Alibey v. Canada (Minister of Citizenship and Immigration)

Alibey v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-03-02
Neutral citation
2004 FC 305
File numbers
IMM-2649-02
Notes
Digest
Decision Content
Date: 20040302
Docket: IMM-2649-02
Citation: 2004 FC 305
Ottawa, Ontario, this 2nd day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
JUDE ALIBEY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision ("Decision") of a Visa Officer ("Visa Officer"), dated April 12, 2002, dismissing the application of Jude Alibey ("Applicant") for permanent residence.
BACKGROUND
[2] The Applicant's wife, Hazel Winston ("Ms. Winston"), is a quadriplegic as a result of a tragic car accident that occurred on February 6, 2000. Her condition is not expected to improve. Dr. Theriault prepared a Medical Notification (page 30 of the Certified Medical Tribunal Record ("CMTR")) in which he described the health impairments of Ms. Winston. Dr. Theriault expressed the opinion that her admission to Canada would place an excessive demand on Canadian health and social services.
[3] Dr. Cooper reviewed Ms. Winston's file and concurred with Dr. Theriault's assessment that Ms. Winston would place an excessive demand on Canada's health and social services. Dr. Cooper provided a second signature to the Medical Notification.
[4] Dr. Cooper's view was based on Ms. Winston's current and anticipated life-long total dependency on others for personal care and for all instrumental activities of daily living. Dr. Cooper considered that the level of care would have to be provided by caregivers or personal attendants 24 hours per day, seven days a week, either at home or in a long-term care facility. In addition, given the severe degree of Ms. Winston's impairment, she requires physical therapy on an on-going, regular basis to prevent the development of joint contractures. Furthermore, Ms. Winston would require adapted transportation to move between her home and outside locations.
[5] Ms. Winston was given an overall medical assessment of M7, which indicates that she has a condition that would cause excessive demand on health or social services, and which is not likely to respond to treatment. An M7 assessment can result in inadmissibility under subsection 19(1)(a)(ii) of the Immigration Act. Upon further review, Dr. Cooper discovered that she had made an error in not noting and correcting Dr. Theriault's proposed assessment of D4/5 in the D category (Anticipated Excessive Demand on Health or Social Services). Dr. Cooper felt that Ms. Winston would be more accurately classified as D2/6 or D3/6 because D2 indicates that the "person requires or may well require regular medical care" and D3 indicates that the person "requires or is expected to require at least one major episode of hospitalization within five years." An assessment of D6 indicates that the person "requires or probably will require family or special home care and/or supervision indefinitely."
[6] Dr. Cooper was advised by counsel for the Respondent that, on September 28, 2001, a Designated Immigration Officer advised the Applicant that Ms. Winston may be medically inadmissible to Canada under the Immigration Act. The Applicant was given an opportunity to respond to the description of his spouse's medical condition and to provide any new medical evidence. In response to this letter of September 28, 2001, the Applicant submitted additional material.
[7] Dr. Cooper reviewed all of the new material submitted by the Applicant. She decided there was nothing in the material to cause her to change her opinion. Only two letters were from a medical doctor. These letters confirmed the view that Ms. Winston suffered from quadriplegia and had no likelihood of further improvement and that she required long-term medical attention. None of the additional material altered Dr. Cooper's assessment.
[8] Dr. Cooper considered information from The Spinal Cord Injury Information Network that the average annual cost of care for a person with "low tetraplegia" (an injury comparable to Ms. Winston's injury) is US $41,983. Dr. Cooper also considered that Ms. Winston would also be eligible for admittance into a long-term care facility for nursing care, which would cost $36,000 a year in Ontario, of which $20,000 would be paid for by the provincial government.
[9] Dr. Cooper considered the specific circumstances of Ms. Winston and her supportive family environment. She also considered the reality that, even if Ms. Winston's family chose to care for her at home, they would not likely be able to do so 24 hours a day. Ms. Winston would likely qualify for the maximum level of personal care assistance in Ontario. Dr. Cooper considered that the cost of such care would amount to approximately $24,000 a year in Ottawa or at least $5,000 a year in Toronto.
[10] Dr. Cooper considered that Ms. Winston would also be eligible for ongoing physiotherapy and advanced medical devices such as dynamic positioning devices and motorized wheelchairs, which would be provided for her under programmes that are, in part, publically funded.
[11] The additional materials submitted by the Applicant also included information on adaptive transportation services, such as the Wheel Trans Service, and described assessment for eligibility and appeal processes after refusal for services. Although the indication was that Ms. Winston did not intend to use such services, Dr. Cooper considered the fact that Ms. Winston would likely be eligible for, and might need, such services in the future. Dr. Cooper considered that these services are heavily subsidized, and even one return trip per week would cost the public nearly $2,000 per year.
[12] As Dr. Theriault was absent from his Ottawa office at the time that the additional material provided by the Applicant was reviewed, Dr. Paradis reviewed the entire file, including the new information. Dr. Paradis concurred with Dr. Cooper's opinion that the new information did not alter the medical profile and the determination made in the Medical Notification of June 20, 2001, that Ms. Winston would cause excessive demands on health or social services. Dr. Cooper conveyed this opinion to the Immigration Office on April 11, 2002.
[13] By letter dated April 12, 2002, the Visa Officer refused the Applicant's application for permanent residence on the ground that the Applicant was unable to meet the requirements for admission to Canada. The Immigration Officer determined that the Applicant's spouse (Ms. Winston) was medically inadmissible pursuant to subsection 19(1)(a) of the Immigration Act.
STATUTORY FRAMEWORK
[14] The burden of proving that a person's admission into Canada would not be contrary to the Immigration Act or Immigration Regulations rests upon the person who seeks admission to Canada.
[15] Subsection 19(1)(a)(ii) of the Immigration Act provides as follows:
Inadmissible persons
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;
Personnes non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
a) celles qui souffrent d'une maladie ou d'une invalidité don't la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, don't l'avis est confirmé par au moins un autre médecin agréé, conclut:
...
ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
[16] Every person seeking permission to establish permanent residence in Canada as an immigrant must undergo a "medical examination" by a "medical officer." A medical examination may include a mental and physical examination and a medical assessment of relevant records. A "medical officer" means a qualified medical practitioner authorized or recognized by the Minister as a medical officer for the purposes of the Immigration Act and Immigration Regulations.
[17] In the course of examining the prospective immigrant, a medical officer must form an opinion as to whether, as a result of the immigrant's health and medical condition, the admission of the immigrant into Canada would cause, or might reasonably be expected to cause, excessive demands on Canadian health and social services due to the nature, severity and probable duration of any identified medical or health condition.
[18] If a prospective immigrant is determined by a medical officer (whose opinion is concurred in by at least one other medical officer) to be a person whose admission would or might reasonably be expected to cause "excessive demands" on Canadian health or social services, which phrase has been defined by this Court as " ... more than what is normal or necessary ..." (Jim et. al. v. Canada (Solicitor General) et al. (1993), 69 F.T.R. 252 (T.D.) at p. 258), that immigrant shall not be granted landing as he or she is a member of an inadmissible class and does not meet the requirement of the Immigration Act or the Immigration Regulations.
[19] The Medical Officer's Handbook defines assessments in the D category (relating to anticipated demand on health or social services) as follows:
CRITERION D
D1 No anticipated demand for regular medical care or social services.
(i) Health
D2 Requires or may well require regular medical care.
D3 Requires or is expected to require at least one major episode of hospitalization within five years.
D4 Requires or probably will require extensive medical care and/or likely to require recurrent hospitalization.
(ii) Social Services
D5 Requires or probably will require regular social supervision or will probably require special education but may become self-supporting.D6 Requires or probably will require family or special home care and/or supervision indefinitely.
D7 Requires or probably will require continuous institutional care.
COMMENTARY
Minor degree of arthritis and other common diseases which would require an occasional visit to a doctor might be placed in this category.
These are patients with a currently stable disease or who are on maintenance therapy. Example: some cases of diabetes, hypertension and hypothyroidism or inactive TB requiring surveillance.
Example: inguinal hernia, requiring surgery with prospect of good response, and cholelithiasis with history of colic.
Example: severe multiple sclerosis, chronic obstructive lung disease, metastatic disease, renal dialysis, organ transplantation, chronic hospital care and rehabilitation services.
Example: a person with a mental impairment might be educable and become self-supporting.
Care might be of social welfare or educational type.
Example: mental deficiency or a grade that would render the patient unemployable and/or unable to perform the activities of daily living necessitating requirement for home care services. Another example would be a hemiparesis with residual disability which can be cared for at home. More severe cases will fall into the category.
Example: certain cases of severe retardation, severe chronic psychotics, many cases of hemiplegia or paraplegia.
ISSUES
[20] The Applicant raises the following issues:
Did the Medical Officer err by turning her mind to the wrong question?
Did the Medical Officer err by failing to assess the Applicant's specific circumstances?
Did the Medical Officer err by carrying out a defective analysis of excessive demand?
Did the Medical Officer ignore evidence?
Did the Medical Officer breach her duty of fairness by relying on the Medical Officer's Handbook and referring to additional material including The Spinalcord Injury Information Network, Facts and Figures at a Glance, May 2001, published by the University of Alabama at Birmingham and Medical Services - Long-Term Care Costs in Ontario without disclosing them to the Applicant?
ARGUMENTS
Applicant
Did the Medical Officer err by turning her mind to the wrong question?
[21] The Applicant submits that when a medical officer considers whether an applicant's medical condition will cause excessive demand on Canadian health and social services the law requires the answer to be formulated as an expression of probabilities. See Badwal v. Canada (Minister of Employment and Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.), at p. 564.
[22] The Applicant submits that, in this case, medical specialist reports dated December 18, 2001 and January 29, 2002 and provided by Dr. Peter Poon-King, confirmed that Ms. Winston's condition had plateaued and that her functional capacity would not improve further. All medical reports confirmed that there had been no further deterioration in her condition and that none was foreseeable. In addition, the Applicant submits that the services Ms. Winston requires will be provided by her family under, for instance, a home-based exercise program. She will also have to see a rehabilitation specialist twice each year and consult with her doctor if she gets urinary tract infections.
[23] The Applicant submits that, notwithstanding the aforementioned, Dr. Cooper determined that it was reasonable to expect that Ms. Winston would require nursing home care, hospital based care (such as occupational and physiotherapy and social workers), adapted transportation and home care. The Applicant urges that this assessment ignores the facts of this case and the evidence. In addition, the Applicant submits that the Medical Officer did not state the likelihood of Ms. Winston requiring or using these services in accordance with Redding v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 496 (T.D.).
[24] The Applicant submits that the Medical Officer specifically stated in her affidavit that she "made an error in not noting and not correcting Dr. Theriault's proposed assessment of D4/5 in the D category." The Applicant contends that, as a result of this statement, the Medical Officer determined after the case was concluded that there had been an error in her assessment. This error could not have been addressed by the Visa Officer or the Applicant because they were not aware of it. The Applicant submits that this is an error of law.
[25] The Applicant further submits that the law requires that a specific assessment be done for each applicant. In this case, the Medical Officer made general assumptions as a result of Ms. Winston's quadriplegia. Notwithstanding the evidence and Ms. Winston's history, as well as the statements from her family and her doctors, Dr. Cooper determined that Ms. Winston might use social and medical services that are presently not being used by her and there is no indication or objective basis to suggest why Ms. Winston would require such services in the future.
[26] The Applicant submits that, in addition to interpreting and quoting statements from the Medical Reports out of context, and without completing the full statement of the Medical Report, the Medical Officer ignored or misinterpreted the assessment of the Rehabilitation Specialist. In addition, the Applicant submits that, notwithstanding Dr. Cooper's statements to the contrary in her affidavit, there is no indication that Ms. Winston would use long-term nursing care or physiotherapy when she comes to Canada. The Applicant notes that Ms. Winston does not use either of these services currently and there is no reason to believe that she will use them in Canada.
[27] The Applicant submits that Dr. Cooper repeatedly made reference to services that Ms. Winston may be eligible for and points out that these services require a means test. Because the Applicant and Ms. Winston have means, they would not make a demand on health and social services. The Applicant submits relevant information on this issue was not disclosed to him, and he never had the opportunity to respond to the Medical Officer's concerns in this regard.
[28] To support this position, the Applicant refers to the decision in Lau v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 485 (T.D.).
[29] The Applicant submits that the Medical Officer breached her duty and committed a reviewable error in the case at bar by not paying attention to Ms. Winston's particular circumstances.
Did the Medical Officer err by carrying out a defective analysis of excessive demand?
[30] The Applicant submits that the Medical Officer confirmed she had made limited inquiries with respect to some services and no inquiries whatsoever with respect to the availability of other services that the Applicant may require. The Applicant notes that Sharlow J. indicated the following in Rabang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1934 (T.D.):
14. 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.
...
20. 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 (both affirmed by the Federal Court of Appeal on June 24, 1999), [1999] F.C.J. No. 1022.
21. 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.
[31] In the case at bar, the Applicant argues that the medical record and affidavit evidence focus primarily on costs rather than availability or other considerations, such as displacement of Canadian citizens with respect to medical services.
[32] The Applicant submits that Dr. Cooper also relies on irrelevant information regarding costs. Dr. Cooper refers to "The Spinal Cord Injury Information Network, which states that the average annual cost of care for a person with "low tetraplegia", an injury comparable to Ms. Winston's injury, is US $41,983.00." The Applicant submits that this information is based on U.S. services and is published by the University of Alabama and is of no significance or relevance for Canadian health assessment purposes. Based on this, the Applicant argues Dr. Cooper clearly addressed her mind to the wrong issue and made a defective analysis of excessive demand. The Applicant submits that Dr. Cooper's reliance on an assessment by a U.S. university for the average costs of Americans is totally irrelevant to costs that would, or may, be relevant to a person in Canada. In addition, this information was never disclosed to the Applicant so that he never had the ability to respond.
Did the Medical Officer ignore evidence?
[33] The Applicant suggests that Dr. Cooper completely ignored the specialists' reports, as well as the evidence provided by the Applicant's solicitor regarding the availability of medical services in Ontario as well as the Applicant's statement regarding his means and continued love, affection and intention to continue to take care of his wife. The Applicant submits that Dr. Cooper's analysis is based on generalizations that could be applicable to the general population, but there is no specific assessments of Ms. Winston's situation.
Did the Medical Officer breach her duty of fairness by relying on the Medical Officer's Handbook and referring to additional material, including The Spinalcord Injury Information Network, Facts and Figures at a Glance, May 2001, published by the University of Alabama at Birmingham and Medical Services - Long-Term Care Costs in Ontario without disclosing them to the Applicant?
[34] The Applicant relies upon the guidance provided by Lemieux J. in Redding v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 496 (T.D.) concerning what information needs to be disclosed to meet the duty of fairness.
[35] The Applicant submits that the circumstances in the case at bar are even more favourable to the Applicant because Dr. Cooper relied upon additional reports and evidence that were not disclosed to the Applicant.
Respondent
Did the Medical Officer err by turning her mind to the wrong question?
[36] The Respondent submits that the Medical Officer properly assessed the Applicant's case and considered the evidence provided by the Applicant. Although the report by Dr. Peter Poon-King indicated that Ms. Winston's condition had plateaued and that her functional capacity would not improve further, the Medical Officer found that Ms. Winston would require additional medical attention because she is more prone to certain medical problems as a result of her quadriplegia. These problems include urinary tract infections and lung infections. She will also need ongoing physiotherapy to prevent joint contractures and 24-hour care from personal attendants for health and safety reasons.
[37] The Respondent notes that the Applicant argues that in Redding, supra, the medical officer erred by looking at the general diabetes population rather than performing an assessment of the individual circumstances of the applicant in that case. The Respondent argues that, in the case at bar, the Medical Officer noted that Ms. Winston is quadriplegic and that there were no indications of improvement. The Respondent submits that, given her condition, Ms. Winston would be prone to certain medical problems and, therefore, the Medical Officer properly assessed what those specific problems would cost.
[38] The Respondent argues that, as insulin dependent diabetes may change over time, the Redding, supra, case does not assist the Applicant . In this case, the Respondent submits there is no doubt the Ms. Winston's condition will not change. This is clear from the report of Ms. Winston's own doctor.
[39] The Respondent submits that, in spite of the error in her report concerning the appropriate D classification, the Medical Officer would still have found that the Applicant would cause excessive demand on medical and social services in Canada.
[40] The Respondent points out that the Medical Officer specifically addressed the reasons why Ms. Winston would require medical and social assistance and did not ignore the evidence of Ms. Winston's family, her doctors and her history:
I considered the specific circumstances of Ms. Winston and her supportive family environment. However, I also considered the reality that even if her family chose to care for her at home, it is unlikely that they would be able to do so on a 24 hour a day basis, as revealed by the fact that they already require outside case provision services for at least 8 hours a day in Trinidad.
Affidavit of Dr. Cooper, at paragraph 13
[41] Ms. Winston is quadriplegic and can only feed herself with assistance. Consequently, the Respondent submits that it is logical and necessary to assess Ms. Winston's needs with a realistic consideration of her everyday living requirements.
[42] The Respondent points out that the Rehabilitation Specialist did not indicate that Ms. Winston would only require two visits a year. Dr. Poon-King's letter indicated that Ms. Winston should meet with a Rehabilitation Specialist twice yearly. The Respondent says this means that more frequent visits might be required. The Respondent submits that it was open to the Medical Officer, based on Ms. Winston's medical condition and what she would be eligible for, to assess the likely number of visits she would require.
[43] Despite the family's willingness to take care of Ms. Winston, the Medical Officer noted that the family already uses 8 hours per day of the care provision services available in Trinidad. Consequently, the Respondent submits that it was open to the Medical Officer to assess the Applicant's eligibility for admission into a long-term care facility because, if she were landed in Ontario, she would be eligible for the maximum level of personal care assistance. Given these circumstances, as well as the degree of impairment, the number of family members in Trinidad and the added pressures of immigrating to a new country, it was reasonably open to the Medical Officer to find that the family may require more than 8 hours a day of care provision services in Canada.
[44] The Respondent submits that the Medical Officer was charged with the responsibility of assessing what services Ms. Winston might require (or be eligible for) based on her particular medical condition. The Respondent argues that, even if Ms. Winston elects not to utilize medical services, that cannot be determinative of the demands that an individual's admission might reasonably be expected to make upon health services (Deol v. Canada (Minister of Citizenship and Immigration) (2001), 19 Imm. L.R. (3d) 26 (T.D.) and Minister of Citizenship and Immigration v. Khan (2001), 283 N.R. 173) (F.C.A.).
[45] The Respondent also notes that the Federal Court of Appeal in Deol, supra has rejected an argument similar to that put forth by the Applicant that the Medical Officer erred by not considering the financial means or support the family could provide to Ms. Winston. This is because, 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.
[46] As regards the Applicant's argument that the Respondent had the duty to disclose information relied upon by the Medical Officer (such as the Ontario Ministry of Health and Long-Term Care and other services which the Applicant may be eligible for), the Respondent submits that the Applicant has failed to provide any authority for the proposition that the duty of fairness requires disclosure of information that is relied on for an assessment of excessive demand. The Respondent submits that the only requirement is that the Applicant be given an opportunity to submit additional information to the Medical Officer on the medical condition, diagnosis or opinion. This is what occurred in this case.
Did the Medical Officer err by carrying out a defective analysis of excessive demand?
[47] On this issue, the Respondent submits that all persons who apply for immigrant visas and who are in peril of a denial on medical grounds should be given the opportunity to provide both additional medical evidence and also to respond to the "excessive demand" conclusion rendered by Canadian medical officers.
[48] The Respondent notes that, in this case, the Applicant was given both of these opportunities, and indeed availed himself of them. The Respondent submits that the Visa Officer's letter advised the Applicant of the doctors' "excessive demand" conclusion and stated as follows:
Before I make my final decision, you may submit additional information or documents relating to the above noted medical condition, diagnosis or opinion. You may also submit any information addressing the issue of excessive demand it [sic] if applies to your case.
[49] The Respondent submits that this wording cannot reasonably be construed as limiting the Applicant to providing only new medical information. The Respondent refers to the judgement of Wetson J. in Ma v. Canada (Minister of Citizenship and Immigration) (1988), 140 F.T.R. 311 (T.D.) at p. 315:
16. In this case, while the Visa Officer's letter did not specifically request additional information concerning the issue of excessive demand, and the medical notice provided to the applicant did not specifically mention the Developmental Disabilities Condition Report relied upon by the Medical Officers in forming their opinions, it cannot be said that the applicant did not have, nor take full advantage of, the opportunity to address the issue of excessive demand, as well as the child's diagnosis and prognosis.
[50] The Respondent submits that the Applicant's actual response to the Visa Officer's invitation made it clear that the Applicant clearly understood it as an opportunity to address the central issue of excessive demand by means that went beyond new medical advice.
[51] The Respondent submits that the Applicant baldly asserts that the Medical Officer made limited inquiries with respect to some services and no inquiries with respect to the availability of others. However, the Applicant fails to make any specific allegations to which the Respondent can properly respond. The Respondent submits that the only reference is to the displacement of Canadian citizens. However, as the Applicant did not require medical services, such as surgery, which would displace Canadians, displacement was not an issue before the Medical Officer. The assessment was based on the services that the Applicant would utilize because of her quadriplegia.
[52] With respect to the reference made to the Spinal Cord Injury Information Network, the Respondent submits that the Medical Officer's reference does not demonstrate that she turned her mind to the wrong issue. The Medical Officer was only making reference to the Information Network to give an indication as to how much money could be required to support a person in the Applicant's circumstances. The fact that it is a US document, and quoted in US dollars, does not mean that it is irrelevant. Foreign currency references can be easily converted into Canadian dollars.
Did the Medical Officer ignore evidence?
[53] On this issue, the Respondent submits that the duty of fairness in the immigration context does not require an administrative decision-maker to divulge to a prospective immigrant the complete details of a medical officer's methods of evaluation, the specific evidence before them, or the facets of the specific decision-making process adopted by them to implement the provisions of the Immigration Act. Rather, the duty of fairness requires that a visa officer provide an adequate opportunity to an applicant to respond to a negative medical assessment before it is acted upon by the visa officer. It is upon that medical assessment that the outcome of the visa application turns (Gao v. Canada (Minister of Citizenship and Immigration) (1993), 61 F.T.R. 65 (T.D.)).
Did the Medical Officer breach her duty of fairness by relying on the Medical Officer's Handbook and by referring to additional material including The Spinalcord Injury Information Network, Facts and Figures at a Glance, May 2001, published by the University of Alabama at Birmingham and Medical Services - Long-Term Care Costs in Ontario without disclosing them to the Applicant?
[54] The Respondent submits that it was proper for the Medical Officer to rely on the Medical Officer's Handbook in her assessment of the Applicant's case. The Medical Officer has no legal duty to disclose the Medical Officer's Handbook before making a final decision.
ANALYSIS
[55] Opposing counsel expressed considerable disagreement at the hearing of this matter about the implications of the relevant statutory provisions and case law. Consequently, I think it would assist the analysis if, before proceeding to the merits, I stated my understanding of the applicable ground rules.
[56] The Applicant's principal argument in this case is that ss. 19(1)(a)(ii) was not applied correctly because the Medical Officer concerned did not address the specifics of the Applicant's situation and did not turn her mind to whether, given the Applicant's actual condition and family situation, excessive demands might reasonable be expected. In this regard, the Applicant places heavy reliance upon the decisions in Badwal v. Canada (Minister of Employment and Immigration) (1989), 64 D.L.R. (4th) 561 (F.C.A.) and Lau v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 485 (T.D.).
[57] The importance of these two decisions for the Applicant's position justifies a closer look at what was actually said. In Badwal, supra, MacGuigan J.A. wrote as follows at p. 564:
... As Pratte J.A. wrote in Canada (Minister of Employment and Immigration) v. Pattar, A-710-87, decided October 28, 1988 [8 Imm. L.R. (2d) 79 at p. 82, 98 N.R. 98 (F.C.A.)]:
A layman, in the absence of medical evidence, cannot draw any inference as to the probable consequences of a physical disorder the cause of which is unknown. A medical doctor is not, however, in the same situation; because of his specialized knowledge and experience he may, in many cases, assess the likelihood that a physical disorder of unknown origin be very serious and dangerous and require long hospitalization.
A medical opinion as such cannot be second-guessed by the Board.
Nevertheless, we are all agreed that the majority decision cannot be allowed to stand. 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." (Emphasis added.)
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.
[58] In Lau, supra, Pinard J. placed a great deal of emphasis upon the need for an "individualized assessment in evaluating medical inadmissibility." At para. 10 and 11, he wrote as follows:
10. 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.)
11. It can be noted from this passage that Justice Cullen placed a great deal of emphasis on the impact of family support on the demands an individual's medical condition might place on Canadian health and social services.
[59] Thus far, there would appear to be no disagreement in principal between the parties. Where they begin to diverge, however, is in relation to the interpretation of the decisions in Hilewitz v. Canada (Minister of Citizenship and Immigration) 2003 FCA 420 and Deol, supra. These two cases have a particular significance for the case at bar because they deal, inter alia, with an assessment under ss. 19(1)(a)(ii) where there is evidence of a willingness and an ability to provide family support as a way of alleviating the demands on health or social services. At first blush, it might seem obvious that the principal of basing an excessive demands assessment upon the individual's personal circumstances, as enunciated in Lau, supra, would require a medical officer to have regard to the ability and willingness of the applicant and their family to provide support themselves. The Poste decision referred to in Lau, supra, is, in fact, specifically cited and discussed by the Federal Court of Appeal in Hilewitz, supra, which provides a thorough review of the competing case law and an interpretation of ss. 19(1)(a)(ii) on this point. Writing for the Court in Hilewitz, supra, Evans J.A. addressed the issue as follows:
68. As I have already indicated, despite the weight of Federal Court authority to the contrary, the availability of parental resources to pay for social services is not a factor that a medical officer must consider in assessing the likelihood that a person's admission to Canada might reasonably be expected to cause excessive demands on social services, even though they may be available on a full or partial cost recovery basis, or may be purchased or provided privately. My reasons are as follows.
(a) the legislative text
69. The text of subparagraph 19(1)(a)(ii) identifies factors that the medical officer must take into account when forming an excessive demands opinion, namely, the nature, severity or probable duration of the person's medical condition. In my opinion, the Court should only imply additional factors in order to ensure the efficacy of the statutory scheme.
70. Thus, in Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] S.C.J. No. 28, 2003 SCC 29 at para. 176, Binnie J. implied a requirement that persons were "qualified" to be appointed by the Minister to chair a compulsory arbitration board only if they were experienced in labour relations and were broadly acceptable