In 2000s, the court studied whether it is unconstitutional according to the Quebec Charter of Rights and Freedom and the Canadian Charter of Rights and Freedom to prevent privately funded health care services to patients given that the alternative is to be subjected to delays in the public system for access services.
The case addresses the serious delays that are present in the publicly funded system. George Zellotis required medical interventions that had long wait times. His doctor Jacques Chaoulli offered private services to tend to the patient. Under the s.11 of the Hospital Insurance Act and s. 15 of the Health Insurance Act, Quebec did not allow for Dr. Chaouilli to obtain his license and offer such private services. The two turned to the court system, arguing that it is unconstitutional to prohibit independent private services given the long wait times present in the publicly funded system.
The appellants were supported by the Canadian Medical Association, the Canadian Ortophaedic Association, private clinics and some Senators. The Attorney General of Quebec and the Attorney General of Canada were respondents and their interventions were supported by the provinces of Ontario, New Brunswick and Saskatchewan, the Canadian Labour Congress, the Canadian Health Coalition and the Charter Committee on Poverty Issues.
The CHC’s involvement in this case
The Canadian Health Coalition and the Charter Committee on Poverty Issues acted as joint interveners in this case, taking the position that the provisions in the Charter ensure that all citizens have equal access to health care services, without privileging one group over another. This ensures that patients whether rich or poor can obtain equal access to health care services. The case was a threat against the Canadian public health care system.
The Supreme Court of Canada split 4 to 3 on the issue, ruling that the Quebec prohibitions on private health and hospital insurance are inconsistent with the Quebec Charter of Rights and Freedom.
This judgment raises important legal and political questions. While it applies only to Quebec, the reasoning could be used to challenge similar laws in other provinces on the basis of the Canadian Charter. It is not clear how other provinces can meet the test the court applies for Charter compliance. There is no standard to measure against. The implications for other provincial health insurance regimes have to be carefully reviewed. In addition to the legal uncertainty, there is a major political challenge, especially because of the ideological commitment to privatize health service delivery by the provincial and territorial governments.
Following the ruling, the Canadian Health Coalition called on the federal government to:
- Recommit to defend the right of all Canadians to universal and equal access to health services regardless of ability to pay.
- Develop benchmarks for waiting times and strategies for applying them to ensure timely access and to conform with the Canadian Charter and other human rights law.
- Work with provincial and territorial governments to ensure their public health care laws protect equality of access with equal terms and conditions and shield health insurance and service delivery from commercialization and international trade rules.
- Enforce compliance with the Canada Health Act and stem the tide of privatization that undermines the objectives of the Act and threatens the viability of Medicare.
2000: Trial in front of the Superior Court of Quebec was dismissed. The court found that while the Hospital Insurance Act and the Health Insurance Act violated s.7 of the Canadian Charter of Rights and Freedom, this violation was in accordance with the principals of fundamental justice.
2002: The Quebec Court of Appeal dismisses the case, also ruling the s.7’s violation was in accordance with the principals of fundamental justice.
2005: The Supreme Court of Canada upheld the appeal, stating the provisions of the Quebec Hospital Insurance Act and Health Insurance Act infringes the Quebec Charter.
Factum (Canadian Health Coalition and the Charter Committee on Poverty Issues, 2005)