Calculating Residency: what counts as a day in Canada?
As the date approaches when the revised residency provisions will come into force, there are likely to be hundreds, if not thousands of PRs, for whom the precise calculation of days present could be critical.
For example, in a recent decision, in the VIJAYAN case, in which a Citizenship Judge applied the Koo qualitiative test for residency and approved the applicant for the grant of citizenship, the Federal Court granted CIC's appeal (setting aside the approval and sending the case back for the Minister to make a decision) in significant part based on a difference between the CJ's assessment that the applicant had at least 1095 days APP and the Federal Court's assessment that it was no more than 1094 days (one paragraph of the decision) or 1093 days (another paragraph in the decision). Technically, if the CJ reasonably assessed residency based on the Koo qualitiative test, APP for less than 1093 days would not disqualify the applicant. But the Federal Court ruled that the CJ's erroroneous conclusion regarding days APP, and that it was one or two days less, rendered the application of the Koo qualitiative test unreasonable (who knows the real reason for the decision, but probably rooted in CIC's and the Federal Court's different conclusion as to the applicant's credibility).
For this particular applicant, it was concluded the number of trips abroad totalled 71 (nearly all were of short duration). Thus, it is readily observed that for this applicant, for whom just one or two day's difference in the total calculation of days present made a big difference, that the mode of calculating presence could have a huge impact: Basically, if for every calendar day spent in Canada (in whole or part), he was given credit for a day toward the residency calculation (as is done relative to the PR Residency Obligation), he would have had 71 more days APP.
And frankly, if I was his lawyer, that's a part of the case I would make when this case goes back to a Citizenship Judge (there is little doubt how the Minister will decide this case, so it is almost certainly headed back to another CJ eventually).
Note: while this is not the first decision in which the Federal Court has sent a citizenship case back to the the Minister, rather than to another CJ, based on the changes in procedure which took effect last August 1st, it is the first in which the Court ordered that the Minister must either grant citizenship or refer the matter to a CJ.
In any event, there are scores of PRs on-the-cusp who, as of the day the revised section 5(1)(c) comes into force, will be short of 1095 days APP by a matter of just a few days. The question some may ask is whether it is worth applying before the revised provisions take effect, expecting RQ, anticipating having to aggressively advocate the merits of one's case, and in that vein preparing to make the argument that any day spent in Canada should count toward residency.
For example, the query posed by godhelp will arise for many PRs as the end of the month approaches every month until the actual date the revised provisions come into force:
I have long expressed the view that waiting to apply with a significant margin over and above 1095 days is the prudent approach. But this year, the impending implementation of the revised residency requirement dramatically changes the equation. For some, waiting two weeks could mean having to wait a full year or more.
For this month, the odds are very good that godhelp could wait until some time in April to apply (especially given the last notice of intent to make regulatory changes, calling for a comment period of 30 days beginning March 14). But no guarantee.
Moreover, the odds are also very good that there will be at least a week's notice, so if the applicant has everything prepared and watches for news of the effective date, there should be enough time to get the application off via an overnight or 48 hour courier service.
The stress will go up as the end of April approaches, and the real stress will probably come for those approaching the end of May in a similar situation (assuming the effective date is not before then), and if it isn't May, big time for those approaching the end of June in a similar situation.
Both full posts raising the query about what constitues a day in Canada:
Whether it should be calculated like residency is for the PR Residency Obligation, is not exactly a question of first impression, given that in at least one officially published decision the argument was made that both days of exit and days of entry should be counted (as they are for the PR Residency Obligation). However, the Federal Court justice did not rule on that question, the case decided on other grounds. Sorry, I do not have the case name off the top of my head, but I think it was within the last three or four months.
On the other hand, there are literally hundreds of Federal Court decisions implicitly accepting CIC's approach to calculating the number of days an applicant was present. While this can be and has been phrased different ways, what it amounts to is simply that a midnight spent in Canada counts as a day resident in Canada, a midnight outside Canada counts as a day absent.
Here is what the statute states:
[To qualify for a grant of citizenship, a PR must have] . . .
accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
Calendar days:
I do not have citations, but I have read enough Canadian law to feel comfortable stating that there is no doubt about calculating residency based on calendar days, and thus, for example, not based on calculating 24-hour time periods. This appears to be standard not just in citizenship or immigration law, but generally in Canadian law (as it is in the U.S. as well), unless there is language in the governing provisions which clearly specifies otherwise (there are notice requirements, for example, which refer specifically to a time period in hours).
Thus, for example, the applicant who drives to Buffalo very early in the day to do a job and does not return to Canada until ten minutes before midnight, essentially outside Canada for 20 or more hours of the day, nonetheless gets credit for being in Canada a day. Even if he does this dozens of days every year. (There have been some commuter-cases, PRs living in Canada and regularly commuting to a job in the U.S., which obviously push the envelope for not counting "day trips" to the U.S. as absences, and it appears these tend to be problematic cases; for an example of a commuter case see the Sotade decision.)
In contrast, though, in the way CIC calculates days, the PR who drives to Lewiston, NY to fill-up the pickup with some cheap gas just before midnight, and does not make it back to Canada (Queenston Heights) until a minute after midnight, outside Canada less than an hour, loses a day's credit.
In any event, the number of hours here or there is irrelevant. What matters is where the PR was at the beginning of each calendar day and at the end of each calendar day.
The meaning of "resident in Canada:"
The statutory requirement is that the PR have "three years of residence in Canada," and the statutory manner of calculation is based on "every day during which the person was resident in Canada."
This has been the problematic language haunting the citizenship application process for well over three decades.
When I began following citizenship application cases, six plus years ago, it did not occur to me that "resident in Canada" would mean, literally, "present in Canada." And indeed, at that time, the quagmire of conflicting case law was, more or less, focused on what constituted "three years of residence in Canada" rather than on the precise manner in which the total number of days was calculated.
In 2011 Justice Rennie and Justice Snider issued decisions (which have been frequently cited since by numerous other Federal Court justices; see the Martiez-Caro decision for example, which has been cited in other decisions more than two dozen times in the last three years)) specifically stating that "residency means physical presence." This is substantively very different from stating that residency is determined based on physical presence, a difference which implicitly underlies the many, many previous Federal Court decisions upholding the application of a qualitative test for determining residency, but which is largely dismissed in subsequent citizenship case law.
Think about it: a resident of Toronto who spends a week in Ottawa does not cease to be a resident of Toronto during that week. But for Justice Rennie, if that week was spent in New York City, this individual did not have "residency" in Canada (and so could not be a Toronto resident) for that week. Which is, really, absurd, except this is the way these provisions of law have been interpreted and applied in tens of thousands of cases.
In contrast, for example, both CRA rules governing residency, and residency qualifications for provincial health care in most provinces, include a presence element but recognize residency as something separate from presence (for CRA, 183 days presence in a year creates a presumption of residency in Canada; for OHIP, for example, qualification is based on both maintaining "residency" in Ontario and being present in Ontario 153+ days in the calendar year). This is typical of many residency requirements, which range from basic residency (place individual chooses plus enough ties to that place that it is not deceptive to declare that is one's residence) to consideration of multiple factors including what the individual has said is his place of residence but also considering other indications of where the individual maintains a primary place of abode (and this can include, for example, comparing how much time a person stays there versus elsewhere).
In any event, I agree that the language in the statute, "every day during which the person was resident in Canada," suggests that a day should count if (1) the person was a "resident" of Canada on that day, and (2) was present during that day (without regard to whether that was a day started outside Canada, or a day which ended outside Canada, so long as the individual was in Canada during that day.
But my impression is that CIC is not going to buy that. That a CJ is not going to buy that. And it seems like a tough case to make to the Federal Court.
And usually this only adds a few days to the calculation, whereas most decisions turn on a more general, broader time span for which CIC questions the applicant's residency. In other words, in almost all cases, this difference is not going to make or break the case, especially once it gets to the Federal Court (if it does, and no one really wants to go there . . . well no sensible person wants to go there).
But as I noted already in the other topic, sure, there are bound to be a significant number of PRs for whom this makes a big difference as the end of the critical month (be that relative to the approach of May 1st, or June 1st, or July 1st, all highly possible dates which could be designated as the date the revised provisions come into force) approaches, especially those who have made a large number of brief trips abroad (such that rather than counting one or the other, counting both days of exit and entry could add dozens of days to their calculated residency).
This query was posed in the topic about the effective date of Bill C-24.Prospective Canuck said:
As the date approaches when the revised residency provisions will come into force, there are likely to be hundreds, if not thousands of PRs, for whom the precise calculation of days present could be critical.
For example, in a recent decision, in the VIJAYAN case, in which a Citizenship Judge applied the Koo qualitiative test for residency and approved the applicant for the grant of citizenship, the Federal Court granted CIC's appeal (setting aside the approval and sending the case back for the Minister to make a decision) in significant part based on a difference between the CJ's assessment that the applicant had at least 1095 days APP and the Federal Court's assessment that it was no more than 1094 days (one paragraph of the decision) or 1093 days (another paragraph in the decision). Technically, if the CJ reasonably assessed residency based on the Koo qualitiative test, APP for less than 1093 days would not disqualify the applicant. But the Federal Court ruled that the CJ's erroroneous conclusion regarding days APP, and that it was one or two days less, rendered the application of the Koo qualitiative test unreasonable (who knows the real reason for the decision, but probably rooted in CIC's and the Federal Court's different conclusion as to the applicant's credibility).
For this particular applicant, it was concluded the number of trips abroad totalled 71 (nearly all were of short duration). Thus, it is readily observed that for this applicant, for whom just one or two day's difference in the total calculation of days present made a big difference, that the mode of calculating presence could have a huge impact: Basically, if for every calendar day spent in Canada (in whole or part), he was given credit for a day toward the residency calculation (as is done relative to the PR Residency Obligation), he would have had 71 more days APP.
And frankly, if I was his lawyer, that's a part of the case I would make when this case goes back to a Citizenship Judge (there is little doubt how the Minister will decide this case, so it is almost certainly headed back to another CJ eventually).
Note: while this is not the first decision in which the Federal Court has sent a citizenship case back to the the Minister, rather than to another CJ, based on the changes in procedure which took effect last August 1st, it is the first in which the Court ordered that the Minister must either grant citizenship or refer the matter to a CJ.
In any event, there are scores of PRs on-the-cusp who, as of the day the revised section 5(1)(c) comes into force, will be short of 1095 days APP by a matter of just a few days. The question some may ask is whether it is worth applying before the revised provisions take effect, expecting RQ, anticipating having to aggressively advocate the merits of one's case, and in that vein preparing to make the argument that any day spent in Canada should count toward residency.
For example, the query posed by godhelp will arise for many PRs as the end of the month approaches every month until the actual date the revised provisions come into force:
I sympathize godhelp, as it is indeed a tough call. The odds are very good that you could wait another month, maybe even two, without much risk (as I discuss in my previous post, at the least it appears to me unlikely the change could take effect before the end of April). But there is no guarantee.godhelp said:
I have long expressed the view that waiting to apply with a significant margin over and above 1095 days is the prudent approach. But this year, the impending implementation of the revised residency requirement dramatically changes the equation. For some, waiting two weeks could mean having to wait a full year or more.
For this month, the odds are very good that godhelp could wait until some time in April to apply (especially given the last notice of intent to make regulatory changes, calling for a comment period of 30 days beginning March 14). But no guarantee.
Moreover, the odds are also very good that there will be at least a week's notice, so if the applicant has everything prepared and watches for news of the effective date, there should be enough time to get the application off via an overnight or 48 hour courier service.
The stress will go up as the end of April approaches, and the real stress will probably come for those approaching the end of May in a similar situation (assuming the effective date is not before then), and if it isn't May, big time for those approaching the end of June in a similar situation.
Both full posts raising the query about what constitues a day in Canada:
Prospective Canuck said:
Foremost, as suggested by others, the approach of counting only one or the other days exiting or entering Canada is well established. That's what CIC does, the CJs do, and the Federal Court.Prospective Canuck said:
Whether it should be calculated like residency is for the PR Residency Obligation, is not exactly a question of first impression, given that in at least one officially published decision the argument was made that both days of exit and days of entry should be counted (as they are for the PR Residency Obligation). However, the Federal Court justice did not rule on that question, the case decided on other grounds. Sorry, I do not have the case name off the top of my head, but I think it was within the last three or four months.
On the other hand, there are literally hundreds of Federal Court decisions implicitly accepting CIC's approach to calculating the number of days an applicant was present. While this can be and has been phrased different ways, what it amounts to is simply that a midnight spent in Canada counts as a day resident in Canada, a midnight outside Canada counts as a day absent.
Here is what the statute states:
[To qualify for a grant of citizenship, a PR must have] . . .
accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
Calendar days:
I do not have citations, but I have read enough Canadian law to feel comfortable stating that there is no doubt about calculating residency based on calendar days, and thus, for example, not based on calculating 24-hour time periods. This appears to be standard not just in citizenship or immigration law, but generally in Canadian law (as it is in the U.S. as well), unless there is language in the governing provisions which clearly specifies otherwise (there are notice requirements, for example, which refer specifically to a time period in hours).
Thus, for example, the applicant who drives to Buffalo very early in the day to do a job and does not return to Canada until ten minutes before midnight, essentially outside Canada for 20 or more hours of the day, nonetheless gets credit for being in Canada a day. Even if he does this dozens of days every year. (There have been some commuter-cases, PRs living in Canada and regularly commuting to a job in the U.S., which obviously push the envelope for not counting "day trips" to the U.S. as absences, and it appears these tend to be problematic cases; for an example of a commuter case see the Sotade decision.)
In contrast, though, in the way CIC calculates days, the PR who drives to Lewiston, NY to fill-up the pickup with some cheap gas just before midnight, and does not make it back to Canada (Queenston Heights) until a minute after midnight, outside Canada less than an hour, loses a day's credit.
In any event, the number of hours here or there is irrelevant. What matters is where the PR was at the beginning of each calendar day and at the end of each calendar day.
The meaning of "resident in Canada:"
The statutory requirement is that the PR have "three years of residence in Canada," and the statutory manner of calculation is based on "every day during which the person was resident in Canada."
This has been the problematic language haunting the citizenship application process for well over three decades.
When I began following citizenship application cases, six plus years ago, it did not occur to me that "resident in Canada" would mean, literally, "present in Canada." And indeed, at that time, the quagmire of conflicting case law was, more or less, focused on what constituted "three years of residence in Canada" rather than on the precise manner in which the total number of days was calculated.
In 2011 Justice Rennie and Justice Snider issued decisions (which have been frequently cited since by numerous other Federal Court justices; see the Martiez-Caro decision for example, which has been cited in other decisions more than two dozen times in the last three years)) specifically stating that "residency means physical presence." This is substantively very different from stating that residency is determined based on physical presence, a difference which implicitly underlies the many, many previous Federal Court decisions upholding the application of a qualitative test for determining residency, but which is largely dismissed in subsequent citizenship case law.
Think about it: a resident of Toronto who spends a week in Ottawa does not cease to be a resident of Toronto during that week. But for Justice Rennie, if that week was spent in New York City, this individual did not have "residency" in Canada (and so could not be a Toronto resident) for that week. Which is, really, absurd, except this is the way these provisions of law have been interpreted and applied in tens of thousands of cases.
In contrast, for example, both CRA rules governing residency, and residency qualifications for provincial health care in most provinces, include a presence element but recognize residency as something separate from presence (for CRA, 183 days presence in a year creates a presumption of residency in Canada; for OHIP, for example, qualification is based on both maintaining "residency" in Ontario and being present in Ontario 153+ days in the calendar year). This is typical of many residency requirements, which range from basic residency (place individual chooses plus enough ties to that place that it is not deceptive to declare that is one's residence) to consideration of multiple factors including what the individual has said is his place of residence but also considering other indications of where the individual maintains a primary place of abode (and this can include, for example, comparing how much time a person stays there versus elsewhere).
In any event, I agree that the language in the statute, "every day during which the person was resident in Canada," suggests that a day should count if (1) the person was a "resident" of Canada on that day, and (2) was present during that day (without regard to whether that was a day started outside Canada, or a day which ended outside Canada, so long as the individual was in Canada during that day.
But my impression is that CIC is not going to buy that. That a CJ is not going to buy that. And it seems like a tough case to make to the Federal Court.
And usually this only adds a few days to the calculation, whereas most decisions turn on a more general, broader time span for which CIC questions the applicant's residency. In other words, in almost all cases, this difference is not going to make or break the case, especially once it gets to the Federal Court (if it does, and no one really wants to go there . . . well no sensible person wants to go there).
But as I noted already in the other topic, sure, there are bound to be a significant number of PRs for whom this makes a big difference as the end of the critical month (be that relative to the approach of May 1st, or June 1st, or July 1st, all highly possible dates which could be designated as the date the revised provisions come into force) approaches, especially those who have made a large number of brief trips abroad (such that rather than counting one or the other, counting both days of exit and entry could add dozens of days to their calculated residency).
