Thousands of Canadian immigration applications may be affected by court decision
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The Superior Court of Quebec has arrived at a decision in the case of Stasenko v. MICC et al, which challenged the government of Quebec’s decision to apply changes to the Quebec Skilled Worker Program’s (QSWP) eligibility criteria retroactively, having previously promised applicants that their application would be processed based on regulations in effect when it was submitted.
Legal proceedings were initiated by the law firms of Campbell Cohen (David Cohen) and Irving Mitchell Kalichman (Mathieu Bouchard) in an effort to prevent the government of Quebec from applying new immigration regulations retroactively. The decision centred on the principle of promissory estoppel — the legal principle that a promise is enforceable by law when the promisor (person making the promise) makes a promise to the promisee (person being promised) who relies on it to his or her detriment.
This important decision represents a victory for thousands of applicants whose applications for immigration to Canada under the QSWP may have been affected by regulations introduced by the government of Quebec that came into effect on August 1, 2013.
The background
In February, 2012, Quebec released a document checklist for the QSWP. No such checklist existed before this date. A key sentence of this checklist stated ‘your application for a selection certificate will be processed based on regulations in effect when it was submitted.’ This sentence was removed from the checklist in May, 2013.
The QSWP is a points-based Canadian immigration program. Candidates are assessed according to various selection factors, such as language ability and level of education, and awarded a certain number of points based on these factors.
The government of Quebec enacted new regulations that came into effect on August 1st, 2013, the combined effect of which significantly changed the way points are calculated under the QSWP. Among the changes made to the points system were changes to how points were to be awarded for language ability. Whereas previously applicants could be awarded points according to their language ability, even if their abilities were basic or intermediate, the new regulations determined that points for language ability could only now be awarded if the applicant could prove an advanced-intermediate ability.
These regulations were applied retroactively to all applications where preliminary processing had not yet begun, meaning that these applications would be assessed according to the new points system, despite the promise made to applicants that their application for a selection certificate would be processed based on regulations in effect when it was submitted.
By the end of June, 2013, there were more than 50,000 affected applications for a selection certificate under the QSWP that had been received by the government of Quebec. Many of these applications had been submitted while the terms of the original checklist were in effect.
The only transitional measure put in place was to allow applicants who had submitted their applications between July 8 and August 16, 2013 to withdraw their application voluntarily and obtain a refund.
The case
A case against the government of Quebec was brought by an applicant who submitted an application for immigration to Quebec through the QSWP on April 9, 2013. The applicant, a Russian citizen, was a client of the Campbell Cohen law firm, with Attorney David Cohen as her legal representative. Her file was opened on June 20, 2013, and the Minister notified receipt of her processing fees, which came to CAD $910.
The changes made to the language proficiency requirements, which came into effect on August 1, 2013, meant that the applicant was unlikely to be eligible when it came to the preliminary processing stage of her application. Under the points system in place when her application was submitted, her chances of being assessed positively and being called for an interview by the government of Quebec were excellent.
On April 21, 2015, the Superior Court of Quebec made a decision in favour of the plaintiff and ruled against the government of Quebec. The government of Quebec has 30 days to appeal the decision.
What this means for applicants
At this time, it remains to be seen if it is only those applications that were submitted while the original document checklist was in effect with the key sentence ‘your application for a selection certificate will be processed based on regulations in effect when it was submitted’ that may benefit from this decision. These applications would need to have been submitted between February, 2012 and April 2013, inclusive, and not yet have reached preliminary processing by the time the updated regulations came into force.
If these applicants wish to have their case for a selection certificate through the QSWP reassessed based on the points system in effect at the time of submission, they may be able to do so as a result of this case. A broader interpretation of the ruling could affect a greater number of applications submitted before February, 2012.
Attorney David Cohen
“In any event, this case is likely to have affected thousands of applicants who, in my view, were wrongly denied the chance to have their applications for immigration assessed with fairness. That is why I was proud to be co-counsel in the legal efforts against the government’s decision,” says Attorney David Cohen.
“One would have thought that only those applicants who applied on or after August 1, 2013 would have been subject to the changes, but this was not the case. Changes were applied retroactively to candidates who applied, in good faith, months beforehand, under the impression that their application would be processed based on regulations in effect at the time of submission, as per the document checklist for the program.
“With a favourable decision based on the principle of promissory estoppel, these applicants may yet be able to realise their Canadian immigration aspirations through the Quebec Skilled Worker Program.”
To find out if you are eligible for the Quebec Skilled Worker Program, or any of Canada’s over 60 immigration programs, please fill out a free assessment today.
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