Cameron et al. v. Nova Scotia (Attorney General) et al., (1999) 204 N.S.R.(2d) 1 (CA)

JudgeChipman, Pugsley and Bateman, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateMay 19, 1999
JurisdictionNova Scotia
Citations(1999), 204 N.S.R.(2d) 1 (CA)

Cameron v. N.S. (A.G.) (1999), 204 N.S.R.(2d) 1 (CA);

 639 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. MY.030

Alexander MacBain Cameron and Cheryl Dawn Smith (appellants) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia, the Minister of Health, the Department of Health and the Administrator, Insured Professional Services (respondents)

(CA 153793)

Indexed As: Cameron et al. v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Chipman, Pugsley and Bateman, JJ.A.

September 14, 1999.

Summary:

The plaintiffs were husband and wife. The male plaintiff suffered from "severe male factor infertility" due to reduced sperm count and quality. When other procedures failed, the plaintiffs underwent four cycles of Intra Cytoplasmic Sperm Injection (ICSI), a vari­ant of in vitro fertilization (IVF), in Toronto and Calgary. They sought reimbursement for their treatment costs from the Nova Scotia Health Care Insurance Plan and were turned down. The plaintiffs sued the Minister of Health, the Department of Health and the Administrator, Insured Professional Services, the parties responsible for providing govern­ment medical insurance under the Health Services and Insurance Act and Regulations. They sought reimbursement for the out of province treatment and a declaration that the refusal of the Nova Scotia Health Care Insurance Plan to cover the costs of ICSI and IVF was unlawful and contravened ss. 7 and 15 of the Charter. The plaintiffs sought public interest standing with respect to IVF.

The Nova Scotia Supreme Court, in a decision reported at 172 N.S.R.(2d) 227; 524 A.P.R. 227, granted the plaintiffs public interest standing and dismissed the action. The plaintiffs appealed.

The Nova Scotia Court of Appeal dis­missed the appeal.

Civil Rights - Topic 910

Discrimination - General principles - Ad­verse effect - Indirect or constructive dis­crimination - The plaintiffs were hus­band and wife - The male plaintiff suffered from "severe male factor infertility" - When other procedures failed, the plaintiffs un­derwent four cycles of Intra Cytoplasmic Sperm Injection (ICSI), a variant of in vitro fertilization (IVF) - They sought re­imbursement from the Nova Scotia Health Care Insurance Plan and were turned down - The plaintiffs sued the Minister of Health et al. - The Nova Scotia Court of Appeal held that infertility was a physical disabili­ty and the province's policy of not funding ICSI and IVF indi­rectly discriminated against the plaintiffs, contrary to s. 15 of the Charter - However, the violation was justified under s. 1 of the Charter given, inter alia, the financial constraints of the health care system - See paragraphs 109 to 246.

Civil Rights - Topic 960.2

Discrimination - Mental or physical dis­ability - Disability defined - [See Civil Rights - Topic 910 ].

Civil Rights - Topic 5502

Equality and protection of the law - Gen­eral principles and definitions - Whether right to equality abridged - [See Civil Rights - Topic 910 ].

Civil Rights - Topic 5655.1

Equality and protection of the law - Par­ticular cases - Provincial health benefits - [See Civil Rights - Topic 910 ].

Civil Rights - Topic 8543

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Law - Intra Cytoplasmic Sperm Injection (ICSI) was a variant of in vitro fertilization (IVF) - The plaintiffs chal­lenged the government's policy of not funding ICSI and IVF under the Health Services and Insurance Act and Regula­tions on the ground, inter alia, that the exclusion violated their equality rights under s. 15(1) of the Charter - The trial judge held that the government's funding policy was law for the purposes of the Charter challenge - The Nova Scotia Court of Appeal agreed - See paragraph 112.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights - What constitutes a breach of s. 15 - [See Civil Rights - Topic 910 ].

Constitutional Law - Topic 7506

Provincial jurisdiction (s. 92) - Matters of local or private nature - Health - The plaintiffs challenged the provincial govern­ment's policy of not funding certain medi­cal procedures under the Health Services and Insurance Act and Regulations - The Nova Scotia Court of Appeal held that if the provincial Act failed to meet the standards or objectives of the Canada Health Act, it would not follow that the plaintiffs would be entitled to relief from the court - Jurisdiction over health care was exclusively a provincial matter - A province's failure to comply with the Canada Health Act might result in the federal government imposing a financial penalty on the province - It raised a politi­cal, not a justiciable issue - It did not render the provincial legislation unconstitu­tional - See paragraphs 92 to 97.

Government Programs - Topic 1926

Medicare - Entitlement - Out of province care - The Nova Scotia Court of Appeal stated that there was no general right to receive insured hospital services outside of the province - See paragraph 54.

Government Programs - Topic 2101

Medicare - Insured services - General - [See Constitutional Law - Topic 7506 ].

Government Programs - Topic 2102

Medicare - Insured services - What consti­tute - The plaintiffs were husband and wife - The male plaintiff suffered from "severe male factor infertility" - When other pro­cedures failed, the plaintiffs underwent four cycles of Intra Cytoplasmic Sperm Injection (ICSI), a variant of in vitro ferti­lization (IVF), in Toronto and Calgary - They sought reimbursement from the Nova Scotia Health Care Insurance Plan and were turned down - The plaintiffs sued the Minister of Health et al. for reimbursement for the treatments - The trial judge dis­missed the action - The plaintiffs appealed - The Nova Scotia Court of Appeal upheld the trial judge's conclusion that ICSI and IVF were not "medically necessary" or "medically required" and thus were not covered under the province's Health Care Insurance Plan - See paragraphs 29 to 90.

Government Programs - Topic 2102

Medicare - Insured services - What consti­tute - The plaintiffs challenged the govern­ment's policy of not funding certain medi­cal procedures under the Health Services and Insurance Act and Regulations - The Nova Scotia Court of Appeal stated that "A very important limitation in the policy is that insured services be medically neces­sary or medically required. Of necessity, what is or is not medically required must be judged by those placed in charge of the administration of the policy. The judgment call requires an appreciation not only of medical procedures, but the availability of funds to finance them. The exercise of such judgment is not a function of this Court. Our role is limited to requiring that those who make and administer the policy follow their own rules - in particular, the Act and the Regulations - in doing so. We are not accountable for the raising and expenditure of public monies. The persons who make these decisions under the policy are persons who are directly or indirectly so accountable. Charter considerations aside, as long as their decisions are reached in good faith and are not shown to be clearly wrong, we have no power to overturn them." - See paragraph 101.

Government Programs - Topic 2106

Medicare - Insured services - Administra­tive appeals - The Health Services and Insurance Commission was created to administer hospital and medical care ser­vices - A series of legislative amendments transferred the Commission's substantive duties to the Minister of Health - The legislation that created the Commission was not repealed - The Commission, which had served as an appeal body to both service providers and patients wishing to appeal an administrative decision, was simply allowed to lapse - The Nova Scotia Court of Appeal held that while from the health care consumers' perspective it would be desirable to have an independent tribunal to review the Department of Health's decisions to fund or not fund procedures, there was no legal requirement that such an appellate procedure be part of the scheme - See paragraphs 103 to 104.

Words and Phrases

Medically necessary - The Nova Scotia Court of Appeal held that the phrases "medically necessary" as found in s. 7(1) of the Hospital Insurance Regulations (N.S.) and "medically required" as found in s. 2(1) of the Hospital Insurance Regu­lations (N.S.) and s. 1(e) of the Medical Services Insurance Regulations (N.S.), meant the same thing - The court discussed the meaning of these phrases - See para­graphs 75 to 101.

Words and Phrases

Medically required - The Nova Scotia Court of Appeal held that the phrases "medically necessary" as found in s. 7(1) of the Hospital Insurance Regulations (N.S.) and "medically required" as found in s. 2(1) of the Hospital Insurance Regu­lations (N.S.) and s. 1(e) of the Medical Services Insurance Regulations (N.S.), meant the same thing - The court discussed the meaning of these phrases - See para­graphs 75 to 101.

Cases Noticed:

Canadian Council of Churches v. Canada (1992), 132 N.R. 241; 88 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 13].

Brown et al. v. British Columbia (Attorney General) et al., [1997] B.C.T.C. Uned. B92; 41 B.C.L.R.(3d) 365; [1998] 5 W.W.R. 312 (S.C.), refd to. [para. 97].

Lexogest Inc. et al. v. Manitoba (Attorney General) et al. (1993), 85 Man.R.(2d) 8; 41 W.A.C. 8; 101 D.L.R.(4th) 523 (C.A.), refd to. [para. 97].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693, refd to. [paras. 113, 263].

Vriend et al. v. Alberta (1998), 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237 (S.C.C.), refd to. [para. 113].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [paras. 115, 249].

Eldridge et al. v. British Columbia (Attor­ney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 151 D.L.R.(4th) 577, refd to. [paras. 124, 264].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1; 81 D.L.R.(4th) 358, refd to. [para. 133].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [paras. 150, 255].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [paras. 155, 262].

Schafer et al. v. Canada (Attorney Gen­eral) et al. (1997), 102 O.A.C. 321; 149 D.L.R.(4th) 705 (C.A.), refd to. [para. 186].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1; 140 D.L.R.(4th) 1, refd to. [para. 204].

R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; 119 N.R. 353; 46 O.A.C. 13; 73 Man.R.(2d) 1; 3 W.A.C. 1, refd to. [paras. 205, 250].

R. v. Nguyen - see R. v. Hess; R. v. Nguyen.

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 306, refd to. [paras. 207, 260].

Conway v. Canada, [1993] 2 S.C.R. 872; 154 N.R. 392, refd to. [para. 207].

Weatherall v. Canada (Attorney General) - see Conway v. Canada.

Egan and Nesbitt v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 124 D.L.R.(4th) 609, refd to. [para. 212].

McKinney v. University of Guelph, [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 215].

Statutes Noticed:

Health Services and Insurance Act Regula­tions (N.S.), Medical Services Insurance Regulations, sect. 1(e) [para. 61].

Medical Services Insurance Regulations - see Health Services and Insurance Act Regulations (N.S.), Medical Services Insurance Regulations.

Authors and Works Noticed:

Canada, Royal Commission on Health Services, Report (1964), vol. 1, p. 10 [para. 92].

Canada, Royal Commission on New Re­productive Technologies (1993),vol. 1, p. 171 [para. 184].

Canadian Bar Association, Task Force on Health Care Reform, What's Law Got To do with It?: Health Care Reform in Canada (1994), pp. 31 [para. 78]; 37 [para. 79].

Gillett, Wayne, and Peek, John, Access to Infertility Services: development of pri­ority criteria (1997), summary [para. 144].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992) (Looseleaf), pp. 34-8.3, 34-9 [para. 125].

Journal of the Am. Soc. for the Study of Fertility (1957), vol. 8, pp. 200 to 204 [para. 185].

Maill, Charlene E., The Stigma of Involun­tary Childlessness (1983), generally [para. 143].

Maill, Charlene E., The Stigma of Involun­tary Childlessness (1983) (revised 1986), p. 271 [para. 143].

Society of Obstetricians and Gynecologists of Canada, Comment on Report of the Royal Commission on New Reproductive Technologies, vol. 16 (1994), p. 1260 [para. 4].

Counsel:

Appellants appeared in person;

Daniel M. Campbell, Q.C., for the respon­dents.

This appeal was heard on May 19, 1999, by Chipman, Pugsley and Bateman, JJ.A., of the Nova Scotia Court of Appeal. The Court of Appeal delivered its decision on Septem­ber 14, 1999, when the following opinions were filed:

Chipman, J.A. (Pugsley, J.A., con­curring) - see paragraphs 1 to 246;

Bateman, J.A. - see paragraphs 247 to 290.

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