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