Mixed result for Immigrant Sponsors at the Supreme Court of Canada

The Supreme Court has reaffirmed that the Ontario Government had a duty of procedural fairness to the sponsors of immigrants, but that it did not improperly fetter its exercise of statutory discretion in adopting its current policy (Mavi v. Canada). The Clinic had represented most of the immigration sponsors in the case.

In December, 2010, the Clinic appeared before the Supreme Court of Canada to argue this case. Mavi v. Canada involved a challenge to the manner in which the federal and provincial governments enforce sponsorship social assistance debts. Under Canadian law, any person who wishes to sponsor a family member to come to Canada must sign an undertaking with the Canadian government promising to repay any social assistance monies (e.g. OW or ODSP) accessed by the family member during the sponsorship period.

The court challenge involved eight applicants, five of whom were represented by the Clinic. Each of the applicants had defaulted on their sponsorship undertakings for reasons out of their control, incurring debts that ranged from approximately $15,000 to over $100,000. The Clinic's position was that the applicable legislation required the federal and provincial governments to engage in a case by case consideration of any special or unique circumstances prior to making any decision to either enforce or not enforce these debts.

The Ontario Court of Appeal favourably held that procedural fairness requires the government to consider the individual circumstances of the applicants prior to making a discretionary decision to enforce these debts. The Court of Appeal also held that the government must give notice to sponsors before seeking to collect on defaults from sponsorship undertakings; must give the sponsor an opportunity to make submissions; must consider them; provide reasons for deciding to collect and if guidelines are provided the guidelines cannot fetter the discretion of the officers considering each case.

The Ontario Government appealed the decision to the Supreme Court of Canada and the appeal, which was allowed in part, was heard in December, 2010. Lucas Lung, a former Clinic Staff Lawyer and now in the private bar, and Lisa Loader, Staff Lawyer, acted as counsel for the Clinic's clients. Other sponsors were represented by Lorne Waldman and Hugh Evans. The South Asian Legal Clinic of Ontario, Canadian Council for Refugees, Metropolitan Action Committee on Violence against Women and Children and Canadian Civil Liberties Association presented as interveners.

Read the full decision, Canada (Attorney General) v. Mavi, [2011] S.C.J. No. 30 here: http://scc.lexum.org/en/2011/2011scc30/2011scc30.html