Clear Filing Rules Needed for Immigration Court Reviews

(Disponible uniquement en anglais)

Via email: justine.drouin@fct.cf.gc.ca

The Honourable Martine St-Louis
Acting Chief Justice
Federal Court of Canada
90 Sparks Street
Ottawa, ON K1A 0H9

Dear Chief Justice St-Louis,

Re: Clarification of Procedural Requirements under Rule 5(1)(f) of the FCCIRPR

I am writing on behalf of the Canadian Bar Association (CBA) and its Immigration Law Section to express our support for the urgent request for clarification regarding the procedural requirements for a valid application for leave and for judicial review in IMM matters, as set out in the attached correspondence from the Canadian Association of Refugee Lawyers (“CARL”) and the Refugee Lawyers Association of Ontario (“RLA”).

The Canadian Bar Association (CBA) is a national association representing 40,000 lawyers, notaries, academics, and law students across Canada. The Immigration Law Section has approximately 1,200 members who practise in all areas of immigration and refugee law. Our mandate includes improving the law and the administration of justice. We share their concerns regarding the immediate and real impact of the identified novel interpretation of Rule 5(1)(f) of the Federal Court Citizenship, Immigration and Refugee Protection Rules (“FCCIRPR”) and its effect on the day-to-day functioning of judicial review in IMM-matters.

This issue has arisen in light of recent jurisprudence from the Hon. Justice Duchesne,¹ in which Rule 5(1)(f) was interpreted as requiring particularized grounds for review in the application for leave and for judicial review. This interpretation upends a longstanding practice of the Federal Court to allow for reliance upon the general grounds of judicial review as listed in s.18.1 of the Federal Courts Act. Lack of compliance with this novel interpretation of Rule 5(1)(f) was the basis upon which several motions for stays of removal were dismissed.

A divergence in how Rule 5(1)(f) is being interpreted has created uncertainty about what is required to commence a valid application for leave and judicial review. That uncertainty now turns on which judge receives the matter and makes the leave determination (or the motion for stay of removal). For a jurisdiction where timelines are short and the consequences are significant, this is not sustainable, particularly as the Applicant is often without the complete reasons or indeed the full record as the ALJR is initiated prior to the issuance of the Certified Tribunal Record. Applicants and counsel must be able to rely on clear, stable, and uniform procedural requirements when accessing the Court. For many years, the Court’s practice has provided such clarity. The recent inconsistency has disrupted that settled understanding.

We also note that this interpretation will have a significant negative impact upon the administration and functioning of the Court and timeliness of decision-making as it will require the filing and determination of hundreds of motions to amend the ALJR. This course of action was identified by the Hon. Justice Duschene in the recent case of Amirsoleymani v. Minister of Citizenship and Immigration, 2025 FC 1874. The Court held that “[a]n ALJR that does not plead both a legal basis and material facts specific to the matter is an ALJR that does not meet the requirements of a pleading in a judicial review proceeding.”² Noting that “it is open to a respondent to challenge an ALJR on the basis that it does not allege grounds that make out a viable proceeding and therefore does not disclose a fairly arguable case in its responding memorandum of argument”³, the Court held that the appropriate action would be to rectify this by a “timely amendment to the ALJR”.⁴ It is trite to note that Applicants do not know which judge is to decide their application for leave and as such, motions for “timely amendments to the ALJR” would be required of most, if not all, applications for leave and for judicial review before the Court currently. In the context of motions for stay of removal, many of which are brought on short timelines, such motions would need to be brought and decided by the Court on an urgent basis. This would create a new and significant administrative burden for the Court.

Like CARL and the RLA, the CBA and its Immigration Law Section are concerned that this novel interpretation as to the procedural requirements of an Application for leave and for judicial review and its ensuing split in the jurisprudence has raised a significant access to justice issue.

We support the request for an urgent clarification as to the requirements of Rule 5(1)(f) of the FCCIRPR by way of amendment to the Amended Consolidated Practice Guidelines for Citizenship, Immigration and Refugee Protection Proceedings. This would affirm that access to justice in immigration matters depends not only on the quality of adjudication but also on the predictability of the pathway to reach it.

The CBA Immigration Law Section includes practitioners who appear before the Court daily. We stand ready to assist should the Court wish to consult further as it considers this issue.

Sincerely,

(original letter signed by Noel Corriveau for Jatin Shory)

Jatin Shory
Chair, Immigration Law Section

cc. The Honourable Justice John Norris
Chair, Citizenship, Immigration and Refugee Law Bar Liaison Committee
Federal Court

Deborah Drukarsh
Regional Director and General Counsel
National Litigation Sector, Ontario Regional Office
Department of Justice Canada