The Immigration Appeal Division (IAD) has a unique equitable jurisdiction — a discretionary power to allow an appeal or stay a removal order on the basis of humanitarian and compassionate (H&C) considerations, even where the legal ground of inadmissibility or removal is established. This power is found in IRPA ss 67–68 and distinguishes the IAD from a purely legal appellate body.

The equitable jurisdiction allows the IAD to weigh all the circumstances of a person's situation — their ties to Canada, family relationships, rehabilitation, length of residence, best interests of children — against the seriousness of the inadmissibility or breach, and to grant relief where the balance favours it.

• IRPA s 67(1)(c) — the IAD may allow an appeal where, at the time the appeal is disposed of, it is satisfied that sufficient H&C considerations warrant special relief in light of all the circumstances of the case, taking into account the best interests of a child directly affected
• IRPA s 68(1) — the IAD may stay a removal order where satisfied that sufficient H&C considerations warrant staying the removal in light of all the circumstances of the case, taking into account the best interests of a child directly affected
• IRPA s 64 — exclusion from appeal rights: persons found inadmissible on grounds of serious criminality (s 36(1)), security (s 34), human rights violations (s 35), or organized criminality (s 37) have no right to appeal to the IAD

The two-part analysis

In removal order appeals, the IAD conducts a two-part analysis:

1. Legal grounds: Was the removal order validly issued — i.e., is the person inadmissible as alleged?
2. Equitable jurisdiction: Even if the removal order was validly issued, are there sufficient H&C considerations to warrant special relief?

If the legal grounds are not made out (the ID's inadmissibility finding is wrong), the IAD allows the appeal on legal grounds without needing to reach the equitable jurisdiction. If the legal grounds are established, the IAD then exercises its discretion under ss 67(1)(c) or 68.

Factors in the H&C balancing

The IAD considers all relevant circumstances. The factors most commonly applied are drawn from the leading Federal Court of Appeal decision in Ribic v Canada (Minister of Employment and Immigration) [1985] IABD No 4 and subsequent case law. The Ribic factors include (non-exhaustive):

• The seriousness of the offence or act leading to the removal order
• The possibility of rehabilitation
• The length of time spent in Canada and the degree of establishment in Canada
• The family in Canada — including the impact of removal on family members and the best interests of any children
• The hardship that removal would cause the person and their family
• The degree of support in the community
• The specific family and personal circumstances of the person

Best interests of the child is a mandatory statutory consideration — the IAD must actively consider the impact of the decision on any child directly affected.

Who has access to equitable jurisdiction

Not all persons appealing removal orders have access to the IAD's equitable jurisdiction. Persons who are inadmissible for serious criminality (sentenced to a term of imprisonment of at least 6 months, under s 36(1)), or for security, human rights violations, or organized criminality, are excluded from IAD appeal rights entirely under s 64. Persons convicted of offences carrying a maximum sentence of 10 years or more under Canadian law are also excluded.

The equitable jurisdiction under ss 67–68 is therefore available primarily to permanent residents and foreign nationals with appeal rights — typically those facing removal for less serious criminality, non-compliance, or misrepresentation grounds.

The IAD's equitable jurisdiction reflects the principle that immigration enforcement should account for individual circumstances and human impact, not only technical legal compliance. It is a meaningful protection against disproportionate removal of long-established permanent residents with strong community ties.

For the IRB's guidance on the equitable jurisdiction, including its compilation of key factors considered, refer to the IAD Removal Order Appeals — Chapter 9: Discretionary Jurisdiction (IRB Legal Services).