Thursday, 30 May 2013

Immigration: Justiciability and Procedural Fairness

An organization entered into an agreement with the Minister for Citizenship and Immigration to sponsor immigrants to Canada. Initially, the agreement provided that the Minister would cover all health care costs. Subsequently, the federal cabinet (of which the Minister is a member) issued an order which had the effect of requiring the organization to defray certain medical expenses. The organization claimed that this would cost about $400 per immigrant (of which they had sponsored about 1,000) per year. In Hospitality House Refugee Ministry Inc. v. Canada (Attorney General), 2013 FC 543, an application for judicial review was dismissed.

The applicants raised several issues, two of which are of general interest. First, they claimed that the Minister had breached his contract with them. O'Reilly J. disposed swiftly of this argument:

[10]           Under the agreement, CIC agreed to provide refugees access to interim federal health care from the time of their arrival in Canada until they became eligible for provincial coverage, and then for partial coverage thereafter if provincial health services did not provide services covered by the interim federal plan. The agreement does not specify any particular level of health care services.

[11]           The agreement does provide that CIC must consider the principals to it and the other stakeholders. But there is no specified means by which it must do so. And there is no evidence that the Order was enacted without regard for the interests of those affected by it. (My emphasis)
O'Reilly J. went on, however, to make a puzzling remark:
[12]           Further, the Order was enacted under the Crown’s prerogative power over the expenditure of funds. The prerogative power is reviewable on constitutional grounds, but not otherwise (Canada (Prime Minister) v Khadr, 2010 SCC 3 (CanLII), 2010 SCC 3, at paras 36-37).
As a matter of principle, this seems off: at the very least, the prerogative is reviewable when "rights" are interfered with, which is arguably the case here. And I don't think Khadr stands for the proposition for which it is cited: indeed, at para. 37 of Khadr, the Court refers to the "legal and constitutional limits" on the prerogative (my emphasis). Admittedly, my perspective on justiciability might colour my view of this question! 

Second, the applicants claimed that their right to procedural fairness was breached. O'Reilly J. held that the Order-in-Council was legislative in nature and thus did not attract any duty of fairness:
[18]           Generally speaking, the duty of fairness does not apply to legislative activities, such as the promulgation of Orders in Council (Attorney General of Canada v Inuit Tapirisat et al, 1980 CanLII 21 (SCC), [1980] 2 SCR 735). While certain decisions of the Governor in Council will attract a duty of fairness, the scope of any such duty depends on a number of factors, including the subject matter of the decision, the consequences for those affected by it, and the number of people involved (at pp 755-758).
[19]           Here, the Order affects many refugee sponsors, who may (although the Minister denies it) have to shoulder some medical expenses for refugees. However, it does not represent a direct or intentional attack on their interests that would elevate the duty of fairness to them (Wells v Newfoundland, 1999 CanLII 657 (SCC), [1999] 3 SCR 199, at para 61). In my view, in the circumstances, taking account of the relatively small number of persons and the modest amounts involved, the Governor in Council had no legal duty to consult directly with the applicants before proceeding with the policy reflected in the Order. (My emphasis)
I would have thought that the relatively small number of persons in question would militate in favour of a duty of fairness. Indeed, in Inuit Tapirisat, Estey J. noted that "an individual concern or a right unique to the peti­tioner or appellant" had not been raised (at p. 758). Arguably, the situation in this case fell into the individual concern/unique right category.

In any event, however, O'Reilly J. held that there had been adequate consultation between the Minister and the sponsor (at para. 20). The application for judicial review was dismissed.

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