An American couple has won a federal court case that could change the way Canada treats would-be immigrants who are HIV-positive.

Justice Sean Harrington's December 31 decision could be appealed before the end of January, but if it stands, it will make it easier for applicants who can afford to cover their own prescription costs to immigrate.

Canada does not have a blanket ban on HIV-positive immigrants, but most applicants are rejected by Citizenship and Immigration Canada (CIC) on the grounds that they would impose "excessive demand" on health or social services. This is an issue for people with any number of health conditions, but it is a major concern for applicants with HIV.

The case in question concerns Ricardo Companioni, an American programmer who was initially approved to immigrate as a skilled worker. He and his partner are both HIV-positive, and while they are expected to remain healthy for at least the next 10 years, the period that CIC considers, their drugs cost a combined $33,500 every year.

The couple promised to cover their own costs if they could not obtain employer health insurance and showed that they had half a million dollars in assets, but were still rejected based on excessive demand.

"I was really shocked that they rejected the application, especially at that stage of the game," says Companioni. "Why didn't they reject the application sooner, before they made us do all this other stuff, get notarized letters, on and on?"

On the advice of a Toronto lawyer, Michael Battista, Companioni and Grover decided to appeal. Thanks to Justice Harrington's decision, their case will be sent back to another officer for consideration. But the decision has broader implications, because it extends a 2005 Supreme Court decision on excessive demand.

In Hilewitz v Canada, a family was refused permanent residence on the grounds that their disabled son would impose an excessive demand on social services. The family had promised to place their son in private care. Ruling in favour of the family, the court held that CIC had to take into account each applicant's individual circumstances before refusing them based on excessive demand. Justice Harrington's new decision extends the Hilewitz reasoning from social services to prescription drug costs.

"This changes the law for people with HIV in a beneficial way because, previous to this, their willingness, their capacity to finance their prescription medication themselves was not considered by Immigration," says Battista. "That's a good thing, because in my experience, having HIV was almost always an automatic refusal, just on the mere potential to access provincial drug plans."

The decision could still be appealed though, and Companioni is not sure what he will do if that happens.

"I would like to [continue in court] but not if it's going to cost a lot of money, because I've already spent $10,000. Here I am two years later and I still don't have my visa," he says. "But I understand that the law can't change or move forward unless people are willing to go to court."

In fact, quiet changes may already be underway. Even though the Hilewitz decision was restricted to social services, John Norquay, an immigration lawyer at the HIV and AIDS Legal Clinic of Ontario (HALCO) who formally intervened in the Companioni case, says that immigration officers have been applying it to prescription drug costs. Some HIV-positive applicants may already have been admitted to Canada based on Hilewitz, but so far Norquay is only aware of incomplete cases.

Beyond these technical issues, questions remain about the constitutionality of the excessive demand clause. The Supreme Court could have addressed this in the Hilewitz case, but as higher courts often do, it chose to rule on a narrower question instead. That doesn't mean that another case will not call the clause into question though, and HALCO and other organizations are getting ready.

"Our position is still that the excessive demand provision is overly broad, and that it's essentially unjustifiably discriminatory," says Norquay. "Because the grounds that they are refusing people on — a medical condition — is so strongly related to disability, which is a prohibited ground of discrimination, we think there is probably some angle to litigate this. We're still in the early stages of planning what the right strategy is for that."

For more information about HALCO or to make a donation, go to halco.org.
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