December 14, 2010

Important Medical Case at the Federal Court of Appeal

Today along with my colleague Mr. Rotenberg we argued a very important medical case at the Federal Court of Appeal. The certified question which I dealt with as rephrased by me asks the following:

Must the record before a Immigration Officer discharging the duty to review the determination of a Medical Officer that an applicant is medically inadmissible under section 38(1)(c) of the Act include adequate reasons substantiating the Medical Officer’s opinion, and the medical information upon which the Medical Officer based his or her opinion?

I argued the answer is yes because the adequacy of a visa officers reasons cannot be properly assessed unless the distinct but related admissibility decision of the medical officer is reasonable and based on a firm evidentiary foundation that the MO conducted an individualized assessment based upon medical and non-medical factors. The Respondent for Citizenship and Immigration Canada argued only the reasons of the visa officer are necessary. The panel of judges reserved but decision has far reaching implications in terms of transparency in the system and applicants being permitted to be active partners in the information gathering process to aid in an ultimate determination if a health condition will result in excessive demands on the health system. Stay tuned!