CITATION: Mavi v. Canada (Attorney General), 2009 ONCA 794 |
DATE: 20091112 |
DOCKET: C49530 |
COURT OF APPEAL FOR ONTARIO |
Laskin, Simmons and Lang JJ.A. |
BETWEEN |
Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano, Nedzad Dzihic, Rania El-Murr, Oleg Grankin, Raymond Hince, Homa Vossoughi and Hamid Zebaradami |
Applicants (Appellants) |
and |
Attorney General of Canada and Attorney General of Ontario |
Respondents (Respondents) |
Lucas Lung, for the appellants Pritpal Singh Mavi, Maria Cristina Jatuff de Altamirano, Oleg Grankin, Raymond Hince and Homa Vossoughi |
Lorne Waldman, for the appellant Nedzad Dzihic |
Hugh E. Evans, for the appellants Rania El-Murr and Hamid Zebaradami |
Lorne McClenaghan and Sharon Stewart Guthrie, for the respondent Attorney General of Canada |
Robert Ratcliffe and Jodie-Lynn Waddilove, for the respondent Attorney General of Ontario |
Geraldine Sadoway, for the intervener, Metropolitan Action Committee on Violence Against Women and Children |
Heard: May 4, 2009 |
On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice dated September 11, 2008. |
Simmons and Lang JJ.A.: |
[1] The main issues on this appeal are whether governments must exercise discretion on a case-by-case basis and comply with a duty of procedural fairness when enforcing undertakings given by citizens or permanent residents of Canada to sponsor a relative’s immigration to Canada.
[2] Each of the eight appellants sponsored a relative’s entry into Canada under the family class immigration regime established by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the new Act) and by the former Immigration Act, R.S.C. 1985, c. I-2 (the old Act).
[3] As required by the relevant statutory regime, the appellants all signed undertakings in which they promised to provide for their sponsored relative’s essential needs and to ensure that their relative would not require social assistance during the sponsorship period. Seven of the appellants signed undertakings under the old Act; the eighth appellant, Mr. Hince, signed an undertaking under the new Act.
[4] Both the old Act and the new Act provide that the amount of any social assistance paid to a sponsored relative during the sponsorship period is a debt owed by the sponsor to the government and that the debt “may be recovered” either by the federal government or by the provincial government that made the payments.
[5] The appellants’ sponsored relatives all received social assistance in Ontario during the period of their sponsorships and Ontario has requested payment of their sponsorship debts.
[6] On appeal, the appellants do not dispute that, under the terms of their undertakings, they owe a debt to Ontario for the amount of social assistance paid. However, the appellants claim that circumstances beyond their control left them unable to honour their undertakings. On this basis, each of the appellants applied for a declaration that they are discharged from their sponsorship obligations.
[7] At the consolidated hearing of their applications in the Superior Court, in addition to raising various contractual defences, the appellants argued that, properly interpreted, the language of the Acts stating that sponsorship debt “may be recovered” indicates that the governments have discretion to forgive sponsorship debt. In support of their argument, the appellants relied on the terms of their undertakings, which state that the government may choose not to recover in circumstances involving “abuse” or in “other appropriate circumstances”.
[8] Further, the appellants claimed that the governments exercised their discretion unreasonably and violated their duty of procedural fairness by taking steps to enforce the appellants’ undertakings without first giving them a fair opportunity to be heard and without taking into account their individual circumstances.
[9] D. Wilson J. dismissed the appellants’ applications. In addition to rejecting their contractual defences, she found that the words “may be recovered” are merely enabling in the sense that they do no more than permit the government to enforce the debt. She concluded that they do not impose either an obligation on government to consider the appellants’ circumstances on a case-by-case basis, or a duty of procedural fairness.
[10] On appeal, the appellants do not challenge the application judge’s conclusions regarding their contractual defences. Moreover, at the oral hearing they confirmed that they are no longer seeking a declaration that they are discharged from their individual sponsorship obligations. However, they claim that the application judge erred in rejecting their arguments concerning discretion and procedural fairness and in failing to make declarations in that regard.
[11] For the reasons that follow, we allow the appeal, set aside the dismissal of the appellants’ applications and make the following four declarations:
(i) Canada and Ontario have a case-by-case discretion whether to enforce sponsorship debt taking into account a sponsor’s submissions concerning the sponsor’s circumstances and those of their sponsored relative;
(ii) Ontario fettered its discretion by adopting policies that are inconsistent with the provisions of the family class immigration regime;
(iii) Canada and Ontario owe sponsors a duty of procedural fairness when enforcing sponsorship debt; and
(iv) the duty of procedural fairness includes: a) an obligation to provide sponsors with a process for explaining their own and their sponsored relative’s relevant personal and financial circumstances; b) an obligation to consider those circumstances; and c) an obligation to inform any sponsor who makes submissions that their submissions have been considered and of the decision that was made.
[12] As our decision is premised on our review of the content and evolution of the overall legislative scheme, to explain our conclusions, we will first review the objectives of the family class immigration regime under the old and new Acts. We will proceed to discuss in some detail the statutes, regulations and forms that comprise that regime. We will then describe the process instituted by Ontario for recovery of sponsorship debt from defaulting sponsors and also provide a brief explanation of the circumstances relied upon by the appellants to explain their defaults. After canvassing the application judge’s reasons, we will turn to our analysis of the issues raised by this appeal.
[13] The main issues on appeal are whether the application judge erred in the following respects:
(1) in finding that the words “may be recovered” are merely enabling and do not also confer discretion on Canada and Ontario concerning sponsorship debt;
(2) in failing to find that Canada and Ontario abused their discretion;
(3) in finding that Canada and Ontario do not owe sponsors a duty of procedural fairness; and
(4) in failing to find that undertakings given under the old Act are not enforceable under the new Act.
[14] Since 1978, Canada has offered foreign nationals permanent residence, and a path to Canadian citizenship, under three broad classes described in federal immigration legislation. First, the refugee class, based on Canada’s humanitarian tradition, provides resettlement in Canada for displaced and persecuted persons. Second, the economic class includes persons who have the confirmed ability to become established in Canada and to contribute to its economic growth. Third, the family class includes persons who have a close family relationship with a citizen or permanent resident of Canada, who, in turn, has the economic resources to sponsor their foreign relative.
[15] The importance of family ties and family reunification was established in the old Act and is continued in the new Act. Section 3(c) of the old Act referred to the need “to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad” as a means of promoting the domestic and international interests of Canada. Section 3(1)(d) of the new Act refers to the similar objective of “see[ing] that families are reunited in Canada”.
[16] However, the new Act also recognizes that immigrants and their sponsors owe certain duties to Canadian society. Section 3(1)(e) of the new Act expresses, as one of its objectives, the promotion of the “successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society”.
[17] In furtherance of these objectives, Canada does not expect relatives who immigrate as members of the family class to be economically self-sufficient, and, accordingly, does not concern itself with the immigrating relative’s financial resources.[1] Instead, Canada relies on the economic ability of the sponsor to take financial responsibility for the sponsored relative’s essential needs, including food, shelter and other goods or services necessary for day-to-day living.
[18] In the result, an important component of a sponsor’s obligations is to ensure that the sponsored relative will not be dependent on a government, whether federal or provincial, for social assistance or other similar government benefits. Only after an evaluation of the sponsor’s capacity to fulfill this economic responsibility will a sponsored relative be admitted to Canada as a member of the family class.
[19] As we have explained, the sponsor must execute an undertaking[2] promising that the sponsor will fulfill his or her sponsorship obligations and that the sponsored relative would not require social assistance. An undertaking under the old Act would generally be in force for 10 years from the date the sponsored relative became a permanent resident.[3] Under the new regime, an undertaking is in force for between 3 and 10 years, depending on the sponsored relative’s age and relationship to the sponsor: see s. 132 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the new Regulations).
[20] Under section 95 of the Constitution Act, 1867, the federal government has constitutional primacy over immigration with jurisdiction to determine the parameters of the immigration regime.[4] The provinces have concurrent jurisdiction with respect to immigration, provided provincial laws are not repugnant to the federal law. See also Reza v. Canada, [1994] 2 S.C.R. 394, in which the Supreme Court affirmed that Ontario courts and the Federal Court have concurrent jurisdiction to hear matters relating to immigration legislation.
[21] As a practical matter, financial responsibility for immigrants generally rests with the particular province in which the immigrant resides. For example, the provision of social assistance to residents falls within provincial jurisdiction. In recognition of the overlap between federal and provincial interests, the federal government consults with the provinces regarding matters of provincial concern.
[22] One such concern arises when a sponsored immigrant qualifies for provincial social assistance because the family class sponsor defaulted on an undertaking to provide for the relative’s essential needs. To address this concern, the new Act aims to increase cooperation between the federal government and the provinces in order to assist with provincial recovery of sponsorship debt: for example see ss. 3(3)(c) and 145(2) of the new Act.
[23] Under both the old Act and the new Act, the family class immigration regime is established through a combination of statutory provisions, regulations and forms. Significantly, the Acts themselves contain relatively few provisions; the details of the regime are established primarily through the Regulations and forms.
[24] We will set out below the provisions of the statutes, regulations and forms of both statutory regimes that are important for the purposes of this appeal. Relevant statutory and regulatory provisions are reproduced in Appendices A and B for the old regime and C and D for the new regime.
[25] Section 118(2) of the old Act contained the language “may be recovered”, which is carried over into the new Act, and is central to this appeal. Section 118(2) allowed the federal government, or any provincial government to which an undertaking had been assigned, to recover by court action social assistance payments made to a family class member as a result of a breach of an undertaking:
s. 118(2) Any payments of a prescribed nature[5] made directly or indirectly to an immigrant that result from a breach of an undertaking referred to in subsection (1) may be recovered from the person or organization that gave the undertaking in any court of competent jurisdiction as a debt due to Her Majesty in right of Canada or in right of any province to which the undertakings assigned.[6] [Emphasis added.]
[26] Subsection 118(1) of the old Act authorized the federal government to assign a sponsor’s undertaking to any province on giving written notice to the sponsor.
[27] Subsections 114(1)(ii.2) and 114(1)(y) permitted the Governor in Council to make regulations prescribing “terms and conditions” for granting immigrants landed status and “the manner in which immigration officers shall carry out their duties and exercise their powers”.
[28] Importantly, s. 115(a) permitted the Minister to “establish [by order] such forms as the Minister deems necessary for the purposes of the administration of this Act”.
[29] Section 6(2)(a) of the old Act permitted any Canadian citizen or permanent resident to sponsor an application for landing by a member the family class “where authorized by the regulations.” Under s. 77(1) of the old Act, such an application could be refused where either the sponsor or the sponsored relative did not meet the requirements of the Act or the Regulations. Section 77(3) – (6) established a procedure for a proposed sponsor to appeal a sponsorship refusal.
[30] Section 108(2) permitted the federal government to enter into formal agreements with the provinces for the purpose of facilitating the formulation, coordination and implementation of immigration policies and programs (no such agreement was ever made between Canada and Ontario under the old Act).
[31] Apart from the foregoing sections, there were few provisions in the old Act that directly addressed the family class immigration regime.
[32] It was the Regulations under the old Act, the Immigration Regulations, 1978, S.O.R./78-172 (the old Regulations), that fleshed out the details of the family class immigration regime.
[33] The old Regulations prescribed who was eligible to be a sponsor, who qualified as a member of the family class, and the prerequisites for accepting a sponsorship application from a sponsor. These prerequisites included age, residency, and financial eligibility requirements, together with the requirement that the sponsor provide a sponsorship undertaking.[7] The general requirements of an undertaking, the rules respecting subsequent sponsorship applications, and the procedure for rejecting a sponsorship application were also prescribed by regulation.[8]
[34] The term “undertaking” was defined in 1979[9] in s. 2 of the old Regulations. The portion of the definition that is relevant to this appeal,[10] as it read from April 1, 1997 onwards, provided that “undertaking” means “…an undertaking in writing given to the Minister by a person to provide for the essential needs of the member of the family class and the member’s dependants ... and to ensure that the member and the member’s dependants are not dependent on any payment of a prescribed nature referred to in Schedule VI ...” (emphasis added).
[35] The requirement that a proposed sponsor provide an undertaking was set out in s. 5(2)(b) of the old Regulations. Importantly, s. 5(2)(g) prohibited an individual from being a sponsor if he or she were “in default in respect of any obligations that the person has assumed under any other undertaking given or co-signed with respect to any other person and the other person’s dependants ...”.
[36] Section 6.1[11] of the old Regulations recognized the Minister’s authority to establish the forms necessary for the family class sponsorship regime. It required that a sponsor “shall [apply] in writing in the form fixed by the Minister.”
[37] Under s. 41(1) of the old Regulations, an immigration officer who refused entry to a family class member was required to provide the sponsor or family class member with a summary of the information on which his refusal was based. Further, s. 41(2) required an immigration officer to inform the sponsor[12] of their right of appeal against a refusal.
[38] As previously noted, s. 115 of the old Act gave the Minister authority to establish by order “such forms as the Minister deems necessary for the purposes of the administration of [the] Act”.
[39] The central relevant form on this appeal is the undertaking, which changed a number of times during the currency of the old Act.[13] However, in all versions of the undertaking, the sponsor agreed to provide for the essential needs[14] of the sponsored relative for the prescribed period and undertook that the sponsored relative would not require social assistance.
[40] The form of undertaking signed by the appellants El Murr and Mavi in 1995 and 1996 appears to make no reference to government recovery of sponsorship debt.[15]
[41] The appellants Grankin, Zebaradami, de Altamirano, Vossoughi, and Dzihic signed forms of undertaking between 1999 and 2002 that included provisions dealing with the nature of their obligations, as well as the general duration, assignment and enforcement of those obligations.
[42] In these forms, the sponsor promised to assume responsibility for the sponsored relative’s essential needs if the sponsored relative was not self-supporting. Thus, the sponsor was responsible for preventing the sponsored relative from becoming dependent on public social assistance. Importantly, the sponsor acknowledged that this was so even if the sponsor’s circumstances changed as a result of, for example, decreased income due to a change in employment, a return to school, or divorce.
[43] The sponsor also acknowledged that he or she would be in default if the sponsor failed to provide for the relative’s essential needs and if the sponsored relative received benefits under a government program described in Schedule VI.[16]
[44] In addition, the five appellants who signed undertakings between 1999 and 2002 acknowledged that:
· default would continue until the sponsor repaid in full the amount of the benefits received or “made arrangements for repayment... satisfactory to social assistance authorities in the Sponsor’s province or municipality of residence”;[17]
· the Minister had “a right of legal action in a court of law” to collect a sponsorship debt or could “take other actions to recover the debt”;[18]
· the Minister could choose not to take action if the default occurred in a situation of abuse or “in other appropriate circumstances”, or, in later versions of the undertaking, “in other circumstances”;
· a decision by the government not to act at a particular time did not cancel the debt, which could be recovered by the Minister “when circumstances have changed”;
· defaults would affect the sponsor’s ability to sponsor other relatives in the future. Where a debt was not “satisfactorily paid back”, the sponsor would not be allowed to sponsor another family class member.
[Emphasis added.]
[45] Although generally similar to the old Act, the statutory provisions under the new Act are more comprehensive. The members of the family class are now described in s. 12 of the statute and s. 11(2) prohibits the issuance of a visa for a sponsor’s relative unless the sponsor “meet[s] the sponsorship requirements of the Act.” Section 13(3) of the new Act stipulates that an undertaking is binding on a sponsor.
[46] Despite these additions to the statute, the new Regulations continue to flesh out and animate the family class immigration regime. This is demonstrated by s. 13(1) of the Act, which provides that a citizen or permanent resident may sponsor a member of the family class “subject to the regulations”. In addition, s. 14(2)(e) states that the Regulations may include provisions respecting “sponsorships, undertakings, and penalties for failure to comply with undertakings.” Further, s. 13(4) directs an “officer” to apply the regulations regarding sponsorship “in accordance with any instructions that the Minister may make.” Under s. 6, the Minister may designate officers to carry out the provisions of the Act and may specify their powers and duties.
[47] Section 145(2) of the new Act is central to the issues on appeal. It makes the amount a sponsor is required to repay under a sponsorship undertaking “payable on demand” and provides that the amounts “may be recovered” by either level of government. In doing so, it streamlines the process for enforcing sponsorship debt by eliminating the requirements that the federal government assign a sponsorship debt to the province and give notice of that assignment to the sponsor.
145. (2) Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights. [Emphasis added.]
[48] Further, section 145(3) of the new Act provides that “a debt may be recovered at any time.”
[49] Section 146 of the new Act enables the Minister simply to file a certificate of the amount owing by a sponsor in the Federal Court, thereby eliminating the reference in the old Act to recovering sponsorship debt through litigation. Under s. 146(2), a registered certificate from the Federal Court has the same force and effect “as if the certificate were a judgment obtained in the Court for a debt”:
146. (1) An amount or part of an amount payable under this Act that has not been paid may be certified by the Minister ….
146. (2) The certificate is to be filed and registered in the Federal Court and, when registered, has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate plus interest to the day of payment.
[50] Section 8 of the new Act preserves the ability of the federal government to enter into agreements with the provinces. Canada and Ontario entered into such an agreement in 2005 respecting information sharing, which assisted Ontario in recovering sponsorship debt. However, the agreement did not contain any terms regarding Ontario’s recovery process.[19]
[51] There is no longer a definition of undertaking relating to the family class in the new Regulations, or in the new Act. However, ss. 130-137 of the new Regulations set out the essential features of undertakings. In addition, they establish rules relating to sponsors and their undertakings.
[52] Section 131 requires that an undertaking be given to the federal Minister[20] while s. 132 stipulates the duration of sponsorship undertakings.
[53] Like s. 5(2)(g) of the old Regulations, s. 133 of the new Regulations provides that a sponsorship application shall only be approved by an immigration officer where the proposed sponsor is not in default under another undertaking:
133. (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
…
(g) subject to paragraph 137(c), is not in default of
(i) any undertaking…
[54] Section 135 addresses default under an undertaking. Section 135(a) describes when default begins:
135. For the purpose of subparagraph 133(1)(g)(i), the default of a sponsorship undertaking
(a) begins when
(i) a government makes a payment that the sponsor has in the undertaking promised to repay, or
(ii) an obligation set out in the undertaking is breached … .
[55] Significantly, s. 135(b) provides that default under a sponsorship undertaking in relation to repayment of social assistance payments ends when the sponsor “reimburses the government concerned in full or in accordance with an agreement with that government” (emphasis added):
135. For the purpose of subparagraph 133(1)(g)(i), the default of a sponsorship undertaking
…
(b) ends, as the case may be, when
(i) the sponsor reimburses the government concerned, in full or in accordance with an agreement with that government, for amounts paid by it, or
(ii) the sponsor ceases to be in breach of the obligation set out in the undertaking.
[56] The undertaking signed by Mr. Hince after the new Act came into force is similar to the undertakings signed by five of the appellants between 1999 and 2002.
[57] One change in wording is noteworthy. Mr. Hince’s undertaking stipulates that if social assistance benefits are paid to his sponsored relative he “will continue to be in default until the amount of benefits received are repaid in full or repaid to the satisfaction of the government concerned” (emphasis added).
[58] This is different from the old undertakings, which provided that default would continue until the sponsor had repaid the benefits in full or “made arrangements for repayment ... satisfactory to social assistance authorities”.[21]
[59] Importantly, this change is consistent with the language of s. 135(b) of the new Regulations, which introduced a definition of when default under a sponsorship agreement ends.
[60] Other changes to the language of the new undertakings also reflect changes brought in by the new Act and Regulations, such as the revised duration for undertakings, and the elimination of the requirement to assign an undertaking prior to provincial enforcement. Otherwise, the undertakings under the new Act are substantially similar to the undertakings under the old Act between 1999 and 2002.
[61] While the old Act was in force, Canada and Ontario took few active steps to enforce sponsorship debt, apparently because during that timeframe, there was no procedure for sharing information between the two levels of government.
[62] Further, as we have said at footnote 5 above, it was not until 1996 that Ontario’s social assistance payments were included in Schedule VI as part of sponsorship debt. After this amendment, Ontario officials tried to obtain information about defaulting sponsors from their relatives. If they were able to obtain information, they wrote and interviewed defaulting sponsors to encourage them to resume supporting their sponsored relative and to encourage the repayment of outstanding sponsorship debt. Ontario was successful in some cases.
[63] However, by 2004, almost 7,500 sponsored relatives were on social assistance in Ontario, at a cost to the taxpayer of about $70 million annually. At that point, and with the enactment of the new Act, which specifically provided for cooperation between Canada and the provincial governments,[22] Ontario’s approach changed.[23]
[64] As a first step, Ontario created a process for the recovery of sponsorship debt. The process began with social assistance staff reminding sponsored relatives applying for assistance that their sponsors were responsible for providing for their essential needs. Where the sponsored relatives were approved for social assistance, Canada wrote to the sponsors and warned them of their default under their undertakings. Ontario sent similar letters advising defaulting sponsors that they were responsible for repaying any social assistance paid to their sponsored relatives and instructing them about how to repay the debt. If, despite these requests, a sponsor failed to remedy a default, Ontario referred the case to its Overpayment Recovery Unit (ORU).
[65] Ontario created the ORU, a department of the Ministry of Community and Social Services, in October 2004, to facilitate enforcement of sponsorship debt. While the ORU’s initial focus was on current defaults, by the summer of 2005, it had begun enforcement against sponsors who had defaulted as early as 1997 and who continued to be in default.
[66] As part of its process, Ontario developed a policy regarding the enforcement of sponsorship debt. The policy was articulated in various training manuals and internal bulletins. A training manual, dated March 2, 2006,[24] sets out the “Guiding Principles” for the recovery of sponsorship debt.
[67] Although the Guiding Principles refer to the possibility of debt collection being “waived” where there are “documented extraordinary circumstances” such as incapacity, they do not permit settling a debt for less than the full amount owing. Rather, the Guiding Principles specify that repayment in full is required:
· The defaulting sponsor is required to repay the full amount of debt. There is no provision for negotiating a settlement less than that of the total debt amount. In situations where there is documented extraordinary circumstances (i.e., sponsor is incapacitated) the debt collection may be waived.
· There is a firm expectation that the defaulting sponsor pursue all financial resources available in order to repay the debt in full, including liquidation of assets and/or loans (i.e. need to consider the sponsor’s ability to borrow).[25] [Emphasis added.]
[68] Various policy bulletins and directives set out circumstances where deferral of the debt, but not forgiveness, would be appropriate.[26] While the wording of the bulletins changed from time to time, in general, they provide for deferral in the circumstances set out below. With one exception (domestic violence between the parties), these circumstances appear to relate to a sponsor’s financial circumstances and are restricted to situations where there is no realistic prospect of repayment:
· The sponsor is deceased with no estate;
· The sponsor is incapacitated and unable to pay;
· There has been domestic violence between the parties verified by a third party;
· The sponsor has undergone bankruptcy and the entire sponsorship debt was covered by the bankruptcy discharge;
· The sponsor is in receipt of social assistance;
· The sponsor is in receipt of old-age assistance or the Guaranteed Income Supplement;
· An open eligibility review investigation has commenced for the sponsored person;
· The sponsor’s net family income is below the Low Income Cut Off (LICO) [this criterion was only referred to in the 2007 directive];
· The sponsor has “documented extraordinary circumstances.” As an example, one of the bulletins described a situation where the “sponsor has a serious health condition along with high, ongoing drug costs which have a significant impact on the sponsor’s ability to repay the debt.” A decision to defer on this ground is subject to approval of the Regional Director or SAMO Director.[27]
[69] In accordance with Ontario’s procedures, the ORU sent a notification letter to the sponsor. If the sponsor contacted the ORU within 30 days, the sponsor was asked to provide a sworn financial statement, which gave the ORU information it needed to determine the sponsor’s financial ability to meet his or her obligations.[28] The ORU did not ask the sponsor for any other information, including information about the sponsor’s personal circumstances or those of their sponsored relative.
[70] If the sponsor resumed support of the sponsored relative, but did not have the resources to repay the debt in full, the ORU would offer a voluntary payment plan under which the sponsor paid an agreed-upon amount on a monthly basis. Once a sponsor repaid their debt in full, the federal government was notified, and the sponsor received written confirmation to that effect.
[71] If the sponsor failed to respond to the ORU within 30 days of the notification letter, did not provide the required financial statement, or did not enter into an acceptable voluntary repayment agreement, the ORU evaluated the debt for referral to the Refund Set-Off Program or for legal action. The Refund Set-Off Program set off tax refunds and Goods and Services Tax and Harmonized Sales Tax credits against sponsorship debt.
[72] In light of the application judge’s conclusion that the Acts do not impose an obligation on the government to consider the appellants’ circumstances on a case-by-case basis, she did not refer to their individual circumstances in any detail. We set out in Appendix F to these reasons a summary of the appellants’ circumstances as we have ascertained them from the record.
[73] A review of Appendix F demonstrates that the appellants raise different reasons for claiming that the government should forgive or defer their sponsorship debts. Some rely on changes in their relationship with their sponsored relative: Mr. Zebaradami, Mr. Dzihic and Mr. Hince all rely on the failure of a fiancée or spouse to live with them after arriving in Canada.
[74] Others rely on government conduct. Mr. Dzihic relies on a statement by a government official that his fiancée would be deported and the fact that the government did not notify him that his fiancée successfully appealed her deportation. Mr. Mavi claims his father did not need social assistance and that he did not receive timely notice that his father had been granted social assistance.
[75] Ms. de Altamirano says a case worker told her the only consequence of placing her mother in a government-assisted nursing home would be that she could not sponsor other relatives. Ms. Vossoughi relies on a similar representation at the time her mother applied for welfare. Mr. Zebaradami also asserts unfairness because he was not notified for five years that his former fiancée was collecting social assistance.
[76] Many of the appellants also rely on either extreme changes in their financial circumstances or serious financial hardship. For example, Ms. El-Murr was not employed when she co-signed the sponsorship application with her husband who was employed at the time; they later separated. Mr. Grankin says his income is less than the LICO amount.[29] Mr. Hince is on the cusp of the LICO. Mr. Mavi fell below the LICO in 2007 and claims he has serious health problems.
[77] In some instances, because they claim that their special circumstances warrant forgiveness of their sponsorship debt irrespective of their financial circumstances, the appellants have declined to provide the government with the required sworn statement concerning their financial circumstances.
[78] The application judge rejected the appellants’ argument that the words “may be recovered” in s. 145(2) of the new Act, which were carried over from s. 118(2) of the old Act, signal Parliament’s intention to give the government a broad case-by-case discretion concerning whether to enforce sponsorship debt. Instead, she found that these words merely enable the government to enforce the debt at both the federal and provincial levels. She said:
In my view, the use of the word “may” in s. 145(2) of the IRPA permits the government to enforce a debt at both the Provincial and Federal levels. This does not, however, envisage a discretion being exercised on a case-by-case basis as submitted by the applicants. To suggest that the use of the word “may” imports a duty on the respondents to provide the applicants with an opportunity to make submissions on their individual circumstances prior to the government’s decision to enforce the debt against them is not, in my view, a reasonable interpretation of the legislation.
[79] In reaching her conclusion, the application judge considered Cha v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 409, in which the Federal Court of Appeal observed that, while generally permissive, “may” must still be interpreted in context, taking account of not only its ordinary meaning, but also the scheme and purpose of an act and the intention of the legislature.
[80] After reviewing the history and content of the Acts and the new Regulations, the application judge found that Parliament intended to simplify the debt enforcement process and did not intend to provide every sponsor with the opportunity to make submissions prior to a decision on enforcement.
[81] In the application judge’s view, the provisions in the new Act aimed at streamlining the enforcement process are especially important. In particular, the new Act eliminates the notice requirements that existed in the old Act concerning the assignment of sponsorship debt and makes sponsorship debt recoverable at any time by either level of government. Significantly, neither the legislation nor the sponsorship undertakings stipulate any procedural requirements for debt recovery.
[82] Relying on these features of the regime, the application judge concluded, “Parliament did not intend there to be a formalized process for debt enforcement.” Accordingly, she rejected the arguments that the words “may be recovered” require the exercise of discretion, or give rise to a decision that creates a duty of procedural fairness. Rather, she characterized the role of government in relation to the enforcement of sponsorship debt as “purely administrative”.
[83] Generally, questions of statutory interpretation and the existence and parameters of a duty of fairness present questions of law, which are subject to review on a standard of correctness. Findings of fact are entitled to deference, subject to an overall consideration of their reasonableness. The standard of review for questions of mixed fact and law depends upon whether the issue is characterized as largely one of fact or one of law: see L.(H.) v. Canada (Attorney General), [2005] 1 S.C.R. 401, at paras. 52-56; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paras. 8-9, 23, and 26-36.
[84] As we have said, the appellants contend that the application judge erred in concluding that the words “may be recovered” in s. 145(2) of the Act are merely enabling and do not also confer a case-by-case discretion on Canada and Ontario concerning sponsorship debt. If the words are merely enabling, the government need only make an administrative decision concerning whether it is worth pursuing collection on a practical level. If they confer discretion, does the discretion require government to make case-by-case decisions concerning waiver, forgiveness and enforcement?
[85] This issue raises a question of statutory interpretation. For convenience, we repeat the provisions of the old Act and the new Act that require interpretation, bearing in mind that it is the new Act that governs:
Immigration Act
118. (2) Any payments of a prescribed nature made directly or indirectly to an immigrant that result from a breach of an undertaking referred to in subsection (1) may be recovered from the person or organization that gave the undertaking in any court of competent jurisdiction as a debt due to Her Majesty in right of Canada or in right of any province to which the undertaking is assigned.
Immigration and Refugee Protection Act
145. (2) Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights.
[Emphasis added.]
[86] The modern rule of statutory interpretation requires that “the words of an Act ... be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Bell ExpressVu v. Rex, [2002] 2 S.C.R. 559 at para. 26, citing Elmer Driedger, Construction of Statutes (2nd ed.) 1983, at p. 83.
[87] We agree with the application judge that, taking a contextual approach, several features of the Acts suggest that the words “may be recovered” are merely enabling and do not confer discretion requiring consideration of the appellants’ circumstances on a case-by-case basis.
[88] These features include the provisions in both Acts aimed at holding sponsors accountable for sponsorship debt, the provisions in the new Act creating a streamlined enforcement procedure, and the absence of a mechanism in either Act for sponsors to make submissions about their individual circumstances.
[89] That said, three factors persuade us that the provisions in issue require the exercise of a case-by-case discretion concerning the enforcement of sponsorship debt.
[90] First, although on a plain reading of ss. 118(2) and 145(2) both appear to be enabling, the word “may” is generally interpreted as signaling at least some measure of discretion. However, like the application judge, we recognize that relevant case law has consistently held that “may” has a variety of meanings and that a contextual interpretation is required to determine its true meaning in any particular statute: for example, see Ruby v. Canada (Solicitor General) [2000] 3 F.C. 589 (C.A), at para. 54, rev’d on other grounds [2002] 4 S.C.R. 3; Falconbridge Nickel Mines Ltd. and Minister of Revenue for Ontario (Re) (1981), 121 D.L.R. (3d) 403 (Ont. C.A), at p. 408.
[91] Second, in our opinion, the overall legislative scheme that always informs the interpretation of statutory provisions must, in this case, include the Regulations promulgated under both Acts and the forms created to implement the Regulations. The application judge fell into error, in part, because she failed to take proper account of the Regulations and forms to inform her interpretation of the Acts.
[92] The use of regulations as part of the overall legislative scheme that informs the meaning of a statute was specifically recognized in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152. At para. 35, Deschamps J. made it clear that regulations “can assist in ascertaining the legislature’s intention”, particularly where the statute and the regulations form an integrated scheme.
[93] In Greater Toronto Airports Authority v. International Lease Finance Corp., (2004) 69 O.R. (3d) 1, at paras. 102-104, this court approved the use of regulations as tools for interpreting their enabling statute where the regulations “are closely intertwined with a statute, or were enacted contemporaneously with a statute” and can be viewed as “inter-related parts of a broader regulatory framework”[30]: see also Ward-Price v. Mariners Haven Inc. (2001), 57 O.R. (3d) 410 (C.A.), at para. 29.
[94] In addition to using regulations as a tool for interpretation, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) addresses the use of forms at p. 409. While observing that some suggest that forms may only be used if an act is ambiguous, the author observes that “this requirement should be regarded as obsolete” and suggests that forms may assist in interpreting the body of a statute.
[95] In our opinion, our review of the content and evolution of the family class immigration regimes set out above demonstrates that the Regulations and forms promulgated and created under both Acts are essential components of an integrated legislative scheme. The interrelationship between the Acts and the Regulations is illustrated by the fact that in both instances they came into force essentially simultaneously.[31]
[96] Thus we conclude that the Regulations and forms provide important context for interpreting the statutes. Moreover, we find that both the undertakings and the Regulations support an intent to confer a case-by-case discretion.
[97] The undertaking forms suggest at least two areas of case-by-case discretion: (i) discretion to cure default under a sponsorship undertaking, and (ii) discretion to defer enforcement. We will discuss, starting at para. 114 of these reasons, the separate question of whether they also suggest a discretion to forgive sponsorship debt.
[98] From at least 1999, the undertaking forms have included a provision allowing sponsors to cure their default under a sponsorship undertaking by making an arrangement for payment of an amount less than the total amount owing. As there are no restrictions on quantum, presumably the amount repaid could be zero.
[99] The undertaking signed by Mr. Hince under the new Act indicates that the arrangement for curing default is made with the “government concerned”:
I also understand that I will be in default if the government makes a payment that I have promised to repay in this undertaking... I understand that I will continue to be in default until the amount of benefits received are repaid in full or repaid to the satisfaction of the government concerned. [Emphasis added.]
[100] Default is an important concept in the family class immigration regime. The Regulations under both the old Act and the new Act provide that a Canadian citizen or permanent resident is entitled to sponsor a family class member where the citizen or resident is not in default under a sponsorship undertaking. However, on a plain reading of the undertaking, if a sponsorship debt is “repaid to the satisfaction of the government concerned,” default under the undertaking is cured.
[101] Unlike the next provision in the undertaking that we will discuss, this term does not refer specifically to the circumstances of a sponsor as a factor that can influence the decision to accept repayment of an amount less than the total amount of the sponsorship debt.
[102] But if that was not the intent of this term, why was it included in the undertaking form? On its face, it appears to be aimed at allowing sponsors to negotiate an arrangement with government that will cure their default. If a sponsor’s circumstances are not a factor to be considered in negotiating an arrangement, what is?
[103] Importantly, the undertaking signed by Mr. Hince under the new Act also contains the provision that was in the undertaking forms under the old Act stating that the Minister “may choose” not to enforce repayment of sponsorship debt in certain circumstances:
The Minister and the province concerned may choose not to take enforcement action to recover money from me if the default is the result of abuse or in other circumstances. The decision not to act a particular time does not cancel the debt. The Minister and the province concerned may recover the debt when circumstances have changed. [Emphasis added.]
[104] Although this provision does not create discretion to reduce the amount of a sponsorship debt, it permits the governments to make a choice not to enforce based on presenting circumstances. If the circumstances do not change, presumably that would lead to permanent deferral. Similar provisions have been included in the undertaking forms since at least 1999.
[105] In our view, these provisions in the undertakings, which form an integral part of the family class immigration regime, point strongly to interpreting “may be recovered” as including discretion concerning the enforcement of sponsorship debt.
[106] In addition, since Parliament permitted the discretion that existed in the forms established under the old Act to be both continued and refined in the forms in use under the new Act, we consider it reasonable to infer that Parliament intended that such discretion exist.
[107] In reaching our conclusion, we acknowledge that other terms of the undertakings emphasize the continuing nature of a sponsor’s obligations, despite changed circumstances. While these terms may signal that discretion is limited and should be exercised only in unusual circumstances, the provisions we have identified point strongly to the existence of discretion.
[108] Importantly, the provisions in the undertaking forms created under the old Act allowing the government to permit a sponsor to cure their default by “rep[aying] the debt to the satisfaction of the social assistance authorities” were carried forward into and refined, not only in the undertaking forms used under the new Act, but also in the new Regulations.
[109] Section 135 of the new Regulations, contrary to the finding of the application judge, does not provide that default under a sponsorship undertaking “ends … when the sponsor reimburses the government for the amounts paid out by it.” Rather, s. 135(b)(i) states specifically that default under a sponsorship undertaking ends “when the sponsor reimburses the government concerned, in full or in accordance with an agreement with that government, for amounts paid by it” (emphasis added).
[110] Because the Regulations make it clear that a defaulting sponsor cannot sponsor another family class member, adding this provision to the new Regulations was an important step in eliminating any perceived conflict between the Regulations and forms, since the latter did allude to the possibility of curing default by partial payment.[32]
[111] As Parliament must be taken to have been aware of the discretion that existed in the forms under the old Act when it enacted the new Act, this refinement of the overall legislative scheme to incorporate discretion in the Regulations reinforces our view that Parliament intended the discretion we have identified.
[112] Third, both the old Act and the new Act are replete with provisions emphasizing the humanitarian aspects of Canada’s immigration regime: for example, see ss. 3(c), 3(g), 6(2), 6(5) and 70(3)(b) of the old Act, and ss. 3(2)(c) – (f), 12(3), 25(1) and 69(2) of the new Act. Interpreting s. 145(2) of the new Act as conferring a case-by-case discretion strikes an appropriate balance between the important goal of requiring sponsors to comply with the undertaking while at the same time respecting the humanitarian traditions of Canadian immigration legislation.
[113] In the end, we conclude that interpreting the Acts as creating discretion is consistent with the overall scheme and purpose of the Acts. In fairness to the application judge, it does not appear that she was provided with the comprehensive review of the evolution of the Regulations and forms that would have led her to the same conclusion.
[114] The appellants argue that the undertakings suggest an even broader discretion than we have found, namely, a discretion to forgive sponsorship debt. Canada countered that express language in s. 145(3) of the new Act that “[a] debt may be recovered at any time,” forecloses the possibility of actually forgiving the debt. In Canada’s view, absent payment in full, an unpaid sponsorship debt continues to exist and “may be recovered at any time.”
[115] In our view, there is a strong argument that the governments’ discretion extends to forgiving sponsorship debt. As we have said, there is no restriction on the amount of reimbursement required to cure default under a sponsorship debt. Absent a restriction, presumably the amount repaid could be zero. Similarly, there is nothing in the undertakings that precludes the governments from choosing to refrain from enforcement permanently. Ontario’s deferral policy appears to contemplate just that.
[116] The practical difference between these options and complete forgiveness of sponsorship debt is not easy to discern. Explaining how a debt already incurred can continue to exist when it has been repaid to the satisfaction of the government concerned requires the assistance of angels who can dance on the head of a pin.
[117] Moreover, interpreting the statutory scheme to permit the exercise of discretion to forgive sponsorship debt appears to be supported by s. 5 of the Financial Administration Act, R.S.O. 1990, c. F.12, which gives Ontario express authority to negotiate the settlement of debts and to determine that any variety of circumstances may warrant refraining from collection:
5. (1) Where a person has an obligation or debt due to the Crown or the Crown has a claim against a person, the Minister of Finance may, subject to any other Act affecting such obligation, debt or claim,
(a) negotiate and accept a settlement in payment and satisfaction of such obligation, debt or claim;
(b) determine that any such obligation, debt or claim is uncollectable; or
(c) determine that financial hardship, economic considerations or other circumstances do not warrant the collection or enforcement of any such obligation, debt or claim.
[Emphasis added.]
[118] Although its provisions are complex, the Financial Administration Act, R.S.C. 1985, c. F-11, s. 23[33], may also allow for the “remission” of sponsorship debt.[34]
[119] However, particularly since counsel did not refer to the foregoing legislative provisions, we consider it inadvisable that we finally decide this issue. Moreover, it is unnecessary that we do so in light of our conclusion that the governments have discretion to permit sponsors to cure their default under sponsorship undertakings and to refrain from enforcing them.
[120] The appellants argue that Ontario abused its discretion by failing to consider relevant factors, fettering its discretion, arbitrarily and unreasonably exercising its discretion, and breaching its own policies.
[121] Discretionary authority must be exercised in good faith and not for improper purposes. Relevant factors must be taken into account. Irrelevant factors must play no part in the consideration. The decision must be neither arbitrary nor unreasonable: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 52-53; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7-8; Roncarelli v. Duplessis, [1959] S.C.R. 121 at pp. 140, 155-157.
[122] As David J. Mullan et al. explain in Administrative Law: Cases, Text, and Materials, 5th ed. (Toronto, Emond Montgomery, 2003), at p. 952:
It is for the courts to ensure that the agency does not use its power for some purpose not authorized by the legislature or base its decision on a range of factors that are either narrower or broader than those intended by the legislature to inform the exercise of the discretion.
[123] Decision-makers must not decide in advance how they will exercise their discretion. As Colleen Flood and Lorne Sossin write in Administrative Law in Context (Toronto: Emond Montgomery, 2008) at p. 279:
Decision-makers who decide in advance how they will exercise their discretion, before being presented with the particulars of a situation, transform the nature of the power that was delegated to them. . . If directives or guidelines are applied in a way that prevents the decision-maker from making use of his or her margin of manoeuvre in each case, he or she then transforms the discretionary power into a non-discretionary one. The legality of using those directives thus requires decision-makers to actually exercise discretion and to depart from the guidelines when cases demand it.
[124] Discretion is fettered or abused when a policy is adopted that does not allow the decision-maker to consider the relevant facts of the case, but instead compels an inflexible and arbitrary application of policy: see Diavik Diamond Mines Inc. v. Boullard et. al., 2007 NWTSC 83 (CanLII), at para. 46; Brown v. Alberta (1991), 82 D.L.R. (4th) 96 (Alta. Q.B.), at pp. 100-104.
[125] In our view, Ontario fettered or abused the exercise of its discretion in at least three ways.
[126] First, Ontario’s decisions regarding the appellants were anchored by its “Guiding Principle” that a “defaulting sponsor is required to repay the full amount of the debt.” On its face, this policy precludes exercising discretion to negotiate a settlement permitting a sponsor to cure default on payment of an amount less than the full amount of the debt. Such a step is expressly contemplated in both s. 135(b)(i) of the new Regulations and the undertakings. We recognize that the Guiding Principles also refer to permitting collection to be waived in cases of “documented extraordinary circumstances” such as incapacity. However, we interpret this as likely referring to the deferral power set out in the undertakings. Moreover, as we have said, negotiating a settlement is expressly prohibited.
[127] Although declining to exercise this discretion may well be defensible in most circumstances, a policy that requires that result in every case improperly fetters or restricts the discretion of the decision-maker. To this extent, the policy is inconsistent with the overall legislative scheme and amounts to an improper fettering of Ontario’s discretion.
[128] Second, apart from abuse, which is specified as a basis for deferral in the undertakings, the only examples in Ontario’s policy statements of considerations warranting a deferral of enforcement of sponsorship debt are considerations involving the sponsor’s financial circumstances. Ontario’s list of specific reasons for deferral is thus restricted to matters involving a sponsor’s financial circumstances and abuse. Although Ontario also gives decision-makers a residual discretion to defer in cases of “documented extraordinary circumstances”, the examples given to illustrate this ground relate exclusively to the sponsor’s ability to pay.
[129] In contrast, the undertakings refer to government making a choice to defer enforcement in an unspecified range of circumstances. For example, the Hince undertaking says the Minister and the province may choose not to enforce “if the default is the result of abuse or in other circumstances.”
[130] In our opinion, by limiting the examples it has given to financial considerations or abuse, Ontario has effectively restricted the “other” considerations in addition to abuse that are open to a decision-maker when deciding whether to defer sponsorship debt to the financial circumstances of a sponsor. In so doing, Ontario has created a policy that is inconsistent with the overall legislative regime and thereby improperly fettered its discretion.
[131] Although it may well be that factors such as the importance of the sponsor’s obligations to the government would lead a decision-maker to decline to defer enforcement despite other presenting circumstances in most cases, in our view, a policy that mandates that result in every case is improper.
[132] Third, to the extent that the residual ground in Ontario’s deferral policy allows only for consideration of “documented extraordinary circumstances”, it raises the bar higher than the various iterations of the undertakings that mandate consideration of “other circumstances” or “other appropriate circumstances”. None of the undertakings restrict the grounds for deferral to “extraordinary circumstances” and none specify a mandatory requirement for documentation of the particular circumstance. Again, this aspect of the policy is inconsistent with the overall legislative scheme and amounts to an improper fettering of Ontario’s discretion.
[133] These restrictions on the exercise of discretion are illustrated by the fact that Ontario is unable to identify any case since the inception of its policy where it has exercised its discretion in favour of a sponsor. In practice, in restricting its decision-making to deferral of enforcement based on financial circumstances, and by raising the bar to require “documented extraordinary [financial] circumstances”, Ontario has precluded itself from doing what is contemplated by the legislative scheme: to reach an agreement with a sponsor in satisfaction of the default or to take no recovery action against a defaulting sponsor in the face of “other” or “other appropriate circumstances”.
[134] As we have concluded that Ontario’s approach to its decision-making was flawed and must be revisited, it is unnecessary that we address the appellants’ additional arguments regarding abuse of discretion that relate to their individual circumstances.
a) Is there a duty?
[135] The appellants argue that the application judge erred in concluding that the government was not required to accord sponsors at least some elements of procedural fairness. We agree.
[136] In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, the Supreme Court of Canada listed three factors relevant to the existence of a duty of procedural fairness: (i) the nature of the decision; (ii) the relationship between the administrative body and the individual; and (iii) the effect of the decision on the individual’s rights.[35]
[137] In this case, in our view, an examination of all three factors suggests the existence of a duty of procedural fairness.
[138] The decision whether and how much of a particular sponsorship debt to collect involves taking a final position that is specific to the individual sponsor.
[139] Further, although there is certainly a contractual element to the relationships between the governments and individual sponsors, the relationships also have a significant public law component. The sponsors’ obligations are essentially imposed by government; perhaps more importantly, they are enforced through government processes. Such relationships evoke a public interest in the proper use of delegated power and suggests the existence of a right to procedural fairness: see Knight, at para. 32.
[140] Finally, the decision has serious implications for the sponsor, both financially and in relation to the sponsor’s ability to sponsor other members of the family class. The latter is a significant effect for sponsors who may desire to sponsor multiple family members: see the old Regulations, s. 5(2)(g) and the new Regulations, s. 133(1)(h).
[141] Given the nature of the decision, its public law component, its finality and specificity, and its importance to the individual sponsors, we conclude that the governments owe the appellants a duty of procedural fairness.
[142] We turn to the parameters of that duty.
[143] In Knight, L’Heureux-Dubé J. wrote at p. 682 that “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.” The extent of the parameters of the duty of procedural fairness depends on the circumstances of the individual case: see Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, at p. 196, and Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.
[144] In setting the parameters of a duty of procedural fairness, Baker reminds us at para. 30 that the heart of the issue is whether “those whose interests were affected had a meaningful opportunity to present their case fully and fairly.”
[145] L’Heureux-Dubé J. observed at para. 22 of Baker that the underlying purpose of the common law duty of fairness is to ensure that “administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and […] have them considered by the decision-maker.”
[146] Finally, L’Heureux-Dubé J. set out, at para. 23, five factors relevant to the scope of the duty of procedural fairness. These factors overlap with the factors relevant to the existence of a duty. They are: (i) the nature of the decision being made, and the process followed in making it; (ii) the nature of the statutory scheme; (iii) the importance of the decision to the individuals affected; (iv) the legitimate expectations of the person challenging the decision; and, (v) the procedural choices taken by the decision-maker.
[147] Having regard to the Baker factors, we conclude that the governments’ duty of procedural fairness includes the following three components: (i) an obligation to provide a process for individual sponsors to explain their relevant personal and financial circumstances; (ii) an obligation on government to consider those circumstances, and; (iii) an obligation to inform any sponsor who makes submissions that their submissions have been considered and of the decision that was made.
[148] Although we consider that all of the Baker factors support our conclusion, the wording of the undertakings in particular creates a legitimate expectation on the part of sponsors that the government will consider negotiating a settlement of sponsorship debt and that, in addition to their financial circumstances, the government will consider “abuse” and “other” or “other appropriate circumstances” before deciding to collect. In order to meet those expectations, it is necessary that Ontario “hear” and consider the sponsors’ submissions: see Baker at para. 26.
[149] Although we conclude that it is for the government to determine the exact nature of the “hearing” that should be provided, in our view, at a minimum it should involve notifying the sponsor that a decision about sponsorship debt is pending and inviting the sponsor to make relevant submissions.[36]
[150] Those submissions may be in writing or in such other form that the government determines is appropriate. As part of its duty, Ontario would seek and consider the sponsor’s submissions regarding the sponsor’s personal and financial circumstances together with any submissions the sponsor may have concerning the circumstances of their sponsored relative. Further, Ontario would no doubt advise the sponsor of any time line it intends to impose for receipt of submissions.
[151] We conclude as well that the government is obliged to inform a sponsor who has made submissions that their submissions have been considered and inform the sponsor of the decision that was made. In our view, this obligation flows from the duty to “hear” submissions.
[152] On the appeal hearing, counsel for the appellants did not press for a determination of whether reasons for decision would be required.[37] Having regard to the appellants’ position on this issue and given that Ontario will be revisiting its policies and procedures, we consider it preferable at this point to leave the issue of reasons to another case, should it be necessary.[38] We reach the same conclusion with respect to any duty to inform sponsors of any revised government policies.
[153] The appellants argued that the duty of procedural fairness encompassed certain additional elements. We reject those arguments for the following reasons.
[154] The appellants claimed that the government is required to notify a sponsor when a sponsored relative applies for or obtains social assistance. Although we agree that it may be in the interests of all concerned for the government to do so, we are not persuaded that it is a mandatory requirement of the duty of procedural fairness.
[155] Under the family class sponsorship regime, the sponsor assumes responsibility for ensuring that their sponsored relative’s essential needs are met in exchange for the government’s agreement to admit their relative into Canada.
[156] This places a duty on the sponsor to remain fully informed of their relative’s whereabouts and means throughout the duration of the sponsorship and for so long as their relative remains in Canada.
[157] In these circumstances, we are not persuaded that governments have a duty to notify a sponsor of a relative’s application or receipt of social assistance benefits.
[158] That said, it remains for the government to make a proper assessment concerning whether a lengthy delay on its part in advancing a claim against a sponsor is an “appropriate circumstance” to be taken into account in deciding whether and how much of a sponsorship debt to enforce in any particular case.
[159] The appellants also complained that Ontario requires them to file a sworn financial statement before deciding whether their circumstances merit exceptional treatment.
[160] We do not see this as a denial of procedural fairness. In our view, the government is entitled to require a sponsor to file a sworn financial statement at the same time as it receives submissions concerning the sponsor’s personal circumstances. The summary nature of the process and the absence of any procedural requirements in the scheme suggest that there is no requirement for a multi-faceted process or a bifurcation of decision-making as between the sponsor’s personal circumstances and their financial situation.
[161] On appeal, the seven appellants who signed undertakings under the old Act argued for the first time that their undertakings are not enforceable under the new Act. Since this argument depends solely on the interpretation of the transition provisions of the new Act, we reject the governments’ position that we should refuse to consider it on appeal.
[162] Section 201 of the new Act expressly states that the Regulations “may provide for measures regarding the transition” between the old and the new Acts, including “measures regarding financial and enforcement matters.”
[163] Part 20 of the new Regulations, beginning at s. 316, sets out the Transitional Provisions regulating the transition from the old Act to the new one. Several of these provisions deal with undertakings provided by family class sponsors.
[164] Section 337 provides that a sponsor who was approved and who provided an undertaking under the old Act is deemed to be a sponsor approved under the new regime:
337. (1) Subject to subsections (2) and (3), a sponsor who made an undertaking within the meaning of paragraph (b) of the definition “undertaking” in subsection 2(1) of the former Regulations ... and in respect of whom an immigration officer was satisfied that the requirements of paragraph ... 5(2)(d) of those Regulations ... were met is deemed to be a sponsor whose application has been approved by an officer under section 154.
[165] Section 351(1) of the new Act provides that an undertaking “referred to in section 118 of the former Act ... is governed by” the new Act (emphasis added):
351. (1) Subject to subsection (2), an undertaking referred to in section 118 of the former Act that was given before the day on which this section comes into force is governed by the Immigration and Refugee Protection Act.
[166] Importantly, under s. 351(2), social assistance benefits paid as a result of a sponsor’s default under an old undertaking “may be recovered from the person or organization that gave the undertaking as a debt due to Her Majesty in right of Canada or in right of a province” (emphasis added):
351. (2) Payments that are made to or for the benefit of a person as social assistance ... as a result of the breach of an undertaking, within the meaning of ... paragraph (b) of the definition “undertaking” in subsection 2(1) of the former Regulations ... that was given before the day on which this section comes into force, may be recovered from the person or organization that gave the undertaking as a debt to Her Majesty in right of Canada or in right of a province.
[167] However, s. 351(3) of the new Regulations stipulates that the duration of undertakings under the old Act is not affected by the new Regulations:
351. (3) For greater certainty, the duration of an undertaking referred to in section 118 of the former Act that was given to the Minister before the day on which this section comes into force is not affected by these Regulations.
[168] The appellants claim that these provisions do not allow enforcement of old undertakings under the streamlined enforcement provisions of the new regime. They give three reasons. First, they submit, if the government intended to make the old undertakings enforceable under the new regime, it would have “deemed” the undertakings to be undertakings under the new regime, rather than stipulating that they were to be “governed” by the new regime.
[169] The appellants argue that “governed” is less specific than “deemed”, a term employed by Parliament elsewhere in the new Regulations. As an example, the appellants point to s. 348 of the new Regulations, which deems judicial review applications commenced under the old Act to be commenced under and governed by the new Act: see also s. 337.
[170] According to the appellants, the Governor in Council made a deliberate choice in using the word “governed” in s. 351 rather than the word “deemed” to avoid a requirement that every sponsor enter into a new undertaking. However, they argue, “governed” stops short of transforming an undertaking under the old Act into an undertaking under the new Act and of making an old undertaking enforceable under the new Act.
[171] Second, the appellants argue that express statutory language would be necessary to make old undertakings enforceable under the new regime because the new regime removes their right under s. 118(2) of the old Act to litigate the governments’ claim for enforcement of sponsorship debt, as other sponsors did successfully in cases such as Manitoba v. Barkman, 2007 MBQB 54 (CanLII), affirmed (2008), 225 Man R. (2d) 166 (C.A.), leave to appeal denied, [2008] S.C.C.A. No. 526 and Manitoba v. Khaleghi-Hashemian, 2002 MBQB 1 (CanLII).
[172] Third, the appellants submit that an interpretation that the old undertakings are not enforceable under the new Act is consistent with the government’s pre-2004 decision not to enforce sponsorship undertakings.
[173] We do not accept these arguments.
[174] In our view, there is no ambiguity in the transition provisions. A plain reading of s. 351(1) in context leads to the conclusion that the Governor in Council intended undertakings given under the old Act to remain in effect and to be “governed” or controlled by and enforceable under the new Act. Any doubt about the government’s intention is answered by s. 351(2), which specifically provides for recovery of sponsorship debt accumulated under old undertakings.
[175] Moreover, the government’s intention to impose the new regime on the old undertakings is evident from other provisions in the new Regulations. For example, the government explicitly created an exception to the imposition of the new regime in relation to the old undertakings in s. 351(3), which stipulates that the duration of the old undertakings was not affected by the new regime. The fact that Parliament provided a specific exception to the application of the new Act for undertakings entered into under the old regime strongly indicates that it intended, as a general matter, for old undertakings to function as if they were entered into under the new Act. If old undertakings were to merely be continued under the new Act, s. 351(3) would be redundant.
[176] In addition, the interpretation we have reached is supported by reference to the Regulatory Impact Analysis Statement (RIAS)[39] that accompanied the new Act.
[177] In the section entitled “XXXIII – Dependents, Family Class, Undertakings and Fees – Transitional Regulations – Part 20, Divisions 7 to 10”, Canada Gazette Part II, Vol. 136, No. 9 Extra, at p. 341, the RIAS describes the “Purpose of these provisions” as being to “provide for the recovery of any social assistance benefits paid as a result of sponsorship default, whether or not such default occurred prior to the coming into force of the [new Act].”
[178] Further, it explains, at p. 342, that recovery under the new regime includes recovery of payments “made before the [old Act] comes into force”.
[179] Finally, the section entitled “Benefits” states that “[t]he Government benefits from the more streamlined process for recovering social assistance benefits paid under the current regime as a result of sponsorship default. The transitional rules allow these existing debts to be recovered through collection activities rather than litigation.”
[180] In our view, these statements indicate the government’s intention to provide a transition from the old Act to the new Act and to permit recovery of debt accumulated under either Act. The appellants’ arguments do not persuade us otherwise. In our opinion, the word “governed” accomplishes the government’s purpose without the need to also “deem” the undertakings to be made under the new regime.
[181] As well, even assuming that litigation under the old Act could involve a defence based on post-undertaking individual circumstances, we reject the appellants’ argument about the loss of the opportunity to litigate liability for their debts. The Manitoba cases referred to by the appellants did not address the potentially restricted nature of the defences available in such an action. Moreover, assuming such defences are available, it remains open to sponsors to seek declaratory relief as the appellants did in this case. Further, given our conclusion that the government must exercise discretion in enforcing sponsorship debt, the appellants will continue to have the opportunity to make submissions under the new regime.
[182] Finally, we do not accept the appellants’ argument premised on the governments’ failure to enforce sponsorship undertakings in the past. Many factors indicate the governments’ intentions and support their continuing entitlement to enforce past sponsorship debt.
[183] These factors include: (i) the addition to Schedule VI in 1996 of a full description of recoverable Ontario social assistance benefits; (ii) the clear wording of the undertakings stating that they remain enforceable despite any failure to enforce them at a particular time; (iii) the pre-2004 government contact with defaulting sponsors; and (iv) the creation of a new legislative regime, providing for increased cooperation between the federal government and the provinces. All of these factors are inconsistent with the appellants’ claim that Parliament did not intend to enforce past sponsorship debt under the new Act.
[184] Accordingly, we would not give effect to this ground of appeal.
[185] In the result, we would allow the appeal, set aside the application judge’s order and substitute the following declarations:
(i) Canada and Ontario have a case-by-case discretion whether to enforce sponsorship debt taking into account a sponsor’s submissions concerning the sponsor’s circumstances and those of their sponsored relatives;
(ii) Ontario fettered its discretion by adopting policies that are inconsistent with the provisions of the family class immigration regime;
(iii) Canada and Ontario owe sponsors a duty of procedural fairness when enforcing sponsorship debt; and
(iv) the duty of procedural fairness includes: a) an obligation to provide sponsors with a process for explaining their own and their sponsored relative’s relevant personal and financial circumstances; b) an obligation to consider those circumstances, and; c) an obligation to inform any sponsor who makes submissions that their submissions have been considered and of the decision that was made.
[186] Our decision in this matter will no doubt require that Ontario revisit its policies and procedures relating to the enforcement of sponsorship debt. As the appellants chose to apply for declaratory relief, it will be up to the appellants to determine what further steps to take in the light of our declarations.
[187] The appellants may deliver any submissions on costs within ten days of the release of these reasons, the governments may respond within seven days thereafter.
RELEASED: November 12, 2009
“JS”
“Janet Simmons J.A.”
“S.E. Lang J.A.”
“I agree John Laskin J.A”
Relevant Provisions of the Immigration Act, R.S.C. 1985, c. I-2
3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designated and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
…
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;
…
(g) to fulfill Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;
…
6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
6. (2) Any Canadian citizen or permanent resident may, where authorized by the regulations, sponsor the application for landing of
(a) any person who, in relation to the Canadian citizen or permanent resident, is a member of the family class…
6. (3) Any Convention refugee and any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accordance with Canada's humanitarian tradition with respect to the displaced and the persecuted, may be granted admission, subject to such regulations as may be established with respect thereto and to the immigration plan currently in force and notwithstanding any other regulations made under this Act.
…
6. (5) Subject to subsection (8) but notwithstanding any other provision of this Act or any regulation made under paragraph 114(1)(a), an immigrant and all dependants, if any, may be granted landing for reasons of public policy or compassionate or humanitarian considerations if the immigrant is a member of a class of immigrants prescribed by regulations made under paragraph 114(1)(e) and the immigrant meets the landing requirements prescribed under that paragraph.
…
77. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that
(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or
(b) the member of the family class does not meet the requirements of this Act or the regulations,
and the person who sponsored the application shall be informed of the reasons for the refusal.
77. (2) Notwithstanding subsection (1), where an application for landing made by a member of the family class is refused on the grounds that the member of the family class is a person described in any of paragraphs 19(1)(c.1) to (g), (k) and (l), the person who sponsored the application shall be informed of those grounds but not of the reasons on which those grounds are based.
77. (3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
…
108. (1) The Minister shall consult with the provinces respecting the measures to be undertaken to facilitate the adaptation of permanent residents to Canadian society and the pattern of immigrant settlement in Canada in relation to regional demographic requirements.
108. (2) The Minister, with the approval of the Governor in Council, may enter into an agreement with any province or group of provinces for the purpose of facilitating the formulation, coordination and implementation of immigration policies and programs.
…
114. (1) The Governor in Council may make regulations
…
(c) prescribing, for the purposes of subsection 6(2), classes of persons whose applications for landing may be sponsored by Canadian citizens and permanent residents;
…
(f) respecting the method of selecting immigrants, including regulations specifying, with respect to any prescribed class of immigrants, whether immigrants of that class, or immigrants of that class and any or all of their dependants, as the case may be, shall be selected
(i) on the basis of when their applications were made and duly completed in accordance with the regulations,
(ii) on a comparative basis, in relation to applications received during any specific period, to determine who will be best able to become successfully established in Canada, or
(iii) on any other basis;
…
(y) prescribing the manner in which immigration officers shall carry out their duties and exercise their powers, whether in Canada or elsewhere;
…
(ii.1) defining any term or expression that by this Act is to be defined by the regulations;
(ii.2) prescribing the classes of immigrants in respect of which landing shall be granted subject to terms and conditions, and prescribing those terms and conditions;
…
(ii.5) specifying what constitutes a duly completed application for the purposes of this Act and the regulations;
…
114. (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
…
115. The Minister may, by order,
(a) establish such forms as the Minister deems necessary for the purposes of the administration of this Act, other than forms relating to claims, appeals and applications before the Refugee Division or the Appeal Division…
118. (1) Where any person or organization gives an undertaking to the Minister to assist any immigrant in becoming successfully established in Canada, that undertaking may by notice in writing be assigned by the Minister to Her Majesty in right of any province.
118. (2) Any payments of a prescribed nature made directly or indirectly to an immigrant that result from a breach of an undertaking referred to in subsection (1) may be recovered from the person or organization that gave the under- taking in any court of competent jurisdiction as a debt due to Her Majesty in right of Canada or in right of any province to which the undertaking is assigned.
118. (3) All costs incurred by Her Majesty for which any person is liable under this Act and all fines, court costs and administration fees imposed on or finally assessed against any person under this Act may be recovered as a debt due to Her Majesty.
118. (4) All costs incurred by Her Majesty in right of Canada or in right of any province for which any person or organization is liable under this Act and all fines, court costs and administration fees imposed on or finally assessed against any person or organization under this Act shall, until they are paid, be a charge on the property of the person or organization and may be enforced or collected by the seizure and sale of such property or a portion thereof under the warrant or order of a superior, county or district court.
Relevant Provisions of the Immigration Regulations, 1978, S.O.R./78-172
2. (1) In these Regulations,
…
“member of the family class”, with respect to any sponsor, means
(a) the sponsor’s spouse,
(b) the sponsor’s dependant son or dependant daughter,
(c) the sponsor’s father or mother,
(d) the sponsor’s grandfather or grandmother,
(e) the sponsor’s brother, sister, nephew, niece, grandson or granddaughter, who is an orphan and is under 19 years of age and unmarried,
(f) the sponsor’s fiancée,
(g) any child under 19 years of age whom the sponsor intends to adopt and who is
(i) an orphan,
(ii) an abandoned child whose parents cannot be identified,
(iii) a child born outside of marriage who has been placed with a child welfare authority for adoption,
(iv) a child whose parents are separated and who has been placed with a child welfare authority for adoption, or
(v) a child one of whose parents is deceased and who has been placed with a child welfare authority for adoption, or
(h) one relative regardless of the age or relationship of the relative to the sponsor, where the sponsor does not have a spouse, son, daughter, father, mother, grandfather, grandmother, brother, sister, uncle, aunt, nephew or niece
(i) who is a Canadian citizen,
(ii) who is a permanent resident, or
(iii) whose application for landing the sponsor may otherwise sponsor;
…
“sponsor” means a person who
(a) is a Canadian citizen or permanent resident who is at least 19 years of age, sponsors an application for landing of a member of the family class and satisfies an immigration officer that the person will reside in Canada exclusively and without interruption beginning on the date of giving an undertaking in respect of the application for landing until the member is granted landing in Canada, and that the person will reside in Canada after that time, or
(b) is a Canadian citizen who is at least 19 years of age, sponsors an application for landing of a member of the family class referred to in subsection 6(3) and satisfies a visa officer that, at the time of giving an under- taking in respect of the application for landing, the person resided exclusively outside Canada and that the person will reside in Canada when the member is granted landing in Canada;
…
“undertaking” means,
(a) for the purposes of sections 5 to 6,
(i) where the Minister has, pursuant to section 108 of the Act, entered into an agreement with the government of the province in which the member of the family class intends to reside, which province is responsible for the determination and application of financial criteria for sponsorship and the administration of sponsorship undertakings, an undertaking in writing that is required by the laws of that province and that is given to that government by a person residing in that province, to assist the member of the family class and the member's dependants in becoming successfully established in Canada for a period of up to 10 years, as determined by an official designated by that government or by the laws of that province, or
(ii) in any other case, an undertaking in writing given to the Minister by a person to provide for the essential needs of the member of the family class and the member's dependants for a period of 10 years and to ensure that the member and the member's dependants are not dependent on any payment of a pre- scribed nature referred to in Schedule VI, and
(b) for the purposes of section 7.1, an undertaking in writing given to the Minister to make provision for the lodging, care and maintenance of and resettlement assistance for a Convention refugee seeking resettlement, and their accompanying dependants, for a period determined in accordance with paragraph 7.1(2)(a);
…
2.02. Section 6 shall apply as it read immediately before April 1, 1997 in respect of the issuance of an immigrant visa to a member of the family class if a sponsor provides the Minister with an undertaking in respect of that member, in form IMM 1344 in the version of that form as it read immediately before April 1, 1997, not later than the close of business on April 18, 1997.
4. (1) Subject to subsections (2) and (3), the family class is hereby prescribed as a class of immigrants for the purposes of subsection 6(1) of the Act.
4. (2) The family class does not include a spouse or son or daughter referred to in
(a) subparagraph 6(5)(a)(i) or (ii) in respect of whom a visa officer did not make a determination under paragraph 6(1)(a);
(b) subparagraph 9(2)(a)(i) or (ii) in respect of whom a visa officer did not make a determination under paragraph 9(1)(a); or
(c) subparagraph 10(4)(a)(i) or (ii) in respect of whom a visa officer did not make a determination under paragraph 10(1)(a) or (1.1)(b).
4. (3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
4. (3.1) The family class does not include a spouse who is less than 16 years of age.
4. (4) The family class does not include a person who is adopted, or is intended to be adopted, otherwise than in accordance with the provisions of the Convention on Protection of Children and Co-operation in respect of Inter- country Adoption that was signed at The Hague on May 29, 1993 and that came into force on May 1, 1995, where the province of intended destination and the country of origin have implemented that Convention.
5. (1) For the purposes of paragraph (2)(i) and subsections (3) to (5), “spouse” includes a person of the opposite sex who is cohabiting with the sponsor in a conjugal relationship at the time the sponsor gives an undertaking, having cohabited with the sponsor for a continuous period of at least one year.
5. (2) Subject to subsections (6) and (7) and section 5.1, a person who is a Canadian citizen or permanent resident and who meets the following requirements is authorized to sponsor the application for landing of any member of the family class:
(a) the person is a sponsor within the meaning of paragraph (a) or (b) of the definition “sponsor” in subsection 2(1);
(b) the person gives an undertaking;
(c) in the case of a permanent resident, the person is not subject to a removal order or a conditional removal order, other than a removal order that is of no effect because the person has, after the date of the order, been granted lawful permission to establish permanent residence in Canada;
(d) the person is not confined in any penitentiary, jail, reformatory or prison;
(e) the person is not a bankrupt within the meaning of section 2 of the Bankruptcy and Insolvency Act;
(f) subject to subsection (5) and except where the member of the family class to be sponsored is a member referred to in subsection 6(3), for the 12-month period preceding the date of giving the undertaking, the person's gross Canadian income less all payments made or due on account of financial obligations is equal to or greater than the applicable amount of the Low Income Cut-off (LICO) referred to in Schedule IV, which amount shall be determined in accordance with subsection (3);
(g) at the date of giving the undertaking, the person is not in default in respect of any obligations that the person has assumed under any other undertaking given or co-signed with respect to any other person and the other person's dependants or in respect of a loan made under section 45;
(h) where the member of the family class to be sponsored is at least 19 years of age, or is less than 19 years of age and is the person's spouse or fiancée, the person has entered into a written agreement with the member to the effect that
(i) the person undertakes to provide for the essential needs of the member and the member's accompanying dependants for a period of 10 years,
(ii) the person declares that their financial obligations do not prevent them from honouring their agreement with the member and their undertaking to the Minister in respect of the member's application for landing, and
(iii) the member undertakes to make every reasonable effort to provide for the member's essential needs and those of the member's accompanying dependants; and
(i) if the person's spouse has co-signed the undertaking referred to in paragraph (b), the spouse has also entered into the agreement referred to in paragraph (h).
5. (3) For the purposes of determining the applicable amount of Low Income Cut-off (LICO) for a person referred to in paragraph (2)(f),
(a) the size of the person's family unit is that of a family unit comprising the person, the person's dependants, the member of the family class to be sponsored by the person and all dependants of the member, whether those dependants are accompanying dependants or not, and all other persons and their dependants in respect of whom
(i) the person has given or co-signed an undertaking that is still in effect, and
(ii) the person's spouse, where the person's spouse has co-signed the undertaking referred to in paragraph (2)(b), has given or co-signed another undertaking that is still in effect; and
(b) the size of the area of residence is the size of the area where the person resides.
5. (4) The spouse of a sponsor, within the meaning of paragraph (a) of the definition “sponsor” in subsection 2(1), may co-sign the undertaking given by the sponsor such that the sponsor and the sponsor’s spouse are jointly and severally liable for the obligations contained in the undertaking, if the spouse meets the requirements set out in that paragraph, other than the requirement to sponsor an application for landing of a member of the family class, and meets the requirements set out in paragraphs 2(c) to (e) and (g).
5. (5) Where the spouse of a sponsor has co-signed an undertaking in accordance with subsection (4), the gross Canadian income and the payments made or due on account of financial obligations of the spouse for the 12-month period preceding the date of the undertaking are included in the gross Canadian income and the payments made or due on account of financial obligations of the sponsor that are referred to in paragraph (2)(f), respectively.
5. (6) Where charges have been laid against a person who is a permanent resident and who has given or co-signed an undertaking in respect of the application for landing of a member of the family class alleging that the person has committed one of the following offences, an immigration officer shall not make a determination respecting the authorization to sponsor that application for landing until the courts have made a final determination in respect of the charges:
(a) an indictable offence, or an offence, other than an offence designated as a contravention under the Contraventions Act, for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than 10 years; or
(b) an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of five years or more may be imposed.
5. (7) Where an immigration officer has reasonable grounds to believe that a person who is a permanent resident and who has given or co-signed an undertaking in respect of the application for landing of a member of the family class is the subject of a report referred to in subsection 27(1) of the Act, the immigration officer shall not make a determination respecting the authorization to sponsor that application until it has been finally determined whether the person is authorized to remain in Canada.
…
6. (1) Subject to subsections (1.1), (3.1), (3.2), (4), (5) and (6), where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the member and the member's accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) the sponsor and, if the sponsor's spouse has co-signed the undertaking referred to in paragraph 5(2)(b), the sponsor's spouse meet the applicable requirements set out in section 5, subject to section 5.1 in the case of an undertaking in respect of a member of the family class who intends to reside in the Province of Quebec;
(b.1) where a visa officer has received information indicating that the sponsor is no longer able to fulfill the undertaking, the visa officer, after recalculating or having an immigration officer recalculate the amount of the sponsor's gross Canadian income less financial obligations, as described in paragraph 5(2)(f), for the 12-month period preceding the date on which the sponsored member of the family class and the member's dependants meet the requirements of the Act and these Regulations referred to in paragraph (a), has determined that that amount is equal to or greater than the amount of the Low Income Cut-off (LICO) referred to in paragraph 5(2)(f) for the 12-month period preceding that date, or has accepted the determination of an immigration officer to that effect;
(c) subject to paragraph (c.1), in the case of any of the following members of the family class who is a child or orphan, the child welfare authority of the province in which the child or orphan is to reside has stated in writing that it has no objection to the proposed arrangements for the reception and care of the child or orphan, namely,
(i) a child described in paragraph (b) of the definition “member of the family class” in subsection 2(1) who has been adopted outside Canada by the sponsor while the sponsor was residing in Canada,
(ii) an orphan described in paragraph (e) of the definition “member of the family class” in subsection 2(1), or
(iii) a child described in paragraph (g) of the definition “member of the family class” in subsection 2(1);
(c.1) in the case of a child described in paragraph (b) of the definition “member of the family class” in subsection 2(1) adopted outside Canada by the sponsor while the sponsor was residing in Canada or in the case of a child described in paragraph (g) of that definition, the province of intended destination and the country of origin have implemented the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption that was signed at The Hague on May 29, 1993 and that came into force on May 1, 1995, and the central authorities of that province and of that country have approved the adoption;
(d) in the case of a fiancée,
(i) the sponsor and the fianceé intend to reside together permanently after being married and have not become engaged primarily for the purpose of the fianceé gaining admission to Canada as a member of the family class,
(ii) there are no legal impediments to the proposed marriage of the sponsor and the fianceé under the laws of the province in which they intend to reside, and
(iii) the sponsor and the fianceé have agreed to marry each other within ninety days after the admission of the fianceé;
(e) in the case of a person described in paragraph (b) of the definition “member of the family class” in subsection 2(1), or a dependent of a member of the family class, who has been adopted, the person or dependant was adopted before having attained 19 years of age and was not adopted for the purpose of gaining admission to Canada of the person or dependent, or gaining the admission to Canada of any of the person’s or dependant’s relatives.
6. (1.01) Paragraph (1)(e) is retroactive and applies in respect of all applications for landing made by members of the family class pending on April 15, 1994.
6. (1.1) Where a visa officer does not issue an immigrant visa as an accompanying dependant to a son or daughter of a member of the family class referred to in subsection (1), or of the spouse of that member of the family class, the visa officer shall not issue an immigrant visa as an accompanying dependant to a son or daughter of that son or daughter.
6. (2) [Revoked]
6. (3) Paragraph (1)(b.1) does not apply where the sponsored member of the family class is a person who
(a) is the sponsor's spouse and does not have any dependent sons or dependent daughters;
(b) is the sponsor's spouse and has dependent sons or dependent daughters, each of whom, at the time the sponsor gives the undertaking referred to in paragraph 5(2)(b),
(i) is less than 19 years of age and unmarried, and
(ii) does not have children; or
(c) is the sponsor's dependent son or dependent daughter and, at the time the sponsor gives the undertaking referred to in paragraph 5(2)(b),
(i) is less than 19 years of age and unmarried, and
(ii) does not have children.
6. (3.1) Paragraph (1)(b.1) does not apply in the case of an undertaking in respect of a member of the family class who intends to reside in the Province of Quebec.
6. (3.2) Subject to subsection (3.3), a visa officer shall not issue an immigrant visa to a member of the family class who intends to reside in the Province of Quebec, unless the Minister responsible for the administration of the laws of that Province in respect of immigration is of the opinion that the sponsor of the member will be able to fulfill the undertaking referred to in paragraph 5(2)(b).
6. (3.3) Subsection (3.2) does not apply to a person referred to in paragraph (3)(a), (b) or (c).
6. (3.4) Where charges have been laid against a person who is a permanent resident and who has given or co-signed an undertaking in respect of the application for landing of a member of the family class alleging that the person has committed one of the following offences, a visa officer shall not make a determination respecting the member's application for an immigrant visa until the courts have made a final determination in respect of the charges:
(a) an indictable offence, or an offence, other than an offence designated as a contravention under the Contraventions Act, for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than 10 years; or
(b) an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of five years or more may be imposed.
6. (3.5) Where a visa officer has reasonable grounds to believe that a person who is a permanent resident and who has given or co-signed an undertaking in respect of the application for landing of a member of the family class is the subject of a report referred to in subsection 27(1) of the Act, the visa officer shall not make a determination respecting the member's application for an immigrant visa until it has been finally determined whether the person is authorized to remain in Canada.
6. (4) [Revoked]
6. (5) For the purposes of subsection (1), a visa officer
(a) is not required to determine whether a dependant is a member of an inadmissible class if the dependant is
(i) the spouse of the applicant, where, on the basis of written evidence, an immigration officer is satisfied that the spouse is separated from and no longer cohabiting with the applicant or,
(ii) a son or daughter of the applicant, or of the spouse of that applicant, where an immigration officer is satisfied that custody or guardianship of the son or daughter has been legally vested in
(A) the spouse of the applicant, referred to in subparagraph (i), or
(B) a former spouse of the applicant, and
(b) shall not issue an immigrant visa to a dependant referred to in paragraph (a) as an accompanying dependant.
6. (6) A visa officer shall not issue an immigrant visa to a dependent son or dependent daughter referred to in paragraph (b) of the definition “member of the family class” in subsection 2(1) or a dependent son or dependent daughter of a member of the family class unless
(a) at the time the application for an immigrant visa is received by an immigration officer, the son or daughter meets the criteria respecting age, and marital or student status set out in the definitions “dependent son” and “dependent daughter” in subsection 2(1); and
(b) at the time the visa is issued, the son or daughter meets the criteria respecting marital or student status set out in those definitions.
6.1. (1) Subject to subsection (3) and section 5.1, for the purposes of subsection 6(2) of the Act, a Canadian citizen or permanent resident who is authorized to sponsor the application for landing of a member of the family class pursuant to section 5 shall do so in writing in the form fixed by the Minister.
6.1. (2) Where a sponsor sponsors an application for landing of a member of the family class described in paragraph (h) of the definition “member of the family class” in subsection 2(1) and that member is unable to meet the requirements of the Act and these Regulations or dies, the sponsor may sponsor the application for landing of another member of the family class described in that paragraph.
6.1. (3) A person who is adopted outside Canada and whose adoption is subsequently revoked by a foreign authority may only sponsor an application for landing made by a member of the family class if an immigration officer is satisfied that the revocation of the adoption was not obtained for the purpose of sponsoring an application for landing made by that member.
…
41. (1) Where an immigration officer refuses to approve an application for landing that has been made by a member of the family class and has been sponsored, the immigration officer shall,
(a) where the refusal to approve the application is made on the grounds referred to in paragraph 79(1)(a) of the Act, provide to the sponsor, or
(b) where the refusal to approve the application is made on the grounds referred to in paragraph 79(1)(b) of the Act, provide to the member of the family class
a summary of the information on which his reason for refusal is based.
41. (1.1) Notwithstanding subsection (1), where the refusal to approve an application is made pursuant to paragraph 79(1)(b) of the Act on the grounds that the member of the family class is a person described in any of paragraphs 19(1)(d) to (g) of the Act, the immigration officer shall inform the member of the family class of those grounds only.
41. (2) Where an application for landing made by a member of the family class has been refused pursuant to subsection 77(1) of the Act, an immigration officer shall inform the sponsor in writing that, if he is a Canadian citizen or permanent resident, he has a right of appeal to the Appeal Division pursuant to subsection 77(3) of the Act.
…
56. For the purposes of subsection 118(2) of the Act, payments that result from a breach of an undertaking and that are made directly or indirectly to an immigrant under an item described in column I of Schedule VI are payments that may be recovered from the person or organization that gave the undertaking as a debt due to Her Majesty in right of Canada or in right of any province to which the undertaking is assigned.
…
Schedule IV:
1. The Low Income Cut-off (LICO) is the applicable figure from the document entitled Low Income Cut-offs (LICOs) published annually by Statistics Canada under the authority of the Statistics Act.
…
Schedule VI:
…
10. (a) as assistance under the General Welfare Assistance Act (R.S.O., 1990, c. G.6); or
(b) as benefits under the Family Benefits Act (R.S.O., 1990, c. F.2)
(c) as basic financial assistance under section 5 of the Ontario Works Act, 1997, (S.O. 1997, c. 25, Sch. A)
(d) as income support under section 3 of the Ontario Disability Support Program Act, 1997, (S.O. 1997, c. 25, Sch. B)
Relevant Provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27:
3. (1) The objectives of this Act with respect to immigration are
…
(d) to see that families are reunited in Canada;
(e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;
…
(j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.
…
3. (3) This Act is to be construed and applied in a manner that
…
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;
…
(f) complies with international human rights instruments to which Canada is signatory.
...
6. (1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.
...
8. (1) The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of any province for the purposes of this Act. The Minister must publish, once a year, a list of the federal-provincial agreements that are in force.
...
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.
11. (2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.
12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
12. (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
12. (3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada's humanitarian tradition with respect to the displaced and the persecuted.
13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.
13. (2) A group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province, and an unincorporated organization or association under federal or provincial law, or any combination of them may, subject to the regulations, sponsor a Convention refugee or a person in similar circumstances.
13. (3) An undertaking relating to sponsorship is binding on the person who gives it.
13. (4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(e) in accordance with any instructions that the Minister may make.
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
14. (2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals including the classes referred to in section 12, and may include provisions respecting
(a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national's ability to become economically established in Canada;
(b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;
(c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded;
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;
(e) sponsorships, undertakings, and penalties for failure to comply with undertakings;
(f) deposits or guarantees of the performance of obligations under this Act that are to be given by any person to the Minister; and
(g) any matter for which a recommendation to the Minister or a decision may or must be made by a designated person, institution or organization with respect to a foreign national or sponsor.
...
25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
...
69. (1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any.
69. (2) In the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in subsection 64(1), if the Immigration Appeal Division is satisfied that, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, it may make and may stay the applicable removal order, or dismiss the appeal, despite being satisfied of a matter set out in paragraph 67(1)(a) or (b).
69. (3) If the Immigration Appeal Division dismisses an appeal made under subsection 63(4) and the permanent resident is in Canada, it shall make a removal order.
...
145. (1) The following amounts are debts due to Her Majesty in right of Canada payable on demand:
(a) a debt incurred by Her Majesty for which any person is liable under this Act;
(b) an amount that a person has agreed to pay as a deposit or guarantee of performance of an obligation under this Act;
(c) the costs incurred in removing a prescribed foreign national from Canada;
(d) an amount that is ordered to be paid under section 147 on account of an unpaid liability; and
(e) an amount referred to in paragraph 148(1)(g).
145. (2) Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights.
145. (3) A debt may be recovered at any time.
146. (1) An amount or part of an amount payable under this Act that has not been paid may be certified by the Minister
(a) without delay, if the Minister is of the opinion that the person liable for that amount is attempting to avoid payment; and
(b) in any other case, on the expiration of 30 days after the default.
146. (2) The certificate is to be filed and registered in the Federal Court and, when registered, has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate plus interest to the day of payment.
146. (3) The costs of registering the certificate are recoverable in the same manner as if they had been included in the certificate.
...
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
...
201. The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters.
Relevant Provisions of the Immigration and Refugee Protection Regulations, S.O.R./2002-227
1. (1) The definitions in this subsection apply in the Act and in these Regulations.
“social services” means any social services, …
…
(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, either directly or through publicly-funded agencies.
2. The definitions in this section apply in these Regulations.
…
“officer” means a person designated by the Minister under subsection 6(1) of the Act.
…
6. A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa.
…
116. For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division.
…
119. A decision shall not be made on an application for a permanent resident visa by a member of the family class if the sponsor withdraws their sponsorship application in respect of that member.
120. For the purpose of Part 5,
(a) a permanent resident visa shall not be issued to a foreign national who makes an application as a member of the family class or to their accompanying family members unless a sponsorship undertaking in respect of the foreign national and those family members is in effect; and
(b) a foreign national who makes an application as a member of the family class and their accompanying family members shall not become permanent residents unless a sponsorship undertaking in respect of the foreign national and those family members is in effect and the sponsor who gave that undertaking still meets the requirements of section 133 and, if applicable, section 137.
…
130. (1) Subject to subsection (2), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who
(a) is at least 18 years of age;
(b) resides in Canada; and
(c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10.
130. (2) A sponsor who is a Canadian citizen and does not reside in Canada may sponsor an application referred to in subsection (1) by their spouse, common-law partner, conjugal partner or dependent child who has no dependent children if the sponsor will reside in Canada when the applicant becomes a permanent resident.
131. The sponsor’s undertaking shall be given
(a) to the Minister; or
(b) if the sponsorship resides in a province that has entered into an agreement referred to in subsection 8(1) of the Act that enables the province to determine and apply financial criteria with respect to sponsorship and the administration of sponsorship undertakings, to the competent authority of the province.
132. (1) Subject to subsection (2), the sponsor’s undertaking obliges the sponsor to reimburse Her Majesty in right of Canada or a province for every benefit provided as social assistance to or on behalf of the sponsored foreign national and their family members during the period
(a) beginning
(i) if the foreign national enters Canada with a temporary resident permit, on the day of that entry,
(ii) if the foreign national is in Canada, on the day on which the foreign national obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and
(iii) in any other case, on the day on which the foreign national becomes a permanent resident; and
(b) ending
(i) if the foreign national is the sponsor’s spouse, common-law partner or conjugal partner, on the last day of the period of three years following the day on which the foreign national becomes a permanent resident,
(ii) if the foreign national is a dependent child of the sponsor or of the sponsor’s spouse, common-law partner or conjugal partner or is a person referred to in paragraph 117(1)(g), and is less than 22 years of age when they become a permanent resident, on the earlier of
(A) the last day of the period of 10 years following the day on which the foreign national becomes a permanent resident, and
(B) the day on which the foreign national reaches 25 years of age,
(iii) if the foreign national is a dependent child of the sponsor or of the sponsor’s spouse, common-law partner or conjugal partner and is 22 years of age or older when they become a permanent resident, on the last day of the period of three years following the day on which the foreign national becomes a permanent resident; and
(iv) if the foreign national is a person other than a person referred to in subparagraph (i), (ii) or (iii), on the last day of the period of 10 years following the day on which the foreign national becomes a permanent resident.
132. (2) In the case of an undertaking to a competent authority of a province referred to in paragraph 131(b), the period referred to in subsection (1) shall end not later than
(a) if the foreign national is a dependent child and is less than 22 years of age on the day on which they become a permanent resident, the later of
(i) the day on which they reach 22 years of age, and
(ii) the last day of the period of 10 years following the day they become a permanent resident; and
(b) if the foreign national is a person other than a dependent child and is less than 22 years of age on the day on which they become a permanent resident, on the last day of the period of 10 years following the day on which the foreign national becomes a permanent resident.
132. (3) Notwithstanding subsection (2), the period referred to in subsection (1) shall end on the day provided for by the laws of the province if that day is earlier than the later of the days referred to in subsection (2).
132. (4) Subject to paragraph 137(c), if the person is to be sponsored as a member of the family class or of the spouse or common-law partner in Canada class and is at least 22 years of age, or is less than 22 years of age and is the sponsor’s spouse, common-law partner or conjugal partner, the sponsor, the co-signer, if any, and the person must, before the sponsorship application is approved, enter into a written agreement that includes
(a) a statement by the sponsor and the co-signer, if any, that they will provide for the basic requirements of the person and their accompanying family members during the applicable period referred to in subsection (1);
(b) a declaration by the sponsor and the co-signer, if any, that their financial obligations do not prevent them from honouring their agreement with the person and their undertaking to the Minister in respect of the person’s application; and
(c) a statement by the person that they will make every reasonable effort to provide for their own basic requirements as well as those of their accompanying family members.
132. (5) Subject to paragraph 137(c), the sponsor’s undertaking may be co-signed by the spouse or common-law partner of the sponsor if the spouse or common-law partner meets the requirements set out in subsection 130(1), except paragraph 130(1)(c), and those set out in subsection 133(1), except paragraph 133(1)(a), and, in that case,
(a) the sponsor’s income shall be calculated in accordance with paragraph 134(1)(b) or (c); and
(b) the co-signing spouse or common-law partner is jointly and severally or solidarily bound with the sponsor to perform the obligations in the undertaking and is jointly and severally or solidarily liable with the sponsor for any breach of those obligations.
133. (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
(a) is a sponsor as described in section 130;
(b) intends to fulfil the obligations in the sponsorship undertaking;
(c) is not subject to a removal order;
(d) is not detained in any penitentiary, jail, reformatory or prison;
(e) has not been convicted under the Criminal Code of
(i) an offence of a sexual nature, or an attempt or a threat to commit such an offence, against any person, or
(ii) an offence that results in bodily harm, as defined in section 2 of the Criminal Code, to any of the following persons or an attempt or a threat to commit such an offence against any of the following persons, namely,
(A) a relative of the sponsor, including a dependent child or other family member of the sponsor,
(B) a relative of the sponsor's spouse or of the sponsor's common-law partner, including a dependent child or other family member of the sponsor's spouse or of the sponsor's common-law partner, or
(C) the conjugal partner of the sponsor or a relative of that conjugal partner, including a dependent child or other family member of that conjugal partner;
(f) has not been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence referred to in paragraph (e);
(g) subject to paragraph 137(c), is not in default of
(i) any undertaking, or
(ii) any support payment obligations ordered by a court;
(h) is not in default in respect of the repayment of any debt referred to in subsection 145(1) of the Act payable to Her Majesty the Queen in right of Canada;
(i) subject to paragraph 137(c), is not an undischarged bankrupt under the Bankruptcy and Insolvency Act;
(j) if the sponsor resides
(i) in a province other than a province referred to in paragraph 131(b), has a total income that is at least equal to the minimum necessary income, and
(ii) in a province referred to in paragraph 131(b), is able, within the meaning of the laws of that province and as determined by the competent authority of that province, to fulfil the undertaking referred to in that paragraph; and
(k) is not in receipt of social assistance for a reason other than disability.
133. (2) Despite paragraph (1)(e), a sponsorship application may not be refused
(a) on the basis of a conviction in Canada in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal; or
(b) if a period of five years or more has elapsed since the completion of the sentence imposed for an offence in Canada referred to in paragraph (l)(e).
133. (3) Despite paragraph (1)(f), a sponsorship application may not be refused
(a) on the basis of a conviction outside Canada in respect of which there has been a final determination of an acquittal; or
(b) if a period of five years or more has elapsed since the completion of the sentence imposed for an offence outside Canada referred to in that paragraph and the sponsor has demonstrated that they have been rehabilitated.
133. (4) Paragraph (1)(j) does not apply if the sponsored person is
(a) the sponsor's spouse, common-law partner or conjugal partner and has no dependent children;
(b) the sponsor's spouse, common-law partner or conjugal partner and has a dependent child who has no dependent children; or
(c) a dependent child of the sponsor who has no dependent children or a person referred to in paragraph 117(1)(g).
133. (5) A person who is adopted outside Canada and whose adoption is subsequently revoked by a foreign authority or by a court in Canada of competent jurisdiction may sponsor an application for a permanent resident visa that is made by a member of the family class only if the revocation of the adoption was not obtained for the purpose of sponsoring that application.
134. (1) For the purpose of subparagraph 133(1)(j)(i), the total income of the sponsor shall be determined in accordance with the following rules:
(a) the sponsor's income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the date of filing of the sponsorship application;
(b) if the sponsor produces a document referred to in paragraph (a), the sponsor's income is the income earned as reported in that document less the amounts referred to in subparagraphs (c)(i) to (v);
(c) if the sponsor does not produce a document referred to in paragraph (a), or if the sponsor's income as calculated under paragraph (b) is less than their minimum necessary income, the sponsor's Canadian income for the 12-month period preceding the date of filing of the sponsorship application is the income earned by the sponsor not including
(i) any provincial allowance received by the sponsor for a program of instruction or training,
(ii) any social assistance received by the sponsor from a province,
(iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program,
(iv) any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits,
(v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act, and
(vi) any Canada child tax benefit paid to the sponsor under the Income Tax Act; and
(d) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (a) to (c), with any modifications that the circumstances require, shall be included in the calculation of the sponsor's income.
134. (2) If an officer receives information indicating that the sponsor is no longer able to fulfil the sponsorship undertaking, the Canadian income of the sponsor shall be calculated in accordance with paragraph (1)(c) on the basis of the 12-month period preceding the day the officer receives that information rather than the 12-month period referred to in that paragraph.
135. For the purpose of subparagraph 133(1)(g)(i), the default of a sponsorship undertaking
(a) begins when
(i) a government makes a payment that the sponsor has in the undertaking promised to repay, or
(ii) an obligation set out in the undertaking is breached; and
(b) ends, as the case may be, when
(i) the sponsor reimburses the government concerned, in full or in accordance with an agreement with that government, for amounts paid by it, or
(ii) the sponsor ceases to be in breach of the obligation set out in the undertaking.
136. (1) If any of the following proceedings are brought against a sponsor or co-signer, the sponsorship application shall not be processed until there has been a final determination of the proceeding:
(a) an application for revocation of citizenship under the Citizenship Act;
(b) a report prepared under subsection 44(1) of the Act; or
(c) a charge alleging the commission of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
136. (2) If a sponsor or co-signer has made an appeal under subsection 63(4) of the Act, the sponsorship application shall not be processed until the period for making the appeal has expired or there has been a final determination of the appeal.
...
337. (1) Subject to subsections (2) and (3), a sponsor who made an undertaking within the meaning of paragraph (b) of the definition "undertaking" in subsection 2(1) of the former Regulations, or of the definition "undertaking" in subsection 1(1) of the Humanitarian Designated Classes Regulations, and in respect of whom an immigration officer was satisfied that the requirements of paragraph 7.1(2)(d) or 5(2)(d) of those Regulations, respectively, were met is deemed to be a sponsor whose application has been approved by an officer under section 154.
337. (2) Subsection (1) does not apply to a sponsor who requests that a person be added to their undertaking.
337. (3) Subsection (1) does not apply to a sponsor who is ineligible to be a party to a sponsorship under section 156.
...
348. (1) On the coming into force of this section, any application for leave to commence an application for judicial review and any application for judicial review or appeal from an application that was brought under the former Act that is pending before the Federal Court or the Supreme Court of Canada is deemed to have been commenced under Division 8 of Part 1 of the Immigration and Refugee Protection Act and is governed by the provisions of that Division and section 87.
348. (2) On the coming into force of this section, any application under subsection 82.1(10) of the former Act that is pending before the Federal Court is deemed to be an application under section 87 of the Immigration and Refugee Protection Act.
…
348. (4) Any judicial review proceeding brought in respect of any decision or order made or any matter arising under the former Act after the coming into force of this section is governed by Division 8 of Part 1 and section 87 of the Immigration and Refugee Protection Act.
...
351. (1) Subject to subsection (2), an undertaking referred to in section 118 of the former Act that was given before the day on which this section comes into force is governed by the Immigration and Refugee Protection Act.
351. (2) Payments that are made to or for the benefit of a person as social assistance or as financial assistance in the form of funds from a government resettlement assistance program referred to in subparagraph 139(1)(f)(ii) as a result of the breach of an undertaking, within the meaning of subparagraph (a)(ii) or paragraph (b) of the definition “undertaking” in subsection 2(1) of the former Regulations or of the definition “undertaking” in subsection 1(1) of the Humanitarian Designated Classes Regulations, that was given before the day on which this section comes into force, may be recovered from the person or organization that gave the undertaking as a debt to Her Majesty the Queen in right of Canada or in right of a province.
351. (3) For greater certainty, the duration of an undertaking referred to in section 118 of the former Act that was given to the Minister before the day on which this section comes into force is not affected by these Regulations.
Undertaking signed by Rania El-Murr, dated May 18, 1995, and Pritpal Mavi, dated March 29, 1996:
I have read and understand the warning on the back of this form.
I will provide or assist in providing (as required) adequate lodging, care and maintenance for my family members named on this undertaking for the period determined by an immigration officer. I understand that this period may be for as long as ten years.
I will provide financial assistance to the family member(s) named on this undertaking so that they will not require financial assistance from any federal or provincial assistance program.
Undertakings signed by Oleg Grankin, dated August 22, 1999, Hamid Zebaradami, dated September 18, 1999, and Maria Cristina Jatuff de Altamirano, dated March 7, 2000:
Purpose
The undertaking makes clear the obligations of the Sponsor (and the Sponsor’s spouse) to the Minister. The undertaking also sets out the consequences for the Sponsor (and the Sponsor’s spouse) if they fail to meet the obligations they assumed in it.
Obligations of the Sponsor and the Sponsor’s Spouse (If Co-Signer)
The sponsor (and the Sponsor’s spouse) promise the Minister of Citizenship and Immigration to provide for the essential needs of the sponsored family members and any dependants that accompany the family member to Canada, if they are not self-supporting.
The obligation to provide for essential needs continues for the length of the undertaking.
Essential needs include shelter, food, clothing and other goods or services necessary for day to day living. Essential needs also include dental care, eye care and other health care not provided by the public health care available to all Canadian citizens and permanent residents.
The obligation to provide for essential needs may be met by the Sponsor alone, the spouse alone, or by both of them together.
The money, goods or services provided by the Sponsor and the Sponsor’s spouse must be sufficient for the sponsored people to live in Canada. The family class member and their dependents in Canada should not have to rely on government assistance for their day to day living. This means that they will not need to apply for social assistance or other benefits under government programs that provide for the essential needs of Canadian residents who cannot support themselves. These programs are described in Schedule VI of the Immigration Act Regulations. This Schedule may change from time to time.
The Sponsor (and the Sponsor’s spouse) assume these obligations so that the family class member and accompanying dependents can be admitted to Canada as permanent residents. These people are admitted solely on the basis of their relationship to the Sponsor; they do not have to be tested for their ability to become successfully established in Canada. The Sponsor (and the Sponsor’s spouse) understand that in return, they are responsible for preventing the family member and any accompanying dependents from becoming dependent on public social assistance programs.
Length of Undertaking
The undertaking lasts 10 years. It begins on the date that the sponsored family class member and any accompanying dependants are granted permanent residence in Canada.
The time period and obligations set out in this undertaking will not be changed. They continue even if the circumstances of the Sponsor (and the Sponsor’s spouse) change after the date the sponsored family class member and accompanying dependents are granted permanent residence in Canada. Three examples of a change in circumstances are where the Sponsor has less income because he or she has had to change jobs, or has chosen to leave a job in order to go to school, or where the Sponsor and his/her spouse divorce.
Assignment
The Minister may assign this undertaking to a province. The consequences of assignment are described in the next section.
Consequences of Default
The Sponsor (and the Sponsor’s spouse) are in default of this undertaking if they do not provide for the essential needs of the family member or any dependent, and the family class member or a dependent received benefits under a government program described in Schedule VI. They continue to be in default until the Sponsor (or the Sponsor’s spouse) has repaid in full the amount of the benefits received or has made arrangements for repayment that are satisfactory to social assistance authorities in the Sponsor’s province or municipality of residence.
All amounts paid to the family class member or any dependent under a government program described in Schedule VI become a debt owed by the Sponsor (and the Sponsor’s spouse) to the Minister. As a result:
The Minister has a right of legal action in a court of law for the debt against the Sponsor alone, the Sponsor’s spouse (if Co-signer) or against both of them.
The Minister may take other actions to recover the debt from the Sponsor or the Sponsor’s spouse (if Co-signer).
The Minister may choose not to take action to recover money from a Sponsor or a Sponsor’s spouse (if Co-signer) who has defaulted in a situation of abuse or in other appropriate circumstances. The decision of the Minister not to act at a particular time does not cancel the debt, which may be recovered by the Minister when circumstances have changed.
If the Minister has assigned the undertaking to a province, the effect is the same as if the Sponsor and the Sponsor’s spouse had given the undertaking to a provincial official. In this case, all amounts paid out to the family class member or any dependent under a government program described in Schedule VI become a debt owed by the Sponsor and the Sponsor’s spouse to the province and may be recovered from the Sponsor or the Sponsor’s spouse under provincial law.
There are consequences for future undertakings if a Sponsor or the Sponsor’s spouse default on any sponsorship undertaking. This holds true for both this undertaking and any past undertakings were the Sponsor and his spouse have not satisfactorily paid back their debts. If this is the case, neither the Sponsor nor the Sponsor’s spouse is allowed to sponsor or to co-sign the application of another family class member as a permanent resident to Canada.
Undertakings signed by Homa Vossoughi, dated April 17, 2001, and Nedzad Dzihic, dated February 11, 2002:
APPLIES TO RESIDENTS OF All PROVINCES/TERRITORIES, EXCEPT QUEBEC
I promise the Minister of Citizenship and Immigration to provide for the essential needs of the sponsored relative and their dependents who accompany them to Canada, if they are not self-supporting. I will provide food, clothing, shelter, and other goods or services, including dental care, eye care, and other health needs not provided by public health care. The money, goods or services provided by the sponsor and co-signer must be sufficient for the sponsored people to live in Canada. I understand that these obligations may be met by the sponsor alone, the co-signer alone, or by both of them.
I promise that the sponsored relatives will not need to apply for social assistance/welfare.
I make these promises so that the family members listed on this undertaking can be admitted to Canada as permanent residents. I understand that the family members will be admitted solely on the basis of their relationship to the sponsor and that they do not need to have the financial means to become established in Canada.
I understand that this undertaking is valid for 10 years. It begins on the date the sponsored family members become permanent residents of Canada. It continues for 10 years no matter what may change in my life. For example, if I am divorced, change jobs, become unemployed, and/or go back to school, I will still be responsible to the relatives I am sponsoring or for whom I am co-signing.
If I fail to keep my promise and do not provide for the essential needs of the sponsored relatives or they receive social assistance/welfare while I am responsible for them, I will be in default. I understand that a sponsor and co-signer continues to be in default until the sponsor or co-signer continues to be in default until the sponsor or co-signer has repaid in full the amount of the benefits received or repaid the debt to the satisfaction of the social assistance authorities.
All social assistance/welfare paid to the sponsored relative or any dependent becomes a debt owed by the sponsor and the co-signer to the Minister. As a result, the Minister has a right to take legal action in a court of law against the sponsor, the co-signer or against both of them. The Minister may take other actions to recover the debt from the sponsor or co-signer. The Minister may also assign the debt to a provincial government and that provincial government may then take legal action to collect any amount paid to my relatives. If the Minister has assigned the undertaking to a province, the effect is the same as if the sponsor and co-signer had given the undertaking to a provincial official.
The Minister may choose not to take legal action to recover money from a sponsor or co-signer who has defaulted in a situation of abuse or in other circumstances. The decision of the Minister not to act at a particular time does not cancel the debt. The Minster may recover the debt when circumstances have changed.
There are consequences for future undertakings if a sponsor or co-signer default on any sponsorship undertaking. This holds true for both this Undertaking any past Undertakings where the sponsor or co-signer have not satisfactorily paid back their debts. If this is the case, neither the sponsor nor the co-signer is allowed to sponsor or co-sign another application to sponsor a family class relative.
Undertaking signed by Raymond Hince, dated November 20, 2002:
I undertake to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada, if they are not self-supporting. I promise to provide food, clothing, shelter, fuel, utilities, household supplies, personal requirements and other goods and services, including dental care, eye care, and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.
I promise that the sponsored person and his or her family members will not need to apply for social assistance.
I make these promises so that the sponsored person and his or her family members listed on this undertaking can be admitted to Canada as permanent residents. I understand that the sponsored person and his or her family members will be admitted solely on the basis of their relationship to me (as sponsor) and that they do not need to have the financial means to become established in Canada.
I understand that the validity period of this undertaking begins on the day on which the sponsored person enters Canada with a temporary resident permit or, if already in Canada, on the day on which the sponsored person obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and in any other case on the day on which the sponsored person becomes a permanent resident. The length of the undertaking will vary according to the relationship of the sponsored person and his or her family members to me (as sponsor) and their age and it ends:
A. if the sponsored person is my spouse, common-law partner, or conjugal partner, on the last day of the period of 3 years following the day on which they become a permanent resident;
B. if the sponsored person or family member is a dependent child of the sponsor or of the sponsor’s spouse, common-law partner or conjugal partner and is less than 22 years of age when they become a permanent resident, on the earlier of
· the last day of the period of 10 years following the day on which they become a permanent resident, or
· the day on which they reach 25 years of age;
C. if the sponsored person or family member is a dependent child of the sponsor, or he sponsor’s spouse, common law partner or conjugal partner and is 22 years of age or older when they become a permanent resident, on the last day of the period of 3 years following the day on which they become a permanent resident; and
D. if the sponsored person or family member is a person other than a person referred to above, on the last day of the period of 10 years following the day on which they become a permanent resident.
I understand that the undertaking remains in effect no matter what may change in my life. For example, if I am divorced, change jobs, become unemployed, and/or go back to school, I will still be responsible to the sponsored person and his or her family members I am sponsoring or for whom I am co-signing.
I understand that, pursuant to section 135 of the Regulations to the Immigration and Refugee Protection Act, if I breach any of my sponsorship obligations I will be in default. I also understand that I will be in default if a government makes a payment that I have promised to repay in this undertaking. For example, if I fail to provide for the basic requirements of the sponsored person and his or her family members and they receive social assistance during the validity period of the undertaking, I will be in default. I understand that I will continue to be in default until the amount of benefits received are repaid in full or repaid to the satisfaction of the government concerned.
I understand that all social assistance paid to the sponsored person or his or her family members becomes a debt owed by me to Her Majesty in right of Canada and Her Majesty in right of the province concerned. As a result, the Minister and the province concerned have a right to take enforcement action against me (as sponsor or co-signer) alone, or against both of us.
The Minister and the province concerned may choose not to take enforcement action to recover money from me if the default is the result of abuse or in other circumstances. The decision not to act at a particular time does not cancel the debt. The minister and the province concerned may recover the debt when circumstances have changed.
I understand that I will not be allowed to sign or co-sign an additional application to sponsor another person under the Immigration and Refugee Protection Act and its Regulations if I am in default of any sponsorship undertaking. This holds true for both this undertaking and any past undertakings where I have not satisfactorily paid back my debts.
Appendix F
Summary of Factual Circumstances of the Appellants
Ms. El-Murr and her husband sponsored her parents’ and two brothers’ immigration to Canada in 1995. As Ms. El-Murr was unemployed at the time, the application was based on her husband’s income. Soon after her family members arrived in Canada, Ms. El-Murr left her home, allegedly because of spousal violence. She received spousal support from 1997 to 2000 and remarried in 2001.
In March 2000, Ms. El-Murr’s parents applied for social assistance. Although the governments claims that Ms. El-Murr was notified of her obligation to repay social assistance payments received by her parents in 2003, Ms. El-Murr claims she was not notified of any default until 2006.[40] Counsel on behalf of Ms. El-Murr subsequently corresponded with Ontario concerning her sponsorship debt and, on counsel’s advice, she declined to provide the financial statement Ontario had previously requested.
Although she currently works, Ms. El-Murr claims that her income is modest and that she is jointly responsible for the support of two children. The essence of her position appears to be that she is not now and never was in a financial position to repay the debt and that she received inadequate notice of her default.
Ontario forwarded her file to federal tax authorities for enforcement after she failed to provide a sworn financial statement.
Mr. Mavi sponsored his father’s immigration to Canada in 1996. Because of difficulties in their relationship, his father moved back and forth between Canada and India on a couple of occasions, but finally returned to Canada in the summer of 2000 when he began living with a relative of a cousin. Although Mr. Mavi was initially unaware that his father had returned to Canada, he later learned that his father had a job and appeared to be doing alright.
Although Mr. Mavi’s father began receiving social assistance in 2003, Mr. Mavi claims he was unaware of this. He did not respond to a 2003 request to complete a sponsorship assessment form and believed that his father would not obtain social assistance if he did not do so.
Mr. Mavi received a letter in 2005 advising him that he was in default under his sponsorship agreement. After receiving this correspondence, he arranged for his father’s benefits to be cancelled.
Mr. Mavi subsequently wrote to Ontario asking that it refrain from enforcing his sponsorship debt because he had health problems and a limited ability to earn an income. Ontario sued Mr. Mavi in 2005, apparently after he failed to provide a sworn financial statement.
Mr. Grankin and his wife applied to sponsor Mr. Grankin’s mother in 1999. The couple separated a short time later and, about a year after that, Mr. Grankin lost his job. Mr. Grankin applied for social assistance himself and later arranged for his mother to do so when she arrived in Canada in December of 2000.
Mr. Grankin claims that he was not aware of his obligation to repay social assistance benefits paid to his mother. In any event, he says that his income was less than the LICO when collection efforts began and he is not in a financial position to repay his sponsorship debt.
Although he claims that he explained his circumstances to Ontario and eventually entered into a voluntary agreement to repay $50 per month, Ontario had already referred his case to federal tax authorities for enforcement.[41] Further, he is unable to sponsor his new wife’s entry into Canada because he is in default under this sponsorship agreement.
Ms. de Altamirano and her husband sponsored Ms. de Altamirano’s mother’s immigration from Argentina in 2000. In 2002, her mother suffered a stroke, which made caring for her at home extremely difficult.
Ms. de Altamirano says a case worker encouraged her to apply for social assistance so her mother could be placed in a nursing home. She claims the case-worker told her she could “break” her sponsorship agreement and the only negative consequence would be that she could not sponsor another person’s immigration until she repaid the benefits provided to her mother.
Ms. de Altamirano and her husband separated in 2003. In 2005, she received notice that she was in default under her sponsorship agreement. Her legal representative wrote to the government explaining the circumstances relating to her mother’s care and advising of her limited income (about $25,000 per year).
In November 2006 Ms. de Altamirano agreed to a voluntary repayment plan of $50.00 per month. Around the same time, Ontario advised Ms. de Altamirano that it was referring her file to the taxing authorities for collection.
Mr. Zebaradami applied to sponsor his fiancée’s immigration to Canada in late 1999. She left him in February 2001 about a week after she arrived in Canada. In March 2001, Mr. Zebaradami applied unsuccessfully to withdraw his sponsorship agreement; his fiancée began receiving social assistance that same month.
Mr. Zebaradami claims that he was unaware of his fiancée’s whereabouts after she left him, and that the first notice he received that his fiancée was receiving social assistance was in March 2006. However, he says he ran into her by chance in 2003. On that occasion, she was accompanied by her husband, who she said was a social worker, and by their two-year-old child.
Mr. Zebaradami says he was told that even if he submitted a claim to the Welfare Fraud Unit he would still have to repay the sponsorship debt. Although he was unemployed, in October 2006 he offered to repay $20.00 per month voluntarily; however, his request was refused.
Ms. Vossoughi applied to sponsor her mother in 2001. Subsequently, in 2002, Ms. Vossoughi left her husband, allegedly because of abuse. When her mother arrived in Canada in March 2003, Ms. Vossoughi applied for social assistance for her mother because she could not support both her mother and her son.
Ms. Vossoughi does not recall reading anything in her sponsorship undertaking about what would happen if her mother received social assistance. She claims she was told, when her mother applied for welfare, that the only consequence would be that she would be unable to sponsor another person until she repaid the social assistance benefits paid to her mother.
Ms. Vossoughi did not respond to correspondence from the government in September 2005 demanding repayment of the social assistance. However, her lawyer wrote to the government seeking an exemption based on her difficult financial circumstances and her mother’s health problems and associated drug expenses.
Ms Vossoughi declined to enter into a voluntary repayment agreement, claiming that a payment of even $5 per month would be too much. Ontario referred her file to the federal tax authorities for collection.
Mr. Dzihic applied to sponsor his fiancée in 2002. She arrived in Canada on February 25, 2003, but did not live with him and refused to marry him. According to Mr. Dzihic, he had no contact with his fiancée after early March 2003.
Mr. Dzihic contacted the government in May 2003 to explain the situation. Although he was led to believe that his former fiancée would be deported, unbeknownst to him she appealed her deportation order successfully. Mr. Dzihic’s lawyer wrote to the government in September 2004 and claimed that Mr. Dzihic’s undertaking is not binding in the circumstances.
Mr. Dzihic married in 2006 and applied to sponsor his new wife. In July 2006, the government notified Mr. Dzihic that his former fiancée had been collecting social assistance since May 2006. As a result of Mr. Dzihic’s default under his sponsorship agreement, his new wife’s visa to enter Canada was cancelled. However, Mr. Dzihic appealed the cancellation successfully.
Mr. Hince married his wife in June 2002 while she was visiting Canada. In October 2002, he applied to sponsor his wife and her daughter from a previous relationship for entry into Canada. They arrived in Canada in January 2006 but left Mr. Hince after less than a month. In May 2006, his wife began receiving social assistance.
In May or June 2006, Mr. Hince was informed that his wife was on social assistance and that he would be required to repay all benefits she received. He advised the government that he had offered to support his wife but that she refused his offer; he also claimed that he did not know where she was living.
Mr. Hince says his income was hovering around the LICO. However, he did not complete a financial statement that was forwarded to him. In January 2007, his lawyer wrote to the government requesting that it waive the sponsorship debt or exercise its discretion not to enforce it.
23. (1) In this section,
“other debt” means any amount owing to Her Majesty, other than a tax or penalty or an amount in respect of which subsection 24.1(2) applies;
...
23. (2.1) The Governor in Council may, on the recommendation of the Treasury Board, remit any other debt, including any interest paid or payable thereon, where the Governor in Council considers that the collection of the other debt is unreasonable or unjust or that it is otherwise in the public interest to remit the other debt.
23. (3) A remission pursuant to this section may be total or partial or conditional or unconditional and may be granted
(a) before, after or pending any suit or proceeding for the recovery of the tax, penalty or other debt in respect of which the remission is granted;
(b) before or after any payment of the tax, penalty or other debt has been made or enforced by process or execution; and
(c) with respect to a tax or other debt, in any particular case or class of cases and before the liability therefor arises.
23. (4) A remission pursuant to this section may be granted
(a) by forbearing to institute a suit or proceeding for the recovery of the tax, penalty or other debt in respect of which the remission is granted;
(b) by delaying, staying or discontinuing any suit or proceeding already instituted;
(c) by forbearing to enforce, staying or abandoning any execution or process on any judgment;
(d) by the entry of satisfaction on any judgment; or
(e) by repaying any sum of money paid to or recovered by the Receiver General for the tax, penalty or other debt.
...
24.1 (1) Subject to subsection (2), no debt or obligation
(a) that is included in the statement of assets and liabilities of Canada referred to in subparagraph 64(2)(a)(iii), the forgiveness of which would result in a charge to an appropriation, or
(b) that is owing by a Crown corporation to Her Majesty
shall be forgiven in whole otherwise than by or under an Act of Parliament, including an appropriation Act.
24.1 (2) No debt or obligation referred to in paragraph (1)(a) shall be forgiven unless the amount to be forgiven is included as a budgetary expenditure in an appropriation Act or any other Act of Parliament.
...
64. (1) A report, called the Public Accounts, shall be prepared by the Receiver General for each fiscal year...
64. (2) The Public Accounts shall be in such form as the President of the Treasury Board and the Minister may direct, and shall include
(a) a statement of
...
(iii) such of the assets and liability of Canada as, in the opinion of the President of the Treasury Board and the Minister, are required to show the financial position of Canada as at the termination of the fiscal year;
[1] This is in contrast to an immigrant applying for admission to Canada as a member of the economic class. Section 12(2) of the new Act provides that these individuals are selected on the basis of “their ability to become economically established in Canada.”
[2] The Acts also require that the sponsor and their relative enter into a sponsorship agreement. Some of the terms of these agreements mirror provisions in the undertakings setting out the sponsor’s obligations. Beyond making that observation, we consider it unnecessary to separately address the terms of the sponsorship agreements.
[3] The Regulations under the old Act originally provided that an immigration officer (or a provincial official where Canada and a province had concluded an immigration agreement under the Act) would fix the duration of an undertaking. The maximum duration of a family class undertaking was ten years: see S.O.R./78-172, s. 6(1)(b). In 1997, the Regulations under the old Act were amended to provide for an automatic duration of ten years for undertakings given to the federal government. The duration of undertakings administered by a province pursuant to a federal-provincial agreement was determined on a case-by-case basis: see S.O.R./97-145, s. 1(1). Ontario had no such federal-provincial agreement under the old Act.
[4] The relevant part of s. 95 reads:
In each Province the Legislature may make Laws in relation to … Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to … Immigration into all or any of the provinces; and any Law of the Legislature of a Province relative to … Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.
[5] Payments of a prescribed nature are described in s. 56 of the Immigration Regulations, 1978, S.O.R./78-172 as “payments that result from a breach of an undertaking and that are made directly or indirectly to an immigrant under an item described in column 1 of Schedule VI.” Section 56 and Schedule VI stipulated the various forms of social assistance provided by Ontario that would constitute sponsorship debt:
56. For the purposes of subsection 118(2) of the Act, payments that result from a breach of an undertaking and that are made directly or indirectly to an immigrant under an item described in column I of Schedule VI are payments that may be recovered from the person or organization that gave the undertaking as a debt due to Her Majesty in right of Canada or in right of any province to which the undertaking is assigned.
Beginning in 1996, Schedule VI included the social assistance programs embodied in the General Welfare Assistance Act, R.S.O. 1990, c. G.6 and the Family Benefits Act, R.S.O. 1990, c. F.2: see S.O.R./96-165. In 1999, the list was expanded to include the programs created by the Ontario Works Act, 1997, S.O. 1997, c. 25, Sch. A and the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B: see S.O.R./99-329.
[6] See also s. 118(3), which provided that “costs incurred” by the government for which a person is liable under the Act “may be recovered as a debt due to Her Majesty.”
[7] When the old Regulations were first introduced in early 1978, they did not include a definition of “undertaking”. “Undertaking” was defined in the 1979 amendments: see S.O.R./79-167. Section 56 and Schedule VI, which specified the debts that were recoverable, came into force in January 1982: see S.O.R./81-954. Section 56 remained unchanged until July 29, 1999, when it was amended only to reflect a change in the section numbers under the old Act: see S.O.R./99-329. The substance of the provision was not changed by that amendment.
[8] See ss. 2(1), 4-6, 41 of the old Regulations.
[9] While the definition of “undertaking” was first introduced in 1979, it was amended a number of times while the old Regulations were in force. The first significant amendment occurred in 1993: see S.O.R./93-44. The wording of the definition was further amended in 1997 with the registration of S.O.R./97-145, and again with S.O.R./97-184. The language that we quote is taken from the 1997 version of the definition. Between 1993 and 1997, the relevant part of the definition read “an undertaking in writing given to the Minister to make provision for the lodging, care and support of a member of the family class and the member’s dependants for a period not exceeding ten years...”.
[10] The first part of the definition addressed the meaning of an undertaking where the federal government had entered into an agreement under s. 108 of the old Act with the province in which the sponsored person proposed to reside. As there was no such agreement between Canada and Ontario, the first part of the definition is not relevant to this appeal.
[11] Section 6.1 was added to the old Regulations in February of 1993: see S.O.R./93-44. Reference to a specific form, the IMM 1344, first appeared in s. 2.02, introduced into the Regulations in April of 1997: see S.O.R./97-145. The 1997 amendments introduced additional eligibility requirements for sponsors. Section 2.02 was a transition provision that allowed sponsorship applications in process to continue to be governed by the old rules.
[12] The original version of the old Regulations provided that this only applied where a sponsor was a Canadian citizen. It was expanded to cover permanent residents in 1986: see S.O.R./86-472.
[13] The relevant text of the different forms is set out in full in Appendix E.
[14] Prior to 1997, as opposed to referring to “essential needs” specifically, the undertakings required the sponsor to provide “adequate lodging, care and maintenance” for sponsored relatives.
[15] We say “appears to make no reference” because we are uncertain whether the appeal record includes the reverse side of the undertaking forms signed by these appellants.
[16] The undertakings signed in 1999 and 2000 made specific reference to Schedule VI. The undertakings signed in 2001 and 2002 did not refer to the Schedule. However, they did state that default would occur if a sponsored relative received social assistance.
[17] The undertakings signed by the appellants Vossoughi in 2001 and Dzihic in 2002 refer to default continuing until the sponsor “has repaid in full the amount of the benefits received or repaid their debt to the satisfaction of the social assistance authorities.”
[18] This is the language that appeared in the 1999 and 2000 undertakings. The wording in the 2001 and 2002 undertakings with respect to court proceedings was slightly different, since it discussed “a right to take legal action in a court of law” (emphasis added).
[19] Ontario entered into a Memorandum of Understanding (MOU) regarding information sharing in 2004. In November 2005, it entered into the Canada-Ontario Immigration Agreement, which also provided for sharing of information.
[20] If the sponsor resides in a province that has an agreement with the federal government, the undertaking is given to a designated provincial official.
[21] This language appeared in the 1999 and 2000 undertakings. In the 2001 and 2002 undertakings, the corresponding section read “...has repaid in full the amount of the benefits received or repaid the debt to the satisfaction of the social assistance authorities”.
[22] Section 3(3)(c) of the new Act stressed that the Act should be interpreted and applied in a manner that facilitated cooperation between the federal and provincial governments.
[23] Generally speaking, the federal government did not pursue enforcement under the old regime. This was likely because the burden of providing social assistance fell on the provinces: see the affidavit of Michael Bossin, at para. 6, where he references Ninette Kelly and Michael Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998), at p. 402. As noted in para. 62, Ontario made some efforts at enforcement under the old regime.
[24] “Negotiating Repayment of Sponsorship Debt: Process and Framework.” Overpayment Recovery Unit Training, Social Assistance and Municipal Operations Branch, March 2, 2006.
[25] The balance of the Guiding Principles state as follows:
· ORU will not engage in detailed financial assessments to determine a sponsor’s capacity to repay debt. ORU assessments are to be based on gross income and assets only. ORU staff will only consider expenses where extraordinary circumstances apply (refer to Ontario Works Bulletin 2005-08/ODSP Bulletin 2005-06 – Criteria to Defer or Exempt from Debt Recovery).
· Where it is determined that the sponsor does not have the capacity to both resume support and repay the sponsorship debt, sponsors are expected to first resume support to remove the sponsored relative from social assistance and then repay the debt with any available resources.
· The process of negotiating voluntary repayment plans should be based on an appropriate framework but should not be so rigid as to reject payment plans that may still be the most cost effective means of collections.
[26] ODSP Policy Bulletin #004-2000 / OW Bulletin #2000-07, dated March 27, 2000 includes a section entitled “Exemptions from Pursuing Sponsorship Support.” The versions of Ontario Disability Support Program Act “Directive 2.5 – Tourists, Immigrants, Refugees and Deportees” published in January 2003 and April 2005 both contain a similarly titled section. Ontario Works Bulletin 2005-08 / ODSP Policy Bulletin 2005-06, dated August 30, 2005, contains a section entitled “Cases that Should Not be Referred for Debt Recovery.” The versions of Ontario Disability Support Program Act “Directive 2.5 – Tourists, Immigrants, Refugees and Deportees” published in November 2006 and May 2007 both contain a similarly titled section.
[27] The Social Assistance Municipal Operations (SAMO) branch is the administrative body within the Ministry of Community and Social Services that acts as a head office for the operational side of Ontario’s social assistance programs.
[28] According to Messrs. Mavi, Zebaradami and Dzihic, they responded to the notification letters within 30 days but were not provided with a financial statement for completion.
[29] While true at time collection efforts began, his 2006 income was about $27,000.
[30] This court’s decision was ultimately varied by the Supreme Court of Canada. However, it is notable that Binnie J., for a unanimous court, also looked to regulations to help interpret the operation of the complex multi-statute regime as a whole: Canada 3000 (Re); Inter-Canadian (1991) Inc. (Trustee of), [2006] 1 S.C.R. 865, at paras. 54-56.
[31] The old Act and old Regulations came into force on April 10, 1978. The large majority of the new Act and Regulations came into force on June 28, 2002.
[32] We recognize that default will only be cured by partial payment where the sponsor also ceases to be “in breach of the obligation set out in the undertaking”: see s. 135(b)(ii) of the new Regulations. If the obligations in the undertaking have not expired, this will occur if the sponsor resumes responsibility for the sponsored relative.
[33] During our review of the history of the new Regime we determined that the new Regulations were promulgated under both the new Act and the Financial Administration Act.
[34] Because of the length of these provisions, they are reproduced in Appendix G.
[35] In Knight, the Supreme Court of Canada concluded that a government employee, dismissed under his employment contract, was entitled to procedural fairness. Although Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 overturned that conclusion, the considerations relevant to determining whether a duty of fairness exists remain.
[36] Given the absence of any procedural requirements in relation to decision-making concerning the enforcement of sponsorship debt we are not persuaded that there is any general requirement for an oral hearing. Nonetheless, the precise content of the duty of fairness will depend on the facts of the particular case: see Khan v. University of Ottawa (1997), 34 O.R. (3d) 535 (C.A.), at 543.
[37] Counsel also acknowledged that, in any event, reasons would not have to be extensive. In their view, it would be sufficient if the reasons specify that the appellant’s circumstances had been considered and that they did or did not merit an exercise of discretion.
[38] Although we note the significant benefits of reasons, which are discussed at paras. 38-39 of Baker, we also observe that there are no procedural requirements in any of the Acts, the Regulations or the undertakings concerning any aspect of decision-making with respect to the enforcement of sponsorship debt.
[39] The use of an RIAS as an interpretative aide was approved in Merck & Co. v. Canada (Attorney General) (1999), 176 F.T.R. 21, aff`d (2000), 254 N.R. 68 (C.A.), leave to appeal denied [2000] S.C.C.A. No. 185. An RIAS has also been used to aid with interpretation in, for example, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 352-53; Friesen v. Canada, [1995] 3 S.C.R. 103, at para. 63; Bayer Inc. v. Canada (Attorney General) (1999), 243 N.R. 170 (C.A.), at para. 10.
[40] According to the enforcement records forming part of the appeal record, a default notice was sent to Ms. El Murr on May 9, 2003 but was returned with a note from the post office stating “no updated address available as of this date.”
[41] Although the federal tax authorities have not yet withheld any tax credits, they have apparently informed Mr. Grankin they are entitled to do so.