Dockets: IMM-2961-24
IMM-15088-23
Citation: 2026 FC 355
Ottawa, Ontario, March 16, 2026
PRESENT: Mr. Justice Norris
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BETWEEN: |
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MARINETH DE LA CRUZ GABAYAN |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The applicant is a citizen of the Philippines. In July 2023, with the assistance of an undeclared, unlicensed immigration consultant, she applied for a visa to visit her sister in the Vancouver area. After initially being approved, the visa application was referred to the Risk Assessment Unit (RAU) with Immigration, Refugees and Citizenship Canada (IRCC) in Manila. On further review, the Risk Assessment Manager with the RAU observed that there were striking similarities between the applicant’s purpose of travel letter and purpose of travel letters that had been submitted in several unrelated visitor visa applications.
[2] In August 2023, a procedural fairness letter was sent to the applicant informing her of the RAU manager’s concern that she had misrepresented her purpose of travel and giving her an opportunity to address this concern. The procedural fairness letter noted specifically that the applicant had “submitted documents related to your travel and itinerary that lack credibility.”
No response to the procedural fairness letter was submitted.
[3] On September 29, 2023, the RAU manager refused the visa application. He also found the applicant to be inadmissible due to misrepresentation under subsection 40(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). Global Case Management System notes of the RAU manager’s reasons state, among other things: “Lastly, I consider the full and truthful declaration of a [principal applicant’s] employment background to be a material fact when examining an application for temporary travel to Canada in this category.”
As a result of the finding of misrepresentation, the applicant is inadmissible to Canada for five years.
[4] The applicant requested reconsideration of this decision but the reconsideration request was refused on January 10, 2024.
[5] The applicant applied for leave and for judicial review of the original refusal (IMM-15088-23) as well as the refusal of the request for reconsideration (IMM-2961-24). She contends that the decisions under review are unreasonable and that they were made in breach of the requirements of procedural fairness. The respondent opposed leave in both matters.
[6] On August 26, 2024, Justice McVey issued orders for the production of the Certified Tribunal Record (CTR) in both IMM-15088-23 and IMM-2961-24. On November 27, 2024, Justice McVey granted leave in IMM-15088-23. The next day she granted leave in IMM-2961-24. Associate Judge Cotter and I are case managing the two matters, which are proceeding together.
[7] On February 4, 2025, the respondent filed identical motions for judgment in both applications. (For the sake of simplicity, I will generally refer to the motions in the singular.) Contrary to the position taken at the leave stage, the respondent now concedes that the decisions under review are unreasonable given the RAU manager’s erroneous reference to the applicant’s employment background (see paragraph 3, above). The respondent agrees that the decisions should be set aside – including the finding of misrepresentation – and that the matter should be remitted to a different decision maker for redetermination. The respondent also agrees that the applicant should have an opportunity to provide additional information to the new decision maker. The order the respondent seeks on this motion reflects all of these points.
[8] The applicant opposes the respondent’s motion on the basis that the order the respondent requests does not capture all of the relief she seeks in her applications for judicial review. In particular, while the applicant agrees that the decisions should be set aside and the matter reconsidered by a different decision maker, she has also requested a writ of prohibition to prevent IRCC from using evidence gathered as a result of the Integrity Trends Analysis Tool (ITAT) in the redetermination of the visa application. The applicant submits that, since this is not part of the order sought by the respondent, the motion for judgment should be dismissed. The applicant has also requested costs on this motion.
[9] The motion for judgment was heard on March 10, 2026. The delay in hearing the motion was due to the need to first determine through the case management process the order in which certain pending motions should be heard (the parties could not agree on this) and the exigencies of scheduling an oral hearing, which the parties and the Court agreed was required.
[10] For the reasons that follow, I am satisfied that the motion for judgment should be allowed because the order the respondent seeks would dispose of all of the live controversies and concrete disputes in the applications for judicial review. Since I am allowing the motion, the applicant’s request for costs must be refused except in one discrete but important respect that I will elaborate on below.
II. ANALYSIS
[11] It is well established that a motion by a respondent seeking an order allowing an application for judicial review should be granted only if (1) it will resolve all of the live controversies and concrete disputes between the parties and (2) the court is not persuaded that the matter should be permitted to proceed to a full hearing despite its mootness: see Kiss v Canada (Citizenship and Immigration), 2019 FC 1247 at paras 13-14; Moczár v Canada (Citizenship and Immigration), 2022 CanLII 87745 (FC); Szamkó v Canada (Citizenship and Immigration), 2022 CanLII 88404 (FC); Habiba v Canada (Citizenship and Immigration), 2024 FC 39 at para 26; R.A. v Canada (Citizenship and Immigration), 2024 FC 935 at paras 11-12; Eugene-Akhere v Canada (Citizenship and Immigration), 2024 CanLII 115837 (FC); and Alhilal v Canada (Citizenship and Immigration), 2025 FC 1201 at para 33. If used properly, motions for judgment promote judicial economy and the expeditious determination of applications for judicial review.
[12] It is equally well established that it is not for the judge hearing a motion for judgment to assess the merits of any live controversies or concrete disputes that would not be resolved by the terms of the order sought by the respondent in its motion for judgment. If live issues would remain even if the order sought by the respondent were granted, the motion for judgment must be refused.
[13] This constraint is especially apt when, as is the case here, leave to proceed with the application for judicial review has been granted. Otherwise, a motion for judgment could amount to a collateral attack on the order granting leave, at least with respect to the residual issues. Furthermore, when, as is also the case here, the completeness of the CTR remains in dispute and the parties have still not filed any evidence at the post-leave stage, if a judge were to consider granting a motion for judgment because any residual issues appeared to lack merit, he or she would be in the untenable position of conducting this assessment on the basis of what could be an incomplete record. Provided any residual issues are live controversies or concrete disputes in the sense that they were properly pled in the materials filed in support of the leave application and resolving them in the applicant’s favour would have some practical effect, the assessment of their merits is for the judge hearing the application for judicial review, not the judge considering a motion for judgment.
[14] Of course, it is always open to an applicant to accept an offer of settlement even if it does not dispose of all the issues raised in the application for leave and for judicial review. However, when the respondent brings a motion for judgment because it agrees that the application for judicial review should be allowed but the parties could not agree on terms of settlement, if the terms of the order sought by the respondent would not resolve all of the live issues in the application, the motion must be refused.
[15] In the case at bar, the order sought does not include a writ of prohibition preventing IRCC from using, in the redetermination of the visa application, any evidence generated by the use of the ITAT when the visa application was originally processed in 2023. The determinative question is whether this is a live issue in the applications for judicial review.
[16] As I will explain, I am not persuaded that, when the materials in support of the leave applications are considered as a whole, the applicant is pursuing a writ of prohibition in her applications for judicial review. Thus, it is not the case that an issue the applicant is pursuing would simply become hypothetical if the motion for judgment were granted and the Court would then have to decide whether to exercise its discretion under Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, to allow the matter to proceed to a full hearing despite this. Rather, granting the order sought would resolve all of the issues in the applications for judicial review. But even if I were to assume for the sake of argument that a hypothetical issue remained in play, I would still grant the motion for judgment because I am not satisfied that the applications for judicial review should proceed to a full hearing despite their mootness.
[17] In her notices of application for leave and for judicial review, in addition to asking that the decisions be set aside and the matter remitted for redetermination by a different decision maker, the applicant sought a writ of prohibition “restraining the Respondent from utilizing the evidence gathered as a result of the “Integrity Trends Analysis Tool” to be utilized [
sic] in the redetermination of the immigration application by a different officer.”
Furthermore, the notices state that the grounds on which the applications for judicial review would be based in the event that leave is granted included that “there was a denial of procedural fairness through the conduct of the Respondent by their use of the artificial intelligence tool known alternatively as “Integrity Trends Analysis Tool” or “Lighthouse””
and, further, that IRCC’s use of this tool “violates section 8 and 15 of the
Charter, and cannot be justified pursuant to section 1 of the
Charter.”
[18] On this motion, the applicant confirmed that she is abandoning any Charter arguments relating to IRCC’s use of the ITAT. (The applicant also abandoned similar arguments concerning IRCC’s use of a different tool, the “Immigration Consultants’ IT Enhancement Project,”
which had also been mentioned in the originating notices of application.) As a result, the only question is the status of the request for a writ of prohibition in relation to the ITAT on the basis of an alleged denial of procedural fairness.
[19] The respondent submits that, while the originating notices requested a writ of prohibition, subsequent filings demonstrate that the applicant is no longer pursuing this request. The applicant acknowledges that this issue is not addressed expressly in the memoranda of argument in support of the leave applications but she submits that it is implicit in the issues and arguments set out there concerning procedural fairness. Accordingly, the applicant submits that she is still pursuing this issue.
[20] I am unable to agree with the applicant.
[21] Rule 5(1) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules SOR/2002-232 (FCCIRPR), states that, among other things, an application for leave shall set out the precise relief sought on the application for judicial review and the grounds on which the relief is sought.
[22] Rule 10(2)(a)(vi) of the FCCIRPR states that an applicant shall provide a memorandum of argument in support of a leave application that “contains concise submissions of the facts and law relied upon by the applicant for the relief proposed in the event that leave is granted.”
[23] In my view, a corollary to Rule 10(2)(a)(vi) is that, if a form of relief and supporting submissions set out in the originating notice of application are not mentioned in an applicant’s memorandum of argument, the applicant must not be pursuing that issue any longer. While it is always preferable for an applicant to expressly abandon any issues raised in the originating notice that are no longer being pursued, this is not necessary for a court to conclude in light of the memorandum of argument that an issue has, in fact, been abandoned.
[24] Discerning the issues an applicant is pursuing should not require reading between the lines of their submissions. But even reading the applicant’s memoranda of argument in the most favourable possible light, there is simply no basis to find that the request for a writ of prohibition is still being pursued in the applications for judicial review.
[25] The memorandum of argument on the application for judicial review challenging the original refusal was filed on April 5, 2024. The memorandum of argument on the application challenging the reconsideration decision was filed on April 26, 2024. Apart from the references to the decisions under review, they are essentially identical. Neither mentions let alone develops an argument in support of the submission that the respondent’s use of the ITAT denied the applicant procedural fairness. The procedural fairness arguments developed in each memorandum focus entirely on the alleged inadequacies of the procedural fairness letter IRCC sent to the applicant. Specifically, the applicant submits that the procedural fairness letter failed to inform her about which document in her application had given rise to concerns and why the RAU manager had those concerns (apart from a vague reference to credibility). Even if the ITAT was used in the processing of the visa application (the evidence before the Court suggests it was not), the alleged deficiencies in the procedural fairness letter the applicant focuses on in her memoranda of argument have nothing to do with this. As well, and tellingly, neither memoranda mentions a writ of prohibition on the use of evidence obtained using the ITAT in the relief sought. Instead, both simply request that the application for leave and for judicial review be allowed and, if leave is granted, that the decision under review be set aside and the matter remitted for reconsideration by a different officer.
[26] Given the submissions advanced in the memoranda of argument and the relief requested there, the only possible conclusion is that the applicant is no longer seeking the writ of prohibition mentioned in the originating notices of application. Faced with the present motion, the applicant has attempted to show that this issue still has signs of life, however faint they might be. In my view, there are none.
[27] Since the order sought by the respondent on this motion would resolve all of the issues in the applications for judicial review, strictly speaking, it is not necessary to consider whether the motion for judgment should nevertheless be refused because the applications should be allowed to proceed to a full hearing despite their mootness. There are simply no issues left to be determined, hypothetical or otherwise. Nevertheless, for the sake of completeness, I will address this question. Applying the factors identified in Borowski (at 353-63), I would not exercise my discretion in favour of allowing the matters to proceed.
[28] The doctrine of mootness “reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard”
(Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 17). Thus, “courts should generally decline to decide a case which raises a merely hypothetical or abstract question”
(Taylor v Newfoundland and Labrador, 2026 SCC 5 at para 42). Apart from exceptional circumstances where it would be in the interests of justice to do so, “courts do not pronounce on the law when their decisions will have no practical effect on the rights of the parties”
(ibid.).
[29] I am not persuaded that it would be in the interests of justice to permit the applications for judicial review to proceed despite their mootness. I accept that there is still an adversarial context. I am also prepared to assume for the sake of this part of the analysis that, despite the submissions advanced in her memoranda of argument, the applicant has genuine concerns about IRCC’s use of fraud detection tools like the ITAT. However, those concerns are entirely hypothetical; they have no foundation in the circumstances of this case. Notably, while not necessarily determinative given that the evidentiary record remains in dispute, all the evidence before the Court suggests that the ITAT was not used in processing the applicant’s visa application. Addressing the applicant’s purely hypothetical concerns through these applications for judicial review would be inconsistent with the court’s adjudicative role. It would also raise serious concerns about judicial economy. The issue the applicant now says she still wishes to pursue is not evasive of review, even at the applicant’s own behest. Pursuant to the order set out below, the applicant will be permitted to submit additional material to the new decision maker. In doing so, it will be open to her to argue that the requirements of procedural fairness impose obligations on IRCC to provide her with additional disclosure and, further, that those requirements impose limitations on the information IRCC may consider when redetermining the matter. The new decision maker may or may not find these submissions persuasive. To state the obvious, if the applicant is not satisfied with the outcome of the redetermination of her visa application, she can seek judicial review of the decision.
[30] Accordingly, for these reasons, the motion for judgment will be granted.
III. COSTS
[31] The respondent has been successful on this motion but has not sought costs so none will be awarded against the applicant.
[32] Despite the fact that the motion is being granted, I am satisfied that there are special reasons for an award of costs in favour of the applicant in relation to a discrete issue that arose in this motion. In particular, I am satisfied that costs are warranted to sanction the respondent for making an unfounded allegation of unprofessional and unethical conduct on the part of applicant’s counsel and to compensate the applicant for the time and effort required to respond to this allegation.
[33] Some additional background is necessary to explain how this issue arose.
[34] In her response to the motion for judgment, the applicant sought costs in the lump sum amount of $3,000. She submitted that the motion for judgment was wholly without merit, that it had delayed the judicial review proceedings unnecessarily, and that the Court should signal its disapproval of such conduct by awarding costs against the respondent. The applicant also submitted that the motion for judgment was a tactical maneuver to short circuit ongoing disputes over the contents of the CTR and the Court should signal its disapproval of this, too. The amount of $3,000 was justified simply by the fact that Justice Battista had made a costs order in that amount in dismissing a motion for judgment in Eugene-Akhere.
[35] In its reply memorandum (dated February 18, 2025), the respondent rejected the submission that the present motion was improper. I agree with the respondent in this respect. While the motion for judgment could certainly have been brought earlier in the process, there was no basis for the applicant’s allegation that it was improper or an abuse of process.
[36] The respondent also submitted that, in any event, the applicant ought not to be awarded costs because of her “unscrupulous conduct.”
As examples of this, the respondent cited the fact that the applicant chose to use an unlicensed consultant when applying for the visitor visa, she failed to disclose her use of this “ghost”
consultant, the visa application included a fraudulent purpose of travel document, and the applicant failed to verify the contents of the application before it was submitted on her behalf. Without necessarily agreeing that these circumstances would disentitle the applicant to costs on this motion if they were otherwise warranted, I accept that, given the applicant’s submissions seeking costs, they are relevant considerations and were properly raised by the respondent in its reply submissions.
[37] The respondent did not stop there, however. As additional examples of the applicant’s unscrupulous conduct, the respondent’s reply memorandum cites the following:
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“[I]n pursuing this litigation, the Applicant through her counsel, used undetectable spyware in its Friday, January 17, 2025 8:16 pm email to counsel for the Respondent [footnote 40 omitted] – spyware, which the Respondent is learning does more than just spy on when the recipient opens the email [footnote 41 omitted].”
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“[T]hose same motion materials fail to disclose that counsel for the Respondent was in discussions with counsel for the Applicant between January 23-28, 2025, still unaware of the spyware infiltrating counsel for the Respondent’s computer.”
[38] The document referred to in footnote 40 is an affidavit filed by the applicant almost two weeks earlier (on February 7, 2025) in support of motions to vacate confidentiality orders that had been made in relation to the CTRs in both applications for judicial review. (The reason the applicant brought these motions is immaterial for present purposes.) The affidavit attached as an exhibit a record of email activity generated by Mailsuite concerning an email applicant’s counsel had sent to counsel for the respondent on January 17, 2025. According to that record, counsel for the respondent had opened the email four times: twice on January 17, once on January 18, and once on January 21. (Why the applicant thought this was relevant evidence on the motion regarding the confidentiality order is also immaterial to the present motion.)
[39] It is obvious from the February 18, 2025, reply memorandum that counsel for the respondent were surprised to learn from the applicant’s motion record concerning the confidentiality orders that, without their prior knowledge or consent, applicant’s counsel had access to information about when they had opened the January 17, 2025, email. To a degree, I can understand their concerns. While read receipts are a common email function, usually the recipient’s consent is required before one is sent. Here, evidently, such receipts were being sent without the knowledge or consent of counsel for the respondent. However, the baseless and inflammatory allegations in the reply memorandum were entirely unwarranted. They are also unbefitting counsel for the Attorney General of Canada.
[40] Respondent’s counsel accused applicant’s counsel of deploying “spyware”
against them and that this spyware had “infiltrated”
their computer. They ominously suggested that they were still learning about all the ways applicant’s counsel was spying on them. Without evidence, they implied that, in addition to generating read receipts without a recipient’s knowledge, applicant’s counsel was also using a Mailsuite function that could provide PDF analytics showing how many pages of a PDF were viewed, the percentage of a PDF document viewed overall, and whether a recipient had downloaded the document (these capabilities are all described in footnote 41 to the reply memorandum). All of this was said to be part and parcel of what respondent’s counsel characterized in the reply memorandum as the applicant’s “unscrupulous conduct.”
[41] Faced with what can only be described as a serious allegation of unprofessional and unethical conduct, applicant’s counsel prepared sur-reply materials consisting of written submissions and a supporting affidavit and requested leave to file these materials. The supporting affidavit described the limited manner in which Mailsuite was used in counsel’s law firm. It explained that Mailsuite is a publicly available email tracking program that works with email applications such as Gmail. It confirmed that only the automatic read receipt function was used. It explained how the receipt was generated (from data encoded in the email itself, not from “infiltrating”
a recipient’s computer). It also confirmed that the PDF analytics capability did not apply when a PDF was sent as an attachment to an email (as opposed to through a URL link), which was the only way applicant’s counsel had sent PDF documents to respondent’s counsel.
[42] The respondent immediately objected to the applicant filing the sur-reply materials. This position was maintained up to and including the hearing of this motion.
[43] Even accepting that, to a point, respondent’s counsel had legitimate concerns about how applicant’s counsel knew when they had opened the January 17, 2025, email, the manner in which these concerns were raised (in a court filing, without any prior communication with applicant’s counsel to clarify the situation) and the inflammatory language that was used (including references to “spying”
and “spyware”
) were entirely improper. It was also improper to stand by these allegations despite the information in the sur-reply affidavit. To make matters worse, for over a year, the respondent has maintained its opposition to the applicant’s request to file the sur-reply materials. That position, frankly, was indefensible. At the hearing of this motion, I granted the applicant leave to file the sur-reply materials without calling on applicant’s counsel on this point. Since applicant’s counsel could not have known this would happen, regrettably, he had to waste time and effort preparing submissions in support of this request in addition to the time and effort he had to spend preparing the sur-reply materials in the first place.
[44] At the hearing of this motion, Mr. Lo Re (who did not write the February 18, 2025, reply submissions) conceded that the language used may have been “inelegant”
but the respondent still did not withdraw the allegations of misconduct on the part of applicant’s counsel. Respectfully, those allegations should never have been made, and certainly not in a court filing. Having been made, they should have been withdrawn immediately after the applicant served the sur-reply materials on February 21, 2025. Instead, these serious allegations have hung over applicant’s counsel for over a year and he had to waste time and effort to address them.
[45] If respondent’s counsel had concerns about how applicant’s counsel knew when they had opened the January 17, 2025, email, they should have raised them with him directly before doing anything else. Moreover, the terms in which the concerns were expressed in the reply memorandum – which, to repeat, is a document filed with the Court – went well beyond anything reasonably supported by the limited information available to respondent’s counsel at the time. It must also be recalled that the concerns arose in connection with an entirely different motion. Even if those concerns were relevant to the request for costs in the present motion, which I must say is doubtful, submissions to a court alleging misconduct on the part of opposing counsel require a much firmer foundation than was the case here.
[46] Rule 22 of the FCCIRPR provides that costs may be awarded in an application for judicial review under the IRPA only if the Court finds “special reasons”
for doing so. The term “special reasons”
is not defined in the Rules or in the jurisprudence. Still, it is well established that the threshold for an award of costs is a high one. Whether an award of costs is appropriate turns on the particular circumstances of the case (Diakité v Canada (Immigration, Refugees and Citizenship), 2024 FC 170 at para 58). This Court has found that serious impropriety on the part of a party can constitute special reasons for awarding costs (Diakité, at para 58; Toure v Canada (Public Safety and Emergency Preparedness, 2015 FC 237 at para 16).
[47] I am satisfied that the applicant has met this high threshold. Despite the fact that the respondent’s motion is being granted, I am satisfied that an award of costs in favour of the applicant is necessary to sanction the respondent’s conduct described above and to compensate the applicant for the time and effort required to respond to a serious, unfounded allegation of misconduct on the part of her counsel. In the exercise of my discretion, I have determined that a lump sum costs award of $1500.00 is appropriate.
IV. CONCLUSION
[48] For the foregoing reasons, the respondent’s motion for judgment will be allowed. The order disposing of the applications for judicial review is set out below. Also for the foregoing reasons, costs will be awarded to the applicant in the lump sum amount of $1500.00.
[49] Despite knowing that if this motion were successful it would result in the applications for judicial review being allowed, neither party proposed any questions for certification under paragraph 74(d) of the IRPA. I am satisfied that no serious questions of general importance arise.
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