Toussaint v. Canada (Attorney General), (2011) 420 N.R. 364 (FCA)

• Judge: Blais, C.J., Nadon and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 24, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 420 N.R. 364 (FCA);2011 FCA 213

Toussaint v. Can. (A.G.) (2011), 420 N.R. 364 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. SE.002

Nell Toussaint (appellant) v. Attorney General of Canada (respondent) and The Canadian Civil Liberties Association (intervenor)

(A-362-10; 2011 FCA 213; 2011 CAF 213)

Indexed As: Toussaint v. Canada (Attorney General)

Federal Court of Appeal

Blais, C.J., Nadon and Stratas, JJ.A.

June 27, 2011.

Summary:

Toussaint, a citizen of Grenada, entered Canada in 1999 as a visitor and stayed illegally. In 2009, she applied to Citizenship and Immigration for medical coverage under its Interim Federal Health Program, embodied in Order in Council 1957-11/848. A Ministerial delegate of rejected her application. Toussaint applied for judicial review, submitting that she was eligible for medical coverage. In the alternative, she submitted that her exclusion from medical coverage infringed her rights under ss. 7 and 15 of the Charter.

The Federal Court, in decisions reported at 372 F.T.R. 63 (main decision) and at [2010] F.T.R. Uned. 619 (decision on motion for reconsideration), dismissed the application. Toussaint appealed, making submissions substantially similar to those that were made in the Federal Court.

The Federal Court of Appeal rejected Toussaint's submissions and dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The appellant was illegally in Canada for some 10 years - She applied to Citizenship and Immigration for medical coverage under its Interim Federal Health Program, embodied in an Order in Council (OIC) - A Ministerial delegate (the Director) denied the appellant medical coverage - The reviewing judge found, in effect on a correctness standard, that the appellant was ineligible under the OIC to receive medical coverage - The appellant appealed - The Federal Court of Appeal stated that "[t]he first step in determining the standard of review is to appreciate the nature of the decision in issue ... In effect, we are reviewing the legal interpretation and application of an Order in Council by a delegate of the Minister" - The court was inclined to find that the Director was subject to the "usual" position of deference to his decision-making - "But there exists considerable uncertainty on this, arising from Dunsmuir itself, previous case law, and the unusual circumstances of this case" - In the end result, the court did not need to decide whether the standard of review was correctness or the deferential standard of reasonableness - "Regardless of the standard of review, the Director's decision passes muster" - See paragraphs 15 to 20.

Administrative Law - Topic 8268

Administrative powers - Discretionary powers - Judicial review - [See Administrative Law - Topic 3202 ].

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The appellant was illegally in Canada - She applied to Citizenship and Immigration for medical coverage under its Interim Federal Health Program, embodied in an Order in Council (OIC) - A Ministerial delegate rejected the application - The reviewing judge concluded that the appellant was ineligible to receive medical coverage under the OIC - The judge relied upon the plain meaning of the words in the OIC - He also examined the history behind the OIC to see if there was some special significance behind some of the wording used in it - The judge placed particular emphasis upon a rationale offered by the Minister of National Health and Welfare for the OIC - The Federal Court of Appeal agreed with the judge's view that the Minister's rationale was an important clue as to the intended scope of the OIC - "It was right to place particular emphasis on it" - See paragraphs 25 to 27.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The appellant was illegally in Canada - A Ministerial delegate rejected her application for medical coverage under Citizenship and Immigration's Interim Federal Health Program, embodied in an Order in Council - The reviewing judge's overall conclusion was that "Properly interpreted, Order-in-Council P.C. 1957-11/848 does not apply to the applicant and she is not eligible for [Program] coverage. The applicant is not an 'immigrant' in the sense that she is applying for permanent residence in Canada. The applicant is not temporarily under the jurisdiction of immigration authorities. Nor does the applicant fall into one of the narrow, well-defined categories for which immigration authorities feel responsible" - The Federal Court of Appeal agreed with the general thrust of the conclusion, but amplified and clarified it "because parties might interpret this passage in future cases to ascribe to the Order in Council a scope of medical coverage greater than is warranted by its terms" - See paragraphs 28 to 46.

Aliens - Topic 4061

Practice - Judicial review and appeals - General - [See Administrative Law - Topic 3202 ].

Civil Rights - Topic 208

Life - Right to health care (incl. funding) - [See first, second and third Government Programs - Topic 1923 ].

Civil Rights - Topic 938

Discrimination - Government programs - Health and social services - [See fourth Government Programs - Topic 1923 ].

Civil Rights - Topic 1001

Discrimination - Immigration - General - [See fourth Government Programs - Topic 1923 ].

Civil Rights - Topic 1013

Discrimination - Immigration - Appeal procedure - The appellant raised constitutional issues (infringement of her rights under ss. 7 and 15 of the Charter) for the first time in her application for judicial review of a decision by a Ministerial delegate - An issue on appeal was the standard of review of the decision on the constitutional issues - The Federal Court of Appeal stated that "we must look to the law concerning appellate standards of review, not administrative law standards of review" - In the end result, the court concluded that "the normal appellate standards of review discussed in Housen [v. Nikolaisen et al. (2002) (S.C.C.)] and H.L. [v. Canada (Attorney General) et al.(2005) (S.C.C.)] apply in constitutional cases. However, as a practical matter, it is fair to say that correctness review probably happens more frequently in constitutional appeals because of the centrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions of mixed fact and law that arise" - See paragraphs 51 to 55.

Civil Rights - Topic 1400

Security of the person - Health care - Denial of (incl. funding for) - [See first, second and third Government Programs - Topic 1923 ].

Civil Rights - Topic 5516

Equality and protection of the law - General principles and definitions - Tests for inequality - General - The Federal Court of Appeal set out the two-part test when assessing the merits of a claim under s. 15(1) of the Charter - See paragraphs 89 to 92.

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - [See fourth Government Programs - Topic 1923 ].

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application - Persons protected - [See all Government Programs - Topic 1923 ].

Civil Rights - Topic 8314

Canadian Charter of Rights and Freedoms - General - Application - Social programs - [See all Government Programs - Topic 1923 ].

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - [See Civil Rights - Topic 1013 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See fourth Government Programs - Topic 1923 ].

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The appellant was illegally in Canada - She submitted that her exclusion from medical coverage under Citizenship and Immigration' Interim Federal Health Program, established under an Order In Council (OIC), infringed her rights under s. 7 of the Charter - The reviewing judge found that the appellant's rights to life, liberty and security of the person were infringed - On appeal, that finding was challenged by the respondent on two grounds - First, the respondent disputed the finding that the appellant had been exposed to delays and serious health risks - Second, the respondent submitted that the appellant had not established that the failure of the OIC to provide medical coverage to her was the operative cause of the injury to her life and security - The Federal Court of Appeal rejected the first ground, but accepted the second - The reviewing judge had an evidentiary basis for his finding that the appellant was exposed to a significant risk to her life and health - See paragraphs to 59 to 66 - If there was an operative cause of the appellant's difficulties, it was the fact that although she was getting some treatment under provincial law, that law did not go far enough to cover all of her medical needs - Finally, "and most fundamentally", the appellant by her own conduct had endangered her life and health - The appellant had not met her burden of showing that the OIC was the operative cause of the injury to her rights to life and security of the person - See paragraphs 67 to 73.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The appellant was illegally in Canada for the better part of a decade - She submitted that her exclusion from medical coverage under the Interim Federal Health Program, established under an Order In Council (OIC), infringed her rights under s. 7 of the Charter - The reviewing judge, on the issue of justification under s. 1 of the Charter, held that if the OIC were extended to prove medical coverage to persons illegally in Canada, Canada would become a "health care safe haven" - The Federal Court of Appeal stated that "In any analysis of justification under section 1 of the Charter in this case, the interests of the state in defending its immigration laws would deserve weight" - See paragraphs 112 to 114.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The appellant was illegally in Canada - She was excluded from medical coverage under the Interim Federal Health Program, established under an Order In Council (OIC) - The Federal Court of Appeal held that the appellant had "fallen short" in asserting principles of fundamental justice under s. 7 - The Charter did not confer a freestanding constitutional right to health care - The OIC was not arbitrary, but was related to and consistent with the objective that lay behind it - "The Order in Council is not meant to provide ongoing medical coverage to all persons who have entered and who remain in Canada, lawfully or unlawfully" - Also, the appellant fell well short of establishing the high standard that the OIC was unacceptably vague in the sense that it was unintelligible and impossible to interpret - In the end result, the court concluded that the appellant's rights under s. 7 were not infringed - See paragraphs 74 to 88.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The appellant was illegally in Canada for the better part of a decade - She submitted that her exclusion from the medical coverage afforded under the Interim Federal Health Program, established under an Order in Council (OIC), infringed s. 15(1) of the Charter because that exclusion was based on an enumerated and analogous ground, and was discriminatory - The Federal Court of Appeal found no error in the reviewing judge's rejection of that submission - First, the appellant failed to demonstrate that the OIC made a distinction based on any enumerated or analogous ground that was relevant to her situation - Further, the court did not accept that "immigration status" qualified as an analogous ground under s. 15 - Second, the appellant had failed to establish that the OIC relied upon, perpetuated or promoted prejudice or stereotyping - Third, the facts and the holding of the Supreme Court of Canada in Auton et al. v. British Columbia (Minister of Health) et al. (2004), were directly on point and confirmed that the OIC did not infringe s. 15 - Finally, the court queried whether the OIC was the operative cause of the disadvantage the appellant was encountering - See paragraphs 93 to 111.

Statutes - Topic 5515

Operation and effect - Delegated legislation - Orders-in-council - Interpretation - General - [See first and second Aliens - Topic 2 ].

Statutes - Topic 5517

Operation and effect - Delegated legislation - Orders-in-council - Judicial review - [See Administrative Law - Topic 3202 ].

Words and Phrases

Immigrant - The Federal Court of Appeal interpreted the word "immigrant" in paragraph (a) of Order in Council P.C. 1957-11/848, effective June 20, 1957, being the authority for the Interim Federal Health Program, Citizenship and Immigration Canada - See paragraphs 31 to 34.

Words and Phrases

Subject to Immigration jurisdiction - The Federal Court of Appeal interpreted the phrase "subject to Immigration jurisdiction" in paragraph (b) of Order-in-Council P.C. 1957-11/848, effective June 20, 1957, being the authority for the Interim Federal Health Program, Citizenship and Immigration Canada - See paragraphs 39 and 40.

Cases Noticed:

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. 18].

Celgene Corp. v. Canada (Attorney General) (2011), 410 N.R. 127; 327 D.L.R.(4th) 513; 2011 SCC 1, refd to. [para. 18].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 328 D.L.R.(4th) 1; 2011 SCC 7, refd to. [para. 18].

De Jong v. Canada (Minister of Citizenship and Immigration) - see Hilewitz v. Canada (Minister of Citizenship and Immigration).

Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; 340 N.R. 102; 2005 SCC 57, refd to. [para. 19].

Patel v. Canada (Minister of Citizenship and Immigration) (2011), 419 N.R. 321; 2011 FCA 187, refd to. [para. 19].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 19].

Global Wireless Management Corp. v. Public Mobile Inc. - see Public Mobile Inc. v. Canada (Attorney General) et al.

Public Mobile Inc. v. Canada (Attorney General) et al. (2011), 420 N.R. 50; 2011 FCA 194, refd to. [para. 19].

Okwuobi v. Lester B. Pearson School Board - see Okwuobi v. Quebec (Attorney General) et al.

Casimir v. Quebec (Attorney General) - see Okwuobi v. Quebec (Attorney General) et al.

Zorrilla v. Quebec (Attorney General) - see Okwuobi v. Quebec (Attorney General) et al.

Okwuobi v. Quebec (Attorney General) et al., [2005] 1 S.C.R. 257; 331 N.R. 300; 2005 SCC 16, refd to. [para. 48].

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. 49].

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 52].

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. 52].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 53].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 54].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 54].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 54].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 54].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 54].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [paras. 60, 77].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 60].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 60].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 60].

Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al. (2011), 420 N.R. 9; 2011 FCA 114, refd to. [para. 68].

Reference Re Assisted Human Reproduction Act, [2010] 3 S.C.R. 4; 410 N.R. 199; 2010 SCC 61, refd to. [para. 69].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 78]; consd. [para. 105].

Ali et al. v. Minister of National Revenue (2008), 379 N.R. 200; 2008 FCA 190, refd to. [para. 78].

Wynberg et al. v. Ontario (2006), 213 O.A.C. 48; 82 O.R.(3d) 561 (C.A.), refd to. [para. 78].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), refd to. [para. 78].

Flora v. Ontario Health Insurance Plan (2008), 238 O.A.C. 319; 91 O.R.(3d) 412; 2008 ONCA 538, refd to. [para. 78].

R. v. Caine (V.E.) - see R. v. Malmo-Levine (D.) et al.

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 80].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 80].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 80].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 81].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 84].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 84].

Withler v. Canada (Attorney General) (2011), 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 89].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 89].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 90].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 90].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 90].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 99].

Forrest v. Canada (Attorney General) (2006), 357 N.R. 168; 2006 FCA 400, refd to. [para. 99].

Irshad et al. v. Canada (Minister of Health) et al. (2001), 141 O.A.C. 239; 55 O.R.(3d) 43 (C.A.), refd to. [para. 99].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 102].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 56]; sect. 15(1) [para. 89].

Authors and Works Noticed:

Kropp, Douglas, Categorical Failure: Canada's Equality Jurisprudence - Changing Notions of Identity and the Legal Subject (1997), 23 Queen's L.J. 201, para. 8 [para. 100].

Reaume, Denise, Of Pigeonholes and Principles: A reconsideration of discrimination law (2002), 40 Osgoode Hall L.J. 113, pp. 113 to 144 [para. 100].

Counsel:

Andrew Dekany, Raj Anand and Angus Grant, for the appellant;

Marie-Louise Wcislo and Martin Anderson, for the respondent;

Iris Fischer and Lindsay Aagaard, for the intervenor.

Solicitors of Record:

Andrew Dekany, Toronto, Ontario, for the appellant;

Weir Foulds LLP, Toronto, Ontario, and Law Office of Catherine Bruce, Toronto, Ontario, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

Blake, Cassels & Graydon LLP, Toronto, Ontario, for the intervenor.

This appeal heard at Ottawa, Ontario, on November 24, 2010, before Blais, C.J., Nadon and Stratas, JJ.A., of the Federal Court of Appeal. In reasons written by Stratas, J.A., the Court of Appeal delivered the following judgment at Ottawa, on June 27, 2011.