On March 11, 2024, Federal Court of Appeal Justices Anne Mactavish, Donald Rennie and Siobhan Monaghan dismissed the appeal of Canadian permanent residents Michael Brink and Fuh-Chii Yang from a Federal Court decision that refused to certify their case as a class proceeding, and struck out their claims that alleged discrimination based on the Charter s. 15 enumerated ground of “national or ethnic” origin: Brink v. R., 2024 FCA 43.
Federal Court Justice Russel Zinn
"Although the plaintiffs have identified that the group required to pay fees to obtain permanent resident status and Canadian citizenship is treated differently than others, that distinction is not based on any prohibited ground of discrimination," Justice Zinn held. "As a consequence, the plaintiffs have failed to establish that their statement of claim discloses a reasonable cause of action," he concluded, while also noting that "counsel for the parties are to be credited with the thoughtfulness of their written and oral submissions on both motions."
The two categories of constitutionally impugned fees were the $500 “Right of Permanent Residence Fee” (RPRF) under the immigration regulations, charged to foreign nationals seeking permanent residence status, and the $100 “Right to Be a Citizen Fee” (RCF) fee to be paid under the citizenship regulations “for the right to be a citizen.” The proposed class is all individuals not born in Canada, and who between Sept. 8, 2014 until the date of the court’s trial judgment, have had to pay the fees. In mid-2021 the plaintiffs estimated the size of the class at close to two million people: the permanent resident subclass at 880,647 individuals, and the citizens subclass at 1,040,635 individuals.
On appeal, the Federal Court of Appeal did not accept the applicants’ submission that they are alleging discrimination based on “citizenship.” Jurisprudence has recognized citizenship as an analogous ground under s. 15 on the basis that citizenship is, at least temporarily, a personal characteristic that is not alterable by conscious action and, in some cases, is not alterable except at an unacceptable cost.
However, in the Brink case, members of the proposed class are subject to the impugned immigration fees “because they are individuals who are actively seeking to change their legal status,” Justice Mactavish wrote. “This relates to their immigration status rather than their place of birth or their national or ethnic origin, or, indeed, to their citizenship (emphasis in the original),” the judge held for the appeal panel.
Nor did the Federal Court err in denying the appellants leave to amend their statement of claim, the appeal court ruled in its 43-page judgment.
Citing Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711, Justice Mactavish highlighted the top court’s statements that it is “the most fundamental principle of immigration law” that non-citizens do not have an unqualified right to enter or remain in Canada and that Parliament has the right to adopt an immigration policy and enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in the country.
“Requiring that applicants who wish to immigrate to Canada or become Canadian citizens pay certain fees is within this domain of policy making, as long as such individuals are not targeted in a discriminatory fashion,” Justice Mactavish reasoned. “Consequently, it is plain and obvious that no reasonable cause of action based on s. 15 is possible based on citizenship. . .”
The appellants contended that subjecting them to fees that individuals born in Canada are not is discriminatory and contrary to substantive equality and that class members are entitled to restitution of the unconstitutional fees.
Their statement of claim refers to the impugned fees as “taxes,” and argues the fees are “akin to ‘head taxes’,” the Federal Court of Appeal said. The appellants also maintain that whether the impugned fees are characterized as a tax or as a regulatory charge does not change the fact that they are discriminatory and unconstitutional.
The appellate panel found the “head tax” analogy inapt.
“The distinction between having a particular place of birth and being born outside Canada writ large illustrates the flaw in the appellants’ ‘head tax’ analogy,” Justice Mactavish wrote. The appellants “attempt to draw an analogy between the fees at issue in this case and the shameful practice in Canada’s past where migrants from China (and no other country) were required to pay a monetary amount in order to come to Canada.”
“What was particularly offensive about the head tax was the singling out of would-be immigrants from one country,” Justice Mactavish said. “Not only was the policy racist in origin, it perpetuated negative stereotyping of Chinese individuals and clearly communicated to them (and others) that they were less worthy of being admitted to Canada and less welcome in this country than would-be immigrants from other countries. A more apt analogy to a head tax could arise if RPRF and RCF fees were only charged to people born in Germany or Somalia or Vietnam who were seeking permanent residence in Canada or Canadian citizenship,” she explained. “That is not, however, what we are dealing with here. The fees are payable by anyone — whatever their national origin, ethnic origin or place of birth — who seeks permanent residence in Canada or Canadian citizenship.”
Justice Mactavish also reasoned that the Federal Court below was bound by the Federal Court of Appeal’s ruling in Pawar v. Canada (1999), 247 N.R. 271 (leave to appeal to the Supreme Court of Canada denied), which held that “being born abroad” is not embraced by the s. 15 enumerated ground of “national and ethnic origin.” Pawar established that being born abroad is also not an analogous ground under s. 15, nor do “people born abroad” form “a discrete and insular group who have suffered historical disadvantage because of immutable personal characteristics or vulnerability to political and social prejudice.”
“In accordance with [the] doctrine of vertical stare decisis, this court’s decision in Pawar was binding on the Federal Court,” Justice Mactavish held. “Even though the Federal Court did not mention Pawar in its analysis, the court was nevertheless bound to find that ‘being born abroad’ was not an analogous ground for the purpose of s. 15 of the Charter, nor was it subsumed within the enumerated grounds of national or ethnic origin. As a result, it was plain and obvious that the appellants’ claim could not succeed.”
Complying as well with “horizontal stare decisis,” Justice Mactavish said the appellants did not give the appeal court panel “a compelling reason that would justify departing from this court’s decision in Pawar. This court is thus required to conclude that individuals’ place of birth outside of Canada is not embraced by the concept of ‘national and ethnic origin’, and that ‘being born abroad’ is not an analogous ground under s. 15 of the Charter.”
The judge distinguished Brink from the situation in Canadian Doctors for Refugee Care v. Canada (AG), 2014 FC 651, in which Justice Mactavish, then of the Federal Court, said that the term “national origin” is broad enough to include people who are born in a particular country, as well as people who come from a particular country. Canadian Doctors was cited by Ontario’s Superior Court which last January declared contrary to Charter s. 15 and s. 6 (mobility rights) a Citizenship Act provision that purported to prevent Canadian citizens born abroad from automatically passing citizenship on to their children who were also born abroad — the so-called “second-generation cut-off” for passing on Canadian citizenship: Bjorkquist et al. v. A.G. Canada, 2023 ONSC 7152.
“The appellants say that Bjorkquist is relevant to this appeal in that it recognizes that being born outside of Canada (regardless of the country) is covered by the enumerated ground of ‘national origin’” under Charter s. 15, Justice Mactavish observed. “However, unlike the situation in Bjorkquist, where the differential treatment applied only to individuals born outside Canada, the fees at issue in this case are payable by anyone — wherever they were born (including in Canada) — who applies for permanent residency or Canadian citizenship. The legislation does not differentiate between applicants born in Canada and those born outside of Canada, and the appellants have not argued that the law has a differential impact on applicants born outside Canada relative to those who were born in this country.”
The Federal Court of Appeal dismissed the appeal but did not order costs with respect to the appellants’ certification motion. It also made no costs order in relation to Canada’s motion to strike.
At press time, counsel were not immediately available to comment. Claire Hunter of Hunter Litigation Chambers in Vancouver was lead counsel, who with Kevin McLaren, Alexa Majidi, Serena Cheong and Simon Lin represented the appellants.
Marina Stefanovic and Rachel Hepburn represented the respondent Crown.
Photo of Federal Court Justice Russel Zinn: Balfour
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