At BMLG, we are passionate about taking on complex legal issues and using creative arguments to change the law and advocate for our community. Our firm is in the midst of a Charter challenge at the Federal Court, arguing that the excessive demand provision of the medical inadmissibility section in the Immigration and Refugee Protection Act is not compliant with the Charter.
Our client is a student who was accepted by a college in Toronto and then applied for a study permit. When our client underwent a medical exam as part of the process, he discovered that he is HIV positive. He obtained the study permit and completed a one-year program of study. Our client later applied to extend his study permit. However, his extension application was refused on the basis that his HIV condition might cause an excessive demand on Canada’s health or social services.
The intended purpose of the excessive demand provision in the IRPA was to stop people with excessive health needs from coming to Canada in order to prevent a strain on health and social services systems. Our position is that this provision is discriminatory, as it unfairly views people with health conditions as potential financial burdens and fails to account for the contributions that they may make to Canada.
Throughout the Federal Court application, we have had the support of the HIV Legal Network, a not-for-profit organization that promotes the human rights of individuals living with HIV, who applied to join the litigation as a public interest party to support our client. However, unfortunately, earlier this month, the Federal Court issued a decision to strike the HIV Legal Network as a party for procedural reasons.
We are disheartened by this decision as we believe that access to justice includes ensuring that Court procedures and practices are followed in a way that removes barriers for public interest parties to readily advocate.
A recent Toronto Star article highlights these concerns raised by the Federal Court’s decision to strike the HIV Legal Network as a party, including that it creates additional barriers that the access to justice for marginalized people who already face significant challenges.
Despite the recent decision, Mathew Wilton, counsel for the applicant, is determined to find a way to include the HIV Legal Network in the case as we wait for leave to be granted. He explains that “While the HIV Legal Network was struck as a party on procedural grounds, the Court has made no finding on their merit as a public interest party, and we will continue to explore avenues for their involvement, given the importance of their voice and advocacy with respect to this issue”.
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