Out of Time, Out of Luck: The Postal Acceptance Rule and Administrative Law

Canada's immigration system is bursting at the seams. One of the backlogs is in sponsorship applications by Canadian permanent residents and citizens of their parents and grandparents. The federal government's response was to institute, by way of ministerial instructions issued pursuant to s. 87 of the Immigration and Refugee Protection Act, a "temporary pause" in the acceptance of new applications.

In order to avoid a torrent of new applications, the federal government announced its change of policy on November 4, 2011, and made it effective the following day, November 5, 2011.  The Minister responsible explained this decision in the following terms:

… [A]s we redesign the program to make it sustainable, here's the challenge we have: if we leave the program open for applications during that period of consultation and redesign, we know what will happen - we will get absolutely flooded with a huge increase in applications. Because people will say “if the criteria might change, we need to get our application in right away.” And we’re very concerned about this possibility. This has happened before. Immigration consultants and lawyers will go to their clients and say “we're going to send your application in right now.” And then we'll go from 40,000 applications to 50 or 60 or 70,000, and we'll never be able to deal with the backlog.

The applicant in Lukaj v. Canada (Citizenship and Immigration), 2013 FC 8 learned of the change of policy and immediately sent off his application. The application was returned to him, however, with a note that it had been received after the November 5, 2011 deadline.