When Procedural Fairness Requires a Fairness Letter

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns.  However, there will be a right  to respond under certain circumstances.

Requirement to Provide Complete Applications

Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.

As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents. They do not have to seek clarification or additional documentation, nor provide an applicant with an opportunity to address concerns, when the material provided in support of an application is unclear, incomplete or insufficient to show that someone meets legislative program requirements.

Credibility Concerns

A duty may exist, however, to provide an applicant with the opportunity to respond to a visa officer’s concerns when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

In Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759,  for example, an application was complete.  However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court acknowledged that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, Justice Mandamin, the same Justice as above, also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

Grewal v. Canada (Citizenship and Immigration), 2011 FC 167 provides another example of this principle. There, an application was rejected because of a poor IELTs score.  In brief, the applicant had arranged employment in Canada as a Retail Trade Manager, but the visa officer determined that she would be unable to perform the required duties  of the arranged employment because of her poor IELTS marks. The visa officer refused the application without providing the applicant with an opportunity to respond to this concern.

Justice Noel noted numerous factors that resulted in the officer having a duty to seek additional information from the applicant, including 1) that immigration guidelines specified that additional information would be required for doubts over Arranged Employment Offers, 2) that the language proficiency concern derailed the individual’s entire claim for permanent residence, and 3) that the applicant’s consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, Justice Noel determined that procedural fairness dictated that a fairness letter or interview be provided.

Singh v. Canada, 2010 FC 1306 is a final example.  There, an officer rejected a work permit application because the only documents which the applicant provided to support her claimed employment experience as a Ragi were reference letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was concerned with the veracity of letters, and did not request further documentation.


In 2011, Justice O’Keefe in Kaur v. Canada, 2011 FC 219 provided  an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear. Visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.

Yes, CIC Can Deny PNP Nominees Permanent Resident Visas

Three years ago, I wrote about provincial nominees being denied entry to Canada at Ports of Entry.  It proved to be very informative to many people who did not realize that Citizenship and Immigration Canada (“CIC“) could refuse immigration applications from provincial nominees.  While it is certainly the case that a provincial nomination certificate will generally lead to CIC approving a permanent residence application, this is not always the case.

The Immigration and Refugee Protection Regulations (“IRPR“) provide that an immigration officer may issue a negative substituted evaluation and refuse an application where the officer is not satisfied that a provincial nomination certificate is an appropriate indicator of whether an applicant will be able to successfully establish themselves economically in Canada.  Subsections 87(3) and (4) of the Regulations state that:

Substitution of evaluation

(3) If the fact that the foreign national is named in a [provincial nomination certificate] is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada.


(4) An evaluation made under subsection (3) requires the concurrence of a second officer.

I have reproduced below an excerpt from the recently decided Federal Court decision Kousar v. Canada, 2014 FC 12, which illustrates this point.  Because Kousar was a Federal Court case, CIC’s refusal reasons become part of the public record.  Accordingly, while I was not the lawyer involved with either the initial application or the court case, I was able to obtain and publish the refusal decision.

Kousar involved a refusal based on an officer’s determination that the applicant’s overall IELTS band-score of 3.5 indicated that the applicant was unlikely to establish herself economically in Canada.  The applicant was unable to overcome the officer’s concerns.  The officer’s refusal states:


The issue of CIC refusing provincial nominees due to language concerns despite the provinces having approved their provincial nomination applications has become common enough that there is developing jurisprudence on it.

In Jalil v. Canada, 2015 FC 113, Justice Locke stated that it was appropriate for officers to assess language ability based on the job that was proposed, and not on the ability of the applicant to possibly find work in other areas.  He stated:

The third argument raised by the Applicant in an effort to show that [CIC’s refusal] was unreasonable is that the Officer focused too much on the Applicant’s intended occupation. In my view, the [CIC refusal] was reasonable in this aspect since it was in this intended occupation that the Applicant indicated she planned to become economically established. Other jobs she referred to (e.g. at Tim Hortons or McDonalds) were intended simply to fund the Applicant’s efforts to become qualified in Canada. It does not appear that the Applicant’s plan was to become economically established by virtue of these other jobs.

In Kousar, Justice Zinn stated that an applicant’s statement that they could find part-time or casual work elsewhere should also not be given much weight.  He stated:

In my view, in assessing whether an applicant will be able to become economically established in Canada, it is not inappropriate for an officer to initially focus on that applicant’s training and occupation. The ability of an applicant to perform those duties in Canada, and the job market for those skills, is where economic establishment is most likely to be found. However, I agree with the Applicant that “the Court has not found the legislation to contain a requirement that the person become economically self-sufficient in their qualifying occupation, or that a person has to join and participate in the labor market in a particular occupation when they arrive in Canada:” Rezaeiazar v Canada (Minister of Citizenship and Immigration), 2013 FC 761 para 82. Accordingly, if economic establishment is not found when the person’s qualifying occupation is examined, the officer must look elsewhere. I am satisfied from the passage quoted above, that the officer here did just that; he or she looked at what the Applicant said she would do — “basic odd jobs” — and determined that the Applicant would nevertheless be unable to become economically established.

In my view, it was not unreasonable for the officer to conclude that engaging in basic odd jobs, likely on a part time or casual basis since Ms. Noreen intended to attend University, is not proof of the ability to become economically established. This is explicitly stated in Manual OP 7b, which officers refer to when evaluating applications: “…part-time or casual work would not normally meet the requirement to participate in the labour market in the sense it is intended here” (emphasis added). Part-time work does not qualify as participation in the labour market because “participation in the labour market must be in a way which allows the individual to fully support themselves [sic], not merely contribute to the costs of their upkeep” (emphasis added). It is not unreasonable to conclude that Ms. Noreen would not be able to fully support herself and her three daughters, even with the assistance of her husband, if she is only working on a part-time or casual basis.

Finally, in Chaudhry v. Canada (Citizenship and Immigration), 2015 FC 1072, Justice Southcott summarized the jurisprudence nicely, stating that a visa officer is entitled to focus primarily on the intended occupation of a provincial nominee, because that is the occupation which the applicant proposes will allow him or her to become economically established.  The visa officer should also consider alternative occupations proposed by an applicant to determine whether the applicant could thereby become economically established, in the sense of being economically self-sufficient.

The Upcoming Litigation Over Immigration, the TFWP, and Privacy

Last month, a British Columbia Provincial Nomination Program (“BC PNP”) officer requested that one of my employer clients provide payroll documents for individuals who were not a part of the BC PNP application.  We politely pointed out that the employer could not do this without the third party employees’ consent, as to provide the documents without their consent would be contrary to BC’s Personal Information Privacy Act.  Alternatively, the BC PNP had to at least provide the statutory authority to compel the production of these third party documents  The British Columbia Office of the Information & Privacy Commissioner confirmed that we were correct.  The BC PNP officer respected our position, and the events left me confident in the Province of British Columbia’s respect for personal privacy.

We were of course not the first to navigate the complicated intersection between the government’s administering its immigration programs the right to privacy, which pursuant to numerous Supreme Court of Canada is a quasi-constitutional right.  For example, as noted in the following “Findings under the Privacy Act,” Citizenship and Immigration Canada (“CIC”) recently agreed with the Office of the Privacy Commissioner of Canada that it was an unreasonable breach of privacy for CIC to request the tax information of potential employers of Live-in Caregivers:

Three individuals who wished to employ live-in caregivers from the Philippines complained to this Office that the Canadian Embassy in Manila was asking them to provide sensitive income tax information before it would issue visas to their prospective caregivers. The individuals were worried about sending tax documents containing their social insurance numbers (SINs) and detailed information about their financial situation to a foreign country, especially with identity fraud having become such a major concern.

Citizenship and Immigration Canada (CIC) explained that the Live-In Caregiver Program (LCP) brings qualified caregivers to Canada in situations where there are no Canadians or permanent residents available to fill certain positions. Canadians wishing to hire a caregiver from abroad are required to have their job offer validated through Human Resources Development Canada (HRDC) and to sign a form declaring that they can financially support the person they will employ.

After the job offer was validated by HRDC, the Visa Section of the Canadian Embassy in Manila asked the prospective employers to send their Notice of Assessment for the last two years, their T-4 slips and a letter from their employer confirming employment.

CIC claimed that the information was necessary to determine the bona fides of an employment offer and to confirm that the employers were financially capable of supporting a caregiver.

When questioned about its authority to collect income tax information for the purpose of issuing visas to third parties, CIC referred to section 203 of theImmigration and Refugee Protection Regulations. A review of that document indicated that the visa officer must determine if the job offer is genuine and if the employment of the foreign national is likely to have a neutral or positive economic effect on the labour market in Canada.

In the previous Annual Report, the former Commissioner stated his position concerning the collection of income tax information without legislative authority. He explained that he found it untenable that an income tax return can be demanded from an individual for a purpose other than that required by law. Canadians should never be required to compromise a fundamental right in order to do business with the Government.

This Office presented those arguments to CIC and, as a result, the Embassy in Manila confirmed that it has ceased asking for income tax information for the purpose of issuing visas to live-in caregivers.

I highlighted the above portion of the report because I think it is an especially salient observation.

The Reforms to the TFWP

On June 20, 2014, the Conservative Government of Canada introduced significant reforms to the Temporary Foreign Worker Program (“TFWP”), and released a 41-page PDF outlining the future of the program.  Buried on page 17 of the PDF is the following statement:

Furthermore, as of Fall 2014, ESDC will be able to compel banks and payroll companies to provide bank records and payroll documents to help inspectors verify that employers are complying with the rules of the TFWP.

Apparently the Government of Canada has a sufficient enough distrust of Canadian businesses that it believes it is necessary to bypass employers and require that banks provide employee payroll information instead.

The reason that reform of the TFWP is being delayed to the fall of 2014 is presumably because the Government of Canada needs to amend the Immigration and Refugee Protection Regulations in order to compel banks and payroll companies to disclose their clients sensitive information.

PIPEDA and R v. Spencer

Section 7(3) of Canada’s Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (“PIPEDA”) provides that an organization may disclose information about an individual without their consent if:

(3) … an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;

(b) for the purpose of collecting a debt owed by the individual to the organization;

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province;

Until recently, many, including apparently the Government of Canada, believed that PIPEDA s. 7(3) provided the legislative authority for the Government of Canada to compel organizations to disclose personal information of third parties without their consent.  However, on June 13, 2014, the Supreme Court of Canada (the “SCC”) held in R v. Spencer, 2014 SCC 43 (“Spencer“) that the right to privacy in Canada is stronger than that.  

In Spencer, the Saskatoon Police Service relied on s. 7(3)(c.1)(ii) of PIPEDA to obtain without a warrant account information about an individual from an Internet Service Provider.  The accused argued that this breached s. 8 of the Canadian Charter of Rights and Freedomswhich provides that:

Everyone has the right to be secure against unreasonable search or seizure.

As noted by the SCC in Spencer:

Under s. 8 of the Charter , “[e]veryone has the right to be secure against unreasonable search or seizure.” This Court has long emphasized the need for a purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society.

In determining that s. 7(3) of PIPEDA did not authorize the police to compel production of third party documents, the Supreme Court of Canada determined that:

“Lawful authority” in s. 7(3) (c.1)(ii) of PIPEDA  must be contrasted with s. 7(3) (c), which provides that personal information may be disclosed without consent where “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records”. The reference to “lawful authority” in s. 7(3) (c.1)(ii) must mean something other than a “subpoena or warrant”. “Lawful authority” may include several things. It may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy. It may refer to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law: Collins. As the intervener the Privacy Commissioner of Canada submitted, interpreting “lawful authority” as requiring more than a bare request by law enforcement gives this term a meaningful role to play in the context of s. 7(3)  and should be preferred over alternative meanings that do not do so. In short, I agree with the Ontario Court of Appeal in Ward on this point that neither s. 487.014(1) of the Code, nor PIPEDA  creates any police search and seizure powers: para. 46.

The notion that “Lawful Authority” requires exigent circumstances or that a law be “reasonable” will likely be a significant hurdle for the Government of Canada to overcome should it actually try to compel banks to provide their clients information without consent.

The Erosion of Your Privacy

Of course, this somewhat surprising flippant attitude towards privacy is not only occurring in the immigration context.  In the tax context, the 2014 omnibus Budget Implement Act which will require Canadian banks to provide their customers’ account information to the United States Internal Revenue Agency.  As Professor Arthur Cockfield recently wrote in the Globe and Mail, the threats to the privacy of millions in Canada risks being compromised:

The proposed law applies to a broad class of U.S. expatriates and Canadians who could now be subject to fines, interest penalties, criminal sanctions, and denial of entry into the United States. Under the proposed approach, Canadian banks will have to look to their records on birth places, residences, Social Insurance Numbers and other information to see if any “U.S. person” holds an account. “U.S. person” is a defined term that includes many more people in Canada than almost anyone realizes. It includes U.S. citizens and non-citizens with various personal or economic ties to the United States (for example, former green card holders now residing in Canada).

Canadian snowbirds who travel to the United States for part of each year may also be caught in the tax web if they are deemed to be U.S. persons under facts and circumstances tests. So-called ‘accidental Americans’, including Canadians with U.S. citizen parents who have never stepped foot in the United States, are also swept up in the net. Finally, any Canadians who jointly hold accounts with a U.S. person for family or business purposes will see their sensitive financial information shipped south of the border too.

All Canadian businesses that are partly owned by a “U.S. person” will also have their sensitive financial account information disclosed to the IRS. This includes confidential information that, if improperly revealed to competitor firms, could harm the ability of Canadian businesses to compete against U.S. firms. In light of recent disclosures surrounding U.S. state-sponsored corporate espionage, the Canadian business community should be yelling to the rooftops about this commercial confidentiality concern.

The concerns that I have over the continued erosion of privacy, and the legislative procedural manner in which it is occurring, are perhaps best summarized by Chantal Bernier, Assistant Privacy Commissioner of Canada, who, when speaking before the Senate Standing Committee on Transport and Communications said that:


With respect to Parliamentary oversight, one of our consistent concerns about the API/PNR program is the lack of transparency and the degree to which the details of the program are contained in regulations and are negotiated secretly with other countries.  While we understand that international negotiations require a degree of secrecy, transparency requires that secrecy be kept to a minimum so that law abiding citizens have a proper understanding of the system put in place and the level of intrusion that is proposed.

Fundamental questions about the API/PNR Program such as the data elements that are provided to CBSA, how this information can be used, with whom it may be shared and how long it is retained cannot be found in the Customs Act.  To a large degree, these matters have been shaped by negotiations with other jurisdictions, most notably with the European Union.

A new PNR Agreement is currently being negotiated with the European Union.  Based on the Agreement between the EU and US that was approved earlier this year, we are concerned that, under a new Canada-EU Agreement, the amount of information collected by CBSA will increase, it will be used for more purposes, and it will be retained longer.

In doing research for this blog post,I stumbled upon the following report from the Office of the Privacy Commissioner of Canada, which gives rise to additional concerns.

A Canadian woman wanted to hire a Bangladeshi man as a live-in caregiver for her child. The man applied for a work permit at the Canadian High Commission in Dhaka and supplied all the necessary documents.

To strengthen the man’s application, the woman asked her MP to send a letter of support to the High Commission. She also asked the MP to attach to his letter copies of personal documents such as her passport and federal income tax assessment, which included her date of birth, Social Insurance Number and other personal information.

The MP’s office forwarded all this information to officials of Citizenship and Immigration Canada at the Canadian High Commission in Dhaka.

The man’s application for a work permit was refused. Following standard practice, the Immigration official returned to the man the entire contents of his file, which included not only his documents, but also the woman’s personal documents sent by the MP’s office.

According to the woman, the man then shared her personal information with family and friends. She was concerned that this disclosure could result in identity theft or jeopardize her safety if she travelled to Bangladesh. She complained to our Office.

Citizenship and Immigration acknowledged that it did not have the complainant’s consent and that her personal information should not have been disclosed to the man. At our request, officials apologized to the complainant in a letter.

Procedural Fairness Owed by Provincial Nomination Programs to “Fraudulent” Consultants

The Saskatchewan Queen’s Bench (the “Court“) in Kaberwal v. Saskatchewan (Economy), 2013 SKQB 244 has released a decision clarifying the procedural fairness owed by provincial nomination programs to immigration representatives accused of fraud.  To the best of my knowledge, it is the first decision on this issue.

The Facts of the Case

On December 31, 2012, Saskatchewan’s Ministry of Economy, Immigration Services (the “Ministry“) suspended an immigration consultant’s (the “Consultant“) right to submit applications to the Saskatchewan Immigration Nominee Program (“SINP“) for a period of two years.  SINP officials accused the Consultant of fabricating job offers for employers who informed SINP that they never saw or signed the job offers that the Consultant submitted to SINP without their knowledge.

The Ministry sent the Consultant a letter which, amongst other things, stated the following:

We have reviewed seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have you listed as the third party representative. Part of the review of the application includes verifying the validity of the documents and information included in the application. As a representative, you have signed and agreed to the Saskatchewan Immigrant Nominee Program (SINP)’s Code of Conduct for Representatives which states that you will provide truthful, accurate and complete information to the SINP and that you will be personally accountable to the SINP for all aspects of the application.

Our view of job offers from Saskarc Industries Inc. included contacting the company to confirm their validity. Our conversations with Saskarc revealed that they did not issue these seven job offers and they are not written in their standard format. Furthermore, they have indicated that these job offers are fraudulent.


We would like to give you an opportunity to respond to this information. We will afford you 30 days from the date of this letter to make any representations in this regard and to provide any reliable and verifiable evidence that you did not provide fraudulent information to the SINP. If it is determined that you have submitted fraudulent information to the SINP, you will be unable to act as a representative of any person(s) wishing to access our programs and services, including the SINP, for a period to be determined by myself. Additionally, all applications that are currently in process that list you as a third party representative will be returned and those that have been nominated will be reviewed to ensure that all information submitted is bona fide.

The Consultant, who did not retain counsel, responded, stating that:

I am writing in response to your letter dated August 2012 regarding the employer SASKARC INDUSTRIES INC.

Carl was HR of Saskarc Industries a year ago and he signed the offer for Welders and Fitters and at that time he was looking for 7-8 welders fitters and after that I didn’t contacted (sic) the company as we submitted the files and we are waiting for any reply from SINP office. And in second week of August 2012 I called the company to get an update and to find out if offers were still valid than (sic) I came to know that Roberta is HR of the company. Then I talked to Roberta and explained everything about the offers signed by Carl and I adviced (sic) her to do online registration and she did online registration as well.

Then on August 19th I left for India and when I came back I got this letter from your office. When I contacted Roberta she explained (sic) me that she was not aware of offers given by Carl and she signed 12 more offer (sic) and out of 3 or 4 already got nominations.


The format of offer letters was different because we always used this format for all files submitted by our office to SINP, which Carl had signed and the offer given by Roberta might have different format.

On December 31, the Ministry informed the Consultant that SINP was prohibiting the Consultant from submitting applications for two years.  The Ministry wrote:

Thank you for responding to the letter sent to you by the Program Integrity Unit (PIU) dated August 14, 2012. The letter was issued in order to give you the opportunity to respond to PIU findings that seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have been found to be fraudulent.

The PIU has confirmed with Saskarc Industries that while they did have a signed agreement with you, they did not sign these job offers and that they are fraudulent. Furthermore, they have indicated that all job offers issued by their office are on letterhead.

Based on this information the PIU has determined that you knowingly submitted fraudulent job offers to SINP. As a result of the foregoing, we will not accept any applications for any other programs and services, including the SINP, where you are indicted (sic) as the representative for a period of two years from the date of this letter.

SINP then informed the Consultant that applications in which she was the representative that SINP was currently processing would be returned to the prospective nominees with a letter informing the individuals that SINP was no longer accepting applications filed on their behalf by the Consultant.

No oral or in-person hearing was conducted by the Ministry.

The Consultant testified that the Ministry’s decision cost her 70% of her business.

Did the Ministry breach the duty of procedural fairness owed to Kaberwal by failing to hold an oral hearing before making its decision?

The Consultant argued that the Ministry had an obligation to hold an oral hearing before rendering its decision and in failing to do so breached the duty of fairness owed to her.  The Ministry argues that the Consultant was not entitled to an oral hearing.

The Court confirmed that the audi alterum partem principle, which requires a decision maker to provide adequate opportunity for those affected by a decision to present their case and respond to the case against them, does not confer an unqualified right to an oral hearing unless otherwise stipulated by statute.  Rather, what is required is that parties be given the opportunity to put forward their arguments.  Furthermore, unless otherwise prescribed by statute, the content of input rights (i.e. written submissions vs. oral hearing) is at the discretion of the decision-maker subject to the supervisory role of the court to review the propriety of that choice.

Citing Baker v. Canada, the Court noted that the factors relevant to the scope of participatory rights include:

1) the nature of the decision being made and the process followed in making it;

2) the nature of the statutory scheme;

3) the importance of the decision to the individual affected;

4) the legitimate expectation of the person challenging the decision in relation to the procedure to be followed, and

5) the choice of procedure made by the agency itself and institutional constraints particularly where the statute limits the decision-making ability to chose its own procedures.

The Nature of the Decision

The Court found that generally where the credibility of witnesses is considered relevant, its importance to the process often weighs in favour of holding an oral hearing.  If a tribunal’s decision may turn on findings of fact made from conflicting evidence or on the credibility of witnesses, there may be a right to an oral hearing and cross-examination of those witnesses. Where only the credibility of the individual affected is in issue, that party should be heard orally, even though the rest of the hearing may be conducted in writing.  If none of the important facts are in dispute and there is no “accuser” to be questioned, an oral hearing may not be necessary. If there is sufficient evidence on which to make a decision, other than the evidence on which credibility is an issue, an oral hearing is not necessary.

In this case, the Court held that the allegation of fraud was a serious matter based on credibility, that it is generally considered difficult to prove, and that this favored an oral hearing.

The Statutory Scheme

As noted by Court, SINP has no statutory basis and its officials do not exercise any statutory authority.  Its processes, forms, guidelines, criteria, requirements, evaluation and decision making, etc., are all created and governed by broad based ministerial policy.  As such, there is no statutory scheme applicable to SINP and thus no statutory appeal or other safeguarding processes open to the Consultant. The decision rendered was final and decisive, and this favored the granting of an oral hearing.

The Importance of the Decision

There was no question about the importance of the decision to the Consultant.  She lost 70% of her business, and her reputation was ruined.  In the legal and consulting industry, a poor reputation undermines both present and future relationships, referrals and business interests.

Legitimate Expectations

In the absence of a statutory scheme, the Court found that it was unclear what process the Consultant expected the Ministry to follow. There appeared to be no known track record for how a Provincial Nomination Program would conduct an investigation, receive, assess and weigh information provided by those affected, or how to resolve discrepancies of evidence.

Limitations Imposed by Statute

The Court reiterated that despite there being no statutory scheme governing investigations, third party allegations, degree of participatory input and ultimate decision making for the Ministry, the Ministry consciously choose to follow the written submission format without any direct in-person meetings.  There was no suggestion the Ministry possessed any particular expertise in developing its choice of process.


The Court stated:

Balancing the aforementioned factors, [the Consultant] should have been given an in-person hearing. It is unnecessary for the format of the actual hearing to conform to the traditional trappings of the judicial process so long as [the Consultant] had a meaningful opportunity to challenge the evidence and credibility of Carl Hodgson and Roberta Taylor, and a meaningful opportunity to respond.  It was equally important for Kaberwal to have been informed of the precise evidence relied upon by the Ministry in making its findings of fraud.

Interestingly, the Court also found that it could not order SINP to issue a retraction letter to the Consultant’s clients.

PNP Participants Denied Entry at the Border

During the past couple months, our office has received several frantic phone calls from people (often real estate agents or bankers) telling us that a family who was immigrating to Canada under a Provincial Nominee Program was detained by the Canada Border Services Agency
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Manitoba PNP Business Processing Times Increase

On December 15, 2010, the Manitoba Provincial Nominee Program for Business (MPNP-B) posted current processing times. As the table below demonstrates, for Chinese applicants, the wait time for an exploratory visit is huge.
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BC PNP Suspends Fast-Track Option

Demonstrating once again why it is important for representatives to contain “change of law” clauses in their retainer agreements, the British Columbia Provincial Nominee Program (“BC PNP“) has effective immediately suspended the Fast Track nomination option in the business immigration stream.

The suspension will affect applications in processing.  Applicants with applications in processing who as of November 15, 2012, had not signed performance agreements with the Province of British Columbia (the “Province“) will not be eligible for the Fast Track option. Such applicants can either (1) continue under the regular nomination process, or (2) withdraw their application and receive a refund of their application fee.

Through the Fast Track option, BC PNP business applicants who obtained PNP supported work permits and who had arrived in British Columbia to set up their respective businesses could request immediate nomination for permanent residence if they posted a $125,000 performance bond with the Province. The bond was returned without interest to Fast Track nominees when they fulfilled their respective PNP performance agreements, but was forfeited by nominees if they failed to meet their performance obligations.

According to the Province, since 2007, only 26 Fast Track nominees successfully completed their performance agreements, compared with 261 business applicants nominated through the regular nomination process who fulfilled their performance agreements.

As any British Columbia immigration lawyer can confirm, since the Government of Canada suspended the Federal Immigrant Investor Program, the amount of inquiries about the BC PNP business applicants Fast Track Option have sky rocketed.  Many of those inquiries came from individuals who clearly had no intention to actively manage a business in British Columbia.

Indeed, because of this, those law firms (such as ours) which enjoyed meeting with and representing entrepreneurs who were passionate about their business idea in British Columbia will likely welcome the changes that the BC PNP makes to preserve the integrity of the business program.

The BC PNP has produced a FAQ on the Fast Track Suspension, which can be found here.


Does the New Central Intake Office PNP Check-list Signal an Upcoming Wave of Negative Substituted Evaluations?

On December 1, 2011, Citizenship and Immigration Canada released a new document check-list for people intending to apply for permanent residency as provincial nominees.  Gone are the days when a province’s nomination certificate demonstrated that an individual could establish themselves economic establishment in Canada.  Now, in addition to the nomination certificate, applicants will have to submit copies of educational diplomas and transcripts, as well as reference letters from all employers for the past ten years.

Sections 3.6-3.8 of Annex B of the Canada – British Columbia Immigration Agreement states that:

3.6  Canada agrees to process economic class applicants nominated for permanent resident status by British Columbia on a priority basis and as expeditiously as possible with a view to achieving Canada’s annual levels plan.


3.7  Canada will consider a nomination certificate issued by British Columbia as evidence that British Columbia has conducted due diligence in exercising its authority to assess and nominate candidates pursuant to section 3.1, 3.2 and 3.3 of this Annex.


Section 3.8 goes on to note, however, that Canada retains the right to substitute a negative evaluation if it disagrees with the province’s assessment.  It states:

3.8  British Columbia is responsible for conducting the due diligence to ensure that the applicant has the ability and is likely to become economically established in British Columbia.  Notwithstanding the foregoing, Canada retains the right to substitute its evaluation of the applicant’s ability to become economically established in Canada pursuant to subsection 87(3) of the IRPR.  In exercising its responsibilities under sectionsC.2 and C.4 of Appendix C of this Annex, Canada may also seek clarification from British Columbia on its assessment, the record of which is required under sections 3.4 and 5.3.4 of this Annex. The visa officer may request additional documentation from the nominee which supports the nominee’s ability and likelihood to become economically established in British Columbia.


The new check-list suggests that Citizenship and Immigration Canada will now automatically be asking for additional documentation from all nominees to show that they are likely to become economically established in British Columbia.

So the questions have to be asked.. does Citizenship and Immigration Canada no longer think that BC is conducting proper due diligence? And, are we about to see a wave of negative substituted evaluations?