Happy 2022!

The beginning of a new year is a special time. It is a time to reflect on growth, possibilities and challenges. At CIL, we are constantly innovating and implementing new strategies to stay on top. In my view, we have been successful with applications and appeals because we are not satisfied with mediocrity. We strive for the best in ourselves and we expect the best results for our clients. If you read this space, you have read about our past successes and awards. We are both thankful and humbled to be recognized as one of the best immigration law firms. We know that we need to continually strive for perfection to stay on top.

2021 was a year with many successes and also challenges. We are all dealing with this ongoing pandemic which has added stress & uncertainly to the Canadian immigration system. 2021 was also an election year in Canada that resulted in minor changes. The PM remained the same. The Minister of IRCC changed. The previous Minister moved to CBSA. We continue to work with MPs in Manitoba and we will continue to advocate at Parliamentary sessions for change.

At the end of 2020, I called on IRCC to implement many changes. 2021 saw some of the changes actually enacted into policy and we have seen positive steps. We now actually get calls from IRCC Officers. We are building our relationships with Officers at Service Canada, IRCC and CBSA. We are working towards a more collaborative approach.

In addition, IRCC has been working to further digitize the system. We saw many improvements in 2021 and we hope this work will continue in 2022. It is now possible, for example, to submit an SCLPC Class application online; however, it is still not possible to submit the OWP (Spousal) online with that application. Considering that we can easily submit other Work Permit applications online, it does not make much sense why that particular scenario is not possible.

2022

For those who missed our “Lessons from 2021” post, we may still publish a post soon. Our Lessons from 2020 post was very popular. Many of those lessons remain relevant. At the same time, our staff has grown and that comes with additional challenges. December 2021 was possibly our busiest month ever. We broke records in terms of productivity and getting applications done. Clients want their applications submitted before the end of the year. In general, most of our time is spent editing documents from clients and waiting on IRCC. We are very quick and efficient with our work.

We want to wish you and your family a wonderful 2022. We mailed out 500 cards to our friends and partners. You will continue to receive donations for Harvest Manitoba, although we are currently not allowing any in-person appointments. To date, everyone at CIL is healthy and we have taken measures to keep everyone safe.

 

Harvest Manitoba Donations Accepted

During this time of giving, everyone at CIL wants to help out as much as possible. We have contacted Harvest Manitoba and we now have a food donation bin in our reception area. The next time you come to the office, feel free to bring a donation. All donations will be given to the generous folks at Harvest Manitoba. They have been helping Manitobans in need for many years and we are extremely grateful for the work they do.

Harvest Manitoba

As I said during my recent presentation for Manitobans for Human Rights, we all need to be part of the solution. This is part of that work. Here is a quote from the Harvest Manitoba website that describes how the donations are used:

Thanks to our amazing community spirit, and generous hearts, Harvest collects and shares 11 million lbs of healthy and nutritious food to hungry Manitobans every year.

With this food, we prepare Harvest Hampers in our Winnipeg Warehouse, which are then distributed to feed 80,000 Manitobans – hungry children, hardworking families and struggling adults – every month. Our volunteers donate almost 200,000 hours of hands-on service annually to make this happen. We would never have lasted this long – 35 years – or helped as many people as we have if it were not for you, the people who support us.

If you or your family members are in need and you would like to receive services from Harvest Manitoba, please contact them:

In Winnipeg:
204-982-3671 – New to Harvest/ appointments@harvestmanitoba.ca
204-982-3660 – Returning Clients/ appointments@harvestmanitoba.ca

Outside Winnipeg:
1-800-970-5559 / kellym@harvestmanitoba.ca

Call Centre Hours:

Monday to Friday: 9:15 am to 3:15 pm
Saturday: 9:30 am to 12:30 pm

Please note: our office will be closed starting December 23rd, 2021 and will re-open Monday, January 3rd, 2022.

We want to wish all our clients a wonderful holiday season. We will be taking this time off to recharge so we can continue to provide the best services.

See you in 2022!

Three Best Lawyers 2021

As an immigration lawyer, I love connecting with people from around the world. If you read my background, you may know that I spent time at the Canadian Embassy in Washington DC and I was on my way to joining the Foreign Service. With the Ebola outbreak in 2001, I ended up going to law school at Queen’s University, Faculty of Law instead and people from around the world come to our office for help. I met with a gentleman from Nigeria today who let me know that we were awarded the Three Best Lawyer award for 2021. I believe this award covers immigration lawyers in Winnipeg. Thank you! Top Immigration Lawyer

We received this message from ThreeBest:

You are listed as one of the Top 3 Immigration lawyers in Winnipeg, MB. We would like to Thank You for providing consistent high-quality service in your area of business. Our business analyst team has selected your business based on our rigorous 50-Point Inspection.

To be clear, we did not have any contact with Three Best and we had no influence over this award. I believe this award is based on the amazing work done by the staff at Clarke Immigration Law. Everyone at our firm is fully committed to providing the best quality services in Canada. We constantly strive to use every tool and every program for the benefit of our clients.

I believe this award is based on being open & transparent. We do not just say it. We do it! I have been trying to get other law firms to be fair. Lawyers tell me directly they cannot be fair with their clients. They charge their Chinese clients $$$$, for example, while they charge their American clients $$ for the same application. In my view, that is not fair. Shouldn’t lawyers who fight daily for justice and fairness also treat their clients based on the same principles?

Delays, Excuses and Backlogs

IRCC processing times, which are published and updated online here, can be very frustrating for applicants and representatives. As I testified to the Parliamentary committee in NOV 2020, I have been urging the Canadian government to further digitize the system to improve efficiency and to shorten processing times. Government departments, alas, are very slow to adapt. After a year, we have seen some minor improvements to the system and we acknowledge that many IRCC Officers have been focused on helping applicants from Afghanistan and other countries who require urgent attention. That said, it is very frustrating that we are constantly dealing with IRCC delays, excuses and backlogs. As often reported in the news, IRCC delays may cause serious problems for the applicants. 

How to Avoid Delaysdelays, excuses and backlogs

We often get clients who come to us when they are frustrated and they have exhausted all logical routes to expedite their applications. During consultations, clients almost always want to know how long an application will take and they want to know what they can do to speed it up.

Our first piece of advice: make sure the application is complete and it is done properly.

To do that, we recommend that you hire a representative. Collectively, the staff at CIL has more than 40 years of experience putting applications together and dealing with every type of situation. We understand the purpose and language of the IRCC forms, which may not be clear. Too often, we have seen applicants go sideways because an applicant did not answer the forms correctly. I will add that many applicants have good intentions and they make mistakes even when they are trying their best to follow the IRCC guide.

The second piece of advice: IRCC Officers are people too.

It is very easy to think of IRCC as a monolithic department of cogs and wheels. That is simply not the case. IRCC is one of the largest departments within the federal government, with many different offices. Each Case Processing Centre has its own office culture. Each Visa Office has its own idiosyncrasies. And each Officer is empowered with discretionary power to handle their applications as they see fit, within reason. I have seen messages to Officers that are rude, unprofessional and insulting. Do you think this helped? No, of course not. It is more likely the application of a belligerent applicant will receive additional scrutiny. Be respectful. Be professional. Despite IRCC delays, the Officer who may be working diligently on the other end will appreciate it.

Third piece of advice: work within the system.

I am hesitant with this advice. The Canadian immigration system is arbitrary and often unfair. At times, it seems like the best course of action is to try to break the system and, at times, it seems like the system is not working. That said, we advise to try to work within the system as much as possible. The system itself is vast and complex. Sometimes a client will complain and express their frustration/ disappointment before they have exhausted all options within the system.

When All Else Fails – Mandamus

In cases where an application has been in process for much longer than average processing times and all (reasonable) efforts have failed, we file Mandumas Applications to Federal Court. This is considered to be an “extraordinary” remedy and it should be employed as a last resort (read: last, last, last resort) when the IRCC delays are unbearable. Mandamus applications are expensive and they do not guarantee a positive result. If allowed, the Court will simply make an Order to IRCC to make a decision – positive or negative.

In a recent 2020 decision, Justice St Louis outlined the relevant legal test:

1) There must be a public legal duty to act.

2) The duty must be owed to the applicant.

3) There is a clear right to the performance of that duty, in particular:

  1. a) the applicant has satisfied all conditions precedent giving rise to the duty;
  2. b) there was:

(i) a prior demand for performance of the duty;

(ii) a reasonable time to comply with the demand unless refused outright; and

(iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.

4) where the duty is discretionary, the discretion is fettered and spent.

5) No other adequate remedy is available to the applicant.

6) The order sought will be of some practical value or effect.

7) There is no equitable bar to the relief sought.

8) On a “balance of convenience”, an order in the nature of mandamus should issue.

As with all matters before Federal Court, the job of the lawyers at the Department of Justice (DOJ) is to act in the best interests of the Government of Canada. Most of the time, this means the DOJ lawyer will defend the Officer, even to the point of defending IRCC delays.

In the case cited above, the Mandamus Application was dismissed. This means that all the time and effort on the part of the lawyer was wasted. It also means that all the $$$$ spent by the client was for naught.

The last point regarding Mandamus Applications is that the IRCC application may be decided at any time. There is no way to predict exactly when the IRCC Officer will make a decision.

Every Case is Different

It may be trite but it is important to underline that every case, every application is different. In the background, the IRCC Officer may be doing an investigation, completely unbeknownst by the applicant.

I cannot tell you how many times we have heard something along these lines: “my friend has exactly the same case and his application was approved a long time ago! Can you help?”

If we are then retained to help, we can then try to figure out what is going on. It is often very clear after our review that the application had issues and, in fact, it was very unlikely the friend’s case was “exactly the same”.

Things May be Improving

I think it is very clear the Canadian immigration system is slow. There are many things that can be done to increase efficiencies and I know IRCC is working hard to improve the system.

We did a Canadian citizenship application for 2 minor applicants (which were approved). Average processing times for the application are 12 months and we got approvals after only 6 months. So our client was very happy with our service. However, she then applied for UK citizenship for the 2 minor applicants (their father is British) and the applications were processed in a few weeks. She was able to scan and send the documents to the UK Officer by email. Imagine that!

To end, we want to congratulate the new Minister of IRCC, the Honorable Sean Fraser. Hopefully, he will continue to build efficiencies in the system to make it better and easier to reunite families in Canada.

MB Torch of Dignity Event

Torch of Dignity

Clarke Immigration Law had the privilege of participating in the recent Manitoba Torch of Dignity Event. Alastair Clarke was honoured to be invited as a Speaker & Presentor to this event, based on his advocacy on behalf of Manitobans. Alastair has been fighting for his clients for many years, including cases based on human rights violations and cases based on Charter rights. Here is a copy of Alastair’s speech, which is available online:

Thank you for the invitation to speak with you today. I am prerecording my talk and I expect that we started this conference with acknowledge to the First Nations people. I am speaking to you at Clarke Immigration Law,  located on the traditional lands of the Anishinabe, Cree, Oji-Cree, Dene, and Dakota, and is the Birthplace of the Métis Nation and the Heart of the Métis Nation Homeland. And this acknowledgment is not perfunctory. As a conference focused on human rights, we need to recognize the human rights that have been violated in Canada. For the first National Day for Truth and Reconciliation, Clarke Immigration Law announced pro bono services for Indigenous people. I believe it is incumbent on all of us to be part of the solution.

OK – today I have been asked to speak on Article 14 of the Universal Declarations of Human Rights. Namely, the right to seek and enjoy asylum from persecution. The Declarations were proclaimed by the UN General Assembly in 1948 in the shadow of WWII. Subsequently, member states participated in four Geneva Conventions that led to the 1951 Refugee Convention. Immigration lawyers regularly refer to the 1951 Geneva Convention as the foundation for modern refugee laws. It is important to note that Canada did not sign the Convention until 1969 – more than 18 years after it was adopted by the UN.

In Canadian law, the principles have been ratified in sections 96 and 97 of the Immigration and Refugee Protection Act. For any foreign national in Canada, they may be granted refugee status or protected person status if they fall within sections 96 or 97. These sections are the backbone of the refugee determination system and the particular language of these sections has been heavily litigated.

Torch of Dignity

Torch of Dignity

As a practitioner, my job is to help my clients navigate the Canadian immigration system. I have represented thousands of clients from around the world on all kinds of immigration applications. Today I want to share 3 cases with you. These are real cases of real people. The point of the first case is to show how Canadian laws may fail to protect human rights. The second is to how the Canadian system has adapted to help people who have suffered human rights violations. The third case is a challenging case that I am currently handling. The point of this third case is to highlight some of the issues refugee lawyers have to deal with in 2021. Finally, I want to propose an expansion of refugee law and I want all of you to get involved in helping refugees who need our help.

The first story starts in Burundi. The former president of Burundi and his regime committed many human rights violations and the International Criminal Court has been investigating human rights abuses since 2017. I got involved in 2018 when I got a call from a Burundi journalist at the border. She entered the United States on a visitor visa and she was attempting to file a claim for refugee protection in Canada. Her sister-in-law lives in Winnipeg and they are very close. Unfortunately, when she got to the Canadian border, the officers could not allow her refugee claim to be referred to the tribunal unless she passed the legal test in the Safe Third Country Agreement. In this case, the Agreement mandated that this Burundi journalist file her refugee claim in the USA unless she fell under one of the exceptions. The family thought that having a family member in Canada would grant her access to the Canadian refugee determination system – which is far more humane than the American system. Alas, her relationship with her sister-in-law, a relationship by marriage not by blood, was not sufficient and she was denied entry. On a side note, her children were allowed to enter as they have a blood connection with their Canadian aunt. The journalist made the heart-wrenching decision to give her children to her sister-in-law and to stay at a shelter near the border in the USA. That is when I got involved. We filed an Application for Judicial Review to Federal Court and negotiated with the Department of Justice. It was not easy but the journalist is now in Canada with her children and they are all permanent residents.

I have spoken on the so-called Safe Third Country Agreement at national conferences for immigration lawyers and in many news interviews. In my view, this Agreement allows Canada to shirk its human rights obligations. In 2020, Federal Court Justice McDonald determined the Safe Third Country Agreement is unconstitutional and fails to protect human rights. I would encourage you to read this well reasoned decision that is based on very strong evidence. This decision, however, was overturned by the Federal Court of Appeal earlier this year. I disagree with this recent decision and more work needs to be done.

The second case refers to the Singh decision by the Supreme Court of Canada, rendered on April 4th, 1985. The reason I mention the date is because April 4th is Refugee Rights Day and that date was chosen based on the Singh decision. Prior to the Singh decision, refugee claimants in Canada did not have the right to a hearing. They submitted a written claim only. No testimony. No witnesses. There were many lawyers involved as advocates in this decision but I want to mention Barb Jackman. She is one of the reasons I fight for my clients. She was my professor at Queen’s Law and she would talk to me about her cases during breaks. Barb was a young lawyer when she argued the Singh case at the Supreme Court and she made strong Charter arguments to fight for change. Indeed, the Court agreed and the Immigration and Refugee Board was created. I have been giving guest lectures to students at the University of Winnipeg for many years and we focus on the Singh decision. This decision gives me hope for positive change and it shows the importance of both individual effort and the judicial system to be part of the solution.

My last story involves a member of the Falun Gong from China who is currently fighting to stay in Canada. Human rights abuses of members of Falun Gong are well documented. My client was tortured and she is emotionally exhausted. She fled China without any documents and she has been trying to have evidence sent to her. Alas, the Chinese government’s draconian surveillance system has cut her off from her relatives and friends. Her WhatsApp account was canceled. Her friend’s account has been suspended. She is now afraid that if she continues with her claim, her family members in China will be punished. The reason that I bring up this case is the highlight the challenges of fighting human rights abuses in 2021. While we have technology that allows me to present to you, wherever you are, modern technology also allows governments to hide human rights violations.

Finally, I want to end on a call to action. Currently, we are facing possible extinction if we do not confront climate change. The 1951 Geneva Convention and, subsequently, sections 96 and 97 of IRPA did not consider people being displaced from environmental disasters. These people are currently not covered by our laws. I have been working on this issue since 2010 when I edited an article by Peter Showler entitled The Plight of the Eco-Refugee. Climate change is an existential threat and we need to recognize this risk within the context of refugee law.

Thank you and I look forward to further discussion on any of these points. I hope I have helped spark change.

To watch the event, click here and you can watch the Q&A with all the presenters. 

 

CityNews: Stop Deportation

Canada Border Services Agency (CBSA) is in the process of removing a Pakistani family who have been living in Canada for 3 years. Please note: CIL does not represent this family and we are not involved in any legal matters. We have been advised they are represented by counsel who, unfortunately, has not been able to stop the deportation. We were contacted by multiple news agencies to give legal advice on immigration law and how to stop deportation.

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As noted by the segment on CityNews:

A family of 6 living in Winnipeg is desperate and worried about being deported. After creating a life here for the past 3 years, they are being forced to leave because all their appeals have been denied. @CityBreanna can tell you the story.

We have been advised this family is still in Canada. We hope their counsel is able to stop deportation. This is a complex matter. We have been advised they had their refugee claim heard at the IRB-RPD and the Adjudicator refused their claim. They appealed to the IRB-RAD and the Adjudicator refused their appeal. In addition, they appealed to Federal Court for judicial review and this ALJR was dismissed. At this point, CBSA is pursuing deportation.

This story has also been covered by CTV News: ‘I am looking out for their lives’: A Winnipeg family is seeking help as they face deportation before the end of the year

As stated in the CTV article:

Alastair Clarke is an immigration lawyer with Clarke Immigration Law. He hasn’t represented the family during this process, but said there can be several reasons why an asylum application is denied.

“The adjudicators at the tribunal obviously take the claims very seriously. They ask very serious and often difficult questions, in order to see if the claimant is telling the truth, to see whether or not the claimant meets the definitions under Canadian law,” said Clarke.

Clearly, this family has strong connections to Canada and we wish them all the best. Hopefully their lawyer is able to stop deportation.

National Day for TRC: Pro Bono Services

Tomorrow is Canada’s first National Day for Truth and Reconciliation. This is the first national day to focus on the rights of First Nations peoples. Here at Clarke Immigration Law, we are focused on being part of the solution. Immigration needs to recognize Canada’s colonialist past. We need to be part of the solution.

Recognizing our role to help, CIL is offering pro bono services for First Nations individuals on Change of Name applications. This is a program that was announced in 2021. As reported:

Federal Citizenship and Immigration Minister Marco Mendicino says beginning Monday, June 14, Indigenous people can apply to change their names on documents like passports, status cards, permanent residency documents, and social insurance cards.

“It will not only apply to those survivors of the residential schools, but others as well who may have had their names stripped from them. And the process will be entirely free,” Mendicino explained Monday.

This is a service that we will provide to all Indigenous people who request this service. We will not charge any professional fees for this service.

Congrats Voters!

Canadians have, once again, elected a Minority Liberal government to represent their interests in Ottawa. The Members of Parliament who will be returning to govern are largely the same as those before, with a few significant exceptions. Here in Manitoba, I was pleased that both Jim Carr (Liberal) and Raquel Dancho (CPC) were both re-elected. Members of CIL have worked closely with the staff at these MP offices and they have been doing a great job to serve their constituents.

58% to 59% Turnout

News is reporting that approximately 58% of eligible voters were able to cast a ballot. Considering we are in the midst of a 4th wave (AB has recently declared a state of emergency), I would say this was good turnout. As reported last night, there were ridings where voters waited up to 4 hours in line. Very impressive.

Winnipeg win

Manitoba has a long history of active political participation. From Louis Riel to the activists during the Winnipeg general strike, Manitobans take politics seriously. The province is neither a CPC base as our neighbours to the west, nor a Liberal base as our neighbours to the east. Winnipeg and Manitoba is a quilt of different ridings and, I believe, voters take the issues seriously. Manitoban voters understand the particular issues for our region, in the “heart” of the continent.

In addition to congratulating all voters, I have to send out a positive message to the Liberals. They have, again, a minority government so they will be forced to work with other parties to pass legislation. I would encourage all MPs to find common ground on immigration issues to get things done.

Winnipeg – Smart City

The Intelligent Communities Forum (ICF) has, once again, recognized the skills and intelligence of the people of Winnipeg. We are a “smart city”. This comes as no surprise. Winnipeg has been heralded as one of the most intelligent communities in the world many times before. The ICF compares 180 cities around the world, comparing the level of collaboration and innovation between metropolises in many countries to define a few as “smart cities”.

Tech-Savvy CitySmart City

The results of the 2021 ICF report confirm the obvious: Winnipeg is a leader in the areas of tech-savvy projects and innovation. As noted by CTV News:

In 2018, 2016 and 2014, ICF selected Winnipeg as a Top 7 Intelligent Community, recognizing the city’s global leadership in technology deployment, digital innovation and demonstrating a commitment to using data to improve the quality of life of all its citizens.

For residents of Winnipeg, we are constantly striving for community-led projects. This is part of the fabric of our city. Economic Development Winnipeg is leading the way to support tech-savvy projects and support the private sector to ensure we continue to be recognized an internationally-recognized “smart city”.

TEDxWinnipeg

I was honoured, back in 2018, to be selected to give a presentation at RBC Convention Centre with TEDxWinnipeg. It was yet another opportunity to connect with cutting-edge Winnipegers who were doing amazing projects. We had speakers from all walks of life who had initiated or were involved in amazing projects to better the lives of residents of our wonderful city.

TEDxWinnipeg is, in and of itself, a perfect example of the innovation and collaborative approach to projects in Winnipeg. It brings together thought-leaders from different fields to support innovative new projects to build our “smart city”.

If you are keen, you can watch my presentation on YouTube. 

From Mayor to the Street

Upon hearing the news, Mayor Brian Bowmen commented:

Being named to the international Top 7 list for the fourth time in 10 years and the ninth time for the Smart 21 list over the same period is strong validation that Winnipeg is a consistent competitor with cities from around the world. With a population that is expected to continue growing to a million people, Winnipeg is truly a world-class place to call home.”

I agree 100%. And immigration, with the MPNP program and the numerous universities and colleges that attract talent from every corner of the world, is the backbone on Winnipeg’s continued growth.

Here at CIL, we are thrilled to be part of helping the growth of Winnipeg and Manitoba. We look forward to celebrating when Winnipeg surpasses the 1 Million Residents mark. That will truly be a date to celebrate. We simply need to focus on short-term goals and help families, one at a time. We will get to 1M residents.

If you are reading this and you are interested in joining one of the “smart cities” of the world. Here at CIL, we would love to help you and your family achieve your immigration goals. Come and join us in Winnipeg. We look forward to working with you and helping you get settled in our diverse community.

Queen’s is #1

I am proud to see that my alma mater, Queen’s University, has been ranked #1 in Canada and #5 in the world, based on Times Higher Education 2021 Impact Rankings. I attended Queen’s University from 2005 to 2007 for my law degree (LL.B, converted to J.D.) and I had a great experience. Located in Kingston, Ontario, the town has a strong campus culture and it is conveniently located between Ottawa and Toronto. While I was in law school, for example, we were able to make multiple trips to the Supreme Court of Canada and meet the justices on Canada’s top court. Down the highway in the other direction, it was easy to spend weekends in Toronto and Queen’s has a strong connection with Bay Street firms.Queen's

I hope you don’t mind if I take a trip down memory lane. I owe my practice and my firm, in part, due to the top level of education at Queen’s. My professors include Sharry Aiken, Barbara Jackman, Geri Sadoway, Paul Paton and FCA Justice David Stratas. Each one of these professors helped me find my passion for immigration and refugee law. During presentations at the University of Winnipeg and at BCIT, I have talked at length about the Singh decision at the SCC and the importance of this decision on all refugee claimants – even in 2021. My presentation would not have been nearing as interesting without the conversations that I had with Barb while I was at Queen’s.

My Blank Key

When I was in my small section at Queen’s, Professor Pardy gave each of us a blank key as a symbol of our law degree. He passed along a didactic story, which I will not repeat here, with the point that it is a privilege to go through law school. We learned how legal systems work. We learned how to read and interpret legalese. I remember a line from Rake where he was talking about how lawyers stopped using Latin. To paraphrase, lawyers were able to make English so cryptic and incomprehensible, they no longer needed to use Latin. Indeed.

Not All Roses and Puppies

I love talking to students about going to law school. This should not be an easy decision. If you or someone you know is thinking about going to law school, they need to understand the good… and the bad. In 2007, I graduated from Queen’s with around 160 other law students. Since then, 4 of my classmates have lost their lives. These deaths are tragic on different levels. Anyone who is considering a career in law should be aware of the high stress & anxiety. I have not checked recently but lawyers are generally at the top of the list for drug and alcohol abuse. Not surprisingly. (If you’re wondering, I meditate and I have a strong support network. I also take self-care very seriously.)

I want to wish all Queen’s grads an amazing 2021. Congratulations on getting #1 in Canada. Great school.