3/8/2019 The Doctrine of Legitimate Expectations [Updated – July 17, 2014] – Steven Meurrens

     
Home About Practice Area Blog Po

T H E D O C T R I N E OF L E G I T I M AT E E X P E C TAT ION S [ U P DAT E D – J U LY 1 7

Se
The Doctrine of Legitimate Expectations [Updated – July 17, 2014]
  24th Nov 2010  Comments O  in Judicial Reviews
Soc
Yesterday I received an e-mail from an individual in Nigeria.  He had submitted his
application to the Federal Skilled Worker Program (“FSWP“) one week after the 2008
Ministerial Instructions which limited the number of occupations eligible for the
program.  In his e-mail, he said that the abrupt changes without any advanced warning
were unjust and that he “had expected” that Canada would be “more fair”.  He asked
whether a “legal case” could be made out of this breach of his expectations.

DIS
The concern that the Canadian immigration processes failed to meet reasonable
expectations is  common.  There have been numerous court cases about the issue, and
the notion of “legitimate expectations” has become a subset of the principle of
Plea
procedural fairness.  However, much to the disappointment of many people applying web
for permanent residency, appearing at hearings, or otherwise interacting with the well
Canadian immigration system, the principle of “legitimate expectations” is not as broad cont
as they might hope. and
imm
info
The Doctrine of Legitimate Expectations
que
que
In Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, the cont
Supreme Court of Canada articulated the following principles of legitimate expectation:

Cat
The legitimate expectation may arise from some conduct of the decision-maker or
some other relevant actor.
-

The practice or conduct said to give rise to the reasonable expectation must be clear,
https://meurrensonimmigration.com/the-doctrine-of-legitimate-expectations/ 1/5
3/8/2019 The Doctrine of Legitimate Expectations [Updated – July 17, 2014] – Steven Meurrens
p g p ,
unambiguous and unqualified, meaning to the level that had they been made in the
Home
-Po
context of a private law contract, they would be sufficiently certainAbout
to be capablePractice
of Area Blog
enforcement.
-
&
A legitimate expectation may arise where a public authority or agency:
-
has made representations about the procedure it will follow in making a particular
decision; -

has consistently adhered to certain procedural practices in the past in making such -
a decision;
-
has made representations with respect to a substantive result to an individual; or
-
has created administrative rules of procedure or a procedure on which the agency -
had voluntarily embarked in a particular instance.

-
Legitimate expectations cannot give rise to substantive rights, only procedural
remedies. -

The doctrine of legitimate expectations is a procedural fairness doctrine which has its -
source in the common law.  Because the doctrine of legitimate expectations is a
common law principle, it does not create substantive rights.  It therefore cannot be -
used to counter Parliament’s clearly expressed intent: (Canada (Minister of Employment
and Immigration) v. Lidder, [1992] 2 F.C. 621 (C.A.).  Accordingly, the Immigration and -
Refugee Protection Act (the “Act“) and the Immigration and Refugee Protection Regulations
FS
(the “Regulations“) will supersede any common-law legitimate expectations where
there the law and the expectation are inconsistent. -

For example, if there is a change in the Act or the Regulations, the doctrine of legitimate -
expectations cannot be used to attack transitional provisions: Dela Fuente v. Canada
(Minister of Citizenship and Immigration) (F.C.A.), 2006 FCA 186.  This issue arose in Dela -
Fuente when an individual who had applied under the old immigration act suddenly
found himself subjected to the new one, resulting in him being ineligible. Although he -
had a legitimate expectation when he submitted his application that the law at the time
would apply, this expectation did not trump the clearly de ned transition rules of the -
new Act.

Just like with the doctrine of estoppel (the legal notion that precludes a person from
denying or asserting anything to the contrary of that which has, in contemplation of law,
https://meurrensonimmigration.com/the-doctrine-of-legitimate-expectations/ 2/5
3/8/2019 The Doctrine of Legitimate Expectations [Updated – July 17, 2014] – Steven Meurrens

been established as the truth by his own deed, acts, or representations), a public Blo
Home
authority may be bound in its undertakings as to the procedure itAbout Practice
will follow.  Area
However, Blog Po
the public authority, whether it is a visa o ce, or the Immigration and Refugee Board,
simply cannot place itself in con ict with its duty and forego the requirements of the
Rose
law.

Finally, the doctrine of legitimate expectations does not dictate a result. It can create a
right to an applicant to make representations, be provided the opportunity of a hearing,
or to be consulted. It does not fetter the decision of decision makers following the
representations or consultation: Reference re Canada Assistance Plan (B.C.), [1991] 2
S.C.R. 525.

When a Legitimate Expectation Does Exist

If a legitimate expectation is found to exist, and this expectation does not contradict
statutory law, then this legitimate expectation will a ect the content of the duty of
fairness owed to the individual or individuals a ected by the decision.

If the claimant has a legitimate expectation that a certain procedure will be followed,
then the duty of fairness requires that this procedure be followed.  Similarly, if a
claimant has a legitimate expectation that a certain result will be reached in his or her
case, fairness may require more extensive procedural rights than would otherwise be
accorded.  It may, for example, require a hearing, or Citizenship and Immigration
Canada providing the applicant a chance to remedy minor concerns.

This doctrine, as applied in Canada, is based on the principle that the “circumstances”
a ecting procedural fairness take into account the promises or regular practices of
administrative decision-makers.  It will be generally unfair for decision makers to act in
contravention of representations as to procedure, or to backtrack on substantive
promises without according signi cant procedural rights: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817

The recent case of Paul v. Canada, 2010 FC 1075 (“Paul“) is an example of this. In Paul,
the visa o ce speci cally stated that a document was not required. The o ce then
rejected the applicant’s application on the basis that the applicant had not submitted
that very document which the o ce had said was not required.  The Court ruled that
this was a breach of procedural fairness, ordered the embassy to re-evaluate the
application, and even ordered the government to pay some of the applicant’s legal
costs.

Another recent case was Albaharam v. Canada (Minster of Citizenship and Immigration),
2010 FC 1153. There, a refugee board member stated that there would be an additional
https://meurrensonimmigration.com/the-doctrine-of-legitimate-expectations/ 3/5
3/8/2019 The Doctrine of Legitimate Expectations [Updated – July 17, 2014] – Steven Meurrens

hearing to address outstanding issues. Prior to that second hearing, the member
abruptly denied the refugee claimant’s claim. The CourtHome
noted that this breached
About Practicethe
Area Blog Po
doctrine of legitimate expectations.

Of course, in arguing that there was a legitimate expectation, it is necessary that a party
actually rely on or depend on the expectation: Grewal v. Canada (Citizenship and
Immigration), 2014 FC 454

Finally, the interests underlying the legitimate expectations doctrine are the non-
discriminatory application in public administration of the procedural norms established
by past practice or published guidelines, and the protection of the individual from an
abuse of power through the breach of an undertaking. These are among the traditional
core concerns of public law. They are also essential elements of good public
administration. In these circumstances, consultation ceases to be a matter only of
political process, and hence beyond the purview of the law, but enters the domain of
judicial review. Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C. 264

Conclusion

Individuals going through an immigration process should take detailed notes and be
aware of any and all representations made to them during the process. This includes
what is stated on government websites, what is written in letters, and what is said
during interviews.  Any of these representations can give rise to a legitimate expectation
that may later be useful. However, they should also be aware that such representations
cannot trump the law.  Accordingly, it is important to be familiar with and understand
the Act and Regulations, for these trump any government representations.

Tags:  Common Law  Con ict  Legitimate Expectations  Procedural Fairness

 Reprsesentations

- Share This Post -

Tweet 0 Share
Like

reddit

https://meurrensonimmigration.com/the-doctrine-of-legitimate-expectations/ 4/5
3/8/2019 The Doctrine of Legitimate Expectations [Updated – July 17, 2014] – Steven Meurrens

Home About Practice Area Blog Po

 Previous Next 

- About Us - - We Are Here! -

Our rm practices almost exclusively in #6

View larger map
Canadian immigration matters, including work
permit applications, provincial nominations,
skilled worker applications, spousal
sponsorships, applications on humanitarian
and compassionate grounds, business
applications, residency and sponsorship Report
Map data a map
©2019 error
Google
appeals, and judicial review applications at
Federal Court.

Privacy Policy Copyright © 2018 Canadian Immigratio

https://meurrensonimmigration.com/the-doctrine-of-legitimate-expectations/ 5/5