Legal clinic challenges part of Income Tax Act

A legal clinic is challenging the constitutionality of part of the Income Tax Act that bars refugee claimants from receiving Canada child benefits.

Legal clinic challenges part of Income Tax Act
Avvy Go says a section of the federal Income Tax Act is unconstitutional.

A legal clinic is challenging the constitutionality of part of the Income Tax Act that bars refugee claimants from receiving Canada child benefits. 

The Metro Toronto Chinese and Southeast Asian Legal Clinic has filed Notices of Constitutional Question with the Canada Revenue Agency for clients, disputing the constitutional validity of s. 122.6 of the act.

The section holds that individuals are eligible for the CCB if their spouse is a Canadian citizen, if they are in a humanitarian designated class, a permanent resident, a temporary resident or a protected person, within the meaning of the Immigration and Refugee Protection Act.

The legal clinic argues this imposes a blanket exclusion against refugee claimants and those with a precarious immigration status.

Some of those excluded have been individuals who have worked and paid income tax in Canada.

“Something needs to be done because of the disproportionate impact on women, but in particular racialized women and women who have precarious status,” says the clinic’s director, Avvy Go.

The challenge may have important impacts for the refugee and immigration bar, say lawyers.

Over the years, the clinic has seen clients who have been denied the CCB or who were receiving the benefit only to abruptly receive a letter saying they were ineligible and had to refund the benefits, says Go. Each time clients have come up against this issue, it has been because of the eligibility requirement under the ITA.

Go says that in recent years there have been more and more cases of clients being given the benefit only to be told a year or two later that they have to return the funds to the CRA.

Aris Daghighian, a lawyer with Green and Spiegel LLP, says the challenge is a worthy argument that needs to be addressed. Even if the court does not find in the clinic’s favour, Daghighian says, the challenge will be bringing attention to this gap in the provisions.

He says that just bringing the challenge will shine a light on the issue and could push the government to make legislative changes to the system.

“One way or another, I think this challenge is needed, and even if the court is unwilling to make a Charter violation finding, I think we might end up with the same result,” says Daghighian, who is not involved with the challenge.

Go says, for example, that one of the clinic’s clients arrived with her husband in 2014 and applied for a refugee claim, which was initially denied by the Refugee Protection Division. After the client appealed that decision, the Federal Court sent her file back to the division for a new hearing.

The client and her husband were granted work permits after submitting their refugee claims, but her husband was injured at work and granted benefits from the Workplace Safety and Insurance Board. The client has not been able to work full time either, due to her child-care responsibilities.

The husband has not been able to return to work since his injury, and the family is also receiving assistance from the Ontario Disability Support Program, but they have been unable to secure the CCB to help with child-care expenses.

They applied for the CCB in 2016, but they were told by the CRA that they were not eligible because they did not meet the citizenship requirements. The client then asked the CRA to reconsider, and the agency’s appeals division is set to hear her objection.

The clinic has filed NCQs for two different clients so far, as well as six notices of objection to the exclusion. The clinic is also working with other clinics on the issue that might look to intervene in the case if and when it makes its way to court.

The clinic has argued that s. 122.6 of the ITA discriminates against its clients on the basis of race, gender and immigration status.

The clinic’s notice filed with the CRA said the vast majority of CCB recipients are women, as mothers continue to be the primary caregivers in most Canadian families, and that most applicants with precarious immigration status come from racialized communities.

“By denying CCB to women with precarious immigration status, s. 122.6 of the ITA thus has an adverse impact on racialized women as it denies them an important financial benefit that they and their children need to survive,” the notice said.

“The denial of such a benefit perpetuates the socio-economic disadvantages faced by women from racialized communities, especially those with precarious immigration status, while reinforcing their social isolation and stigmatization.”

Go says this policy also violates the rights of these individuals’ children, many of whom are Canadian-born. She says the denial is arbitrary, as it does not take into account the children’s best interests, the family’s ties to Canada or their financial needs.

And because of their parents’ immigration status, these Canadian children are not receiving the equal benefits that other Canadian-born children are getting, Go says.

“That further highlights the unfairness of it all,” she says.

The clinic has said that the exclusion also violates ss. 7 and 15 of the Charter. This is because depriving these individuals of the benefit they need “results in harm to the physical and psychological well-being of both the applicant and the child,” the notice said.

Go adds that it is not just refugee claimants who are affected by this exclusion, as it also applies to applicants waiting for the determination of a permanent residency application, temporary foreign workers and other individuals with precarious immigration status.

She says the exclusion affects some of the most vulnerable people in Canada, while benefits are provided to tourists and visitors who have lived in the country for 18 months but may not have substantial ties to Canada and might not need the same level of financial support.

“I’m very puzzled by this policy,” Go says. “Why is it that we are allowing tourists — although they have lived here for 18 months — to claim this kind of benefit, but we’re not allowing refugee claimants or people with precarious status — who are actually living here and many of them [are] working in Canada and [are] clearly more in need of the benefits — to claim this kind of benefit?”

She says the term “temporary resident” — which is used in the section — is not defined in the Immigration and Refugee Protection Act and should be interpreted more broadly.

The CRA did not provide comment before deadline.

Go says if the CRA’s internal appeals process confirms the original decision, the clinic will appeal to Tax Court, bringing the constitutional fight over this section of the ITA into the courts.

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