Canada: Unfinished Business: The Alberta Court Of Queen’s Bench To Hear Constitutional Challenge To Alberta’s Prohibition On Private Health Care Insurance Based On Chaoulli

Last Updated: October 23 2013
Article by Nadia Jandali Chao

On October 17, 2013, the Alberta Court of Queen's Bench will hear two applications that aim to extend the Supreme Court of Canada's decision in Chaoulli v. Quebec (Attorney General)1 ("Chaoulli").2 Represented by John Carpay of the Justice Centre for Constitutional Freedoms, Darcy Allen and Richard Cross (the "Applicants") are challenging the constitutionality of section 26(2) of the Alberta Health Care Insurance Act3,which establishes a prohibition on the sale and purchase of private insurance for services that are available through the public health care system in Alberta. The Applicants claim that this provision violates their right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms4 ("Charter").

Factual Background 5

The Applicants both suffered from severe continuous back pain that prevented them from working and carrying out simple daily activities. Mr. Cross' pain stemmed from a multiple-level degenerative disc disease. He underwent a partial discectomy in December of 1998 but his pain continued to get progressively worse. After being informed that surgery was not available in Canada for his condition, Mr. Cross applied to Alberta's Out-of-Country Health Services Committee in 2010 seeking funding for spinal surgery at the Laser Spine Institute in Phoenix, Arizona. The Committee denied his request so Mr. Cross personally paid the associated cost of $24,236.34 to obtain the procedure at the clinic in Phoenix on March 18, 2010.

Mr. Allen's back pain arose from an injury he suffered while playing hockey in December of 2007. After many unsuccessful treatments, surgery was recommended in May of 2009. Mr. Allen claims that the surgery was initially scheduled to take place in September of 2010 but, in December of 2009, he was informed that he would have to wait an additional eighteen months or more. Mr. Allen claims that such a wait time would have been unbearable so he instead chose to personally pay $77,000.00 to receive the surgery sooner at a hospital in Great Falls, Montana. He claims that he did not apply to Alberta Health Services for funding for out-of-country treatment because he believed that his application would ultimately be rejected.6

For both Applicants, the surgical procedures they received in the United States resulted in a dramatic decrease in the pain they had been experiencing and marked the start of a gradual return to significantly improved health. 

The Claims

The Applicants allege that Alberta's ban on private health insurance has created a "virtual monopoly" in the health care system, which, in combination with the government's failure to provide timely access to medical treatment, deprived the Applicants of their right to life, liberty and security of the person. They seek a declaration that the prohibition on private health insurance under s. 26(2) of the Alberta Health Care Insurance Act is unconstitutional.7

In addition, Mr. Cross claims that the decisions of the Out-of-Country Health Services Committee and the Out-of-Country Health Services Appeal Panel to deny him funding should be quashed as unreasonable. Mr. Cross and Mr. Allen also seek reimbursement for the expenses they incurred to obtain out-of-country treatment.

Application of the Chaoulli Decision

This case is an attempt to extend the decision of the Supreme Court of Canada ("SCC") in Chaoulli. In 2005, the majority8 of the SCC ruled in Chaoulli that Quebec's ban on private health care insurance violated section 1 of the Quebec Charter of Human Rights and Freedoms9because it created a virtual monopoly over health care which resulted in lengthy delays in treatment that adversely affected citizens' security of the person. Following this decision, the Quebec government adapted the ban to allow for private health insurance in very limited circumstances.10

Although the applicants in Chaoulli also argued that Quebec's prohibition violated section 7 of the Canadian Charter, the SCC was divided on this issue.  McLachlin C.J., Major J. and Bastarache J. held that Quebec's law prohibiting private health insurance violated section 7 of the Charter because it impinged on the right to life, liberty and security of the person in an arbitrary fashion.  Specifically, they held that people suffer and die on wait lists that are caused by a prohibition on insurance and this prohibition is not necessary for preserving the public health care system. Justices Binnie, LeBel and Fish found that the prohibition did not breach either the Quebec or Canadian Charter. Justice Deschamps focused on the Quebec Charter and did not engage in an analysis of section 7 of the Canadian Charter. As the SCC failed to provide a majority ruling that the prohibition violated section 7 of the Canadian Charter, the relief sought by the Applicants in this case would go beyond that which was provided in Chaoulli.

The Applicants rely heavily on the Chaoulli decision in their written briefs. They claim that the Alberta prohibition on private health insurance is substantially similar to the Quebec provisions that were struck down in Chaoulli.11 The Applicants argue that the Court in Chaoulli unanimously agreed that the prohibition on the purchase of private health insurance deprives patients of their rights under section 7 of the Charter and that the only point in contention was whether this deprivation was in accordance with the principles of fundamental justice.12 They argue that there is no evidence that lengthy wait times for necessary medical treatment have been reduced since the SCC's decision in Chaoulli. Furthermore, the Applicants claim thatbecause delays in Alberta's public system place their health and security at risk, they should be permitted to purchase insurance in order to access private health services in a timely manner. Relying on the reasoning of McLachlin C.J. and Major and Bastarache J.J. in Chaoulli, the Applicants claim that the prohibition is arbitrary because it does not serve the goal of providing patients with reasonable access to necessary health care and thus is in violation of the principles of fundamental justice.13

The Province of Alberta's Response

The Province of Alberta argues that Mr. Cross' case is not about delay in obtaining medically necessary treatment. 14They claim that it is instead about obtaining a surgical procedure that is performed in Canada but which Mr. Cross' Canadian physicians held was not an option for treating his condition. Alberta argues that, in effect, Mr. Cross is asking the court to interpret section 7 of the Charter as imposing a positive duty on the government to fund medical treatment. As a result, Alberta takes the position that the Chaoulli decision has no relevance to Mr. Cross' claim. Despite this assertion, Alberta responds fully to Mr. Cross' section 7 argument in the event that the Court considers delayed access to health care to be a live issue in his case.

Alberta also takes the position that Mr. Allen and Mr. Cross have failed to prove that the ban on private health insurance caused the delays and pain they experienced. Specifically, Alberta states that the Applicants' argument requires the court to accept the unproven assumptions that without the prohibition, there would be no wait times and, further, that the Applicants would have been able to purchase private insurance.15 With respect to the issue of wait times, Alberta notes that, since Chaoulli, the provincial government has implemented a number of initiatives in order to address lengthy wait lists. Alberta argues that the connection, therefore, between the prohibition on private health insurance and the alleged harm suffered by the Applicants is too remote to support a conclusion that the prohibition violated the Applicants' rights to security of the person under section 7. 

Alberta further contends that the prohibition on private health insurance is not contrary to any principle of fundamental justice as required for a finding of a breach of section 7 of the Charter. Relying on the reasoning of Justices Binnie, LeBel and Fish in Chaoulli, the province claims that the Applicants have not successfully identified a principle of fundamental justice that has been violated.  In reply to the Applicants' argument that the prohibition on private health insurance is arbitrary, Alberta argues that the law is rationally connected to the goal of providing citizens with equal access to health care. Alberta argues that it wants a health care system where access is governed by need rather than wealth, status or insurability, and the prohibition on private health insurance accomplishes this objective.16

With respect to the out-of-country treatment claims, Alberta's position is that since Mr. Allen never applied for out-of-country funding, as required by Alberta's Out-of-Country Health Services Regulation (the "Regulation"), there is no causal connection between the Regulation and the alleged breach of his section 7 rights. In reply to Mr. Cross' out-of-country claims, the province argues that he has not proven on a balance of probabilities that the Regulation breached his section 7 rights. Finally, Alberta claims that contrary to Mr. Cross' assertions, the Regulation provides a funding scheme that is administratively fair and not ambiguous or arbitrary.


The applications of Mr. Cross and Mr. Allen will be heard together on October 17, 2013. These cases will afford the Alberta Court of Queen's Bench an opportunity to provide greater clarity on the application of section 7 of the Charter in the context of timely access to health care and the legality of bans on private health insurance.


1.2005 SCC 35, [2005] 1 SCR 791.

2.Applicant's Brief, Allen v. Alberta, Court of Queen's Bench of Alberta, 1101-17169 (filed 5 Nov 2012) [Allen Brief]; Applicant's Reply Brief, Allen v. Alberta, Court of Queen's Bench of Alberta, 1101-17169 (filed 19 June 2013); Applicant's Brief, Cross v. Alberta, Court of Queen's Bench of Alberta, 1101-17315 (filed 5 Nov 2012) [Cross Brief]; Applicant's Reply Brief, Cross v. Alberta, Court of Queen's Bench of Alberta, 1101-17315 (filed 19 June 2013).

3.RSA 2000, c A-20.

4.Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

5.There are some differences between the facts as set out in the Applicants' Briefs and as set out in the responding Briefs of the Province of Alberta.  For the purposes of this bulletin, we have summarized the factual background as set out by the Applicants.

6 Allen Brief, supra note 2 at para 14.

7 The Applicants additionally seek a declaration that the Out-of-Country Health Services Regulation, Alta Reg 78/2006, which establishes Alberta's out-of-country health services scheme, is unconstitutional.  In the alternative, the Applicants seek a declaration pursuant to section 52 of the Canadian Constitution that subsection 26(2) of the Alberta Health Care Insurance Act and Alberta's Out-of-Country Health Services Regulation are inconsistent with section 7 of the Charter, that they cannot be saved under section 1 of the Charter, and are therefore of no force or effect.

8 The SCC was split 4:3 on the issue of whether the prohibition violated the Quebec Charter.  The majority was comprised of McLachlin C.J. and Major, Bastarache, and Deschamps JJ.

9 RSQ, c C-12.

10 Bill 33, An Act to amend the Act respecting health services and social services and other legislative provisions, 2nd Sess, 37th Leg, Quebec, 2006.

11 Allen Brief, supra note 2 at para 35; Cross Brief, supra note 2 at para 72.

12 Allen Brief, supra note 2 at para 27; Cross Brief, supra note 2 at para 64.

13 Allen Brief, supra note 2 at paras 45-50; Cross Brief, supra note 2 at paras 82-87.

14 Brief of the Minister of Justice and Solicitor General and Attorney General of Alberta, Cross v. Alberta, 1101-17315 at para 3[Alberta Brief in Cross].

15 Alberta Brief in Cross, supra note 14 at para 86; Brief of the Minister of Justice and Solicitor General and Attorney General of Alberta, Allen v. Alberta, 1101-17169 at para 95 [Alberta Brief in Allen].

16 Alberta Brief in Cross, supra note 14 at para 87; Alberta Brief in Allen, supra note 15 at para 99.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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