Flora v. Health Ins. Plan, 2008 ONCA 538

• Jurisdiction: Ontario
• Judge: Sharpe, Cronk and Gillese, JJ.A.
• Neutral Citation: 2008 ONCA 538
• Citation: 2008 ONCA 538,(2008), 238 O.A.C. 319 (CA),91 OR (3d) 412,295 DLR (4th) 309,76 Admin LR (4th) 132,[2008] OJ No 2627 (QL),168 ACWS (3d) 227,175 CRR (2d) 19,238 OAC 319,238 O.A.C. 319,91 O.R. (3d) 412,(2008), 238 OAC 319 (CA),[2008] O.J. No 2627 (QL),295 D.L.R. (4th) 309
• Date: 21 January 2008
• Court: Court of Appeal (Ontario)

Flora v. Health Ins. Plan (2008), 238 O.A.C. 319 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JL.030

Adolfo A. Flora (appellant) v. General Manager, Ontario Health Insurance Plan (respondent)

(C47182; 2008 ONCA 538)

Indexed As: Flora v. Ontario Health Insurance Plan

Ontario Court of Appeal

Sharpe, Cronk and Gillese, JJ.A.

July 4, 2008.

Summary:

After being told that he had six to eight months to live because he had liver cancer, Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant (LRLT) from his brother). The Ontario Health Insurance Plan (OHIP) refused payment for the treatment because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure. Flora's appeal to the Health Services Appeal and Review Board was dismissed. Flora appealed.

The Ontario Divisional Court, in a decision reported 219 O.A.C. 142, dismissed the appeal. Flora appealed again.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 208

Life - Right to health care (incl. funding) - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4 of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that s. 28.4(2) of the Regulation violated s. 7 of the Charter - The Ontario Divisional Court dismissed the appeal, holding that Flora's Charter rights under s. 7 were not engaged - Flora appealed, arguing that he was deprived of access to a life-saving medical treatment violating his s. 7 rights to life and security of the person - The Ontario Court of Appeal dismissed the appeal - The court stated that s. 28.4(2) did not prohibit or impede anyone from seeking medical treatment; rather, that section provided a defined benefit for out-of-country medical treatment that was not otherwise available to Ontarians - By not providing funding for "all" out-of-country medical treatments, it did not deprive an individual of the rights protected by s. 7 of the Charter - See paragraphs 93 to 102.

Civil Rights - Topic 208

Life - Right to health care (incl. funding) - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4 of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that s. 28.4(2) of the Regulation violated s. 7 of the Charter - The Ontario Divisional Court dismissed the appeal, holding that Flora's Charter rights under s. 7 were not engaged - Flora appealed, arguing that the state deprived him of his s. 7 rights by amending, in 1992, a predecessor version of the Regulation that would have provided funding for his LRLT on the basis of medical necessity (i.e., by altering the test) - The Ontario Court of Appeal dismissed the appeal - The court stated that the decision in Ferrel v. Ont. (Ont. C.A. 1998) was a complete answer to this claim - In that case, the court confirmed that a Charter violation could not be grounded on a mere change in the law - See paragraphs 103 and 104.

Civil Rights - Topic 208

Life - Right to health care (incl. funding) - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4 of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that s. 28.4(2) of the Regulation violated s. 7 of the Charter - The Ontario Divisional Court dismissed the appeal, holding that Flora's Charter rights under s. 7 were not engaged - Flora appealed, arguing that s. 7 imposed a positive obligation on the state to provide life-saving medical treatments, thus obviating the need for a finding of state action amounting to deprivation - The Ontario Court of Appeal dismissed the appeal - The court noted that the Supreme Court of Canada had expressly left open the question of whether a positive right to a minimum level of health care existed, although it had indicated that s. 7 might one day be interpreted to include positive obligations in special circumstances where, at a minimum, the evidentiary record disclosed actual hardship - However, so far, the protection afforded by s. 7 of the Charter had not been extended to cases, like this one, involving solely economic rights - See paragraphs 105 to 109.

Civil Rights - Topic 1205

Security of the person - Security of the person defined - [See all Civil Rights - Topic 208 ].

Civil Rights - Topic 1400

Security of the person - Health care - Denial of (incl. funding for) - [See all Civil Rights - Topic 208 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See all Civil Rights - Topic 208 ].

Government Programs - Topic 2101

Medicare (OHIP) - Insured services - General - [See all Civil Rights - Topic 208 ].

Government Programs - Topic 2102

Medicare (OHIP) - Insured services - What constitute - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4(a) of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that the board erred in interpreting s. 28.4(2) of the Regulation - The Ontario Divisional Court dismissed the appeal, holding that the board's decision that Flora's treatment was not an insured service was reasonable - Flora appealed, arguing that the board erred in relying on an Ontario doctor's evidence concerning the appropriateness of a LRLT for Flora in the face of contradictory evidence from experienced international medical experts - The Ontario Court of Appeal dismissed the appeal, stating that it saw no error in the board's reliance on the evidence impugned by Flora - See paragraphs 46 to 71.

Government Programs - Topic 2102

Medicare (OHIP) - Insured services - What constitute - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4(a) of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that the board erred in interpreting s. 28.4(2) of the Regulation - The Ontario Divisional Court dismissed the appeal - Flora appealed, arguing that the Divisional Court erred by accepting an interpretation of s. 28.4(2)(a) that was inconsistent with the purpose and objectives of the Health Insurance Act and the Canada Health Act - The Ontario Court of Appeal rejected this argument and dismissed the appeal - See paragraphs 81 to 91.

Government Programs - Topic 2102

Medicare (OHIP) - Insured services - What constitute - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4(a) of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that the board erred in interpreting s. 28.4(2) of the Regulation - The Ontario Divisional Court dismissed the appeal - Flora appealed, arguing that the board "conflated" the issue of the availability of the LRLT procedure in Ontario with the issue of its appropriateness for Flora - The Ontario Court of Appeal rejected this argument and dismissed the appeal - The court noted that Flora's "conflation" argument was predicated on the proposition that the "appropriateness" of a medical treatment was to be measured solely by its medical efficacy (i.e., if the proposed treatment would potentially benefit the patient, in the absence of any contraindications for the treatment it must be regarded as medically necessary and appropriate under s. 28.4(2)(a) of the Regulation) - The court cited a number of difficulties with this proposition - See paragraphs 72 to 80.

Government Programs - Topic 2102

Medicare (OHIP) - Insured services - What constitute - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4(a) of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that the board erred in interpreting s. 28.4(2) of the Regulation - The Ontario Divisional Court dismissed the appeal, holding that the board's decision that Flora's treatment was not an insured service was reasonable - Flora appealed, arguing that the Divisional Court erred in holding that the decision was reasonable - The Ontario Court of Appeal dismissed the appeal - The court stated that under the formulation of the reasonableness standard articulated in Dunsmuir v. NB (SCC 2008), deference was owed to the board's decision if it fell within a range of acceptable outcomes that were defensible on the facts and the law and if the justification for the decision was sound, transparent and intelligible - The court had no hesitation in concluding that the board's decision satisfied those requirements - See paragraphs 46 to 92.

Government Programs - Topic 2107

Medicare (OHIP) - Insured services - Judicial review (incl. standard of review) - Flora received life-saving out-of-country medical treatment (i.e., chemoembolization and a living-related liver transplant from his brother) - The Ontario Health Insurance Plan (OHIP) refused payment for the treatment which cost $450,000 because it was not generally accepted in Ontario as appropriate for a person in the same medical circumstances at the time of the procedure as required by s. 28.4 of the General Regulation under the Health Insurance Act - Flora's appeal to the Health Services Appeal and Review Board was dismissed - Flora appealed, arguing that the board erred in its interpretation of s. 28.4(2) of the Regulation - The Ontario Divisional Court held that the board's decision was owed a degree of deference and it had to be reviewed by the court on the standard of reasonableness - Flora appealed again, arguing that the Divisional Court erred in applying the reasonableness standard of review to the board's decision and that the correctness standard applied - The Ontario Court of Appeal dismissed the appeal, holding that reasonableness was the appropriate standard of review - See paragraphs 32 to 45.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 34].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201, refd to. [para. 34].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 35].

Ruggiero Estate v. Ontario Health Insurance Plan (2005), 78 O.R.(3d) 28 (Div. Ct.), refd to. [para. 44].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 80].

Cameron et al. v. Nova Scotia (Attorney General) et al. (1999), 204 N.S.R.(2d) 1; 639 A.P.R. 1; 177 D.L.R.(4th) 611 (C.A.), refd to. [para. 80].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 94].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 94].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161, refd to. [para. 94].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, dist. [para. 94].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, dist. [para. 99].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1; 107 D.L.R.(4th) 342, dist. [para. 100].

Wynberg et al. v. Ontario (2006), 213 O.A.C. 48; 82 O.R.(3d) 561 (C.A.), refd to. [para. 102].

Ferrell et al. v. Ontario (Attorney General) (1998), 116 O.A.C. 176; 42 O.R.(3d) 97 (C.A.), refd to. [para. 104].

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 505 (C.A.), refd to. [para. 104].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300, refd to. [para. 104].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 105].

Melanson v. New Brunswick et al. (2007), 310 N.B.R.(2d) 356; 800 A.P.R. 356; 280 D.L.R.(4th) 69 (C.A.), refd to. [para. 106].

Statutes Noticed:

Canada Health Act, R.S.C. 1985, c. C-6, sect. 3 [para. 6].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 6].

Health Insurance Act, R.S.O. 1990, c. H-6, sect. 11.2(1), sect. 12(1) [para. 6].

Health Insurance Act Regulations (Ont.), General Regulation, Reg. 552/90, sect. 28.4(2) [para. 6].

Counsel:

Mark. J. Freiman and John A. Dent, for the appellant;

Janet E. Minor and Matthew Horner, for the respondent.

This appeal was heard on January 21, 2008, before Sharpe, Cronk and Gillese, JJ.A., of the Ontario Court of Appeal. Cronk, J.A., released the following judgment for the court on July 4, 2008.