On February 6, 2015, the Federal Court of Appeal concluded that CIC was in fact engaging in discriminatory practices in reviewing the applications of sponsors for parental sponsorship. The first step of the sponsorship process for parents, spouses or children begins with the evaluation of the sponsor: whether they have sufficient funds and the ability to support their sponsored relatives in Canada. While processing this step for spouses and children only takes about 90 days on average, the exact same process for sponsoring parents takes about 45 months (processing times as of February 2015).
Amir Attaran, professor and Canada Research Chair in Law, Population Health, and Global Development Policy at the University of Ottawa, a naturalized Canadian from the US applied to sponsor his parents to come live in Canada in 2009. He quickly realized that the difference in processing times does not make sense.
In 2010, after multiple attempts to contact Citizenship and Immigration Canada (‘CIC’) to have someone explain the difference in treatment of sponsorship applications, he applied to the Canadian Human Rights Commission (‘CHRC’) to have this discriminatory treatment investigated. The CHRC mandated an investigation into this, where the investigator recommended that there was a bona fide reason for the discrimination, namely discretionary decisions mandated to the CIC based on economic needs. The CHRC agreed with the recommendation and dismissed the complaint.
Professor Attaran then applied to the Federal Court for a judicial review of the decision, where the leave for his application was refused. He then appealed the decision to the Federal Court of Appeal.
At the Federal Court of Appeal level, the court found that the decision of the CHRC was unreasonable, as family status is a prohibited ground for discrimination and there was no bona fide reason for this discriminatory practice. A bona fide justification, according to s. 15(1)(g) of the Canadian Human Rights Act could only save the discriminatory practice if it imposes undue hardship on the person or body required to comply with the CHRA (s. 15(2) CHRA).
Justice Webb, who write the decision for the majority of the Federal Court of Appeal, noted that there was no reference to undue hardship in the CHRC decision. Ministerial discretion to allocate funds is not a listed bona fide reason for discrimination and as such cannot qualify as a justification.
The Federal Court of appeal send the decision back for redetermination to the CHRC.
The Federal government has not yet indicated how they will argue this case at the CHRC level. However, it is expected that they will oppose this change.
This case serves as an important reminder that prior to enacting immigration laws and policies, all possible implications should be thoroughly examined, including the potential negative impact on specified groups.