Ottawa, Ontario, September 4, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
KETSIA KRENA and
JODICK MOUDIANDAMBU
and
AND IMMIGRATION
and
LOW INCOME FAMILIES TOGETHER
and CHARTER COMMITTEE ON
POVERTY ISSUES
Interveners
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1] The Applicant, Ms. Chantal Krena, is a woman from the Democratic Republic of Congo (DRC). She is a single mother of two children, ages 11 and 5, and does not receive any financial support from the father of either child. Ms. Krena came to Canada in November 1997 and made a refugee claim at that time. The claim was later deemed abandoned when she travelled to the United States for a number of years. In 2005, Ms. Krena moved back to Canada and took up residence in Ontario. Ms. Krena wishes to remain in Canada rather than returning to the DRC from where she could apply for permanent residence in accordance with the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2] In December 2005, Ms. Krena, for herself and her two children, submitted an application, pursuant to s. 25 of the IRPA, for exemption from certain requirements of IRPA on the basis of humanitarian and compassionate (H&C) considerations. In particular, Ms. Krena asked the Minister of Citizenship and Immigration (the Minister) to exempt her from the requirement in s. 11 of IRPA that she apply for permanent residence status before entering Canada. In addition, she asked that her application be processed without payment of the applicable fees, which would be $850. She submitted that the fee regulation was inoperative under 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 (Charter) without a waiver or exemption provision. Ms. Krena further requested that her application be processed regardless of the non-payment of the fees due to her financial circumstances. The application was returned un-processed in March 2006.
[3] In this application for judicial review, the Applicants do not challenge a decision or order made by the Minister. Rather, they challenge the validity of the fees required for the Minister to process her application under s. 25 of IRPA, which fees are established by s. 89 of IRPA and s. 307 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (IRP Regulations or the Regulations).
[4] The Applicants seeks a number of remedies. The key remedies sought by the Applicants can be stated as follows:
· An order quashing the Minister’s decision to charge the Applicant a fee to access the H&C procedure under s.25(1) of IRPA;
· An order compelling the Governor General in Council (GIC) to make a regulation providing for the exempting of indigents who are unable to pay a fee to access the procedure under s.25(1) of IRPA;
· A declaration that ss. 307, 10(1)(d) and 66 of the IRP Regulations, which requires the payment of a fee as a condition of accessing the procedure under s.25(1) of IRPA is ultra vires in that it fetters the Minister’s discretion under s. 25(1) of IRPA;
· A declaration that ss. 307, 10(1)(d) and 66 are inoperative as being contrary to s. 15(1) and s. 7 of the Charter;
· A declaration that ss. 307, 10(1)(d) and 66 are in breach of the “foundational constitutional principles of constitutional principles of the Rule of Law”; and
· An order directing the Minister to refund the fees paid by the Applicants.
[5] By Order of Prothonotary Aalto, the Charter Committee on Poverty Issues (CCPI) and Low Income Families Together (LIFT) were granted intervener status in this application for judicial review.
II. History of this Application for Judicial Review
[6] In May 2006, the Applicants and the Gunther family (see Court File No. IMM-3045-08) commenced separate actions in the Ontario Superior Court of Justice (OSCJ) challenging the H&C application fees on substantially the same grounds as alleged in this judicial review application. On February 27, 2007, Justice Himel of the OSCJ granted a motion to stay the Krena and Gunther actions on the basis that the Federal Court was the appropriate forum to pursue these matters. Since the parties had already taken steps in the OSCJ actions, Justice Himel ordered that the pleadings, examinations, expert reports and other documentary discovery exchanged in those actions could be relied upon in any Federal Court proceedings.
[7] On May 4, 2007, the Krena family and the Gunther family filed a joint statement of claim (Court File No. T-749-07). The defendant in the Federal Court action brought a motion to direct the plaintiffs to proceed by way of judicial review. The motion was adjourned pending the outcome of the Federal Court of Appeal in Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FC 7, rev’d 2008 FCA 215, [2009] 1 F.C.R. 476, in which a number of questions were certified relating to the appropriate procedure steps for constitutional challenges to fee regulations of the IRPA. The Federal Court of Appeal’s decision in Hinton upheld the procedure of challenging the fee regulations by way of an application for leave and judicial review, and then having the application converted to an action and certified as a class action once leave was granted.
[8] The Applicants, therefore, commenced the present application for leave and judicial review following the Court of Appeal’s decision in Hinton.
III. Payment of Fees
[9] On May 11, 2007, the Applicants paid the $850 fee required for the processing of their H&C application. Although, in the affidavit filed in this judicial review, Ms. Krena states that she paid this fee “sous protestation”, there is no evidence in the record that any such protest was made at the time that the fees were paid. What appears to be a further application was subsequently submitted on March 10, 2008 by the Applicants’ then-counsel. Included in the submissions was the following statement with respect to the payment of fees:
Please note that the fee of $850 has been paid to the government under protest and under compulsion. This statement is made being to protect Ms. Krena’s ability to recover any funds that might be forthcoming from the on-going litigation or other litigation. . . .
IV. Legislative Framework
[10] Immigration law requires that all applications for permanent residence in Canada be made from outside Canada (IRPA, s. 11(1)). However, s. 25 of IRPA gives the Minister of Citizenship and Immigration (the Minister) the discretion to exempt persons from that requirement on the basis of H&C considerations. Applicants who seek permanent residence on this basis are required to pay a processing fee. Section 89 of the IRPA allows the Minister to prescribe fees for the services provided in the administration of IRPA and s. 307 of the IRP Regulations specifically sets out a fee for an in-Canada H&C application under s. 25 of IRPA. Section 10(1)(d) of the IRP Regulations states that an application may not be processed unless the applicable processing fee is paid. The full text of these relevant provisions is set out in Appendix A to these reasons.
V. Do the Applicants have standing?
[11] The threshold question to be addressed is whether the Applicants have standing to bring this application for judicial review.
[12] The Applicants must demonstrate that they are “directly affected by the matter in respect of which relief is sought”, as required by s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. The undisputed fact is that, on May 11, 2007, Ms. Krena paid the required fee. Evidence that this payment was made is contained in the application record. Thus, any refusal of the Minister to process the in-Canada application without the payment of the fees is no longer relevant. The Minister is currently, I assume, processing the H&C application.
[13] The Applicants argue that they preserved their rights by borrowing the money and making the payment only under protest. The record does not support this contention except on an after-the-fact basis. Ms. Krena made the payment on May 11, 2007 without any indication that it was being made under protest. The only statement of protest was made almost one year later – on March 10, 2008 – when another counsel submitted another in-Canada application and made comprehensive submissions on the merits of the application. At that time, the Applicants’ then-counsel asserted that the payment was made under protest. This reasoning is simply not sufficient. Had the Applicants intended to preserve their rights, they ought to have included that direction with the payment. In its absence, I conclude that there was an intention to pay the required fees in the normal course, in spite of the outstanding action.
[14] However, even if there had been a payment “under protest”, I fail to see how this judicial review meets the requirements of s. 18.1(1). This is because, the Applicants are no longer “directly affected by the matter in respect of which relief is sought”, as required by s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. Stated differently, the Applicants are no longer entitled to a remedy of requiring the Minister to consider waiving the H&C application fee.
[15] The question of standing in an application for judicial review was recently considered in the case of League for Human Rights of B'Nai Brith Canada v. Canada, 2008 FC 732, 334 F.T.R. 63. In that decision, Justice Dawson reviewed the concept of “directly affected” as the terminology was used in s.18.1 of the Federal Courts Act. At paragraphs 24-25, she wrote:
The jurisprudence establishes that, for a party to be considered to be "directly affected," the decision at issue must be one which directly affects the party's rights, imposes legal obligations on it, or prejudicially affects it directly. See: Rothmans of Pall Mall Canada Ltd. v. Canada (Minister of National Revenue), [1976] 2 F.C. 500 (C.A.).
In Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, an appeal from the Federal Court of Appeal, the Supreme Court of Canada quoted with approval at page 623 the following passage from Australian Conservation Foundation Inc. v. Commonwealth of
Australia (1980), 28 A.L.R. 257, when considering the existence of direct standing:
A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.
[Emphasis added]
As a result of having paid the fee – whether or not it was made under protest – the subject matter underlying the Applicants’ judicial review application has disappeared. The Applicants could not gain any benefit or advantage from this judicial review, beyond the “satisfaction of righting a wrong, upholding a principle or winning a contest”.
[16] In the alternative, the Applicants’ judicial review application would fail for reasons of mootness. As the parties have not raised this issue, I will deal with it briefly. The Supreme Court of Canada in Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14 set out the principles for mootness: “The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case” (at para.15). Thus, “a case is moot if it fails to meet the ‘live controversy’ test” (at para.16).
[17] Borowski set out a two-step analysis for mootness. First, the question is whether a tangible and concrete dispute has become academic. Second, if the answer to the first part is affirmative, one asks whether the court should nonetheless exercise its discretion to hear the case based on several factors: (a) an adversarial relationship between the parties still exists; (b) the expenditure of limited court resources is justified; and (c) in exercising its jurisdiction, the court stays within its adjudicative role rather than intruding into the role of the legislature.
[18] Applying this to the case at bar, the Applicants’ judicial review of the Minister’s decision to enforce the requisite fee for the H&C application is moot. As already mentioned, the Applicant has paid the fee, and the H&C application has been submitted. A decision by this Court would have no practical effect on the rights of the Applicants. In other words, there is no “live controversy” that remains. This is exemplified in paragraph 23 of Borowski: “the inapplicability of a statute to the party challenging the legislation renders a dispute moot”.
[19] Second, even if an adversarial relationship still exists between the parties, and the expenditure of limited court resources is justified, a decision by this Court on the payment or not of fees would overstep our adjudicative function and reach into the realm of political decision-making. The blurring of roles is particularly evident from the remedy sought by the applicant: an order compelling the GIC to make a regulation about H&C fees under s. 25(1) of IRPA. Furthermore, under s. 89 of IRPA, the government has exclusive powers to establish or waive fees by regulation. Thus, it is clear that Parliament’s intention is to waive fees by legislative decisions or regulations – not by judicial pronouncements under s. 25(1) of IRPA.
[20] Finally, I decline to exercise my discretion to consider the now-hypothetical questions posed by the Applicants.
VI. Conclusion
[21] I conclude that the application will be dismissed either on the basis that the Applicants have no standing to bring this application or on the grounds that the matter is now moot.
[22] The Applicants ask that I certify the following question:
Where the Minister has represented that he has neither the obligation nor discretion to waive the humanitarian and compassionate applications fee, do indigent persons who pay the fee under protest lose standing to challenge the propriety of the fee for persons in their circumstances?
[23] In my view, this question is not appropriate for certification. The underlying assumption of the proposed question is that the Applicants paid the fee under protest. As I stated above, the fact is that the “under protest” claim was only made one year after the payment of the fee. Further, even if I accept that the fee was paid under protest, I cannot conclude that this is a question of general importance; I have no evidence as to how many others (if any) are in a similar situation of having paid a fee under protest.
[24] Having determined that no question will be certified, however, I observe that many of the issues raised by the Applicants in their submissions have been considered in the companion file of Toussaint v. Canada (Minister of Citizenship and Immigration), Court File No. IMM-326-09 and that questions have been certified in that judgment.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1. the application for judicial review is dismissed; and
2. no question of general importance is certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2926-08
STYLE OF CAUSE: KRENA et al v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 23, 2009
APPEARANCES:
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Mr. Andrew C. Dekany Mr. Angus Grant
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Mr. Martin Anderson Ms. Kristina Dragaitis Mr. Ned Djordevic
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Ms. Amina Sherazee Mr. Rocco Galati
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FOR THE INTERVENER LIFT
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Mr. Raj Anand |
FOR THE INTERVENER CCPI
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SOLICITORS OF RECORD:
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Andrew C. Dekany Barrister and Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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Amina Sherazee Barrister and Solicitor
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FOR THE INTERVENER LIFT
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Weir Foulds LLP Barristers and Solicitors Toronto, Ontario |
FOR THE INTERVENER CCPI
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