Last Updated on January 4, 2017 by Steven Meurrens

This is a companion post to my post on excessive demand here. It is more geared to lawyers and other readers of jurisprudence.

Section 38(c) of the Immigration and Refugee Protection Act states:

38 (1) A foreign national is inadmissible on health grounds if their health condition

(c) might reasonably be expected to cause excessive demand on health or social services.

Hilewitz v. Canada

The leading Supreme Court of Canada decision on excessive demand is Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 706, 2005 SCC 57.  The appeal was restricted to social services.  Prior to this decision, the jurisprudence suggested (or at least was divided on) that a family’s resources should be disregarded in determining whether their disabled children would create an undue burden on Canada’s social services.  The Supreme Court of Canada, in a 7-2 decision, disagreed.

The Supreme Court stated:

The term “excessive demands” is inherently evaluative and comparative. Without consideration of an applicant’s ability and intention to pay for social services, it is impossible to determine realistically what “demands” will be made on Ontario’s social services. The wording of the provision shows that medical officers must assess likely demands on social services, not mere eligibility for them.

To do so, the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services.

This, it seems to me, requires individualized assessments. It is impossible, for example, to determine the “nature”, “severity” or probable “duration” of a health  impairment without doing so in relation to a given individual.  If the medical officer considers the need for potential services based only on the classification of the impairment rather than on its particular manifestation, the assessment becomes generic rather than individual.  It is an approach which attaches a cost assessment to the disability rather than to the individual.  This in turn results in an automatic exclusion for all individuals with a particular disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds.

The issue is not whether Canada can design its immigration policy in a way that reduces its exposure to undue burdens caused by potential immigrants. Clearly it can. But here the legislation is being interpreted in a way that impedes entry for all persons who are intellectually disabled, regardless  of family support or assistance, and regardless of whether they pose any reasonable likelihood of excessively burdening Canada’s social services. Such an interpretation, disregarding a family’s actual circumstances, replaces the provision’s purpose with a cookie-cutter methodology. Interpreting the legislation in this way may be more efficient, but an efficiency argument is not a valid rebuttal to justify avoiding  the requirements of the legislation. The Act calls for individual assessments.  This means that the individual, not administrative convenience, is the interpretive focus.