The Chaoulli effect
The McCreith-Holmes case
has been touted as "the Ontario Chaoulli." NRM
asked Dr Jacques Chaoulli, the original Chaoulli,
his opinion of the recent goings-on.
What's your opinion of "the
Ontario Chaoulli?" Well, I think it's a very
important court case... I think it has a very
good chance to succeed.
Do you think the judges will
extend the Chaoulli decision into Ontario?
The day I received the judgement in 2005 I made
a public declaration right away that in my view
it was obvious that it would apply across Canada.
Because if Quebecers have a right to protect life,
security and liberty, then of course other Canadians
have the same right. Otherwise, do Quebecers have
the right to live and other Canadians should die
on waiting lists?
You represented yourself
in the Supreme Court and beat the Quebec government.
Any legal advice for the Ontario litigants?
In Quebec the objective of the statutes was valid,
to have a universal public healthcare system.
Bon. But the Court went on in the Chaoulli judgement
analysis to ask was it necessary to establish
a monopoly of public insurance in order to reach
the objective of a universal system? The Court
decided it was not. In Ontario there is a second
objective of the statutes, to prevent people from
buying a private healthcare service, which was
not the situation in Quebec. In my view, the lawyer
in the case in Ontario should challenge the validity
of an objective being to deny the freedom of contracting
of healthcare services.
Do you plan on filing a brief
to the court in support of McCreith-Holmes?
I would say the Chaoulli judgement speaks for
Ontario's single-payer healthcare
system is on trial.
A new lawsuit, filed in Ontario
Superior Court by two brain-tumour patients on September
5, alleges Ontario's injunction against private healthcare
violates the right to life, liberty and security of
the person, as guaranteed under Section 7 of the Charter
of Rights and Freedoms.
"If Ontario is not going to provide
timely care in the public system it must not prohibit
people from using their own resources to get care,"
says their lawyer, Avril Allen.
Using precedent established by
the Supreme Court of Canada's controversial 2005 decision
in Chaoulli v Quebec, the lawsuit challenges Ontario's
laws against direct billing by physicians, private health
insurance and facility fees for patients using MRI clinics.
"Ontario has the most draconian prohibitions and penalties,"
says Ms Allen. In all other provinces, doctors can elect
to opt out of medicare. "Our goal is to have the prohibitions
invalidated. [Then] companies could start offering private
health insurance, doctors could go out and start billing
patients directly, and it could be the beginning of
a private healthcare system."
Ms Allen's two brain-tumour clients have similar stories
of wait times struggles.
Last year, after learning he had
a brain tumour, Lindsay McCreith got an MRI in Buffalo,
NY, rather than wait four months for one in Ontario.
Buffalo physicians confirmed he had cancer, but he still
had to wait to have surgery in Ontario, which his family
doctor called "totally unacceptable." He returned to
Buffalo to have the tumour removed.
Shona Holmes began losing her vision
in 2005 and got an MRI in Ontario that showed a brain
tumour. Facing months on a wait list to see specialists
(up to six months to see an endocrinologist) as her
eyesight deteriorated, she went to the Mayo Clinic in
Arizona where she eventually got surgery to remove the
"In general terms, this case raises the issue of whether
Chaoulli applies outside the province of Quebec," says
Patrick J Monahan, PhD, the dean of Osgoode Hall Law
School at York University. "I believe it does apply,
but not all governments agree with that."
This case, alongside a similar
one in Alberta, is just the tip of the iceberg, says
Dr Monahan. "I think if we don't see responses from
governments that are more direct and deal with the issues
in Chaoulli, we will find further cases in other provinces."
The precedent of Chaoulli, suggests
Dr Monahan, means that healthcare reform in the foreseeable
future might be achieved through the courts instead
of legislators. "The political stalemate on this issue
results in status quo," he says. "No one is looking
at real reform. But litigation can break the log jam.
It can be the catalyst."