Toussaint v. Canada (Attorney General), (2010) 372 F.T.R. 63 (FC)

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: March 23, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 372 F.T.R. 63 (FC);2010 FC 810

Toussaint v. Can. (A.G.) (2010), 372 F.T.R. 63 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. AU.009

Nell Toussaint (applicant) v. Attorney General of Canada (respondent)

(T-1301-09; 2010 FC 810)

Indexed As: Toussaint v. Canada (Attorney General)

Federal Court

Zinn, J.

August 6, 2010.

Summary:

Toussaint was illegally in Canada. She filed two applications for judicial review of a decision of an official of Citizenship and Immigration Canada that denied her request for benefits under the Interim Federal Health Program. The issues were: (1) whether either or both of the applications (one filed pursuant to s. 18.1 of the Federal Courts Act; the other, pursuant to s. 72 of the Immigration and Refugee Protection Act), were properly before the court; (2) whether the decision-maker committed a reviewable error; (3) whether the decision violated principles of international law; (4) whether the decision violated s. 7 of the Charter; and (5) whether the decision violated s. 15 of the Charter.

The Federal Court first examined the procedural issue. The court determined that the application under the Immigration and Refugee Protection Act was not proper, and that an application could only be made under s. 18.1 of the Federal Courts Act. The court next addressed the remaining issues, and dismissed the application.

Administrative Law - Topic 2208

Natural justice - Policies, rules or guidelines adopted by board or tribunal - Procedural guidelines - [See fifth Government Programs - Topic 1923 ].

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The applicant was illegally in Canada - She filed two applications for judicial review of a decision of an official of Citizenship and Immigration Canada that denied her request to pay her expenses under the Interim Federal Health Program - This application was made pursuant to s. 18.1 of the Federal Courts Act; the second application was made pursuant to s. 72 of the Immigration and Refugee Protection Act (IRPA) - At issue was whether either or both of the applications were properly before the court - Section 72(1) of the IRPA read as follows: "Judicial review by the Federal Court with respect to any matter ... under this Act is commenced by making an application for leave to the Court" - The Federal Court held that, given the wording of s. 72(1) and the fact that the legal basis for the decision under review was an Order-in-Council, it followed that an application for judicial review under the IRPA was not proper - An application could only be made under s. 18.1 of the Federal Courts Act - See paragraphs 22 to 28.

Aliens - Topic 3.2

Definitions and general principles - International Conventions and obligations (incl. incorporation of) - [See sixth Government Programs - Topic 1923 ].

Aliens - Topic 4066

Practice - Judicial review and appeals - When available - [See Aliens - Topic 2 ].

Civil Rights - Topic 208

Life - Right to health care (incl. funding) - [See ninth Government Programs - Topic 1923 ].

Civil Rights - Topic 938

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

Civil Rights - Topic 1001

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

Civil Rights - Topic 1400

Security of the person - Health care - Denial of (incl. funding for) - [See tenth Government Programs - Topic 1923 ].

Civil Rights - Topic 5662

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

Civil Rights - Topic 8305

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

Civil Rights - Topic 8314

Canadian Charter of Rights and Freedoms - General - Application - Social programs - Health care and treatment - [See ninth Government Programs - Topic 1923 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See seventh Government Programs - Topic 1923 ].

Civil Rights - Topic 8672

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

Constitutional Law - Topic 7506

Provincial jurisdiction (s. 92) - Matters of local or private nature - Health - [See seventh Government Programs - Topic 1923 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - General - [See Aliens - Topic 2 ].

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program, established under an order-in-council - The Federal Court, in determining the proper interpretation of the order-in-council, agreed with the Attorney General of Canada that the historical record affirmed the view that medical care provided at the expense of the government was available only to those legally admitted to Canada - That continued to be the case when, on June 20, 1957, the order-in-council was passed - See paragraphs 29 to 36.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program, established under an order-in-council - Paragraph (a) of the order-in-council provided that it applied to an "immigrant after being admitted at a port of entry and prior to his arrival at destination" - The Federal Court held that the applicant was not an "immigrant" in the sense that she was applying for permanent residence in Canada - She did not become an "immigrant" when she "filed" her application for permanent residence based on humanitarian and compassionate grounds, as the application was not filed in accordance with the rules and regulations - In any event, she entered Canada on a visitor's visa and was thus admitted to Canada as a temporary resident - Further, her temporary resident visa had expired - See paragraphs 37 to 39.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program, established under an order-in-council - The applicant submitted that she was covered under the order-in-council - Paragraph (b) provided that it applied to a person who at any time was "subject to Immigration jurisdiction" - The Federal Court rejected the applicant's position that anyone who might be captured by the provisions of the Immigration and Refugee Protection Act was "subject to Immigration jurisdiction" - If the phrase were to be given that broad interpretation, then it would include, among others, "an immigrant, after being admitted at a port of entry and prior to his arrival at destination", captured under paragraph (a) - "It is a principle of statutory interpretation that it is presumed that the legislators avoid superfluous words" - Therefore, the phrase "subject to Immigration jurisdiction" had a narrower meaning than the applicant submitted - See paragraphs 40 to 42.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program, established under an order-in-council - Paragraph (b) provided that it applied to a person who at any time was "subject to Immigration jurisdiction" - The Attorney General of Canada submitted that only those persons who were under the custody and care of the Immigration authorities, or who were the subject of an immigration proceeding provided for in the Immigration and Refugee Protection Act, were "subject to Immigration jurisdiction" - The Federal Court agreed, and found support for that interpretation in a letter from the Minister of National Health and Welfare who, with the concurrence of the Minister of Health, recommended the wording of the order-in-council - The applicant did not fall into one of the narrow, well-defined categories for which Immigration authorities felt responsible - See paragraphs 43 to 51.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program, established under an order-in-council - The order-in-council authorized but did not require the Minister or his delegate to pay the health care costs of certain classes of individuals - The Federal Court held that the Minister's delegate applied the guidelines on eligibility for the IFHP as if they were law and fettered his discretion - However, the court exercised its discretion not to set aside the decision, where the error was not material to the outcome of the application for IFHP coverage - Had the delegate properly considered and interpreted the order-in-council, he would have concluded that the applicant was not eligible for coverage - See paragraphs 52 to 62.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program - She submitted that the right to healthcare was protected by international law; specifically, that the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) "should inform the interpretation and application" of the Charter - The Federal Court held that the application could not succeed on the basis of the alleged international law obligations of Canada because Canada had not expressly implemented them - It was not necessary to pronounce on the contested scope of the international legal right to health, given the applicant's predominant reliance on the Charter, and the fact that Canada had not expressly implemented either the ICESCR or the ICERD in domestic legislation - See paragraphs 63 to 70.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program, established under an order-in-council - The Federal Court, before turning to the applicant's arguments under ss. 7 and 15 of the Charter, commented on the division of powers aspects of the case - "An argument could be made that the applicant should have formally applied for health coverage under the Province of Ontario's public insurance plan, and if refused, brought her Charter arguments on the basis of that refusal. Once cabinet passed Order-in-Council P.C. 157-11/848 it created a benefit program that, with the advent of the Charter, is subject to Charter scrutiny. Even though the applicant could have challenged her apparent exclusion from provincial health coverage there is nothing stopping her from challenging her exclusion from the IFHP on the basis that her exclusion from the IFHP violates her Charter rights" - See paragraphs 71 and 72.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program, established under an order-in-council - The applicant submitted that she was discriminated against on the basis of her disability and on the basis of her lack of Canadian citizenship - The Federal Court held that neither submission was convincing - The applicant was excluded from coverage because of her illegal status in Canada - She had not established that in denying her IFHP coverage the decision-maker drew a distinction based on an enumerated ground - Given her failure to argue that "immigration status" was an analogous ground, the s. 15(1) argument failed - See paragraphs 79 to 83.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The Federal Court stated that "there can be no doubt that the IFHP [Interim Federal Health Program], and the applicant's exclusion, constitutes 'government action' to which the Charter generally applies ... [T]he word 'everyone' in s. 7 of the Charter 'includes every human being who is physically present in Canada ...'. Accordingly, there can be no debate that non-citizens in Canada, including illegal immigrants, are entitled to the protections of s. 7 of the Charter. Such a broad conception of s. 7 is consistent with the notion that all human beings, regardless of their immigration status, are entitled to dignity and the protection of their fundamental right to life, liberty and security of the person. This does not mean that non-citizens, and in particular illegal migrants, are entitled to remain in Canada. There is no international legal right to migration ... Further, s. 7 of the Charter may not be implicated even in situations where the deportation of a non-citizen to their home country exposes them to jeopardy resulting from the inability of their home country to provide life-sustaining medical treatment" - See paragraphs 87 to 89.

Government Programs - Topic 1923

Medicare - Entitlement - Aliens - The applicant was illegally in Canada - She challenged a decision of an official of Citizenship and Immigration Canada that denied her request to pay the cost of her medical expenses under the Interim Federal Health Program - The applicant submitted that the decision violated s. 7 of the Charter; specifically, that the delays she had experienced negatively impacted her long-term health, and that her exclusion from the IFHP was arbitrary and not consistent with the requirements of fundamental justice - The Federal Court held that, although the applicant had established a deprivation of her right to life, liberty and security of the person that was caused by her exclusion from the IFHP, there was nothing arbitrary in denying financial coverage for health care to persons, such as the applicant, who had chosen to enter and remain in Canada illegally - To grant coverage to such persons would make Canada "a health-care safe-haven for all who require health care and health care services. There is nothing fundamentally unjust in refusing to create such a situation" - See paragraphs 90 to 94.

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See sixth Government Programs - Topic 1923 ].

Statutes - Topic 5515

Operation and effect - Delegated legislation - Orders-in-council - Interpretation - General - [See first, second, third and fourth Government Programs - Topic 1923 ].

Statutes - Topic 5517

Operation and effect - Delegated legislation - Orders-in-council - Judicial review - [See Aliens - Topic 2 ].

Words and Phrases

Subject to Immigration jurisdiction - The Federal Court interpreted the phrase "subject to Immigration jurisdiction" in paragraph (b) of Order-in-Council P.C. 157-11/848, effective June 20, 1957, being the current authority for the Interim Federal Health Program - See paragraphs 43 to 51.

Words and Phrases

Under this Act - The Federal Court interpreted the phrase "under this Act" in s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraphs 25 to 28.

Cases Noticed:

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 42].

Thamotharem v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 385; 366 N.R. 301; 2007 FCA 198, refd to. [para. 55].

Ainsley Financial Corp. et al. v. Ontario Securities Commission et al. (1994), 77 O.A.C. 155; 21 O.R.(3d) 104 (C.A.), refd to. [para. 55].

Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48; 2002 FCA 55, refd to. [para. 59].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 63].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, consd. [para. 73].

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, consd. [para. 73].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, consd. [para. 78].

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, dist. [para. 80].

Corbière 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. 82, footnote 3].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 85].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 87].

Covarrubias et al. v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 367; 2006 FCA 365, consd. [para. 89].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 91].

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. 91].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 84]; sect. 15(1) [para. 71].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 72(1) [para. 24].

International Convention on the Elimination of All Forms of Racial Discrimination (March 7, 1966), 660 U.N.T.S. 195; Can. T.S. 1970, No. 28, art. 5 [para. 66].

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (December 18, 1990), UN Doc. A/RES/45/158, art. 28 [para. 69].

International Covenant on Civil and Political Rights (December 16, 1966), 999 U.N.T.S. 171; Can. T.S. 1976, No. 47, art. 12 [para. 88, footnote 4].

International Covenant on Economic, Social and Cultural Rights (December 16, 1966), 993 U.N.T.S. 3; Can. T.S. 1976, No. 46, art. 12(1) [para. 65].

Authors and Works Noticed:

Kinney, Eleanor D., The International Human Right to Health: What Does This Mean for Our Nation and World? (2001), 34 Ind. L. Rev. 1457, p. 1457 [para. 67].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 210 [para. 42].

Counsel:

Andrew C. Dekany, Raj Anand and Angus Grant, for the applicant;

Marie-Louise Wcisio, for the respondent.

Solicitors of Record:

Andrew C. Dekany, Toronto, Ontario, for the applicant;

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

This application for judicial review was heard at Toronto, Ontario, on March 23, 2010, before Zinn, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated August 6, 2010.