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.
Given your instructions, we have identified the following issues:
- Would the scheme contemplated by Bill 11 violate any of the program criteria under the Canada Health Act?
- 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:
- an express requirement of public ownership and operation of hospitals; and/or
- 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?
- an express requirement of public ownership and operation of hospitals; and/or
- 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?
- 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.
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,  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.
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:
- 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.
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.
1 Accessed at www2.gov.ab.ca/healthfacts/pdf/abh00116b.pdf