Access to Care, Access to Justice:
The Legal Debate over Private Health Insurance in Canada
September 16, 2005
Faculty of Law,
University of Toronto
Historically, the Canadian Supreme Court has avoided direct intervention in health care policy-making. This posture changed dramatically with the release of the Chaoulli decision in June of 2005. In a narrow and bitter 4:3 decision the Supreme Court of Canada in the Chaoulli decision, struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebec's Charter of Human Rights and Freedoms. Three of the four judges in the majority also found the provisions violate s. 7 of the Canadian Charter of Rights and Freedoms but three other judges in a blistering dissent found that the insurance restrictions violated neither the Quebec nor the Canadian Charters. The result makes further Charter challenges to similar laws in other provinces inevitable, but the question of whether they will or should succeed remains contested. The new role that the courts may play in health care is of crucial importance not only to the courts, but to the Canadian public and their governments.
Strictly speaking the Chaoulli decision is limited to Quebec but it has implications that flow far beyond those borders. Every province is anticipating Charter challenges to the myriad of laws presently in place that cumulatively suppress a flourishing private sector in health care. As litigators for those who want more freedom to provide private health care and aggrieved patients marshall their legal resources, provinces across the country are considering their options. Some are seeking guidance on to how to better insulate themselves from review; others may welcome such challenges as a way to revisit the provisions of the Canada Health Act. Waiting times and the role of the private sector in the future of Medicare will be key issues in the upcoming federal election; anticipated before the year's end. The future of Canadian health care is likely to be determined both in the courts and the legislatures.
In the Chaoulli decision the world of health policy and constitutional law has collided. The Faculty of Law includes leading constitutional scholars and leading scholars in health law and policy. It has called upon academics and policy-makers in networks both domestically and internationally to discuss the implications of the Chaoulli decision for the future of Medicare. The faculty held a conference on Chaoulli on Friday, September 16th 2005 to which were invited the leading scholars in health law and health policy. In conjunction with the University of Toronto Press a book will be produced within weeks of the conference. This provides an unparalleled opportunity, at this critical juncture in Medicare's history, to affect the course of Canada's most enduring social program.
The University of Toronto Press is publishing a book of the conference proceedings. The Legal Debate over Private Health Insurance in Canada, edited by Colleen M. Flood, Kent Roach, and Lorne Sossin, comes out only two weeks after the conference itself.
To order the book, see the book's University of Toronto Press web page.
You can listen to the conference through MP3 recordings of the conference proceedings. Click on the agenda below, and then click on the session titles. Note that these MP3 files are very large.
Due to high demand for registration to this conference, the Organising Committee moved the conference to the South Building of the Metro Toronto Convention Centre, Room 701, Downtown Toronto.
We are grateful to the Canadian Medical Association and to Borden Ladner Gervais LLP for their generous support in the preparation of these resource materials.
Colleen Flood, Toronto
Kent Roach, Toronto
Lorne Sossin, Toronto
Sujit Choudhry, Toronto
Michael Decter, Chair, Health Council of Canada
Jean Francois Gaudreault-DesBiens, Toronto
Charles Wright, Toronto,
Carolyn Tuohy, Toronto
Alan Maynard, University of York, England
Andre Den Exter - University of Erasmus, Rotterdam, the Netherlands
Stefan Greß, University of Duisburg-Essen, Germany
Chris Manfredi, McGill University
Greg Marchildon, Saskatchewan
Terry Sullivan, Toronto, President Cancer Care Ontario
Tony Clement, Toronto
Bernard Dickens, Toronto
Trudo Lemmens, Toronto
The conference was generously sponsored by:
The University of Toronto Faculty of Law
The Canadian Institutes of Health Research
The Canadian Health Services Research Foundation