An Alberta court has rejected a Chaoulli-like challenge to the Province's statutory prohibition on private health insurance. However, unlike Chaoulli, the decision was not based on the constitutional arguments put forward but instead turned on an evidentiary issue. Specifically, the Court concluded the Applicant had failed to provide adequate evidence that the prohibition violated his right to "life, liberty and security of the person".
In October 2013, the Alberta Court of Queen's Bench heard an application that aimed to extend the Supreme Court of Canada's decision in Chaoulliv. Quebec (Attorney General) ("Chaoulli"). Specifically, Alberta resident, Darcy Allen, challenged the constitutionality of section 26(2) of the Alberta Health Care Insurance Act,which establishes a prohibition against the sale and purchase of private insurance for services that are available through the public health care system in Alberta (the "Prohibition"). Mr. Allen claimed that the Prohibition violated his right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms (the "Charter") because it prevented him from receiving timely access to health care.
In late 2007, Mr. Allen suffered an injury while playing hockey. That injury triggered back pain, which ultimately became severe and debilitating. Mr. Allen was diagnosed with a degenerative back condition. After many unsuccessful treatments, in May of 2009 surgery was recommended. The surgery was scheduled for December of 2009 but was then cancelled and re-scheduled for June 2011. Mr. Allen did not want to wait until June 2011 so he chose to pay to receive the surgery at a hospital in Great Falls, Montana. Following the surgery, his pain gradually decreased.
Mr. Allen's claim was that, had he been able to purchase private health insurance in Alberta for the surgery at issue, he would have been able to receive that surgery in a more timely manner than was offered to him. This case was an attempt to extend the decision of the Supreme Court of Canada ("SCC") in Chaoulli. In 2005, the majority of the SCC ruled in Chaoulli that Quebec's ban on private health care insurance violated section 1 of the Quebec Charter of Human Rights and Freedomsbecause it created a virtual monopoly over health care which resulted in lengthy delays in treatment that adversely affected citizens' security of the person. Mr. Allen argued that the Court in Chaoulli unanimously agreed that a statutory prohibition against private insurance deprived patients of their rights under section 7 of the Charter and, on that basis, the Prohibition should be struck down.
On March 31, 2014, the Court released its decision. Justice Jeffrey concluded that Mr. Allen had failed to provide adequate evidence to prove that his section 7 Charter right was violated and, accordingly, the application was denied.
Mr. Allen argued that findings made in Chaoulli established that his right to security of the person had been violated. He, in effect, asked the Court to conclude that, based on Chaoulli, any statutory prohibition on private health insurance, regardless of the specifics of the legislation or context at issue, violated section 7. The Court disagreed, noting that the decision in Chaoulli was based on the evidentiary record put forward in that case. Justice Jeffrey concluded: "…I am not bound to apply a conclusion of mixed fact and law from a Supreme Court of Canada case to another case that merely shares a similar allegation but offers no evidence to establish that allegation in fact."
The Court held that Mr. Allen was required to demonstrate that the Prohibition itself prevented him from accessing health care. It ruled that he did not lead any evidence to support that conclusion, other than his own opinion that the availability of private health insurance would have provided him faster access to surgery. There was no evidence before the Court connecting the wait time Mr. Allen experienced to the Prohibition at issue. The Court stated:
By procuring the surgery in Montana, Dr. Allen avoided a deprivation to the security of his person, but I have nothing on the record to show that the deprivation he faced in Alberta ….was a result of the Prohibition. A vast array of alternate possibilities come to mind for the added wait times in Alberta that may have nothing to do with the Prohibition: under-funding, mis-management, shortage of qualified practitioners, disproportionate incidence of this particular condition at the relevant times, unexpected population increases or merely differences in population concentrations and distributions, to name a few.
In other words, based on the evidentiary record, the additional time that Mr. Allen would have had to wait to receive the surgery in Alberta may have just as easily existed even without the Prohibition.
The Court also noted that there was no evidence before it to establish that even if private insurance had been available to Mr. Allen, he would have been eligible for it and that he would have opted to pay for such coverage.
Impact of Decision
The decision in Chaoulli makes clear that, under the right circumstances, a statutory prohibition to private health insurance for publicly funded health services can be vulnerable to attack. This Alberta decision has demonstrated that in such cases a careful consideration of the types of evidence to be put before the court is critical. It also raises some interesting questions. For example, how does one prove they would be eligible for private insurance in the absence of a market for such a product? Counsel for Mr. Allen has said they are considering whether to appeal the decision. Further, similar legal challenges are currently working their way through the courts in other provinces so the legal landscape on this issue is sure to continue to evolve with time