Pearkes v. Canada
T-2602-92
Pinard J.
22/12/93
9 pp.
Application for declaration regulation contrary to Charter, s. 15 -- SSHRC [Social Sciences and Humanities Research Council] fellowships: guide for applicants, par. 45 providing fellowships awarded to Canadian citizens tenable at recognized universities in Canada or abroad -- Par. 46 providing permanent residents may hold award abroad only if, at time of application, had held full-time faculty appointment at Canadian university for at least two years, and can produce evidence will be returning to Canadian academic appointment at end of fellowship appointment -- Citizenship ground analogous to those enumerated in Charter, s. 15 -- Pars. 45, 46 distinguishing between Canadian citizens and permanent residents -- Regulation denying plaintiff, American citizen married to Canadian, and permanent resident since 1985, opportunity for funding to study abroad -- Effectively denying her any opportunity to pursue scholastic area of interest and excellence -- Compared to other Canadians, plaintiff not receiving equal treatment under regulation -- Distinction based on citizenship status -- SSHRC assuming permanent residents less likely to return to Canada if study abroad -- No analysis, evaluation or survey supporting assumption -- Application of regulation discriminatory against non-faculty member permanent residents of Canada desiring to hold SSHRC grant abroad -- Such permanent residents entitled to be dealt with on individual merits, not dismissed from consideration due to stereotyping and discrimination based on non-citizen status -- Regulation violates Charter, s. 15 -- Onus of justifying infringement of guaranteed Charter right resting upon defendant seeking to uphold limitation -- Fundamental objective of doctoral funding program development of highly qualified personnel in social sciences or humanities -- Objective not distinguishing between permanent residents and Canadian citizens -- SSHRC not providing any rational connection between discriminatory requirement in Guide, par. 46 and stated objective -- Defendant failing to demonstrate any valid reason to deprive permanent residents of chance to apply for SSHRC doctoral fellowship abroad and to deny them opportunity to show their links to Canada as strong as other Canadians desiring to hold such SSHRC grants abroad -- Discriminatory regulation not saved by Charter, s. 1 -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.