Originally published Fall 2005
On June 9, 2005, the Supreme Court of Canada released its landmark decision in Chaoulli v. Québec (Attorney General). By a narrow 4-3 majority, the Court ruled that the ban on private health insurance in Québec violated the Québec Charter of Human Rights and Freedoms ("Québec Charter"), and was therefore void and unenforceable. The majority of the Court held that the ban on private health insurance contributed to lengthy waiting lists for some procedures in the province of Québec. They ruled that those waiting lists had become so long that they were an unjustifiable violation of the rights to life and personal inviolability protected by the Québec Charter. Three of the four majority judges went on to hold that where delays in the public health care system are unreasonable, the ban on private health insurance violates the right to life and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms ("Canadian Charter").
Three dissenting judges held that the ban on private health insurance did not violate either the Québec Charter or the Canadian Charter.
Impact of the Decision
The decision does not alter the Québec public health care plan. Rather, it permits private insurance companies to sell health insurance in Québec for all medical and hospital services. In essence, it allows for alternative methods of insurance and health care delivery to operate in addition to the public system, leaving to the Québec government the task of regulating how a private system of this sort can function alongside a public system.
(a) The Prospect of Similar Legal Challenges in Ontario
While litigation challenging similar legislation in other provinces can be reasonably anticipated, it is important to note the differences in Ontario’s legal regime and management of health care that suggest the result might be different if a case arises here. Like Québec, the province of Ontario also bans private health insurance. Section 14 of the Ontario Health Insurance Act states:
14.(1) Every contract of insurance, other than insurance provided under section 268 of the Insurance Act, for the payment of or reimbursement or indemnification for all or any part of the cost of any insured services other than,
(a) any part of the cost of hospital, ambulance and nursing home services that is not paid by the Plan;
(b) compensation for loss of time from usual or normal activities because of disability requiring insured services;
(c) 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.
This prohibition is similar to the prohibitions considered by the Court in Chaoulli, which read as follows:
Section 15 of the Québec Health Insurance Act:
15. No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident or a deemed resident of Québec or to another person on his behalf…
Section 11 of the Québec Hospital Insurance Act:
11.(1) No one shall make or renew, or make a payment under a contract under which
(a) a resident is to be provided with or reimbursed for the cost of any hospital service that is one of the insured services;
(b) payment is conditional upon the hospitalization of a resident; or
(c) payment is dependent upon the length of time the resident is a patient in a facility maintained by an institution contemplated in section 2…
However, there is a significant difference in the provincial health care delivery systems. Québec does not limit the amount charged by physicians who do not participate in the Québec public health care plans. Physicians in Québec who opt out can charge higher amounts in exchange for making medical services available to a patient sooner than they would receive them in the public system. In contrast, Ontario legislation bans payments of amounts greater than those paid by OHIP. Section 10 of the Commitment to the Future of Medicare Act, 2004 provides:
10(1) A physician or designated practitioner shall not charge more or accept payment or other benefit for more than the amount payable under the Plan for rendering an insured service to an insured person. (emphasis added)
(3) A physician or designated practitioner shall not accept payment or benefit for an insured service rendered to an insured person except,
(a) from the Plan, including a payment made in accordance with an agreement made under subsection 2(2) of the Health Insurance Act;
(b) from a public hospital or prescribed facility for services rendered in that public hospital or facility; or
(c) if permitted to do so by the regulations in the prescribed circumstances and on the prescribed conditions.
As a result, striking section 14 of Ontario’s Health Insurance Act alone would likely result in little change in Ontario. Because private insurance plans could not pay physicians a greater amount than medicare for a service, there would be no financial incentive for physicians to opt for the private sector. Unless there are other factors, financial or otherwise, enticing physicians to provide care in the private sector, there would appear to be no benefit to Ontarians to purchasing private insurance.
That said, Ontario’s ban on accepting greater payment from a private insurer might also be challenged if the matter of access to timely medical care is considered by an Ontario court. To the extent that it contributes to the waiting list problem, there is a possibility that it might be found to infringe the right of Ontarians to life and security of the person as provided for in the Canadian Charter.
A further significant difference is that the right to security of the person under the Québec Charter and the right to security of the person under the Canadian Charter are not identical:
7. 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.
1. Every human being has a right to life, and to personal security, inviolability and freedom.
To establish a violation of the Canadian Charter, the claimant must prove not only that his or her right to security of the person has been infringed, but also that the infringement is not in accordance with the principles of fundamental justice. There is no such dual burden of proof under the Québec Charter.
Finally, in any future litigation Ontario will be in a better position to outline the steps it has taken and will be taking to control wait lists. Ontario is developing a province-wide wait time information system, and has targeted funding to five key areas – cardiac, cancer surgery, cataracts, total hip and knee replacements, and MRI’s. These initiatives could ultimately link Ontario public hospitals to the issue as the province seeks to create accountability agreements with performance conditions and targets linked to wait time funding.
(b) Impact on Ontario Hospitals
The Court in Chaoulli did not impose any positive obligations to provide medical care within a specific time. Difficult cases can be expected in the future which relate more directly to this issue. The minority judges in Chaoulli, while refusing to strike down a ban on private insurance, specifically commented on future litigation as follows:
The safety valve (however imperfectly administered) of allowing Québec residents to obtain essential health care outside the province when they are unable to receive the care in question at home in a timely way is of importance. If, as the appellants claim, this safety valve is opened too sparingly, the courts are available to supervise the enforcement of the rights of those patients who are directly affected by the decision on a case-by-case basis… It is important to emphasize that rejection of the appellants’ global challenge to Quebec’s health plan would not foreclose individual patients from seeking individual relief tailored to their individual circumstances. (emphasis added)
Direct litigation against hospitals, seeking either damages or queue-jumping injunctive relief, may be expected. Court-ordered queuejumping is a prospect which would threaten the integrity of waiting lists. Increased litigation regarding denials of OHIP appeals relating to out of province treatment is another possibility.
The government’s action on wait times, through funding and infrastructure support, may also have implications for hospital liability. If hospitals receive government funding to improve access to health care, or have imposed on them a new duty to implement government initiatives on waiting times, we may see new kinds of claims relating to the negligent assessment of patients and prioritization for waiting lists, or the negligent application of funding and concomitant failure to reduce wait times. These questions have assumed greater prominence in the wake of Chaoulli.
Guy Pratte and Freya Kristjanson of Borden Ladner Gervais LLP represented the Canadian Medical Association and the Canadian Orthopaedic Association before the Supreme Court. A copy of this decision can be found at  S.C.J. No. 33 (S.C.C.) on Quicklaw.
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