Ipsofactoj.com: International Cases  Part 8 Case 4 [SCC]
SUPREME COURT OF CANADA
- vs -
Minister of Citizenship
21 OCTOBER 2005
(delivering the majority judgment of the court)
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.
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.
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operative provision at the time the applications were refused was s. 19(1)(a)(ii) of the 1985 Immigration Act, since repealed and replaced by a substantially similar provision, s. 38(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.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:
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.
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, SOR/78-172, ss. 9(1)). The medical officer’s opinion must be concurred in by at least one other medical officer (s. 19(1)(a)).
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.
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.
A. The Hilewitz Family
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.
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.
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.
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.
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.
Ms. Hughes found Mr. Hilewitz to be credible and felt that he would make a valuable contribution to Canada.
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.
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.
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.
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.
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.
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.
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 ( 2 F.C. 3, 2002 FCT 844).
After reviewing the jurisprudence of the Federal Court, in particular Deol v Canada (Minister of Citizenship and Immigration),  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.
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.
Gibson J. therefore set aside the visa officer’s decision and referred the Hilewitz application for permanent residence back to the Minister for re-determination by a different officer. The Minister appealed.
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 ( 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.
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.
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
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.
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.
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 9 years old, to the private Rehoboth Christian School in Norwich. The school had agreed to accept all the de Jong children.
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.
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.
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.
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]
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.
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.
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.
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).
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.
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.
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, Cullen J.;
Wong v Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62, Reed J.;
Wong v Canada (Minister of Citizenship and Immigration) (2002), 220 F.T.R. 137, 2002 FCT 625, McKeown J.;
Simmons v Canada (Minister of Citizenship and Immigration) (2002), 221 F.T.R. 303, 2002 FCT 866, Martineau J.;
Karmali v Canada (Minister of Citizenship and Immigration) (2003), 230 F.T.R. 140, 2003 FCT 358, O’Keefe J.
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
.... [a]ny 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 ....
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).
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.
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:
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”, -
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.
In 1927, s. 3 of the Immigration Act as amended (R.S.C. 1927, c. 93) extended 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”.
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.
As is evident from this brief history, the evolution of immigration policy in Canada began half-way through the nineteenth 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)).
The rigidity of the “prohibited classes” provisions of the early twentieth 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.
In line with the views expressed in the 1966 White Paper, Parliament enacted the Immigration Act, 1976, S.C. 1976, 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.
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
[first emphasis in original]
(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- 43)
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:
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?
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.
(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)
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:
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.
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.
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.
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.
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 & Immigration (1986), 65 N.R. 67 (F.C.A.), and Badwal v Canada (Minister of Employment & Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.), both by MacGuigan J.A.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
Both appeals are allowed with costs throughout, and both applications are referred to the Minister for reconsideration and re-determination by different visa officers in accordance with these reasons.
(with whom Lebel J joins, dissenting)
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.
Section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 (“I.A.”), is at the heart of the debate. It reads:
No person shall be granted admission who is a member of any of the following classes:
The I.A. 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 I.A. continues to apply to the proceedings; this position has not been challenged.
Section 19(1)(a)(ii) of the I.A. 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 Act, which concerns exclusion from entry into Canada.
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.
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.
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: ss. 3(a) and (b) I.A.; s. 3(1)(b) IRPA.
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: ss. 3(i) IA. Admission to Canada is and has always been subject to certain limitations (s. 5(2) I.A.). The I.A. establishes classes of inadmissible persons. For reasons beyond their control, the appellants belong to one of those classes and are inadmissible.
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),  1 S.C.R. 27, at para. 21; Bell ExpressVu Ltd Partnership v Rex,  2 S.C.R. 559, 2002 SCC 42, at para. 26.
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 Act 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.
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.
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 statute 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) I.A., 1910. 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) I.A., 1927.
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, 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 I.A. explicitly refer to sponsorship and the provision of security (see ss. 6(2) and (4) and 19(1)(b)).
B. The Immigration Act
Several broad objectives define Canadian immigration policy: reuniting families, protecting refugees, and fostering a viable economy: ss. 3(c), (g) and (h) I.A.; ss. 3(1)(c), (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 (“I.R.”)), family class immigrants (s. 4 I.R.) 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.
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 I.A. to do so (s. 9(4)). Pursuant to s. 11(1) I.A., 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.
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):
No person shall be granted admission who is a member of any of the following classes:
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.
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:
their admission would cause or might reasonably be expected to cause excessive demands on health or social services.
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”.
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 "nature", "severity", or "probable duration" of a health impairment without doing so in relation to a given individual”: at 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.
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 I.R. 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.
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.
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”: s. 3.1(ii), Medical Officer’s Handbook: Section III: Assessing System and Method (amended October 1995). 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),  1 S.C.R. 880, 2000 SCC 35, at para. 26.
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.
Furthermore, s. 19(1)(b) I.A., 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:
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).
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 I.A. 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 42-43), 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. 42:46), 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.
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
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.
Sections 23(1) and 23.1 I.R., which applied to all applications for immigration when the I.A. 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).
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 ss. 27(1)(b), (3) and (4) I.A.. 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.
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) I.R. Where the regulations provide that an undertaking may be given (ss. 5 and 6 I.R.) 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 I.A.). There is no provision in the I.A. allowing an applicant to give an undertaking on behalf of a dependant.
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.
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.
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 Act. 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) I.A.). 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
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.
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.
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.
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 s. 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]
The handbook describes the medical officer’s responsibility and emphasizes that the medical assessment obviously involves a highly individualized assessment of the person (s. 3.3(6), (7), (8)):
The responsibility of the Medical Officer then is:
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.
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 judgment.
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.
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.
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.
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
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:
the presence or absence of a privative clause or statutory right of appeal;
the expertise of the tribunal relative to that of the reviewing court on the issue in question;
the purpose of the legislation and of the particular provision; and
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),  1 S.C.R. 982, at paras. 29-38.
It is helpful at this point to review the decision-making process under review. Under s. 9(4) I.A., the visa officer may issue a visa only where it would not be contrary to the Act to do so. The visa officer must consider whether each and every dependant is a person who may be granted landing: s. 9(2) I.A.. 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),  1 F.C. 274 (T.D.), at para. 41.
There is no privative clause in the I.A. 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.
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”.
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; psychological 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.
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.
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 averag[es] 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.
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.
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 I.A. 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) I.A.). 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.
I would therefore have dismissed the appeals.
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; Gao v Canada (Minister of Employment & Immigration) (1993), 14 Admin. L.R. (2d) 233; Deol v Canada (Minister of Citizenship and Immigration),  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; Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27; Bell ExpressVu Limited Partnership v Rex,  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),  1 S.C.R. 880, 2000 SCC 35; Pushpanathan v Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982; Fei v Canada (Minister of Citizenship and Immigration),  1 F.C. 274.
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.
Developmental Services Act Regulations, R.R.O. 1990, Reg. 272: s.15, s.16.
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), (l), 5(2), 6(2) [rep. & sub. 1992, c. 49, s. 3], (4) [idem], (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, c. 52.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(b), (c), (d), 3(2), 38(1)(c).
Immigration Regulations, 1978, SOR/78-172, ss. 2(1), 4, 5, 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].
Immigration and Refugee Protection Regulations, SOR/2002-227, s. 34.
Authors and other references
Canada. Department of Citizenship and Immigration. Medical Officer’s Handbook: Section III: Assessing System and Method. Ottawa: Immigration and Medical Services, Citizenship and Immigration Canada, 1995.
Canada. Department of Citizenship and Immigration. White Paper on Immigration. Ottawa.: Queen’s Printer, 1966.
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APPEAL from a judgment of the Federal Court of Appeal (Linden, Evans and Malone JJ.A.),  1 F.C.R. 696, (2003), 234 D.L.R. (4th) 439, 312 N.R. 201, 9 Admin. L.R. (4th) 79, 245 F.T.R. 319,  F.C.J. No. 1677 (QL), 2003 FCA 420, reversing a decision of Gibson J.,  2 F.C. 3, (2002), 221 F.T.R. 213, 26 Imm. L.R. (3d) 23,  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,  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,  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.
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