Kaczor and Serban v. Attorney General of Canada
Charter of Rights Class Action
Case Overview
On August 11, 2023, Piotr Kaczor and Aniko Serban – refugees from Poland and Hungary, respectively – commenced a class action lawsuit against the Government of Canada seeking $100 million in damages caused by the imposition of the discriminatory and unconstitutional Designated Country of Origin scheme. Mr. Kaczor and Ms. Serban are the proposed representative plaintiffs in the class action.
The DCO “Designated Countries of Origin” scheme imposed procedural and substantive hardships on refugee claimants from countries that were designated by the Government of Canada as DCO countries. These hardships included a denial of access to health care, a bar on appeals to the Refugee Appeal Division, a 36-month bar on PRRA applications, and a 180-day bar on obtaining work permits.
Despite the Federal Court determining the health care bar and the refugee appeal bar to be unconstitutional and discriminatory in decisions dated July of 2014 (Canadian Doctors for Refugee Care v. Canada, 2014 FC 651) and July of 2015 (Y.Z. v. Canada, 2015 FC 892), the Government of Canada continued to subject DCO refugee claimants to the “Pre-Removal Risk Assessment” (PRRA) bar and the work permit bar until May 2019.
This proposed class action is brought against the Government of Canada on behalf of current and former refugee claimants from DCO countries, alleging that they were knowingly and deliberately discriminated against by the Government of Canada for nearly five years, from July 2014 to May 2019, in violation of their equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms.
Who is a DCO Refugee Claimant?
The DCO scheme was introduced by the Government of Canada through amendments to the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations in 2010 and 2012. These amendments included the creation of the concept of Designated Countries of Origin, also referred to as DCO countries, and the introduction of separate rules and procedures for refugee claimants from DCO countries compared to refugee claimants from non-DCO countries.
Through a series of Ministerial Orders between December 2012 and October 2014, the Minister of Citizenship and Immigration (now called the Minister of Immigration, Refugees and Citizenship) designated the following 42 countries as DCOs:
- December 15, 2012: Austria, Belgium, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom, United States of America;
- February 15, 2013: Australia, Iceland, Israel (excluding Gaza and the West Bank), Japan, Mexico, New Zealand, Norway, Switzerland;
- May 31, 2013: Chile, South Korea;
- October 10, 2014: Andorra, Liechtenstein, Monaco, Romania, San Marino.
More specifically, this proposed class action is brought on behalf of:
All current and former refugee claimants from DCO countries who were subject to the 36-month PRRA bar and/or the 180-day work permit bar between July 4, 2014 and May 10, 2019.
What is the Class Action Lawsuit About?
The Canadian Charter of Rights and Freedoms sets out rights and freedoms that Canadians believe are necessary in a free and democratic society. It is part of the constitution and so all other government laws and programs must be consistent with it.
Section 15 of the Charter makes it clear that the Canadian government must treat every individual in Canada – regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability – with the same respect, dignity, and consideration. In other words, the government must not discriminate on any of these grounds in its laws or programs.
The plaintiffs in the proposed class action lawsuit are two former refugee claimants from DCO countries who were subject to the work-permit bar and the PRRA bar and suffered significant hardships due to the government’s discriminatory conduct.
The plaintiffs allege, on behalf of all Class Members, that the DCO regime, in designating certain countries as “safe” imposed different treatment on refugee claimants from these countries compared to claimants from non-DCO countries. In doing so, the Canadian Government violated their section 15 Charter right to be free from discrimination.
The lawsuit alleges that the actions of the Government of Canada, through the DCO scheme, were clearly wrong, in bad faith, and/or an abuse of power, demonstrating a disregard for the equality rights and basic dignity of the Class Members.
The plaintiffs, on behalf of all Class Members, are seeking Charter damages to compensate for the harms they suffered, to vindicate their equality rights, and to deter future governments from maintaining and continuing discriminatory state actions.
“At any time between July 2014 and May 2019, the Minister could have ended the discriminatory impacts of the 180-day work permit bar and the 36-month PRRA bar with the stroke of a pen, but he did not do so,” said Louis Century, co-counsel for the class. “Instead, the rights of thousands of refugee claimants were needlessly violated for nearly five years after the unconstitutionality of the DCO scheme was confirmed by the courts.”
“This class action is about what consequences the Canadian government should face when it knowingly violates the rights of individuals under the Charter,” said Ashley Fisch, co-counsel for the class. “The class action seeks to right the wrongs committed by the Canadian government in knowingly allowing these unconstitutional provisions to remain active and harmful for five years. We also hope that this litigation will help to promote a culture in which refugees are treated with the respect and dignity they deserve.”
Statement of Claim
The Statement of Claim was issued in the Ontario Superior Court of Justice on August 11, 2023. You can read the Statement of Claim here.
Contact
If you think you may be a class member or you have information that may be relevant for the case, please contact Tara Sheppard of Goldblatt Partners at tsheppard@goldblattpartners.com.
The plaintiffs are represented by the following counsel team:
- Louis Century, Goldblatt Partners LLP
- Ashley Fisch, Ashley Fisch Alliance
- Subodh Bharati, Barrister & Solicitor
- Jared Will, Jared Will & Associates
Media inquiries may be directed to Jared Will (jared@jwlaw.ca) or Ashley Fisch (afisch@afalawyers.ca).
Lawyers
Louis Century, Geetha Philipupillai