2018 FCA 181, 2018 FCA 181

A-169-17 2018 FCA 181 Saju Begum ( Appellant ) v. The Minister of Citizenship and Immigration ( Respondent ) and Ontario Council of Agencies Serving Immigrants and South Asian Legal Clinic of Ontario ( Interveners ) Indexed as: Begum v. Canada (Citizenship and Immigration) Federal Court of Appeal, Pelletier, Gauthier and de Montigny JJ.A.—Toronto, May 10; Ottawa, October 10, 2018.

Citizenship and Immigration — Status in Canada — Permanent Residents — Appeal from Federal Court decision dismissing appellant’s application for judicial review of Immigration and Refugee Board of Canada, Immigration Appeal Division (IAD) decision dismissing appellant’s appeal of immigration officer’s decision denying her request to sponsor her family members — Appellant, Canadian citizen, suffering from depression, posttraumatic stress disorder due to separation from parents, siblings living in Bangladesh — Submitting application to sponsor family in 2008 — Visa officer refusing application in 2011 on basis appellant not meeting minimum necessary income (MNI) requirement — Immigration and Refugee Protection Regulations (Regulations), s. 133(1) (

j) setting out MNI requirements — New version of s. 133(1)(

j) in effect when appellant filing appeal of officer’s decision — IAD finding, inter alia, no special relief warranted, appellant not suffering specific hardship from dismissal of appeal — Denying appellant’s claims under Canadian Charter of Rights and Freedoms (Charter), ss. 15 , 7 — Federal Court confirming decision to apply amended provisions of Regulations, s. 133 — Concluding appellant’s Charter rights not infringed — Whether IAD should have retroactively applied amended version of Regulations, ss. 133(1)(j), 134 to case where appellant’s notice of appeal to IAD filed before amended version of Regulations coming into force; whether Regulations, s. 133(1)(

j) violating Charter, ss. 15 , 7 ; — Whether original or amended version of s. 133(1)(

j) applying in present case did not matter — Appellant not meeting MNI requirement under either version — Appellant’s argument that right to procedural fairness breached not different whether pre-2014 or post-2014 version applying — Appellant not prevented from making case forcefully, compellingly — IAD not erring in assessing evidence in support of appellant’s s. 15 challenge — Rights protected by s. 7 not infringed by Regulations, s. 133(1)(j) — Appeal dismissed.

Constitutional Law — Charter of Rights — Equality Rights — Appellant, Canadian citizen, suffering from depression, posttraumatic stress disorder due to separation from parents, siblings living in Bangladesh — Submitting application to sponsor family in 2008 — Visa officer refusing application on basis appellant not meeting minimum necessary income (MNI) requirement — Immigration and Refugee Protection Regulations (Regulations), s. 133(1) (

j) setting out MNI requirements — IAD finding, inter alia, no special relief warranted, appellant not suffering specific hardship from dismissal of appeal — Denying appellant’s claims under Charter, s. 15 — Federal Court concluding appellant’s Charter rights not infringed — Whether Regulations, s. 133(1)(

j) violating s. 15 — IAD not erring in assessing evidence in support of appellant’s s. 15 challenge — Not satisfied causal connection present between denial of appellant’s sponsorship for MNI reasons, intersectional grounds raised by appellant — Not operating under misconception that identification of comparator group essential prerequisite to establish distinction — Claim rejected because appellant could not demonstrate exclusion from sponsorship caused by distinction based on asserted grounds — Impugned provision having to differentially impact individual or group involved — Appellant’s submissions falling short in that respect — Open to Federal Court to conclude that statistical evidence produced by appellant not establishing adverse effect.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Appellant, Canadian citizen, suffering from depression, posttraumatic stress disorder due to separation from parents, siblings living in Bangladesh — Submitting application to sponsor family in 2008 — Visa officer refusing application on basis appellant not meeting minimum necessary income (MNI) requirement — Immigration and Refugee Protection Regulations (Regulations), s. 133(1)(

j) setting out MNI requirements — IAD finding, inter alia, no special relief warranted, appellant not suffering specific hardship from dismissal of appeal — Denying appellant’s claims under Charter, s. 7 — Federal Court concluding appellant’s Charter rights not infringed — Whether Regulations, s. 133(1)(

j) violating s. 7 — Rights protected by s. 7 not infringed by Regulations, s. 133(1) (j) — Right to liberty not unlimited — Only “fundamentally or inherently personal” choices falling within ambit of right to liberty — Right to bring parents, siblings to Canada not so intertwined with “intrinsic value of human life”, “inherent dignity of every human being” — Parliament having right to adopt immigration policy, conditions under which non-citizens permitted to enter, remain in Canada — Courts consistently declining to recognize right to family unity or reunification under s. 7 — For right to security to come into play, claimant having to establish serious interference from state — Separation of appellant from family personal choice, not government action.

This was an appeal from a decision by the Federal Court dismissing the appellant’s application for judicial review of a decision by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada, by which it dismissed the appellant’s appeal of an immigration officer’s decision denying her request to sponsor her family members for permanent residency.

The appellant, a Canadian citizen, was diagnosed with depression, post-trauma distress and posttraumatic stress disorder, purportedly due to her long-term separation from her parents and siblings living in Bangladesh, her lack of social support and the fact that she had no other family in Canada. In 2008, the appellant submitted an application to sponsor her parents and five siblings. The visa officer refused the application in 2011 on the basis that the appellant did not meet the minimum necessary income (MNI) requirement under the governing regulations.

Section 133 of the Immigration and Refugee Protection Regulations (Regulations) sets out the requirements for sponsors, including the MNI requirements set out at paragraph 133(1) (j). At the time the appellant filed her appeal of the refusal to grant her application for sponsorship to the IAD, another version of the MNI was in effect (pre-2014 MNI). The IAD found, inter alia , that no special relief was warranted. Regarding the appellant’s suffering caused by her separation from her family, the IAD concluded that there was no evidence that the appellant would suffer any specific hardship from the dismissal of her appeal, and that the negative factors

outweighed the positive ones. The IAD denied the appellant’s claim under

section 15 of the Canadian Charter of Rights and Freedoms (Charter). It was also of the view that evidence of psychological harm suffered by the appellant was not sufficient enough to engage

section 7 of the Charter. The IAD finally concluded that even if there was a deprivation of the appellant’s right to liberty and security, it was made in accordance with the principles of fundamental justice. The Federal Court confirmed the IAD’s decision to apply the amended provisions of

section 133. It also concluded, inter alia , that the evidence was not sufficient to establish an adverse impact on the appellant on the basis of her sex, race or disability, pursuant to

section 15 of the Charter. The Federal Court was also of the view that the appellant failed to establish a causal connection between the government action embodied in paragraph 133(1)(

j) and the deprivation of her right to liberty or security. Finally, the Federal Court concluded that there were no reviewable errors rendering the IAD decision unreasonable. The certified questions at issue were whether the IAD should have retroactively applied the amended version of paragraph 133(1) (

j) and

section 134 of the Regulations to a case where the appellant’s notice of appeal to the IAD was filed before the amended version of the regulations came into force; and whether paragraph 133(1)(

j) violates sections 15 and 7 of the Charter . Held , the appeal should be dismissed. For a question to be properly certified, it must be dispositive of the appeal. In the case at bar, it clearly did not matter whether the original or amended version of paragraph 133(1) (

j) of the Regulations applied. The appellant would not have met the MNI requirement even under its original version. She did not meet the new MNI threshold either, which is 30 percent higher than the old one. In similar circumstances, the Court found that the certified question was not dispositive of the appeal, as it did not matter which version of the requirements was applied. The appellant was unable to explain what difference it would have made to her argument that her right to procedural fairness was breached whether the pre-2014 or the post-2014 version was applied.

The appellant therefore was not prevented from making her case as forcefully and compellingly as possible. The IAD did not make a reviewable error in assessing the evidence in support of the appellant’s

section 15 challenge. The IAD was focused on the insufficiency of the evidence demonstrating that the appellant was denied a benefit that others enjoyed, or carried a burden others did not. The IAD was not satisfied that there was a causal connection between the denial of the appellant’s sponsorship for MNI reasons and the intersectional grounds she raised. The IAD did not operate under the misconception that the identification of a comparator group is an essential prerequisite to establish a distinction. The IAD appropriately referred to the relevant and current case law of the Supreme Court on that issue.

It was clear that the IAD did not fall into the trap that Withler v. Canada (Attorney General) was meant to prevent, that is for claims to be dismissed because the claimant has failed to identify a proper comparator group. Rather, the IAD rejected the appellant’s claim because she could not demonstrate that she was excluded from sponsoring her parents because of a distinction based on the grounds she asserted. The Supreme Court did not do away with the role of comparison in establishing a distinction; on the contrary, it maintained in Withler that distinction necessarily implies a comparison.

What it cautioned against is the notion that comparison can only be established through the identification of a comparative group that corresponds precisely to the claimant group save for the personal characteristic or characteristics alleged to ground the discrimination. What matters is whether the impugned provision differentially impacts the individual or group involved. It was in this respect that the appellant’s submissions fell short of the mark.

The IAD came to the conclusion that the evidence submitted by the appellant was of little help in demonstrating that the MNI requirement had an adverse impact on the basis of race, sex or disability. These extricable findings of fact were entitled to deference on judicial review. It was open to the Federal Court to conclude that no adverse effect was established by the general statistical evidence produced by the appellant, thereby failing to establish that paragraph 133(1) (

j) of the Regulations created a distinction based on an enumerated or analogous ground. Neither of the rights protected by

section 7 of the Charter were infringed by paragraph 133(1) (

j) of the Regulations . The right to liberty protected by

section 7 is not unlimited and does not include every personal decision an individual may wish to make. Only those choices that are “fundamentally or inherently personal” have been found to fall within the ambit of the right to liberty. The right claimed by the appellant to bring her parents and siblings to live in Canada was not so intertwined with the “intrinsic value of human life” and “the inherent dignity of every human being”. The Charter provides at subsection 6(1) that only citizens have the right to enter, remain in and leave Canada.

As a result of that core principle, Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. Courts have consistently declined to recognize a right to family unity or family reunification under

section 7. A sponsor’s inability to bring a non-citizen parent or grandparent to Canada is even further removed from the interests protected by

section 7 than the deportation of a non-citizen who is already in Canada. Canadian citizens or permanent residents cannot be left to dictate on their own the legal status of foreigners. This is not a liberty interest that falls within the ambit of the protection offered by

section 7 of the Charter. The same is true with respect to the right to security of the person. For the right to security to come into play, a claimant must establish a serious interference from the state. In light of the fact that the IAD did not misapprehend the law and is owed deference with respect to its findings of fact, no intervention was warranted herein. The separation of the appellant from her family is the result of her own choice, and not the result of government action. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 15 , 27. Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 11(1), 12(1) , 67(1) (c), 74 . Immigration and Refugee Protection Regulations , SOR/2002-227, ss. 2 “minimum necessary income” 67(3), 120, 130, 131, 132, 133, 134. Income Tax Act , R.S.C., 1985 (5th Supp.), c. 1. TREATIES AND OTHER INSTRUMENTS CITED United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6, 189 U.N.T.S. 150.

CASES CITED APPLIED: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Consolidated FastfrateInc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407; Withler v. Canada (Attorney General), 2011 SCC 12,[2011] 1 S.C.R. 396. DISTINGUISHED: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. CONSIDERED: Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, (1989), 56 D.L.R. (4th) 1; Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418, (1995), 23 O.R. (3d) 160; Law v.

Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th) 1; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; KahkewistahawFirst Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Godbout v. Longueil (City), (SCC), [1997] 3 S.C.R. 844,(1997), 152 D.L.R. (4th) 577; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; NewBrunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216 N.B.R.(2d) 25; Rodriguez v.

British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342;Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005SCC 51, [2005] 2 S.C.R. 539; Idahosa v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 418, [2009] 4F.C.R. 293. REFERRED TO: Kaur Gill v. Canada (Citizenship and Immigration), 2012 FC 1522, [2014] 2 F.C.R. 442; Burton v. Canada (Citizenship andImmigration), 2016 FC 345; Patel v. Canada (Citizenship and Immigration), 2016 FC 1221, 48 Imm. L.R. (4th) 138; Dunsmuir v.

NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Conseil de la Nation Innu Matimekush-Lac John v. Association of Employees of NorthernQuebec (CSQ), 2017 FCA 212; Northern Air Solutions Inc. v. United Food and Commercial Workers Canada, Local 175, 2015 FCA259; CHC Global Operations

(2008) Inc. v. Global Helicopter Pilots Association, 2010 FCA 89, 4 Admin. L.R. (5th) 251; Sran v.Canada (Citizenship and Immigration), 2018 FCA 16; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R.222; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Centrale des syndicats du Québec v. Quebec (Attorney General),2018 SCC 18, [2018] 1 S.C.R. 522; Toussaint v. Canada (Minister of Citizenship and Immigration), 2011 FCA 146, [2013] 1 F.C.R. 3,leave to appeal to S.C.C. refused [2011] 3 S.C.R. xi; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; R. v.

Malmo-Levine; R. v.Caine, 2003 SCC 74, [2003] 3 S.C.R. 571; Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, [2017] 2 S.C.R.456; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, (1988), 63 O.R. (2d) 281; B. (R.) v. Children’s Aid Society ofMetropolitan Toronto, [1995] 1 S.C.R. 31, (1995), (SCC), 21 O.R. (3d) 479; Canada (Minister of Employment andImmigration) v. Chiarelli, (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289; Naredo v. Canada (Minister ofEmployment and Immigration), (1995), 184 N.R. 352, [1995] F.C.J. No. 867 (QL) (C.A.); Langner v.

Canada (Minister of Employmentand Immigration) (1995), 184 N.R. 230, [1995] F.C.J. No. 469 (QL) (C.A.); Lewis v. Canada (Public Safety and EmergencyPreparedness), 2017 FCA 130, [2018] 2 F.C.R. 229; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; deGuzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655. AUTHORS CITED Réaume, Denise. « Dignity, Equality, and Comparison », in Deborah Hellman and Sophia Moreau eds., Philosophical Foundations ofDiscrimination Law, Oxford: University Press, 2013.

APPEAL from a decision by the Federal Court (2017 FC 409, [2018] 1 F.C.R. 3) dismissing the appellant’s application for judicialreview of a decision by the Immigration Appeal Division of the Immigration and Refugee Board of Canada ( ), bywhich it dismissed the appellant’s appeal of an immigration officer’s decision denying her request to sponsor her family members forpermanent residency. Appeal dismissed. APPEARANCES Avvy Yao-Yao Go and Vince Wong for appellant. Mary Matthews and Christopher Ezrin for respondent. Khadeeja Ahsan for interveners.

SOLICITORS OF RECORD Metro Toronto Chinese & Southeast Asian Legal Clinic, Toronto, for appellant. Deputy Attorney General of Canada for respondent. South Asian Legal Clinic of Ontario, Toronto, for interveners. The following are the reasons for judgment rendered in English by [1] de Montigny J.A.: Saju Begum appeals from a decision rendered by Justice Russell of the Federal Court dated April 26, 2017(2017 FC 409, [2018] 1 F.C.R. 3). The Federal Court dismissed the appellant’s application for judicial review of a decision of the

Immigration Appeal Division of the Immigration and Refugee Board of Canada (the IAD) dated July 7, 2016 [ ], bywhich it dismissed the appellant’s appeal of an immigration officer’s decision denying her request to sponsor her father, mother and fivesiblings for permanent residency in Canada. [2] The Federal Court has certified the three following serious questions of general importance: (

a) Given that paragraph 133(1)(

j) and

section 134 of the Immigration and Refugee Protection Regulations (IRPR) were amended andcame into force on January 2, 2014, should the Immigration Appeal Division (IAD) have retroactively applied the amended version ofthese regulations to a case where the applicant’s notice of appeal to the IAD was filed before the amended version of the regulationscame into force? (

b) Does paragraph 133(1)(

j) of the Immigration and Refugee Protection Regulations violate

section 15 of the Canadian Charter [of]Rights and Freedoms (the Charter)? (

c) Does paragraph 133(1)(

j) of the Immigration and Refugee Protection Regulations violate

section 7 of the Charter? [3] For the following reasons, I would dismiss the appeal without costs. I. Factual context [4] The appellant is a Canadian citizen born in Bangladesh. She moved to Canada in 1994 and was sponsored by her husband. In1999, she acquired Canadian citizenship. She and her husband had five children, all under the age of 18 at the time of the applicationbefore the Federal Court.

The appellant’s husband is a taxi driver and the sole source of income for the family. [5] In 1996, the appellant’s husband sponsored his father, mother and his four dependent siblings for permanent residence in Canada.In 2004, the appellant and her family visited her parents and siblings in Bangladesh. Two years after that visit, the appellant wasdiagnosed with “adjustment disorder with mixed anxiety and depressed features, mild in severity”.

The appellant explained that hersymptoms of depression began following her visit to Bangladesh and were due to the lack of social support and the separation from herfamily she felt upon her return. In 2012, she was diagnosed with depression by her family physician and she was prescribed psychotropicmedication, which she no longer takes. In 2015, the appellant was assessed by a psychologist for the purpose of the hearing before theIAD.

She was diagnosed with a severe level of depression, a severe level of post-trauma distress and the likely presence of PosttraumaticStress Disorder, purportedly due to her long-term separation from her parents and siblings, her lack of social support, as her husbandworks a great deal, and the fact that she had no other family in Canada. [6] In 2008, the appellant submitted an application to sponsor her parents and five siblings. Her husband initially co-signed theapplication, but was then removed as co-signer because he failed to meet sponsorship requirements.

His father and some siblings hadreceived social assistance benefits during the sponsorship, which had not been repaid. Moreover, during his sponsorship of the appellant,the appellant’s husband and the appellant both received Ontario Works payments. [7] Under the relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) and the Immigrationand Refugee Protection Regulations, SOR/2002-227 (the IRPR), the appellant had to demonstrate that she could support 14 people.

Avisa officer refused the application on September 19, 2011, on the basis that the appellant did not meet the minimum necessary income(MNI) requirement under the governing regulations. [8] Before turning to the decisions of the IAD and the Federal Court, a quick overview of the legislative framework is in order. II. Legislative framework [9] Section 12(1) of the IRPA provides for the selection of permanent residents on the basis of family reunification: Family reunification 12

(1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-lawpartner, child, parent or other prescribed family member of a Canadian citizen or permanent resident. [10] However,

section 120 of the IRPR requires that a sponsorship be provided for a request for permanent residence to proceed onthe basis of family reunification: Approved sponsorship application 120 For the purposes of

Part 5, (

a) a permanent resident visa shall not be issued to a foreign national who makes an application as a member of the family class or totheir accompanying family members unless a sponsorship undertaking in respect of the foreign national and those family members is ineffect; and (

b) a foreign national who makes an application as a member of the family class and their accompanying family members shall notbecome permanent residents unless a sponsorship undertaking in respect of the foreign national and those family members is in effectand the sponsor who gave that undertaking still meets the requirements of

section 133 and, if applicable,

section 137. [11] Details are provided in sections 130 to 134 of the IRPR.

Section 130 set outs the criteria to become a sponsor: Sponsor 130

(1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a

permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who (

a) is at least 18 years of age; (

b) resides in Canada; and (

c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with

section 10. [ 12 ]

Section 131 of the IRPR provides that an undertaking from the sponsor be given to the Minister of Citizenship and Immigration. This undertaking obliges the sponsor, pursuant to

section 132, to reimburse the government of the province concerned in the event that the sponsored foreign national receives benefits from social assistance programmes during the period set out in subsection 132(1). The duration of that undertaking is defined in subsection 132(2) and is based on criteria such as the relationship between the sponsor and the sponsored foreign national, the age of the sponsored foreign national and the status of the foreign national in Canada.

Section 133 of the IRPR sets out the requirements for sponsors. Among these requirements is the MNI requirement, set out at paragraph 133(1) (

j) of the IRPR. Below is the text as amended and in effect as of January 1, 2014: Requirements for sponsor 133

(1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor … (

j) if the sponsor resides (

i) in a province other than a province referred to in paragraph 131(b), (

A) has a total income that is at least equal to the minimum necessary income, if the sponsorship application was filed in respect of a foreign national other than a foreign national referred to in clause (B), or (

B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application, if the sponsorship application was filed in respect of a foreign national who is (

I) the sponsor’s mother or father, (II) the mother or father of the sponsor’s mother or father, or (III) an accompanying family member of the foreign national described in subclause (

I) or (II) …. [ 13 ] However, at the time the appellant filed her appeal of the refusal to grant her application for sponsorship to the IAD, on September 30, 2011, another version of the MNI was in effect (it was in effect until 31 December 2013) (pre-2014 MNI): Requirements for sponsor 133.

(1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor … (

j) if the sponsor resides (

i) in a province other than a province referred to in paragraph 131(b), has a total income that is at least equal to the minimum necessary income. [ 14 ] The MNI is defined at

section 2 of the IRPR :

Interpretation … minimum necessary income means the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published annually by Statistics Canada under the Statistics Act , for urban areas of residence of 500,000 persons or more as the minimum amount of before-tax annual income necessary to support a group of persons equal in number to the total number of the following persons: (

a) a sponsor and their family members, (

b) the sponsored foreign national, and their family members, whether they are accompanying the foreign national or not, and (

c) every other person, and their family members,

(

i) in respect of whom the sponsor has given or co-signed an undertaking that is still in effect, and (ii) in respect of whom the sponsor’s spouse or common-law partner has given or co-signed an undertaking that is still in effect, if the sponsor’s spouse or common-law partner has co-signed with the sponsor the undertaking in respect of the foreign national referred to in paragraph (b). ( revenu vital minimum ) [ 15 ] Finally,

section 134 of the IRPR provides for income calculation rules and specifies that the sponsor’s total income is primarily calculated on the basis of the last notice of assessment issued pursuant to the Income Tax Act , R.S.C., 1985 (5th Supp.), c. 1 or an equivalent document. III. Decisions below A.

Visa officer’s decision [ 16 ] As previously mentioned, the visa officer advised the appellant on September 19, 2011 that her request to sponsor her father had been denied since she did not meet the MNI requirement (as set out at paragraph 133(1) (j)). [ 17 ] In a letter also dated September 19, 2011, sent to her father, it was specified that the application for a permanent resident visa as a member of the family class had been denied since “ subparagraph 133(1) ( j )(

i) of the Regulations states that if the sponsor resides in a province other than Quebec, the sponsor must have a total income that is at least equal to the minimum necessary income” (appeal book, at page 288). [ 18 ] The visa officer determined that this requirement was not met at the time the sponsorship application was filed. Accordingly, the application for permanent residency could not be allowed, pursuant to paragraph 120 (

b) of the IRPR in effect at that time. Pursuant to subsection 11(1) of the IRPA , the visa officer refused the application. B. The IAD decision [ 19 ] Since the appellant did not challenge the validity of the visa officer’s decision except on constitutional grounds, the IAD first reviewed whether special relief was warranted in light of the circumstances of the case.

It noted that the appellant had the burden to prove “on a balance of probabilities, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case” (IAD reasons, at paragraph 13). [ 20 ] The IAD found that no such special relief was warranted since “physical separation alone is not sufficient to invoke special relief and there was insufficient evidence about hardship or any unusual and serious circumstances that might permit the imposition of special relief” (IAD reasons, at paragraph 40).

It was particularly concerned with the fact, on the one hand, that the appellant had not provided sufficient evidence regarding her income and that of her husband, and, on the other hand, that there was little evidence, other than generalities, that the appellants would be self-sufficient if they came to Canada. The IAD applied paragraph 133(1)(

j) and

section 134 of the amended IRPR for a 14-member family and determined that the applicable MNI ranged from $137 189 to $140 597 in 2013 to 2015, whereas the appellant’s estimated income was $10 000 in both 2014 and 2015. [ 21 ] Regarding the appellant’s suffering caused by her separation from her family and its negative impacts on her mental health, the IAD noted that she left her family over 20 years ago to immigrate to Canada, and that there were alternative solutions to the immigration of her family to Canada, such as visits between the appellant and her family and the use of telecommunications (particularly internet software such as Skype).

It was also concerned with the fact that the appellant refused to follow her doctor’s advice and take medication for her depression. Thus, it concluded that there was no evidence that the appellant would suffer any specific hardship from the dismissal of her appeal, and that the negative factors outweighed the positive ones. [ 22 ] On the constitutional challenge, the IAD began by summarizing at length the expert evidence that was presented at the hearing, as well as the affidavit evidence. The IAD agreed with the appellant that

section 27 of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter), was an interpretative guide. However, it disagreed with the appellant’s submission that the evidence on file showed that the MNI requirement weakens the multicultural makeup of Canadian society. It noted that subsection 133(4) of the IRPR provides important exceptions to the MNI requirement. [ 23 ] The IAD denied the appellant’s claim under

section 15 of the Charter . It considered that there was a lack of specific evidence relating to the appellant’s “race” other than her country-of-origin description, and that the evidence regarding her disability was insufficient. Most of the evidence submitted was broad and generic, and did not relate to the appellant’s specific situation. The IAD also found that the appellant had not established that

section 133 of the IRPR created a distinction based on listed or analogous grounds. The evidence was insufficient to “produce a real comparative group, or demonstrate the actual impact of [section 133 of the IRPR] on that group” (IAD reasons, at paragraph 105). No causal connection between the impugned provision and a disproportionate or adverse effect on the appellant was demonstrated. In view of these findings, the IAD did not address the question of whether the distinction was discriminatory. [ 24 ] Regarding the

section 7 challenge, the IAD outlined that the Charter does not provide for a right to family reunification or an unqualified right to enter or remain in Canada. Moreover, the MNI requirement must be placed in the broader legislative context of the IRPA , which also provides for an alternative means for her relatives to be granted a permanent resident visa: the humanitarian and compassionate circumstances. The evidence about the psychological harm suffered by Ms. Begum was also not sufficient enough, in the IAD’s view, to engage

section 7 of the Charter. Finally, the IAD concluded that even if there was a deprivation of the appellant’s right to liberty and security, it would be made in accordance with the principles of fundamental justice. Indeed, the MNI requirement is not fundamentally unfair to the appellant, and subsection 67(3) of the IRPR , which provides for an examination of humanitarian and compassionate circumstances, provides sufficient procedural fairness.

[ 25 ] Given these conclusions, an analysis of

section 1 of the Charter was not deemed required. C. The Federal Court’s decision [ 26 ] The Federal Court first summarized at great length the IAD decision as well as the parties’ submissions. The Court then determined that the issue of whether the pre-2014 or the post-2014 version of

section 133 of the IRPR applied, as well as the related procedural fairness issues raised by the appellant, were reviewable under the correctness standard.

The constitutional questions involving sections 7 and 15 of the Charter , in his view, also attracted the correctness standard of review, while the issues of the IAD’s assessment of the evidence and the exercise of its discretion to grant the application on humanitarian and compassionate grounds was reviewable on a standard of reasonableness. [ 27 ] As for the application of sections 133 and 134 of the IRPR , the Federal Court confirmed the IAD’s decision to apply the amended provisions, since the IAD proceeds on a de novo basis.

The IAD decides whether or not to grant the application based on the provision in force at the time of its decision. The Federal Court held that the existence of an appeal does not change the fact that the appellants have no accrued rights to have their application decided under certain provisions. Kaur Gill v. Canada (Citizenship and Immigration) , 2012 FC 1522 , [2014] 2 F.C.R. 442 , was correctly decided and has been applied by the Federal Court in Burton v. Canada (Citizenship and Immigration) , 2016 FC 345 , and Patel v. Canada (Citizenship and Immigration) , 2016 FC 1221 , 48 Imm.

L.R. (4th) 138. [ 28 ] The Federal Court rejected the appellant’s argument that the IAD breached procedural fairness in failing to notify her that it would be applying the amended version of the IRPR . It concluded that the procedure was not unfair since the IAD raised the issue of the IRPR version to be applied and requested submissions from the parties. In the appellant’s notice of constitutional question, it was also clear that the constitutional challenge applied to both the pre-2014 and post-2014 version of paragraph 133(1) (j). [ 29 ] On the question of whether

section 15 of the Charter was breached, the Federal Court agreed with the IAD that the appellant was unable to establish an adverse impact on the intersectional basis of sex, race and disability. The IAD followed the guiding jurisprudence and appropriately concluded that the evidence was too “generic” and “indirect” to establish the necessary adverse impact on the appellant or the group concerned.

While evidence on the larger social, political and legal context is relevant, it does not eliminate the need for evidence directed to the impact on the individual. [ 30 ] The Federal Court concluded, as did the IAD, that Dr. Galabuzi and Professor Mykitiuk’s evidence was not sufficient to establish an adverse impact on Ms. Begum on the basis of her sex, race or disability. The IAD’s conclusion that Ms. Begum failed to establish a causal connection between the denial of her sponsorship for MNI reasons and the intersectional grounds she raised was endorsed by the Federal Court.

As the Court stated, “the governing jurisprudence also makes it clear that ‘the main consideration must be the impact on the individual or the group concerned’, and this is where the applicant’s evidence fell short” (Federal Court reasons, at paragraph 179). [ 31 ] The Federal Court also dismissed the claim based upon

section 7 of the Charter . The Court rejected the appellant’s contention that the IAD had not addressed the interests protected by the right to life, liberty and security of the person, and had not assessed her psychological evidence. In the Federal Court’s view, the appellant failed to establish that there was a sufficient causal connection between the government action embodied in paragraph 133(1) (

j) and the deprivation of her right to liberty or security. The separation of the appellant from her family is a choice that she made when she decided to come to Canada, and she must be taken to have known that family reunification would not be automatic. The Supreme Court has made it clear that family members do not have an unqualified right to enter or remain in Canada. Moreover, the evidence does not establish that the psychological harm alleged by the appellant was sufficient to engage

section 7 of the Charter. That being the case, the Federal Court was unable to find any reviewable error with respect to the IAD’s conclusion that

section 7 is not engaged on the facts of this case and that it was therefore unnecessary to provide lengthy reasons explaining why it rejected the appellant’s assertion that the MNI requirement was unfair and breached the principles of fundamental justice. In light of these conclusions, the Federal Court did not assess the

section 1 arguments. [ 32 ] Finally, the Federal Court concluded that there were no reviewable errors rendering the IAD decision unreasonable. More specifically, it cannot be said that the IAD ignored and misconstrued evidence. Its reasons show that it was fully aware of the facts, considered the expert evidence, and provided reasons for its conclusions on said evidence. The IAD did not fail to address special relief.

It also acknowledged the importance of considering the best interests of the child, which in its view needed to be given substantial weight, but weighed its conclusions against the other factors at play, as provided for by case law. The Federal Court dismissed the appellant’s assertion that the reasons were inadequate, specifying that perfection is not required and that when read as a whole, it is substantially transparent, intelligible and justified. IV. Issues [ 33 ] This appeal raises the three following certified questions: A. Given that paragraph 133(1) (

j) and

section 134 of the IRPR were amended and came into force on January 2, 2014, should the IAD have retroactively applied the amended version of these regulations to a case where the appellant’s notice of appeal to the IAD was filed before the amended version of the regulations came into force? B. Does paragraph 133(1)(

j) of the IRPR violate

section 15 of the Charter ? C. Does paragraph 133(1)(

j) of the IRPR violate

section 7 of the Charter ? V. Analysis [ 34 ] In an appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative tribunal, the applicable standard of appellate review is that set out by the Supreme Court in Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, at paragraphs 45–47 . Accordingly, we must step into the shoes of the Federal Court and determine, first, whether it identified the appropriate standard of review, and, second, assess whether it applied the standard

correctly. In other words, we must for all intents and purposes conduct the judicial review analysis afresh. [35] The parties agree that the Federal Court correctly found that the standard of review for all three questions is that of correctness.The issue of whether the pre-2014 or the post-2014 version of

section 133 applied is a pure question of law; while the IAD has expertiseon the application of the IRPR, the retroactive or retrospective application of a provision clearly falls outside of its specialized expertise.It is also a question of law that is of general importance for the legal system as a whole, upon which no deference is warranted: Dunsmuirv. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 55. [36] I am also of the view that the Federal Court was right to apply the correctness standard to the constitutional questions involvingsections 7 and 15 of the Charter.

That being said, the extricable findings of fact and the assessment of the evidence upon which theconstitutional analysis is premised are entitled to deference. As the Supreme Court stated in Consolidated Fastfrate Inc. v. WesternCanada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407 (Consolidated Fastfrate), at paragraph 26: The parties agree that the applicable standard of review in cases of constitutional

interpretation is correctness: see Cuddy Chicks Ltd. v.Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5, at p. 17. However, as the respondent Teamsters also note,the ALRB’s constitutional analysis rested on its factual findings. Where it is possible to treat the constitutional analysis separately fromthe factual findings that underlie it, curial deference is owed to the initial findings of fact: see Lévis (City) v. Fraternité des policiers deLévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, at para. 19. (See also: Conseil de la Nation Innu Matimekush-Lac John v.

Association of Employees of Northern Quebec (CSQ), 2017 FCA 212, atparagraphs 18–19; Northern Air Solutions Inc. v. United Food and Commercial Workers Canada, Local 175, 2015 FCA 259, atparagraph 5; CHC Global Operations

(2008) Inc. v. Global Helicopter Pilots Association, 2010 FCA 89, 4 Admin. L.R. (5th) 251, atparagraph 22.) [37] Thus, the standard of reasonableness applies to questions of fact. A. Given that paragraph 133(1)(

j) and

section 134 of the IRPR were amended and came into force on January 2, 2014, should theIAD have retroactively applied the amended version of these regulations to a case where the appellant’s notice of appeal to the IAD wasfiled before the amended version of the regulations came into force? [38] The appellant argued that the IAD and the Federal Court erred in applying the amended version of paragraph 133(1)(

j) of theIRPR to her appeal. Relying on the presumption that new legislation affecting substantive rights only apply prospectively unless a clearlegislative intent to the contrary can be discerned, she also pointed out that not only is there no transitional provisions dealing withappeals filed before the new MNI requirement came into effect, but that the Regulatory Impact Analysis Statement and Citizenship andImmigration Canada (CIC) Operational Bulletin confirmed that the new MNI requirement is not meant to be applied retroactively.

Asinteresting as this argument may be, this is not a question that is properly before us as it should not have been certified in the first place. [39] It is well established that for a question to be properly certified pursuant to

section 74 of the IRPA, it must be dispositive of theappeal. In the case at bar, it clearly does not matter whether one applies the original or amended version of paragraph 133(1)(

j) of theIRPR. Based on the pre-2014 MNI requirement, in order to support 14 people (the 7 she sought to sponsor as well as her familymembers), the appellant would have needed a minimum income of $92 181 for 2007 (the taxation year immediately preceding the dateof filing of the sponsorship application). Yet her income for that year was $1 200. She therefore would not have met the MNIrequirement even under its original version. Needless to say, she does not meet the new MNI threshold either, which is 30 percent higherthan the old one (between $137 189 to $140 597 in 2013 to 2015).

In similar circumstances, this Court found that the certified question isnot dispositive of the appeal, as it does not matter which version of the requirements was applied: see Sran v. Canada (Citizenship andImmigration), 2018 FCA 16. [40] The appellant also argued that her right to procedural fairness was breached because the IAD failed to advise her that it would beapplying the amended version of paragraph 133(1)(

j) and

section 134 to her sponsorship appeal. In my view, the Federal Court wascorrect to reject that argument. As the Federal Court pointed out, the transcript reveals that the issue was raised with the appellant’scounsel towards the end of the hearing, such that counsel could have made submissions in that respect. More importantly, it appears thatthe appellant’s challenge to the constitutional validity of paragraph 133(1)(

j) of the IRPR was directed to the MNI as such, rather than toany particular version of that requirement. Indeed, her notice of constitutional question makes it clear that she intended to question thevalidity of any MNI, not just the pre-2014 or the post-2014 version of paragraph 133(1)(j). Accordingly, it is to be presumed that theappellant marshalled evidence and made arguments that went to any MNI, and a careful examination of the record bears this out.

At thehearing, counsel for the appellant was unable to explain what difference it would have made to her argument whether the pre-2014 or thepost-2014 version was applied. I find, therefore, that the appellant was not prevented from making her case as forcefully andcompellingly as possible. B. Does paragraph 133(1)(

j) of the IRPR violate

section 15 of the Charter? [41] The appellant contends that the Federal Court erred in several respects in reviewing the IAD decision, and made errors of law aswell as reviewable errors in its evidentiary findings. [42] First, the appellant argues that both the IAD and the Federal Court applied the wrong legal test to her

section 15 claim indisregarding the larger social, political and legal context of the case and in failing to analyze the social science evidence, dismissing it astoo generic and indirect. The appellant also claims that the Federal Court erred in dismissing her argument on the basis that it could notfind a comparator group. She also argues that the IAD also misapprehended the notion of a comparator group by defining it as the groupto which the appellant is a member as opposed to the group against which the appellant’s conditions should be assessed. Relying on thedecision of the Supreme Court in Withler v.

Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (Withler), she alleges it isnot necessary to pinpoint a mirror comparator when the discrimination is indirect; in such cases, the focus must be on the effect of thelaw and the situation of the claimant group. As a result, the IAD and the Federal Court should have considered the sociologicaldisadvantages faced by women, people with disabilities and members of racialized groups in order to assess the impact of the MNIrequirement on the appellant.

[43] With respect to the evidentiary findings, the appellant contends that the IAD erred in dismissing her claim at least in part becauseit did not consider her to be a “racialized” person, despite the evidence that, in the Canadian context, the term “racialized people”includes visible minorities “who are non-Caucasian in race or non-white in colour” (affidavit of Professor Galabuzi, appeal book, at page726, paragraph 13). The appellant is also of the view that the IAD erred in conflating

section 15 arguments with the humanitarian andcompassionate considerations, and in stating that most of the socio-economic disadvantages faced by people in the appellant’s situationcan be addressed through the availability of special relief pursuant to paragraph 67(1)(

c) of IRPA. Finally, the appellant takes exceptionto the characterization of the social science evidence that she introduced as being too “generic” or “indirect”, and stresses that all therelevant evidence connecting the socio-economic disadvantages of the groups to the situation of prospective sponsors was completelyignored. [44] The starting point to understanding the meaning and purpose of

section 15 of the Charter is the seminal decision of the SupremeCourt in Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143 (Andrews). In that case, JusticeMcIntyre made it clear that the concept of human dignity that underlies the equality guarantee calls not only for formal equality (“thingsthat are alike should be treated alike”), but, more importantly, for substantive equality (Andrews, at page 166). Since the drawing ofdistinctions is inseparable from legislative action, the challenge has been to come up with a framework to identify those distinctions thatare discriminatory.

As Justice McIntyre stated, “[i]t must be recognized at once, however, that every difference in treatment betweenindividuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce seriousinequality” (at page 164; see also pages 167, 168 and 182).

The key concept, therefore, will be that of discrimination, which JusticeMcIntyre defined, at page 174, as: …a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which hasthe effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds orlimits access to opportunities, benefits, and advantages available to other members of society.

Distinctions based on personalcharacteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination,while those based on an individual’s merits and capacities will rarely be so classed. [45] The approach proposed by Justice McIntyre was applied in a series of cases over the years, and evolved into a two-step approachbest summarized by Justice McLachlin (as she then was) in Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418, at paragraph128: ….

First, the claimant must show a denial of “equal protection” or “equal benefit” of the law as compared with some other person.Second, the claimant must show that the denial constitutes discrimination. [46] It was not entirely clear, however, when a distinction based on an enumerated or analogous ground would not also bediscriminatory. The Supreme Court came to grips with that question in Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497 (Law). In that case, the Court considered the jurisprudential developments in equality law, andtried to refine the concept of discrimination.

Specifically, it held that substantive equality would be infringed only where adversedifferential treatment by the government has a negative effect on a person’s human dignity. Writing for a unanimous Court, JusticeIacobucci summarized the “three broad inquiries” that a court should undertake when called upon to determine a claim under subsection15(1) of the Charter.

First, the court must decide whether the impugned law draws a formal distinction between the claimant and otherson the basis of one or more personal characteristics, or fails to take into account the claimant’s already disadvantaged position withinCanadian society, thereby treating differently, in a substantive way, the claimant and others on the basis of one or more personalcharacteristics.

Second, the court must deal with whether the basis for the differential treatment is an enumerated or analogous ground.Third, the court must determine, by answering the following question, whether the law has a purpose or effect that is discriminatory: … Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner whichreflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating orpromoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadiansociety, equally deserving of concern, respect, and consideration? (Law, at page 549 [paragraph 88].) [47] In trying to determine whether the differential treatment discriminates in a substantive sense, Justice Iacobucci proposed fourrelevant contextual factors: (1) pre-existing disadvantage experienced by the claimant or the group of which the claimant is a member;(2) correspondence, or lack thereof, between the ground or grounds on which the discrimination claim is based and the actual needs,capacity, or circumstances of the claimant or the affected group; (3) the ameliorative purpose or effect, or lack thereof, of the impugnedlaw for certain members of society; and (4) the nature and scope of the benefit or interest which the claimant feels he or she has beendenied (Law, at pages 550–552). [48] Almost a decade later, the Supreme Court once again endeavoured to streamline the application of the equality guarantee and todeal with some of the criticism levelled at the framework suggested in Law.

These criticisms related primarily to the use of the violationof human dignity test, the application of the contextual factors, and the use of comparators required by the Law framework. In both R. v.Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (Kapp), and Withler, a unanimous Court (in reasons delivered jointly by Chief JusticeMcLachlin and Justice Abella) stressed that the concept of substantive equality has remained and still is the centerpiece of the analyticalframework.

In light of that overarching objective, the Court in Kapp re-articulated the three-stage analysis into a two-step process: (1)Does the law, on its face or in its impact, create a distinction based on an enumerated or analogous ground(s)?; and

(2) Does thedistinction impose a burden or deny a benefit by perpetuating or reinforcing a prejudice or a disadvantage? [49] This approach has since been consistently applied: see Withler, at paragraph 30; Ermineskin Indian Band and Nation v. Canada,2009 SCC 9, [2009] 1 S.C.R. 222, at paragraph 188; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61 (Quebec v. A), atparagraphs 186, 324 and 418; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548 (Taypotat), at paragraphs 19–20; Centrale des syndicats du Québec v.

Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522, at paragraph 22.Acknowledging that the concept of human dignity is abstract and subjective and therefore difficult to operationalize, and that a

comparator analysis is somewhat artificial, the Court emphasized that the four contextual factors set out in Law must be seen not as a formalistic test, but as a way of focusing on the central concern of

section 15 , that is, combating discrimination both in terms of perpetuating disadvantage and stereotyping ( Kapp , at paragraphs 23–24 ). [ 50 ] Expanding on those reasons, the Court wrote in Withler : Whether the s. 15 analysis focusses on perpetuating disadvantage or stereotyping, the analysis involves looking at the circumstances of members of the group and the negative impact of the law on them.

The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation. ( Withler , at paragraph 37 .) [ 51 ] Of particular relevance for the case at bar is the Court’s approach to comparison. Stressing emphatically that substantive equality (which is concerned with the actual impact of the impugned law, and not the mere absence or presence of difference) must be the focus of a

section 15 analysis, the Court insisted that a formal analysis based on comparison between the claimant group and a “similarly situated” group will not always ensure a result that captures the wrong to which subsection 15(1) is directed ( Withler , at paragraphs 39– 40 ).

The Court agreed that the use of mirror comparator groups raises a number of concerns, notably that: (1) the definition of the comparator group may determine the analysis and the outcome without regard to whether the distinction creates a disadvantage or perpetuates prejudice or stereotyping ( Withler , at paragraph 56 ); (2) the focus on finding a “like” comparator group may become a search for sameness rather than a search for disadvantage ( Withler , at paragraph 57 ); (3) confining the analysis to a rigid comparison between the claimant and a group that mirrors it except for one characteristic may fail to account for more nuanced experiences of discrimination ( Withler , at paragraph 58 ); and (4) finding the right comparator group places an unfair burden on claimants ( Withler , at paragraph 59 ). [ 52 ] Far from denying the general usefulness of comparison, the Court suggested a more flexible approach to assess the impact of the impugned scheme on substantive equality.

Indeed, the use of comparison cannot be completely done away with, as it is essential to establish a “distinction”. What is crucial at the first stage, however, is not that a claimant identify a particular group that does not share the disqualifying characteristic that sets him or her apart, but rather that the claimant be able to establish that he or she is treated differently than others: The role of comparison at the first step is to establish a “distinction”. Inherent in the word “distinction” is the idea that the claimant is treated differently than others.

Comparison is thus engaged, in that the claimant asserts that he or she is denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1). It is unnecessary to pinpoint a particular group that precisely corresponds to the claimant group except for the personal characteristic or characteristics alleged to ground the discrimination.

Provided that the claimant establishes a distinction based on one or more enumerated or analogous grounds, the claim should proceed to the second step of the analysis. This provides the flexibility required to accommodate claims based on intersecting grounds of discrimination. It also avoids the problem of eliminating claims at the outset because no precisely corresponding group can be posited. ( Withler , at paragraphs 62–63 .) [ 53 ] The Court went on to add that it will be more difficult to establish a distinction when the discrimination alleged is of an indirect nature.

In such a case, the claimant will have “more work to do” at the first step, because the impugned measure will on its face apply in the same way to all ( Withler , at paragraph 64 ). As the Court stated, “[h]istorical or sociological disadvantage may assist in demonstrating that the law imposes a burden or denies a benefit to the claimant that is not imposed on or denied to others.

The focus will be on the effect of the law and the situation of the claimant group” ( Withler , at paragraph 64 ). [ 54 ] At the second step, though, the use of comparison may be helpful to better understand the claimant’s situation as well as the disadvantage or stereotype to which he or she is allegedly subjected. “At this step”, the Court wrote, “comparison may bolster the contextual understanding of a claimant’s place within a legislative scheme and society at large, and thus help to determine whether the impugned law or decision perpetuates disadvantage or stereotyping” ( Withler , at paragraph 65 ). [ 55 ] On the basis of these principles, I will now address the arguments raised by the appellant and the interveners. [ 56 ] The appellant does not contend that paragraph 133(1) (

j) of the IRPR creates a direct and explicit distinction based on an enumerated or analogous ground. Rather, she submits that though neutral on its face, the MNI requirement has a differential impact on her and that she is disproportionately affected as a racialized woman with a disability.

In other words, members of racialized communities, women, and people with disabilities experience higher unemployment rates, earn less income, are more likely to live in poverty, and are thus less likely to be able to meet the MNI requirement. [ 57 ] Focusing on a paragraph of the IAD’s reasons, and more particularly on a single line of that paragraph, the appellant claims that the IAD’s finding (confirmed by the Federal Court) that paragraph 133(1) (

j) of the IRPR does not create a distinction under

section 15, is based on a misapprehension of the law and on an application of the wrong legal test to the facts at hand. The paragraph of the IAD’s reasons [paragraph 105] at issue reads as follows: Moreover, the panel finds that the appellant has not established that IRPR s. 133 creates a distinction based on the enumerated or any analogous grounds.

After reviewing the testimony and surrounding general statistical documentation previously discussed, the panel finds that it is broad, tenuous, non-definitive, often contradictory, and sometimes not directly applicable to the appellant (or even to a group that may have been arguably comparative). Considering an “intersectional” context, the evidence was not sufficiently substantive to produce a real comparative group, or demonstrate the actual impact of IRPR s. 133 on that group.

The evidence was often nebulous and did not demonstrate a causal connection that produced a disproportionate impact or an adverse effect. [Footnote omitted.] [ 58 ] On a fair reading of that paragraph, it seems to me the IAD was focused on the insufficiency of the evidence demonstrating that

the appellant was, on the basis of her personal characteristics, denied a benefit that others enjoyed, or carried a burden others did not.

Far from relying on the “outdated notion of a comparator group”, as argued by the appellant (Federal Court reasons, at paragraph 172), the IAD was simply not satisfied, on the basis of the evidence submitted, that there is a causal connection between the denial of her sponsorship for MNI reasons and the intersectional grounds she raised. [ 59 ] While the reasons of the IAD could have been more elaborate and better articulated, I do not think it operated under the misconception that the identification of a comparator group is an essential prerequisite to establish a distinction.

First of all, the IAD appropriately referred, in a footnote to the above-quoted paragraph 105, to the relevant and current jurisprudence of the Supreme Court on that issue ( Quebec v. A ; Withler ). Moreover, it appears that the IAD was not referring to a comparator group as it has commonly been understood, that is a group which “‘mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought’ except for the personal characteristic on which the claim was based” ( Withler , at paragraph 49 ).

Rather, it seems to have made this reference with a view to identifying the group to which the appellant may belong and which could be impacted by the MNI requirement even if she herself was not. In other words, it is clear that the IAD did not fall into the trap that Withler was meant to prevent, that is for claims to be dismissed because the claimant has failed to identify a proper comparator group.

Rather, the IAD rejected the appellant’s claim because she could not demonstrate that she was excluded from sponsoring her parents because of a distinction based on the grounds she asserted. [ 60 ] I would add that the use of comparisons has not been entirely rejected by the Supreme Court in Withler , nor could it be in my opinion. After all, equality is inherently a comparative concept (see Denise Réaume, “Dignity, Equality, and Comparison”, in Deborah Hellman and Sophia Moreau, eds., Philosophical Foundations of Discrimination Law , (Oxford: University Press, 2013), at page 7).

As Justice McIntyre stated in Andrews [at page 164], equality “may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises” (see also Law , at paragraph 56). The Supreme Court did not do away with the role of comparison in establishing a distinction; on the contrary, it maintained in Withler that distinction necessarily implies a comparison.

What it cautioned against is the notion that comparison can only be established through the identification of a comparative group that corresponds precisely to the claimant group save for the personal characteristic or characteristics alleged to ground the discrimination: Withler , at paragraphs 62–63 . What matters, in the end, is whether the impugned provision differentially impacts the individual or group involved. [ 61 ] It is precisely in this respect that the appellant’s submissions fall short of the mark.

As previously mentioned, indirect discrimination is more difficult to establish than direct discrimination. Demonstrating that a law apparently treating everyone the same nevertheless negatively affects a group or individual in a disproportionate manner will always be more of a challenge.

Evidence of sociological or historical disadvantage will sometimes assist in demonstrating such an adverse impact; but more will be required than a “web of instinct” and general statistical evidence with little or no relationship with the particular context of the claim: see Taypotat , at paragraphs 31–32 and 34 . [ 62 ] In the case at bar, the appellant filed extensive evidence purporting to document the socio-economic disadvantages faced by women, people with disabilities, and members of racialized communities, as well as evidence showing the importance of family in ensuring the full participation of these disadvantaged groups in Canadian society.

The appellant also provided evidence relating to her personal situation, her limited employment history and the negative impact of the family separation on both her and her family. Having considered that evidence, the IAD came to the conclusion that it was of little help in demonstrating that the MNI requirement had an adverse impact on the basis of race, sex or disability. The IAD characterized that evidence as “broad”, “tenuous”, “non-definitive”, “often contradictory”, “sometimes not directly applicable to the appellant”, and “often nebulous” (IAD reasons, at paragraph 105).

It also stated the following [at paragraph 104]: However, the appellant relied almost entirely on broad, generic evidence and did not produce specific instances relating to her. The historical development of immigration legislation and statistical evidence about race and the labour market she presented is mostly too indirect for this appeal. She provided minimal direct evidence about her own situation, relating any absence of her financial resources to those characteristics. There was no evidence that she has been denied employment due to discrimination.

In fact, as seen above in this Decision, very little supporting evidence was presented at all about the appellant’s income or financial resources. [ 63 ] These extricable findings of fact are obviously entitled to deference on judicial review ( Consolidated Fastfrate , at paragraph 26). Before the Federal Court, the appellant argued that the IAD had disregarded the larger social, political and legal context of the case and chose not to analyze the substantial socio-economic evidence.

The Federal Court rejected that argument, being of the view that no adverse effect was established by the general statistical evidence produced by the appellant, thereby failing to establish that paragraph 133(1) (

j) of the IRPR created a distinction based on an enumerated or analogous ground. In my view, such a conclusion was open to the Federal Court. Far from simply repeating the IAD’s “non-specific, dismissive treatment of the social science evidence” (appellant’s memorandum, at paragraph 38), the Federal Court relied on the governing jurisprudence according to which “the main consideration must be the impact of the law on the individual or the group concerned” ( Andrews , at page 165, quoted in Quebec v. A , at paragraph 319, Abella J.; see also Withler, at paragraph 39 ).

On this basis, it found, as did the IAD, that this is where the appellant’s evidence fell short. As I will now endeavour to show, that conclusion from the IAD was reasonable in light of the evidence put forward by the appellant. [ 64 ] The appellant tendered three expert witnesses at the constitutional hearing before the IAD: Dr. Grace-Edward Galabuzi, Professor Roxanne Mykitiuk and Dr. Susan Chuang. The interveners also tendered Ms. Debbie Douglas, Executive Director of the Ontario Council of Agencies Serving Immigrants (OCASI).

Having carefully reviewed their affidavits, as well as their examination and cross-examination, I think it was reasonable for the IAD not to give much probative value to their evidence with respect to the question that is at the core of this appeal, namely whether the MNI requirement adversely impacts people like the appellant on the basis of race, sex or disability. [ 65 ] Professor Galabuzi, an associate professor of the Department of Politics and Public Administration at Ryerson University, testified about the limited access of women and racialized persons to the labour market, and the likely impact this might have on their prospect of meeting the MNI requirement.

His research focused on racialization and gender in the labour market. He noted, for example, that “[b]etween 2000 and 2005, racialized Canadians earn 81.4 cents for every dollar paid to non-racialized Canadians” (appeal book, at page 730). Further, “racialized people, racialized women in particular, and women in general are more likely to be unemployed and for

longer periods of time than other Canadians. When employed, they are more likely to be in low paying jobs and sectors with lower paying occupations” (appeal book, at pages 730 and 734). Racialized Canadians are also more likely to be at the bottom end of the income spectrum―69 percent compared to 56 percent of non-racialized Canadians―and “are two to three times more likely to be poor than other members of the community” (appeal book, at pages 733 and 737).

This phenomenon is referred to as the racialization and feminization of poverty in Canada (appeal book, at page 737). [ 66 ] From the outset, Professor Galabuzi postulates that the use of a MNI to determine eligibility for family sponsorship has a disproportionate impact on racialized groups and women, because of the persistent economic and income inequalities along racial and gender lines. As a result of the differential access to the labour market, he affirms that “the seemingly neutral enforcement of the rule set out in [ paragraph 133(1) (

j) of the IRPR ] in regard to family reunification, has a disparate and adverse impact on racialized groups and women” (appeal book, at page 725). [ 67 ] He returned to that theme in the concluding paragraph of his affidavit, where he stated: In conclusion, there is a definite differential impact on the ability of Canadian citizens and permanent residents to sponsor their family members by applying the minimum necessary income requirement because of the racial and gender inequalities in the Canadian labour market and the differential access to the income structure.

Given the racialized and gendered differentials in employment, income employment patterns and low income status, and given that these differentials are due to structural and systemic factors beyond the individuals’ control, the economic disparity experienced by racialized groups and women will persist and are unlikely to change in the near future. As a group, members of racialized communities will continue to be over-represented among the low income group.

As such, they will likely to be disproportionally affected by the minimum necessary income requirement for family class sponsorship. (Appeal book, at page 740.) [ 68 ] The main problem with Professor Galabuzi’s assertion that racialized groups and women are disproportionally impacted by the MNI, however, is that it rests on inferences and assumptions. As noted by the IAD, Professor Galabuzi has not researched sponsorship MNI approval and refusal rates or trends.

There is also no discussion in his affidavit (let alone data evidence) supporting his claim that women, racialized communities and people with disabilities are, as a result of the MNI requirement, treated differently from others when attempting to sponsor parents or grandparents.

Indeed, Professor Galabuzi conceded on cross-examination that the last sentence of paragraph 43 of his affidavit (appeal book, at page 740) is speculative. [ 69 ] Although Professor Galabuzi’s evidence demonstrates income disparities along gender and racial lines, I agree with the IAD and the Federal Court that none of it relates precisely to the impact of the MNI requirement. Professor Galabuzi does not rely on studies in this respect, but rather draws an inference from his knowledge and from other studies regarding the limited access to labour market that he transposed to the MNI requirement.

It was not unreasonable to conclude that this kind of evidence falls short of establishing that the appellant and people who share her characteristics are denied a particular benefit that others receive. It also happens to be contradicted by more relevant and specific evidence pertaining to approval and refusal rates, which will be addressed later in these reasons. [ 70 ] The second expert provided by the appellant is Professor Mykitiuk, who is an Associate Professor at Osgoode Hall Law School.

She was asked to provide opinion testimony and evidence with respect to issues of discrimination, barriers and poverty experienced by persons with disabilities and their families, and how the MNI requirement may affect persons with disabilities who wish to sponsor their families from overseas. Based on her experience and research, she concluded that the MNI “has a disproportionately adverse impact on persons with disabilities, as they are more likely to live in poverty and face significant socio-economic barriers” (appeal book, at page 1396).

She also found that it deprives them of the presence of family members whose support is critical to become full and equal participants in Canadian society. Her evidence, however, is plagued with the same deficiencies as the evidence of Professor Galabuzi. [ 71 ] Professor Mykitiuk testified that persons with disabilities are over-represented within the low-income population (appeal book, at page 1366). Disabled women report an average income of around $4 000 less than able-bodied women, whereas disabled men report an average income difference of almost $13 000 (appeal book, at pages 1366–1367).

The more severe their disability, the less income they report (appeal book, at page 1368). However, the income of persons with disabilities remains more stable throughout their lives than able-bodied persons (appeal book, at pages 1367–1368).

Persons with disabilities also have an employment rate of approximately 20 percent less than able-bodied persons (appeal book, at page 1368). [ 72 ] Professor Mykitiuk then dealt with a number of socio-economic barriers commonly faced by persons with disabilities, including accessibility in the workplace, appropriate housing, accessibility of assistance and assistive technologies and education. She also underlined the importance of family support to the well-being of parents of disabled children.

As emphasized by the IAD, however, Professor Mykitiuk referred mostly to studies pertaining to parents of disabled children rather than to disabled persons per se . The appellant having no disabled children, but rather invoking her own alleged disability, it was reasonable to conclude that the evidence pertaining to parents of disabled children is of limited relevance. [ 73 ] Like the Federal Court, and for a number of reasons, I see no reason to interfere with the IAD’s determination that Professor Mykitiuk’s evidence is of limited relevance.

She did not relate her opinions and comments to the appellant’s particular circumstances, if only because the appellant does not have any disabled children. [ 74 ] More importantly, Professor Mykitiuk’s evidence is focused on showing that persons with disabilities generally have lower income, and that they benefit from the support that family members (including their extended family) can provide. She also opined that lack of assistance with basic domestic labour often prevents disabled women from accessing paid labour.

Yet, she provided no evidence whatsoever regarding the impact of the MNI requirement on persons with disabilities or, for that matter, on racialized women, with respect to sponsorship applications. To that extent, her evidence is more relevant to demonstrate the existence of a perpetuated disadvantage than of a distinction created by the MNI requirement. [ 75 ] The third witness tendered by the appellant was Dr. Susan Chuang, who is an Associate Professor at the Department of Family Relations and Applied Nutrition at the University of Guelph.

She testified about the importance of family support, in particular the support of parents and grandparents, for Canadians and the Canadian society as a whole. Her affidavit dealt for the most part with the

various contributions of grandparents, their critical role in nurturing positive development and their contribution to the family’s well- being and interperson

[…]