Most immigration litigation is about one decision: your refusal, your removal, your delay. But sometimes the problem is the rule itself, a regulation, a Cabinet decision or a temporary public policy that affects thousands of people the same way. That is systemic litigation. In Canada it can be brought as a judicial review, as an action in the Federal Court, as an application in a provincial superior court, as a class action, or by a public interest litigant on behalf of people who cannot realistically sue alone.
This article explains those routes and how the evidence gets built, based on the “The Data Doesn’t Sleep” panel at the Canadian Bar Association (CBA) Immigration Law Conference in May 2026. The panel included counsel from both the private bar and the Department of Justice.
Key Takeaways
- Systemic litigation targets state action that affects a group of people and is the common cause of their individual experiences, such as a Cabinet designation, a statutory rule, a fee policy or a temporary public policy.
- There are three main procedural routes, each with trade-offs: judicial review in the Federal Court (leave required, no discovery), an action in the Federal Court (no leave, discovery, trial), or an application in a provincial superior court (no leave, no discovery, no trial).
- Where individuals are unlikely to challenge a rule themselves, public interest organizations may bring the case. The Safe Third Country Agreement litigation is the leading example.
- Money claims arising from a policy, such as fees, can proceed as class actions. The panel described several routes the courts have accepted for combining a class action with judicial review.
- Evidence matters more than usual. Statistics requests, published government records and Access to Information requests are how the record gets built.
- None of this replaces your own deadline. If you have an individual refusal, protect it first.
What makes a case “systemic”
The panel gave four types of example:
- Cabinet decisions challenged by public interest litigants, such as the continuing designation of the United States as a safe third country.
- A statute or regulation applied in many cases, such as the Charter challenge in Bjorkquist to the second-generation cut-off in the Citizenship Act, and a challenge by the Canadian Immigration Lawyers Association (CILA) to the right-to-counsel provision in section 167(1) of the Immigration and Refugee Protection Act (IRPA).
- Financial loss caused by a regulation or policy, as in the Hinton class action over sponsorship processing fees.
- Temporary public policies applied in many files, as in John Doe 1.
What they share is that the individual outcome flows from a general rule. Winning one person’s judicial review may help that person, but it does not change the rule for everyone else.
Three procedural routes and their trade-offs
1. Application for leave and judicial review (Federal Court). Section 72(1) of IRPA requires leave before any judicial review of a matter under the Act, and section 18.1 of the Federal Courts Act governs the application. This is a summary legal procedure: no discovery, and a record largely limited to what was before the decision-maker.
2. Action in the Federal Court. Under section 17 of the Federal Courts Act, the Federal Court has concurrent original jurisdiction over claims for relief against the Crown. An action needs no leave and allows discovery, but a trial is more expensive and needs expert evidence.
3. Application in a provincial superior court. No leave, no discovery and no trial, but a court with less specialized immigration expertise. The panel noted that in Bjorkquist, seven families brought a superior court application on behalf of a very large affected group without challenging any individual decision. The court was not bound by Federal Court case law and did not defer to IRCC.
The choice of forum can decide the case. The panel noted that in the CILA challenge, which was brought by public interest litigants because the issue arose across many contexts, the Federal Court held that it cannot hear “independent constitutional challenges.”
Public interest litigants
Some rules are almost impossible for affected individuals to challenge. A refugee claimant turned back at the land border has no time, money or status to run years of constitutional litigation. That is why organizations sometimes step in as public interest litigants.
The panel used the Safe Third Country Agreement as its example, where the Canadian Association of Refugee Lawyers (CARL) and the South Asian Legal Clinic of Ontario (SALCO) are the public interest litigants. The Supreme Court upheld Cabinet’s original designation of the United States in 2023 SCC 17. The current challenge targets Cabinet’s continuing confirmation of that designation under the IRPA review process, and it differs from the earlier case in two ways: the organizations are the litigants because individual challenges are unlikely, and a 2022 Additional Protocol implies that Cabinet confirmed the designation. As of May 2026, the panel described the case as at the stage of disclosing Cabinet’s reasons, with a Cabinet confidence claim under the Canada Evidence Act looming. For how the agreement works day to day, see our article on the Safe Third Country Agreement and the 14-day rule.
Class actions over fees and other money claims
When a policy causes financial loss to many people, a class action may be the right vehicle. The panel described the Hinton litigation, which challenged sponsorship processing fees on the basis that the Financial Administration Act does not allow the government to profit from fees. It traced the procedural history of these claims:
- In Momi, claims brought directly as class actions were dismissed by the Federal Court of Appeal under the Grenier principle, which generally requires a judicial review before damages are sought for a federal decision.
- Hinton started as an application for leave and judicial review and was then converted into a class action.
- Under the TeleZone principle, a claimant may start an action and a judicial review in parallel.
- Brake allowed a class action and a judicial review to be consolidated.
- Manuge held that no judicial review is needed if the claimant does not seek administrative law relief.
The lesson for anyone considering a money claim is that the procedural route has to be chosen at the start. The wrong one can end the case before the merits are reached.
Building the record
Systemic cases are won on evidence about how a program actually works, not on one applicant’s file. The panel identified three sources.
Statistics. IRCC’s research and data branch accepts custom statistics requests. The panel described a fee, a right to refuse, and a turnaround of around six months, so start early.
Published government records. Ministerial and deputy minister transition binders, briefing notes, parliamentary committee appearances, Question Period notes and the minutes of the House of Commons immigration committee are often public and underused.
Access to Information Act (ATIA) requests. Requests made by others in the past six years can be searched on the Government of Canada’s open data portal. New requests can cast a broad net, for example the email subject lines of a particular official over a set period, or target specific standard documents: business cases, privacy impact assessments, algorithmic impact assessments, standard operating procedures, visa office checklists, user manuals and briefing notes. When a release is heavily redacted, the same documents can sometimes be obtained from other bodies that reviewed them, such as the Privacy Commissioner, Statistics Canada, Treasury Board review committees, CBSA, the IRB or the federal procurement site. Individual applicants use the same law to get their own file, as explained in our guide to GCMS notes.
The panel was candid that the access regime is under strain and requests take time.
Getting the evidence before the Court
On judicial review, evidence is usually limited to affidavits and the certified tribunal record. The Federal Court of Appeal has recognized exceptions: background information, material relevant to procedural fairness, Charter claims, and cases where the Court is the first decision-maker (Access Copyright, 2012 FCA 22; see also 2015 FCA 268).
Documents obtained through ATIA can also support a motion for an incomplete certified tribunal record. The panel cited Air Passenger Rights v. Canada (AG), 2021 FCA 201; CARL v. Canada, 2022 FC 1204; and John Doe 1 v. Canada (AG), 2024 FC 1024.
What this means for you
- Protect your own case first. Judicial review deadlines are short. A pending systemic case will not revive a missed deadline. See our guide on challenging a refusal in the Federal Court.
- Keep records. Dates, correspondence, fees paid and decisions all become evidence if a group challenge follows.
- Tell counsel if you think the problem is general. Patterns across files are how systemic cases start. Our immigration litigation overview explains the forums involved.
FAQ
Can I join a class action against IRCC?
Only if one has been started and certified for a group that includes you. Class actions over immigration fees have been brought, but the procedural rules are strict, and the right route depends on whether you are seeking damages or administrative law relief.
What is a public interest litigant?
An organization or person allowed to bring a case about an issue of public importance even though they are not the directly affected individual, usually because affected people cannot realistically bring the case themselves.
Why would a case go to a provincial superior court instead of the Federal Court?
A superior court application needs no leave and is not bound by Federal Court case law, as the panel noted in Bjorkquist. The trade-offs are no discovery, no trial and less specialized immigration expertise.
Can I use an Access to Information request in my own case?
Yes. Individuals routinely request their own files. Broader requests about how a program works can also support a legal argument, but they take time.
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Disclaimer: This article is for general information only and is not legal advice. Immigration law and IRCC/ESDC policy change frequently, and every case turns on its own facts. Reading this article does not create a lawyer–client relationship. Obtain advice tailored to your situation before you act.
Talk to a Canadian immigration lawyer. BridgePoint Law advises individuals and businesses across Canada — and on Canada–US–China cross-border matters — on Federal Court immigration litigation. Book a consultation with our team in Toronto and Kingston. We work in English, Mandarin, and Cantonese.
