Federal Court Rejects Application for Right to Counsel in Immigration Processes

Date: 20260513 Docket: IMM-12116-25 Citation: 2026 FC 617 Ottawa, Ontario, May 13, 2026 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN: [COMPANY] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION, THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, AND THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA Respondents

REASONS AND

JUDGMENT I. Overview [ 1 ] The responding [NAME] [[NAME]] bring this motion, seeking an order: Dismissing, as a preliminary question of law pursuant to Rule 104(1)(a) of the Federal Courts Rules , SOR/98-106 [ Rules ], the underlying application for leave and for judicial review [ALJR] on the basis that the Applicant, the [COMPANY] [[NAME]], lacks standing to bring the application and is therefore not a proper party; Striking the ALJR in its entirety pursuant to Rule 221(1)(a), without leave to amend, on the basis that the ALJR fails to raise any justiciable or reviewable matter; or In the alternative, striking the portions of the ALJR that seek relief under subsection 24(1) of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. [ 2 ] For the reasons that follow, the motion is allowed, and the ALJR is struck without leave to amend.

II. Background and Procedural History [ 3 ] On May 22, 2025, [NAME] filed an ALJR under subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA] requesting leave to commence an application for judicial review “seek[ing] a declaration of a right to counsel in immigration and refugee applications, interviews and examinations.” [ 4 ] The ALJR indicates that “[t]here is no file number or decision in this matter,” and that in the event leave is granted, the following relief will be sought:

1. That this Court issue the following declarations pursuant to section 18.1(3)(a) of the Federal Courts Act , RSC 1985, c F-7 [ Act ]: a. there is a right to counsel in immigration and refugee applications, interviews and examinations in accordance with the common law and/or sections 7 and 15 of the Charter ; b. subsection 167(1) of the IRPA is underinclusive and therefore constitutionally invalid under section 52 of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11; c. the right to counsel must be legally recognized by: i. enacting amendments to the IRPA and promulgating regulations as necessary; and/or ii. the [NAME] revising their existing policies or adopting new policies.

2. An order as to costs; and 3. Such further and other relief as counsel may advise and this Court may allow. [ 5 ] The ALJR then outlines the basis for judicial review and identifies in further detail the relief sought, stating: [NAME] seeks the recognition of the right to counsel, at an individual’s own expense, in immigration and refugee-related matters involving the [NAME]. Specifically, [NAME] seeks a declaration that the right to counsel exists beyond the contexts where counsel rights are already conferred by subsection 167(1) of the IRPA and paragraph 10(b) of Charter – which, respectively, apply to proceedings before the Immigration and Refugee Board of Canada and detentions. [NAME] seeks to confirm the existence of the right to counsel, under sections 7 and 15 of the Charter and the common law as a matter of procedural fairness, in all applications, interviews, and examinations pursued under the IRPA. Were there to be judicial recognition of the right to counsel in all contexts under the IRPA, the [NAME] would give effect to the right through means that would include policy change, regulatory change, and/or amendments to the IRPA itself. [ 6 ] The ALJR also provides an overview of the existing laws, policies, and practices regarding the right to counsel under the IRPA and asserts: There is no legal bar to [NAME] retaining and instructing counsel to represent them in matters relating to applications, interviews, and examinations under the IRPA; however, nor is there any corresponding legal obligation for the [NAME] to recognize counsel, interact with them, and accord them participatory rights in those matters. The [NAME]’ policies and practices reflect counsel rights under subsection 167(1) of the IRPA and paragraph 10(b) of Charter but do not recognize this right in other contexts, and at times, the [NAME]’ public policies and messaging actively discourage [NAME] from retaining counsel in these other contexts. [ 7 ] The ALJR further advances the position that the Court has jurisdiction to hear the application, stating: It falls within the meaning of “any matter” under the IRPA, as provided for at subsection 72(1) of the IRPA. A comprehensive legal challenge to the [NAME]’ lack of recognition of the right to counsel under the IRPA is the most efficient way to bring the issue before the Court. [NAME] asserts, and meets the test for, public interest standing in bringing the ALJR. [ 8 ] Finally, the ALJR outlines the case [NAME] intends to put forward, and specifically: Summarizes the legal basis for the right to counsel under the common law and the Charter. Details the need for counsel in other immigration contexts and the benefits that would result were the right to counsel in all contexts under the IRPA be recognized. Describes the evidence to be introduced in support of the ALJR. [ 9 ] On September 2, 2025, [NAME] perfected the application record, which includes seven affidavits. Six of those affidavits provide expert evidence from [NAME], a [NAME], and a [NAME] of [NAME] who is also a [NAME] with experience in administering and enforcing immigration and refugee law. The seventh is an “experiential” affidavit affirmed by the Executive Director of [NAME]. [ 10 ] The [NAME] have not filed a responding record pursuant to Rule 11 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR 93/22, but have instead brought this motion to which [NAME] has responded. As a result, the question of leave has not yet been considered or determined.

III. Issues [ 11 ] The Parties broadly agree on the substantive questions raised on this motion but have framed those issues somewhat differently. Having reviewed and considered the Parties’ written and oral submissions, I have identified the following single issue: Is the ALJR bereft of any possibility of success, or doomed to fail? If so, on what basis? IV. Preliminary Matters [ 12 ] The motion also raises two preliminary matters: (1) is the motion premature; and (2) is the November 7, 2025 affidavit of [NAME] [[NAME]], filed as part of [NAME]’s responding motion record, admissible? A. The motion is not premature [ 13 ] [NAME] takes the position that the [NAME]’ motion is premature for two reasons. First, [NAME] argues that neither the underlying application nor [NAME]’s assertion of public interest standing are doomed to fail. [NAME] submits the application easily meets the requirement under section 18.1 of the Act – the ALJR relates to a “matter” for which relief is sought and the [NAME] have failed to demonstrate that this is one of those “very clear cases” where the Court may dismiss an ALJR on a preliminary motion for lack of standing ( [NAME] of Canada v Canada (Minister of Finance) , 1998 CanLII 9124 (FC), [1999] 2 FC 211 at paras 24–26 [ [NAME] ]; [COMPANY] v Canada (Governor in Council) , 2007 FCA 374 at para 13; also see YZ v Canada (Citizenship and Immigration) , 2015 FC 892 at para 37). [ 14 ] [NAME]’s argument to the effect that the motion is premature on the basis of its mere assertion that the underlying application is easily understood as relating to a “matter” under section 18.1 of the Act , that [NAME] easily satisfies the test for public interest standing, and therefore that the ALJR is not “doomed to fail” or “bereft of any possibility of success” is not persuasive. These issues underpin the [NAME]’ motion – they go to the merits of the motion and as such must be considered in light of the evidence and arguments advanced ( League for Human Rights of B’nai Brith Canada v Canada , 2008 FC 146 at para 13, rev’d on other grounds 2008 FC 732). [ 15 ] Second, [NAME] relies on the absence of a complete record – the [NAME] have not filed a Certified Tribunal Record [CTR], there has been no cross-examination on the affidavits filed with [NAME]’s application record, and leave has not been determined – to argue the motion is premature. [NAME] submits the Court may be unable to reach a fully informed decision on the question of whether the ALJR is doomed to fail. Similarly, and relying on [NAME] v Canada (Transportation Agency) , 2021 FCA 141 at paras 33–40 [ [NAME] ] where it was held that the issue of standing was more appropriately considered with the merits because the Court did not have sufficient evidence before it to make a fully informed decision on standing, [NAME] argues the incomplete record at this stage also prevents the Court from determining whether [NAME] lacks standing. [ 16 ] Again, I disagree. Whether issues raised on a motion to strike can be determined on a preliminary basis is a matter of judicial discretion to be exercised in the context of the particular case ( [NAME] v Canada (Minister of Finance) , 1986 CanLII 6 (SCC), [1986] 2 SCR 607 at para 16). The incomplete nature of the record alone is not determinative of the question of whether the ALJR raises a reviewable matter or whether [NAME] has standing. As was the case in United Steel Workers v Canada (Citizenship and Immigration) , 2013 FC 496 at para 8, it is not evident that the CTR or additional evidence is required to consider the issues raised on this motion. There are comprehensive written submissions, well-articulated legal arguments, and, as [NAME] itself has described, a “well-developed factual record” before the Court (also see Canadian Council for [NAME] v Canada (Immigration, [NAME] and Citizenship) , 2017 FC 1131 at para 28 [ [NAME] ], citing [NAME] at para 25 and [COMPANY] v Canada ([NAME]) , 2008 FCA 207 at para 10). [ 17 ] In my opinion, the written submissions, legal arguments, and the factual record as it exists will allow for a proper determination of the issues raised on the motion, including that of standing. Unlike the situation in [NAME] , there is no suggestion that the evidentiary record as it exists is unsettled. B. The [NAME] is admissible [ 18 ] [NAME]’s responding motion record contains the [NAME] with nine appended exhibits, including: four news articles dated from December 2024 to October 2025 describing the recent surge of immigration matters at the Federal Court and the lack of sufficient resources; a transcript of an October 2, 2025 CBC interview with [NAME] Chief Justice Crampton; three unreported Orders in Court files IMM-3433-17, IMM-3302-20, and T-816-21 dismissing motions to strike the Canadian Association of Refugee Lawyers as a party; and a Practice Direction and Special Order entitled “ Backlog in processing applications for leave and judicial review,” issued by the Federal Court on May 14, 2025, and providing for an extension of time to file application records in response to the exceptional increase of filings in immigration matters. [ 19 ] Affidavits are generally not admissible in support of motions to strike ALJRs, or in support of an applicant response to a motion to strike. This because the facts alleged in the notice of application are taken as true and the “complete” grounds for the application are to be identified in the notice of application ( [COMPANY] v Canada (National Revenue) , 2013 FCA 250 at para 52 [ JP Morgan ] ). Limited exceptions to this [NAME] rule are permitted where the affidavit evidence furthers the interests of justice and does not undercut the justifications against admissibility ( JP Morgan at paras 53–54). [ 20 ] The [NAME] have not objected to the [NAME], and I am satisfied that the affidavit may be admitted as an exception to the [NAME] rule. The [NAME] provides the Court with background information and context that may be of some relevance to the extent matters of judicial economy and/or the scarcity of judicial resources arise.

V. Analysis A. Is the ALJR bereft of any possibility of success, or doomed to fail? (1) Applicable principles – Motions to strike an application [ 21 ] Before considering the issue raised, an overview of the principles to be considered and applied on a motion to strike an application will be helpful: A. Rule 221 – “Motion to strike” – provides that the Court may strike out a pleading or dismiss an action on various grounds. The test on a motion to strike is whether it is “plain and obvious” that the action cannot succeed ( [NAME] at para 14, citing R v [COMPANY] , 2011 SCC 42 at paras 17, 22) . B. Rule 221 does not contemplate the dismissal of applications. However, the jurisprudence recognizes that this Court has plenary jurisdiction to control its own process and, by way of analogy to Rule 221, that the Court possesses the discretion to strike out or dismiss an application ( [COMPANY] v [COMPANY] , 1994 CanLII 3529 (FCA), [1995] 1 FC 588 at 600 [ [NAME] ]; JP Morgan at paras 47–48; Windsor (City) v [NAME] , 2016 SCC 54 at para 72). C. However, the threshold to succeed in striking or dismissing an application is high. This because the summary nature of an application strongly favours – for reasons of practicality, efficiency, and the absence of precision in the pleadings – that objections be considered at the time the matter is heard on its merits. D. Only where the Court is satisfied the shortcomings identified are “of the exceptional sort that strik[e] at the root of this Court’s power to entertain the [application]” and/or in those rare circumstances where the Court is convinced that the application is “so clearly improper as to be bereft of any possibility of success” should a motion to strike an application for judicial review succeed ( [NAME] v [NAME] , 2013 FCA 117 at para 7; [NAME] at 600). E. As in a motion to strike out a statement of claim, no evidence may be led on a motion to strike an application, and the facts asserted in the application must be presumed to be true. F. An application is also to be read generously and in a manner that accommodates drafting deficiencies that might otherwise undermine the adequacy of the allegations. Also see League for Human Rights of B’nai Brith Canada v Canada , 2008 FC 732 at paras 17–19, citing [NAME] v [NAME] , 2007 FC 1147 at paras 22–30 and [NAME] . (2) The ALJR does not raise a reviewable matter under section 18.1 of the Act [ 22 ] The ALJR has been brought under subsection 72(1) of the IRPA, which provides: Application for judicial review Demande d’autorisation 72 (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is, subject to section 86.1, commenced by making an application for leave to the Court. 72 (1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance, question ou affaire — prise dans le cadre de la présente loi est, sous réserve de l’article 86.1, subordonné au dépôt d’une demande d’autorisation. [ 23 ] However, 72(1) does not create the right to commence an application for judicial review in this Court. That right flows from sections 18 and 18.1 of the Federal Courts Act , RSC 1985, c F-7 [ Act ]. Those provisions read in part as follows: Extraordinary remedies, federal tribunals Recours extraordinaires : [NAME] 18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction 18 (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour : (a) to issue an injunction, writ of certiorari , writ of prohibition, writ of mandamus or writ of quo warranto , or grant declaratory relief, against any federal board, commission or other tribunal; and a) décerner une injonction, un bref de certiorari , de mandamus , de prohibition ou de quo warranto , ou pour rendre un jugement déclaratoire contre tout [NAME]; (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the [NAME] of Canada, to obtain relief against a federal board, commission or other tribunal. b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment de toute procédure engagée contre le [NAME] afin d’obtenir réparation de la part d’un [NAME]. […] […] Application for judicial review Demande de contrôle judiciaire 18.1 (1) An application for judicial review may be made by the [NAME] of Canada or by anyone [NAME] by the matter in respect of which relief is sought. 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le [NAME] ou par quiconque est directement touché par l’objet de la demande. […] […] Powers of Federal Court Pouvoirs de la Cour fédérale 18.1 (3) On an application for judicial review, the Federal Court may 18.1 (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut : (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or a) ordonner à l’[NAME] en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; (b ) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’[NAME]. [ 24 ] Subsection 2(1) of the Act defines “federal board, commission or other tribunal” as: federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of [NAME] or by or under an order made under a prerogative of the Crown, other than the Tax Court of Canada or any of its judges or associate judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 ;   ( [NAME] ) [NAME], bureau, commission ou autre organisme , ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges et juges adjoints, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867 .  ( federal board, commission or other tribunal ) [ 25 ] Section 18.1 of the Act , not subsection 72(1) of the IRPA, therefore prescribes when judicial review is available. This was explained by the Federal Court of Appeal [FCA] in [NAME] v Canada (Public Safety and Emergency Preparedness) , 2016 FCA 182: [29] The focus on whether [NAME]’s application was a “decision, determination, order, measure or question arising under the IRPA” betrays a misunderstanding of the thrust of section 72 of the Act. That section does not create a right to have a matter arising under the Act judicially reviewed. That right arises from sections 18 and 18.1 of the Federal Courts Act , R.S.C., 1985, c. F-7. [30] Section 18 grants the Federal Court exclusive jurisdiction over judicial review of federal administrative action. Section 18.1 provides that an application for judicial review may be brought “by the [NAME] of Canada or by anyone [NAME] by the matter in respect of which relief is sought.” A matter includes an order or decision but it is not limited to decisions: see [NAME] v. Toronto Port Authority , 2011 FCA 347, [2013] 3 F.C.R. 605, at paragraphs 24 and25. An allegation that a public officer has failed to discharge a duty imposed upon her by law is a matter which is amenable to judicial review. [31] Section 72 simply imposes additional procedural requirements, in the immigration context, on the exercise of the right to seek judicial review. Subsection 72(1) provides that leave is required to commence an application for judicial review. It does not define when judicial review is available. The words “… any matter — a decision, determination or order made, a measure taken or a question raised — under this Act …” are not intended to limit the access to judicial review granted by section 18.1 but rather to ensure that they are given the broadest scope so as to include any matter, including “any question raised.” [ 26 ] A “matter” under section 18.1 is not limited to an order or a decision, but includes any “matter in respect of which relief is sought” – “an ‘act or thing’, a failure, refusal or delay to do an ‘act or thing’, a ‘decision’, an ‘order’ and a ‘proceeding’” ( [NAME] v Toronto Port Authority , 2011 FCA 347 at para 24 [ [NAME] ]). [ 27 ] However, not all federal administrative conduct can be judicially reviewed – a matter that fails to affect legal rights, impose legal obligations, or cause prejudicial effects is not reviewable ( [NAME] at paras 28–29; [NAME] v Canada ([NAME]) , 2021 FCA 133 at para 29 [ [NAME] ]). For the Court to have jurisdiction, an applicant must identify “some actual conduct triggering [their] right to bring a judicial review application” ( [NAME] v Canada , 2016 FC 558 at para 13 [ [NAME] ]). (a) Legal rights, legal obligations, and prejudicial effects [ 28 ] The underlying ALJR seeks to have the Court recognize an existing right to counsel in all proceedings under the IRPA, including applications, interviews, and examinations. It also seeks changes to the [NAME]’ policies so that this right is not only judicially recognized, but also recognized and implemented by the [NAME], and seeks to eliminate public messaging that [NAME] alleges actively discourages [NAME] from retaining counsel. [ 29 ] In bringing the ALJR and asserting standing as a public interest litigant, [NAME] does not assert that the matters raised affect its own legal rights, impose legal obligations upon it, or cause it prejudicial effects. Rather, the [NAME]’ failure to recognize an existing right to counsel in immigration contexts beyond those provided for under paragraph 10(b) of the Charter and subsection 167(1) of the IRPA, and/or the active discouraging of [NAME] from retaining counsel impacts, [NAME] submits, upon the legal rights of those [NAME] who initiate, or are subjected to, proceedings under the IRPA. [ 30 ] The jurisprudence is somewhat ambiguous in identifying whose legal rights must be [NAME] to trigger a right to bring a judicial review (see for instance [NAME] at para 41; [NAME] at paras 29, 42; [NAME] v [NAME] , 2021 ONSC 7383 at para 47). Must the applicant’s legal rights be impacted, is a demonstrated impact on the legal rights of the subject of the impugned administrative conduct sufficient, or is demonstrating that legal rights are generally impacted enough? [ 31 ] I am inclined to the view that, at least where the lone applicant is a public interest litigant, a demonstrated impact on the legal rights of those [NAME] by the impugned administrative conduct may be sufficient. However, I need not reach a conclusion on this issue because, as addressed below, I am of the opinion that the ALJR fails to identify any administrative conduct or action that constitutes a reviewable matter under section 18.1 of the Act and that would therefore trigger the right to bring the ALJR. (b) [NAME] has failed to identify a reviewable matter (i) [NAME]’ position [ 32 ] The [NAME] argue that in seeking review of (1) the alleged practice of not recognizing a right to counsel and (2) the unconstitutionality arising from an omission in the IRPA, [NAME] does not seek judicial review of the administrative conduct of a federal board, commission or other tribunal, and has therefore failed to identify a reviewable “matter” ( Act , ss 2, 18 and 18.1). [ 33 ] First, the constitutional challenge to subsection 167(1) of the IRPA is untethered to any administrative conduct and therefore is not a “matter.” Second, to the extent [NAME] challenges guidelines and policies, these matters are not reviewable. Third, the ALJR seeks to challenge the conduct of multiple federal departments with different underlying facts in contravention of Rule 302, which limits judicial review to a single order unless the Court orders otherwise.

For these reasons, collectively or individually, the [NAME] argue the ALJR is fundamentally flawed and bereft of any possibility of success. [ 34 ] As explained below, I largely agree with the [NAME]’ submissions. (ii) No course of conduct [ 35 ] The Parties do not dispute that a “matter” under section 18.1 is not limited to an order or a decision of a federal board, commission or other tribunal. However, and as stated above at paragraph 27, not all federal administrative conduct is subject to judicial review ( [NAME] at para 29; [NAME] at para 29). Nor do the Parties appear to dispute that a “matter” may include a policy or course of conduct, and that a course of conduct includes a closely connected course of allegedly unlawful government action and may also include an ongoing practice ( [NAME] v Canada ([NAME]) , 2018 FC 380 at para 173; [NAME] v [NAME] , 2021 FCA 123 at paras 34–35; [NAME] v Canada ([NAME]) , 2023 FC 126 at para 36). [ 36 ] [NAME] first clarifies that contrary to the [NAME]’ objections, it is not challenging or seeking judicial review of the [NAME]’ policies or guidelines. [NAME] characterizes the [NAME]’ alleged failure to recognize the right to counsel beyond the rights conferred at subsection 167(1) of the IRPA and paragraph 10(b) of the Charter as the “practice” of not recognizing counsel in certain immigration matters and also points to the “[[NAME]’] derivative practices” in this regard. [ 37 ] In responding to the [NAME]’ Rule 302 submissions, [NAME] takes the position that the [NAME]’ alleged practices of actively discouraging [NAME] from retaining counsel reflect a course of conduct, and that this conduct is closely connected because each instance is linked to subsection 167(1) of the IRPA. These practices, [NAME] argues, are therefore derivative of subsection 167(1). [ 38 ] [COMPANY] v Canada ([NAME]) , 2004 FC 658 [ [NAME] ], the Court was considering a motion under Rule 302 to review two decisions within a single application. [ADDRESS] noted that a continuing act may be reviewed under a single application, but it “must not involve two different factual situations, two different types of relief sought, and two different decision-making bodies” ( [NAME] at para 6, citing [NAME] v Canada , 1998 CanLII 8450 (FC) at para 10). [ 39 ] In [NAME] v Canada, 2006 FC 971 [ Assn of the [NAME] ], the underlying incidents involved different facts and different government departments. [ADDRESS] nonetheless dismissed the respondent’s objection that the application was improperly constituted because judicial review was sought for more than one decision, finding there to be commonality – a single common policy was in issue and that policy was being applied to the same interested community ( Assn of the [NAME] at para 66). [ 40 ] In the case before me, the alleged practice of failing to recognize a right to counsel beyond the rights conferred at subsection 167(1) of the IRPA and paragraph 10(b) of the Charter encompasses the activities of three different government departments in the performance of the distinct duties and responsibilities imposed on those departments under the IRPA. Certain of the alleged practices are reflected in various policies and guidelines. These practices arise from the jurisprudence that has identified specific situations and circumstances in which the right to counsel may arise beyond those identified at subsection 167(1) (see paragraph 72 below). It is that jurisprudence that is being interpreted and applied by way of the various policies and practices identified by [NAME], not subsection 167(1) of the IRPA. [ 41 ] I therefore cannot agree with [NAME]’s position that the asserted link to subsection 167(1) demonstrates a closely connected course of conduct. [ 42 ] Further, the alleged practices arise in a wide range of proceedings and varying factual situations, situations that engage a similarly extensive range of issues and in turn lead to a wide range of outcomes. The impact or significance of those outcomes, both objectively and subjectively, is similarly wide ranging, distinguishing these situations from the facts relied upon in [NAME] of the [NAME] . [ 43 ] The only identified connection or commonality between occurrences of the impugned alleged practice is the underlying issue of representation. This factor alone is not sufficient to demonstrate a course of conduct that is closely connected where incidents of the impugned alleged practice arise in such a wide and varied number of circumstances. [ 44 ] The alleged failure to recognize the right to counsel in certain immigration contexts does not reflect a closely connected course of allegedly unlawful government action. The impugned alleged practice therefore does not disclose a reviewable conduct or matter under section 18.1 of the Act . [ 45 ] For the same reasons, the ALJR is not compliant with Rule 302 (an application for judicial review is to be limited to a single order), and I am not persuaded there is a basis upon which the Court might exercise its discretion under Rule 302. (iii) Constitutional challenge not grounded in any government action [ 46 ] [NAME] acknowledged in oral submissions that the constitutional challenge alleging subsection 167(1) of the IRPA violates sections 7 and 15 of the Charter is not tethered to any administrative conduct, but submits it need not be. Relying on [NAME] v Canada (Citizenship and Immigration) , 2025 FC 1201 at paras 56–59 [ [NAME] ], and the recent FCA decision in [NAME] v Canada ([NAME]) , 2025 FCA 70 [ [NAME] ] , [NAME] argues this Court has jurisdiction to determine “independent constitutional challenges,” and therefore can adjudicate the constitutionality of subsection 167(1) of the IRPA in the absence of a specific administrative decision affecting an individual. [ 47 ] In [NAME] , Justice Lobat Sadrehashemi allowed the appeal of an associate judge’s order to remove the originating document in an ALJR. In doing so, she considered the interpretation of “matter” under section 18.1 of the Act and subsection 72(1) of the IRPA in the context of a constitutional challenge and confirmed the broad ambit of a matter subject to judicial review, stating: [58] This [NAME] understanding that a matter under sections 18 and 18.1 of the Federal Courts Act encompasses more than only reviews of decisions is not altered when a party has raised a challenge to the constitutional validity of a provision and/or seeks declaratory relief. The same principle applies – a decision is not required. [ 48 ] [NAME]’s reliance on [NAME] to support its position that independent constitutional challenges may be brought under sections 18 and 18.1 is misplaced. [NAME] does not, in my view, stand for the principle that sections 18 and 18.1 of the Act confer jurisdiction to the Court to adjudicate independent constitutional challenges. [ 49 ] In addressing the issue of whether a constitutional challenge not tied to a “decision” can be judicially reviewed, Justice Sadrehashemi was concerned with two determinations made by the associate judge. First, the notion that there must be a decision to challenge in order to seek judicial review, and second, the characterization of the ALJR in issue as an independent constitutional challenge ( [NAME] at para 56). She then finds that the associate judge erred in characterizing the essential character of the proceeding as an independent Charter challenge because the Charter challenge was instead tethered to a request for relief in the form of a prohibition ( [NAME] at paras 61, 65–66). [ 50 ] Justice Sadrehashemi’s statement at paragraph 58 simply reaffirms that a constitutional challenge need not be tied to a specific administrative decision to constitute a matter amenable to judicial review. She did not conclude a constitutional challenge need not be tied to a “matter” under section 18.1. [ 51 ] [NAME] also places much weight on [NAME] where the FCA finds the application judge erred in determining the constitutional challenge in issue could not be brought by application in the absence of an underlying administrative decision. [NAME] relies on [NAME] to argue the FCA has clearly held an independent constitutional challenge may be brought under sections 18 and 18.1 of the Act . Again, I do not share [NAME]’s interpretation of [NAME] . [ 52 ] [NAME] is a short decision of two paragraphs. The FCA’s conclusion that the application judge erred is not supported by any analysis – it appears the error was not in dispute – and there are few background facts disclosed in the decision. However, the FCA does speak to the absence of “an underlying administrative decision ” (at para 1; emphasis added). In other words, [NAME] reiterates that a “matter” under sections 18 and 18.1 of the Act is not limited to a decision or order. [NAME] does not, as [NAME] asserts, conclude a constitutional challenge to federal legislation brought by way of application need not be tied to a “matter” under section 18.1. [ 53 ] In granting the appeal in [NAME] , the FCA returned the matter to this Court for “determination on all remaining issues.” After this motion was argued, Justice Cecily Strickland released Judgment and Reasons in [NAME] v Canada ([COMPANY]) , 2026 FC 425 [ [NAME] ]. Justice Strickland allowed the application for judicial review in part, declaring a portion of the challenged legislation, the [NAME] Citizenship Law [Citizenship Law], to be unconstitutional and of no force and effect. The Citizenship Law had been enacted by the [NAME] [[NAME]] pursuant to section 10 of the [NAME] Act , RSC 1985, c I-5 [ [NAME] Act ]. [ 54 ] Justice Strickland notes in [NAME] that the “Applicants state that they are challenging the decision of the [NAME] to enact the Citizenship Law contrary to the Charter , the Constitution Act, 1982 and McCallum [ v [NAME] , 2022 FC 969]” (at para 25). However, the Citizenship Law was challenged in the absence of any decision taken under the authority of the challenged legislation. Justice Strickland found the absence of an administrative decision not to be an obstacle to the Court considering the constitutional challenge by way of application, stating: [24] [ADDRESS] has also held that even if there has not been a “decision,” the Court has jurisdiction to hear a challenge to the constitutional validity of a legislative enactment, which in this case is the Citizenship Law (see [NAME] at para 50; see also [NAME] v [NAME] , 2021 FC 539 at para 12). [ 55 ] [ADDRESS] invited the Parties to provide short written submissions addressing the impact, if any, of [NAME] on the issues before the Court on this motion. The Parties did so, and those submissions have been reviewed and considered. [ 56 ] [NAME] reasserts its position that [NAME] definitively holds that this Court derives the jurisdiction by way of section 18.1 to determine an “independent constitutional challenge” to federal legislation. [NAME] also submits that [NAME] follows and applies [NAME] as it was bound to do, that I am similarly bound to do so under the principles of vertical and horizontal stare decisis , and that to the extent that [NAME] – where Justice René Leblanc, relying on [NAME] v [NAME] , 2015 FCA 218 at para 8, found that an applicant cannot bring a “stand-alone” constitutional challenge by way of application absent administrative conduct or action (at para 15) – is inconsistent, [NAME] overrules that decision. I remain unpersuaded. [ 57 ] [NAME] unquestionably considered a constitutional challenge to the impugned Citizenship Law in the absence of a decision taken pursuant to that law. [ 58 ] However, the Citizenship Law in [NAME] , and in turn [NAME] , was not legislation enacted by [NAME]; unlike the IRPA in this instance, it was a law enacted by the CFCLN, a body that, when exercising decision-making authority under the [NAME] Act , is a federal board, commission or other tribunal within the meaning of sections 2, 18 and 18.1 of the Act . That [NAME] does not expressly distinguish between the reviewability of the legislative enactments of a delegated authority such as the CFCLN and the legislative enactments of [NAME] does not extend the scope of sections 18 and 18.1, or broaden [NAME]’s definition of a “federal board, commission or other tribunal” to include [NAME] itself. [ 59 ] In my view, neither [NAME] nor [NAME] stand for the proposition that a constitutional challenge to federal legislation, untethered to any administrative action or conduct, can be brought by way of application, and are therefore not inconsistent with [NAME] . [ 60 ] In addition to [NAME] and [NAME] also cites four additional decisions in support of its argument that this Court has jurisdiction to judicially review independent constitutional challenges – [NAME] v Canada ([NAME]) , 1991 CanLII 60 (SCC), [1991] 2 SCR 69, aff’g 1988 CanLII 9455 (FCA), [1988] 3 FC 219, rev’g in part 1986 CanLII 7612 (FC), [1986] 3 FC 206 [ [NAME] ]; [NAME] v Canada ([NAME]) , 1999 CanLII 687 (SCC), [1999] 2 SCR 203, aff’g 1996 CanLII 3885 (FCA), [1997] 1 FC 689, aff’g in part 1993 CanLII 2997 (FC), [1994] 1 FC 394 [ [NAME] ]; [NAME] v Canada ([NAME]) , 2020 FC 393 [ [NAME] ]; and [NAME] v Canada ([NAME]) , 2019 FC 960 [ [NAME] ]. Each of these decisions is readily distinguished; three on the basis that the underlying proceeding was an action, not an application ( [NAME] , and [NAME] ), and in [NAME] , the constitutional challenge was tethered to a matter under sections 18 and 18.1 of the Act . [ 61 ] An independent constitutional challenge is not a reviewable matter under section 18.1 of the Act ( [NAME] at paras 8–15). (c) Conclusion [ 62 ] Having found the [NAME]’ alleged practice of failing to recognize the right to counsel in certain immigration contexts does not constitute a reviewable conduct, and that the independent constitutional challenge to subsection 167(1) of the IRPA is not a reviewable matter, this Court has no jurisdiction to hear the ALJR. This flaw is fatal, and as such I conclude the ALJR is bereft of any possibility of success. [ 63 ] The [NAME] also requested that the Court dismiss or strike out the ALJR on the basis that [NAME] does not have standing to bring the underlying application and that [NAME] lacks standing to seek relief under subsection 24(1) of the Charter . The finding that the ALJR does not raise a reviewable matter under section 18.1 of the Act is, however, determinative of the motion. I therefore need not consider those issues. [ 64 ] I will nonetheless, in the interests of completeness, address the question of public interest standing. In doing so, I need not apply the principles and thresholds governing a motion seeking to strike an application for judicial review, nor finally determine, as the [NAME] request, the issue of standing as a preliminary question of law under Rule 104(1)(a) ( [NAME] at paras 18–30). B. Public interest standing to bring the application [ 65 ] Section 18.1 of the Act provides that an application for judicial review “may be made… by anyone [NAME] by the matter in respect of which relief is sought.” It is not disputed that section 18.1 encompasses applicants “who are not [NAME] when they meet the test for public interest standing” ( Canada (Royal Canadian Mounted Police Public Complaints Commission) v Canada ([NAME]) , 2005 FCA 213 at para 56). [ 66 ] [NAME] has not taken the position it is [NAME] by the matters raised in the ALJR, but asserts that it is in the public interest to grant [NAME] standing and that it satisfies the test for public interest standing ( Canadian Doctors for [NAME] v Canada ([NAME]) , 2014 FC 651 at paras 304–308). [ 67 ] The public interest standing test was set out by the Supreme Court of Canada [SCC] in Canada ([NAME]) v Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45 [ Downtown Eastside ] and was more recently considered in British Columbia ([NAME]) v Council of Canadians with Disabilities , 2022 SCC 27 where the SCC reaffirmed the three factors that are to be cumulatively assessed and given a liberal and generous interpretation in the exercise of a Court’s discretion to grant or deny public interest standing: [28] The decision to grant or deny public interest standing is discretionary ( Downtown Eastside , at para. 20). In exercising its discretion, a court must cumulatively assess and weigh three factors purposively and with regard to the circumstances. These factors are: (i) whether the case raises a serious justiciable issue, (ii) whether the party bringing the action has a genuine interest in the matter, and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court (para. 2). (1) Serious justiciable issue [ 68 ] [NAME] contends that “the under inclusiveness of the right to counsel by s[ubsection] 167(1) of the IRPA” – a “matter” under section 18.1 of the Act – raises an important constitutional issue and therefore a serious justiciable issue. Having found [NAME]’s independent constitutional challenge is not a reviewable matter, I cannot agree that [NAME] raises a serious justiciable issue in this regard. [ 69 ] The [NAME] also submit no serious justiciable issue arises because success on the ALJR would require the “Court to overturn scores of cases from this Court, the FCA and the SCC” holding that there is no absolute right to counsel in IRPA matters. In response, [NAME] argues that the principles of vertical and horizontal stare decisis do not apply for two reasons. [ 70 ] First, the exceptions to vertical stare decisis articulated in Canada ([NAME]) v [NAME] , 2013 SCC 72 [ [NAME] ] and [NAME] v Canada ([NAME]) , 2015 SCC 5 [ [NAME] ] apply because [NAME]’s challenge to subsection 167(1) of the IRPA is unique and novel. Second, the principles of horizontal stare decisis do not apply to the prior decisions of this Court relied on by the [NAME] because each of those cases are irrelevant or distinguishable. [ 71 ] In [NAME] at paragraph 44, the SCC held that a lower court may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate.” [ 72 ] [NAME]’s argument that the ALJR captures immigration-related contexts beyond those where subsection 167(1) of the IRPA and paragraph 10(b) of the Charter confer a right to counsel does not raise a new legal issue. Nor does it disclose a fundamental shift in the debate. The long line of jurisprudence from this Court, the FCA and the SCC cited by the [NAME] demonstrates that the right to counsel has been considered and determined in multiple immigration contexts on a case-by-case basis involving a wide variety of circumstances outside those covered by subsection 167(1) of the IRPA or paragraph 10(b) of the Charter (see for example [NAME] v Canada (Minister of Employment and Immigration) , 1993 CanLII 128 (SCC), [1993] 1 SCR 1053 (an immigration examination for routine information-gathering purposes does not trigger a right to counsel under section 7 of the Charter ); [NAME] v Canada (Minister of Citizenship and Immigration) , 2006 FCA 126 at para 55 and [NAME] v Canada ( Citizenship and Immigration ), 2017 FC 562 at para 55 (no absolute right to counsel in proceedings leading to the issuance of a deportation order under section 44 of the IRPA); Canada (Citizenship and Immigration) v Paramo de Gutierrez, 2016 FCA 211 at paras 50–54 (subsection 167(1) of the IRPA provides a right to counsel at a pre-hearing interview conducted as part of a hearing’s fact-finding process)). [ 73 ] This approach accords with the established and binding principle that outside the context of paragraph 10(b) of the Charter , a right to counsel pursuant to the Charter or the common law is to be determined on the basis of a case-specific and multifactored inquiry ( British Columbia ([NAME]) v Christie , 2007 SCC 21 at paras 23, 25, 27 [ Christie ]). [ 74 ] Nor does the evidence disclosing the high stakes nature and complexity of immigration processes, or identifying that [NAME] may encounter barriers related to their personal attributes, experience a diminished ability to meaningfully participate in immigration-related proceedings, and see a diminished likelihood of a successful outcome in the absence of counsel suggest the exceptions to vertical stare decisis identified in [NAME] and [NAME] are of application. [ 75 ] Similarly, the legal arguments identified by [NAME] do not raise issues that undermine the [NAME] principle set out in Christie and that is reflected in the immigration-specific jurisprudence. For example, [NAME] cites New Brunswick ([COMPANY]) v G(J) , 1999 CanLII 653 (SCC), [1999] 3 SCR 46 [ G(J) ] in identifying that an individual’s capacity is “to be considered as an additional Baker factor” raising a new legal argument. Yet, in G(J) the SCC recognized the constitutional obligation to provide state-funded counsel only in “the particular circumstances of this case” (at paras 1–2). While G(J) may reflect a change or development in the law, a mere change cannot engage the circumstances identified in [NAME] . The new legal issues raised or change in law that would cause the reconsideration of the settled rulings of higher courts must demonstrably impact upon the legal framework or analysis underpinning that otherwise binding jurisprudence ( [NAME] at paras 44–46). [ 76 ] For similar reasons, [NAME]’s position that horizontal stare decisis is of no application is equally unpersuasive. That the cases cited by the [NAME] can be distinguished on their facts highlights the application of the [NAME] principle in Christie , and they are not inconsistent with that principle. [ 77 ] There is no merit to the argument that the exceptions to the doctrine of vertical stare decisis are available to [NAME] or that the principles of horizontal stare decisis are inapplicable in the circumstances of this case. (2) Real stake or genuine interest [ 78 ] The [NAME] argue [NAME] has not demonstrated a “real stake” or “genuine interest” in the litigation. The [NAME] cite [NAME]’s limited history as an association with an interest in Canadian immigration systems and laws, the fact that it has not previously been granted standing as a public interest litigant, and that the organization’s stated roles include representation of the immigration bar in advancing this position. The [NAME] also argue that [NAME] does not require public interest standing to participate in litigation, [NAME] members having the ability to act in their traditional role as counsel on behalf of those clients [NAME] by the impugned statutory provisions and policies identified in the ALJR. [NAME]’s interest, the [NAME] argue, is purely jurisprudential. [ 79 ] [NAME] submits it has a “real stake” or “genuine interest” in the issues raised in this proceeding, having continuously advocated for the right to counsel in immigration matters since its creation in January 2021. It submits that its limited litigation history is attributable to its recent formation and that its failure to have represented [NAME] adversely impacted by the non-recognition of the right to counsel is not a basis upon which to refuse public interest standing. [ 80 ] I am satisfied that [NAME] has disclosed a commitment to advancing a comprehensive right to counsel in IRPA matters and is not a “mere busybody.” [NAME] having conceived of this challenge, compiled an application record including seven affidavits, and having advanced well-articulated legal issues in commencing proceedings are factors that support a conclusion that [NAME] has a real stake or interest in this instance. (3) Reasonable and effective means of bringing the issue before the Court [ 81 ] [NAME] submits this proceeding is a reasonable and effective way to address the issues raised. [NAME] contends the four non-exhaustive factors identified in Downtown Eastside at para 51 under this branch of the test all weigh in favour of granting public interest standing: (1) it has the capacity to bring forward the litigation based on its resources, expertise, and submission of a comprehensive evidentiary record; (2) the matter transcends [NAME]’s interests in assisting [NAME] who face significant barriers in access to justice; (3) alternative, more effective means to challenge the failure to recognize the right to counsel do not exist; and (4) those more [NAME] by the issues raised support [NAME]’s standing and are not content with the status quo . [ 82 ] There is little dispute on factors one, two, and four. However, the Parties do disagree on the third factor. [ 83 ] [NAME] argues that litigating the right to counsel on a case-by-case basis and in a specific factual context is (1) unrealistic and impractical, and (2) needlessly overburdens the Court, whose resources have been recognized to be scarce. [ 84 ] The [NAME] argue, and I agree, the question of the right to counsel in immigration matters is one that has been raised, and continues to be raised, by [NAME] such that there is no concern that the issue would be immunized from judicial scrutiny. [ 85 ] While I acknowledge that case-by-case determinations impact on scarce judicial resources, this factor must be weighed against the nature of the issue to be determined – recognizing the right to counsel outside the paragraph 10(b) context in the absence of a [NAME] also deprives the Court of the context and circumstances required to meaningfully engage in a case-specific and context-dependent analysis. (4) Conclusion [ 86 ] Having individually addressed and cumulatively considered the three Downtown Eastside factors, I find that [NAME]’s assertion of public interest standing fails in this instance. As a result, had I concluded above the ALJR was not doomed to fail, I would nonetheless find that [NAME] cannot be granted public interest standing, and the [NAME]’ motion would be allowed on this ground.

VI. Leave to Amend [ 87 ] During oral submissions, [NAME] raised the possibility of amending the ALJR, specifically in the event the Court were to conclude certain of the relief sought was not available to it. [ 88 ] In [NAME] , Justice Leblanc addresses when an amendment to pleadings should be allowed and when they should be denied in the context of an application, stating: [24] Amendments for pleadings should be allowed at any stage of an action for the “purpose of determining the real question in controversy between the parties” ( [COMPANY] v [COMPANY], 2009 FC 555, at para 25 [ [NAME] ]). However, amendments will be denied, and pleadings will be struck, when it is plain and obvious that the underlying claim discloses no reasonable cause of action ( [NAME], at para 26; Cardinal v R (1993), 72 FTR 309, 46 ACWS (3d) 377). In this case, the Applicant’s amendments just build on his theory of the case. They do not remedy the fact that he does not challenge the conduct of some “federal board, commission or other tribunal” so as to trigger his right to bring a judicial review application and the Court’s authority to entertain it. [ 89 ] In this case, amendments will not remedy the fundamental flaws in the pleadings, nor will amendments remedy the reasons for my conclusion that [NAME] has not raised a matter subject to judicial review under section 18.1 of the Act . [ 90 ] Leave to amend the ALJR will therefore not be granted.

JUDGMENT in IMM-12116-25 THIS COURT’S

JUDGMENT is that : The Respondents’ motion is granted. The application for leave and for judicial review is struck without leave to amend. “Patrick Gleeson” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-12116-25 STYLE OF CAUSE: [COMPANY] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION, THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, AND THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 10, 2025

REASONS AND judgment: GLEESON J. DATED: MAY 13, 2025 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondents SOLICITORS OF RECORD : [NAME] and Solicitors Toronto, [NAME] and Solicitors Toronto, Ontario For The Applicant [NAME] of Canada Toronto, Ontario For The Respondents