Date: 20031112
Docket: A-207-03
Citation: 2003 FCA 421
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
DEREK GORDON PIGG
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on September 29, 2003.
Judgment delivered at Ottawa, Ontario, on November 12, 2003.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: LINDEN J.A.
MALONE J.A.
Date: 20031112
Docket: A-207-03
Citation: 2003 FCA 421
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
DEREK GORDON PIGG
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1] Derek Pigg, a citizen of India living in Singapore, applied for a permanent residence visa to enter Canada in the independent class. His dependent son, Steve, who was born in 1980, has cerebral palsy and epilepsy, and is developmentally delayed. As a result of the severity, nature or probable duration of this condition, medical officers were of the opinion that Steve's admission to Canada might reasonably be expected to cause excessive demands on social services. The services identified were special education in school up to the age of 22, speech therapy, and vocational and daily living skills training.
[2] Relying on this opinion, the visa officer refused the visa application on the ground that Steve is medically inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2. Mr. Pigg made an application for judicial review to have the visa officer's decision set aside.
[3] The application was unsuccessful: Pigg v. Canada (Minister for Citizenship and Immigration), 2003 FCT 426. The Applications Judge certified the following question: "Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause excessive demands on social services in Canada?"
[4] On this issue, the Applications Judge followed de Jong v. Canada (Minister for Citizenship and Immigration), 2002 FCT 1165, where, on the basis of this Court's decision in Deol v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 301, 2002 FCA 271, it was held that a visa applicant's ability and willingness to pay for whatever social services may be needed is not a factor that medical officers must take into consideration when determining whether the admission of a person with a disability is likely to cause excessive demands on social services in Canada.
[5] For the reasons given in Hilewitz v. Canada (Minister of Citizenship and Immigration), 2003 FCA 420, which was heard immediately before Mr. Pigg's appeal, I agree with the Applications Judge's conclusion. Accordingly, the appeal cannot succeed on this ground.
[6] Counsel for Mr. Pigg also challenged the propriety of the medical officers' excessive demands opinion on other grounds. In particular, he argued that it was not consistent with the medical evidence about either the amount of training that Steve would need, or his ability to tell the time reliably and to travel on public transport on his own. In addition, it did not specify the amount of speech therapy that he would require.
[7] These issues were all carefully considered by the Applications Judge and I agree with her that, neither individually nor collectively, do the defects alleged by Mr. Pigg constitute reviewable error on the part of the medical officers.
[8] Finally, counsel submitted that the medical officers breached the duty of fairness in failing to disclose to Mr. Pigg the content of two documents that they had consulted when assessing the costs of the social services that they found that Steve would likely require in Canada. The first is the Condition Report on Developmental Delay, a draft document prepared by the Immigration Health Policy Division of Citizenship and Immigration Canada, and routinely used by medical officers to determine the cost of social services. The second is the Student's Guide to Focussed Funding 2000-2001, a publication of the Ontario Ministry of Education, which explains the costs and funding of public education in Ontario.
[9] The duty to disclose these documents was not raised before the Applications Judge and it would be unfair to the respondent to permit the appellant to raise it in this Court for the first time. In any event, I am not satisfied that, in the context of Mr. Pigg's visa application, the duty of fairness required disclosure of the documents in question, which are of a general nature.
[10] Counsel submitted that they should have been disclosed in order to enable Mr. Pigg to show that he could pay for the social services himself. However, since ability and willingness to pay are not factors that medical officers must consider for the purpose of making an excessive demands assessment, the rationale for requiring disclosure of the documents does not apply to the facts of this case.
[11] For these reasons, I would answer the certified question, "Is an applicant's wealth a relevant consideration in determining whether his or her admission to Canada would cause
excessive demands on social services in Canada?" by saying that medical officers are not obliged to consider these factors. I would dismiss the appeal without costs.
"John M. Evans"
J.A.
"I agree
A.M. Linden J.A."
"I agree
B. Malone J.A."
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-207-03
STYLE OF CAUSE: DEREK GORDON PIGG v. MCI
DATE OF HEARING: September 29, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: Evans J.A.
CONCURRED IN BY: Linden and Malone JJ.A.
DATE: November 12, 2003
APPEARANCES BY:
Mr. M. Max Chaudhary For the Appellant
Mr. David Tyndale
Mr. Jamie Todd For the Respondent
SOLICITORS OF RECORD:
Mr. M. Max Chaudhary
Chaudhary Law Office
North York, Ontario. For the Appellant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent