H&C Consideration – The Excessive Demand on Health and Social Services: Definitions

/ / Published in Humanitarian and Compassionate (H&C) Consideration, Immigration, Immigration Manuals

Officers would need to note that for all cases of excessive demand on health services, the procedural fairness processes remain the same as for danger to public health and safety. This is especially so because the authorities do not treat the ability and the intention of defraying expenses as relevant factors. However, it is worth highlighting that this ruling does not apply to outpatient medication.

The Excessive Demand on Health Services

The authorities define ‘health services’ as any health services for which the government typically contributes the majority of funds. This would include the services of:

  • Family physicians

  • Medical specialists

  • Nurses

  • Chiropractors and physiotherapists

  • Laboratory services and,

  • The supply of pharmaceutical or hospital care

This is in accordance with the provisions specified in Section R1 (refer to Appendix A).

In addition, the case law has developed separate requirements for excessive demand on health services. It has also developed separate requirements for excessive demand on social services. It is worth highlighting that most health services are publicly funded. As such, they do not have any cost recovery mechanisms. Because of this, the courts have held than an applicant’s willingness or ability to pay is not a relevant factor.

For instance, in Deol v. Canada (MCI), 2002 FCA 271, the Federal Court of Appeal stated:

“The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces or promises to reimburse the costs of any services required.”

At the same time, it is worth highlighting that in Companioni v. Canada (MCI), 2009 FC 1315 and later cases, the Federal Court permitted the authorities some flexibility in assessing the applicant’s ability to defray the costs of outpatient medication. An example of such outpatient medication could be HIV antiretroviral therapy. Therefore, medical officers would need to make individualised assessments of:

  • The medical file

  • The required outpatient medication

  • The availability of private insurance and,

  • The ability to opt out of publicly funded drug plans in the province or territory where the applicant intends to reside

The Excessive Demand on Social Services

The authorities define ‘social services’ as any social services comprising:

  • Home care

  • Specialised residence and residential services

  • Special education services

  • Social and vocational rehabilitation services

  • Personal support services and,

  • The provision of devices related to those services:

    • That are intended to assist people in functioning physically, emotionally, socially, psychologically or vocationally and,

    • For which the majority of the funding, including funding that provides direct or indirect financial support to the assisted individuals, comes from contributions made by the government, either directly or via publicly funded agencies

This is in accordance with the provisions specified in Section R1 (refer to Appendix A).

Immigration, Refugees and Citizenship Canada (IRCC) officers will need to consider all the evidence presented by the applicants. Only then should they make a decision of inadmissibility because of excessive demand on social services. This is in accordance with the decisions of the Supreme Court in Hilewitz v. Canada (MCI), De Jong v. Canada (MCI), 2005 SCC 57. In addition, it is in accordance with the decision of the Federal Court of Appeal in Colaco v. Canada (MCI), 2007 FCA 282. It is worth highlighting that these judgments apply to all categories of immigrants.

In Hilewitz and De Jong, the Supreme Court determined that all applicants are entitled to assessments of the probable demands their disability or impairment could place on social services. As such, the authorities require that the applicants provide the officers with information of sufficient quality and detail. This information would enable the officers to carry out assessments of the probable need for social services. In addition, applicants could provide evidence of ability as well. Moreover, applicants could also provide the intent to reduce the cost and impact on Canadian social services. The officers would need to consider all of these while making a decision.

The Cost Threshold for Health and Social Services

Officers typically determine the cost threshold by multiplying the per capita cost of Canadian health and social services by the number of years used in the medical assessments for the individual applicants. The authorities typically update this cost threshold each year.

At present, the updated cost threshold stands at $6,450 per year. Officers usually multiply this figure by five. The only time that officers would not multiply this figure by five is when the anticipated length of stay is shorter than five years. Similarly, officers would not multiply this figure by five when they find that evidence exists that significant costs are likely to be incurred beyond that period. In this scenario, the period would not be more than 10 successive years. This results in the legislated threshold of $32,250. These cost thresholds have come into effect since December 01, 2015.