Ministry Breaches Charter and Puts Lives at Risk

  • October 21, 2013
  • BakerLaw

Toronto, ON, October 21, 2013 – Where medically necessary health services are not performed in Ontario, or treatment wait lists pose a risk of death or irreversible tissue damage, Ontario residents have a right to go outside the country (“Out of Country”) for treatment at public expense. This program is essential to fulfill the medicare’s “sacred trust”: to publicly fund all medically necessary services.

Quebec’s out of country program has deficiencies. In Chaoulli v. Quebec (Attorney General), the Supreme Court of Canada held that the province’s failure to provide certain treatments on a timely basis represented a violation of the Charter of Rights and Freedoms (“Charter”).  Ontario officials claim the same result could not happen in this province because our Out of Country Program does not suffer from the same deficiencies as Quebec’s.

In 2009, the Ontario government imposed severe restrictions on its Out of Country Program, the most egregious of which is that where services are provided privately in Ontario, a person is expected to purchase the service themselves, losing the right to go out of country at public expense (see O. Reg. 552 s. 28.4(5)(c)).

In bakerlaw’s opinion, this restriction places Ontario in the same position as Quebec, in contravention of s.7 of the Charter of Rights and Freedoms because this represents a violation of a person’s “life, liberty and security of the person”.

Bakerlaw also regards the provision as being discriminatory based on mental disorder, contrary to s.15 of the Charter and s.1 of the Human Rights Code of Ontario.  The province uses the Canada Health Act to prevent private hospitals, apart from psychiatric hospitals, from charging for health services if these services are “medically necessary”. Private care facilities still offer treatments for mental illness and addiction, however, in spite of this provision.  The province can use this “privately available” care as a reason to deny coverage for out of country care for mental illnesses and/or addictions, when this reason is not available for cases of purely “physical” ailments. This distinction is discriminatory and disproportionately impacts individuals who require medically necessary care for mental disorders and/or addictions.

Bakerlaw is aware of a recent death that may have been a result of a person being unable to afford a $40,000 treatment program.  The Ministry denied the person treatment out of country because this private treatment is available.  The matter is currently under review by the Ontario Coroner’s Office.

Any person who is denied medically necessary treatment based on s. 28.4(5)(c) is invited to contact bakerlaw.  We are prepared to bring an expedited application to challenge the law under either or both of the Charter and the Code at substantially reduced fees.

It is an outrage that such a law continues to exist.

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