20/07/2017 - Marisa Mastrogiovanni
This Week’s Success Story: Couple Reunites in Canada After Subsequent Refusals/Removal Order
Canadian Immigration Blog
New Financial Threshold for Medical Inadmissibility Announced
Section 38(1)(c) of the IRPA was established to protect Canadians from people who might reasonably be expected to cause excessive demand on health or social services. The legislative scheme aims to protect public safety and a finite resource base for health and social services.
Excessive demand means, (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these Regulations, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years.
Social Services mean, any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services, (a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and (b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies.
These definitions clearly indicate the costing element, the source, and the percentage amount contributed by the Applicant to be critical components of the assessment. The Supreme Court of Canada has confirmed this in Hilewitz, finding that the failure to conduct an individualized assessment would result in speculative findings:
 These views, it seems to me, undermine and contradict the direction in the legislation that a person can only be found to be ineligible for admission if his or her admission “would” or “might reasonably be expected” to cause excessive demands. That means that something more than speculation must be applied to the inquiry.
Section 38(1)(c) also requires an Officer to determine whether an applicant has a health condition that might reasonably be expected to cause excessive demand on health or social services. It is not enough for the Officer simply to find that the applicant has a health condition. Instead, the Officer must conduct the individualized assessment to determine the “repercussions” that each particular applicant’s condition will have on those services – if utilized. It is important to recall that not every demand is excessive, and a Medical Officer is not entitled to presume that a particular medical condition or disability must necessarily result in excessive demand. The Supreme Court of Canada held in Hilewitz, at par. 56 that an assessment must be carried out for each 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.
As in Sapru v. Canada (M.C.I.), 2011 FCA 35, Justice Dawson, at par. 36, directed that when an applicant submits a Plan for managing her condition, the Medical Officer must consider and advise the Immigration Officer about the feasibility and availability of the plan with respect to both medial and non-medical factors.
Effective January 1, 2017, the updated cost threshold is $6,655 per year. This figure is generally multiplied by five and this results in the legislated threshold of $33,275.
To learn more about Medical Inadmissibility, please click here.