(July 29, 2011) The Supreme Court of Canada has ruled that if a new immigrant to Canada under the family class obtains government assistance, the cost of this assistance may be recovered from the immigrant's family sponsor, provided that minimal procedural safeguards are followed.
The Canadian Immigration and Refugee Protection Act 2001 allows in section 13(1) that “a Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class” to immigrate to Canada. The sponsor undertakes to financially support the individual and ensure that they do not require social assistance. For a spouse or partner, the sponsor must provide three years of financial support. For a dependent child or other relative, the sponsor must provide ten years of financial support. (Sponsoring a Family Member or Relative, Canadian Visa Bureau website (last visited July 25, 2011).)
In a recent decision, Canada (Attorney General) v. Mavi, handed down on June 10, 2011, the Canadian Supreme Court held that if such dependent persons access social assistance while in Canada, the provincial or federal governments may recover the cost of this assistance from the sponsor, although the government must meet certain minimal requirements of procedural fairness.
In the case at hand, the Provincial Government of Ontario sought to recover the costs of social assistance from immigrant sponsors. The sponsors denied that they were liable. The ensuing litigation ultimately reached the Canadian Supreme Court.
The Court held that the sponsorship undertaking is a valid contract but is “also structured, controlled and supplemented by federal legislation.” (Id.) The debts created, and their enforcement, are therefore not governed exclusively by the private law of contract. The Court maintained that there was a clear and unambiguous intent in section 145 of the Act that such a sponsorship debt should be recovered, at such a time and through such a method as could be reasonably expected by the sponsor. However, it also held that the government has a duty of procedural fairness, and “must act fairly having regard to their financial means to pay and the existence of circumstances that would militate against enforcement of immediate payment … .” (Id.)
This duty of procedural fairness was held by the Court to be minimal. It does not require an elaborate adjudicative process, but it does oblige the government, prior to filing a certificate of debt with the Federal Court:
(i) to notify a sponsor at his or her last known address of its claim;
(ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection of the debt;
(iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrants to enter Canada in the first place; and
(iv) to notify the sponsors of the government's decision. (Id.)
Thus, the Court determined that the recovery of debts owed by a sponsor is a purely administrative process and a matter of debt collection. There is no obligation on the part of the government decision maker to give reasons; the existence of the debt is reason enough to proceed. (Id.)
The Court in this case attempted to strike a balance, recognizing that the intent of the Act is to ensure “that families are reunited in Canada” and thereby promote successful integration, but also recognizing that integration imposes responsibilities both on new immigrants and on Canadian society with a view to maintaining the integrity of the Canadian immigration system. (Id.)
Prepared by Julie O'Leary, summer intern at the Law Library of Congress, under the guidance of Stephen Clarke, Senior Foreign Law Specialist. Ms. O'Leary is a participant in the Washington Ireland Program and a student at University College Cork, Ireland.