Yesterday I received an e-mail from an individual in Nigeria. He had submitted his application to the Federal Skilled Worker Program (“FSWP“) one week after the 2008 Ministerial Instructions which limited the number of occupations eligible for the program. In his e-mail, he said that the abrupt changes without any advanced warning were unjust and that he “had expected” that Canada would be “more fair”. He asked whether a “legal case” could be made out of this breach of his expectations.
The concern that the Canadian immigration processes failed to meet reasonable expectations is common. There have been numerous court cases about the issue, and the notion of “legitimate expectations” has become a subset of the principle of procedural fairness. However, much to the disappointment of many people applying for permanent residency, appearing at hearings, or otherwise interacting with the Canadian immigration system, the principle of “legitimate expectations” is not as broad as they might hope.
The Doctrine of Legitimate Expectations
In Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, the Supreme Court of Canada articulated the following principles of legitimate expectation:
- The legitimate expectation may arise from some conduct of the decision-maker or some other relevant actor.
- The practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified, meaning to the level that had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.
- A legitimate expectation may arise where a public authority or agency:
- has made representations about the procedure it will follow in making a particular decision;
- has consistently adhered to certain procedural practices in the past in making such a decision;
- has made representations with respect to a substantive result to an individual; or
- has created administrative rules of procedure or a procedure on which the agency had voluntarily embarked in a particular instance.
- Legitimate expectations cannot give rise to substantive rights, only procedural remedies.
The doctrine of legitimate expectations is a procedural fairness doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights. It therefore cannot be used to counter Parliament’s clearly expressed intent: (Canada (Minister of Employment and Immigration) v. Lidder,  2 F.C. 621 (C.A.). Accordingly, the Immigration and Refugee Protection Act (the “Act“) and the Immigration and Refugee Protection Regulations (the “Regulations“) will supersede any common-law legitimate expectations where there the law and the expectation are inconsistent.
For example, if there is a change in the Act or the Regulations, the doctrine of legitimate expectations cannot be used to attack transitional provisions: Dela Fuente v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2006 FCA 186. This issue arose in Dela Fuente when an individual who had applied under the old immigration act suddenly found himself subjected to the new one, resulting in him being ineligible. Although he had a legitimate expectation when he submitted his application that the law at the time would apply, this expectation did not trump the clearly defined transition rules of the new Act.
Just like with the doctrine of estoppel (the legal notion that precludes a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth by his own deed, acts, or representations), a public authority may be bound in its undertakings as to the procedure it will follow. However, the public authority, whether it is a visa office, or the Immigration and Refugee Board, simply cannot place itself in conflict with its duty and forego the requirements of the law.
Finally, the doctrine of legitimate expectations does not dictate a result. It can create a right to an applicant to make representations, be provided the opportunity of a hearing, or to be consulted. It does not fetter the decision of decision makers following the representations or consultation: Reference re Canada Assistance Plan (B.C.),  2 S.C.R. 525.
When a Legitimate Expectation Does Exist
If a legitimate expectation is found to exist, and this expectation does not contradict statutory law, then this legitimate expectation will affect the content of the duty of fairness owed to the individual or individuals affected by the decision.
If the claimant has a legitimate expectation that a certain procedure will be followed, then the duty of fairness requires that this procedure be followed. Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded. It may, for example, require a hearing, or Citizenship and Immigration Canada providing the applicant a chance to remedy minor concerns.
This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers. It will be generally unfair for decision makers to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights: Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817
The recent case of Paul v. Canada, 2010 FC 1075 (“Paul“) is an example of this. In Paul, the visa office specifically stated that a document was not required. The office then rejected the applicant’s application on the basis that the applicant had not submitted that very document which the office had said was not required. The Court ruled that this was a breach of procedural fairness, ordered the embassy to re-evaluate the application, and even ordered the government to pay some of the applicant’s legal costs.
Another recent case was Albaharam v. Canada (Minster of Citizenship and Immigration), 2010 FC 1153. There, a refugee board member stated that there would be an additional hearing to address outstanding issues. Prior to that second hearing, the member abruptly denied the refugee claimant’s claim. The Court noted that this breached the doctrine of legitimate expectations.
Finally, the interests underlying the legitimate expectations doctrine are the non-discriminatory application in public administration of the procedural norms established by past practice or published guidelines, and the protection of the individual from an abuse of power through the breach of an undertaking. These are among the traditional core concerns of public law. They are also essential elements of good public administration. In these circumstances, consultation ceases to be a matter only of political process, and hence beyond the purview of the law, but enters the domain of judicial review. Apotex Inc. v. Canada (Attorney General),  4 F.C. 264
Individuals going through an immigration process should take detailed notes and be aware of any and all representations made to them during the process. This includes what is stated on government websites, what is written in letters, and what is said during interviews. Any of these representations can give rise to a legitimate expectation that may later be useful. However, they should also be aware that such representations cannot trump the law. Accordingly, it is important to be familiar with and understand the Act and Regulations, for these trump any government representations.