Allen v. Alberta, 2015 ABCA 277

• Judge: Martin, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 10, 2015
• Citations: 2015 ABCA 277;(2015), 606 A.R. 274

Allen v. Alta. (2015), 606 A.R. 274; 652 W.A.C. 274 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. SE.034

Darcy Allen (appellant/applicant) v. Her Majesty the Queen in Right of Alberta (respondent/respondent)

(1401-0150-AC; 2015 ABCA 277)

Indexed As: Allen v. Alberta

Alberta Court of Appeal

Martin, Watson and Slatter, JJ.A.

September 9, 2015.

Summary:

Allen suffered a back injury in 2007 and was subsequently diagnosed with a degenerative back condition for which surgery was recommended. The earliest that Allen could have the surgery in Alberta was June 2011. Rather than wait, Allen decided to have the surgery in the United States in December 2009. Allen believed that he would have had more timely medical care if it were not for Alberta's prohibition on private health insurance. He applied for a declaration that the prohibition on private health insurance violated his s. 7 Charter right to security of the person. He also sought a declaration that he was entitled to sue for damages resulting from the Charter-infringing delays in medical care.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 586 A.R. 205, dismissed the application. Allen appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - Section 26(2) of the Alberta Health Care Insurance Act prohibited private health insurance - Allen applied for a declaration that s. 26(2) violated his s. 7 Charter rights - The chambers judge dismissed the motion - Allen did not present any evidence respecting whether s. 26(2) had actually compromised his s. 7 rights - On appeal, Allen argued that a summary process was adequate and there was no need to prove the constitutional point when there was already binding authority on the issue, particularly Chaoulli (2005 SCC) - The Alberta Court of Appeal dismissed the appeal - The presumption was that constitutional cases would be decided on a full evidentiary record, including, where appropriate, expert evidence - The only way to know the extent to which a law was inconsistent with the Constitution was to have a full evidentiary record with complete factual conclusions about it - In the absence of a full trial record, the chambers judge perceived significant gaps which prevented a proper consideration of the issues - Allen's quest for a declaration could not be determined summarily - See paragraphs 19 to 26.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - [See Courts - Topic 19 ].

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See first Civil Rights - Topic 8586 and Courts - Topic 19 ].

Constitutional Law - Topic 2561

Determination of validity of statutes or acts - Evidence and proof - General - [See first Civil Rights - Topic 8586 and Courts - Topic 19 ].

Constitutional Law - Topic 2981

Determination of validity of statutes or Acts - Practice - General - [See first Civil Rights - Topic 8586 and Courts - Topic 19 ].

Constitutional Law - Topic 2981

Determination of validity of statutes or Acts - Practice - General - The Alberta Court of Appeal discussed the procedure to be followed when reviewing statutes for constitutionality - The court stated that the decision to override a statute "should not be made unless the proper procedural safeguards have been observed. The selected procedure must be: (a) fair to the citizens challenging the statute, in the sense that they are given a reasonable opportunity to make the case for unconstitutionality ... (b) fair to the legislature, in the sense that the government has a reasonable opportunity to defend the statute; (c) fair to the court, in the sense that the court has a reasonable record on which to exercise this important component of its jurisdiction; and (d) fair to other governments and interested groups who are affected by and may want to intervene in the process." - See paragraph 21.

Courts - Topic 17

Stare decisis - Authority of judicial decisions - General principles - Scope of stare decisis - [See Courts - Topic 19 ].

Courts - Topic 19

Stare decisis - Authority of judicial decisions - General principles - Constitutional issues - Section 26(2) of the Alberta Health Care Insurance Act prohibited private health insurance - Allen applied for a declaration that s. 26(2) violated his s. 7 Charter rights - The chambers judge dismissed the motion - Allen did not present any evidence respecting whether s. 26(2) had actually compromised his s. 7 rights - On appeal, Allen argued that a summary process was adequate and that there was no need to prove the constitutional point when there was already binding authority on the issue, particularly Chaoulli (2005 SCC) - The Alberta Court of Appeal dismissed the appeal - Slatter, J.A., stated that there might be situations where a binding precedent made the outcome of a constitutional challenge inevitable, but Chaoulli was not such a precedent - First, prior decisions were at best binding on points of law, not questions of fact, and the constitutionality of s. 26(2) depended heavily on the factual context - Second, Chaoulli was decided in 2005 based on a record established in 2000 and originated in Quebec - The health care system in Alberta in 2015 did not necessarily have the same constitutional features - Third, s. 7 was notoriously open-ended - Its application to the constitutional review of social and economic policies was controversial and unsettled - A full trial was required to allow the government to justify its policy choices and spending priorities, and to allow other interested governments and parties an opportunity to be heard - Finally, the panel in Chaoulli split 3-3-1 - There was no clear ratio decidendi, and its applicability had to be assessed in light of subsequent judicial decisions - See paragraphs 27 to 53.

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Courts - Topic 19 ].

Cases Noticed:

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [paras. 1, 56].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 8].

Reference Re Supreme Court Act, [2014] 1 S.C.R. 433; 455 N.R. 202, refd to. [para. 20].

Marbury v. Madison (1803), 1 Cranch 137 (U.S.S.C.), refd to. [para. 20].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General), [2012] 2 S.C.R. 524; 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para. 21].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 21].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 22].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 22].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 23].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 23].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 23].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 24].

R. v. Smith (O.E.) (2015), 472 N.R. 1; 2015 SCC 34, refd to. [para. 24].

Blood Tribe et al. v. Canada (Attorney General) (2012), 533 A.R. 230; 557 W.A.C. 230; 2012 ABCA 206, leave to appeal denied [2013] 1 S.C.R. vi; 446 N.R. 394, refd to. [para. 26].

Tanudjaja et al. v. Canada (Attorney General) et al. (2014), 326 O.A.C. 257; 123 O.R.(3d) 161; 2014 ONCA 852, refd to. [para. 34].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 44].

Centre for Addiction and Mental Health v. Ontario and Conception - see R. v. Conception (B.)

R. v. Conception (B.), [2014] 3 S.C.R. 82; 462 N.R. 315; 322 O.A.C. 199; 2014 SCC 60, refd to. [para. 46].

R. (Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2008] UKHL 15; [2008] 1 A.C. 1312, refd to. [para. 46].

Strickland et al. v. Canada (Attorney General) (2015), 473 N.R. 328; 2015 SCC 37, refd to. [para. 60].

Authors and Works Noticed:

Hogg, Peter, Constitutional Law of Canada (5th Ed.) (Looseleaf), para. 36.4(a) [para. 36].

Hogg, Peter, The Brilliant Career of Section 7 of the Charter (2012), S.C.L. Rev.(2d) 195, p. 198 [para. 33].

Counsel:

J.V. Carpay, D.W. McGrath, Q.C., and J. Sealy-Harrington, for the appellant;

L.C. Enns, Q.C., for the respondent.

This appeal was heard on April 10, 2015, before Martin, Watson and Slatter, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved were filed at Calgary, Alberta, on September 9, 2015, and included the following opinions:

Slatter, J.A. - see paragraphs 1 to 54;

Martin, J.A., concurring in the result - see paragraph 55;

Watson, J.A., concurring in the result - see paragraphs 56 to 61.