Refused at the (OINP) Ontario Immigrant Nominee Program?

Author/ Adam Hummel

Consider the following scenario: You are a foreign national in Canada, here on a work permit. Through your employer, you get a valid job offer, and decide to make an application at the Ontario Immigrant Nominee Program (“OINP”) through the Job Offer Stream. Done right, this application will get your on your way to permanent residence in Canada. Your employer passes the pre-screen stage, you submit all of the necessary forms and supporting documents, and you sit back and wait for a positive response, and a Provincial Nomination Certificate to be issued. This certificate will assist in your eventual application for permanent residence. Unfortunately, the response you receive from the OINP a few months later is negative. They have determined that through a technicality, which you believe to be a misunderstanding, that you do not actually qualify for a nomination through this particular provincial nominee program (“PNP”). Their correspondence to you gives you a chance to file a request for reconsideration within 30 days, which you do, however, your request for reconsideration is also refused. So, what now? In this case, you have the option to apply for judicial review of the decision made by the OINP. Few people know that you have the option to have the decision of the OINP judicially reviewed by a court, but this is simply because there is little precedent to doing this. It is also not just for the Job Offer Stream, mentioned above. Any decision for a program through the OINP can be judicially reviewed. Typically, immigration matters in Canada are federal matters. This means that they are not specific to any province, and fall under the jurisdiction of the federal government, the Government of Canada. This is why things like visa, sponsorship, and humanitarian & compassionate applications are the same across Canada – they are not specific to any one province, since immigration is regulated at the federal level. It is usually Citizenship and Immigration Canada (“CIC”) who is making those decisions, or an embassy or high commission overseas, all of which fall under federal jurisdiction.For this reason, when you apply for judicial review of a federal decision, you apply at the Federal Court. This is a fairly common way to challenge negative decisions, and our firm, for example, has ample experience in seeking judicial review of decisions at the Federal Court. There is plenty of precedent for challenging decisions at the Federal Court. Decisions through the OINP however are different. They are decided by a provincial body, and therefore do not fall under federal jurisdiction. If you want to judicially review your application at the OINP, then you would start the application at the Divisional Court in Ontario1. The process for judicial review at the Divisional Court varies slightly to that of the Federal Court, as leave is not required at the Divisional Court, and once your application is “perfected” you will likely proceed to a hearing on the merits of your case. There are a few other notable distinctions between the courts, summarized as follows:

Federal Court Divisional Court
Responding party Minister of Citizenship and Immigration Minister of Citizenship, Immigration, and International Trade
Respondent’s representative Department of Justice of Canada Ministry of the Attorney General of Ontario
Leave required? Yes No
Deadline to commence application 15 days from date of receipt of refusal for applications within Canada, 60 days for applications outside of Canada Within a reasonable period of time

Aside from some of these differences however, the Divisional Court is essentially another forum that gives you the availability to challenge an immigration division, albeit one that was made in the provincial context. Commencing an application for judicial review can be a somewhat complex process. It is important therefore to have a good understanding of what decision you are challenging, in which forum to bring the challenge, what standard of review will be used, and how to approach any complications that may arise. Though there are few precedents of Ontario immigration decisions being challenged at the Divisional Court, it can absolutely be done, and our firm has commenced a number of successful challenges which have resulted in positive results for our clients. Fortunately, we have worked with exceptional counsel at the Ministry of the Attorney General, and have advocated tirelessly for our client’s rights in such applications. There are short timelines available for challenging such decisions, and it is important to speak with a lawyer who can assist you with these matters, and appear before the Court, on your behalf. If you have recently been refused by the OINP, a lawyer at Mamann, Sandaluk & Kingwell LLP will be happy to help. This blog is not intended to serve as a comprehensive treatment of the topic, nor is it intended to be legal advice. Since every case is fact-specific, nothing replaces retaining an experienced and qualified lawyer who can help guide your actions and give you good legal advice.

1 Each province has its own provincial court structure, and the courts are not all called the same thing in each province. For example, it is called the Superior Court in Ontario or Quebec, but in Alberta or Saskatchewan, it is called the Court of Queen’s Bench.

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