Chaoulli comes to Ontario

It has been over two years since the Supreme Court of Canada issued its controversial ruling in Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791. That case held that Quebec’s ban on private health insurance violated both s. 7 of the Charter and the Quebec Charter. Earlier this month, two Ontario residents filed a case at the Superior Court to test whether Ontario’s healthcare laws also violate s. 7. The launch of this case demonstrates that Chaoulli has created a legal environment where the proponents of private medicine are going to use the courts in an attempt to reach their goal of a two-tiered healthcare system. However, it is simply too early to know whether this case will lead to the dismantling of the single-provider public healthcare system seen in many of Canada’s provinces.

McCreith and Holmes v. Ontario (Attorney General)

With the support of the Canadian Constitution Foundation, Lindsay McCreith and Shona Holmes filed their statement of claim at the Ontario Superior Court on September 5, 2007. The Canadian Constitution Foundation is a conservative organization which funds litigation involving individual freedoms, economic liberty, and equality before the law. The Foundataion has also backed a challenge to Alberta’s healthcare laws (William Murray v. Alberta (Minister of Health)).

The substance of the claim involves the separate encounters Mr. McCreith and Ms. Holmes recently had with Ontario’s healthcare system. In early 2006, Mr. McCreith was found lying unconscious by his wife and daughter. He was rushed to the hospital, where an internist conducted a computed topography scan (CT scan). The CT scan found that he had a brain tumour, but he was told that it did not need to be addressed immediately. Mr. McCreith later arranged to have an MRI, but he was informed that it would take four and a half months to get an appointment. After deciding that he could not risk waiting, he arranged to have the MRI conducted in Buffalo at a cost of roughly $500. The MRI showed that he did have a significant brain tumour.

Following the discovery of the tumour, Mr. McCreith attempted to schedule an appointment with a neurosurgeon in Ontario, but was told he would have to wait three months. He was unwilling to wait the three months so he returned to Buffalo to meet with a neurosurgeon. In Buffalo, he underwent a procedure in which doctors successfully removed the tumour. The procedure was performed at a cost of almost $30,000.

Shona Holmes began to have headaches and vision problems in March of 2005. She waited seven weeks for an MRI, four months for a consultation with a neurologist, and six months for a consultation with an endocrinologist (a doctor who specializes in the system of the body which releases hormones into the blood stream). The results of the MRI showed that she had an 8-9 mm tumour in her brain.

Frustrated with the waiting required to see specialists, Ms. Holmes decided to leave the Ontario healthcare system to be examined at the Mayo Clinic in Arizona. She returned to Ontario with a diagnosis showing that the tumour was causing her vision problems and headaches. She attempted to get treatment in Ontario, but after being told that she would have to wait again to see a neurosurgeon, she decided to go back to the Mayo Clinic to have the tumour removed. Following the surgery, Ms. Holmes’ vision problems and headaches disappeared.

Both Mr. McCreith and Ms. Holmes received successful treatments in the United States. Neither was able to have their expenses reimbursed by the Ontario government. They claim that “prohibitions on direct billing, extra billing, private medical insurance and MRI facility fees… deprive Ontarians of the opportunity to secure timely access to essential services and thereby violate the right to life, liberty and security of the person guaranteed by section 7 of the Charter.” They argue that this is because healthcare legislation “has the effect of eliminating the supply of, and suppressing the demand of, essential health services outside the government monopoly healthcare system.” Finally, they claim that it was as a result of the government’s monopoly over core healthcare services that they endured “significant financial, emotional and physical hardship to access such services in the United States.”

Answering the Unanswered Questions of Chaoulli?

Contributors at TheCourt.ca have been closely following the political and legal responses to the Chaoulli decisions. Dean Monahan argued in support of the decision, suggesting that the Chaoulli ruling did not mandate a “two-tiered” healthcare system; rather, it merely obliged governments to ensure that if they do ban private healthcare, they must provide services in a timely manner (see post here). In contrast, Yu-Sung Soh canvassed the political and legal responses to the case, arguing that it has left the fate of Canada’s exclusively public healthcare system in jeopardy (click here).

What the filing of this case shows is that, whether Chaoulli mandates a two-tiered healthcare system or not, the proponents of privately delivered medical care have embraced litigation as a tool used to pursue their goal. Chaoulli has moved much of the debate about our healthcare system from the political arena and to the courtroom.

However, it is still too early to determine whether Chaoulli has sparked the beginning of the end for a single-provider public healthcare system. If the case launched by Mr. McCreith and Ms. Holmes does eventually get to the SCC, it will require the SCC to answer many of the questions which have lingered post-Chaoulli. In answering these questions, the SCC may provide some space for governments to operate a single-provider public healthcare system without violating the Charter.

First, the SCC would have to determine whether Chaoulli even applies in Ontario. The Chaoulli ruling was largely based on provisions in the Quebec Charter, which does not impact Ontario laws. Second, the composition of the SCC has changed. Justice Major signed on with Chief Justice McLachlin’s holding that the Quebec ban on private health insurance violates the Charter. There is no guarantee that his replacement, Justice Rothstein, will share his position. Furthermore, Justice Abella and Justice Charron were not a part of the Chaoulli judgment and could sway the SCC away from finding a constitutional violation. Last, as Yu-Sung Soh has pointed out on the TheCourt.ca in the past, if it is found that Chaoulli is good law which does apply outside of Quebec, the SCC would have to provide some guidance in determining the “reasonable” level of healthcare a government is required to provide in order to comply with the Charter.

Only after these questions are answered, will we be able to truly determine whether litigation has killed our single-provider public healthcare system. Surely, this will be an issue followed closely by TheCourt.ca in the years to come.

Editor’s Note: Eric Baum also considered the McCreath case in May; for another look and an interesting video on the subject, see post.