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Almost every major commission has, however, recommended the expansion, albeit incrementally, of the universal program into home care and pharmacare. See the Romanow Report, Ibid. See also the Standing Senate Committee on Social Affairs, Science and Technology, The Health of Canadians – The Federal Role, Vol. 6: Recommendations for Reform, Final Report (Ottawa: Senate Standing Committee on Social Affairs, Science and Technology, 2002) (Chair: The Honourable M. J. L. Kirby), available at <http://www.parl.gc.ca/37/2/parlbus/commbus/senate/come/soci-e/rep-e/repoct02vol6-e.htm> (last visited September 27, 2005).+(last+visited+September+27,+2005).>Google Scholar

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For a discussion see Flood, C. M., Stabile, M. and Tuohy, C., “What is In and Out of Medicare? Who Decides?” in Flood, C. M., ed., Just Medicare: What's In, What's Out, Who Decides? (Toronto: University of Toronto Press, expected February 2006).CrossRefGoogle Scholar

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Ibid. at para. 78. Justice Oliphant writes: “In my view, legislation that forces women to have to stand in line in an overburdened publicly-funded health care system and to have to wait for a therapeutic abortion, a procedure that provably must be performed in a timely manner, is a gross violation of the right of women to both liberty and security of the person as guaranteed by s. 7 of the Charter.”Google Scholar

This film depicts Quebec hospitals as both chaotic and squalid and the staff therein amenable to bribery. Such dramatization makes for a good story but certainly undermines trust in publicly-funded health care and fuels demands for privatization.Google Scholar

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For a discussion see Tuohy, C., Flood, C. and Stabile, M., “How Does Private Finance Affect Public Health Care Systems: Marshalling the Evidence from OECD Nations,” Journal of Health Politics, Policy and Law 29, no. 3 (2004): 359–396.CrossRefGoogle Scholar

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Cases have included challenges to restrictions on funding for translation services for the deaf; anti-retroviral drugs; funding for in vitro fertilization services; and funding for autistic treatments; etc.Google Scholar

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Ibid. at para. 69. As Justice La Forest stated: “Effective communication is quite obviously an integral part of the provision of medical services. At trial, the appellants presented evidence that miscommunication can lead to misdiagnosis or a failure to follow a recommended treatment. This risk is particularly acute in emergency situations, as illustrated by the appellant Linda Warren's experience during the premature birth of her twin daughters. That adequate communication is essential to proper medical care is surely so incontrovertible that the Court could, if necessary, take judicial notice of it.”Google Scholar

Indeed see Choudhry, S. and Hunter, C. E., “Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE,” McGill Law Journal 48 (2003): 525–562, for empirical work claiming that there is little evidence to support the claim in general that court have become more “activist” in overturning legislation.Google Scholar

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In addressing the infringement of the claimants' dignity, J. A. Chipman. at para. 183 focused largely on pre-existing disadvantages the infertile experience. He noted infertility has been viewed historically as “an unworthy state, the object of derision, banishment and disgrace.” In contrast, J. A. Bateman, ruled that infertility does not constitute a disability under s. 15(1) but, even if it did, the denial of funding for IVF and ICSI would not demean the claimants' dignity. N. Reis has noted “these two opposing views in the Court of Appeal clearly highlight some of the difficulties and ambiguities in determining when a denial of public funding for a health care service constitutes discrimination in the substantive sense contemplated under s. 15(1).” See Ries, N. M., “The Uncertain State of the Law Regarding Health Care and Section 15 of the Charter,” Health Law Journal 11 (2003): 217–239, at 230.Google Scholar

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See Vayena, E., Rowe, P. J. and Griffen, P. D., eds., Current Practices and Controversies in Assisted Reproduction, Report of a meeting on “Medical, Ethical and Social Aspects of Assisted Reproduction” held at WHO Headquarters in Geneva, Switzerland 17–21, September 2001 (Geneva: WHO, 2001): At 263, available at <http://www.who.int/reproductive-health/infertility/report_content.htm> (last visited September 27, 2005).Google Scholar

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D. Grechner classified Auton as a “scope of funding” case, where plaintiffs seek expansion of the medicare umbrella. For an extended critique of the lower court judgments in Auton, see Greschner, D. and Lewis, S., “Auton and Evidence-Based Decision-Making: Medicare in the Courts,” The Canadian Bar Review 82 (2003): 501–533.Google Scholar

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It is worthwhile to note that the Auton and Chaoulli decisions were heard at the same time although the Auton decision was released much earlier than the Chaoulli decision. It is also interesting, particularly given the importance of the facts to the eventual determination in each of these cases, that in both decisions the Supreme Court overturned the decisions of both the trial and appeal courts.Google Scholar

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See Greschner, D., “Charter Challenges and Evidence-Based Decision-Making in the Health Care System: Toward a Symbiotic Relationship,” in Flood, C. M., ed., Frontiers of Fairness (Toronto: University of Toronto Press, expected February 2006).Google Scholar

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See Flood, C. M. and Erdman, J., “The Boundaries of Medicare: Tensions in the Dual Role of Ontario's Physician Services Review Committee,” Health Law Journal 12 (2004): 1–16.Google Scholar

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In New Brunswick (Minister of Health and Community Services) v. G.(J.), (1999) 3 S.C.R. 46, a women was successful in obtaining public funding for legal aid to assist her in challenging a judicial order granting the minister custody of the applicant's three children for an additional six months. See also Hartt, S. H. and Monahan, P. J., “The Charter and Health Care: Guaranteeing Timely Access to Health Care for Canadians,” C. D. Howe Institute Commentary, No. 164 (May 2002) for an argument that in order to defend a section 7 challenge governments need to put in place wait time guarantees. Available at <http://www.charterhealth.ca/articles/cdhowe_commentary.pdf> (last visited September 27, 2005).Google Scholar

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The only successful judicial review claim before the courts with regard to waiting times has been Stein v. Quebec (Regie de l'Assurance-maladie) (1999) QJ No. 2724 (S.C) (QL). In this case Mr. Stein waited months for surgery, even though his doctors warned his life was in danger if he was not operated on within four to eight weeks. He was successful before the Quebec Superior Court in overturning the Quebec health insurance board officials' refusal to pay for his treatment in a New York hospital on the grounds that, given the facts of the case, the decision was patently unreasonable. The court was prepared to be very deferential to the Quebec authorities; however, even allowing for this very high standard of deference the court felt compelled to overturn the Board's decision. Thus the courts will check the rationality of decisions about what is in and out of Medicare, but will generally not hold the government or other institutions to any higher standard.Google Scholar

The courts have also on at least one occasion sent a sharp message that constitutional values must be incorporated into decisionmaking. The Ontario Court of Appeal decision in 2001 of Lalonde v. Commission de Restructuration des Services De Sante (2001, 56 O.R. (3d) 505, involved a challenge to the Health Services Restructuring and Taskforce Commission's decision to close the francophone Montfort Hospital. Both the Ontario Divisional Court and the Ontario Court of Appeal held that whilst s.15 of the Charter would provide no relief, applicants seeking to ensure the continuation of French language medical services to the francophone population in Ottawa-Carlton could succeed by relying on the unwritten constitutional principle of protection of minorities. The Ontario Court of Appeal found that the Commission, in failing to give serious weight and consideration to the importance of Montfort to the survival of the Franco-Ontario minority, had failed to exercise its public interest mandate as required by the fundamental principles of the Constitution. The court said at para. 180 that: “in determining the public interest, the Commission was required to have regard to the fundamental constitutional principle of respect for and protection of minorities. … The Commission, however, viewed consideration of Montfort's larger institutional role as beyond its mandate.”Google Scholar

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Its predecessor was the Federal-Provincial/Territorial Coordinating Committee on Reciprocal Billing.Google Scholar

The Director of Access to Information at Health Canada has advised that although there are relevant documents, they will likely not be released to us as they fall within the exemption of information obtained “in confidence” from other governments, the disclosure of which could be “injurious to federal-provincial consultations” (Access to Information Act, R.S.C. 1985, c. A-1, s. 13(1)(c) and s. 14).Google Scholar

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See for example, R. v. NW Lancashire HA, Ex p. A, D & G (1999) Lloyd's Law Rep. Med. 399, a case which centered on the low priority given to transsexualism in terms of priorities of illnesses.Google Scholar