Health Care and Human Rights after
Auton and Chaoulli
Mel Cousins*
the Court
case, Auton,
The judicial interpretation of the entitlement to
the Charter and human rights
health care under
legislation has tended to swing between interventionist
and non-interventionist poles. In Eldridge, the Supreme
Court of Canada held that a failure to provide sign
language interpretation where this was necessary to
ensure equal access to health care was in breach of the
equality provisions of the Charter. However, in a
subsequent
narrowly
circumscribed the limits of this approach, holding that
the Canadian system of public health care was, by its
very terms, a partial health plan. It followed that
exclusion of particular non-core services could not, in
itself, be seen as less favourable treatment.
The Chaoulli decision marked a return to a more
interventionist approach with the Court holding (by a
narrow majority) that the prohibition on private health
insurance provided for in Quebec law was inconsistent
with section 1 of the Quebec Charter. This judgment has
been cited in over eighty decisions of courts and tribunals.
However, just how important has Chaoulli been in terms of
the overall approach of the Canadian courts?
The author suggests that Chaoullidespite its
significance
legislative arenahas had a
somewhat limited impact to date on the case law
concerning health care, and that Auton has clearly had a
greater impact to date. The author examines several
examples from subsequent case law that point to the
weakness of the approaches taken in both Auton and
Chaoulli. The narrow approach adopted in Auton can
lead to equality claims being dismissed without any
proper discrimination analysis and shows the manner in
which a broad use of the benefit provided by law
requirement may weaken equality
jurisprudence.
Conversely, the case law highlights the fact that the
courts will have to reject much more difficult claims than
those upheld in Chaoulli unless they wish to develop
positive obligations under section 7 of the Charter.
in
the
Linterprtation judiciaire du droit des soins de sant
en vertu de la Charte et des instruments lgislatifs
protgeant les droits de la personne a tendance osciller
entre les ples interventionniste et non interventionniste.
Dans Eldridge, la Cour suprme du Canada a statu que
lomission de fournir une interprtation en langage des
signes lorsque ncessaire pour assurer un accs gal aux
soins de sant constituait une violation des dispositions de la
Charte protgeant le droit lgalit. Toutefois, dans une
affaire subsquente, Auton, la Cour a troitement circonscrit
les limites de cette approche, en affirmant que le rgime
public de soins de sant canadien est foncirement un rgime
partiel. Consquemment, lexclusion de services particuliers
non essentiels ne peut, en elle-mme, correspondre un
traitement moins favorable.
Laffaire Chaoulli marque un retour une approche
plus interventionniste. La Cour y affirme par une courte
majorit que la prohibition de souscription une assurance
prive de soins de sant dans la loi qubcoise nest pas
compatible avec larticle premier de la Charte qubcoise.
Ce jugement a par la suite t cit dans plus de quatre-vingts
dcisions de cours et de tribunaux. Toutefois, quelle est
rellement limportance de Chaoulli en ce qui concerne
lapproche globale des cours canadiennes ?
Lauteur suggre que Chaoulli, malgr son importance
dans la sphre lgislative, a jusqu prsent eu une influence
relativement limite dans la jurisprudence concernant les
soins de sant. Auton demeure clairement ce jour une
dcision beaucoup plus
influente. Lauteur examine
plusieurs exemples de la jurisprudence subsquente qui
clairent la faiblesse des approches respectives retenues dans
Auton et dans Chaoulli. Dun ct, lapproche troite
adopte dans Auton peut mener au rejet de demandes de
protection du droit lgalit sans vritable analyse de la
discrimination allgue, ce qui montre que linterprtation
large exigeant quun avantage prvu par la loi existe peut
affaiblir la jurisprudence sur le droit lgalit. Dun autre
ct, la jurisprudence souligne que les cours devront rejeter
des demandes beaucoup plus exigeantes que celles acceptes
dans Chaoulli, moins quelles ne souhaitent dvelopper
des obligations positives en vertu de larticle 7 de la Charte.
* Mel Cousins B.L. is attached to the School of law and social sciences, Glasgow Caledonian
University, Scotland. The author would like to thank the editors and two anonymous referees for very
helpful and constructive comments on an earlier draft.
Mel Cousins 2009
To be cited as: (2009) 54 McGill L.J. 717
Mode de rfrence : (2009) 54 R.D. McGill 717
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 54
718
Introduction
719
721
721
726
727
727
727
728
732
732
734
737
I. Health Care and Section 7 of the Charter
A. Flora and Medical Care Abroad
B. Association pour laccs lavortement and
Access to Abortion
C. Ali v. CanadaTax Credits and the Charter
II. Health Care and Section 15 of the Charter
A. The Judicial Approach to Section 15 and
B. Medical Expense Tax Credits and the Equality
Health Care
Analysis
III. Access to Health Care and Human Rights Law
A. BuffettInfertility Treatment and Gender
Discrimination
B. Sex Reassignment SurgeryGender and
Disability Discrimination
Conclusion
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 719
Introduction
The judicial approach to the interpretation of the entitlement to health care under
the Canadian Charter of Rights and Freedoms and human rights legislation has
tended to swing between interventionist and non-interventionist poles.1 In Eldridge v.
British Columbia (A.G.), the Supreme Court of Canada held that a failure to provide
sign language interpretation where this was necessary to ensure equal access to health
care was in breach of the equality provisions in section 15(1) of the Charter.2
However, in the subsequent case of Auton (Guardian ad litem of) v. British Columbia
(A.G.), the Court rather narrowly circumscribed the limits of this approach.3 In Auton,
the Court held that the failure to provide a particular treatment for autistic children of
certain ages was not an infringement of their equality rights. The Court introduced a
new requirement in the section 15 analysis: that the benefit claimed be provided by
law. It construed the benefit claimed (specific treatment for autistic children) as
funding for all medically required treatment but held that such a benefit was not
provided by the legislative scheme.4 The Canadian system of public health care was,
by its very terms, a partial health plan and its purpose was not to meet all medical
needs. It followed that the exclusion of particular non-core services could not, in
itself, be seen as less favourable treatment. Thus the Court appeared to have
established a distinction between (1)
to ensure reasonable
accommodation so as to allow access for disabled persons to the general health care
system and (2) the recognition that the precise scope of the services provided is a
matter primarily within the jurisdiction of the legislature.5
the obligation
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter].
2 [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577 [Eldridge cited to S.C.R.].
3 2004 SCC 78, [2004] 3 S.C.R. 657, 245 D.L.R. (4th) 1 [Auton]. There has been extensive
commentary on this case, most of it quite critical: Natasha Bakht, Furthering an Economic/Social
Right to Health Care: The Failure of Auton v. British Columbia (2005) 4 J.L. & Equality 241; Claire
Bond, Section 15 of the Charter and the Allocation of Resources in Health Care: A Comment on
Auton v. British Columbia (2005) 13 Health L.J. 253; Margot Finley, Limiting Section 15(1) in the
Health Care Context: The Impact of Auton v. British Columbia (2005) 63 U.T. Fac. L. Rev. 213;
Daphne Gilbert & Diana Majury, Critical Comparisons: The Supreme Court of Canada Dooms
Section 15 (2006) 24 Windsor Y.B. Access Just. 111; Martha Jackman, Health Care and Equality: Is
There a Cure? (2007) 15 Health L.J. 87; Ellie Venhola, Goliath Arisen: Taking Aim at the Health
Care Regime in Auton (2005) 20 J.L. & Soc. Poly 67. It should be noted that the lower court
decisions had also been criticized from a different perspective: Donna Greschner & Steven Lewis,
Auton and Evidence-Based Decision-Making: Medicare in the Courts (2003) 82 Can. Bar Rev. 501.
4 Auton, ibid. at paras. 30-31.
5 See also Cameron v. Nova Scotia (1999), 204 N.S.R. (2d) 1, 177 D.L.R. (4th) 611 (C.A.). A
somewhat similar distinction has been adopted in the United States. See Alexander v. Choate, 469
U.S. 287 (1985) (reduction in number of in-patient days covered by Medicare not discriminatory
against disabled persons); Lincoln CERCPAC v. Health and Hospitals Corp. 147 F.3d 165 (2nd Cir.
1998) (closure of specialist child rehabilitation centre and transfer to another centre not in breach of
[Vol. 54
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Many commentators were therefore somewhat surprised when the Supreme Court
of Canada in Chaoulli v. Quebec (A.G.)6 held (by a four-to-three majority) that the
prohibition on private health insurance in Quebec law was inconsistent with section 1
of Quebecs Charter of Human Rights and Freedoms.7 Three members of the majority
held that the prohibition also violated section 7 of the Canadian Charter and was not
justifiable under section 1. This decision has, of course, been the subject of a large
volume of commentary and has had an important impact on subsequent legislative
developments.8 It has also (at the time of writing) been cited in over eighty decisions
of courts and tribunals (to mention only those included in the Canlii database).
However, just how important has the Chaoulli decision been in terms of the overall
approach of the Canadian courts? Has it marked a sea change in approach or has
business gone on largely as before, with Chaoulli being confined to its own particular
facts? This comment examines the relative impact of Chaoulli and Auton in the post-
Chaoulli case law on health care and the Charter and/or human rights legislation, and
considers what the subsequent case law can reveal about the merits (and demerits) of
these important cases.9
Part I reviews the case law to date under section 7 of the Charter, while Part II
goes on to consider the case law as it concerns section 15(1). Part III considers cases
concerning human rights legislation, which may provide a higher level of protection
the Americans with Disabilities Act (ADA). But see Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002)
(specific exclusion of old and disabled people from health care program in breach of the ADA) and
Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) (closing down disability facility without replacement in
breach of the ADA).
6 2005 SCC 35, [2005] 1 S.C.R. 791, 254 D.L.R. (4th) 577 [Chaoulli].
7 R.S.Q., c. C-12 [Quebec Charter]. This section provides that [e]very human being has a right to
life, and to personal security, inviolability and freedom.
8 Anon., Case Note on Chaoulli v. Quebec (A.G.), (2005) 119 Harv. L. Rev. 677; Colleen Flood,
Kent Roach & Lorne Sossin, eds., Access to Care, Access to Justice: The Legal Debate over Private
Health Insurance in Canada (Toronto: University of Toronto Press, 2005); Colleen Flood & Sujith
Xavier, Health Care Rights in Canada: The Chaoulli Legacy in A.P. den Exter, ed., International
Health Law: Solidarity and Justice in Health Care (Apeldoorn, The Netherlands: Maklu, 2008) 97;
Martha Jackman The Last Line of Defence for [Which?] Citizens: Accountability, Equality and the
Right to Health in Chaoulli (2006) 44 Osgoode Hall L.J. 349; Christopher P. Manfredi & Antonia
Maioni, The Last Line of Defence for Citizens: Litigating Private Health Insurance in Chaoulli v.
Quebec (2006) 44 Osgoode Hall L.J. 249; Danielle Pinard, Une malheureuse clbration de la
Charte des droits et liberts de la personne par la Cour suprme du Canada : larrt Chaoulli (2006)
R. du B. 421; Marie-Claude Prmont, Laffaire Chaoulli et le systme de sant du Qubec : cherchez
lerreur, cherchez la raison (2006) 51 McGill L.J. 167; Marie-Claude Prmont, Wait-Time
Guarantees: An Analysis of Quebecs Reaction to the Chaoulli Supreme Court Decision (2007) 15
Health L.J. 43; Michael Yeo & Carole Lucock, Quality v. Equality: The Divided Court in Chaoulli v.
Quebec (2006) 14 Health L.J. 129. This is by no means a complete list.
9 Although Auton concerned the health care system, the treatments for autistic children fall on the
border between the health care and educational systems and there have been a number of
(unsuccessful) cases concerning such treatment and the educational system. See e.g. Wynberg v.
Ontario (2006), 82 O.R. (3d) 561, 269 D.L.R. (4th) 435 (C.A.), leave to appeal to S.C.C. refused,
(2007), 153 C.R.R. (2d) 375, 234 O.A.C. 397.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 721
on the grounds listed therein than does section 15(1) of the Charter. Part IV
concludes that, with the exception of cases taken under human rights legislation,
health care cases post-Chaoulli have been largely unsuccessful. This comment argues
that the post-Auton and Chaoulli case law can throw some light on the merits and
demerits of those decisions and that, of the two decisions, Auton has clearly had a
greater impact to date. This comment suggests that the Supreme Court of Canada may
need to revisit its judgment in Auton concerning the scope of section 15(1) so as to
achieve its objective of protecting the legislatures authority to determine the scope of
educational and health services without undermining the Charter equality analysis. In
contrast, Chaoulli has had a somewhat limited impact to date on the case law
concerning health care. This comment argues that the subsequent case law indicates
that the courtsunless they wish to develop positive obligations under section 7
will have to reject much harder claims than that in Chaoulli. The difficulties of trying
to resolve questions of health policy though legal decisions have been emphasized by
commentators and (some) judges. However, the fact that a majority of the Court in
Chaoulli were prepared to change health policy in a section 7 context while, at the
same time, the Court has been very reluctant to challenge policy in a section 15
context, has created a definite tension in the case law that must be addressed.
I. Health Care and Section 7 of the Charter
Section 7 of the Charter provides that [e]veryone 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. The most important case to date
concerning section 7 and access to health care has been Chaoulli, in which, as noted
above, three of the majority ruled that the prohibition on private health insurance in
Quebec law violated section 7 of the Charter and was not justifiable under
section 1.10 This case was exceptional in a number of ways and its full implications
for access to health care remain unclear.
A. Flora and Medical Care Abroad
The most significant post-Chaoulli case concerning section 7 to date has been
Flora v. Ontario Health Insurance Plan.11 This case involved a claim for a
reimbursement of life-saving health care expenditures made abroad. Mr. Flora, who
10 Chaoulli, supra note 6.
11 2008 ONCA 538, 91 O.R. (3d) 412, 295 D.L.R. (4th) 309 [Flora]. There are a number of ongoing
cases which have generated an extraordinary level of comment given the fact that there has not yet
been a substantive judgment on the Charter issues: Murray v. Alberta (Calgary Health Region), 2007
ABQB 231, 445 A.R. 1, 76 Alta. L.R. (4th) 118 (Alta. Q.B.); McCreith v. Ontario (statement of claim
filed 5 September 2007), Toronto 07-CU-339454PD3 (Ont. Sup. Ct. Just.), online:
right-wing (depending on your point of view) Canadian Constitution Foundation).
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had contracted hepatitis C in the 1970s from a blood transfusion, was diagnosed with
liver cancer in 1999. He was told that he was not a suitable candidate for a liver
transplant in Ontario and was given approximately six to eight months to live. He
underwent successful treatment to contain the growth and decrease the size of his
existing tumours and received a liver transplantation procedure at a hospital in
England. He subsequently applied to the Ontario Health Insurance Plan (OHIP) for
reimbursement of his medical expenses. This was refused and the refusal was upheld
by the Health Services Appeal and Review Board (the Board). Mr. Flora challenged
this decision before the Ontario Divisional Court and, on appeal, the Ontario Court of
Appeal.
The Health Insurance Act provides that an insured person is entitled to receive
payment from OHIP for insured services in such amounts and subject to such
conditions and copayments, if any, as are prescribed.12 Under subsection 28.4(2) of
the relevant regulation, in order to establish that an out-of-country medical treatment
constitutes an insured service, a person must show that
(a)
the service is generally accepted by the medical profession in Ontario as
appropriate for a person in the same medical circumstances as the insured
person;
(b)
(c) either,
the identical or equivalent service is not performed in Ontario or,
the service is medically necessary;
(i)
(ii) the identical or equivalent service is performed in Ontario, but it is
necessary that the insured person travel out of Canada to avoid a delay
that would result in death or medically significant irreversible tissue
damage.13
A major aspect of Mr. Floras challenge related to the reasonableness of the Boards
decision but as this is not directly germane to the issues I consider here, it can simply
be noted that both the Divisional Court and the Ontario Court of Appeal upheld the
Boards decision of these grounds.14 The second aspect of the challenge was the
argument that the regulation was in breach of section 7 of the Charter. Mr. Flora
argued that:
(i) the denial of his OHIP Application deprived him of access to a life-saving
medical treatment, thereby violating his s. 7 rights to life and security of the
person; (ii) the state also deprived him of his s. 7 rights by amending, in 1992, a
predecessor version of the regulation that would have provided funding for his
[liver transplant] on the basis of medical necessity; (iii) in any event, s. 7
imposes a positive obligation on the state to provide life-saving medical
treatments, thus obviating the need for a finding of state action amounting to
12 R.S.O. 1990, c. H.6, s. 12(1).
13 R.R.O. 1990, Reg. 552, ss. 28.4(2)(a)-(c).
14 See Flora, supra note 11 at paras. 32-92.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 723
deprivation; and (iv) finally, [the regulation] does not comport with the
principles of fundamental justice.15
In Gosselin, Chief Justice McLachlin identified three elements that must be
established in a section 7 claim.16 As summarized by the Divisional Court these were:
First, Mr. Flora must demonstrate that the Regulation affects an interest
protected by the right to life, liberty or security of the person within the
meaning of s. 7. Secondly, he must demonstrate that the limitations contained in
the Regulation pertaining to funding for out-of-country treatment constitute a
deprivation by the state. Thirdly, if deprivation of a right protected by s. 7 is
established, Mr. Flora must demonstrate that this was not in accordance with
the principles of fundamental justice.17
The Divisional Court accepted that the regulation did affect access to health care
and not simply economic interests (which have been excluded from section 7
protection). Turning to the second aspect, the court accepted that there was an
element of state action sufficient to attract Charter scrutiny.18 However, it concluded
that there was no deprivation of the right to life or security of the person by this state
action. In Chaoulli, the governments prohibition on private insurance had deprived
an individual of the opportunity to avoid a life-threatening delay in obtaining
treatment. However, the Divisional Court found that in Mr. Floras case, the
government had not prohibited anything. It concluded that there was no state action
directly prohibiting an individual from making personal choices that impacted his or
her life, liberty, or security of the person.19 Finally, the court rejected the
fundamental justice argument on the basis that grounding the deprivation on a
breach of fundamental justice is inconsistent with both the wording of section 7 and
the manner in which the section has been interpreted.20 Indeed, the section 7
jurisprudence (as outlined above) indicates that a person must show a specific breach
of the right to life, liberty, and/or security of person, rather than a general breach of
the principles of fundamental justice.
15 Flora, supra note 11 at para. 93.
16 See Gosselin v. Quebec (A.G.), 2002 SCC 84, [2002] 4 S.C.R. 429 at para. 75, 221 D.L.R. (4th)
17 Flora v. Ontario Health Insurance Plan (2007), 83 O.R. (3d) 721 at para. 142, 278 D.L.R. (4th)
257 [Gosselin].
45 (Div. Ct.) [Flora (D.C.)].
18 Ibid. at para. 166.
19 Ibid. at paras. 183-84. The court also rejected Mr. Floras complaint that the change in the law
engaged s. 7, holding that this was not the case unless there was a pre-existing and freestanding
Charter right (at para. 186).
20 Ibid. at para. 189. While taking the view that Mr. Floras s. 7 rights were not engaged, the court
also found no breach of principles of fundamental justice as would be required to show a breach of s.
7 (at paras. 206-23). The Ontario Court of Appeal simply and correctly stated that in view of its
conclusions that there was no deprivation of a right under s. 7 and no positive obligation to provide
health care, it was unnecessary to address the arguments regarding the conformity of the regulation
with the principles of fundamental justice (Flora, supra note 11 at para. 109).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
724
The Ontario Court of Appeal adopted a largely similar approach but focused on
whether there had been a deprivation of a right.21 It also distinguished Mr. Floras
case from that of Chaoulli; Justice Cronk (writing for the court) argued:
[Vol. 54
In Chaoulli, the pivotal consideration was the fact that the impugned
prohibition on private health insurance conspired with excessive costs in
Quebecs public health care system to force Quebeckers onto the wait lists that
pervaded the public system. It was this connection between the statutory
prohibition on private health insurance and the delays in the public system that
anchored the Chaoulli holding that the wait lists constituted a deprivation of
rights protected under s. 7. In other words, the statutory prohibition in issue was
directly linked to the harm suffered by Quebeckers who were compelled by the
prohibition to rely on the public health care system and to endure the
consequences of significant wait lists.22
In contrast, Justice Cronk argued that the regulation in dispute did not prohibit or
impede anyone from seeking medical treatment.23 She argued:
Section 28.4(2) neither prescribes nor limits the types of medical services
available to Ontarians. Nor does it represent governmental interference with an
existing right or other coercive state action. Quite the opposite. Section 28.4(2)
provides a defined benefit for out-of-country medical treatment that is not
otherwise available to Ontariansthe right to obtain public funding for certain
specific out-of-country medical treatments. By not providing funding for all
out-of-country medical treatments, it does not deprive an individual of the
rights protected by s. 7 of the Charter.24
Unsurprisingly, the Ontario Court of Appeal also rejected the argument that the 1992
amendment constituted a deprivation of rights under section 7, stating that a Charter
violation could not be founded on a mere change in law.25
The court then turned to the argument that section 7 imposes a positive obligation
of the state to provide life-saving medical treatments. Justice Cronk noted that the
Supreme Court of Canada had expressly left this issue open in Gosselin, but that to
date it had only extended the protection afforded by section 7 to cases involving a
state restriction on rights. She took the view that
21 It is not clear whether the Ontario Court of Appeal accepted that s. 7 was engaged based on Mr.
Floras submissions or because this aspect of the Divisional Courts findings was not appealed.
22 Flora, supra note 11 at para. 98. Cronk J.A. argued that a similar link between state actions and
delays in accessing health care was found in R. v. Morgentaler, in which the Supreme Court of Canada
had held that significant delays in access to abortions arising from the operation of a mandatory
committee system were in breach of s. 7 ([1988] 1 S.C.R. 30, 63 O.R. (2d) 281 [Morgentaler]).
23 Flora, ibid. at para. 101.
24 Ibid. She referred for support to the recent decision of the Ontario Court of Appeal in Wynberg v.
Ontario (supra note 8), in which the court found that the refusal to fund intensive behavioural
intervention for autistic children was not in breach of s. 7.
25 Flora, ibid. at para. 104, citing Ferrel v. Ontario (A.G.) (1998), 42 O.R. (3d) 97, 168 D.L.R. (4th)
1.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 725
on the current state of s. 7 constitutional jurisprudence, whereas herethe
government elects to provide a financial benefit that is not otherwise required
by law, legislative limitations on the scope of the financial benefit provided do
not violate s. 7. On the law at present, the reach of s. 7 does not extend to the
imposition of a positive constitutional obligation on the Ontario government to
fund out-of-country medical treatments even where the treatment in question
proves to be life-saving in nature.26
Thus, the Ontario courts have taken a narrow reading of Chaoulli, albeit one which is
perfectly reasonable in the light of that judgment. The Divisional Court was correct to
hold that Mr. Floras rights under section 7 were engaged. However, the difficulty he
faced was in showing that there was a deprivation of those rights. Fundamentally, he
was asking the Ontario courts to rule that there was a positive right to a certain level
of health care (at least with regard to life-threatening illnesses). This the courts were
not prepared to do. The distinction between a positive right to care and a restriction
on care is well-established in the case law but highly artificial. In Chaoulli, the state
decided to prohibit access to private health insurance in order to promote (what it saw
as) the best model of health care. In Flora, the state refused to fund expensive
treatment abroad in order to prioritize resources. The degree of impact was arguably
more immediate and direct in Flora, and yet it has been classified as a case where
there was no deprivation of section 7, whereas Chaoulli was categorized as
deprivation, despite the absence of any consensus on whether the introduction of
private health care will lead to an overall improvement in health care standards.27
Thus the decision in Floraa case tied to a very concrete situationserves to
emphasize the criticisms of the somewhat artificial link in the Chaoulli judgment
between the ban on private health insurance and long waiting times for access to
services.
One explanation for this difference in approach is the public-private distinction
between the cases, a distinction that is also at play when one compares the outcomes
in Chaoulli and Auton. Auton involved a claim which would have created an
obligation on the state to provide additional public funding for a specific type of
health care. In contrast, Chaoulli did not involve a direct claim for public resources
but rather concerned the individuals right to access private health insurance. Thus,
one can argue that Auton and Chaoulli are consistent in that one limits a claim to a
state-funded benefit while the other allows access to a private benefit. Nonetheless, in
terms of public policy, the argument was that this restriction (on access to private
health insurance) had been imposed in order to improve overall access to health care.
Auton and Chaoulli can only be seen as consistent if one sees the Supreme Court of
26 Flora, ibid. at para. 108.
27 This case has recently been followed by the Ontario Divisional Court in C.C.W. v. Ontario Health
Insurance Plan, in which the court ruled that the requirement of prior approval for medical treatment
outside Canada was not a denial of the right to life or security of person under s. 7 ((2009), 95 O.R.
(3d) 48, 305 D.L.R. (4th) 538 (Div. Ct.)).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
726
Canada as adopting a Lochner-type approach favouring personal rights over social
legislation28a view that, frankly, is difficult to sustain in these cases.29
[Vol. 54
B. Association pour laccs lavortement and Access to Abortion
Chaoulli was considered (albeit briefly) in another section 7 case which also
considered the Quebec Charter. In Association pour laccs lavortement c. Qubec
(P.G.), it was argued that women who had to pay a certain contribution to have access
to an abortion in Quebec were entitled to reimbursement from the state and that, inter
alia, the failure to reimburse these women involved a breach of both the Canadian
and the Quebec charters.30 The court set out the background to the case as follows: In
the 1980s, Canadian women, in order to have access to abortion, had to submit a
claim to the abortion committee at accredited hospitals. The procurement of an
abortion without the approval of such a committee was a breach of the Criminal
Code.31 In R. v. Morgentaler, the Supreme Court of Canada held that the relevant
provisions of the Criminal Code were in breach of section 7 as they interfered with a
womans right to physical and bodily integrity.32 As a result of this judgment, more
extensive services were put in place. However, by the late 1990s it was estimated that
about a third of women seeking an abortion in Quebec had to pay for it themselves, as
the public system was unable to provide free services to all Quebec women. The
association questioned why women should have to pay for an abortion if this service
was covered by Quebec health insurance.33
While the case raised interesting legal questions concerning the Canadian and
Quebec charters, the Superior Court of Qubec was able to decide it on non-Charter
grounds and made only limited reference to Charter issues. Drawing on the judgment
of Justice Deschamps in Chaoulli, the court held that the constitutional questions
should not be considered in a theoretical manner, but only on the basis of a specific
factual situation.34 The court ruled that, unlike in the Morgentaler case (where the
issue was womens right to an abortion in the light of the barriers imposed by the law
then in place), there was no evidence that the women involved in the present case had
suffered from emotional and psychological trauma as a result of the law (i.e., the
court had no proof that the requirement to pay a supplement had caused such
28 Lochner v. New York was a United States Supreme Court case that held general right to make a
contract in relation to ones business was part of the liberty protected by the Fourteenth Amendment to
the U.S. Constitution and struck down a New York law that limited hours of work (198 U.S. 45
(1905)).
29 But see Sujit Choudhry, Worse than Lochner? in Flood, Roach & Sossin, supra note 7, 3.
30 2006 QCCS 4694, [2006] R.J.Q. 1938, [2006] R.R.A. 760 [Association pour laccs
lavortement].
31 R.S.C. 1970, c. C-34, ss. 251(1), 423(1)(d).
32 Supra note 22.
33 Health Insurance Act, R.S.Q. c. A-29.
34 Association pour laccs lavortement, supra note 30 at paras. 127-28.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 727
trauma).35 In addition, the court concluded that it was not the Quebec legislation
which had caused the problem but its non-respect, which the government had not
only tolerated but encouraged for financial reasons.36 Therefore, while upholding the
associations claim on other grounds, the court found no breach of either the Charter
or the Quebec Charter. The courts approachif perhaps understandable given its
findings on other groundsis disappointingly brief from a Charter perspective.
However, it is not clear from the evidence whether the sums that women were required
to pay would have interfered with a womans right to physical and bodily integrity.
C. Ali v. CanadaTax Credits and the Charter
In Ali v. Canada (discussed in more detail in Part II, below), the Federal Court of
Appeal shortly held that a claim concerning a tax credit for medical expenses did not
engage section 7 of the Charter.37 The appellants had argued that the denial of their
claims for a medical expense tax credit in respect of certain dietary supplements had
caused them anxiety or stress leading to a real or imminent deprivation of their life,
liberty, or security of the person, contrary to section 7. Justice Ryer stated that [i]t
would be a remarkable proposition if the demonstration of anxiety or stress at the
prospect of having to pay income taxes were a sufficient basis upon which to be
excused from having to pay such taxes.38
II. Health Care and Section 15 of the Charter
A. The Judicial Approach to Section 15 and Health Care
Section 15(1) of the Charter provides that [e]very individual is equal before and
under the law and has the right to the equal protection and equal benefit of the law
35 Ibid. at paras. 129-30. See also Jane Doe v. Manitoba, 2005 MBCA 109, 195 Man. R. (2d) 309,
260 D.L.R. (4th) 149. See generally Joanna N. Erdman, In the Back Alleys of Health Care: Abortion,
Equality and Community in Canada (2007) 56 Emory L.J. 1093.
36 It is not clear why this should form any basis for a denial of the claim, as the Supreme Court of
Canada has elsewhere held that non-respect or improper implementation of valid legislation may
constitute a Charter breach. See e.g. Little Sisters Book and Art Emporium v. Canada (Minister of
Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 at para. 125, 193 D.L.R. (4th) 193.
37 2008 FCA 190, 379 N.R. 200, [2008] 4 C.T.C. 245 [Ali], leave to appeal to S.C.C. refused, 32762
(28 May 2008). Ryer J.A. followed the reasoning in Mathew v. Canada (2003 FCA 371, [2004] 1
C.T.C. 115, 110 C.R.R. (2d) 299). In the circumstances of the case, this decision may have been
correct. However, the approach of the Ontario Court of Appeal in Flora (supra note 11) favouring the
substance rather than the form of the claim is arguably also correct. That is to say, a denial of a claim
concerning tax credits might in some (albeit perhaps exceptional) circumstances engage s. 7 rights.
38 Ali, ibid. at para. 21 (holding that a claim concerning a tax assessment was an economic right not
covered by s. 7). The appellants concerns seem less remarkable when one realizes that they had a
chronic and debilitating condition with no known cure and spent $10 000 per annum on the medicine
in question (facts not considered worthy of mention in the judgment of the Federal Court of Appeal).
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without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.
As we have seen, the Canadian case law has tended to distinguish between (1)
ensuring reasonable accommodation so as to allow access for disabled persons to the
general health care system and (2) recognizing the legislatures authority to determine
the precise scope of the services provided. In Auton, the Supreme Court of Canada
faced with a claim that the failure to provide an emerging treatment for autistic
children was a breach of section 15had introduced a new requirement in section 15
analysis: that the benefit claimed be one provided by law.39 Thus the fact that the
treatment sought was neither a core medical service nor a designated non-core
service meant that it was not provided by law and, therefore, not within the ambit
of section 15(1). It is, of course, unexceptionable that a claimant could not make a
successful claim under section 15(1) where nobody else was entitled to an equivalent
service. But surely this should be a matter for detailed investigation rather than being
based on whether or not a particular service was categorized in a particular manner.
It is true that the Supreme Court of Canada went on to say that a finding that the
benefit was not one provided by law does not end the inquiry.40 However, the
Courts reasoning on this point appears tautological and/or circular. The Court stated:
It is not open to Parliament or a legislature to enact a law whose policy
objectives and provisions single out a disadvantaged group for inferior
treatment. On the other hand, a legislative choice not to accord a particular
benefit absent demonstration of discriminatory purpose, policy or effect does
not offend this principle and does not give rise to s. 15(1) review. This Court
has repeatedly held that the legislature is under no obligation to create a
particular benefit. It is free to target the social programs it wishes to fund as a
matter of public policy, provided the benefit itself is not conferred in a
discriminatory manner.41
Thus the legislature cannot enact a discriminatory law. However, in the area of health
care the legislature may offer to fund non-core services. Therefore, the exclusion of
certain non-core services cannot (without more) be viewed as discriminatory.42 But
this is simply a return to the benefit provided by law requirement.
B. Medical Expense Tax Credits and the Equality Analysis
A number of cases have recently considered one aspect of this issue. These
concerned the right to claim a tax credit for medical expenses. The Income Tax Act
permits an individual to deduct an amount, referred to as the medical expense tax
39 Supra note 3 at paras. 27ff. With respect to McLachlin C.J.C.s reasons for judgment, it is not
clear that the need for the benefit to emanate from law is required by either the previous jurisprudence
or the language of s. 15 (equal benefit of the law does not equate to benefit provided by the law).
40 Ibid. at para. 39.
41 Ibid. at para 41 [references omitted].
42 And it is entirely unclear what the more might be.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 729
credit (METC), in respect of the taxpayers total medical expenses.43 In Ali, the
appellants both suffered from fibromyalgia syndrome, a chronic and debilitating
condition with no known cure. As part of a multi-dimensional treatment regime, they
each spent approximately ten thousand dollars annually on vitamins, herbs, and
minerals recommended by a naturopath. Their claim for the METC was refused as the
ITA confined reimbursement to medicine prescribed by a medical practitioner (a term
which the Crown argued did not include naturopaths) and recorded by a pharmacist.44
The Federal Court, in a non-Charter case, had previously ruled that items bought off
the shelf and not recorded did not qualify as medical expenses.45 The appellants in
Ali argued that the recorded by a pharmacist requirement violated their rights under
subsection 15(1) and section 7 of the Charter. As Ali (decided by the Federal Court of
Appeal) is the highest authority on this issue, I will first discuss this ruling. However,
as that court dismissed the case on quite narrow grounds, I will also look at some of
the broader issues which the lower courts had considered.
Justice Ryer (for the court) relied on Auton, in which the Supreme Court of
Canada held that subsection 15(1) of the Charter will not be infringed where the
benefit sought is not one provided by the impugned legislation. In the present case,
the benefit claimed by the appellants was the METC in respect of the cost of off the
shelf dietary supplements. Justice Ryer observed that, in Ray, the Federal Court of
Appeal had ruled that such a benefit was not provided by the ITA. Therefore, he
argued that it could not be discriminatory to deny the appellants a benefit (the METC
in respect of the cost of off the shelf drugs) that no one gets.46 Proceeding to the
second47 element of the Auton test, the court was satisfied that the exclusion (or
non-inclusion) of the benefit claimed by the appellants under the ITA did not
constitute direct discrimination nor (indirect) discrimination by effect.48 Thus, the
Federal Court of Appeal rejected the claim on the basis that it did not satisfy the
Auton threshold testthe claim was not for a benefit provided by law and section
15(1) was not engaged. The court did not have to applyand indeed specifically
avoidedthe standard Law test determining whether there had been differential
43 R.S.C. 1985 (5th Supp.), c. 1, s. 118.2(1) [ITA].
44 See Ali v. Canada, 2006 TCC 287, [2006] 4 C.T.C. 2087 [Ali (T.C.C.)]. The details of the case are
set out only in the judgment of the Tax Court of Canada. As Woods T.C.J. noted, the Tax Court of
Canada had previously upheld the same provision in Charter challenges on the basis that the provision
applies equally to all persons: Pagnotta v. Canada, [2001] 4 C.T.C. 2613, 55 D.T.C. 3797 (T.C.C.);
Lewis v. Canada, 2004 TCC 237, [2004] 2 C.T.C. 3067, 117 C.R.R. (2d) 351; Herzig v. Canada, 2004
TCC 344, [2004] 3 C.T.C. 2496. Ali has recently been followed in Ray v. Canada (2009 TCC 140,
[2009] 6 C.T.C. 2110).
45 Ray v. Canada, 2004 FCA 1, [2004] 2 C.T.C. 40 at paras. 12-13, 58 D.T.C. 6028 [Ray], cited in
Ali, supra note 37 at para. 5.
46 Ali, ibid. at para. 12.
47 I argue above that this is simply a restatement of the benefit of the law requirement.
48 Ali, supra note 37 at para. 19.
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treatment and, if so, whether this was discriminatory within the meaning of the
Charter.49
The lower courts considered broader arguments concerning the METC.
Describing the Ali appellants circumstances as certainly sympathetic,50 Justice
Woods in the Tax Court of Canada (although referring to the distinction in Auton
between benefits which were and were not provided under the legislation) proceeded
to an analysis of whether there had been a breach of section 15.51 Justice Woods
reviewed the history and object of the scheme and found that it was not intended to
provide tax relief for all prescribed medical expenses. Inevitably, Parliament had to
decide where to draw the line between those therapeutic substances that qualify for
tax relief and those that do not. She found that the line was not drawn arbitrarily and
that the pharmacist-recording requirement was justified.52 She found that the
appropriate comparator group consisted of individuals who can
tolerate
pharmaceutical drugs and who claim a medical expense tax credit for drugs that (1)
are not within well-defined parameters; (2) are not well-established as being safe and
efficacious; and (3) are prescribed by a medical practitioner whose profession is not
regulated in every province.53 She held that the appellants were not treated
differently from those in this comparator group because no one was entitled to claim
the METC for drugs under these criteria. For these reasons, she also concluded that
the rule did not infringe the appellants rights under section 15(1) of the Charter.
Chevalier v. Canada also involved a challenge to the same provisions of the
ITA.54 The appellant, who was diagnosed with chronic fatigue syndrome, claimed the
METC for the cost of organic products and foods as well as for services provided by
a naturopath and an osteopath (who under Quebec legislation are not recognized
medical practitioners). As in Ali, these claims were refused as not meeting the
statutory requirements. The appellant gave evidence that she reacted strongly to
pharmaceutical products and consequently turned to natural remedies. She argued that
the tax credit provision was intended to assist all persons with disabilities, but that as
drafted it fail[ed] to take into consideration her needs for a special diet, while
reducing the tax burden of virtually all other disabled persons.55 As Justice Bdard
pointed out, this amounted to a claim that she was denied the METC on the basis of
her particular disability.
49 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R.
50 Ali (T.C.C.), supra note 44 at para. 73.
51 Her decision to do so was considered not necessary by the Federal Court of Appeal (Ali, supra
(4th) 1 [Law].
note 37 at para. 11).
52 Ali (T.C.C.), supra note 44 at paras. 122-35.
53 Ibid. at para. 137.
54 2008 TCC 11, [2008] 4 C.T.C. 2009, 62 D.T.C. 2477.
55 Ibid. at para. 23.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 731
Justice Bdard turned first to the Auton inquiry as to whether the claim was for a
benefit provided by law. He agreed with the analysis of Justice Woods in Ali, noting
that the ITA did not confer the benefit of the METC on every person with a disability.
He held that Parliament intentionally limited the scope of subsection 118.2(2) of the
ITA; it was never intended to accommodate every disability.56 Therefore, he
concluded that the benefit claimed by the appellant was not one provided by law.
However, given the importance of the issue, he went on to consider the second branch
of the Law test: whether the claimant was subject to differential treatment based on
one or more enumerated and analogous grounds. The appellant sought to compare
herself to taxpayers who have other disabilities, yet are able to claim the medical
expense tax credit in respect of their specific disabilities.57 However, Justice Bdard
was unconvinced by this, pointing out that there was no evidence that only
individuals suffering from fibromyalgia, chronic fatigue syndrome, or multiple
chemical sensitivities require alternative medicine. He concluded that the distinction
in subsection 118.2(2) of the ITA was based on types of therapeutic substances and
not physical characteristics of people.58 Therefore, the claimant had not shown that
differential treatment existed.
Justice Bdard further concluded that, even if there was differential treatment of
taxpayers suffering from fibromyalgia, chronic fatigue syndrome, or multiple
chemical sensitivities, that differential treatment did not discriminate against her as
the provision did not promote the view that the appellant was less capable or less
worthy of recognition as a human being. It simply provided for a financial benefit
to qualifying taxpayers on the basis of qualifying services and products and
consequently, there was no discrimination.59
This series of cases shows the chilling effect which Auton can have in relation to
section 15 health care claims. The fact that the Tax Court of Canada was able to reject
the claims after a full analysis suggests that the need for summary rejection on the
basis of the benefit provided by law requirement is unnecessary and unduly narrows
the scope of section 15 review. This is particularly important given that in the recent
case of R. v. Kapp, the Supreme Court of Canada appears to have responded to its
critics and moved away somewhat from the much-criticized notion of human dignity
in the application of section 15(1), instead re-emphasizing the importance of
perpetuation of disadvantage and stereotyping as the primary indicators of
discrimination.60 However, it is not clear that the METC cases would have been
decided differently had this approach been applied. Justice Bdard, the only one who
56 Ibid. at para. 33.
57 Ibid. at para. 41.
58 Ibid. at para. 52.
59 Ibid. at paras. 53-65. Finally, even if s. 118.2(2) of the ITA did infringe s. 15(1) of the Charter, the
Tax Court of Canada found that such infringement could have been justified under s. 1 of the Charter
(ibid. at paras. 66-78).
60 R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at para. 23, 294 D.L.R. (4th) 1 [Kapp].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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specifically considered the issue, did accept that individuals suffering from
fibromyalgia, chronic fatigue syndrome, or multiple chemical sensitivities were
subject to a pre-existing disadvantage. However, his conclusions on the other three
contextual factors in assessing whether discrimination had occurred were generally
against the claimants. Only time will tell how the Supreme Court of Canadas
apparent change of emphasis will be applied.61
[Vol. 54
III. Access to Health Care and Human Rights Law
Finally, there have been a number of decisions by courts and tribunals in relation
to health care entitlements under federal and provincial human rights legislation. It is
not yet clear whether alleged discrimination under the statutory human rights codes
should be assessed in the same way as alleged discrimination under the Charter.62
This is a potentially important issue as certain of the human rights codes may provide
more specific protection against discrimination than that set out in section 15(1) of
the Charter and may not allow a section 1type justification of an otherwise
discriminatory provision.63 Even if the Law test is to be applied to human rights
claims, statutory human rights codes may still provide a higher level of protection, as
courts and tribunals have taken the view that once different treatment on a ground
prohibited under a human rights code is established, there is no need to consider the
third branch of the Law test where the legislature has deemed adverse treatment to be
discrimination.64
A. BuffettInfertility Treatment and Gender Discrimination
Canada (A.G.) v. Buffett involved a claim by a male member of the Canadian
Forces for the provision of in vitro fertilization (IVF) with intracytoplasmic sperm
injection (ICSI).65 The Canadian Forces refused to fund this treatment under its health
61 Although it falls outside the scope of this article, the approach to comparators in Auton (and
similar cases) may also need to be revised in light of Kapp.
62 See Karen Schucher & Judith Keene, Paper prepared for Womens Legal Education and Action
Fund (LEAF), Statutory Human Rights and Substantive EqualityWhy and How to Avoid the Injury
of the Law Approach (5 March 2007), online: LEAF
63 As, for example, in the Ontario and Saskatchewan codes: Human Rights Code, R.S.O. 1990, c.
H.19; Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1. See e.g. Hogan v. Ontario (Health and
Long-Term Care), 2006 HRTO 32, 58 C.H.R.R. D/317 at para. 385 [Hogan].
64 See Hogan, ibid. at para. 116.
65 2007 FC 1061, 78 Admin. L.R. (4th) 54, 319 F.T.R. 119 [Buffett]. As described by the court, IVF
is a process whereby a womans eggs are removed, fertilized in a Petri dish, and implanted in her
uterus. When there are abnormalities in the sperm IVF alone has had very little success and is not
recommended. ICSI can increase the success rate of IVF with abnormal sperm by isolating normal-
looking, active sperm from the sample prior to fertilization. In 2005-2006, the cost of one cycle of IVF
was between roughly $5500 and $6000. ICSI costs up to an additional $1500.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 733
care program. Mr. Buffett argued that this was a breach of the Canadian Human
Rights Act, as female members of the Canadian Forces with infertility problems are
entitled to IVF at public expense.
Section 7 of the Canadian Human Rights Act provides that [i]t is a
discriminatory practice, directly or indirectly, … (b) in the course of employment, to
differentiate adversely in relation to an employee, on a prohibited ground of
discrimination.66 Prohibited grounds of discrimination include sex, marital status,
family status, and disability.67 The Canadian Human Rights Tribunal found that
discrimination had been established on the basis of sex and on male-factor infertility
(disability).68 The tribunal argued that the proper comparative question was whether
the Canadian Forces offer the same benefit to its male members with infertility
problems that it is offering to its female members with infertility problems.69 The
answer to this question, the tribunal found, was clearly no. The tribunal ordered that
the Canadian Forces fund both IVF (which by nature involved Mr. Buffetts wife,
who was not a member of the Canadian Forces and not covered by the health care
program) and ICSI. The tribunal categorized these treatments as ones that offer the
couple the opportunity to conceive and have a child that is biologically theirs,
irrespective of who has the infertility problem.70 Thus, although the IVF treatment
physically related to Mr. Buffetts wife, the tribunal considered the treatments in a
holistic manner as relating also to Mr. Buffett.
On appeal, the main issue was whether the tribunal had been correct in defining
the benefit available to female members of the Canadian Forces as the opportunity to
conceive a child, as opposed to treatment of female infertility.71 The Federal Court
held that the tribunal had correctly compared Mr. Buffett to female members of the
Canadian Forces (who were entitled to IVF treatment although any ICSI treatment
(where necessary) was not funded). However, the court did not agree with the
tribunals characterization of IVF and ICSI as offering an opportunity to conceive
rather than a specific medical treatment. The Federal Court did find that Mr. Buffett
had been discriminated against but only in relation to the failure to fund the ICSI (and
not the IVF) treatment. It described this outcomewhich means that the Canadian
Forces must only fund the much less expensive part of the treatmentas arising from
a biological reality.72 Thus, IVF must be funded for women and ICSI for men.
66 R.S.C. 1985, c. H-6.
67 Ibid., s. 3(1).
68 Buffett v. Canadian Armed Forces, 2006 CHRT 39, 58 C.H.R.R. D/435 [Buffett (C.H.R.T.)].
69 Ibid. at para. 54.
70 Ibid. at para. 52.
71 Buffett, supra note 65 at para. 33. The Attorney General also argued that the health services of the
Canadian Forces did not constitute an employment benefit within the meaning of s. 7 of the Canadian
Human Rights Act. The Federal Court shortly dismissed this argument (ibid. at para. 40).
72 Ibid. at para. 56.
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While there is a certain surface logic to this approach, it is perhaps less
satisfactory than the Canadian Human Rights Tribunals more holistic approach to the
issue. It is of course the case that there are biological differences between men and
women and that, as the Federal Court explained, a difference in the cost of treating
ovarian or prostate cancer does not give rise to a human rights complaint.73 However,
it is arguable that the courts need to look to the impact of their decisions rather than
simple biological comparisons. Such simplistic comparisons are similar to those that
determined much of the early case law on pregnancy and gender discrimination: the
courts held that because men could not be pregnant, inequality resulting from
pregnancy was not caused by gender discrimination but by nature.74 In this case, the
outcome of the Courts decision is that women with fertility problems will have all (or
the major part) of their treatment funded whereas a man like Mr. Buffett will only
have a minor part of his treatment funded. Unless there is some objective justification
for this difference, this would seem to involve indirect discrimination (or
discrimination by effect) rather than a biological reality.75
B. Sex Reassignment SurgeryGender and Disability Discrimination
Finally, the Human Rights Tribunal of Ontario in Hogan considered whether the
provincial governments cutting of public funding for sex reassignment surgery (SRS)
discriminated against transsexual persons on the grounds of sex and disability. There
had already been a number of decisions in which courts and tribunals had found that
distinguishing on the basis of transsexualism could amount to gender and disability
discrimination. In Kavanagh, the Federal Court Trial Division upheld a ruling by the
Canadian Human Rights Tribunal establishing that discrimination on the basis of
transsexualism (in relation to a blanket policy prohibiting SRS) constituted
discrimination on the basis of sex as well as on the basis of disability.76 In Waters v.
British Columbia (Ministry of Health Services), the British Columbia Human Rights
Tribunal had found that the denial of SRS was contrary to section 8 of the British
Columbia Human Rights Code,77 taking the view that discrimination based on sex
included discrimination based on transsexualism.78
The circumstances leading to the Hogan case arose in 1998, when the
Government of Ontario decided to delist SRS from the fee schedule that the
73 Ibid.
74 See Bliss v. Canada (A.G.) (1978), [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417; Brooks v. Canada
Safeway Ltd., [1989] 1 S.C.R. 1219, 59 D.L.R. (4th) 321.
75 No objective justification is apparent in the decision of the tribunal (supra note 68) and the point
76 Canada (A.G.) v. Canada (Human Rights Commission), 2003 FCT 89, 228 F.T.R. 231, 46
was not argued before the court.
C.H.R.R. D/196 [Kavanagh].
77 R.S.B.C. 1996, c. 210.
78 2003 BCHRT 13, 46 C.H.R.R. D/139.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 735
government will pay for insured physicians services.79 The effect was that SRS
would no longer be an insured benefit under OHIP. A number of transsexual persons
challenged this under the Ontario Human Rights Code (the Code).80 Section 1 of the
Code provides that [e]very person has a right to equal treatment with respect to
services, goods and facilities, without discrimination because of race, ancestry, place
of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital
status, family status or disability. The Code also contains a strong protection against
constructive (or indirect) discrimination and section 11(1) provides:
A right of a person under Part I is infringed where a requirement,
qualification or factor exists that is not discrimination on a prohibited ground
but that results in the exclusion, restriction or preference of a group of persons
who are identified by a prohibited ground of discrimination and of whom the
person is a member, except where,
the requirement, qualification or factor is reasonable and bona fide
(a)
in the circumstances; or
(b)
discriminate because of such ground is not an infringement of a right.
it is declared in this Act, other than in section 17, that to
Section 11(2) provides that a requirement, qualification, or factor is not to be found
reasonable and bona fide unless the needs of the group of which the person is a
member cannot be accommodated without undue hardship on the person responsible
for accommodating those needs, considering the cost, outside sources of funding, if
any, and health and safety requirements, if any.
The majority of the tribunal, finding that Ontario in the 1990s was facing serious
economic difficulties and that each ministry was required to cut expenditure, ruled
that the decision to delist [the SRS] service was a legitimate part of [Ontarios] deep
cuts to preserve the health care system for the long term.81 The majority went on to
consider whether
the
complainants.82 The majority pointed out that, under section 11 of the Code, to
establish a prima facie case, the complainant need only show that he or she falls
within a prohibited ground and sustained adverse impact by the requirement. It was
satisfied, in this case, that the complainants fell within the grounds of both disability83
and sex.84 However, given the economic context, the tribunal held that the
indirect discrimination against
the decision
involved
79 Hogan, supra note 63.
80 Supra note 63.
81 Hogan, supra note 63 at para. 92.
82 Ibid. at paras. 97ff. Applying the alternative Law analysis (by finding that the third
discrimination step was unnecessary because of the terms of the Ontario legislation) the tribunal
came to the same conclusions (ibid. at paras. 112-17).
83 The tribunal found that gender identity disorder (with which the complainants had been
diagnosed) was a disability (ibid. at para. 19).
84 Ibid. at paras. 121ff. The tribunal was satisfied that [g]ender ambiguity as in transsexualism or
intersexed is a form of sex and that transgenderism is the sexual identity of a person and it is of
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government was able to show that the requirement was reasonable and bona fide.85
Nonetheless, in relation to a number of the complainants who had already
commenced treatment toward SRS when the decision to delist was made, the tribunal
held that the limited (thirty-five day) transitional provision was insufficient to
accommodate their needs. In the case of a further complainant who had not begun
treatment or transition before delisting, the tribunal found no breach of the Code.86
The dissenting member of the tribunal, Vice-Chair Ross Hendriks, took a very
different approach. First, she found that the elimination of this service was tainted by
discrimination based on a serious lack of understanding of transsexuality, rather than
being based on social, political or economic factors as normally befits Cabinet
decisions.87 As a result, she found that there had been a breach of section 1 of the
Code both as a matter of direct interpretation of the Ontario legislation and under the
Law analysis.88 Accordingly, she would have ruled that Ontario fund SRS for all the
complainants and for all persons diagnosed with gender identity disorder who were
recommended for SRS. However, it is implicit even in this dissenting opinion that the
government could delist SRS if it did so in a non-discriminatory manner.
The case is a very interesting one and the differences between the majority and
the dissenting member of the tribunal flow more from their different analyses of the
facts than from the law. Both the majority and the dissent held that the issue of
discrimination based on transsexualism raised the grounds of both disability and sex,
and both held that the delisting had an adverse impact on the complainants. The
difference as to whether this was direct or indirect discrimination flowed mainly from
the analysis of how the delisting took place. The lesson from both rulings was that
SRS could only be delisted where such delisting was done in a manner compatible
with the Human Rights Code. The case shows the extent to which additional
protection of human rights may be more available under specific human rights
legislation than under the more general protection provided by the Charter. This is
due to the more specific terms of the human rights legislation, which makes it easier
to justify a finding of discrimination,89 and perhaps it is also due to the interpretation
of this legislation by specialized human rights tribunals.
critical importance to demand or attract protection under the Code under the ground of sex (ibid. at
paras. 125, 127). The dissenting member came to the same conclusion on this point (ibid. at paras.
413-30).
85 Ibid. at paras. 103-105.
86 Ibid. at paras. 132-41.
87 Ibid. at para. 383.
88 Applying Law, she held that the appropriate comparator group was those affected by the delisting
of other services which had been subject to a process of review, unlike the delisting of SRS.
Accordingly, the complainants had been treated differently (ibid. at para. 393).
89 In addition, the scope of any such finding will often be delimited by the scope of the legislation,
in contrast to the difficulties involved in delimiting the scope of Charter decisions.
2009] M. COUSINS HEALTH CARE & HUMAN RIGHTS AFTER AUTON & CHAOULLI 737
Conclusion
As outlined in this article, health care claims after Chaoulli have generally been
unsuccessful, with the important exception of claims under human rights legislation.
As we have seen, the courts have, to date, taken a limited view of Chaoulli and have
not been prepared to adopt the somewhat expansive approach of that judgment so as
to impose positive duties on the state in the area of health care under section 7 of the
Charter. Equally, the Federal Court of Appeal has followed Auton in requiring that
the claimant show that the benefit claimed is one provided by law, and it has
rejected claims under section 15(1) without a detailed analysis of whether differential
treatment and discrimination occurred. Only in the area of human rights legislation
have rights-based health care claims been successful (at least in part).
It is suggested that the post-Auton and Chaoulli case law can throw some light on
the merits and demerits of those decisions. Of the two decisions, Auton has clearly
had a greater impact to date.90 In Auton, the Supreme Court of Canada was (perhaps
understandably) concerned about the potential for equality claims in relation to
emerging forms of medical/educational treatments. If successful, such claims could
indirectlyhave a similar effect to finding a positive obligation to protect life and
health under section 7 (something the Court has carefully avoided doing to date).
However, the Court could have rejected such claims on straightforward equality
grounds, as it did in the second part of its judgment in Auton.91 Unfortunately, the
Court instead relied on a requirement that the benefit claimed be one provided by law.
The implications of this can be seen in the claims for the METC, which could have
been rejected on the basis of a full equality analysis (as the lower courts had done).
Whatever the policy merits of the argument, in neither Ali nor Chevalier did the
appellants succeed in showing that they were being discriminated against on a
prohibited ground. However, rather than analyzing the allegations of discrimination in
detail using the Law test, the Federal Court of Appeal, following Auton, dismissed the
claim on the basis that the benefit was not provided by law. The approach taken by
the court allowed it to dismiss the appellants challenge without any proper
discrimination analysis. This shows the manner in which a broad use of the benefit
provided by law requirement may weaken equality jurisprudence. The Supreme
Court of Canada may need to revisit its Auton decision so as to achieve its objective
of protecting the legislatures jurisdiction over the scope of educational and health
services without undermining the Charter equality analysis.
Chaoulliregardless of its impact in the legislative arenahas had a somewhat
limited impact to date on the case law concerning health care. However, cases such as
Flora, which are, it is submitted, consistent with the Supreme Court of Canadas
approach in Auton, highlight the fact that the courts will have to reject much more
90 Note also its impact outside the health care area in cases such as Wynberg v. Ontario (supra note
91 For criticism of the Courts approach, see e.g. Gilbert & Majury, supra note 3 at 126-32.
9).
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difficult claims than that upheld Chaoulli unless they wish to develop positive
obligations under section 7. This fact again raises the question of whether it was wise
for the Court to take such an interventionist position on the issue of private health
care in Chaoulli. The dissent in Chaoulli pointed to the difficulties the courts would
face in trying to resolve questions of health policy as a matter of law.92 The fact that a
majority of the Supreme Court of Canada in Chaoulli rejected that argument in a
section 7 context while, at the same time, the Court has strongly (arguably too
strongly) reinforced such an approach in a section 15 context, has created a definite
tension in the Courts case law in this area which needs to be addressed.
92 Supra note 6 at para. 161.