Last Updated on July 19, 2011 by Steven Meurrens
Under the Federal Skilled Workers Program, an eligible applicant is required to accumulate 67 points in order to immigrate. Points are awarded according to a variety of factors, including age, education, adaptability, language and experience.
Regarding adaptability, section 83(1)(b) of the Immigration and Refugee Protection Regulations provides that:
83. (1) A maximum of 10 points for adaptability shall be awarded to a skilled worker on the basis of any combination of the following elements:
(b) for any previous period of study in Canada by the skilled worker or the skilled worker’s spouse or common-law partner, 5 points;
Section 83(3) clarifies what “periods of study” are eligible for points.
(3) For the purposes of paragraph (1)(b), a skilled worker shall be awarded 5 points if the skilled worker or their accompanying spouse or accompanying common-law partner, by the age of 17 or older, completed a program of full-time study of at least two years’ duration at a post-secondary institution in Canada under a study permit, whether or not they obtained an educational credential for completing that program.
In Patel v. Canada, 2010 FC 1025, and 2011 FCA 187, the issue of whether a visa officer should aggregate programs of study that do not each constitute two years of full-time study of at least two years’ duration at a post-secondary institution in Canada arose. There, the Applicant had obtained a one-year diploma at one school, and then completed one year of study (without obtaining a credential) at another. He argued that for the purpose of s. 83(3) of the Regulations the two programs should be amalgamated, and that he should be awarded 5 points for education.
The Federal Court Decision
At the Federal Court, Justice Barnes agreed with the Applicant. He noted that ss. 33(2) of the Interpretation Act, R.S., 1985, c. I-21 dictates that when interpreting a statute:
(2) Words in the singular include the plural, and words in the plural include the singular.
Accordingly, he found, the references in s. 83 to the singular must be taken to include “programs”, “institutions”, “study permits” and “those programs”.
He also noted that allowing for the amalgamation of uncompleted programs was consistent with the purpose of s. 83, which is to award points for adaptability. Under a purposive approach to statutory interpretation, he reasoned would make no difference how many schools were attended in order to gauge whether someone could demonstrate an ability to adapt to Canadian society.
Furthermore, Justice Barnes found that “two years of study” means academic years, and not calendar years.
The following question was certified.
In assessing adaptability under s. 83 of the Immigration and Refugee Protection Regulations, should a visa officer aggregate programs of study that do not each constitute two years of full-time study of at least two years’ duration at a post-secondary institution in Canada and award points if the total period of study amounts to or exceeds two years of full-time study at one or more post-secondary institutions?
The Federal Court of Appeal Decision
The Federal Court of Appeal reversed Justice Barne’s decision. It stated that a plain reading of both the French and the English versions of the Immigration and Refugee Protection Regulations indicated that the legislative intent was that a program needed to be completed if points were to be awarded, and that study in disparate programs for a total of two years.
The Court also disagreed regarding the purpose of the legislation. It stated that subsection 83(3) is part of a legislative regime designed to determine whether a skilled worker will be able to become economically established in Canada. In paragraph 34, it noted that disparate programs, that is fundamentally different or distinct programs, are less likely to teach skills that will lead to economic establishment when compared with completion of one two-year program.