By Edwin C. Mercurio – NUJP Canada
Canadians or permanent residents who are sponsoring their family members from abroad to come to Canada could find themselves owing thousands of dollars should their sponsored relatives turn to social assistance during the sponsorship period due to a recent ruling by the Supreme Court of Canada.
The Supreme Court of Canada in a 9-0 ruling last June 10 partly allowed the appeal of the Attorneys General of Canada and Ontario against the Ontario Court of Appeals 2009 ruling in Mavi vs Canada (Atty. General). The decision calls for sponsors to repay immigrants debts.
The top court ruling relates to a case launched by eight Canadians or permanent residents who sponsored family members to come to Canada. Pritpal Singh Mavi and four other respondents found themselves owing thousands of dollars to the Ontario government because “their relatives turned to social assistance during the sponsorship period when sponsors were contractually bound to pay for all their relatives’ essential needs,” reports the Lawyers Weekly June 24, 2011 issue.
Represented by counsel, “the respondent sponsors argued that they were unable to foresee or control their relatives’ receipt of social assistance and that they could not afford to repay the government for the money it spent on their relatives,” the report adds.
Justice Ian Binnie after examining immigration regulations and legislation decreed that “the discretion enables governments to delay enforcement action having regard to the sponsors circumstances and to enter into agreements respecting terms of payment, but not simply to forgive the statutory debt.”
Justice Binnie also clarified that the requirement to discharge the duty of procedural fairness are “fairly minimal” and “narrow in scope.” Before moving to collect on a sponsorship debt (i.e. filing a certificate of debt with the Federal Court) the Crown (federal government), he admonished, must notify a sponsor at his or her last known address of its claim, provide the sponsor an opportunity within a specified time the opportunity to explain in writing the relevant financial and personal circumstances that would defer an immediate collection, consider any relevant circumstances brought to its attention bearing in mind that the sponsor’s undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place, and must notify the sponsor of the government’s decision.
The top court decision also held that there is no obligation on the government decision-maker to give reasons. “This is purely administrative process. The existence of the debt is, in the context of this particular program, reason enough to proceed.”
Lucas Lung of Lerners LLP and Lisa Loader who represented most of the immigration sponsors in the Mavi case said “ the court’s decision not to impose a duty on the Crown to give reasons is a blow to sponsors.”
The report adds that “under section 145 of the Immigration and Refugee Protection Act (IRPA) there is no discretion given to the (federal immigration) minister, or to provincial governments to forgive, or write off, the debt, in whole or in part.”
Toronto lawyer Hugh Evans, who represented two of the Mavi respondents, said he expects more litigation, the report added.