Date: 19980805
Docket: IMM-3789-97
BETWEEN:
RAJADURAI SAMUEL THANGARAJAN, ANNETTE THANGARAJAN,
WILLIAM THANGARAJAN and JAMES THANGARAJAN,
by their Litigation Guardian, RAJADURAI SAMUEL THANGARAJAN,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED, J.
[1] I have decided that the decision under review should be set aside. It is only necessary to give brief reasons.
[2] At issue is whether the education of mentally challenged students within the publicly funded provincial primary and secondary school systems constitutes a social service for the purposes of paragraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2.
[3] The relevant section of the Act provides that no person shall be granted admission to Canada as a landed immigrant if it might reasonably be expected that the admission will cause excessive demands on health or social services:
| 19(1) No person shall be granted admission who is a member of any of the following classes: |
| (a) persons who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer, |
| . . . . |
| (ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services; |
[4] The applicant Rajadurai Samuel Thangarajan's son, William Thangarajan, is moderately retarded. It was decided that his admission might reasonably be expected to cause excessive demands on social services in Canada and therefore he could not be granted admission. One of the factors taken into consideration in making this assessment was the costs that would be incurred in providing special education to him within the public school system. Provincial legislation by and large provides for children with special needs in the school system; this includes gifted as well as mentally challenged children.
[5] I have been persuaded that the special education provided for mentally challenged children within the public school system is not a social service within the meaning of that term as used in paragraph 19(1)(a)(ii).
[6] Social services can be viewed in a broad sense, as meaning all social type services provided by the state to individuals, or in a narrower sense, as meaning social services akin to welfare. If the term was being used in the broad sense in paragraph 19(1)(a)(ii) there would have been no need to identify health services as a different and distinct category from social services generally. If a broad meaning had been intended, it seems likely that paragraph 19(1)(a)(ii) would have been drafted to read "social services including health services", not "health or social services". The fact that health services are considered to be distinct from social services indicates to me that education, including specialized education provided within the school system, is also distinct.
[7] Counsel for the applicant argues that an additional fact for finding that educational services are not within the term social services is that school attendance at both the elementary and secondary level, under the relevant provincial legislation, is both a right of the student and a mandatory requirement for school aged children. She notes that public education is in the nature of a fixed right, provided in Canada to children, and that social services are not generally viewed as a matter of entitlement in the same sense1. Rather, they are viewed as a benefit provided by Canadian society to those in need of assistance, often being subject to a means test for eligibility or cost recovery based on usage.
[8] Counsel for the applicant also argues that the explanation given by government officials of the meaning of social services when the legislation was being enacted in 19772 supports an interpretation that equates social services with services of a welfare type provided to persons who cannot support themselves. For example, the following explanations were given:
| Ms. Appolloni: In other words, it would be a health problem and nothing but health |
| Mr. Gotlieb: It could be a welfare problem too, it could relate to the inability of the person to look after himself, so if a person could not support himself or his family and went right onto welfare, that would be very relevant to the provinces, who would be most concerned about the impact of that on their social services - on their ability to offer them and on cost. |
| .... |
| Mr. Tait: ... this sometimes requires a judgment by a medial officer that a person is neither a danger to anybody else nor a demand on health services, but could be a demand on social services - the case of a handicapped person who would never be able to support himself. For instance, a person who claims to be a carpenter, but has some degenerative disease which will not permit him to pursue that profession, it would be a medical officer who would say that this person would not be able to support himself in that trade in Canada because of this or that condition, and would become a demand on social services, namely welfare. |
[9] Counsel for the applicant notes that under most if not all provincial legislation, education services including that provided to children with special needs are dealt with under a different legislative regime, and by a different government department, than are social programs and social services3.
[10] Counsel for the respondent argues, in response, that many cases have been decided by the Trial Division which have accepted that special education programs existing within the public school systems are social services within paragraph 19(1)(a)(ii). With few exceptions, these cases, however, were decided without the Court having been directed to an argument that they did not. An argument was made in Yogeswaran v. M.C.I., [1997] F.C. J. No. 462 (April 17, 1997, IMM-1505-96)4 and that decision does take the opposite view to the one I have accepted. I have been given to understand that a question was certified in that case so that the Court of Appeal can become seized of the question and will eventually decide the matter.
[11] Counsel for the respondent argues that since the applicant's son will be in his late teens by the time landing could be granted, if it were granted, the costs incurred in providing the education in question could not in any event be great. Thus even if the medical officers erred, it is argued that the error would be inconsequential. I am not prepared to accept this argument. I accept counsel for the applicants' argument that an important issue has been raised that should be allowed to go to appeal. Also, the extra costs involved are said to amount to $4000.00 to $6000.00 a year and I think it preferable that the medical officers decide how significant that factor was in their decision rather than leaving the Court to characterize it as insignificant.
[12] In addition there seem to be difficulties with the medical assessment itself. The narrative of the medical opinion reads in part, "continuous supervision and specialized education will be needed in the foreseeable future .... he is unlikely to become self-supporting in the open job market ... ". The assessment codes given to him were: H1, D5, T3, S1, E3 and M5. The code D5 is described as signifying with respect to social services that the individual "requires or probably will require social supervision and special education but may become self-supporting". The code E3 is described as signifying with respect to employability that the individual is "employable and productive in the open Canadian labour market under permanently restricted conditions." Initially the son was classified as E5, "unemployable and unproductive in open Canadian labour market" but this was subsequently changed to E3 on review. It is not clear that the above assessments are consistent.
[13] Counsel for the applicant raised several other arguments to support a setting aside of the decision but I do not need to consider them, having decided for the reasons set out above that the decision will be set aside. Counsel for the applicant asks that whichever way I decide, I certify a question so that the matter can go to the Court of Appeal. I understand that this is sought in case an appeal in Yogeswaran is not pursued.
[14] Counsel for the respondent has not had an opportunity to make submissions with respect to the possible certification of a question. I will delay filing a formal order for seven days from the date of these reasons to allow her to do so.
"B. Reed"
Judge
Toronto, Ontario
August 5, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3789-97
| STYLE OF CAUSE: RAJADURAI SAMUEL THANGARAJAN, |
| ANNETTE THANGARAJAN, |
| WILLIAM THANGARAJAN and |
| JAMES THANGARAJAN, by their Litigation Guardian, RAJADURAI SAMUEL THANGARAJAN |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JUNE 25, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: AUGUST 5, 1998
APPEARANCES:
Ms. Barbara Jackman
For the Applicants
Ms. Marie-Louise Weislo
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
| 281 Eglington Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 1998
Docket: IMM-
Between:
| RAJADURAI SAMUEL THANGARAJAN, |
| ANNETTE THANGARAJAN, WILLIAM THANGARAJAN and JAMES THANGARAJAN, by their Litigation Guardian, RAJADURAI SAMUEL THANGARAJAN |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 The following cases discuss these principles: Eaton v. Brant County Board of Education , [1997] 1 S.C.R. 241; Adler v. The Queen, [1996] 3 S.C.R. 609; Masse v. Ontario (1996), 134 D.L.R. (4th) 20 (Ont. Gen. Div.) leave to appeal to S.C.C. dismissed [1996] S.C.C.A. No 373; Trofimenkoff v. Saskatchewan (Minister of Education), [1991] W.W.R. 402 (Sask. Q.B.), affirmed (1991) 6 W.W.R. 97 S.C.A.; Re Merrick and Director of Vocational Rehabilitation Services (1985), 49 O.R. (2d) 675 (O.C.Div.Ct.); Rose v. Social Services Appeal Board (1995), 130 Nfld. & .P.E.I.R. 233 (Nfld.S.C.), affirmed (1995) 135 Nfld. & .P.E.I.R. 207 (Nfld. C.A.).
2 Minutes of the Standing Committee on Labour, Manpower and Immigration, April 5, 1977, Issue No. 11, H.C. at 11:45, 11:60-11:61, 11:70-11:71
3 see for example, The Public Schools Act , R.S.M. 1987, c. P250, s. 258, 259, 260 and the Social Services Administration Act, R.S.M. 1987, c. 9165, s. 1; Education Act, R.S.N.S. 1989, c. 136, s. 1, 3, 4, 33 and the Social Services Councils Act, R.S.N.S., C. 433, s. 3, 5 and the Social Assistance Act, R.S.N.S. 1989, C. 432, s. 4, 5, 6(2), 8, 9; The School Act, R.S.P.E.I. 1988, C. S-2, s. 1, 44, 46 and the Welfare Assistance Act, R.S.P.E.I. 1988, C. W-3, s. 1; The Education Act, R.S.O. 1993, C. E.2, s. 1, 8(2), (8), 13, 21 and the Long Term Care Act, S.O. 1994, C. 26, s. 1, 2; Homes for Retarded Persons Act, R.S.O. 1990, C. H-11, s. 1, 11; Homemakers and Nurses Services Act, R.S.O. 1990, C. H-10, s. 1, 10; District Welfare Administration Boards Act, R.S.O. 1990, C. D-15, s. 1, 2; Developmental Services Act, R.S.O. 1990, C. D-11, s. 1, 36; Ontario Disability Support Program Act, S.O. 1997, C. 25, Schedule B, s. 2, 3, 4, 5; Social Assistance Reform Act, S.O. 1997, C. 25; Vocational Rehabilitation Services Act, R.S.O. 1990, C. V-5; School Act, R.S.B.C. 1996, c. 412, s. 1, 2, 3 and the Ministry of Social Services and Housing Act, R.S.B.C. 1996, C. 310, s. 1, 3.
4 Reference is made in the Yogeswaran decision to the earlier decision in Sabater v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 268 (F.C.T.D.) and Yogeswaran is referred to in Ma v. Canada (Minister of Citizenship and Immigration) (January 15, 1998, IMM-812-97).