Canadian Arab Federation v Canada

Role or Position

The Canadian Arab Federation (CAF) is a non-for profit organization based in Toronto and incorporated in 1982. It aims to support the coordination of Arab organizations in Canada, to strengthen Arab identities in Canada and to provide relief efforts in Canada and the Arab homelands. It also focuses on disseminating information about and encouraging support for Arab causes, and in particular the suffering of the Palestinian people.

What Happened

Representatives of CAF made public statements advocating on behalf of Palestinian human rights and criticizing the Canadian government at a protest rally. Shortly thereafter, Citizenship and Immigration Canada (CIC) cancelled its program funding contract with CAF. In its preliminary (interlocutory) evaluation of the case, the Federal Court stated that it would not be justified for the Canadian government to cancel the funding contract simply on the basis that CAF representatives had publicly criticized government officials.

Prior to the events in question, CAF operated a language program for new immigrants (the Language Instruction for Newcomers to Canada, or LINC Program) for eleven years with funding provided by Citizenship & Immigration Canada (CIC). In 2008, CIC approved the continuation of the program’s contract for 2009-2010.

In February 2009, at a protest rally in Toronto against the ongoing Israeli attacks in Gaza, the president of CAF made statements in reference to Canadian politicians who justified these attacks. He quoted an American professor who had described individuals who were supportive of Israel’s actions as “whores of war”, and stated that this term also applied to the Minister of Citizenship and Immigration, Jason Kenney.

On March 18, 2009, CAF received a letter from CIC advising the organization that its LINC program funding was being cancelled. The letter stated that the cancellation was due to public statements made by CAF members that CIC believed promoted hatred, anti-Semitism and support for banned terrorist organizations Hamas and Hezbollah.

CAF’s position is that it is in fact an anti-racist organization. It has worked towards bridging the divide between Jewish and Arab communities. It maintains that its support for the Palestinian right to self-determination and its criticism of Israel’s policies are not anti-Semitic.

On this basis, CAF brought an application for an interim injunction to the Federal Court, seeking to prevent the cancellation of its funding contract pertaining to the LINC program until a full judicial review of that decision could be undertaken.

The motion for an interim injunction was dismissed. On March 30 2009, the Court found that CAF was unable to demonstrate that it would suffer “irreparable harm” if the LINC program funding was discontinued. The Court observed that, if CAF were to ultimately succeed in its legal action to challenge the cancellation of the LINC funding contract, it would receive monetary damages for the wages lost due to the loss of the program funding. The Court found that this form of compensation would adequately compensate CAF’s losses and that therefore, an interim injunction was not necessary. The Court believed it did not need to exercise its discretion to prevent the program’s cancellation in the short term because CAF would receive monetary damages if its intended legal action against CIC is successful in the long term. The Court discarded the argument that the cancellation of the program in the interim would create irreparable harm to CAF in the form of a chill on free speech.

Nonetheless, the Court found that in the course of cancelling the LINC program funding contract, Minister Kenney “probably” breached his legal duty to act fairly towards CAF. The Court stated that the Minister was legally obligated: (1) to advise CAF of his reasons for intending to cancel the contract; (2) to provide CAF with a full opportunity to respond; and (3) to fairly take into account this response before making his final decision.

The Court also stated that the Minister is not permitted to cancel program funding for an organization just because he was “called a name” in the heat of a political protest against Israeli attacks in Gaza.

CAF is proceeding with its application to challenge (judicially review) the Minister’s decision to cut its LINC funding.

Relevant dates:

March 18, 2009: CAF receives a letter from Citizenship & Immigration Canada, advising that its funding will to be cancelled.
March 2009: CAF brings an application for an interim injunction to the Federal Court.
March 31, 2009: The Federal Court dismisses CAF’s demand, but finds that Minister Jason Kenney “probably” failed to act fairly towards CAF in cutting its funding over having been called a name.

Implications and Consequences

Duty of Fairness & Transparency: The government owes a duty of fairness to an organization before cutting its funding. This duty includes: (1) notice of the intended cut; (2) reasons for the cut; (3) an opportunity to respond; (4) evidence that the response was taken into account in the government’s final decision. In this case, the Court commented that the government probably failed to fulfill its duty of fairness to CAF.
Legal Rights: A Canadian civil society organization can use the court to obtain an interim injunction which will temporarily prevent the government from cutting its funding. The purpose of the interim injunction is to allow the organization to take the time to prepare its legal challenge against the funding cut. However, in order to obtain an interim injunction, the organization must demonstrate that the funding cuts will cause it to suffer irreparable harm that is not compensable in monetary damages.
Legal Rights: The Court made several comments which are useful to an organization that seeks to prove it will suffer irreparable harm from a funding cut. The Court identified the types of harm that would not count as “irreparable harm”: (1) salary losses suffered by the staff of the organization do not constitute irreparable harm because they can be compensated at a full hearing with monetary damages; (2) a reduction in size of the organization, without a complete closure, will not be considered irreparable harm; (3) if the program in question will continue to be provided by another organization, there is no irreparable harm to the program.