Docket:
A-1-13
Citation:
2013 FCA 257
CORAM:
BLAIS
C.J.
SHARLOW
J.A.
STRATAS
J.A.
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Appellant
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and
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JAMES JOSEPH LAWRENCE
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the
Bench at Toronto, Ontario, on November 4, 2013).
SHARLOW J.A.
[1]
The respondent James Joseph Lawrence applied for
permanent residence in Canada pursuant to the Immigration and Refugee
Protection Act, S.C. 2001 c. 27, but his application was denied by an
immigration officer. Mr. Lawrence applied for judicial review of the officer’s
decision. That application was heard by Justice Mosley, who allowed the
application and set aside the decision (2012 FC 1523). The Minister of
Citizenship and Immigration now appeals to this Court.
[2]
The facts are undisputed. They are summarized in
paragraphs 2 to 5 of Justice Mosley’s reasons, which are reproduced here:
[2] When the applicant and his
family underwent their mandatory medical exams, the physician noted that the
applicant’s son had developmental delay and moderate learning difficulties.
When this was noticed in the applicant's file, the Medical Assessment Unit at
the Canadian High Commission in London requested further details. These were
provided, and on April 26, 2010 Dr. Sylvain Bertrand, the Medical Officer in London, recorded his opinion that the boy, aged 15 at the time, was medically
inadmissible.
[3] The average cost
threshold for social services for an average Canadian child at that time was
$5,143 per year. Dr. Bertrand assessed that the boy would require services
amounting to between $98,500 and $126,500 over five years rather than the
$25,715 average cost over five years. This was communicated to the applicant in
a letter from the Visa Officer in London, Ms. Valerie Feldman, dated April 29,
2010.
[4] In response, the
applicant provided a mitigation plan including personal financial information,
letters of support promising financial or equivalent assistance, and evidence
of contact with two Toronto area private schools. He did not dispute the
medical diagnosis or the assessed cost of the required services.
[5] The Visa Officer did not
send the applicant’s plan to the Medical Officer for evaluation but assessed it
herself. The Officer stated in her reasons that “The information in the
submission is not medical (they do not contest the medical diagnosis) therefore
this submission does not need to be reviewed by the medical officer.” On
September 14, 2011, the application was refused.
[3]
Justice Mosley concluded that the officer was
obliged as a matter of law to refer Mr. Lawrence’s response to the fairness
letter to the medical officer for consideration. That conclusion was based on
the principle that where an applicant for permanent residence has a health
condition, the medical officer must assess the likely demands of that condition
on Canada’s social services, taking into account both medical and non-medical
factors: Hilewitz v. Canada (Minister of Citizenship and Immigration);
De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57,
[2005] 2 S.C.R. 706.
[4]
We agree with Justice Mosley that, on the
correct interpretation of the statutory scheme, it is the medical officer alone
who must determine the medical condition of the applicant, the financial burden
of that medical condition on publicly funded social services and, most
importantly for this case, whether any mitigation plan submitted by the
applicant will provide appropriate treatment for the medical condition while
reducing the burden on publicly funded social services.
[5]
The medical officer cannot be relieved of the
responsibility to assess a mitigation plan. Therefore, a mitigation plan
submitted by an applicant raising matters that may fall within the mandate of
the medical officer (as explained in Hilewitz) must be referred to the
medical officer for assessment and decision, whether or not the applicant
disputes the medical officer’s initial medical opinions or cost estimates.
[6]
For that reason, we will dismiss the appeal. Justice
Mosley certified the following question under subsection 74(d) of the Act as a
serious question of general importance:
When
a principal applicant in a response to a fairness letter does not dispute the
medical diagnosis or medical prognosis or the cost estimates to provide social
services is there an obligation on the immigration officer to refer the
response to the medical officer for consideration and decision?
We will answer the
certified question as follows:
When
a principal applicant in response to a fairness letter submits a proposal to
mitigate the costs of publicly funded social services, and the proposal raises
matters that may fall within the mandate of the medical officer (as explained
in Hilewitz v. Canada (Minister of Citizenship and Immigration); De
Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57,
[2005] 2 S.C.R. 706), that proposal must be submitted to the medical officer for
consideration even if the applicant does not dispute any of the medical
officer’s initial conclusions.
"K. Sharlow"
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