2005-06-01 June Supreme Court of Canada rules Quebec government health monopoly violates fundamental rights

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Chaoulli v. Quebec

Supreme Court of Canada rules Quebec government health monopoly violates fundamental rights

by Jim Simpson, LLM
OMA General Counsel

On June 9, 2005 the Supreme Court of Canada released, after a year's consideration, its landmark decision in Chaoulli v. Quebec (Attorney General). This is the most important judicial decision on the Canadian health-care system since its introduction 40 years ago.

Dr. Chaoulli challenged the constitutionality of s. 11 Hospital Insurance Act (Quebec) and s. 15 Health Insurance Act (Quebec) that prohibit private health insurance in Quebec.

He submitted that these provisions violated,

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Every human being has a right to life, and to personal security, inviolability and freedom.

At trial, Dr. Chaoulli lead evidence that,

There were widespread delays in the Quebec public health-care system.
The Quebec government had failed to deliver health care in a "reasonable manner."
In the case of certain procedures, the delays that are the necessary result of waiting lists increase the patient's risk of mortality or the risk that his or her injuries will become irreparable.
Many patients on non-urgent waiting lists are in pain and cannot fully enjoy any real quality of life.
Wait lists result in physical and psychological suffering.
Most Quebecers cannot afford private health care without private health insurance.
Private health care can provide health care faster than the public health system.

Justice Piché of the Superior Court of Quebec accepted this evidence and held that since the prohibition against private health insurance threatened the health of Quebecers, it denied their "right to life and security of the person" guaranteed under the first half of s.7 of the Canadian Charter of Rights and Freedoms.

However, she found that the denial of this right was "in accordance with the principles of fundamental justice" viz. the second half of s.7, and hence found that the Charter had not been violated and dismissed the action. The Quebec Court of Appeal unanimously affirmed that decision and dismissed Dr. Chaoulli's appeal.

Seven members of the Supreme Court of Canada heard Dr. Chaoulli's appeal. By a 4:3 majority, the Court allowed the appeal and ruled that the ban on private health insurance in Quebec violated the Charter of Human Rights and Freedoms (Quebec) and hence was void and unenforceable.

All seven Supreme Court justices who sat on the appeal agreed with the trial judge that the evidence established that, "in some circumstances some Quebecers may have their life or security of the person put at risk by the prohibition against private health insurance."¹

Justices McLachlin C.J., Major and Bastarache held that the prohibition on private health insurance violated the "right to life and security of the person," and that such deprivation was not in "accordance with the principles of fundamental justice," and that hence s.7 of the Canadian Charter had been violated.

The Chief Justice and Major J. wrote, Bastarache J. concurring, that,

"Not every difficulty rises to the level of adverse impact on security of the person under s. 7. The impact, whether psychological or physical, must be serious. However, because patients may be denied timely health care for a condition that is clinically significant to their current and future health, s. 7 protection of security of the person is engaged. Access to a waiting list is not access to health care. As we noted above, there is unchallenged evidence that in some serious cases, patients die as a result of waiting lists for public health care. Where lack of timely health care can result in death, s. 7 protection of life itself is engaged. The evidence here demonstrates that the prohibition on health insurance results in physical and psychological suffering that meets this threshold requirement of seriousness."²

The Quebec government argued that the prohibition on private insurance was necessary to preserve the public health-care system and hence, that the violation of "the right to life, and security of the person" was justified by "the principles of fundamental justice."

Justices McLachlin C.J., Major and Bastarache dismissed this argument as being a "theoretical contention."³ They wrote,

"The evidence adduced at trial establishes that many western democracies that do not impose a monopoly on the delivery of health care have successfully delivered to their citizens medical services that are superior to and more affordable than the services that are presently available in Canada. This demonstrates that a monopoly is not necessary or even related to the provision of quality public health care.

Nor does it appear that private participation leads to the eventual demise of public health care.

In summary, the evidence on the experience of other western democracies refutes the government's theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care.

When we look to the evidence rather than to assumptions, the connection between prohibiting private insurance and maintaining quality public health care vanishes. The evidence before us establishes that where the public system fails to deliver adequate care, the denial of private insurance subjects people to long waiting lists and negatively affects their health and security of the person. The government contends that this is necessary in order to preserve the public health system. The evidence, however, belies that contention.

We conclude that on the evidence adduced in this case, the appellants have established that in the face of delays in treatment that cause psychological and physical suffering, the prohibition on private insurance jeopardizes the right to life, liberty and security of the person of Canadians in an arbitrary manner, and is therefore not in accordance with the principles of fundamental justice."⁴

They held that the prohibition violated s.7, and that such a breach was not justified under s.1 of the Canadian Charter. They further held that the prohibition deprived some Quebecers of the "right to life, and to personal security and inviolability" protected by s.1 of the Quebec Charter, and that this breach was not justified under s. 9.1 of the Quebec Charter.

Justice Deschamps was extremely critical of the Quebec government. She wrote,

"Given the tendency to focus the debate on a sociopolitical philosophy, it seems that governments have lost sight of the urgency of taking concrete action. The courts are therefore the last line of defence for citizens. For many years, the government has failed to act; the situation continues to deteriorate. This is not a case in which missing scientific data would allow for a more informed decision to be made. The principle of prudence that is so popular in matters relating to the environment and to medical research cannot be transposed to this case. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of the violation of Quebecers' right to security. The government has not given reasons for its failure to act. Inertia cannot be used as an argument to justify deference."⁵

Justice Deschamps agreed with Justices McLachlin C.J., Major and Bastarache that the prohibition violated s.1 of the Quebec Charter and that the Attorney General of Quebec failed to discharge his burden to prove that a total prohibition on private insurance was not justified under s. 9.1 of the Quebec Charter.⁶ Hence, the majority of the Court held that the prohibition on private insurance violated s. 1 of the Quebec Charter, and was hence unconstitutional.

Justice Deschamps also agreed that the trial judge did not err in finding the prohibition violated the "right to life and security of the person" under s.7 of the Canadian Charter.⁷

However, she did not explicitly say whether she believed the appellants had established that this violation was not in accordance with the "principles of fundamental justice." Hence, we do not know for certain whether she, and hence the majority of the Court, considered the prohibition to violate s.7 of the Canadian Charter. Accordingly, we do not know if this decision has application outside of the province of Quebec.

Justice Deschamps wrote that s.1 of the Quebec Charter had "a scope that [wa]s potentially broader"⁸ than s.1 of the Canadian Charter as the Quebec section did not contain the "fundamental justice" exception.⁹ She also noted that the onus of proof under the Canadian Charter rests on the person challenging the statute, but the onus of proof under the Quebec Charter rested on the Quebec Attorney General.¹⁰

However, as Justice Deschamps wrote,

"the regimes of the provinces where a private system is authorized demonstrate that public health services are not threatened by private insurance. It can therefore be concluded that the prohibition is not necessary to guarantee the integrity of the public plan" (emphasis added).

A measure as drastic as prohibiting private insurance contracts appears to be neither essential nor determinative."¹¹

It appears she agreed with the conclusion of Justices McLachlin C.J., Major and Bastarache that the appellants satisfied the burden of proving that the violation of their "right to life and security of the person" was not in accordance with the "principles of fundamental justice," and hence that s.7 of the Canadian Charter had been violated.

Justices Binnie, LeBel and Fish in dissent agreed with the trial judge and Quebec Court of Appeal that the ban on private health insurance did not violate s. 1 of the Quebec Charter or s.7 of the Canadian Charter 202.

This decision does not in any way alter the Quebec public health-care plan, or reduce the obligation of Quebec residents to fund the public health-care plan through the Quebec taxation system. This decision merely allows private insurance companies to sell private health insurance in Quebec.

No other jurisdiction in the world considered at trial prohibited the sale of private health insurance. The Court accepted that the sale of private health insurance will not diminish the public health-care system.

Quebec does not limit the amount charged by physicians who do not participate in the Quebec public health-care plan. Equally, it does not insure the cost of services provided by non-participating physicians. Hence, private insurers will be able to pay non-participating physicians higher amounts than the public health-care plan.

Ontario also bans private health insurance. Section 14 of the Health Insurance Act (Ontario) states,

any part of the cost of hospital, ambulance and nursing home services that is not paid by the Plan;
compensation for loss of time from usual or normal activities because of disability requiring insured services;
any part of the cost that is not paid by the Plan for such other services as may be prescribed when they are performed by such classes of persons or in such classes of facilities as may be prescribed, performed in Ontario for any person eligible to become an insured person under this Act, is void and of no effect in so far as it makes provision for insuring against the costs payable by the Plan and no person shall enter into or renew such a contract.

(2) A resident shall not accept or receive any benefit under any contract of insurance prohibited under subsection (1) whereby the resident or his or her dependants may be provided with or reimbursed or indemnified for all or any part of the costs of, or costs directly related to the provision of any insured service."

While this prohibition is similar to the prohibitions considered by the Court in Chaoulli, it is difficult to speculate what the effect of the Chaoulli decision would be in Ontario. Unlike Quebec, Ontario bans the payment of amounts greater than that paid by OHIP. Section 10 of the Commitment to the Future of Medicare Act, 2004 (Bill 8) states,

from the Plan, including a payment made in accordance with an agreement made under subsection 2 (2) of the Health Insurance Act;
from a public hospital or prescribed facility for services rendered in that public hospital or facility; or
if permitted to do so by the regulations in the prescribed circumstances and on the prescribed conditions."

Hence, striking s.14 of the Health Insurance Act (Ontario) alone would not alter the delivery of health care in Ontario as there would be no benefit for Ontarians to buy private insurance.

Hopefully, this landmark decision will generate public debate in Ontario on the funding and delivery of care.

The health-care systems of many of the European countries considered by the Supreme Court could serve as useful models to be considered in this debate.

Solving the problems of the Ontario health-care system can be best achieved in a rational policy debate rather than in a courtroom.

References

Deschamps J. at 45, McLachlin C.J. and Major and Bastarache JJ. at 124, Binnie, LeBel and Fish JJ. at 191.
123.
149.
140, 148, 149, 152 and 153.
96, 97.
68.
45.
30.
29.
60, 67.
74, 83.