COURT FILE NO.: 508/02
DATE: 20040510
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, MATLOW AND JENNINGS JJ.
B E T W E E N:
CAROLYN BÉRUBÉ
Appellant (Respondent on Appeal)
- and -
THE GENERAL MANAGER OF
THE ONTARIO HEALTH INSURANCE PLAN
Respondent (Appellant on Appeal)
John W. R. Johnston, for the Appellant, Ministry of Health and Long Term Care
Megan Telford, for the Health Board
HEARD: May 10, 2004
o’DRISCOLL J.: (Orally)
[1] The General Manager of the Ontario Health Insurance Plan (OHIP) appeals to this Court under the provisions of s.24(1) of the Health Insurance Act, R.S.O. 1990, chapter H.6 (the “Act”) from:
(i) the Final Decision and Reasons of the Health Services Appeal and Review Board (the “Board”), dated March 28, 2002, and;
(ii) the Decision and Order of the Board denying a review, dated July 25, 2002.
[2] The Board allowed Ms. Bérubé’s appeal from the Decision of the General Manager of OHIP and ordered that Ms. Bérubé be enrolled in OHIP.
[3] Ms. Bérubé is a U.S. citizen. Her husband, Daniel, was born in Canada and emigrated to the United States of America and served in the U.S. Armed Forces for 24 years. Upon his retirement, he joined the U.S. Federal Civil Service. He was posted to Windsor, Ontario with the International Joint Commission (IJC) in late August, 1999. He holds a diplomatic passport.
[4] On arrival in Canada, Mr. Bérubé was issued a work permit and an OHIP card. His wife and three children arrived in Canada in December 1999 and they were similarly provided with OHIP coverage after the usual 90 day waiting period. At the end of year one, Immigration Canada removed Mr. Bérubé’s work permit from his diplomatic passport and wrote into that passport the words “Cdn. Citizen – employment authorization not required”.
[5] The General Manager of OHIP, thereupon, took the position that Ms. Bérubé could only quality for OHIP if her husband qualified under s.1.1(1)(b)6 of Regulation 552, R.R.O. 1990, a regulation made under the Act, which states as follows:
1.1(1) For the purposes of the Act,
“resident” means an individual,
(b) who is ordinarily resident in Ontario and who is one of the following:
- A person who has finalized a contract of employment or an agreement of employment with a Canadian employer situated in Ontario and who, at the time the person makes his or her application to become an insured person, holds an employment authorization under the Immigration Act (Canada) which,
i. names the Canadian employer,
ii. states the person’s prospective occupation, and
iii. has been issued for a period of at least six months.
- The spouse, same-sex partner or dependent child under the age of 19 years of a person referred to in paragraph 6 if the Canadian employer provides the General Manager with written confirmation of the employer’s intention to employ the person referred to in paragraph 6 for a period of three continuous years.
[6] However, the General Manager of OHIP argued that Mr. Bérubé could not qualify under heading 6 because he was a Canadian citizen. Therefore, if Mr. Bérubé could not qualify under 6, then his spouse could not qualify under heading 7 of that section.
[7] On January 8, 2001, Thomas Behlen, Director-Great Lakes Regional Office, International Joint Commission, wrote to Canadian Immigration Services at Windsor and on January 10, 2001 he wrote a similar letter to OHIP at Windsor. In the January 10, 2001 letter, he stated in part:
“This letter will introduce you to Daniel R. Bérubé. Mr. Bérubé is a U.S. federal civil servant employed by the International Joint Commission and assigned to the position of Computer Systems Analyst/Coordinator, Great Lakes Regional Office. The Great Lakes Regional Office of the International Joint Commission is located at 100 Ouellette Avenue, 8th Floor, Windsor, Ontario.
Mr. Bérubé has been appointed to this full-time position on an indefinite basis and is residing in Belle River, Ontario along with his family during his employment with us.
Carolyn Marie Bérubé Spouse
Joseph P.D. Bérubé Son – Date of Birth: August 24, 1983
Annemarie S. Bérubé Daughter – Date of Birth: July 24, 1985
John M.R. Bérubé Son- Date of Birth: October 2, 1991
It would be greatly appreciated if you would issue health cards to his family members.”
[8] During the teleconference hearing of the appeal of Ms. Bérubé, heard on October 23, 2001, Ms. M. Dougall, now deceased, represented OHIP. The following appears at pp. 23 and 24 of the transcript of the appeal:
THE CHAIRPERSON: But Mr. Bérubé has a letter dated January 8, 2001 from the I.J.C. to Canadian Immigration Centre introducing him, I referred to that earlier. Why isn’t that letter the employment authorization? I would just like your submissions on that?
MS. DOUGALL: Because Mr. Bérubé was born in Canada, he still has his Canadian citizenship, he cannot enter Canada as a foreign person, a person with employment authorization or a student authorization or any other document that is given to persons who are not Canadian citizens. He entered Canada as a returning Canadian citizen.
THE CHAIRPERSON: And if Mr. Bérubé was not a Canadian and he held this letter from the I.J.C. …
MS. DOUGALL: He would enter …
THE CHAIRPERSON: … what would your view of that letter be, would it be the employment authorization referred to in Paragraph 6?
MS. DOUGALL: Yes.”
[9] In the March 28, 2002 unanimous Final Decision and Reasons of the three person panel, the following is stated:
“Because he was born in Montreal and is a Canadian citizen Mr. Bérubé does not require an employment authorization in order to work in Ontario. The General Manager therefore does not consider the January 8th letter to be an employment authorization as required by the Act. In her evidence before the Board, however, Ms. Dougall conceded that, in her opinion, were Mr. Bérubé not a Canadian citizen, this letter would be an employment authorization under subsection (6).
The Board must therefore determine whether Mr. Bérubé’s status as a dual citizen means that the January 8th letter outlining the terms of his employment in Ontario is or is not evidence of employment authorization as contemplated by the Act. Although Mr. Bérubé was born in Canada, he left the country when he was 18 years old and did not return for thirty-one years. In his letter, and in his oral testimony, he advised that he has been an American citizen since 1980 and he does not intend to remain in Canada at the end of this work assignment. Despite his Canadian citizenship the Appellant is thus also a citizen from another country with stable and continuous employment in Ontario for a period of time. The Board finds that the purpose of the regulation encompasses the coverage of individuals in Mr. Bérubé’s situation. The fact that Mr. Bérubé’s particular circumstance of dual citizenship cannot operate to interfere with the purpose of the legislation. Accordingly, the January 8th letter satisfies the requirements of subsection 6 and thus the Board finds that Mr. Bérubé is a resident of Ontario pursuant to section 1.1(6) of Regulation 552.”
[10] Mr. Bérubé lawfully holds dual citizenship, U.S. and Canadian. No reason has been given to us why Mr. Bérubé could not have been looked upon as a U.S. citizen, which he was, and qualify him under heading 6 of section 1.1(1)(b) of the Regulation which would thereupon qualify his wife. We see no reason why he should be disqualified because he holds U.S.A. and Canadian citizenship.
[11] At p. 5, para. [18] of counsel for the appellant’s factum, it states:
“Single Issue: Did the Health Services Appeal and Review Board commit an error when it found that the International Joint Commission’s letter of 8 January 2001 to an official of Citizenship and Immigration Canada was an “employment authorization under the Immigration Act (Canada)” as prescribed in section 1.1(1)(b) paragraph 6 of Ontario Regulation 552.”
[12] On the facts of this case, our answer to that question is a unanimous “no”. The appeal will be dismissed.
[13] I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for the oral reasons of even date which have been recorded. No costs are requested and none are awarded.”
O’DRISCOLL J.
MATLOW J.
JENNINGS J.
Date of Reasons for Judgment: May 10, 2004
Date of Release: June 23, 2004
COURT FILE NO.: 508/02
DATE: 20040510
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, MATLOW AND JENNINGS JJ.
B E T W E E N:
CAROLYN BÉRUBÉ
Appellant (Respondent on Appeal)
- and -
THE GENERAL MANAGER OF
THE ONTARIO HEALTH INSURANCE PLAN
Respondent (Appellant on Appeal)
ORAL REASONS FOR JUDGMENT
O’DRISCOLL J.
Date of Reasons for Judgment: May 10, 2004
Date of Release: June 23, 2004