Regulations.
[33] In a 2006 affidavit presented by Dr. Attaran (Exhibit 16), a senior executive of the Respondent, David Manicom, states at paragraphs 28 and 29:
28. “To my knowledge, during the years prior to 2001, there was little or no difference between the “target ranges” set out in the Annual Reports to Parliament, and the actual number of sponsored applications seeking immigrant visas from members of the Family Class.”
29. “There was no significant accumulation of cases in inventory because the number of Parents and Grandparents applying as sponsored immigrants, roughly matched the numbers of Parents and Grandparents that Canada wished to admit to Canada each year.”
[34] In 2009 when Dr. Attaran applied to sponsor his parents, the upper limit of the target range in the Levels Plan for the number of PGPs to be admitted as permanent residents that year was 19,000. However, as of 2009, there were 95,597 pending applications in the inventory for the PGP category. In order not to exceed the targets in the Levels Plan each year, the Respondent explained it only processed a limited number of those applications in the inventory queue.
VII. THE EXPERIENCE OF DR. ATTARAN AND HIS PARENTS [35] Mr. Tetford examined Exhibits 2, 3 and 82 relating to the Complainant’s application. Mr. Tetford confirmed the Part 1 sponsorship application was stamped as received by CPC-Mississauga on July 14, 2009. He also explained a letter from the Respondent at page 52 of Exhibit 3. This letter from IRCC to Dr. Attaran is dated March 30, 2012. The letter states: “We are now ready to begin processing of your sponsorship application and require additional information.” The letter contains a checklist of required documents and asks the sponsor to return them within 90 days.
[36] Mr. Tetford explained that this letter indicates that Dr. Attaran’s application, submitted in July 2009, was now being actively processed in March 2012, some 32 months later. When asked what happened to Dr. Attaran’s sponsorship application between July 2009 and May 2012, Mr. Tetford replied that it was essentially just “sitting on a shelf” waiting for its turn to be processed when it came up through the queue (Mr. Tetford’s examination in chief on February 8, 2021.)
[37] According to the evidence in Exhibit 3, the additional documents requested in the March 30, 2012, letter were received by CPC-M on May 9, 2012. Mr. Tetford examined other parts of the file and confirmed that after the updated documents were provided by Dr. Attaran, the Part 1 sponsorship application was approved on May 28, 2012, only 19 days after the receipt of the requested documents. The entire application was finalized on December 13, 2012, when permanent resident visas were issued to Dr. Attaran’s parents.
[38] It is apparent that, of the total time between when IRCC received Dr. Attaran’s sponsorship application and when his parents’ permanent residence visas were issued, the application spent the great majority of it’s time in the backlog queue. The active processing time was relatively short. After the application had been “taken down off the shelf” in March 2012, IRCC’s total processing time for the Attaran family reunification was less than nine months.
[39] The Complainant and his father, Dr. Kazem Attaran, both testified before the Tribunal about their experience and the hardship caused by the long wait to have the application processed.
[40] The Complainant emphasized how important it was for his children to have a close relationship with their grandparents. He testified that he had been born and raised in California. However, as his parents were immigrants to the U.S. from Iran, he did not have much of a relationship with his own grandparents who remained in Iran. The Complainant also testified that when he applied to sponsor his parents, he and his wife were planning to have children. It was his hope that his parents could be in Canada as permanent residents to support him and his wife when the children arrived. He testified that when his first child was born in 2012, his parents provided childcare, cooked for the family and helped him and his wife maintain their careers.
[41] The Complainant also testified that until his parents became permanent residents in early 2013, it was not possible for them to obtain provincial health care coverage or to access Canadian banking and other services. After they became permanent residents, his parents bought a house about a block away from his in Ottawa. Once they became permanent residents, Dr. Attaran said his parents no longer had a fear of being refused entry into Canada and they could begin to live the life they wanted to in Canada.
[42] Dr. Kazem Attaran testified that his son, the Complainant, was their only child. Before he became a permanent resident, Dr. Kazem Attaran usually visited his son and his family for 2-3 weeks maximum. After becoming a permanent resident, they bought a house in Ottawa and (prior to the pandemic in 2020) usually stayed 1.5 - 2 months each time they came to Canada. On cross examination, the Complainant’s father stated that he and his wife spent roughly 50% of their time in Canada from 2013-2020. He explained that he owns three properties in California, including his principal residence which sits on a two-acre lot. If it remains vacant for more than 30 days, he has an issue with the insurance. He also testified that he and his wife maintain health care coverage in California where he receives a pension as a retired civil servant. Dr. Kazem Attaran also testified that he never had any problems entering Canada as a visitor prior to obtaining his permanent resident status.
VIII. TERMINOLOGY [43] Throughout the hearing and in the written submissions, certain terminology was used by the parties to describe the process and factors which gave rise to this complaint. Unfortunately, at times the terminology was not consistent and it has led to some confusion. Distinguishing the different parts of the application process, from receipt at IRCC to final determination, and using consistent terminology for this, is important for bringing the alleged discriminatory practices into focus. For clarity in these reasons, I set forth below the meaning of the terminology used herein.
[44] Inventory means the number of undecided applications in the possession of IRCC at any given time. Mr. Tetford explained that in order to reach the processing targets for each sub-category of immigrant types in the Levels Plan, there needs to be a level of “inventory” of pending applications in each sub-category from which IRCC can draw in its attempt to reach the processing targets. Not having enough pending applications in Inventory would be a problem for reaching the targets.
[45] Backlog means the number of applications in the possession of IRCC in excess of what would be reasonably required in order for IRCC to meet its processing targets in that category in any given year. Mr. Tetford testified that having too many pending applications in Inventory would lead to backlogs, as IRCC generally aimed to not exceed the upper range of the targets set in the Levels Plan.
[46] Processing Time refers to the global amount of time an applicant waits, from the moment the application is received by IRCC, until the time a final determination is made. Respondent witness Mr. Simon Cardinal testified that IRCC refers to “processing time” as the combination of both backlog wait times and application review wait times. (Direct Examination of Simon Cardinal on September 20, 2021 at 2:19:50, Respondent Factum, para. 119.)
[47] Backlog Wait Time refers to the time when an application is received at a Case Processing Centre but sits in a queue waiting for review by an IRCC officer.
[48] Application Review Wait Time refers to the amount of time an IRCC officer spends actively working on the application towards its final determination.
IX. WITNESSES
[49] Both the Complainant and the Respondent called witnesses to testify at the hearing. The Commission and CSALC did not call any witnesses of their own.
[50] The Complainant was a witness at the hearing, appearing on his own behalf. His examination in chief was led by counsel for the CHRC. Dr. Attaran is very articulate and answered most questions candidly. He was reluctant to give any indication about how much time his parents had spent in Canada since becoming permanent residents in 2013. He did offer to follow up with that information if he could locate his parents’ permanent resident card renewal applications, but the information was not presented to the Tribunal if it was provided to the Respondent. The Respondent’s cross-examination of the Complainant lasted less than 10 minutes.
[51] The Complainant’s second witness was his father, Dr. Kazem Attaran. Dr. Kazem was also very articulate and answered questions candidly and in detail.
[52] The final witness for the Complainant was Prof. Susan Chuang, who appeared before the Tribunal as an expert witness. Prof. Chuang is an Associate Professor in the Department of Family Relations and Applied Nutrition at the University of Guelph. Dr. Chuang was qualified as an expert in human development and family studies, having conducted research in immigration and settlement in Canada’s diverse socio-cultural context. She prepared a 21-page report dated September 11, 2019 for the Tribunal. Dr. Chuang has previous experience as an expert witness. Prof. Chuang’s qualification as an expert and delivery of her expert report, including cross-examinations, was completed over the course of one day of hearing.
[53] The Respondent called three lay witnesses and one expert witness.
[54] The first witness for the Respondent was Mr. Glen Tetford, Assistant Director in the IRCC’s Humanitarian and Migration Office in Mississauga (CPC-Mississauga). He was called to give evidence from an operations perspective. From 2009-2017, Mr. Tetford held various positions at CPC-Mississauga that were related to the processing of Family Class sponsorship applications. His evidence was very helpful to the Tribunal in setting the context in which the Complainant’s application was handled by the Respondent.
[55] The second witness of the Respondent was called to give evidence concerning IRCC policy. Mr. Glen Bornais worked at the Respondent since 2006. At the time of his evidence, he was a Senior Advisor to the Director General in the Strategic Policy and Planning Branch of the Respondent. Up until 2018, he was a Senior Analyst and then an Assistant Director in the same branch. His primary duties involved assisting senior management in the annual levels exercise to prepare recommendations for Cabinet consideration and also dealing with backlog elimination strategies.
[56] Dr. Attaran submits that Mr. Bornais was not a credible witness and strongly recommends that the Tribunal not rely on his testimony. Mr. Bornais was a witness at this hearing for three-and-a-half days, and was cross-examined by Dr. Attaran for one-and-a-half days. Dr. Attaran completed his cross-examination of Mr. Bornais, who was then scheduled to be cross-examined by the Commission when the hearing was to resume one week later. (Dr. Attaran did reserve the right to recall Mr. Bornais for cross-examination as his testimony made reference to certain documents that had not been previously disclosed. Dr. Attaran later brought a written motion for the disclosure of those documents.)
[57] However, before the hearing resumed the Tribunal was advised by Respondent counsel that Mr. Bornais had a health issue that would prevent him from returning to the witness stand at any time in this proceeding.
[58] The Complainant and the Commission both raised concerns about excusing an important witness when his testimony is incomplete. I asked counsel for the Respondent to submit a medical letter to confirm the condition impacting the witness and his stated inability to return to the witness stand at any point. I assured Respondent counsel the letter would be subject to a confidentiality order. When the first medical letter was submitted, both Dr. Attaran and the Commission raised concerns that it was inadequate, written by a doctor who did not acknowledge having a good knowledge of the patient’s condition, and not providing any clinical diagnosis of any illness. I concurred with their concerns and asked the Respondent counsel in writing to provide a more comprehensive medical letter to alleviate the concerns of the other parties.
[59] The second letter was moderately better than the first, although also authored by the same doctor at a clinic in Ottawa. At paragraph 205 of his Factum, Dr. Attaran alleges the second letter bears several hallmarks of possible forgery. He alleges that the Respondent’s refusal to put this doctor forward as a witness is suspicious. Dr. Attaran observes in his Reply Factum (at paras. 31-35) that the Respondent chose to file no evidence which might authenticate the doctor’s letter. Furthermore, Dr. Attaran notes s. 31.1 of the Canada Evidence Act stipulates that for documents in electronic form (the doctor’s letter is a PDF file) the burden is on the Respondent to prove authenticity. Where there is no appearance of inauthenticity, then authenticity is just assumed and not challenged. Where authenticity is challenged, Dr. Attaran asserts that some evidence must be introduced to establish that the document is what it purports to be.
[60] Dr. Attaran concludes that the Tribunal must draw an adverse inference from the Respondent’s failure to file evidence of any illness (at para. 214 of his Factum.) In the alternative, if testimony of this witness is admitted, it should not be given weight.
[61] Dr. Attaran also attacks the credibility of Mr. Bornais based on the manner in which he answered questions during cross-examination. There were numerous long pauses after questions had been posed and Dr. Attaran described the witness as eva