Jane Doe v. Man.,

• Jurisdiction: Manitoba
• Judge: Huband, Philp, Steel, Hamilton and Freedman, JJ.A.
• Neutral Citation: 2005 MBCA 109
• Citation: (2005), 195 Man.R.(2d) 309 (CA),2005 MBCA 109,260 DLR (4th) 149,[2006] 5 WWR 486,[2005] MJ No 335 (QL),195 Man R (2d) 309,195 ManR(2d) 309,(2005), 195 ManR(2d) 309 (CA),[2005] M.J. No 335 (QL),195 Man.R.(2d) 309,260 D.L.R. (4th) 149
• Date: 30 September 2005
• Court: Court of Appeal (Manitoba)

Jane Doe v. Man. (2005), 195 Man.R.(2d) 309 (CA);

    351 W.A.C. 309

MLB headnote and full text

Temp. Cite: [2005] Man.R.(2d) TBEd. OC.005

Jane Doe 1 and Jane Doe 2, on their own behalf and On Behalf Of Certain Pregnant Women Who Are Insured Persons Pursuant To The Health Services Insurance Act, R.S.M. 1987, c. H-35, And Who Require Access To Therapeutic Abortion Services (plaintiffs/respondents) v. The Government of Manitoba (defendant/appellant)

(AI 05-30-06058; 2005 MBCA 109)

Indexed As: Jane Doe et al. v. Manitoba

Manitoba Court of Appeal

Huband, Philp, Steel, Hamilton and Freedman, JJ.A.

September 30, 2005.

Summary:

Two women had therapeutic abortions at a private clinic because of lengthy delays in obtaining an abortion at a hospital. Pursuant to ss. 116(1)(h) and 116(2) of the Health Services Insurance Act and s. 2(8) of Regulation 49/93, abortions in hospitals were publicly funded, but abortions in a private clinic were not. The women brought an action against the province challenging the provisions of the Act and Regulation as violating their rights under ss. 2(a), 7 and 15 of the Charter. The Province applied to strike the statement of claim as an abuse of process or, alternatively, for summary judgment dismissing the claim. The women applied for summary judgment.

The Manitoba Court of Queen's Bench, in a judgment reported (2004), 189 Man.R.(2d) 284, dismissed the Province's motions and granted the women summary judgment. The court declared that the Act and Regulation violated their rights under ss. 2(a), 7 and 15 of the Charter and was not saved as a reasonable limit prescribed by law under s. 1. The court suspended the relief granted for one year to permit the Province time to review and revise the legislation. The Province appealed the dismissal of its motions and the granting of summary judgment against it.

The Manitoba Court of Appeal dismissed the appeal against dismissal of the Province's motions, but allowed the appeal respecting the summary judgment against the Province. This was not an appropriate case for summary judgment.

Civil Rights - Topic 388

Freedom of conscience and religion - Infringement of - Abortion legislation - Two women had therapeutic abortions at a private clinic because of lengthy delays in obtaining an abortion at a hospital - Sections 116(1)(h) and 116(2) of the Health Services Insurance Act and s. 2(8) of Regulation 49/93, funded abortions in hospitals, but not in private clinics - The trial judge granted summary judgment declaring that the impugned legislation violated the women's rights under ss. 2(a) (freedom of conscience), 7 (security of the person) and 15 (equality rights) of the Charter - The legislation was not saved by s. 1 of the Charter - The Manitoba Court of Appeal held that summary judgment was inappropriate - The court stated that the Charter issues were complex and involved developing areas of the law with important policy implications - Resolution of these issues required a full factual underpinning based on a trial record - The court set aside the summary judgment and remitted the matter for trial - See paragraphs 17 to 30.

Civil Rights - Topic 1395

Security of the person - Health care - Abortion legislation - [See Civil Rights - Topic 388 ].

Civil Rights - Topic 5655.1

Equality and protection of the law - Particular cases - Provincial health benefits - [See Civil Rights - Topic 388 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 388 ].

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - In two previous actions, claims by a privately run abortion clinic challenging the failure to fund therapeutic abortions performed in private clinics as violating ss. 7 and 15 of the Charter were dismissed - Two pregnant women had abortions at their own expense at a private abortion clinic because of lengthy delays in obtaining an abortion at a publicly funded hospital - The women challenged the legislation which denied them funding as violating their rights under ss. 2(a), 7 and 15 of the Charter - The Province applied to strike the statement of claim as an abuse of process, submitting that the previous decisions upheld the predecessor legislation under the Charter - The trial judge held that there was no abuse of process - First, the prior actions involved a claim by a private clinic as opposed to women upon whom the impugned legislation had a direct impact - Secondly, the present proceeding also involved a challenge based on s. 2(a) of the Charter - The Manitoba Court of Appeal agreed - There was no basis to strike the statement of claim for an abuse of process - See paragraphs 10 to 16.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Civil Rights - Topic 388 ].

Cases Noticed:

Lexogest Inc. et al. v. Manitoba (Attorney General) et al. (1993), 85 Man.R.(2d) 8; 41 W.A.C. 8 (C.A.), refd to. [para. 5].

Lexogest Inc. v. Manitoba (1994), 91 Man.R.(2d) 260 (Q.B.), refd to. [para. 5].

Chaves et al. v. Shum et al. (2004), 184 Man.R.(2d) 164; 318 W.A.C. 164; 2004 MBCA 56, refd to. [para. 17].

Atlas Acceptance Corp. et al. v. Lakeview Development of Canada Ltd. et al. (1992), 78 Man.R.(2d) 161; 16 W.A.C. 161 (C.A.), refd to. [para. 18].

Canadian Imperial Bank of Commerce v. Derksen Brothers Holdings Ltd. et al. (1995), 100 Man.R.(2d) 224; 91 W.A.C. 224 (C.A.), refd to. [para. 18].

Korean Investors Group et al. v. Lakeview Hotel Development Inc. et al. (1996), 118 Man.R.(2d) 81; 149 W.A.C. 81 (C.A.), refd to. [para. 18].

Simmons Construction Ltd. v. Bird Construction Co. et al. (1990), 65 Man.R.(2d) 59 (C.A.), refd to. [para. 18].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 20].

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; 2004 SCC 78, refd to. [para. 20].

Chaoulli v. Quebec (Attorney General) (2005), 335 N.R. 25; 2005 SCC 35, refd to. [para. 20].

Valley Agricultural Society v. Behlen Industries Inc. et al. (2004), 184 Man.R.(2d) 263; 318 W.A.C. 263; 2004 MBCA 80, refd to. [para. 21].

Lawrence v. Peel Regional Police Force et al., [2005] O.A.C. Uned. 75; 250 D.L.R.(4th) 287 (C.A.), refd to. [para. 22].

Steffen v. Bryer et al. (2004), 184 Man.R.(2d) 310; 318 W.A.C. 310; 2004 MBCA 83, leave to appeal dismissed (2004), 338 N.R. 198 (S.C.C.), refd to. [para. 23].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 25].

Johnson (G.D.) Ltd. v. Royal Bank of Canada (1998), 126 Man.R.(2d) 285; 167 W.A.C. 285 (C.A.), refd to. [para. 26].

Gray v. Canada Life Assurance Co. (2004), 184 Man.R.(2d) 224; 318 W.A.C. 224; 2004 MBCA 88, refd to. [para. 26].

Chalmers et al. v. Highland Park Financial Inc. et al. (2000), 145 Man.R.(2d) 174; 218 W.A.C. 174; 2000 MBCA 2, refd to. [para. 26].

Counsel:

W.G. McFetridge and H.D. Penner, for the appellant;

R.L. Tapper, Q.C., and C.C. Wullum, for the respondents.

This appeal was heard on May 9, 2005, before Huband, Philp, Steel, Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal.

On September 30, 2005, Hamilton, J.A., delivered the following judgment for the Court of Appeal.