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CONCLUSIONS:

  1. The scheme contemplated by Bill 11 would violate the comprehensiveness, universality, and access program criteria under the Canada Health Act.
  2. It is within the constitutional jurisdiction of Parliament to amend the Canada Health Act to include in the program criteria either or both of the following:

    1. (a) an express requirement of public ownership and operation of hospitals; and/or
    2. (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. The federal-provincial Social Union Framework does not legally constrain the federal government from taking action under the Canada Health Act or from amending the Canada Health Act as described above.
  4. The following issues warrant further research:

    1. (a) Consistency of Bill 11 with the Charter of Rights and Freedoms;
    2. (b) Consistency of the role of the College of Physicians and Surgeons under Bill 11 with the Canada Health Act;
    3. (c) The future effect of Bill 11 and its operational consistency with the Canada Health Act.

Please feel free to contact us should you wish to discuss the issues and our conclusions further. We look forward to reviewing our opinion with you.

Yours sincerely,

ARVAY FINLAY

Per: Joseph J. Arvay, Q.C.
T. Murray Rankin, Q.C.

opeiu 491