A-486-98
The Minister of Citizenship and Immigration (Appellant)
v.
Rajadurai Samuel Thangarajan, Annette Thangarajan, William Thangarajan, and James Thangarajan, by their Litigation Guardian Rajadurai Samuel Thangarajan (Respondents)
Indexed as: Thangarajan v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Létourneau, Rothstein and McDonald JJ.A."Toronto, June 21 and 24, 1999.
Citizenship and Immigration " Exclusion and removal " Inadmissible persons " Appeal on certified question: does "special education" fall within "social services" in Immigration Act, s. 19(1)(a)(ii) " S. 19(1)(a)(ii) prohibiting admission to Canada of persons whose admission might reasonably be expected to cause excessive demands on social services " Respondent's moderately mentally retarded son excluded from admission on ground admission would create excessive demands on Canadian social services " Motions Judge holding special education for mentally challenged children within public school system not social service within s. 19(1)(a)(ii) " Appeal allowed, question answered in affirmative " S. 19(1)(a) triggered when prospective immigrant found to be suffering from disease, disorder, disability or other health impairment " "Social services" in s. 19(1)(a)(ii) contemplating services provided to those in need after assessment of nature, severity or probable duration of disease, disorder, disability or other health impairment " As requirement for publicly funded special education arising from assessment of nature, severity, probable duration of mental disability, no reason why Parliament would exclude special education from ambit of social services in s. 19(1)(a)(ii) " Movement away from institutionalization of mentally disabled toward community living " As institutionalization would constitute social service for purposes of s. 19(1)(a)(ii), substitute publicly provided program, such as special education, also social service for those purposes " "Social services" meaning more than welfare.
Constitutional law " Charter of Rights " Equality rights " Immigration Act, s. 3(f) requiring standards of admission not discriminating in manner inconsistent with Charter " Immigration Act, s. 19(1)(a) prohibiting admission of persons whose admission might reasonably be expected to cause excessive demands on social services " Respondent submitting s. 19(1)(a) discriminatory, should be narrowly construed so as to exclude special education from "social services" " In absence of proper debate with respect to Charter, s. 15, and s. 1 analysis, Court not prepared, on basis of general argument, to hold interpretation of "social services" in s. 19(1)(a)(ii) as including special education inconsistent with s. 3(f).
This was an appeal on the following certified question: does special education (the education of mentally challenged students within the publicly funded provincial school systems) fall within "social services" in Immigration Act , subparagraph 19(1)(a)(ii)? Subparagraph 19(1)(a)(ii) prohibits admission to Canada of persons whose admission might reasonably be expected to cause excessive demands on social services. Rajadurai Samuel Thangarajan applied for permanent residence on behalf of himself and his dependants. His son, William, was found to be moderately mentally retarded. Medical officers were of the opinion that his admission would create excessive demands on Canadian social services. One of the factors taken into consideration was the cost that would be incurred in providing special education to the respondent's son within the public school system. The application for permanent residence was refused. On judicial review, the Motions Judge concluded that special education provided for mentally challenged children within the public school system was not a social service within the meaning of that term in subparagraph 19(1)(a)(ii).
Immigration Act, paragraph 3(f) requires that standards of admission not discriminate in a manner inconsistent with the Charter. The respondent submitted that paragraph 19(1)(a) was discriminatory, presumably on account of mental disability, and that, although the provision would probably be saved under section 1, it should, because it is discriminatory, be read narrowly so as to exclude special education from the ambit of social services.
Held, the appeal should be allowed, and the certified question answered in the affirmative.
Subparagraph 19(1)(a)(ii) was intended to ensure that access to health and social services by Canadian citizens and permanent residents should not be denied or impaired by reason of excessive demands for those services by prospective immigrants. Paragraph 19(1)(a) is triggered when a prospective immigrant is found to be suffering from a disease, disorder, disability or other health impairment. Social services in subparagraph 19(1)(a)(ii) contemplates services provided to those in need after assessment of the nature, severity or probable duration of their disease, disorder, disability or other health impairment. Considering that the requirement for publicly funded special education arises from the assessment of the nature, severity and probable duration of a mental disability, there is no obvious reason why Parliament would have intended to exclude special education for the mentally retarded from the ambit of social services in subparagraph 19(1)(a)(ii).
There has been a movement away from the institutionalization of those with mental disabilities toward community living with an extensive community-based social service support system. As institutionalization would constitute a social service for purposes of subparagraph 19(1)(a)(ii), a substitute publicly provided program, such as special education to assist the mentally disabled, must also be a social service for the purposes of that provision.
In paragraph 19(1)(b) the term "social assistance" is used in the context of care and support of persons unable or unwilling to support themselves. Social assistance, as used in paragraph 19(1)(b ), connotes welfare. "Social services" in subparagraph 19(1)(a )(ii) includes welfare, but means something more than that.
The Court would not assume that paragraph 19(1)(a) offends Charter section 15. In the absence of a proper debate regarding section 15 and a section 1 analysis, the Court was not prepared to say, on the basis of the general argument made before it, that an interpretation of "social services" in subparagraph 19(1)(a )(ii) as including special education was inconsistent with Immigration Act, paragraph 3(f).
| statutes and regulations judicially considered |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15. |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 3(f) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 2), 19(1)(a) (as am. by S.C. 1992, c. 49, s. 11), (b) (as am. idem), 83(1) (as am. idem, s. 73). |
| authors cited |
| Canada. House of Commons. Standing Committee on Labour, Manpower and Immigration. Minutes of the Standing Committee. Issue No. 11 (April 5, 1977). |
| Concise Oxford Dictionary of Current English, 9th ed. Oxford: Clarendon Press, 1995. "social services" |
APPEAL on the following certified question: does special education (the education of mentally challenged students within the publicly funded provincial school systems) fall within "social services" in Immigration Act , subparagraph 19(1)(a)(ii)? Appeal allowed, and question answered in the affirmative.
| appearances: |
| Marie-Louise Wcislo for appellant. |
| Barbara L. Jackman for respondents. |
| solicitors of record: |
| Deputy Attorney General of Canada for appellant. |
| Jackman, Waldman & Associates, Toronto, for respondents. |
The following are the reasons for judgment of the Court delivered orally in English by
Rothstein J.A.: This is an appeal on a question certified under subsection 83(1) of the Immigration Act1 [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)]:
Does special education as described in the reasons for this order fall within "social services" as that term is used in subparagraph 19(1)(a )(ii) of the Immigration Act?
The reasons of the learned Motions Judge [(1998), 152 F.T.R. 91 (F.C.T.D.)] refer to [at paragraph 2] "the education of mentally challenged students within the publicly funded provincial primary and secondary school systems". We infer that this is the description of "special education" intended by the Motions Judge in the certified question.
Paragraph 19(1)(a) [as am. by S.C. 1992, c. 49, s. 11] of the Immigration Act provides:
19. (1) No person shall be granted admission who is a member of any of the following classes:
| (a) persons who, in the opinion of a medical officer concurred in by at least one other medical officer, are persons |
| (i) who, for medical reasons, are or are likely to be a danger to public health or to public safety, or |
| (ii) whose admission would cause or might reasonably be expected to cause excessive demands, within the meaning assigned to that expression by the regulations, on health or prescribed social services; |
Rajadurai Samuel Thangarajan (hereinafter the respondent) applied for permanent residence in Canada on behalf of himself and his dependants. The respondent's son, William, was found on medical examination to be moderately mentally retarded. Medical officers were of the opinion that his admission would create excessive demands on Canadian social services. One of the factors taken into consideration in making the assessment was the cost that would be incurred in providing special education to the respondent's son within the public school system. The application for permanent residence was refused by a visa officer.
On judicial review of the visa officer's decision, the learned Motions Judge concluded that special education provided for mentally challenged children within the public school system is not a social service within the meaning of that term in subparagraph 19(1)(a)(ii). The respondent's application for permanent residence was returned for reconsideration.
The medical officers' opinions and the visa officer's decision were not based solely on the requirement for special education for the respondent's son. In addition, the learned Motions Judge's reasons indicate some other concerns she had with the medical assessments in this case. Nonetheless, we assume that, in certifying a question for appeal, the learned Motions Judge intended the answer to the certified question to be dispositive of the outcome.
"Social services" is not a defined term in the Immigration Act . Paragraph 114(1)(m.1) [as am. by S.C. 1992, c. 49, s. 102] authorizes the Governor in Council to prescribe social services for the purposes of subparagraph 19(1)(a)(ii) but nothing has been prescribed to date.
The Concise Oxford Dictionary of Current English, 9th ed. defines "social service" as:
. . . services provided by the state for the community, esp. education, health and housing.
According to the dictionary definition of the term, "social services" would include special education.
More significantly, the context in which the term is used in subparagraph 19(1)(a)(ii) also points in the same direction. Health and social services are not unlimited and not costless. Subparagraph 19(1)(a)(ii) is clearly intended to ensure, as far as possible, that access to health and social services by Canadian citizens and permanent residents should not be denied or impaired by reason of excessive demands for those services by prospective immigrants. Paragraph 19(1)(a) is only triggered when a prospective immigrant is found to be suffering from a disease, disorder, disability or other health impairment. Social services in subparagraph 19(1)(a)(ii) contemplates services provided to those in need after assessment of the nature, severity or probable duration of their disease, disorder, disability or other health impairment. Considering that the requirement for publicly funded special education arises from the assessment of the nature, severity and probable duration of a mental disability, there is no obvious reason why Parliament would have intended to exclude special education for the mentally retarded from the ambit of social services in subparagraph 19(1)(a)(ii).
The evidence of one of the medical officers involved in this case, Dr. John Barry Lazarus, provides further support for this view. In his affidavit, he states that the current Canadian philosophy is one which aims to integrate persons with disabilities to the largest extent possible into the mainstream of Canadian society. There is a clear movement away from the isolation and institutionalization of those with mental disabilities toward community living with an extensive community-based social service support system. Dr. Lazarus states:
In assessing the Applicant's son's condition in light of the primary philosophical norms of maintaining the mentally disabled individual in the home, facilitating community integration and normalization and encouraging the maximization of individual potential through socialisation and vocational opportunities, I am of the opinion that the key services that the applicant's son requires are continued special education and placement in a vocational training program to provide him with occupational skills training and employment opportunities in a "sheltered" workshop environment, along with the benefits of interaction and socialisation which such an environment outside the home provides.
It appears that a policy of institutionalization of the mentally disabled has been replaced by a policy aimed at integrating such persons into the mainstream of society. There is no doubt that for purposes of subparagraph 19(1)(a)(ii), institutionalization would constitute a social service. A substitute publicly provided program such as special education to assist the mentally disabled must also be a social service for purposes of that provision.
The learned Motions Judge was of the view that social services in subparagraph 19(1)(a)(ii) is to be read [at paragraph 6] "in a narrow sense, as meaning social services akin to welfare". In her view, the phrase "health or social services" indicates that health services are distinct from social services and that education, including special education, provided within the school system, is also distinct. With respect, we are unable to agree.
While social services would include welfare, the term means something more than welfare. In paragraph 19(1)(b) [as am. by S.C. 1992, c. 49, s. 11], Parliament uses the term "social assistance" in the context of care and support of persons unable or unwilling to support themselves:
19. . . .
| (b) persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves and those persons who are dependent on them for care and support, except persons who have satisfied an immigration officer that adequate arrangements, other than those that involve social assistance, have been made for their care and support; [Emphasis added.] |
Social assistance as used in paragraph 19(1)(b), connotes welfare. Social services in subparagraph 19(1)(a)(ii) includes welfare, but also broader considerations.
Further, in paragraph 19(1)(a) there is a link between a disease, disorder, disability or health impairment and social services. Here, the disability is mental retardation and that is what lead to the requirement, in the opinion of the medical officers, for special education. To exclude special education from the term "social services" would be to arbitrarily preclude the term from applying to the very type of services found to be required because of a determined disability. As we said above, if institutionalization of the mentally retarded is a social service, and we think it indisputable that it is, a substitute more modern program, special education, is also a social service.
In her reasons, the learned Motions Judge refers to the respondent's argument that because education is a right and attendance is a requirement, it is not a social service, which is a benefit often subject to a means test or cost recovery. We do not see this distinction as informing the analysis. Whether special education for Canadians is a right or whether attendance is a requirement (and we have no information on this latter point) does not change the fact that it is a publicly funded program for persons suffering from mental retardation. That is what brings it within the ambit of social services in subparagraph 19(1)(a)(ii).
There is then reference in her reasons to the transcript of the 1977 proceedings of the Standing Committee on Labour, Manpower and Immigration when subparagraph 19(1)(a)(ii) was introduced in Parliament. In this case, we do not think the comments of the members of the Committee, government officials or even the Minister are instructive. The transcript indicates vagueness and ambiguity in the opinions expressed as to what is included in the term "social services". While one official seems to equate social services with welfare, another refers to "social services that might be involved from a health standpoint". Because these comments encompass the spectrum from the narrow to the very broad, we do not find them useful.
The learned Motions Judge's reasons then refer to the argument that under provincial legislation, education services, including special education, are provided under a different legislative regime and by a different government department than social services. We do not place significant weight on this argument. We are attempting to ascertain Parliament's meaning in the use of the term "social services" in subparagraph 19(1)(a )(ii) of the Immigration Act. The organizational structure of different provincial governments would seem to be a remote basis to determine the scope of the term "social services" that Parliament has used in the Immigration Act .
A final issue is one raised by the respondent, as we understand it, for the first time in this Court, pertaining to paragraph 3(f) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 2] of the Immigration Act:
3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
. . .
| (f) to ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate in a manner inconsistent with the Canadian Charter of Rights and Freedoms; |
Respondent's counsel says that paragraph 19(1)(a) is discriminatory (presumably in this case on account of mental disability). Her argument is that, although upon a Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] challenge, the provision would be saved under section 1, it should, because it is discriminatory, not be given its full and proper meaning but should be read narrowly so as to exclude special education from the ambit of social services. We are not prepared to assume that paragraph 19(1)(a) would offend section 15 of the Charter. In the absence of a proper debate with respect to section 15 and a section 1 analysis, we are not prepared to say, on the basis of the general argument made before us, that interpreting the term "social services" in subparagraph 19(1)(a )(ii) as including special education is inconsistent with paragraph 3(f) of the Immigration Act.
For all these reasons, we find that social services in subparagraph 19(1)(a)(ii) includes special education. The certified question will be answered in the affirmative as follows:
Special education, including education of mentally challenged students within the publicly funded provincial primary and secondary school systems, falls within social services as that term is used in subparagraph 19(1)(a)(ii) of the Immigration Act.
The appeal will be allowed and the decision of the Motions Judge setting aside the visa officer's decision of August 1, 1997 and returning the respondent's application for permanent residence for reconsideration will be quashed. There will be no order as to costs as costs were not requested. We note that appellant's counsel stipulated that irrespective of the outcome of the appeal, the appellant would voluntarily redetermine the respondent's application for permanent residence in accordance with our decision.
1 83. (1) A judgment of the Federal Court"Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court"Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.