Docket: A-393-16
Citation:
2018 FCA 4
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CORAM:
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WEBB J.A.
NEAR J.A.
GLEASON J.A.
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BETWEEN:
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JUVENAL DA
SILVA CABRAL, PEDRO MANUEL GOMES SILVA, ROBERT ZLOTSZ, ROBERTO CARLOS
OLIVEIRA SILVA, ROGERIO DE JESUS MARQUES FIGO, JOAO GOMES CARVALHO, ANDRESZ
TOMASZ MYRDA, ANTONIO JOAQUIM OLIVEIRA MARTINS, CARLOS ALBERTO LIMA ARAUJO,
FERNANDO MEDEIROS CORDEIRO, FILIPE JOSE LARANJEIRO HENRIQUES, ISAAC MANUEL
LEITUGA PEREIRA,
JOSE FILIPE
CUNHA CASANOVA
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Appellants
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION, MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT,
HER MAJESTY THE QUEEN
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Respondents
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REASONS FOR JUDGMENT
GLEASON J.A.
[1]
The appellants appeal from the September 14,
2016 judgment of the Federal Court in Cabral et al. v. Minister of Citizenship
and Immigration et al., 2016 FC 1040 (per Zinn, J.), granting the
respondents’ motion for summary judgment under Rule 215 of the Federal Courts
Rules, SOR/98-106 (the Rules). For the reasons that follow, I would dismiss
this appeal, with costs.
I.
Background
[2]
Each of the appellants applied for permanent
resident status as part of the Federal Skilled Trades Class (the FSTC), a class
of economic immigrants established under subsection 12(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) and section 87.2 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
IRPA Regulations). The respondent Minister of Citizenship and Immigration (the
Minister) denied each of the appellants’ applications. In response, the appellants
commenced a proposed class proceeding.
[3]
In their Amended Statement of Claim, the
appellants alleged that their applications for permanent residence were denied solely
because they failed the International English Language Testing System test (the
IELTS), one of two tests adopted by the Minister to test English language
competency. The appellants also alleged that the IELTS is culturally biased
toward “British English”, unfairly requires a
high proficiency in English and was administered in a manner that favours those
from English-speaking countries and discriminates against those, like them, who
are from non-English speaking countries.
[4]
The appellants further pleaded in their Amended
Statement of Claim that they had requested that an immigration officer conduct a
substitute evaluation under subsection 87.2(4) of the IRPA Regulations. This
provision allows for assessment of an applicant’s ability to become
economically established as an alternate basis for granting permanent resident
status as part of the FSTC. The appellants pleaded that the requested
substitute evaluations were not conducted because Ministerial Instructions had
been issued which provided that applications would not be processed if an
applicant did not meet applicable language requirements. The appellants alleged
that these Ministerial Instructions violate the IRPA Regulations and are
therefore ultra vires. They also claimed that the conduct of the
respondents amounted to breach of statute, public misfeasance, excess of
jurisdiction and authority, abuse of process, bad faith and breach of sections
7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11 (the Charter). The appellants finally alleged that they suffered damages as
a result of the impugned conduct of the respondents.
[5]
The respondents brought a motion to strike the
appellants’ Statement of Claim, which the Federal Court dismissed on April 27,
2015 (unreported decision of the Federal Court in Cabral et al. v. Minister
of Citizenship and Immigration et al., T-2425-14, per Zinn, J.). In so
holding, the Federal Court struck several paragraphs in the appellants’
original Statement of Claim, but granted them leave to amend the claim. They did
so, and it was the amended pleading that was before the Federal Court when it
heard the respondents’ summary judgment motion.
[6]
The Federal Court also had before it the respondents’
Statement of Defence, several affidavits and the transcripts from the cross-examinations
of the affiants who were cross-examined.
[7]
The respondents filed affidavits from Ms.
Williams, a Program Support Officer at the Department of Immigration, Refugee
and Citizenship Canada (the Department), Ms. Tyler, the Assistant Director of
the Economic Policy and Programs Division at the Department and Ms. Homeward,
a paralegal at the Department of Justice. The appellants filed affidavits from
Mr. Boraks, the lawyer who prepared almost all of their applications for
permanent residence, and from Mr. Volpe, a former Minister of Citizenship and
Immigration and the publisher of an Italian Canadian newspaper.
[8]
In her affidavit, Ms. Williams attested that she
had reviewed applications for permanent resident status for a number of
different classes of economic immigrants, including the FSTC. She also detailed
the processes followed by the Department to assess and process FSTC
applications and provided information about the appellants’ applications which
was drawn from her review of one of the Department’s data bases, the Global
Case Management System (GCMS). She noted that, in many cases, the appellants
failed to meet other mandatory selection criteria in addition to having failed
the IELTS and that another appellant had been granted permanent resident status.
[9]
In her affidavit, Ms. Homeward provided details
about the former Minister’s trips to England and Ireland between 2012 and 2014
and attached governmental news releases, the Minister’s speaking notes for
presentations and several news articles.
[10]
In her affidavit, Ms. Tyler deposed that she
supervised employees responsible for the development of program policy for economic
immigration programs, including the FSTC. She also attested to the creation of
the FSTC, the legislative requirements for the FSTC, the language requirements
for the FSTC and the content of the Ministerial Instructions applicable to the
FSTC. In addition, she provided details regarding the IELTS and of scores
achieved by applicants from several non-English speaking countries on the IELTS
in 2013 and 2014 from the IELTS and IELTS Canada websites.
[11]
In his affidavit, Mr. Boraks provided details
about his clients’ applications, but did not attach complete copies of their applications.
He also deposed to several issues that the Federal Court found were irrelevant
to the proceeding. Mr. Volpe’s affidavit attached several newspaper articles,
opinions and editorials.
II.
The Decision of the Federal Court
[12]
Before the Federal Court, the appellants
objected to the admissibility of the affidavits filed by the respondents,
claiming that they were hearsay and improperly spoke to the law as opposed to
setting out facts. The Federal Court dismissed these objections, but in two
instances determined that the evidence of the respondents’ affiants was to be
given minimal or lesser weight.
[13]
More specifically, the Federal Court held that
Ms. Williams had personal knowledge of Federal Skilled Trades Program (the
program that established the FSTC), of the processing of applications under it
and of the way in which the GCMS notes were generally created. The Federal
Court further held that the GCMS notes that provided the basis for Ms. Williams’
evidence about the appellants’ applications were business records of the Minister
and his officials and therefore admissible as an exception to the hearsay rule.
However, where there was a contradiction between the GCMS notes and the direct
evidence of Mr. Boraks, the Federal Court preferred the latter as it was direct
testimony.
[14]
The Federal Court determined that the evidence
of Ms. Tyler was admissible and did not improperly speak to the law. As
concerns Ms. Homeward’s affidavit, the Federal Court accepted that Ms. Homeward
could attest to the fact that the documents she appended were created, but held
that she could not speak to the truth of their contents. The Federal Court
therefore determined that it would afford only minimal weight to her evidence.
[15]
After ruling on these evidentiary issues, the
Federal Court reviewed the evidence and found that nine of the appellants’
applications were deficient in respects other than the failure to pass the
IELTS. It determined that summary judgment should be granted, dismissing these nine
claims, as an essential element of the appellants’ claim was that they had been
denied permanent resident status solely due to the failure to pass the IELTS.
[16]
The Federal Court then moved to consider whether
it should grant summary judgment in respect of the remaining four appellants’
claims and in so considering addressed the three different aspects of their
claim.
[17]
First, the Federal Court reviewed the evidence
and held that the appellants had failed to establish that the IELTS was
culturally biased or in any way unfair to them. It thus determined that this
portion of their claim did not raise a genuine issue for trial as the
respondents’ evidence established that significant numbers of claimants from
non-English speaking countries had passed the IELTS.
[18]
The Federal Court next considered whether the
Ministerial Instructions which provided that substitute evaluations could not
be conducted if an applicant failed the language test were contrary to the IRPA
Regulations. It found no conflict between the Ministerial Instructions and the
provisions of the Regulations for several reasons. The Federal Court first held
that it should adopt an interpretation that favours coherence over one that
generates conflict. Second, the Federal Court underscored that the appellants
had no right to be granted permanent resident status – even if they could
become economically established in Canada – as subsection 12(2) of the IRPA
provides the Minister discretion to select immigrants as part of an economic
class. The Federal Court then noted that one of the objectives of the Minister
under the IRPA, set out in paragraph 3(1)(j) of the IRPA, is “to work in cooperation with the provinces to secure better
recognition of the foreign credentials of permanent residents and their more
rapid integration into society”. The Federal Court found that the
appellants had failed to plead any material fact that would support their claim
that the impugned Instructions breached this objective of the IRPA and noted that,
if anything, the Instructions furthered this objective. Third, the Federal Court
held that there was no conflict between the Instructions and subsection 87.2(4)
of the IRPA Regulations because subsection 87.3(2) of the IRPA allowed for the
issuance of Instructions to “best support the
attainment of the immigration goals established by the Government of Canada”,
which is a much broader concept than becoming “economically
established”, the basis for substitute evaluation in in subsection
87.2(4) of the IRPA Regulations. It therefore concluded that there was no
genuine issue for trial with respect to the allegations that centred on the
alleged conflict between the Ministerial Instructions and the legislation and regulations.
[19]
Finally, the Federal Court considered the nature
of the losses claimed by the appellants and noted that they had pleaded that
their losses were a direct result of the respondents’ actions and that they
could not have mitigated their losses. The Federal Court held that the
appellants had not established a genuine issue for trial in respect of this issue
as, even if they had established that the IELTS was a higher standard than the
other test the Minister had adopted to test English language proficiency, the
appellants had not taken the other test and had thus failed to mitigate whatever
damages they might have suffered.
[20]
In result, the Federal Court held there was no
genuine issue for trial in respect of any of the appellants’ claims and
therefore granted the respondents’ motion for summary judgment, with costs.
III.
The Issues
[21]
Before us, the appellants make the following
arguments:
•
the Federal Court erred in law by improperly
shifting the onus of proof and requiring the appellants establish that they
possessed a genuine issue for trial as opposed to requiring that the moving
party show there was no such issue;
•
the Federal Court erred in law in ruling that
the GCMS notes were business records and in determining that the portions of
Ms. Williams’ affidavit that relied on them were admissible in light of Rule
81(1) of the Rules, which prohibits affidavits on information and belief in
summary judgment motions;
•
the Federal Court erred in law – and violated
several constitutional and Charter guarantees – in assessing issues of
credibility based on a paper record;
•
the Federal Court erred in its interpretation of
the relevant provisions in the IRPA and the IRPA Regulations, which provide a
right to claimants like the appellants to the conduct of a substitute
evaluation upon request;
•
the Federal Court’s interpretation of the
relevant provisions in the IRPA and the IRPA Regulations is at odds with its
ruling on the motion to quash and, for this reason as well, is erroneous; and
•
the Federal Court erred in law, violated the
appellants’ constitutional rights and demonstrated that it was biased in
failing to address the various constitutional and Charter arguments made by the
appellants.
IV.
Analysis
[22]
In my view, none of the appellants’ arguments
has merit.
A.
Burden of Proof
[23]
Contrary to what the appellants assert, the
Federal Court did not erroneously assign them the burden of proof, but, rather,
determined the motion in light of the entirety of the evidence and concluded
that the respondents had shown there was no genuine issue for trial. In this
regard, the Federal Court correctly applied the case law of this Court, which
establishes that, while the ultimate burden on a motion for summary judgment
rests with the moving party, there is an evidentiary burden on a responding
party to put forward evidence to show that there
is a genuine issue for trial: see e.g. Collins v. Canada, 2015 FCA 281
at paras. 68-72, 480 N.R. 274; Buffalo v. Canada, 2016 FCA 223 at para. 47,
487 N.R. 306; MacNeil Estate v. Canada (Department of Indian and Northern
Affairs), 2004 FCA 50 at para. 25, 316 N.R. 349. It was within this context
that the Federal Court made statements to the effect that the appellants had
not shown there to be a genuine issue for trial.
B.
Evidentiary Issues
[24]
As for the admissibility of the GCMS notes and
the portions of Ms. Williams’ affidavit based on them, the Federal Court
correctly concluded that the notes were business records. Both the common law
and the Canada Evidence Act, R.S.C. 1985, c. C-5 provide for an
exception to the hearsay rule for business records.
[25]
At common law, statements made by a person under
a duty to perform an act and to record it in the ordinary course of the
declarant’s business are admissible so long as the statements were made
contemporaneously with the facts they record and were made without motive or
interest to misrepresent the facts: Ares v. Venner, [1970] S.C.R. 608 at
p. 626, 14 D.L.R. (3d) 4; Sidney N. Lederman, Alan W. Bryant and Michelle
K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th
edition (Markham, Ontario: LexisNexis, 2014) at p. 295.
[26]
Under the Canada Evidence Act, where oral
evidence on a point would be admissible, subsection 30(1) provides that “a record made in the usual and ordinary course of business
that contains information in respect of that matter is admissible”.
However, the Canada Evidence Act provides for a wider range of
exceptions than those applicable at common law. Notably, records made in the
course of an investigation (subparagraph 30(10)(a)(i)) and those
which are a recording of evidence taken in the course of another legal
proceeding (paragraph 30(10)(c)) are not admissible under the statutory
business records exemption to the hearsay rule. Subsection 30(12) defines
a “legal proceeding” broadly to mean “any inquiry where evidence is or may be given”.
[27]
Here, the entries into the GCMS notes meet both
the common law and the statutory tests for business records. The employees of
the Department who made these notes were under a duty to assess permanent
residence applications and to record the bases for their rejections or positive
decisions. Moreover, these recordings were largely clerical in nature and
merely assessed the presence or absence of compliance with enumerated statutory
criteria, which could readily be assessed on the face of the materials
submitted.
[28]
This stands in contrast to situations where this
Court and the Federal Court have determined that detailed notes made by
Immigration Officers in systems similar to the GCMS notes to record what
transpired during interviews of candidates are not admissible to prove the
truth of their contents: see e.g. Wang v. Canada (Minister of Employment and
Immigration), 121 N.R. 243 at paras. 9-10, [1991] 2 F.C. 165 (F.C.A.);
Abedin v. Canada (Minister of Citizenship and Immigration), 199 F.T.R.
23 at paras. 13-16, [2000] F.C.J. No. 2103 and Qiu v. Canada (Minister of
Citizenship and Immigration), 183 F.T.R. 149 at paras. 3-8, [2000] F.C.J.
No. 141. In these latter types of cases, an investigation is being conducted,
evidence is being taken and there is no collateral guarantee of authenticity as
the declarant may well be motivated to record the interview in a manner that
buttresses his or her decision. This potential incentive to colour the
recording is absent in the case of the GCMS notes in the present case.
[29]
I therefore conclude that the Federal Court was
correct in admitting the GCMS notes as business records.
[30]
The more recently-recognized principled exception
to the hearsay rule provides an alternate basis for upholding the Federal
Court’s admissibility ruling. This exception was elucidated by the Supreme
Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531, 113 N.R. 53 (Khan);
R. v. Smith, [1992] 2 S.C.R. 915, 139 N.R. 323 (Smith) and R.
v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (Khelawon)
and allows for the admission of hearsay evidence if it is reliable and
necessary to the case. Reliability concerns the existence of circumstantial
guarantees of trustworthiness that can overcome the fact the evidence cannot be
tested by contemporaneous cross-examination: Smith at pp. 930, 933; Khelawon
at paras. 61-63. In terms of necessity, the party seeking to adduce hearsay
evidence must demonstrate it is “reasonably necessary”
to do so: Khan at p. 546; Smith at pp. 933-934.
[31]
Here, the twin requirements of reliability and
necessity are met as the circumstances of the GCMS notes’ creation supports
their reliability and necessity favours allowing their admission without filing
affidavits from a multitude of Departmental employees merely to validate their
computer entries. In the circumstances of the present case, it would be a
senseless waste of the resources of the appellants – and of the judiciary – to
require that the GCMS notes be proved by filing an affidavit from each employee
who made the relevant entries. As noted in Sopinka, Lederman & Bryant:
The Law of Evidence in Canada at s. 6.102, the requirement of necessity may
be met “where a declarant’s attendance in court would
needlessly add to the length of a trial merely to establish a point which could
be readily accepted through hearsay evidence”. Thus, under the
principled exception to the hearsay rule, the notes were admissible.
[32]
As concerns the appellants’ arguments regarding
Rule 81(1) of the Rules, the appellants are correct in asserting that this
subsection provides that affidavits containing statements made on information
and belief are not to be filed on motions for summary judgment or summary
trial. However, the case law of this Court and of the Federal Court has interpreted
information and belief as used in this context as being synonymous with hearsay
such that evidence which is admissible under an exception to the hearsay rule
does not offend the prohibition in Rule 81(1): Éthier v. Canada (RCMP
Commissioner), [1993] 2 F.C. 659, 151 N.R. 374 (C.A.); Twentieth
Century Fox Home Entertainment Canada Ltd. v. Canada (Attorney General),
2012 FC 823 at para. 22, [2012] F.C.J. No. 844; Ottawa Athletic Club Inc. v.
Athletic Club Group Inc., 2014 FC 672 at paras. 117-119, 459 F.T.R. 39. Accordingly,
the Federal Court’s ruling on the GCMS notes does not violate Rule 81(1)
of the Rules since they were properly admitted under an exception to the
hearsay rule.
[33]
On the appellants’ final evidentiary argument, I
disagree that the Federal Court made any credibility findings in this case. It
was therefore open to it to rule on the motion based on the evidence the
parties had filed.
[34]
Thus, the Federal Court did not err on any of
the evidentiary issues raised by the appellants.
C.
Interpretation of the Requirements of the IRPA
and of the IRPA Regulations
[35]
Turning to the interpretative issue, for much
the same reasons as those given by the Federal Court, I do not believe the
Ministerial Instructions at issue in this case violated any provision in the
IRPA or the IRPA Regulations and thus am of the view that the Federal Court did
not err in finding that the appellants’ assertions otherwise did not raise a
genuine issue for trial.
[36]
The starting point for assessing this portion of
appellants’ claim is the recognition that non-citizens do not have the right to
immigrate to Canada or to be granted status as a permanent resident as part of any
of the economic classes: Canada (Minister of Employment and Immigration) v.
Chiarelli, [1992] 1 S.C.R. 711 at para. 23, 135 N.R. 161; Medovarski v.
Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 46,
[2005] 2 S.C.R. 539 and Cha v. Canada (Minister of Citizenship and
Immigration), 2006 FCA 126 at para. 23, 349 N.R. 233. This
principle is enshrined in subsection 12(2) of the IRPA, which, as the Federal
Court noted, is cast in permissive terms:
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12(2) A foreign national may be
selected as a member of the economic class on the basis of their ability to
become economically established in Canada.
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12(2) La sélection des étrangers
de la catégorie « immigration économique » se fait en fonction de leur
capacité à réussir leur établissement économique au Canada.
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[37]
The criteria for eligibility as a member of the
FSTC are contained in section 87.2(3) of the IRPA Regulations. The Federal
Court aptly summarized them at paragraph 19 of its reasons as follows:
[…] An applicant
must:
(a) meet
the minimum language proficiency set by the Minister under subsection 74(3) of
the IRPA Regulations in reading, writing, listening, and speaking;
(b) have acquired
at least two years of full-time experience (or the part-time equivalent) in the
skilled trade during the five years preceding the application, after becoming
qualified to independently practice in the occupation;
(c) have met the
relevant employment requirements of their skilled trade as specified in the
NOC, except for the requirement to obtain a provincial certificate of
qualification; and
(d) have a
certificate of qualification issued by a competent provincial authority in the
applicant's skilled trade, or a work permit or offer of employment as described
in paragraphs 87.2(3)(d)(ii) - (v) of the Regulations.
[38]
Under subsection 74(3) of the IRPA Regulations,
the Minister is afforded the authority to establish minimum language
proficiency criteria for all classes of immigrants and to delegate
administration of language proficiency tests to outside authorities, such as
the authorities that administer the IELTS.
[39]
In addition, the IRPA provides the Minister with
wide authority to issue Instructions regarding the way in which visa applications
(including those for permanent residence status as part of the FSTC) are to be
processed so they will best support attainment of the immigration goals of the
Government of Canada. Subsections 87.3(2) and (3) of the IRPA provide in this
regard:
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87.3(2) The
processing of applications and requests is to be conducted in a manner that,
in the opinion of the Minister, will best support the attainment of the
immigration goals established by the Government of Canada.
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87.3(2) Le
traitement des demandes se fait de la manière qui, selon le ministre, est la
plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration
par le gouvernement fédéral.
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(3) For the
purposes of subsection (2), the Minister may give instructions with respect
to the processing of applications and requests, including instructions
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(3) Pour
l’application du paragraphe (2), le ministre peut donner des instructions
sur le traitement des demandes, notamment des instructions :
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(a)
establishing categories of applications or requests to which the instructions
apply;
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a) prévoyant les groupes de demandes à
l’égard desquels s’appliquent les instructions;
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(a.1) establishing
conditions, by category or otherwise, that must be met before or during the
processing of an application or request;
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a.1) prévoyant des conditions, notamment
par groupe, à remplir en vue du traitement des demandes ou lors de celui-ci;
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(b)
establishing an order, by category or otherwise, for the processing of
applications or requests;
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b) prévoyant l’ordre de traitement des
demandes, notamment par groupe;
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(c)
setting the number of applications or requests, by category or otherwise, to
be processed in any year; and
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c) précisant le nombre de demandes à
traiter par an, notamment par groupe;
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(d)
providing for the disposition of applications and requests, including those
made subsequent to the first application or request.
[Emphasis added]
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d) régissant la disposition des demandes
dont celles faites de nouveau.
[Non souligné dans l’original.]
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[40]
Both this Court and the Federal Court have
recognized the broad authority of the Minister to issue Instructions under this
or similar provisions in the IRPA to limit the number of applications to be
processed and to provide direction as to how processing is to be undertaken: Tabingo
v. Canada (Citizenship and Immigration), 2013 FC 377 at para. 8, 362 D.L.R.
(4th) 166; aff’d Austria v. Canada (Citizenship and Immigration), 2014
FCA 191 at paras. 46, 66-67, [2015] 3 F.C.R. 346; Jia v. Canada (Citizenship
and Immigration), 2014 FC 596 at para. 29, [2015] 3 F.C.R. 143; appeal
dismissed 2015 FCA 146; Liang v. Canada (Minister of Citizenship and
Immigration), 2012 FC 758 at para. 42, [2012] F.C.J. No. 683.
[41]
One of the immigration goals of the Government of
Canada, reflected in paragraph 3(1)(e) of the IRPA, is the
promotion of the “successful integration of permanent
residents into Canada”. As noted by the Federal Court, paragraph 3(1)(j)
of the IRPA similarly provides that the more rapid integration of immigrants
like those in the FSTC is an immigration goal.
[42]
Capacity in one of Canada’s official languages
is undoubtedly a relevant factor in promoting such successful integration. Indeed,
the Regulatory Impact Analysis Statement in respect of the amendments to the
IRPA Regulations setting the current parameters of the FSTC notes that the
language “criteria [have] been developed recognizing
the […] importance of meeting minimum language requirements, given that
language proficiency is a determinant factor of immigration success”. (Regulatory
Impact Analysis Statement, Canada Gazette Part II, Vol. 146, No. 26, p.
2936 (SOR/2012-274).
[43]
By virtue of the broadly-worded authority provided
to the Minister under section 87.3 of the IRPA, the Minister possessed the
authority to issue the impugned Instructions in the present case. More
specifically, under paragraph 87.3(3)(a.1) of the IRPA, the Minister is
empowered to issue Instructions establishing conditions that must be met before
processing an application where the Minister is of the opinion that the
Instruction best supports attainment of the immigration goals of the Government
of Canada. This is a very broad grant of authority and would encompass the
impugned Instructions in the present case as they are consistent with the
Government’s immigration goals of fostering rapid integration of immigrants.
Moreover, the Instructions recognize that Canada has more FSTC applicants than
it is prepared to allow to immigrate as the Instructions set caps on the
numbers of FSTC applications that will be processed each year. It is entirely
consistent with attainment of the Government’s immigration goals that priority
be given to and applications processed only from those who meet the minimum
prescribed language requirements as they are the applicants who are most likely
to become successfully integrated as part of the FSTC. The IRPA therefore authorized
the Minister to issue the impugned Ministerial Instructions.
[44]
Nor do I see any conflict between these
Instructions and subsection 87.2(4) of the IRPA Regulations, which should be
interpreted in a harmonious manner, if possible. As noted, subsection 87.2(4)
of the IRPA Regulations provides for the possibility of a substitute evaluation
for those who might meet – or might fail to meet – the prescribed criteria for
eligibility as a member of the FSTC:
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87.2(4) If the
requirements referred to in subsection (3), whether or not they are met, are
not sufficient indicators of whether the foreign national will become
economically established in Canada, an officer may substitute their evaluation
for the requirements. This decision requires the concurrence of another
officer.
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87.2(4) Si le fait de satisfaire
ou non aux exigences prévues au paragraphe (3) n’est pas, de l’avis de
l’agent, un indicateur suffisant de l’aptitude de l’étranger à réussir son établissement
économique au Canada, il peut y substituer son appréciation et cette décision
doit être confirmée par un autre agent.
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[45]
There are several reasons why the impugned Ministerial
Instructions do not conflict with subsection 87.2(4) of the IRPA Regulations.
[46]
First, the IRPA gives the Minister the authority
to issue Instructions regarding conditions that must be met before processing applications.
As noted, it is consistent with this broad grant of authority to issue an
Instruction to not process applications from those who fail to meet the
prescribed minimum language criteria, thereby removing their applications from
the processing stream and rendering them ineligible to request a substitute
evaluation.
[47]
Second, there is nothing in subsection 87.2(4)
of the IRPA Regulations that creates a right to the conduct of a substitute
evaluation. Rather, the provision is a permissive one and grants the right to Immigration
Officers (and not to applicants) to conduct a substitute evaluation in the
prescribed circumstances.
[48]
Third, it is not inconsistent with the
flexibility granted to Immigration Officers under subsection 87.2(4) of the
IRPA Regulations to require that the Department weed out applications from
those who fail to meet minimum language proficiency criteria before they are
processed, thereby rendering their applications ineligible for substitute
evaluation. As the Federal Court rightly noted, the ability to become
economically established is a narrower notion than the goal of fostering rapid
integration: an individual may be economically established but not integrated
into Canadian society, especially if he or she cannot communicate in one of
Canada’s official languages.
[49]
I therefore believe that the Federal Court did
not err in its interpretation of the relevant statutory and regulatory
provisions.
[50]
Nor was its prior ruling on the motion to strike
an impediment to granting the summary judgment motion in the instant case. The
two types of relief are fundamentally different; in a motion to strike, the
facts as pleaded are taken as true whereas a summary judgment motion is
determined based on the evidence tendered. More importantly, in its reasons on
the motion to strike, the Federal Court did not address the interpretative
issue but rather focussed on the adequacy of the pleadings and whether the
appropriate parties had been joined as defendants. Its interim decision on the
motion to strike was therefore not inconsistent with its ruling on the summary
judgment motion.
[51]
Thus, the Federal Court did not err in finding
that the interpretative issues raised by the appellants failed to disclose a
genuine issue for trial.
D.
Failure to Address the Constitutional and
Charter Arguments
[52]
The vague constitutional and Charter arguments
advanced by the appellants were all dependent on one or the other of the
foregoing arguments and were offered as additional reasons for dismissing the
motion for summary judgment. As none of these arguments was an independent one,
I see no need for the Federal Court to have addressed them.
V.
Proposed Disposition
[53]
I would therefore dismiss this appeal, with
costs.
“Mary J.L. Gleason”
“I agree.
Wyman W. Webb J.A.”
“I agree.
D. G. Near J.A.”
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