Mavi et al. v. Canada (Attorney General) et al., 2009 ONCA 794

• Judge: Laskin, Simmons and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 04, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 794;(2009), 259 O.A.C. 33 (CA)

Mavi v. Can. (A.G.) (2009), 259 O.A.C. 33 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. FE.033

Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano, Nedzad Dzihic, Rania El-Murr, Oleg Grankin, Raymond Hince, Homa Vossoughi and Hamid Zebaradami (applicants/appellants) v. Attorney General of Canada and Attorney General of Ontario (respondents/respondents)

(C49530; 2009 ONCA 794)

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

Ontario Court of Appeal

Laskin, Simmons and Lang, JJ.A.

November 12, 2009.

Summary:

The eight appellants each sponsored a relative's entry into Canada under the family class immigration regime established by the Immigration and Refugee Protection Act (the new Act) and the former Immigration Act (the old Act). The appellants signed undertakings under either the old Act or the new Act in which they promised to provide for their sponsored relative's essential needs and to ensure that their relative would not require social assistance during the sponsorship period. Both Acts provided that the amount of any social assistance paid to a sponsored relative during the sponsorship period was a debt owed by the sponsor to the government and that the debt "may be recovered" either by the federal government or by the provincial government that made the payments. The appellants' sponsored relatives all received social assistance in Ontario during the period of their sponsorships and Ontario requested payment of their sponsorship debts. The appellants claimed that circumstances beyond their control left them unable to honour their undertakings. They each applied for a declaration that they were discharged from their sponsorship obligations. The appellants argued that the language of the Acts stating that sponsorship debt "may be recovered" indicated that the governments had discretion to forgive sponsorship debt. They also claimed that the governments exercised their discretion unreasonably and violated their duty of procedural fairness by taking steps to enforce the appellants' undertakings without first giving them a fair opportunity to be heard and without taking into account their individual circumstances.

The Ontario Superior Court dismissed the applications. The application judge found that the words "may be recovered" were merely enabling in the sense that they did no more than permit the government to enforce the debt. She concluded that they did not impose either an obligation on government to consider the appellants' circumstances on a case-by-case basis, or a duty of procedural fairness. The appellants appealed. They no longer sought a declaration that they were discharged from their individual sponsorship obligations. However, they claimed that the application judge erred in rejecting their arguments concerning discretion and procedural fairness and in failing to make declarations in that regard.

The Ontario Court of Appeal allowed the appeal, set aside the dismissal of the appellants' applications and made the following four declarations: (i) Canada and Ontario had a case-by-case discretion whether to enforce sponsorship debt taking into account a sponsor's submissions concerning the sponsor's circumstances and those of their sponsored relative; (ii) Ontario fettered its discretion by adopting policies that were inconsistent with the provisions of the family class immigration regime; (iii) Canada and Ontario owed sponsors a duty of procedural fairness when enforcing sponsorship debt; and (iv) the duty of procedural fairness included: a) an obligation to provide sponsors with a process for explaining their own and their sponsored relative's relevant personal and financial circumstances; b) an obligation to consider those circumstances; and c) an obligation to inform any sponsor who made submissions that their submissions had been considered and of the decision that was made.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See third Aliens - Topic 1286 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See third Aliens - Topic 1286 ].

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See second Aliens - Topic 1286 ].

Aliens - Topic 3

Definitions and general principles - Legislation - Transitional provisions - General - [See fourth Aliens - Topic 1286 ].

Aliens - Topic 1286

Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - Both the Immigration and Refugee Protection Act (the new Act) and the former Immigration Act provided that the amount of any social assistance paid to a sponsored relative during the sponsorship period was a debt owed by the sponsor to the government and that the debt "may be recovered" either by the federal government or by the provincial government that made the payments - The Ontario Court of Appeal held that the application judge in the case before it erred in finding that the words "may be recovered" were merely enabling and did not also confer discretion on a federal or provincial government concerning sponsorship debt - Three factors persuaded the court that the provisions in issue required the exercise of a case-by-case discretion concerning the enforcement of sponsorship debt - First, the word "may" was generally interpreted as signalling at least some measure of discretion although the court recognized that relevant case law had consistently held that "may" had a variety of meanings and that a contextual interpretation was required to determine its true meaning - Second, the overall legislative scheme that informed the interpretation of the statutory provisions had to include the Regulations promulgated under both Acts and the forms created to implement the Regulations - Both the undertaking forms signed by sponsors and the Regulations supported an intent to confer a case-by-case discretion - Third, interpreting s. 145(2) of the new Act as conferring a case-by-case discretion struck an appropriate balance between the goal of requiring sponsors to comply with their undertaking while respecting the humanitarian traditions of Canadian immigration legislation - Interpreting the Acts as creating discretion was consistent with the overall scheme and purpose of the Acts - See paragraphs 84 to 110.

Aliens - Topic 1286

Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - Both the Immigration and Refugee Protection Act (the new Act) and the former Immigration Act provided that any social assistance paid to a sponsored relative during the sponsorship period was a debt owed by the sponsor to the government - The appellants' sponsored relatives received social assistance in Ontario during the period of their sponsorships and Ontario requested payment of the sponsorship debts - The appellants claimed that circumstances beyond their control left them unable to honour their undertakings - The Ontario Court of Appeal held that Ontario fettered or abused the exercise of its discretion in three ways - First, Ontario's decisions regarding the appellants were anchored by its "Guiding Principle" that a "defaulting sponsor was required to repay the full amount of the debt" - This policy precluded exercising discretion to negotiate a settlement for an amount less than the full debt - Such a step was expressly contemplated in both s. 135(b)(i) of the Regulations under the new Act and the undertakings signed by the appellants - Although declining to exercise that discretion might be defensible in most circumstances, a policy that required that result in every case improperly fettered or restricted the discretion of the decision-maker - To that extent, the policy was inconsistent with the overall legislative scheme and amounted to an improper fettering of Ontario's discretion - Second, apart from abuse, the only examples in Ontario's policy statements of considerations warranting a deferral of enforcement of sponsorship debt were considerations involving the sponsor's financial circumstances - By limiting the examples it gave to financial considerations or abuse, Ontario effectively restricted the "other" considerations in addition to abuse that were open to a decision-maker to the financial circumstances of a sponsor - In so doing, Ontario created a policy that was inconsistent with the overall legislative regime and thereby improperly fettered its discretion - Third, to the extent that the residual ground in Ontario's deferral policy allowed only for consideration of "documented extraordinary circumstances", it raised the bar higher than the various iterations of the undertakings that mandated consideration of "other circumstances" or "other appropriate circumstances" - This was inconsistent with the overall legislative scheme and amounted to an improper fettering of Ontario's discretion - See paragraphs 120 to 134.

Aliens - Topic 1286

Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - Both the Immigration and Refugee Protection Act and the former Immigration Act provided that any social assistance paid to a sponsored relative during the sponsorship period was a debt owed by the sponsor to the government and that the debt "may be recovered" either by the federal government or by the provincial government that made the payments - The appellants' sponsored relatives received social assistance in Ontario during the period of their sponsorships and Ontario requested payment of the sponsorship debts by the appellants - The Ontario Court of Appeal held that Canada and Ontario owed sponsors a duty of procedural fairness when enforcing sponsorship debt and that the governments' duty of procedural fairness included the following three components: (i) an obligation to provide a process for individual sponsors to explain their relevant personal and financial circumstances; (ii) an obligation on government to consider those circumstances, and; (iii) an obligation to inform any sponsor who made submissions that their submissions had been considered and of the decision that was made - See paragraphs 135 to 160.

Aliens - Topic 1286

Admission - Immigrants - Sponsorship - Enforcement of sponsor's undertakings (incl. sponsorship debts) - The Ontario Court of Appeal held that undertakings given by sponsors under the former Immigration Act (the old Act) were enforceable under the Immigration and Refugee Protection Act (the new Act) - There was no ambiguity in the transition provisions - A plain reading of s. 351(1) of the new Act in context led to the conclusion that the Governor in Council intended undertakings given under the old Act to remain in effect and to be "governed" or controlled by and enforceable under the new Act - Section 351(2) specifically provided for recovery of sponsorship debt accumulated under old undertakings - Moreover, the government's intention to impose the new regime on the old undertakings was evident from other provisions in the Regulations under the new Act - In addition, the interpretation reached by the court was supported by reference to the Regulatory Impact Analysis Statement that accompanied the new Act - The word "governed" accomplished the government's purpose without the need to also "deem" the undertakings to be made under the new regime - See paragraphs 161 to 184.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See first Aliens - Topic 1286 ].

Statutes - Topic 1611

Interpretation - Extrinsic aids - General - Regulations and other delegated legislation - [See first Aliens - Topic 1286 ].

Statutes - Topic 1660

Interpretation - Extrinsic aids - Legislative history - Regulatory Impact Analysis Statements - [See fourth Aliens - Topic 1286 ].

Statutes - Topic 1861

Interpretation - Intrinsic aids - Schedules, appendices and forms - General - [See first Aliens - Topic 1286 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See first Aliens - Topic 1286 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See first Aliens - Topic 1286 ].

Statutes - Topic 4945

Operation and effect - Enabling Acts - Powers - General - Extent or scope of discretionary power - [See first Aliens - Topic 1286 ].

Cases Noticed:

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 20].

Cha v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 409; 349 N.R. 233; 2006 FCA 126, refd to. [para. 79].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 83].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 83].

Bell Express Vu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 86].

Ruby v. Royal Canadian Mounted Police et al., [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), revd. in part [2002] 4 S.C.R. 3; 295 N.R. 353, refd to. [para. 90].

Falconbridge Nickel Mines v. Ontario (Minister of Revenue) (1981), 121 D.L.R.(3d) 403 (Ont. C.A.), refd to. [para. 90].

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. 92].

Canada 3000 Inc. (Bankrupt), Re (2004), 183 O.A.C. 201; 69 O.R.(3d) 1 (C.A.), refd to. [para. 93].

Greater Toronto Airports Authority v. International Lease Financing Corp. - see Canada 3000 Inc. (Bankrupt), Re.

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338, refd to. [para. 93, footnote 30].

Ward-Price v. Mariners Haven Inc. (2001), 159 O.A.C. 117; 57 O.R.(3d) 410 (C.A.), refd to. [para. 93].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 121].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 121].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 121].

Diavik Diamond Mines Inc. v. Boullard et al., [2007] Northwest Terr. Cases Uned. 83; 2007 NWTSC 83, refd to. [para. 124].

Brown v. Alberta (1991), 82 D.L.R.(4th) 96 (Alta. Q.B.), refd to. [para. 124].

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. 136].

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. 136, footnote 35].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 143].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 143].

Khan v. University of Ottawa (1997), 101 O.A.C. 241; 34 O.R.(3d) 535 (C.A.), refd to. [para. 149, footnote 36].

Manitoba v. Barkman (2007), 213 Man.R.(2d) 273; 2007 MBQB 54, affd. (2008), 225 Man.R.(2d) 166; 419 W.A.C. 166; 2008 MBCA 14, leave to appeal denied [2008] S.C.C.A. No. 526, refd to. [para. 171].

Manitoba v. Khaleghi-Hashemian et al., [2002] Man.R.(2d) Uned. 71; 2002 MBQB 1, refd to. [para. 171].

Merck & Co. et al. v. Canada (Attorney General) et al. (1999), 176 F.T.R. 21 (T.D.), affd. (2000), 254 N.R. 68; 5 C.P.R.(4th) 138 (F.C.A.), leave to appeal denied [2000] 1 S.C.R. xvii; 259 N.R. 196, refd to. [para. 176, footnote 39].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 176, footnote 39].

Friesen v. Minister of National Revenue, [1995] 3 S.C.R. 103; 186 N.R. 243, refd to. [para. 176, footnote 39].

Bayer Inc. v. Canada (Attorney General) et al. (1999), 243 N.R. 170; 87 C.P.R.(3d) 293 (F.C.A.), refd to. [para. 176, footnote 39].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 118(2) [para. 25].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 145(2) [para. 47].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 135(b) [para. 55]; sect. 337(1) [para. 164]; sect. 351(1) [para. 165]; sect. 351(2) [para. 166]; sect. 351(3) [para. 167].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 83 [para. 86].

Flood, Colleen, and Sossin, Lorne, Administrative Law in Context (2008), p. 279 [para. 123].

Kelly, Ninette, and Trebilcock, Michael, The Making of the Mosaic: A History of Canadian Immigration Policy (1998), p. 402 [para. 63, footnote 23].

Mullan, David J., Administrative Law: Cases, Text and Materials (5th Ed. 2003), p. 952 [para. 122].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 409 [para. 94].

Counsel:

Lucas Lung, for the appellants, Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano, Oleg Grankin, Raymond Hince and Homa Vossoughi;

Lorne Waldman, for the appellant, Nedzad Dzihic;

Hugh E. Evans, for the appellants, Rania El-Murr and Hamid Zebaradami;

Lorne McClenaghan and Sharon Stewart Guthrie, for the respondent, Attorney General of Canada;

Robert Ratcliffe and Jodie-Lynn Waddilove, for the respondent, Attorney General of Ontario;

Geraldine Sadoway, for the intervener, Metropolitan Action Committee on Violence Against Women and Children.

This appeal was heard on May 4, 2009, before Laskin, Simmons and Lang, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Simmons and Lang, JJ.A., and was released on November 12, 2009.