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Victory For Quebec Skilled Worker Applicants

Posted on April 27, 2015
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 Thousands of Canadian immigration applications may be affected by court decision

The Superior Court of Quebec has arrived at a decision in the case of Stasenko v. MICC et al, which challenged the government of Quebec’s decision to apply changes to the Quebec Skilled Worker Program’s (QSWP) eligibility criteria retroactively, having previously promised applicants that their application would be processed based on regulations in effect when it was submitted.

Legal proceedings were initiated by the law firms of Campbell Cohen (David Cohen) and Irving Mitchell Kalichman (Mathieu Bouchard) in an effort to prevent the government of Quebec from applying new immigration regulations retroactively. The decision centred on the principle ofpromissory estoppel — the legal principle that a promise is enforceable by law when the promisor (person making the promise) makes a promise to the promisee (person being promised) who relies on it to his or her detriment.

This important decision represents a victory for thousands of applicants whose applications for immigration to Canada under the QSWP may have been affected by regulations introduced by the government of Quebec that came into effect on August 1, 2013.

The background

In February, 2012, Quebec released a document checklist for the QSWP. No such checklist existed before this date. A key sentence of this checklist stated ‘your application for a selection certificate will be processed based on regulations in effect when it was submitted.’ This sentence was removed from the checklist in May, 2013.

The QSWP is a points-based Canadian immigration program. Candidates are assessed according to various selection factors, such as language ability and level of education, and awarded a certain number of points based on these factors.

The government of Quebec enacted new regulations that came into effect on August 1st, 2013, the combined effect of which significantly changed the way points are calculated under the QSWP. Among the changes made to the points system were changes to how points were to be awarded for language ability. Whereas previously applicants could be awarded points according to their language ability, even if their abilities were basic or intermediate, the new regulations determined that points for language ability could only now be awarded if the applicant could prove an advanced-intermediate ability.

These regulations were applied retroactively to all applications where preliminary processing had not yet begun, meaning that these applications would be assessed according to the new points system, despite the promise made to applicants that their application for a selection certificatewould be processed based on regulations in effect when it was submitted.

By the end of June, 2013, there were more than 50,000 affected applications for a selection certificate under the QSWP that had been received by the government of Quebec. Many of these applications had been submitted while the terms of the original checklist were in effect.

The only transitional measure put in place was to allow applicants who had submitted their applications between July 8 and August 16, 2013 to withdraw their application voluntarily and obtain a refund.

Victory For Quebec Skilled Worker Applicants

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