A-403-01
2002 FCA 271
Charanjit Kaur Deol (Appellant) (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent) (Respondent)
Indexed as: Deol v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Linden, Evans and Malone JJ.A.-- Toronto, May 7; Ottawa, June 21, 2002.
Citizenship and Immigration -- Status in Canada -- Permanent Residents -- Refusal of permanent resident visas to appellant's family on ground of medical inadmissibility of appellant's father (advanced degenerative osteoarthritis in both knees might reasonably be expected to cause excessive demands on health services in Canada) -- Portion of Immigration Act, s. 19(1)(a)(ii) providing for inadmissibility on ground of disability not contrary to Charter, s. 15 -- When cost issue, demands excessive when reasonably might be expected to exceed by significant degree average per capita health care costs incurred by that section of Canadian population in same age range as visa applicant (appellant's father) -- Here, open to Board to conclude on evidence reasonable for visa officer to conclude that, if admitted as permanent resident, visa applicant's demands for health services likely to be excessive -- Election to have or not to have elective surgery relevant in determining whether or not medical opinion under Act, s. 19(1)(a)(ii) reasonable; however, person cannot waive right to publicly funded medical services all permanent residents possess; evidence of intention not to undergo particular treatment must be weighed with all other relevant evidence in determining whether person might reasonably be expected to make excessive demands on health services in Canada -- Duty of fairness to Manitoba sponsor of immigrant, Manitoba destined immigrant not breached when Manitoba bonding program (if pertinent and applicable) not disclosed to sponsor and applicant in letter advising applicant of negative medical assessment -- Ability to pay irrelevant to question of excessive demand under Act, s. 19(1)(a)(ii) in case of Manitoba sponsor of immigrant, Manitoba destined immigrant, in light of Manitoba bonding program if such program both accessible, applicable in circumstances.
Constitutional Law -- Charter of Rights -- Equality Rights -- Refusal of permanent resident visas to appellant's family on ground of medical inadmissibility of appellant's father (advanced degenerative osteoarthritis in both knees might reasonably be expected to cause excessive demands on health services in Canada) -- Portion of Immigration Act, s. 19(1)(a)(ii) providing for inadmissibility on ground of disability not contrary to Charter, s. 15 -- Act, s. 19(1)(a)(ii) does not have purpose or effect discriminatory within meaning of equality guarantee -- Fact applicant child of parent who has been refused visa because of medical condition expensive to treat not reflecting adversely on her individual worth or otherwise violating her human dignity; not ascribing disability or any other personal characteristic to her by virtue of her parentage -- Like other visa applicants, applicant sponsor's father found medically inadmissible on basis of individualized medical assessments, prognoses of his condition, resulting demands he might reasonably be expected to cause on health services in Canada.
The appellant's father, mother, sister and two brothers, who live in India, were refused permanent resident visas because Mr. Ranjit Singh, the principal visa applicant and the appellant's father, was found to be medically inadmissible because of advanced degenerative ostoeoarthritis in both knees, which a medical officer found might reasonably be expected to cause excessive demands on health services in Canada. The Immigration and Refugee Board Appeal Division (the Board) dismissed the appeal against that decision. It found that surgical treatment was a reasonable prognosis for the near future; that total knee replacement surgery in Canada would cost about $40,000, which constituted excessive demands on health services in Canada because it exceeded what is normal; that the evidence did not establish that Mr. Singh would refuse surgery now or in the reasonably foreseeable future; that the letter sent by the visa officer (the fairness letter) disclosed sufficient information to afford Mr. Singh a reasonable opportunity to provide evidence that he would decline the surgery; that the visa officer was not obliged by the duty of fairness to advise Mr. Singh of a bonding program (sponsors may post an irrevocable letter of credit with the provincial Department of Health as security for cost of any health services required by the sponsored relative) available to residents of Manitoba who are sponsoring family members planning to live in that province; that Mr. Singh's ability to pay for any medical treatment was irrelevant; and that subparagraph 19(1)(a)(ii) of the Immigration Act did not contravene section 15 of the Charter.
The Trial Division Judge dismissed the application for judicial review of that decision, apparently on the basis that a person may be found medically inadmissible when the prediction of "excessive demands" rests entirely on the costs of the services that the person is likely to require, and not on the fact that demand for the services in question already exceeds supply. He also found that it was reasonable for the Board to conclude that Mr. Singh might elect surgery in the future as his condition deteriorates; that the visa officer was not under a duty to advise Mr. Singh how he might overcome the "excessive demands" hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the Province of Manitoba. The argument that the visa officer ought to have considered the ability of Mr. Singh or any member of his family to pay for the surgery was rejected. Moreover, the bonding program was only available in the 60 days between the fairness letter and the visa refusal, a time that had long expired. Having conducted the analysis prescribed in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the Trial Division Judge finally found that the refusal to issue a visa on the ground of medical inadmissibility did not infringe the appellant's right to equality and, if it did, it was saved by section 1 as a reasonable limitation. This was an appeal from that decision.
Held, the appeal should be dismissed.
Section 22 of the Immigration Regulations, 1978 sets out a non-exhaustive list of factors to be considered to determine medical admissibility, including limitations on the supply of the health services likely to be required by an applicant, but not, explicitly, their cost. Cost alone can constitute "excessive demands" under subparagraph 19(1)(a)(ii). When both cost and availability are considered, it was clearly open to the Board to conclude on the evidence that it was reasonable for the visa officer to conclude that, if admitted as a permanent resident, Mr. Singh's demands for health services were likely to be excessive.
"Excessive" demands for social or health services are those that exceed normal demands, provided that the margin is significant. What is "significant" in this context calls for an assessment of all the circumstances. As for the appropriate measure of normal demands, when cost is the issue, normal demands should be related to that section of the Canadian population in the same age group as the applicant. Since total knee replacement surgery is by no means typical for people in their late 60s and its cost is not fully reflected in the average per capita cost of the health services consumed by that section of the public, the information as to average per capita cost is not necessary in order to predict that, if Mr. Singh has the surgery, his costs will significantly exceed the average. In this case, in addition to the cost of the health services likely to be required, there was evidence before the Board of a waiting list in Manitoba for total knee replacement surgery. This was sufficient to enable the Board to conclude that there was a rational basis for the medical officers' opinion that the admission of Mr. Singh might reasonably be expected to cause excessive demands on health services. Here, the absence of evidence before the Board on what are normal health care costs does not warrant the intervention of the Court.
Although whether Mr. Singh has elected to forego surgery is a relevant consideration, this cannot be determinative of the demands that the individual's admission might reasonably be expected to cause on health services. No one can waive the right of access in the future to whatever publicly funded health services he or she may need.
The duty of fairness did not require a visa officer to disclose the existence or details of the Manitoba bonding program. The existence of the Manitoba program, and its possible availability to the appellant and her family, simply were not factors in the decision to refuse a visa to Mr. Singh on the ground of medical inadmissibility.
The 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 Mr. Singh. 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.
There was no violation of section 15 of the Charter. Assuming that the appellant satisfies the first two prongs of the Law test, namely, differential treatment and the presence of an enumerated ground as the basis of that treatment, she does not satisfy the third test in that, when contextual factors are taken into consideration, subparagraph 19(1)(a)(ii) does not have a purpose or effect that is discriminatory within the meaning of the equality guarantee. The fact that the appellant is the child of a parent who has been refused a visa because of a medical condition that is expensive to treat does not reflect adversely on her individual worth or otherwise violate her human dignity. Hence, she has not established the necessary link between the basis on which her father was refused a visa and discrimination against her in the constitutional sense. The appellant is not the subject of discrimination because Mr. Singh was found medically inadmissible on the basis of individualized medical assessments, and prognoses of his condition, and of the resulting demands that he might reasonably be expected to cause on health services in Canada. Therefore the appellant cannot claim that the statutory provision discriminates against her by withholding a benefit in a manner which reflects the stereotypical application of presumed group or personal characteristics or otherwise had the effect of promoting the view that she is less capable or worthy of recognition or value as a human being or as a member of Canadian society. Another factor is the nature of the rights affected. In this regard, no one, whether Canadian citizen or permanent resident, has a right to be joined by members of their family. Rather, permanent residents have a right to sponsor family members, who will be admitted if they satisfy the admission criteria. Finally, while the appellant may feel a deep sense of disappointment following the refusal, absent a violation of human dignity, such grievances do not support a claim of discrimination and a denial of equality before the law for the purpose of section 15.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.
| Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 3(c), 8(1), 19(1)(a)(ii). |
| Immigration Regulations, 1978, SOR/78-172, s. 22. |
cases judicially considered
applied:
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 43 C.C.E.L. (2d) 49; 236 N.R. 1; Pervez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1420; [2001] F.C.J. No. 1948 (T.D.) (QL); Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; (2000), 195 D.L.R. (4th) 422; 265 N.R. 121 (C.A.); Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; (2000), 186 D.L.R. (4th) 1; 50 C.C.E.L. (2d) 177; 253 N.R. 329.
distinguished:
Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56; 10 Imm. L.R. (3d) 75 (F.C.T.D.); Manto v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 165 (F.C.T.D.); Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274; (1997), 131 F.T.R. 81; 39 Imm. L.R. (2d) 266 (T.D.); Shan v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 238 (F.C.T.D.); Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (F.C.T.D.); affd (1999), 1 Imm. L.R. (3d) 177; 247 N.R. 221 (F.C.A.).
considered:
Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139; 29 Imm. L.R. (2d) 1 (F.C.T.D.); Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; (1997), 143 D.L.R. (4th) 577; 42 C.R.R. (2d) 1; 37 Imm. L.R. (2d) 195; 208 N.R. 81.
referred to:
Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308; 29 Imm. L.R. (2d) 85 (F.C.T.D.); Jim v. Canada (Solicitor General) (1993), 69 F.T.R. 252; 22 Imm. L.R. (2d) 261 (F.C.T.D.); R. v. Edwards, [1996] 1 S.C.R. 128; (1996), 26 O.R. (3d) 736; 132 D.L.R. (4th) 31; 104 C.C.C. (3d) 136; 45 C.R. (4th) 307; 192 N.R. 81; 88 O.A.C. 321; Cabaldon v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296; 42 Imm. L.R. (2d) 12 (F.C.T.D.).
APPEAL from a Trial Division decision (Deol v. Canada (Minister of Citizenship and Immigration) (2001), 19 Imm. L.R. (3d) 26) dismissing an application for judicial review of the Appeal Division of the Immigration and Refugee Board decision (Deol v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D. No. 214 (QL)) dismissing an appeal from a visa officer's refusal of permanent resident visas to the appellant's father, mother, sister and two brothers on the basis that the principal visa applicant, the appellant's father, was found to be medically inadmissible in that he might reasonably be expected to cause excessive demands on health services in Canada. Appeal dismissed.
appearances:
David Matas for appellant.
Marie-Louise Wcislo and Sharlene Telles-Langdon for respondent.
solicitors of record:
David Matas, Winnipeg, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1]Charanjit Kaur Deol lives in Winnipeg and has been a permanent resident in Canada since 1991. In June 1993, she submitted an undertaking of assistance to sponsor the admission to Canada of her father, mother, sister and two brothers, who currently live in India. They were refused permanent residence visas because Mr. Ranjit Singh, the principal visa applicant and Ms. Deol's father, was found to be medically inadmissible.
[2]At that time, Mr. Singh was 65 years old and was diagnosed as having, among other things, advanced degenerative osteoarthritis in both knees, a condition that limited his daily activities and so restricted his mobility that he walked, with difficulty, with the help of a cane. The medical officer found that, if admitted to Canada, Mr. Singh might reasonably be expected to cause excessive demands on health services in Canada.
[3]In a decision dated February 22, 2000 [[2000] I.A.D.D. No. 214 (QL)], the Appeal Division of the Immigration and Refugee Board dismissed Ms. Deol's appeal against the decision that Mr. Singh was medically inadmissible. It found that surgery in Canada to remedy this condition would cost approximately $40,000, that this would exceed what is normal and, hence, constituted excessive demands. An application for judicial review of the Board's decision was dismissed by Muldoon J.: Deol v. Canada (Minister of Citizenship and Immigration) (2001), 19 Imm. L.R. (3d) 26 (F.C.T.D.).
[4]The Applications Judge certified the following five questions for appeal [at paragraph 48]:
| 1. Is the portion of section 19(1)(a)(ii) of the Immigration Act which provides for inadmissibility on the ground of disability of no force or effect under section 52 of the Charter and should it be severed from the Immigration Act? |
| 2. Is "more than normal" a legally acceptable measure of excessive demand under section 19(1)(a)(ii) of the Immigration Act? If so, what are the permissible criteria for the determination of normalcy? |
| 3. Is an election to have or not have elective surgery relevant in determining whether or not a medical opinion under section 19(1)(a)(ii) of the Immigration Act is reasonable? |
| 4. Is the duty of fairness breached to a Manitoba sponsor of an immigrant and a Manitoba destined immigrant, when the Manitoba bonding program (if pertinent and applicable), is not disclosed to the sponsor and the applicant in the letter advising the applicant of a negative medical assessment and inviting the applicant to submit further information not already on the file? |
| 5. Is the ability to pay relevant or irrelevant to the question of excessive demand under section 19(1)(a)(ii) of the Immigration Act when there is a Manitoba sponsor of an immigrant and a Manitoba destined immigrant, in light of the Manitoba bonding program if there be such a program which is both accessible and applicable in these circumstances. |
Counsel for Ms. Deol also argued that the Applications Judge erred in law in concluding that a finding of excessive demands may be based solely on the cost of the health services likely to be required by a visa applicant, as opposed to the extent to which the services are in short supply in Canada.
B. THE BOARD'S DECISION
[5]The Board reviewed the evidence concerning Mr. Singh's health and concluded that, while the medical reports contained a range of opinions on whether or not immediate surgery was indicated, they supported the conclusion that, given the severity of Mr. Singh's condition and the accompanying symptoms, surgical treatment was a reasonable prognosis for the near future. The Board found that if Mr. Singh had total knee replacement surgery in Canada it would cost approximately $40,000, which constituted "excessive demands" on health services in Canada because it exceeded what is "normal".
[6]There was a question whether Mr. Singh had decided to forego this treatment, which was elective in the sense that, while it may be necessary in order to improve his quality of life, he would not die if he did not have it. The Board concluded that the evidence before it did not establish that, on the balance of probabilities, Mr. Singh would refuse surgery now or in the reasonably foreseeable future, and would limit his demands to the less expensive non-surgical therapy available to alleviate osteoarthritis.
[7]Further, the Board concluded, the "fairness letter" sent by the visa officer to Mr. Singh prior to the decision on his visa application set out in some detail the medical officer's concerns, including the statement that he would require a specialist's care and "total knee replacement surgery". The letter thus disclosed sufficient information to afford Mr. Singh a reasonable opportunity to provide evidence that he would decline the surgery. In response to this letter, Mr. Singh provided further medical reports but did not say that he would decline surgery.
[8]The Board also held that the visa officer was not obliged by the duty of fairness to advise Mr. Singh of a bonding program available to residents of Manitoba who are sponsoring family members planning to live in that province. Under this program, sponsors may post an irrevocable letter of credit with the provincial Department of Health as security for the cost of any health services required by the sponsored relative. The Board regarded as irrelevant the ability of Mr. Singh to pay for any medical treatment.
[9]The Board also briefly considered whether the provision of the Immigration Act, R.S.C., 1985, c. I-2, under which Mr. Singh was denied a visa, namely, subparagraph 19(1)(a)(ii), contravened section 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] because it discriminated on the ground of disability. It rejected the argument, since a person is refused a visa for medical inadmissibility, not simply because of a disability, but because of the excessive demands that the person's admission might thereby reasonably be expected to impose on health services in Canada.
C. THE TRIAL DIVISION'S DECISION
[10]In dismissing the application for judicial review of this decision, Muldoon J. seems to have held that a person may be found medically inadmissible when the prediction of "excessive demands" rests entirely on the costs of the services that the person is likely to require, and not on the fact that demand for the services in question already exceeds supply. He relied on Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (F.C.T.D.), at page 155; affirmed by (1999), 1 Imm. L.R. (3d) 177 (F.C.A.), as an example of a case of medical inadmissibility where the primary factor was cost. He also found that it was reasonable for the Board to conclude that Mr. Singh might elect surgery in the future as his condition deteriorates.
[11]As for the visa officer's alleged unfairness in not drawing Mr. Singh's attention to Manitoba's bonding program, Muldoon J. noted that visa applicants have the burden of establishing that they meet the qualifications for admission. Accordingly, the visa officer was not under a duty to advise Mr. Singh how he might overcome the "excessive demands" hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the province of Manitoba. He also noted the paucity of evidence about the program, including its availability to Ms. Deol.
[12]Relying on Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308 (F.C.T.D.), at page 315, Muldoon J. rejected the argument that the visa officer ought to have considered the ability of Mr. Singh or any member of his family to pay for the surgery. Once admitted to Canada, Mr. Singh would have the same right to access publicly funded health services as all other permanent residents. Moreover, by the time that the case reached the Board, the bonding program clearly did not provide an effective way of ensuring that any medical costs incurred by Mr. Singh did not come out of the public purse, because it was only available in the 60 days between the fairness letter and the visa refusal, a time that had, of course, long expired.
[13]As for the constitutional argument, Muldoon J. stated that persons residing abroad who are not Canadian citizens have no standing to rely on the Charter. Hence, the relevant question was whether the refusal to issue a visa to Mr. Singh on the ground that his admission to Canada was likely to cause "excessive demands" on health services in Canada infringed Ms. Deol's section 15 right to equality. After conducting the analysis prescribed in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, he held that it did not and, if it did, it was saved by section 1 as a reasonable limitation.
D. THE LEGISLATIVE FRAMEWORK
Immigration Act, R.S.C., 1985, c. I-2
19. (1) No person shall be granted admission who is a member of any of the following classes:
(a) persons who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,
. . .
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;
Canadian Charter of Rights and Freedoms
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
E. ISSUES AND ANALYSIS
[14]I have reordered and somewhat reformulated the certified questions in order to reflect the development of the arguments during oral submissions.
| Issue 1 May a finding of "excessive demands" be based exclusively on the predicted additional cost of the health services that an applicant for permanent residence in Canada, if admitted, might reasonably be expected to require? |
[15]In Yogeswaran, supra, McKeown J. seems only to have considered the cost of the special education required by a visa applicant's dependent son in reaching his conclusion that the son's admission would impose "more than normal" and, therefore, excessive demands on social services. While this Court affirmed Yogeswaran, supra, it did not expressly address this point. Accordingly, I do not regard it as determinative of the issue raised by counsel in this appeal.
[16]More recently, in Pervez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1420; [2001] F.C.J. No. 1948 (T.D.) (QL), Simpson J. stated at paragraph 14:
The applicant also argues that the Medical Officer's report was unreasonable because it considered only the cost element of the excessive demand. However, given the high costs of dialysis and transplant surgery, it is my view that the report was sufficient when it addressed only cost. I should add that, had the Medical Officer addressed the availability of transplant and dialysis services, I am confident that his conclusion about excessive demand would not have changed.
[17]In her reasons, Simpson J. did not refer to the cases decided in the Trial Division that counsel for Ms. Deol says establish that cost alone cannot constitute excessive demands and should be followed in this case. Before examining these decisions, I should note that section 22 of the Immigration Regulations, 1978, SOR/78-172, purports to prescribe a non-exhaustive list of factors to be considered by medical officers in determining whether a person is medically inadmissible. These factors include limitations on the supply of the health services likely to be required by an applicant for a permanent residence visa, but not, explicitly, their cost.
[18]However, it was held in Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139 (F.C.T.D.), that the Minister has no statutory power to enact regulations dealing with medical inadmissibility on the ground of excessive demands, but only on the ground of public health and safety. Thus, there is no statutory definition of "excessive demands". The correctness of Ismaili, supra, is not challenged in this appeal. Accordingly, it is important to treat with care "excessive demands" cases decided before Ismaili, supra, which relied on section 22, including Jim v. Canada (Solicitor General) (1993), 69 F.T.R. 252 (F.C.T.D.).
[19]Of the cases decided after Ismaili, supra, counsel for Ms. Deol relies particularly on Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56 (F.C.T.D.), at paragraph 21, where Pelletier J. (as he then was) said:
Cost alone cannot be the determining factor. If it were, one would expect the statute and the regulations to refer to excessive cost instead of excessive demand.
This view of the applicable law has been followed recently in Manto v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 165 (F.C.T.D.), at paragraphs 28-29.
[20]However, on closer examination these cases do not seem to me to decide that a person who requires an expensive but low demand service is not for that reason medically inadmissible. Rather, they are authority for the more limited proposition that, since both cost and availability are relevant to determining the existence of excessive demands, the record must indicate that evidence relating to both factors was considered by the medical officer. Other cases relied on in this manner by counsel for Ms. Deol also seem to me to make this point: Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (T.D.); Shan v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 238 (F.C.T.D.).
[21]Pervez, supra, may be difficult to reconcile with these cases in that Simpson J. specifically stated that it was unnecessary for the medical report to go beyond the question of cost. However, she was also prepared to conclude that, on the facts before her, a consideration of availability would not have changed the decision.
[22]In my opinion, cost alone can constitute "excessive demands" under subparagraph 19(1)(a)(ii). In Poon, supra, at paragraph 21, Pelletier J. agreed that, even though not mentioned in the Act or the Regulations, cost is a relevant consideration. The "excessive demands" limb of medical inadmissibility expresses a legislative concern to protect from unusually high demands the public resources devoted to health care.
[23]In addition, I would note that the statutory phrase is "excessive demands", not "excessive demand". The singular, "excessive demand", might well have been regarded as the correlative of "inadequate supply". However, it requires no linguistic stretch to interpret the plural, "excessive demands", as including both the cost and the availability of health services that a visa applicant is likely to require if admitted to Canada.
[24]Moreover, it is unrealistic to regard cost and availability as unconnected. If enough people need expensive but low demand health services, resources may have to be diverted from other services for which demand is higher, thereby creating or lengthening waiting lists for those services. Alternatively, an increased demand for a particular service may prevent the reallocation of funds to services that are in short supply.
[25]Be all that as it may, evidence before the Board in the case at bar from Dr. Walter G. Waddell, a medical officer with Citizenship and Immigration Canada, Immigration Health Services, stated that a patient requiring total knee replacement surgery in Manitoba could expect to wait for between eight and twenty months for the operation. An orthopaedic surgeon, Dr. Farid Sharif, testified before the Board that waiting lists in Canada for this surgery vary from three to eighteen months. The admission of Mr. Singh might thus delay others' access to this kind of surgery.
[26]Hence, when both cost and availability are considered, it was clearly open to the Board to conclude on the evidence that it was reasonable for the visa officer to conclude that, if admitted as a permanent resident, Mr. Singh's demands for health services were likely to be excessive. Accordingly, there is no basis for interfering with this aspect of the decision on an application for judicial review.
| Issue 2 Did the Board err in law in concluding that the appellant's father's demands for health services are likely to be excessive when it equated "excessive demands" with demands that are more than normal, and determined normal demands by reference to the average per capita cost of health services for the Canadian population as a whole? |
[27]The appellant's argument is that, to the extent that the excessiveness of a visa applicant's anticipated demands for health services depends on the cost of the services that the applicant is likely to use, that cost is only excessive if it exceeds the average per capita cost of health services consumed by that section of the Canadian population in the same age bracket as the applicant. Since older people consume on average more health services than adolescents, or young or middle-aged adults, it is irrational to determine normal demands by reference to the average per capita cost of the health services consumed by members of the population at large.
[28]Indeed, counsel observed that the medical notification form used by medical officers appears to measure an individual's anticipated demands by reference to the individual's age range. Thus, the coding D1 on the medical profile is explained to mean "Demand not likely to be more than that made by the average Canadian resident of his age group." Since there was no evidence before the Board of the average per capita health costs, either of Canadian residents as a whole or of those in their late 60s, counsel submitted that it was not in law open to the Board to conclude that a $40,000 operation so far exceeded normal demands as to be excessive.
[29]Counsel for the Minister, on the other hand, urged the Court to confirm that "excessive demands" means more than normal and that normal demands should be measured by reference to the population as a whole over a period of five consecutive years, or ten if significant costs are likely to be incurred beyond that period.
[30]On the first point, I agree with previous Trial Division decisions that have held that "excessive" demands for social or health services are those that exceed normal demands, provided that the margin is significant. What is "significant" in this context calls for an assessment of all the circumstances.
[31]As for the appropriate measure of normal demands, I agree in principle with counsel for Ms. Deol that, when cost is the issue, normal demands should be related to that section of the Canadian population in the same age group as the applicant. Otherwise, a healthy person might be found to be medically inadmissible simply because she or he was in an age group whose members' per capita average health care costs are significantly in excess of those of the population as a whole.
[32]Such a result would seem inconsistent with the statutory objective set out in paragraph 3(c) of the Act of promoting family reunification in Canada, including parents, and would discount the social and economic benefits of admitting sponsored family members. Indeed, considerations of this kind presumably explain why the medical notification form calls for an assessment of whether an applicant's demands for services are likely to exceed those of the average for the applicant's age group in Canada.
[33]The only evidence in the record of "normal" is contained in cross-examination on an affidavit sworn for the purpose of this appeal by Dr. Kerry Kennedy, a senior medical officer of health with Citizenship and Immigration, Medical Services Branch. He stated that the average per capita cost of health care for the population of Canada at large is $12,000 over a period of five years. There was no evidence at all before the Board on this issue.
[34]Nonetheless, for the following reasons the absence of evidence of the average per capita health care costs incurred by Canadian residents aged between 65 and 70 is not, in my opinion, material in this case.
[35]First, given his other health problems, Mr. Singh might reasonably be expected to incur the average per capita health care costs of Canadian residents in his age range, even if he did not have knee surgery. While by no means rare, total knee replacement surgery is by no means typical for people in their late 60s and hence its cost is not fully reflected in the average per capita cost of the health services consumed by that section of the public. Therefore, it is not necessary to know what average per capita health care costs in fact are for this age group in order to predict that, if Mr. Singh has the surgery, his costs will significantly exceed the average.
[36]Second, the selection of an appropriate comparator group is only relevant in so far as medical inadmissibility depends on cost. In this case, in addition to the cost of the health services likely to be required by Mr. Singh, there was evidence before the Board of a waiting list in Manitoba for total knee replacement surgery. The estimated waiting time ranged from three to twenty months. In my opinion, this was sufficient to enable the Board to conclude that there was a rational basis for the medical officers' opinion that the admission of Mr. Singh might reasonably be expected to cause excessive demands on health services.
[37]Hence, the absence of evidence before the Board on what are normal health care costs does not warrant the intervention of the Court.
| Issue 3 Is it relevant to a determination that the admission of a person is likely to cause excessive demands on health services in Canada that the person has elected not to have the non-essential surgery indicated by his condition? |
[38]In determining what health services Mr. Singh would likely consume if admitted to Canada, the Board seems to have regarded as a relevant consideration whether he had elected to forego surgery. I agree that this is a relevant consideration. However, I also agree with the Board that evidence that an applicant may not elect to have surgery cannot be determinative of the demands that the individual's admission might reasonably be expected to cause on health services. No one can waive the right of access in the future to whatever publicly funded health services they need.
[39]Determining what health services a person is likely to use after being admitted to Canada requires an assessment of all the circumstances, particularly the medical evidence. The Board reviewed the evidence in this case from this perspective, and concluded that there was insufficient evidence that Mr. Singh would refuse surgery now or in the future. It was entirely reasonable for the Board to find that, as Mr. Singh's already advanced degenerative condition deteriorated, his need for the surgery would become sufficiently pressing that he was likely to have it within five years of his admission.
[40]Counsel for Ms. Deol submitted that the Board erred because it asked whether Mr. Singh was likely to refuse elective surgery, rather than whether he was likely not to elect to have it. I must say that I cannot see that the choice between these formulations is a matter of much moment to the Board's conclusion on the key question: might it reasonably be expected that, if admitted, Mr. Singh would have total knee replacement surgery in Canada?
| Issue 4 Did the Board err in finding that the visa officer did not breach the duty of fairness in failing to disclose the availability of a provincial bonding program, under which sponsors resident in Manitoba may, in effect, guarantee to reimburse the Province for medical costs incurred by a sponsored family member planning to live in Manitoba? |
[41]Counsel's argument on this issue was that the officer ought to have informed Mr. Singh about Manitoba's bonding program. He submitted that, if the "fairness letter" had contained this information, Ms. Deol could have approached Manitoba's Department of Health with a view to posting an irrevocable letter of credit as security for the medical expenses incurred for treating Mr. Singh's condition. The 60 days within which a person may reply to the fairness letter with additional material was the window of opportunity for posting a letter of credit. If she had been able to enter into such an arrangement, Mr. Singh's admission could not reasonably have been expected to cause excessive demand on health services in Canada and he, and other members of the family, would have been issued visas.
[42]In my view, the duty of fairness does not require a visa officer to disclose the existence or details of the Manitoba bonding program. At common law, an administrative decision-maker may be required as a matter of fairness to disclose for comment by the person affected information on which an adverse decision may be based. This enables the individual to know and answer the case that she or he must meet. This is not, of course, the situation here. The existence of the Manitoba program, and its possible availability to Ms. Deol and her family, simply were not factors in the decision to refuse a visa to Mr. Singh on the ground of medical inadmissibility.
[43]While the duty to disclose may sometimes require the disclosure of information, even though it does not form the basis of the decision, fairness did not require the visa officer to go the extra mile to provide information about the Manitoba program that might have assisted Mr. Singh to establish that his admission would not cause excessive demands on health services in Canada.
[44]First, the content of the duty of fairness owed by a visa officer is at the low end of the range: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at paragraph 41. Second, subsection 8(1) of the Act places on applicants the burden of establishing eligibility for a visa. Third, the information at issue in this case did not concern a federal program and there was no evidence that details of the Manitoba program were not available to the public.
[45]Fourth, the duty to disclose applies to information that is clearly of potential relevance to a decision. It is not at all certain that the program would have been relevant to the visa officer's decision. For one thing, it only applies to health services provided in Manitoba; thus, if Mr. Singh had moved to Ontario any medical costs would have been borne by the Ontario Health Insurance Plan and could not have been recouped from Ms. Deol. And, for another, it was unclear from the evidence before the Board whether the bonding program applied, not only to persons admitted on Minister's permits on humanitarian and compassionate grounds, but also to those entering Canada as permanent residents. Moreover, the existence of the program is not relevant to "excessive demands" concerns arising from a shortage of supply of the health service required by the visa applicant.
| Issue 5 Did the Board 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 Mr. Singh? |
[46]In my opinion, it did not. As has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. 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. See, for example, Choi v. Canada (Minister of Citizenship and Immigration), supra, at paragraph 30; Cabaldon v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296 (F.C.T.D.) at paragraph 8; Poon, supra, at paragraphs 18-19.
[47]Counsel argued that, because of Manitoba's bonding program, these cases have a limited application when the sponsor is a resident of Manitoba, and the immigrant is destined for that province. Since a posted letter of credit would have made Ms. Deol legally liable for the cost of the health services delivered to Mr. Singh, the visa officer ought to have taken into account her ability to pay.
[48]I do not accept this argument. First, it was not a point put to the officer and visa applicants have the burden of establishing that they qualify for a visa. Second, even if Ms. Deol qualified under the Manitoba program, the letter of credit would not apply to medical expenses incurred in another province. Third, to the extent that Mr. Singh was found to be medically inadmissible under subparagraph 19(1)(a)(ii) because of his expected demands for services that are in short supply, the existence of the bonding program is irrelevant. Fourth, since Ms. Deol had not applied to be covered by the bonding program before the visa officer refused the visa, and could not avail herself of it later, its existence was irrelevant to the decision of both the officer and the Board.
| Issue 6 Did the Board err in holding that it is not a violation of section 15 of the Charter to refuse a visa on the ground that the applicant suffered from a disability? |
[49]Counsel for Ms. Deol submitted that subparagraph 19(1)(a)(ii) of the Immigration Act is of no force or effect in so far as it renders a person inadmissible on the ground of disability. Physical disability is, he pointed out, one of the grounds on which section 15 of the Canadian Charter of Rights and Freedoms expressly prohibits discrimination and Parliament's limitation of the right to be free from discrimination on the ground of disability in this statutory context cannot be justified under section 1.
[50]Counsel for the appellant was prepared to concede for the purpose of this appeal that, as Muldoon J. found, the protection of the Charter does not apply to Mr. Singh in his dealing with the Canadian government abroad. I shall proceed on this assumption. Nonetheless, he submitted, as the daughter of a father with a physical disability, Ms. Deol is able to invoke the prohibition in section 15 of the Charter of discrimination based on disability. Ms. Deol was treated less favourably than a sponsor whose father does not have a physical disability.
[51]Any consideration of a section 15 claim must be conducted in accordance with the analytical framework established by Law, supra, supplemented by other authorities that may bear on the particular problem being examined. For the purpose of this appeal, I am willing to assume that Ms. Deol satisfies the first two prongs of the Law, test, namely, differential treatment and the presence of an enumerated ground as the basis of that treatment.
[52]However, I would note that the word "disability" is not necessary to the scheme of subparagraph 19(1)(a)(ii), in the sense that the other words defining the initial bases of inadmissibility, "disease, disorder. . . or other health impairment", are broad enough to include Mr. Singh's condition. Hence, to the extent that counsel attempted to limit his attack on the constitutionality of Mr. Singh's exclusion to the presence of "disability" in the paragraph, his argument was unpersuasive. Nonetheless, for present purposes I shall proceed on the basis that counsel's objections apply more broadly to exclusion on the ground of medical inadmissibility.
[53]In my opinion, counsel's argument clearly fails on the third prong of Law, supra, at paragraph 88, in that, when contextual factors are taken into consideration, subparagraph 19(1)(a)(ii) does not have "a purpose or effect that is discriminatory within the meaning of the equality guarantee." Iacobucci J., ibid., provided further guidance on the meaning of discrimination in the constitutional sense when he said that the following question is pertinent to the analysis:
Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
[54]In order to answer these questions it is important to recall at the outset that Ms. Deol is the person whose equality rights are alleged to have been violated. She has no standing to assert her father's rights under section 15, even assuming that the Charter applied to him while he was abroad. Nor can a person establish that he or she has been denied their section 15 rights simply by proving discrimination against another: R. v. Edwards, [1996] 1 S.C.R. 128, at page 145.
[55]Nonetheless, I also recognize that, in some circumstances, a child's section 15 rights may be violated as a result of discrimination against a parent. Thus, in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, a section 15 claim was made by a person who did not acquire Canadian citizenship by virtue of being the child born in wedlock outside Canada prior to February 15, 1977, of a Canadian mother and a non-Canadian father. Had his father been a Canadian citizen, Mr. Benner would have acquired Canadian citizenship automatically by descent. As Iacobucci J. put it, supra, at paragraph 82:
The link between child and parent is of a particularly unique and intimate nature. A child has no choice who his or her parents are. Their nationality, skin colour, or race is as personal and immutable to a child as his or her own.
[56]Thus, to put this statement into the analytical framework of Law, supra, a person may invoke section 15 if denied a benefit by virtue of a personal characteristic of a parent that demeans the human worth of that person. However, in my opinion, the fact that Ms. Deol is the child of a parent who has been refused a visa because of a medical condition that is expensive to treat does not reflect adversely on her individual worth or otherwise violate her human dignity. It does not ascribe to her a disability or any other personal characteristic by virtue of her parentage. Hence, Ms. Deol has not established the necessary link between the basis on which her father was refused a visa and discrimination against her in the constitutional sense.
[57]It was also relevant to the analysis in Benner, supra, that the child was the primary object of the discriminatory legislation that denied the automatic right to citizenship afforded to the foreign-born children of Canadian fathers. As Iacobucci J. put it, at paragraph 78:
The impugned provisions of the Citizenship Act are not aimed at the parents of applicants but at applicants themselves. That is, they do not determine the rights of the appellant's mother to citizenship, only those of the appellant himself. His mother is implicated only because the extent of his rights is made dependent on the gender of his Canadian parent.
[58]In contrast, subparagraph 19(1)(a)(ii) is aimed primarily at visa applicants, not sponsors. Ms. Deol's statutory sponsorship rights are only implicated because her father's admission to Canada is made dependent on whether he has a disability that is likely to cause excessive demands to health services in Canada.
[59]For these reasons, Benner, supra, seems to me distinguishable from the case at bar and to be of little assistance in advancing Ms. Deol's claim that her section 15 rights have been violated.
[60]The conclusion that Ms. Deol is not the subject of discrimination is also supported by the fact that, like other visa applicants, Mr. Singh was found medically inadmissible on the basis of individualized medical assessments, and prognoses of his condition, and of the resulting demands that he might reasonably be expected to cause on health services in Canada. Parliament has thus not written off all individuals with disabilities by attributing to them as a class stereotypical characteristics, but has attempted to draw distinctions on the basis of the actual circumstances of each visa applicant, including Mr. Singh. See Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R 703, at paragraphs 33 and 37.
[61]In these circumstances, Ms. Deol cannot claim that subparagraph 19(1)(a)(ii) discriminates against her by withholding a benefit "in a manner which reflects the stereotypical application of presumed group or personal characteristics" (Law, supra, at paragraph 88), or which otherwise has the effect of promoting the view that she is "less capable or worthy of recognition or value as a human being or as a member of Canadian society" (ibid.).
[62]Another contextual factor to be considered in the Law analysis (supra, at paragraph 74) is the nature of the rights affected. In this regard, it should be noted that no one, whether Canadian citizen or permanent resident, has a right to be joined by members of their family. Rather, permanent residents have a right to sponsor family members, who will be admitted if they satisfy the admission criteria. Ms. Deol exercised this right and her father's visa application was refused on the basis of an individualized assessment of the demands that he was likely to make a health services as a result of his disability. Subparagraph 19(1)(a)(ii) does not breach Ms. Deol's section 15 rights.
[63]Finally, I have no doubt that Ms. Deol feels a deep sense of disappointment and sadness that she is unable to be joined in Canada by her parents and other close family members. She may also regard with some envy, or even with a sense of unfairness, friends who have been able to sponsor the admission of their parents who do not have a disability that is likely to cause excessive demands on health services. Nonetheless, as the Supreme Court emphasized in Law, supra, absent a violation of human dignity in one of the manners described above, such grievances do not support a claim of discrimination and a denial of equality before the law for the purpose of section 15.
[64]Accordingly, in light of the contextual factors considered above, I conclude that the Minister may rely on subparagraph 19(1)(a)(ii) to refuse a visa to Mr. Singh. The refusal does not discriminate in the constitutional sense against Ms. Deol because it does not "violate [her] human dignity or freedom" (Law, supra, at paragraph 51).
F. CONCLUSIONS
[65]For these reasons, I would dismiss the appeal and answer as follows the certified questions:
Question 1: Is the portion of subparagraph 19(1)(a)(ii) of the Immigration Act which provides for inadmissibility on the ground of disability of no force or effect under section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] and should it be severed from the Immigration Act?
| Answer: No. |
Question 2: Is "more than normal" a legally acceptable measure of excessive demands under subparagraph 19(1)(a)(ii) of the Immigration Act? If so, what are the permissible criteria for the determination of normalcy?
| Answer: There is no statutory definition of excessive demands. In these circumstances, when cost is the issue, demands are excessive when they reasonably might be expected to exceed by a significant degree the average per capita health care costs incurred by that section of the Canadian population in the same age range as the visa applicant. |
Question 3: Is an election to have or not to have elective surgery relevant in determining whether or not a medical opinion under subparagraph 19(1)(a)(ii) of the Immigration Act is reasonable?
| Answer: Yes. However, a person cannot waive the right to publicly funded medical services that all permanent residents possess. Evidence of an intention not to undergo a particular treatment must be weighed with all other relevant evidence in determining whether the person might reasonably be expected to make excessive demands on health services in Canada. |
Question 4: Is the duty of fairness breached to a Manitoba sponsor of an immigrant and a Manitoba destined immigrant, when the Manitoba bonding program (if pertinent and applicable) is not disclosed to the sponsor and the applicant in the letter advising the applicant of a negative medical assessment and inviting the applicant to submit further information not already on the file?
| Answer: No. |
Question 5: Is the ability to pay relevant or irrelevant to the question of excessive demand under subparagraph 19(1)(a)(ii) of the Immigration Act when there is a Manitoba sponsor of an immigrant and a Manitoba destined immigrant, in light of the Manitoba bonding program if there be such program which is both accessible and applicable in these circumstances?
| Answer: On the facts of this case, no. |
Linden J.A.: I agree.
Malone J.A.: I agree.