Date: 20090904
Docket: IMM-2926-08
Citation: 2009 FC 874
Ottawa, Ontario, September 4, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
CHANTAL BAVUNU KRENA,
KETSIA KRENA and
JODICK MOUDIANDAMBU
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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.
“Judith
A. Snider”
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