Barlagne v. Canada (Minister of Citizenship and Immigration), (2010) 367 F.T.R. 281 (FC)

• Judge: Gauthier, J.
• Court: Federal Court (Canada)
• Case Date: February 23, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 367 F.T.R. 281 (FC);2010 FC 547

Barlagne v. Can. (M.C.I.) (2010), 367 F.T.R. 281 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. MY.025

David Philippe Barlagne (applicant) v. Minister of Citizenship and Immigration (respondent)

(IMM-2486-09; 2010 FC 547)

Indexed As: Barlagne v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gauthier, J.

May 18, 2010.

Summary:

The visa officer refused Barlagne's application for permanent residence on the basis that his young daughter, Rachel, who had hypotonic cerebral palsy with cerebellar dysfunction, was inadmissible to Canada on health grounds because her condition might reasonably be expected to cause excessive demand on social services (Immigration and Refugee Protection Act, s. 38(1)). The fact that Rachel was inadmissible meant that Barlagne and his family were inadmissible. Barlagne applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See first Aliens - Topic 1751 ].

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See first Aliens - Topic 1751 ].

Aliens - Topic 1751

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Unhealthy or disabled persons - With the support of the Canadian Embassy and Investissement Québec, Barlagne, a foreign national, obtained a work permit and visitors visas for his family members - They then moved to Quebec - The visa officer refused Barlagne's application for permanent residence on the basis that his young daughter was inadmissible to Canada on health grounds because her condition might reasonably be expected to cause excessive demand on social services (Immigration and Refugee Protection Act, s. 38(1)) - The Federal Court held that there was no breach of the duty to act fairly - The fairness letter, which reproduced the medical officer's conclusions and which advised Barlagne of the diagnosis, prognosis, the social services required and their associated costs, was sufficient to fulfil the visa officer's duty to act fairly - See paragraph 50.

Aliens - Topic 1751

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Unhealthy or disabled persons - The visa officer refused Barlagne's application for permanent residence on the basis that his young daughter was inadmissible to Canada on health grounds because her condition might reasonably be expected to cause excessive demand on social services (Immigration and Refugee Protection Act, s. 38(1)) - On judicial review, Barlagne submitted that the visa officer did not consider his argument that s. 38(1) was unconstitutional because it was contrary to s. 15 of the Charter - The Federal Court held that the absence of service of notice on the Attorney General of Canada and to the attorney general of each province (Federal Courts Act, s. 57) was fatal - The court was not satisfied that the visa officer had jurisdiction to consider the argument - There was no evidence of differential treatment of a class of immigrants - The constitutionality of s. 38(1) having regard to s. 15 of the Charter had already been reviewed and affirmed by the court - Moreover, s. 38(1) was not based on an analogous ground since it emphasized excessive demand and not an illness or disability - See paragraphs 59 to 64.

Civil Rights - Topic 1009

Discrimination - Immigration - Exclusion based on health - [See second Aliens - Topic 1751 ].

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - [See second Aliens - Topic 1751 ].

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - [See second Aliens - Topic 1751 ].

Cases Noticed:

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 21].

Thanabalasingham v. Canada (Minister of Citizenship and Immigration) (2006), 345 N.R. 388; 263 D.L.R.(4th) 51; 2006 FCA 14, refd to. [para. 21].

Ali v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 57; 2008 FC 106, refd to. [para. 23].

Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49; 24 Imm. L.R.(2d) 95 (T.D.), refd to. [para. 23].

Abbott Laboratories Ltd. v. Canada (Attorney General) et al., [2009] 3 F.C.R. 547; 382 N.R. 280; 2008 FCA 354, refd to. [para. 23].

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. 28].

Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; 340 N.R. 102; 2005 SCC 57, refd to. [para. 28].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 28].

Rashid v. Canada (Minister of Citizenship and Immigration) (2010), 364 F.T.R. 170; 2010 FC 157, refd to. [para. 29].

Sapru v. Canada (Minister of Citizenship and Immigration) (2010), 364 F.T.R. 273; 2010 FC 240, refd to. [para. 29].

Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62; 42 Imm. L.R.(2d) 17 (T.D.), dist. [para. 45].

Jang v. Canada (Minister of Citizenship and Immigration) (2001), 278 N.R. 172; 2001 FCA 312, consd. [para. 45].

Khan (S.H.) v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 413; 283 N.R. 173; 2001 FCA 345, consd. [para. 48].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 49].

VIA Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184; 193 D.L.R.(4th) 357 (F.C.A.), refd to. [para. 52].

VIA Rail Canada Inc. v. Lemonde - see VIA Rail Canada Inc. v. National Transportation Agency et al.

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 60].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2004] 3 F.C.R. 436; 317 N.R. 258; 2004 FCA 66, revd. in part [2005] 3 S.C.R. 388; 342 N.R. 82; 259 D.L.R.(4th) 610, refd to. [para. 61].

Bekker v. Minister of National Revenue (2004), 323 N.R. 195; 2004 FCA 186, refd to. [para. 61].

Information Commissioner (Can.) v. Prime Minister (Can.), [1993] 1 F.C. 427; 57 F.T.R. 180 (T.D.), refd to. [para. 61].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 62].

Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43; 147 F.T.R. 246 (T.D.), affd. [1999] 3 F.C. 404; 242 N.R. 173 (F.C.A.), refd to. [para. 62].

Chesters v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 361; 221 F.T.R. 1; 2002 FCT 727, refd to. [para. 63].

Florea v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 598 (F.C.A.), refd to. [para. 67, footnote 16].

Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317; 36 A.C.W.S.(3d) 635 (F.C.A.), refd to. [para. 67, footnote 16].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 57 [para. 61].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 11(1), sect. 38(1), sect. 42(a) [para. 26].

Counsel:

Patrice Jourdain, for the applicant;

Michèle Joubert, for the respondent.

Solicitors of Record:

Patrice Jourdain, Montreal, Quebec, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on February 23, 2010, by Gauthier, J., of the Federal Court, who delivered the following reasons for order and order, dated May 18, 2010.