Canada (Minister of Citizenship and Immigration) v. Hilewitz, 2003 FCA 420

Date: 20031112

Docket: A-560-02

Citation: 2003 FCA 420

CORAM:        LINDEN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Appellant

                                                                           and

                                                             DAVID HILEWITZ

                                                                                                                                        Respondent

                                       Heard at Toronto, Ontario, on September 29, 2003.

                             Judgment delivered at Ottawa, Ontario, on November 12, 2003.

REASONS FOR JUDGMENT BY:                                                                                 EVANS J.A.

CONCURRED IN BY:                                                                                                   LINDEN J.A.

                                                                                                                                    MALONE J.A.

Date: 20031112

Docket: A-560-02

Citation: 2003 FCA 420

CORAM:        LINDEN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Appellant

                                                                           and

                                                             DAVID HILEWITZ

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

EVANS J.A.

A.       INTRODUCTION

[1]                In March 1999, David Hilewitz applied for a visa to enter Canada as a permanent resident in the investor category. A visa officer refused the application because Mr. Hilewitz' younger son, Gavin, who was born with minimal brain damage and is developmentally delayed, was medically inadmissible. Mr. Hilewitz made an application for judicial review and a Judge of the Trial Division set aside the visa officer's decision to refuse to issue a visa: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 3, 2002 FCT 844.

[2]                This is an appeal by the Minister from the Applications Judge's decision. The case raises important issues about inadmissibility on medical grounds under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I. More particularly, the question is whether medical officers must take into account the existence of family support when determining that the admission of a person with a medical disability, "as a result of the nature, severity or probable duration of which", " ... would cause or might reasonably be expected to cause excessive demands on ... social services".

[3]                Counsel for the Minister contends that parents' wealth and willingness to pay for whatever social services their child may need are irrelevant to inadmissibility. The medical officer must form an excessive demands opinion on the basis of the diagnosis of the nature, severity and probable duration of the child's medical condition, the prognosis, and the cost or scarcity of the social services that, as a result of the condition, might reasonably be required.

[4]                Counsel for Mr. Hilewitz, however, argues that the officer's duty is to assess, in its totality, the particular and unique situation of the child and the nature of the demands that that child is reasonably likely to impose on publicly funded services. Consequently, when determining whether the admission of a child will cause excessive demands, a medical officer must consider parental wealth, the existence of user fees for certain social services, and the parents' intention to access only private services. These are factors that, in any given case, may reduce the demands on publicly provided social services below the level that the admission of another child with a similar disability would cause.

[5]                The panel heard this appeal together with two others that raise the same issue, but on different facts. Although decisions in the three cases are being released at the same time, separate reasons have been rendered in each: De Jong v. Canada (Minister of Citizenship and Immigration), 2003 FCA 422, and Pigg v. Canada (Minister of Citizenship and Immigration), 2003 FCA 421.

B.        FACTUAL BACKGROUND

[6]                Mr. Hilewitz is a citizen of South Africa where he has been very successful in business. His assets are valued at about $5 million and his life is insured for $3 million. After interviewing Mr. Hilewitz, the visa officer was satisfied that he qualified for admission to Canada as an investor. However, she also advised him that Gavin might be medically inadmissible and that, if he was, the visa application would be refused.

[7]                Gavin was included in the visa application as an accompanying dependant, together with Mr. Hilewitz' wife and another son. When an accompanying dependant is found to be medically inadmissible, a visa will not be issued to the principal applicant, nor, of course, to any of those included in the application as accompanying dependants: Immigration Act, paragraph 19(2)(d), and paragraph 9(1)(a) of the Immigration Regulations, 1978, SOR/78-172.

[8]                In a medical notification dated December 9, 1999, a medical officer diagnosed Gavin as developmentally delayed, with delayed comprehension, as a result of minimal brain damage from birth. The officer concluded that, although 17 years of age, Gavin was functioning at the level of an eight year old, and would require a variety of social services: special schooling, vocational training, and ongoing training to help him to carry out the activities of daily living and to attain his potential. In addition, his parents would require respite care. These requirements, the medical officer concluded, were far in excess of the social services required by an average Canadian resident of his age. Accordingly, since Gavin's admission to Canada might reasonably be expected to cause excessive demands on social services, he was inadmissible under subparagraph 19(1)(a)(ii) and the Hilewitz family's applications for visas were denied.

[9]                On receipt of the medical officer's opinion, the visa officer sent a letter dated March 22, 2000, advising Mr. Hilewitz of the medical notification, with which a second medical officer had concurred. The visa officer's letter also stated that this opinion led her to conclude that, since the admission of Gavin could reasonably be expected to cause excessive demands on social services, she could refuse the application for permanent residence. However, Mr. Hilewitz was invited to respond to "the description of [Gavin's] medical conditions with new medical evidence of your own", before a final decision was made. This standard communication by visa officers is commonly known as the "fairness letter".

[10]            In his response to the fairness letter Mr. Hilewitz did not dispute the medical officer's assessment of Gavin's mental disability, although he noted that, in some respects, Gavin functioned with a maturity that was well above the level of an eight year old, and enjoyed many leisure and social activities appropriate for his age. Mr. Hilewitz also emphasized that, apart from his developmental delay, Gavin was a healthy and normal young person with a delightful personality.

[11]            Nor did Mr. Hilewitz deny that Gavin would require a range of social services that others would not. However, he stated that this would not impose any demand on publicly provided social services because he was financially able and willing to send Gavin to a private school and, in fact, had already identified a suitable school in Toronto. As for Gavin's need for vocational training, Mr. Hilewitz said that he intended to purchase a business, such as a video game or toy franchise, in which to include Gavin, who showed great interest in and aptitude for operating a computer and accessing the Internet.

[12]            Mr. Hilewitz supported his statements of intention, not only by referring to his wealth, but also by stating that he had never had resort to publicly provided social services for Gavin in South Africa, although they were available. Indeed, he and some other parents had established and funded a private school in Johannesburg devoted to the special educational needs of their developmentally delayed children and others with similar disabilities. Mr. Hilewitz also included with his letter brief reports from a clinical psychologist and a medical doctor who had known Gavin for some years, and extensive material relating both to his school in South Africa and to his educational progress.

[13]            Nonetheless, Mr. Hilewitz' response did not persuade the second medical officer to change his opinion. A third medical officer was shown the file and was also of the opinion that Gavin was medically inadmissible on the ground that his condition would cause excessive demands on social services in Canada. Accordingly, in a letter dated September 15, 2000, the visa officer informed Mr. Hilewitz that, for these reasons, his application for a permanent residence visa was denied. This is the decision under review in this proceeding.

[14]            In the letter conveying her decision, the visa officer also stated that she had considered whether humanitarian or compassionate circumstances existed that would warrant an exemption from the normal requirements of the Act. She concluded that they did not, since Mr. Hilewitz had no relatives in Canada and could continue living in South Africa, as he had all his life. However, having found Mr. Hilewitz to be credible and likely to make a significant economic contribution to Canada, she recommended that a Minister's permit be issued to him so that he could enter and remain on a temporary basis, but without access to the social services available only to permanent residents.

[15]            Affidavits were sworn by the second medical officer and the visa officer for the purpose of the application for judicial review, and they were cross-examined on them. Some of their evidence is considered in my analysis of the issues.

C.        DECISION OF THE TRIAL DIVISION

[16]            On the basis of the facts described above, the Applications Judge reached the following conclusions. First, while parental wealth and willingness to pay is irrelevant to whether a person's admission to Canada is likely to cause excessive demands on health services, the same is not true of social services, which are funded and delivered on a different basis. Provincial variations in the funding and delivery of health services are reduced by the existence of federal standards in the Canada Health Act, R.S.C. 1985, c. C-6. No similar federal standards now exist for social services. Thus, depending on the province, some publicly provided social services are free of charge and some are available on the payment of a means-tested user fee. Some may also be purchased from private providers.

[17]            Consequently, by not taking into consideration Mr. Hilewitz' ability and willingness to pay for whatever social services Gavin may require, the medical officers had failed to discharge their duty to consider Gavin's situation in its uniqueness before concluding that his admission might reasonably be expected to cause excessive demands on social services.

[18]            Second, while it is not the responsibility of visa officers to form an independent view of whether a person is medically inadmissible, they are required to review medical opinions in light of the material before them in order to assure themselves that the opinions are not unreasonable. The Applications Judge concluded that, in the present case, the visa officer had failed to discharge this duty because she had not seen Mr. Hilewitz' response to the fairness letter and, in particular, was not aware of his plans to provide employment for Gavin without resort to public funds.

[19]            On the basis of these conclusions, the Applications Judge set aside the refusal and remitted Mr. Hilewitz' visa application to the Minister to be redetermined according to law by another visa officer. He awarded costs in favour of the applicant on the ordinary scale. The Applications Judge certified the following serious questions of general importance pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27:

Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause excessive demands on social services in Canada and is a determination by medical officers in this regard determinative or is the decision-maker in respect of the applicant's application for permanent residence in Canada required to consider the reasonableness of the medical officers' determination regarding 'excessive demands' in the light of all the relevant material provided to the respondent by the applicant?

D.        THE LEGISLATIVE FRAMEWORK

[20]            It is agreed that, by virtue of section 190 of the Immigration and Refugee Protection Act, the propriety of the visa officer's decision is to be decided on the basis of the Immigration Act, even though it has now been repealed and superceded. The provision of the Immigration Act that is of most immediate relevance to this appeal is as follows:

E.        ISSUES AND ANALYSIS

Some preliminary matters

[21]            It will be helpful at the outset to clarify the nature of the social services on which Gavin's admission is said to be likely to impose excessive demands. When cross-examined on her affidavit, the visa officer agreed that, in refusing the visa application, she had not taken into account the possibility that Gavin's parents would require respite services. In his cross-examination, the medical officer stated that the social service at issue in this case was special education, "in the broadest sense."

[22]            Special education for the developmentally delayed is available to students in the public school system in Ontario where, Mr. Hilewitz stated, he and his family intend to live if they are admitted to Canada. The Province pays approximately $20,000 each year to school boards for every special needs student, whether gifted or developmentally delayed, who has been admitted to one of their schools and is under the age of 22. No financial contribution is made by parents whose children attend a public school as special needs students.

[23]            At the time that the visa was refused, Gavin was eligible for three years of publicly funded special education in Ontario's public school system. Gavin was born in August 1982 and is now 21 years old and is eligible for this form of special education until the end of the 2003-04 school year.

[24]            In addition, the medical notification identified other educational services that Gavin was likely to require in order to assist him to attain his potential for leading an independent life: ongoing training to help him to manage the activities of daily living and vocational training. It is unclear from the information in the record to what extent these programmes are available in Ontario on a full cost-recovery basis from those able to pay.

ISSUE:         Was the visa officer's decision to refuse to issue a visa erroneous in law because it was based on a medical opinion that had not taken into account the likelihood that Mr. Hilewitz would pay for any social services required by Gavin?

(i) Does Deol decide the issue?

[25]            The medical notification did not state whether the officer had taken into account Mr. Hilewitz' ability and willingness to pay for the social services that Gavin would require if admitted to Canada. However, the medical officer who concurred in the opinion after the response to the fairness letter had been received stated in cross-examination that he was unaware of Mr. Hilewitz' financial situation. Apparently, the whole of an immigration file is not always sent by the visa officer to the medical officer. Moreover, the Minister has argued the case on the ground that a visa applicant's financial resources and stated intentions regarding payment and place of residence in Canada are irrelevant to an excessive demands opinion for both health and social services.

[26]            I am prepared to infer from these facts that, in forming his excessive demands opinion, the medical officer did not take into account Mr. Hilewitz' financial means, nor his stated intention not to access publicly provided social services for Gavin.

[27]            In my opinion, the Applications Judge was correct to distinguish Deol v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 301, 2002 FCA 271, and to conclude that it does not determine the outcome of the present proceeding. In Deol, this Court held that, because permanent residents in Canada have universal access to publicly funded medical services, and most medical services cannot be purchased privately in Canada, a visa applicant's stated intention to pay for publicly funded health services is irrelevant to determining whether that person's admission to Canada is likely to cause excessive demands on health services.

[28]            Since Deol clearly concerned excessive demands on health services, the Court's reasons should be understood as limited to health services. Moreover, the rationale of Deol does not readily fit services for which there is a private market or where access to publicly provided services is subject to a required financial contribution or indemnity from those able to pay. As the author of the Court's opinion in Deol, I can say that, when I cited with approval social service cases indicating the irrelevance of wealth to determining the likelihood of excessive demands, I did not intend thereby to equate medical and social services. The potential significance of differences between health and social services in this regard was simply not raised on the facts of Deol.

[29]            However, in one important respect the reasoning in Deol is relevant to social services. It identifies the underlying policies of subparagraph 19(1)(a)(ii) that apply equally to both health and social services: to protect public funds from excessively costly demands and, when particular services are in short supply, to ensure that Canadian residents' access to them is not denied or unduly delayed. As Rothstein J.A. said in Thangarajan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 167 at para. 9 (C.A.), the context of subparagraph 19(1)(a)(ii) is that "[h]ealth and social services are not unlimited and not costless."

[30]            Consequently, since "excessive demands" for the purpose of subparagraph 19(1)(a)(ii) may be determined by either the cost of the services required or by their scarcity, medical officers do not necessarily have to assess whether demand for the services needed by the person with the disability exceeds their supply in the visa applicant's intended place of residence. It is sufficient to show that the cost of the health or social services in question is likely to exceed by a significant amount the average cost of the services required by a Canadian resident in the relevant age bracket.

[31]            This issue is now expressly addressed by subsection 1(1) of the Immigration and Refugee Protection Regulations, which provides that "excessive demand" may result from either the anticipated cost of the health or social services required, or the existence of waiting lists and the possibility that Canadian residents' access to them may be detrimentally delayed.

[32]            Nonetheless, to say that the decision in Deol should be understood as applying only to health services does not in itself answer the question of whether a visa applicant's ability and willingness to pay for social services are irrelevant to an excessive demands opinion, despite differences in the delivery and funding of social and health services, and access to them.

(ii) Subparagraph 19(1)(a)(ii)

[33]            The language of subparagraph 19(1)(a)(ii) is the starting point for the analysis. As relevant to this case, the subparagraph provides that a person is inadmissible who is suffering from a disability which, as a result of its nature, severity or probable duration, would in the opinion of a medical officer "cause or might reasonably be expected to cause excessive demands on social services" if the individual was admitted to Canada.

[34]            At first blush, the subparagraph appears to require an individualized assessment of whether, in all the circumstances, the admission of the person in question might reasonably be expected to cause excessive demands. It might seem that words would have to be implied into subparagraph 19(1)(a)(ii) in order to exclude factors, such as parental finances and intention to pay for private social services, that are logically relevant to determining whether the admission of a person might reasonably be expected to cause excessive demands. As Reed J. remarked, with characteristic incisiveness, in Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62 at para. 32:

There does seem to be an incongruity between admitting someone as a permanent resident because he has significant financial resources but refusing to take into account those same resources when assessing the admissibility of a dependent. This is particularly true if Canadian residents themselves must pay for the social services if they can afford to do so.    

[35]            On the other hand, the structure of subparagraph 19(1)(a)(ii) may suggest that Parliament contemplated a narrower inquiry than that posited above, in the sense that it expressly requires the medical officer to consider only the specifics of the individual's medical condition, and the cost and scarcity of the services thereby likely to be needed. Thus, paragraph (a) provides that the excessive demands on health and social services to be considered are those that are "a result of the nature, severity or probable duration of" the disability. This would seem to limit the factors about the individual on which the medical officer is to base an excessive demands opinion to the diagnoses and prognoses of the medical condition, and the health and social services that are thereby likely to be required, but not such non-medical considerations as an ability and willingness to pay for needed services.

[36]            In addition, the fact that Parliament has entrusted responsibility for forming an excessive demands opinion to medical officers may also suggest that they were not intended to have to take into account non-medical factors peculiar to the individual that are not within their medical expertise.

(iii) The jurisprudence

[37]            No decision from the Federal Court of Appeal bears directly on the issue in dispute in this appeal: as explained above, Deol deals only with health services. However, in an earlier case of the same name, Deol v. Canada (Minister of Citizenship and Immigration) (1992), 18 Imm. L.R. (2d) 1 at 5 (F.C.A.), the Court emphasized that an opinion under subparagraph 19(1)(a)(ii) must be based on an individualized assessment of the medical condition of the particular person and whether, in light of that assessment, the level and kind of services likely to be required constitute excessive demands. As MacGuigan J.A said:

Mental retardation is a condition covering a wide range of possibilities from total inability to function to near normality. The concept cannot be used as a stereotype, because it is far from a univocal notion. It is not the fact alone of retardation that is relevant, but the degree and probable consequences of that degree of retardation for excessive demands on government services. [Emphasis added.]

This very much remains an accurate statement of the law.

[38]            However, there is ample, although not entirely consistent, jurisprudence from the Federal Court that parental financial resources and family support must also be considered by an officer when determining whether a person's admission might reasonably be expected to cause excessive demands on social services. I now turn to that case law.

(a) cases upholding the relevance of the ability and willingness to provide support

[39]            Poste v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 126, is the case most frequently cited as authority for the proposition that subparagraph 19(1)(a)(ii) mandates a broadly based inquiry into whether the admission of a particular person might reasonably be expected to cause excessive demands on social services. Thus, Cullen J. said (at para. 55):

The medical officers have a duty to assess the circumstances of each individual that comes before them in their uniqueness. The medical officers now have the statutory duty to give an opinion as to demands that would likely be placed on social services.

[40]            Cullen J. concluded (at para. 54) that the medical officers had failed to consider the social services likely to be required by Matthew, the accompanying dependent child in that case, and "only considered the demands placed on social services by the mentally disabled in general." The material on which Cullen J. principally relied to impugn both the medical opinion, and the visa officer's failure to conclude that it was unreasonable, concerned medical and psychological reports about Matthew's abilities and potential and, hence, the likely extent of his need for social services.

[41]            To this extent, Poste does not require medical officers, when forming an excessive demands opinion, to take into account considerations other than those based on a diagnosis of the extent of the disability and a prognosis of a child's future development as the bases for deciding what services the child would likely require and whether that would amount to excessive demand.

[42]            However, Cullen J. (at paras. 41, 43, 54 and 63) also regarded as relevant to the excessive demands assessment the fact that Matthew was in receipt of an Australian disability pension, which was payable for life, regardless of his place of residence. In addition, Cullen J. mentioned the supportive nature of Matthew's family (at paras. 54 and 63) as a factor that the medical opinion should have taken into account. Referring to the finding of excessive demands on social services, he said (at para. 55):

It is insufficient for a medical officer to give an opinion on such demands in general; the opinion must be founded firmly on the individual's personal circumstances and all the circumstances of the case. These would include the degree of family support and commitment to the individual, and the particular resources of the community. [Emphasis added.]

[43]            On its facts, Poste may not be particularly persuasive authority for the proposition that the medical officers erred in the present case by failing to consider Mr. Hilewitz' financial means and his willingness to secure whatever educational services Gavin may need without resorting to those provided at public expense. Cullen J. seems to have based his decision primarily on the medical officer's failure to consider, as a whole, the various diagnostic and prognostic opinions expressed by doctors and psychologists. The officer's failure to consider Matthew's pension and the availability of family support appeared to be secondary considerations.

[44]            Nonetheless, Poste also clearly says that, when making an excessive demands determination, medical officers must take into account personal non-medical factors, such as family support and financial resources, that may reduce an individual's probable demands on publicly provided social services. Poste is neither the only nor the earliest authority for the proposition that a medical opinion concerning the likelihood that admission will cause excessive demands must take into account the availability of family support for the individual concerned.

[45]            For example, in Litt v. Canada (Minister of Citizenship and Immigration) (1995), 93 F.T.R. 305, it was argued that the medical officer had erred in concluding that, despite a family's best intentions, their support for a relative with a medical condition might fail, thus causing excessive demands on health or social services. In accepting this argument, Rothstein J. (as he then was) said (at para. 4):

I do not question that the decision-making process should properly include the issue of family support and that it would be open to the appropriate decision-maker, for valid reasons, to discount or reject commitments of support by family members.

See also Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 at para. 50 (T.D.), where Heald D.J. set aside a visa refusal because the medical officer had concluded that a dependent child would require a social service in the form of constant supervision, even though there was no evidence of the family's inability to care for her at home.

[46]            Cases decided after 1997 have taken a similarly broad view of the scope of the medical officer's inquiries. Thus, for example, in Wong v. Canada (Minister of Citizenship and Immigration) (2002), 220 F.T.R. 137, 2002 FCT 625, McKeown J. regarded Poste as establishing the correct legal approach to be taken by medical officers when forming an opinion on whether the admission of a dependent child might reasonably be expected to cause excessive demands on social services.

[47]            In particular, McKeown J. held that the officers were obliged to consider the following: family support, which he found that they had considered but had concluded that it did not obviate the need for social services outside the home; the financial resources of the visa applicant; the availability of the particular social services required for the child where the applicant intended to live; and whether the relevant services would be provided free of charge or were in short supply. Because the officer had considered only the first of these factors, the decision to refuse a visa was set aside.

[48]            To similar effect, see also Lau v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 116, and, very recently, Karmali v. Canada (Minister of Citizenship and Immigration), 2003 FCT 358.

(b) cases denying the relevance of the ability and willingness to provide support

[49]            Relying on Choi v. Canada (Minster of Citizenship and Immigration) (1995), 98 F.T.R. 308, Pelletier J. (as he then was) stated in Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56 at para. 18, that the ability of a person to pay for "medical and social services is irrelevant as it is unenforceable against that person or the family member." Pelletier J. adopted the reasoning in Choi as his own, adding (at para. 19):

... I would have come to the same conclusion. Access to health and social services in Canada is a matter of right for citizens and permanent residents. Once Tat Chi became a permanent resident, he would be entitled to claim access to such publicly-funded services as he required and any agreement to the contrary would be unenforceable against him.

[50]            However, while both Choi and Poon, like the case before us, concerned findings of excessive demands on social services, the Court in neither case referred to the fact that, unlike most medical services, some publicly provided social services may not be provided free of charge to a user with the financial means to pay, and that others, including special education, may be purchased privately. Whether a person may validly contract out of any or all publicly provided social services, I do not know.

[51]            Pelletier J. had set aside the refusal of the visa on the ground that the officer had erred by considering only the cost of the social services required, and not their available supply. When the visa application was remitted for redetermination, it was again refused and the applicant made another successful application for judicial review: Poon v. Canada (Minister of Citizenship and Immigration), 2003 FCT 595.

[52]            The Applications Judge on the second application for judicial review, MacKay J., took a different view from Pelletier J. of the relevance of parental ability and willingness to pay for social services. He held (at para. 10) that the medical officer's excessive demands opinion was defective:

There is no question of the applicant's ability, willingness and undertaking, with his family, to ensure that Tat Chi would not be a burden on publicly supplied services. The last may be a factor of significance if there would be entitlement to publicly supplied services, but there is no evidence of any social services that would be required by Tat Chi to which he would be entitled at public expense, without reimbursement of costs by his family. Private resources to acquire necessary social services, or to reimburse those provided at public expense, would appear to be a relevant factor in this case. [Emphasis added.]

[53]            It had also been held in two other pre-Poon cases that, when determining whether admission would cause excessive demands on social services, medical officers do not have to take into account expressions of family support, or an undertaking to set aside money to cover the costs of the care of a child with a disability: Hussain v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R (2d) 86 at 91 (F.C.T.D.); Cabaldon v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296 at para. 8.

(c) summary

[54]            The preponderance of authority in the Federal Court favours the proposition that the availability of family support must be considered in an excessive demands opinion when the officer is determining the range and extent of the social services likely to be required by a dependent child. These cases go further than saying that family support is relevant merely to the prognosis of the child's progress.

[55]            If family support were relevant to an excessive demands opinion, a visa applicant's financial resources and stated intention to use only private social services must also be considered before a visa is refused under subparagraph 19(1)(a)(ii). Both considerations require an assessment of the present and future ability and willingness of parents, or other family members, themselves to provide or to pay for the necessary services, and thus to eliminate any costs to the public.         

[56]            Nonetheless, and with the greatest respect to the Judges of the Federal Court, including the Applications Judge in this case, who have expressed a different view, I have concluded that a medical officer is not legally obliged to take into account a visa applicant's ability and willingness to pay for social services that a dependent family member might reasonably be expected to require if admitted to Canada. My reasons for this conclusion follow.

(iv) Focussing the issue

(a) the competing policies

[57]            Subparagraph 19(1)(a)(ii) must be interpreted and applied in a manner that best balances immigration policy objectives. On the one hand, the admission of investors is beneficial to Canada because of their anticipated contributions to the economy. On the other hand, individuals who are otherwise qualified for admission as permanent residents are to be excluded if their admission is likely to carry a significant price tag: in our case, excessive demands on social services as a result of the medical disability of an accompanying child.

[58]            The interpretation of subparagraph 19(1)(a)(ii) is relevant to how this balance is struck.    Requiring medical officers to factor family support into an excessive demands opinion, which may reduce, or obviate entirely, the need to resort to expensive or scarce publicly funded services, exposes Canada to the risk that that support may cease to be forthcoming, or to be wanted. In these circumstances, the person with the medical condition will likely resort to social services that are paid for from the public purse.

[59]            In contrast, the Minister's view is risk averse because it eliminates potential family support, including an ability and willingness to pay for social services, from the assessment of the extent to which a person is likely to require social services.

(b) relevant considerations

[60]            The Court may only set aside the refusal of a visa on the ground of the failure to consider the ability and willingness of Mr. Hilewitz to provide for Gavin's needs, if it is satisfied that, when determining whether the nature of Gavin's disability might reasonably be expected to cause excessive demands on social services, the medical officer was impliedly required by the Act to take into account Gavin's parents' ability and willingness to provide for his needs from their own resources.

[61]            Whether subparagraph 19(1)(a)(ii) impliedly requires family support to be considered by a medical officer when forming an excessive demands opinion is a question of statutory interpretation, to be decided by assessing its importance in achieving the objectives of the statutory scheme.

(c) standard of review

[62]            None of the cases to which the panel was referred discusses the standard of review to be applied by the Court to a medical officer's decision not to take family support into account when forming an excessive demands opinion. Rather, they proceed on the assumption that it is the Court's function to decide whether parental wealth must be taken into account when the medical officer is deciding whether admission is likely to cause excessive demands on social services. Thus, for all intents and purposes, the Court has applied the standard of correctness to the position of medical officers, and of Immigration Canada, that parental support need not be considered as part of an excessive demands opinion.

[63]            The standard of review issue was raised tangentially by counsel for the Minister, who submitted that a medical officer's opinion on excessive demands is reviewable for unreasonableness, but that a court could intervene if the opinion was based on extraneous considerations or, presumably, had not taken into account considerations that the legislation obliged the officer to consider.

[64]            Counsel thus seems to have conceded that the determination of the factors that the medical officer must take into account in forming an excessive demands opinion is subject to review on a standard of correctness. In these circumstances, and since nothing turns on it, I shall assume for the purpose of this appeal that correctness is the appropriate standard of review.

(d) standard and burden of proof

[65]            Visa applicants have the burden of proving that they meet the statutory criteria for the issue of a visa in the immigration category for which they have applied. However, when a medical officer's excessive demands opinion is challenged, the officer must provide an evidentiary foundation for it:Rabang v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 314. If the medical opinion is founded on evidence, the findings of fact on which the opinion is based, and the medical officer's application of the statutory provision to the facts, are entitled to considerable deference.

[66]            As for the standard of proof, subparagraph 19(1)(a)(ii) identifies two alternative bases on which a medical officer may rely: that admission "would cause or might reasonably be expected to cause" excessive demands on health or social services. The words, "would cause", connote proof on a balance of probabilities. The phrase, "might reasonably be expected to cause", connotes a somewhat lower standard and is satisfied if a reasonable person might think that admission would cause excessive demands. Nonetheless, a reasonable person might not expect something to happen merely because there is a possibility that it could: see Badwal v. Canada (Minister of Citizenship and Immigration) (1989), 64 D.L.R. (4^th) 561 at 564 (F.C.A.).

[67]            However, the issue in our case is not so much the standard of proof, but rather the information that a medical officer must consider when forming an opinion on whether excessive demands might reasonably be expected to be caused by a person's admission.

(v) Conclusions

[68]            As I have already indicated, despite the weight of Federal Court authority to the contrary, the availability of parental resources to pay for social services is not a factor that a medical officer must consider in assessing the likelihood that a person's admission to Canada might reasonably be expected to cause excessive demands on social services, even though they may be available on a full or partial cost recovery basis, or may be purchased or provided privately. My reasons are as follows.

(a) the legislative text

[69]            The text of subparagraph 19(1)(a)(ii) identifies factors that the medical officer must take into account when forming an excessive demands opinion, namely, the nature, severity or probable duration of the person's medical condition. In my opinion, the Court should only imply additional factors in order to ensure the efficacy of the statutory scheme.

[70]            Thus, in 2003 SCC 29">Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29 at para. 176, Binnie J. implied a requirement that persons were "qualified" to be appointed by the Minister to chair a compulsory arbitration board only if they were experienced in labour relations and were broadly acceptable in the labour relations community, because these characteristics "went straight to the heart of the ... legislative scheme." For the reasons that follow, the same cannot be said of a visa applicant's financial resources to the determination of medical inadmissibility because of likely excessive demands on social services, especially when Parliament has explicitly identified other factors that must be considered.

[71]            That Parliament did not intend subparagraph 19(1)(a)(ii) to oblige medical officers to consider ability and willingness to pay is further supported by the fact that the regulations dealing with excessive demands have never included any reference to family support or financial resources. Thus, section 22 of the Immigration Regulations, 1978, SOR/78-172, listed the factors that a medical officer must consider in respect of the nature, severity or probable duration of a medical condition. These included not only diagnostic and prognostic reports, but also the supply and availability of the health or social services that the person may consequently require. However, they did not include such personal, non-medical factors as the availability of family support that might reasonably be expected to reduce the need to access publicly funded social services.

[72]            Section 22 has been held to be invalid as applied to excessive demands opinions not based on public health concerns (see, for example, Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139) and is, in any event, now repealed.

[73]            Section 22 has been replaced by section 34 of the Immigration and Refugee Protection Regulations, SOR/2002-227, issued under the Immigration and Refugee Protection Act. Section 34 provides that, before concluding an excessive demand opinion, the medical officer shall consider reports on the person concerned by a health practitioner or a medical laboratory, and any condition identified by the medical examination. These new regulations thus do not provide that non-medical factors must be considered in relation to the individual.

(b) practicality

[74]            Legislation creating a public programme is presumptively to be interpreted in a manner that facilitates the effective and efficient administration of the statutory scheme. Thus, in the absence of clear indications to the contrary, unduly burdensome duties should not be imposed on officials by implication. It would impose a heavy burden on a medical officer, before concluding an excessive demands opinion, to have to conduct the kind of inquiry that would be needed if a family's resources and willingness to pay for social services had to be considered. Moreover, it is not a task for which a medical qualification is particularly relevant. In addition, if the task were to be performed properly, it would require a more elaborate decision-making procedure than that envisaged by the Act.

[75]            For example, in order to form an evidence-based opinion that Gavin's admission would likely cause excessive demands, the medical officer would have to inquire whether the private school to which Mr. Hilewitz stated that he intended to send Gavin would accept him and that it was a viable institution. The medical officer might also have to consider the extent to which Mr. Hilewitz' plan to purchase a business in which Gavin would be included was likely to obviate the need for vocational training, and whether Gavin's parents' intention to continue to care for him and to provide accommodation for him at home means that he would not require the ongoing life skills programmes that are publicly provided in Ontario.

[76]            In the event that Gavin was likely to have resort to publicly provided social services, it would be necessary to determine if they were available either on a free or a user-pay basis and, if the latter, whether any financial contribution required of Mr. Hilewitz would represent a complete or only a partial recovery of their cost. And, even if the service were provided on a full recovery basis from those able to pay, the medical officer would have to determine if Gavin's use of the service would delay others' access to it because demand exceeds supply.

[77]            Quite apart from the credibility of an applicant, ascertaining answers to any of these kinds of question in any given situation could prove very difficult, especially since the inquiry would have to be specific to the province or, possibly, the city of intended residence. These inquiries are very far removed from those now typically conducted by medical officers: an assessment of the diagnostic and prognostic reports of the person's medical condition supplied by doctors and psychologists, the identification of the health and social services that that person is likely to require given the nature, severity or probable duration of the person's medical condition, and a determination of whether this will likely cause excessive demand as a result of either the cost or scarcity of the services required.

[78]            Moreover, in terms of the objectives sought to be achieved by assessing whether a person's admission is likely to cause excessive demands, the benefits to be obtained from these more extensive inquiries may be minimal. Thus, for example, once admitted to Canada visa applicants and their families may relocate to a place where publicly funded social services are available without cost recovery or where a smaller contribution is required, or where the services required are not available privately.

[79]            Finally, there is also a speculative aspect about predicting the life choices that a person with a disability may make, even if the officer's inquiry is limited to the next five or, possibly, ten years. For instance, Gavin may decide in the next few years to try to make as independent a life for himself as he can by living outside his parents' home and beyond their immediate influence. This might well require him to use publicly provided life skills programmes and vocational training. Financial misfortune or some other unforeseen change of circumstance may also prevent the family from providing the material support for which they had planned.

[80]            In short, I would require a much firmer basis than this statutory scheme provides before interpreting the Act as impliedly requiring medical officers to undertake the broad-ranging, difficult and inherently speculative inquiries of the kind that I have described, for which neither the decision-making procedures, nor the decision-makers' professional qualifications, are particularly apt.

[81]            On the other hand, if medical officers' attention is more narrowly focussed on the medical and other reports on the nature, severity or probable duration of an applicant's medical condition, and the cost and scarcity of the services that are consequently likely to be needed, it may not be unreasonable to require that they disclose more fully than sometimes they now do the bases of an excessive demand opinion.

(c) rights and interests affected

[82]            Mr. Hilewitz and his family are, no doubt, very disappointed to have been refused visas, especially after the efforts that they have made and the expenses that they have incurred in pursuing their application. However, denying a visa application does not deprive a person of a legal right, let alone a constitutional right. The Hilewitz family has no connections with Canada and is not the subject of persecution in South Africa. They are free to make other visa applications for permanent residence in Canada and elsewhere.

[83]            On the other hand, I also recognize that to interpret subparagraph 19(1)(a)(ii) as mandating only a relatively narrow inquiry by the medical officer may be thought to give too little weight to the objective of facilitating the admission of those who meet the qualifications for entry in a particular immigration category, and too much weight to the protection of the public resources devoted to health and social services. It could be said that Canada's ability to use immigration policy to attract capital and entrepreneurial talents may be unduly hampered by the exclusion of a person who is expected to make significant contributions to the Canadian economy, if medical officers are not required to conduct a full assessment, based on all available information, of the public costs likely to be caused by the admission of a person with a disability.

[84]            However, the interpretation of subparagraph 19(1)(a)(ii) must be seen in its statutory context. As happened in this case, a visa officer may recommend that, despite a finding of inadmissibility, a Minister's permit should be issued under subsection 37(1) of the Immigration Act to an applicant and accompanying dependants. The permit may be for up to three years and is renewable at the discretion of the Minister. After being in Canada for five years, a permit holder may be granted permanent residence status, despite being inadmissible: subsection 38(1).

[85]            These discretionary permits are now called "temporary residence permits": subsection 24(1) of the Immigration and Refugee Protection Act. Under this Act, a temporary permit holder who is inadmissible on health grounds may be issued a permanent residence permit after only three years' residence in Canada: Regulations, subparagraph 65(b)(i).

[86]            A temporary permit does not give a potential investor the same degree of long term certainty as a permanent residence permit. In effect, a temporary permit functions as a probationary admission, and enables Immigration Canada to reassess the situation in light of the facts three years later. If the future unfolds as the visa applicant predicted, then she or he presumably has a good chance of being granted permanent residence status. These discretionary permits thus mitigate, on a case by case basis, any undue restrictiveness of the medical inadmissibility provisions. Perhaps, as the visa officer recommended, it would be appropriate for the Minister to grant the Hilewitz family temporary residence permits.

[87]            Parliament has the responsibility for determining how risk averse Canada's immigration policy should be. It, not the Court, must balance the benefits of issuing a visa to a person likely to make a significant contribution to the economy, including the generation of more tax revenue, against the risk that admission will cause excessive demands on social services as a result of an applicant's medical condition. An interpretation of subparagraph 19(1)(a)(ii) that results in minimal exposure to excessive demands is well within the range of plausible policy choices, especially since the statutory scheme is tempered by the temporary residence permit alternative.

[88]            In difficult cases, such as this, a court's answer to a question of statutory interpretation can rarely meet every argument for adopting a different solution. However, the judicial task is not the illusory search for perfection. Although the fit between an interpretive problem and the judicial solution may not be exact, the court's interpretation may still be the best one available to it.

(vi) Other issues

[89]            Counsel for Mr. Hilewitz also argued that the Applications Judge had erred when he held that the visa officer could not discharge her duty to ensure that, on the basis of the material before the medical officer, his opinion was not unreasonable. The visa officer had not seen Mr. Hilewitz' reply to the fairness letter, which she had simply forwarded to the medical officer. This was the letter in which Mr. Hilewitz stated that he intended to purchase a business that could include Gavin, which would avoid the need for him to receive social services in the form of vocational training.

[90]            However, since I have concluded that parental provision is not a factor that a medical officer must consider, the fact that the visa officer was unaware of Mr. Hilewitz' plan to purchase a business in which Gavin could be included was immaterial to her ability to review the medical officer's opinion for obvious error.

[91]            Counsel for the Minister also submitted that the Applications Judge was wrong to require the medical officer to determine excessive demands by reference to the location where Mr. Hilewitz intended to reside. She argued that this was an exercise in futility because, if admitted, Mr. Hilewitz might live anywhere in Canada that he chose.

[92]            On the basis of the cases to which he referred, the Applications Judge deduced "from Ismaili [v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R 139], the importance of considering the social services available in the particular region of Canada where an applicant wishes to settle" (at para. 15). He stated later in his reasons (at para. 25) that he had based his decision in part on the points that he had drawn from his review of the jurisprudence.

[93]            However, since a medical officer is not obliged to take into account a visa applicant's ability and willingness to pay for any needed social services, or to obtain them privately, it will not normally be material to consider the scarcity of social services, or the basis on which they are funded, in the part of Canada where the applicant intends to live.

[94]            However, if, hypothetically, an excessive demands opinion were based solely on the existence of a waiting list for a particular social service and delaying others' access to the service, rather than on its high cost, a medical officer would have to provide evidence, if challenged, that there was a shortage of the service where the applicant was likely to live, which might not necessarily be limited to where the applicant says that the family intends to reside if admitted to Canada.

[95]          Finally, I should note that this decision does not deal with some important aspects of excessive demands opinions. For instance, apart from deciding that the availability of family support does not have to be considered, the decision does not speak to medical officers' costing of the social services that, on the basis of the diagnostic and prognostic reports, an applicant is found likely to require. Nor does it decide whether, if challenged, medical officers must provide evidence that the publicly funded social services that a person with a disability is likely to require are in fact offered at a location in Canada that is reasonably accessible from where a visa applicant states that she or he intends to reside.

F.        CONCLUSIONS

[96]            The Applications Judge certified the following question:

Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause excessive demands on social services in Canada and is a determination by medical officers in this regard determinative or is the decision-maker in respect of the applicant's application for permanent residence in Canada required to consider the reasonableness of the medical officers' determination regarding 'excessive demands' in the light of all the relevant material provided to the respondent by the applicant?

[97]            I would answer the question as follows. An applicant's wealth is not a consideration that a medical officer is legally required to consider when determining whether a person's admission to Canada would cause or might reasonably be expected to cause excessive demands on social services in Canada.

[98]            For these reasons, I would allow the appeal without costs, reverse the decision of the Applications Judge, dismiss the application for judicial review, and restore the decision of the visa officer refusing Mr. Hilewitz' application for a visa.

                                                                                   "John M. Evans"              

                                                                                                      J.A.                       

"I agree

   A.M. Linden J.A."

"I agree

   B. Malone J.A."

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                           A-560-02

STYLE OF CAUSE:                           MCI v. DAVID HILEWITZ

DATE OF HEARING:                        September 29, 2003.

PLACE OF HEARING:                      Toronto, Ontario.

REASONS FOR JUDGMENT BY:    Evans J.A.

CONCURRED IN BY:                         Linden and Malone JJ.A.

DATE:                                      November 12, 2003

APPEARANCES BY:

Ms. Amina Riaz

Ms. Neeta Logsetty                  For the Appellant

Mr. Cecil Rotenberg

Ms. Inna Kogan                                    For the Respondent

SOLICITORS OF RECORD:

Ms. Amina Riaz

Ms. Neeta Logsetty                  

Department of Justice

Toronto, Ontario                                   For the Appellant

Mr. Cecil Rotenberg

Ms. Inna Kogan

Toronto, Ontario.                                  For the Respondent