Litigation Strategy
Step-by-Step Strategic Framework
Immediately Preserve All Deadlines
The most urgent priority is ensuring no deadlines are missed. Respond to any PFL within 21 days. File the Basis of Claim (BOC) form even if you are ineligible for IRB referral — it is currently required by IRCC to access the PRRA process and the BOC narrative will be essential later.
Build the Full Record Early
Gather all evidence of entry date, travel history, and reasons for delay in filing. Country condition evidence — news reports, human rights reports, government travel advisories — should be compiled from the beginning. This record serves the PRRA, H&C, and any judicial review.
File PRRA and H&C Simultaneously
Pursue both streams in parallel where possible. The H&C application addresses establishment in Canada and hardship; the PRRA addresses forward-looking risk. Neither is a substitute for the other. Filing both widens the available legal avenues and may provide more grounds for deferring removal.
Identify Charter and Convention Arguments
The one-year bar may be challenged on several legal grounds:
- Singh v. Minister of Employment and Immigration (1985): The Supreme Court established the right to an oral hearing in refugee proceedings under s.7 of the Charter. The PRRA does not guarantee this.
- Non-refoulement: The 1951 Refugee Convention and Canada's international obligations prohibit returning anyone to a country where they face persecution — the law must not violate this principle in practice.
- Arbitrariness: The CBA's position is that the one-year rule is arbitrary — delay in filing a claim should not, on its own, bar protection.
Seek a Stay of Removal Before Any Judicial Review
Advocates are pushing for a statutory right to a stay of removal for those facing removal after a negative PRRA, pending judicial review. Until that is established legislatively, practitioners should proactively seek stays through Federal Court. The three-part test (serious issue, irreparable harm, balance of convenience) applies.
Coordinate with Legal Aid and Advocacy Organizations
Legal Aid Ontario has issued specific guidance on certificate coverage for C-12-affected clients, including BOC preparation and PRRA certificates. Organizations like the Canadian Council for Refugees (CCR), Amnesty International, and the HIV Legal Network are tracking systemic issues and may be coordinating broader constitutional challenges.
Key Systemic Concerns to Monitor
The PRRA acceptance rate (~33%) is roughly half that of the IRB (~63%). It lacks guaranteed oral hearings, an independent decision-maker structure, and a meaningful right of appeal. A 2025 study of over 180,000 Federal Court cases found that diverting claims to PRRA is likely to generate more errors and more litigation — not less.
Bill C-12 was enforced within 48 hours of Royal Assent — unprecedented in Canadian immigration history. Critics argue this pace raises serious procedural fairness concerns, as claimants and lawyers had virtually no time to prepare responses before letters began arriving.
If a claim is deemed abandoned (e.g., because a claimant missed a communication deadline), the person is barred from accessing a PRRA for 12 months and is not entitled to a stay of removal. This creates a risk of deportation without any risk assessment. The automatic nature of the abandonment process, without considering communication barriers or exceptional circumstances, is a significant concern.