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Reply to: T. Murray Rankin, Q.C.
Our file: 1466

April 7, 2000

Stan Marshall, Senior Research Officer
Canadian Union of Public Employees
21, rue Florence Street
Ottawa, Ontario K2P 0W6

Dear Mr. Marshall:

Re: Professor Levy’s Memo Canada Health Act and Alberta Bill 11

You have requested that we review the Memorandum dated March 27, 2000 written by Professor Levy for the Alberta Minister of Health, Honourable H. Johnson. A review of this Memorandum does not lead us to alter the conclusions we expressed in our opinion letter dated March 8, 2000. Below we address a few specific matters arising from this Memorandum which we would like to draw to your attention.

Although Professor Levy has clearly endorsed our general approach to the interpretation of statutes that is set out in our earlier opinion letter, we must respectfully disagree with the emphasis that he places upon the interpretive value of a Preamble in a statute. Where a Preamble is inconsistent with specific terms of a statute, we do not believe that it can be given the weight for interpretative purposes that he suggests. Similarly, when a Preamble like that contained in Bill 11 sets out such vacuous phrases as “whereas Albertans cherish Alberta’s publicly funded and publicly administered health system”, we have difficulty believing that a reviewing court would attach any particular value to such a Preamble, and would instead look to the much more specific language of the enacted statute for guidance.

Moreover, we completely disagree with some of the general approaches to interpretation that he posits elsewhere. For example, Professor Levy writes as follows:

These circumstances also suggest that a major source of interpretative material should be the position taken by successive Federal Ministers of Health and Federal Cabinets in relation to developments in health care legislation, programs and policies in all of the Provinces. Clearly, reliance can only be placed in this Opinion on Federal positions that are a matter of public record or at least knowledge. (page 3)

Firstly, “extrinsic evidence” such as Hansard and ministerial statements made at a legislative committee can be properly utilized, but only in an effort to interpret the “legislative intent”; the use of subsequent speeches given by “successive Federal Ministers”, particularly in relation to “programs and policies” would be, to our knowledge, entirely unprecedented in statutory interpretation. Moreover, their use would be patently irrelevant to the purpose for which Courts have historically allowed extrinsic evidence in the first place – namely, to assist in determining what the legislators’ intent was at the time that the legislation was passed. The second sentence in the above quotation to the effect that “reliance can only be placed in this Opinion on Federal positions that are a matter of public record or at least knowledge” seems to be sophistry: how else would one know about Federal positions unless they were outwardly communicated? In any event, all such pronouncements would relate to the political positions of Ministers, not the legislative intent of Parliament in passing the Canada Health Act.

Similarly, the Memorandum’s reliance on the Federal Government’s stance vis-a-vis a Saskatchewan statute (the Health Facilities Licencing Act) is of no utility whatsoever in a legal analysis of the extent to which Alberta’s Bill 11 may or may not be inconsistent as a matter of law with the Canada Health Act. Therefore, we find it startling that the Memorandum could conclude as follows:

Accordingly, I believe it is permissible to draw the inference that the Federal Minister of Health and Federal Cabinet have no objection under the Canada Health Act to the Health Facilities Licencing Act of Saskatchewan, and therefore will have no objection to parallel features of Bill 11. (at page 4)

As a matter of law, this is a non sequitur. If the Memorandum is directed at predicting the political position of the federal government, this may be an interesting point, but if it is intended to be a legal analysis, such an “inference” is wholly irrelevant.

A considerable amount of this very brief Memorandum is devoted to the Saskatchewan legislation, something that we were not asked to consider. In any event, however, we are of the opinion that this entire reference is of no utility whatsoever in a statutory analysis of the extent to which Bill 11 complies or does not comply with the Canada Health Act.

When the Memorandum does turn to consider some of the specific issues arising out of Bill 11, we can be more specific. The first issue it addresses relates to “enhanced medical goods or services”. His conclusion in this regard seems preordained, however, since he acknowledges that “I start from the interpretive premise that Bill 11 is not intended to permit [a particular process]”. In our opinion, we explained our position that once the Bill is properly interpreted, the compass of section 3 (respecting queue jumping) is much narrower than a casual reader might expect. We have expressed our interpretation that the provision does violate the Canada Health Act. In our opinion, we spent several pages of analysis in support of our conclusion that 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. We noted that 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. In our view, 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. We explained that it remain unclear how s. 3 would operate where a person receives a mixture of publicly funded “insured” and privately funded “enhanced” goods or services. In the very few sentences in the Memorandum devoted to the issue of queue jumping, these significant issues are not even considered.

However, we are very pleased that the writer does agree with us as follows (at page 7):

If indeed Bill 11 were to permit such a process [describing the form of queue jumping in which a private facility charges for providing earlier enhanced medical goods and services], it would undoubtedly violate the Program Criteria of comprehensiveness, universality and accessibility under the Canada Health Act.

Therefore, there are now at least two legal opinions that conclude that if this is the true effect of Bill 11, properly interpreted, then the Bill would indeed violate the Canada Health Act. If Professor Levy is accurate in his conclusion and Bill 11 “is not intended to permit such a process”, then the the Bill should be amended to clarify that two persons with similar medical conditions and requiring similar medical treatment should receive such care on a “first come first served” basis, regardless of whether one patient is receiving “enhanced medical goods or services”.

At page 8 he refers to “surgical services” and in doing so ignores entirely the in pari materia principle of interpretation that we reference in our opinion letter. As we note in our opinion letter, the statute that must be used in this connection is the Alberta Health Care Insurance Act. As we have noted in our opinion letter, since “enhanced medical goods and services” are not “medically required”, they fall outside the definition of “insured services” under the Health Care Insurance Act and so no benefit is payable under that Act in relation to those services. Therefore “enhanced medical goods and services” are not “insured surgical services” under Bill 11. The principle that identical words in statutes dealing with the same subject-matter may take their meaning from each other, also means that the words “medically required” in both statutes may be affected by the enactment of s. 5 and s. 29.

Section 5 makes clear that “enhanced medical goods and services” are not “medically required.” Therefore, given the definition of “enhanced medical goods or services” in s. 29 of Bill 11, an implicit effect of Bill 11 is to define “medical goods or services that exceed what would normally be used in a particular case in accordance with generally accepted medical practice” as not “medically required.” This in turn indicates that the meaning of “medically required” in the Alberta statutes will likely, on passage of Bill 11, be restricted to “goods or services that would normally be used in a particular case in accordance with generally accepted medical practice.” In other words, under Bill 11 any surgical or other medical services that exceed the normal, minimally acceptable treatment, will be “uninsured.” We have noted that it is possible that some facilities may be able to provide surgical services to treat medical problems that would otherwise be eligible for “insured” treatment, but where the services are “uninsured” because the patients elect to pay for the treatment themselves and thereby receive an “enhanced medical service.”

In our opinion letter, we note that under Bill 11 a person who suffers from a harmful medical condition might receive any of the following forms of surgical treatment:

    Insured surgical services with Enhanced “add-ons”: If the patient is willing and able to pay extra fees, he or she might receive a combination of “normal” insured services and “enhanced” add-on goods or services. For instance, a patient might undergo a “normal” basic surgical procedure under which a patient would normally be expected to withstand a certain amount of pain, but might elect to pay extra in order to receive anaesthetic that would relieve pain entirely.
  1. Enhanced Time Frame’ Surgical Services: If the patient is willing and able to pay the entire cost of a surgical procedure, he or she may be able to purchase a surgical service “enhanced” in that he or she receives it sooner than he or she would on a “insured service” waiting list.
  2. Enhanced Procedure’ Surgical Services: If the patient is willing and able to pay the entire cost of a surgical procedure, he or she may be able to purchase a surgical service “enhanced” in that it is a significantly different procedure than that “normally used in a particular case in accordance with generally accepted medical practice.” The procedure might be more time-consuming but produce better results, might involve a cutting-edge procedure that has not become “normal” in part precisely because it is more expensive to conduct, or may otherwise be of a higher level of quality.

The Memorandum does not address these categories at all. These categories result from the combination of: the definitions of “enhanced medical good or service”, “insured surgical service”, “surgical service”, “uninsured day surgical service”, and “uninsured in-patient surgical service” under Bill 11; the definition of “insured service” under the Alberta Health Care Insurance Act; and s. 5 and ss. 13 to 17 of Bill 11. We note that s. 5 of Bill 11 expressly contemplates category 2 above. Categories 3 and 4 above flow from the Act as a whole and the fact that “enhanced” surgical services would clearly be a form of “surgical services”, would be “uninsured” and so might be offered at clinics authorized under Division 2, if offered in accordance with s. 17.

Specifically (at page 9) he concludes: “An ‘insured surgical service’ can never become an ‘enhanced medical good or service’ under the provisions of Bill 11”. We disagree with this conclusion and for reasons expressed, believe that it ignores the plain meaning of the relevant terms.

With respect to the concern expressed on page 10 that if surgery seeks to remedy a condition by implanting something that is of “inappropriately low quality” somehow the medical profession is being “smeared”, the concern, of course, is not that one implant will be of a low quality. Rather, to use the example of a cataract, the concern is that if the generally accepted practice is that cataract surgery will provide clear vision for a five-year term but a new surgical technique becomes available which will provide ten years of clear vision but that this higher quality service will only be provided if one pays more, then without doubt this result would create a two-tiered health care system. This conclusion is not explicitly addressed in Professor Levy’s Memorandum. Indeed, the Memorandum is entirely silent as to whether Bill 11 would create a two-tiered system and, if so, whether this would contravene the letter and spirit of the Canada Health Act.

With reference to the issue of private hospitals, we are pleased that Professor Levy agrees with us as follows:

The casual reader of Bill 11 may be misled by the prohibition of “private hospitals” [s.1], since an “approved surgical facility…will be both privately operated and will provide a particular subset of the services normally associated with hospitals in our society. (at page 11)

Not only a “casual reader would be misled by Bill 11: if the “plain language” approach to statutory interpretation is applied, the prohibition in the definition of “private hospitals” is indeed misleading. As we have noted in our opinion letter, the “prohibition against private hospitals” contained in s. 1 of Bill 11 is misleading because the only privately-owned “hospitals” actually covered by s. 1 are those that fall within a relatively narrow definition of “private hospital” contained in Bill 11. In particular, the definition of “private hospital” in Bill 11 is narrower than all of the following:

  • a privately-owned “hospital” within the normal dictionary meaning;
  • a privately-owned “hospital” within the meaning of the Canada Health Act; and
  • 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.

 Conclusion

In conclusion, we believe that there is nothing in this Memorandum which would cause us to change the legal position that we set out in our opinion letter of March 8. Bill 11 authorizes a health care scheme that will violate the comprehensiveness, universality, and accessibility program criteria under the Canada Health Act. 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. Even if we are in error and the two-tiered health care system contemplated by Bill 11 does conform with the Canada Health Act, our earlier opinion letter sets out our conclusion that the federal government has constitutional authority to introduce amendments to the Act to respond to Alberta’s initiative. 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. Therefore, the federal government may make various amendments to the Canada Health Act, so long as the conditions do not in fact constitute federal regulation or control of provincial health care. Such amendments would be constitutionally valid as an exercise of the federal spending power.

We would be pleased to elaborate on the foregoing should you wish.

Your very truly,

ARVAY FINLAY

per: T. Murray Rankin

TMR*scs
gwo/opeiu 491