Constitutional Challenges to sections 101(1)(b.1) and 101(1)(b.2) of the
Immigration and Refugee Protection Act

PDF - Constitutional Challenges to sections 101(1)(b.1) and 101(1)(b.2) of the Immigration and Refugee Protection Act 

Date: 20260820

Ottawa, Ontario, August 20, 2026

PRESENT: Chief Justice Diner

WHEREAS a high number of applications under the Immigration and Refugee Protection Act (IRPA) have been filed that challenge the constitutionality of section 101(1)(b.1) and/or section 101(1)(b.2), which were brought into law by Bill C-12, the Strengthening Canada’s Immigration System and Borders Act (An Act respecting certain measures relating to the security of Canada’s borders and the integrity of the Canadian immigration system and respecting other related security measures);

AND WHEREAS the number of such applications seeking the same or essentially the same relief is placing unprecedented pressure on the capacity of the Court and of the Court’s Registry;

AND WHEREAS in accordance with Rules 3 and 47 of the Federal Courts Rules and the Court’s inherent jurisdiction to control its own process, the Court has concluded that certain measures must be taken to secure the just, most expeditious and least expensive outcome of these proceedings;

AND WHEREAS due to the number of such similar or identical applications and their complexity, the Court has concluded that all current and future applications for leave and judicial review that seek to challenge the constitutionality of section 101(1)(b.1) and/or section 101(1)(b.2) shall be designated as specially managed proceedings in accordance with Rule 384 of the Federal Courts Rules;

AND WHEREAS the Court has concluded that the said applications should be specially managed as a group;

SPECIAL ORDER

THE COURT HEREBY ORDERS THAT:

1. Pursuant to Rule 384 of the Federal Courts Rules, all current and future applications for leave and judicial review that challenge the constitutionality of section 101(1)(b.1) and/or section 101(1)(b.2) of the Immigration and Refugee Protection Act (the “C-12 Applications”) shall continue as specially managed proceedings.
2. Pursuant to Rule 383 of the Federal Courts Rules, Associate Judge Kirkland G. Shannon and Justice Love Saint-Fleur are assigned as Case Management Judges of the C-12 Applications, though motions and requests for interlocutory relief may be adjudicated by other members of the Court, as directed by the Judicial Administrator.
3. All current and future C-12 Applications are hereby placed in abeyance, with all timelines being suspended, pending further Order or Direction of a Case Management Judge.
4. Any applicant in a C-12 Application may request an anonymity Order pursuant to Rule 8.1 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules by filing Form IR-5.
5. Upon receipt of a Form IR-5, and pending a decision on leave, the Registry shall provisionally anonymize any documents hereafter prepared by the Court, using the applicant’s initials to identify the individual.
6. For C-12 Applications currently before the Court, applicants shall have 30 days from the date of this Order to file a Form IR-5, failing which no anonymity Order will be provisionally applied to their file.
7. The Registry is directed to place a copy of this Order in the Court File for each current and future C-12 Application and to provide a copy of same to each current and future applicant upon the filing of a C-12 Application.

Alan S. Diner
Chief Justice

Date: 20260828

Docket:
IMM-8598-26; IMM-9041-26; IMM-10832-26; IMM-17237-26
and those case-managed by Special Order dated August 20, 2026

Ottawa, Ontario, August 28, 2026

PRESENT: Mr. Associate Judge Shannon, Case Management Judge

In the matter of numerous applications for leave and judicial review challenging the constitutionality of sections 101(1)(b.1) and 101(1)(b.2) of the Immigration and Refugee Protection Act, SC 2001, c 27 as amended by the Strengthening Canada’s Immigration System and Borders Act, SC 2026, c 4,

BETWEEN: VARIOUS (Applicants) and VARIOUS (Respondents)

ORDER

CONSIDERING the Chief Justice’s Special Order Constitutional Challenges to sections 101(1)(b.1) and 101(1)(b.2) of the Immigration and Refugee Protection Act (August 20, 2026) (the “Special Order”), placing all current and future applications for leave and judicial review challenging the constitutionality of either of the named provisions (the “C-12 Applications”) into common case management pursuant to Rule 384 of the Federal Courts Rules, SOR/98-106 [Rules];

AND CONSIDERING that the Special Order assigned Justice Saint-Fleur and Associate Judge Shannon as Case Management Judges pursuant to Rule 383;

AND CONSIDERING that the Special Order placed all C-12 Applications in abeyance, with all timelines being suspended, pending further Order or Direction of a Case Management Judge;

AND CONSIDERING the submissions made by the respondents and by counsel delegated to speak on behalf of an initial group of applicants at a case management conference held on August 6, 2026;

AND CONSIDERING the Court is satisfied that the just, most expeditious and least expensive means of addressing the common legal issues that arise across all C-12 Applications is to proceed to a hearing on a small number of “test” or “representative” cases;

AND CONSIDERING the Court is satisfied that, by operation of horizontal stare decisis, the Court’s judgement(s) in the representative cases, once released, will address the common legal issues that arise across all C-12 Applications and will thereby reduce or eliminate the need for a significant number of the remaining C-12 Applications to proceed;

AND CONSIDERING that a procedure must be established for the identification of the representative cases and the common legal issues that will be addressed by way of those cases;

AND CONSIDERING Rule 385 and the powers of a Case Management Judge;

THIS COURT ORDERS that:

1. The following proceedings are hereafter to be designated as Lead Cases: IMM-8098-26; IMM-8598-26; IMM-9041-26; IMM-10832-26; IMM-17237-26 [Lead Cases].
2. By no later than October 1, 2026, counsel for the applicants in the five (5) Lead Cases are directed to consult with the respondent(s) and with all applicants in the C-12 Applications, and to propose a list of Common Legal Issues that will be litigated via representative cases [Common Legal Issues].
3. By no later than October 1, 2026, counsel for the applicants in the five (5) Lead Cases are directed to consult with counsel for the respondent(s) and with all applicants in the C-12 Applications, and to propose a maximum of ten (10) representative cases that permit the litigation of all Common Legal Issues [Representative Cases].
4. Once filed, the Court will post all proposals outlined in paragraphs 2 to 3 above on the Federal Court’s website.
5. By no later than October 15, 2026, any other applicant in any C-12 Application may file a submission of not more than two (2) pages, setting out an alternative proposal for Common Legal Issues and/or Representative Cases [Alternative Proposal]. An applicant’s 2-page submissions in support of an Alternative Proposal must explain how the issues raised by the Alternative Proposal are not adequately addressed in the proposals filed pursuant to paragraphs 2 and 3 above.
6. By no later than October 30, 2026, counsel for the respondent(s), Daniel Engel, and counsel for the applicants in the five (5) Lead Cases, shall each be permitted to file a response to the Alternative Proposals filed in accordance with paragraph 5 above.
7. All documents filed pursuant to paragraphs 2 to 6 above must be served on counsel for the respondent(s), Daniel Engel (Daniel.Engel@justice.gc.ca) and on counsel of all Lead Cases: Maureen Silcoff (msilcoff@silcoffshacter.com), Heather Neufeld (heather@heatherneufeldlaw.com), Lorne Waldman (lorne@waldmanlaw.ca), Anthony Navaneelan (navanea@lao.on.ca), Benjamin Liston (listonb@lao.on.ca) and Molly Joeck (molly.joeck@irlc.ca).
8. All documents filed pursuant to paragraphs 2 to 6 above must be filed by email sent to IMM-C12@cas-satj.gc.ca. The Registry is directed to reject for filing any such document that is not accompanied by proof that it was served on the individuals listed in paragraph 7 of this Order.
9. The Court will then consider the proposals and designate, via Order, a final list of Representative Cases and the Common Legal Issues to be litigated in those cases.
10. The Court will then set a schedule for the filing of materials in the Representative Cases.
11. All other non-Representative Case applications, including any yet to be filed with the Court, shall be held in abeyance by the Court, pending the final disposition of the Representative Cases on the Common Legal Issues.
12. The Registry is directed to place a copy of this Order in the Court File for each current and future C-12 Application and to provide a copy of same to each current and future applicant upon the filing of a C-12 Application.

Kirk G. Shannon
Associate Judge

C-12 Litigation – Lead Case proposals on Common Legal Issues and Representative Cases

This outline was prepared pursuant to A.J. Shannon’s Order dated August 28, 2026, stating:

3. By no later than October 1, 2026, counsel for the applicants in the five (5) Lead Cases are directed to consult with the respondent(s) and with all applicants in the C-12 Applications, and to propose a list of Common Legal Issues that will be litigated via representative cases [Common Legal Issues]
4. By no later than October 1, 2026, counsel for the applicants in the five (5) Lead Cases are directed to consult with counsel for the respondent(s) and with all applicants in the C-12 Applications, and to propose a maximum of ten (10) representative cases that permit the litigation of all Common Legal Issues [Representative Cases].

In proposing these Common Legal Issues, we note that development of the relevant legal arguments remains in the early stages. Identifying these common issues at this time is not intended to foreclose further refinement of the issues in individual representative files.

We also note that the following Representative Cases are proposed without prejudice to the right to substitute alternate cases should any of the Representative Cases proposed here become moot or should any of the Applicants in the proposed Representative Cases decide not to continue participating in the litigation. As such, this list is not intended to foreclose substitution of alternate representative cases should the need arise. We further note that some cases may represent intersecting legal issues.

Bearing this in mind we propose the following Common Legal Issues and Representative Cases to advance those Issues:

ISSUE ONE: Issues common to all cases challenging ineligibility under s. 101(1)(b.1) of the Immigration and Refugee Protection Act (“IRPA”):

CASES TO ADVANCE ISSUE ONE:

1. IMM-xxxxx-26 (Montréal, Québec)

Basis of claim: The Applicant is a 20-year-old citizen of a South American country who faces a serious risk of persecution on the basis of his membership in a particular social group and imputed political opinion due to his mother’s work as a human rights activist. His fear intensified after a vicious attack on the family home in mid-November 2024 and a continuing threatening atmosphere thereafter.

Instituting the claim and ineligibility finding: The Applicant entered Canada along with his mother, father and younger sister in March 2026 and each member of the family commenced a claim for refugee protection. On July 17, 2026 the Applicant was the only member of the family whose claim was found ineligible pursuant to ss. 101(1)(b.1) and 101(1.1) of the IRPA due to a previous entry he made to visit his grandparents in Canada in 2023 when he was an unaccompanied minor, aged 17.

Legal basis for proposed inclusion: Permits the litigation of issues 1(1) [“first entry rule”], 1(2) and 1(3) in the list of common legal issues.

Counsel: Pia Zambelli, Suzanne Taffot

2. IMM-xxxxx-26 (Montréal, Québec)

Basis of claim: The Applicant is a citizen of a north African country who faces a serious risk of persecution on the basis of her gender identity as a transgender woman. Has a sur place element to her claim, as the gender transition represents a major change in circumstances following her entry into Canada.

Instituting the claim and ineligibility finding: The Applicant entered Canada as a student in 2019, with first entry after June 24, 2020 taking place on July 12, 2021. Although she had experienced gender dysphoria from her earliest memories as a child, the Applicant had only been able to identify it as such in May 2023 and began medically transitioning on January 1, 2024. Her gender transition is a process which is still ongoing and with which she is still coming to terms. Faced with impending expiry of her post-graduation work permit, and afraid to return to her home country as a transgender woman, the Applicant sought legal advice and filed a refugee claim on June 17, 2026. On July 14, 2026, the Applicant’s claim was found ineligible pursuant to ss. 101(1)(b.1) and 101(1.1) of the IRPA because the claim was not made within one year of first entry after June 24, 2020.

Legal basis for proposed inclusion: Permits the litigation of issues 1(1), 1(2) 1(3) in the list of common legal issues

Counsel: Adam Sadinsky, Maureen Silcoff

3. IMM-xxxxx-26 (Ottawa, Ontario)

Basis of claim: The Applicant is a citizen of highly repressive Southeast Asian country who faces serious future risk of persecution on the basis of her political opinion due to her association and extensive volunteer work with an opposition party. There is a sur place element to her refugee claim in that she met with officials of the opposition party when they visited Canada, which greatly increases her risk.

Instituting the claim and ineligibility finding: The Applicant entered Canada in 2024 on a study permit to continue her professional career and anticipated qualifying for permanent residence in Canada through an economic stream as a highly-skilled professional while holding a post-grad work permit. Due to a mistake in the submission of her post-grad work permit application in 2026, however, the Applicant suddenly found herself without status in Canada and at risk of having to return to her home country. As a result, she immediately filed her refugee claim which was found ineligible on March 30, 2026 pursuant to s. 101(1)(b.1) of the IRPA due to the fact that she made the claim more than a year after entry.

Legal basis for proposed inclusion: Permits the litigation of issues 1(1), 1(2) and 1(3) in the list of common legal issues.

Counsel: Heather Neufeld, Maureen Silcoff

ISSUE TWO: Issues common to cases challenging ineligibility under s. 101(1)(b.1) of the IRPA involving applicants who are women, LGBTQ, religious converts, minors or youth, mentally or physically disabled or members of other protected groups under s. 15:

CASES TO ADVANCE ISSUE TWO:

4. IMM-xxxxx-26 (Vancouver, British Columbia)

Basis of claim: The Applicant is a citizen of a central American country who faces a serious risk of persecution on the basis of her membership in a particular social group based on ongoing intimate partner violence from her husband. The violence took place both in her country of origin and in Canada.

Instituting the claim and ineligibility finding: The Applicant entered Canada in March 2023 with her children in order to accompany her spouse who had a work permit. The Applicant managed to leave the abusive relationship in May 2025, fleeing to shelters and other support organizations. She applied for and received a Family Violence Temporary Resident Permit (valid to November 2026), following which her spouse returned to their country of origin. The Applicant fears continued abuse from her spouse if she is forced to return to her home country. The Applicant made a claim for refugee protection in February 2026 once she had broken free of her husband’s control and obtained the necessary social supports. The Applicant’s claim was found ineligible on July 24, 2026 pursuant to s. 101(1)(b.1) of the IRPA due to the fact that she made the claim more than a year after entry.

Legal basis for proposed inclusion: Permits the litigation of issue 2(1) in the list of common legal issues. Illustrates how the one-year bar disproportionately impacts and discriminates against women claimants.

Counsel: Laura Best, Asiya Hirji, Darcy Golden

5. IMM-xxxxx-26 (Toronto, Ontario)

Basis of claim: The Applicant is a citizen of a west Asian country who faces a serious risk of persecution on the basis of her gender identity as a transgender woman.

Instituting the claim and ineligibility finding: The Applicant entered Canada in August 2022 as the accompanying spouse of her now ex-wife. At the time of arrival to Canada, the Applicant presented as male and was in a heterosexual marriage. Leading up to the breakdown of the marriage in late 2024, the Applicant began the process of gender transition but did not publicly identify as a woman until April 2025. In late 2025, her gender identity was affirmed through therapy sessions in Canada but it was harshly rejected by her family who learned of it in her country of origin. Fearing persecution if she were forced to return, the Applicant commenced a claim for refugee protection in June 2026. The Applicant’s claim was found ineligible on July 22, 2026 pursuant to s. 101(1)(b.1) of the IRPA due to the fact she made the claim more than a year after entry.

Legal basis for proposed inclusion: Permits the litigation of issue 2(1) in the list of common legal issues. Illustrates how the one-year bar disproportionately impacts and discriminates against LGBTQ persons.

Counsel: Arvin Afzali, Anthony Navaneelan, Benjamin Liston

6. IMM-xxxxx-26 (Winnipeg, Manitoba)

Basis of claim: The Applicant is a citizen of a sub-Saharan African country who faces a serious risk of persecution on the basis of her membership in a particular social group based on sexual orientation as a woman and as someone with serious mental health illness.

Instituting the claim and ineligibility finding: The Applicant entered Canada in August 2024 on a student visa. She had previously struggled with her mental health and had, what she now understands to be, her first psychotic episode in March 2024. At that time, her family placed her in rehabilitation facilities where she experienced mistreatment. Following her entry into Canada, the Applicant continued to experience psychosis and failed her courses in the fall semester. She was hospitalized in March 2025 and diagnosed with psychosis. Following this, the Applicant lived in a shelter until further hospitalization in early 2026 when she was diagnosed with schizophrenia. The Applicant feared persecution in her home country based on her sexual orientation and mental health status. She attempted to commence a claim for refugee protection in February 2026 but could not complete the process on her own. With the assistance of counsel, the Applicant filed a claim in July 2026. The Applicant’s claim was found ineligible late that same month pursuant to s. 101(1)(b.1) of the IRPA due to the fact that she made the claim more than a year after entry.

Legal basis for proposed inclusion: Permits the litigation of issue 2(1) in the list of common legal issues. Illustrates how the one-year bar disproportionately impacts and discriminates against persons with a disability.

Counsel: Nalini Reddy, Anne Cécile Khouri-Raphael, Philippa Geddie

7. IMM-xxxxx-26 (Ottawa, Ontario)

Basis of claim: The Applicants are citizens of a west Asian country who face a serious risk of persecution on the basis of their religion due to their conversion from Islam to Christianity as conversion is illegal in their country of origin.

Instituting the claim and ineligibility finding: The female Applicant entered Canada in March 2021 as an international student, and the male Applicant joined her in December 2021. Though the Applicants were born and raised as Muslims, their personal and religious circumstances changed materially after their arrival in Canada, including through their gradual movement toward and eventual conversion to Christianity. The male Applicant was baptized in June 2025 and the female Applicant in March 2026. The Applicants now fear returning to their country of origin because of their conversion from Islam to Christianity. The female Applicant’s risk is also an intersection of religion and gender; she is unwilling to comply with compulsory religious gender-based restrictions imposed upon women in their country of origin. The Applicants made their claims for refugee protection on February 3, 2026. The Applicants’ claims were found ineligible on September 9, 2026 pursuant to s. 101(1)(b.1) of the IRPA due to the fact that they made the claim more than a year after entry.

Legal basis for proposed inclusion: Permits the litigation of issue 2(1) in the list of common legal issues. Illustrates how the one-year bar disproportionately impacts and discriminates against claimants on the basis of their religion

Counsel: Arghavan Gerami, Claudia Molina

ISSUE THREE: Issues common to all cases challenging ineligibility under s. 101(1)(b.2) of the IRPA

ISSUE FOUR: Issues common to cases challenging ineligibility under s. 101(1)(b.2) of the IRPA involving applicants who are women, LGBTQ, religious converts, minors or youth, mentally or physically disabled or members of other protected groups under s. 15:

CASE TO ADVANCE ISSUES THREE AND FOUR:

8. IMM-xxxxx-26 (Toronto, Ontario)

Basis of claim: The Applicants, a mother and minor child, are citizens of a Central Asian country, who face a serious risk of persecution based on the mother’s perceived political opinion and membership in a particular social group, namely women

Instituting the claim and ineligibility finding: The Applicants were smuggled out of their country of origin to through various countries until they reached Mexico. From there, they were hidden in container trucks and transported through the U.S. and into Canada and dumped on the side of the road. When the mother attempted to ask questions about their route, she was beaten by the driver. The Applicants were physically prevented from claiming in the U.S. by their smugglers and were legally prevented from doing so on account of the recent Board of Immigration Appeals ruling in Matter of K-E-S-G which decided that a social group defined only by sex or sex plus nationality does not qualify for US asylum. The Applicants filed a refugee claim more than 14-days after their arrival in Canada. The Applicants’ claims were found ineligible pursuant to s. 101(1)(b.2) of the IRPA due to the fact that they entered at the U.S.-Canada border between ports of entry and made their claim more than 14 days later.

Legal basis for proposed inclusion: Permits the litigation of issues 3(1), 3(2), 3(3) and 4(1) in the list of common legal issues.

Counsel: Lorne Waldman

ISSUE FIVE: Issues common to challenges to ss. 101(1)(b.1) and/or 101(1)(b.2) involving applicants who are subject to removal orders that are not in force because they are from countries subject to an Administrative Deferral of Removal (“ADR”) or a Temporary Suspension of Removal (“TSR”);

CASES TO ADVANCE ISSUE FIVE:

9. IMM-xxxxx-26 (Vancouver, British Columbia)

Basis of claim: Citizen of a country subject to an Administrative Deferral of Removal (ADR) who explored Christianity and used his business to print political and religious materials. His business was raided; the Applicant was arrested and interrogated. He then fled to Canada in December 2023.

Instituting the claim and ineligibility finding: The Applicant’s wife and nine-year-old child remained in his home country when he arrived in Canada. Fearful of being separated from them, he attempted to obtain visitor visas for them so they could join them in Canada. The visas were refused and he subsequently sought legal advice. He finally concluded that he would be unable to bring them to Canada on visitor visas and made a claim on 10 June 2025 (days after Bill C-12 was introduced), by which time more than one year had passed since his arrival in Canada.

Legal basis for proposed inclusion: Permits the litigation of issues 5(1)(a), (b) and (c) and 5(2) in the list of common legal issues.

Counsel: Erin Roth, M. Yanni Nicolidakis-Mustafa

10. IMM-xxxxx-26 (Vancouver, British Columbia)

Basis of claim: National of a country subject to a Temporary Suspension of Removals (TSR). She came to study in Canada while the former government was in power in her home country, but then there was a change of government. Her family fled to a refugee camp after the change of government.

Instituting the claim and ineligibility finding: The Applicant was pursuing higher education in Canada, but after the change in government in her homeland, which led to extremely repressive conditions, especially for women, she suffered extreme psychological stress due to the separation from her family and the precarious situation in which her family was living. She therefore could no longer continue complying with the conditions of her study permit and was forced to make a refugee claim, by which time more than one year had passed after her first entry to Canada.

Legal basis for proposed inclusion: Permits the litigation of issues 5(1)(a), (b) and (c) and 5(2) in the list of common legal issues.

Counsel: Molly Joeck

PDF - Direction, Associate Judge Shannon, case management judge 

Date: 20261015

Docket:
IMM-8098-26; IMM-8598-26; IMM-9041-26; IMM-10832-26; IMM-17237-26
and those case-managed by Special Order dated August 20, 2026

Fredericton, New Brunswick, October 15, 2026

PRESENT: Mr. Associate Judge Shannon, Case Management Judge

In the matter of numerous applications for leave and judicial review challenging the constitutionality of sections 101(1)(b.1) and 101(1)(b.2) of the Immigration and Refugee Protection Act, SC 2001, c 27 as amended by the Strengthening Canada’s Immigration System and Borders Act, SC 2026, c 4

BETWEEN: VARIOUS (Applicants) and VARIOUS (Respondents)

DIRECTION

The Court is in receipt of letters from the Respondent, dated September 29, 2026, and from Lorne Waldman, Applicant’s counsel in one of the Lead Cases, dated October 2, 2026, addressing the Crown’s request for a direction regarding the criteria required for inclusion in the common case management of the C-12 Applications.

The Court notes both the language of the Chief Justice’s Special Order of August 20, 2026, and that of paragraph 3 of the Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (August 12, 2026) (“Guidelines”). Paragraph 3 of the Guidelines indicates that the Court will consider any further elaboration of the grounds of review that are included in a memorandum of fact and law that is provided as part of an Applicant’s Record. In accordance with paragraph 3, Rule 3 of the Federal Courts Rules, SOR/98-106 and the Court’s inherent jurisdiction to control its own process, all Applications for Leave and Judicial Review that refer to sections 101(1)(b.1) or 101(1)(b.2) of the Immigration and Refugee Protection Act, SC 2001, c 27, will be presumptively be included in the C-12 Applications’ common case management group and subject to the period of abeyance set out in the Special Order of August 20, 2026.

However, in cases where an Applicant’s Record has been filed and neither the Application for Leave and Judicial Review nor the Applicant’s Memorandum of Fact and Law includes a constitutional challenge to sections 101(1)(b.1) or 101(1)(b.2) of the Immigration and Refugee Protection Act, SC 2001, c 27, the case will be excluded from common case management and subject to the standard timelines set by the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22.

This direction is made without prejudice to a party’s right to raise an objection, by way of letter, where a file has incorrectly been included in common case management of C-12 Applications. Furthermore, the Court makes no finding as to whether Applications for Leave and Judicial Review that do not explicitly challenge the constitutionality of the provisions at issue require amendment in order to succeed at the leave stage or on the merits. Applicants may move under Rule 75 to amend their Applications for Leave and Judicial Review to include additional grounds of review, either by way of informal motion if on consent or unopposed, or by formal motion.

A copy of this direction shall be placed in the Court file of each of the C-12 Applications, as defined in the Special Order, and shall be placed on the Federal Court website.

Kirk G. Shannon
Associate Judge