Last Updated on January 2, 2019 by Steven Meurrens
Given the frequency with which Immigration, Refugees and Citizenship Canada (“IRCC“) updates its checklists, forms and website
it is not surprising that people often find some of IRCC’s content to be
The Federal Court of Canada, citing rule of law principles, has stated that where IRCC content is objectively unclear that flexibility is required. In Lim v. Canada (Minister of Citizenship and Immigration), 2005 FC 657, Justice von Finkenstein stated that:
The actions of CIC in this instance lack common sense. As Muldoon J. so aptly put it in Taei v. Canada (Minister of Employment and Immigration),  F.C.J. No. 293 (dealing with a refugee claim rather than a live-in caregiver) “(t)he rule of law does not require that statutes be read and interpreted in a robotic mindless manner. Common sense has not been abolished either by the Charter or by statute”. It is also useful to recall the admonition of Jerome A.C.J. in Thakorlal Hajariwala v. M.E.I.  2 F.C. 79 that ” the purpose of the statute [then the Immigration Act which is now the Immigration and Refugee Protection Act] is to permit immigration, not to prevent it.”
In Jalota v. Canada (Citizenship and Immigration), 2013 FC 1176, Justice Phelan criticized IRCC for refusing a restoration of student status application because the applicant did not provide financial documents, even though the checklist did not mention such a requirement. Justice Phelan stated:
The Respondent’s own checklist does not ask for any financial information per se as part of a restoration application, although it is listed as a requirement for study permit applications. For restoration applications, the key requirement is production of the documents related to loss of status. If the Respondent wished to have financial or other documents, it should have asked for them either in the Checklist or by additional request. Any confusion in the Checklist lies at the feet of the Respondent and it is a further breach of procedural fairness to have a misleading document supplied to the public.