Posted By Laura Crestohl & Katarina Daniels

On February 22nd, 2014, the McGill Journal of Law and Health hosted its 6th annual colloquium, entitled “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope”. The event attracted a diverse audience including medical students and health care professionals, law students and legal practitioners, political scientists, policy analysts, and members of the general public concerned about health care access.

Part 1 of our recap covered the first two speakers: Me Philippe Trudel, who represented George Zeliotis in the Chaoulli case and Jasmine Guénette of the Montreal Economic Institute.

Part 2 of the recap will cover the other three speakers, including: Professor Alana Klein from McGill’s Faculty of Law, Mr. John Carpay of the Justice Centre for Constitutional Freedoms, and Professor Antonia Maioni of the Institute of Health and Social Policy at McGill.

ALANA KLEIN: Potential Charter challenges in extending Chaoulli to other provinces

McGill Law’s own Professor Alana Klein spoke on how Charter challenges aiming to extend the ruling in Chaoulli to other provinces can be viewed in an international human rights context. She mentioned a case from British Columbia, in which Dr. Brian Day has brought a challenge to the law prohibiting doctors from charging extra fees. (For more on this case, see the MJLH’s blog post on Dr. Day’s webinar).

Klein then went over the history of how the Canadian system implemented bans on charging extra fees for medical services. She started with the Canada Health Act, which was passed in 1984, which resulted in the vast majority of health care expenditures being paid by a single-government insurer, with a promise to pay dollar-for-dollar for services if provinces did not have extra billing for services or user fees. The aim was to ensure that health care was distributed by need and not by ability to pay. Different provinces added other measures  to discourage the development of a parallel private system, such as not allowing doctors to work in both the private and public sectors. Klein argued that despite these measures, the current system allows a lot of “passive privatization”, as seen for example through Pharmacare and home case. In addition, there are blatant violations of the Canada Health Act, which the government turns a blind eye to out of political considerations.

Klein then addressed whether this regime invokes constitutional and/or human rights arguments. Is there a constitutional right to be able to pay for private healthcare? There is no right to health care in the Canadian Charter of Rights and Freedoms, so challenges are brought under the right to life and security of the person as protected by section 7. This argument includes the view that by creating long wait lists, the government is arbitrarily restricting access to health care.  Klein defined arbitrariness as: not whether law is necessary for goal, but whether is it relate to pursuing that object. Klein pointed out, though, that the court has never struck down a law for being arbitrary, only government actions. In addition, a case has never been decided on the Canadian Charter; the Supreme Court was split 3-3 in Chaoulli, and ultimately the case was decided on the Quebec Charter. These new Western challenges will likely force the Court to come to a conclusion on this issue.

When taking a human rights approach, Klein reminded us that we have to look at the power dynamics at work here. There must be rationing in health care but it must be transparent, evidence-based and pursuant to the needs of the most vulnerable. Is there evidence that it is not discriminatory? Klein concluded her session with the thought of whether litigation is truly the best venue for this discussion, or whether, perhaps, the political realm is better equipped to handle these questions.

JOHN CARPAY: Relying on Chaoulli in Allen v Alberta

John Carpay focused his talk on the current case of Allen v Alberta and its reliance on the ruling in Chaoulli. Carpay’s client, Dr. Darcy Allen, is a dentist who injured his back and had to wait 1 year for a diagnostic test and then was told he would have to wait 12-18 more months for surgery. Allen then chose to pay out-of-pocket to get back surgery in Montana instead of waiting in Alberta. Dr. Allen has permanent damage due to the time he spent waiting for surgery in Canada.

The heart of this debate, for Carpay, is the distinction between a government program and a government monopoly. Carpay and Dr. Allen argue that there is a right to access health care outside the government’s monopoly and that this will not impact the public system, just as private car ownership does not threaten public transit. A monopoly by definition is not accountable because you cannot take business elsewhere. Carpay suggests that the government’s monopoly causes Canadians to suffer unnecessarily, and may even lead to preventable death.

Carpay reminded the audience that to prove that a Charter right has been infringed, the plaintiff must only prove that their right was violated. Even if waitlists come down, if some people, even just 10%, are still negatively affected, their rights are still being violating, and the law should be found to be unconstitutional. However, the current Alberta government does not have the statistics to know how many Albertans are waiting, suffering and not working due to waitlists.

Carpay did not make a prediction as to the case, but thinks his argument is strong. He argued that Chaoulli was not solely decided on the Quebec Charter; rather he sees in the Justice Deschamps’ decision an affinity with the judges who expressed that a ban on private healthcare is not justified. He thinks that the Canadian public is beginning to understand that there are more options than simply choosing between the status quo and a fully-privatized US-style system.

ANTONIA MAIONI: How we got to Chaoulli and what has come since

McGill’s Professor Antonia Maioni spoke on the context leading up to Chaoulli. Maioni emphasized that it is important to remember that Chaoulli arose in a particular sociopolitical context in order to understand its consequences.She started by describing the austerity measures of the late 1990s that constrained health care system. She claimed, however, that after the introduction of the Canadian Charter of Rights and Freedoms in 1982, courts became more active in health care policy, and a trend of litigating health care reform began to take form as Charter challenges. Maioni claimed that at the time, the political decision makers had not foreseen the impact of such challenges.

The effect of Chaoulli remains unclear. The legislature’s response to the decision, Bill 33, only narrowly responded to the court, focusing on targeted surgeries and creating a centralized management of wait lists. However, data suggests the effect of Bill 33 on wait times is mixed.

Maioni argued that several questions remained after Chaoulli, including whether the litigation succeeded in bringing about meaningful change. Did the case fail in its objective to break the government monopoly over the delivery of certain health care services? Is litigation the best way to make public policy?

Maioni ended the day with this last thought: “We have to stop thinking about healthcare reform in terms of values…At the end of the day, we are consumers and we need cost effective, quality healthcare.”

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Thank you for reading our recaps. We hope to see you at the next MJLH Colloquium in 2015!