Court File and Parties
DIVISIONAL COURT FILE NO.: 246/18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, D. Edwards JJ.
BETWEEN:
Hongbin Wang
Applicant
– and –
The Ministry of Citizenship and Immigration of Ontario and The Attorney General of Ontario
Respondent
COUNSEL:
Lihua Bao, for the Applicant
Victoria Yankou, for the Respondents
HEARD: October 1, 2020
Reasons for Decision
Backhouse J.
Overview
1The Applicant seeks judicial review of the rejection of his application for the Ontario Immigration Nominee Program (“OINP”) under the Investor Component Stream on the grounds that the decision was unreasonable and procedurally unfair. He asks that the decision be quashed and remitted for reconsideration.
2OINP, an economic immigration selection program, operates pursuant to an agreement with the federal department, Immigration, Refugees and Citizenship Canada (“IRCC”), whereby Ontario can nominate foreign nationals for permanent resident status based on Ontario’s economic needs and the nominee’s fulfillment of certain specified criteria. At the time of the Applicant’s application, OINP was non-statute based, discretionary and policy-driven. The final decision to grant permanent resident status rested and remains with IRCC.
3For the reasons set out below, I find that the decision to reject the Applicant’s application was reasonable and satisfied the requirements of procedural fairness. The application for judicial review is dismissed.
Background
Statutory Framework and Program Background
4IRCC permits provinces to nominate foreign nationals for permanent residency, pursuant to the Immigration and Refugee Regulations, made under the Immigration and Refugee Protection Act, S.C. 2001, C.27 (“IRPA”).
5OINP was established under an agreement with IRCC currently called the Canada-Ontario Immigration Agreement (“COIA”). COIA is authorized under s. 8 of IRPA. COIA states that the federal government has authorized Ontario to establish OINP in order that Ontario may nominate for permanent residence in Ontario, foreign nationals who meet Ontario's economic immigration needs.
6The provincial Minister of Citizenship and Immigration has delegated decision-making authority to the Director of OINP to deny an application in the Investor Component Stream pursuant to s. 7(1) of the Ministry of Citizenship and Culture Act, R.S.O. 1990, c. M.18. OINP has full discretion to design its own procedures and determine the criteria for each stream of the program to choose which applicants it will nominate. The number of applicants Ontario can nominate each year is based on a quota set by IRCC. The applications go through a standard approvals process.
7The goals of OINP are to:
(a) select economic immigrants who will establish themselves in Ontario;
(b) help address Ontario's labour market needs;
(c) improve Ontario employers' competitiveness by helping address their human resource needs;
(d) support investment-attraction and job-creation in the province;
(e) help spread the benefits of immigration to all parts of the province; and
(f) support Francophone immigration to Ontario.
The Applicant’s Proposal
8The Applicant submitted a business proposal on May 5, 2015 by completing an Investment Referral Form. The proposal was initially for an investment of $1.5 million (subsequently increased to $3 million) for 34% equity in Ontario International College (“OIC”), a private secondary school for international students.
9When the Applicant made his business proposal, OINP had three streams. He applied to a stream that, at the time, was called the Business Category – Investor Component. This stream had four stages: the referral stage, investment application stage, nominee application stage, and monitoring stage. The criteria for the referral stage were as follows:
- the proposed investment must be made within the Province of Ontario;
- the proposed investment must be at least $3 million dollars;
- the proposal must involve an active, not a passive, investment; and
- the proposed investment must create at least five permanent, paid, full-time jobs for Canadian citizens or permanent residents in Ontario for the first nominee position, and one additional permanent, paid, full-time job for a Canadian citizen or permanent resident in Ontario for each additional nominee position.
10Provided the Investment Referral form passes the initial screening, OINP then requires that each proposal be endorsed by another Ontario ministry, known as an “Assessing Ministry,” whose mandate is best equipped to review the proposal’s business case and evaluate the proposal’s substantive and technical aspects.
11The Assessing Ministry then requests a complete application package concerning the proposal. In addition to a more detailed explanation of the proposed investment, the Assessing Ministry normally requests that this package include a SWOT analysis (strengths, weaknesses, opportunities and threats analysis), audited financial statements, projected financial statements, details about the nominee positions requested, details about how the investment will be financed, and the titles and responsibilities associated with the proposed local job creation.
12Based on this information, the Assessing Ministry analyses whether, in its view, the proposal would create significant economic benefit for Ontario, and whether it involves a business plan that is reasonable, viable, and properly funded. The Assessing Ministry also evaluates whether the proposal and proposed nominee positions would satisfy basic program criteria. The jobs created by the proposal must not be speculative, and the local and nominee positions must be full-time, permanent positions.
13At this stage, Assessing Ministries can deny proposals based on their merits. The Applicant’s proposal was denied at this stage.
Correspondence Between the Applicant and OINP
14On January 5, 2016, the Applicant provided his completed Investor Application and supporting documents. He provided additional supporting documents on March 4, 2016.
15On August 15, 2016, OINP sent the Applicant a request for information asking for an update on OIC’s business activities and documents to demonstrate completion of the Investor Component criteria. These criteria were as follows: a minimum investment of $3 million, the significant economic benefit to Ontario of OIC’s business, the creation of the required number of new permanent, full-time jobs, the high-skilled and full-time nature of the nominee positions and the necessity of those to the long-term success of OIC.
16On August 15, 2016, the Applicant wrote to OINP requesting an extension of time until October 15, 2016 to respond. OINP agreed to an extension until September 23, 2016. The Applicant subsequently requested, and OINP granted, two more time extensions, the later of which was until October 15, 2016. On October 17, 2016, the Applicant responded and stated that he would raise the salaries of ten newly created positions to the required level. He also attached several documents, including documentation for his $3 million investment and responses to OINP’s previous questions.
17On May 19, 2017, OINP sent the Applicant a procedural fairness letter (“PFL”). The PFL was stated to be a “final opportunity for an applicant to demonstrate that they satisfy the program criteria before a final decision was made.” The PFL outlined four main areas where further information and documentation was required from the Applicant in order to satisfy the program criteria.
18The Applicant made two requests for time extensions to respond to the PFL, which OINP granted. The Applicant provided his response to the PFL on July 31, 2017.
19On March 26, 2018, the Respondent refused the Applicant’s application on the basis that it failed to meet the required minimum program criteria.
Issues
20The issues raised in this application are
(1) Was the Respondent’s decision unreasonable?
(2) Did the Respondent breach procedural fairness?
Court’s Jurisdiction
21This Court has jurisdiction pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
22The parties agree that the standard of review is reasonableness, except on the issue of procedural fairness, where the standard of review is correctness.
Analysis
1. Was the Respondent’s decision unreasonable?
23The Applicant submits that the Respondent ignored key evidence, made unsupported findings of fact, and committed logical and legal errors. The Applicant alleges errors in each of the three grounds on which the Respondent rejected his application. These were: (a) the Applicant had not shown that his proposal would be of significant economic benefit to Ontario; (b) OIC had not fulfilled its promise to create 75 jobs; and (c) OIC had failed to establish the need for the presence in Canada of the Applicant and two more nominee positions, failed to engage in recruiting efforts to hire Canadians or permanent residents for the two nominee positions and had not shown that the proposed nominees were integral to the long-term success of the business. The Respondent maintains that the Respondent’s decision was reasonable.
(a) Significant economic benefit to Ontario
24The Applicant submits that the Respondent’s finding that the Applicant’s proposal did not constitute a significant economic benefit to Ontario was unreasonable. He submits that the Respondent ignored the evidence on this point, namely OIC’s construction costs, its predicted increase in tax payments, the fact that its students would settle in Ontario and thus contribute to the labour market, and the positive impact on tourism that the students’ and faculty’s families and friends would generate on visits.
25The Applicant also submits that the Respondent misconstrued the Applicant’s answer concerning how many students would end up settling in Ontario. The Applicant submits that the Respondent erroneously characterized his response as a “general statement”, when in fact he referred to a report by the Canadian Bureau of International Education.
26The Applicant relies upon the Application Guide for Nominees under Investment Component (“the Guide”) which describes the nature of the program and the eligibility criteria in support of his submission that the Respondent failed to apply its own criteria to his application.
27The Respondent submits that the Guide is very general and it had the discretion to determine whether the application met Ontario’s economic immigration needs and the goals of OINP.
28The Applicant was made aware at the Referral stage of his application that he was not guaranteed approval under the program. The Referral form contains a declaration signed by the applicant or its representative that:
“…the Investor has no entitlement to approval of any eventual application to the Opportunities Ontario: Provincial Nominee Program (the “Program”) in whole or in part by the Government of Ontario. If, in the opinion of the Program, the proposed investment is inconsistent with its objectives, the Program also reserves the right not to refer the Investor to any ministry.”
29The Respondent determined that the proposal to expand an already existing private secondary school did not come within Ontario’s priority businesses. It submitted that there were a number of promises made in the application for which there was no evidence. It submits that the predicted increase in tax payments, the claim that its students would settle in Ontario and thus contribute to the labour market, and the claimed positive impact on tourism that the students’ and faculty’s families and friends would generate on visits were just predictions which did not come to fruition over the 3 year period the application was pending.
30The Respondent submits that it did not just ask for evidence to support the Applicant’s claim that students from OIC would settle in Ontario. It asked for evidence to support the claims made that the proposal would be of significant economic benefit to Ontario.
31In these circumstances, I do not agree that the Respondent ignored “evidence” that OIC constituted a significant economic benefit to Ontario. I agree with the Respondent’s characterization that the Applicant made predictions about its proposal’s economic benefits to Ontario and it was not unreasonable for the Respondent to request evidence in support. I also do not agree that the Respondent erroneously characterized the Applicant’s response concerning how many students would end up settling in Ontario as a “general statement” when it came from to a general report by the Canadian Bureau of International Education and there was no data available about the school’s own students to support the claim when the school had been in existence since 2003.
32The Respondent is entitled to deference on its assessment that the Applicant’s responses did not satisfy the requirement that the proposal would create a significant economic benefit to Ontario.
(b) Job creation
33The Applicant submits that the Respondent arbitrarily imposed a heightened requirement for 75 jobs when OINP only requires that proposals create five jobs for the initial investor nominee, and then one job per additional nominee. Additionally, the Applicant submits that the Respondent erred in finding that the Applicant had promised 75 jobs would be created; the Business Plan referred to 75 staff on OIC’s payroll, not the promised number of jobs which was eight.
34Contrary to the Applicant’s assertion, OIC committed to creating 75 jobs by 2017 in the business plan it submitted to OINP. When the Respondent stated in its PFL that “the Ministry is not satisfied at this time that this commitment will be fulfilled”, the Applicant did not deny that it had promised 75 jobs. In the response to the PFL, the Applicant stated:
“The positions of Vice-President and Human Resources Director have not been filled because of the estimated $6.5 million to $8.1 million, of the expansion project. The same reason applies to the 75 jobs that were included in the business plan and that have not yet been created.”
35While the Applicant was able to demonstrate that eight jobs had been filled (thereby exceeding the minimum job creation requirements of OINP), it was not unreasonable for the Respondent to conclude that the commitment made in the proposal – specifically, that 75 jobs would be created by 2017 – had not been met. There was nothing unreasonable in considering the Applicant’s proposal on the basis of this commitment. The Respondent was entitled to conclude that it was not sufficient to meet the minimum requirements. There was nothing unreasonable about concluding that the Applicant must show that his is one of the most meritorious out of the pool of applications or should be held to his commitment. The Respondent is entitled to deference on its assessment.
(c) Proposed nominees
36The Applicant submits that the Respondent grossly mischaracterized his responses to the first letter and the PFL. It is submitted that this led the Respondent to erroneously find that the Applicant provided contradictory information on the question of whether his proposed nominee positions could be filled by Canadian citizens or permanent residents.
37The Applicant also submits that the Respondent erred in “lumping” the Applicant in with the two rejected nominees. The Applicant argues that under OINP, as the initial investor, he is not required to show that his own presence in Ontario is necessary.
38The Applicant finally submits that the Respondent made a legal error in requiring evidence that efforts had been made to hire Canadians to fill the positions. The Applicant says that requirement runs counter to the purpose of OINP. He submits that if that were a requirement, then the nominees could simply apply to the federal Temporary Foreign Workers Program.
39The Applicant was advised by the Respondent of OINP’s requirements for nominees in a letter dated August 13, 2015:
“4. All nominees, whether investors or not, must be actively involved and essential in the operation of the project. Passive investment is prohibited by the federal government and is not allowed.”
40In a letter dated September 14, 2015, the Respondent advised the Applicant that for the investor seeking nomination to qualify, he or she must take a full-time, permanent position with the project at the management level. He or she must be a key employee who is necessary to the long-term success of the project, and must be actively involved in an ongoing basis in the management of the project.
41In this case, the Applicant’s proposal requested three positions for its nominees,
as follows:
- The Investor nominee (the Applicant) would take the role of Vice-President, Marketing and Development;
- One unnamed worker nominee would take the role of Chief Marketing Director; and
- One unnamed nominee would take the role of IT Systems Manager.
42In the OINP’s Information Request and PFL, further details were requested regarding the proposed nominees on the basis that it did not appear that these positions were necessary to the proposed business, as required by the program.
43The Applicant’s response to the Information Request stated that the IT Manager nominee position was necessary so that the manager has his trust. However, the response also indicated that “there is no doubt that such a position can be filled by a Canadian citizen or permanent resident in Canada…”
44In his response to the PFL, the Applicant stated that the reason he wanted a nominee to fill the position was “based on the notion that he is allowed to do so without going through the normal procedure requiring him to first show recruitment effort in Ontario.” He stated he would be happy to find an IT Manager and Chief Marketing Director in Ontario.
45The decision rejecting the application stated amongst other things:
As for the position of Vice-President, Marketing and Development, the job description provided in Appendix 11 in your response dated July 31, 2017 outlines many marketing activities that appear to overlap with the duties of the Chief Marketing Director. Given the explanation of the Chief Marketing Director’s role, including the necessity to conduct business promotion activities in a number of overseas markets, it remains unclear to the Ministry why the positions of Vice-President, Marketing and Development and Chief Marketing Director are both necessary.
In sum, the Ministry remains unsatisfied that these three positions are all required for the long-term success of the business.
46I do not agree with the Applicant that the above quote from the Respondent’s Decision can be fairly characterized as lumping the Applicant together with the two nominees by requiring him to establish the need of his presence in Ontario. The Respondent concluded that the Applicant had not demonstrated why the nominee positions of Vice-President Marketing (the Applicant’s proposed nominee position) and Chief Marketing Director (one of the three nominee positions proposed) were both required. OINP was not satisfied with the Applicant’s response that he would establish the long-term marketing strategy, but he would not have time to carry out the marketing initiatives. The Respondent is entitled to deference on its assessment of whether the proposed positions potentially leading to nomination for permanent resident status were required for the long-term success of the business.
47At paragraph 59 of his factum, the Applicant states:
Indeed, the very purpose of the Program is to facilitate investors to obtain their permanent residence in Canada in exchange for their investment. To require them to justify their presence in Canada in addition to their investment runs counter to the Program’s objective and also appears to be seriously flawed in logic.
48This argument runs counter to OINP’s requirement that all nominees, whether investors or not, must be actively involved and essential in the operation of the project. Passive investment is prohibited by the federal government and is not allowed. The Applicant’s argument that, even assuming that the nominees needed to prove their value to the investment and failed, the most the Respondent could do was to refuse their applications, not to refuse the Applicant’s, is flawed logic.
49In its decision, the Respondent found that the Applicant provided conflicting answers. When asked why the IT Manager position was necessary to the proposed business, the Applicant first responded that it was necessary for the IT Manager to have his trust and that this person had not been found in Canada. In the same response, he admitted that the position could be filled by a Canadian citizen or permanent resident. In a later response to the PFL, he stated that he wanted to nominate someone to the position to avoid the usual process of having to prove local recruitment efforts. He simultaneously conceded that he would be happy to find an IT Manager in Ontario.
50The Applicant acknowledges that the Guide requires that the presence of the nominees in Ontario be necessary for the success of the business. For the decision to be found unreasonable requires more than the fact that the Applicant provided explanations with regard to the necessity of the nominee positions which he considers reasonable. The Respondent’s decision is entitled to deference.
51This is the first judicial review of a decision involving OINP. When similar immigration nominee programs in other provinces have been judicially considered, the courts have shown deference to the decision-maker.1 In Jian v. Manitoba2, the applicant’s application was denied on the basis that the inconsistencies in her responses did not satisfy the respondent that she would continue to reside in Manitoba as required. The Manitoba Court of Appeal Court found the decision reasonable, stating:
42It is not simply a matter of providing an explanation regarding each of the issues identified in the initial refusal and thereby becoming entitled to be nominated by Manitoba. The Program chooses the applicants that it is persuaded, on a discretionary basis, are most meritorious from within the pool of applicants. Therefore, the fact that she may have addressed the identified concerns does not mean that she was then automatically entitled to be nominated. The applicant must do more than fulfill the minimum requirements. It should be remembered that the question to be decided here is not whether this particular applicant can satisfy the Program that she will remain in Manitoba, but rather, given the pool of applicants, which of them will be most likely to remain in Manitoba and contribute to the economic development.
43As well, the fact that Manitoba was not satisfied from the totality of the evidence that the appellant was likely to continue to reside in Manitoba was one of the possible reasonable outcomes that Manitoba could have come to based on the facts. Whether someone else might have come to another decision is irrelevant so long as there is some basis for the decision and it is not capricious or arbitrary.
2. Did the Respondent breach procedural fairness?
52The Applicant submits that the Respondent did not meet its duty of procedural fairness because it did not inform the Applicant of the case to be met, as required by Baker v. Canada, [1999] 2 S.C.R. 817. The Applicant submits that he was deprived of a meaningful ability to respond to the issues the Respondent raised in the letter and PFL. The Applicant submits that he was only informed in the Decision itself that his investment was required to create 75 jobs. Also, the Applicant did not know that the request in the PFL of May 19, 2017 for the number of graduates settling in Ontario was crucial to the application. Finally, when the Applicant received the final PFL of May 19, 2017, he submits that his application had already been refused on April 25, 2017.
53In Martineau v. Matsqui Institution, [1980] 1 S.C.R. 602, [1979] SCJ No 121, at pp.628-629, the Court held:
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum. That is what emerges from the decision of this Court in Nicholson. In these cases, an applicant may obtain certiorari to enforce a breach of the duty of procedural fairness.”
54In Baker v. Canada, ibid, the Supreme Court of Canada outlined at para. 21-28 the following factors that are relevant to determining what is required by the duty of procedural fairness in a given set of circumstances:
(1) The nature of the decision being reviewed;
(2) The statutory scheme;
(3) The importance of the decision;
(4) The legitimate expectations of the person challenging the decision;
(5) The choice of procedures by the agency in question.
55In terms of the nature of the decision, the decision at issue is far from the judicial process and much closer to the policy end of the spectrum; there is no statutorily prescribed process and no adversarial context. Rather, the decision is purely discretionary. At the time of the Applicant’s application, Ontario exercised no statutory authority or power in administering or making decisions with respect to OINP. OINP was administered pursuant to an agreement between Ontario and Canada and Ontario had the discretion to design and administer the program as it saw fit, subject to the quota on individual nominations imposed by the Federal Government.
56While the decision was undoubtedly important to the Applicant, even if he satisfied the program criteria, there was no guarantee that he would obtain permanent residency, as that power belonged solely to IRCC. In terms of the Applicant’s legitimate expectation, he was notified in the OINP materials that he had no automatic entitlement to nomination or approval under the program, even if he satisfied all program criteria. As stated above, all applicants are made aware that there is no entitlement to an approval of an application.
57Finally, in terms of the choice of procedures by the agency in question, OINP has complete discretion to develop the procedures. There are no statutory requirements mandating a particular procedure.
58Thus, based on the analysis in Martineau and the factors in Baker, the decision at issue resides at the far end of the “discretionary” and “policy-oriented” end of the spectrum. OINP was engaged in the discretionary exercise of applying broad immigration and economic policies to an investment proposal submitted through a program under which applicants have no expectation of approval or success. In such a situation, a lower standard of procedural fairness applies.
59The nature of the program and the eligibility criteria are publicly accessible. The final PFL which was 18 pages long, made it clear that the requested information was required to satisfy the program criteria. The email attaching the PFL provided the Applicant with the following explanation for requesting this information:
“The Ministry sends a Procedural Fairness Letter (PFL) to provide the applicant with a final opportunity to submit information and/or documentation to satisfy the program criteria prior to the Ministry making a decision on an application.”
60The PFL itself was also explicit in advising that there were concerns with the Applicant’s proposal:
Further to our ongoing correspondence and your latest response received in October 17, 2016, the Ministry of Citizenship and Immigration (Ministry) remains concerned that the proposal outlined in Ontario International College (OIC) Inc.’s application does not satisfy several Investor Component criteria.
You have 15 business days from the date of this letter to provide additional information or documentation to demonstrate that your application satisfies the OINP – Investor Component criteria.
61It is clear that the Applicant was well aware of the consequences of failing to satisfy the concerns with the proposal. When the Applicant requested an extension of time to respond to the PFL, he stated:
Further to the above email, the nature, depth and the sheer number of the questions that were raised in the PFL and the serious consequences of failing to alleviate your concerns by what appears to be a final response is also a factor in my request for an extension of time.
62I cannot agree with the Applicant’s claim that he was denied procedural fairness because he was only informed in the Decision itself that his investment was required to create 75 jobs and because he did not know that the request in the PFL of May 19, 2017 for information about the number of graduates settling in Ontario was crucial to the application. The Applicant mischaracterizes these as requirements as opposed to what they really were-claims made by the Applicant in his application in an effort to establish that his proposal would create significant economic benefit for Ontario, for which evidence was lacking to support.
63As to the Applicant’s complaint that he received the final PFL of May 19, 2017 after his application had already been refused on April 25, 2017, this is not correct. On April 25, 2017, the analyst who was assigned to the file, using a template, made a recommendation to the decision maker which was that the proposal did not meet OINP’s criteria. The final decision was rendered on March 26, 2018, well after the July 31, 2007 date of the Applicant’s response to the final PFL.
64This was a discretionary and policy-oriented decision that attracted a low standard of procedural fairness. Throughout the process, the Applicant was fully apprised of the need to satisfy the program criteria and the consequences for failing to do so. He was provided with ample opportunity to demonstrate that his proposal met the program requirements. The fact that he failed to do so does not mean that he was denied procedural fairness.
Conclusion
65In the result, the application is dismissed. In accordance with the parties’ agreement, the Respondent shall have costs in the amount of $5000.
Backhouse J.
I agree _______________________________
Lederer J.
I agree _______________________________
D. Edwards J.
Released: October 19, 2020
CITATION: Wang v. The Ministry of Citizenship and Immigration of Ontario, 2020 ONSC 6058
DIVISIONAL COURT FILE NO.: 246/18
DATE: 20201019
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, D. Edwards JJ.
BETWEEN:
Hongbin Wang
Applicant
– and –
The Ministry of Citizenship and Immigration of Ontario and The Attorney General of Ontario
Respondent
REASONS FOR JUDGMENT
Backhouse J.
Released: October 19, 2020
Footnotes
- Jiang v. Manitoba (Minister of Labour and Immigration) et al., 2014 MBCA 27. See also Rihawi v Province of New Brunswick, 2014 NBQB 199, where the court held that the decision to refuse an application on the basis that the applicant did not have the required business experience, was reasonable.
- Jiang v. Manitoba (Minister of Labour and Immigration) et al., ibid.