SUPREME
COURT OF CANADA
Citation: Hilewitz v.
Canada (Minister of Citizenship and Immigration); De Jong v. Canada
(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706, 2005 SCC 57
|
Date: 20051021
Docket: 30125,
30127
|
David Hilewitz
Appellant
v.
Minister of
Citizenship and Immigration
Respondent
‑ and ‑
Canadian
Association for Community Living and
Ethno-Racial
People with Disabilities Coalition
Interveners
and:
Dirk de Jong
Appellant
v.
Minister of
Citizenship and Immigration
Respondent
‑ and ‑
Canadian
Association for Community Living and
Ethno-Racial
People with Disabilities Coalition
Interveners
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella
and Charron JJ.
Reasons for
Judgment:
(paras. 1 to 72)
Dissenting
reasons:
(paras. 73 to 124)
|
Abella J. (McLachlin C.J. and Major, Bastarache, Binnie,
Fish and Charron JJ. concurring)
Deschamps J. (LeBel J.
concurring)
|
______________________________
Hilewitz v. Canada (Minister of
Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship
and Immigration), [2005] 2 S.C.R. 706, 2005 SCC 57
David Hilewitz Appellant
v.
Minister of Citizenship and Immigration Respondent
and
Dirk de Jong Appellant
v.
Minister of Citizenship and Immigration Respondent
and
Canadian Association for Community
Living and
Ethno‑Racial People with
Disabilities Coalition of Ontario Interveners
Indexed as: Hilewitz v. Canada (Minister of Citizenship and
Immigration); De Jong v. Canada (Minister of Citizenship and
Immigration)
Neutral citation: 2005 SCC 57.
File Nos.: 30125, 30127.
2005: February 8;
2005: October 21.
Present: McLachlin C.J. and
Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the federal court of appeal
Immigration — Exclusion and removal —
Inadmissible persons — Excessive demands on social services — Applicants qualified to be admitted to Canada under “investor” and “self‑employed” classes — Applications for admission denied because dependant child’s admission found to be reasonably expected to cause excessive
demands on social services — Whether applicants’ financial resources should be considered when determining if
admission of disabled children might reasonably be expected to cause excessive
demands on social services — Immigration Act,
R.S.C. 1985, c. I‑2, s. 19(1)(a)(ii).
H and J both applied for
permanent residence in their name and in that of their families’, respectively under the “investor” and “self‑employed” classes set out in the Immigration Act. These categories
require that applicants have substantial financial resources to qualify. Both
qualified, but were denied admission because the intellectual disability of a
dependent child “would cause or might reasonably be expected to cause excessive
demands on . . . social services” in Canada
(s. 19(1)(a)(ii) of the Immigration Act). On judicial
review, the judge in H’s case set aside the visa officer’s
decision, holding that financial circumstances were relevant in determining
whether the admission of H’s son to Canada would cause excessive demands on social services.
In J’s case, a different judge upheld the visa officer’s decision, concluding that the willingness of J to pay for private
schooling for his daughter was irrelevant in determining medical
inadmissibility under s. 19(1)(a)(ii) of the Act. The Federal
Court of Appeal restored the visa officer’s decision
in H’s case and dismissed J’s appeal. The court held
that non‑medical factors, such as the availability of family support and
the ability and willingness to pay, were not relevant considerations.
Held (LeBel and Deschamps JJ. dissenting): The appeals should be
allowed. The applications are referred to the Minister of Citizenship and
Immigration for reconsideration and redetermination by different visa officers.
Per McLachlin C.J. and Major, Bastarache, Binnie, Fish, Abella and
Charron JJ.: The personal circumstances of the families of disabled dependants
are relevant factors in a s. 19(1)(a)(ii) assessment of their
anticipated impact on social services. The “investor” and “self‑employed” categories under which H and J were qualified for admission to
Canada are, to a large extent, concerned with an individual’s assets. It seems somewhat incongruous to interpret the Immigration
Act in such a way that the very assets that qualify these individuals for
admission to Canada can simultaneously be ignored in determining the
admissibility of their disabled children. Moreover, a review of the more recent
legislative history indicates a legislative intention to shift from an approach
based on categorical exclusion, such as intellectual disability, to one calling
for individualized assessments. [39‑40] [53]
Section 19(1)(a)(ii)
calls for an assessment of whether an applicant’s health
would cause, or might reasonably be expected to cause excessive demands on
Canada’s social services. The term “excessive
demands” is inherently evaluative and comparative, and shows that medical
officers must assess likely demands on social services, not mere eligibility
for them. Since, without consideration of an applicant’s ability
and intention to pay for social services, it is impossible to determine
realistically what “demands” will be made, medical officers must necessarily take into account
both medical and non‑medical factors. This requires individualized
assessments. If medical officers consider the need for potential services
based only on the classification of the impairment rather than on its
particular manifestation, the assessment becomes generic rather than
individual. It is an approach which attaches a cost assessment to the
disability rather than to the individual. The clear legislative threshold is
reasonable probability, not remote possibility. It should be more likely than
not, based on a family’s circumstances, that the contingencies will materialize. The same
analysis is applicable to the new Immigration and Refugee Protection Act .
[54‑56] [58‑59]
Accordingly, H and J’s ability and willingness to attenuate the burden on the public
purse that would otherwise be created by their intellectually disabled children
are relevant factors in determining whether those children would reasonably be
expected to cause excessive demands on Canada’s social
services. Given their financial resources, H and J would likely be required to
contribute substantially, if not entirely, to any costs for social services
provided by the province of Ontario, where they wish to settle. The fears
articulated in the rejections of the applications, such as possible bankruptcy,
mobility, school closure or parental death, represent contingencies that could
be raised in relation to any applicant. Using such contingencies to negate a
family’s genuine ability and willingness to absorb some of the burdens
created by a child’s disabilities anchors an applicant’s
admissibility to conjecture, not reality. In both cases, the visa officers
erred by confirming the medical officers’ refusal
to account for the potential impact of the families’
willingness to assist. Moreover, their failure to read the families’ responses to the “fairness letters” sent to them meant that their decisions were not based on all the
relevant available information. [57] [61] [68‑70]
Per LeBel and Deschamps JJ. (dissenting): The wealth of an applicant is
not a factor to be considered by medical officers under s. 19(1)(a)(ii)
of the Immigration Act. To adopt an overly expansive view of
s. 19(1)(a)(ii) would run counter to the text, history and purpose
of the legislation and is inconsistent with the scheme of Part III of the Act,
which concerns exclusion from entry into Canada. [76] [85]
A plain reading of the
words of the provision suggests that the determination of excessive demands is
made by reference to the nature, severity and probable duration of the medical
condition itself. Rather than exclude persons on the basis of the condition
alone, Parliament intended the medical officer to look at how the condition
affects the individual. This does not, however, mean looking at criteria that
have nothing to do with the medical condition. If Parliament had wanted to
direct medical officers to consider family support or wealth, it had ample
opportunity to do so when revising the rules in 1976. The subsequent statute,
regulations and internal guidelines all point to the applicant’s medical condition alone and not to his or her wealth. Moreover,
the fact that Parliament expressly considered whether family support was
relevant to excessive demands assessments and chose not to include it in the Immigration
Act and the regulations strongly suggests that Parliament did not intend
wealth to be a relevant factor. Lastly, while many of the predecessors to
s. 19(1)(a)(ii) specifically provided that family support and
wealth were relevant to the question of admissibility, no such provision is
made in s. 19(1)(a)(ii). [90‑91] [95‑97] [104]
The process established
by the regulations and guidelines reflects an attempt to integrate as many
objective factors as possible into the assessment in order to ensure that all
applicants receive fair and equal treatment. To add to the medical officers’ responsibilities the burden of inquiring into the ability and
desire of the applicant’s family and community to provide financial and other support would
render their task even more difficult. The more a medical officer’s analysis is tied to highly subjective non‑medical factors,
the more likely it is that the medical officer will be drawn into assessments
outside his or her area of expertise. Such an approach may produce
inconsistent results for similarly situated applicants and thwart efforts to
treat all applicants equally, and would result in longer delays. Finally,
without the ability to enforce the promise to pay for social services, there is
no way to ensure that the family will in fact mitigate the excessive demands
placed on public funding. [103] [109] [111‑112]
Although it may seem
incongruous to admit investors, entrepreneurs and self‑employed persons
on the basis of their financial means and then ignore those same assets when
making a determination of excessive demands, this is what Parliament has done.
It has chosen to use criteria for the decision on medical inadmissibility that
are distinct from those used for the selection as business or economic
applicants. Business or economic applicants are evaluated on the basis of
their potential contribution to Canada; however, in order to avoid undermining
their potential contribution, these applicants must not fall into an
inadmissible class of persons. The applicants can still be admitted on the
basis of their wealth, but this is left to the discretion of the Minister who
can issue a permit despite the medical inadmissibility. The Minister is in a
better position to determine whether the special circumstances of a case
warrant a departure from the rules. This also ensures that, because of their
potential burden on Canadian health and social services, these exceptional
cases are decided by a single authority. [105]
In this case, the medical
officers considered all the appropriate factors and correctly concluded on a
balance of probabilities that the admission of the applicants would create
excessive demands on social services. [120‑121]
Cases Cited
By Abella J.
Approved: Poste v. Canada (Minister of Citizenship and Immigration) (1997),
140 F.T.R. 126; Wong v. Canada (Minister of Citizenship and Immigration)
(1998), 141 F.T.R. 62; Wong v. Canada (Minister of Citizenship and
Immigration) (2002), 220 F.T.R. 137, 2002 FCT 625; Simmons v. Canada
(Minister of Citizenship and Immigration) (2002), 221 F.T.R. 303, 2002 FCT
866; Karmali v. Canada (Minister of Citizenship and Immigration) (2003),
230 F.T.R. 140, 2003 FCT 358; referred to: Gao v. Canada (Minister
of Employment & Immigration) (1993), 14 Admin. L.R. (2d) 233; Deol
v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 301,
2002 FCA 271; Hiramen v. Minister of Employment and Immigration (1986),
65 N.R. 67; Badwal v. Canada (Minister of Employment & Immigration)
(1989), 64 D.L.R. (4th) 561.
By Deschamps J.
(dissenting)
Rizzo & Rizzo
Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell
ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Ismaili
v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139;
F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35; Pushpanathan v. Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Fei v.
Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274.
Statutes and
Regulations Cited
Act respecting Emigrants and Quarantine,
C.S.C. 1859, c. 40, s. 10(2).
Act
respecting Immigration and Immigrants, S.C. 1869,
c. 10.
Act
to amend the Immigration Act, S.C. 1919,
c. 25, s. 3.
Developmental
Services Act, R.S.O. 1990, c. D.11.
Immigration
Act, R.S.C. 1886, c. 65.
Immigration
Act, R.S.C. 1906, c. 93, s. 26.
Immigration
Act, R.S.C. 1927, c. 93, s. 3.
Immigration
Act, R.S.C. 1952, c. 325.
Immigration
Act, R.S.C. 1985, c. I‑2, ss. 3(a),
(b), (c), (g), (h), (i), 5(2), 6(2), (4),
(5), 9(2), (4), 11(1), 19(1)(a), (b), 27(1)(b), (3), (4),
37(1), 118.
Immigration
Act, S.C. 1910, c. 27, s. 3.
Immigration
Act, 1976, S.C. 1976-77, c. 52.
Immigration
and Refugee Protection Act, S.C. 2001, c. 27,
ss. 3(1) (b), (c), (d), 3(2) , 38(1) .
Immigration
and Refugee Protection Regulations, SOR/2002‑227,
s. 34.
Immigration
Regulations, 1978, SOR/78‑172, ss. 2(1),
4, 5, 6, 6.11 [ad. SOR/93‑412, s. 3], 7, 8(1)(b), (c),
8(4), 9(1), 22, 23(1), 23.1 [ad. SOR/93‑44, s. 17].
R.R.O.
1990, Reg. 272 (Developmental Services Act), ss. 15, 16.
Authors Cited
Canada.
Department of Manpower and Immigration. White Paper on Immigration.
Ottawa: Queen’s Printer, 1966.
Canada.
Health and Welfare. Medical Services Branch. Medical Officer’s Handbook: Immigration Medical Service,
Section III, “Assessing System and Method”. Ottawa: Health and Welfare
Canada, 1992 (loose-leaf amended October 1995).
Canada.
House of Commons. Minutes of Proceedings and Evidence of the Standing
Committee on Labour, Manpower and Immigration, Issue No. 11, April 5,
1977, pp. 11A:42 to 11A:43.
Canada.
House of Commons. Minutes of Proceedings and Evidence of the Standing
Committee on Labour, Manpower and Immigration, Issue No. 42,
June 28, 1977, p. 42:76.
Driedger,
Elmer A. Construction of Statutes, 2nd ed. Toronto:
Butterworths, 1983.
Kelley,
Ninette, and Michael Trebilcock. The Making of the Mosaic: A History of
Canadian Immigration Policy. Toronto: University of Toronto Press, 1998.
APPEAL from a judgment of
the Federal Court of Appeal (Linden, Evans and Malone JJ.A.), [2004] 1 F.C.R.
696, 234 D.L.R. (4th) 439, 312 N.R. 201, 9 Admin. L.R. (4th) 79, 245 F.T.R.
319, [2003] F.C.J. No. 1677 (QL), 2003 FCA 420, setting aside a decision of
Gibson J., [2003] 2 F.C. 3, 221 F.T.R. 213, 26 Imm. L.R. (3d) 23, [2002] F.C.J.
No. 1121 (QL), 2002 FCT 844. Appeal allowed, LeBel and Deschamps JJ.
dissenting.
APPEAL from a judgment of
the Federal Court of Appeal (Linden, Evans and Malone JJ.A.) (2003), 315
N.R. 59, 36 Imm. L.R. (3d) 174, 245 F.T.R. 320, [2003] F.C.J. No. 1679 (QL),
2003 FCA 422, affirming a decision of Pinard J. (2002), 224 F.T.R. 151, 26 Imm.
L.R. (3d) 42, [2002] F.C.J. No. 1573 (QL), 2002 FCT 1165. Appeal allowed,
LeBel and Deschamps JJ. dissenting.
Cecil L.
Rotenberg, Q.C., Andrew Z. Wlodyka, Nicholas
McHaffie, Howard Greenberg, Inna Kogan, Rachel Rotenberg and
Mario D. Bellissimo, for the appellants.
Urszula Kaczmarczyk and Michael H. Morris, for the respondent.
Ena Chadha and Dianne Wintermute, for the interveners.
The judgment of McLachlin
C.J. and Major, Bastarache, Binnie, Fish, Abella and Charron JJ. was delivered
by
1
Abella J. — These appeals involve the
interpretation of a provision of the Immigration Act, R.S.C. 1985, c.
I-2, denying admission to persons who would cause “excessive demands” on Canadian social services as a result of a
health impairment. David Hilewitz from South Africa and Dirk de Jong from
the Netherlands applied for permanent residence under the “investor” and “self-employed” classes set out in the
legislation. These categories require that applicants have substantial
financial resources to qualify.
2
Both Mr. Hilewitz and Mr. de Jong qualified. Both applicants, however,
were denied admission by the Minister of Citizenship and Immigration because of
the intellectual disability of a dependent child.
3
The operative provision at the time the applications were refused was s.
19(1)(a)(ii) of the 1985 Immigration Act, since repealed and
replaced by a substantially similar provision, s. 38(1) (c) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 . Section 19(1) (a)(ii)
stated:
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,
.
. .
(ii) their admission would cause or might
reasonably be expected to cause excessive demands on health or social services;
4
Although s. 19(1)(a)(ii) referred to the impact of an individual’s disabilities on either
health or social services, these appeals are restricted to social
services.
5
Synoptically, the process followed in making the determinations at issue
was the following. Pursuant to s. 11(1) of the Immigration Act, every
applicant was required to undergo a special examination by a qualified medical
officer (Immigration Act, ss. 9(4) and 11(1); Immigration
Regulations, 1978, SOR/78-172, s. 9(1)). The medical officer’s opinion must be concurred
in by at least one other medical officer (s. 19(1)(a)).
6
After assessing an applicant’s
medical condition, the medical officers prepared a “medical notification” giving the visa officer their opinions along
with the applicant’s
medical profile. The visa officer relied on this information to issue a
decision on the applicant’s
admissibility. A visa would not be issued to the principal applicant if an
accompanying dependant was found to be medically inadmissible.
7
The issue in these appeals is whether the financial resources that otherwise
qualified these two families for admission to this country could nonetheless be
disregarded in assessing the impact of their children’s disabilities on Canada’s social services.
I. Background
A. The Hilewitz Family
8
David Ralph Hilewitz, a citizen of South Africa, applied for permanent
residence in Canada in 1999 under the “investor” category. He is a
successful South African businessman. The “investor” category requires an
applicant to have substantial business experience and a net worth of at least
$800,000. The applicant must also commit to making a significant financial
investment in Canada (Immigration Regulations, 1978,
s. 2(1)). Mr. Hilewitz satisfied these requirements.
9
In his application, Mr. Hilewitz included his dependent wife, Jean
Susan Hilewitz, and two sons. Their younger son, Gavin Martin Hilewitz, was
born in 1982 with intellectual disabilities. The family hoped to settle in the
Toronto area.
10
While in South Africa, the Hilewitzes helped establish a private school
for children with developmental disabilities, investing their own money and
raising funds from others. They never resorted to publicly funded services for
Gavin in South Africa, and expressed an intention to send him to a private
school in Toronto.
11
On December 7, 1999, a medical officer, Dr. J. Larzarus, examined
Gavin Hilewitz, who was then 17 years old, and issued a medical
notification. The notification was concurred in by Dr. Jacques Saint-Germain,
another medical officer. The notification outlined Gavin’s intellectual disabilities
and concluded that he was inadmissible under s. 19(1)(a)(ii) of the
Immigration Act because of his and his family’s entitlement to social services:
This 17 year old dependent applicant has
developmental delay and is functioning at the level of a child aged 8 years. He
has delayed comprehension and reading skills as well as difficulty problem
solving. He is easily distracted and impulsive. He is currently attending a
special school for pupils with delayed scholastic ability.
If admitted to Canada, [Gavin] and his
supporting family, where applicable, will be eligible for, and will likely
require, a variety of social services such as further special education,
continuous training to enhance his ability to carry out the activities of daily
living and attain his full potential, respite care for parents, and ultimately
vocational training. These requirements are far in excess of those of an
average Canadian and will place an excessive demand on Canadian social
services. [Emphasis added.]
12
Subsequently, on December 9, 1999, Mr. Hilewitz had an interview with
the visa officer, Virginia Hughes. They discussed Gavin’s disability, the private school Mr. Hilewitz
had founded for Gavin in South Africa and the arrangements made for Gavin’s admission to a private
school in Canada.
13
Ms. Hughes found Mr. Hilewitz to be credible and felt that he would
make a valuable contribution to Canada.
14
On March 22, 2000, pursuant to the requirements set out in Gao v.
Canada (Minister of Employment and Immigration) (1993), 14 Admin. L.R. (2d)
233 (F.C.T.D.), Ms. Hughes sent Mr. Hilewitz what is known as a “fairness letter”, advising him that
questions had been raised regarding his application and giving him an
opportunity to submit further relevant evidence before a final decision was
made. Citing the medical notification of Dr. Larzarus, Ms. Hughes warned
that since the admission of his son could reasonably be expected to cause
excessive demands on Canada’s
social services, Mr. Hilewitz’s
application for permanent residence was at risk of being refused.
15
Mr. Hilewitz responded by letter to Ms. Hughes on May 10, 2000. He did
not dispute the medical officer’s
opinion that Gavin had intellectual disabilities, but countered with
information that in some respects Gavin functioned with a maturity that was
well above the eight-year-old level attributed to him, and enjoyed many
leisure and social activities appropriate for his age. Mr. Hilewitz pointed out
that Gavin had never used publicly funded schooling in South Africa and that
the family had helped establish a special school for him and others with
similar disabilities.
16
Moreover, noting Gavin’s
affinity and competence for operating computers, Mr. Hilewitz expressed his
intention to establish or purchase a business such as a video game franchise as
one of his Canadian business interests in order to ensure Gavin’s employment. “As demonstrated,” he wrote, “we have never been a drain
on any institutional or social service structure to support our son and cannot
conceivably ever contemplate any change to this ethos in the future.” He confirmed that he was
financially able and willing to send Gavin to a private school and had, in
fact, already identified a suitable one in Toronto. Included in his letter
were brief reports from a clinical psychologist and a doctor who had known
Gavin for many years, as well as extensive material relating both to his
schooling and his educational progress.
17
Ms. Hughes was of the view that it was not part of her mandate to read
Mr. Hilewitz’s
response. His letter was therefore sent directly to and reviewed by
Dr. Saint-Germain, the medical officer who had concurred in
Dr. Larzarus’
medical notification. On May 23, 2000, Dr. Saint-Germain issued a short note,
concurred in by Dr. Walter G. Waddell, concluding that the new
information provided by Mr. Hilewitz “does
not modify the current assessment”
of Gavin’s medical
inadmissibility.
18
On September 15, 2000, Ms. Hughes, relying on this medical opinion and
without reading Mr. Hilewitz’s
May 10 response, refused his application for a visa:
I have now completed the assessment of your
application [for permanent residence]. I regret to inform you that your
dependant son, Gavin Martin Hilewitz, comes within the inadmissible class of
persons described in paragraph 19(1)(a) of the Immigration Act, 1976, in that
he is suffering from developmental delay as a result of which, in the opinion
of a medical officer concurred in by at least one other medical officer, his
admission would cause or might reasonably be expected to cause an excessive
demand on Canadian social services.
Since one of your dependants comes within
an inadmissible class as described above . . . I am unable to issue an
immigrant visa to you. Therefore, your application has been refused.
I have also considered possible
humanitarian and compassionate factors but have determined that there are
insufficient grounds to warrant special consideration. According to your
application you have no relatives in Canada. You have lived in your native
country of South Africa your entire life and I know of no reason that would
prevent you from doing so in the future.
19
However, since she found Mr. Hilewitz to be credible and likely to make
a significant economic contribution to Canada, Ms. Hughes recommended that a
discretionary Minister’s
permit be issued so that he and his family could enter and remain in Canada for
up to three years, but without access to the social services available only to
permanent residents. For reasons that are unclear from the record, no permit
was ever authorized for Mr. Hilewitz.
20
Mr. Hilewitz applied for judicial review of Ms. Hughes’ decision. In the Federal
Court, Trial Division, Gibson J. considered whether an applicant’s financial circumstances
were relevant in determining whether his or her admission to Canada would cause
excessive demands on social services ([2003] 2 F.C. 3, 2002 FCT 844).
21
After reviewing the jurisprudence of the Federal Court, in particular Deol
v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 301,
2002 FCA 271, Gibson J. was of the view that while parental resources and
willingness to pay may be irrelevant in determining whether a disabled child’s admission to Canada is
likely to cause excessive demands on health services, the same cannot be
said of social services which are funded and delivered on a different
basis. In his view, therefore, the medical officer ought to have considered
Mr. Hilewitz’s
ability and willingness to contribute to whatever social services his son might
require.
22
He also concluded that the visa officer ought to have read and taken
Mr. Hilewitz’s
response into account before making her decision, rather than basing her
opinion exclusively on the medical officer’s
recommendation.
23
Gibson J. therefore set aside the visa officer’s decision and referred the Hilewitz
application for permanent residence back to the Minister for redetermination by
a different officer. The Minister appealed.
24
At the Federal Court of Appeal, Evans J.A., writing for a unanimous
court (Linden and Malone JJ.A.), agreed with Gibson J. that the Hilewitz family’s situation was
distinguishable from that in Deol, a case where only health, not
social services, were at issue ([2004] 1 F.C.R. 696, 2003 FCA 420). After an
extensive review of the Federal Court jurisprudence, Evans J.A. noted that in
the majority of those cases, non-medical factors, such as the availability of
family support and the ability and willingness of the family to pay, were held
to be relevant considerations in determining whether “excessive demands” would be made on Canada’s social services.
25
It was a view he did not share. He found that the Minister’s denial of
Mr. Hilewitz’s
application reflected what Evans J.A. characterized as a risk-averse policy
which takes into account the contingency that a family’s financial situation could deteriorate,
thereby creating a burden on Canadian social services.
26
He allowed the appeal and restored the decision of the visa officer
denying Mr. Hilewitz’s
application for a visa.
B. The de Jong Family
27
In 1996, Dirk Cornelis Jan de Jong, a Dutch citizen, applied for
permanent residence in the “self‑employed” category. This category
permits applicants to enter Canada if they demonstrate that they can
successfully establish or purchase a business which would create jobs for
themselves and make a significant contribution to Canada’s economy or cultural life (Immigration
Regulations, 1978, s. 2(1)). At the time of his application, Mr. de
Jong owned a dairy farm in the Netherlands and expressed an intention, if
admitted to Canada, to buy a similar kind of farm in Ontario.
28
Mr. de Jong’s
application included his wife, Maaike de Jong, and their six dependent
children. One of their daughters, Dirkje, born in 1988, is intellectually
disabled.
29
Mr. de Jong had visited Canada in 1996 and selected a farm in the
Rehoboth Christian community in Ontario as a possible home. At the time of his
application, his stated intention was to send all the children, including
Dirkje, who was then nine years old, to the private Rehoboth Christian School
in Norwich. The school had agreed to accept all the de Jong children.
30
On February 6, 1997, a medical officer, Dr. James Beltran, concluded
that Dirkje had “developmental
delay” and was
inadmissible under s. 19(1)(a)(ii) of the Immigration Act because
her requirement for specialized education was “in
excess of the requirements for her peer group and therefore represents an
excessive demand on social services”.
Dr. Beltran’s opinion
was concurred in by Dr. George Giovinazzo on June 23, 1997. Their conclusion
was confirmed on July 30, 1998, in a letter from the visa officer, Eliane
Wassler, rejecting Mr. de Jong’s
application for permanent residence. Neither Dr. Beltran nor Ms. Wassler
considered the additional information submitted by the de Jongs to be relevant,
namely that Dirkje had been accepted by a private church-run school, making it
unlikely that she would have to rely on publicly funded special education.
31
Mr. de Jong’s
application to the Federal Court for judicial review was allowed by Reed J.,
who, in her order dated April 29, 1999, directed that Mr. de Jong’s application be
reconsidered by a different visa officer. She specified that in assessing the
application under s. 19(1)(a)(ii), the Minister was
required to consider all of the individual’s particular circumstances,
as well as the personal circumstances of the Applicant and his family,
including in this case the Applicant’s
ability and willingness to provide for his child’s
education through private schooling.
32
A new medical officer, Dr. Sylvain Bertrand, reviewed Dirkje’s situation. In a letter
dated August 13, 1999 to Mr. de Jong’s
counsel, Dr. Bertrand speculated that as Dirkje grew older, she would require
vocational training and life-skills training, as well as respite care for her
family.
33
Dr. Bertrand also wrote that he was compelled to take into account that
Dirkje might not remain in private school and that the family might move or
experience economic hardship, even though none of these possibilities were
currently likely. His specific speculative concerns were expressed as follows:
I cannot assume that Dirkje will remain
in this school for the next 11 years, and if she transfers into the public
school system, the costs of her specialized education will be excessive.
This private school may close, the family
may decide to move towns, cities or provinces, the family may fall upon bad
economic times, they may decide that their limited financial resources must be
allocated on items other than this child’s
schooling, etc. While you maintain none of these possibilities are probable, in
my view, I would be remiss in my responsibilities under the Immigration Act if
I did not take them into account. [Emphasis in original.]
34
Mr. de Jong’s
counsel responded by letter on September 8, 1999, strenuously objecting to Dr.
Bertrand’s failure to
give effect to the specific directions in the order of Reed J. Nevertheless,
on November 10, 1999, Dr. Bertrand issued a medical notification, concurred in
by Dr. Jacques Saint-Germain, concluding that Dirkje was inadmissible. In a
letter of the same date to Mr. de Jong’s
counsel, Dr. Bertrand defended his decision and reiterated the rationale given
in his earlier letter of August 13, 1999.
35
A new visa officer, J. W. André Valotaire, reassessed
Mr. de Jong’s
visa application based on Dr. Bertrand’s
opinion. It appears that he did not review Mr. de Jong’s September 8 response and, relying
exclusively on the medical opinion, rejected the de Jong application on
November 17, 1999.
36
Once again, Mr. de Jong applied to the Federal Court for judicial
review. Pinard J. expanded the analysis in Deol and concluded that a
family’s financial
resources and willingness to support a disabled dependent were irrelevant not
only in determining whether excessive demands would be placed on health
services, but also in assessing the potential demands on social services
((2002), 224 F.T.R. 151, 2002 FCT 1165). Unlike Reed J., in his view the
willingness of the de Jong family to pay for private schooling was irrelevant
in determining medical inadmissibility under s. 19(1)(a)(ii). He
dismissed the application.
37
Mr. de Jong appealed to the Federal Court of Appeal. The de Jong and
Hilewitz appeals were heard consecutively. Evans J.A., relying on his reasons
in the Hilewitz case, dismissed Mr. de Jong’s appeal ((2003), 315 N.R. 59, 2003 FCA 422).
II. Analysis
38
The issue in these appeals is whether the resources of the Hilewitz and
the de Jong families should be disregarded in determining whether their
disabled children would create an undue burden on Canada’s social services.
39
It is important to recognize at the outset that we are dealing with
individuals who qualify for admission to Canada in the “investor”
and “self-employed” categories. These
categories are, to a large extent, concerned with an individual’s assets. While there is
no doubt that most immigrants, regardless of the state of their resources when
they come to Canada, eventually contribute to this country in a variety of
ways, the categories applicable to the applicants in these appeals reflect an
aspect of immigration policy which admits individuals expected to make a more
immediate substantial economic contribution.
40
It seems to me somewhat incongruous to interpret the legislation in such
a way that the very assets that qualify investors and self-employed individuals
for admission to Canada can simultaneously be ignored in determining the
admissibility of their disabled children. I agree with those on the Federal
Court who, like Justices Reed and Gibson, have held that the personal
circumstances of the families of disabled dependants are relevant factors in a
s. 19(1)(a)(ii) assessment of their anticipated impact on social
services. See Poste v. Canada (Minister of Citizenship and Immigration) (1997),
140 F.T.R. 126, per Cullen J.; Wong v. Canada (Minister of
Citizenship and Immigration) (1998), 141 F.T.R. 62, per Reed J.; Wong
v. Canada (Minister of Citizenship and Immigration) (2002), 220 F.T.R. 137,
2002 FCT 625, per McKeown J.; Simmons v. Canada (Minister of
Citizenship and Immigration) (2002), 221 F.T.R. 303, 2002 FCT 866, per
Martineau J.; Karmali v. Canada (Minister of Citizenship and Immigration) (2003),
230 F.T.R. 140, 2003 FCT 358, per O’Keefe J.
41 41 The financial impact of a
potential immigrant’s
health impairments is not a new legislative preoccupation in Canada, but its
formulation has changed over time. Among the first statutes to deal with the
admission of persons with physical or mental disabilities who might impose
financial burdens on the state and charitable institutions was An Act
respecting Emigrants and Quarantine, C.S.C. 1859, c. 40. Unlike the
current system of pre-travel immigration approval, ships then coming to Canada
were quarantined on arrival and their passengers inspected by a medical
superintendent. Section 10(2) of the 1859 Act directed that the authorities be
notified of the presence among the passengers of persons likely to permanently
become a public charge, including
any Lunatic, Idiotic, Deaf and Dumb,
Blind or Infirm Person, not belonging to any Emigrant family, [if] such person
is, in the opinion of the Medical Superintendent, likely to become permanently
a public charge, the Medical Superintendent shall forthwith report the same
. . . to the Collector of Customs . . . who shall . . . require the Master of
the Vessel . . . to execute . . . a Bond to Her Majesty in the sum
of three hundred dollars for every such Passenger so specially reported . . .
42 42 The ban was not absolute.
Persons with disabilities who belonged to an “Emigrant
family” or were not “likely to become permanently
a public charge” were
permitted entry. Substantially the same provision was contained in An Act
respecting Immigration and Immigrants (S.C. 1869, c. 10) and the Immigration
Act of 1886 (R.S.C. 1886, c. 65).
43 43 This approach to the admission
of persons with disabilities was continued in s. 26 of the 1906 legislation (Immigration
Act, R.S.C. 1906, c. 93), whereby entry was possible if the disabled person
was part of a family with the ability and willingness to provide satisfactory
and permanent financial security:
No immigrant shall be
permitted to land in Canada, who is feeble-minded, an idiot, or an epileptic,
or who is insane, or has had an attack of insanity within five years; nor shall
any immigrant be so landed who is deaf and dumb, or dumb, blind or infirm, unless
he belongs to a family accompanying him or already in Canada and which gives
security, satisfactory to the Minister, and in conformity with the
regulations in that behalf, if any, for his permanent support if
admitted into Canada.
41
In 1910, a significant change occurred with the introduction of “prohibited classes” (Immigration Act,
S.C. 1910, c. 27). Section 3 of this Act stated:
3. No immigrant, passenger, or other person, unless he is a Canadian
citizen, or has Canadian domicile, shall be permitted to land in Canada, or in
case of having landed in or entered Canada shall be permitted to remain
therein, who belongs to any of the following classes, hereinafter called “prohibited classes”, —
(a)
idiots, imbeciles, feeble-minded persons, epileptics, insane persons, and persons
who have been insane within five years previous;
(b)
persons afflicted with any loathsome disease, or with a disease which is
contagious or infectious, or which may become dangerous to the public health,
whether such persons intend to settle in Canada or only to pass through Canada
in transit to some other country: . . .
(c)
immigrants who are dumb, blind, or otherwise physically defective, unless in
the opinion of a Board of Inquiry or officer acting as such they have
sufficient money, or have such profession, occupation, trade, employment or
other legitimate mode of earning a living that they are not liable to become a
public charge or unless they belong to a family accompanying them or already in
Canada and which gives security satisfactory to the Minister against such
immigrants becoming a public charge;
45 45 The 1910 Act
departed from previous legislation by distinguishing between those with mental
and physical disabilities. There was an absolute prohibition on admission for
those with mental disabilities. Individuals who were “physically
defective”, however, could be admitted with evidence of earning capacity or
family support.
46 46 In 1927, s. 3
of the Immigration Act, R.S.C. 1927, c. 93, reproduced the 1919
amendment (S.C. 1919, c. 25, s. 3) extending the list of prohibited
classes to include those who were either “mentally or
physically defective to such a degree as to affect their ability to earn a
living”.
47 47 Notably, for
the first time, even those who could demonstrate family support or financial
resources to ensure that they would not become public charges were denied the
possibility of entry. This absolute ban was continued in the Immigration Act,
R.S.C. 1952, c. 325.
48 48 As is evident
from this brief history, the evolution of immigration policy in Canada began
half-way through the 19th century with an expansive approach designed to
attract as many immigrants as possible. Almost a century later, it focused on
an immigrant’s particular qualities, often resulting in the application of
exclusionary euphemistic designations that concealed prejudices about, among
other characteristics, disability (see N. Kelley and M. Trebilcock, The
Making of the Mosaic: A History of Canadian Immigration Policy (1998)).
49 49 The rigidity
of the “prohibited classes” provisions of the early 20th century eventually inspired concerns
that such policies were overly restrictive. In releasing the 1966 White
Paper on Immigration, the Honourable Jean Marchand, then Minister of
Manpower and Immigration, emphasized that it was “neither
practical nor realistic” to block all those who fell within a prohibited class of the Immigration
Act, since many posed no real risk to the country (p. 24). The White
Paper urged instead that the policy exclude only those who had no family
support or who posed an actual danger to public health or safety. It
recommended a return to the original policy of permitting entry to persons with
mental or physical disabilities if they had family assistance.
50 50 In line with
the views expressed in the 1966 White Paper, Parliament enacted the Immigration
Act, 1976, S.C. 1976-77, c. 52. In it, an “excessive demands” standard replaced the wholesale rejection of “prohibited classes” for those who were mentally and physically disabled. Section 19(1)
in the 1985 Act under which these appeals were argued is identical to the “excessive demands” provision in the 1976 legislation.
51 51 Regulations
pursuant to the 1976 Act were first proposed at a 1977 meeting of the Standing
Committee on Labour, Manpower and Immigration. A document submitted to the
Committee by the Honorable Bud Cullen, the Minister of Manpower and
Immigration, entitled Factors to be Considered by Medical Officers,
sought to illuminate the more embracing intention behind the new medical
inadmissibility rules:
Intent and Possible
Content of the Regulations
. . .
– To ensure that medical officers consider all the factors, but only the factors relevant to the determination of whether a
person constitutes an actual or potential danger to Canadian health or safety
or will excessively burden health or social services.
. . .
– Such non-medical factors as the availability of private support and
the strains imposed by the individual’s
chosen occupation can enter realistically into the assessment of risk, so that
each decision will apply to the particular individual and not to a particular
disease, disability or other medical condition.
[Emphasis added.]
(House of Commons, Minutes
of Proceedings and Evidence of the Standing Committee on Labour, Manpower and
Immigration, Issue No. 11, April 5, 1977, at pp. 11A:42 to 11A:43)
52 52 In a later
meeting of the Committee, John L. Manion, then Deputy Minister of Manpower and
Immigration, answered the following question from a Committee member,
confirming an intended return to a policy incorporating the relevance of a
family’s circumstances in an “excessive demands” assessment:
Mr.
Caccia: All right, then. Dealing with Clause
19(1)(a)(ii) if the applicant or the parents will be able to prove that the
individual in question will be kept at home and will not place demands on
health or social services, what will be the position of the department?
Mr.
Manion: Well the position of the prospective
immigrant is that he would not be prohibited. They could be landed
rather than being brought in under minister’s permit.
If the family can provide assurances that the immigrant will not cause
excessive demands on health or social services, then the individual will be
admitted as a landed immigrant. [Emphasis added.]
(House of Commons, Minutes
of Proceedings and Evidence of the Standing Committee on Labour, Manpower and
Immigration, Issue No. 42, June 28, 1977, at p. 42:76)
53 53 This review of
the legislative history indicates a legislative intention to shift from an
approach based on categorical exclusion to one calling for individualized
assessments. This brings us back to the relevant portions of s. 19(1) of the
1985 Immigration Act, reproduced for ease of reference:
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,
.
. .
(ii) their admission would cause or might
reasonably be expected to cause excessive demands on health or social services;
42
Section 19(1)(a)(ii) calls for an assessment of whether an
applicant’s health
would cause or might reasonably be expected to cause excessive demands on
Canada’s social
services. The term “excessive
demands” is inherently
evaluative and comparative. Without consideration of an applicant’s ability and intention to
pay for social services, it is impossible to determine realistically what “demands” will be made on Ontario’s social services. The
wording of the provision shows that medical officers must assess likely demands
on social services, not mere eligibility for them.
43
To do so, the medical officers must necessarily take into account both
medical and non-medical factors, such as the availability, scarcity or cost of
publicly funded services, along with the willingness and ability of the
applicant or his or her family to pay for the services.
44
This, it seems to me, requires individualized assessments. It is
impossible, for example, to determine the “nature”, “severity”
or probable “duration” of a health impairment
without doing so in relation to a given individual. If the medical officer
considers the need for potential services based only on the classification
of the impairment rather than on its particular manifestation, the assessment
becomes generic rather than individual. It is an approach which attaches a
cost assessment to the disability rather than to the individual. This in turn
results in an automatic exclusion for all individuals with a particular
disability, even those whose admission would not cause, or would not reasonably
be expected to cause, excessive demands on public funds.
45
The issue is not whether Canada can design its immigration policy in a
way that reduces its exposure to undue burdens caused by potential immigrants.
Clearly it can. But here the legislation is being interpreted in a way that
impedes entry for all persons who are intellectually disabled,
regardless of family support or assistance, and regardless of whether they
pose any reasonable likelihood of excessively burdening Canada’s social services. Such an
interpretation, disregarding a family’s
actual circumstances, replaces the provision’s
purpose with a cookie-cutter methodology. Interpreting the legislation in this
way may be more efficient, but an efficiency argument is not a valid rebuttal
to justify avoiding the requirements of the legislation. The Act calls for
individual assessments. This means that the individual, not administrative
convenience, is the interpretive focus.
46
The clear legislative threshold provides that to be denied admission,
the individual’s
medical condition “would” or “might reasonably be expected” to result in an excessive
public burden. The threshold is reasonable probability, not remote
possibility. It should be more likely than not, based on a family’s circumstances, that the
contingencies will materialize. See Hiramen v. Minister of Employment and
Immigration (1986), 65 N.R. 67 (F.C.A.), and Badwal v. Canada (Minister
of Employment and Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.), both
by MacGuigan J.A.
59 The same analysis is applicable to the new Immigration
and Refugee Protection Act , which replaced most of the Immigration Act,
including s. 19. Medical inadmissibility, as previously stated, is now
determined under s. 38(1) (c) of the Immigration and Refugee
Protection Act , which states:
38. (1) A foreign national
is inadmissible on health grounds if their health condition
.
. .
(c) might reasonably be
expected to cause excessive demand on health or social services.
6 60 Under this new provision,
health impairments need no longer be those that “would
cause or might reasonably be expected to cause”
excessive demands. Only those that “might
reasonably be expected to cause”
them are relevant. I see no real significance to the omission of the words “would cause”. The wording is
sufficiently similar to preserve the requirement that any anticipated burdens
on the public purse be tethered to the realities, not the possibilities, of
applicants’
circumstances, including the extent of their families’ willingness and ability to contribute time
and resources.
6 61 It follows from the preceding
analysis that the Hilewitz and de Jong families’
ability and willingness to attenuate the burden on the public purse that would
otherwise be created by their intellectually disabled children are relevant
factors in determining whether those children might reasonably be expected to
cause excessive demands on Canada’s
social services.
6 62 The medical notifications
relating to both Gavin Hilewitz and Dirkje de Jong identified three social
services that might be required: special education, vocational training and
respite care. The Hilewitz and de Jong families both expressed an intention to
send their children to private schools with specialized education.
Mr. Hilewitz also expressed an intention to purchase a company which would
provide employment for Gavin, thus avoiding the need for vocational training.
Nevertheless, both applications were rejected on the basis that there would be
excessive demands on social services.
6 63 In the case of the Hilewitz
application, the affidavit of Dr. Waddell is revealing. He referred to the
excessive costs to the province of social services for Gavin without taking
into consideration the reasonableness of the likelihood that public funds would
be used. It is also clear from his cross-examination by Mr. Hilewitz’s counsel that Dr. Waddell
felt that once eligibility for social services was made out, a finding
of “excessive demands” would automatically follow
and there was no need to inquire into either the assistance to be provided by
the family or the likelihood of their reliance on publicly funded services.
6 64 A similar approach informed
the review by the visa officer. When, in cross-examination on her affidavit,
she was asked by Mr. Hilewitz’s
counsel for the reasons behind her rejection of his application, Ms. Hughes
explained that she had not looked at the additional information submitted by
Mr. Hilewitz in response to the fairness letter because she was not the person
forming the medical opinion. She felt her duty was to read only the medical
notification and to ensure that it pertained “to
the right person”.
She admitted that she had an obligation to assure herself that the medical
notification was reasonable, but felt there was no room for error because “there is no mechanism [by
which] a permanent resident can opt out of the eligibility for the medical or
social services”. She
made no distinction between health and social services.
6 65 She also raised concerns about
a number of future contingencies relating to possible economic reversals,
saying:
Right now Mr. Hilewitz is a very-well-to-do
man who cares very much about his son and has hereforeto defrayed the costs of
Gavin’s needs, and I’m sure that it is his
intention to do so in the future too, but you see, I don’t know what will happen in the future. It’s very hard to predict
about the future.
For example, if something
happened to the ability to pay, then would Gavin not need the social services
and avail himself of his eligibility? I mean, to my knowledge, there are no
legal provisions to limit Gavin’s
eligibility to social services based on his ability to pay if he were to be
admitted as a permanent resident. And although eligibility may not constitute
probability or use, it does constitute possibility, and that is what I think I
have to look at, you see. I think that is entirely reasonable.
Q. I see. That is kind
of a long answer, so let me go at this —
A. I can shorten it up
for you, sir. If Mr. Hilewitz, Heaven forbid, were to become insolvent, it is
reasonable to assume that Gavin would use existing public services.
6 66 Ms. Hughes recognized that it
was “highly unlikely” that the Hilewitzes would
make use of government-funded services, but was nevertheless concerned about
the mere possibility that such reliance would occur.
6 67 In the de Jong case, the
letter from Dr. Bertrand similarly shows that he too made no distinction
between health and social services, and refused to take into account the de
Jong family’s
resources and support in determining the potential burden on social services.
Instead, he raised the speculative possibility that the family would fall on
hard times and be forced to resort to publicly funded services. Despite the
clear directions in the order of Reed J., Dr. Bertrand persisted in insisting
that in making his determination, he had no authority in law to consider the
family’s financial
resources.
68 68 These views, it seems to me,
undermine and contradict the direction in the legislation that a person can
only be found to be ineligible for admission if his or her admission “would” or “might reasonably be expected” to cause excessive
demands. That means that something more than speculation must be applied to the
inquiry. The fears articulated in the rejections of the Hilewitz and de Jong
applications, such as possible bankruptcy, mobility, school closure or parental
death, represent contingencies that could be raised in relation to any
applicant. Using such contingencies to negate a family’s genuine ability and willingness to absorb
some of the burdens created by a child’s
disabilities anchors an applicant’s
admissibility to conjecture, not reality.
69 69 Social services are regulated
by provincial statutes. In Ontario, the province in which both the Hilewitz
and de Jong families have expressed their intention to live, the Developmental
Services Act, R.S.O. 1990, c. D.11, as amended, addresses some of the
facilities, assistance and services that may be provided to a person with
developmental disabilities. Section 15 of the regulations under the Developmental
Services Act Regulations, R.R.O. 1990, Reg. 272, states that a
determination will be made as to the ability of the applicant for “admission to [a] facility
and for assistance” to
contribute “to all or
any part of the cost”
thereof. Section 16 extends the same approach to applications for “services”. 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.
70 The medical
officers were obliged to consider all relevant factors, both medical and
non-medical, such as the availability of the services and the anticipated need
for them. In both cases, the visa officers erred by confirming the medical
officers’ refusal to
account for the potential impact of the families’
willingness to assist. Moreover, their failure to read the families’ responses to the fairness
letters sent to them by the medical officers meant that their decisions were
not based on all the relevant available information.
71 The parties
are in agreement that correctness is the applicable standard for reviewing the
visa officers’
decisions in these appeals. The error in the interpretation of s. 19(1)(a)(ii)
warrants the setting aside of those decisions.
III. Disposition
72 Both appeals
are allowed with costs throughout, and both applications are referred to the
Minister for reconsideration and redetermination by different visa officers in
accordance with these reasons.
The reasons of LeBel and
Deschamps JJ. were delivered by
Deschamps
J. (dissenting) —
I. Introduction
73
I agree with the majority that the issue in these appeals is whether
wealth can be considered when determining if the medical condition of an
immigration applicant’s
dependant might reasonably be expected to cause excessive demands on social
services. In the majority’s
view, it can. On the basis of statutory interpretation, however, I reach the
opposite conclusion. I would therefore dismiss the appeals.
74
Section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985,
c. I-2 (“IA”), is at the heart of the
debate. It reads:
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,
.
. .
(ii) their admission would cause or might
reasonably be expected to cause excessive demands on health or social services;
75
The IA has now been replaced by the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (“IRPA ”), which has a similar
provision dealing with medical inadmissibility (s. 38(1) (c)). The Court
of Appeal took the view that the IA continues to apply to the
proceedings; this position has not been challenged.
76
Section 19(1)(a)(ii) IA requires a medical officer to
assess the nature, severity and probable duration of an individual’s medical condition and to
consider what services the person is likely to require because of that
condition if admitted into Canada. The question is whether the demands on those
services are excessive in relation to the demands generated by other members of
Canadian society. The majority would read into the provision the possibility
that the likely demands on services can be reduced or eliminated where the
applicant is wealthy. In my view, this interpretation runs counter to the
history and purpose of the legislation and is inconsistent with the scheme of
Part III of the IA, which concerns exclusion from entry into Canada.
II. Facts
77
David Hilewitz and Dirk de Jong, along with their families, applied to
enter Canada in the late-1990s. Mr. Hilewitz sought admission as an investor
and Mr. de Jong as a self-employed person. Each of them was refused admission
because he had a child whose intellectual disability was found likely to cause
excessive demands on Canada’s
social services. Both children were diagnosed with delayed mental development
and were found to be eligible for and likely in need of special education,
counselling, occupational therapy or life skills training, respite care for
their parents and vocational training. In the case of Ms. de Jong, the medical
officer thought it was probable that she would also qualify for sheltered
workshop employment.
78
The facts in the appeals and the judgments below are thoroughly set out
by the majority and I will not repeat them save as is necessary for the
purposes of discussion.
III. Analysis
79
Canada has a long history of opening its doors to newcomers. The government
of Canada has recognized the importance of immigration, as is evidenced by an
extensive practice of admitting thousands of people into Canada each year in an
effort to increase the population and enrich the social and cultural fabric of
the country: s. 3(a) and (b) IA; s. 3(1)(b) IRPA .
80
However, as important as it is to bring new people into Canada,
Parliament has chosen to do so in a way that maintains and protects the health,
safety and good order of Canadian society: s. 3(i) IA. Admission
to Canada is and has always been subject to certain limitations (s. 5(2) IA).
The IA establishes classes of inadmissible persons. For reasons beyond
their control, the appellants belong to one of those classes and are
inadmissible.
81
This conclusion follows from an application of the modern contextual
approach to statutory interpretation described by E. A. Driedger in Construction
of Statutes (2nd ed. 1983), at p. 87:
Today there is only one
principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament.
See Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1
S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex,
[2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26.
82
In applying the modern contextual approach, I find it helpful to begin
by reviewing the history of the legislation. This provides the background for a
more focussed discussion, beginning with the overall scheme of the IA
and then moving to the words of the provision itself. In my view, the analysis
clearly leads to the conclusion that wealth is not a relevant consideration
under s. 19(1)(a)(ii). This position is reinforced when the broader
context of the medical inadmissibility assessment and the responsibilities of
medical officers are considered.
A. History
83
Legislative intent can be gleaned from a review of the various changes
to the statutory provision. Thus, it is useful to look at the way in which the
wealth of an individual has been included or excluded from immigration
legislation over the years.
84
One of the earliest immigration acts, An Act Respecting Emigrants and
Quarantine, C.S.C. 1859, c. 40, envisaged the admission to Canada of
persons with disabilities who were “likely
to become permanently a public charge”,
provided that security was given for their support (s. 10(2)). Thus, in the
19th century, the admission of persons to Canada was not as expansive as might
appear at first blush: even at a time where there was almost no social safety
net, the provision of financial security was required for persons suffering
from certain medical conditions who were likely to become public charges.
Admission criteria became even stricter in the Immigration Act, S.C.
1910, c. 27, and in its subsequent amendments (S.C. 1919, c. 25, s. 3) which
are found in the Immigration Act, R.S.C. 1927, c. 93. The 1910 Act
prohibited the entry of classes of persons on the basis of medical conditions
alone; there was an absolute ban on persons with mental disabilities: s. 3(a).
The subsequent amendments included a ban on persons who were “mentally or physically
defective to such a degree as to affect their ability to earn a living”: s. 3(m) of the 1927
Act.
85
The “excessive
demands” criterion — which determined
inadmissibility on the basis of demands placed on health or social services
rather than on the mere existence of a medical condition — was first introduced in
the Immigration Act, 1976, S.C. 1976-77, c. 52 (subsequently R.S.C.
1985, c. I-2). The new criterion certainly represented a more modern approach
to mental disability but did not, in itself, indicate a legislative departure
from a policy of protecting Canada’s
finite resources from those who might impose a burden on it. Although
inadmissibility on the basis of medical conditions alone and the provision on
giving security to the Minister had been abandoned, the new mechanism sought to
protect the integrity of health and social services. As such, to adopt an
overly expansive view of s. 19(1)(a)(ii) would be to depart from a long
history of selective admission policies. When wealth was to be considered by
the decision maker, the statutes said so clearly. Section 19(1)(a)(ii)
makes no such reference. In its historical context, this silence is
meaningful. This is particularly true when one considers that other provisions
of the IA explicitly refer to sponsorship and the provision of security
(see ss. 6(2) and (4) and 19(1)(b)).
B. The Immigration Act
86
Several broad objectives define Canadian immigration policy: reuniting
families, protecting refugees, and fostering a viable economy (s. 3(c),
(g) and (h) IA; ss. 3(1)(c) and (d), and 3(2) IRPA ).
These objectives are met through the recognition of different classes of
immigrants and the adoption of different admission criteria for each class: for
example, refugees (s. 7 of the Immigration Regulations, 1978, SOR/78-172
(“IR”)), family class immigrants
(s. 4 IR) and what are often referred to as business or economic
immigrants. This last class includes investors, self-employed persons and
entrepreneurs: see ss. 6.11 , 8(1) (b) and (c), and 8(4) IR. The
Hilewitz and de Jong applications belong to the last of these subclasses. The
financial resources and potential economic contribution of this class of
immigrants are central to the success of their applications. Wealth, at this
stage, is certainly of prime importance since the admission of these immigrants
is essential to meeting the statute’s
objective of fostering prosperity in Canada.
87
However, even if applicants meet the criteria for admission of a
particular class of immigrants, they may still be excluded on other grounds. A
visa will be issued by a visa officer only where it would not be contrary to
the IA to do so (s. 9(4)). Pursuant to s. 11(1) IA, every
immigrant must undergo a medical examination by a medical officer. The medical
officer must conduct an examination to determine whether the potential
immigrant falls within an inadmissible class. Section 19, which is found in
Part III — Exclusion
and Removal — sets out
the classes of inadmissible persons. I will discuss only medical
inadmissibility.
88
An obvious example of a medically inadmissible person is one who is
likely to be a threat to public safety. This exclusion is mentioned in s. 19(1)(a)(i):
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,
(i) they are or are likely to be a danger
to public health or to public safety, . . .
The chief responsibility of the medical officer in such
cases is to assess the danger to public health or safety. Wealth, regardless
of how rich the applicant is, is irrelevant to this assessment.
89
Under s. 19(1)(a)(ii), the medical officer makes the same type of
assessment. He or she must take the nature, severity and probable duration of
the potential immigrant’s
impairment into account in determining whether:
(ii) their admission would cause or might
reasonably be expected to cause excessive demands on health or social services.
90
A plain reading of the words of the provision suggests that the
determination of excessive demands is made by reference to the nature, severity
and probable duration of the medical condition itself. Rather than exclude
persons on the basis of the condition alone, Parliament intended the medical
officer to look at how the condition affects the individual. Nothing, however,
suggests that an applicant’s
wealth should be understood to be included in the words “nature, severity or probable duration”.
91
There is no question that the words of the enactment require an
individualized assessment in order to determine whether a particular person is
medically inadmissible. I agree with the majority that “[i]t is impossible . . . to determine the ʻnatureʼ,
ʻseverityʼ, or ʻprobable
durationʼ of a health
impairment without doing so in relation to a given individual” (para. 56). Looking at a
particular individual’s
situation does not, however, mean looking at criteria that have nothing to do
with the medical condition.
92
There is no indication anywhere that Parliament intended medical
officers to take wealth into account under s. 19(1)(a)(ii). For
instance, s. 22 IR lists factors to be considered by the medical officer
when making an “excessive
demands”
determination. These include reports made by medical practitioners, any effect
on potential employability and the availability of required health or social
services. None of the factors relate to the family’s ability or intent to pay for the requisite
services. Section 22 has been declared ultra vires (see Ismaili v.
Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139) as
applied to s. 19(1)(a)(ii) and has now been repealed, but it is
nevertheless informative insofar as it provides guidance with respect to
legislative intent.
93
Neither s. 38(1)(c) of the subsequent statute, the IRPA ,
nor its accompanying regulations (see s. 34 of the Immigration and Refugee
Protection Regulations, SOR/2002-227) make any reference to family support
or income; instead, s. 34 directs officers drawing conclusions about excessive
demands to consider only reports made by a health practitioner or medical
laboratory and any condition identified by the medical examination.
94
Likewise, the handbook given to medical officers to assist them in
making their assessments specifically directs them to ignore “civil factors, such as the
economic circumstances of the applicant”
and to focus “solely
on the medical considerations specified in the Act and Regulations”: Medical Officer’s Handbook: Immigration
Medical Service (1992 (loose-leaf amended in October 1995), Secion III, “Assessing System and Method”, para 3.1(11). While the
interpretation suggested by the handbook is certainly not binding, it is a “helpful confirmation of
what appears evident on the face of the Act”:
F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35, at para. 26.
95
Thus, the subsequent statute, regulations and internal guidelines all
point to the applicant’s
medical condition alone and not to his or her wealth. If Parliament had wanted
to direct medical officers to consider family support or wealth, it had ample
opportunity to do so when revising the rules. It is not for the courts to make
such revisions in a case where there is no constitutional challenge.
96
Furthermore, s. 19(1)(b) IA, which immediately follows the
medical inadmissibility provisions, specifically envisages that financial
arrangements can be made for persons who are unable or unwilling to care for
themselves:
(b) persons who there are reasonable
grounds to believe are or will be unable or unwilling to support themselves and
those persons who are dependent on them for care and support, except persons
who have satisfied an immigration officer that adequate arrangements, other
than those that involve social assistance, have been made for their care and
support;
Since special arrangements are explicitly considered under
s. 19(1)(b), it would be inconsistent to deem the same consideration
implicit in s. 19(1)(a)(ii).
97
Also instructive is the fact that Parliament considered whether family
support was relevant to an “excessive
demands” opinion and
chose not to include it in either the IA or the regulations. In a
document entitled “Factors
to be considered by medical officers”
(House of Commons, Minutes of Proceedings and Evidence of the Standing
Committee on Labour, Manpower and Immigration, Issue No. 11, April 5, 1977,
at pp. 11A:42 to 11A:43), which was submitted to the Standing Committee
considering the new Immigration Act, reference was made to “the availability of private
support” as a factor
that could be considered by medical officers. Excerpts from a discussion
between then Deputy Minister of Manpower and Immigration John L. Manion and a
committee member at a 1977 meeting of the Standing Committee (House of Commons,
Minutes of Proceedings and Evidence of the Standing Committee on Labour,
Manpower and Immigration, Issue No. 42, June 28, 1977, at p. 42:76),
provide additional evidence that Parliament considered the impact of family
support on the “excessive
demands” assessment.
Thus, leaving family support out was not an oversight but a considered
decision. In my view, the fact that Parliament expressly considered family
support but chose not to include it in either the provision or the accompanying
regulations strongly suggests that Parliament did not intend wealth to be a
relevant factor.
98
When the provision is looked at in its ordinary sense, together with the
legislative context (including the regulations and internal directives), it is
clear that Parliament intended that the inquiry into demands be tethered to the
applicant’s medical
condition.
C. The Broader Context
(1) Undertakings
99
In permitting the landing of persons with disabilities, the former Acts
often provided that security could be given to the Minister to guarantee that
the immigrant would not be a burden on Canada. Statements of intention with
respect to medical inadmissibility are not and never have been envisaged by the
immigration statutes.
100
Sections 23(1) and 23.1 IR, which applied to all applications for
immigration when the IA was in force, set out the terms and conditions
that can be imposed in respect of an immigrant. These include the time and
place at which the applicant must report for a medical examination,
surveillance or treatment, the minimum investment an investor class applicant
must make, and the times and places at which an immigrant must furnish evidence
of compliance with other terms and conditions. Additionally, an entrepreneur
class applicant is permitted entry into Canada on the basis of a promise to
control and manage a business in Canada that creates at least one employment
opportunity for a non-family member. The ability of the immigration officer to
accept such promises is provided for in s. 23.1(1) IR.
101
The usual mechanism for dealing with a person who fails to comply with
the terms and conditions placed on his or her visa is a removal order under s.
27(1)(b), (3) and (4) IA. Removal orders may also be issued
where a person was granted landing by reason of a misrepresentation of any
material fact or where a person fails to support him or herself or any
dependent member of his or her family in Canada. However, it is unlikely that
either mechanism would apply in a situation where a family has stated in good
faith that it will pay for social services such as special education.
102
Another way in which the Minister can enforce promises to avoid relying
on the public purse for support is through undertakings. An undertaking is
given to a government by a person sponsoring a member of the family class of
immigrants. The sponsor promises to make provision for the essential needs of
the member and the member’s
dependants for 10 years and to ensure that the member and his or her dependants
are not dependent on prescribed public payments (such as welfare): s. 2(1) IR.
Where the regulations provide that an undertaking may be given (ss. 5 and 6
IR) and that undertaking is breached, the amount pledged in the
undertaking is then converted into a debt owed to the Crown and may be
recovered in court (s. 118 IA). There is no provision in the IA
allowing an applicant to give an undertaking on behalf of a dependant.
103
Without the ability to enforce the promise to pay for social services,
there is no way to ensure that the family will in fact mitigate any excessive
demands placed on public funding.
104
As I have mentioned, many of the predecessors to s. 19(1)(a)(ii)
specifically provided that family support and wealth were relevant to the
question of admissibility. No such provision is made in s. 19(1)(a)(ii).
Section 19(1)(a)(ii) was not drafted in a vacuum; it is impossible to
ignore the context of widespread health and social safety nets which existed
when the provision came into force.
105
On a superficial analysis, it may seem incongruous to admit investors,
entrepreneurs and self-employed persons on the basis of their financial means
and then ignore those same assets when making a determination of excessive
demands. But this analysis would only be superficial. Parliament has used
criteria for the decision on medical inadmissibility that are different from
those used for the selection as business or economic applicant. It has made it
clear that two different enquiries are to be made. On the one hand, business or
economic applicants are evaluated on the basis of their potential contribution
to Canada; however, in order to avoid undermining their potential contribution,
these applicants must not fall into an inadmissible class of persons. Merging
the two enquiries is contrary to the scheme created by the IA. The applicant
can still be admitted on the basis of his or her wealth, but this is left to
the discretion of the Minister who can issue a permit despite the medical
inadmissibility (s. 37(1) IA). The Minister is in a better position to
determine whether the special circumstances of a case warrant a departure from
the rules. This also ensures that, because of their potential burden on
Canadian health and social services, these exceptional cases are decided by a
single authority.
(2) Practical Considerations
106
These appeals are concerned only with social services, not with health
services. The majority distinguishes social services from health services on
the basis that many social services involve some mechanism for recovering all
or part of the cost of the services from the user based on financial means.
This argument is unconvincing for reasons that Evans J.A. explained well in
the Court of Appeal judgment in the Hilewitz case (paras. 74-76). In
short, requiring medical officers to take into account the applicant’s wealth as it relates to
user-pay social services would require them to apply complicated funding
formulas to particular financial situations. To ask a medical officer to
consider the myriad formulas for user contributions in order to determine
whether and what the individual’s
family will be required to pay for the services would go beyond what Parliament
has mandated.
107
The medical officer is called upon to assess the applicant on the basis
of the applicant’s own
medical condition. The assessment is highly individualized but it is in
relation to the condition that might reasonably be expected to trigger the
services. The medical officer is not authorized to look at the circumstances — financial or otherwise — of the inadmissible person’s parents or other family
members, nor is he or she to look at the viability of the immigration
application as a whole.
108
I recognize that medical assessments are largely subjective. It is
therefore rare that diagnoses are entirely objective. A fortiori,
whether a particular medical condition would create excessive demands on social
services cannot be determined on the basis of mathematical formulas; this
determination necessarily requires the medical officer to consider a number of
factors that are difficult to quantify, and to exercise professional judgment.
This is not an easy task. Medical officers have been assisted in this endeavour
by means of detailed guidelines and regulations.
109
The process established by the regulations and the Medical Officer’s Handbook reflects an
attempt to integrate as many objective factors as possible into the assessment
in order to ensure that all applicants receive fair and equal treatment. This
is achieved by articulating criteria that are to be applied by all medical
officers. In these circumstances, it is of the utmost importance that the
rules be clearly understood and applied consistently. These objectives are set
out in para. 3.1(5) of the Medical Officer’s
Handbook:
In order to give a medical opinion in terms
which are clearly understood and accepted by both medical and immigration
authorities, and which are consistent with the Act, a system of assessment has
been developed whereby an applicant is assigned a medical profile.
[Emphasis in original.]
110
The handbook describes the medical officer’s
responsibility and emphasizes that the medical assessment obviously involves a
highly individualized assessment of the person (paras. 3.3(6) to 3.3(8)):
6. The
responsibility of the Medical Officer then is:
(a) First, to
identify and appraise those medical conditions which will now, or in the
foreseeable future, place a substantial demand on medical services; and
(b) Second, to
arrive at a judgement as to whether or not that demand should be considered “excessive”.
(c) Again, this
cannot be done on a precise, statistical basis. The Medical Officer’s recommendation must rest
on his knowledge of the natural history of the disease or disorder with and
without treatment and in relation to age, sex and other aspects of the
individual’s physical
and mental make-up.
7. One possible
fallacy in connection with service costs requires mention. We have tended to
assume that highly complex investigation or treatment is necessarily costly,
when it is not always so.
The facility as a whole may be expensive in
terms of reaching the stage of “readiness
to serve”. Once it is
established, however, the additional cost of treating a few extra patients may
be negligible. An example is the haematology unit in which both professional
and technical personnel are paid by salary, and the cost of material used for
treating, say, sickle cell anemia, may be quite small. On the other hand,
open-heart surgery may use expensive expendable materials, and some of the
large surgical team may be paid on a fee-for-service basis.
8. Thus, taking the
H, T, S, E criteria into account, the M recommendation concerning admissibility
will follow logically. This approach does not avoid the inevitably subjective
element in the Medical Officer’s
judgement.
(a) Nevertheless,
to follow the above procedure should ensure the provision of objective medical
information, recorded explicitly in categories.
(b) In this way
the evaluations of different applicants by different medical officers should be
reasonably consistent.
(c) The medical
officer is reminded that a narrative may be used to specify the period over
which demand is forecast. [Emphasis in original.]
111
By following these guidelines, medical officers are assured of producing
the most equitable and consistent assessment possible. To add to the medical
officer’s
responsibilities the burden of inquiring into the ability and desire of the
applicant’s family and
community to provide financial and other support would render the task even
more difficult. The more the analysis is tied to highly subjective non-medical
factors, the more likely it is that the medical officers will be drawn into
assessments outside their area of expertise. Such an approach may produce
inconsistent results for similarly situated applicants and thwart efforts to
treat all applicants equally.
112
Furthermore, such an approach would result in longer delays to permit
the medical officer to ensure that the applicant’s
plans are in fact realistic. Although medical officers must be familiar with
health and social services already available in Canada, they are not mandated
to consider case-specific resources or services not yet in existence (such as
the development of a special education program for Ms. de Jong at a private
school or the job-creation plan put forth by Mr. Hilewitz). There is no
process in place for assessing particular proposed service plans, and medical
officers are certainly not equipped to undertake these assessments.
113
The admission of business or economic immigrants is aimed at bringing
into Canada persons who are likely to enhance Canadian prosperity. The benefit
to Canada would be greatly undermined by potentially inconsistent, overly
subjective assessments and lengthy enquiries by medical officers into the
willingness and ability of the applicants to fund services privately, and into
the feasibility of their plans. Minister’s
permits issued under s. 37(1) are a more appropriate channel for special and
compelling cases. As I have mentioned, placing all these cases in the Minister’s hands ensures that a
single authority makes all such decisions. Transferring responsibility from the
Minister to the medical officers is unwarranted and ill-advised.
114
As a final point, it should be clear that I equate demand not with mere
eligibility to the service but with the likelihood that the individual will need
the services to function in society. What matters is not whether the
individual will actually use the services but, rather, whether the medical
condition makes it likely he or she will require them. It is not for the
medical officer to act as a clairvoyant and predict whether the individual will
in fact make use of the services. Rather, the inquiry concerns an applicant’s entitlement to and need
for those services. This does not require the officer to consider wealth.
D. Standard of Review
115
Although the Court of Appeal briefly touched on the topic, not much has
been said about the appropriate standard of review. The proper approach for
determining the standard of review is the pragmatic and functional approach,
which involves four contextual factors: (1) the presence or absence of a
privative clause or statutory right of appeal; (2) the expertise of the
tribunal relative to that of the reviewing court on the issue in question; (3)
the purpose of the legislation and of the particular provision; and (4) the
nature of the question, namely whether it is one of law, fact, or mixed law and
fact. See Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982, at paras. 29-38.
116
It is helpful at this point to review the decision-making process under
review. Under s. 9(4) IA, the visa officer may issue a visa only where
it would not be contrary to the IA to do so. The visa officer must
consider whether each and every dependant is a person who may be granted
landing: s. 9(2) IA. Where a medical officer has issued a valid opinion
of medical inadmissibility, the visa officer has no discretion to issue a visa:
see Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1
F.C. 274 (T.D.), at para. 41.
117
There is no privative clause in the IA with respect to an appeal
from an immigration officer’s
decision to refuse to issue a visa. The absence of a privative clause is a
neutral factor where other factors point to greater deference: Pushpanathan,
at para. 30. Whether or not wealth is a relevant factor under s. 19(1)(a)(ii)
is a question of law, and is accordingly outside the expertise of the medical
officer who has no legal training. However, the question of whether the
admission of an individual with a particular medical condition would create
excessive demands on social services (and whether the condition could be
accommodated by existing services) is within the medical officer’s area of expertise.
Applying the pragmatic and functional approach, I conclude that — of the four factors — the nature of the question
requires some deference. However, in these cases, on any view of the matter,
the medical officers’
decisions were correct. So were those of the visa officers.
IV. Application
118
What was required of the medical officers was that they determine — on a balance of
probabilities —
whether the admission of an applicant would cause excessive demands on social
services because of the nature, severity or probable duration of his or her
medical condition. They had to look at the services that would likely be
required by the individual applicant and determine whether the demands on these
services would be “excessive”.
119
In the case of Dirkje de Jong, Dr. Bertrand (whose opinion was concurred
in by Dr. Saint-Germain) found that she would likely require “a full range of
educational, vocational and social services”
such as “highly
individualized special teaching until the end of her 21st year; psycholog[ical]
counselling; occupational therapy; small group instruction for health, safety
and life-skill acquisition; vocational assessment/training; and, in time,
continuing adult education”.
He also found it “probable
that she [would] also ultimately qualify for shelter workshop employment” and that her family would
be eligible for counselling and respite care. In response to a letter from Ms.
de Jong’s lawyer, Dr.
Bertrand confirmed that he thought it was probable that Ms. de Jong would
require these services. He provided the family with evidence of the costs
associated with each of the services. Moreover, he explained that the kinds of
services she needed could not be provided by family or community support:
. . . With respect to the private school
where the parents state they intend to send their child, the August 23, 1999
principal’s letter
states that while the school has previously accommodated some students with
various “learning
disabilities and difficulties”,
the principal admits that there have only been “proposals” for the school to provide
specialized programs for mentally handicapped older children, such as the
daughter in this specific case. Indeed, the letter states that older mentally
retarded children have been accommodated in the public school system and have
only visited the private school, as part of a co-op placement program within
the public school system. Based on the principal’s
letter, I am not convinced that this private school is currently equipped to
provide the specialized education and services which this family’s daughter needs, or that
it would necessarily be successful in doing so, to adequately provide for her
special needs in the future.
Further, you seem to have overlooked the
important fact that specialized education to the age of 21 is only ONE of the
many social services required by this child, both now and when she becomes an
adult with different and additional needs in the future. These services must be
provided by trained professionals, since by definition, these needs cannot be
adequately or realistically provided for by well-meaning and loving parents or
a supportive, close-knit Christian community alone. Vocational assessment
and training, followed by sheltered workshop placement, for example, is an
on-going, costly social service for which there currently are long waiting
lists in many parts of Canada, and is one example of a social service which
cannot be met by family, school or community. [Emphasis added.]
120
In my view, the medical officer considered all the appropriate factors
and was satisfied on a balance of probabilities that the admission of Ms. de
Jong would cause excessive demands on social services. In this case, even if it
were a proper consideration, nothing supports the view that the de Jong family’s wealth would have been
relevant since only public resources could provide the kind of support Ms. de
Jong needs. Her family could not have contributed to needs for which support
was available only in the form of publicly funded services.
121
In the case of Gavin Hilewitz, the medical officer, Dr. Larzarus (whose
opinion was concurred in by Dr. Saint-Germain and, later, Dr. Waddell), found
that Gavin would likely require “a
variety of social services such as further special education, continuous
training to enhance his ability to carry out the activities of daily living and
attain his full potential, respite care for parents, and ultimately vocational
training”. Information
submitted by Mr. Hilewitz’s
father about private arrangements for education and employment did not alter
this opinion. On cross-examination, Dr. Waddell confirmed that the social
services at issue were “[s]pecial
education in the broadest sense”
and respite care for the parents. In his affidavit filed on the application
for judicial review, Dr. Waddell stated:
There is no doubt that
Gavin is a healthy, pleasant, teenaged boy who is maturing and continues to
learn. However, he still requires special education and is presently attending
a special school for pupils with delayed scholastic
ability. . . .
If admitted to Canada,
Gavin would qualify for special education in Ontario until the end of his 21st
year. According to the Ministry of Education for Ontario, special education is
expensive and recently average[s] almost $20,000 per student over and above the
usual per pupil expenses. . . .
Again, I find that the medical officers considered all
appropriate factors and were correct in concluding that the admission of Gavin
Hilewitz would cause excessive demands on social services.
122
The majority points to “speculative
possibilities” raised
by the medical officers and visa officers in both cases about the families’ financial security and
ability to privately fund social services such as education. This view reduces
the medical officer’s
assessment to a mere dismissal of the real issue.
123
In order to ensure that all those who seek admission to Canada are
treated equally and fairly, it is necessary to apply the law consistently.
Although the result may sometimes appear to be harsh for a particular
applicant, the words of the statute must not be manipulated in order to permit
something Parliament never intended them to permit. It must be remembered that
the IA contains mechanisms for dealing with particularly compelling
cases: a Minister’s
permit could be issued, as I mentioned above, or landing could be granted where
humanitarian and compassionate grounds exist (s. 6(5) IA). In both the de
Jong and Hilewitz cases, the visa officers found that there were
insufficient humanitarian and compassionate grounds to warrant special
consideration. While I am sympathetic to the situation of the de Jong and
Hilewitz families, the facts of their cases cannot alter the law. The law must
govern the facts.
V. Conclusion
124
I would therefore have dismissed the appeals.
Appeals allowed with
costs, LeBel and Deschamps JJ. dissenting.
Solicitor for the
appellants: Cecil L. Rotenberg, Don Mills.
Solicitor for the
respondent: Attorney General of Canada, Toronto.
Solicitors for the
interveners: ARCH: A Legal Resource Centre for Persons with
Disabilities, Toronto.