Yao v. The King

Yao v. The King
Court (s) Database
Tax Court of Canada Judgments
Date
2024-02-15
Neutral citation
2024 TCC 19
File numbers
2018-1471(IT)I, 2020-1041(IT)G
Judges and Taxing Officers
Randall S. Bocock
Subjects
Income Tax Act
Decision Content
Docket: 2018-1471(IT)I
BETWEEN:
YUSHAN YAO
Appellant,
and
HIS MAJESTY THE KING,
Respondent,
and
INCOME SECURITY ADVOCACY CENTRE,
Intervenor.
Appeal heard on common evidence with the appeal of Ning Jing Zhang (2020-1041(IT)G) on November 22, 23 and 24, December 16 and 17, 2021 and March 29 and 30, April 11, 12 and 13, June 1 and 2, October 27 and 28, 2022 at Toronto, Ontario
Final written submissions completed and received on April 25, 2023
Before: The Honourable Justice Randall S. Bocock
Appearances:
Co-Counsel for the Appellant:
Alexander Cobb
Andrew Boyd
Graeme Rotrand
Ada Chan
Jacky Chiu
Counsel for the Respondent:
Arnold Bornstein
Alexander Hinds
Laoura Christodoulides
Counsel for the Intervenor:
Nabila Qureshi
Adrian Merdzan
JUDGMENT
WHEREAS the Court has on this date published its common Reasons for Judgment attached in this appeal and the appeal of Ning Jing Zhang v His Majesty the King, docket 2020-1041(IT)G;
NOW THEREFORE THIS COURT ORDERS that:
the appeal concerning the Canada Child Tax Benefit applicable to the 2014 taxation year is dismissed; and
subject only to further submissions, there shall be no costs awarded in the appeal.
Signed at Vancouver, British Columbia, this 15th day of February 2024.
“R. S. Bocock”
Bocock J.
Docket: 2020-1041(IT)G
BETWEEN:
NING JING ZHANG,
Appellant,
and
HIS MAJESTY THE KING,
Respondent,
and
INCOME SECURITY ADVOCACY CENTRE,
Intervenor.
Appeal heard on common evidence with the appeal of Yushan Yao (2018-1471(IT)I) on November 22, 23 and 24, December 16 and 17, 2021 and March 29 and 30, April 11, 12 and 13, June 1 and October 27 and 28, 2022 at Toronto, Ontario
Final written submissions completed and received on April 25, 2023
Before: The Honourable Justice Randall S. Bocock
Appearances:
Co-Counsel for the Appellant:
Alexander Cobb
Andrew Boyd
Graeme Rotrand
Ada Chan
Jacky Chiu
Counsel for the Respondent:
Arnold Bornstein
Alexander Hinds
Laoura Christodoulides
Counsel for the Intervenor:
Nabila Qureshi
Adrian Merdzan
JUDGMENT
WHEREAS the Court has on this date published its common Reasons for Judgment attached in this appeal and the appeal of Yushan Yao v His Majesty the King, docket 2018-1471(IT)I;
NOW THEREFORE THIS COURT ORDERS THAT:
the appeal concerning the Canada Child Benefit applicable to the 2016 and 2017 taxation years is dismissed; and,
subject only to further submissions, there shall be no costs awarded in the appeal.
Signed at Vancouver, British Columbia, this 15th day of February 2024.
“R. S. Bocock”
Bocock J.
Citation: 2024 TCC 19
Date: 20240215
Docket: 2018-1471(IT)I
BETWEEN:
YUSHAN YAO,
Appellant,
and
HIS MAJESTY THE KING,
Respondent,
and
INCOME SECURITY ADVOCACY CENTRE,
Intervenor;
Docket: 2020-1041(IT)G
AND BETWEEN:
NING JING ZHANG,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
and
INCOME SECURITY ADVOCACY CENTRE,
Intervenor.
COMMON REASONS FOR JUDGMENT
TABLE OF CONTENTS
I. INTRODUCTION 5
A. The Canada Child Benefit 5
B. Part A – CCB Eligibility 5
C. Part B – Constitutional Challenge Under Sections 7 and 15 of the Charter ………..........6
II. FACTS IN GENERAL 7
A. CCB Process and Refugee Claimants 7
B. Refugee Claimant Status 7
C. CCTB or CCB Claim Process 7
D. Ms. Yao 7
a) Ms. Yao’s background 7
b) Ms. Yao’s refugee claim history 8
c) Ms. Yao’s CCTB (now CCB) claim history 8
d) Ms. Yao’s testimony concerning her challenges 9
E. Ms. Zhang 10
a) Ms. Zhang’s background 10
b) Ms. Zhang’s refugee claim history 10
c) Ms. Zhang’s CCB claim history 11
d) Ms. Zhang’s testimony concerning her challenges 11
III. PART A – CCB ELIGIBILITY 12
A. Meaning of Temporary Resident 12
a) Excerpt from the ITA 12
b) Excerpts from the IRPA 13
c) Jurisprudence 16
1. Leading Authority 16
d) Interpretation of the Statutes 19
1. Immigration vs. Tax Issue 20
2. Text ……………………………………………………………………………………………….…..22
3. Context and Purpose 24
Legislative History ……………………………………………………………………………...24
International obligation and the CRC …………………………………………………....25
e) Conclusion to Part A 25
IV. PART B – THE CONSTITUTIONAL CHALLENGE 26
A. Sections 1 and 15 of the Charter 26
B. Summary of Expert Evidence 27
C. Section 7 30
a) Does the legislation affect an interest protected by the right to security of the person?.....….31
1. Is the administration of justice implicated? 31
2. Can s. 7 protection place a positive obligation on the state? 32
3. Does s. 7 place a positive obligation on the state in this case? 34
4. Conclusion 35
b) Does the exclusion of refugee claimants from the CCB deprive the Appellants of their right to security of the person? 36
1. Is the psychological harm serious and profound? 37
2. Is there sufficient casual connection? 40
c) Is the deprivation in accordance with the principles of fundamental justice? 41
1. Arbitrariness 42
2. Overbreadth 43
3. Gross disproportionality 43
d) Section 7 Summary 45
D. Section 15 of the Charter 46
a) Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds? 47
1. Does the law, on its face, create a distinction on the basis of refugee claimant status? 48
2. Does the law, in its impact, create a distinction on the basis of race and/or sex? 53
b) Does the impugned law impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage? 57
1. Does the law reinforce, perpetuate or exacerbate disadvantage of refugee claimants? 58
2. Does the law reinforce, perpetuate or exacerbate disadvantage of racialized persons and women?...... 60
c) Section 15 Summary 63
E. Section 1 63
a) Does the law have a pressing and substantial object? 64
b) Are the means chosen proportional to that object? 65
1. Rational Connection 65
2. Minimal Impairment 67
3. Proportionality between deleterious and salutary effects 68
c) Section 1 Summary 69
F. Remedy 69
V. COSTS 70
Bocock J.
I. INTRODUCTION A. The Canada Child Benefit [1] Parliament created the Canada Child Benefit (the “CCB”) as an income-tested tax-free monthly payment administered by the Canada Revenue Agency (the “CRA”) to help eligible families with the cost of raising children under 18 years of age. The rules surrounding the CCB are found in Subdivision A.1 of the Income Tax Act.[1]
[2] The CCB was introduced in 2016 to replace the Canada Child Tax Benefit (the “CCTB”) and the Universal Child Care Benefit (the “UCCB”).[2] The CCB differs most significantly from the prior programs in that it is income-based and non-taxable.[3]
[3] To receive the CCB, the taxpayer must live with a child who is under 18 years of age, be primarily responsible for the care and upbringing of the child, be a resident of Canada for tax purposes, and be or be the spouse or common-law spouse of someone who is: a Canadian citizen, a permanent resident, a protected person, or a temporary resident, within the meaning of the Immigration and Refugee Protection Act[4], or an individual who is registered, or entitled to be registered, under the Indian Act.[5]
B. Part A – CCB Eligibility [4] Part A of this appeal determines whether refugee claimants are included in the constructive definition of temporary resident and, therefore, are entitled to the CCB.
[5] The Minister excluded Ms. Yao and Ms. Zhang (the “Appellants”) during the relevant periods from the CCB because they were not temporary residents. The rationale is that, as refugee claimants, they were persons not clothed with a status of sufficient permanence under the IRPA to provide a nexus to Canada above a threshold embedded within the concept of temporary resident.
[6] The Appellants argue that a textual, contextual, and purposive reading of the CCB provisions reveals that refugee claimants are included in the definition of “temporary resident” and are therefore eligible for the CCB.
C. Part B – Constitutional Challenge Under Sections 7 and 15 of the Charter [7] Part B of this appeal determines whether the exclusion of refugee claimants from the CCB violates the Canadian Charter of Rights and Freedoms.[6]
[8] The Appellants claim that interpreting the ITA and the IRPA to exclude refugee claimants from the CCB contravenes their right to security of the person under section 7 of the Charter in a way that is not within the principles of fundamental justice.
[9] The Appellants also claim that the denying of the CCB contravenes their right to equality under section 15 of the Charter on the enumerated ground of race or on an analogous grounds of immigration status.
Preliminary Note: Intervenor [10] Throughout these reasons, the position of the Appellants are described as such. To clarify, at the hearing the Intervenor, through counsel, almost invariably proffered submissions -- there was no examination or cross-examination by Intervenor counsel, although offered -- which differed only slightly from counsel for the Appellants, or were entirely compatible. To the extent the Court determines it relevant, specific reference is made to the Intervenor’s submissions.
II. FACTS IN GENERAL A. CCB Process and Refugee Claimants [11] There are no material facts in dispute in these appeals. It would be simple to list the facts in a truncated narrative form. To do so in these appeals would be facile and unappreciative. The manifest struggle of refugee claimants is a frequent story in Canada, frequently informed and authored by the insensitive political, legal and/or economic structures of foreign regimes. Therefore, although less time might be spent on the facts of the Appellants’ specific stories, the Court expends some effort to ensure that the stories are told.
B. Refugee Claimant Status [12] At the relevant times, Ms. Yao, Ms. Zhang and Ms. Zhang’s children were refugee claimants. For part of the period, Ms. Yao was also challenging the decision of the Immigration and Refugee Board (the “IRB”), which rejected her refugee claim, in the Federal Court of Canada (“Federal Court”). Ms. Yao’s son, however, was a Canadian citizen at all times.
C. CCTB or CCB Claim Process [13] A resident of Canada must actively apply for the CCB. The application form for the CCB or, as it was previously named the CCTB, is form RC66. In the application form, the claimant must state whether they (and their spouse or common-law partner) are citizens of Canada. If they are not citizens, or if they recently became new residents of Canada or returned as residents to Canada in the last two years, then they must complete another form: Status in Canada/Statement of Income form RC66SCl-L.
[14] In processing an application for the CCTB or the CCB, the CRA does not ask the claimant why they came to Canada.
D. Ms. Yao a) Ms. Yao’s background [15] Ms. Yao married in Canada in August 2014. She and her husband were citizens of the People’s Republic of China (“China”). Their son was born in Toronto in 2015. Therefore, the son is a Canadian citizen, while neither Ms. Yao nor her husband are or were.
[16] While residing with Ms. Yao, the husband was issued temporary work permits by Immigration, Refugees and Citizenship Canada (“IRCC”).
[17] Ms. Yao entered Canada on foot near Vancouver, British Columbia in August 2012. She did not hold a permanent resident visa as required under the Immigration and Refugee Protection Regulations in order to establish permanent resident status. She claimed refugee protection under section 96 and subsection 97(1) of the IRPA.
[18] On March 20, 2014, the Refugee Protection Division of the IRB determined that Ms. Yao was not a Convention refugee or a person in need of protection.
b) Ms. Yao’s refugee claim history [19] On April 1, 2014, Ms. Yao appealed the Refugee Protection Division decision to the Refugee Appeal Division of the IRB. Later that month, the Refugee Appeal Division dismissed her appeal. In response, Ms. Yao filed an application for leave and judicial review of the decision, logically to stave off deportation.
[20] On March 12, 2015, the Federal Court granted Ms. Yao’s application for leave and judicial review of the Refugee Protection Division decision. In September of 2015, the Federal Court granted the application for leave and judicial review of the Refugee Protection Division decision. On September 22, 2015, Ms. Yao was issued a new work permit by IRCC. She was issued subsequent temporary work permits in seriatim for the period from the original work permit in 2015 until she was declared a refugee on September 4, 2019.
c) Ms. Yao’s CCTB (now CCB) claim history [21] Ms. Yao applied for the CCTB, in respect of her son, retroactive to March 30, 2015.
[22] On August 20, 2015, the Minister of National Revenue (the “Minister”) issued to Ms. Yao a Notice of Determination, which identified the amount to which Ms. Yao was entitled in respect of the CCTB. In February 2016, the Minister terminated payments to Ms. Yao under the CCTB. On July 1, 2016, the CCTB was replaced with the CCB.
[23] On August 19, 2016, the Minister redetermined Ms. Yao’s entitlement and requested that Ms. Yao repay overpayments of the CCB totalling $1,199.21. In June 2017, Ms. Yao served a Notice of Objection and a request for an extension of time to file her Notice of Objection. In July 2017, the CRA granted Ms. Yao’s application for an extension of time to file her Notice of Objection, and requested documentation supporting her eligibility for the CCB. After Ms. Yao responded, the Minister issued a Notice of Confirmation, confirming the redetermination of Ms. Yao’s eligibility and effectively denying her the CCB on the basis of her status as a refugee claimant.
d) Ms. Yao’s testimony concerning her challenges [24] Ms. Yao, like most refugee claimants, has had considerable financial challenges, arriving virtually penniless in a new country and unable to speak either official language. She attempted to reduce the language barrier by taking English lessons when she arrived in 2012. Although irrelevant to her appeal, her process for entry into Canada was unorthodox and suspect, and involved some unscrupulous actors. She paid some $20,000 to $30,000 Canadian to an illicit Chinese immigration “consultant”, commonly known as a “snakehead.”
[25] In 2014, Ms. Yao married. She and her husband separated sometime in 2017 or so. During that period, the family supported itself through her husband’s intermittent income of $2,000 to $3,000 per month. She herself was employed selling skincare products. Her income was $1,000 per month or less. More recently, her income has become more stable.
[26] During 2015 and 2016, Ms. Yao was originally paid the CCB (then the CCTB). The money assisted her with necessities. After the benefit was terminated, her testimony was that she resorted to second-hand stores, borrowed items and community help. During that period, she was sad, anxious and without much hope. By contrast, now that the benefit has been restored, swimming lessons, marital arts lessons, piano lessons and golf lessons are within reach financially. Healthcare was always accessible.
[27] Her accommodation has changed as well. In 2014, she lived in the basement of a semi-detached house. In 2016, she moved to a large condominium. In this location, she had security, parking and close proximity (less than a block) to her son’s school. In 2017, she again relocated to a two-storey house with a basement, double-car garage and a backyard. She lives there presently.
E. Ms. Zhang a) Ms. Zhang’s background [28] Ms. Zhang and her children’s pathway to refugee status is slightly more straightforward. The period in issue for Ms. Zhang is March 2018 to May 2019. During that time, she was a refugee claimant, and like all refugee claimants, under a conditional departure order.
[29] Ms. Zhang’s children were essentially in the same position as Ms. Zhang to the extent that they had no different “immigration status” than their mother. Her children were both born in China, her daughter in 2010 and her son in 2012.
[30] Ms. Zhang divorced her husband, himself a Chinese citizen who never resided in Canada, in early 2018. At that time, Ms. Zhang was granted sole custody of her children by court order.
b) Ms. Zhang’s refugee claim history [31] From April 2013 to October 2014, Ms. Zhang and her children were in Canada by virtue of Ms. Zhang’s study permit and V-1 visitor permits. Ms. Zhang and her children were all back in China by August 2014, prior to the expiration of the permits.
[32] In May 2017, Ms. Zhang claimed refugee protection under the IRPA. She and her children received a refugee claimant document and qualified for interim federal healthcare. A conditional departure order was also issued.
[33] From summer 2017 to October 2020, various work and study permits were issued, expired and/or were extended. Finally, in December of 2020, Ms. Zhang was issued a study permit, valid until August 31, 2023. It stated on its face, like all the others, that it “does not confer temporary resident status”.
c) Ms. Zhang’s CCB claim history [34] Ms. Zhang applied for the CCB in respect of her children in May 2017. On July 20, 2017, the Minister issued to Ms. Zhang a Notice of Determination, stating that she was not entitled to the CCB for the 2016 base year.
[35] This Notice of Determination is not under appeal.
[36] Ms. Zhang again applied for the CCB in respect of her children by application dated May 4, 2018. On July 20, 2018, the Minister issued a Notice of Determination, notifying Ms. Zhang that she was entitled to the CCB for the 2016 base year. In 2018, a similar notice advised Ms. Zhang that she qualified for the 2017 base year.
[37] On September 20, 2019, the Minister changed her mind and notified Ms. Zhang that she was not entitled to the CCB for the 2016 and 2017 base years. On November 13, 2019, Ms. Zhang served a Notice of Objection in respect of the notices of determination disentitling her to the CCB. The Minister subsequently confirmed the denial of the CCB for the 2016 and 2017 base taxation years.
d) Ms. Zhang’s testimony concerning her challenges [38] The purpose of Ms. Zhang’s second entry into Canada in August 2016 with her two children was twofold. Firstly, she wanted to study in Canada from August to December 2016. Secondly, and more existentially, she was fleeing an intolerable domestic arrangement, greater details of which are constrained by this Court’s own confidentiality order.
[39] From 2017 until 2020, Ms. Zhang and her children lived in a secure living arrangement. Ultimately, the Ontario Superior Court of Justice awarded her sole custody under various protective court orders.
[40] During the years from 2018 to 2020, Ms. Zhang pursued her post-graduate studies and further continued her professional education in the fall of 2020.
[41] Her financial situation during these years was precarious. She used supports from parents, her community, food banks and churches to survive financially. She described her situation as “very tight” financially. She was an excellent student and received numerous bursaries and awards. The CCB moneys, when received for an interim period, were used for better clothing, groceries such as fresh fruits and vegetables and, of particular pride, extracurricular activities for her children.
[42] Ultimately, after the relevant periods ended, in 2019 and 2020, the Refugee Protection Division of the IRB determined that Ms. Yao, Ms. Zhang and Ms. Zhang’s children were Convention refugees.
[43] This meant that refugee protection was conferred on them and they became protected persons within the meaning of the IRPA. This also meant that Ms. Yao, Ms. Zhang and Ms. Zhang’s children became eligible individuals for the purposes of the CCB, under subparagraph 122.6(e)(iii) of the ITA.
III. PART A – CCB ELIGIBILITY [44] At a high level, the first specific issue in these appeals is:
Did Ms. Yao and/or Ms. Zhang, as refugee claimants, qualify as eligible individuals within the meaning of subparagraph 122.6(e) of the ITA?
A. Meaning of Temporary Resident [45] The determination of who qualifies for the CCB is governed by the ITA, the IRPA, and the Regulations thereunder. The ITA defines “eligible individual” to include a “temporary resident within the meaning of the Immigration and Refugee Protection Act”. However, “temporary resident” is not explicitly defined in the IRPA.
[46] The Appellants, as refugee claimants, argue that they fall within the meaning of “temporary resident”. Accordingly, the issue before this Court is whether, under subparagraph 122.6(e)(ii) of the ITA, a refugee claimant is a temporary resident within the meaning of the IRPA and is therefore eligible for the CCB.
a) Excerpt from the ITA [47] Eligible individuals are entitled to apply for the CCB pursuant to section 122.6 of the ITA. Paragraph 122.6(e) defines “eligible individual” as follows:
eligible individual in respect of a qualified dependent at any time means a person who at that time
…
(e) is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or a person who
(i) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
(ii) is a temporary resident within the meaning of the Immigration and Refugee Protection Act, who was resident in Canada throughout the 18 month period preceding that time,
(iii) is a protected person within the meaning of the Immigration and Refugee Protection Act,
(iv) was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act, or
(v) is an Indian within the meaning of the Indian Act,
[Emphasis added.]
b)Excerpts from the IRPA [48] The IRPA does not define “temporary resident”. Instead, the IRPA describes the process and means by which one becomes a temporary resident.
[49] Section 22 authorizes an immigration officer (“IO”) to determine whether a foreign national qualifies to be a temporary resident.
Temporary resident
22 (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).
Dual intent
(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
[50] Section 24 provides that an IO may grant a temporary resident permit.
Temporary resident permit
24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
Exception
(2) A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.
Instructions of Minister
(3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.
Restriction — pending application for protection
(3.1) A foreign national whose claim for refugee protection has been determined to be ineligible to be referred to the Refugee Protection Division may not request a temporary resident permit if they have made an application for protection to the Minister that is pending.
Restriction
(4) A foreign national whose claim for refugee protection has not been allowed may not request a temporary resident permit if less than 12 months have passed since
(a) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review; or
(b) in any other case, the latest of
(i) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,
(ii) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and
(iii) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim.
Restriction — designated foreign national
(5) A designated foreign national may not request a temporary resident permit
(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
Suspension of request
(6) The processing of a request for a temporary resident permit of a foreign national who, after the request is made, becomes a designated foreign national is suspended
(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
Refusal to consider request
(7) The officer may refuse to consider a request for a temporary resident permit if
(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and
b) less than 12 months have passed since the end of the applicable period referred to in subsection (5) or (6).
[51] Subsection 46(1.1) provides that automatic conferral of temporary resident status occurs after renunciation of permanent resident status.
Effect of renunciation
46(1.1) A person who loses their permanent resident status under paragraph (1)(e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved.
[52] Certain protected refugees are granted temporary resident status under subsection 95(1).
Conferral of refugee protection
95 (1) Refugee protection is conferred on a person when
(a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
(c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.
[53] This list is exhaustive and is not open and flexible. Notably, temporary resident status requires an IO or Board decision.
c) Jurisprudence 1. Leading Authority [54] Almadhoun v. Canada [7] is the leading case resolving whether a refugee claimant is a temporary resident within the meaning of the IRPA. In Almadhoun, the Federal Court of Appeal (the “FCA”) agreed with the Tax Court that a refugee claimant is not a temporary resident and is therefore not an eligible individual for the purposes of section 122.6 of the ITA. The FCA, at paragraphs 17 and 18, held:
[17] … There is absolutely nothing in the legislation to support the appellant’s assertion that section 122.6 of the Act necessarily includes a person whose application for status as a protected person is pending, and the appellant was unable to provide any case law in support of her contention. Contrary to Ms. Almadhoun’s argument, there is no gap in the legislation; Parliament made a conscious policy choice as to the groups of persons on whom social benefits would be conferred. It is not for this Court to second-guess that deliberate choice …
[18] The same reasoning applies in response to the appellant’s second argument, namely that she should be considered at the very least a “temporary resident” with the meaning of the IRPA. The IRPA provides a process for the determination of temporary residency, which is not an open and flexible category. …
[55] The Appellants correctly recognize that in order to depart from vertical precedent, including decisions of the FCA, it is not enough to be manifestly wrong.[8] The appeal must raise a new legal issue, or present new evidence that will “fundamentally shift how jurists understand the legal question at issue.”[9] The question at issue is admittedly a question of law, so new evidence cannot help.
[56] Where the same legal issue before the Tax Court is re-litigated, Almadhoun is binding, except in rare circumstances.[10] The Appellants cite the Supreme Court of Canada case Bedford[11] to assert that raising a new “critical statutory provision” is just such a sufficiently rare circumstance that applies in this case.[12] In Almadhoun, the Court did not analyze the relevant IRPA provisions, the Convention on the Rights of the Child[13] or statements of legislative intent. Further, Almadhoun was limited to on a strict textual interpretation of “eligible individual”.
[57] The Respondent argues that because the issue in Almadhoun is the same issue before this Court, Almadhoun is binding on this Court.[14] Accordingly, a refugee claimant is not included in the meaning of temporary resident under the IRPA and is therefore not eligible for the CCB.
Analysis
[58] Almadhoun is prima facie binding on this Court. The FCA specifically considered subparagraph 122.6(e)(ii) of the ITA, the same statutory provision raised in this appeal. This leads to the same issue being squarely before the Court: whether, under subparagraph 112.6(e)(ii) of the ITA, a refugee claimant is a “temporary resident” within the meaning of the IRPA.
[59] The Appellants’ assertion that raising a new “critical statutory provision” allows a court to reconsider a settled issue is not founded in jurisprudence. It is partially correct that the Tax Court can depart from vertical precedent “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”[15] However, Bedford was about Charter provisions, not about “critical provisions” from legislation in general.
[60] To expand upon the Appellants’ quotation from Bedford, “a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.”[16] Raising a new Charter challenge is more than just highlighting a different statutory provision; it raises a new independent claim. Further, the “significant development in the law” in Bedford allowing precedent to be re-argued was the development of jurisprudence on the “principles of fundamental justice” which significantly changed the s. 7 analysis.
[61] Identifying other provisions of the IRPA does not create new issues in the way that bringing a claim under the Charter or under a different Charter provision does. Further, the CRC and all documents regarding legislative intent were available at the time Almadhoun was heard, so no significant change in the law is apparent. Although the FCA’s discussion on the “temporary resident” provision is short, that alone is not enough to overturn the binding precedent on the basis of new legislative facts or legislative amendments, when factually such terrain was identical when viewed by the FCA.
[62] To overturn vertical precedent, there must be a new issue raised, or a change in the law or circumstances that “fundamentally shifts the parameters of the debate.”[17] The Appellants assert that the FCA incorrectly interpreted the legislation because it did not look at other materials such as other sections of the IRPA, the CRC, and other documents indicating legislative intent.[18] This is insufficient to overturn binding precedent. As a result, Almadhoun is binding on this Court.
d) Interpretation of the Statutes [63] The question of whether refugee claimants are “temporary residents” and therefore “eligible individuals” under s. 122.6 can only be reconsidered if Almadhoun is not binding on this Court because the Court is prepared to distinguish it. For completeness, and despite the binding nature of Almadhoun, the Court pursues this issue.
[64] This is an issue of statutory interpretation. The Appellants argue that the interpretation should look beyond the text of the provision. The Court should take a contextual and purposive approach to resolve ambiguity.[19] The Appellants also assert that further ambiguities should be resolved in favour of the taxpayer.[20] Benefit schemes should be given a large and liberal interpretation, and such an approach has been applied to the CCB regime in the past.[21]
[65] In Québec (Communauté urbaine) v. Corp Notre-Dame de Bon-Secours,[22] the Supreme Court set out the principles which are to govern interpretation of tax legislation. The Court found that the interpretation of tax legislation should follow the ordinary rules of interpretation and that the choice between a strict or liberal reading of the text must not be guided by presumptions favourable to the state or the taxpayer, but by reference to the goal which underlies the provision.[23]
[66] The ordinary rule of statutory interpretation is that “[t]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[24] The first step is to examine the text of the provision to determine its plain or ordinary meaning. However, the true meaning of the words can only be determined contextually by considering other indicators of legislative meaning, including context, purpose, and relevant legal norms.[25]
1. Immigration vs. Tax Issue [67] Before discussing the text, context, and purpose, it is necessary to resolve the extent to which the Court should look at the IRPA and the functioning of the immigration regime to interpret this ITA provision.
[68] The Appellants argue that it is incorrect to look at the IRPA to resolve ambiguity about the ITA. The interpretation should focus on the CCB regime as this is not an immigration law case.[26] The Appellants cite the Alberta Court of Appeal (“ABCA”) decision Alberta v. ENMAX[27] as authority that the focus should be on the purpose and context of the ITA –specifically the CCB regime– and not the IRPA and its immigration regime.[28]
[69] ENMAX focused on a provision of Alberta’s provincial energy regulation regime (the “primary regime”). This provision required a calculation of “an amount equal to the amount of tax” that an entity would be liable to pay under the ITA (the “secondary regime”).[29] To calculate that amount payable, the trial judge “effectively determined that anything outside the ITA was irrelevant”.[30] The ABCA instead used the purpose and context informing the primary regime, resulting in a calculation that was different than if it had been done for income tax purposes instead.
[70] The Respondent asserts that the phrase “within the meaning of the Immigration and Refugee Protection Act” invites and directs the Court to look at the entirety of the IRPA to determine the meaning of “temporary resident”. Further, Parliament has the right to determine immigration policy. Assigning the term “temporary resident” a meaning other than what it means in the IRPA will undermine that right and affect Canada’s immigration policy while ingoing the use of such definition.
[71] In ENMAX, the ABCA did not ignore the secondary regime. Rather, the Court looked at the context and purpose of the primary regime and found that the ITA calculation would have contravened that purpose. The purpose and context of the secondary regime need not be ignored, it just ought not to undermine the primary regime’s purpose.
[72] By analogy in these appeals, the CCB provisions of the ITA create the primary regime, and the IRPA is the secondary regime. To determine the meaning of “temporary resident”, the overall purpose and context of the CCB cannot be ignored and the IRPA cannot be applied in a vacuum.
[73] Ultimately, the process is such that Parliament directs the reader from the primary regime to another regime, but only so far as it approaches the issue of defining “temporary resident”, a concept more proximate to immigration law in this context than tax law. This ostensibly seeks consistency between legislation of the same law-making body and not the reverse.
2. Text [74] The Appellants argue that the meaning of “temporary resident” is ambiguous because, although section 122.6 refers to a temporary resident “within the meaning of the Immigration and Refugee Protection Act,” the IRPA does not contain a definition of “temporary resident”.[31] While the IRPA sets out multiple methods of becoming a temporary resident, there is no indication that this is an exhaustive list.[32] The Court should not apply expressio unius (implied exclusion) to treat this as an exhaustive list.[33] Further, the IRPA itself has some confusing and inconsistent provisions regarding temporary residents.[34]
[75] The Respondent argues that the meaning of “temporary resident” is not ambiguous.[35] The IRPA sets out a finite number of ways to acquire temporary resident status.[36] All these methods require a determination by an IO.[37] The IRPA does not contemplate that refugee claimants acquire temporary resident status; refugee claims are not handled by IOs.[38] While temporary residents, permanent residents, and refugees are able to remain in Canada for a specific period, refugee claimants are subject to a conditional removal order until their claim is heard and a determination is made.[39]
[76] It is true that there is no singularly identifiable definition of “temporary resident” in the IRPA or an explicitly exhaustive list of methods to receive or achieve temporary resident status. This likely relates to the total absence of refugee claimant designation status from the IRPA.
[77] The Court finds consistency in the legislative approach. Refugee claimants pursue an entirely different process for a status which is not determined by IOs. The IRPA’s notation on relevant documents that refugee claimants do not receive temporary resident status through work and student permits also supports this conclusion. This is consistent with the decision in Almadhoun when expressed as follows:
[18] … The IRPA provides a process for the determination of temporary residency, which is not an open and flexible category. In the appellant’s submission however, she met the conditions required to be considered as a “temporary resident” as a result of having been issued a Refugee Protection Claimant Document.
[19] The problem with this argument is that the IRPA temporary resident regime explicitly requires