Court File and Parties
COURT FILE NO.: CV-14-513542 DATE: 20170214 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICHAEL WRIGHT, Plaintiff AND: NICOLE WRIGHT and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants
BEFORE: Mr. Justice P.J. Cavanagh
COUNSEL: J. Dannial E.S. Baker, for the Plaintiff Heather Burnett, for the Defendant, Her Majesty the Queen in Right of Ontario
HEARD: February 2, 2017
Endorsement
[1] This action involves the plaintiff’s claim in respect of his sponsorship of his wife, Nicole Wright, as a permanent resident under the Immigration and Refugee Protection Act, S.O. 2001, c.27.
[2] In his statement of claim, the plaintiff claims:
a. a declaration that Nicole Wright was not entitled to the social assistance which was paid to her by the Ontario Ministry of Community and Social Services during her sponsorship period by the plaintiff; and
b. the return to the plaintiff or judgment in the amount of any monies paid to Her Majesty the Queen in Right of Ontario (“Ontario”) in regards to monies otherwise payable to the plaintiff but confiscated to satisfy claims against the plaintiff due to his sponsorship of Nicole Wright.
Nature of Motion
[3] Ontario moves for summary judgment dismissing the plaintiff’s claim on the ground that there is no genuine issue requiring a trial.
[4] The plaintiff has pleaded in his statement of claim that:
a. He sponsored Nicole Wright in regards to her immigration to Canada.
b. As part of that sponsorship, he undertook to repay any social assistance paid to Nicole Wright during a specified period of time.
c. It was and is an implied term that such repayment only applies to rightful payments and does not include payments to Nicole Wright during such times that she was ineligible for social assistance.
d. Nicole Wright made applications to Ontario for, and received, social assistance during the period of the Sponsorship Obligation during times for which she was ineligible for such assistance.
e. Her Majesty, the Queen in Right of Canada has been requested by Ontario to confiscate monies payable to the plaintiff by way of income tax and other federal refunds or rebates in reliance of the Sponsorship Obligation.
f. The plaintiff denies any monies were owed by him as a result of the Sponsorship Obligation.
g. The plaintiff is seeking an interlocutory and permanent injunction against Ontario [to restrain it] from attaching any federal refund or rebate otherwise payable to the plaintiff in regards to the Sponsorship Obligations claimed by Ontario.
h. The plaintiff seeks a return of any monies or in the alternative, a judgment against the defendants in the amount of any monies delivered to Ontario in regards to the Sponsorship Obligation.
[5] The defendant Nicole Wright has been noted in default in this action. This motion was adjourned in November at her request to give her time to retain counsel to represent her interests on this motion. Ms. Wright did not retain counsel and she did not appear in person on this motion. Nevertheless, in my view, her rights are not affected on this motion. The plaintiff is not proceeding with a motion to obtain default judgment against her, and no relief is sought against her on this motion. It is proper to proceed with this motion in the absence of Ms. Wright.
Positions of the Parties
[6] The position advanced on behalf of Ontario is that this motion raises the legal question of whether a sponsor has a statutory obligation to repay a sponsorship debt regardless of whether the sponsoree obtains social assistance fraudulently. The answer, according to the submission of counsel for Ontario, is yes. On this basis, Ontario submits that there is no genuine issue requiring a trial.
[7] In support of its position on this motion, Ontario points to the Immigration and Refugee Protection Regulations, SOR/2002-227 made under the Immigration and Refugee Protection Act S.C. 2001, c. 27.
[8] Subparagraph 132(1)(b)(i) of these Regulations provides as follows:
Subject to subsection (2), the sponsor’s undertaking obliges the sponsor to reimburse Her Majesty in Right of Canada or a province for every benefit provided as social assistance to or on behalf of the sponsored foreign national and their family members during the period … (b) ending (i) if the foreign national is the sponsor’s spouse, common-law partner or conjugal partner, on the last day of the period of three years following the day in which the foreign national becomes a permanent resident, …
This is the source of the statutory obligation that would apply in this case for a sponsor to reimburse Ontario for every benefit provided as social assistance to or on behalf of the sponsored person.
[9] The plaintiff signed a sponsorship agreement which, among other things, included the following as part of the plaintiff’s undertaking:
I understand that, pursuant to section 135 of the Regulations to the Immigration and Refugee Protection Act, if I breach any of my sponsorship obligations I will be in default. I also understand that I will be in default if a government makes a payment that I have promised to repay in this undertaking. For example, I failed to provide for the basic requirements of the sponsored person and his or her family members and they receive social assistance during the validity period of the undertaking, I will be in default. I understand that I will continue to be in default until the amount of the benefits received are repaid in full or re-paid to the satisfaction of the government concerned.
I understand that all social assistance paid to the sponsored person or his or her family members becomes a debt owed by me to Her Majesty in Right of Canada and Her Majesty in Right of the province concerned. As a result, the Minister and the province concerned have a right to take enforcement action against me (as sponsor or co-signer) alone, or against both of us.
[10] According to the evidence delivered on behalf of Ontario, Nicole Wright was granted social assistance from Ontario Works, Region of Peel (“Peel”), which is a program that provides and administers social assistance to eligible members of the public in Ontario. According to the evidence delivered on behalf of Ontario, Ms. Wright received social assistance under the Ontario Works program from January 7, 2011 until July 31, 2012. Notification letters were sent to the plaintiff by the Social Assistance Central Services Branch of the Ministry of Community and Social Services (“SACS”) on July 12 and July 23, 2013. On July 24, 2013. SACS received a telephone call from the sponsor in response to the first notification letter in which he stated that the sponsored member had committed fraud. The plaintiff requested a Statement of Account which was sent to him by mail and shows a balance as of July 24, 2013 of $7,105.32.
[11] There were additional communications between counsel for the plaintiff and SACS concerning requests for a monthly breakdown of the social assistance payment provided to Nicole Wright in which the plaintiff’s counsel advised that Ms. Wright was not eligible for social assistance and that she had committed fraud against Ontario Works because of her high income.
[12] According to the plaintiff’s evidence, he was advised in early 2011 that Nicole Wright had applied for social assistance effective January, 2011. He contacted the Social Assistance Fraud Line and informed them that he had paid support until the end of February 2011. He informed the fraud line person that Nicole Wright had just received a substantial amount due to an insurance claim and was not in need of social assistance.
[13] According to the plaintiff’s affidavit, the person on the Fraud line informed him that they would make inquiries and that he need not make any further support payments to Nicole Wright as she could support herself. According to the plaintiff’s affidavit, he was told that Mississauga Community and Social Services would investigate.
[14] According to the plaintiff’s evidence, Nicole Wright commenced an application in the Ontario Family Law Courts at Brampton for retroactive and ongoing spousal and child support but was only granted an Order for child support of which the plaintiff is up to date. The plaintiff’s evidence is that he has not breached any support obligations in regards to Nicole Wright.
[15] The statement of claim contains a pleading that the plaintiff’s undertaking made in the sponsorship agreement to repay any social assistance paid to Ms. Wright includes an implied term that such repayment only applies to rightful payments and does not include payments during such times as Ms. Wright was ineligible for such social assistance. The plaintiff also submits that his obligation arising pursuant to the immigration sponsorship agreement is not an absolute obligation to reimburse Ontario for benefits provided as social assistance to Ms. Wright, and that the equitable doctrines of fairness and estoppel can be raised in these circumstances. The plaintiff submits that Ontario is estopped from claiming that the plaintiff owes it any monies due to his sponsorship obligations.
[16] The plaintiff submits that Peel acted as agent for Ontario. He submits that whether Peel acted reasonably in (i) paying the social benefits, (ii) not clawing back from Ms. Wright the social benefits that were paid, or (iii) not crediting amounts clawed back to the plaintiff’s account (as sponsor) raise genuine issues requiring a trial.
Analysis
[17] In Hyrniak v. Maudlin, [2014] 1 S.C.R. 7, the Supreme Court of Canada explained that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[18] The Supreme Court of Canada in Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504 addressed the question that arises on this motion. In Mavi, Binnie J., writing for the court, addressed the obligation of a sponsor who has given an undertaking of support such as the one in this action. Binnie J. held, at paras. 65, 70 and 79, that under the statutory framework, the government can defer, but not forgive a sponsorship debt. Therefore, Ontario has no discretion to forgive a sponsorship debt, but only discretion to defer its collection in appropriate circumstances, such as when the sponsor cannot afford to repay the debt owing.
[19] In Mavi, Binnie J. addressed whether the circumstances under which a sponsored relative receives social assistance affect the statutory obligation of a sponsor to reimburse a province for the amount of social assistance payments provided to a sponsored relative. He wrote, at para. 76:
[I]t is inherent in the sponsor’s support obligation that the sponsor is to keep track of the sponsored relative he or she has undertaken to support. Family class immigrants are admitted solely on the basis of their relationship to the sponsor. In return, the sponsor, not the government, is “responsible for preventing the family member and any accompanying dependents from becoming dependent on public social assistance programs”. Accordingly, the risk of a rogue relative properly lies in the sponsor, not the taxpayer. (Emphasis in original)
I therefore accept the submission on behalf of Ontario that the circumstances under which Nicole Wright obtained social assistance have no effect on the plaintiff’s statutory obligation to reimburse Ontario for the amount of the social assistance payments provided to Ms. Wright.
[20] Although in his oral submissions counsel for the plaintiff took issue with the amount of social assistance payments received by Nicole Wright, the statement of claim, in paragraphs 6 and 7, pleads that social assistance payments were made to her during such times that she was ineligible to receive them. There is no assertion in the statement of claim that Ontario recovered from Ms. Wright amounts that had been paid to her for social assistance or that Ontario failed to provide proper credits for amounts recovered from Ms. Wright.
[21] The motion for summary judgment brought by Ontario must be considered having regard to the specific claims made by the plaintiff in his statement of claim. This is not an action for damages based upon an alleged breach of any duty of care owed as a matter of law.
[22] In my view, the claim in subparagraph 1(a) of the statement of claim for a declaration that Nicole Wright was not entitled to the social assistance which was paid to her by the Ontario Ministry of Community and Social Services during her sponsorship period by the plaintiff is not one that, even if accepted, would result in a finding that would affect the rights of the plaintiff in this action. Whether Ms. Wright was entitled to receive the social assistance that was provided does not affect the plaintiff’s statutory obligation to reimburse Ontario. Therefore, in my view, no useful purpose would be served by granting the declaration sought, and there is no genuine issue requiring a trial in respect of this claim.
[23] With respect to the claim for relief in subparagraph 1(b) of the statement of claim in relation to monies “confiscated” by or on behalf of Ontario, I note that the plaintiff does not claim that any money has been confiscated from him to satisfy the statutory obligation that arises as a result of payments to Nicole Wright of social assistance benefits. Although the plaintiff pleaded a request for injunctive relief in the body of his statement of claim, his counsel has acknowledged that injunctive relief is not available against the Crown under the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, Schedule B. Therefore, there is no factual basis for the relief sought in subparagraph 1(b) of the statement of claim.
[24] I therefore conclude that, as a matter of law, the statutory sponsorship obligation to which the plaintiff is subject (to reimburse Ontario for every benefit provided as social assistance to Ms. Wright during a three year period of time) and the undertaking in his sponsorship agreement do not include an implied term that such repayment only applies to rightful payments and does not include payments paid to Nicole Wright during such times as she was ineligible for such social assistance.
[25] No authority was given to support the plaintiff’s submission that the doctrine of estoppel applies to preclude Ontario from enforcing the plaintiff’s statutory obligation to reimburse Ontario for the social assistance benefits provided to Ms. Wright. It is well settled that the doctrine of estoppel cannot apply against Ontario to prevent the operation of a statute: Canada Post Corp. v. G3 Worldwide (Canada) Inc., 2007 CarswellOnt 2872 (C.A.), at para. 44.
[26] Whether Peel acted as agent for Ontario and whether Peel (or Ontario) acted reasonably in (i) paying social benefits to Ms. Wright, (ii) not clawing back from her social assistance benefits that were paid, or (iii) not crediting amounts clawed back to the plaintiff’s account (as sponsor) do not raise genuine issues requiring a trial.
[27] I am, therefore, satisfied that there is no genuine issue requiring a trial with respect to the plaintiff’s claim.
[28] During the course of his submissions, counsel for the plaintiff submitted that, if Ontario’s motion were to be granted, the plaintiff requested leave to amend his statement of claim to dispute that social assistance payments were received by Ms. Wright, once amounts recovered by Ontario from her were taken into account. In my view, such an amendment, if granted, would not result in there being a genuine issue requiring a trial in respect of the claims made in the action, given that the plaintiff does not allege in the statement of claim that any monies have been confiscated from him. I therefore decline to grant leave to the plaintiff to amend his statement of claim.
Disposition
[29] The motion for summary judgment brought by Ontario is granted and the plaintiff’s action as against Ontario is dismissed.
[30] Ontario requested costs of this action in the aggregate amount of $5,305.75 comprised of fees of $4,725, counsel fee for the motion of $270, and disbursements of $310.75. Although the amount of social assistance payments received by Nicole Wright was not large, the issues raised on this motion are important ones for Ontario. I regard the amount of time expended and the partial indemnity rate claimed by Ontario to be reasonable. The amount of costs claimed by Ontario would be within the range of costs that the plaintiff would expect to pay if unsuccessful. I therefore award costs to Ontario in the amount of $5,305.75.