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Administrative Law – Procedural Fairness –
Immigration and Refugee Protection Act – Sponsorship
program
This case addresses what duty of fairness, if any, is owed to
residents of Canada who have defaulted on undertakings made to the
federal government to guarantee the financial security of family
members that they sponsored to come to Canada when the sponsor is
in default of the undertaking and the government files an
application to collect on the debt.
Canadian citizens or permanent residents are entitled to sponsor
their relatives to immigrate to Canada. Before a family member is
sponsored, the Canadian resident is obligated to provide an
undertaking of support for the sponsored relative wherein the
Canadian resident assumes responsibility for the financial
stability of their family member. Should the sponsored relative
apply for social assistance benefits subsequent to their arrival in
Canada, the government (federal or provincial by virtue of a
Memorandum of Understanding), is entitled to seek to recover those
payments from the resident sponsor. In this way, the government
encourages family unification while ensuring that the public does
not bear the cost of subsidizing sponsors.
This proceeding was initiated by eight sponsors whose relatives
had received social assistance and therefore were in default of
their undertakings. The sponsors put forward that the enabling
legislation, the Immigration and Refugee Protection Act,
vested discretion with the government to determine on a
case-by-case basis whether or not to enforce the debt and sought to
avoid payment of the debt either temporarily or permanently.
Binnie J., for a unanimous court, ruled that the undertakings
are valid contracts and that there is no discretion for the
government to forgive the debt. However, the contracts are
controlled by federal legislation and therefore the enforcement of
the contracts must import administrative law principles including a
limited duty of fairness. As set out in the judgment, "the
content of this duty of fairness includes the following
obligations:
to notify the sponsor that the government will be pursuing a
claim regarding the debt;
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;
to consider any relevant circumstances brought to its
attention, keeping in mind that the undertakings were the essential
conditions precedent to allowing the sponsored immigrant to enter
Canada in the first place;
to notify the sponsor of the government's decision;
without the need to provide reasons."
The court concluded that the duty of fairness was met with
respect to all eight respondent sponsors.
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