Federal Court Cour fédérale Docket: IMM-2486-09 Citation: 2010 FC 547 BETWEEN: DAVID PHILIPPE BARLAGNE MINISTER OF CITIZENSHIP AND IMMIGRATION.

Federal Court
Cour fédérale
Date: 20100518
Docket: IMM-2486-09
Citation: 2010 FC 547
Ottawa, Ontario, May 18, 2010
PRESENT: The Honourable Madam Justice Johanne Gauthier
BETWEEN:
DAVID PHILIPPE BARLAGNE
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Barlagne is asking the Court to set aside the decision by the visa officer refusing his
application for permanent residence on the basis that his daughter, Rachel, who has hypotonic
cerebral palsy with cerebellar dysfunction, is inadmissible to Canada on health grounds because her
condition might reasonably be expected to cause excessive demand on social services. The fact that
young Rachel Barlagne is inadmissible means that the applicant and his family (his wife Sophie and
their two daughters, Rachel and Lara) are inadmissible.
[2] Cases like this are always difficult to deal with, particularly when they involve a young girl
who is intelligent and endearing, if not exceptional, according to those who know her. However,
Page: 2
unlike the application for exemption under subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), judicial review is subject to specific rules that apply to all
cases, even those where strong sympathy for the applicant and his family would favour a different
outcome. After thoroughly reviewing the record, the Court cannot allow Mr. Barlagne’s application
for the following reasons.
Background
[3] The applicant has a Master’s in computer science (software engineering). Prior to moving to
Montréal and beginning in January 2003, he was the manager and the person in charge of software
development for a company called Esprit Technologie s.a.r.l. He was also the majority shareholder
(45% of outstanding shares / controlling interest).
[4] After discussions with an investment officer at the Canadian Embassy and, inter alia, an
exploratory trip to Quebec, the company Esprit Technologie Inc. (ETI) was created in Quebec, and
Mr. Barlagne was appointed its Executive Vice-president. The aim of the company was to provide
implementation services and to design software adapted to a clientele of libraries and publishing
houses in Canada and throughout the entire Francophonie.
[5] With the support of the Canadian Embassy and Investissement Québec, the applicant
subsequently obtained a work permit1 (July 23, 2005, to July 31, 2008) and visitors visas for his
family members. They then moved to Quebec.
1 This permit was renewed and is now valid until July 31, 2011.
Page: 3
[6] Mrs. Barlagne, who has only a visitor’s visa, has not worked since her arrival.2 Lara was
immediately enrolled in school, and her young sister Rachel, who first went to an integrated day
care centre, has been enrolled in École Victor-Doré, a specialized public school for disabled
children, since September 2007.
[7] On June 14, 2007, Mr. Barlagne submitted an application for permanent residence, and he
has not left Quebec since.
[8] On February 20, 2008, mandatory medical forms were sent to the applicant, and on
March 20, 2008, Rachel’s initial medical report was completed and signed by Dr. Charles Chocron.
[9] On May 20 and May 23, 2008, requests for additional information were sent. On June 30,
2008, in response to these requests, École Victor-Doré sent a letter setting out the services that
Rachel Barlagne’s physical condition requires. That letter stated that, for the 2008-2009 school year,
Rachel was going to attend a special education class of nine students and that she would be
receiving the services of a physiotherapist, an occupational therapist, a supply teacher in
communication as well as in technical assistance to facilitate her communication.
[10] After a reminder letter dated August 11, 2008, Mr. Barlagne completed his file. On August
13, 2008, Immigration Canada’s medical officer, Dr. Hélène Quévillon, made a diagnosis of general
2 In France, before leaving for Canada, Ms. Barlagne worked as a communications officer at the Saint-Claude city hall,
Guadeloupe.
Page: 4
developmental delay, a [TRANSLATION] “medical condition that might reasonably be expected to
cause excessive demand on social services.”
[11] In a letter dated September 2, 2008 (the fairness or “second chance letter”), the visa officer
advised the applicant of the diagnosis in the following words and also informed him that his
application for permanent residence could be refused under subsection 38(1) of the Act:
[TRANSLATION]
Narrative: This applicant, who will soon turn six, presents a general
developmental delay associated with hypotonic cerebral palsy with
cerebellar dysfunction. She presents an ataxia but is able to move on
her hands and knees. Her balance is precarious. She requires
assistance to stand. She presents a significant speech delay. The latest
psychological report does not show any intellectual impairment. She
will be in a class of nine students (ratio 1/8-10) in a specialized
school for physically disabled children. The class has an attendant for
approximately 8 hours a week. She is followed in physiotherapy and
occupational therapy. She also has the support of a supply teacher in
communication. This applicant requires specialized education
services. These services are expensive. Based on a review of the
results of the medical assessments and all the reports that I received
concerning this applicant’s health condition, I find that she presents a
medical condition that might reasonably cause an excessive demand
on social services. In particular, this condition will likely cause a
need for services that will exceed the average Canadian per capita
costs over a five-year period. Consequently, this applicant is
inadmissible under section 38(1)(c) of the Immigration and Refugee
Protection Act. Social services required and associated costs:
Primary school: In accordance with the standards and definitions of
the Ministère de l’Éducation, des Loisirs et des Sports, school boards
are required, under the Basic school regulation, to provide special
services to disabled children. The additional allowance for these
services is approximately $7,045 for each year of primary school.
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[12] The officer directed the applicant to provide additional information or documents by
November 1, 2008, as follows:
[TRANSLATION]
Before I make my final decision, you may submit additional
information or documents relating to the above illness, medical
condition, diagnosis or medical opinion. You may also submit
relevant information addressing the issue of excessive demand if it
applies to your case.
[13] On October 17, 2008, counsel for the applicant filed an access to information request in
order to obtain all the files in Canada and at the Consulate General of Canada in Detroit as well as
the medical records related to the applicant’s application for permanent residence. A little over 100
documents were received on November 28, 2008. In the meantime, on November 3, 2008, the visa
officer received a request from counsel for more time to submit documents. An extension of 45 days
was granted, i.e., until December 19, 2008. On December 17, 2008, counsel sent a letter and 51
attachments3 to the visa officer, and on January 12, 2009, another letter containing corrections to the
letter of December 17, 2008 (collectively “the Comments”).
[14] As indicated in the Table of Attachments (Annex A), the applicant submitted information on
various topics such as4 the representations made to Mr. Barlagne by the investment officer at the
Canadian Embassy, resumés including Mrs. Sophie Barlagne’s, her volunteer activities, Lara’s
academic transcripts, numerous documents about Rachel’s condition, her development at school and
3 See the Table of Attachments in Annex A.
4 This, of course, is not intended to be an exhaustive description of the documentation.
Page: 6
in therapy (diagnosis and prognosis), the care she received in the past (including music therapy and
riding therapy), jurisprudence and agreements between France and Quebec.5
[15] In addition, Mr. Barlagne submitted a detailed plan for the 2009-2010 year in his
Comments, as required by Operational Bulletin 063 (the Bulletin). In that plan, the applicant
indicated that Rachel would continue to attend École Victor-Doré, a public institution that, as I said,
offers special education and rehabilitation services. However, the applicant stated that, although he
intended to continue to send his daughter to that school, the family would use specialists in the
private sector to provide the rehabilitation services that Rachel requires instead of the services
offered by the rehabilitation centre affiliated with École Victor-Doré, i.e., speech therapy,
physiotherapy and occupational therapy (support services). It also appears that young Rachel
receives assistance four times a week from Marie-Hélène Gilbert, a specialized teacher, to help her
acquire more independence in various life activities.
[16] It should be noted, in particular, that three types of financial documents were provided: a
letter from ETI’s accountant6 confirming the incorporation, activities, head office, number of
employees (2), the company’s share ownership (tab 1), a simplified statement of financial position
for the French company, Esprit Technologie s.a.r.l., for the 2005 fiscal year (tab 45) and certified
copies of bank statements in euros from the Caisse d’épargne Provence-Alpes-Corse/Guadeloupe
5 See letter confirming that the France-Québec agreement is not relevant where French nationals become permanent
residents under the Act, at page 400 of the Certified Record of the Consulate General of Canada. It is clear that the
officer considered this argument.
6 He also indicated that ETI is a company in the same group as CD Consulting s.a.r.l. However, there was no evidence
before the officer about the latter company or its connection, if any, with Esprit Technologie s.a.r.l. Moreover, this letter
contains no information about the finances of the Quebec company.
Page: 7
for Mrs. Barlagne and her two children dated 2008 (tab 37). At tabs 32 and 33, the applicant
included the budgetary rules for the 2008-2009 school year of the Ministère de l’éducation du loisir
et du sport (MELS), as well as the allowances for teaching resources prepared and issued by Mr.
Serge Dupéré. Last, tab 38 contains the Bulletin dated September 24, 2008, which deals with the
assessment of excessive demand on social services by Citizenship and Immigration Canada.
[17] On January 15, 2008, the visa officer reviewed the documents sent by counsel for the
applicant, listed them in his own words and commented on them briefly in his CAIPS notes. On
January 21, 2008, certain documents were transferred to the medical officer who sent her comments
on February 11 and advised the visa officer that, in her view, the inadmissibility assessment should
not be changed. Dr. Quévillon noted that Rachel Barlagne still required special education services,
for which she assessed an additional allowance of $5,259 $.
[18] However, she requested two other documents that apparently were not sent to her. On
March 4, based on a review of the two additional documents, the medical officer advised the visa
officer that they did not change her opinion.
[19] On March 11, 2009, the visa officer sent a short letter (1 page) refusing the applicant’s visa
application under subsections 11(1), 38(1) and 42(a) of the Act. On May 15, 2009, Mr. Barlagne
filed an application for leave and judicial review in Federal Court.
Page: 8
[20] The parties filed a number of affidavits in this matter. Although the applicant and the
respondent submitted contradictory evidence regarding, on the one hand, the failure of the Canadian
Embassy and Investissement Québec to inform Mr. Barlagne that Rachel’s health condition could
preclude admissibility and, on the other hand, Mr. Barlagne’s failure to declare his daughter’s health
condition in his applications for a work permit, it is not helpful to discuss this here. The
representations or possible omission by the official at the Canadian Embassy are not relevant to
assessing the legality of the impugned decision. As we will see, the visa officer had no discretion to
take such a factor into account, a factor that could be relevant on an application for exemption based
on humanitarian and compassionate considerations under section 25 of the Act.
[21] As for the “unclean hands” argument based on the failure to declare Rachel’s health
condition in the applicant’s application for a work visa and in his application to change his
conditions of stay (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339 at paras. 38 to 41; Thanabalasingham v. Canada (Minister of Citizenship and Immigration)),
2006 FCA 14, 263 D.L.R. (4th) 51 at paras. 9 and 17), the Court does not intend to exercise its
discretion to refuse to consider the merits of the case. In fact, the Court of Appeal in
Thanabalasingham set out guidelines regarding the exercise of this power, and the Court must
assess certain factors (see, in particular, paras. 9 and 10) to strike a balance between the need to
prevent the abuse of the judicial process and the protection of the applicant’s rights. In this case,
I am satisfied that the Court must exercise its discretion to hear the application on its merits even if
the Court assumes, without deciding, that there was a failure to declare.
Page: 9
Issues
[22] At the outset, it is appropriate to deal with a preliminary issue raised by the respondent in his
supplementary memorandum, i.e., that the applicant’s record contains fresh evidence, such as tab 52
and the two statements dated October and November 2009 attached as Exhibits E and F to the
applicant’s supplementary affidavit.7
[23] It is settled law that, on a judicial review, the Court must assess the validity of the decision
on the basis of the evidence that was before the initial decision-maker. In this case, since the fresh
evidence was not relevant to procedural fairness arguments, those documents and the related
paragraphs in Mr. Barlagne’s affidavit will not be considered: Ali v. Canada (Minister of
Citizenship and Immigration), 2008 FC 106, 2008 F.C.J. No. 122 (QL) at para. 26; Lemiecha
(Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R.
49, 24 Imm. L.R. (2d) 95 at paras. 3, 4; Abbott Laboratories Ltd. v. Canada (Attorney General),
2008 FCA 354, [2009] 3 F.C.R. 547 at paras. 37, 38.
[24] Although the applicant raised a large number of issues in his initial memorandum, which
repeated his Comments in detail, and in his supplementary memorandum, they can be consolidated
as follows:
1. Did the visa officer fail to observe a principle of
natural justice, procedural and administrative fairness,
that he was required to observe?
7 This is information relating to the bank account or Mr. Barlagne’s financial situation that was not before the officer.
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2. Did the visa officer and the medical officer disregard
arguments and evidence submitted in response to the
fairness letter and was their decision unreasonable?
[25] The applicant also submits that the visa officer did not consider his argument that subsection
38(1) of the Act and its application in this case is unconstitutional because it is contrary to section
15 of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Relevant statutory provisions
[26] The relevant statutory provisions read as follows:
• Immigration and Refugee Protection Act, S.C. 2001, c. 27
11. (1) A foreign national must,
before entering Canada, apply
to an officer for a visa or for
any other document required by
the regulations. The visa or
document may be issued if,
following an examination, the
officer is satisfied that the
foreign national is not
inadmissible and meets the
requirements of this Act.
(2) The officer may not
issue a visa or other
document to a foreign
national whose sponsor
does not meet the
sponsorship requirements of
11. (1) L’étranger doit,
préalablement à son entrée au
Canada, demander à l’agent les
visa et autres documents requis
par règlement. L’agent peut les
délivrer sur preuve, à la suite
d’un contrôle, que l’étranger
n’est pas interdit de territoire et
se conforme à la présente loi.
(2) Ils ne peuvent être
délivrés à l’étranger dont le
répondant ne se conforme
pas aux exigences
applicables au parrainage.
Page: 11
this Act.
38. (1) A foreign national is
inadmissible on health grounds
if their health condition
(a) is likely to be a danger to
public health;
(b) is likely to be a danger to
public safety; or
(c) might reasonably be
expected to cause excessive
demand on health or social
services.
(2) Paragraph (1)(c) does not
apply in the case of a foreign
national who
(a) has been determined to be a
member of the family class and
to be the spouse, common-law
partner or child of a sponsor
within the meaning of the
regulations;
(b) has applied for a permanent
resident visa as a Convention
refugee or a person in similar
circumstances;
(c) is a protected person; or
(d) is, where prescribed by
the regulations, the spouse,
common-law partner, child
or other family member of a
foreign national referred to
in any of paragraphs (a) to
(c).
38. (1) Emporte, sauf pour le
résident permanent, interdiction
de territoire pour motifs
sanitaires l’état de santé de
l’étranger constituant
vraisemblablement un danger
pour la santé ou la sécurité
publiques ou risquant
d’entraîner un fardeau excessif
pour les services sociaux ou de
santé.
(2) L’état de santé qui risquerait
d’entraîner un fardeau excessif
pour les services sociaux ou de
santé n’emporte toutefois pas
interdiction de territoire pour
l’étranger:
a) dont il a été statué qu’il fait
partie de la catégorie
« regroupement familial » en
tant qu’époux, conjoint de fait
ou enfant d’un répondant dont il
a été statué qu’il a la qualité
réglementaire;
b) qui a demandé un visa de
résident permanent comme
réfugié ou personne en situation
semblable;
c) qui est une personne
protégée;
d) qui est l’époux, le
conjoint de fait, l’enfant ou
un autre membre de la
famille — visé par
règlement — de l’étranger
visé aux alinéas a) à c).
Page: 12
42. A foreign national, other
than a protected person, is
inadmissible on grounds of
an inadmissible family
member if
(a) their accompanying
family member or, in
prescribed circumstances,
their non-accompanying
family member is
inadmissible; or
(b) they are an
accompanying family
member of an inadmissible
person.
42. Emportent, sauf pour le
résident permanent ou une
personne protégée, interdiction
de territoire pour inadmissibilité
familiale les faits suivants:
a) l’interdiction de territoire
frappant tout membre de sa
famille qui l’accompagne ou
qui, dans les cas réglementaires,
ne l’accompagne pas;
b) accompagner, pour un
membre de sa famille, un
interdit de territoire.
• Immigration and Refugee Protection Regulations, SOR/2002-227
1. (1) The definitions in this
subsection apply in the Act
and in these Regulations. . . .
“excessive demand” means
(a) a demand on health
services or social services
for which the anticipated
costs would likely exceed
average Canadian per capita
health services and social
services costs over a period
of five consecutive years
immediately following the
most recent medical
examination required by
these Regulations, unless
there is evidence that
significant costs are likely to
1. (1) Les définitions qui
suivent s’appliquent à la Loi et
au présent règlement. […]
« fardeau excessif » Se dit:
a) de toute charge pour les
services sociaux ou les
services de santé dont le
coût prévisible dépasse la
moyenne, par habitant au
Canada, des dépenses pour
les services de santé et pour
les services sociaux sur une
période de cinq années
consécutives suivant la plus
récente visite médicale
exigée par le présent
règlement ou, s’il y a lieu de
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be incurred beyond that
period, in which case the
period is no more than 10
consecutive years; or
(b) a demand on health
services or social services
that would add to existing
waiting lists and would
increase the rate of mortality
and morbidity in Canada as
a result of an inability to
provide timely services to
Canadian citizens or
permanent residents. . . .
“social services” means any
social services, such as home
care, specialized residence and
residential services, special
education services, social and
vocational rehabilitation
services, personal support
services and the provision of
devices related to those
services,
(a) that are intended to assist
a person in functioning
physically, emotionally,
socially, psychologically or
vocationally; and
(b) for which the majority of
the funding, including
funding that provides direct
or indirect financial support
to an assisted person, is
contributed by governments,
croire que des dépenses
importantes devront
probablement être faites
après cette période, sur une
période d’au plus dix années
consécutives;
b) de toute charge pour les
services sociaux ou les
services de santé qui
viendrait allonger les listes
d’attente actuelles et qui
augmenterait le taux de
mortalité et de morbidité au
Canada vu l’impossibilité
d’offrir en temps voulu ces
services aux citoyens
canadiens ou aux résidents
permanents.
« services sociaux » Les
services sociaux — tels que les
services à domicile, les
services d’hébergement et
services en résidence
spécialisés, les services
d’éducation spécialisés, les
services de réadaptation
sociale et professionnelle, les
services de soutien personnel,
ainsi que la fourniture des
appareils liés à ces services:
a) qui, d’une part, sont destinés
à aider la personne sur les
plans physique, émotif, social,
psychologique ou
professionnel;
b) dont, d’autre part, la
majeure partie sont financés
par l’État directement ou
par l’intermédiaire
d’organismes qu’il finance,
notamment au moyen d’un
Page: 14
either directly or through
publicly-funded agencies.
soutien financier direct ou
indirect fourni aux
particuliers.
34. Before concluding
whether a foreign national's
health condition might
reasonably be expected to
cause excessive demand, an
officer who is assessing the
foreign national's health
condition shall consider
(a) any reports made by a
health practitioner or
medical laboratory with
respect to the foreign
national; and
(b) any condition identified
by the medical examination.
34. Pour décider si l’état de
santé de l’étranger risque
d’entraîner un fardeau
excessif, l’agent tient compte
de ce qui suit:
a) tout rapport établi par un
spécialiste de la santé ou par
un laboratoire médical
concernant l’étranger;
b) toute maladie détectée
lors de la visite médicale.
Education Act, R.S.Q. c. I-13.3
1. Every person is entitled to
the preschool education
services and elementary and
secondary school instructional
services provided for by this
Act and by the basic school
regulation made by the
Government under section 447,
from the first day of the school
calendar in the school year in
which he attains the age of
admission to the last day of the
school calendar in the school
year in which he attains 18
years of age, or 21 years of age
1. Toute personne a droit au
service de l'éducation
préscolaire et aux services
d'enseignement primaire et
secondaire prévus par la
présente loi et le régime
pédagogique établi par le
gouvernement en vertu de
l'article 447, à compter du
premier jour du calendrier
scolaire de l'année scolaire où
elle a atteint l'âge
d'admissibilité jusqu'au dernier
jour du calendrier scolaire de
l'année scolaire où elle atteint
Page: 15
in the case of a handicapped
person within the meaning of
the Act to secure handicapped
persons in the exercise of their
rights with a view to achieving
social, school and workplace
integration (chapter E-20.1).
Every person is also entitled to
other educational services,
student services and special
educational services provided
for by this Act and the basic
school regulation referred to in
the first paragraph and to the
educational services prescribed
by the basic vocational training
regulation established by the
Government under section 448,
within the scope of the
programs offered by the school
board.
The age of admission to
preschool education is 5 years
on or before the date prescribed
by the basic school regulation;
the age of admission to
elementary school education is
6 years on or before the same
date.
l'âge de 18 ans, ou 21 ans dans
le cas d'une personne
handicapée au sens de la Loi
assurant l'exercice des droits
des personnes handicapées en
vue de leur intégration
scolaire, professionnelle et
sociale (chapitre E-20.1).
Elle a aussi droit, dans le
cadre des programmes offerts
par la commission scolaire,
aux autres services éducatifs,
complémentaires et
particuliers, prévus par la
présente loi et le régime
pédagogique visé au premier
alinéa ainsi qu'aux services
éducatifs prévus par le régime
pédagogique applicable à la
formation professionnelle
établi par le gouvernement en
vertu de l'article 448.
L'âge d'admissibilité à
l'éducation préscolaire est fixé à
5 ans à la date déterminée dans
le régime pédagogique; l'âge
d'admissibilité à l'enseignement
primaire est fixé à 6 ans à la
même date.
2. Every person no longer
subject to compulsory school
attendance is entitled to the
educational services prescribed
by the basic regulations
established by the Government
under section 448, within the
scope of the programs offered
by the school board pursuant to
2. Toute personne qui n'est plus
assujettie à l'obligation de
fréquentation scolaire a droit
aux services éducatifs prévus
par les régimes pédagogiques
établis par le gouvernement en
vertu de l'article 448, dans le
cadre des programmes offerts
par la commission scolaire en
Page: 16
this Act. application de la présente loi.
3. The educational services
provided for by this Act and
prescribed by the basic school
regulation established by the
Government under section 447
shall be provided free to every
resident of Quebec entitled
thereto under section 1.
Literacy services and the other
learning services prescribed by
the basic school regulation for
adult education shall be
provided free to residents of
Quebec contemplated in section
2, subject to the conditions
prescribed by the said
regulation.
3. Tout résident du Quebec visé
à l'article 1 a droit à la gratuité
des services éducatifs prévus
par la présente loi et par le
régime pédagogique établi par
le gouvernement en vertu de
l'article 447.
Tout résident du Quebec visé à
l'article 2 a droit à la gratuité
des services d'alphabétisation et
à la gratuité des autres services
de formation prévus par le
régime pédagogique applicable
aux services éducatifs pour les
adultes, aux conditions
déterminées dans ce régime.
Basic school regulation for preschool, elementary and secondary education, 2000
G.O.Q. 2, 2593
5. Student services provided
under section 4 must include
the following:
(1) services designed to
promote student participation in
school life;
(2) services designed to
educate students about their
rights and responsibilities;
(3) sports, cultural and social
activities;
(4) support services for the
use of the documentary
5. Doivent faire partie des
services complémentaires
visés à l'article 4 des services:
1° de promotion de la
participation de l'élève à la
vie éducative;
2° d'éducation aux droits
et aux responsabilités;
3° d'animation, sur les
plans sportif, culturel et
social;
4° de soutien à l'utilisation
des ressources documentaires
Page: 17
resources of the school library;
(5) academic and career
counselling and information;
(6) psychological services;
(7) psychoeducational
services;
(8) special education
services;
(9) remedial education
services;
(10) speech therapy services;
(11) health and social
services;
(12) services in spiritual care
and guidance and community
involvement.
de la bibliothèque scolaire;
5° d'information et
d'orientation scolaires et
professionnelles;
6° de psychologie;
7° de psychoéducation;
8° d'éducation spécialisée;
9° d'orthopédagogie;
10° d'orthophonie;
11° de santé et de services
sociaux;
12° d'animation spirituelle et
d'engagement communautaire
Analysis
[27] The parties did not make any written representations as to the appropriate standard of
review, and at the hearing they confirmed that there was no dispute on this point.
[28] In accordance with the principles developed by the Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), the Court is satisfied that
questions of law and breach of procedural fairness are reviewable against the standard of
correctness: Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2
S.C.R. 706 at para. 71 (Hilewitz); Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392 at paras. 52-55.
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[29] The application of statutory provisions to the facts of a case is a question of mixed fact and
law, and the appropriate standard is reasonableness: Rashid v. Canada (Minister of Citizenship and
Immigration), 2010 FC 157, [2010] F.C.J. No. 183 (QL) at paras. 12-15; Sapru v. Canada (Minister
of Citizenship and Immigration), 2010 FC 240, [2010] F.C.J. No. 270 (QL) at paras. 13-15.
[30] Before examining the issues, it is appropriate to clearly identify why it was thought that
Rachel would cause an excessive demand, since this will lead to a better understanding of how the
errors raised by the applicant are relevant.
[31] Under subsection 38(1) of the Act, the visa officer must declare a person inadmissible if that
person’s health condition might reasonably be expected (reasonable probability)8 to cause excessive
demand on social services.9 This term is defined in the Immigration and Refugee Protection
Regulations, SOR/2002-227. It is clear that excessive means that the anticipated costs of health and
social services would likely exceed average Canadian per capita costs over a period of five years.
Social services include special education services, for which the majority of the funding is provided
directly or indirectly by the governments (through publicly-funded agencies).
[32] In Quebec, unlike the situation in other provinces such as Ontario, special education services
are provided at no cost, regardless of the parents’ ability or willingness to pay, until the child
reaches the age of 21.
8 Hilewitz, paras. 58 and 60.
9 The Court is only dealing here with the parts of the legislation that are the most relevant in this case.
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[33] That being said, in Hilewitz10, the Supreme Court of Canada stated that the medical officer
or the visa officer must carry out an individualized assessment of the impairment and the associated
costs.
[34] It should be pointed out that in Hilewitz, the two families involved were expecting to move
to Ontario and that the parents had clearly said they intended to send their child to a private school,
which would substantially reduce the costs of social services required from the state. Accordingly,
there was only a remote possibility that this family would use the public system if it experienced
short- or mid-term financial difficulties.
[35] In this case, as I said, Mr. Barlagne filed a plan that specifically stated that young Rachel
would be sent to École Victor-Doré—a public institution— and that he would pay for all the
rehabilitation services that had previously been provided at no cost by the rehabilitation centre
affiliated with the school. The applicant’s ability to pay was therefore only relevant with respect to
the cost of support services.
[36] The applicant himself had provided with his Comments documentation indicating the
allowances that the MELS pays to the school boards and schools. It appears that the amount per
primary school student11 consists of an allowance for teaching, i.e., for the cost of the teaching staff,
and an allowance for other expenses (including support services).
10 In this decision, the Court discussed paragraph 19(1)(a), which is essentially the same as the current subsection 38(1).
11 A student recognized for purposes of funding is a student who was present on September 30, 2008, and whose
attendance was confirmed during the 2008-2009 school year: Budgetary rules for the 2008-2009 school year, certified
record of the Consulate General of Canada, p. 185.
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[37] At tab 33 of the documents provided by the applicant, it also appears that the allowance for
teaching resources by individual represents an average allowance per student and is only a rough
guide because, at that point in time, the number of students for the current academic year had not
been finalized. It is clear that, since the Act requires a prospective assessment, i.e., over a period of
five years, the visa officer and the medical officer cannot obtain exact figures for each individual
whose file they are dealing with. The statutory definition therefore necessarily involves using
reasonable estimates.
[38] The Bulletin clearly explains how the calculation is done and the procedure to follow in
light of the most recent jurisprudence at the time it was adopted. The document clearly indicates
how the average per capita costs referred to in the Act are established. The threshold figure is the
Canadian Institute for Health Information (CIHI) aggregate, which represents the average per capita
health expenditure; a supplementary amount is added to that figure to account for the missing
expenditures for certain social services. In September 2008, it appears that the amount that had been
used since January 2003 was $4,057 ($3839 + $ 218), while it was set at $4,806 ($4,548 established
by the CIHI plus $258) in September 2008. That amount must then be multiplied by 5 to establish
the threshold determined by the Act.
[39] In this case, it appears from the CAIPS notes and the documentation in the record that the
medical officer used the figures suggested by the applicant to establish the average cost of the
services for which the state would continue to be responsible under the proposed plan, i.e., the
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additional allowance for the teaching staff in a class of 1 to 10 students12 for a child disabled by
slight motor or organic disability or by a language disability (level 1 disability). That is, $9,023
minus the average cost of a regular student at the same level, $3,764, for an additional allowance of
$5,259 per year. This means than even considering that Rachel is otherwise generally in good health
(she has had only a little bronchitis and illnesses of children her age), the cost of social services
alone, without considering possible increases in costs in future years is above the threshold set by
the Act. In the plan and documentation that the applicant provided, there is nothing to indicate that
Rachel will be able to attend a regular school in the next five years, even if she were to make
enormous physical progress and her needs in terms of adaptive equipment, fittings, (orthotics) and
support services diminish.
Procedural fairness
[40] That being said, was there a breach of procedural fairness? The applicant submits in his
supplementary memorandum that it was not until he read the respondent’s affidavit and
memorandum that he became aware of a number of documents concerning the assessment of
Rachel’s health condition, for example, Dr. Chocron’s report, which the medical officer relied on to
form her opinion. He specifically refers to Exhibits B to J and N of the affidavit of Ms. Révah,
which were not sent to him in response to his access to information request. In his view, this breach
prevented him for providing an adequate response to the fairness letter.
12 A letter dated June 30, 2008, from André Martin, director of the École Victor-Doré, confirmed that Rachel was in a
class of nine students.
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[41] The applicant also contends in his initial memorandum that the medical officer and the visa
officer did not document in writing, as the Bulletin requires, all the steps of their analysis or all their
notes, for example, Dr. Quévillon’s calculation of the amount included in her medical notification of
August 18, 2008, reproduced in the fairness letter, or the calculation that was done to arrive at the
new assessment in 2009. Mr. Barlagne believes that this is a breach of the duty of procedural
fairness, which includes providing detailed and complete reasons for the process that was followed.
[42] The respondent argues that the CAIPS notes are sufficiently detailed and provide all the
necessary information. He also states that documents B to D and F to H, which deal with Rachel’s
health condition, did not need to be disclosed because the procedural fairness letter contained a
complete description of the medical officer’s medical notification. Moreover, through his access to
information request, the applicant obtained the MELS documentation establishing the costs related
to the diagnosis and prognosis described in the fairness letter. With respect to documents I, J and E,
they were sent to counsel for the applicant.
[43] We note first that the manager of access to information requests explained that these
documents were not sent to counsel for Mr. Barlagne because, in her view13, the application was
directed to Mr. Barlagne’s file while the documents in question were in Rachel Barlagne’s personal
file. The applicant disputes this, saying that the access to information section should have known
that it had to include Rachel’s file, which also bore the same number that he had referred to. It is not
13 This service is different from the visa officer’s.
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necessary to determine or discuss this issue in more detail because there are other remedies
available under the Access to Information Act, R.S.C. 1985, c. A-1, to deal with such issues.
[44] What must be determined is whether the decision-maker breached its duty of procedural
fairness in this application for permanent residence.
[45] The applicant relies on the decisions in Wong v. Canada (Minister of Citizenship and
Immigration) (1998), 141 F.T.R. 62, 42 Imm. L.R. (2d) 17 (F.C.) (Wong) and Jang v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 312, 278 N.R. 172 (Jang).
[46] In my view, the Jang decision does not support the applicant’s argument. In that case, the
Court merely confirmed that a visa officer must give an applicant a second chance by sending a
fairness letter, which was done in this case. In addition, it is quite clear from paragraphs 13 to 14,
which are reproduced here, that a letter setting out the medical opinion received and describing the
diagnosis, prognosis and social services was sufficient to satisfy the requirement to act fairly.
[13] It is well established that a duty of fairness attaches to the
process by which a visa officer considers and decides an application
for an immigrant visa. Writing for a unanimous panel of this Court in
Muliadi v. Canada (M.E.I) [1986] 2 F.C. 205 (F.C.A.) at p. 215
Stone J.A. stated the principle as follows:
. . . I think it was the officer's duty before disposing of
the application to inform the appellant of the negative
assessment and to give him a fair opportunity of
correcting or contradicting it before making the
decision required by the statute.
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[14] In my view the duty of fairness in immigration cases does not
require the visa officer to divulge to a prospective immigrant the
complete details of the medical officers' method of evaluation or the
various facets of the specific decision-making processes adopted by
ministerial officials. Rather, the duty of fairness requires that a visa
officer give an appellant an adequate opportunity to respond to any
negative medical assessment, provided always that the medical
notification form prepared by the medical officer must clearly
enunciate the reasons for the negative assessment.
[47] The Wong decision may be distinguished because the fairness letter in that case did not
contain sufficient information, and the applicant had asked the visa officer twice for the missing
information, to no avail.
[48] In addition, Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345,
[2002] 2 F.C. 413 (Khan), the most recent Court of Appeal decision in this regard, is interesting
because it comments on the Wong decision in a case where the appellant, who was relying on that
case, argued that his right to procedural fairness had been denied because he had not been given an
adequate opportunity to respond to the visa officer’s concerns about excessive demand. Although
the issue of excessive demand will be discussed further on, this case is relevant even with respect to
the allegation that there was missing information or documentation that the medical officer had
based his opinion on.
[49] First, after discussing Wong and dismissing the applicant’s argument, the Federal Court of
Appeal referred to the response to the fairness letter to verify whether he had been denied his right
to comment (see paras. 19 to 25). Second, based on the factors laid out in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 21 to
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28 (Baker), the Court analysed the content of a visa officer’s duty of procedural fairness in
circumstances similar to the case before us. In addition, the Federal Court of Appeal noted the
following at paragraph 29:
[29] I agree that, where an applicant is clearly advised of the medical
diagnosis and prognosis, and of the services likely to be required, he
or she effectively knows the grounds for the potential refusal and has
the knowledge necessary to pursue the matter further. In these
circumstances, the Minister is not normally obliged to disclose in the
fairness letter the detail supporting the conclusion that a visa could be
refused because admission of the person concerned is likely to cause
excessive demands on medical or social services.
[50] Based on these authorities, it appears that the fairness letter of September 2, 2008, which
reproduced in their entirety the medical officer’s conclusions in her medical notification of
August 18, 2008, and which advised the applicant of the diagnosis, prognosis, the social services
required and their associated costs, was sufficient to fulfil the visa officer’s duty to act fairly. In
addition, as in Khan, a review of the applicant’s exhaustive response confirms that he was not
prevented from understanding why his application was refused and providing a full and complete
answer to the officer.
[51] In addition and finally, as I indicated above, it is absolutely clear that, regardless of the
prognosis or even the diagnosis applicable to this case, there is no dispute, and it is probable, if not
certain, that young Rachel Barlagne would use the special education services (teaching resources)
offered at École Victor-Doré.
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[52] As for the adequacy of the reasons, we note first that the September 24, 2008 Bulletin
cannot be relevant to the analysis of the notes or the medical notification dated August 2008. With
respect to the 2009 assessment, the Court is satisfied that the CAIPS notes are sufficiently complete
for the applicant to exercise his rights and for the Court to conduct a judicial review (VIA Rail
Canada Inc. v. Lemonde, [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 at paragraph 19).
[53] Indeed, the medical officer indicated that she calculated the additional allowance by using
the figures provided by the applicant in Mr. Dupéré’s document (tab 33 of the documentation
provided with the Comments). She also indicated that she used the scale for disabled students 1.
This is completely sufficient to justify the calculation that is easily done with this data. The medical
officer did not consider the support services provided by the rehabilitation centre affiliated with
École Victor-Doré because the additional allowance for the cost of teachers already exceeded the
threshold set out in the Act, as indicated earlier. She stated in her notes: [TRANSLATION] “The other
documents provided as well as the financial ability or the ability and intention to contribute to the
future costs of social services support to set aside the excessive demand finding are subject to the
immigration officer’s assessment.” She therefore did not have to comment any further on them.
[54] The Court has read and re-read the CAIPS notes and is satisfied that the recorded
explanations and notes are sufficient in the context of this case to satisfy the requirements of the
Bulletin although that in itself is not the standard to apply, it being understood that the duty of
fairness considers this element, among others, as the Federal Court of Appeal stated in Via Rail
above and the Supreme Court of Canada in Baker.
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[55] The Court finds that there was no breach of the duty to act fairly.
Error in law
[56] Mr. Barlagne raises only one error in law although his argument on this issue is not very
clear. At paragraph 38(g) of his Comments, he says:
[TRANSLATION]
The budgetary policy of the Ministère de l’éducation, du loisir et du
sport du Quebec that was used to determine the additional allowance
of $7,045 (although no assessment or calculation was submitted to
that effect) highlights other categories of persons who require more
social services but who are not considered to cause “an excessive
demand” in an immigration process. This distinction between
immigrants breaches the Charter of Rights and Freedoms.
[57] The only category of immigrants identified is the category of school children in a
welcoming environment supportive of learning French for which MELS pays an additional
adjustment of $2,127 according to the document provided at tab 33.
[58] On that basis, the applicant concludes at paragraph 43 of his Comments that the fact that it is
acceptable that a category of children that place more demand on Quebec’s social services are not
considered to cause an excessive demand under subsection 38(1) of the Act whereas disabled
children like the applicant are. Thus, he states that this inadmissibility for permanent resident status
is based solely on the disability and is therefore contrary to the Charter.
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[59] He argues that the visa officer did not consider the fact that he was challenging the
constitutionality of subsection 38(1) of the Act. At the hearing, he emphasized that the officer had
jurisdiction to conduct this analysis because he has access to counsel in his Department.
[60] The submissions on this issue were very brief, even though the applicant indicated that this
was a very important argument in his case. Basically, he is relying on the Supreme Court of Canada
decision in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170
D.L.R. (4e) 1, as well as on the Convention on the Rights of the Child, without giving any details as
to how this Convention could have a bearing on this case. He refers to paragraphs 38 to 43 of his
Comments.
[61] It should first be pointed out that in this case, the applicant did not serve notice on the
Attorney General of Canada or on the attorney general of each province as required by section 57 of
the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. Although in his notice of application, the
applicant did not make a specific submission in that regard, he clearly indicated at the hearing that
he was challenging the constitutional applicability or operability of subsection 38(1). The absence of
such a notice in this case is fatal since it is a sine qua non condition for entertaining the
constitutional argument raised by the applicant: Canada (Minister of Canadian Heritage) v.
Mikisew Cree First Nation, 2004 FCA 66, [2004] 3 F.C.R. 436 at paras. 75-78, rev’d on other
grounds by [2005] 3 S.C.R. 388, 259 D.L.R. (4th) 610; Bekker v. Canada, 2004 FCA 186, 323 N.R.
195 at paras. 8, 9; Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C.
427, 57 F.T.R. 180 (F.C.) at paras. 90-92.
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[62] Moreover and in any event, the Court is not satisfied that the visa officer in this case had
jurisdiction to consider this constitutional argument or take it into account because he was bound to
apply the existing Act. In fact, the Act does not confer any discretion or jurisdiction in that regard.
Even in applying the test set out in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003
SCC 54, [2003] 2 S.C.R. 504 at para. 48, it seems to me that that the finding in Gwala v. Canada
(Minister of Citizenship and Immigration), [1998] 4 F.C. 43, 147 F.T.R. 246 (F.C.) at paras. 10 to
22, affirmed on appeal by [1999] 3 F.C. 404, 242 N.R. 173 (F.C.A.) at paras. 1 to 3, with regard to
the lack of jurisdiction of senior immigration officers to decide constitutionality applies in this
context.
[63] Finally, it should be noted that the applicant did not submit sufficient evidence to establish
discrimination between different types of immigrants because the class he describes at paragraph 42
is not one that exceeds the threshold set out in the Act. In fact, as the applicant seems to understand
very well at paragraph 41 of his Comments, it is not the total cost to MELS that must be compared
to the $4,806 threshold, but only the additional allowance of $2,127 which, over five years, is below
the threshold set out in the Act. There is therefore no evidence of differential treatment of a class of
immigrants as alleged by the applicant. As the Supreme Court of Canada has stated on many
occasions, it is important not to trivialize the review of Charter provisions, which requires a well
developed factual context. This is especially important given that the constitutionality of subsection
38(1) having regard to section 15 of the Charter has already been reviewed and affirmed by the
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Court (Chesters v. Canada (Minister of Citizenship and Immigration), 2002 FCT 727, [2003] 1 F.C
361).
[64] Moreover, in Hilewitz, the Supreme Court of Canada confirmed that subsection 38(1) of the
Act is not based on an analogous ground since this subsection emphasizes excessive demand and
not an illness or disability. The concept of excessive demand is itself an individualized assessment
that takes into account the concrete situation of the child and the child’s family as well as the
reasonably expected costs for an individual. The fact that scales must be used in the assessment of
reasonable costs does not change the character or the emphasis of the legislative provision.
[65] The Court is satisfied that the visa officer and the medical officer performed an
individualized analysis of the social services that Rachel Barlagne would probably need in the next
five years. Now, finally, we must determine whether the decision is reasonable having regard to the
other errors raised by the applicant.
Other errors
[66] Under the standard of review of reasonableness, the Court must determine whether the
decision falls within a “range of possible, acceptable outcomes which are defensible in respect of
the facts and law.”14 It is not a matter of merely having the Court substitute its own assessment of
the evidence and arguments for that of the decision-maker on whom Parliament has conferred this
mandate.
14 Dunsmuir, para 47.
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[67] The applicant argues that the visa officer and the medical officer did not take all of his
documentation and arguments into account, particularly those regarding Rachel’s state of health,
such as the letter from Ms. Josée Ouimet, Head of the School Rehabilitation Program at the Ste-
Justine Hospital (tab 49), which deals with support services.15 However, in this respect, the Court
notes there is a presumption that the decision-maker has considered and assessed all of the evidence
before the decision-maker.16
[68] He also contends that the decision-makers arrived at erroneous findings of fact because they
did not take into account his willingness and ability to pay, past family practices for supporting
Rachel, their detailed plan, the family and community support she receives, the family’s monetary
and human support, the uprooting and negative impact on her sister Lara, the incentives to relocate
Mr. Barlagne’s business, etc.
[69] As I mentioned earlier, none of the documents or arguments described above has a bearing
on Rachel’s need17 for specialized education or the fact that, according to the plan submitted, the
state would have to cover an additional allowance for the teaching resources. It should be recalled
15 The CAIPS notes indicate that he properly reviewed this letter which he describes as indicating that “school offers
fewer rehabs services as child ages; and parents can call on private service”. As for the medical officer, see para. 53.
16 Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (QL) (F.C.A.), Hassan v.
Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.).
17 This comment should not be understood to imply that the visa officer or the medical officer did not take into account
the arguments and documents submitted by the applicant. In this respect, the Court is adopting most of the respondent’s
comments in his supplementary memorandum dealing with each of the arguments presented. The Court was not satisfied
that the decision was made without taking into account this documentation or these arguments.
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that this is the main reason why the medical officer and the visa officer found that she was
inadmissible.
[70] There is no doubt in the Court’s mind that the medical officer took into account the
applicant’s submissions regarding Rachel’s condition since, in her evaluation of the additional
allowance for teaching services, she went from Class 2 (more expensive) to Class 1. And she made
no negative comments on the proposed plan concerning the support services.
[71] As I also previously said, the impact of a relocation on Lara, the relocation incentives, and
the future economic contribution of Mr. Barlagne’s business to Quebec are not relevant to the
process that had to be followed by the visa officer, even if they may be relevant for a possible
application for exemption under section 25. The visa officer can and must take into account only the
evaluation of the health or social services requirements and how the plan proposed by the parents
and their ability to pay would reduce the reasonable estimate of costs for the child’s probable care.
The visa officer has no discretion except with regard to these factors.
[72] Given the threshold set out in the Act is less than the cost of the additional special education
allowance for teaching resources only in a class of 1 to 10 students (Class 7), even if the decisionmaker
had erred in reviewing Mr. Barlagne’s financial ability to pay for support services, this error
would not be sufficient to warrant setting the decision aside.
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[73] However, given the insistence of the applicant’s counsel on this point, I believe it is
advisable to make a few comments on the evidence that was before the officer.
[74] Even if the parties agree that the visa officer’s notes were inaccurate with regard to the
savings of Mrs. Barlagne, whose bank statement indicated, without giving particulars, the balance of
a second account (passbook with 16,398.83 euros), the fact remains that the evidence submitted to
the visa officer left something to be desired, given the many omissions.
[75] As the officer indicated in his CAIPS notes, Mr. Barlagne had not submitted any personal
reference letters or any financial documents with his original application. His counsel described
herself as acting pro bono (unpaid). The family was without the salary of Mrs. Barlagne, who had
worked in Guadeloupe but could no longer do so since her arrival in Quebec, given the conditions
of her visa. Mr. Barlagne did not provide any particulars about his current income (or since his
arrival in Quebec).
[76] As mentioned earlier, the only corporate financial document submitted was that of a French
company which did not show any profit for a fiscal year ending on December 31, 2005. Although
the applicant’s counsel stated in her written submissions that the visa officer should have known
that 2005 was the French company’s last year of operations, nothing was indicated to that effect at
paragraph 45 of the applicant’s Comments. Moreover, in such circumstances, the Court finds
surprising the applicant’s argument that the visa officer should have been satisfied with the business
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income reported in the balance sheet without being concerned about the fact that the company was
operating at a loss.
[77] No financial documents or particulars were provided with respect to the Quebec company.
Paragraph 46 of the Comments simply states that the company is in a transitional situation with a
solid foundation and constantly expanding development opportunities.
[78] Mr. Barlagne did not submit any evidence of personal savings, and instead relied on the
savings of the other family members in France, in the amount of approximately 58,285.84 euros
(instead of the 42,000 euros described by the visa officer). However, as the visa officer noted, the
applicant did not submit any information on the family’s cash flow, its resources in Canada or its
current ability to save money.
[79] All that to say that if the Barlagne family’s financial ability had been essential to the
determination of Rachel’s admissibility, it is far from evident that the Court would have found that
the decision was unreasonable, even taking into account the miscalculation in the savings.
[80] In conclusion, the applicant did not satisfy the Court of the existence of a reviewable error in
this file, and the Court can only encourage him again to submit an application for exemption under
section 25, if he has not already done so.
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[81] The parties were invited to submit questions for certification. They indicated that they did
not have any. The Court concurs with the parties in this respect.
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JUDGMENT
THE COURT ORDERS AND ADJUGES that the application is dismissed.
“Johanne Gauthier”
Judge
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ANNEXE A
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2486-09
STYLE OF CAUSE: DAVID PHILIPPE BARLAGNE v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: February 23, 2010
REASONS FOR ORDER
AND ORDER: GAUTHIER J.
DATED: May 18, 2010
APPEARANCES:
Patrice Jourdain FOR THE APPLICANT
Michèle Joubert
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Patrice Jourdain
Counsel
Montreal, Quebec
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montreal, Quebec
FOR THE RESPONDENT