Canadian Lawyer

LEGAL REPORT/INSURANCE LAW Perfect storm brewing over private health insurance The top court quashed Quebec's prohibition on non-public health care, however there's not yet been an explosion of private health care anywhere in the country — but that may be changing. BY JUDY VAN RHIJN provinces where there is similar legisla- tion. Many hoped Chaoulli would inspire rights to timely treatment as a Char- ter right for all Canadians. In the six years since, it is certainly clear the judg- ment introduced a concept of patient accountability and raised the spectre of legal action if a province fails to provide timely health care. In the first 18 months it was cited in 31 decisions in almost every province. But it is also clear that it has not resulted in widespread changes to the public health system. "I wouldn't say there had been no response to Chaoulli," says Dr. Colleen Flood, the Canada Research Chair in Health Law and Policy at the Univer- W hen the Supreme Court of Canada made its decision in 2005 to quash Quebec's prohi- bition on private health insurance, it was hailed as a watershed that would have a dramatic effect on the public health-care system. History has proved otherwise due to a combination of forces that have stifled change, but now a new wave of litigation is attempting to revive the issue. Litigants hope to extend the principles endorsed by the Supreme Court to other jurisdic- tions and obtain a firm precedent that such prohibitions breach the Canadian Charter of Rights and Freedoms. In Chaoulli v. Quebec (Attorney Gener- al), the majority of the Supreme Court, in a 4-3 split, found that the Canada Health Act doesn't prohibit private health insur- ance and that Quebec's prohibition com- bined with long wait times violated rights to "personal inviobility" guarded by s. 1 of the Quebec Charter of Rights and Free- doms. Three of the majority judges also found that it breached rights to "security of the person" under s. 7 of the Canadian Charter of Rights. The minority found it breached neither instrument. Although the decision was seated in Quebec, the ruling resonated across the 38 FEBRUA R Y 2012 www. CANADIAN Lawyermag.com sity of Toronto. "Provincial governments across the country have worked hard to bring down waiting times. Are they zero? No. Are they much lower than they were? Yes." She also points to the administra- tive and legislative changes that occurred in Quebec following the decision. "The government put in a wait-time guarantee for knee and hip replacements and cata- racts. If you can't get treated in three to six months, they pay for you to go elsewhere. Then they changed the law to allow pri- vate health insurance, but only for knees, hips, and cataracts. You'd have to be a very nervous Nellie to pay for that now there's a wait guarantee. It was a sophisticated response. We haven't seen an explosion of private health insurance in Quebec." Elsewhere, the general feeling is that politicians are too scared to touch the issue. Gerald Chipeur of Miller Thom- son LLP in Calgary definitely thinks so. Sara tySoN

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