Instructions related to Procedural Fairness (Excessive Demand)

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

About procedural fairness

Visa/immigration officers are required to exercise procedural fairness. This includes stating the case to be met and reviewing all the information provided by the applicant in a fair and impartial manner. The applicant in turn is responsible for providing all the information requested by the CIC officer and any additional information which they would like to have considered. The onus is always on the applicant to provide the information necessary to overcome a potential decision of inadmissibility.

Medical and visa/immigration officers must consider all supporting evidence presented by an applicant in making a decision, especially any evidence presented by the applicant regarding ability and intent to offset the excessive demand on health and social services, and this consideration must be documented on file.

Decisions about excessive demand on Canadian social services must take into account evidence of the likely circumstances of the applicant or their family member once in Canada, including the intended province/territory of destination, as presented by the applicant.

Visa/immigration and medical officers should work closely together during the process and document this collaboration. If the immigration officer concludes that a medical opinion is unreasonable, incomplete, or based on insufficient information, the officer should seek clarification from the medical officer. The medical officer should also be advised of the final decision.

Identified social service needs, at the applicant’s option, may be addressed by means such as family support (including home schooling), community support, or purchased private-sector social services, for example:

  • If the intent is to receive non-financial assistance from a family member, other individual or organization, the applicant will have to demonstrate that this anticipated assistance is credible and meets the real needs of the individual.
  • If they intend to purchase private-sector social services, they will have to demonstrate that they have the intention and financial ability to defray the related costs and that this defrayment is feasible in the province/territory where they intend to reside. This information should include, for example, the name of the school and the name of the director of the school.
  • The quality of the planned services should be seen to meet not only the needs of the applicant or dependant, but also the provincial/territorial standards where they intend to reside. Applicants will need to demonstrate that the individuals or agencies providing these services have the appropriate qualifications and experience.

Identified health service needs (i.e., out-patient medication), at the applicant’s option, may be addressed by means such as a credible and viable private insurance plan. It is very important for the visa/immigration officer to verify whether or not the intended province or territory of residence has a government funded drug plan (e.g. the Ontario Trillium Drug Program), since the courts have been clear that a promise not to use a publicly available service is not enforceable.

Instructions
Recording the decision and document retention

All steps in the decision-making process must be documented in the applicable electronic system (CAIPS, GCMS, FOSS or CPC), including all communications, the applicant’s representative, and the medical section.

Copies of the applicant’s declaration regarding ability and intent to mitigate excessive demand in response to the procedural fairness letter, as well as all supporting documents and information, must be sent to the medical officer. The originals must remain in the immigration file.

Before entering a medical-admissibility decision, visa/immigration officers should always review the medical opinion, along with the material received from the applicant, and record the review process in the CAIPS, GCMS, FOSS or CPC system, as applicable. See a flow chart describing the assessment process.

Instructions for medical officers
  1. When a medical officer decides that a health condition involves excess demand on social services and/or out-patient drugs, the medical officer will:
    • write a medical narrative on the IMM 5365B Medical Notification;
    • code the medical file as:
      • M5 (excessive demand) with one of the following sub-codes:
        • T9 - for excessive demand on social services;
        • H9 - for excessive demand on health services;
        • E9 - for displacement of Canadians who are on a waiting list
      • M45/M56 if the foreign national has a health condition that might reasonably cause an excessive demand in addition to a condition that is likely to cause a danger to public health and/or public safety.

        Note: For M45/M56 cases, the applicant’s ability and intent to mitigate excessive demand does not apply to the medical conditions which are likely to cause a danger to public health or public safety.

    • write a list of the required social services and/or out-patient medication and the overall anticipated costs. The list of social services and/or out-patient medication should be based on a detailed assessment, recommendations provided by a recognized specialist in the field and the experience and knowledge of the medical officer. The medical officer may consult colleagues or Canadian experts, as necessary;
    • provide a statement as to the probable costs of anticipated health services (i.e., out-patient medication) and/or social services which would likely exceed the average Canadian per capita health and social services costs over a period of time; and
    • state the period considered to the visa/immigration officer (in the medical officer’s opinion).
  2. When reviewing the information submitted in response to the procedural fairness letter, the medical officer will:
    • acknowledge receipt of the applicant’s response, and keep a confirmation of receipt in the medical file;
    • review the entire medical file, as well as the newly submitted material, before an opinion is provided and documented in the record;
    • consider any supporting documentation provided. The medical officer may take into consideration a variety of factors, including the following:
      • the availability of the planned alternative;
      • the feasibility and quality of the service-delivery method; and
      • the funding of the organization delivering the service, where applicable (is it funded by federal, provincial or territorial governments, to such an extent as to fall within the regulatory definition of social services?).
    • determine whether the affected individuals would still cause excessive demand on anticipated health services (i.e., out-patient medication) and/or social services, if they were to follow the plan as outlined. In doing so, the medical officers use their medical expertise and knowledge of the Canadian health and social services sector; and
    • provide a medical opinion to the visa/immigration officer, who will review it and record the process in the CAIPS, GCMS, FOSS or CPC system.

      Note: Medical officers will not address issues of financial ability and intent, but may direct questions to the visa/immigration officers, if there are issues that could affect their assessment.

      Note: The onus is always on the applicant to provide the information necessary to overcome a decision of inadmissibility. The information provided by the applicant must be of a quality and standard that permits an appropriate assessment. If the information provided within the allowed period of time is not satisfactory or if no information is provided, the medical officer may provide an opinion that the applicant or family member is inadmissible due to the medical condition.

Instructions for visa/immigration officers
  1. Upon receipt of this opinion from the medical officer (with accompanying narrative report, list of social services and/or out-patient medication and overall expected costs), the visa/immigration officer will:
    • send the procedural fairness letter (excessive demand), the relevant sections of the Immigration and Refugee Protection Regulations, and the Declaration of Ability and Willingness to the applicant. This letter invites the applicant to provide the additional information required to overcome the finding of inadmissibility;
    • ensure the procedural fairness letter explicitly informs the applicant of the required care and social services and/or out-patient medication that are critical to the individual being assessed as medically inadmissible (M5); and
    • ensure the procedural fairness letter explains that the applicant must demonstrate they have a plan to obtain all the services and manage the costs associated with the services as outlined in the letter and/or provide an alternate detailed plan with costs.

      Note: The applicant may then decide to:

      • accept the medical opinion and not respond to the procedural fairness letter;
      • challenge the medical opinion and/or assessment of excessive demand; or
      • accept the medical opinion and submit a proposed plan which details where they will secure the essential services, the cost of these services and/or out-patient medication, and how they will pay for the services.
  2. In cases where applicants contact the office prior to the end of the given time-frame to indicate that they intend to make submissions but require additional time (to gather the required information), the visa/immigration officer should review the request and consider granting an extension.
  3. Upon receipt of the applicant’s response to the procedural fairness, the visa/immigration officer will:
    • will review the response to the procedural fairness letter;
    • will verify, as needed, the authenticity of the plan, the validity of the associated costs and the cost mitigation strategy proposed by the applicant. This may mean the immigration/visa officer will need to contact social services agencies or provincial health or educational authorities as identified in the applicant’s plan;
    • must be satisfied that the applicant has the ability and intent to mitigate the cost of the required health (i.e., out-patient medication) and/or social services;
    • may send a follow-up request to the applicant if the applicant has not provided complete, detailed information in response to the list of required health (i.e., out-patient medication) and/or social services and the overall expected cost. The follow-up request should specify a time in which to respond to the request and inform the applicant that if no further information is received, a decision would be made using the information on file;
    • should request the opinion of the medical officer if the applicant challenges the diagnosis or the required treatment and, if warranted, seek the opinion of the medical officer on the nature of the plan and whether the services proposed are acceptable, within the Canadian context, considering the medical condition; and
    • will keep a confirmation of the medical officer’s receipt of the applicant’s response in the immigration file (if applicable).
Procedural fairness outcomes for different scenarios
If the applicant does not respond to the procedural fairness letter within the given time-frame

The visa/immigration officer will finalize the application based on the existing information on file.

If the applicant challenges the medical opinion and/or excessive demand assessment but has not provided a declaration of ability and intent or a plan to mitigate the excessive demand on health and social services, upon review the medical office may do one of the following:
  1. withdraw the opinion of inadmissibility and requests additional information when the applicant�s submission are insufficient to reach a medical opinion;
    • The applicant will have provided information that leaves the medical officer in doubt regarding the initial medical assessment; however, the applicant has provided insufficient information to make a final decision. The medical officer will withdraw the current opinion of inadmissibility and request additional information from the applicant in order to reach a new medical assessment
      OR
  2. maintain the original medical assessment;
    • The applicant has not provided sufficient information to overcome the initial medical assessment. The medical officer will communicate to the visa/immigration officer that the original medical assessment remains in effect.
    • The visa/immigration officer finalizes the application based on the existing information on file, considering all the circumstances of the case and, if appropriate, the case may be refused based on inadmissibility on health grounds.
      OR
  3. issue a new medical opinion of inadmissibility;
    • The applicant is notified of the new inadmissibility, and applicable procedural fairness procedures apply.
      OR
  4. determine that the applicant is no longer inadmissible
    • The applicant or applicant’s family member is no longer inadmissible and the file proceeds as per standard procedures.
If the applicant submits a declaration of ability and intent as well as supporting documentation to mitigate the excessive demand on Canadian health and social services (the applicant may or may not have challenged the medical assessment), upon review, the medical officer may do one of the following:
  1. withdraw the opinion of inadmissibility and requests additional information when the applicant�s submission are insufficient to reach a medical opinion;
    • The applicant will have provided information that leaves the medical officer in doubt regarding the initial medical assessment; however, the applicant has provided insufficient information to make a final decision. The medical officer will withdraw the current opinion of inadmissibility and request additional information from the applicant in order to reach a new medical assessment
      OR
  2. maintain the original medical assessment;
    • The medical officer will communicate to the visa/immigration officer that the original medical assessment remains in effect.
    • The visa/immigration officer finalizes the application based on the existing information on file, considering all the circumstances of the case and, if appropriate, the case may be refused based on inadmissibility on health grounds.
      OR
  3. issue a new medical opinion of inadmissibility;
    • The applicant is notified of the new inadmissibility, and applicable procedural fairness procedures apply.
      OR
  4. determine that the applicant is no longer inadmissible;
    • The applicant or applicant’s family member is no longer inadmissible and the file proceeds as per standard procedures.
      OR
  5. determine that the applicant (or family member) may no longer present an excessive demand
    • The medical officer should maintain the original medical opinion, but add a note that draws the additional mitigating factors to the attention of the visa/immigration officer.
    • The visa/immigration officer reviews the medical opinion in conjunction with the applicant’s Declaration of Ability and Willingness, the supporting documents, and any other relevant file information, and determines, on a balance of probabilities, whether the applicant will follow through on the commitment made (e.g. the likelihood of compliance on the part of the principal applicant to use the outlined alternative services in the intended province/territory of residence).
      See also Procedural Fairness Algorithm
Assessing declarations of ability and willingness

A declaration of ability and intent submitted without a supporting plan is not sufficient to establish that an applicant or an applicant’s family member will not impose an excessive demand on Canadian health (i.e., out-patient medication) and/or social services. A declaration of ability and intent must be supported by a credible plan. The quality of the mitigating plan is the most significant element in assessing ability and intent, and the plan should reflect the individual needs of the affected person.

To assist the immigration officer, the medical officer may have questioned the viability of the plan as part of the medical opinion. It is the responsibility of the immigration officer to decide whether the questions are of concern or not. In order to assess the applicant’s ability and intent, the immigration officer may want to gather additional information from the applicant by way of a letter or an interview. The immigration officer may consider a variety of factors, including the following:

  • If expenses must be incurred is it likely that the applicant will have the financial ability to cover these expenses, considering the full period covered by the medical opinion? Would persons applying under the investor, entrepreneur or self-employed classes still meet the definition of the class without this money? What is the applicant’s prospect of employment? Will the proposed employment cover normal living expenses and the cost of the health (i.e., out-patient medication) and/or social services required?
  • If the applicant intends to receive support from a family member, other individual or an organization, how likely is it that this person/organization will provide free or cost-reduced assistance for the period of time assessed? How legitimate is this offer of assistance? Has the individual/organization done this in the past? Can the qualifications and experience of the individual/organization be confirmed? If the individual/organization will provide this service without remuneration, do they have the financial ability to do so? Where this type of information is not readily available in the file, the officer may request additional information from the applicant.
  • At what point is the applicant in terms of planning? If the applicant is outside Canada, have they already made all the arrangements for the services to be delivered upon arrival? If the applicant is in Canada, have they relied on publicly funded services in the past? How serious do they appear to be with regard to this plan?
  • Has the applicant relied on publicly funded services in the past in the country where the applicant resided? Are publicly funded services available in the country where the applicant resides or resided? Are privately funded services available in the country where the applicant resides or resided?

If the immigration officer is not satisfied, and a consideration of all the circumstances of the case suggests that a refusal is appropriate, the officer may refuse the application for inadmissibility on health grounds. Again, detailed case notes are made in the CAIPS, FOSS or CPC system.

If the immigration officer is satisfied that the applicant, or applicant’s family member, will not cause excessive demand on health and social services, the officer enters a positive medical admissibility decision. The case then proceeds towards finalization as per standard procedures. The declaration of ability and intent is retained on file, and detailed case notes are made in the CAIPS, FOSS or CPC system.

Coding for excessive demand cases following a favourable procedural fairness outcome

At the end of the process, if the applicant has satisfied the visa/immigration officer that they have the ability and intent to mitigate the cost of the required social services, the visa/immigration officer will change the excessive demand code (H9, T9, or E9) with a positive excessive demand code (H1, T1, or E1) in FOSS or CAIPS, as applicable. Although the medical assessment code will remain unchanged (M5), CAIPS will permit a Final Decision code “1” (visa issued).

With GCMS, instead of putting in a code “1”, the officer will select “Pass” for the medical on the visa/immigration officer side; this will not change any of the information on the medical evaluation.

Procedural Fairness Algorithm
Procedural Fairness Algorithm described below
  1. The medical officer withdraws the opinion of inadmissibility and requests additional information when the applicant’s submission are insufficient to reach a medical opinion;
    • The applicant will have provided information that leaves the medical officer in doubt regarding the initial medical assessment; however, the applicant has provided insufficient information to make a final decision. The medical officer will withdraw the current opinion of inadmissibility and request additional information from the applicant in order to reach a new medical assessment
  2. Medical Officer sends to Immigration/Visa Officer:
    Medical opinion of excessive demand on health (i.e. out-patient medication) and/or social
  3. Immigration/Visa Officer sends applicant:
    1. Procedural Fairness Letter (excessive demand)
    2. Immigration and Refugee Protection Regulations
    3. Declaration of Ability and Intention
  4. Applicant responds within 60 days
    • Applicant: challenges medical opinion
    • Applicant: challenges excessive demand
    • Applicant: provides mitigation plan
    • Immigration/Visa Officer and/or Medical Officer: Review all submitted material
      1. Not successful?
        • Medical officer: maintains original assessment
        • InadmissibleA38(1)(c)
        • Refusal Letter
          Or
        • Medical officer: issues new medical opinion of inadmissibility
        • New medical inadmissibility
        • New procedural fairness Letter
      2. Successful?
        • Medical officer: determines that the applicant may no longer be inadmissible
        • Process toward finalization
          Or
        • Medical officer: determines that the applicant may no longer represent an excessive demand
        • Process toward finalization
  5. Applicant does NOT respond within 60 days
    • InadmissibleA38(1)(c)
    • Refusal Letter
Court cases involving excessive demand
Supreme Court of Canada

Summary of the Supreme Court of Canada decision in Hilewitz and De Jong

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.

Releasing medical information

Medical information is highly sensitive personal information. The privacy of each family member must be respected. Applicants and authorized representatives do not have a right to access the medical information of other family members except to the extent that such information is strictly required for the purpose of ensuring procedural fairness and for the purpose of the decision-making process.

Medical information may be released only in the following circumstances:

  • To the applicant - applicant’s medical information
    Officers may disclose to the principal applicant a copy of the medical officer’s diagnosis and narrative description of his/her medical condition.
  • To the applicant - adult family member’s medical information
    The applicant may be given the medical officer’s diagnosis and narrative description of the medical condition of adult family members but only if strictly required for purposes of procedural fairness and the immigration application decision making process. The applicant should only receive relevant information about a medical condition of an adult family member that will potentially result in refusal of the application or imposition of a medical surveillance condition.
  • To the parent or legal guardian - minor child’s medical information
    Officers may disclose to the parent or legal guardian of a minor child a copy of the medical officer’s diagnosis and narrative description of the medical condition of the child.
  • To an authorized representative
    Once the Use of a Representative Form is signed (IMM5476) and it has been determined that the representative is authorized, officers may disclose a medical officer’s diagnosis and narrative description of the medical condition of the applicant and family members to authorized representatives for purposes related to procedural fairness and the immigration application decision making process. The authorized representative should only receive relevant information about a medical condition that will potentially result in refusal of the application or imposition of a medical surveillance condition.
  • To a sponsor
    Officers may disclose to a sponsor the medical officer’s diagnosis and narrative description of the medical condition of a person to be sponsored, for purposes strictly related to procedural fairness and the immigration application decision-making process. Sponsors should only receive relevant information about a medical condition of an adult person to be sponsored that will potentially result in refusal of the application or imposition of a medical surveillance condition.
  • To provincial and territorial health and social services (excessive demand and medical sur-veillance only)
    Officers may disclose medical information of applicants and family members to provincial and territorial health and social services agencies only where required for excessive demand assessments and to ensure compliance with medical surveillance conditions.

Any other requests for release of medical information should be referred to the Health Branch at Headquarters

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