Judgments

[2002] 1 F.C. 496

IMM-2661-00

2001 FCT 933

Jeannine Elise Redding (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Redding v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Lemieux J.—Edmonton, May 23; Ottawa, August 22, 2001.

Citizenship and Immigration — Exclusion and Removal — Inadmissible persons — Case law on medical inadmissibility reviewed — Applicant, afflicted by juvenile diabetes, including diabetic nephropathy, controlled hypertension, denied permanent residence on ground admission might reasonably be expected to cause excessive demands on health or social services — Law requiring answer to “excessive demand” question be formulated as expression of probabilities — Medical officer must assess applicant’s specific circumstances — In addressing issue of “excessive demands”, medical officer must have some evidence before him relating to supply of relevant service — Medical officer cannot ignore medical reports prepared by applicant’s specialists — In addressing issue of costs, medical officer must disclose relevant material so that applicant may comment.

The applicant was denied permanent residence as an inadmissible person under subparagraph 19(1)(a)(ii) of the Immigration Act. The applicant was afflicted by juvenile diabetes, including diabetic nephropathy, as well as controlled hypertension. Citizenship and Immigration Canada’s medical consultants were of the opinion that the course of this disease was such that it could reasonably be expected that she would require ongoing specialist care and review, hospital based investigation and ultimately recurrent hospitalizations such as to place excessive demand on our health services. The government’s doctor discounted medical reports submitted on behalf of the applicant to the effect that with strict blood sugar control and appropriate medication, together with the self-discipline which she has demonstrated, applicant’s condition might well not deteriorate to the point that she would require hospitalization.

Held, the application should be allowed.

On the issue of whether the applicant’s medical condition will cause excessive demands on Canadian health and social services, the law requires that the medical officer formulate his opinion as an expression of probabilities: Badwal v. Canada (Minister of Employment and Immigration). Here, the medical officer wrote that the applicant’s good blood sugar and high blood pressure control since 1991 “does not guarantee an equally favourable outcome for the next decade”. He added that future consultations with specialists “may be required”. Furthermore, the medical officer arrived at the conclusion that the applicant was medically inadmissible by looking at the general diabetes population rather than performing an assessment of her individual circumstances: Lau v. Canada (Minister of Citizenship and Immigration).

The relevant legislation fails to define what is an “excessive demand”. Section 22 of the Immigration Regulations, 1978 did try, but it has been held ultra vires in a number of Federal Court decisions. In Rabang v. Canada (Minister of Citizenship and Immigration) where the analysis required by the concept of “excessive demand” was explained, it was noted that the reasonableness of the medical officer’s opinion cannot be assessed in the absence of evidence as to the availability, scarcity and cost of the services likely to be required.

The medical officer certainly disregarded those medical reports which contradicted his findings.

Reliance on the Medical Officer’s Handbook could not be criticized as reliance on information withheld from the applicant as it is nothing more than a compendium of medical knowledge. However, failure to disclose material from the Diabetes Association and the Health Canada Report did constitute a reviewable error as it impeded the applicant’s meaningful participation in the process.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a).

Immigration Regulations, 1978, SOR/78-172, s. 22 (as am. by SOR/78-316, s. 2).

CASES JUDICIALLY CONSIDERED

applied:

Badwal v. Canada (Minister of Employment & Immigration) (1989), 64 D.L.R. (4th) 561; 9 Imm. L.R. (2d) 85; 107 N.R. 92 (F.C.A.); Lau v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 116; 43 Imm. L.R. (2d) 8 (F.C.T.D.); Rabang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1934 (T.D.) (QL); Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159; (1994), 112 D.L.R. (4th) 129; 20 Admin. L.R. (2d) 79; 14 C.E.L.R. (N.S.) 1; [1994] 3 C.N.L.R. 49; 163 N.R. 241; Hersi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2136 (T.D.) (QL); Maschio v. Canada (Minister of Citizenship and Immigration) (1997), 137 F.T.R. 210 (F.C.T.D.).

considered:

Thangarajan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 167 (1999), 176 D.L.R. (4th) 125; 1 Imm. L.R. (3d) 118; 242 N.R. 183 (C.A.); Mo v. Canada (Minister of Citizenship and Immigration), 2001 FCT 66; [2001] F.C.J. No. 216 (T.D.) (QL).

referred to:

Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 193; 29 Imm. L.R. (2d) 1 (F.C.T.D.); Ning v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 303; 39 Imm. L.R. (2d) 50 (F.C.T.D.); Manto v. Canada (Minister of Citizenship and Immigration), 2001 FCT 572; [2001] F.C.J. No. 864 (T.D.) (QL); Poon v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 75 (F.C.T.D.); Ludwig v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 271; 33 Imm. L.R. (2d) 213 (F.C.T.D.).

APPLICATION for judicial review of the denial of the applicant’s application for permanent residence on the ground of medical inadmissibility. Application allowed.

APPEARANCES:

Karen D. Swartzenberger for applicant.

Tracy J. King for respondent.

SOLICITORS OF RECORD:

Karen D. Swartzenberger, Edmonton, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Lemieux J.:

INTRODUCTION

[1]        Jeannine Redding (the applicant) is a U.S. citizen and is single. She holds two post-graduate degrees, one from the University of Victoria and the other from the University of Alberta. She is currently in possession of a valid Canadian employment visa and works for the Alberta Motor Association in its Program and Staff Development Department in Edmonton, Alberta.

[2]        In September 1999, she applied to become a permanent resident in Canada. On April 11, 2000, Mr. Raymond Gabin, Vice-Consul of the Canadian Consulate General in Buffalo, advised her application for permanent residence was denied because she fell within the class of inadmissible persons described in subparagraph 19(1)(a)(ii) of the Immigration Act [R.S.C., 1985, c. I-2] (hereinafter the Act):

19. (1) No person shall be granted admission who is a member of any of the following classes:

(a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,

(i) they are or are likely to be a danger to public health or to public safety, or

(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services. [Emphasis mine.]

[3]        The applicant seeks judicial review of that decision.

BACKGROUND

[4]        Miss Redding’s application for permanent residence was accompanied by a medical report completed by Dr. G. Mazurek. He reported the applicant was afflicted by juvenile diabetes, including diabetic nephropathy, as well as controlled hypertension.

[5]        Citizenship and Immigration Canada’s (hereinafter CIC) medical report form which is part of the application for permanent residence, requires physicians to check off all appropriate items in respect of their medical findings. Dr. Mazurek checked off the following two of the three findings on the printed form:

A.    Findings that are unremarkable or minor conditions which normally respond well to short term office/outpatient treatment. SURGERY IS NOT REQUIRED. Applicant can be followed by a general practitioner and will have minimal requirements for hospitalization or social services. NO ACTIVE TB OR DANGEROUS BEHAVIOUR. (e.g. NORMAL CHILDREN, controlled diabetes and/or hypertension with no associated significant end organ damage, cataracts not requiring immediate surgery, psychiatric disorders that are well controlled and where the applicant is capable of working and will likely remain self-sufficient, etc.)

B.    Findings that require periodic specialist follow-up care but which normally can be handled without resorting to repeated hospitalizations or the provision of social services (e.g. totally asymptomatic congenital or rheumatic heart disease where the requirement for hospitalization and/or surgical intervention appears unlikely over the next 10 years, well controlled rheumatoid arthritis with a minimal functional impact, etc.) Applicant should be able to function independently and be self-sufficient (no anticipated need for domiciliary or nursing home care in the future). No evidence of mental retardation or developmental delay. NO ACTIVE TB OR DANGEROUS BEHAVIOUR. At most only minor hospitalizations. [Emphasis mine.]

[6]        The one item Dr. Mazurek did not check off on CIC’s medical form was item C:

C.    Findings that may require more extensive investigations or care. Applicants where:

(1)   HOME/INSTITUTIONAL SUPERVISION & CARE is needed,

(2)   MAJOR OR RECURRENT HOSPITALIZATIONS are likely, (especially for procedures involving joint replacements, transplantation; cardiac surgery, subspecialist care, etc.),

(3)   SPECIALIZED HOSPITAL FACILITIES such as DIALYSIS units, CANCER outpatient clinics,

(4)   There is a need for use of intermittent/continuing SOCIAL SERVICES, or SPECIALIZED EDUCATION/VOCATIONAL TRAINING;

(5)   DETERIORATION appears likely,

(6)   The normal acquisition or maintenance of SELF-SUFFICIENCY APPEARS DOUBTFUL.

(7)   ACTIVE TB appears to be present or a communicable serious infectious disease.

(8)   BEHAVIOUR appears to be POTENTIALLY DANGEROUS to others. [Emphasis mine.]

[7]        The examples given under item C read as follows:

EXAMPLES: Dementia and psychiatric disorders causing clinically significant distress or impairment in social, occupational or other important areas of functioning, renal insufficiency, diabetic nephropathy or patients on renal dialysis or renal conditions with the potential for deterioration, symptomatic heart disease of any cause, or symptomatic peripheral vascular disease or symptomatic cerebro-vascular disease or functional impairment due to strokes etc.; Parkinsonism; multiple sclerosis or genetic/inherited or other conditions likely to create a functional deficit; follow-up for neoplastic disorders; chronic infections or degenerative or auto-immune conditions with complications or requiring long term treatment. [Emphasis mine.]

I should add that Miss Redding’s application also appended two other medical reports both with favourable prognosis.

[8]        The medical portion of the application for permanent residence was reviewed by Dr. St-Germain whose view was concurred with by Dr. Waddell (both are consultants for CIC). The narrative portion of Dr. St-Germain’s report dated January 26, 2000 states the following:

Diabe mellitus with target organ damage

This 35 year-old applicant has long standing diabetes mellitus type 1 with clinical evidence of target organ damage such as retinopathy, nephropathy and neuropathy. The course of this disease is such that it can reasonably be expected that the applicant will require ongoing specialist care and review, hospital based investigation and ultimately recurrent hospitalizations. The requirements for the treatment of complicated diabetes mellitus will place excessive demand on Canadian health services. The applicant is therefore inadmissible under section 19(1)(a)(ii) of the Immigration Act.

Also has: Hypertension [Emphasis mine.]

[9]        After receiving Dr. St-Germain’s report, Vice-Consul Gabin advised the applicant by way of letter dated February 4, 2000, of the medical notification he had received, and invited her to provide him with further medical information before a final decision was made.

[10]      The applicant submitted additional medical information consisting of medical opinions by three specialists: Dr. Ginsberg, her endocrinologist, Dr. Kovithavongs, her nephrologist and Dr. Uniat, her specialist in diabetic retinopathy.

[11]      Dr. Ginsberg, who has held an appointment at the University of Alberta for over 15 years noted, in a report dated March 30, 2000, that she has followed the applicant since 1991 and that she has been a long-standing type 1 diabetic since the age of 8. Dr. Ginsberg said that from 1991 to 1996, she saw her every three or four months for review and recently saw her for the purposes of her report. She had not previously seen her since 1996 “due to the fact that her excellent glycemic control required only Dr. Kovithavongs’ supervision”.

[12]      Dr. Ginsberg wrote the applicant’s meticulous attention to her diabetic care has produced excellent results in terms of stabilizing any potential diabetic complications. She reported that although Miss Redding previously had cataract surgery on both eyes, she has had stable mild non-proliferative diabetic retinopathy over the years. Dr. Ginsberg noted the applicant has some subtle evidence of peripheral neuropathy, but the filament has remained intact. Dr. Ginsberg wrote:

The early introduction of an angiotensin converting enzyme inhibitor, her excellent diabetic control and most importantly, the stability of her nephropathy observed over approximately 10 years bodes well that such stability will continue.

I must add that she has no history of ever being in diabetic ketoacidosis or required hospitalization during the time that I have known her. For someone with her history, she has placed little burden on the health care system and has required minimal attention compared to many of my other diabetic patients.

In regards to the previous immigration assessment, although I would agree that she will require intermittent specialist care, I disagree that she will necessarily require hospital-based investigation and recurrent hospitalization. This opinion is based on not only my experience, but the fact that she has achieved excellent glycemic control and has remained stable over the past decade. [Emphasis mine.]

[13]      The second medical report, dated March 27, 2000, was from Dr. Kovithavongs at the Division of Nephrology and Immunology, Department of Medicine, University of Alberta. The material portion of his opinion reads:

I can only re-state the fact that she is very persistent with her regular medical check-ups, that she is compliant with her medications, that she always checks her blood sugar four times a day and gives herself Insulin four times a day according to the blood sugar, that she is a non-cigarette smoker, and that she always keeps herself physically active. As a result, I also would like to re-emphasize the following: that her blood pressure is always normal, her hemoglobin A1C is always less than 8% which is a cut-off for good control, that her proteinuria is normal, that her eyes are stable, and that her renal function is stable in the last five or six years that I have been following her.

I also would like to mention that there have been several clinical trials in the last decade showing the impact of strict blood sugar control and the use of an angiotensin converting enzyme inhibitor on the long-term outcome of diabetic nephropathy. I think the natural course of diabetic nephropathy in Type 1 diabetics has been changed. Ten years ago a patient with diabetic nephropathy could go from relatively normal renal function to end-stage renal failure within a year. Now, I have patients who enjoy stable renal function for a decade because they follow medical advice and they look after themselves well. This patient is one of the most compliant that I have followed. She deserves a second look at her application. [Emphasis mine.]

[14]      The third medical report, authored by Dr. Uniat and dated February 29, 2000, states that the applicant has been a patient since 1995 and she has seen her on an annual basis for assessment of her diabetic retinopathy. It states over the five years, the applicant has remained very stable and acuities have remained 20/20 in both eyes. Dr. Uniat said that the applicant demonstrates “mild nonproliferative diabetic retinopathy and at this point requires no intervention”. She wrote the following:

We continue monitoring her on an annual basis. With good control of her sugars and blood pressure, the prognosis for maintaining her vision and not proceeding to more aggressive retinopathy is excellent. It is felt that both duration of the diabetes and control of blood sugars are important factors in terms of progressive retinopathy, however, neither can be used solely as an indication as to the progression of retinopathy in the future. [Emphasis mine.]

[15]      Vice-Consul Gabin sent all three medical reports to Dr. St-Germain for review. Subsequently, Dr. St-Germain wrote:

I have reviewed the new information as well as our medical file on this applicant and I am of the opinion that the new material does not modify the current assessment of medical inadmissibility. Dr. Walter G. Waddell FRCSC concurs.

[16]      After receiving this report, Vice-Consul Gabin wrote to the applicant on April 11, 2000, to advise her of her continued medical inadmissibility.

THE EVIDENCE IN THIS JUDICIAL REVIEW

[17]      In support of her application, the applicant filed an affidavit to which was appended all the medical reports referred to. For the respondent, affidavits were filed by Raymond Gabin and Dr. Waddell. There was no cross-examination on any of the affidavits.

[18]      The material paragraphs of Dr. Waddell’s affidavit dated July 19, 2000 are as follows:

10. I reviewed the Medical Officer’s Handbook. I also have a general knowledge of both adult onset diabetes mellitus controlled by diet and/or oral hypoglycemic agents and juvenile onset, insulin dependent, diabetes based upon my surgical professional career.

11. Mild, uncomplicated, adult onset, diabetes mellitus is often considered to be medically admissible since regular supervision by a general practitioner is all that is usually required. Juvenile onset diabetes mellitus in adults, requiring insulin, has a less favourable prognosis and requires regular supervision by a general practitioner with periodic specialist consultations.

12. The target organs mentioned in the narrative in this applicant are the kidneys, eyes and peripheral nerves. The other target organs commonly involved in patients with diabetes mellitus are the heart (coronary artery disease), the brain (cerebrovascular accident or “stroke”) and the arteries (arterial occlusive disease). There is no evidence of overt disease in the other possible sites in this applicant but close observation is required in view of long standing disease.

13. The treatment of diabetes mellitus is evolving and in the future computerized monitoring of the blood sugar to permit precise control of an “insulin pump” or transplantation of pancreatic islet cells may offer “curative” disease modification.

14. Most young healthy women may see a general practitioner two or three times a year and may consult a gynecologist on occasion. Insulin dependent diabetic patients will usually see the treating practitioner monthly and the specialist consultants at regular three, six or twelve month intervals.

15. The applicant has been followed by endocrinology, ophthalmology and nephrology; in the future consultations with cardiology, neurology and/or vascular surgery may be required.

16. The absence of complications since 1991 with good control of blood sugar and high blood pressure the Applicant is positive but does not guarantee an equally favourable outcome for the next decade. The current practice of precise control of diabetes and hypertension has been widely accepted for less than a decade.

17. I think both adult onset diabetes mellitus controlled by diet and/or oral hypoglycemic agents and juvenile onset, insulin dependent diabetes are significant health problems. I also think most authorities would agree that the prognosis is less favourable with insulin dependent diabetes (mellitus).

18. Consequently, based upon the foregoing, it is my belief that the ongoing observation that is required as well as the common complications of diabetes mellitus and hypertension are a significant drain on the Canadian Health and Social Services.

19. My belief is supported by the Canadian Diabetes Association, and a Health Canada report entitled Diabetes in Canada … .

20. Accordingly, the Applicant has been listed as M5 on the formal declaration of refusal. [Emphasis mine.]

[19]      Attached to Dr. Waddell’s affidavit is Exhibit “K” which is a true copy of the summary of assessment from the Medical Officer’s Handbook that explains the different criterion and statements found on the formal declaration of refusal. M5, the criterion that the applicant has been listed under, reads as follows:

Has a condition which is likely to cause demand on health or social services to such an extent that the applicant is not at present admissible under Section 19(1)(a)(ii), but for which the expected response to treatment is such that future admission could be considered. [Emphasis mine.]

ISSUES

[20]      (1) Did the medical officer err by turning his mind to the wrong question? (2) Did the medical officer err by failing to assess the applicant’s specific circumstances? (3) Did the medical officer err by carrying out a defective analysis of excessive demand? (4) Did the medical officer ignore the evidence? (5) Did the medical officer breach his duty of fairness by relying on the Medical Officer’s Handbook and referring to the material from the Canadian Diabetes Association and a Health Canada Report, without first disclosing them to the applicant?

ANALYSIS

(1) Did the medical officer err by turning his mind to the wrong question?

[21]      When a medical officer turns his mind to the question whether an applicant’s medical condition will cause excessive demands on Canadian health and social services, the law requires the answer be formulated as an expression of probabilities. In Badwal v. Canada (Minister of Employment and Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.), MacGuigan J.A wrote [at page 564]:

Although certainty in prognosis is not required, this court held in Re Hiramen and Minister of Employment and Immigration (1986), 65 N.R. 67, as an independent ground of decision, that the Act requires an expression of probabilities such that words like could and may are insufficient to provide. See Hiramen at p. 68: “This entry, apart from not constituting the opinion required, is couched in the language of possibility rather in that of probability.”

It is not that the mere use of the word “may” in the narrative of the medical profile leads by itself “determinatively to a conclusion of insufficiency,” an approach which was rejected by Marceau J.A. for the majority in the Pattar case. It is rather that the medical narrative makes excessive demands on the health or social system contingent upon the deterioration of the applicant’s current state of health, an eventuality which is stated to be merely possible. In either words, a probability as to treatment is deduced from a mere possibility as to health deterioration.

The corollary must be that, in the absence of deterioration, which in the narrative of the medical profile is only possible, there will be no excessive demands on the system. The medical profile is, therefore, self-contradictory, leading to the conclusion that the medical officer did not address his mind to the right question.

Medicine is not a science capable of exact measurement, but Parliament has required a judgment of probability based upon an appreciation of an applicant’s present condition. [Emphasis mine.]

[22]      In the case at bar, the medical officer states at paragraph 16 of his affidavit:

The absence of complications since 1991 with good control of blood sugar and high blood pressure the [sic] the Applicant is positive but does not guarantee an equally favourable outcome for the next decade. [Emphasis mine.]

[23]      In addition, Dr. Waddell, at paragraph 15 of his affidavit states that “in the future consultations with cardiology, neurology and/or vascular surgery may be required. [Emphasis mine.]

[24]      Badwal, supra, states that the question to be asked and answered is whether, on the balance of probabilities, Miss Redding’s medical condition is such as to cause or might reasonably be expected to cause excessive demands on health or social services.

[25]      As I see it, in the two paragraphs referred to, the medical officer adopted too high a standard in paragraph 16 in terms of a guarantee of an equally favourable outcome for the next decade in assessing the deterioration of her current medical condition. In contrast, in paragraph 15 he adopted too low of a standard framed in terms of a possibility in assessing what other target areas might be impacted by a deterioration of her current medical condition.

(2) Did the medical officer err by failing to assess the applicant’s specific circumstances?

[26]      The medical officer makes the following conclusions at paragraphs 15, 17 and 18 of his affidavit:

15. Insulin dependent diabetic patients will usually see the treating practitioner monthly and specialist consultations at regular, three, six or twelve month intervals.

…

17. I think both adult onset diabetes mellitus controlled by diet and/or oral hypoglycemic agents and juvenile onset, insulin dependent diabetes are significant health problems. I also think most authorities would agree that the prognosis is less favourable with insulin dependent diabetes (mellitus).

18. Consequently, based upon the foregoing, it is my belief that the ongoing observation that is required as well as the common complications of diabetes mellitus and hypertension are a significant drain on the Canadian Health and Social Services. [Emphasis mine.]

[27]      In my view, these passages show that the medical officer arrived at the conclusion that the applicant was medically inadmissible by looking at the general diabetes population rather than performing an assessment of her individual circumstances.

[28]      In Lau v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 116 (F.C.T.D.), at paragraph 10, Justice Pinard states the following:

In my view, the medical officers failed to respect the requirement for an individualized assessment in evaluating medical inadmissibility. The jurisprudence has clearly established that a finding of medical inadmissibility cannot be premised solely on the medical condition under review; rather, the individual applicant’s personal circumstances must be carefully reviewed. Mr. Justice Cullen expressed this requirement concisely in Poste v. Canada (M.C.I.) (December 22, 1997), IMM-4601-96, at pages 20 and 21:

The medical officers have a duty to assess the circumstances of each individual that comes before them in their uniqueness. The medical officers now have the statutory duty to give an opinion as to demands that would likely be placed on social services. It is insufficient for a medical officer to give an opinion on such demands in general; the opinion must be founded firmly on the individual’s personal circumstances and all the circumstances of the case. These would include the degree of family support and commitment to the individual, and the particular resources of the community. While a particular individual may cause excessive demands in one situation, in a different setting, the same individual may cause minimal or no demands at all. Medical officers must address themselves to the particular circumstances of the individual. Otherwise, cogent evidence is ignored, and opinions regarding demands on social services become unfounded and cannot be upheld by this Court. [Emphasis added.]

[29]      When I read paragraphs 15, 17 and 18 of Dr. Waddell’s affidavit, I fail to see how he came to grips with the individual circumstances of Miss Redding’s medical condition. He uses words such as “most authorities would agree the prognosis is less favourable with insulin dependent diabetes”, “diabetic patients will usually see”, “that the ongoing observation that is required and the common complications”. Dr. Waddell’s statements may be true of the average or majority of diabetes patients who are insulin dependent. However, the applicant’s material shows that her condition is stable and her prognosis is excellent. Dr. Waddell simply does not deal with her situation.

(3) Did the medical officer err in carrying out a defective analysis of the expression “excessive demand”?

[30]      There is no definition of the expression “excessive demand” in the Act or the Immigration Regulations, 1978 [SOR/78-172] (the Regulations) as amended although by section 22 [as am. by SOR/78-316, s. 2] of the Regulations an attempt has been made to identify relevant factors. Section 22 of the Regulations has been held ultra vires by a number of judges of this Court (Justice Cullen in Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 193 (F.C.T.D.); Justice Rothstein, as he then was, in Ning v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 303 (F.C.T.D.); and Justice O’Keefe in Manto v. Canada (Minister of Citizenship Immigration), 2001 FCT 572; [2001] F.C.J. No. 864 (T.D.) (QL). The ultra vires of section 22 of the Regulations was not an issue before me.

[31]      Rothstein J.A. defines it when he circumscribes the purpose of subparagraph 19(1)(a)(ii)[*] in Thangarajan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 167(C.A.) wherein he states [at paragraph 9]:

Health and social services are not unlimited and not costless. Subparagraph 19(1)(a)(ii) is clearly intended to ensure, as far as possible, that access to health and social services by Canadian citizens and permanent residents should not be denied or impaired by reason of excessive demands for those services by prospective immigrants. Paragraph 19(1)(a) is only triggered when a prospective immigrant is found to be suffering from a disease, disorder, disability or other health impairment. [My emphasis.]

[32]      In Mo v. Canada (Minister of Citizenship and Immigration), 2001 FCT 66; [2001] F.C.J. No. 216 (T.D.) (QL), O’Keefe J. states, at paragraphs 37-38, with respect to excessive demand:

Firstly it is to be noted, merely suffering from a disease or disorder does not render a person inadmissible: it is the effect of the disease that is critical to the determination. If, because of the nature, severity, or probable duration of the disease, excessive demands on health or social services would occur or might reasonably be expected to occur, the prospective immigrant is medically inadmissible to Canada.

Excessive demand has been defined as “more than normal”: Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (F.C.T.D.). [Emphasis mine.]

[33]      In any event, the kind of analysis which the concept of “excessive demand" requires is best expressed by Justice Sharlow, then of the Trial Division, who canvassed the law on this point in Rabang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1934 (T.D.) (QL), and wrote [at paragraphs 14, 20-21]:

The evidence in the medical record supports the medical officer’s opinion in so far as it relates to Patrick’s condition and his probable need for future medical attention, therapy and special education. However, with one minor exception (discussed in the next paragraph), there is no evidence as to what I call the non-medical aspects of the opinion, namely the availability, scarcity or cost of the publicly funded health or social services that Patrick is likely to require. No attempt has been made to fill this evidentiary gap with an affidavit. As a result, it is impossible to assess the reasonableness of the medical officer’s opinion that Patrick’s needs can reasonably be expected to place an excessive demand on health and social services in Canada.

…

In this Court, evidence of social cost has been adduced in a number of cases to justify a medical officer’s opinion as to excessive demand. I refer, for example, to Ma, supra, Mendoza v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1639, IMM-228-99 (October 29, 1999) (F.C.T.D.), and the proceedings in the Trial Division in Thangarajan, supra (reported at (1998), 152 F.T.R. 91) and the companion case, Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 … .

It was also argued for the Minister that the onus is on the applicants to satisfy the medical officer that Patrick’s demands on publicly funded health and social services would not be excessive, and they failed to provide any evidence in that regard. That argument does not address the fundamental problem in this case. The problem is that the record discloses no evidence at all on the critical question of excessive demand. [Emphasis mine.]

[34]      In Manto, supra, O’Keefe J. states [at paragraph 26]:

When considering whether the demand created by any particular medical condition is an excessive demand on health and social services, a medical officer must have some evidence before him relating to the supply of that health or social service in Canada. [Emphasis mine.]

[35]      The respondent’s affidavit material suffers from the same defect as in Manto, supra, (see also Poon v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 75 (F.C.T.D.).

[36]      The medical officer tried to address the issue of costs. There is an issue here whether this material which was not disclosed to the applicant who had no opportunity to comment on it below breached the rules of procedural fairness.

(4) Did the medical officer ignore the evidence?

[37]      As I see it, the medical officer reached his conclusions without regard to the evidence in this case. He states in his affidavit:

Mild uncomplicated adult onset diabetes mellitus is often considered to be medically admissible since regular supervision by a general practitioner is all that is usually required. Juvenile onset diabetes in adults, requiring insulin, has a less favourable prognosis and requires regular supervision by a general practitioner with periodic specialist consultations.

…

Most young healthy women may see a general practitioner two or three times a year and may consult a gynecologist on occasion. Insulin dependent diabetic patients will usually see the treating practitioner monthly and the specialist consultants at regular three, six or twelve month intervals. [Emphasis mine.]

[38]      He undeniably disregards the various medical reports that contradict his findings. These reports all verify that the applicant does not attend to the various specialists as often as was found by the medical officer in the typical case.

[39]      In Mo v. Canada (Minister of Citizenship and Immigration), supra, O’Keefe J. found [at paragraph 46]:

From my review of the medical reports and the other documents filed and considered by the medical officers, I have come to the conclusion that the medical opinion in this case includes a patently unreasonable error of fact in that the information available to the medical officers was not that the applicant’s son, Kok Ho Wong required special care and constant supervision. I am of the view that the evidence referred to by me in this decision establishes the opposite conclusion. The patently unreasonable error of fact results in an error of jurisdiction and the opinion is not a valid opinion under subparagraph 19(1)(a)(ii) of the Act. [Emphasis mine.]

(5) Did the medical officer breach his duty of fairness by relying on the Medical Officer’s Handbook and referring to the material from the Canadian Diabetes Association and a Health Canada Report, without first disclosing them to the applicant?

[40]      As a general rule, the duty of fairness of an administrative body requires the decision maker to disclose information to allow for a meaningful participation in the process. The Supreme Court of Canada held in Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 [at pages 181-182] that:

In general, included in the requirements of procedural fairness is the right to disclosure by the administrative decision-maker of sufficient information to permit meaningful participation in the hearing process: In re Canadian Radio-Television Commission and in re London Cable TV Ltd., [1976] 2 F.C. 621 (C.A.), at pp. 624-625. The extent of the disclosure required to meet the dictates of natural justice will vary with the facts of the case, and in particular with the type of decision to be made, and the nature of the hearing to which the affected parties are entitled. [Emphasis mine.]

[41]      With respect to the disclosure of a medical notification, Dawson J. had this to say in Hersi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2136 (T.D.) (QL) [at paragraphs 15-17]:

Greater disclosure has been required where the evidence established that new information or internal policies not contained in the fairness letter were relied upon. See, for example, Maschio v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 210 (F.C.T.D.).

In contexts other than those involving fairness letters and paragraph 19(1)(a) of the Act, the duty of fairness has been held to require disclosure of a negative risk assessment in the disposition of an application to remain in Canada made on humanitarian and compassionate grounds (Haghighi v. Canada (Minister of Citizenship and Immigration) (2000), 189 D.L.R. (4th) 268 (F.C.A.)) and to require disclosure of summary reports in the context of a danger opinion issued under subsection 70(5) of the Act (Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619(F.C.T.D.)).

It must be remembered however that the content of the duty of fairness is variable and contextual. Important factors to consider, as noted by the Supreme Court in Baker, supra, include the nature of the decision being made and the process followed in making it; the place of the decision within the wider statutory scheme; the importance of the decision to the individual affected; and that person’s legitimate expectations. [Emphasis mine.]

[42]      She further states [at paragraph 20]:

The ability to meaningfully participate in the decision-making process requires clear notice of the case to be met, a full and fair opportunity to present evidence and submissions relevant to that case, and full and fair consideration of that case by an impartial decision-maker.

[43]      I agree with the respondent’s position that reliance on the Medical Officer’s Handbook cannot not be said to be reliance on information that was withheld from the applicant. The Handbook consists of a compendium of medical knowledge and as such is like a medical textbook or journal. (See Ludwig v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 271 (F.C.T.D.).)

[44]      However, I am also of the view that the failure to disclose the material from the Canadian Diabetes Association and the Health Canada Report constituted a reviewable error in that it impeded the applicant’s meaningful participation in the process. As noted, these documents spoke to the issue of costs.

[45]      The respondent submits that the medical notification letter outlined the case to meet. I cannot agree with this position. The medical notification letter informed the applicant that, in the opinion of a medical officer, she suffered a condition that might make her medically inadmissible. The letter invites her to submit new medical information not on her file before a final decision is made. The applicant did not know that the Canadian Diabetes Handbook and a Health Canada Report, would be relied upon to make a determination in her case. I make mine Reed J’.s comments in Maschio v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 210 (F.C.T.D.) where she held [at paragraph 19]:

If the applicant had had adequate notice of the criteria the medical officers were applying and the content of his medical file, he could have provided Dr. Lo Cicero’s and Falk’s information to the medical officers for their consideration—rather than presenting it to the Court as evidence to support a claim that the decision by the medical officers was not well founded. A Court is not likely to second guess the medical opinion of the immigration doctors.

CONCLUSION

[46]      For the foregoing reasons, the application for judicial review is allowed. The decision of Vice-Consul Raymond Gabin is set aside and the matter is returned to a different visa officer and different medical officers for redetermination in accordance with these reasons.