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Tuesday, January 22, 2008

Is universal healthcare an illegal, dangerous monopoly? One Ontario lawsuit argues 'yes'

Adolfo Flora, whose first legal appeal in his case against the government-operated Ontario Health Insurance Plan (OHIP) was dismissed last year, is back at it again. His lawyers insist that Ontario's universal healthcare system is putting citizens' lives in danger. (OHIP provides universal healthcare insurance; OHIP has a monopoly over healthcare insurance; monopolies are detrimental to the public good; ergo OHIP is detrimental to the public good -- so goes Mr Flora's argument.)

Mr Flora is now appealing the earlier case's dismissal in the Ontario Court of Appeal. (To read about yesterday's events at the courthouse, check out coverage from the Star and the National Post.)

In 1999, Mr Flora, a retired science teacher, was diagnosed with liver cancer. "He was told he had two weeks to live, to get his affairs in order," Rick Baker, the president of Vancouver private medical access firm Timely Medical Alternatives told me last year about the case. Mr Flora needed a partial liver transplant, but his doctors told him he was unlikely to survive and a deceased-donor liver was near-impossible to procure. He travelled to England and received the partial transplant from his brother — at a cost of $447,000. OHIP refuses to reimburse him.

Mr Flora's lawyer, Mark Freiman, argued yesterday in court, "When the government monopolizes health care and effectively seals off the exits so that access to private care is illusory to all but the wealthiest... the government is responsible for the impairment of the right to life and security of the person."

"The appellant obtained the treatment he wanted..." retorted government counsel Janet Minor. "Clearly there is nothing the government did to deprive Mr. Flora of his ability to obtain treatment... What the appellant seeks in this case is an economic benefit for himself."

Mr Flora's case is relatively uncharted territory in Canadian jurisprudence.

The famous Chaoulli v Québec decision of 2005, which overturned that province's ban on private insurance based on the rights to life and security of the person enumerated in Section 7 of the Canadian Charter of Rights and Freedoms, is the only precedent for this type of claim and it remains to be seen whether the Chaoulli decision will be extended to other provinces beyond Quebec. If that were to happen, the five basic tenets of the Canada Health Act -- public administration, comprehensiveness, universality, portability, and accessibility -- would seem to be due for a rewrite.

But not all Canadian legal experts worry, however, that the Canada Health Act is at risk of being ruined. I wrote last year: "In a lecture given in late November [2006], Patrick Monahan, the dean of York University's Osgoode Hall Law School, argued that Chaoulli need not lead to an 'American-style, two-tier' system but instead effectively enshrines a new requirement in the Canada Health Act: what he calls 'patient accountability.'

"'Far from heralding the destruction of Canada's publicly funded healthcare system,' wrote Dr Monahan, 'I believe that Chaoulli may provide the key to its reform and long-term sustainability... Patient accountability means that those responsible for funding the healthcare system and providing care are ultimately answerable to patients for the timeliness of service provided and, further, that this accountability can be enforced through the legal system.'"

OTHER CASES
Here's a short list of some of the other cases that have arisen across Canada after Dr Jacques Chaoulli's 2005 victory:

The case: Murray v Alberta
The details: Bill Murray (not the actor) was denied government funding for hip resurfacing, in a case that harkens back almost identically to the Chaoulli case. John Carpay, executive director of the Canadian Constitution Foundation, which is funding Mr Murray's lawsuit, told me, "It's often said that anyone who tries to make a prediction on a court outcome is a fool. It's not a slam dunk, but the Chaoulli decision is a strong precedent."
Where it stands now:
At last update, he was still trying to obtain permission from the court to file his suit as a class action.

The case: McCreith-Holmes v Ontario
The details: Lindsay McCreith and Shona Holmes were both diagnosed with brain tumours and then left Canada for the US to obtain treatment. They're filing a constitutional challenge based on Section 7, like Adolfo Flora. "I think it's a very important court case," Dr Chaoulli told me a few months back when I wrote about McCreith-Holmes. "I think it has a very good chance to succeed."
Where it stands now: The case was filed September 5, 2007 in Ontario Superior Court.

The case: Shirley Healey, still considering filing a case against the province of British Columbia
The details: Ms Healey was diagnosed with mesenteric ischemia in 2006. Her physician, Robert Ellett, of Kelowna, BC, told her, "Anyone with blocked arteries is not meant to wait six months to a year... with the way things are in Canada, I would go to the States as well." She was treated promptly in Bellingham, Washington.
Where it stands now: Ms Healey still hasn't filed her oft-threatened lawsuit. Rick Baker told me he thought Ms Healey would win reimbursement for her medical costs from the province because the kind of treatment she received in Washington wasn't available in BC. No word yet on the province's decision.

BUILDING PRECEDENT
A quick search reveals that this is just "the tip of the iceberg," as Patrick Monahan put it. The Chaoulli decision has already set in motion a series of legal consequences that may turn out to change the landscape of the whole of Canadian healthcare delivery. There have been 44 decisions in Canadian courts or tribunals since 2005 that cite the Chaoulli decision, some of which have themselves been cited multiple times.

Here's the full list, from my Canadian Legal Information Institute search (for links to the full text of each decision, click here):

1.
Sfetkopoulos v. Canada (Attorney General), 2008 FC 33 (CanLII) — 2008-01-10
Canada — Federal Court of Canada
marihuana — designated producer — holder — users — principles of fundamental justice
2.
E.K. (Succession) c. Régie de l'assurance maladie du Québec, 2007 QCTAQ 11480 (CanLII) — 2007-12-04
Quebec — Administrative Tribunal of Québec
chimiothérapie — non myéloablative — thérapeutique — non apparenté — transplantation
3.
Canadian Council for Refugees v. Canada, 2007 FC 1262 (CanLII) — 2007-11-29
Canada — Federal Court of Canada
refugee — country — asylum — refoulement — torture
4.
Rivet c. Canada (Procureur général), 2007 CF 1175 (CanLII) — 2007-11-15
Canada — Federal Court of Canada
obligation d'équité procédurale — consultatif — risque pour la sécurité aérienne — portées — méfait
5.
Amnesty International Canada v. Canada (National Defence), 2007 FC 1147 (CanLII) — 2007-11-05
Canada — Federal Court of Canada
detainees — application for judicial review — bereft of any chance — motion to strike — extraterritorial
6.
Cheskes v. Ontario (Attorney General), 2007 CanLII 38387 (ON S.C.) — 2007-09-19
Ontario — Superior Court of Justice
adoptees — birth parents — privacy — principle of fundamental justice — information
7.
Haj Khalil v. Canada, 2007 FC 923 (CanLII) — 2007-09-18
Canada — Federal Court of Canada
permanent residence — ministerial relief — refugee — inadmissible — application
cited by 1 case
8.
R. v. Dryseth, 2007 ONCJ 446 (CanLII) — 2007-09-11
Ontario — Ontario Court of Justice
police — breath tests — hospital — pain — provide a breath sample
9.
Chevalier v. The Queen, 2008 TCC 11 (CanLII) — 2007-08-24
Canada — Tax Court of Canada
medical expense tax credit — chronic fatigue syndrome — patient — individual — multiple chemical sensitivities
10.
H.N. c. Québec (Ministre de l'Éducation), 2007 QCCA 1111 (CanLII) — 2007-08-22
Quebec — Court of Appeal
école — minorité — anglais — langue — subventionnée
11.
C.B. c. Société de l'assurance automobile du Québec, 2007 QCTAQ 7603 (CanLII) — 2007-08-16
Quebec — Administrative Tribunal of Québec
secret professionnel — témoin — notaire — déconsidère l'administration — québécoise des droits et libertés
12.
Trang v. Alberta (Edmonton Remand Centre), 2007 ABCA 263 (CanLII) — 2007-08-16
Alberta — Court of Appeal
principle of fundamental justice — vans — arbitrary — prisoners — security of the person
13.
Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2007 ABQB 517 (CanLII) — 2007-08-14
Alberta — Court of Queen's Bench
membership — settlement — individual — freedom — registered
14.
Veffer v. Canada (Foreign Affairs and International Trade Canada), 2007 FCA 247 (CanLII) — 2007-06-25
Canada — Federal Court of Appeal
passport — place of birth — freedom of religion — policy — country
15.
Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (CanLII) — 2007-06-08
Canada — Supreme Court of Canada
collective bargaining — health care — freedom of association — health sector employer — union
cited by 14 cases
16.
Sagharian v. Ontario (Education), 2007 CanLII 6933 (ON S.C.) — 2007-03-12
Ontario — Superior Court of Justice
autistic children — pleaded — educational programs — allegations — duty
17.
Melanson et al. v. New Brunswick (Attorney General) et al., 2007 NBCA 12 (CanLII) — 2007-02-26
New Brunswick — Court of Appeal of New Brunswick
paiements par l'intermédiaire — members — pension plans — commuted value — priority scheme
cited by 1 case
18.
Flora v. Ontario Health Insurance Plan, 2007 CanLII 339 (ON S.C.D.C.) — 2007-01-15
Ontario — Divisional Court
treatment — liver transplant — medical — cadaveric — health care
19.
Club Pro Adult Entertainment Inc. v. Ontario (Attorney General), 2006 CanLII 42254 (ON S.C.) — 2006-12-18
Ontario — Superior Court of Justice
smoking — legislation — municipality — bad faith — tenable
20.
Covarrubias v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2006 FCA 365 (CanLII) — 2006-11-10
Canada — Federal Court of Appeal
country — medical care — risk to life — refugee — inability
cited by 5 cases
21.
CanWest Media Works Inc. v. Canada (Attorney General), 2006 CanLII 37258 (ON S.C.) — 2006-11-03
Ontario — Superior Court of Justice
coalition — pharmaceutical products — intervenor — drug — impact
22.
Québec (Commission des droits de la personne et des droits de la jeunesse) v. Laval (Ville), 2006 CanLII 33156 (QC T.D.P.) — 2006-09-22
Quebec — Human Rights Tribunal
recitation of the prayer — freedom of religion — human — conscience — religious
cited by 1 case
23.
The Canadian Bar Association v. HMTQ et al, 2006 BCSC 1342 (CanLII) — 2006-09-05
British Columbia — Supreme Court of British Columbia
public interest standing — challenge — legal aid — constitutional — legislation
cited by 1 case
24.
Association pour l'accès à l'avortement c. Québec (Procureur général), 2006 QCCS 4694 (CanLII) — 2006-08-17
Quebec — Superior Court
ivg — santé — assurés — médecins — établissement
cited by 1 case
25.
Wynberg v. Ontario, 2006 CanLII 22919 (ON C.A.) — 2006-07-07
Ontario — Court of Appeal for Ontario
intensive behavioural intervention — special education programs — autistic children age — group — pupils
26.
Wynberg v. Ontario, 2006 CanLII 22920 (ON C.A.) — 2006-07-07
Ontario — Court of Appeal for Ontario
intensive behavioural intervention — special education programs — autistic children age — group — pupils
cited by 5 cases
27.
D.M.M. v. Ontario, 2006 CanLII 19946 (ON S.C.) — 2006-06-07
Ontario — Superior Court of Justice
birth parents — adopted persons — information — disclosure — legislation
cited by 1 case
28.
Ali v. The Queen, 2006 TCC 287 (CanLII) — 2006-05-18
Canada — Tax Court of Canada
patient — medical practitioner — drugs — dietary supplements — individual
cited by 1 case
29.
Baier v. Alberta, 2006 ABCA 137 (CanLII) — 2006-05-01
Alberta — Court of Appeal
platform — fundamental freedom — seeking election to a school — infringe — expression
cited by 3 cases
30.
Placements Sergakis inc. c. Québec (Procureur général), 2006 QCCS 2026 (CanLII) — 2006-04-10
Quebec — Superior Court
intérêt — irrecevabilité — soulevées — liberté — tranchée
31.
R. v. Barnhill, 2006 BCSC 485 (CanLII) — 2006-03-24
British Columbia — Supreme Court of British Columbia
marihuana — barn — warrant — police — search
32.
Newton-Juliard v. Canada (Minister of Citizenship and Immigration), 2006 FC 177 (CanLII) — 2006-02-10
Canada — Federal Court of Canada
santé — visa officer — foreign national's health — étranger — expected to cause excessive demand
cited by 2 cases
33.
Gray v. Ontario, 2006 CanLII 1764 (ON S.C.D.C.) — 2006-01-26
Ontario — Divisional Court
residents — substitute decision maker — guardian — parens patriae jurisdiction — institutions
34.
Doe v. Canada (Attorney General), 2006 CanLII 1185 (ON S.C.) — 2006-01-19
Ontario — Superior Court of Justice
semen — donor — sexual partner — women — insemination
35.
Raywalt Construction Co. Ltd. v. J.R.B., 2005 ABQB 989 (CanLII) — 2005-12-29
Alberta — Court of Queen's Bench
fire — diesel fuel — damage — contributory negligence — lighter
cited by 1 case
36.
Kubby v. H.M.T.Q., 2005 BCCA 640 (CanLII) — 2005-12-22
British Columbia — Court of Appeal
constitutional — possession of marihuana — cultivation — invalid — medical
cited by 2 cases
37.
Doe v. Alberta, 2005 ABQB 885 (CanLII) — 2005-12-06
Alberta — Court of Queen's Bench
principles of fundamental justice — parent — person — guardianship — best interests of the child
38.
Prentice v. Canada (F.C.A.), 2005 FCA 395 (CanLII) — 2005-11-28
Canada — Federal Court of Appeal
principle of fundamental justice — violation — immunity — translation — peacekeeping missions
cited by 16 cases
39.
Électrique Glaswerk inc. c. Axa Boréal Assurances inc., 2005 QCCA 942 (CanLII) — 2005-10-14
Quebec — Court of Appeal
intimées — intérêt — nullité absolue — faillite et l'insolvabilité — intentée
cited by 3 cases
40.
Jane Doe et al. v. Manitoba, 2005 MBCA 109 (CanLII) — 2005-09-30
Manitoba — Court of Appeal
government's motion — therapeutic abortions — summary judgment in favour — dismissed — hospital
cited by 6 cases
41.
Human Rights Commission v. Workplace Health, Safety and Compensation Commission, 2005 NLCA 61 (CanLII) — 2005-09-23
Newfoundland and Labrador — Supreme Court of Newfoundland and Labrador, Court of Appeal
legislation — board of inquiry — inoperative — adjudicator — enacted
cited by 5 cases
42.
Covarrubias v. Canada (Minister of Citizenship and Immigration), 2005 FC 1193 (CanLII) — 2005-09-01
Canada — Federal Court of Canada
country — risk — medical care — adequate — treatment
cited by 8 cases
43.
Alberta v. Kingsway General Insurance Company, 2005 ABQB 662 (CanLII) — 2005-09-01
Alberta — Court of Queen's Bench
legislation — bill of attainder — insurance — reform — ultra vires
cited by 1 case
44.
Fédération Franco-Ténoise c. Procureure Générale du Canada, 2005 NWTSC 62 (CanLII) — 2005-07-15
Northwest Territories — Supreme Court of the Northwest Territories
territoriaux — déclaration modifiée — résumés — témoins — précisions
cited by 1 case

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