Chaoulli v. Quebec (Attorney General)

Section 15 of the Health Insurance Act (HEIA) and s. 11 of the Hospital Insurance Act (HOIA) prohibited Quebec residents from taking out private health insurance for services covered by Quebec’s public health care plan. The two Appellants, Jacques Chaoulli and George Zeliotis, contested the validity of this prohibition.  They alleged that these prohibitions deprived Quebec residents of access to expeditious health care services.

Chaoulli, an elderly Canadian citizen, had experienced a number of health problems that provoked him to speak out against waiting times in Quebec’s public health care system and advocate for private insurance options.  His co-petitioner, Zeliotis, was a physician who tried unsuccessfully to have his home-delivered medical activities recognized and to obtain a license to operate an independent private hospital.

The Appellants claimed that the aforementioned provisions infringed on their rights to life and rights to personal security, inviolability and freedom as guaranteed by s. 1 of the Quebec Charter of Human Rights and Freedoms (Quebec Charter), and their rights to life, liberty and security of person under s. 7 of the Canadian Charter of Rights and Freedoms (Canadian Charter). The Appellants argued that s. 15 of the HEIA and s. 11 of the HOIA created long wait times in the public health system and barred access to health services for those who could access the private sector, while the Respondents argued that the provisions were necessary to preserve the integrity of the health care plan.

The Superior Court of Quebec dismissed their motion for a declaratory judgment, explaining that deprivation of the aforementioned rights was in accordance with principles of fundamental justice that permitted their infringement.  The Court of Appeal affirmed this judgment, and Chaoulli and Zeliotis appealed to the Supreme Court.

The appeal was allowed by a majority of 4-3. In the leading majority judgment, Deschamps J held that the prohibition against contracting for private health insurance violated s. 1 of the Quebec Charter and was not justifiable under s. 9.1 of the Quebec Charter. His Honor found that the wait lists were an implicit form of rationing that resulted in medical treatment delays constituting a violation of the right to security of person.  Although Deschamps J found that the interference with the s. 1 was for the legitimate end of protection of public health, his Honor also found that the prohibitions in HEIA and HOIA did not pass the “minimum impairment” test, as other provinces did not require such prohibitory legislation to preserve their public health plans.  Further, the effectiveness of a total ban on private insurance had not been sufficiently demonstrated.

McLachlin CJ and Major and Bastarache JJ concurred, and further held that the provision impermissibly limited the right to life, liberty and security of the person protected by s. 7 of the Canadian Charter and was not shown to be justified as a reasonable limit under s. 1 of the Charter. The experience of other countries showed that a complete ban on private insurance was arbitrary, and its result was to place the life and health of those on long waiting lists at risk. This was neither rationally connected nor proportional to the legitimate end of ensuring the integrity of the public health system.

Binnie, LeBel and Fish JJ dissented. Their Honors considered that the appeal was not within the institutional competence of the Court, as it dealt with a complex issue of policy. They considered further that the prohibition of private health insurance, far from being “arbitrary,” was a logical consequence of the Quebec government’s commitment to providing a single-tier publicly funded health system.

“As can be seen from the evolution of public plans in the few OECD countries that have been examined in studies produced in the record, there are a wide range of measures that are less drastic, and also less intrusive in relation to the protected rights.  The Quebec context is a singular one, not only because of the distinction between participating physicians, non participating physicians and physicians who have withdrawn (s. 1 HEIA), but also because the Minister may require non participating physicians to provide health services if he or she considers it likely that the services will not be provided under uniform conditions throughout Quebec or in a particular region (s. 30 HEIA).  A measure as drastic as prohibiting private insurance contracts appears to be neither essential nor determinative.” Para. 83.

“The principle of prudence that is so popular in matters relating to the environment and to medical research cannot be transposed to this case. Under the Quebec plan, the government can control its human resources in various ways, whether by using the time of professionals who have already reached the maximum for payment by the state, by applying the provision that authorizes it to compel even non-participating physicians to provide services (s. 30 HEIA) or by implementing less restrictive measures, like those adopted in the four Canadian provinces that do not prohibit private insurance or in the other OECD countries. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of the violation of Quebeckers’ right to security.” Para. 97.

“The relief sought by the appellants does not necessarily provide a complete response to the complex problem of waiting lists. However, it was not up to the appellants to find a way to remedy a problem that has persisted for a number of years and for which the solution must come from the state itself. Their only burden was to prove that their right to life and to personal inviolability had been infringed. They have succeeded in proving this. The Attorney General of Quebec, on the other hand, has not proved that the impugned measure, the prohibition on private insurance, was justified under s. 9.1 of the Quebec Charter.” Para. 100.

“What, then, are constitutionally required ‘reasonable health services’?  What is treatment ‘within a reasonable time’?  What are the benchmarks?  How short a waiting list is short enough?  How many MRIs does the Constitution require?  The majority does not tell us.  The majority lays down no manageable constitutional standard.  The public cannot know, nor can judges or governments know, how much health care is ‘reasonable’ enough to satisfy s. 7 of the [Canadian Charter] and s. 1 of the [Quebec Charter].  It is to be hoped that we will know it when we see it.” Para. 163 (dissent).