Last Updated on August 10, 2011 by Steven Meurrens

Clients often come to me having signed documents that they do not understand.  Sometimes these documents are admissions of certain actions.  Other times they are documents stating that they waive their appeal right.

The Federal Court has recently released a decision affirming that such signatures may not be legally binding on the individual.

In Martinez Rodriguez v. Canada (Citizenship and Immigration), an individual wanted to visit Canada.  She had previously been a permanent resident, but left Canada at the age of six.   She returned twice, each time obtaining a temporary resident visa.  She applied for a visa to visit a third time.  During the processing of her application, the immigration officer noticed that she was in fact still a resident, but was in breach of the residency requirements.  The officer, apparently trying to facilitate her visit to Canada, had the client sign a document whereby she acknowledged that she had lost her permanent resident, and that she voluntarily waived her appeal right.

The applicant then appealed the lost of her permanent resident status to the Immigration Appeal Division.  They refused the appeal, saying that she could not appeal because she had signed a document waiving her appeal right.

The Federal Court overturned the Immigration Appeal Division’s decision.  Justice Harrington, apparently dusting off his first year law school notes, cited Lord Denning in noting that:

Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on “inequality of bargaining power.” By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract upon terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. When I use the word “undue” I do not mean to suggest that the principle depends on proof of any wrongdoing.

Justice Harrington concluded that the inequality of bargaining power voided the applicant’s voluntarily waiver of her appeal rights.  Importantly, he noted that this was not a case where an immigration officer was being unfair or cruel.  Indeed, Justice Harrington noted that the visa officer likely thought that he/she was doing the applicant a favor.  However, Justice Harrington went on to note that:

While the visa officer may well have thought she was doing Ms. Martinez Rodriguez a favour, since she was not entitled to a travel document as a permanent resident, if the only alternative was to renounce that status, she should not have been given that opportunity. She should have been sent back to El Salvador, and given a full opportunity to consider her options and to take advice. Renunciation of permanent resident status is a very important step in a person’s life. It should not be decided on the spur of the moment.

A refreshing decision, and one that introduces an interesting and fresh element of contract law into immigration law.