Date: 20100114
Docket: IMM-4898-08
Citation: 2010 FC 40
BETWEEN:
SEYED
MOSTAFA JAFARIAN
Applicant
and
THE MINISTER OF CITIZENSHIP &
IMMIGRATION CANADA
Respondent
REASONS FOR
ORDER
HARRINGTON J.
[1]
Those
who are qualified are welcome to immigrate to Canada; unless they
are sick; except if they are rich – maybe! This is the sad case of Seyed
Mostafa Jafarian, and his family.
[2]
Mr.
Jafarian is a foreign national, an Iranian, selected by Quebec as an
investor. Unfortunately, his daughter Atousasadat is afflicted with multiple
sclerosis. The visa officer came to the conclusion that the family was
inadmissible because Atousasadat’s condition “might reasonably be expected to
cause excessive demand on health…services”, within the meaning of sections 38
and 42 of the Immigration and Refugee Protection Act (IRPA). This is a
judicial review of that decision.
BACKGROUND
[3]
As
prospective permanent residents, the Jafarians were required to disclose their
medical conditions. Atousasadat was diagnosed with multiple sclerosis some
years ago. Although the disease is degenerative, it has been controlled by the
drug Rebif. In Canada, Atousasadat’s prescription would cost some
$15,000 a year.
[4]
The
Canadian government appointed a local doctor to examine Atousasadat. That
doctor’s report, together with reports from Atousasadat’s treating physicians,
were reviewed by a Health Canada doctor who prepared a report.
[5]
All
this led the First Secretary, Visa Section, Embassy of Canada in Damascus, to write
Mr. Jafarian to say that she had determined that Atousasadat was a person
whose health might reasonably be expected to cause excessive demand. She
referred to the medical diagnosis and quoted from the Health Canada doctor that
Rebif “…is a very expensive drug which would be provided by provincial medical
care plans.” In the letter, commonly called a “fairness letter,” she added that
Mr. Jafarian could provide additional information relating to Atousasadat’s
medical condition or diagnosis and information addressing the issue of
excessive demand.
[6]
The
concerns of the visa officer were certainly justified. Pursuant to the
Regulations, Health Services include the cost of both medical personnel and
prescription drugs. An “excessive demand” is one which exceeds the average annual
Canadian per capita cost, which at the time was just over $5,000. However, and
this is crucial to this case, a health service is one for which the majority of
the funds is contributed by governments. In the “fairness letter” the visa officer
declared that Atousasadat’s Rebif would be government funded. However, this is
not necessarily the case, which is the subject of analysis later on in this set
of reasons.
[7]
Mr.
Jafarian, through counsel, responded. He submitted an opinion from a doctor who
specializes in the treatment of multiple sclerosis to the effect that
Atousasadat’s condition would not create an excessive demand, the time
limitation of which is, depending on the circumstances, five or 10 years. As to
the cost of Rebif, he accepted the premise that in the normal course most of
the cost thereof would be paid by the Quebec Government. He promised, however,
to hold the Quebec Government harmless and even offered to set up a credit
facility of $50,000, if need be. His good faith, and willingness and ability
to pay, have not been challenged.
THE VISA OFFICER’S
DECISION
[8]
The
Health Canada doctor remained of the view that Atousasadat’s condition was such
that it might be reasonably be expected to cause an excessive demand. One
reason was that her health might deteriorate, notwithstanding Rebif, and the
second, which she characterized as her main reason, was the cost of Rebif
itself.
[9]
The
visa officer who made the decision, who was not the same officer who sent the
fairness letter, refused to issue visas. The record does not indicate that he
carried out any independent analysis, particularly as regards conflicting medical
opinions, or predictions, as to the progression of the disease. He simply endorsed
the Health Canada doctor’s opinion.
ISSUES
[10]
There
are four issues:
a. Would most of
the cost of Rebif be government funded? If that is not the case, then the
decision of the visa officer is fatally flawed;
b. If more than
half the cost of Rebif would be government funded, the second issue is whether
Mr. Jafarian’s ability and willingness to defray the cost of out-patient
prescription drug medication is a relevant consideration in assessing whether
the needs presented by a family member’s health condition constitutes an
excessive demand;
c. The third issue,
allied to the second, is whether the decision that the cost of out-patient
prescription drugs might reasonably be expected to create excessive demand was
reasonable; and
d. The fourth
issue is whether the tenets of procedural fairness were observed in the visa
officer’s assessment of Atousasadat’s medical condition given that the doctors
were not at idem.
[11]
As
mentioned above, Mr. Jafarian’s response related to how his daughter’s medical
condition might evolve over the next several years, coupled with an undertaking
to pay for Rebif.
DOES THE GOVERNMENT PAY
FOR REBIF?
[12]
Although
any medical care Atousasadat might require and the cost of Rebif are health
services as such, they are not health services within the meaning of IRPA
unless the majority of the costs thereof is government-funded.
[13]
It
must be kept in mind that the prime suppliers of health care services are the
provinces and territories, not the federal government. The Canada Health Act,
R.S.C. 1985, c. C-6, is essentially a mechanism by which the provinces receive
funding provided that certain conditions, such as universality, are respected.
[14]
However,
neither the visa officer, nor the Health Canada doctor upon whose opinion he
relied, nor Mr. Jafarian, actually looked at Quebec law. If they
had, they would have realised that the premise that Rebif “would be provided by
provincial medical care plans” is not necessarily correct.
[15]
Both
Mr. Jafarian and the Health Canada doctor, whose opinion was endorsed by the
visa officer, relied on information provided by the Multiple Sclerosis Society.
Leaving aside a small annual deductible, the health officer concluded that the
cost of Rebif was Quebec government funded. Her conclusion was based on
a telephone call to the MS Society.
[16]
That
information was incorrect. The answer lies in an Act Respecting Prescription
Drug Insurance, R.S.Q. c.A-29.01 and regulations thereunder. In Quebec, all
permanent residents must be insured to a minimum level called “the basic
plan.” There are two classes of underwriters: private insurance companies and the
government itself. If an individual is eligible for private insurance, such
insurance must be taken out. If not eligible, the public underwriter, the Régie
de l’assurance médicale du Québec, provides the coverage.
[17]
In
accordance with the said Act, the Regulation Respecting the Basic
Prescription Drug Insurance Plan and the Regulation Respecting the List
of Medications Covered by the Basic Prescription Drug Insurance Plan, Rebif
is identified as an “exceptional medication.” A prescription for it must be
approved by a Quebec Ministry Review Panel. Once approved, payment is covered
by the basic plan be it through a private insurer or the Régie as the public
insurer. Private insurers must insure on the same terms and conditions as the
Régie. Unfortunately the case is in a factual vacuum because there is nothing
in the record showing how the system works in practice. For instance, the
Regulations do not suggest that the Régie acts as a reinsurer for private
insurers when it comes to “exceptional medications.”
[18]
Thus
the question, which was neither considered by Mr. Jafarian nor by the visa
officer, is whether Mr. Jafarian and/or his daughter would, as Quebec permanent
residents, be eligible to take out private insurance.
[19]
Under
the Quebec Act, the Régie
must provide coverage for persons of a certain age or in financial need. Mr.
Jafarian and his family do not qualify. Section 15, however, of the Act
goes on to provide that the Régie, in default, must provide coverage for “all
other eligible members who are not required to become members of a group
insurance contract or employee benefit plan applicable to a group with private
coverage…” Such groups include those belonging to a professional order, trade
or occupation, and union or an association of employees that offers group
insurance coverage, or an employee benefit plan.
[20]
An
additional complication is that Atousasadat turned 18 as the visa officer was
considering the application. The Quebec Act provides that children under
18, along with children between 18 and 25 who meet certain conditions, such as
being enrolled in a full-time study program, being unmarried, etc. must be
covered by a parent’s private insurance if a parent has private insurance.
Adult children outside those conditions must, like all Quebec residents,
register for a private plan if eligible for one, or be covered by the Régie.
When a child, like in this case, is going to turn 18 during the application
process or within the five or ten-year time period used to assess excessive
demand, this child’s ability to remain covered by a parent’s private plan
and/or obtain her own private coverage during the applicable period must be
considered. Perhaps she would attend university and as a student enrol in a
group plan.
[21]
All
we know is that Mr. Jafarian has been approved as an investor. Because the
right questions were not asked, there is no indication whatsoever in the record
as to whether Atousasadat’s medication would be paid for by private insurance.
If it would be, then the majority of the cost of Rebif would not be
government-funded and so the cost thereof would not be an “excessive demand”
within the meaning of IRPA.
WILLINGNESS
AND ABILITY TO PAY
[22]
The
next issue, in the event that Atousasadat would not have private prescription
drug coverage, is whether Mr. Jafarian’s ability and willingness to pay for her
medication are relevant considerations. The Minister submits they are not.
Although on the facts of this case that position is correct, a visa officer is
required to take a far more nuanced approach.
[23]
For
the reasons I expressed in Companioni v. Minister of Citizenship and Immigration,
2009 FC 1315, the principles enunciated by the Supreme Court in Hilewitz v.
Canada (Minister of Citizenship and Immigration); DeJong v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, although
expressly limited to social services, are equally applicable to prescription
drugs and other health services as long as the majority of the funds for the prescription
drug in question are not contributed by governments. The Court held that
assessments must be individualized and take into account not merely eligibility
for services, but also likely demand as well as the applicant’s ability and
intention to pay.
[24]
Although
ability and willingness on the part of the applicant to pay for social services
were held in Hilewitz to be relevant factors, Madam Justice Abella noted
that social services are regulated by provincial statutes, and went on to add,
at paragraph
69, that
[the]
Ontario legislation manifestly contemplates the
possibility of financial contributions from families able to make them. Even if
the Hilewitz and de Jong families’ stated intentions regarding education and
training did not materialize, the financial resources of both families are such
that they likely would be required to contribute a substantial portion, if not
the entirety, of the costs associated with certain social services provided by
the province.
Hence, in Hilewitz the applicants
were, in any event, obliged to pay, given their financial status, no matter
what they had promised.
[25]
One
of the relevant factors in this case is whether Mr. Jafarian has the legal
right to pay for his daughter’s Rebif. An undertaking not to call upon the
government to pay what it is obliged to pay under statute is simply not
enforceable. This principle was clearly set out by Mr. Justice Evans, speaking
for the Court of Appeal, in Deol v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 271, [2003] 1 F.C. 301, and by Mr. Justice Campbell
in Lee v. Canada (Minister of Citizenship and Immigration), 2006 FC
1461.
[26]
This
position was contested in that it was submitted on behalf of Mr. Jafarian that
if he reneged on his undertaking there would be a misrepresentation which could
lead to his removal in accordance with section 40 and following of IRPA. I find
this submission distasteful. Canada has the right to determine who is
admissible as an immigrant and who is not (Canada (Minister of Employment
and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at paras. 24-27 and Hilewitz,
at para. 57). However, once those qualifications are met, it would be contrary
to public policy, and to all that Canadians hold dear, to discriminate against
the Jafarians with respect to health services and in effect to treat them as
second class. All Canadian permanent residents are entitled to universal health
care.
[27]
Furthermore,
Quebec could not possibly act on Mr. Jafarian’s representation, as that would
run contrary to Quebec law, as well as to the funding arrangements and
health care policy as set out in the Canada Health Act. The primary
objective of our health care policy is to facilitate reasonable access to
health services without financial or other barriers. In order for a province to
qualify for a full cash contribution from the federal government, its plan
must, among other things, be universal and accessible to all residents.
[28]
These
circumstances are quite unlike Hilewitz, where, as a matter of Ontario law, the
cost of most if not all of the social services in question were recoverable,
irrespective of Mr. Hilewitz’s representations. If the majority of the cost of Rebif
is not covered by the Quebec government, this issue is moot. If the
majority is so covered, then his intentions, and good faith, are simply not
relevant. The law does not permit him to opt out. If this latter scenario is
the case, the refusal to grant permanent resident visas to Mr. Jafarian and his
family was correct in law.
PROCEDURAL FAIRNESS
[29]
A
good deal of oral argument centered on the apparent difference of opinion among
the doctors as to the extent, if any, Atousasadat’s health would deteriorate
over the next several years, notwithstanding that she is taking Rebif. If it
was reasonable to project deterioration it appears likely that the required
medical attention and hospital care would constitute an “excessive demand.” The
Health Canada doctor accentuated the negative, while others accentuated the
positive. Perhaps her opinion was reasonable, perhaps not. However the decision
was not hers to make. The decision was the visa officer’s and he abrogated his
responsibility.
[30]
While
it is difficult to reach a decision in a matter in which one is not expert,
IRPA makes this demand of visa officers, and they cannot shirk their responsibility.
The underlying principle was set out by Lord Denning M.R. in Selvarajan v.
Race Relations Board, [1976] 1 All. E.R. 12 (C.A.) where he
said at page 19:
In recent years we have had to consider the procedure of many
bodies who are required to make an investigation and form an opinion .... In
all these cases it has been held that the investigating body is under a duty to
act fairly; but that which fairness requires depends on the nature of the
investigation and the consequences which it may have on persons affected by it.
The fundamental rule is that, if a person may be subjected to pains or
penalties, or be exposed to prosecution or proceedings, or deprived of remedies
or redress, or in some such way adversely affected by the investigation and report,
then he should be told the case made against him and be afforded a fair
opportunity of answering it. The investigating body is, however, the master of
its own procedure. It need not hold a hearing. It can do everything in writing.
It need not allow lawyers. It need not put every detail of the case against a
man. Suffice it if the broad grounds are given. It need not name its
informants. It can give the substance only. Moreover it need not do everything
itself. It can employ secretaries and assistants to do all the preliminary work
and leave much to them. But, in the end, the investigating body itself must
come to its own decision and make its own report.
[Emphasis added.]
[31]
This
approach was approved by the Supreme Court in Syndicat des employés de production
du Québec et de l'Acadie v. Canada (Human
Rights Commission), [1989] 2 S.C.R. 879.
[32]
I
subscribe to the view set out by Mr. Justice Cullen in Poste v. Canada (Minister of
Citizenship and Immigration) (1997), 140 F.T.R. 126, 42 Imm. L.R. (2d) 84.
Mr. Poste and his family were denied permanent resident status because one of
his sons had a mental disability. The Minister held that the family would make
excessive demands on Canadian social services. Mr. Poste’s argument was that
the medical officer’s report relied upon by the decision maker was unreasonable
and that the visa officer was personally obliged to assess the reasonableness
of that opinion. According to Mr. Justice Cullen:
[60] The applicant was requested to provide
three expert reports to Immigration regarding Matthew. It seems that a decision
was made as to the medical inadmissibility of Matthew on the basis of only of
the reports submitted, which happened to be the least favourable report. There
is an indication that Immigration officials may have refused to consider the
two other reports requested of the applicant -- which reports were more
favourable to Matthew.
[61] When a government body
such as Immigration requests information of an individual, it is duty-bound to
consider that information when received. This is especially so in the case
where the information requested is in the form of expert opinion, which is
time-consuming as well as costly to acquire. If a decision is rendered that
runs contrary to the information requested, the decision maker must at least
make reference to the contrary information, and account for its rejection. To
be put bluntly, if Immigration requests certain medical reports, receives two
positive medical reports and one negative report, and a medical assessment is
rendered apparently solely on the negative medical report, reasons must be
given as to why the positive reports are absent from the analysis. Even if
the decision makers had considered the requested information, and had placed it
in the context of all the circumstances of the case, there is nothing on the
face of the record communicated to the applicant to indicate that consideration
of the favourable material was seriously made. There is no appearance of
justice. The decision makers thus failed the applicant in these basic duties of
procedural fairness and natural justice in this case.
[Emphasis added.]
CERTIFIED QUESTION
[33]
For
these reasons, the application for judicial review shall be granted.
[34]
The
Minister shall have until January 26, 2010 to propose a certified question
which would support an appeal to the Federal Court of Appeal, and Mr. Jafarian
shall have until February 2, 2010 to reply.
“Sean Harrington”
Ottawa,
Ontario
January
14, 2010
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