Date: 20040302
Docket: IMM-2649-02
Citation: 2004 FC 305
Ottawa, Ontario, this 2nd day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
JUDE ALIBEY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision ("Decision") of a Visa Officer ("Visa Officer"), dated April 12, 2002, dismissing the application of Jude Alibey ("Applicant") for permanent residence.
BACKGROUND
[2] The Applicant's wife, Hazel Winston ("Ms. Winston"), is a quadriplegic as a result of a tragic car accident that occurred on February 6, 2000. Her condition is not expected to improve. Dr. Theriault prepared a Medical Notification (page 30 of the Certified Medical Tribunal Record ("CMTR")) in which he described the health impairments of Ms. Winston. Dr. Theriault expressed the opinion that her admission to Canada would place an excessive demand on Canadian health and social services.
[3] Dr. Cooper reviewed Ms. Winston's file and concurred with Dr. Theriault's assessment that Ms. Winston would place an excessive demand on Canada's health and social services. Dr. Cooper provided a second signature to the Medical Notification.
[4] Dr. Cooper's view was based on Ms. Winston's current and anticipated life-long total dependency on others for personal care and for all instrumental activities of daily living. Dr. Cooper considered that the level of care would have to be provided by caregivers or personal attendants 24 hours per day, seven days a week, either at home or in a long-term care facility. In addition, given the severe degree of Ms. Winston's impairment, she requires physical therapy on an on-going, regular basis to prevent the development of joint contractures. Furthermore, Ms. Winston would require adapted transportation to move between her home and outside locations.
[5] Ms. Winston was given an overall medical assessment of M7, which indicates that she has a condition that would cause excessive demand on health or social services, and which is not likely to respond to treatment. An M7 assessment can result in inadmissibility under subsection 19(1)(a)(ii) of the Immigration Act. Upon further review, Dr. Cooper discovered that she had made an error in not noting and correcting Dr. Theriault's proposed assessment of D4/5 in the D category (Anticipated Excessive Demand on Health or Social Services). Dr. Cooper felt that Ms. Winston would be more accurately classified as D2/6 or D3/6 because D2 indicates that the "person requires or may well require regular medical care" and D3 indicates that the person "requires or is expected to require at least one major episode of hospitalization within five years." An assessment of D6 indicates that the person "requires or probably will require family or special home care and/or supervision indefinitely."
[6] Dr. Cooper was advised by counsel for the Respondent that, on September 28, 2001, a Designated Immigration Officer advised the Applicant that Ms. Winston may be medically inadmissible to Canada under the Immigration Act. The Applicant was given an opportunity to respond to the description of his spouse's medical condition and to provide any new medical evidence. In response to this letter of September 28, 2001, the Applicant submitted additional material.
[7] Dr. Cooper reviewed all of the new material submitted by the Applicant. She decided there was nothing in the material to cause her to change her opinion. Only two letters were from a medical doctor. These letters confirmed the view that Ms. Winston suffered from quadriplegia and had no likelihood of further improvement and that she required long-term medical attention. None of the additional material altered Dr. Cooper's assessment.
[8] Dr. Cooper considered information from The Spinal Cord Injury Information Network that the average annual cost of care for a person with "low tetraplegia" (an injury comparable to Ms. Winston's injury) is US $41,983. Dr. Cooper also considered that Ms. Winston would also be eligible for admittance into a long-term care facility for nursing care, which would cost $36,000 a year in Ontario, of which $20,000 would be paid for by the provincial government.
[9] Dr. Cooper considered the specific circumstances of Ms. Winston and her supportive family environment. She also considered the reality that, even if Ms. Winston's family chose to care for her at home, they would not likely be able to do so 24 hours a day. Ms. Winston would likely qualify for the maximum level of personal care assistance in Ontario. Dr. Cooper considered that the cost of such care would amount to approximately $24,000 a year in Ottawa or at least $5,000 a year in Toronto.
[10] Dr. Cooper considered that Ms. Winston would also be eligible for ongoing physiotherapy and advanced medical devices such as dynamic positioning devices and motorized wheelchairs, which would be provided for her under programmes that are, in part, publically funded.
[11] The additional materials submitted by the Applicant also included information on adaptive transportation services, such as the Wheel Trans Service, and described assessment for eligibility and appeal processes after refusal for services. Although the indication was that Ms. Winston did not intend to use such services, Dr. Cooper considered the fact that Ms. Winston would likely be eligible for, and might need, such services in the future. Dr. Cooper considered that these services are heavily subsidized, and even one return trip per week would cost the public nearly $2,000 per year.
[12] As Dr. Theriault was absent from his Ottawa office at the time that the additional material provided by the Applicant was reviewed, Dr. Paradis reviewed the entire file, including the new information. Dr. Paradis concurred with Dr. Cooper's opinion that the new information did not alter the medical profile and the determination made in the Medical Notification of June 20, 2001, that Ms. Winston would cause excessive demands on health or social services. Dr. Cooper conveyed this opinion to the Immigration Office on April 11, 2002.
[13] By letter dated April 12, 2002, the Visa Officer refused the Applicant's application for permanent residence on the ground that the Applicant was unable to meet the requirements for admission to Canada. The Immigration Officer determined that the Applicant's spouse (Ms. Winston) was medically inadmissible pursuant to subsection 19(1)(a) of the Immigration Act.
STATUTORY FRAMEWORK
[14] The burden of proving that a person's admission into Canada would not be contrary to the Immigration Act or Immigration Regulations rests upon the person who seeks admission to Canada.
[15] Subsection 19(1)(a)(ii) of the Immigration Act provides as follows:
| Inadmissible persons
19. (1) No person shall be granted admission who is a member of any of the following classes:
(a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,
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(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;
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Personnes non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
a) celles qui souffrent d'une maladie ou d'une invalidité don't la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, don't l'avis est confirmé par au moins un autre médecin agréé, conclut:
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ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
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[16] Every person seeking permission to establish permanent residence in Canada as an immigrant must undergo a "medical examination" by a "medical officer." A medical examination may include a mental and physical examination and a medical assessment of relevant records. A "medical officer" means a qualified medical practitioner authorized or recognized by the Minister as a medical officer for the purposes of the Immigration Act and Immigration Regulations.
[17] In the course of examining the prospective immigrant, a medical officer must form an opinion as to whether, as a result of the immigrant's health and medical condition, the admission of the immigrant into Canada would cause, or might reasonably be expected to cause, excessive demands on Canadian health and social services due to the nature, severity and probable duration of any identified medical or health condition.
[18] If a prospective immigrant is determined by a medical officer (whose opinion is concurred in by at least one other medical officer) to be a person whose admission would or might reasonably be expected to cause "excessive demands" on Canadian health or social services, which phrase has been defined by this Court as " ... more than what is normal or necessary ..." (Jim et. al. v. Canada (Solicitor General) et al. (1993), 69 F.T.R. 252 (T.D.) at p. 258), that immigrant shall not be granted landing as he or she is a member of an inadmissible class and does not meet the requirement of the Immigration Act or the Immigration Regulations.
[19] The Medical Officer's Handbook defines assessments in the D category (relating to anticipated demand on health or social services) as follows:
| CRITERION D
D1 No anticipated demand for regular medical care or social services.
(i) Health
D2 Requires or may well require regular medical care.
D3 Requires or is expected to require at least one major episode of hospitalization within five years.
D4 Requires or probably will require extensive medical care and/or likely to require recurrent hospitalization.
(ii) Social Services
D5 Requires or probably will require regular social supervision or will probably require special education but may become self-supporting.D6 Requires or probably will require family or special home care and/or supervision indefinitely.
D7 Requires or probably will require continuous institutional care.
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COMMENTARY
Minor degree of arthritis and other common diseases which would require an occasional visit to a doctor might be placed in this category.
These are patients with a currently stable disease or who are on maintenance therapy. Example: some cases of diabetes, hypertension and hypothyroidism or inactive TB requiring surveillance.
Example: inguinal hernia, requiring surgery with prospect of good response, and cholelithiasis with history of colic.
Example: severe multiple sclerosis, chronic obstructive lung disease, metastatic disease, renal dialysis, organ transplantation, chronic hospital care and rehabilitation services.
Example: a person with a mental impairment might be educable and become self-supporting.
Care might be of social welfare or educational type.
Example: mental deficiency or a grade that would render the patient unemployable and/or unable to perform the activities of daily living necessitating requirement for home care services. Another example would be a hemiparesis with residual disability which can be cared for at home. More severe cases will fall into the category.
Example: certain cases of severe retardation, severe chronic psychotics, many cases of hemiplegia or paraplegia.
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ISSUES
[20] The Applicant raises the following issues:
Did the Medical Officer err by turning her mind to the wrong question?
Did the Medical Officer err by failing to assess the Applicant's specific circumstances?
Did the Medical Officer err by carrying out a defective analysis of excessive demand?
Did the Medical Officer ignore evidence?
Did the Medical Officer breach her duty of fairness by relying on the Medical Officer's Handbook and referring to additional material including The Spinalcord Injury Information Network, Facts and Figures at a Glance, May 2001, published by the University of Alabama at Birmingham and Medical Services - Long-Term Care Costs in Ontario without disclosing them to the Applicant?
ARGUMENTS
Applicant
Did the Medical Officer err by turning her mind to the wrong question?
[21] The Applicant submits that when a medical officer considers whether an applicant's medical condition will cause excessive demand on Canadian health and social services the law requires the answer to be formulated as an expression of probabilities. See Badwal v. Canada (Minister of Employment and Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.), at p. 564.
[22] The Applicant submits that, in this case, medical specialist reports dated December 18, 2001 and January 29, 2002 and provided by Dr. Peter Poon-King, confirmed that Ms. Winston's condition had plateaued and that her functional capacity would not improve further. All medical reports confirmed that there had been no further deterioration in her condition and that none was foreseeable. In addition, the Applicant submits that the services Ms. Winston requires will be provided by her family under, for instance, a home-based exercise program. She will also have to see a rehabilitation specialist twice each year and consult with her doctor if she gets urinary tract infections.
[23] The Applicant submits that, notwithstanding the aforementioned, Dr. Cooper determined that it was reasonable to expect that Ms. Winston would require nursing home care, hospital based care (such as occupational and physiotherapy and social workers), adapted transportation and home care. The Applicant urges that this assessment ignores the facts of this case and the evidence. In addition, the Applicant submits that the Medical Officer did not state the likelihood of Ms. Winston requiring or using these services in accordance with Redding v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 496 (T.D.).
[24] The Applicant submits that the Medical Officer specifically stated in her affidavit that she "made an error in not noting and not correcting Dr. Theriault's proposed assessment of D4/5 in the D category." The Applicant contends that, as a result of this statement, the Medical Officer determined after the case was concluded that there had been an error in her assessment. This error could not have been addressed by the Visa Officer or the Applicant because they were not aware of it. The Applicant submits that this is an error of law.
[25] The Applicant further submits that the law requires that a specific assessment be done for each applicant. In this case, the Medical Officer made general assumptions as a result of Ms. Winston's quadriplegia. Notwithstanding the evidence and Ms. Winston's history, as well as the statements from her family and her doctors, Dr. Cooper determined that Ms. Winston might use social and medical services that are presently not being used by her and there is no indication or objective basis to suggest why Ms. Winston would require such services in the future.
[26] The Applicant submits that, in addition to interpreting and quoting statements from the Medical Reports out of context, and without completing the full statement of the Medical Report, the Medical Officer ignored or misinterpreted the assessment of the Rehabilitation Specialist. In addition, the Applicant submits that, notwithstanding Dr. Cooper's statements to the contrary in her affidavit, there is no indication that Ms. Winston would use long-term nursing care or physiotherapy when she comes to Canada. The Applicant notes that Ms. Winston does not use either of these services currently and there is no reason to believe that she will use them in Canada.
[27] The Applicant submits that Dr. Cooper repeatedly made reference to services that Ms. Winston may be eligible for and points out that these services require a means test. Because the Applicant and Ms. Winston have means, they would not make a demand on health and social services. The Applicant submits relevant information on this issue was not disclosed to him, and he never had the opportunity to respond to the Medical Officer's concerns in this regard.
[28] To support this position, the Applicant refers to the decision in Lau v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 485 (T.D.).
[29] The Applicant submits that the Medical Officer breached her duty and committed a reviewable error in the case at bar by not paying attention to Ms. Winston's particular circumstances.
Did the Medical Officer err by carrying out a defective analysis of excessive demand?
[30] The Applicant submits that the Medical Officer confirmed she had made limited inquiries with respect to some services and no inquiries whatsoever with respect to the availability of other services that the Applicant may require. The Applicant notes that Sharlow J. indicated the following in Rabang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1934 (T.D.):
14. The evidence in the medical record supports the medical officer's opinion in so far as it relates to Patrick's condition and his probable need for future medical attention, therapy and special education. However, with one minor exception (discussed in the next paragraph), there is no evidence as to what I call the non-medical aspects of the opinion, namely the availability, scarcity or cost of the publicly funded health or social services that Patrick is likely to require. No attempt has been made to fill this evidentiary gap with an affidavit. As a result, it is impossible to assess the reasonableness of the medical officer's opinion that Patrick's needs can reasonably be expected to place an excessive demand on health and social services in Canada.
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20. In this Court, evidence of social cost has been adduced in a number of cases to justify a medical officer's opinion as to excessive demand. I refer, for example, to Ma, supra, Mendoza v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1639, IMM-228-99 (October 29, 1999)(F.C.T.D.), and the proceedings in the Trial Division in Thangarajan, supra (reported at (1998) 152 F.T.R. 91) and the companion case, Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (both affirmed by the Federal Court of Appeal on June 24, 1999), [1999] F.C.J. No. 1022.
21. It was also argued for the Minister that the onus is on the applicants to satisfy the medical officer that Patrick's demands on publicly funded health and social services would not be excessive, and they failed to provide any evidence in that regard. That argument does not address the fundamental problem in this case. The problem is that the record discloses no evidence at all on the critical question of excessive demand.
[31] In the case at bar, the Applicant argues that the medical record and affidavit evidence focus primarily on costs rather than availability or other considerations, such as displacement of Canadian citizens with respect to medical services.
[32] The Applicant submits that Dr. Cooper also relies on irrelevant information regarding costs. Dr. Cooper refers to "The Spinal Cord Injury Information Network, which states that the average annual cost of care for a person with "low tetraplegia", an injury comparable to Ms. Winston's injury, is US $41,983.00." The Applicant submits that this information is based on U.S. services and is published by the University of Alabama and is of no significance or relevance for Canadian health assessment purposes. Based on this, the Applicant argues Dr. Cooper clearly addressed her mind to the wrong issue and made a defective analysis of excessive demand. The Applicant submits that Dr. Cooper's reliance on an assessment by a U.S. university for the average costs of Americans is totally irrelevant to costs that would, or may, be relevant to a person in Canada. In addition, this information was never disclosed to the Applicant so that he never had the ability to respond.
Did the Medical Officer ignore evidence?
[33] The Applicant suggests that Dr. Cooper completely ignored the specialists' reports, as well as the evidence provided by the Applicant's solicitor regarding the availability of medical services in Ontario as well as the Applicant's statement regarding his means and continued love, affection and intention to continue to take care of his wife. The Applicant submits that Dr. Cooper's analysis is based on generalizations that could be applicable to the general population, but there is no specific assessments of Ms. Winston's situation.
Did the Medical Officer breach her duty of fairness by relying on the Medical Officer's Handbook and referring to additional material, including The Spinalcord Injury Information Network, Facts and Figures at a Glance, May 2001, published by the University of Alabama at Birmingham and Medical Services - Long-Term Care Costs in Ontario without disclosing them to the Applicant?
[34] The Applicant relies upon the guidance provided by Lemieux J. in Redding v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 496 (T.D.) concerning what information needs to be disclosed to meet the duty of fairness.
[35] The Applicant submits that the circumstances in the case at bar are even more favourable to the Applicant because Dr. Cooper relied upon additional reports and evidence that were not disclosed to the Applicant.
Respondent
Did the Medical Officer err by turning her mind to the wrong question?
[36] The Respondent submits that the Medical Officer properly assessed the Applicant's case and considered the evidence provided by the Applicant. Although the report by Dr. Peter Poon-King indicated that Ms. Winston's condition had plateaued and that her functional capacity would not improve further, the Medical Officer found that Ms. Winston would require additional medical attention because she is more prone to certain medical problems as a result of her quadriplegia. These problems include urinary tract infections and lung infections. She will also need ongoing physiotherapy to prevent joint contractures and 24-hour care from personal attendants for health and safety reasons.
[37] The Respondent notes that the Applicant argues that in Redding, supra, the medical officer erred by looking at the general diabetes population rather than performing an assessment of the individual circumstances of the applicant in that case. The Respondent argues that, in the case at bar, the Medical Officer noted that Ms. Winston is quadriplegic and that there were no indications of improvement. The Respondent submits that, given her condition, Ms. Winston would be prone to certain medical problems and, therefore, the Medical Officer properly assessed what those specific problems would cost.
[38] The Respondent argues that, as insulin dependent diabetes may change over time, the Redding, supra, case does not assist the Applicant . In this case, the Respondent submits there is no doubt the Ms. Winston's condition will not change. This is clear from the report of Ms. Winston's own doctor.
[39] The Respondent submits that, in spite of the error in her report concerning the appropriate D classification, the Medical Officer would still have found that the Applicant would cause excessive demand on medical and social services in Canada.
[40] The Respondent points out that the Medical Officer specifically addressed the reasons why Ms. Winston would require medical and social assistance and did not ignore the evidence of Ms. Winston's family, her doctors and her history:
I considered the specific circumstances of Ms. Winston and her supportive family environment. However, I also considered the reality that even if her family chose to care for her at home, it is unlikely that they would be able to do so on a 24 hour a day basis, as revealed by the fact that they already require outside case provision services for at least 8 hours a day in Trinidad.
Affidavit of Dr. Cooper, at paragraph 13
[41] Ms. Winston is quadriplegic and can only feed herself with assistance. Consequently, the Respondent submits that it is logical and necessary to assess Ms. Winston's needs with a realistic consideration of her everyday living requirements.
[42] The Respondent points out that the Rehabilitation Specialist did not indicate that Ms. Winston would only require two visits a year. Dr. Poon-King's letter indicated that Ms. Winston should meet with a Rehabilitation Specialist twice yearly. The Respondent says this means that more frequent visits might be required. The Respondent submits that it was open to the Medical Officer, based on Ms. Winston's medical condition and what she would be eligible for, to assess the likely number of visits she would require.
[43] Despite the family's willingness to take care of Ms. Winston, the Medical Officer noted that the family already uses 8 hours per day of the care provision services available in Trinidad. Consequently, the Respondent submits that it was open to the Medical Officer to assess the Applicant's eligibility for admission into a long-term care facility because, if she were landed in Ontario, she would be eligible for the maximum level of personal care assistance. Given these circumstances, as well as the degree of impairment, the number of family members in Trinidad and the added pressures of immigrating to a new country, it was reasonably open to the Medical Officer to find that the family may require more than 8 hours a day of care provision services in Canada.
[44] The Respondent submits that the Medical Officer was charged with the responsibility of assessing what services Ms. Winston might require (or be eligible for) based on her particular medical condition. The Respondent argues that, even if Ms. Winston elects not to utilize medical services, that cannot be determinative of the demands that an individual's admission might reasonably be expected to make upon health services (Deol v. Canada (Minister of Citizenship and Immigration) (2001), 19 Imm. L.R. (3d) 26 (T.D.) and Minister of Citizenship and Immigration v. Khan (2001), 283 N.R. 173) (F.C.A.).
[45] The Respondent also notes that the Federal Court of Appeal in Deol, supra has rejected an argument similar to that put forth by the Applicant that the Medical Officer erred by not considering the financial means or support the family could provide to Ms. Winston. This is because, as has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment.
[46] As regards the Applicant's argument that the Respondent had the duty to disclose information relied upon by the Medical Officer (such as the Ontario Ministry of Health and Long-Term Care and other services which the Applicant may be eligible for), the Respondent submits that the Applicant has failed to provide any authority for the proposition that the duty of fairness requires disclosure of information that is relied on for an assessment of excessive demand. The Respondent submits that the only requirement is that the Applicant be given an opportunity to submit additional information to the Medical Officer on the medical condition, diagnosis or opinion. This is what occurred in this case.
Did the Medical Officer err by carrying out a defective analysis of excessive demand?
[47] On this issue, the Respondent submits that all persons who apply for immigrant visas and who are in peril of a denial on medical grounds should be given the opportunity to provide both additional medical evidence and also to respond to the "excessive demand" conclusion rendered by Canadian medical officers.
[48] The Respondent notes that, in this case, the Applicant was given both of these opportunities, and indeed availed himself of them. The Respondent submits that the Visa Officer's letter advised the Applicant of the doctors' "excessive demand" conclusion and stated as follows:
Before I make my final decision, you may submit additional information or documents relating to the above noted medical condition, diagnosis or opinion. You may also submit any information addressing the issue of excessive demand it [sic] if applies to your case.
[49] The Respondent submits that this wording cannot reasonably be construed as limiting the Applicant to providing only new medical information. The Respondent refers to the judgement of Wetson J. in Ma v. Canada (Minister of Citizenship and Immigration) (1988), 140 F.T.R. 311 (T.D.) at p. 315:
16. In this case, while the Visa Officer's letter did not specifically request additional information concerning the issue of excessive demand, and the medical notice provided to the applicant did not specifically mention the Developmental Disabilities Condition Report relied upon by the Medical Officers in forming their opinions, it cannot be said that the applicant did not have, nor take full advantage of, the opportunity to address the issue of excessive demand, as well as the child's diagnosis and prognosis.
[50] The Respondent submits that the Applicant's actual response to the Visa Officer's invitation made it clear that the Applicant clearly understood it as an opportunity to address the central issue of excessive demand by means that went beyond new medical advice.
[51] The Respondent submits that the Applicant baldly asserts that the Medical Officer made limited inquiries with respect to some services and no inquiries with respect to the availability of others. However, the Applicant fails to make any specific allegations to which the Respondent can properly respond. The Respondent submits that the only reference is to the displacement of Canadian citizens. However, as the Applicant did not require medical services, such as surgery, which would displace Canadians, displacement was not an issue before the Medical Officer. The assessment was based on the services that the Applicant would utilize because of her quadriplegia.
[52] With respect to the reference made to the Spinal Cord Injury Information Network, the Respondent submits that the Medical Officer's reference does not demonstrate that she turned her mind to the wrong issue. The Medical Officer was only making reference to the Information Network to give an indication as to how much money could be required to support a person in the Applicant's circumstances. The fact that it is a US document, and quoted in US dollars, does not mean that it is irrelevant. Foreign currency references can be easily converted into Canadian dollars.
Did the Medical Officer ignore evidence?
[53] On this issue, the Respondent submits that the duty of fairness in the immigration context does not require an administrative decision-maker to divulge to a prospective immigrant the complete details of a medical officer's methods of evaluation, the specific evidence before them, or the facets of the specific decision-making process adopted by them to implement the provisions of the Immigration Act. Rather, the duty of fairness requires that a visa officer provide an adequate opportunity to an applicant to respond to a negative medical assessment before it is acted upon by the visa officer. It is upon that medical assessment that the outcome of the visa application turns (Gao v. Canada (Minister of Citizenship and Immigration) (1993), 61 F.T.R. 65 (T.D.)).
Did the Medical Officer breach her duty of fairness by relying on the Medical Officer's Handbook and by referring to additional material including The Spinalcord Injury Information Network, Facts and Figures at a Glance, May 2001, published by the University of Alabama at Birmingham and Medical Services - Long-Term Care Costs in Ontario without disclosing them to the Applicant?
[54] The Respondent submits that it was proper for the Medical Officer to rely on the Medical Officer's Handbook in her assessment of the Applicant's case. The Medical Officer has no legal duty to disclose the Medical Officer's Handbook before making a final decision.
ANALYSIS
[55] Opposing counsel expressed considerable disagreement at the hearing of this matter about the implications of the relevant statutory provisions and case law. Consequently, I think it would assist the analysis if, before proceeding to the merits, I stated my understanding of the applicable ground rules.
[56] The Applicant's principal argument in this case is that ss. 19(1)(a)(ii) was not applied correctly because the Medical Officer concerned did not address the specifics of the Applicant's situation and did not turn her mind to whether, given the Applicant's actual condition and family situation, excessive demands might reasonable be expected. In this regard, the Applicant places heavy reliance upon the decisions in Badwal v. Canada (Minister of Employment and Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.) and Lau v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 485 (T.D.).
[57] The importance of these two decisions for the Applicant's position justifies a closer look at what was actually said. In Badwal, supra, MacGuigan J.A. wrote as follows at p. 564:
... As Pratte J.A. wrote in Canada (Minister of Employment and Immigration) v. Pattar, A-710-87, decided October 28, 1988 [8 Imm. L.R. (2d) 79 at p. 82, 98 N.R. 98 (F.C.A.)]:
A layman, in the absence of medical evidence, cannot draw any inference as to the probable consequences of a physical disorder the cause of which is unknown. A medical doctor is not, however, in the same situation; because of his specialized knowledge and experience he may, in many cases, assess the likelihood that a physical disorder of unknown origin be very serious and dangerous and require long hospitalization.
A medical opinion as such cannot be second-guessed by the Board.
Nevertheless, we are all agreed that the majority decision cannot be allowed to stand. Although certainty in prognosis is not required, this court held in Re Hiramen and Minister of Employment and Immigration (1986), 65 N.R. 67, as an independent ground of decision, that the Act requires an expression of probabilities such that words like could and may are insufficient to provide. See Hiramen at p. 68: "This entry, apart from not constituting the opinion required, is couched in the language of possibility rather in that of probability." (Emphasis added.)
It is not that the mere use of the word may in the narrative of the medical profile leads by itself "determinatively to a conclusion of insufficiency," an approach which was rejected by Marceau J.A. for the majority in the Pattar case. It is rather that the medical narrative makes excessive demands on the health or social system contingent upon the deterioration of the applicant's current state of health, an eventuality which is stated to be merely possible. In either words, a probability as to treatment is deduced from a mere possibility as to health deterioration.
The corollary must be that, in the absence of deterioration, which in the narrative of the medical profile is only possible, there will be no excessive demands on the system. The medical profile is, therefore, self-contradictory, leading to the conclusion that the medical officer did not address his mind to the right question.
Medicine is not a science capable of exact measurement, but Parliament has required a judgment of probability based upon an appreciation of an applicant's present condition.
[58] In Lau, supra, Pinard J. placed a great deal of emphasis upon the need for an "individualized assessment in evaluating medical inadmissibility." At para. 10 and 11, he wrote as follows:
10. In my view, the medical officers failed to respect the requirement for an individualized assessment in evaluating medical inadmissibility. The jurisprudence has clearly established that a finding of medical inadmissibility cannot be premised solely on the medical condition under review; rather, the individual applicant's personal circumstances must be carefully reviewed. Mr. Justice Cullen expressed this requirement concisely in Poste v. Canada (M.C.I.) (December 22, 1997), IMM-4601-96, at pages 20 and 21:
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. 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. While a particular individual may cause excessive demands in one situation, in a different setting, the same individual may cause minimal or no demands at all. Medical officers must address themselves to the particular circumstances of the individual. Otherwise, cogent evidence is ignored, and opinions regarding demands on social services become unfounded and cannot be upheld by this Court. (Emphasis added.)
11. It can be noted from this passage that Justice Cullen placed a great deal of emphasis on the impact of family support on the demands an individual's medical condition might place on Canadian health and social services.
[59] Thus far, there would appear to be no disagreement in principal between the parties. Where they begin to diverge, however, is in relation to the interpretation of the decisions in Hilewitz v. Canada (Minister of Citizenship and Immigration) 2003 FCA 420 and Deol, supra. These two cases have a particular significance for the case at bar because they deal, inter alia, with an assessment under ss. 19(1)(a)(ii) where there is evidence of a willingness and an ability to provide family support as a way of alleviating the demands on health or social services. At first blush, it might seem obvious that the principal of basing an excessive demands assessment upon the individual's personal circumstances, as enunciated in Lau, supra, would require a medical officer to have regard to the ability and willingness of the applicant and their family to provide support themselves. The Poste decision referred to in Lau, supra, is, in fact, specifically cited and discussed by the Federal Court of Appeal in Hilewitz, supra, which provides a thorough review of the competing case law and an interpretation of ss. 19(1)(a)(ii) on this point. Writing for the Court in Hilewitz, supra, Evans J.A. addressed the issue as follows:
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 Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] S.C.J. No. 28, 2003 SCC 29">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 in the medical condition. 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.
[60] Counsel for the Applicant goes to considerable lengths to distinguish Hilewitz, supra, from the case at bar. In this regard, she draws the Court's attention to para. 11 of the Hilewitz decision:
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.
[61] Unlike the Hilewitz, supra, situation, counsel argues there are no real social services that Ms. Winston will need. She is a woman in her 40's and she is not under a mandatory requirement, as was Gavin Hilewitz, to go to school or do anything else. In other words, it is not just that Ms. Winston and her family can pay for whatever she needs, she doesn't need any services over and above occasional physiotherapy and antibiotics, which can hardly be described as excessive.
[62] With respect to the able argument of Applicant's counsel on this point, I do not believe that the dicta of Evans J.A. in Hilewitz, supra, can be read in a way that makes any such distinction meaningful. Hilewitz, supra, provides us with a statutory interpretation of ss. 19(1)(a)(ii) that says Parliament did not intend to oblige medical officers to undertake broad ranging, difficult and inherently speculative inquiries when applying this section. The consideration of "ability and willingness to pay" takes place within the context of a consideration of whether ss. 19(1)(a)(ii) requires "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." The rationale offered by Evans J.A. for leaving out of account non medical factors is equally applicable to a situation where family members, rather than paying, provide the services themselves.
[63] The Applicant argues that, in the case at bar, Ms. Winston just doesn't need services that will result in an expense to the public. If indeed Ms. Winston's medical condition were such that she just did not need the services of the public or her family, then I can appreciate that Hilewitz, supra, would not be relevant. But the Applicant's own evidence establishes, at the very least, that Ms. Winston needs the close and constant attention of her family, as well as others. Consequently, I believe that the case at bar remains within the ambit of the principles laid down in Hilewitz, supra, and that the Medical Officer, Dr. Cooper in this case, was not obliged to factor into her excessive demands assessment non-medical issues such as family support and ability and willingness to pay raised by the Applicant and that the duty of Dr. Cooper under ss. 19(1)(a)(ii) was to focus on the nature, severity or probable duration of Ms. Winston's personal medical condition and any implied "additional factors in order to ensure the efficacy of the statutory scheme," to use the words of Evans J.A. at para. 69 of Hilewitz.
[64] Nor do I think that Deol, supra, assists the Applicant any further on this issue. In that case, the Federal Court of Appeal found there was no error on the facts of that case in failing to have regard to the financial ability of the Applicant or members of her family to pay for the cost of recommended surgery. The point raised by the Applicant in the case at bar (i.e. what about someone whose family provides the services themselves or who does not need services?) falls, in my opinion, within the scope of Hilewitz, supra.
[65] My conclusions, then, on this issue are that Poste, supra, and Lau, supra, (the particular circumstances principle) continue to apply but must now be read in the light of Hilewitz, supra, and the narrower focus which the medical officer is called upon to take in view of the Federal Court of Appeal's statutory interpretation of ss. 19(1)(a)(ii) in Hilewitz, supra.
[66] I agree with the Applicant, however, that the exercise of formulating an excessive demands assessment requires a medical officer to decide whether the disease, disorder, disability or other health impairment "would cause or might reasonable be expected to cause excessive demands on health or social services," thus requiring a medical officer, within the terms of Badwal, supra, to provide "a judgment of probability based upon an appreciation of an applicant's present condition." The Federal Court of Appeal in Hilewitz, supra, at paras. 65 and 66 addresses this issue and appears to approve of Badwal, supra:
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. (4th) 561 at 564 (F.C.A.).
[67] Dr. Cooper provided the second signature to the Medical notification and, as her affidavit makes clear, she did so because she concurred with Dr. Theriault's assessment that Ms. Winston "would place an excessive demand on Canadian health and social services." I see nothing ambiguous about this. The opinion is that Ms. Winston "would cause" an excessive demand.
[68] As regards the standard of review applicable in this case, Hilewitz, supra, provides some guidance, but is not definitive because the Federal Court of Appeal found that nothing turned on the issue in that case and was prepared merely to assume a standard of correctness:
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.
[69] In the case at bar, if I apply a standard of correctness to the first three issues raised by the Applicant (i.e. the wrong question, defective analysis, ignoring evidence) I am of the opinion that no reviewable error was committed in this case either by the Medical Officer concerned or by the Visa Officer. Hence, there is no need to embark upon an extensive pragmatic and functional analysis because, as in Hilewitz, supra, nothing would turn on it.
[70] I have reviewed the Decision of the Visa Officer and the assessments of Dr. Cooper upon which the Decision is based, as well as Dr. Cooper's review of the Applicant's submission and her affidavit of August 16, 2002, together with the materials in the record drawn to my attention by the Applicant. While I find some aspects of Dr. Cooper's evidence perplexing, I do not consider that the Applicant has raised sufficient justification to vitiate the medical assessments or the Decision of the Visa Officer.
[71] Bearing in mind the principles referred to earlier, I believe there was a sufficient evidentiary basis for a conclusion that Ms. Winston would cause or might reasonably be expected to cause excessive demands on health or social services and that Dr. Cooper did address the right question, did conduct an adequate analysis and did not ignore relevant evidence. In fact, Dr. Cooper even took into account Ms. Winston's family situation and made reasonable assumptions and extrapolations about the medical services that she would need.
[72] The heart of Dr. Cooper's opinion is that Ms. Winston is someone who:
a) has a current and anticipated life-long total dependency on others for personal care and for all instrumental activities of daily living. This level of personal care would have to be provided by caregivers and personal attendants on a 24-hour, seven-days-per-week basis;
b) because of the severe degree of her impairment, requires physical therapy on an on-going, regular basis to prevent the development of joint contractures;
c) requires adapted transportation to move between her home and outside locations;
d) requires additional medical attention because she is more prone to certain medical problems as a result of her quadriplegia such as urinary tract infections and lung infections.
[73] Dr. Cooper's conclusion is that the required "level of care is demanding at physical and financial levels" and supports an assessment that Ms. Winston "would place an excessive demand on health and social services."
[74] The Applicant suggests various reasons why this conclusion is incorrect. However, the heart of the Applicant's argument is that most of the anticipated physical and financial demands are not present in Ms. Winston's case because they are being met by her family who either perform the necessary service themselves, finance her transportation needs, and are sufficiently well-off that Ms. Winston could never pass any means test required to access the various public services referred to by Dr. Cooper.
[75] Dr. Cooper specifically says that "I considered the specific circumstances of Ms. Winston and her supportive family environment." She discounts the family support because of what she regards as Ms. Winston's eligibility for various services in Ontario. She says that "when I made my final decision, I considered Ms. Winston's eligibility for these services and the fact that such care services are expensive." I appreciate that the Applicant disputes Ms. Winston's eligibility for many of the services referred to, but Hilewitz, supra, at para. 65 teaches that "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". Eligibility moves the inquiry back towards ability and willingness to pay which Hilewitz, supra, in my opinion, says Parliament did not intend medical officers to consider. There is also the issue of the future and what Dr. Cooper called, in relation to Wheel Trans Services, "future reasons that are difficult to anticipate in the abstract."
[76] When Dr. Cooper's assessment is reviewed against the dicta in Hilewitz, supra, it is not possible for me to conclude that she was incorrect in her conclusions concerning excessive demands. I am somewhat concerned by some of her points of reference (e.g. the relevance in a Canadian context of the U.S. costs gleaned from the Spinal Cord Injury Information Network) and the significance of her admitted error concerning the appropriate category in which to place Ms. Winston (i.e. it should have been "D2/6 or D3/6" rather than "D4/5"), but these matters do not, in my opinion, render invalid her general assessment that the level of care required by Ms. Winston is demanding at physical, emotional and financial levels, that the supportive family environment (even if it ought to be taken into consideration after Hilewitz, supra) does not affect this assessment, and that Ms. Winston would place an excessive demand on health and social services.
[77] The Applicant's final issue is that the medical officer breached her duty of fairness. The Applicant's complaint here appears to be two-fold: first, that the Applicant was never given adequate notice of the case he had to meet to counter the Medical Notification and, secondly, that the Medical Officer relied upon specific sources of information (i.e. the Medical Officer's Handbook, The spinal Cord Injury Information Network, Facts and Figures at a Glance and Medical Services - Long-Term Care Costs in Ontario) without disclosing them to the Applicant.
[78] The Applicant notes that Lemieux J. in Redding, supra, stated as follows:
40. As a general rule, the duty of fairness of an administrative body requires the decision maker to disclose information to allow for a meaningful participation in the process. The Supreme Court of Canada held in Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 [at pages 181-182] that:
In general, included in the requirements of procedural fairness is the right to disclosure by the administrative decision-maker of sufficient information to permit meaningful participation in the hearing process: In re Canadian Radio-Television Commission and in re London Cable TV Ltd., [1976] 2 F.C. 621 (C.A.), at pp. 624-625. The extent of the disclosure required to meet the dictates of natural justice will vary with the facts of the case, and in particular with the type of decision to be made, and the nature of the hearing to which the affected parties are entitled.
41. With respect to the disclosure of a medical notification, Dawson J. had this to say in Hersi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2136 (T.D.) (QL) [at paragraphs 15-17]:
Greater disclosure has been required where the evidence established that new information or internal policies not contained in the fairness letter were relied upon. See, for example, Maschio v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 210 (F.C.T.D.).
In contexts other than those involving fairness letters and paragraph 19(1)(a) of the Act, the duty of fairness has been held to require disclosure of a negative risk assessment in the disposition of an application to remain in Canada made on humanitarian and compassionate grounds (Haghighi v. Canada (Minister of Citizenship and Immigration) (2000), 189 D.L.R. (4th) 268 (F.C.A.)) and to require disclosure of summary reports in the context of a danger opinion issued under subsection 70(5) of the Act (Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (F.C.T.D.)).
It must be remembered however that the content of the duty of fairness is variable and contextual. Important factors to consider, as noted by the Supreme Court in Baker, supra, include the nature of the decision being made and the process followed in making it; the place of the decision [page515] within the wider statutory scheme; the importance of the decision to the individual affected; and that person's legitimate expectations.
42. She further states [at paragraph 20]:
The ability to meaningfully participate in the decision-making process requires clear notice of the case to be met, a full and fair opportunity to present evidence and submissions relevant to that case, and full and fair consideration of that case by an impartial decision-maker.
43. I agree with the respondent's position that reliance on the Medical Officer's Handbook cannot not be said to be reliance on information that was withheld from the applicant. The Handbook consists of a compendium of medical knowledge and as such is like a medical textbook or journal. (See Ludwig v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 271 (F.C.T.D.).)
44. However, I am also of the view that the failure to disclose the material from the Canadian Diabetes Association and the Health Canada Report constituted a reviewable error in that it impeded the applicant's meaningful participation in the process. As noted, these documents spoke to the issue of costs.
[79] As regards the general case that the Applicant had to meet following the Medical Notification, a review of the correspondence between the parties and the submissions actually made by the Applicant suggest to me that, in this particular context, the Applicant had sufficient information and knowledge of the process to participate in a meaningful way. In other words, in a general sense, the Applicant knew the case he had to meet.
[80] However, when it came to specific cost and eligibility issues, the situation was different. Dr. Cooper's affidavit makes it clear that she reviewed materials supplied by the Applicant but then went further and, on the issue of costs, she accessed and relied upon the following:
a) The Spinal Cord Injury Information Network - for the "average annual cost of care for a person with "low tetraplegia," an injury comparable to Ms. Winston's injury";
b) Information from the Ontario Ministry of Health and Long-Term Care and Community Care Access Centre - for long-time nursing costs and ongoing physiotherapy;
c) Information from the Assistive Devices Program for wheelchair costs.
[81] The issue is, then, whether a failure to disclose this specific information prevented the Applicant from knowing the case to be met and from participating in a meaningful way in the process.
[82] The underlying purpose of Dr. Cooper's assessment was to decide whether Ms. Winston would impose an excessive demand on health and social services. The Applicant was well aware that cost considerations would be at issue because the Applicant was given the opportunity to respond to the negative opinion and did respond by providing a package of materials that attempted to show that the financial burden would not be great in the case of Ms. Winston because she had family support. Not having a precise knowledge of Dr. Cooper's actual inquiries did not prevent meaningful participation on this central issue. In fact, in my opinion, meaningful participation occurred and the duty of fairness, in this context and on these facts, was not breached.
[83] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell"
JFC
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2649-02
STYLE OF CAUSE: JUDE ALIBEY v. MCI
DATE OF HEARING: November 26, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Russell
DATED: March 2, 2004
APPEARANCES BY: Mr.Robin L. Seligman
...................................
For the Applicant
Mr. Marcel Larouche
...................................
For the Respondent
SOLICITORS OF RECORD Mr. Robin L. Seligman
30 St. Clair Avenue West
10th Floor
Toronto, Ontario
M4V 3A1
For the Applicant
Mr. Marcel Larouche
Department of Justice
2 First Canadian Place
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
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