Felipe Montoya, a temporary foreign worker who teaches environmental studies at York University, faces the prospect of having to leave Canada after living here for years because of his son's medical condition.

Montoya's son does not suffer from a contagious disease. The sole issue is whether his son's condition, Down syndrome, could cause a financial demand on Canadian health or social services that would exceed the average Canadian per capita cost, or whether his son's condition could increase waiting times for Canadians requiring treatment.

The Montoya case raises two questions. First, is it right to prevent individuals from immigrating to Canada because of a non-contagious medical condition? Second, is there a fairer way to deal with the situation faced by the Montoyas?

The answer to both questions is yes.

The law preventing foreign nationals from immigrating to Canada due to certain health conditions is necessary. These laws are designed to protect Canadians' access to affordable health care. When immigration applications are refused for this reason, it is either because the costs associated with treatment are exceedingly high or the demands for these services result in unacceptably long waits for Canadians.

If Canada allowed individuals with expensive medical conditions to immigrate to Canada, Canadians could face longer lines for treatment and Canadian taxpayers would have to pay these additional costs. In an era where the federal government has announced that it will be running a deficit of almost $30 billion, it is easy to see that there is a need to control costs so that Canadians have access to the health care we need.

The law that may prevent the Montoyas from immigrating to Canada is not totally blind. It does allow them to submit an individualized care plan to establish that the costs associated with their son's condition will not be excessive. If successful, the Montoyas will be allowed to immigrate to Canada. However, if they cannot establish this, their application may have to be refused.

While the law preventing individuals with certain health conditions from immigrating to Canada needs to be maintained, there is a better way to deal with families such as the Montoyas.

Certainty needed

The big question here is why Montoya was allowed to come to Canada as a temporary foreign worker without being able to determine with certainty whether his son's condition could cause an eventual permanent residency application to be denied. While media reports have indicated that he was advised by a hiring officer that his son's condition might be an issue, temporary foreign workers coming to Canada should be allowed to determine this with certainty. Saying something might be an issue also means it may not be an issue.

Presumably, Montoya was recruited by York University because of the contribution he would be able to make to research and teaching in his field of expertise. Is it fair we ask foreign nationals to teach Canadians and do cutting-edge research only to summarily give them a one-way ticket out of Canada?

If we allow individuals to work in Canada, we should provide them with the opportunity to determine whether there are medical conditions that could result in their permanent residency applications being refused before they come here. We should not let people move to Canada as temporary foreign workers, work here, pay taxes here and settle down here only to pull the rug out from under them.

What Canada should do is to allow temporary foreign workers and their families the option to undergo immigration medicals for an eventual permanent residency application before they arrive here. This is only fair.

If this was done in the Montoyas' situation, the Montoyas would have known of the possibility that they would not be able to immigrate here. Montoya could have then made a personal decision to take that risk or, in the alternative, come to Canada for a limited period of time and then return back to his native Costa Rica.

In implementing this solution, the government could set an expiry date for the immigration medical. This would ensure that temporary foreign workers looking to immigrate to Canada file their applications in a timely fashion or risk the uncertainty of a new immigration medical.

Unfortunately for the Montoyas, this solution is too late. However, because the government did not have the foresight to implement this easy and fair option, the right thing to do at this stage is to let them stay.


Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg.