Canada Health Act and Alberta Bill 11 (1)

Feb 29, 2000 07:45 PM

You requested that we provide an opinion on a number of issues in relation to the Canada Health
Act, R.S.C. 1985, c. C-6 (the "Canada Health Act"), particularly regarding the proposed Alberta
Health Care Protection Act, ("Bill 11" ), which received first reading on March 2, 2000.

ISSUES:

Given your instructions, we have identified the following issues:

1. Would the scheme contemplated by Bill 11 violate any of the program criteria under the
Canada Health Act?
2. If we are in error, and Bill 11 does not violate the Canada Health Act, is it within the
constitutional jurisdiction of Parliament to amend the Canada Health Act to include in the
program criteria either or both of the following:

a. an express requirement of public ownership and operation of hospitals; and/or

b. a definition of "medically required" that expressly distinguishes solely on the
basis of the presence or absence of an underlying medical condition, or otherwise
prevents "ability to pay" from determining the quality or availability of medical
services to persons with similar medical conditions?
3. Does the federal-provincial Social Union Framework Agreement (the "Agreement")
legally constrain the federal government from taking action under the Canada Health Act
or from amending the Canada Health Act as described above?
4. What areas warrant further legal research?

Additionally, as the provisions of Bill 11 are somewhat complex, our opinion will explain the
possible legal effects of the Bill if it were passed into law in its present form. Specifically, in the
course of addressing the issues set out above, our opinion will evaluate the following:

the "prohibition" on "private hospitals" in s. 1;

the "prohibition" on "queue jumping" in s. 3;
the effect of the "privative clause" in s. 23.
INTERPRETATIVE APPROACH

As noted above, in order to express an opinion with respect to the likely application of the
federal Canada Health Act to Alberta’s Bill 11, some interpretation of Bill 11 will be necessary
in order to establish a factual basis for the opinion.
In Rizzo & Rizzo Shoes, [1998] 1 S.C.R. 27, Iacobucci J. adopted the following passage from
Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) at p. 87 as the correct
approach to statutory interpretation:

Today there is only one principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.

Iacobucci J. also noted that legislative history is relevant, and that evidence of legislative debates
and speeches, i.e. Hansard, can play a role in the interpretation of statutes, albeit a limited one.
Since the Bill is only at first reading stage, many of the usual interpretative sources are not yet
available and our opinion must be qualified to the extent that amendments may subsequently be
made to the Bill or to the extent that regulations may be passed in the future further clarifying the
ambit of certain key terms in the Bill if passed.
On the basis of the limited information publicly available at present, our opinion will explain the
possible legal effects of the Bill if passed into law in its present form. Further, while Ministerial
discretion plays a large role in the actual operation of the scheme created by the Bill, we will
give our opinion based on what the Bill in its present form would authorize the Minister and
Cabinet to do.
We note that we have reviewed the "notations" to Bill 11 that the government will distribute with
the Bill to each household in Alberta, and which were tabled in the Alberta Legislature on March
7, 2000 (the "Notations").1 In our opinion these notations have no legal effect nor foundation,
and we have not used them in reaching our legal conclusions; however, we note at several points
that we are of the opinion that the some of the Notations misstate or distort the actual likely legal
effect of the provisions of Bill 11.

SHORT ANSWERS:

1. Consistency with Canada Health Act

Bill 11 is inconsistent with the Canada Health Act

In our opinion, Bill 11 authorizes a health care scheme that will violate the comprehensiveness,
universality, and accessibility program criteria under the Canada Health Act.
In our opinion, a proper contextual reading of the Canada Health Act leads to the conclusion that
in order to comply with the Canada Health Act, a provincial plan must ensure that any two
individuals in the province, with similar harmful medical conditions, will be entitled to medical
treatment of equal quality and provided with equal speed, regardless of differences between each
individual’s ability to pay.
In our opinion, Bill 11 authorizes a medical insurance plan under which two individuals, with
similar harmful medical conditions, can expect to receive treatments of differing levels of
quality, at different speed, depending on each individual’s ability to pay. In other words, in our
opinion, Bill 11 would establish what is commonly referred to as a "two-tiered" health care
system.
Given the presence of a privative (no judicial review) clause in s. 23 of Bill 11, any protections
that may at first seem available due to the Bill’s references to compliance with the Canada
Health Act in ss. 8 and 15 is somewhat illusory as against the provincial Minister; he or she may
still make decisions contrary to the Canada Health Act. Further, facilities under s. 16 do not
appear to require Ministerial approval in any event.

Prohibition Against "Private Hospitals" is Potentially Misleading

In our opinion, the "prohibition against private hospitals" contained in s. 1 of Bill 11 is

potentially misleading, in that the only privately-owned "hospitals" actually covered by s. 1 are
those that fall within a relatively narrow definition of "private hospital", unusually, found
towards the end of the Bill rather than at the beginning as is more common. In particular, the
definition of "private hospital" in Bill 11 is narrower than all of the following:

o a privately-owned "hospital" within the normal dictionary meaning;

o a privately-owned "hospital" within the meaning of the Canada Health Act; and
o a privately-owned "hospital" within the meaning of the Alberta Hospitals Act.

Indeed, in authorizing private facilities in which "insured surgical services" are provided with
’facility services, and in authorizing private facilities in which "uninsured in-patient surgical
services" may be performed, Bill 11 in truth authorizes private, for-profit facilities that would
qualify as "hospitals" as that term is defined in both the Canada Health Act and Alberta Hospitals
Act, as well as within the normal dictionary meaning of the words.

Prohibition Against "Queue Jumping" is Potentially misleading

In our opinion, the "prohibition against queue jumping" contained in s. 3 of Bill 11 would not
necessarily prevent a person and surgical facility from agreeing that if the person pays the full
cost of the operation, he or she would receive the operation before those who were on a wait list
for a publicly funded operation.
Section 3 also may not prevent a person from paying for an "enhanced" procedure in relation to a
medical condition that otherwise could be treated with an "insured" procedure, and receiving the
"enhanced" procedure sooner than those who were on a waitlist for a publicly funded operation.
The only situation clearly prohibited by s. 3 is where two persons are on a waitlist for a 100%
publicly-insured procedure, and one patient pays a physician or facility for the specific purpose
of having his or her name moved up the list.
It is not clear how s. 3 would operate where a person receives a mixture of publicly funded
"insured" and privately funded "enhanced" goods or services.

Minister’s Discretion in Approving Agreements

Under s. 15(1) of Bill 11, the Minister is authorized to designate a privately-owned, for-profit
surgical facility to perform "uninsured in-patient surgical services" (that is, where the patient
pays for the surgery, and remains in the facility for more than twelve hours), even if he or she
considers that it will impair the government’s ability to comply with the Canada Health Act, and
even if he or she concludes that it will have an adverse impact on the publicly funded and
administered health system.

2. Constitutional Jurisdiction of Federal Government to Amend Canada Health Act

Even if we are in error, and Bill 11 has in fact complied with the terms and conditions of the
current Canada Health Act, we are of the view that the federal government has constitutional
authority to introduce amendments to the Act, in response to the ongoing trend in provincial
health care towards privatization. The constitutional basis for the Canada Health Act is the
federal government’s spending power. Although courts have not ruled definitively on the breadth
of this power, the current status of the law and the general consensus among most constitutional
experts is that this power is likely quite broad. The federal government may make various
amendments to the Act, therefore, so long as the conditions do not in fact constitute federal
regulation or control of provincial health care. These amendments would be constitutionally
valid as an exercise of the federal spending power.

3. Effect of Social Union Framework Agreement

We also have considered the implications of the Social Union Framework Agreement on
intergovernmental relations in health matters. The Agreement does not have a substantial impact
on the federal government’s ability to amend the Canada Health Act or to act more generally
with respect to Bill 11. In order to comply with the Agreement, the federal government may
choose to give some advance notice to the Alberta government before taking any substantial
measures, or to attempt to hold negotiations with the province on the issues raised by the Bill.
Nevertheless, it is unlikely that the Agreement would operate to place any further restrictions on
the federal government. In addition, one should note that some observers argue that the federal
government could have recourse to the Agreement, in order to criticize the substance of Bill 11,
and the Alberta government’s actions in relation to its introduction. Once again, however, it is
important to recognize that such a path would largely be beneficial for its political impact, not its
legal force.
4. Issues for Further Study

It may well be that sections 7 and 15 of the Canadian Charter of Rights and Freedoms could
provide other remedies in the circumstances of Bill 11. There are at least two avenues worth
exploring: (a) Bill 11 may impact negatively on the physical or mental well-being of a significant
proportion of Albertans and may deprive them of their security of the person; and (b) Bill 11 may
have a disproportionate and discriminatory impact on the poor and thus run contrary to the
guarantee of equality under the Charter. The first point will require extensive evidence and the
latter is controversial as the courts to date have not applied "poverty" as a ground for Charter
review. Nevertheless, given the importance of the issues this is an area that clearly warrants more
research and may prove to be a fruitful ground for any future litigation.
The role contemplated for the College of Physicians and Surgeons of Alberta in Bill 11 may well
be problematic as well. If the key role of the College under the Alberta scheme amounts in
practice to "operating" a component of the medical insurance plan, the Canada Health Act may
require the College to meet the section 8 criterion of public administration in the Canada Health
Act. The question of whether the College constitutes a "public authority" for the purposes of the
Canada Health Act is worthy of further analysis.
Finally, the scheme established under Bill 11 must be closely monitored as to its actual future
effects in operation. If these violate the Canada Health Act, remedies may become available.