Singer v. Canada (Attorney General)

Singer v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2010-06-04
Neutral citation
2010 FC 607
File numbers
T-1602-09
Decision Content
Federal Court
Cour fédérale
Date: 20100604
Docket: T-1602-09
Citation: 2010 FC 607
Ottawa, Ontario, June 4, 2010
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
SANDRA AMY GRACE SINGER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mrs. Singer seeks judicial review of the decision of the Review Tribunal (RT) which dismissed her appeal in respect of two reconsideration decisions of the Minister of Human Resources Development (now Minister of Human Resources and Skills Development) denying her entitlement to a full pension under the Old Age Security Act, R.S.C. 1985, c. O-9 (the Act).
[2] The applicant believes that her situation is quite unique and that mainly the RT failed to construe and apply the Act in a manner consistent with its object so as to ensure that she would benefit of a full pension. Despite the commendable efforts and the perseverance of her counsel, the Court cannot agree that the decision under review should be quashed for the following reasons.
Background
[3] Mrs. Singer was born in Jamaica in June 1943. On July 20, 2007, she applied for an old age security (OAS) pension. In her application, under “residence history”, she indicated that she lived in the United States from 1960 to 1964 where she attended college. Otherwise, from 1964 until 1977, she lived in Jamaica. She indicated that she entered Canada on July 24, 1977 but added:
Actual physical presence, July 24, 1977. However, immigration clearance was given (I believe) May 1977, subject only to medical assessment. Medical clearance was denied in May but granted in July, immigration would have occurred May or June but only for medical assessment. See letter attached.
[4] The letter, as quoted in the RT decision, further explains that on May 27, 1977, the applicant’s husband and their two daughters received medical clearance. However, the applicant did not receive such clearance and was required to take further x-rays.
[5] The applicant also wrote:
In other words, the reason and the only reason that we were not resident in Canada as at July 1, 1977 was the potential that I had, or might have had, a medical condition that might have prevented my immigrating. Obviously, the Government later decided that I had no such condition.
[6] In fact, based on the result of the additional x-rays, Mrs. Singer was apparently cleared or received confirmation that she had passed the medical assessment on or about July 20-21, 1977.
[7] Because of a change in the political climate in Jamaica, the family started in 1976 to take steps in order to immigrate to Canada. The most relevant facts were agreed to be the following during the hearing before me:
· The family finally decided to leave Jamaica for Canada in December 1976.
· Various household items were sent to Canada in December 1976 using the opportunity of Mrs. Singer’s cousin moving his own furniture after being accepted as a landed immigrant.
· Because of the changes in the political climate, the applicant and her family were anxious to send their valuables out of the country as quickly as possible. Thus, in that process, they sent their jewellery back to the U.K. with Mrs. Singer’s father-in-law and his new bride when they visited Jamaica in December 1976.
· Starting in March 1976 and continuing through the summer of 1977, Mr. Singer sent money from Jamaica to Canada. The first transfer was in the amount of $2,217.00. It reached approximately $15,000.00 in total by the time the applicant came to Canada.
· On or about March 25, 1977, Mr. Singer obtained a job in Yellowknife as Legislative Counsel and Registrar of Regulations to the Government of the Northwest Territories, subject only to him and his family obtaining their status as landed immigrants.
· In May 1977, the Singer family sold their house in Jamaica and they went to live with Mrs. Singer’s parents in a small apartment pending their relocation.
· Finally, it is to be noted that the applicant had some connection or ties to Canada in that her brother and sister-in-law lived in Toronto since 1965 and she had a cousin who, as mentioned above, moved to Vancouver early in 1977.
[8] The applicant became a Canadian citizen in 1982. After she filed her application for an old age pension, she was advised by letter dated November 23, 2007 that, as of that date, she had lived in Canada for 30 years, 343 days after her 18th birthday and would thus be eligible to a full old age security pension in July 2018, if she lives in Canada until that time. Also, she was informed that she would be eligible for partial old age security pension as early as July 2008.
[9] By letter dated December 12, 2007, the applicant, as mentioned, asked for reconsideration which was later denied, as outlined in a letter dated January 3, 2008, because she did not meet the eligibility requirements set out in subparagraph 3(1)(b)(i) of the Act to qualify for a full pension: “[s]pecifically [she] did not enter Canada prior to July 1, 1977 or [she was] not in possession of a valid immigration visa.” According to this letter, the said visa was issued on July 21, 1977 in Jamaica.
[10] By letter dated January 4, 2008, Mrs. Singer requested the Minister to reconsider his decision on a further ground, namely her entitlement to a full pension under the terms of the Agreement Between the Government of Canada and the Government of Jamaica with respect to Social Security, proclaimed in force on June 3, 1983 (the Agreement).[1]
[11] Once again, by letter dated January 29, 2008, Mrs. Singer was advised that the original decision was maintained given that the Agreement was inapplicable to her, as it only applied to a person who is not entitled to an old age benefit, whereas she was entitled to a partial OAS benefit.
[12] These two decisions were appealed to the RT (a panel of three members who heard this matter de novo). The appeal was dismissed on August 24, 2009 on the basis that Mrs. Singer did not qualify for a full pension as she did not meet the requirement of paragraph 3(1)(b) of the Act. According to the tribunal, this provision is clear and does not require further interpretation. Based on the definition found in Old Age Security Regulations, C.R.C., c. 1246 (Regulations), particularly in subsection 21(1) and the case law related thereto, the RT determined that she was not residing in Canada prior to the deadline set in the legislation. She had not established either that she had a valid visa at any time prior to that date.
[13] Because of various arguments it understood had been raised by the applicant’s representative in the appeal (Mr. Singer[2], her husband and a lawyer, argued the case on her behalf as he did before this Court), the RT also noted that it had no jurisdiction in equity, nor any jurisdiction to deal with the Canadian Charter of Rights and Freedoms[3] argument raised in the hearing file (pages 189 and 203 under C – claims for qualifications: Unconstitutionality of decision – discrimination – the Charter of Rights and Freedoms) for such issue was not specifically stated in the Notice of Appeal and that no proper notice of constitutional question was received. However, the RT added that it had later been advised by Mr. Singer that the applicant was not raising a constitutional issue but rather was arguing discrimination in this case on a “sub-constitutional basis”.
[14] On September 25, 2009, the applicant filed her Notice of Application for judicial review.
Issues
[15] The applicant raised numerous issues in her Memorandum of Fact and Law, her extensive Notice of Application as well as in the Notice of Appeal (68 pages)[4] and the comments made during said appeal which were incorporated by reference in her Memorandum of Fact and Law. During the hearing, Mr. Singer was asked to clarify his position and to focus on his main arguments.
[16] The errors raised can be fairly summarized as follows, the RT:
(a) erred in law by applying the wrong test to determine whether she “resided in Canada” pursuant to subparagraph 3(1)(b)(i) of the Act.
(b) erred in construing the words “possessed a valid immigration visa” in the said subparagraph.
(c) erred in law in construing the Agreement and paragraph 3(1)(b) of the Act in conjunction with the Agreement.
(d) breached procedural fairness or exceeded its jurisdiction by considering paragraph 2 of Article VIII of the Agreement and by failing to give her an opportunity to present arguments in that respect as well as an alternative argument with respect to paragraph 3 of the said Article.
(e) made an incorrect or unreasonable decision by ignoring or misconstruing some of the evidence in respect of the circumstances relevant to determine if she resided in Canada since 1977 and also by failing to discuss in detail all the arguments and the case law raised by the applicant.
The Court will not discuss arguments such as bias of the RT for they are not substantiated by any evidence and therefore do not warrant further comments.
Analysis
[17] With respect to the questions of law and the alleged breach of procedural fairness, the Court will apply the standard of correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 57-61 (Dunsmuir); Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, 304 D.L.R. (4th) 1 at para. 44; Canada (Minister of Human Resources Development) v. Stiel, 2006 FC 466, [2006] 4 F.C.R. 489 at paras. 6-7 (Stiel).[5]
[18] With respect to the sufficiency of the reasons, i.e. the failure to refer to all of the evidence or the case law and to the application of the test to the facts of this case, these issues will be reviewed on the standard of reasonableness: Canada (Minister of Human Resources Development) v. Chhabu, 2005 FC 1277, 280 F.T.R. 296 at para. 24 (Chhabu).
[19] The Court does not understand Mrs. Singer to say that the Tribunal breached its duty to provide reasons but rather that the decision did not meet the standard of reasonableness insofar as it is concerned with the existence of justification, transparency and intelligibility within the decision-making process: Dunsmuir at para. 47.
[20] That being said, even if I were to consider the argument put forth in respect of the lack of details in the decision concerning certain issues as an alleged breach of procedural fairness subject to the standard of correctness, it would not change my conclusion for I am satisfied that the reasons given in this 29 page decision enabled the applicant to pursue her right to seek judicial review and the Court to exercise its jurisdiction: VIA Rail Canada Inc. v. Lemonde, [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 at para. 19 (F.C.A.). Also, the decision-maker is presumed to have considered all the evidence before it (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (QL) (F.C.A.)). The Court will consider putting aside this presumption only when the probative value of the evidence that is not expressly discussed is such that it should have been discussed: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 at paras. 14-17 (F.C.). This is not the case here.
The interpretation of subparagraph 3(1)(b)(i)
[21] The RT found paragraph 3(1)(b) clear and unambiguous. However, it made that comment only in reference to the date on which an applicant must qualify (para. 70). Thereafter, the RT used the definition of paragraph 21(1)(a) of the Regulations and the case law to define “residence”. Finally, it used a version of the Immigration Regulations, C.R.C., c. 940 (1978) to construe the expression “possessed a valid immigration visa”.
[22] The Court agrees with the applicant that it is necessary in all cases to use the modern approach adopted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at paras. 20-22 and described in the often quoted passage from Drieger on Construction of Statutes:
21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
The applicant submitted what he claims to be all the relevant extracts from Hansard. It is now well accepted that the legislative history of an enactment of a statute, including Hansard and minutes of standing committees, may be properly considered as evidence of the external context in which the legislation was adopted and of the purpose of the legislation, as long as it is relevant and reliable.[6] However, as mentioned in Ruth Sullivan, in Sullivan on the Construction of Statutes, at page 613, courts must not accord undue weight to legislative history:
In most cases, neither the inferences drawn from the legislative history nor those drawn from the test are compelling and decisive. Ordinarily the court must engage in a weighing and balancing process. The weight accorded particular materials is appropriately assessed in terms of the court’s reasons for admitting them in the first place.
[23] The object of the Act and of various reciprocal agreements entered into by the Canadian Government pursuant to section 40 of the Act were ably described by Justice Judith A. Snider in Stiel, at paragraphs 28-29:
[28] What is the object of the OAS Act and the Canada-U.S. Agreement? I would describe the OAS regime as altruistic in purpose. Unlike the Canada Pension Plan, OAS benefits are universal and non-contributory, based exclusively on residence in Canada. This type of legislation fulfills a broad-minded social goal, one that might even be described as typical of the Canadian social landscape. It should therefore be construed liberally, and persons should not be lightly disentitled to OAS benefits.
[29] However, it cannot be ignored that the OAS Act provides benefits, first and foremost, to residents of Canada; it has been described as “the building block of the Canadian retirement income system” (House of Commons Debates, 2nd Session, 30th Parliament, Volume III, 1976-1977, February 8, 1977, p. 2834 (Hansard)). That is the legislative scheme appears focussed on the provision of benefits to persons living their retirements in Canada. It is only through the operation of specific, added provisions that non-residents obtain even a partial OAS pension.
[24] When he presented the Act to Amend the Old Age Security, S.C. 1976-1977, c. 9, the bill which implemented the current version of section 3 of the Act, before the Standing Committee on Health, Welfare and Social Affaires, Minister Lalonde said:
The bill was motivated by two factors: first immediately to simplify eligibility to pensions in Canada, and to tie in more closely this right to the contributions of persons who by their labour and residence in Canada have helped to build the coun[t]ry.
The second factor, or objective of this bill, is to allow the closer integration of our old age security plan, particularly with the plans of other countries, so that persons immigrating to Canada or Canadians emigrating abroad may more easily receive the benefits to which they are entitled, in Canada as well as abroad, in view of the contributions they have or simply the number of years they have spent in Canada or abroad.[7]
[25] Thus, new principles were introduced in the Act. The right to a pension was to be linked mainly to years of residence in Canada after the age of 18[8]. Full pensions were to be available only to those having 40 years of residence in Canada as an adult (paragraph 3(1)(c) of the Act). However, Parliament chose to implement these changes over a very long period of time. It granted certain categories described in paragraph 3(1)(b) of the Act[9] a very long grace period. A person falling into one of the three categories set out in that provision could receive a full pension with fewer than the 40 years of residence referred to in paragraph 3(1)(c) so long that he or she met the requirements set out in subparagraphs 3(1)(b)(ii) and (iii) – the so-called 3 to 1 rule referred to in Stachowski v. Canada (A.G.), 2005 FC 1435, 282 F.T.R. 99 at para. 12.
[26] Years of residence in Canada after the age of 18 are also the main criteria to qualify for the then new partial pension to which one can be entitled if one has more than 10 years but less than 40 years of residence in an aggregate period of time. Also, if the total period of residence of an applicant is inferior to 20 years, that person has to reside in Canada the day preceding the day on which his or her application is approved.
[27] According to the Act, the payment of a full or partial pension can be suspended if a pensioner remains outside Canada for a certain period. However, such suspension will not occur if the pensioner has resided in Canada for at least 20 years after attaining the age of 18.
[28] Furthermore, recognizing the need for some to work outside of the country without losing their right to a pension and for immigrants not to lose the pension credits accumulated in their country of origin and the desirability of giving the right, under strict conditions, to collect one’s pension while residing outside of Canada, Parliament gave the Governor in Council the authority to enter into reciprocal agreements in section 40 of the Act (see particularly paragraphs 40(1)(b), (c), (d) and (e)). The concept of “totalization of periods of residence and periods of contribution in a particular country and periods of residence in Canada” was introduced and was to be implemented through such agreements.
[29] July 1, 1977 was chosen as the threshold date to define all exceptions to the intended general rule set out in subsection 3(1) of the Act.[10] Therefore, any applicant had to meet the criteria listed at paragraph 3(1)(b) of the Act, on July 1, 1977, in order to be granted a full old age security pension. There is no grace period applicable here.
[30] The concept of “residence” is the subject of a full chapter of the Regulations starting at section 20. Of particular interest here is the definition found at paragraphs 21(1)(a)[11] and (b):
21. (1) For the purposes of the Act and these Regulations,
(a) a person resides in Canada if he makes his home and ordinarily lives in any part of Canada; and
(b) a person is present in Canada when he is physically present in any part of Canada.
[Emphasis added]
21. (1) Aux fins de la Loi et du présent règlement,
a) une personne réside au Canada si elle établit sa demeure et vit ordinairement dans une région du Canada; et
b) une personne est présente au Canada lorsqu’elle se trouve physiquement dans une région du Canada.
[mon souligné]
[31] This definition has been applied to a variety of circumstances. As noted by Justice James Russell in Canada (Minister of Human Resources Development) v. Ding, 2005 FC 76, 268 F.T.R. 111 (Ding), one can refer to many factors to determine if a person has made her home and ordinarily lives in Canada as of the date set out in the Act.
[32] Also, as noted by Justice Carolyn Layden-Stevenson in Chhabu, the list of factors enumerated in Ding is not exhaustive. There may well be other factors which become relevant according to the particular circumstances of a case.
[33] It is important to emphasize however that the use of precedent is dangerous in that weight might be given to a factor in a particular set of circumstance that is inappropriate in a different context. Mrs. Singer appears to have fallen in this “trap” for she referred the Court to various summaries of decisions of the RT to support her position. These really have little precedential value in the present context. For example, she noted that in W-76940 v. Minister of Human Resources Development (December 19, 2003), the RT determined that the appellant’s Canadian residence began on the day she formalized her intention by applying for permanent residence.
[34] However, she fails to mention that in that case, the appellant had lived in Canada under a tourist visa which had been extended several times and the RT was really looking for indicia as to whether she had made Canada her home[12] despite having been absent from the country when her son was working in England.
[35] In S-59142 v. Minister of Human Resources Development (November 2, 2000), the RT found that the appellant had decided to make her home in Canada when she first extended her visitor’s visa in 1990. Again, the appellant had already lived in Canada for a year and she extended her visa four times before applying for landed immigrant status because during that period her son was not in a position to sponsor her.
[36] Although each case cited was carefully reviewed by the Court, there is no need to comment further on them for, as mentioned, they do little more than confirm that the test is a fluid one. Sometime the fact that a person has obtained or applied for a permanent status will be relevant while in others it will not. This is true for most factors.
[37] However, presence in Canada at some point in time appears to be of particular importance if not crucial in all cases. There is no doubt that continuous presence is not required. The Regulations as a whole make that very clear as does the case law. But it is difficult to imagine how one can be said to “ordinarily live” in Canada if this person has never actually been in Canada.[13] In fact, looking at the overall scheme, including particularly the fact that Parliament thought it appropriate to also provide for a third category of persons in subparagraph 3(1)(b)(i) of the Act that does not rely at all on the concept of residence (those who possess a valid immigrant visa) as well as exceptions in the Regulations for persons as spouses who married a Canadian or permanent resident while they worked outside of the country (paragraph 22(c) in the Regulations), there is little doubt in my mind that presence is, at some point in time, an essential element of this definition.
[38] Mrs. Singer raised what she called “a sub-constitutional interpretative argument” claiming that to construe residence to require some presence would discriminate between immigrants and non-immigrants. Here again, the Court cannot agree. In fact, by providing for a category of persons that possess a valid immigrant visa on the same date that others are required to have resided or to reside in Canada addresses this very issue. It is of interest to note that in two cases this Court and the Court of Appeal confirmed the constitutionality of paragraph 3(1)(b) of the Act vis-à-vis section 15 of the Charter.[14]
[39] Before looking at the category of those who possess a valid immigrant visa, it is appropriate to examine the Agreement to determine what role, if any, it plays in construing subparagraph 3(1)(b)(i) and the concept of residence.
[40] The Agreement deals with various situations.[15] A first general principle is set out in Article IV - subject to articles VIII (old age pension), IX (past allowances), X (survivor, invalidity, children and death benefits), XI (general provisions), the pensions or benefits acquired under the legislation of either Canada or Jamaica should not be reduced, modified, suspended, cancelled by reason only of the fact that the beneficiary resides in the territory of the other party and they shall be payable in the territory of the other party. Then, once a pension is payable under this Agreement by one party in the territory of the other, it also is payable in the territory of a third party (Article V).
[41] As noted, that basic principle is subject to the details provided for in the articles mentioned above. In such provisions, various situations are dealt with in different manners. Under Article VIII it is clear that full pensions are not dealt with in the same manner as partial pensions. For example, if a person qualifies under the Canadian legislation for a full pension without recourse to the provisions of the Agreement, it can only continue to receive and be paid the full pension in Jamaica if it accumulated at least 20 years of residence in Canada (as defined under the Canadian Act). On the other hand, if a person is entitled to a partial pension under the Canadian Act without recourse to the Agreement, the partial pension will be payable in Jamaica whether the person accumulated 20 years of residence in Canada or the periods of residence in the territory of the two parties totalized, in accordance with the Agreement, at least 20 years.
[42] The concept of totalization only enables the person entitled to a full pension under paragraphs 3(1)(a) and (b) without recourse to the provisions of the Agreement, that does not meet the requirement for 20 years of residence in Canada, to the payment of a partial pension calculated in accordance with the Canadian legislation, outside of Canada.
[43] The Agreement also deals in paragraphs 3 to 6 of Article VIII with persons who would not qualify for an old age pension under the legislation of either one of the parties. But paragraph 2 of the said Article clearly specifies that these provisions do not apply to full pensions payable under subsection 3(1) of the Act. Where paragraphs 3 to 6 apply, the benefit of “totalization” can be used to qualify for a pension (paragraph 3 (entitlement)) as well as to calculate the amount of the said pension (paragraph 5).
[44] There is little benefit in discussing the other provisions of the Agreement. My complete review of the overall scheme of the Agreement, read in a liberal and generous way, indicates that it has nothing to do and does not deal at all with how one qualifies for a full old age pension pursuant to subparagraph 3(1)(b)(i) of the Act. This means that Mrs. Singer will have to qualify under the Canadian legislation per se to be entitled to the full pension she is seeking.[16]
[45] Having dealt with the statutory definition of “residence”, the Court now turns to the third category of persons listed in subparagraph 3(1)(b)(i), those who “possessed a valid immigration visa” on July 1, 1977.
[46] In its decision, the RT accepted the applicant’s argument that this expression must be construed in accordance with the immigration legislation in force on or before July 1, 1977. The RT used a 1978 consolidated version of the Immigration Regulations which was provided to it by Mrs. Singer’s representative. The Court did ascertain that there was no material difference between this version and the regulations in force on July 1, 1977 (the old regulations).[17] Some of the relevant provisions were renumbered further to the 1978 consolidation but there were no material amendments that could impact on the RT’s conclusions.
[47] In order to perform its task and as a matter of law, the Court also had to look at the Immigration Act, R.S.C. 1970, c. I-2 as amended as of July 1, 1977. In light of the arguments put forth by the applicant and of the issues to be determined, the Court noted that the term “immigrant” was then defined as follows:
“immigrant” means a person who seeks admission to Canada for permanent residence
“immigrant” signifie une personne qui cherche à être admise au Canada en vue d’une résidence permanente
[48] Section 5 provided for various prohibited classes of persons that could not be admitted. These included persons with various mental or physical “deficiencies” (see subsections 5(a), (b), (c), (s)), many of which involved certification by a medical officer following an examination. Section 20 mandated that where so required under the regulations, “a person seeking admission to Canada shall undergo mental and physical examination or both by a medical officer”. According to section 21, an immigration officer could order the rejection of a person who could not properly be examined for various reasons. Finally, subsection 57(c) gave the Governor in Council the power to regulate respecting:
the terms, conditions and requirements with respect to the possession of means of support or of passports, visas or other documents pertaining to admission;
[Emphasis added]
les conditions et prescriptions relatives à la possession de moyens de subsistance, ou de passeports, visas ou autres documents portant sur l’admission
[mon souligné]
[49] In the old regulations the term “visa” was defined as follows:
“visa” in the expressions “immigrant visa” and “non-immigrant visa” means
(i) an impression stamped by a visa officer on a passport, a certificate of identity or any prescribed form, or
(ii) a prescribed form or portion thereof entitled “visa or letter of pre-examination” and signed by a visa officer
«visa» dans les expressions «visa d’immigrant» et «visa de non-immigrant» signifie
(i) une empreinte apposée par un préposé aux visas sur un passeport, un certificat d’identité ou tout autre formulaire prescrit, ou
(ii) un formulaire prescrit ou une partie de ce formulaire intitulé «visa ou lettre de pré-examen» et signé par un préposé aux visas
[50] Subsection 28(1) of these regulations provides that:
28. (1) Every immigrant who seeks to land in Canada, including an immigrant who reports pursuant to subsection (3) of section 7 of the Act, shall be in possession of a valid and subsisting immigrant visa issued to him by a visa officer and bearing a serial number which has been recorded by the officer in a register prescribed by the Minister for that purpose and unless he is in possession of such visa, he shall not be granted landing in Canada.
[Emphasis added]
28. (1) Tout immigrant qui cherche à être reçu au Canada, y compris un immigrant qui signale certains faits conformément au paragraphe (3) de l’article 7 de la Loi, devra être en possession d’un visa d’immigrant valable et non périmé qui lui aura été délivré par un préposé aux visas et portant un numéro de série qui a été inscrit par ledit préposé dans un registre prescrit par la Ministre à cette fin, et, à moins qu’il ne soit en possession d’un tel visa, il n’obtiendra pas la réception au Canada.
[mon souligné]
[51] Subsections 29(1) and (2) (which are identical to subsections 39(1) and (2) of the Immigration Regulations, C.R.C., c. 940 (1978)) indicated that a medical certificate was mandatory to show that the person did not fall within one of the prohibited classes described in section 5 of the Immigration Act. It also provided that:
(2) Where at an examination of an immigrant under the Act the immigration officer has any doubt as to the physical or mental condition of such person, he may refer the immigrant for further medical examination by a medical officer.
[Emphasis added]
(2) Lorsque, pendant l’examen d’un immigrant sous le régime de la Loi, le fonctionnaire à l’immigration a quelque doute sur l’état physique ou mental de ladite personne, il peut renvoyer l’immigrant à un médecin du Ministère pour lui faire subir un autre examen.
[mon souligné]
[52] One can reasonably deduce, as did the RT, that the legislator had these provisions in mind when he referred to the possession of a valid immigration[18] visa in subparagraph 3(1)(b)(i) of the Act.
[53] The reference to “valid” would, in my view, indicate that even an actual issued visa would not be sufficient to qualify a person under paragraph 3(1)(b) if it was found that the immigrant did not in fact meet the requirement of the Act. For example, as provided in section 30[19] of the old regulations (section 40 of the Immigration Regulations, C.R.C., c. 940 (1978)) if upon arrival or later an immigrant was found to be inadmissible pursuant to section 5.
[54] Mrs. Singer argues that it makes little sense to link her rights to a full pension to the possession of a physical piece of paper that could be destroyed, lost, etc. She argues that the Act must be construed to refer to the “bundle of rights and entitlements” she acquires when she meets the requirements of the Act. The construction proposed by the applicant would certainly make her task or any applicant’s task very difficult for she would have to be able to establish, many years after the fact, on a balance of probabilities, that she actually met all the requirements of the Act and that, at the very least on July 1, 1977, the visa officer had an enforceable duty to issue her a valid visa. Obviously, when one bears the burden of proof, this person cannot seek to displace that burden by claiming an impossibility to meet such burden because one failed to secure the appropriate evidence and cannot obtain it 30 years later.
[55] In fact, certainty would militate in favour of the interpretation adopted by the RT that one must at least have had a visa duly signed by an immigration officer before one can claim to meet the requirements of the Act. Such interpretation certainly avoids the issue of possible loss or destruction of the actual piece of paper alluded to by the applicant for there would at least be proof of registration number, etc.
[56] That said, the visa or pre-examination letter of Mrs. Singer was signed by a visa officer on July 21, 1977.
[57] There is no need for the Court to decide whether the construction proposed by the applicant should be adopted. For even if the Court were to assume that the actual issuance of a visa is not a condition sine qua non to be in possession of a valid visa, the applicant would still, as I said, have the burden of establishing that she actually met all the requirements of the Act as of the threshold date.
[58] The RT found at paragraph 82 that, as a matter of fact, she did not establish that she obtained a satisfactory medical assessment until July 21, 1977 (see paras. 24-25, 33 and 35 of the decision). Having carefully reviewed the evidentiary record, the Court is satisfied that this conclusion is reasonable and was open to the RT. The applicant’s hypothesis that the date of May 27, 1977 set out in one of the boxes of her visa pre-examination letter, entitled “Date of Med. Asses./Date de l’Appr. Médicale” is the actual date she was cleared by the medical officer is unsubstantiated and is certainly not sufficient to justify setting aside this finding of fact.[20]
[59] The Court cannot accept either the applicant’s argument that the medical examination was simply a procedural or administrative requirement that cannot impact on “her bundle of rights or entitlements” to a valid visa. This was simply not so. Successfully passing a medical examination that will confirm that one did not fall in inadmissible classes pursuant to section 5 of the Immigration Act in force at that time was a substantive condition that had to be met in order for Mrs. Singer to qualify for an immigrant visa. It is simply not correct to say that because she was ultimately found to be in good health, the further testing requested by the visa officer should not be considered and she should be entitled to have cleared the medicals on the same date as her husband and the rest of the family did, on or about May 27, 1977.
[60] There is no need to discuss another hypothesis raised by the applicant that the visa officer may well have purposely delayed the issuance of the visa because of the deadline set out in the Act. As admitted, there is absolutely no evidence to support this. Nor is there any need to discuss the issue of her promise subject to successfully passing her additional x-ray. As mentioned earlier, she did not meet that condition in any event before the threshold date.
[61] Although this will not be sufficient to soothe Mrs. Singer’s frustration, one must remember that she has no vested right in a full pension until her application is granted (Ata v. Canada, [1985] F.C.J. No. 800 (F.C.) (QL) (Ata)). In that case, the applicant, a diplomat who lived in Canada for more than 10 years, would have qualified for a pension had he filed his application and been approved weeks before he did. However, by the time he actually applied and his application was reviewed, the regulations had been amended to include an exclusion that applied to him as a diplomat serving in Canada. This set of facts is no less absurd or unjust as Mrs. Singer claims hers to be. Moreover, her situation is most likely not unique. Undoubtedly, other immigrants around the world applied for an immigrant visa well before July 1, 1977 but were not granted it before that date.
[62] The legislator made a clear policy decision when he chose to apply a threshold date. The Court cannot and should not interfere with such a decision. The liberal and purposive construction of the Act is meant to enable the Court to construe the statute in accordance with Parliament’s intention. It is not meant as a tool to change the will of the legislator.
[63] In view of the foregoing, the Court concludes that the RT made no error of law[21] that would justify quashing the decision.
Procedural Fairness / Excess of jurisdiction
[64] The applicant’s argument on this issue was not very clear. On the one hand, she says, at page 8 of her Notice of Application, that she advised the RT of the discrepancy between the version of the Agreement her representative had found on the Human Resources Development Canada’s website (that apparently does not exist anymore) and the unofficial version of the agreement produced by the respondent at the hearing before the RT (exhibit M-1). Then, she notes later in her Notice of Application that she refrained from raising this issue on the basis of an assurance that the RT would only decide her appeal on the basis of the arguments presented. According to the applicant, paragraph 2 of Article VIII was not discussed although the respondent clearly argued that paragraph 3 of that Article does not apply to Mrs. Singer’s case.
[65] In her Memorandum of Fact and Law, at paragraph 27, Mrs. Singer says that this constitutes an excess of jurisdiction as was found in Ding at paragraph 52. She further submits that even if the Court was able to consider the official version of the agreement which was not before the RT, it would have to exclude section 2 from its review and not consider it in construing the agreement because she was not given an opportunity to raise an argument expressly set out at page 233 of her Applicant’s Record.
[66] I will deal first with the alleged excess of jurisdiction. It is evident that proper construction of paragraph 3 of Article VIII of the Agreement was an issue before the RT. It had been expressly raised by the applicant and was to be used in construing subparagraph 3(1)(b) of the Act. As mentioned earlier, the Agreement was made part of Canadian law and, as argued by Mrs. Singer, it must be construed using the same principle applicable to the Act or any other Canadian statutory provisions. The RT was thus bound to look at the overall scheme including Article VIII as a whole. The decision in Ding is distinguishable and does not apply to the issue before the Court. Also, it is clear that neither the Court nor the RT can ignore or exclude a legal provision duly adopted. It is bound to