Asha Gafar

In a complex constitutional case regarding irregular migrant rights to healthcare, a dispute arose during case management over who should bear the cost of producing voluminous third-party medical records.

The plaintiff provided authorizations for the records but argued she could not afford the substantial third-party fees (e.g., $12,105 for one hospital).

The court held that the plaintiff satisfied her disclosure obligations under the Rules of Civil Procedure by providing the authorizations.

Applying principles of proportionality and noting the public interest nature of the litigation and the plaintiff's impecuniosity, the court ordered that if Canada wishes to obtain the records, it must pay the third-party fees at first instance.

This costs endorsement addresses the plaintiff’s entitlement to costs following a successful motion for exemption from mandatory mediation and related matters.

The court reviews the scale and quantum of costs, the relevance of expert evidence, the impact of funding by the Court Challenges Project, and the apportionment of costs between motions.

The court ultimately awards costs to the plaintiff, finding them reasonable and incidental to the proceeding.

This decision addresses the applications of various organizations to intervene in a constitutional challenge regarding migrant access to health care in Canada.

The court grants leave to several coalitions and organizations to intervene as friends of the court, with some permitted to review productions and attend discovery.

The court also addresses the scope of the deemed undertaking rule, the discretion to relieve intervenors from costs, and the exemption of the matter from mandatory mediation.

The ruling clarifies the criteria for intervention, the rights of intervenors, and the balancing of public interest and litigation efficiency.

The defendant, the Attorney General of Canada, sought reconsideration of a prior decision granting the Migrant Worker Coalition leave to intervene as a friend of the court.

Canada argued that the court's initial decision was based on the erroneous factual assumption that the deceased plaintiff had entered Canada on an authorized work permit, when she had actually entered as a visitor and overstayed.

Justice Papageorgiou amended the factual error in the reasons but maintained the decision to grant the Coalition intervenor status.

The court concluded that the deceased's precarious situation of working without status after her visitor visa expired remained highly analogous to the precarious circumstances and healthcare access challenges faced by migrant workers.

This endorsement addresses multiple motions for intervention by various public interest groups and a motion by the plaintiff for exemption from mandatory mediation and a blanket order regarding disclosure.

The court granted intervention status as "friends of the court" to the CCPI Coalition, Amnesty International, ESCR-Net, Colour of Poverty Coalition, and Migrant Worker Coalition, with varying rights including access to productions and attendance at discovery for some.

The court also granted the plaintiff's request to exempt the matter from mandatory mediation, citing the public interest nature and previous attempts at resolution.

The plaintiff's request for a blanket disclosure order to third parties was adjourned.

All intervenors were relieved from liability for costs.

This is an appeal from a motion judge's order dismissing a motion to strike an action.

The motion judge had declared the respondent's claims timely and within the Ontario court's jurisdiction.

The Court of Appeal found that the motion judge erred by declaring the claim timely and precluding the appellant from raising a limitations defence on a Rule 21 motion, as fact-finding is generally not appropriate at that stage.

However, the Court upheld the motion judge's finding that the Ontario court had jurisdiction over the matter.

The appeal was allowed in part, striking the order that precluded the limitations defence.

The applicant applied for a visa to study in Canada.

A visa officer denied the application on the basis of misrepresentation under section 40 of the Immigration and Refugee Protection Act, finding that the proof of funds provided by the applicant's mother was fraudulent following verification with the issuing bank.

The applicant sought judicial review.

The Federal Court allowed the application, concluding the decision was unreasonable and procedurally unfair.

The record lacked any clear or convincing evidence or explanation justifying the finding that the initial bank letter was not authentic.

Furthermore, the procedural fairness letter was deficient in not specifying the dual concerns regarding accuracy and authenticity, and the officer failed to genuinely consider the applicant's explanation that the funds had simply been moved and the initial letter was out of date.

The plaintiff successfully defended a motion brought by the defendant to dismiss her Charter action regarding exclusion from health care coverage.

The plaintiff sought costs of the motion on a substantial indemnity basis in the amount of $181,666.71, or alternatively on a partial indemnity basis in the amount of $121,111.14.

The court found no justification for substantial indemnity costs and awarded costs on a partial indemnity scale.

Applying the principle of reasonableness and the factors under Rule 57.01(1), the court fixed the plaintiff's costs at $92,000 all inclusive.

The defendant, the Attorney General of Canada, brought a motion to strike the plaintiff's action for damages and declaratory relief arising from the denial of public health care while she was an irregular migrant.

The plaintiff alleged violations of her Charter rights and customary international law, relying on a decision by the United Nations Human Rights Committee.

The court dismissed the motion to strike, finding that the Ontario Superior Court has jurisdiction, the claims are not statute-barred, it is not plain and obvious that the claims are barred by res judicata, and the claims disclose a reasonable cause of action that is not doomed to fail.

The applicant sought judicial review of a negative pre-removal risk assessment (PRRA).

The applicant claimed risk in Nigeria based on his bisexuality, presenting new evidence that the officer found did not establish his sexual orientation.

The Court held the officer's decision was reasonable, as much evidence was not new, and the PRRA is not an appeal of the RPD's negative credibility findings.

The Court also held there was no breach of procedural fairness in denying an oral hearing because the officer made a sufficiency finding, not a negative credibility finding regarding the new evidence.

The applicant sought judicial review of a visa officer's refusal of his study permit application.

The officer concluded that the applicant had poor rationale for his course of study and weak ties to his country of citizenship, leading to the finding that he would not leave Canada at the end of his stay.

The court found no breach of procedural fairness and held the decision was reasonable.

The application for judicial review was dismissed.

The applicant sought judicial review of a Refugee Appeal Division (RAD) decision dismissing her appeal.

The RAD had upheld the Refugee Protection Division's finding that she was not a Convention refugee, based on negative credibility findings regarding her claimed Falun Gong practice and a sur place claim.

The Federal Court found the RAD's assessment was reasonable and that the RAD did not breach procedural fairness, as the credibility of her evidence was already in issue before the RPD.

The applicant sought judicial review of a RAD decision affirming the RPD's rejection of his refugee claim.

The RAD found there were viable internal flight alternatives in Peru.

The applicant argued the RAD unreasonably refused to admit new evidence.

The Federal Court held the RAD reasonably applied the statutory requirements for new evidence and that the applicant failed to show how the evidence would have changed the IFA determination.

The application for judicial review was dismissed.

The applicant sought judicial review of an exclusion order issued by the Immigration Division for misrepresentation and a decision by the Immigration Appeal Division dismissing her appeal for lack of jurisdiction.

The applicant failed to disclose her marriage before arriving in Canada with a permanent resident visa as an accompanying dependant.

The Federal Court held that the Immigration Division reasonably found she breached her duty of candour and did not breach procedural fairness.

The Court also upheld the Immigration Appeal Division's conclusion that it lacked jurisdiction under subsection 63(2) of the Immigration and Refugee Protection Act because the applicant's visa had expired before the exclusion order was issued.

The applications for judicial review were dismissed.

The applicant, an Ethiopian citizen identifying as a lesbian, sought judicial review of a Refugee Protection Division decision denying her refugee claim.

She alleged she fled to Canada after her mother brought her to the United States for conversion therapy.

The RPD found her claim implausible on multiple grounds, including how she obtained her passport and birth certificate.

The Federal Court held that the RPD's plausibility findings were based on unfounded speculation rather than reliable evidence, failing to meet the rigorous standard required for such determinations.

The application for judicial review was granted.

The applicants, a mother and her three minor children from Nigeria, sought judicial review of a decision refusing their application for permanent residence on humanitarian and compassionate grounds.

The Federal Court found the decision unreasonable because the officer conflated hardship with the best interests of the child and failed to properly assess medical evidence regarding one child's mental health.

The application for judicial review was granted.

The applicant sought judicial review of a visa officer's refusal of his temporary work permit to work as a sweet maker in Canada.

The visa officer refused the permit because the applicant did not meet the English language requirement specified in the LMIA and had a strong economic incentive to remain in Canada.

The Federal Court granted the application for judicial review, finding the visa officer unreasonably limited the language assessment to the LMIA rather than considering the actual job requirements, which accommodated Urdu speakers.

The Court also held the visa officer unreasonably ignored the applicant's strong ties to his home country, focusing instead on his economic incentives and potential for dual intent.

The applicants, a mother and her young son, applied for judicial review of a Canada Border Services Agency officer's refusal to defer their removal to Croatia.

They had requested a five-month deferral to allow the son to finish the school year and to address his diagnosed adjustment disorder and severe anxiety.

The Federal Court found that the officer's decision was unreasonable because it relied on boilerplate statements and failed to meaningfully engage with the specific medical evidence regarding the child's short-term best interests.

The application for judicial review was granted, and the matter was returned for reconsideration.

The Minister of Citizenship and Immigration applied for judicial review of a Refugee Protection Division decision finding the respondent to be a Convention refugee.

The Minister argued the respondent was excluded under Article 1E of the UN Convention due to prior status in Italy.

The Refugee Protection Division found the respondent had lost his Italian status and faced a risk of persecution in Sri Lanka.

The Federal Court dismissed the application, finding the Refugee Protection Division reasonably applied the Zeng test and did not exceed its jurisdiction.

The applicant sought judicial review of a Refugee Appeal Division (RAD) decision dismissing his appeal of the Refugee Protection Division's rejection of his refugee claim.

The applicant argued that the RAD applied six different, and sometimes incorrect, standards of proof in assessing his risk of persecution in Turkey based on his Kurdish ethnicity, Alevi faith, and political involvement.

The Federal Court dismissed the application, finding that the RAD's varying phrasing did not indicate the application of an incorrect legal test.

The Court concluded that the RAD had correctly articulated and applied the standard of a 'reasonable chance' or 'more than a mere possibility' of persecution.