Date: 20100702
Docket: IMM-2173-09
Citation: 2010 FC 723
Ottawa, Ontario, July 2, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GURMUKH
SINGH PARMAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is a case of medical inadmissibility to Canada, on grounds
of excessive demand for social services and does not deal with excessive
demand for health services. In this judicial review application, Gurmukh
Singh Parmar (the applicant) challenges the April 21, 2009 decision of
Designated Immigration Officer Nimish Gautam of the Canadian High Commission in
New Delhi (the Visa Officer) who denied his application for permanent residence
in Canada on the sole ground his dependant son Inderjot, then age 19, was
medically inadmissible pursuant to paragraph 38(1)(c) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] being of the view that
Inderjot’s health condition, severe mental retardation with spastic cerebral
palsy (which is not disputed by the applicant), might reasonably be expected
to cause excessive demand on social services in Canada.
[2]
What
is principally challenged by the applicant is the need for some social services
which the Visa Officer took into account in determining excessive demand in
this particular case. Simply put, the applicant argues his son’s health
condition is such that publicly funded long term care, social worker/medical
coordinator, speech language therapist and physiotherapy are of no use to him
and he has never required them in the past. What needs he has have been and
will continue to be provided to him by home care. Since birth his son cannot
speak, has never been to school, has never walked, is confined to bed, has the
mental age of six months, has an IQ below 20 and is completely dependant of
others (namely his mother) for his every need: eating, dressing and change of
diapers because he is incontinent.
[3]
“Excessive
demand”, “social services” and “health services” are defined terms and are set
out in section 1 of the Immigration and Refugee Protection Regulation,
S.O.R./2002-227, [IRPR] which is reproduced in the annex to these
reasons as the relevant legislative and regulatory provisions.
[4]
As
will be seen, the focus of the arguments in this case turn on the proper
application of the teachings by the Supreme Court of Canada in Hilewitz v.
Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 [Hilewitz],
which interpreted section 19(1)(a)(ii) of the former Immigration Act,
a provision which is substantially the same as paragraph 38(1)(c) of the IRPA
(Hilewitz at paragraphs 3, 59 and 60), to require medical officers, when
determining medical inadmissibility in situations where there may be excessive
demand for social services (not health services), to take into account both
medical and non-medical factors including “the availability, scarcity or cost
of publicly funded services along with the willingness and ability of an
applicant or his family to pay for social services” (Hilewitz at
paragraph 55). Moreover, the Court also held the resources of the family could not
be disregarded in determining whether their disabled child would create an
undue burden on Canada’s social services. Private special education
training paid for by an applicant for permanent residence as well as at home
care provided by the family are two such relevant factors for this
determination.
[5]
Counsel
for the applicant challenges the Visa Officer’s decision on two main grounds.
First, he argues the Visa Officer erred in accepting Dr. Leblanc’s opinion (the
Medical Officer) that Inderjot’s health condition would create an excessive
demand on social services as that opinion was not individually particularized
to Inderjot’s social services needs. The second ground to his challenge relates
to the Visa Officer’s finding the applicant, his wife and the members of the
family or relatives in Canada, do not have the financial ability to
offset any social services which Inderjot’s health condition would otherwise
create on his demand for social services. He argues the Visa Officer’s exceeded
his statutory authority in making that finding or, in the alternative, this
finding is unreasonable and contrary to the evidence.
[6]
This
is the applicant’s second judicial review application on this issue of the
family’s inadmissibility for permanent residence in Canada because of
Inderjot’s health condition. He had challenged in this Court, in May of 2005, a
finding of inadmissibility by a different visa officer. That first decision was
rendered by the visa officer before the Supreme Court of Canada had released
its decision on October 21, 2005 in the Hilewitz case. The applicant’s
first judicial review application was settled between the parties such that the
visa officer’s April 2005 decision was quashed and the applicant’s
application for permanent residence was returned to a new visa officer for
redetermination with the right of the applicant to make a new fairness response
to a new fairness letter issued by the Medical Officer in order to take into
account the teachings in Hilewitz.
II. The Visa Officer’s decision
[7]
There
are two parts to the Visa Officer’s decision. As will be seen, the first part
is the refusal letter of April 21, 2009 which the Visa Officer sent to the
applicant. That letter adopts Dr. Leblanc’s medical opinion. It reads:
The medical officer has determined that
your family member Inderjot Singh Parmar has the following medical condition or
diagnosis:
Mental Retardation – Severe
This 18 year old applicant, born January
9, 1990, was diagnosed as having Severe Mental Retardation with spastic
cerebral palsy. Using standard clinical psychology tests, it is estimated
that his IQ is below 20 with a mental age of 6 months. He is confined to the
bed and is completely dependent on others for all activities of daily living
including feeding, dressing, hygiene and mobility. The clinical psychologist
indicates that his mental condition will persist throughout his life and he
will require ongoing support and supervision.
In the Canadian context, this applicant
and his family would require a comprehensive assessment and review by a
multi-disciplinary developmental team to establish and then implement an
appropriate interventional program to deal with his medical issues and address
his adaptive skills deficiencies. This team would likely include physicians
experienced in dealing with mentally retarded and physically handicapped
individuals, speech specialists to help him with his language skills. As
appropriate, occupational therapists, physiotherapists, special education
specialists, psychologists, and social workers would be utilized. In Canada, he would be recognized as requiring
special education and support.
The Canadian social philosophy has a
commitment to equality, full participation and maximum community integration of
all individuals with mental retardation and physical handicaps in order to
maximize their personal development. This applicant and his family would be
eligible for a variety of social services and benefits that would
promote his relative autonomy. He will require physiotherapy and home
nursing care. As well, his supportive family would be eligible for
parent/caregiver relief programs and respite care. Withdrawal of family support
would result in the applicant requiring institutional care. His requirement for
the above mentioned multi-disciplinary review and management and supportive
services are expensive and cost more than the average amount spent on
individual health care in Canada.
Based upon my review of the results of
this medical examination and all the reports I have received with respect to
the applicant’s health condition, I conclude that he has a health condition
that might reasonably be expected to cause excessive demand on social services.
Specifically, this health condition might reasonably be expected to require
services, the costs of which would likely exceed the average Canadian per capita
costs over 5 years. The applicant is therefore inadmissible under Section
38(1)(c) of the Immigration and Refugee Protection Act.
By letter dated November 28, 2008 you were advised that you may
submit additional information relating to this medical condition or diagnosis.
Additional information and documents provided by you were forwarded to our
medical officer. After review, the medical officer concluded that there are
no changes in the medical assessment and confirmed the finding of
inadmissibility.
[Emphasis added]
[8]
The
Visa Officer also states:
I am satisfied that the
medical officer’s opinion about your family member’s Inderjot Singh Parmar
inadmissibility on health grounds is reasonable. Accordingly, your accompanying family
member Inderjot’s Singh Parmar is inadmissible pursuant to section 38(1)(c) in
that your accompanying family member’s Inderjot Singh Parmar condition might
reasonably be expected to cause excessive demand on health or social services.
[Emphasis added]
[9]
The
second part of the Visa Officer’s decision deals with the applicant’s
willingness or intent to offset the excessive demand and his financial ability
to do so. The Visa Officer’s decision on this aspect is contained in his Computer Assisted Immigration
Processing System (CAIPS) Notes which is an integral part of the impugned
decision.
[10]
The
Visa Officer first set out the reasons why he was not satisfied of the
applicant’s plan or intent to offset the excessive demand. He specifically
stated the plan was not credible on the following basis:
a. As to the
applicant’s assertion his wife will stay home to look after Inderjot, he
determined that it is “not likely” his wife will stay home once in Canada since, in
the past, she had operated a computer training company;
b. He dismissed
the applicant’s suggestion the services of a family doctor in Canada will be
all that is necessary to take care of Inderjot being of the opinion the
medical assessment clearly indicated Inderjot’s need for specialized medical
doctors;
c. He gave no
weight to the applicant’s statement his relatives in Alberta will give the
applicant a house where Inderjot’s care will be provided for by his wife and if
need be by his relatives in Alberta where he had been offered employment as a
purchasing agent by his brother. Specifically, the applicant asserts that his
sister, Kulwant Kaur, who currently looks after her grandchildren, will assist
in looking after Inderjot. The Visa Officer said there was no indication of Ms.
Kaur qualifications or experience in taking care of “mentally retarded and
physically handicapped individuals”.
d. The applicant
also asserted that because there is no treatment for cerebral palsy in Canada there would
be no demand on social services and noting the applicant had referred to
letters from doctors and medical services in Canada dated 1991,
and 1993. He rejected this evidence because they did not address the question
of how Inderjot will be supported through services and supervision.
[11]
For
the following reasons, the Visa Officer also found that there was
insufficient evidence provided in regard to the applicant’s financial
ability to offset excessive demand.
[12]
Valuation
reports of two houses and a plot of land were submitted but he noted these were
not ownership documents. Furthermore, it appeared the properties referenced are
held under joint ownership so the applicant would not be able to sell them
easily.
[13]
The
car was not an asset because the evidence indicated it was not in the
applicant’s name so ownership could not be attributed to the applicant.
[14]
There
was insufficient evidence of history of the applicant’s financial relationship
with the Bank of India, First Calgary Savings and Union Ltd., and Canada Trust.
In particular, he found there was no explanation for recent deposits of money.
He concluded the balances could have been inflated for the purpose of his
application for permanent residence
III. The process leading to the
impugned decision
[15]
On
November 28, 2008, the Visa Officer sent a Fairness Letter to the
applicant setting out Inderjot’s health condition and its potential impact on
social services. The content of the Fairness Letter is substantially the same
as set out in the Visa Officer’s subsequent refusal letter. However, in the
Fairness Letter, the Visa Officer told the applicant that in consultation with
the Health Management Branch of Citizenship and Immigration Canada (CIC), it
had determined that the following social services would be required:
Publicly funded long term care in Alberta and subsidized through
Regional Health Authorities based on an income/asset test. Information
available for 2007 indicates that individuals would be eligible for
subsidies ranging from $10,584 to $25,416 annually.
Other needs for this child with variable costs are:
- Social worker/Medical
coordinator
- Speech language
therapist
- Physiotherapy
[Emphasis added]
[16]
The
Fairness Letter contains two paragraphs of a more generalized nature which were
reproduced in the refusal letter quoted at paragraph 7 of these reasons. The
first paragraph begins with the words “In the Canadian context” and the second
paragraph with the words “The Canadian social philosophy”.
[17]
The
Visa Officer indicated to the applicant he had an opportunity to submit
additional information that addressed any or all of the following:
·
The
medical condition(s) identified;
·
Social
services required in Canada for the period indicated above;
·
Your
individual plan to ensure that no excessive demand will be imposed on Canadian
social services for the entire period indicated above and;
·
Your
signed Declaration of Ability and Intent.
[Emphasis added]
adding:
In order to demonstrate that you/your
family member will not place an excessive demand on social services, if
permitted to immigrate to Canada, your must establish to the satisfaction of
the assessing officer that you have a reasonable and workable plan, along with
the financial means and intent to implement this plan, in order to offset the
excessive demand that you would otherwise impose on social services, after
immigration to Canada.
[18]
At
this juncture, I propose to make some general observations regarding the
structure of the letters and in particular the language used by the Visa
Officer. The services identified by the Visa Officer in the Fairness Letter,
reproduced at paragraph 15 of theses reasons, seem to have been very specific
to Inderjot. However, any value in identifying these services was entirely lost
because both the Fairness Letter and the final refusal letter are couched in
unfocused and generalized language which purport but fails to specify upon
which required services Inderjot will cause excessive demand. All of this
generalized language was extracted from the Medical Notification, included as
annex to these reasons, of Dr. J.B. Lazarus (the Medical Officer who provided
the 2005 medical opinion which was the subject of the discontinued judicial
review proceeding).
[19]
Consequently,
I found the structure of the decision very confusing, as did Mr. Parmar. This
generalized language used by Dr. Lazarus does not conform with Hilewitz
as it is clearly not particularized to the individual and should be avoided in
the future.
[20]
The
applicant responded on January 23, 2009. He enclosed a declaration under
oath of ability and intent in the form set out as suggested by the Visa Officer
(Certified Tribunal Record (CTR), page 53). He declared he would assume
responsibility for arranging the provision of any required social services and
provided a statement why he did not intent to use any of the specified social
services. He enclosed financial documents. He also declared that should at any
time social services be required he intended to pay for them privately and
declared he would not hold the federal, provincial or territorial governments
responsible for costs associated with the provision of social services. In his
response, he did not take issue with the medical diagnosis of Inderjot’s health
impairment. He relied on the medical information provided in the context of the
first medical notification in 2005 was, as noted, led to a first judicial review
that settled.
[21]
In
the balance of his declaration, the applicant commented on all the services
mentioned (be they identified as social services by the Visa Officer or not) in
the Fairness Letter sent to him on November 28, 2009 (see CTR, pages M-10 to M-14).
In summary, he stated:
A. Inderjot
has had only one doctor since he was born, Dr. Singh, a child specialist.
He identified a family doctor in Calgary who will take on the
entire Parmar family as patients. He stated Inderjot did not require more than
one doctor in India and will not require any specialized medical services or
doctors in Canada. He is
healthy and does not take any medicines (CTR, page 76).
B. There
is no need for speech specialist or therapist. He understands Punjabi and
communicates by way of gestures. He cannot speak and does not understand
English. The family has never had resort to speech specialist or therapists
before and it is too late now as he is 19.
C. There
is no need for an occupational therapist. His son is bedridden and cannot move
independently; occupational therapy will not help him; he has never had this
kind of treatment in the past and there is no intention to have one in the
future.
D. In
terms of a physiotherapy, the applicant indicates this was tried between 1991
and 1997 but was discontinued because it did not provide his son with any
benefits and the sessions made his son very uncomfortable. He says he, his wife
and his other son learned soft message which is administered each day and helps
Inderjot. He has had no physiotherapist since 1997 and there is no intention to
use one in the future.
E. As
for special education specialist, the applicant indicates he has never been to
school, is 19 and would not required to go to school in Alberta. He does not
understand English and is uneducable. He will not require this service.
F. The
only time he saw a psychologist was for his immigration medical examination. He
does not need a psychologist and there is no intention to have one in Canada.
G. Inderjot
has never had a social worker/medical coordinator and does not need them. The
family doctor who is willing to attend to the family in Calgary will take
care of his needs.
H. There
is no need for home nursing care. Inderjot has always lived at home and the
family has always looked after him; his culture dictates this. Moreover, in Calgary, there is a
large extended family willing to assist him, if need be.
I. The
family has never in the past required any relief from attending to Inderjot and
has never accessed respite care. There is no intention to do so in the future.
The extended family is there to help if help is needed for he and his wife. He
notes his wife and Inderjot in 2004 visited Canada for 6
months. Everything went well. His wife looked after him by herself. Inderjot did
not need medical or social services during that trip. Inderjot enjoyed his
relatives as they him.
J. The
applicant asserted there will always be family support for Inderjot as it “is
foreign to our culture to institutionalized family member”. He indicates
should anything happen to him and his wife, his older son is committed to
looking after his brother plus the fact his extended family in Calgary (a sister
and two brothers) are there to assist.
K. In
sum, the applicant concludes that the family currently does not use any social
services in India and does not
intend to use them here. He believes that all that Inderjot needs is care and
attention by his family which they will continue to provide him with. He adds
that although his son is confined to bed and has cerebral palsy, he is
otherwise very healthy young man. He has no seizures or other complications.
[22]
The
applicant concludes his declaration by referring to his financial
circumstances. He has a job with his brother’s company as soon as he immigrates
to Canada with his
family. He has savings in GIC’s of $109,000 CDN on deposit in Canada and over
$28,800 CDN in banks in India plus fixed assets there of approximately
$352, 000 CDN. He has a house to live in Calgary owned by his
brother Inderji who has purchased another house. He speaks of his extended
family and states his wife will stay at home and look after Inderjot as she
does today in India.
[23]
He
concludes, by deposing under oath, his son will not create an excessive demand
on social services in Canada and, if required to use them, he will pay
for them privately as “I have the money to do so”.
[24]
I
make reference here to a letter missing from the Certified Tribunal Record
(CTR). Counsel for the applicant pointed out that while Mr. Parmar had made
submissions as to his ineligibility to receive long-term care in Alberta because of
the specific funding formula, the Visa Officer fails to respond to that point.
Notably, these submissions presented by way of letter were missing from the
CTR.
[25]
On
February 27, 2009 (CTR, page M-2), the Medical Officer Monique-Louise
LeBlanc wrote a short three paragraph note under the heading “Procedural
Fairness” indicating she had reviewed the responding material sent by the
applicant (his covering letter, his declaration of Ability and Intent in
prescribed form (see CIC’s Operational Bulletins 063, September 24, 2008) and
details of funds and assets). She stated in the third paragraph of her note she
had reviewed the medical file along with the material listed above (the three documents)
and “it is my opinion that no information has been provided which would
indicate that the original medical assessment was incorrect. Therefore, there
is insufficient evidence to support a change or re-evaluation of Inderjot’s
medical assessment at this time. Hence he remains M5”.
IV. The teachings in Hilewitz
[26]
The
Hilewitz case and its companion case in De Jong, above, were
situations dealing with applicants for permanent residence to Canada in the
investor and self-employed classes where both applicants had met the financial
requirements attached to those classes but were denied permanent resident
status on account of a dependent’s child’s health condition (mild mental
retardation) where medical officers at the CIC had concluded, under section 19 of
the former Immigration Act, the child’s admission to Canada “would
cause or might reasonably be expected to cause an excessive demand on Canadian
social services” a statutory provision, as noted, with is substantially
similar to now paragraph 38(1)(c) of the IRPA.
[27]
In
both cases, the applicants argued the dependent child suffered from
intellectual disabilities at birth which medical officers at CIC assessed would
require special education, vocational training and respite care for the
caregivers. Both applicants indicated in response to the fairness letter they
would send their child to private school providing special education and pay
the required cost. It followed, they submitted, there would be no demand on
social service much less any excessive demand.
[28]
In
Hilewitz, the Supreme Court of Canada allowed an appeal from a decision
of the Federal Court of Appeal which reversed a decision of my colleague
Justice Frederick B. Gibson, who quashed a decision of a Visa Officer on the
basis that, while parental resources and willingness to pay may be irrelevant
in determining whether a disabled child’s admission to Canada is likely to
cause excessive demands on health service, the same could not be said of
social services which are funded and delivered on a different basis. As
a result, Justice Gibson held those two factors of ability and willingness to
pay should have been considered by the Visa Officer who had omitted to do so.
The Federal Court of Appeal was of the view that non-medical factors such as
the availability of family support and the ability and willingness of the
family to pay were irrelevant considerations in determining whether excessive
demand would be made on Canada’s social services.
[29]
Specifically
at paragraph 25 of the Hiliwitz decision, Justice Rosalie Abella for the
majority stated the Federal Court of Appeal had come to this conclusion because
the Minister’s denial of permanent residency on medical inadmissibility grounds
reflected “a risk-adverse policy which takes into account the contingency
that a family’s financial situation could deteriorate, thereby creating a
burden on Canadian social services” (emphasis added), a view which she
rejected based on her reasons which may be summarized as follows.
[30]
First,
as a matter of statutory construction, Justice Abella took into account the
legislative history of the predecessors of paragraph 38(1)(c) of the IRPA
as well as the intent of Parliament as expressed in the legislative and
regulatory scheme more particularly disclosed in the 1977 Minutes of
Proceedings and Evidence of the Standing Committee of the House of Commons
examining clause 19(1)(a)(ii) of the former Immigration Act as to
the relevance of the issue as to whether a parent who keeps at home a
disabled child will result in that child not placing demands on social services
(see paragraph 52 in Hilewitz). Justice Abella then wrote the following
at paragraph 54 to 57 of her reasons:
54 Section 19(1)(a)(ii) calls
for an assessment of whether an applicant's health would cause or might reasonably
be expected to cause excessive demands [page729] on Canada's social services. The
term "excessive demands" is inherently evaluative and comparative.
Without consideration of an applicant's ability and intention to pay for social
services, it is impossible to determine realistically what "demands"
will be made on Ontario's social services. The
wording of the provision shows that medical officers must assess likely demands
on social services, not mere eligibility for them.
55 To do so, the medical officers
must necessarily take into account both medical and non-medical factors, such
as the availability, scarcity or cost of publicly funded services, along with
the willingness and ability of the applicant or his or her family to pay for
the services.
56 This, it seems to me, requires
individualized assessments. It is impossible, for example, to determine the
"nature", "severity" or probable "duration" of
a health impairment without doing so in relation to a given individual. If the
medical officer considers the need for potential services based only on the classification
of the impairment rather than on its particular manifestation, the assessment
becomes generic rather than individual. It is an approach which attaches a cost
assessment to the disability rather than to the individual. This in turn
results in an automatic exclusion for all individuals with a particular
disability, even those whose admission would not cause, or would not
reasonably be expected to cause, excessive demands on public funds.
57 The issue is not whether Canada can design its immigration
policy in a way that reduces its exposure to undue burdens caused by potential
immigrants. Clearly it can. But here the legislation is being interpreted in
a way that impedes entry for all persons who are intellectually disabled,
regardless of family support or assistance, and regardless of whether they pose
any reasonable likelihood of excessively burdening Canada's social services. Such an
interpretation, disregarding a family's actual circumstances, replaces the provision's
purpose with a cookie-cutter methodology. Interpreting the [page730]
legislation in this way may be more efficient, but an efficiency argument is
not a valid rebuttal to justify avoiding the requirements of the legislation.
The Act calls for individual assessments. This means that the individual, not
administrative convenience, is the interpretive focus.
[Emphasis added]
[31]
Second,
the test to determine whether of the child’s medical condition might reasonably
be expected to cause excessive demand is to be gauged on the standard of
“reasonable probability, not remote possibility. It should be more likely than
not based on a family’s circumstances that the contingencies will materialize”.
(Hilewitz, paragraphs 58 and 68)
[32]
Specifically,
Justice Abella found that a person can only be found to be ineligible for
admission following an inquiry which excludes speculative contingencies such as
possible bankruptcy, mobility, school closure and parental death. She wrote:
58 The clear legislative threshold
provides that to be denied admission, the individual's medical condition
"would" or "might reasonably be expected" to result in an
excessive public burden. The threshold is reasonable probability, not remote
possibility. It should be more likely than not, based on a family's
circumstances, that the contingencies will materialize. See Hiramen v.
Minister of Employment and Immigration (1986), 65 N.R. 67 (F.C.A.), and Badwal
v. Canada (Minister of Employment and
Immigration)
(1989), 64 D.L.R. (4th) 561 (F.C.A.), both by MacGuigan J.A.
68 These views, it seems to me,
undermine and contradict the direction in the legislation that a person can
only be found to be ineligible for admission if his or her admission
"would" or "might reasonably be expected" to cause
excessive demands. That means that something more than speculation must be
applied to the inquiry. The fears articulated in the rejections of the Hilewitz
and de Jong applications, such as possible bankruptcy, mobility, school closure
or parental death, represent contingencies that could be raised in relation to
any applicant. Using such contingencies to negate a family's genuine ability
and willingness to absorb some of the burdens created by a child's disabilities
anchors an applicant's admissibility to conjecture, not reality.
[Emphasis added]
[33]
Third,
she noted social services are regulated by provincial statutes and there is
distinction between health services and social services (see paragraphs 21 and
67).
[34]
Justice
Abella concluded:
70 The medical officers were obliged
to consider all relevant factors, both medical and non-medical, such as the
availability of the services and the anticipated need for them. In both cases,
the visa officers erred by confirming the medical officers' refusal to account
for the potential impact of the families' willingness to assist. Moreover,
their failure to read the families' responses to the fairness letters sent to
them by the medical officers meant that their decisions were not based on all
the relevant available information.
IV. The standard of review
[35]
Two
recent Supreme Court of Canada decisions have impacted on the standard of
review analysis which its previous jurisprudence had established. As is well
known these decisions are : Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 and, in respect of federal tribunals, Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa].
[36]
Dunsmuir prescribes:
i.
With
the elimination of the previously recognized standard of patent
unreasonableness, there are now only two standards of review: correctness and
reasonableness;
ii.
If
previous jurisprudence has satisfactorily settled on a standard of review in a
particular type of decision, a fresh standard of review analysis is not
necessary;
iii.
Where
the question to be decided is one of fact, discretion or policy, deference will
usually apply automatically which compels the application of the reasonableness
standard as does the review of questions where the legal and factual issues are
intertwined with and cannot be readily separated (see paragraph 53);
iv.
The
reasonableness standard means:
47 Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
[page221] justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
v.
The
correctness standard applies where the reviewing court owes no deference to the
decision-maker who must be right in its determination. Generally, the reviewing
courts owe no deference where questions of law are determinative of the issue
(matters of constitutionally, statutory interpretation, question of
jurisdiction) and matter of procedural fairness.
[37]
Khosa, above, is
important to federal tribunals because of section 18.1(4)(d) of the Federal
Courts Act, R.S. 1985, c.F-7, which provides that the Federal Court of
Appeal or the Federal Court in the exercise of their original judicial review
functions may set aside a decision of a federal tribunal if it “based its
decision on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it”.
[38]
Khosa held that
while this paragraph was not a legislated standard of review it
nevertheless provided “legislated guidance as to the degree of deference owed
to the [federal tribunal’s] findings of fact” (Khosa, para. 4). Later on
in his reasons, Justice Ian Binnie for the majority of his colleagues at para.
46 stated:
More generally, it is clear from s.
18.1(4)(d) that Parliament intended administrative fact finding to
command a high degree of deference. This is quite consistent with Dunsmuir.
It provides legislative precision to the reasonableness standard of review of
factual issues in cases falling under the Federal Courts Act.
[39]
The
jurisprudence indicates that paragraph 18.1(4)(d) finds application
where a tribunal findings of fact are (1) material but not rationally supported
by any evidence (2) where on an assessment of the evidence as a whole a
tribunal’s findings are unreasonable (3) where its conclusion are speculative
or conjectural and (4) where its findings did not have regard to the totality
of the evidence before it or were made by ignoring material evidence.
V. Analysis
A. Preliminary issue
[40]
At
the beginning of the hearing I heard the applicant’s motion to strike out the
affidavit of Dr. Brian Dobie, sworn on November 24, 2009.
[41]
Dr.
Dobie is a physician licensed to practice medicine in Ontario. He has been
a medical officer at Health Canada and at CIC but he was not the Medical
Officer who provided the medical opinion in this case, although he did have
some involvement in the first case which, as mentioned, was settled. Dr.
Lablanc was unavailable to provide an affidavit as she was on sick leave at the
time this judicial review was commenced. On reading Dr. Dobie’s affidavit and
after listening to the submissions of the parties, I indicated I would give
little weight to the affidavit as being of marginal relevance and utility
having regard to the CTR and to the fact his cost information was not based on
Alberta costs where the Parmar family would live but rather on costs in Ontario
and because medical costs are also factored in.
B. Discussion and Conclusions
[42]
Counsel
for the applicant raised a wide-ranging number of issues in seeking to quash
the Visa Officer’s decision. Some of these have been mentioned at paragraphs 2
and 5 of these reasons. He raises subsidiary grounds such as (1) the Visa
Officer substituting his views on matters which had to be decided by the
Medical Officer; (2) the mixing into social services what are properly defined
as health services. It will not be necessary for me to deal with all of the
submissions put forward by counsel for the applicant except for two grounds
which are determinative: (1) a breach of procedural fairness in failing to
provide adequate reasons and (2) unreasonable findings of fact in terms of
ability and willingness of the applicant to mitigate excessive demand. In my
view those findings are contrary to the evidence or were made on the basis of
no evidence.
[43]
As
an aside, counsel for the applicant also appeared as counsel for Mr. Sapru, the
applicant in the recent decision my colleague Justice Mosley in Sapru v.
Canada (Minister of Citizenship and Immigration), 2010 FC 240 [Sapru]
(heard on February 18, 2010 and decided on March 2, 2010). A review of Justice
Mosley’s decision, in which he dismissed the judicial review application on a
medical inadmissibility case involving a dependant child with development
delay, shows Mr. Cecil Rotenberg made the same arguments in Sapru as he
did in front of me.
A. Lack of adequate reasons
[44]
In
recent decisions, the springboard of which is its decision in Baker v.
Canada, [1999] 2 S.C.R. 825 [Baker], the Supreme Court of Canada has been
emphasizing the need to issue reasons which are sufficient. See Baker,
at paras. 35 to 44. Baker was a case where an immigration officer
dismissed an application by Mrs. Baker to remain in Canada on
humanitarian and compassionate grounds. The Court held that written reasons
were necessary in that case because of the importance significance of the
decision on the individual with Justice Claire L’Heureux-Dubé writing for the
Court at paragraph 43 that “it would be unfair for a person subject to a
decision such as this one which is so critical to their future not to be told
why the result was reached”.
[45]
Recently
in R v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, [R.E.M.] the
Chief Justice held that a trial judge’s reasons serve three main functions in
criminal law: (1) to explain the decision to the parties; (2) to provide public
accountability and (3) to permit effective review which is to ensure that read
in context of the record as a whole, the trial judge’s reasons demonstrate that
he or she was alive to and resolved the central issues before the Court.
[46]
The
test for sufficiency of reasons at paragraph 15 of R.E.M. is whether the
reasons fulfill the three functions identified.
[47]
R.E.M.
was
a criminal case. I see no reason why it should not be applied to an
administrative law context since the Supreme Court of Canada advocated a
functional approach first endorsed in Baker.
[48]
I
have no hesitation in finding the reasons of the Medical Officer to be far from
adequate. The Fairness Letter was based on her medical notification. That
letter invited a response on a number of issues including the social services
required and an individual plan related to ability and willingness to ensure
that no excessive demand will be imposed on Canadian social services.
[49]
The
applicant provided a detailed response on all points except on Inderjot’s
medical diagnosis. The Medical Officer acknowledged receiving and reviewing the
material sent by Mr. Parmar. Without any analysis or comment the Visa Officer
simply indicated that the applicant’s Fairness response did not change her previously
expressed view. The reasons were seriously deficient as they did not fulfill
their functions of explaining why Mr. Parmar’s submissions on the lack of need
for social services were not accepted, providing public accountability and
permitting effective judicial review. On the basis of these inadequate reasons,
this Court simply does not know if the Medical Officer took into consideration
the teachings in Hilewitz particularly on the need for an individualized
assessment for Inderjot.
[50]
In
Sapru, Justice Mosley, at paragraph 38, on similar facts, readily
concluded the Medical Officer’s reasons on the non-medical evidence were
insufficient. He did find, however, the Visa Officer had given detailed reasons
for finding the applicants did not have the ability and intent to mitigate
excessive demand. The question he posed was whether the Visa Officer’s reasons
saved the medical officers reasons. He found they did. On the facts before me I
cannot arrive at the same conclusion because the Visa Officer’s reasons on the
non-medical elements are flawed. This is issue No.2.
B. Issue No. 2
[51]
The
reasons of the Visa Officer for rejecting on the one hand the plan put forward
by Mr. Parmar as not being credible cannot withstand scrutiny; the findings are
not reasonable and are made in violation of the legislative discretion
contained in paragraph 18.1(4) of the Federal Courts Act as per Khosa
for the following reasons.
[52]
First,
there is no evidentiary basis that Inderjot’s mother will not stay at home in Canada to provide
him home care as she has for the last several years. His finding is based on
pure speculation. Contrast this finding with that of Justice Mosley in Sapru
at paragraph 58 where he indicates a similar finding was reasonable because the
person concerned had been continuously employed or self-employed continuously
since 1992.
[53]
Second,
his finding that Inderjot will require specialized medical care is contrary to
the evidence and is not supported by any evidence directly applicable to
Inderjot’s circumstances.
[54]
He
gave no weight to the sworn undertakings by family members. He does not explain
why he did so except in the case of the applicant’s sister who he finds not
qualified without regard to the evidence provided that Inderjot does not need
such care; his needs are that of a six month old infant.
[55]
Third,
the same can be said of the Visa Officer’s assessment of the family’s financial
ability. (1) he finds the two houses in India are in joint
ownership and would be difficult to sell. He omits or neglects to mention that
in most cases, the joint owner is his wife (2) his criticism of banking
arrangements is grounded in speculation. If he had a concern about recent
increases in bank balances he should have asked the applicant rather than
guessing they may be inflated for immigration purposes.
[56]
On
their face these banks balances and GIC investments were confirmed by bank
statements which the Visa Officer did not doubt the veracity. The situation in
this case is a far cry from the situation in Sapru at paragraph 6 (no
declaration of ability and intent submitted; information was deficient in the
plan at paragraph 9; at paragraph 51 no found plan was submitted and what was
indicated lacked of credibility at paragraphs 56 through 59).
[57]
In
closing, I also observe that Justice Mosley in Sapru at paragraph 49
agreed with counsel for the applicant “that it does not appear likely” that all
of the social services identified in that case by the Medical Officer would be
required. He however concluded that some important social services would be
necessary which led him to conclude that the Medical Officer’s overestimation
was not material. Such is not the case here.
[58]
For
these reasons, I conclude this judicial review application is granted.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is allowed, the decision of the Visa Officer is set aside
and the applicant’s application for permanent residence is returned for
determination by a different visa officer whose decision on Inderjot’s medical
inadmissibility shall take into account these reasons and be based on advise
received from a different medical officer.
The
redetermination shall be conducted forthwith pursuant to the following
directives:
(1)
Pursuant
to instructions issued by the new Medical Officer (the M.O), Inderjot shall
undergo a thorough and complete medical examination to determine his current
state of health and whether his health has remained the same or has
deteriorated since the last medical review.
(2)
The
M.O. shall issue a new Medical Notification identifying the anticipated
services (health or social) Inderjot would likely require and whether the
provision of those services would likely cause an excessive demand for health
or social services in the intended province of residence in Canada keeping in
mind that the source of the majority of the funding for services is contributed
by governments.
(3)
A
new Fairness Letter shall be issued by the new Visa Officer to Mr. Parmar who
shall be at liberty to respond to the elements set out in that letter. A plan
to mitigate any excessive demand shall be provided which shall address issues
raised in recent jurisprudence on the enforceability of undertakings to
governments and alternative arrangements such as insurance policies to overcome
enforcement limitations. Any declaration of ability and intent shall contain
updated financial information on the family’s net worth.
(4)
The
M.O. shall examine forthwith Mr. Parmar’s fairness response in compliance with
recent jurisprudence and, in compliance with the requirements of procedural
fairness, shall assess whether and in what means Mr. Parmar’s fairness response
impacted on the information identified in the fairness letter necessarily
provided to him.
(5)
The
Visa Officer shall carry out his duties as required by law.
No certified question proposed.
“François Lemieux”
Email this Content