Citizenship and Immigration Committee on Nov. 21st, 2017

[Chantal Desloges, Lawyer, Desloges Law Group, As an Individual]

Good morning, Mr. Chair, and committee members. It's a pleasure to appear before you today.

My name is Chantal Desloges. I'm an immigration and refugee lawyer with close to 19 years of experience. I'm certified by the Law Society of Upper Canada as a specialist in both immigration law and refugee law. I'm the co-author of a recent book, a legal text on citizenship, immigration, and refugee law.

I'm cognizant today of my co-panellists. I would be remiss if I didn't mention and draw to your attention that Mario Bellissimo is one of Canada's foremost legal experts on the issue of medical inadmissibility. He has appeared as counsel or co-counsel in virtually every single one of the seminal court cases on this issue, and has been actively involved in the interpretation of what medical inadmissibility means. On a personal level, I happen to know that he advocated most of it pro bono or close to pro bono.

I also want to acknowledge the passion and the dedication of Professor Montoya, although I'm about to disagree with him. I want to start off by saying that I really respect you, and in spite of our differing views, I was really touched by your comments.

It's my view that our laws on medical inadmissibility are sound. They're well thought out and they do a good job of balancing the objectives of the act to promote immigration while at the same time protecting the safety of our system. This also allows deserving cases to be considered for exemption on humanitarian and compassionate grounds. That system, in my personal experience, works pretty well.

If these laws were properly applied by decision-makers, which they absolutely are currently not, our system would be functioning a lot better. In my opinion, eliminating the criteria of excessive demand would be irresponsible to Canadians and an abrogation of responsibility to those who already live in Canada for the benefit of those who do not have vested rights as of yet.

I don't mean to be harsh, but getting permanent residency is not a right. I see nothing wrong with setting parameters for those who will get it and those who will not, and that certainly will result in some painful decisions that cause hardship for newcomers or intended newcomers. Nobody cares about that more than I do. I know that everyone around the table feels that. I wish that resources were unlimited, but they're not. Frankly, the needs are only going to increase in the future.

Don't change the law. This is my first recommendation. That said, I do think that many applicants are being tarred with the brush of excessive demand who do not deserve that label. As I said, the problem is not with the legislative framework; it's with the decision-making process.

I have reviewed and agree with the written submissions of the Canadian Bar Association. I support the recommendations they make in their written brief. I can say a lot about them, but I think that they've already made their points pretty well.

In particular, better research and better data is required in order to make proper assessments about the real costs and the real availability of the services that are included in the ED analysis. Likewise, better research is required to figure out what the per capita cost of an average Canadian really is, because recent reports suggest credibly that the current numbers that are being used simply don't incorporate everything that most Canadians use.

To illustrate the practical problems, I can give you a real-life example of a case that I worked on recently. This was of a man who was destined for the province of Ontario. He had had a kidney transplant in the past, and he was rejected on excessive demand, saying that his medications and follow-up care would exceed the average per capita cost. The calculation of the cost of medication was marked down as double the actual cost of what that medication is in the province of Ontario because the medical officer used the price of the name brand drug rather than the price of the generic drug, which is the one that's actually covered by the province.

A quick five-minute Internet search revealed that the costing error was obvious. This was pointed out to the officer before the decision was made, and yet no response was given. There was no explanation or analysis as to how the cost of the follow-up care was calculated. There was just a number, followed by two web links. One didn't lead anywhere, and the other one is a landing page. A privately commissioned medical report from an Ontario doctor revealed that the actual cost for the follow-up care was a fraction of that projected by the medical officer.

I've also seen cases where no costs were mentioned at all; there was just a list of services. Far too often, officers are still not doing the individualized assessment of a person's needs, even though the Supreme Court ruled on this 12 years ago. When someone has the wherewithal to respond to a procedural fairness letter, it's often completely ignored. Frequently, even if you do get a response, what you see is, “This didn't change my opinion,” with no explanation of why. This isn't good enough. Applicants deserve better. They deserve to know that at least their case is going to get a thorough and fair assessment.

Also, it's not for me to say whether it's poor training or carelessness, but the courts have been pretty clear about what the requirements are again and again. It's not complicated. What specific services does this person need? Are those services publicly funded and what's the cost? Often, when people do mount a serious challenge to the findings, they are successful in getting the finding overturned or at least mitigated.

The problem is that it's really difficult for an average person to know how to challenge these medical assessments. Most people don't have the knowledge about how to research the costs, and frankly speaking, it doesn't cross most people's minds to question the opinion of the medical officer and do the math. I've even seen this among legal professionals who represent applicants. I don't know if it's just an assumption that the medical officer or government official couldn't be wrong or if it's laziness, but many representatives don't even look behind the medical opinion at all.

It's very difficult to locate doctors who are willing to provide expert opinions on the costs and availability of services even when the clients are willing to pay for the report. When you can find these doctors, they're worth their weight in gold. My recommendation is that IRCC consider providing a list or a resource with the procedural fairness letter about how to find Canadian medical experts who are willing to provide these assessments and opinions for a fee. That would make life so much easier for clients, both represented and unrepresented.

My final recommendation, which I think might be controversial, is that the government consider allowing applicants for PR with legitimate excessive demand findings to simply pay the lump sum that's equal to the five-year treatment costs before being granted permanent residence. Let me be clear. I'm not talking about a bond. I'm not talking about a guarantee that you're not going to use services, which is unenforceable under the Canada Health Act anyway. I don't support a two-tier system for permanent residence. For those who don't yet have the rights of permanent residence, I am suggesting that they simply pay for it before immigrating if they have the means and the will to do so. That would satisfy the concern about expenses and it also doesn't abridge their rights later on to access health care just like everybody else.

[The Chair, Liberal, Rob Oliphant]

I need you to draw it to a conclusion.

[Chantal Desloges]

It also doesn't take anything away from the rights of those who don't have the means to offset the cost because they can make all of the arguments that the current system allows them to.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Go ahead, Mr. Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Chair, and thank you, panel, for joining us.

Professor Montoya, thank you very much for sharing your experience with us. Could you give a sense of the value you bring to this country, as someone who is here to teach and subsequently here as a landed immigrant? What value do you and your family bring to Canada?

[Felipe Montoya]

Thank you for the question.

On a very basic level, I was paying twice as much in taxes as what the excessive demand seemed to suggest my son would cost, so Canada would have lost economically, in that sense.

Apart from that, every person's value is incommensurable, but I can maybe speak to some of my academic contributions. I'm the director of the Las Nubes project in the faculty of environmental studies at York University. I'm a tenured professor there. This is a project that looks at sustainability in the tropics, at biological corridors, and at how humans and human communities can be productive while preserving the rainforest. That's a very limited view of it.

My wife is a dancer and she began a project called Tablao Flamenco Toronto, which is a monthly presentation of flamenco artists that has continued to be in place while we have been out of Canada. It galvanized the flamenco community and they are very appreciative of that. My son, Nico, made friends in school. He was liked by his teachers and was a good classmate. My daughter graduated with honours from Bayview High School and is currently studying digital animation and working while we are in Costa Rica right now. While we are permanent residents at this moment, we are living in Costa Rica for the time being.

These are the types of contributions we would make to Canadian society.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Bellissimo, it's fair to say that what Professor Montoya brings to the table, and families like his, is somewhat typical of the challenges that we face with respect to excessive demand. When we look at the global picture, individual families who are coming in who are barred because of excessive demand, notwithstanding what that cost may be, not even getting into that discussion, they bring a great deal of value to this country. Would it be fair to say that?

[Mario Bellissimo]

Yes, absolutely.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to the excessive demand right now, I know you have laid out a fairly elaborate set of issues, but in summary, would you recommend that this provision be amended or deleted, or that regulations be brought in that may increase the threshold? Where exactly do we land on this?

[Mario Bellissimo]

I think where we land is that if the provision is applied in the manner contemplated by Hilewitz, it would be compliant. Having said that, because of the operational challenges that currently exist, it's not functioning to the level it should.

With respect to applicants' contributions, I can tell you, and I think you've heard this from some of the witnesses, that most mitigation plans are successful. Oftentimes, contributions are already being considered. I'll give you one example: medical personnel who have to operate in remote regions of Canada; that's routinely put into submissions and it is considered. We have a problem with some of the application. It's very difficult because for those of us pre-2005, where we are now seems like a panacea and CMAU has been much more effective. It's been more transparent, and it's getting better decision-making. I think if the presumptive aspect of it was removed, even the language, the approach, you would not have cases like Mr. Montoya's. To the point that Ms. Desloges made, it would be a very simple exchange. It does not have to be what it is right now.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to what Ms. Desloges indicated with respect to an upfront five year cost recovery or cost payment, what is the CBA's position on something like that?

[Mario Bellissimo]

The CBA's position is that at present, again, there is no evidence that there are compliance issues. It was raised in the 2015 IRCC report as a potential challenge. Our response was, we don't see the existence of it. However, if it did exist, in appropriate cases there are schemes within the act, including the misrepresentation provisions, that would be applied not to a change of circumstances, not to what happens in life, but to when someone deliberately chose to not abide by the undertaking they provided. That system is already in place. If you provide an undertaking for your spouse or others and you don't follow through with it, or you fill out your form incorrectly—you don't declare something—that's already happening under the act.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to the mitigation plan, what specific challenges do you see in it and what equity issues arise as a result?

[Mario Bellissimo]

There are a few points I'd like to clear up.

First, health services can also be mitigated. I think one witness made the point that it's only social services, but health services can be mitigated as well.

In terms of the issue with respect to the mitigation, there are two stages to it. One, there are simply incorrect findings, as Ms. Desloges pointed out, and those are quickly dispatched. Then there are mitigation plans, and again, I think the problem is that when you position individuals as somehow already being inadmissible.... The current language suggests, “You're already inadmissible; tell us that you're not.” That's not consistent with the teaching of Hilewitz. It's individualized assessment. There's not supposed to be profiling. It should be the reverse. The same questions should be asked of all applicants on an application.

[The Chair, Liberal, Rob Oliphant]

I'm afraid I need to cut you off there. We're going to run out of time.

Ms. Rempel.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you, Mr. Chair.

Ms. Desloges, you spoke about the process for doing the full evaluation around medical inadmissibility and sometimes how people perhaps have difficulty challenging that or understanding how things are applied. I want to give you a little bit more time to expand on that.

We've heard some testimony saying that the government, specifically the IRCC, should perhaps provide more information or provide a different type of process for applicants to understand what's involved in excessive demand assessments and what pieces of criteria are used in making those determinations.

Do you have any specific recommendations in terms of how that could be accomplished or friction points that you see right now that could be eased through process?

[Chantal Desloges]

Two of them come to mind right off the top of my head.

First of all, the way the procedural fairness letter is written—the way it's worded—uses a lot of legalese. It's hard for people to understand it and to understand the tests they need to meet and what information they might need to provide to overcome it.

The second issue is that when you provide your mitigation plan, they always give you this piece of paper that they ask you to sign to say if you're planning to pay for the services yourself. That conveys to applicants that if they just promise to pay for it themselves, that's going to be enough. In fact, it's far from enough. It's barely worth the paper it's written on, because everybody knows it's unenforceable. I've never actually seen an officer give that simple declaration weight.

It's important for people to know they have to back up their statements with evidence, and that the evidence should ideally be Canadian evidence, because that's the expense we're talking about. It's not what it is in your country, but what it is actually here. What would you be given here, what are you likely to use, and what is the cost of that? Most people don't understand that.

If they are not represented, you see people put in mitigation plans that really are not very good, simply because they are shooting around in the dark.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

With regard to the mitigation plan as a tool or as a process instrument, do you think it's still valid? Does it have validity? When you talk about enforceability components, is there something the government needs to do in that regard to perhaps make it more effective, or is it just flawed in general? What would your recommendations be with regard to that particular aspect of the process?

[Chantal Desloges]

The state of the law now is you have to offer someone a chance to do that. It's procedurally fair. It's mandated by the Supreme Court, so unless there were substantive legal changes, I don't see a way around it. The simple fact is that it needs to be explained better to people so they can use it properly.

There's also a dearth of research as to what the outcomes are later, when people do these mitigation plans. Do they stick to those plans? Did they actually incur those costs after they came? Did they not? There's no research on that.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Ms. Desloges and Mr. Bellissimo, would it be beneficial to have some sort of measurement or enforcement regime on the back end for mitigation, or is that just going to make the problem more complex and a bigger burden?

We're making people do this. What should the government be doing with this information afterwards, and how does it benefit both Canadians and people who are trying to enter the country through this means, if it does?

[Mario Bellissimo]

It's an excellent question. To the point we made in our brief, there is no evidence to date that people are not complying with what they have offered.

To Ms. Desloges' point, I believe if that data were to be collected—and we suggested a pilot project of a certain number of applicants being tested to see what happens—it need not be intrusive. It need not be discriminatory. It would give us some evidence, because part of the problem right now is that there are a lot of assumptions being made, and the issues are just too critical. The fight to get to the Supreme Court and beyond has just been too hard for us to simply say that the law should be changed; let's do away with everything. It's a very fragile position we find ourselves in today.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

In terms of that structure, what should the government be measuring more effectively? What are the metrics we should be recommending the government be measuring? Do you have any suggestions on how to do that in terms of defining real cost and/or net benefit? It's a theme that has come up. What should the federal government be doing more effectively in that regard?

[Chantal Desloges]

It's two separate questions.

In terms of the analysis, it needs to be measured for those people who are admitted. What actual expenses did they incur? Does it match up with what the projected cost was, or not?

Also, are people complying with their mitigation plans? We don't need to go on a witch hunt, but simply to study and get more data, because I agree with what Mario says. You can't make big decisions like this in a vacuum. There need to be numbers associated with that.

The second thing is the cost-benefit analysis. All of that can be done within the context of the humanitarian and compassionate analysis. Those arguments can still be made.

With exceptional people like Professor Montoya, there's a way to make those arguments, and the existing regime is enough to accommodate that.

[Mario Bellissimo]

I want to add to that. There's a lot of discussion about the exceptionality of it and the humanitarianism of it, but the reality is that at the initial instance of an individualized assessment, one need not rely on exceptional or humanitarian consideration if they meet the threshold as is.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Right.

On a related point, we just did a huge study on customer service as it relates to immigration as a whole. Both of you have spoken, as has Mr. Montoya, about how it is a big burden to get through this process. People have to find representation.

I note here that the Canadian Bar Association has recommended that the procedural fairness letters be written in plain language with clear instructions, including an explanation of which services are public and what can be privately disbursed. Can you expand on this in terms of how that would be implemented, what resources you would need to do that, and the time frame you think the government could undertake this in? To me that seems like a very common sense approach.