Nimanthika Kaneira

The Court of Appeal for Ontario dismissed an appeal by the Attorney General of Canada from a certification order of a class action brought by immigration detainees.

Between May 2016 and July 2023, the Canada Border Services Agency placed approximately 8,360 immigration detainees in provincial and territorial prisons instead of Immigration Holding Centers.

The respondents challenged this practice as violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and as constituting negligence.

The motion judge certified the class action, finding that the Charter and negligence claims disclosed reasonable causes of action and that common issues existed.

The appellate court upheld the certification, finding no palpable and overriding errors in the motion judge's analysis.

The plaintiffs brought a motion to certify a class action against Canada on behalf of immigration detainees who were incarcerated in provincial prisons.

The plaintiffs alleged that the practice of detaining immigration detainees in provincial prisons, where they are subjected to penal conditions such as co-mingling with criminal inmates, strip searches, and the use of restraints, violates sections 7, 9, 12, and 15 of the Charter and constitutes systemic negligence.

The court dismissed all of Canada's objections, finding that the pleadings disclosed reasonable causes of action, the class was identifiable, the common issues could be determined in common, a class action was the preferable procedure, and the representative plaintiffs were adequate.

The motion for certification was granted.

The applicant sought a writ of mandamus to compel the Minister to render a decision on his permanent resident application under the Express Entry program.

The application was submitted over three and a half years prior, but was delayed due to an ongoing security screening.

The Federal Court found that the delay was prima facie longer than required and that the Minister failed to provide a satisfactory justification.

The court rejected the Minister's general references to security investigations and the COVID-19 pandemic as sufficient explanations without specific evidentiary support.

The application for judicial review was allowed, and mandamus was granted compelling a decision within 90 days.

The applicants, citizens of the Czech Republic of Roma ethnicity, applied for permanent residence from within Canada on humanitarian and compassionate grounds.

A senior immigration officer refused their application, finding they had not demonstrated exceptional establishment or hardship, and giving little weight to their history of discrimination and domestic abuse.

The applicants sought judicial review of this decision.

The Federal Court allowed the application, finding the officer's decision unreasonable.

The officer erred by failing to consider the totality of the applicants' circumstances (particularly the female applicant's previous refugee claim and choice to withdraw to be with her partner), by applying the wrong legal test in requiring "exceptional" hardship, and by making unreasonable factual findings regarding discrimination and the availability of family support in the Czech Republic.

Following a judgment allowing the application for judicial review and setting aside the decision to revoke the applicant's Canadian citizenship, the Court sought submissions on whether a serious question of general importance should be certified.

The parties agreed that no such question arose, and the Court was satisfied that no question of general importance warranted certification.

The applicants sought judicial review of a Refugee Protection Division decision denying their claims for refugee protection.

The RPD found they lacked credibility due to their failure to claim asylum in the United States and found they had an internal flight alternative in Chittagong.

The Federal Court granted the application, finding the RPD unreasonably failed to assess all grounds of risk alleged, impermissibly based credibility solely on the failure to claim asylum elsewhere without considering the applicants' explanations, and conducted an incomplete and unreasonable IFA analysis that ignored evidence of the state government being the agent of persecution.

The applicant sought judicial review of a RAD decision dismissing his appeal from the RPD.

The RPD rejected his claim based on credibility concerns, specifically regarding omissions from his BOC and a divorce certificate indicating he was in Sudan in 2011.

The RAD refused to admit a new witness statement explaining the divorce certificate because the applicant failed to justify why it was not provided when the appeal was perfected.

The Federal Court found the RAD's application of the evidentiary rules and its credibility findings to be reasonable.

The application for judicial review was dismissed.

The applicants sought judicial review of a decision by the Refugee Appeal Division (RAD) dismissing their appeal and denying them refugee protection.

The RAD upheld the finding that they had a viable internal flight alternative (IFA) in Chittagong, Bangladesh.

The applicants also alleged their former counsel was negligent in failing to submit proof of employment at the Refugee Protection Division stage.

The Federal Court found that the omission was not determinative as it was unrelated to the IFA finding, and concluded that the RAD's decision that Chittagong was a viable IFA was reasonable.

The application for judicial review was dismissed.

The applicants, citizens of Togo residing in Ghana, sought judicial review of a decision refusing their application for permanent residence as members of the Convention refugee abroad class or the country of asylum class.

The Officer concluded the applicants had a durable solution in Ghana and were not Convention refugees.

The Federal Court found the Officer's decision unreasonable, as the Officer failed to justify the conclusion that the applicants were not Convention refugees and disregarded relevant evidence regarding the barriers they faced in obtaining Ghanaian citizenship and accessing services.

The application for judicial review was allowed.

The applicants, a mother and her two children from Nigeria, sought refugee protection based on fear of her first husband.

The Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD) found they had a viable Internal Flight Alternative (IFA) in Port Harcourt.

The Federal Court held the RAD's decision was unreasonable because it failed to address documentary evidence regarding severe unemployment difficulties in Port Harcourt, especially for women, and ignored psychological reports concerning the principal applicant's post-traumatic stress disorder and how it would affect her ability to seek employment and relocate.

The application for judicial review was allowed and the matter remitted for reconsideration.

The applicant, a failed refugee claimant from Ethiopia, applied for a Pre-Removal Risk Assessment (PRRA) citing new risks due to a state of emergency declared in Ethiopia and his ongoing political activities in Canada.

The PRRA officer denied the application, finding the applicant's evidence was not new under s. 113(a) of the IRPA.

On judicial review, the Federal Court held the officer's decision was unreasonable, as the officer failed to explain how evidence of events that occurred after the refugee claim was rejected could have been presented earlier, and ignored key evidence concerning the applicant's involvement with an Ethiopian media organization.

The application for judicial review was allowed and the matter remitted for redetermination.

Following the allowance of an application for judicial review, the Court issued a supplementary judgment on whether a question of general importance should be certified under s. 74(d) of the Immigration and Refugee Protection Act.

Neither the applicant nor the respondent proposed any questions.

The Court concluded that no questions of general importance warranted certification and none were stated.