Morgentaler v. New Brunswick (Attorney General) et al., (1989) 98 N.B.R.(2d) 45 (TD)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 14, 1989
• Jurisdiction: New Brunswick
• Citations: (1989), 98 N.B.R.(2d) 45 (TD)

Morgentaler v. N.B. (A.G.) (1989), 98 N.B.R.(2d) 45 (TD);

    98 R.N.-B.(2e) 45; 248 A.P.R. 45

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Henry Morgentaler (applicant) v. Attorney General of New Brunswick, Minister of Health and Community Services and Director of the Medicare Branch of the Insured Services Division of the Department of Health and Community Services (respondents)

(F/M/103/88)

Indexed As: Morgentaler v. New Brunswick (Attorney General) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Stevenson, J.

April 13, 1989.

Summary:

A doctor who performed abortions on three New Brunswick women in Quebec submitted claims for "entitled services" under the Medical Services Payment Act. The Department of Health and Community Services rejected the claims, stating that it was "government policy" not to accept abortion claims unless "it is determined as being medically required by a physician and is performed by a specialist in gynaecology and obstetrics in an approved hospital". The doctor applied for a declaration that the policy was ultra vires, as it was not authorized under the Act and Regulations.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application and declared the policy to be invalid.

Government Programs - Topic 1988

Medicare - Claims by doctors - Insured services - What constitute - Section I of the Medical Services Payment Act defined "entitled services" as those medically required, except services deemed by the Lieutenant Governor-in-Council not to be entitled services - There was a "government policy" not to accept abortion claims unless they were "medically required by a physician and performed by a specialist in gynaecology and obstetrics in an approved hospital" - The policy was not authorized by the Act or Regulations - The New Brunswick Court of Queen's Bench, Trial Division, held that the policy was invalid; and that s. 56 of the Medical Act and s. 43(1) of Regulation 84-212 under the Public Hospitals Act did not validate the policy.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 287 [para. 6].

Medical Act, S.N.B. 1981, c. 87, sect. 56 [para. 10].

Medical Services Payment Act, R.S.N.B. 1973, c. M-7, sect. 1 [para. 2].

Medical Services Payment Act Regulations, Regulation 84-20, sect. 9 [para. 10].

Public Hospitals Act Regulations, Regulation 84-212, sect. 43(1)(c) [para. 10].

Counsel:

E.J. Mockler, Q.C., and Richard J. Scott, for the applicant;

William A. Anderson and Paul H. Blanchet, for the respondents.

This application was heard on February 14, 1989, before Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment April 13, 1989.