Court cases involving excessive demand

The Supreme Court of Canada (SCC) rendered its decision in Hilewitz v. Canada (M.C.I.) and De Jong v. Canada (M.C.I.) on Friday, October 21st 2005. In this case, the SCC held that the applicants’ ability and willingness to pay for social services and to make a commitment not to use publicly funded social services must be considered, when assessing whether they and their families are admissible to Canada as immigrants. Both applicants applied as business-class immigrants.

The SCC decided that the personal circumstances of the business-class applicants and their families were relevant factors in a section 19(1)(a)(ii) (Immigration Act, 1976) assessment of their anticipated impact on social services. The SCC emphasized that the appeals were restricted to the issue of social services and that they were raised in the context of individuals who qualify for admission in the “investor” and “self-employed” categories, which are, to a large extent, concerned with an individual’s assets. These categories reflect an aspect of immigration policy which admits individuals who are expected to make a more immediate, substantial economic contribution to Canada. The SCC emphasized the incongruity in interpreting legislation in such a way that the very assets that qualify investors and self-employed individuals for admission to Canada can simultaneously be ignored in determining the admissibility of their disabled children.

After an extensive review of the legislative history, the SCC also concluded that there was a legislative intention to shift away from an approach based on categorical exclusion, to one calling for more individualized assessments; thereby rejecting medical admissibility decisions based on condition alone (the “cookie-cutter” approach). In assessing whether an applicant’s health might reasonably be expected to cause excessive demand on health or social services, medical officers must determine the nature, severity and duration of an applicant’s disability or impairment and the applicant’s likely requirement for, and entitlement to, publicly funded health or social services. They must subsequently evaluate the demand for those services. (This remains the requirement for all classes of potential immigrants, but for a few exceptions, such as refugees, protected persons and some family members.)
Canada can design its immigration policy in a way that reduces exposure to undue burdens caused by potential immigrants. Since the notion of “excess demands” was first introduced in the Immigration Act, 1976, it has not been possible to base findings of medical inadmissibility on the mere existence of a medical condition. As per the Supreme Court in Hilewitz, assessing the potential requirement for services, based on the classification of the impairment, results in a generic rather than an individual assessment of the application. The relevant provisions of both the former Immigration Act and IRPA require that an individualized assessment be performed.

The majority of judges found that Hilewitz and De Jong’s ability and willingness to attenuate the burden on the public purse that would otherwise be created by their children were relevant factors in determining whether those children would reasonably be expected to cause excessive demand on Canada’s social services.

The SCC decision also found that the immigration officers’ failure to read the families’ responses to the procedural fairness letters meant that the decisions were not based on all relevant, available information.

The threshold as to whether or not an individual’s medical condition “would” or “might reasonably” be expected to result in excessive demand is reasonable probability and not remote possibility.