Controversy erupts after Quebec Appeal Court grants asylum seekers access to subsidized daycare

“What we have here is knee-jerk nationalism,” said Montreal human rights lawyer Julius Grey. “Let’s take something away from them. Let’s limit their rights every way we can to show that nous autres, we are in charge. It is a vision of narrow nationalism, identity, that is basically retrograde and is most unfortunate.”

Against a backdrop of growing tensions between Quebec and Ottawa, with the provincial government asserting it is carrying a heavier burden of asylum seekers than other provinces, Premier François Legault said it is a “question of common sense” that it gives Quebec citizens priority to subsidized child-care services in a network currently short of nearly 37,000 spaces. Quebec maintains that it hosts 55 per cent of asylum seekers, or 160,000 out of a total of 289,000 in Canada, while Ottawa pegs the figure at 33 per cent.

The Quebec Bar also jumped into the fray after it denounced statements made by Legault that seemingly cast doubt on the impartiality and independence of the Appeal Court. Legault accused Paul St-Pierre Plamondon, the leader of the Parti Québécois (PQ), of being supine before the federal government after the Appeal Court decision was issued. Plamondon “knows that the judges of the Court of Appeal are named by the federal government and then he says he trusts the Court of Appeal more than the Quebec government to decide whether we’re obligated or not to give subsidized daycare services,” said Legault during Question Period at the National Assembly. “It’s incredible. Incredible. It’s the leader of the PQ who is currently, not on his knees but flat on his stomach, in front of the federal government.”

The Barreau du Québec countered in a post in the social media platform X, formerly Twitter, that it is “perfectly legitimate to disagree” with a court decision, but it is “not acceptable to attack the impartiality and independence of the courts by insinuating they could be answering to a level of government.” Elected representatives, added the Quebec Bar, have a duty to help “protect our judicial and democratic institutions” in order to preserve public confidence.

The Quebec Appeal Court, in a ruling that examined constitutional, regulatory and administrative law issues, concluded that a provincial government’s regulation that excludes asylum seekers from gaining access to subsidized daycare, at $9.10 per day, amounts to a discriminatory measure against women and is a violation of the right to equality protected by s. 15 of the Canadian Charter of Rights and Freedoms.

“It’s altogether an important decision and it shows the importance of not deferring to governments in such situations, and of a liberal, purposive interpretation of the Canadian Charter,” said Grey. “The court was correct in saying that people should have access. It is discriminatory. It’s shocking in its expression of the narrow nationalism of the present Quebec government that they want to exclude them.”

Besides being a “very important” decision for asylum seekers, the ruling is notable because it buttresses s. 15 of the Charter, described by the Supreme Court of Canada as the Charter’s “most conceptually difficult provision,” noted Guillaume Grenier, a Montreal labour lawyer with Melançon Marceau Grenier Cohen, who successfully pled the case along with his colleague Sibel Ataogul.

“It’s a right that is under constant development, and this ruling is adding a building block to the jurisprudence of the right to equality,” said Grenier who took up the case on pro bono. “This case is a good illustration of the constitutional protection of the right to equality.”

The case dates back to 2018 when the Liberal Quebec government reinterpreted s. 3 of the Reduced Contribution Regulation of the Educational Childcare Act (Act). Section 3 stipulates that a parent is eligible for subsidized daycare if they are “staying in Quebec primarily for work purposes and holds a work permit” under the Immigration and Refugee Protection Act (IRPA). Following the government’s revised reading of the regulation, asylum seekers were deemed to be staying in Quebec to find refuge and not “primarily” for work. In other words, access to subsidized daycare is reserved for parents whose refugee status has been formally recognized by federal authorities, and not for those awaiting a decision.

Bijou Cibuabua Kanyinda, a mother of three who came to Quebec as an asylum seeker in 2018 after fleeing the Democratic Republic of Congo, challenged the government’s interpretation of the regulation after obtaining a work permit and seeking subsidized daycare. In May 2022, Quebec Superior Court Justice Marc St-Pierre found that s. 3 of the Regulation was enacted without statutory authorization, and was therefore ultra vires.

APPEAL COURT DECISION

Quebec appealed the decision, maintaining that the trial judge erred when he concluded that s. 3 of the Regulation was adopted without valid legislative authority. When read as a whole, added the Attorney General of Quebec, the Act empowers the Quebec government to establish eligibility conditions for subsidized daycare.

The Appeal Court sided with the government, holding that the trial judge committed a reviewable error when he held that s. 3 of the Regulation was ultra vires. The appellate court underscored that the court of first instance did not rule on the standard of review applicable to the legality of regulations, “an issue that has been the subject of much discussion” in recent years and that the Supreme Court will examine again in the near future in two cases — Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210 and TransAlta Generation Partnership v. Alberta (Minister of Municipal Affairs), 2022 ABCA 381.

“In my view, it is not necessary for the Court to rule on this controversy,” said Justice Julie Dutil in Procureur général du Québec c. Kanyinda, 2024 QCCA 144, with Justices Robert Mainville and Benoît Moore concurring. “Whether it follows the teachings of Katz, which favours a more rigorous standard, or the standard of reasonableness set out in Vavilov, s. 3 (of the Regulation) is not ultra vires.”

After considering the Act as a whole and its purpose, Justice Dutil dismissed Kanyinda’s contention that the Act did not authorize the government to make distinctions in the regulation. Rather Justice Dutil held that the government is entitled to determine the conditions of eligibility in s. 3 of the Regulation, and that it was not discriminatory within the meaning of administrative law. The concept of administrative discrimination, pointed out Grenier, entails “really a different kind of examination and argument” that differs from discrimination under the Canadian Charter.

In regulatory matters, the concept of administrative discrimination implies a distinction between categories of persons or situations that is not rationally justifiable in light of the terms and public interest purpose of the enabling legislation, explained Justice Dutil. However, it differs from discrimination in matters dealing with fundamental rights in that it is not necessarily based on immutable personal characteristics or characteristics considered to be immutable, added Justice Dutil. In the case at hand, Justice Dutil found that since the government was empowered to determine eligibility conditions by regulation, it therefore had the “discretion to make distinctions between certain categories of persons” in order to determine who was eligible.

“I don’t think there are huge administration law consequences here,” noted University of Ottawa law professor Paul Daly, an expert on the administrative state and Chair in Administrative Law and Governance. “As the Quebec Appeal Court notes there is an ongoing debate, with the Supreme Court set to hear two cases on this in April. But here the Appeal Court’s view was that the statutory authority was clearly broad enough to support the regulations regardless of the standard of review. So, they did not really contribute to the broader debate.”

RIGHT TO EQUALITY

But Kanyinda was able to establish that s. 3 of the Regulation did infringe the right to equality protected by s. 15 of the Canadian Charter, thanks in part to “convincing” scientific evidence that she presented. Heeding guidance from the Supreme Court’s rulings in Fraser and Sharma, Justice Dutil noted that to prove a violation of s. 15 (1) of the Canadian Charter, which “reflects a profound commitment to promote equality and prevent discrimination against disadvantaged groups” as the SCC put it in Fraser, a claimant must fulfil a two-part test. They must demonstrate that the impugned law or state action creates on its face or in its impact a distinction based on enumerated or analogous grounds, and must also show that it imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.

Justice Dutil found that Kanyinda met her burden at the first stage of demonstrating the adverse effect it had on the ground of sex. Even though s. 3 of the Regulation is on the face of it “neutral” and is not aimed directly at women, Justice Dutil found that by excluding persons seeking asylum, it has a disproportionately negative impact on women seeking asylum, and is therefore discriminatory as a result of its prejudicial effect. A study by McGill sociology professor Jill Hanley submitted by Kanyinda notes that affordable childcare increases women’s access to the workforce, has positive outcomes for child development and has “broader socioeconomic” benefits. The exclusion of refugee claimants, “a highly racialized population,” from Quebec’s subsidized childcare program prevents many parents, particularly mothers of young children, from entering the workforce, makes them dependent at a high cost of financial assistance from the state, and creates social exclusion, according to Hanley’s study.

Kanyinda also met the second test and demonstrated that s. 3 of the Regulation imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage. “Women are historically disadvantaged in the workplace because they disproportionately take on childcare responsibilities,” held Justice Dutil. “The fact that asylum seekers alone are ineligible for the reduced contribution for subsidized childcare places clearly has a disproportionate effect on women in this group.”

Quebec did not provide any counter-evidence, and that did not help their cause. The attorney general argued that the “real and urgent purpose” behind excluding persons claiming refugee status from subsidized care is that the “legislature wants to provide financial assistance to persons who have a sufficient connection with Quebec.” It also maintained that the State cannot take it for granted that their claims are justified until a decision is rendered on their status. The infringement, Quebec added, was minimal and proportionate as they were permanently barred from the subsidized childcare program.

Justice Dutil rejected the government’s stance, pointing out that there are several categories of persons that are eligible for subsidized daycare even though they are in Quebec for temporary stays. That’s the case for workers who hold a work permit for a specified period, foreign students who hold an acceptance certificate issued by the Quebec government, and holders of temporary resident permits issued under s. 24 of the IRPA.

“What we have with Fraser and other similar cases in recent years is a new, more muscular form of equality, equality which goes further than the cases, say, of the ‘80s or ‘90s,” said Grey. “This decision is not legally surprising. What is surprising is that the government has thought in these days of energetic enforcement of equality that they would do something so unequal.”

READING IN

Kanyinda did not seek the annulment of s. 3 of the Regulation as a remedy but rather reading in, where a court can read in an excluded group to extend the benefit to them. Kanyinda maintained that the conditions established for case law have been fulfilled, not least of which a broad interpretation would further the government’s objective of providing affordable educational child care. “We chose this particular remedy because we felt it was the most appropriate,” said Grenier. “The simplest way to correct the problem is to withdraw this exclusion, which is discriminatory, without affecting the rest of the article or the rest of the regulations.” The Appeal Court agreed, holding that the inclusion of asylum seekers in s. 3 of the Regulation will “not have significant financial repercussions” as they do not have automatic access to subsidized daycare but rather have the possibility of accessing it.

But Grenier has been told by organizations that the application of the ruling is still wanting as there have been “confusing or contradictory” instructions issued by the government. Grenier does not believe it is necessary to issue new motions to force the government’s hand. “The judgment itself is sufficient,” said Grenier. “I hope this situation will soon be resolved with regards to the difficulties of application and enforcement.” In the meantime, Grenier is now preparing to argue once again before the Appeal Court in the coming weeks as the Quebec government is seeking a stay of the ruling.