“Migrant caregivers are recruited to work in Canada to care for our family members with disabilities. Yet, after years of providing this care, they are denied the right to remain because their own family members have disabilities. That disconnect is jarring” -- Fay Faraday, human rights lawyer

The following is an excerpt from the joint submission from the Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario (HALCO), and COCQ-SIDA to Immigration, Refugees and Citizenship Canada in November 2016. Read the full submission here.  

The Excessive Demand Regime

Canada has excluded immigrant with disabilities since before Confederation. The 1859 Act Respecting Emigrants and Quarantine prevented the admission of immigrants with physical or mental disabilities who were believed to impose financial burdens on the state or charitable institutions, followed by the 1910 Immigration Act which introduced “prohibited classes” of immigrants, stipulating an absolute prohibition of individuals with mental disabilities (such as “idiots, imbeciles, feeble-minded persons, epileptics, and insane persons”), while individuals who were “physically defective” (including “immigrants who are dumb or blind”) were still allowed to immigrate if they could prove sufficient support. The 1927 Immigration Act removed the exception for people with physical disabilities. Individuals in the prohibited classes were absolutely banned from coming to Canada, and the list of prohibited classes was expanded to include individuals who were either “mentally or physically defective to such a degree as to affect their ability to earn a living.” As a result, from the years 1927 to 1976, individuals with physical and mental disabilities were prohibited from immigrating to Canada.

In 2002, the Immigration and Refugee Protection Act (IRPA) came in force. The IRPA was the first significant update to Canada’s immigration laws since the 1976 Immigration Act. The excessive demand provision remained much the same in the IRPA as it had been in the 1976 Immigration Act, although the drafters removed any explicit references to “disability”.  

Section 38 of the IRPA now states that foreign nationals are inadmissible to Canada on health grounds if their health condition might reasonably be expected to cause an excessive demand on health or social services. Under section 42 of the IRPA, foreign nationals can also be inadmissible if they have an inadmissible family member (i.e., an inadmissible spouse or dependent child). However, the IRPA introduced two important incremental changes to the excessive demand regime. First, the IRPA created significant exceptions to excessive demand inadmissibility. Accepted refugees and protected persons, their spouses, common-law partners and dependent children; and spouses, common-law partners and dependent children sponsored through family class sponsorships are all now exempt from medical inadmissibility.

Second, IRPA’s associated Regulations set out, for the first time, a comprehensive definition of excessive demand.

Excessive demand is now defined as

(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 under paragraph 16(2)(b) of the Act, 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; or

(b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents.

The Regulations define “health services” as any health service where the majority of funds are contributed by governments, including the services of family physicians, medical specialists, chiropractors, hospital care, etc. “Social services” include home care, residential services, social services, and vocational rehabilitation services and for which the majority of funding is provided by the government. Immigration, Refugees and Citizenship Canada (IRCC) sets the excessive demand threshold annually by multiplying the per capita cost of Canadian health and social services by the number of years used in the medical assessment for the individual applicant.

The current excessive demand threshold is $6,655 per year (figure effective since January 1, 2017).