Revisionist History


 

Yesterday was the deadline for the government to file any remaining affidavits in the case and they availed themselves of the opportunity by filing one.  Today I had an opportunity to read the actual affidavit, although I am waiting for copies of the exhibits attached to the affidavit.

In this case, it was the medical officer.  On first reading, I must admit, it was actually somewhat convincing that she had actually done some real thinking before reaching her decision.  Admittedly, there are some flaws in that rationale, but after mulling it over for some time, I realized that there’s one thing missing from all of this: what she’s saying isn’t supported by the written record.  Thus, she is now supplementing her original written decision.  That’s not supposed to happen.  I have read numerous legal decisions and I’ve never read one in which it was the government adding new material to the record.  I have read decisions in which the judge pointedly ignores new material submitted by the applicant, precisely because it is not material that was part of the original decision under review – and hence irrelevant.  Thus, I would think the government cannot correct the record “after the fact” any more than I could do so.  This is especially galling since they refused to consider information I actually submitted before they made their decision – “oh, sorry, we didn’t get that.”

So, she provides a nice rationale about how she thought insurance companies wouldn’t pay for medication when they found out that the provincial government had a program for doing so.  She doesn’t offer any evidence of this, merely just her theory.  While that sounds great, I realized that even if you accepted that rationale, it doesn’t explain her rejection of the private health care reimbursement program – known as a PHSP – which (at $20,000 per year) would still have been more than sufficient to pay the anticipated drug costs and which isn’t an insurance company – it’s an employer sponsored expense reimbursement plan.

Had she come back and expressed these concerns, we could have provided her with further evidence.  I could have offered to opt out of the provincial health care plan, which in turn would then have made me ineligible for the very coverage she used to ban me.

Then I can see the clear influence of the government’s attorney – the medical officer claims she signed off on the new medical opinion, and that – voila – i am no longer medically inadmissible.  Of course, she fails to mention that the medical opinion upon which she bases her decision is not even valid for my original case and cannot be used to make the decision in my case.

However, the fact the government is playing this game does tell me one thing: that for whatever reason, the government is actually worried they will lose on the merits.  This nonsense about alternatives and what-not have no bearing on the original decision, they are red herrings intent upon distracting the Court.

My expectation is that the Court will see through this ruse, step back and say “this is all interesting, but it doesn’t repair the original decision, which is defective.”  Even if you accept the affidavit from the medical officer, it says there were hidden concerns that were never expressed.   That would mean the fairness letter wasn’t detailed enough for us to successfully address the concerns.  That would violate the natural fairness required by the process.

That’s giving her the benefit of the doubt.  What seems more likely is that the medical officer is trying to cover her tracks after the fact.  I suspect she just looked at the material and said “none of this changes the medical diagnosis, so I don’t really care.”

We’re now just 1.5 months away from the hearing date.  We will find out after that.

 

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Silence can be deafening


Silence SpeaksWell it’s now evening on Wednesday.  My attorney presumably returned from vacation yesterday and yet, two days later, I’ve heard nothing from him with respect to the odd filings I mentioned previously.

I try hard not to make myself a pest – I did send two e-mails, and I thought that I would hear from him upon his return. While I’m sure he had other matters awaiting his attention when he got back, I don’t expect he has a large number of pending judicial review applications before the Federal Court of Canada – he does seem to argue one or two per year.

Maybe I’m just being impatient.  For him this is just one case of many – it’s a job for him.  For me it is admittedly a bit of an obsession, but then again it is my life here.  I’ve pointed out that three plus years is a long time for anyone to put their life on hold awaiting the outcome of a bureaucratic process.  I have also pointed out previously how dehumanizing this process is, so perhaps this is just another reflection of that reality.

At any rate, now I wait.  In one week the next deadline is upon us – the Government’s deadline for filing any additional affidavits.  I’m not sure if they will submit anything.  Next month will be deadlines for additional legal briefs to be filed.  If there are any potential parties wishing to intervene on either side, that would be the point at which they would do so.

So I shall sit here and wait and try to enjoy the silence.

Deadlines


Today I decided to really look further into the case law around tribunal records.  In the process I got side tracked by noticing Immigration Rule 21(2):

No time limit prescribed by these Rules may be varied except by order of a judge or prothonotary.

So my distraction turned into a bit of a search for case law regarding the meaning of the rules around the strict timelines laid down by the Federal Court of Canada.  Why is this important?  If the response is not timely and the Court does not grant an order then the material is excluded from consideration.

I also noticed another time issue: the “certified tribunal record” includes material that is dated AFTER the original decision, which runs counter to CIC’s own rules – the tribunal record should only include information/material that was considered by the decision maker.  Interestingly, if the extra material had been present in December 2011, the visa officer should have reached a positive determination, since it indicates I am not medically inadmissible (a code of “M39” which means “medically admissible – excessive demand exempt, will require health and/or social services”).

One might think that a single day doesn’t really matter – but it does.  It could be easily overcome by filing an application with the Court, asking for the change in schedule to be allowed and explaining why the extension is justified.  Indeed, I read a case in which the attorney delivered the application to the Bailiff for service on the day the service was due but the Bailiff did not serve the papers until the subsequent day.  The court did not consider the application record because it was not served in a timely fashion and the Applicant’s counsel did not ask for an extension of time to file.

I have seen signs of game playing in civil litigation before, so I shouldn’t be surprised at these shenanigans, but it is a bit shocking when it is my case to which they are being applied.

Then again, it makes me wonder: if the government had a strong case here, why would they play these games.  This really does suggest they expect to lose.  In some ways, having the Court strike down 38(1)(c) might be a blessing for the government because it would get them out of the medical inadmissibility business, which does seem to create a lot of grief for them.

We will know on or after October 17, 2012. I don’t see that deadline changing.

And Sometimes I Overthink The Problem


 

The ThinkerAt times I am guilty of “over-thinking” the problem.  Spending a bit too much time looking at the evidence and attempting to speculate on the “holes” in the evidence.  It would appear that I have done just that with respect to the recent oddity in the Registry record.  On the other hand, it turns out I was right in at least one important speculative aspect.

At any rate, the Registry has now updated and there are a number of records.  I followed up by requesting copies of the materials submitted by the government from my attorney’s office, as my attorney is out of the office this week.

The Respondent’s council conveniently enough noticed the omission of the medical file in the “certified tribunal record” because it was missing the medical file.  Conveniently enough she happened to have a copy of my medical file, which she submitted to the court and apologized for the oversight.

Just for the record, there is a reasonable sized section in ENF 9: Judicial Review which is the CIC document describing the process, with particular emphasis on the responsibilities of CIC to comply with the legal requirements.  Dry reading, I’m going to reproduce the bulk of it here because it will help establish context for my comments:

The order granting leave for judicial review constitutes an order pursuant to Rule 17 of the Federal Court Immigration Rules whereby the tribunal (decision-maker) is required to produce the tribunal record within the time frame specified in the Court order. In cases where the Minister or an officer designated by the Minister is the decision-maker, the Rule 17 order will be directed to the CIC or the CBSA office responsible for making the decision.
Upon receipt of the order granting leave, the decision-maker or the official assigned to the task must immediately prepare and send two certified copies of the tribunal record to the Court Registry and one certified copy to each of the parties (the applicant’s counsel and the Department of Justice). The tribunal record will consist of the following documents numbered consecutively:
(a) the decision or order that is the subject of the application and the written reasons, if any, or a notice that no written reasons were issued;
(b) all papers relevant to the matter that are in the tribunal’s possession or control;
(c) any affidavits or other documents filed or considered during the course of any hearing, interview or process that resulted in the decision or order; and
(d) a transcript if there is one of any oral testimony given during the hearings, interviews or processes that led to the decision or order.
It is imperative that the tribunal record is produced as aforementioned no later than the date specified in the Court order. All papers relevant to the matter specified in paragraph (b) above refer to all the file material that the decision-maker referred to, considered or relied upon before making their decision. Such material would normally include the officer’s summary report or interview/review notes, submissions and any documents submitted by the client and or counsel and any other file material referred to or considered by the decision-maker, including FOSS or CAIPS notes. Any material or file information that was not considered by the decision-maker or postdates the decision date is not required and should not be included in the tribunal record. The person preparing the tribunal record should consult with the decision-maker where there are doubts as to what material was considered in making the decision that is being challenged.

There are a few key points here: first, the tribunal record has to be prepared by the tribunal (CIC in this case) and not casually submitted from materials that just happened to be sitting on the desk of legal counsel.

Second, it’s a certified copy – how can counsel certify that these are the materials that were reviewed by the officer in rendering her decision?  This seems dubious at best.

Third, the medical records included – as I suspected they would – material that would not have been considered in the initial rejection (e.g., the medical that I had done in February for the new application.)  Indeed, CIC’s counsel wasn’t even discreet about including it as it is the first material one sees when one opens up the supplementary materials.

Of course, this is the same barrister who argued in previous filings that we had inappropriately submitted materials that were not before the decision maker.  Indeed, I just commented on this fact in the CAIPS notes.  Perhaps I have a delusional sense of fairness, but I would think that the government cannot both argue we are barred from submitting new material at the same time they are submitting new material.   Of course, the court should not consider the new material – but the government has certified that this is material considered in making their decision!

I cannot imagine the Court won’t notice this poorly executed legerdemain.  I would think there are two likely outcomes: either refuse to consider any of the new material, which seems to make sense but for which I have not yet found supporting case law, or all the new material will be considered.  I suppose there are other options: basically various forms of sanction.  I’ve never read of a case in which CIC submitted new materials to the Court.

So, bottom line: there was no second court order, it was just fulfillment of the first order.  However, CIC’s counsel did manage to “sneak in” the new medical, thus reinforcing the idea that this is all just a waste of time for the Court.  Thus, I am guilty of over thinking the problem.  It is an easy mistake to make while caught up in this imbroglio.

I’ll find out more next week when my attorney returns, because it really is up to him on how to deal with this latest development.

 

British Columbia and the Optional Nature of Health Care


 

Chopped Care CardSince my surprise on Friday I’ve spent a bit of time going over various materials.  One large project I’ve undertaken is to start reviewing all the relevant case law.  I’m doing this by researching the various decisions, including the Supreme Court of Canada (one decision), the Federal Court of Appeals (three decisions), and the Federal Court of Canada (100+).  This is a lot of material to review, so I’m not really ready to start covering it here, but I will be – if for no other reason than to provide those who follow with a bit of a starting point in analyzing the material.

I also looked through the copy of my “immigration file” and found an interesting piece of e-mail recorded within the computer notes.  To be honest, it probably should not have been included, because it looks to be privileged communications (attorney/client).  However, the ATIP folks review everything before they send it out, so someone reviewed it and decided it wasn’t sensitive.

The applicant identified above has filed a judicial review application challenging the refusal to grant him a PR status on the basis of his medical inadmissibility. He is challenging this finding suggesting that fairness was breached in that his case did not benefit from a personalized assessment as established by Hilewitz . Could you please look at the attachments and confirm that the documents he has now introduced in his application before the Court, were also provided in support of his application for PR .

Your comments are appreciated. Of particular interest is whether or not he presented evidence to demonstrate that he could opt of British Colombia‘s publicly funded Medical plan.

It was this last paragraph that caught my attention as I was reading through this, because indeed, we did not present this information to the visa officer – why would we?  Based upon the fairness letter, they asked about costs, not about BC’s coverage of those costs.  While my attorney wrote up the letter to CIC regarding my case, I’m the one that had picked him based upon my own reading of the Companioni decision – I essentially used this as a check list for a well-formed plan.

Had the original fairness letter stated “Alternative payment plans will not be considered because BC pays 100% of the cost…” I would not have wasted my time presenting a plan to provide 100% coverage of the costs.  instead, I would have argued “BC does allow an opt-out scheme”.  The government will argue that the judge should not consider this because it was not before the visa officer at the time of the decision.  However, it does underscore the fact the fairness letter itself was deficient because it did not clearly establish this concern of the officer.

At any rate, after thinking about it for a while i realize the government is in a trap of their own construction.  By noting that they are aware of BC’s policy for payment for this particular class of drugs, which is not described on the BC MSP website or the Fair PharmaCare website, it would suggest they are familiar with subtle nuances of the BC medical services plan.  Yet now they seem to be arguing that they don’t really know much about the provincial health program and it was my obligation to educate them about their own program.

How can you both be responsible for administering a program and simultaneously arguing you are not responsible for being knowledgeable about it?  That would seem to run counter to natural justice – CIC is only responsible for knowing those bits of policy that allows them to reject you, particularly if you are someone with a disability.

The original letter doesn’t mention British Columbia’s policies at all.  To pull this out at the end as part of the final rejection is indeed unfair because it never gave me an opportunity to respond.

It does seem to bolster the separation of powers argument as well.  It is not good policy to allow CIC to “cherry pick” which parts of provincial health policy they have to understand.  In Deol [2002 FCA 271] the court rejected the idea that CIC had to advise an applicant of a program that might have been beneficial to the applicant:

As for the visa officer’s alleged unfairness in not drawing Mr. Singh’s attention to Manitoba’s bonding program, Muldoon J. noted that visa applicants have the burden of establishing that they meet the qualifications for admission. Accordingly, the visa officer was not under a duty to advise Mr. Singh how he might overcome the “excessive demands” hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the province of Manitoba. He also noted the paucity of evidence about the program, including its availability to Ms. Deol.

This does not say the visa officer was not under an obligation to understand the laws of the province, although it does imply this.  But it does help strengthen the separation of powers argument – if CIC isn’t required to understand provincial health care law, why are they making decisions based upon it?  How is this fair to the applicant?

I am feeling somewhat upbeat at this point.  It would seem that CIC does not have a good track record when it comes to medical inadmissibility cases.  I don’t have a complete number yet, but by the time I’m done I will.  Right now though it is clear that CIC loses more cases than they win in this area – the Federal Court often finds their decisions come up deficient.

I’m hoping to tip that count a bit more.

 

 

Another unusual entry: medical file sent


 

 

Medical FilesToday’s surprise was two-fold.  It started simply enough – I decided to check the docket system and see if there was a new entry indicating that the “certified tribunal record” had been received by the Court, since yesterday was the deadline and my attorney indicated that he received a copy of the tribunal record.  His words were “there are no surprises here”.

However, I did not find the tribunal record notation.  Instead, what I found was a notation that said:

Copy OF APPLICANT’S MEDICAL FILE sent by [counsel name omitted] (COUNSEL FOR RESPONDENT) ON BEHALF OF CIC (OTTAWA) on 10-AUG-2012 pursuant to the order of the Court Received on 10-AUG-2012.

Once again, I find an unusual entry in the docket.  I’m uncertain what it means.  Oh, I also don’t see any indication that a copy of this order was logged by the Registry.  I likely won’t know the significance of this for a while – my attorney is gone on vacation until August 20th.  So I likely won’t hear anything about this until after his return, if even then.

I did go back and look through other medical inadmissibility files and, once again, I didn’t find anything equivalent in any of them.  If I take this at face value, someone in the Court is paying attention to this case – they looked through the tribunal record and did not find what they expected to see and thus ordered the government to produce it.  Since Ottawa is the regional medical centre, that this came from Ottawa makes sense as well.

Of course it is also possible that the Court requested my latest medical, not my original medical.  I really don’t know, since I didn’t see the order.  However, if I had to guess the Court just asked for my medical file – and if I were the government I’d send everything, not just the medical file that applies to this particular case.

One thing is certain: this case is not following the typical path.

Next deadline is the August 20, 2012 deadline for us to submit an additional affidavit, although my attorney indicated he did not see a reason to do so.

I shall strive to focus on enjoying summer here in Vancouver while I can and try not to worry too much about the case progress.

 

 

Reflections on the Past


High wheeler Bicycle ImageIn general, I tend to focus on the actual process in which I’ve become embroiled, but sometimes I do reflect on the past couple of years and wonder if this process was really all worth it. Yesterday I spent time going through and finding my bicycle gear.  I have been a bicycle enthusiast for many years but have not ridden in the past couple of years.

As it turns out, for all that Vancouver is a beautiful city it does have some peculiar issues.  For example, in 2010 over 1500 bicycles were stolen in the City of Vancouver. I’ve experienced this personally, having had two bicycles stolen from me since I moved here.  The first was a Klein Pulse Comp that I had modified a bit by adding hydraulic breaks.  I’d had it for over 10 years when I brought it up with me to Vancouver.   The building in which I bought my condo had secure bike rooms – key fob controlled, with facilities to lock up your bike.  I put it in there.  Within two weeks it disappeared.  While I realize it was “just a bike” I’d had it a long time, put many miles on it, and was really upset that someone else thought I was such a despicable human being they’d take it.

I bought a replacement bike in March 2009.  It was a full suspension bike, a Specialized Stumpjumper which they convinced me to buy at Simon’s Bike Shop here in Vancouver.  in addition, I bought two locks, both from Kryptonite.  One was literally a hardened steel chain with a small hardened lock.  The other was a U-Lock.  I used both of them to lock up my bike – in the secure bike room.  This time I picked one of the two bike rooms that had never experienced a break-in.

That worked until June 2009 – just before I started my odyssey through the maze of immigration, in fact.  However at the end of May, 2009 the strata council (those are the elected people who make up rules for the building) ordered that those two bike rooms be closed because they wanted to turn them into offices.  While I pointed out to them, in writing, that this would violate the Vancouver building code, they chose to move forward with it.  Four days after I relocated my bike into a different locker it disappeared.  The thief was considerate enough to leave behind pieces of the lock.  Since I was riding 3-4 times per week, I was able to clearly identify when this must have happened.  I still remember the feeling of going downstairs to go for my ride, only to find that my 3 month old bike was gone.

The door was fob controlled, it was a small room, I had taken care to secure my bike so that it was not even visible from the door.  Thus, the building manager was able to review the logs and determine who had entered that bike room during the short period in question.  After a bit of questioning, he found someone who witnessed the theft of my bike but was otherwise uninvolved.  Ultimately, it led to the arrest of the person who did steal the bike.

I bought a replacement within days.  I didn’t want to let the thief get the better of me.  But I also decided that I wasn’t going to ever leave my bike in one of the security controlled rooms either.  Initially I kept my bike in the apartment – but it’s small, the strata rules prohibited leaving the bike on the balcony as well as requiring that I had to carry the bike up and down the stairs in the building.  This really was a bicycle hostile building – they removed the bike racks in front of the building, cut the number of spaces for storing bikes by 50%, contravening local building code and adopted a series of rules that can only be described as very bicycle hostile.    So I started keeping my bike at my office.

Since I moved it to my office I’ve gone riding twice.  In three years.  As I was digging out my bike gear yesterday morning I realized there are parallels between my bike experience and my immigration experience.   Three years – that’s a long time to have something affect your life so profoundly.  And yet here I am, three years later dealing with both.  Was coming to Vancouver really worth this?

I still don’t know if I’ll be allowed to stay – the work permit renewal application has been submitted (or at least I hope so, as I made sure the attorney had all the paperwork on Friday.)  The judicial review application will be argued in mid-October.  I should know about the work permit renewal by mid-October.  I am hopeful I will have a decision on that quickly, perhaps by the end of 2012, but there are never any guarantees with respect to the timing of such decisions.  The judge could announce a decision the day of the hearing or I might not know until the decision is published.  Publication could be a week after the hearing or six months after the hearing.  Plus, there’s the harsh reality that only about 20-25% of applications are granted.  While I have convinced myself that I will be one of those 20-25%, I am realistic enough to know that there is no guarantee at this point.  Indeed, one possible outcome is that the court rejects my judicial review application but agrees to certify one or more questions of general importance, leaving room for appeal, which takes another year.

Living in limbo is surprisingly challenging.  If it weren’t for the fact I met and courted my spouse here, I know I wouldn’t do this again knowing what I know now.  So, in the end it is worth it.

Of course, what prompted this in the first place is that I dug out my bicycle gear.  It’s time to start riding again.  I just cannot put my life on hold forever.