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Earlier this month The Canadian Constitutional Foundation ("CCF") announced that it would be supporting Lindsay McCreith's challenge to Ontario's health care system. While this case is only at the threshold of the Ontario court system, it is more than possible that this case will eventually find itself before the Supreme Court of Canada ("SCC"). Indeed, following on the heels of the SCC's controversial Auton v. British Columbia, 2004 SCC 78 [Auton], and Chaoulli v. Quebec (Attorney General), 2005 SCC 35 [Chaoulli], decisions, the case of Lindsay McCreith offers yet another potential example of polemical rights-based litigation aimed at health care policy reform.
After suffering a seizure in January of 2006, Lindsay McCreith, a retired autobody shop owner from Newmarket, Ontario, was told that he likely had a brain tumour. Mr. McCreith was further informed by his doctors that he would have to wait until the end of May for an MRI test to determine if the tumour was malignant or benign. Unwilling to risk the possible progression of brain cancer, McCreith travelled to Buffalo, where an MRI test revealed that the tumour was, indeed, cancerous. Even with the MRI result in hand, McCreith was told that he would have to wait up to eight months for surgery within Ontario. McCreith opted to have surgery in Buffalo in March of 2006, at the cost of $27,600 (U.S.).
The Ontario government now refuses to reimburse McCreith's medical costs because he had not received government approval for out-of-country surgery. The approval process, however, would have likely taken considerably longer than the month interval between the MRI test and the actual operation.
In the words of John Carpay, Executive Director of the CCF,
"Ontario's laws make it illegal to spend your own after-tax dollars on your own health, and the health of your loved ones. This violates the Charter right to life and security of the person".
Certainly, as McLachlin C.J. declared at para. 123 of Chaoulli, "access to a waiting list is not access to health care".
The Chaoulli case and its aftermath have provoked considerable discussion here at TheCourt.ca in posts by Dean Patrick Monohan & Yu-Sung Soh. It may be to our advantage to momentarily return to these thoughtful comments and concerns as Lindsay McCreith's case slowly winds itself through the court system.
3 Comments
If the government of Ontario is liable to pay for Mr. McCreith's out-of-country medical treatment, then Mr. McCreith should be tortiously liable for the wrongful deaths of those whose lives could have been saved absent this particular drain to the Ministry of Health's coffers.
Aside from my fairly overt political comments, this legal scenario has recently been considered by the Divisional Court in Flora v. Ontario (2007), 83 O.R. (3d) 721.
That case, like this one, sought not to strike down the prohibition on private health insurance, but to foist a positive obligation on the government to pay for out-of-country medical treatment. Mr. Flora's predicament was unfortunately far worse. He was told he would certainly die within 6 months, and was not a good enough candidate for surgery in Ontario. He paid for it in the U.K. and is alive and well.
Nevertheless, the Div. Court was clear: Gosselin v. Quebec makes clear that s.7 contains no positive guarantees for life, liberty, and the security of the person; the government is merely obliged not to deprive persons of those things (as the text of the section makes fairly clear.)
And even though the government can not be said to have "acted" in this case, such actions would have been in accordance with the principles of fundamental justice. To strike down legislation on substantive grounds it must be "arbitrary."
Epstein J. wrote that Ontario's Health Insurance Act has many goals, among them fair access to health services. To restrict access to care for some so as to facilitate equal access to care for all is a goal that is furthered by actions such as this, so such actions cannot be said to be arbitrary.
Obviously my own short explanation is no match for Justice Epstein's; anyone who is interested should read her reasons. But I can at least say with some degree of surety that the fact scenario's are close enough to defeat this guy's claim.
You may want to keep up to date on your postings. This case was decided in favor of the Ministry.