Indexed As: Mavi et al. v. Canada (Attorney General) et al.

Transcription

1 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) 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 (intervenors) (33520; 2011 SCC 30; 2011 CSC 30) Indexed As: Mavi et al. v. Canada (Attorney General) et al. Supreme Court of Canada McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ. June 10, Summary: The eight respondents each sponsored a relative's entry into Canada as a member of the family class under either the Immigration and Refugee Protection Act (IRPA) or the former Immigration Act. In each case, the sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking of support) and the sponsors were deemed to have defaulted on their undertakings. Both the IRPA and the former Immigration Act provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government. The government of Ontario took steps to enforce the debt against each of the sponsors. The sponsors applied for various declarations. The sponsors argued that the words "may be recovered" indicated that the governments had discretion to forgive sponsorship debt. They also claimed that the governments violated their duty of procedural fairness by taking steps to enforce their undertakings without first giving them an opportunity to be heard and without taking into account their individual circumstances. The Ontario Superior Court dismissed the applications. The court held that the government was not vested with a discretion to consider on a case-by-case basis whether or not to enforce the debt and the legislation did not impose any duty of fairness towards sponsors in default. The sponsors appealed. The Ontario Court of Appeal, in a decision reported at (2009), 259 O.A.C. 33, allowed the appeal. The court held as follows: the word "may" indicated some degree of discretion and both the IRPA and the former Immigration Act conferred a case-by-case discretion in the collection of sponsorship debt; Ontario had improperly fettered its discretion because its policy required that a defaulting sponsor repay the full amount of the debt, while a settlement for less than the full amount was an option expressly contemplated by the Immigration and Refugee Protection Regulations; governments owed a duty of procedural fairness to the sponsors; the government was obliged to provide a process for individual sponsors to explain

2 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 made. The Attorneys General of Canada and Ontario appealed. The Supreme Court of Canada allowed the appeal in part. While the court agreed with the court below that the sponsors were entitled to a basic level of procedural fairness, it held that the Ontario guidelines were adequate in that regard and were consistent with the statutory scheme. The court issued the following declarations "(i) Canada and Ontario have a discretion under the IRPA and its Regulations to defer but not forgive debt after taking into account a sponsor's submissions concerning the sponsor's circumstances and those of his or her sponsored relatives; (ii) Ontario did not improperly fetter its exercise of statutory discretion in adopting its policy. Its terms are consistent with the requirements of the statutory regime and met the legitimate procedural expectations of the respondent sponsors created by the text of their respective undertakings; (iii) Canada and Ontario owe sponsors a duty of procedural fairness when enforcing sponsorship debt; (iv) The content of this duty of procedural fairness include the following obligations: (a) to notify a sponsor at his or her last known address of the claim; (b) 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; (c) 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; (d) to notify the sponsor of the government's decision; (e) without the need to provide reasons; (v) that the above requirements of procedural fairness were met in the cases of the eight respondent sponsors". Administrative Law - Topic 2264 Natural justice - The duty of fairness - When required - Canadian citizens or permanent residents could sponsor their relatives to immigrate to Canada - If a sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking of support) the sponsor was deemed to have defaulted and the Immigration and Refugee Protection Act (and the former Immigration Act) provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government - The Supreme Court of Canada held that the government owed sponsors a duty of procedural fairness when enforcing sponsorship debt - The court stated that "the content of the duty of procedural fairness does not require an elaborate adjudicative process but it does (as stated earlier) oblige a government, 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. Given the legislative and regulatory framework, the nonjudicial nature of the process and the absence of any statutory right of appeal, the government's duty of fairness in this situation does not extend to providing reasons" - See paragraph 45.

3 Administrative Law - Topic 2264 Natural justice - The duty of fairness - When required - The eight respondents each sponsored a relative's entry into Canada as a member of the family class under either the Immigration and Refugee Protection Act (IRPA) or the former Immigration Act - In each case, the sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking of support) and the sponsors were deemed to have defaulted on their undertakings - Both the IRPA and the former Immigration Act provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government - The government of Ontario took steps to enforce the debt against each of the sponsors - The Supreme Court of Canada held that the sponsors were entitled to a basic level of procedural fairness and that the Ontario guidelines were adequate in that regard and were consistent with the statutory scheme - The court stated that "the policies adopted by Ontario would, if respected in its collection efforts, satisfy the legitimate procedural expectations of the sponsors, and meet the basic requirements of procedural fairness" - See paragraphs 73 to 78. Administrative Law - Topic 2267 Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - The eight respondents each sponsored a relative's entry into Canada as a member of the family class under either the Immigration and Refugee Protection Act (IRPA) or the former Immigration Act - In each case, the sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking of support) and the sponsors were deemed to have defaulted on their undertakings - Both the IRPA and the former Immigration Act provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government - The government of Ontario took steps to enforce the debt against the sponsors - The Supreme Court of Canada stated that "While the terms of the IRPA undertakings support the position of the Attorneys General that the debt is not forgiven, they also support the sponsors' contention of a government representation to them that there exists a discretion not to take enforcement action 'in a situation of abuse or in other appropriate circumstances' (pre-2002) or 'if the default is the result of abuse or in other circumstances' (post-2002). Such representations do not conflict with any statutory duty and are sufficiently clear to preclude the government from denying to the sponsor signatories the existence of a discretion to defer enforcement. Given the legitimate expectations created by the wording of these undertakings I do not think it open to the bureaucracy to proceed without notice and without permitting sponsors to make a case for deferral or other modification of enforcement procedures" - See paragraph 72. Administrative Law - Topic 2272 Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of) - [See both Administrative Law - Topic 2264]. Administrative Law - Topic 8264 Administrative powers - Discretionary powers - Fettering of discretion - The eight respondents each sponsored a relative's entry into Canada as a member of the family class under either the Immigration and Refugee Protection Act (IRPA) or the former

4 Immigration Act - In each case, the sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking of support) and the sponsors were deemed to have defaulted on their undertakings - Both the IRPA and the former Immigration Act provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government - The government of Ontario took steps to enforce the debt against the sponsors - The Ontario Court of Appeal held that the word "may" indicated some degree of discretion and both the IRPA and the former Immigration Act conferred a case-by-case discretion in the collection of sponsorship debt - The court also held that Ontario had improperly "fettered or abused the exercise of its discretion" because its policy required that a defaulting sponsor repay the full amount of the debt - That prohibited a settlement for less than the full amount, an option which was expressly contemplated by s. 135(b)(i) of the Immigration and Refugee Protection Regulations - Since the policy required full repayment in every case, regardless of the circumstances, that amounted to an improper fettering of the Minister's discretion under the statute - The Supreme Court of Canada did not agree that the Ontario collection policy conflicted with the intended scope of the discretion - The court stated that "the legislation allows the Minister to defer but not forgive sponsorship debt. This is also Ontario's policy. The policy provides that '[t]he defaulting sponsor is required to repay the full amount of debt. There is no forgiveness of the debt by the Ministry'.... It cannot be said that the Ontario policy here so 'fetters' the discretion as to be invalid" - See paragraphs 65 to 67. Aliens - Topic 2 Definitions and general principles - Legislation - Interpretation - [See fourth Aliens - Topic 1286]. Aliens - Topic 1286 Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - [See both Administrative Law - Topic 2264, Administrative Law - Topic 2267 and Administrative Law - Topic 8264]. Aliens - Topic 1286 Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - The eight respondents each sponsored a relative's entry into Canada as a member of the family class under either the Immigration and Refugee Protection Act (IRPA) or the former Immigration Act - In each case, the sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking of support) and the sponsors were deemed to have defaulted on their undertakings - Both the IRPA and the former Immigration Act provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government - The government of Ontario took steps to enforce the debt against the sponsors - The Supreme Court of Canada declared, inter alia, that Canada and Ontario had a discretion under the IRPA and its Regulations to defer but not forgive debt after taking into account a sponsor's submissions concerning the sponsor's circumstances and those of his or her sponsored relatives - See paragraph 79.

5 Aliens - Topic 1286 Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - Canadian citizens or permanent residents could sponsor their relatives to immigrate to Canada - If a sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking) the sponsor was deemed to have defaulted and the Immigration and Refugee Protection Act (and the former Immigration Act) provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government - At issue was whether the government owed sponsors a duty of procedural fairness when enforcing sponsorship debt - The Attorneys General of Canada and Ontario resisted the application of a duty of procedural fairness on a theory that the claims against the sponsors were essentially contractual in nature - They cited Dunsmuir (S.C.C.) for the proposition that procedural fairness did not apply to situations governed by contract - The Supreme Court of Canada held that the situation here did not come close to the narrow Dunsmuir employment contract exception from the obligation of procedural fairness - Unlike Dunsmuir, the governments' cause of action was essentially statutory - The terms of sponsorship were dictated and controlled by statute - The undertaking was required by statute and reflected terms fixed by the Minister under his or her statutory power - While the sponsors' undertakings had some contractual aspects, it was the statutory framework that closely governed the rights and obligations of the parties - See paragraphs 47 to 51. Aliens - Topic 1286 Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - Canadian citizens or permanent residents could sponsor their relatives to immigrate to Canada - If a sponsored relative obtained social assistance after arriving in Canada (contrary to their sponsor's undertaking) the sponsor was deemed to have defaulted and the Immigration and Refugee Protection Act (IRPA) (and the former Immigration Act) provided that the social assistance paid to the sponsored relative "may be recovered" from the sponsor by the provincial or federal government - At issue was whether the government owed sponsors a duty of procedural fairness when enforcing sponsorship debt - The Supreme Court of Canada rejected an argument that the duty of fairness was overridden by the legislation - Such an argument was not consistent with the legislative text, context or purpose - Nothing in the relevant sections explicitly required Her Majesty to pursue collection of debts irrespective of the circumstances - Legislative use of the word "may" usually connoted a measure of discretion - However circumscribed, the existence of a discretion attracted a level of procedural fairness appropriate to its exercise - The Regulations were an important part of the statutory context - The Regulations distinguished between payment "in full" and payments "in accordance with an agreement with that government" - This could only mean that the government was authorized to limit enforcement to whatever amount was agreed upon with the sponsor, and no floor or ceiling (short of forgiveness) was fixed by the Regulation - The amount and terms of repayment were therefore within the discretion of the government decision maker - The court interpreted the IRPA and its regulations without reference to the terms of the sponsorship undertakings themselves - At best the undertakings reflected an administrative interpretation of the legislative framework - Section 3 of the IRPA stated the Act was intended to encourage family reunification but also recognized that successful integration

6 of immigrants involved "mutual obligations for new immigrants and Canadian society" - Debt collection without any discretion in relation either to sponsors or their relatives would not advance the purposes of the IRPA - See paragraphs 52 to 64. Statutes - Topic 1611 Interpretation - Extrinsic aids - General - Regulations and other delegated legislation - [See fourth Aliens - Topic 1286]. Statutes - Topic 2417 Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See fourth Aliens - Topic 1286]. Statutes - Topic 2614 Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See fourth Aliens - Topic 1286]. Cases Noticed: Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 38]. Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 38]. Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 38]. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 38]. Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 38]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 38]. Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 39]. Canada v. Prytula; Canada v. Rhine, [1980] 2 S.C.R. 442; 34 N.R. 290, refd to. [para. 49]. White (Peter G.) Management Ltd. v. Canada (Minister of Canadian Heritage) et al., [2007] 2 F.C.R. 475; 350 N.R. 113; 271 D.L.R.(4th) 361; 2006 FCA 190, refd to. [para. 49]. Canada v. Crosson (1999), 169 F.T.R. 218 (T.D.), refd to. [para. 49]. Optical Recording Co. v. Minister of National Revenue, [1991] 1 F.C. 309; 116 N.R. 200 (F.C.A.), refd to. [para. 54]. Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 57]. Canada 3000 Inc. (Bankrupt), Re (2004), 183 O.A.C. 201; 69 O.R.(3d) 1 (C.A.), refd to. [para. 57]. Greater Toronto Airports Authority v. International Lease Financing Corp. - see Canada 3000 Inc. (Bankrupt), Re. Ward-Price v. Mariners Haven Inc. (2001), 159 O.A.C. 117; 57 O.R.(3d) 410 (C.A.), refd

7 to. [para. 57]. Houde v. Quebec Catholic School Commission, [1978] 1 S.C.R. 937; 17 N.R. 451, refd to. [para. 61]. Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 68]. Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 68]. Statutes Noticed: Financial Administration Act, R.S.C. 1985, c. F-11, sect. 23 [para. 58]. Immigration Act, R.S.C. 1985, c. I-2, sect. 108(2), sect. 114(1)(c), sect. 115, sect. 118(1) [para. 24]; sect. 118(2) [para. 25]. Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3 [para. 62]; sect. 14(2)(e), sect. 145(2) [para. 26]; sect. 145(3) [para. 27]; sect. 146 [para. 28]. Immigration and Refugee Protection Regulations, SOR/ , sect. 132 [para. 23]; 135 [para. 29]. Interpretation Act, R.S.C. 1985, c. I-21, sect. 11 [para. 54]. Immigration Act Regulations (Can.), Immigration Regulations, 1978, SOR/97-145, sect. 3 [para. 25]. Immigration Regulations - see Immigration Act Regulations (Can.). Authors and Works Noticed: Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (Looseleaf Update 2010), pp. 7-3 [paras. 38, 40]; 7-25, 7-26 [para. 68]. Mullan, David J., Administrative Law (2001), p. 178 [para. 40]. R gimbald, Guy, Canadian Administrative Law (2008), pp. 226 to 227 [para. 39]. Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 370 [para. 57]; 408, 409 [para. 61]. Counsel: 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 intervenor, the South Asian Legal Clinic of Ontario; Chantal Tie, Carole Simone Dahan and Aviva Basman, for the intervenor, the Canadian Council for Refugees; Geraldine Sadoway, for the intervenor, the Metropolitan Action Committee on Violence against Women and Children; Guy Régimbald, for the intervenor, the Canadian Civil Liberties Association.

8 Solicitors of Record: Attorney General of Canada, Toronto, Ontario, for the appellant, the Attorney General of Canada; Attorney General of Ontario, Toronto, Ontario, for the appellant, the Attorney General of Ontario; Lerners, Toronto, Ontario, for the respondents, Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano, Oleg Grankin, Raymond Hince and Homa Vossoughi; Waldman & Associates, Toronto, Ontario, for the respondent, Nedzad Dzihic; Hugh M. Evans, North York, Ontario, for the respondents, Rania El-Murr and Hamid Zebaradami; Bennett Jones, Toronto, Ontario, for the intervenor, the South Asian Legal Clinic of Ontario; South Ottawa Community Legal Services, Ottawa, Ontario, for the intervenor, the Canadian Council for Refugees; Parkdale Community Legal Services, Toronto, Ontario, for the intervenor, the Metropolitan Action Committee on Violence against Women and Children; Gowling Lafleur Henderson, Ottawa, Ontario, for the intervenor, the Canadian Civil Liberties Association. This appeal was heard on December 9, 2010, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Binnie, J., on June 10, Editor: Angela E. McKay Appeal allowed in part.