CIMM Committee Report

Dissenting Report of Her Majesty’s Official Opposition

The Conservative Party of Canada

Federal Government Policies and Guidelines Regarding Medical Inadmissibility of Immigrants

Larry Maguire, Member of Parliament for Brandon – Souris

Michelle Rempel, Member of Parliament for Calgary Nose Hill

Bob Saroya, Member of Parliament for Markham – Unionville

1.) INTRODUCTION

The Standing Committee on Citizenship and Immigration undertook a study on the medical admissibility and excessive demand regulations for potential newcomers. In particular, the Committee reviewed clause 38(1)(c) of the Immigration and Refugee Protection Act, which states that a foreign national is inadmissible on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services; or if their health condition 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.

We agree with many components of the Committee’s report. In particular, we agree that the evidence presented to the Committee showed serious problems that caused hardship with the use and application of the excessive demand provision, and that change needs to occur.

Two main policy options emerged from witness testimony to address these problems

• Repeal Section 38(1)(c) of the Immigration and Refugee Protection Act, or
• Make significant reforms to the process by which Section 38(1)(c) of the Immigration and Refugee Protection Act is applied.

In spite of attempts by the Committee to obtain quantifiable data regarding the potential costs and economic impact of these policy options, the Committee found that in many instances this data simply didn’t exist or had significant gaps in its collection methodology. We wish for the reader of the Committee’s report to note that the Committee’s recommendations were made while lacking quantifiable data in several areas, including:

• Actual cost increases that may result from repealing 38(1)(c)
• The actual costs related to administering the system in its current form as opposed to the costs associated under a repeal scenario
• The actual costs related to administering the system should reforms be implemented
• The economic impact of immigrants who may not be eligible to enter Canada or who self-deselect from applying to enter Canada as a result of the existence of 38(1)(c)
• If a repeal of 38(1)(c) would result in an increase of applicants with high medical and social service needs

Additionally, at time of writing only four provinces and two territories provided briefs to the Committee during the study. Given that delivery of health and social services falls within their jurisdiction, we note this lack of input could impact both federal and provincial/territorial governmental ability to successfully implement the changes suggested within the Committee’s report.

2.) CHANGE MUST OCCUR

We wish to emphasize that the overwhelming burden of evidence brought before the Committee suggests that there are serious problems with the use and application of Section 38(1)(c) of the Immigration and Refugee Protection Act. We encourage the government to take action to overcome these problems, in the context of the concerns raised below.

3.) TWO POLICY OPTIONS

Two main policy options emerged from witness testimony to address the problems identified with the current system.

The first was an outright repeal of Section 38(1)(c) of the Immigration and Refugee Protection Act[1].

The second option is to make significant reforms to the process by which Section 38(1)(c) of the Immigration and Refugee Protection Act is applied.

We note that these policy proposals may be mutually exclusive. If the government choses the former option, it would likely be wasteful to put resources into improving the current system, as the latter policy option is premised on the view that the current system can be improved and that repeal is not necessary. That said, implementing the repeal of Section 38(1)(c) will likely take time and resources that have not adequately been studied by the Committee, and applicants will continue to be adversely affected during the period between deciding to repeal the provision and full implementation of this new policy.

The Committee’s report only entertained the option to repeal Section 38(1)(c). As the Committee’s report does not consider ways to improve the current system, the following section will outline those possibilities.  Potential reforms include, but are not limited to:

• Improving the accuracy of IRCC’s costing as it relates to the concept of excessive demand
• Improving the timeliness of the department in processing all aspects of the finding of medical inadmissibility
• Simplifying the Procedural Fairness Letters to make rulings more clear and rationale more transparent for the applicant, and
• Clarifying the purpose of mitigation plans in order to for them to provide actual process utility

On the topic of improving the accuracy of IRCC’s costing as it relates to the concept of excessive demand, the Canadian Bar Association (CBA) provided the Committee with two briefs and appeared in person to provide recommendations. They outlined the challenges associated with how IRCC calculates the costs to determine if someone is projected to cause an excessive demand on health and social services.[2]

The difficulties in estimating the costs for special education needs were brought to the Committee’s attention. As education is a provincial jurisdiction, no two provinces that are identical in how they determine funding levels to assist students with special education needs. For example, Ontario’s Inclusive Education Model funding is different than how Manitoba supports special education needs as every school division is unique in how support is provided for students with special needs. [3]

There is also a discrepancy between provinces with financial support for prescription drugs. In some provinces medically required services are covered in full while outpatient drug costs are not automatically covered. [4] There are also disparities in the amount of what each province reimburses residents for various prescription drugs. [5]

The CBA noted that the IRCC’s Central Medical Accessibility Unit, which was recently introduced, might alleviate some of the challenges in determining the actual financial costs in determining if one will cause an excessive demand. However, they are urging IRCC to improve its Medical Officer’s Handbook and to work with provincial and territorial governments to get the most up-to-date and accurate costing information available for the intended place of residence of the applicant. Denying applicants based on irrelevant information is not acceptable and all steps must be taken to ensure the accuracy of cost estimates.

Second, there were circumstances where IRCC took so long to review a medical assessment that it was deemed out of date. Due to IRCC’s wait times for processing excessive demand applications, 886 applicants needed a new independent medical assessment.[6] If the government chooses system reform as the path forward, in our opinion this is unacceptable and IRCC needs to improve its service delivery if medical assessments are not being reviewed in a timely manner.

Third, many witnesses reported that IRCC has failed in some instances to provide specific cost estimates in Procedural Fairness Letters. The Federal Court of Appeal has ruled that a Medical Officer who is assessing medical inadmissibility has an obligation to provide the costs of the expected health and social services. Without providing this information, it would be next to impossible for the applicant to properly respond to IRCC’s concerns.

It was brought to the Committee’s attention that Procedural Fairness Letters can often be confusing and do not provide enough information for the applicant to in a meaningful way. [7][8] In many circumstances the language used in the letters is overly bureaucratic and is difficult to decipher.

Further, because IRCC mails Procedural Fairness Letters, the time it takes for the physical letter to arrive cuts into the already short 60 days that applicants are given to provide an answer. We were informed due to the time delays with mailing a letter to various parts of the globe and to gather the necessary information, it is difficult for an applicant to respond within the timeframe.  Digitization would ameliorate some of these problems.

While the CBA is recommending that applicants retain legal counsel to respond to the Procedural Fairness Letter, it our desire that changes are made to simplify the process, make the language clearer and be explicit in the information that is sought. Seeking legal counsel should not be the de facto response for an applicant who has received a Procedural Fairness Letter.[9]

Finally, every applicant who has been given a Procedural Fairness Letter is given an opportunity to submit a mitigation plan to convince IRCC they will not cause an excessive demand on Canada’s health or social services.

An IRCC officer is then tasked with reviewing the mitigation plan, verifying the authenticity of the plan as well the applicant’s cost mitigation strategy. IRCC must be also satisfied that the applicant has the ability and intent to mitigate the cost of the required health (i.e., outpatient medication) and social services.[10]

While only one template mitigation plan was reviewed at Committee, it was discussed in broad strokes what one might include. We believe that should the government choose system reform as the path forward, it would be helpful to review how IRCC communicates what is expected in an applicant’s mitigation plan.

Once IRCC is satisfied that the applicant or applicant’s family member will not cause excessive demand on health and social services, their declaration of ability and intent is retained on file along with detailed case notes.

We were surprised to hear that once IRCC accepts a mitigation plan, mitigation plans do not need to be adhered to or enforced.[11][12] This calls the purpose of the mitigation plans into question; because once an applicant is a permanent resident they have no obligation to update IRCC on compliance with their mitigation plan.

If the government chooses to make these improvements, we note that it would be imprudent to seek repeal of Section 38(1)(c) prior to seeing if the effects of these changes improved the system for the applicant.

4.) LACK OF QUANTIFIABLE DATA TO SUPPORT WAY FORWARD

There were several areas in which the Committee had difficulty finding data to support assumptions being made in witness testimony in the argument of either policy option outlined in Section 3 above. This was in spite of many attempts by the Committee to bring in witnesses to provide this data. The following data gaps were particularly noteworthy.

Some witnesses claimed that our current system was having an impact on Canada’s ability to attract and retain immigrants, but the Committee did not receive supporting data for this claim.[13] Despite this, the Committee maintained this argument in its report.

The Conservatives understand that IRCC gave the provinces a list of clear options that are being considered regarding ways to change the immigration system as it pertains to medical inadmissibility, yet the Committee has not been provided with a detailed list of these options. This may have caused some confusion in the Committee’s correspondence with the provinces, as they may not have been sure who to communicate to.

The Committee also heard testimony repeatedly referencing international and domestic laws that witnesses felt Section 38(1)(c) contravened, but no evidence to this effect was presented. In fact, medical inadmissibility has been the subject of numerous court decisions, including a Charter challenge in Deol v. Canada where the policy was found to be Charter compliant because it is based on individual assessment.

Should the government elect to immediately repeal Section 38(1)(c), based on testimony provided to the Committee, it would be doing so without proper modeling on projected increased financial costs.  While the Committee has an understanding of the current avoided costs, that calculation does not take into consideration how that might change with the repeal of the policy.  To date, none of that data is available and must be flagged as an unknown financial risk.

Concerns were raised that if the excessive demand clause was to be eliminated, it will lead to higher costs than originally forecasted.  As IRCC has not done any analysis nor has any information available on how many prospective applicants are deterred due to the current regulations, if the government moved to immediately eliminate the clause, it would be doing so without projecting what those increased costs would be.

The Provinces of Saskatchewan and New Brunswick also highlighted to the Committee the concern that individuals who are currently inadmissible could start applying to immigrate to Canada and the original projected avoided costs of $135 million per year would need to be revised upwards.[14] 

5.) LACK OF PROVINCIAL / TERRITORIAL INPUT TO SUPPORT WAY FORWARD

The Committee’s recommendations were made without significant input from provincial and territorial governments. At time of writing, only four provinces and two territories provided briefs to the Committee during the study.

Every provincial government who submitted a brief to the Committee had reservations about eliminating the clause or had qualms with repealing it without financial compensation, as the costs of eliminating the excessive demand clause will be exclusively borne by provincial and territorial governments. 

Changing the excessive demand policy without a deeper understanding of the costs involved and without discussing how provinces will pay for the same will effectively download costs onto another level of government in an unplanned fashion. Should the government elect to repeal Section 38(1)(c), this issue would need to be addressed. The Committee’s report does not adequately address this issue.

The Province of Newfoundland and Labrador said in their brief to the Committee:

“[they are] experiencing significant health-related expenditures, as a result of numerous social and demographic factors. Given Newfoundland and Labrador’s current financial outlook, it is not possible for the province to support assuming additional expenses from the Federal Government, without considerations of solutions that take into account the financial impacts of changes to the policy.”[15]

The comments that Newfoundland and Labrador made in their brief were also echoed by the Province of Saskatchewan as they stated in their letter to the Committee that the excessive demand policy, “helps protect provincial services from above-average costs and reduced the burden on provincial health, education and social services systems.”[16]

While the Committee only received briefs from a minority of provincial governments, this may be the result of the Minister of IRCC having already presented them specific options on ways to change the excessive demand clause. It is important to note that none of those options the Minister of IRCC presented to the provinces and territories to date were shared with the Committee.

While the Minister informed the Committee he discussed the matter with the provinces and territories, he did not indicate that IRCC presented specific options on how the policy can be amended. For example, correspondence obtained by the Conservatives showed that IRCC presented an option to increase the cost threshold and continue to base the value on an objective data source for health and social services costs.  Another proposal that was presented was for the excessive demand clause to be waived for economic immigrants / provincial nominees working or operating a business in Canada.

While we welcome the Minister consulting the provinces and territories, it is unfortunate he did not table with the Committee the options that he presented.  Having a parallel discussion with the provinces and territories and not informing the Committee of the particulars only denies our final report from containing all the necessary information needed for such a multifaceted issue.

6.) CONCLUSION AND RECOMMENDATIONS

Given the rationale outlined herein, we recommend the following:

1. As there are serious problems with the use and application of Section 38(1)(c) of the Immigration and Refugee Protection Act,  we encourage the government to take action to overcome these problems, in the context of the concerns raised within this dissenting report
2. That the dignity and human rights of those applying to enter Canada play a central role in the selection of a policy path forward
3. That the integrity of Canada’s immigration system be maintained in the implementation of changes to the excessive demand policy and process
4. That the federal government select a path forward in full consultation and with the consent of provincial and territorial governments
5. In addition to the testimony provided to the Committee during the course of this study, that the data outlined above be obtained and utilized to justify and implement any policy change that the federal government selects in this regard, and that this data be made available to the public
6. That given the lack of data provided to the Committee during the course of this study, the federal government develop a more accurate system of evaluating the cost-benefit analysis of a policy change to the excessive demand provision
7. That the federal government ensure that additional costs related to the delivery of health care services  resulting from any policy change to the excessive demand provision is considered in federal-provincial health transfer discussions
8. That any increased costs, as calculated in the context recommended within this dissenting report, be accounted for within a balanced federal budget
9. That the government develop and table a fully costed implementation plan for any changes made to address concerns with the excessive demand provision, which included data related to cost and utilization assumptions as outlined in this dissenting report
10. That any changes made by the government to address concerns with the excessive demand provision be studied by Parliament two years after implementation