Last night I received a copy of the actual application that my attorney filed with the court. It’s 259 pages of material, some of which I’d never seen before – like the original notes from the medical officer‘s file. I thought it was interesting what was omitted from the file (some of the documents that were filed with the case) so I’m not sure what the rationale was for including or excluding specific information. Be that as it may, the application record contains the bulk of information that was provided to CIC as well as information received from CIC.
Of particular interest to me were the legal arguments (19 pages), as ultimately it is the persuasive value of those arguments that will determine if the court agrees to hear the case (“grant’s the application for judicial review“). The legal arguments for review consist of five different points:
- The medical officer did not make an individualized assessment
- The medical officer violated the duty of procedural fairness by not allowing me a fair opportunity to respond to the medical officer’s concerns
- The medical officer’s reasons for her decision are inadequate. In my case the medical officer reached a conclusion that is opposite of the conclusion reached in a different case with similar circumstances
- The medical inadmissibility clause of the law is invalid because health care is legally the jurisdiction of the provinces
- The medical inadmissibility clause violates Section 15(1) of the Charter of Rights and Freedoms
After reading the basic rationale, I would assume the lawyer assigned to this case for the Respondent will have some work to do. The fourth argument is novel and has not previously been considered by the court, although there is plenty of case law pertaining to the separation of powers in the arena of health care. The fifth argument is one that remains unsettled in Canadian jurisprudence.
My initial sense after reading this was that the first three arguments really do merit review. The facts backing this up are interesting – the same medical officer decided that insurance was of paramount importance in the original Companioni decision, yet in my case decided that insurance was immaterial in my case. Following the medical officer’s logic, no one in my situation would be medically admissible for immigration to BC. That would seem to make things easy for CIC – blanket rejection. Yet the point of the Hilewitz decision was to reject such a “cookie cutter” approach. The inconsistency of the medical officer’s opinions does seem to be troubling (same medical officer, similar circumstances, completely different and contradictory rationale.)
It is, however, the last two arguments that are the more intriguing. The separation of power’s argument has a reasonable counter-response: to cite to the British Columbia/Federal agreement allowing the Federal government to make medical decision on behalf of British Columbia with respect to immigration. (See canada bc immigration agreement for a copy of the 2010 agreement.) It is a bit vague, but it is reasonable to argue that this grants the Federal government the authority to make decisions on British Columbia’s behalf. There is a trap here however: first, the agreement requires that BC and CIC have drafted mutually agreed upon standards – and I haven’t been able to find them yet. Second, and perhaps more dangerous, it would make the Federal government liable under British Columbia human rights legislation. The idea here is that a government cannot abrogate it’s legal obligations by contracting with someone else to discharge its duties. In theory then, it should be possible for me to bring a provincial human rights complaint (denying access to services based upon disability) against the Federal government. If they then argue that they are immune from such, it would seem to create a very untenable position – they claim to have the right to exercise provincial authority in one context, yet deny the obligation to abide by provincial law in another context – both involving the same case?
The Charter argument has had plenty of time to ripen – it does not appear to have been argued in recent memory and there’s been quite a bit of development in the intervening years. The arguments the attorney put forward are actually well-developed.
I was actually a bit concerned when I finished reading the legal arguments: they seem to be sufficiently interesting that I now rate the likelihood of judicial review happening at about 40% – there’s enough here to pique the curiosity of a judge. My thinking is that if you’re given a stack of applications to review, most of which are refugee applications, and then you find one that appears to have some interesting potential arguments, you’d be inclined to grant the application. At least that’s my hope.
Then there’s the scary side of this: suppose one of those last two arguments is successful and the court agrees that Section 38(1)(c) of IRPA is unlawful and must be struck down. There is no way that the government will not challenge this, which means that it will take 2-3 years to resolve (and I’m betting that the cost of supporting an appeal in this regard will cost $30-50k.)
If judicial review is granted, particularly with these arguments presented, I worry about being successful – it basically would mean that a complete decision, with my name attached to it, would be splattered all over the legal history books. I realize that’s a long shot. It seems far more likely that a judge would decide on narrow grounds (e.g., “medical officer erred in her analysis”) than on broad grounds (“Section 38(1)(c) of IRPA violates the Canadian Constitution and/or Charter of Rights and Freedoms”). But to deny review, the judge must dismiss all of these concerns. Under review, they can all be addressed (or some can be ignored.)
A positive decision on narrow grounds would simply return the file to CIC for further consideration. In that case, with two applications in process, I’ll gladly take the one that comes first. A negative decision on this application won’t affect the application in process.
A positive decision on broad grounds would be interesting – it would remand the decision to CIC after having invalidated this section of IRPA. Thus, it would seem that the visa office would have to issue the PR visa (and in fairly short order, since all other criteria were satisfied.) As I have mentioned before, there is a certain level of notoriety with a successful decision. I’d have to expect an affirmative decision in this case on broad grounds would be exactly that sort of notorious decision.
Over the next few weeks I’ll see what I can do to capture more information about some of the arguments presented and the rationale used.
March 30: Respondent’s deadline. I expect them to respond and disagree with our position. I give a small chance to them assenting to the first points and disagreeing with the latter few points. If they do the latter, it would be tactical – assenting on the first few points could lead to a decision in which the judge remands the case back to CIC based just upon the written pleadings (and thus side-stepping the Constitutional and Charter arguments.) I’m not familiar enough with Canadian Jurisprudence to know if this is even a reasonable possibility.