Support for test cases
LAO's refugee law test case strategy
LAO’s Refugee Law Office (RLO) is a centre of excellence with a long history of LAO-supported test case litigation. LAO lawyers at the RLO have represented clients and public interest organizations at all levels of tribunals and courts in test case matters.
The vast majority of cases at the RLO that raise test case issues are determined at the tribunal or federal court level, or are settled before the federal court hears the matter. On occasion, cases that raise important refugee law issues proceed to the Federal Court of Appeal and then the Supreme Court of Canada.
Several LAO lawyers at the RLO currently volunteer their services reviewing test case interventions on the legal committees two public interest groups – the Canadian Association of Refugee Lawyers (CARL) and the Canadian Council for Refugees (CCR).
In addition, public interest organizations seeking counsel to represent them in interventions before the Supreme Court of Canada frequently seek out RLO staff lawyers. Lawyers at the RLO have appeared before the Supreme Court of Canada on behalf of public interest interveners in the following six different cases over the past five years:
- Canada (Attorney General) v. Mavi,  2 S.C.R. 504
- Agraira v. Canada (Public Safety and Emergency Preparedness),  2 S.C.R. 559
- Ezokola v. Canada (Citizenship and Immigration),  2 S.C.R. 678
- R. v. Pham,  1 S.C.R. 739
- Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37
- Febles v. Canada (Citizenship and Immigration), SCC No. 35215 (heard 2014, reserved)
LAO anticipates more opportunities to intervene before the Supreme Court of Canada in the coming years as cases arising from challenges to recent refugee and immigration legislative reforms make their way through the courts. There are, however, many more opportunities for test case litigation where the majority of the refugee law jurisprudence is established – at the federal court level.
Role of test case work in the LAO’s refugee law reform activities
LAO’s tools for law reform, in addition to test case litigation, may include media advocacy and policy advocacy, as appropriate. We are developing separate (but related) strategies in all of these areas.
Guiding principles of the test case strategy
Effective test case litigation requires groundwork at the tribunal level. This groundwork includes compiling an appropriate evidentiary record and, in some circumstances, raising the test case issues for adjudication.
As a result, all applications and pleadings should be developed with an eye to advancing the law reform goals and test case strategy. This includes applications and pleadings for detention reviews, refugee claims or appeals, danger opinions, admissibility interviews, pre-removal risk assessments, and other matters.
All LAO staff at the RLO who engage in casework, including paralegals, legal aid workers and community legal workers, are required to participate in this work.
In addition to test case litigation that arises through refugee clients represented by the RLO, it may also be developed and conducted in collaboration with clinics or the private bar, and/or as counsel for public interest parties or interveners (e.g., CARL, CCR, Amnesty International, the Centre for Victims of Torture, Refugee Law Initiative, UN High Commissioner for Refugees, or other non-governmental organizations).
Refugee test case selection policy
LAO staff lawyers at the RLO have an obligation to act in the best interests of their clients, consistent with client instructions.
In addition, they adopt and continuously apply a strong rights and equity-based perspective to all casework, seeking to confront and challenge laws, policies and practices that fall short of the highest standards of justice and fairness for vulnerable persons with precarious legal status. This means staff lawyers may be required to argue novel legal issues which will require preparation and argument of test case issues.
The RLO will apprise GaTCC and senior management accountable for test case strategy of all test case issues the RLO pursues in the interest of individual clients.
These test case issues will align with our priority areas identified above.
The RLO will submit an application to LAO’s test case program for approval:
- when the issues being tested fall within the priority areas identified
- advance important public interests
- transcend individual interests and
- require the investment of staff resources that will significantly exceed that which a reasonable client of modest means would approve.