Supreme Court


Officer improperly restricted her discretion by taking literal approach to hardship test

Appellant was Tamil from Sri Lanka. His family arranged for him to travel to Canada to live with uncle when he was 16. His claim for refugee protection was refused as was his application for pre-removal risk assessment. His application for humanitarian and compassionate relief under s. 25(1) of Immigration and Refugee Protection Act was rejected by officer who concluded she was not satisfied return to Sri Lanka would result in unusual and undeserved or disproportionate hardship. Federal Court found officer’s decision reasonable and Federal Court of Appeal agreed. Appellant’s appeal allowed. Minister has discretion to exempt foreign nationals from ordinary requirements of Act, pursuant to s. 25(1), if of the opinion that such relief justified by humanitarian and compassionate considerations, including best interests of child directly affected. Ministerial guidelines establish “assessment of hardship”. Specifically, s. 25(1) provides that applicants must demonstrate “unusual and undeserved” or “disproportionate” hardship. Guidelines are instructive but not determinative; they do not create thresholds for relief separate and apart from humanitarian purpose of s. 25(1). Officers should not fetter discretion by treating them as such, thereby limiting ability to consider and give weight to all relevant humanitarian and compassionate considerations. Best interests of child directly affected are singularly significant focus and perspective, given that s. 25(1) specifically directs that they be considered. Fact that appellant was child triggered best interests analysis but also should have influenced manner in which other circumstances were evaluated. Concept of unusual or undeserved hardship presumptively inapplicable in case of child applicant since children rarely, if ever, deserving of hardship. Officer failed to consider totality of appellant’s circumstances and took unduly narrow approach to assessment of hardship. She failed to give sufficient consideration to appellant’s youth, his mental health and evidence that he would suffer discrimination if returned to Sri Lanka. She improperly restricted her discretion by taking literal approach to hardship test, thereby rendering her decision unreasonable.

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2015, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Gascon J., Moldaver J., and Wagner J., File No. 35990) Decision at 239 A.C.W.S. (3d) 991 was reversed.  260 A.C.W.S. (3d) 344.

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Law Times reports that there is no explicit rule that lawyers in Ontario must be competent in the use of technology. Do you think there should be explicit rules spelling out the expectations of lawyers’ in terms of tech use in their practice?