Immigration law > FAQ: Excessive Demand Provision of the Immigration and Refugee Protection Act

Applicants wishing to immigrate to Canada face significant hurdles, such as fulfilling the points requirement for economic immigration or qualifying under the family reunification category. Even if applicants are able to overcome these obstacles, those with disabilities may still be denied admission to Canada.

The most significant barrier faced by potential immigrants with disabilities has been the “excessive demand” clause of Canada’s Immigration and Refugee Protection Act (IRPA) and its interpretation by the courts. This provision denies admission to people who are expected to place excessive demands on Canadian health or social services as a result of a health condition.

The intention of this provision appears, on its face, to be to exclude people with disabilities, seniors and others who would pose an excessive demand, either through cost or waiting lists. The provision has been criticized by John Rae of the Council of Canadians with Disabilities as perpetuating “long held stereotypical views of persons with disabilities as being less deserving and a burden on society…The current law devalues Canadians with disabilities.”

Who does the rule apply to?

IRPA’s excessive demand provision applies to all potential immigrants, unless you are a refugee (or their spouse or child) or the spouse, common law partner, or child of a sponsor in the family class).

What does “excessive demand” mean?

A person will pose excessive demands if it is anticipated that:

(a) the costs of publicly-funded health or social services for a potential immigrant would likely exceed the Canadian per capita average, looking at a period of five to ten consecutive years from the date of the person’s most recent immigration medical examination; OR
(b) the health or social services required by a potential immigrant would add to existing waiting lists and increase the rate of mortality and morbidity in Canada as a result of the prevention or delay of those services.

What does “health services” mean?

The Regulations under IRPA explain that “health services” means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.

What does “social services” mean?

“Social services” means 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.

How does the “excessive demands” provision affect me, as a person with a disability?
Canada has a wide array of health and social services available to people with disabilities. Unfortunately, the availability of specialized disability services, such as supportive housing, accessible education, and employment supports, may make Canada’s immigration system less accessible to potential immigrants with disabilities. You must show that the publicly-funded services in question do not exist, that you are ineligible for them or that you will choose not to make use of the services.

There are several different ways to show that you will not to make use of the services in question in Canada. You might point to evidence that your financial resources allow you to personally fund the social services from a private entity (inapplicable for health services). For example, if you have a disability which would require you to make use of special education services, you might show that you (or your family) are willing and able to pay for private school. You might also show that you never relied on the services in question in the country from which you are emigrating. Additionally, you might show that the services available in Canada would not be suitable for you. For example, you might show that an available supported independent living program would not be suitable for you because you always had and always would live with a relative.

How does the government assess if I would cause “excessive demands”?

A visa officer must consider any reports made by a health practitioner or medical laboratory of you, and any condition identified by the medical examination before concluding that your health condition might reasonably be expected to cause excessive demand.

Will I have an opportunity to respond to a finding of medical inadmissibility?

Yes. Prior to a final decision of medical inadmissibility, all applicants must be sent what is known as a “fairness” letter, which advises you of the decision and provides an opportunity to respond in writing. You will also be sent excerpts of the relevant statutory definitions (namely “excessive demand”, “health services” and “social services”), and most significantly, a “Declaration of Ability and Intent”. This Declaration requires you to provide an individualized plan outlining why you will not impose an excessive demand on social services.

What should be included in my response?

What to include in your response will vary depending on your circumstances. Your response should address in detail why your medical condition will not impose excessive demands on the Canadian health or social services. This may include updated medical information, up-to-date evidence about costs and wait lists, a specific plan of support that shows you do not intend to use health or social services, and/or proof that you would be ineligible for publicly-funded services.

For example, you may wish to include details about how you will spend your time in Canada, and programs and services available for free or for a nominal fee in the community in which you plan to live. You might also provide evidence that your family is able and willing to pay for services, or that you would not be eligible for the health or social service in question. Plans may include, for example, an indication that your home in Canada has been designed with accessibility features. Other examples include specific childcare arrangements and specific arrangements for how you will spend his or her time in Canada.

You should be aware that your intention not to use Canadian health services (as opposed to social services) may not be relevant. The general principle is that one cannot opt out of the medical system. However, an election to have or not have surgery is relevant in determining whether a medical opinion is reasonable. This argument may be limited if there is a determination that you may not continue to refuse treatment if your condition worsened.

In the context of social services, it is important to outline why you will not rely on publicly funded services. There is generally a presumption that a person will take advantage of available social services or participate in community activities that would permit fuller participation in Canadian society. However, you can show that the presumption does not apply in your case, for example, by showing that you never used similar services in your country of origin or by showing why you would not require the services in question.

Do I have a right to appeal a decision that I am medically inadmissible?

Only Canadian citizens or permanent residents seeking to sponsor a family member have a right of appeal to the Immigration & Appeal Division of the Immigration and Refugee Board. Family class immigrants can also pursue a judicial review to the Federal Court of a decision of the Immigration and Appeal Division, with leave of the Court.

For applicants who are not members of the family class, there is no right of appeal to the Immigration and Appeal Division. The only recourse is an application for leave for judicial review to the Federal Court and/or a humanitarian and compassionate application.

How Can Bakerlaw Help?

Bakerlaw is able to use its expertise in disability-related issues and knowledge of the disability services sector to respond to “fairness” letters from Citizenship and Immigration Canada, including preparing evidence about the availability or unavailability of health and social services. We can help you to ensure that you have the best possible chance of success in getting Citizenship and Immigration Canada to find that you would not cause an “excessive demand” on health or social services. If Citizenship and Immigration Canada has found that you are inadmissible under the “excessive demand” provision, Bakerlaw can help you appeal this decision, either to the Immigration and Refugee Board or to the Federal Court.

To discuss your immigration application, please contact us.