April 29, 2010

Which Officer Assesses Excessive Demand in Medical Immigration Cases?

In Sapru, Justice Mosley asserted that, following Hilewitz, it is the medical officer’s obligation to perform a complete analysis of all relevant factors, medical and non-medical. He reasoned that because a person needs a medical certificate in order to enter Canada, and since the issuing a certificate is a decision that can only be made by a doctor, it is important that the medical officer take into account all factors that are relevant to an excessive demand determination. It is not enough, concluded Justice Mosley, for a visa officer, who is not a doctor, to consider these issues. What is noteworthy about Sapru is that Justice Mosley upheld the decision notwithstanding the fact that there was no evidence to suggest that the medical officer did in fact consider the non-medical evidence proffered by the applicants.

Justice Mosley certified two questions, both of which address the medical officer’s role in assessing inadmissibility on health grounds:

When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants’ response to that letter?

Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer’s duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?