Date: 19990624
Docket: A-344-97
| CORAM: LÉTOURNEAU J.A. |
| ROTHSTEIN J.A. |
| McDONALD J.A. |
BETWEEN:
THIYAGRAJAH YOGESWARAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HEARD at Toronto, Ontario, Monday the 21st day of June, 1999
JUDGMENT delivered at Toronto, Ontario, Thursday the 24th day of June, 1999
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 19990624
Docket: A-344-97
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
McDONALD J.A.
BETWEEN:
THIYAGRAJAH YOGESWARAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Toronto, Ontario
on Thursday the 24thday of June, 1999)
ROTHSTEIN J.A.
[1] This is an appeal on a question certified by McKeown J. under subsection 83(1) of the Immigration Act1:
| Does the identified continuing need for personalized special education constitute a "social service" within the meaning of subparagraph 19(1)(a)(ii) of the Immigration Act ? |
| [2] The appellant, a citizen of Sri Lanka, applied for an immigrant visa in May 1994. As a result of medical examinations of the appellant and his family members, the appellant"s son was found to have moderate mental retardation and Down"s syndrome. In his decision of March 7, 1996, the visa officer stated: |
| Pavithran has a significant degree of mental retardation with a mental age of four and a measured I.Q. of 41. He will continue to need personalized special education and is unlikely as an adult to be self-supporting. In addition Pavithran is suffering from Down"s Syndrome. As a result of the nature, severity or probable duration of the described condition, in the opinion of a medical officer concurred in by at least one other medical officer, Pavithran"s admission would cause or might reasonably be expected to cause excessive demand on health and social services. Given the information described in the diagnosis I believe that the opinion of the medical officers that his admission to Canada will cause excessive demands on medical services is reasonable. |
| The visa officer refused the appellant"s application for permanent residence. |
| [3] On judicial review of that decision, one of the issues was whether the personalized special education, which the appellant"s son was found to require, came within the term "social services" in subparagraph 19(1)(a)(ii) of the Immigration Act . Paragraph 19(1)(a) provides: |
| 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, |
| (i) they are or are likely to be a danger to public health or to public safety, |
| or |
| (ii) their admission would cause or might reasonably be expected to cause |
| excessive demands on health or social services; |
| [4] McKeown J. found that special education was a social service. He concluded that the medical officers relied on the special education requirement as their reason for finding that there was excessive demand on social services. He dismissed the judicial review and certified the sole question on this appeal; whether special education is a social service within the meaning of that term in subparagraph 19(1)(a)(ii) of the Immigration Act. |
| [5] For the reasons we have given in The Minister of Citizenship and Immigration v. Thangarajan, Court File No. A-486-98, a decision issued concurrently with this one, we find that social services in subparagraph 19(1)(a)(ii) includes special education. The only argument not made in Thangarajan but made in this case is that special education is a matter within exclusive provincial jurisdiction, and for this reason, social services in the Immigration Act cannot include special education services. Subparagraph 19(1)(a)(ii) does not encroach on the legislative authority of the provinces in respect of education. It is legislation relating to Naturalisation and Aliens under section 91 of the Constitution Act, 1867. That federal immigration legislation takes account of the impact of the admission to Canada of certain individuals on health, education, or other social services provided by the provinces, does not mean that Parliament is legislating in those fields. |
| [6] The certified question will be answered in the affirmative as follows: |
| The identified continuing need for personalized special education constitutes a "social service" within the meaning of subparagraph 19(1)(a)(ii) of the Immigration Act .The appeal will be dismissed. There will be no order as to costs as costs were not requested. |
| "Marshall Rothstein" |
| J.F.C.A. |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-344-97
| STYLE OF CAUSE: THIYAGRAJAH YOGESWARAN |
Appellant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
DATE OF HEARING: MONDAY, JUNE 21, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: ROTHSTEIN J.A. |
Delivered at Toronto, Ontario
on Thursday the 24thday of June 1999
| APPEARANCES: Mr. Irvin H. Sherman, Q.C. |
| For the Appellant |
| Ms. Marianne Zoric |
| For the Respondent |
| SOLICITORS OF RECORD: Martinello & Associates |
| Barristers & Solicitors |
| 208-255 Duncan Mill Road |
| North York, Ontario |
| M3B 3H9 |
For the Appellant
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 19990624
Docket: A-344-97
BETWEEN:
THIYAGRAJAH YOGESWARAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
OF THE COURT
__________________1 83. (1) A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.