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Ontario Court of Appeal ruling dismisses application to change birth date

Gap in law means court order needed to make the shift
|Written By Gabrielle Giroday
Ontario Court of Appeal ruling dismisses application to change birth date
Jason Currie says his client is disappointed with a Court of Appeal ruling that dismisses the man's application to change his birth date, after he moved to Canada from Iraq.

An Iraqi man who immigrated to Canada has failed for now in his attempt to have his birth date changed, following a Court of Appeal for Ontario ruling.

The ruling in Yasin v. Ontario focused on an attempt by Mohammed Ali Yasin to have his birth date changed to being in 1951, not 1955, so he could access Canada Pension Plan Benefits. According to the ruling, when Yasin had applied for permanent residence in Canada in 1991, he had declared his birthday was in 1955, due to incorrect Iraqi identity documents.

However, while Yasin was trying to get a new citizenship certificate, he asserted his true birth date was in 1951, and Immigration, Refugees and Citizenship Canada told him he would need a court order for the change to be recognized.

Yasin headed to court to obtain the order and named the province as the respondent, but a judge from the Superior Court of Justice dismissed Yasin’s application to have his birth date changed, saying that the province of Ontario was not the right party to the matter, and the Superior Court didn’t have jurisdiction over the matter.

An appeal proceeded to the Court of Appeal, who also dismissed the matter, noting the province of Ontario was not the proper party to respond to the matter, because the province’s Vital Statistics Act doesn’t apply to people born outside Ontario.

“Obviously, we’re disappointed with the result, but they’ve left open the option to be able to go through the process again, and that’s something that we’re still determining as to how we’re going to proceed,” says Jason Currie, a sole practitioner based in Windsor, who represented Yasin in the process.

In Yasin, the Court of Appeal noted the issue was of “practical significance” because the problem had recently come up in other cases at the Superior Court.

For example, in the ruling, the Court of Appeal noted the circumstances of Hagos (Re)2018 ONSC 372.

In Hagos, a woman who had come to Canada from Ethiopia after her family was killed in a civil war was able to change her birth date, through a Superior Court of Justice ruling. In Hagos, Justice Catrina Braid noted there is “no statutory authority to change the birth date of a Canadian citizen born outside of Canada.”

“Ms. Hagos’ unique circumstances have given rise to a functional gap. Given that Ms. Hagos is now a Canadian citizen and the error is on her Canadian identification, a Canadian court should provide a remedy,” said the ruling. “It would therefore be appropriate for the Superior Court of Justice to exercise its inherent jurisdiction to fill this gap. It is just and equitable to do so in Ms. Hagos’ circumstances.”

In Yasin’s case, the Ontario Court of Appeal said “courts can and do grant declarations to enable parties to know their rights and to avoid future disputes.”

“One would have thought that there was some administrative route available, short of a proceeding in this court, to either correct the birth date shown on the appellant’s Canadian identity documents or to satisfy the Canada Revenue Agency of the appellant’s correct date of birth to enable him to obtain CPP benefits. Counsel did not point us to any such mechanism,” said the ruling.

The ruling did note there might be other ways for Yasin to achieve his goal.

“On a proper record, and with the proper parties before it, the court may have jurisdiction to make a declaration of the appellant’s birth date to enable him to obtain CPP benefits. Her Majesty the Queen in Right of Canada, represented by the Attorney General of Canada, would be a proper party to such proceedings,” it added.

Currie says in the decision, the court “left open a lot of issues.”

“[B]ecause they characterize the primary interest as CPP eligibility, it had to be the federal crown,” he says. “But, I feel like that leaves it open like, ‘What if it wasn’t CPP? What if it was Ontario Disability Support? Well, then are we back to going to the provincial government as the respondent?’”

No federal or provincial legislation exists to address the issue of changing a birth date, he says, unlike provincial acts that address how a person changes their name.

“These aren’t cases that come up a lot, so it might be another 10 years before something else comes along that’s going to force them to make it more straight-forward,” he says.




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