Date: 20030411
Docket: IMM-330-01
Neutral citation: 2003 FCT 426
Ottawa, Ontario, this 11th day of April, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
DEREK GORDON PIGG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Pigg (the "Applicant"), a citizen of India living in Singapore, and his family wish to immigrate to Canada. Except for the medical concerns with his son, Steve, it appears that they would meet all of the requirements for immigration. Steve has developmental disabilities. By letter dated January 9, 2001, visa officer Antoinette Taddeo (the "visa officer") of the Canadian Consulate General in New York, refused Mr. Pigg's application for permanent residence in Canada because Steve was found to be medically inadmissible pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2, as amended. The Applicant applies for judicial review of that decision.
Background
[2] The Applicant applied for permanent residence in Canada in February 2000. When his family was sent for medical examinations, it was discovered that his son Steve, born September 29, 1980, might be medically inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act. The examining physician, Dr. Michael T.S. Chua, concluded that Steve had cerebral palsy and epilepsy and that his developmental milestones were delayed.
[3] Two medical officers, Dr. J. Saint-Germain and Dr. W.G. Waddell (the "medical officers"), formed the opinion that Steve was medically inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act, since he was expected to place excessive demands on Canadian social services. In the Medical Notification, the medical officers concluded, in part:
The applicant cannot live independently and requires support and supervision. It is expected that he will require this level of support for the rest of his life. If admitted to Canada, he and his supporting family would be eligible for, and would likely require, a variety of social services, such as speech therapy,, continuous training to enhance his ability to carry out activities of daily living, lifestyle support for permanent residence with kin or for movement to out-of-home care settings, vocational training and respite care for parents. With reference to departmental condition reports/costing data, these services are expensive and cost significantly more than the amount spent annually on the average Canadian. Due to the likely social requirements, the applicant's admission would cause or might reasonably be expected to cause excessive demands on social services.
[4] The Applicant was notified of the medical officers' opinion and was given an opportunity to respond to this opinion. The Applicant provided additional information in response to the Medical Notification, which was passed on to the medical officers for review. The medical officers reviewed all of the additional information supplied by the Applicant and concluded that it did not change their opinion that the Applicant's son remained inadmissible. The visa officer advised the Applicant, by letter dated January 9, 2001, that his application for permanent residence had been refused because Steve's medical condition would place excessive demands on Canadian health services and he was accordingly inadmissible under subsection 19(1) of the Immigration Act.
Issues
[5] The Applicant raises the following issues:
1. Was the medical officers' assessment of Steve's ability to become independent unreasonable?
2. Did the medical officers fail to consider relevant documents?
3. Was procedural fairness denied because the medical officers failed to assess supporting documentation beyond the Applicant's economic factors and Steve's medical condition?
Analysis
[6] For the reasons that follow, I am of the view that this application should be dismissed.
Issue #1: Was the medical officers' assessment of Steve's ability to become independent unreasonable?
[7] In the Applicant's submission, both medical officers' assessments of Steve were unreasonable and were based on their conception of his ability to become self-sufficient and socially and economically independent in the immediate future (Chun v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1551 (T.D.) (QL))
[8] In Chun, supra, Teitelbaum J. held that the medical officers erred by imposing too high a standard in the assessment of the medical condition of a dependent child suffering from mild retardation. Teitelbaum J. was not persuaded that the medical officers considered the daughter's application as a dependent child who will reside with and be supported by her parents. The Medical Notification in Chun, supra at paragraph 21 referred "merely to economic factors of assessment such as her inability to support herself or achieve independence, the need for special vocational training and a sheltered workshop environment."
[9] In my view, this case can be distinguished from Chun, supra. The Medical Notification, in this case, refers to a number of social services likely required by Steve, including "speech therapy,, [sic] continuous training to enhance his ability to carry out activities of daily living, lifestyle support for permanent residence with kin or for movement to out-of-home care settings, vocational training and respite care for parents." In his affidavit, Dr. Waddell also referred to Steve's need for special education and a number of other social services that would be available to Steve and his family in Canada.
[10] As a result, I agree with the Respondent that the medical officers' analysis was not confined to a consideration of whether Steve would be independent or economically self-sufficient. The Medical Notification and the Affidavit of Dr. Waddell indicate that the medical officers considered whether Steve would place excessive demands on Canadian social services. This analysis included, but was not limited to, a consideration of Steve's potential for independence and economic self-sufficiency. Therefore, the medical officers did not assess Steve as an independent applicant who was expected to achieve labour market integration upon landing in Canada and the visa officer did not err by relying on that assessment.
Issue #2: Did the medical officers fail to consider relevant documents?
Letter from the Horizon School Principal
[11] In the Applicant's submission, the medical officers failed to consider the letter from the principal of Horizon School, K.E. Attwood, which was sent to the visa officer by the Applicant in response to the Medical Notification.
[12] In my view, when the record is considered as a whole , it is apparent that the medical officers considered the documentation submitted by the Applicant in response to the Medical Notification, including the Horizon School letter.
[13] The e-mail correspondence from Dr. Saint-Germain to the visa officer clearly states that both her and Dr. Waddell reviewed this document, along with Steve's entire medical file and the rest of the documents submitted by the Applicant in response to the Medical Notification, prior to confirming their original assessment that Steve was medically inadmissible. In addition, Dr. Waddell's affidavit and his cross-examination on that affidavit both confirm that the new documents were considered by the medical officers before they made their final decision.
[14] On cross-examination of his affidavit, Dr. Waddell explicitly stated that both he and Dr. Saint-Germain recognized that Steve had made progress as indicated by the new material, but that progress was not sufficient to alter their original assessment.
[15] The Applicant submits that this statement contradicts the statement in the Medical Notification that "little progress has been accomplished." It is well-established that the Medical Notification is to be read as a whole (Bola v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 441 (C.A.) (QL)). In my view, this submission pays "too much attention to a few words of the medical notification and insufficient attention to the document as a whole" (Bola, supra) and should not succeed on this basis. In any case, this statement was not a crucial factor in the medical officers' decision.
[16] While the medical officers' final narrative was not updated to make specific reference to these minor points, as one might expect, it is clear, in my view, that the medical officers put their minds to the additional information and concluded reasonably that their overall finding was not changed. As a result, the medical officers did not fail to consider the new information submitted by the Applicant in response to the Medical Notification. Since their overall assessment did not change, it was not necessary, in my view, for the medical officers to modify their Medical Notification to indicate that they reviewed this new material.
Respite Care
[17] The Applicant submits that the medical officers failed to consider that respite care is not a mandatory service and can be rejected by the family.
[18] In my view, the medical officers did not err in considering the availability of respite care to Steve and his family. Although Steve and his family could waive their right to publicly funded respite care, this cannot be determinative of the demands that his admission to Canada might reasonably be expected to cause on social services (Deol v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 301 (C.A.)). As a result, the availability of respite care to Steve and his family was a relevant consideration in determining whether Steve would cause an excessive demand on Canadian social services.
Cost of Special Education
[19] In the Applicant's submission, Dr. Waddell incorrectly stated in his affidavit that the cost of special education is CDN $20,000 per year per student. According to the Applicant, the material tendered in support of this figure indicates a lower amount.
[20] On cross-examination, Dr. Waddell explained that he was referring to 1998-1999 data from the Ontario Ministry of Education. Based on the information attached to Dr. Waddell's affidavit, it is unclear what the current average cost of special education is; it could very well be the amount stated by Dr. Waddell.
[21] In any event, the record demonstrates, in my view, that the cost of special education was likely double that of regular education; this is an order of magnitude that amply supports a conclusion that the costs would exceed normal demands by a significant margin (Deol, supra at paragraph 30).
Issue #3: Was procedural fairness denied because the medical officers failed to assess supporting documentation beyond the Applicant's economic factors and Steve's medical condition?
[22] The Applicant submits that the medical officers failed to consider supporting documentation beyond Steve's economic factors and medical condition, which resulted in a denial of procedural fairness (Chun, supra). In particular, the medical officers failed to consider the family support available to Steve, the economic sustainability of his family and Steve's economic and physical self-sufficiency (Karmali v. Canada (Minister of Citizenship and Immigration), 2003 FCT 358).
Family Support
[23] In my view, there is no indication that the medical officers failed to consider the family support available to Steve. The medical officers specifically mention the social services available to the Applicant and his family in the narrative to the Medical Notification. In addition, the medical officers explicitly recognized in the narrative that Steve may permanently reside with kin. The reference to "movement to out-of-home care settings" was not unreasonable because in his report, Dr. Tang Kok Foo suggests that a supervised boarding home would be beneficial for Steve. Finally, the strong family support available to Steve would not change his likely need for social services such as speech therapy, training to enhance his ability to carry out activities of daily living, vocation training or lifestyle support.
Financial Ability
[24] The economic sustainability of Steve's family and his own economic and physical self-sufficiency can be considered as part of the ability of the Applicant and his family to assume all financial obligations related to Steve's future needs. The Applicant submits that the medical officers erred by failing to consider the financial ability of the family.
[25] In Deol, supra, the Federal Court of Appeal held that the Appeal Division of the Immigration and Refugee Board did not err in law in failing to have regard to the financial ability of the applicant or members of her family to pay for the cost of surgery that might be recommended for her father. Evans J.A., writing on behalf of the Federal Court of Appeal at paragraph 46, explained the rationale behind this holding as follows:
it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces, or promises to reimburse the costs of any services required.
[26] In support of this proposition, Evans J.A. cited the decision of Teitelbaum J. in Choi v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1068 (T.D.) (QL). In Choi, supra, Teitelbaum J. stated that the Minister cannot impose a term or condition on admission that the applicant and his family agree to waive all rights to social services in Canada for his dependent daughter. As a result, the applicant's wealth was not a relevant consideration.
[27] In Jong v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1165, [2002] F.C.J. No. 1573 (QL) , Pinard J. held that Deol, supra applies to both social and medical services based on the following reasons. First, the Federal Court of Appeal made reference to the reimbursement of "any services required" in paragraph 46, which must include both social services and health services in Pinard J.'s view. Second, the cases cited by the Federal Court of Appeal in paragraph 46 of Deol, supra indicate that the Court did not consider the distinction between health and social services to be relevant for the purpose of the application of subparagraph 19(1)(a)(ii) of the Immigration Act. In my view, the reasoning of Pinard J. in Jong, supra that Deol, supra applies equally to medical and social services is persuasive.
[28] As a result, I am of the view that it was not unreasonable for the medical officers to conclude that the financial statements were not pertinent to the medical assessment. Steve and his family, if admitted to Canada as permanent residents, would be entitled to benefit from publicly funded social services regardless of their personal assets or wealth. Even if they had promised to pay for any social services required, that promise would be unenforceable (Choi, supra; Deol, supra).
Question for Certification
[29] The parties agreed that the following question is appropriate for certification:
Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause excessive demands on social services in Canada?
[30] I note that this was the same question certified by Pinard, J. in Jong, supra. I agree that the Federal Court of Appeal in Deol, supra, on the facts of that case, was dealing with the matter of medical costs. While I am of the view that the principles relied on in Deol, supra, apply equally to the issue of social services, I agree that the question may remain one for assessment by the Federal Court of Appeal. Accordingly, I will certify the suggested question.
ORDER
THIS COURT ORDERS that this application is dismissed. The following question of general importance is certified:
Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause excessive demands on social services in Canada?
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-330-01
STYLE OF CAUSE: DEREK GORDON PIGG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, APRIL 3, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER, J.
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: M.Max Chaudhary
Barrister & Solicitor
Suite 707 - 18 Wynford Drive
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030403
Docket: IMM-330-01
BETWEEN:
DEREK GORDON PIGG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER