The Federal Court’s decision in IRCC v. Toussaint has re-centered attention on the scope of discretion in s.25 H&C applications — particularly regarding medical inadmissibility and access to care.
As practitioners, we’re seeing increased scrutiny of evidence related to establishment, especially where applicants are undocumented or out of status. Officers appear more reluctant to exercise discretion in the absence of compelling hardship beyond the norm — even for long-term residents.
Tactical considerations:
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Document everything: Affidavits, medical assessments, school records, and community support letters continue to carry weight.
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Explain the hardship: Go beyond “it would be hard to return.” Demonstrate disproportionate hardship.
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Use country condition evidence: Tailor it to the applicant’s profile (e.g., mental health, family violence, LGBTQ+ risks).
Given long processing times and unpredictable outcomes, we now routinely advise clients to explore parallel pathways where possible — including refugee claims and temporary resident permits.
Bottom line: Officers have discretion, but it must be grounded in fact and fairness. Our job is to build a file they can’t ignore.