SEPTEMBER 30, 2007


New lawsuit threatens Ontario
private care ban

"Ontario Chaoulli" case seeks to catalyze
healthcare reform

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 itself.

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 tumour.

"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."



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