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.