Canadian Lawyer

LEGAL REPORT/INSURANCE LAW to withdraw its exemption under the Controlled Drugs and Substances Act. Last September, the Supreme Court pro- nounced that the minister's discretion was exercised unconstitutionally as the deci- sion would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives. It ordered him to grant the exemption forthwith. Gall considers this a "firming" of Chaoulli. "It confirmed that s. 7 of the Charter protects the right to obtain the medical attention needed. It is a recent affirmation of the application of s. 7 in the health care con- text." In Ontario, Avril Allen, of Bogho- sian and Associates Professional Corp., represents the plaintiffs in McCreith and Holmes v. Ontario (Attorney General). She advises that she is finalizing the applica- tion record and arranging its delivery. Her clients were both diagnosed with brain tumours and faced potentially life-threat- ening wait times for tests and specialist appointments. They self-funded tests and surgery in the U.S. and are seeking to have it refunded. Allen anticipates at least eight months before a trial on the case that addresses the Ontario legislation as well as trying to get a precedent on a Charter argument which the Supreme Court left unresolved. "Chaoulli is not a clear statement in a number of respects. It was a challenge to the Quebec legislation, which has dif- ferent prohibitions to Ontario. As well as a prohibition on private health insur- ance, Ontario also prohibits the private payment of doctors for medical services available under medicare. Given that the Ontario legislation is the most restrictive across the provinces, our litigation is nec- essary regardless of what happens in the other litigation." Lawyer Chris Schafer, who is the execu- tive director of the Canadian Constitution Foundation, which is financially support- Read the Supreme Court of Canada's at ruling at Ontario Court of Appeal's is at www.CANADIAN Lawyermag.com FEBRUA R Y 2012 41 axter_CL_Feb_12.indd 1 12-01-16 4:15 PM ing the Day and Holmes/McCreith cases, believes that change will eventually come from a combination of legal challenges and public pressure from the bulging demo- graphic of baby boomers. "They are used to getting what they want when they want it," says Schafer. "They won't settle for waiting 12 months for a hip replacement or four and a half months for an MRI. A perfect storm is brewing." Flood is unsure what the outcome of all the litigation will be. "It is hard to imagine the court will rip it wide open, but they may find certain aspects of the current system untenable." She feels even outright success would not be the end of the story. "There are ways that the court can rule one way but the government's response can still dampen the potential for a huge growth in private insurance." What do your clients need? The means to move on. Guaranteed. Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients ™ FREE BAXTER APP! FREE BAXTER APP! DOWNLOAD OUR HANDY PRESENT VALUE/LIFE EXPECTANCY APP FOR YOUR MOBILE DEVICE AT BAXTERSTRUCTURES.COM DOWNLOAD OUR HANDY PRESENT VALUE/LIFE EXPECTANCY APP FOR YOUR MOBILE DEVICE AT BAXTERSTRUCTURES.COM and the Insite The Need more information? Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Contact us at 1 800 387 1686 or baxterstructures.com Chaoulli v. Quebec (A tin yurl.c tin om/chaoulli yurl.c tt tin orne y Gener Ontario Health Insur om/flor om/insit yurl.c al) erulina v. Flor g. a-v-ohip. anc e Plan

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