Challenging the constitutionality of Canada’s “excessive demand” regime in Federal Court
The HIV Legal Network and a client of Battista Migration Law Group are challenging the constitutionality of Canada’s “excessive demand” regime in federal court. On February 2, 2024, we filed legal arguments and materials challenging the decision of Immigration, Refugees and Citizenship Canada (IRCC) to deny a work permit based on an applicant’s HIV status. The IRCC relied on s. 38(1)(c) of the Immigration and Refugee Protection Act, which prevents individuals from travelling to, or remaining in, Canada if they are living with a health condition that is expected to place an “excessive demand” on the public system — meaning that the cost of treating their health condition is expected to be above a certain financial threshold.
At the HIV Legal Network, we have been challenging the “excessive demand” provision since it came into effect in 2001, as the provision places an undue and discriminatory burden on people living with HIV. As recently as September 2023, when a new Minister of Immigration, Refugees, and Citizenship took office, the HIV Legal Network, together with the HIV & AIDS Legal Clinic Ontario (HALCO) and Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA), called again for the immediate revocation of the provision.
In the February challenge, we argue that the decision to deny the individual applicant’s work permit was unreasonable and unfair. Moreover, we argue that the very existence of the “excessive demand” provision is discriminatory, and thus inconsistent with s. 15 of the Canadian Charter of Rights and Freedoms. We highlight clear evidence, confirmed by the House of Standing Committee on Citizenship and Immigration in 2017, that the provision is harmful to foreign nationals living with health conditions, not only by increasing application costs and delays compared to those without health conditions, but also by perpetuating stigmatizing views that people with disabilities are burdens on society and that migrants merely abuse public programs. We stress that the provision does not consider any of the value that these individuals bring to Canadian society — including economic, social, and cultural. Finally, we highlight the IRCC’s own evidence that the “excessive demand” provision is ineffective in protecting the public health care system, as the provision leads to minimal savings. Provinces and territories have regularly asked IRCC to reverse its “excessive demand” decisions and absorb the resulting minimal additional health care costs to benefit from the value that immigrants bring to Canada.
In 2018, the Minister of Immigration, Refugees and Citizenship promised to revoke the “excessive demand” regime, on the basis that “it no longer aligns with our country’s values on the inclusion of persons with disabilities in Canadian society.” We are calling on Canada to finally live up to this promise.
The affidavits of the anonymised applicant and of the HIV legal Network as well as the Applicant’s Memorandum of Argument are available to download here.
