Canada (Attorney General) v. Mavi

Canada (Attorney General) v. Mavi
Collection
Supreme Court Judgments
Date
2011-06-10
Neutral citation
2011 SCC 30
Report
[2011] 2 SCR 504
Case number
33520
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Ontario
Subjects
Administrative law
Immigration
Notes
SCC Case Information: 33520
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504
Date: 20110610
Docket: 33520
Between:
Attorney General of Canada
Appellant
and
Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano,
Nedzad Dzihic, Rania El‑Murr, Oleg Grankin, Raymond Hince,
Homa Vossoughi and Hamid Zebaradami
Respondents
And Between:
Attorney General of Ontario
Appellant
and
Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano,
Nedzad Dzihic, Rania El‑Murr, Oleg Grankin, Raymond Hince,
Homa Vossoughi and Hamid Zebaradami
Respondents
- and -
South Asian Legal Clinic of Ontario, Canadian Council for Refugees,
Metropolitan Action Committee on Violence against Women and Children
and Canadian Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 80)
Binnie J. (McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504
Attorney General of Canada Appellant
v.
Pritpal Singh Mavi,
Maria Cristina Jatuff de Altamirano,
Nedzad Dzihic, Rania El‑Murr,
Oleg Grankin, Raymond Hince,
Homa Vossoughi and
Hamid Zebaradami Respondents
‑ and between ‑
Attorney General of Ontario Appellant
v.
Pritpal Singh Mavi,
Maria Cristina Jatuff de Altamirano,
Nedzad Dzihic, Rania El‑Murr,
Oleg Grankin, Raymond Hince,
Homa Vossoughi and
Hamid Zebaradami Respondents
and
South Asian Legal Clinic of Ontario,
Canadian Council for Refugees,
Metropolitan Action Committee on Violence
against Women and Children and
Canadian Civil Liberties Association Interveners
Indexed as: Canada (Attorney General) v. Mavi
2011 SCC 30
File No.: 33520.
2010: December 9; 2011: June 10.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Immigration — Sponsorship — Family class — Sponsors signing undertakings promising to provide for sponsored relative’s essential needs and ensuring that relative would not require social assistance during sponsorship period — Legislation providing that social assistance paid to relative during sponsorship period constitutes debt that “may be recovered” either by federal or provincial government — Ontario seeking repayment of debts — Sponsors seeking declaration discharging them from debt — Whether Immigration and Refugee Protection Act provides discretion to enforce sponsorship debt — Whether Ontario debt recovery policy improperly fettering exercise of statutory discretion — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 145 — Immigration and Refugee Protection Regulations, SOR/2002‑227, s. 132.
Administrative law — Natural justice — Procedural fairness — Doctrine of legitimate expectations — Debt enforcement — Sponsors signing undertakings promising to provide for sponsored relative’s essential needs and ensuring that relative would not require social assistance during sponsorship period — Legislation providing that social assistance paid to relative during sponsorship period constitutes debt that “may be recovered” either by federal or provincial government — Ontario seeking repayment of debts under policy incorporating significant procedural protections in terms of sponsorship undertakings — Sponsors seeking declaration discharging them from debt — Whether duty of procedural fairness applied to enforcement of debt — Whether legitimate expectations created by terms of undertaking were enforceable and satisfied.
Since 1978, Canada has allowed Canadian citizens or permanent residents to sponsor their relatives to immigrate to Canada. If such persons after arriving in Canada obtain social assistance (contrary to their sponsor’s undertaking of support), the sponsor is deemed to have defaulted on the undertaking and either the provincial or federal government may recover from the sponsor the cost of providing social assistance. The present proceedings were initiated by eight sponsors whose relatives received social assistance and are therefore deemed to have defaulted on their undertakings. The sponsors deny liability under the undertakings and seek various declarations the result of which, if granted, would be to avoid payment, either temporarily or permanently. The sponsors contend that s. 145(2) of the Immigration and Refugee Protection Act (“IRPA ”) which states that an amount that a sponsor is required to pay under the terms of an undertaking “may be recovered” indicates the existence of a Crown discretion to collect or not to collect the debt. The applications judge concluded that the government was not vested with a discretion to consider on a case‑by‑case basis whether or not to enforce the debt. The government’s duty is to collect and the legislation does not impose any duty of fairness towards sponsors in default. The Court of Appeal allowed the appeal and held that the word “may” in the legislation indicates some degree of discretion on the part of the government. Furthermore, the province had improperly fettered or abused the exercise of its discretion because its policy prohibited a settlement for less than the full amount of the debt which is an option expressly contemplated by the Immigration and Refugee Protection Regulations. It was also held that the governments do owe a duty of procedural fairness to the sponsors.
Held: The appeal should be allowed in part.
Parliament’s legislation manifests an unambiguous intent to require the full sponsorship debt to be paid if and when the sponsor is in a position to do so, even incrementally over many years pursuant to an agreement under the Regulations. In dealing with defaulting sponsors, the government must however act fairly having regard to their financial means to pay and the existence of circumstances that would militate against enforcement of immediate payment. In the exercise of this discretion, which Parliament has made clear is narrow in scope, the Crown is bound by a duty of procedural fairness. Nevertheless the content of the duty of fairness in these circumstances is less ample than was contemplated in the decision of the Court of Appeal and, contrary to its opinion, the requirements of procedural fairness were met in the cases of the eight respondent sponsors.
The undertakings are valid contracts but they are also structured, controlled and supplemented by federal legislation. The debts created thereby are not only contractual but statutory, and as such their enforcement is not exclusively governed by the private law of contract.
The doctrine of procedural fairness has been a fundamental component of Canadian administrative law for over 30 years. As a general common law principle, it applies to every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges, or interests of an individual (subject of course to clear statutory language or necessary implication to the contrary). Dunsmuir does not detract from the general duty of fairness owed by administrative decision makers. Rather it acknowledged that in the specific context of the contract of employment at issue in the circumstances of that case dismissal was governed by contract law rather than public law. Here, in contrast, the terms of sponsorship are dictated and controlled by public law. The undertaking is required by statute. While there are some contractual aspects, it is the statutory framework that closely governs the rights and obligations of the parties and opens the door to the requirements of procedural fairness.
Section 132 of the Regulations obligates a sponsor to reimburse the Crown in right of Canada or a province for the cost of every benefit provided as social assistance to the sponsored family member during the term of the undertaking. The undertakings set out the obligations of the sponsor, the duration of the undertaking and the consequences of the default. They are binding notwithstanding any change in the sponsor’s personal circumstances.
On a proper interpretation of the governing legislation, the Crown does have a limited discretion to delay enforcement action having regard to the sponsor’s circumstances and to enter into agreements respecting terms of payment, but this discretion does not extend to the forgiveness of the statutory debt. Debt collection without any discretion would not advance the purposes of the IRPA . It would hardly promote “successful integration” to require individuals to remain in abusive relationships. Nor would the attempted enforcement of a debt against individuals without any means to pay further the interest of “Canadian society”. Excessively harsh treatment of defaulting sponsors may risk discouraging others from bringing their relatives to Canada, which would undermine the policy of promoting family reunification.
Once the duty of procedural fairness has been found to exist, the particular legislative and administrative context is crucial to determining its content. It is clear from the legislative history of the IRPA that over the years Parliament has become increasingly concerned about the shift to the public treasury of a significant portion of the cost of supporting sponsored relatives. Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse. Sponsors undertake these obligations in writing. They understand or ought to understand from the outset that default may have serious financial consequences for them. Here, the nature of the decision is final and specific in nature. It may result in the filing of a ministerial certificate in the Federal Court which is enforceable as if it were a judgment of that court. The IRPA does not provide a mechanism for sponsors to appeal the enforcement decision. This absence of other remedies militates in favour of a duty of fairness at the time of the enforcement decision. The effect of the decision on the sponsors is significant as sponsorship debts can be very large and accumulate quickly.
The content of the duty of procedural fairness in these cases is fairly minimal. It does not require an elaborate adjudicative process but it does oblige the Crown, prior to filing a certificate of debt with the Federal Court, (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. It is a purely administrative process and is a matter of debt collection. There is no obligation on the government decision maker to give reasons. The existence of the debt is reason enough to proceed.
Ontario did not improperly fetter its exercise of statutory discretion in adopting its current policy. Its terms are consistent with the requirements of the statutory regime and met the legitimate procedural expectations of the sponsors created by the text of their respective undertakings. Ontario’s policy seeks to balance the interests of promoting immigration and family reunification on the one hand, and preventing abuse of the sponsorship scheme on the other. There is no evidence that the limited procedural protections afforded by Ontario have in any way undermined or frustrated the debt collection objective or resulted in unfairness to family sponsors.
Cases Cited
Distinguished: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; discussed: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; referred to: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; Rhine v. The Queen, [1980] 2 S.C.R. 442; Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage), 2006 FCA 190, [2007] 2 F.C.R. 475; Canada v. Crosson (1999), 169 F.T.R. 218; Optical Recording Corp. v. Canada, [1991] 1 F.C. 309; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Greater Toronto Airports Authority v. International Lease Finance Corp. (2004), 69 O.R. (3d) 1; Ward‑Price v. Mariners Haven Inc. (2001), 57 O.R. (3d) 410; Houde v. Quebec Catholic School Commission, [1978] 1 S.C.R. 937; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539.
Statutes and Regulations Cited
Financial Administration Act, R.S.C. 1985, c. F‑11, s. 23 .
Immigration Act, R.S.C. 1985, c. I‑2, ss. 108(2), 114(1)(c), 115, 118(1), (2).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 2(2) , 3 , 12 , 14(2) , 145(2) , (3) , 146 .
Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 132, 135.
Immigration Regulations, 1978, SOR/78-172, s. 5(2)(g) [ad. SOR/97-145, s. 3 ].
Interpretation Act, R.S.C. 1985, c. I‑21, s. 11 .
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of Christine E. Deacon. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose‑leaf updated July 2010).
Mullan, David J. Administrative Law. Toronto: Irwin Law, 2001.
Régimbald, Guy. Canadian Administrative Law. Markham, Ont.: LexisNexis, 2008.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Simmons and Lang JJ.A.), 2009 ONCA 794, 98 O.R. (3d) 1, 313 D.L.R. (4th) 137, 259 O.A.C. 33, 5 Admin. L.R. (5th) 184, 85 Imm. L.R. (3d) 1, [2009] O.J. No. 4792 (QL), 2009 CarswellOnt 6992, setting aside a decision of Wilson J., Superior Court of Justice, September 11, 2008, unreported. Appeal allowed in part.
Urszula Kaczmarczyk and Christine Mohr, for the appellant the Attorney General of Canada.
Robert H. Ratcliffe, Sara Blake and Baaba Forson, for the appellant the Attorney General of Ontario.
Lucas E. Lung and Lisa Loader, for the respondents Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano, Oleg Grankin, Raymond Hince and Homa Vossoughi.
Lorne Waldman and Jacqueline Swaisland, for the respondent Nedzad Dzihic.
Hugh M. Evans, for the respondents Rania El‑Murr and Hamid Zebaradami.
Ranjan K. Agarwal and Daniel T. Holden, for the intervener the South Asian Legal Clinic of Ontario.
Chantal Tie, Carole Simone Dahan and Aviva Basman, for the intervener the Canadian Council for Refugees.
Geraldine Sadoway, for the intervener the Metropolitan Action Committee on Violence against Women and Children.
Guy Régimbald, for the intervener the Canadian Civil Liberties Association.
The judgment of the Court was delivered by
[1] Binnie J. — Since 1978, Canada has allowed Canadian citizens or permanent residents to sponsor their relatives to immigrate to Canada. Family reunification was an important objective of the former Immigration Act, R.S.C. 1985, c. I-2, and remains so under the successor legislation enacted in 2001 as the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”). Of the over 2 million permanent residents admitted to this country between 1997 and 2007, 615,000 (or 27%) are members of the family class. If such persons after arriving in Canada obtain social assistance (contrary to their sponsor’s undertaking of support), the sponsor is deemed to have defaulted and either the provincial or federal government may recover from the sponsor the cost of providing social assistance.
[2] The present proceedings were initiated by eight sponsors who denied liability under their undertakings. As will be explained, the undertakings are valid contracts but they are also structured, controlled and supplemented by federal legislation. The debts created thereby are not only contractual but statutory, and as such their enforcement is not exclusively governed by the private law of contract. The issue raised by this appeal is the extent to which, if at all, the government is constrained by considerations of procedural fairness in making enforcement decisions in relation to these statutory debts.
[3] The Attorney General of Canada argues (and the applications judge agreed) that the Crown is not required even to notify an allegedly defaulting sponsor of its claim prior to filing with the Federal Court a ministerial certificate of the alleged debt which becomes, automatically, enforceable as if it were a judgment of that court. He argues that the legislation imposes on the Crown a duty (not a discretion) to collect sponsorship debts in full. He denies that in carrying out this duty there is any obligation of procedural fairness.
[4] On a proper interpretation of the governing legislation, however, I believe the Crown does have a limited discretion in these collections. The discretion enables the governments to delay enforcement action having regard to the sponsor’s circumstances and to enter into agreements respecting terms of payment, but not simply to forgive the statutory debt. On the evidence, Ontario has had in place a discretionary policy respecting the collection of family sponsorship debts for many years, both before and after the enactment of the IRPA in 2001.
[5] In the exercise of this discretion, which Parliament has made clear is narrow in scope, the Crown is bound by a duty of procedural fairness. The content of this duty is fairly minimal. The Crown is obliged prior to filing a certificate of debt with the Federal Court (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. This is a purely administrative process. It is a matter of debt collection. There is no obligation on the government decision maker to give reasons. The existence of the debt is, in the context of this particular program, reason enough to proceed.
[6] Although the respondents took the position in the courts below that they should be altogether “discharged from their sponsorship obligations” (2009 ONCA 794, 98 O.R. (3d) 1, at para. 6), they took the less extravagant position in this Court that they
do not dispute that undertakings are enforceable. Nor do they dispute that undertakings should be enforced in the overwhelming majority of cases. They are merely asking that the [governments] properly exercise the discretion that was granted to them and consider their circumstances before making the decision to enforce. [R.F., at para. 5]
[7] The Ontario Court of Appeal held that the Ontario government’s deferral policy improperly fettered its statutory discretion in a manner “inconsistent with the overall legislative scheme” (para. 132). While I agree (as stated) with the court below that the sponsors are entitled to a basic level of procedural fairness, my view is that the Ontario guidelines are quite adequate in that regard and are consistent with the statutory scheme. Moreover, the contention of the respondent sponsors that they are entitled to a more elaborate “process” of decision making must be rejected. We are, after all, dealing with statutory debt collection. I would allow the appeal in part but as these appeals can properly be characterized as test cases, I would do so without costs.
I. Facts
[8] Foreign nationals may apply to become permanent residents and eventually citizens, under three broad categories: the family class, the economic class and the refugee class (IRPA, s. 12 ). A permanent resident or citizen wishing to sponsor a family member initiates the process by making a sponsorship application. Sponsors must be over 18 years of age, and meet detailed financial and other requirements. Family class members are not assessed independently on their ability to support themselves. Since they obtain their permanent residence status on the sole basis of being in a familial relationship with a sponsor, they are not required to meet the financial or other selection requirements which are imposed on other classes of immigrants.
A. The Sponsors
[9] The respondents to this appeal are eight sponsors whose relatives received social assistance and who are therefore deemed to have defaulted on their undertaking.
[10] The respondent Dzihic sponsored his fiancée in 2002. His allegation is that when she arrived in Canada she refused to live with him or marry him. Mr. Dzihic notified the immigration department and an order was made for her deportation. However, his fiancée appealed the order successfully without any notice to or input from Mr. Dzihic. He says he was unaware of her success or the fact that she subsequently received social assistance totalling $10,510.65 as of July 2007, for which he is now responsible.
[11] The respondent El-Murr sponsored her father, mother and two brothers in 1995 while she was unemployed. Her husband was employed at the time and he co-signed the undertaking. After the family members arrived in Canada, Ms. El-Murr left her husband because of alleged abuse and she went on social assistance as did her parents and one brother. The debt amount as of February 2006 is $94,242.16 and she says she cannot afford to repay this amount.
[12] The respondent Grankin sponsored his mother in 1999. He claims that he subsequently lost his job and had to apply for social assistance. He was thus unable to support his mother after her arrival in Canada. His mother applied for social assistance and received it. Mr. Grankin states that had he known he was responsible for repaying the benefits, he would not have permitted his mother to apply for assistance. As of June 2007 his total debt was $54,426.39.
[13] The respondent Hince married Ms. Patel who was on a visitor’s visa in 2002. She returned to India and Mr. Hince sponsored her and her daughter to return to Canada. They did so in 2006 and lived briefly with Mr. Hince, then left. He says he was unaware that she subsequently received social assistance. His job is low paying and does not permit him, he says, to repay the social assistance amount due as of June 2007 of $10,547.65. He believes he was exploited by Ms. Patel to enable her to gain immigration status.
[14] The respondent de Altamirano and her husband sponsored her mother in 2000. After arriving in Canada, her mother suffered a stroke. Ms. de Altamirano applied for benefits to pay for her mother’s institutional care. She alleges that she was encouraged to do so by a case worker and did not realize that she would have a responsibility to repay the benefits — as of May 2007 said to be $54,559.99.
[15] The respondent Mavi sponsored his father in 1996. He alleges he did not read the application or understand it. His father arrived in Canada in 1997 and lived with Mr. Mavi. There was a falling out and the father left. Mr. Mavi learned in 2005 that his father had collected benefits and he contacted the government to advise that his own health was not good, which limited his ability to work. The amount of benefits said to be owed as of June 2005 is $17,818.08.
[16] The respondent Vossoughi applied to sponsor her mother at a time when she was married. In 2002, she left her husband because, she says, of abuse. In 2003, her mother arrived in Canada. Ms. Vossoughi says she could not support her mother and her mother went on social assistance. She alleges she did not realize she was responsible for repaying the benefits. The amount said to be owed pursuant to the undertaking as of July 2007 is $28,754.71.
[17] The respondent Zebaradami sponsored his fiancée in 2000. She arrived in Canada in 2001 but only stayed with him for a few weeks, then left him for another man. She received social assistance benefits of $22,158.02 as of July 2007. Mr. Zebaradami says he was duped and that his former fiancée only used him to gain status in Canada.
[18] The Government of Ontario, which in each case paid the social assistance to the needy relative, took steps to enforce the debt against each of the sponsors. In applications filed in the Ontario Superior Court of Justice, the eight sponsors sought various declarations the result of which, if granted, would be to avoid payment, either temporarily or permanently.
B. The Undertakings
[19] The undertakings signed by Mr. Grankin, Mr. Zebaradami and Ms. de Altamirano contained the following statement with respect to the possibility that enforcement might be deferred (with similar statements made in the undertakings signed by Ms. Vossoughi, Mr. Dzihic and Mr. Hince):
The Minister may choose not to take action to recover money from a Sponsor or a Sponsor’s spouse (if Co-signer) who has defaulted in a situation of abuse or in other appropriate circumstances. The decision of the Minister not to act at a particular time does not cancel the debt, which may be recovered by the Minister when circumstances have changed. [Emphasis added.]
C. Federal and Provincial Policies
[20] The Canada-Ontario Memorandum of Understanding on Information Sharing — 2004 (“MOU”), provides for the sharing of information in order to facilitate, inter alia, the enforcement of sponsorship debts. Section 6 of the MOU states that sponsorship debts are “payable on demand”, but that default may be cured in cases where a province accepts partial payment of the debt. Ontario will apply its own guidelines to determine whether collection action should be undertaken immediately or deferred, e.g. in cases of family violence.
[21] The Ontario policy itself states that certain cases of default would not be referred for collection, namely where the person is incapacitated and unable to pay, where there is evidence of domestic violence, where the sponsor himself or herself is in receipt of social assistance, or where other “documented extraordinary circumstances” exist. The Attorney General of Ontario contends (unlike his federal counterpart) that the federal legislation does permit a measure of discretion, and that Ontario’s policies are fully compliant. He claims however that relations between Ontario and the sponsors are governed only by rules applicable to private contracts.
[22] The respondent sponsors contend (and the Court of Appeal agreed) that the wording of the undertakings should be taken into account in the interpretation of the governing legislation.
II. Statutory Framework
[23] Pursuant to s. 132 of the Immigration and Refugee Protection Regulations, SOR/2002-227, a sponsor is obliged to reimburse the Crown in right of Canada or a province, for the cost of every benefit provided as social assistance to the sponsored family member during the term of undertaking — formerly 10 years but now 3 years for a spouse or a dependent child 22 years of age or older and 10 years for a dependent child less than 22 years of age and all other family members (s. 132(1)). The undertakings set out the obligations of the sponsor, the duration of the undertaking and the consequences of default, and stated that the undertaking would be binding notwithstanding any change in the sponsor’s personal circumstances.
[24] Section 108(2) of the former Immigration Act authorized the federal government to enter into agreements with the provinces for the purposes of implementing immigration programs. Section 114(1)(c) authorized the executive to create regulations with respect to sponsorships and s. 115 allowed the Minister to create forms necessary to implement the program (such Ministerial authority was the basis for the undertakings at issue here, which were drafted by the Department of Citizenship and Immigration and signed by each sponsor). Pursuant to s. 118(1) of the former Act, the federal government could assign an undertaking to a province in order to allow that province to recover social assistance payments from the sponsor directly. The new IRPA eliminated the need for such an assignment of the debt.
[25] The collection procedure under the old Immigration Act was also more cumbersome than under the new IRPA . The former s. 118(2) required governments to obtain a judgment from a court of competent jurisdiction in order to enforce the sponsorship debt. Public monies spent as a result of a breach of an undertaking were deemed to be a “debt due to Her Majesty in right of Canada or in right of the province to which the undertaking is assigned” and “may be recovered from the person or organization that gave the undertaking”. Section 5(2)(g) of the old Regulations stated that default on an existing undertaking was a bar to additional sponsorships (Immigration Regulations, 1978, SOR/78-172, as amended by SOR/97-145, s. 3 ).
[26] In 2002, the IRPA made important changes to the rules governing the family immigration class. Section 14(2) (e) confers broad powers to make regulations with respect to sponsorship undertakings. Section 145(2) is central to the issue of the Minister’s discretion on this appeal. It states in relevant part:
. . . an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights.
The respondent sponsors contend that “may” is permissive and indicates, they say, the existence of a Crown discretion to collect or not to collect the debt.
[27] The IRPA streamlined the enforcement of sponsorship debt. It is no longer necessary for the federal undertakings to be assigned to the provinces before they can be enforced by the province. Furthermore, s. 145(3) negates the effect of limitations statutes by prescribing that the debt may be recovered “at any time”.
[28] Governments no longer even have to obtain a judgment to engage Federal Court processes to enforce the debt. Section 146 allows the Minister to certify the debt immediately or within 30 days of default, depending on the circumstances, and register that certificate with the Federal Court, giving it the same force as a judgment.
[29] The new Regulations provide in s. 135 that default begins when the government makes a payment and ends when the sponsor either reimburses the government “in full or in accordance with an agreement with that government”, or when the sponsor ceases to be in breach of the undertaking. The Attorney General of Canada takes comfort from the IRPA ’s elimination of any judicial process prior to the Minister’s authority to invoke Federal Court enforcement. The respondent sponsors, on the other hand, argue that elimination of prior judicial authorization makes it all the more important that the Minister act fairly and get the facts straight before initiating what they regard as an overly harsh statutory collection procedure.
III. Judicial History
A. Ontario Superior Court of Justice (Wilson J.), No. 07-CV-331628PD3, September 11, 2008, unreported
[30] The applications judge found that the IRPA and its Regulations, when viewed as a whole, showed a Parliamentary intent to create a collection procedure that was “purely administrative in nature” (para. 52). The government is not vested with a discretion to consider on a case-by-case basis whether or not to enforce the debt. The government’s duty is to collect. The legislation does not impose any duty of fairness towards sponsors in default. Neither the statute nor the regulations permit sponsors to make submissions before their debts are collected (para. 54).
[31] According to the applications judge, the sponsorship agreements are governed by contract law (para. 55). The sponsors entered into the agreements voluntarily (para. 57). The contractual undertakings should be construed in light of the purpose of the statute which is debt collection (para. 58). The doctrine of frustration does not apply (para. 59). The Applicants were aware that they would be liable if a sponsored relative became financially dependent on the state (para. 59). The applications for various declarations sought by the sponsors were therefore dismissed.
B. Ontario Court of Appeal (Laskin, Simmons and Lang JJ.A.), 2009 ONCA 794, 98 O.R. (3d) 1
[32] On appeal, the issues were restricted to administrative law grounds, specifically: (1) whether the Acts confer upon the governments a case-by-case discretion concerning the recovery of sponsorship debt; (2) whether Canada and Ontario abused this discretion; (3) whether Canada and Ontario owe sponsors a duty of procedural fairness; and (4) whether the undertakings given under the old Act are enforceable under the new Act. The Court of Appeal allowed the appeal.
[33] On the first issue, the Court of Appeal found that both Acts confer a case-by-case discretion in the collection of sponsorship debt (para. 89). In construing s. 118(2) of the old Act and s. 145(2) of the new Act, the word “may” indicates some degree of discretion on the part of the Minister.
[34] According to the Court of Appeal, the applications judge erred “in part, because she failed to take proper account of the Regulations and forms” which are “essential components of an integrated [immigration] scheme” (paras. 91 and 95). The Court of Appeal noted that since 1999 the undertakings have included a provision that allowed a sponsor to negotiate a settlement with the government concerned (para. 98). In addition, the undertakings under both Acts stated that the governments “may” choose not to collect the debt (para. 103). Since Parliament did not eliminate this discretion in the 2002 amendments, it is reasonable to infer that it intended there to be some flexibility in terms of debt collection.
[35] On the second issue, the Court of Appeal went further. In light of the wording of the undertaking, Ontario had improperly “fettered or abused the exercise of its discretion” in part because its policy required that a “‘defaulting sponsor . . . repay the full amount of the debt’” (paras. 125-26). This prohibited a settlement for less than the full amount, an option which is expressly contemplated by s. 135(b)(i) of the new Regulations. Since the policy required full repayment in every case, regardless of the circumstances, this amounted to an improper fettering of the Minister’s discretion under the statute (para. 127).
[36] Furthermore, Ontario’s policy of only granting deferrals based on “documented extraordinary circumstances” was a more onerous standard than the existence merely of “appropriate circumstances” contemplated by the undertakings (paras. 132-33), and was to that extent invalid.
[37] On the third issue, the Court of Appeal held that the governments owed a duty of procedural fairness to the sponsors (para. 135). It was held that the government was obliged to provide “a process” for individual sponsors to explain their relevant personal and financial circumstances, to consider those circumstances, and to inform the sponsor that their submissions had been considered and to tell them of the decision (para. 147). The provision in the undertakings that the government will consider “other appropriate circumstances” in exercising its discretion created a legitimate expectation that the government will consider their individual circumstances (para. 148). Finally, the court held that undertakings given under the old Immigration Act are enforceable under the IRPA .
IV. Analysis
[38] The doctrine of procedural fairness has been a fundamental component of Canadian administrative law since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, where Chief Justice Laskin for the majority adopted the proposition that “in the administrative or executive field there is a general duty of fairness” (p. 324). Six years later this principle was affirmed by a unanimous Court, per Le Dain J.: “. . . there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653. The question in every case is “what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context” (Cardinal, at p. 654). See also Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 669; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 20; and Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 18. More recently, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ. adopted the proposition that “[t]he observance of fair procedures is central to the notion of the ‘just’ exercise of power” (para. 90) (citing D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 7-3).
[39] Accordingly, while the content of procedural fairness varies with circumstances and the legislative and administrative context, it is certainly not to be presumed that Parliament intended that administrative officials be free to deal unfairly with people subject to their decisions. On the contrary, the general rule is that a duty of fairness applies. See G. Régimbald, Canadian Administrative Law (2008), at pp. 226-27, but the general rule will yield to clear statutory language or necessary implication to the contrary: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para. 22. There is no such exclusionary language in the IRPA and its predecessor legislation.
[40] In determining the content of procedural fairness a balance must be struck. Administering a “fair” process inevitably slows matters down and costs the taxpayer money. On the other hand, the public also suffers a cost if government is perceived to act unfairly, or administrative action is based on “erroneous, incomplete or ill-considered findings of fact, conclusions of law, or exercises of discretion” (Brown and Evans, at p. 7-3; see also D. J. Mullan, Administrative Law (2001), at p. 178).
[41] Once the duty of procedural fairness has been found to exist, the particular legislative and administrative context is crucial to determining its content. We are dealing here with ordinary