Canada (Attorney General) v. Mavi: Who should pay if hardship strikes?

In the recent Canada (Attorney General) v. Mavi ruling, a unanimous Supreme Court held that sponsors of immigrants to Canada under the family class must pay for any government social assistance given to the sponsored immigrant. Nevertheless, the government owes a duty of procedural fairness to the sponsor, albeit the content being “fairly minimal”, and such payments may be deferred (but not forgiven) subject to government’s discretion in assessing individual circumstances.

The decision, while providing a certain level of discretion to the government to in considering sponsor’s circumstances, nevertheless may lead to troubling circumstances in some cases.

The IRPA Family Class
Mavi centres around to the Immigration and Refugee Protection Act (“IRPA”). The IRPA has three classes: the family class, the economic class and the refugee class. This case deals specifically with the family class members under the IRPA, representing 615,000 or 27% of the over 2 million immigrants to Canada between 1997 and 2007.

Unlike the other classes, immigrants to the family class “are not required to meet the financial or other selection requirements”. This is because of their family connections to Canada, who sponsor their application.

Under the IRPA, if those admitted under this class receive social assistance, which is “contrary to the sponsor’s undertaking of support”, the sponsor is “deemed to have defaulted”, and the provincial or federal government may recover these costs from the sponsor.

Facts
In Mavi, eight sponsors were involved in this claim. Five sponsors went through divorces or break ups with their partners, fiancées, or spouses, and when the latter claimed social assistance the sponsor was held accountable. Another sponsor lost his job after sponsoring his mother, his mother claimed assistance, and he was forced to pay it. A seventh sponsor applied for health benefits, upon the urging of a case worker, in order to take care of her mother who suffered a stroke, but was then told to retroactively pay back those payments. The eighth sponsor claims to have not understood the sponsorship application, his father arrived in Canada and had a “falling out” with the sponsor, took social assistance, and then the sponsor was only informed afterwards that he had to pay when his own health had deteriorated and he could not work.

In every one of these cases the government of Ontario made social assistance payments, then enforced the debt upon the sponsor. In Mavi, eight sponsors denied this liability. The money these sponsors owed the government ranged between $10,000 and $94,000.

Thus, the unanimous SCC decision defined the parameters of procedural fairness owed by the government in the debt enforcement decision-making process for sponsors.

Judicial History
At the Ontario Superior Court of Justice,  Justice Wilson ruled the sponsorship agreements were ruled by contract law. Given this strict interpretation, the sponsors were forced to pay and no discretion was to be allowed to governments to forgive or delay payments on a case-by-case basis.

Then at the Court of Appeal for Ontario, Justices Laskin, Simmons and Lang, while ruling similarly, loosened the decision.

The Ontario Court of Appeal Justices ruled some discretion was allowed to Ministers, thereby allowing some flexibility in the enforcement process. This discretion meant that governments could delay and even forgive debts.

Justices Laskin, Simmons, and Lang also ruled a duty of procedural fairness was owed to sponsors, allowing for a process by which sponsors could be heard, their issues considered, and a final decision rendered to them.

SCC rules a duty is owed but debts must be paid (either now or later)
The Attorney Generals of Canada and Ontario advanced the argument that no duty of procedural fairness applied to sponsors because the agreements were governed by contract law, but this was rejected by Justice Binnie on behalf of a unanimous bench also composed of Chief Justice McLachlin and Justices LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell.

Justice Binnie ruled the statutory framework governing the agreements gives rise to a duty of procedural fairness rooted in public law and administrative authority rather than simply contract law. The SCC ruled sponsorship undertakings are “valid contracts” which are “structured, controlled and supplemented by federal legislation.” Because sponsor debts are contractual and statutory, therefore enforcement of these contracts goes beyond the “private law of contract.”

Furthermore, Justice Binnie ruled, based upon the legislation, the “Crown does have a limited discretion in these collections.” Justice Binnie’s decision rules that this discretion allows the government to delay enforcement with “regard to the sponsor’s circumstances and to enter into agreements respecting terms of payment, but not simply to forgive the statutory debt.”  However,  Justice Binnie’s decision declared that Parliament narrowed the scope of discretion afforded to Ministers, and the Crown is bound by a “fairly minimal” duty of procedural fairness.

Under the principles of Canadian administrative law and judicial review, Justice Binnie acknowledged the burden of the process and need for expediency had to be weighed against the principle of fairness to the sponsor. Applying Cardinal v. Director of Kent Institution and the five procedural fairness factors from Baker v. Canada (Minister of Citizenship and Immigration), the SCC ruled:

(i) Canada and Ontario have a discretion under the IRPA and its Regulations to defer but not forgive debt after taking into account a sponsor’s submissions concerning the sponsor’s circumstances and those of the sponsored immigrant.
(ii) Ontario policy of enforcing debts was valid.
(iii) Canada and Ontario owe sponsors a duty of procedural fairness when enforcing sponsorship debt.
(iv) The content of the government’s duty of procedural fairness includes: (a) notifying the sponsor at their last known address of the claim; (b) providing the sponsor an opportunity, within limited time, to explain in writing their relevant circumstances which “militate against immediate collection”; (c) considering any relevant circumstances brought to its attention; (d) notifying the sponsor of the government’s decision; (e) without the need to provide reasons.
(v) The requirements of procedural fairness were met in the current case.

Essentially, the sponsors argued governments should “consider their circumstances before making the decision to enforce”, in an exercise of their discretion. However, Justice Binnie explicitly rejected the sponsors request for “a more elaborate “process” of decision making” and denied the government’s ability to forgive any debts.

Several aspects of the case came back to the fact that the sponsored immigrant receiving government payments would not be in the country if not for the sponsor, therefore by undertaking the sponsorship, the sponsor is assuming the debt regardless of whether they are aware the sponsored immigrant is collecting it or not.

Generally correct but what about changing circumstances?
While it is true that any sponsor under the family class should recognize the risks associated with sponsoring a relative before undertaking such an act, the decision does appear to be quite strong handed.

Justice Binnie recognizes that “It would hardly promote ‘successful integration’ to require individuals to remain in abusive relationships. Nor would the attempted enforcement of a debt against individuals without any means to pay.” Furthermore, Justice Binnie’s decision acknowledges

It would hardly promote “successful integration” to require individuals to remain in abusive relationships.  Nor would the attempted enforcement of a debt against individuals without means to pay further the interest of “Canadian society”.  Forcing a sponsor into bankruptcy may or may not deliver a short-term return, but hardly enhances the bankrupt’s chances of becoming a positive contributor to Canadian society.  Excessively harsh treatment of defaulting sponsors may risk discouraging others from bringing their relatives to Canada, which would undermine the policy of promoting family reunification.

Nevertheless the SCC ruled only deferral and not debt forgiveness can be allowed under the Crown’s discretion. While it is possible the decision may serve as a deterrent to those who may abuse the system by attaining immigration and then collecting social assistance, this is probably a minority of cases.

What this decision may also do, unintentionally, is allow some sponsored immigrants to exploit their sponsors, given that the debt burden shall fall upon them. In fact, in almost all eight cases before the Court, the sponsor and those they sponsored had a falling out, the sponsored immigrant benefited and the sponsor suffered. Some of these failed relationships involved domestic abuse on the part of the against the sponsor.  If such scenarios play out, some sponsored immigrants may take further advantage of this tool in getting back at the sponsor. Furthermore, some sponsors may not be able to support those they sponsored due to unforeseeable changes in their life circumstances, such as losing their job, a divorce, deteriorating health, or bankruptcy.

While it is true that the sponsor assumes such risks in sponsoring someone, who can possibly foresee such difficult life circumstances arising let alone be blamed for them? Such a heavy handed approach may further prevent such sponsors from getting out of the difficult hole that they find themselves in. Thus, the Crown should be granted greater discretion in collecting debts, including debt forgiveness or re-allocation. But perhaps in this instance, such change would best come from the legislatures themselves and not the courts.