Immigration Law: Hilewitz v. Canada; De Jong v. Canada
- LSOU Publications
- 12 hours ago
- 3 min read
Written By: Aaesha Angbin Ahmed
Legal Terms
1. s. 38(1)(c), Immigration and Refugee Protection Act (IRPA): A provision under Canada’s Immigration and Refugee Protection Act that allows immigration officers to find an applicant medically inadmissible if their health condition “might reasonably be expected to cause excessive demand on health or social services.”
2. Excessive demand: A legal concept within s. 38(1)c) of the IRPA referring to a level of anticipated use of publicly funded health or social services that exceeds what is normally acceptable for an individual in Canada.
3. Section 15, Canadian Charter of Rights and Freedoms: This section guarantees equality before and under the law and the right to equal protection and equal benefit of the law without discrimination, including discrimination based on disability, race, or other enumerated or analogous grounds.
4. Supreme Court of Canada: The highest court in Canada and the final judge on questions of constitutional, federal, and common law.
Case Name and Citation
Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 202
Facts
This case involved two separate but similar appeals brought by immigrant families whose applications for permanent residence were denied on medical grounds under s. 38(1)(c) of the Immigration and Refugee Protection Act (IRPA). Both families, the Hilewitz family from South Africa and the De Jong family from the Netherlands, included children with
developmental disabilities. Immigration officers concluded that these dependents might cause an excessive demand on Canadian social services and therefore rendered the entire families inadmissible. The applicants argued that the officers had failed to consider their substantial financial resources and plans to privately provide for their children’s needs. They contended that the government’s interpretation of excessive demand was overly rigid and discriminatory, excluding applicants solely on the basis of disability rather than individual circumstances.
Procedural Posture
The initial decisions of medical inadmissibility were upheld by the Minister of Citizenship and Immigration and by lower courts, which accepted the government’s broad interpretation of the excessive demand clause. The applicants then appealed to the Supreme Court of Canada, arguing that the lower tribunals erred in applying a blanket approach to disability without considering individualized evidence of support, financial ability, or the actual likelihood of burdening public services.
Issue
Did the immigration officers err by interpreting “excessive demand” under s. 38(1)(c) of the IRPA to automatically exclude individuals with disabilities, without assessing their personal circumstances and ability to mitigate potential costs?
Rule Applied
38(1)(c) of the IRPA states a person may be found medically inadmissible if their condition is reasonably expected to cause excessive demand on health or social services.However, this provision must be applied in accordance with administrative fairness and consistent with the principles of equality and individual assessment. The Court emphasized the principles as noted in Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” These guarantees informed the Court’s interpretation of the IRPA. The judges reasoned that decision-makers must assess each applicant individually rather than rely on categorical exclusions based on disability.
Holding
The Supreme Court allowed both appeals and held that the immigration officers had misapplied s. 38(1)(c) by failing to conduct individualized assessments. The Court ruled that the IRPA requires consideration of each applicant’s personal circumstances, including financial means, support networks, and intent to provide private care, before concluding that an applicant would impose excessive demand on public resources.
Result
The Supreme Court allowed the appeals, set aside the inadmissibility decisions, and remitted the applications for reconsideration.18 The decision established that immigration officers must evaluate applicants as individuals and cannot presume excessive demand based solely on a diagnosis.19 This judgment reshaped the interpretation of s. 38(1)(c), advancing disability rights within immigration law and promoting a more humane, inclusive application process.
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