Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57

Facts

The Hilewitz Family

David Hilewitz of South Africa applied for permanent residence in Canada under the investor category. Mr. Hilewitz’s son, Gavin, was diagnosed with an intellectual disability. Gavin was examined by a medical officer and due to his disability, was deemed inadmissible under s. 19(1)(a)(ii) of the Immigration Act. It was found that Gavin would require use of a variety of social services and special education.

Mr. Hilewitz disagreed with the assessment and stated that Gavin had never used publicly funded schooling in South Africa and the family had in fact established a special school for him and others with similar disabilities. Mr. Hilewitz also expressed his intention to purchase a business in order to ensure Gavin’s employment. Mr. Hilewitz stated that he would provide all necessary support for Gavin and could afford to do so.

De Jong Family

In 1996, Dirk De Jong, a Dutch citizen applied for permanent residence in the self-employed category. One of Mr. De Jong’s daughters was born with an intellectual disability. Mr. De Jong had selected a farm to purchase in Ontario and had arranged for his children to attend a private school.

After the medical assessment, the medical officer concluded that because Mr. De Jong’s daughter had a “developmental delay” she was inadmissible under s. 19(1)(a)(ii) of the Immigration Act. Mr. De Jong submitted additional information that his children had been accepted by a private school and would not have to rely on publicly funded special education but this information was not considered by the visa officer.

Analysis & Decision

Majority

The majority of the Supreme Court of Canada concluded that the Hilewitz and De Jong families had applied under the “investor” and “self-employed” categories which were to a large extent concerned with an individual’s assets. It found that s. 19(1)(a)(ii) was an assessment of whether an applicant’s health may cause or might reasonably be expected to cause excessive demand on Canada’s social and health social services. The term "excessive demands" is inherently evaluative and comparative, and shows that medical officers must assess likely demands on social services, not mere eligibility for them. Since, without consideration of an applicant's ability and intention to pay for social services, it is impossible to determine realistically what "demands" will be made, medical officers must take into account both medical and non-medical factors. This requires individualized assessments.

The clear legislative threshold is reasonable probability, not remote possibility. It should be more likely than not, based on a family's circumstances, that social services would be relied on. The same analysis is applicable to the new Immigration and Refugee Protection Act.

Mr. Hilewitz and Mr. De Jong’s ability and willingness to personally fund services and limit their reliance on Canada’s social services, given their financial resources, was a relevant factor in determining excessive demand. The Court found that the visa officers erred in simply confirming the findings of the medical officer and failed to account for the families’ willingness to assist their children. Furthermore, the failure to read the families’ response to the fairness letters sent to them resulted in the visa officers having not made their decision on all the relevant, available information.

Dissent

Justices LeBel and Deschamps dissented. They concluded that the wealth of an applicant is not a factor to be considered by medical officers under s. 19(1)(a)(ii) of the Immigration Act. Parliament has not directed medical officers to consider family support or wealth The fact that Parliament expressly considered whether family support was relevant to excessive demands assessments and chose not to include it in the Immigration Act and the regulations strongly suggests that Parliament did not intend wealth to be a relevant factor.

It would make the medical officer’s job much more difficult to require a subjective inquiry into whether the applicant’s family and community would be ably to provide extra support. Such a subjective analysis, outside the medical officer’s area of expertise, may result in inconsistent results for similarly-situated applicants and result in even longer delays.

Finally the dissent stated that without the ability to enforce a promise to pay for social services, there is no way to ensure that the family will meet its commitment and mitigate the excessive demand on public funding. The more a medical officer's analysis is tied to highly subjective non-medical factors, the more likely it is that the medical officer will be drawn into assessments outside his or her area of expertise. Such an approach may produce inconsistent results for similarly-situated applicants and would result in longer delays.

Applicants can still be admitted on the basis of their wealth, despite an otherwise inadmissible family member however this discretion is left to the Minister who can issue a permit despite the medical inadmissibility. The Minister is in a better position to determine whether the special circumstances of a case warrant a departure from the rules. This also ensures that, because of their potential burden on Canadian health and social services, these exceptional cases are decided by a single authority.