Immigration, Refugees and Citizenship Canada’s (IRCC) litigation landscape has and continues to evolve. In the last five years, litigation volumes have more than doubled (from 7,000 cases in 2018 to over 16,000 in 2023 just in the Federal Court), and now account for the lion’s share of Applications for Leave and Judicial Reviews at the Federal Court. This coupled with a more complex caseload that holds greater focus on challenges to special initiatives, public policies, pilot projects, and human rights issues has prompted for greater focus on Litigation Management.
The Litigation Management Branch (LMB) in the Migration Integrity Sector provides strategic departmental direction in the context of litigation, with a view to mitigate litigation risks in the best interest of the Department. The area is also responsible in ensuring consistency in the department’s position between various litigations and in various tribunals, in managing Canadian Human Rights Commission and International Tribunal complaints, and in managing information sharing requests by the courts and law enforcement seeking evidence from IRCC.
Department of Justice (JUS) litigators from across the country advocate for IRCC and represent the Attorney General of Canada before the Courts and Tribunals. JUS counsel and paralegals in IRCC’s Departmental Legal Services Unit (DLSU) work with litigators, specialists at JUS (human rights law, administrative law and privacy law), as well as colleagues at other DLSUs (principally Canada Border Services Agency, Public Safety, Global Affairs Canada) and counsel at central agencies to ensure that the positions taken in the Courts are legally sound, nationally consistent, and align with IRCC’s policies and programs, while at the same time protecting whole of government legal interests.
DLSU counsel assist litigators in situating individual cases within the broader IRCC context, and feed into the legal risk assessments that are prepared by litigators for IRCC.
The Senior General Counsel (SGC) of the DLSU is the face of JUS for the client: IRCC Minister, Minister’s Office and Deputy Minister will look to the SGC to explain the legal advice and the position that JUS is proposing to take in litigation. The Director General of Litigation Management and Assistant Deputy Minister of Migration Integrity Sector represent the Minister of IRCC as instructing clients to Justice.
Key Issues
Some high-profile issues currently include:
After successfully defending the Canada-United States Safe Third Country Agreement under section 7 (life, liberty and security of the person) of the Charter at the Supreme Court of Canada, IRCC is now defending the agreement a second time vis-à-vis section 15 (discrimination) Charter challenge at the Federal Court.
Canada’s responses to humanitarian crises continue to be under heavy legal scrutiny, especially related to the Department’s use of Public Policies. This also includes alleged discriminatory treatment in how Canada responds to humanitarian crises in different countries/allegations that measures available to Ukrainians were more generous than those offered to Afghan nationals.
Service fees, eligibility (Charter discrimination allegations) and overcharging (allegations of fees exceeding costs) continue to be some of the longest-standing litigation with the Department.
From a citizenship perspective, there continues to be regular high-profile cases linked to misrepresentation under section 10(1) (revocation) of the Citizenship Act. In addition, there have also been a recent Ontario Superior Court decision which determined that the “first generation limit” violates the Charter and is unconstitutional giving Government six months (June 20, 2024) to make the required changes to the legislation. While IRCC will likely be seeking more time to enact the required changes, the Department is not appealing the decision. Policy solutions are underway to address this future gap.
Complexities around international adoptions and Kafala guardianship, including Federal – Provincial/Territorial considerations also persist.
In addition to these and other trends, we have also seen a significant spike in mandamus litigation ordering IRCC to process applications.
State of Play
Having anchored itself in the department at the branch-level, Litigation Management is now looking to build a stronger analysis function that can help identify and predict litigation trends, with the goal of further mitigating risks and ultimately avoiding/reducing litigation volumes for the Department. All of this work is conducted in close collaboration with JUS colleagues.
