Canadian Lawyer

"Chaoulli gives governments good direc- tion, but they have responded in the same way as they responded to same-sex mar- riage and discrimination on the basis of sexual orientation. They can't enforce it because it's been declared unconstitu- tional but they don't want to step into the hornets' nest of amending health- care policy." He points to the negative response to bill 11 — the ill-fated health- care protection act through which former Alberta premier Ralph Klein intended to expand private health care. "It was actu- ally increasing access but was attacked as if it was limiting access. Even if you're throwing money at it, people will say it's not enough or you're doing it the wrong way. The premiers are always going to be damned if they touch it, so they're never going to touch it." There was a similar public reaction in 2008 when the British Columbia Auto- mobile Association launched a pilot proj- ect to offer "medical access" insurance to its 800,000 members that would have funded expedited treatment in private medical facilities in B.C. or the U.S. The resulting media storm forced the BCAA to withdraw the project. In fact, the 2002 Romanow report "The Future Of Health Care in Canada" stated the Canadian Health Act has achieved an iconic status that makes it untouchable by politicians. The Supreme Court in Chaoulli also noted that the emotional tone of reactions to any proposal to change the public health sys- tem makes people characterize the debate as pitting rich against poor, when in fact it is the poor and middle-class citizens who cannot afford to pay for treatment in the U.S. who are most disadvantaged. It's a reaction politicians and lawyers are very aware of. Peter Gall, of Heenan Blaikie LLP in Vancouver, is represent- ing Dr. Brian Day in his legal challenge against the B.C. legislation. The Cambie Clinic where Day works admits to act- ing in breach of B.C.'s Medicare Protec- tion Act because it believes, insofar as it prohibits private health procedures, it's unconstitutional. Gall says governments are paralyzed. "The government may look the other way and not enforce laws but they find it politically difficult to acknowl- edge that the public system really would be strengthened, not harmed, by private competition. There's no political ability to change it. Unfortunately that means that it's necessary for the courts to unblock that paralysis." When asked if she believes this to be an appropriate issue for courts to be involved in, Flood observes: "It's a very tricky place for the courts to be involved. There are enormously difficult and complex issues involved, and it's difficult to adjudicate when they are only seeing it from the perspective of one specific individual who has fallen through the cracks. Lawyers "We stood down the case to work out politically what role the new body would play. The lawsuit is still on the books but we have not rekindled the recertification application." In Ontario, the 2008 case of Flora v. Ontario Health Insurance Plan did pro- ceed all the way to judgment and was appealed, but was not a success for the plaintiff who had self-funded a liver trans- plant in the U.K. after his Ontario doctors gave him two weeks to live and found him to be unsuitable for a transplant here. "He was looking for a specific treatment which "The government may look the other way and not enforce laws but they find it politically difficult to acknowledge that the public system really would be strengthened, not harmed, by private competition. There's no political ability to change it. Unfortunately that means that it's necessary for the courts to unblock that paralysis." PETER GALL, HEENAN BLAIKIE LLP and judges are not trained in health-care policy. They should approach it with a fair amount of caution and humility and not think they can wade in and pronounce on XYZ." Since Chaoulli, there have been sev- eral actions commenced that challenge the way the current system operates. In Alberta, an application in Murray v. Alber- ta (Minister of Health) was launched in 2007 seeking certification of a class action. It alleged that Alberta violated the plain- tiff 's rights by denying him the ability to purchase private medical insurance for hip resurfacing. It is currently in abeyance because of the changing political land- scape in the province. "This is about as political a case as you could get," remarks Norman Anderson of Shea Nerland Cal- nan LLP in Calgary who represents the plaintiff. He advises that the whole basis of the case was connected to the func- tioning of the Regional Health Authori- ties, which were abolished in May 2008 and replaced by Alberta Health Services — one direct provincial governing body. for many reasons was not available in Ontario and looking to have it financed," says Flood. "One of his claims was that there is a constitutional right to health care." She observes that this was different from Chaoulli, which was about the right to access privately financed health care. "The court was willing to find that right in Chaoulli but unwilling to find an onus on government to pay for everything." In Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), Gall says the pleadings are finished and he is arranging for discoveries. "The hope is that it will head into the trial process in the latter part of 2012. It will involve a lot of evidence about the functioning of the health-care system in B.C. and also how health-care systems function around the world." Gall says while Chaoulli is a very important precedent, so is last year's Insite case (Canada (Attorney General) v. PHS Community Services Society) relating to a safe injection facility in Vancouver for which the federal government threatened www.CANADIAN Lawyermag.com FEBRUA R Y 2012 39

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