ANALYSIS: The immigration policy that bars some people with disabilities from Canadian immigration is not gone but it is less restrictive.

Canada is making a 2018 pilot into a permanent policy, relaxing the restrictions on certain foreign nationals with disabilities from getting permanent residence.

The federal government announced its plan to permanently change medical inadmissibility rules in the Canada Gazette on March 16.

Under the old rules, Immigration, Refugees and Citizenship Canada (IRCC) could deny entry to Canada to someone whose personal care would cost the government more than the Canadian average of about $7,000 per year. Many people felt this rule demeaned people with disabilities and was not in keeping with Canadian values such as inclusion and dignity. Now, Canada has tripled this threshold to about $21,000. In other words, it is more difficult for people who need medical and social supports to be denied for Canadian immigration.

Currently, the Canadian immigration laws define ‘excessive demand’ as one or both of the following: a person whose medical condition costs public services more than the average annual cost, or if treatment for the condition increases wait times to Canadians.

The legal definition for ‘excessive demand’ has thus caused surprise and heartache to several would-be-Canadians. It is very broad, since it covers any conditions that place ‘excessive’ demand on health and social services. Thus, both physical and mental conditions and disabilities make a person potentially inadmissible. Even if the treatment cost is only slightly higher than that for the average Canadian, a person might be excluded. In some cases, this exclusion even applies to family members who do not have a medical condition. For example, if a principal applicant applying for economic-class immigration has an accompanying dependent found medically inadmissible, that principal applicant is also inadmissible.

One famous example of this occurred in a 2005 Supreme Court case, which involved a wealthy South African family seeking to come to Canada through the investor program.

The Hilewitz family had a son, Gavin, with serious intellectual disabilities. An immigration officer found that the cost for Gavin’s social services were above average. The officer thus ruled Gavin and his parents inadmissible. The Hilewitz family challenged this decision. They demonstrated that they had always paid from their own pockets for Gavin’s treatment in South Africa. They had even established, through their own funds, a private school there for him and others with similar challenges. They also demonstrated plans to bear the cost for social services for Gavin in Canada. Justice Abella overturned the officer’s decision. She then ordered it sent back for redetermination so that IRCC would consider the Hilewitz family’s willingness to assist Gavin.

In 2018, the then-immigration minister, Ahmed Hussen, exercised his authority to create a pilot policy that would be experimental and more lenient. Hussen defined excessive demand as three times the average cost of health and social services to a Canadian. Additionally, Minister Hussen removed some of the calculations for determining ‘excessive demand,’ including several social services for people with disabilities. This removal targeted costs for special education, occupational and behavioural therapy, and personal non-professional support services like meal preparation, bathing, and dressing.

This policy allowed the government to experiment with a less rigid approach while evaluating the results and reception. Provinces and territories, which administer many health and social services, have indicated they find the change a reasonable balance. Advocates for people with disabilities say removing certain treatments from cost calculations eliminates an indignity against such individuals. Moreover, IRCC saves considerable time and money by no longer having to evaluate these factors. Such an assessment has often been a highly complex and costly endeavour in itself.

The public has 30 days from the date the proposal was published in the Gazette to offer comments before it is finalized. Individuals who so desire can submit commentary on the proposed regulatory change until April 15 by emailing IRCC.MHBDGO-BDGDGMS.IRCC@cic.gc.ca.