Date: 20091231
Docket: IMM-2616-09
Citation: 2009
FC 1315
Ottawa, Ontario,
December 31, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
RICARDO COMPANIONI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
and
HIV & AIDS LEGAL CLINIC (ONTARIO)
Intervener
REASONS FOR ORDER AND ORDER
[1]
Were it
not for the cost of out-patient prescription drugs to control their HIV,
Ricardo Companioni, together with his common-law partner, Andrew Grover, would
be admissible to Canada as members of the skilled
worker class. The cost of their prescriptions totals some $33,500 per year.
[2]
The
Officer charged with the matter refused to issue permanent resident visas on
the grounds that they are inadmissible as their condition, within the meaning
of section 38 of the Immigration and Refugee Protection Act, (IRPA) “…might
reasonably be expected to cause excessive demand on health…services.” This is a
judicial review of that decision.
Overview
[3]
An
“excessive demand” is defined in section 1 of the Immigration and Refugee
Protection Regulations as a demand for which the anticipated cost would
likely exceed average Canadian per capita health services and social services
costs over a period of five consecutive years, unless there is evidence that
significant costs are likely to be incurred beyond that period, in which case
the period is extended to 10 years. An “excessive demand” is also one which
would add to existing waiting lists and increase the rate of mortality and
morbidity in Canada.
[4]
A health
service is defined as any health service for which the majority of the funds
are contributed by governments. Health services include the services of family
physicians, medical specialists, nurses, chiropractors, physiotherapists,
library services and the supply of pharmaceutical or hospital care.
[5]
Messrs. Companioni
and Grover have both tested HIV positive. It is common ground that their
medical condition at present and as reasonably projected over the next five or 10
years should not create an excessive demand on medical services, or increase
delays in servicing the Canadian population at large. However it is also common
ground that the projected cost of their prescription drugs over the next 10
years is $33,500 per year while the average per capita cost at the relevant
time was $5,170.
[6]
As
Canadians we tend to assume that we enjoy universal, government funded, health
care. While in large measure that assumption is true in that hospital care and
the services of doctors, nurses and so on are government funded, there are
exceptions. Messrs. Companioni and Grover intend to reside in Ontario. The general rule in that
province is that the cost of out-patient drugs is not government funded. It
follows that the cost of such drugs is not a demand on health services. There
are, however, exceptions to that exception and this is where the difficulty in
this case lies.
[7]
In Hilewitz
v. Canada (Minister of Citizenship and
Immigration);
DeJong v. Canada (Minister of Citizenship and
Immigration),
2005 SCC 57, [2005] 2 S.C.R. 706, the appellants applied for permanent resident
status for themselves and their families under the “Investor” and
“Self-Employed” classes. Both qualified but were denied admission on the ground
that the intellectual disability of a dependent child might reasonably be
expected to cause excessive demands on social services under the former Immigration
Act. The Court held that assessments must be individualized and take into
account not merely eligibility for services, but also likely demand, and in
that context consideration of an applicant’s ability and intention to pay is
relevant. At paragraph 69, it was held that, even if the applicants’ stated
intention for providing for their children did not materialize, both applicants
would likely be required under Ontario law to contribute
substantially, if not entirely, to any cost for social services provided to
their children by the province. Both the majority, and those in dissent, made
it abundantly clear that they were only addressing demands on social services,
not health services.
[8]
Therefore,
the first issue is whether the reasoning in Hilewitz is equally
applicable to assessments concerning out-patient prescription drugs. The
applicant, and the intervener, the HIV & AIDS Legal Clinic (Ontario), submit that the principles
enunciated in Hilewitz are equally applicable in any determination as to
whether the cost of such drugs would create an excessive demand on Canadian health
services. In fact, the visa officer applied the Hilewitz principles to the
situation of Messrs. Companioni and Grover. They submit, however, that her
analysis was flawed by unreasonable assumptions.
[9]
The
Minister’s prime position is that ability to pay should not be considered at
all when assessing potential medical inadmissibility due to excessive demands
on health services. His secondary submission is that if they were to reside in Ontario, they would be entitled to
recover most of the cost of their prescription drugs from the Ontario
Government, and that any undertaking not to assert such a claim is
unenforceable. Thus, in any event, there would be an excessive demand.
Is Hilewitz applicable?
[10]
In my
opinion, the principles enunciated in Hilewitz are equally applicable in
any consideration as to whether the cost of out-patient drugs would constitute
an excessive demand on health services. The fundamental distinction, however,
is that when it comes to social services, at least in Ontario, as a matter of
law the province is entitled to recover most, if not all, of those costs from those
who can afford it (Hilewitz, para. 69). But when it comes to the supply
of out-patient drugs in Ontario, by virtue of the provincial
Trillium Drug Program, most of the cost of the drugs in question would be paid
by the province. Promises not to access this program are simply not
enforceable.
[11]
Framed in
this way, the Minister’s reliance on the decision of the Federal Court of
Appeal in Deol v. Canada (Minister of Citizenship and Immigration), 2002
FCA 271, [2003] 1 F.C. 301 and Lee v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1461, as supporting a general principle that ability
to pay for health services should never be considered, is misplaced.
[12]
In Deol,
the medical condition in question could have been corrected by surgery at a
cost of some $40,000. In speaking for the Court, Mr. Justice Evans held that
the failure of the visa officer to have regard to the financial ability of the
applicant or members of her family to pay for the cost of surgery was not an
error in law. He said at paragraph 46:
[…]
As has been held in several previous cases, it is not possible to enforce a
personal undertaking to pay for health services that may be required after a
person has been admitted to Canada as a permanent resident, if the services
are available without payment. The Minister has no power to admit a person as a
permanent resident on the condition that the person either does not make a
claim on the health insurance plans in the provinces, or promises to reimburse
the costs of any services required. See, for example, Choi v. Canada (Minister of Citizenship and
Immigration) (1995), 98
F.T.R. 308 at para. 30; Cabaldon v. Canada
(Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296 at para. 8; Poon, supra, at
paras. 18-19.
[13]
Deol is distinguishable because the
issue in that case was prospective surgery, not the cost of out-patient drugs.
Surgery, of the type in question, is government-funded.
[14]
The decision
of Mr. Justice Campbell in Lee is consistent with Deol. The applicants’
health conditions included polycystic kidney disease, hypertension, moderate
mitral regurgitation and chronic renal failure. He referred to the Canada
Health Act and noted that the health services that might have been required
by the applicant were services covered by provincial and territorial public
funded healthcare plans, as “insured health services” which include medically
necessary hospital and physician services. No mention was made of out-patient
drugs.
The fairness letter
[15]
As
prospective permanent residents, Messrs. Companioni and Grover were required to
provide details of their medical condition. In light thereof, a “medical
notification” or “fairness letter” was sent by which they were asked for
information as to the likely evolution of their medical condition over the
years ahead and the anticipated cost of treatment.
[16]
They made
a number of points in reply. Both are American citizens residing in the state
of New York. Their doctor gave
particulars of their current state of health and predicted that their current
good health ought to remain stable over the next several years. He was backed
up by Dr. Bayoumy of St. Michael’s Hospital, Toronto, a specialist in the delivery of health
services to people living with HIV. The Health Canada Medical Officer involved
in this matter has not contested those opinions. Occasional monitoring by a
doctor was not considered to be an excessive cost.
[17]
Dr.
Bayoumy calculated that the current costs in Canada of Mr. Companioni’s
required out-patient drugs would be $12,700 and Mr. Grover’s $20,800. He did a
flatline projection over the next 10 years and similarly projected the average
Canadian cost of $5,170. Had the cost of the drugs been anywhere close to the
Canadian average a more nuanced approach might have been appropriate. Will the
average cost go up, particularly as our population ages? On the other hand, are
some of the drugs in question on patent? When will they come off patent? Will a
generic enter the market and drive the cost down? In the circumstances of this
case, what the applicant did was reasonable.
[18]
Mr.
Companioni and Mr. Grover revealed combined assets of about $500,000.
[19]
Significantly,
they both signed declarations of ability and intent in which each undertook
…to ensure enrolment in a private (including
employer-based) health care insurance plan which will cover a minimum of 85% of
my prescription costs.
[…]
During any gap of coverage by the above
insurance plan(s), including the period of time after obtaining Canadian
permanent residence, and prior to enrolment in a private insurance plan, I
intend to fund any prescription medication costs through my personal
savings/assets.
[…]
I hereby declare that I will not hold the
federal or provincial/territorial authority responsible for costs associated
with the provision of the services, which I or my family member would require
in Canada and which would otherwise create excessive demand on services in Canada.
[20]
At the
time of the application, Mr. Companioni had a personal insurance policy which
covered prescription drugs, and Mr. Grover had an employer-based group policy
which did the same. However there is no evidence that these policies would
apply should they take up residence in Canada, and this point was not pressed at the
hearing.
[21]
The Health
Canada medical officer signed off on the medical information, except as to the
costs of the outpatient prescription drugs. She said to the visa officer:
“Admissibility is dependent on the visa officer determining if the clients will
have access to private or employer-based insurance thus not require and/or be
eligible to the Trillium Drug Program, and on his/her assessment of financial
aspects submitted.” It is a given that family coverage in a group plan may
extend to a same-sex partner.
The visa officer’s decision
[22]
The
reasons why the visa officer turned down the application for permanent resident
visas are to be found in her computer assisted immigration processing system (CAIPS)
notes. A number of points were made, not all of which may have been determinative.
She took into account Citizenship and Immigration Canada’s Operational Bulletin
063 which was originally designed to assess the applications of business
investors who had medical or social services issues. However, since the Federal
Court of Appeal has held in Colaco v. Canada (Minister of Citizenship and
Immigration),
2007 FCA 282, 64 Imm. L.R. (3d) 161, that individual assessments would also be
required for skilled workers hers was a perfectly sensible approach.
[23]
She asked
herself if the applicants had advanced a credible plan. If not, she noted she
could follow-up by way of a letter or personal interview. She also asked
herself if the applicants had the financial ability to cover the projected
expenses over the full period. However, she was ambivalent as to whether that
period was five or ten years. It seems to me the only possible answer was ten
years, and that she was attempting to give the applicants the benefit of the
doubt.
[24]
She
concluded that they had not shown a credible plan. Again there is some
ambiguity in that she noted there was no guarantee Mr. Companioni would find
employment in his current occupation which is as an internet music programmer.
She was concerned that their current assets might not cover the entire period,
be it five or ten years. However, as skilled workers Mr. Companioni and Mr.
Grover should be assumed capable of meeting the normal costs of living. Section
76 of IRPA assumes that a skilled worker will be able to become economically
established in Canada.
[25]
The crux
of her decision quite rightly lay in the undertakings by Mr. Companioni
and Mr. Grover to obtain medical insurance coverage for their prescription
drugs. The plan was inchoate in that there was no indication that either Mr.
Companioni or Mr. Grover had sought or secured employment in Canada and there was no evidence
substantiating their claim they would be eligible for employer-based insurance.
She added, and this is crucial:
“Subject and partner have not shown they
would be able to pass the requirements for any type of employer based medical
coverage – since these coverages are based upon passing medical examinations.
Pre-existing conditions may exclude subject and partner from an employer-based
medical coverage plan.”
[26]
Although
the evidence on file was far from perfect, Dr. Bayoumy had specifically
mentioned employer-based insurance. There is nothing in the record to
substantiate the visa officer’s belief that employer-based prescription drug
coverage would be contingent on a medical examination of Mr. Companioni and Mr.
Grover, who would presumably be found uninsurable due to their pre-existing
conditions.
Discussion
[27]
The HIV
& AIDS Legal Clinic (Ontario) took the position that group
benefit plans provided through an employer, union or an association would
provide some basic level of insurance without proof of insurability, and
without having to disclose one’s condition. In my view, what the officer should
have done was follow her own dictates and go back to Mr. Companioni to call
upon him to provide a viable plan. One cannot conclude, on the balance of
probabilities, that, just because there may be some plans which might cover
prescription drugs without proof of insurability, Mr. Companioni or Mr. Grover would
be in a position to obtain such an employer-based group policy. It was conceded
that they would not be insurable under an individual policy. Even if they
could, what would the premiums be, and what caps, if any, would there be on an
annual or policy basis?
[28]
As the
material before the visa officer shows, there are exceptions in Ontario to the general rule that
out-patient prescription drugs are not government funded. Some are based on
status, such as age or residency in a long term care facility. In addition,
some drugs, under certain circumstances, fall within an exceptional access
program. Neither of these two programs would be available to Mr. Companioni and
Mr. Grover.
[29]
What is
available, however, is the Trillium Drug Program. In essence the holder of an Ontario health insurance card may
enrol so that the costs of drugs in excess of four percent of household income
are recoverable. Based on their past earnings, even if one were to assume an
income of $200,000 per year, the deductible would be $8,000, which would give
rise to a claim under the Trillium Drug Program of $25,500, far in excess of
the average per capita per annum cost of $5,170.
[30]
It was
conceded that the promises made by Messrs. Companioni and Grover not to draw on
public funds are not enforceable. In Hilewitz, as I understand it, the
determining factor was that the wealthy were required by Ontario law to contribute to the cost
of the social services in question. In the present case, the cost of the drugs
in excess of the deductible is borne by the province, without recourse. Thus, Deol
applies.
[31]
Absent a
viable insurance plan, most of the costs of the drugs in question would be
borne by the province
of Ontario, would constitute an “excessive
demand” and would render Messrs. Companioni and Grover inadmissible.
Certified Question
[32]
Counsel
for Mr. Companioni submitted a question for certification at the hearing.
Counsel for the Minister was given an opportunity to reply, which led to a
final comment from Mr. Companioni’s counsel. The question must be one which
would support an appeal by the Minister. I certify the following:
“Is the ability and willingness of
applicants to defray the cost of their out-patient prescription drug medication
(in keeping with the provincial/territorial regulations regulating the
government payment of prescription drugs) a relevant consideration in assessing
whether the demands presented by an applicant’s health condition constitute an
excessive demand?”
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