Pathways to and from the Supreme Court of Canada for Health Law Litigants

• Author: Angela Campbell
• Pages: 365-410

365

Pathways to and from the Supreme Court

of Canada for Health Law Litigants

angela campbell*

A. INTRODUCTION

In this collection, authors have been invited to engage with the body of juris-

prudence through which the Supreme Court of Canada has contributed to de-

ning the contours of health law in the country. ese discussions reveal the

various points of intersection between law, policy, and health. More specically,

they illuminate how health as a t heme is not restricted to the domains of either

private or public, or domestic or international law. Rather, “health” as a concept

is uid, and transcends the traditional taxonomy that classies areas of study or

concentration within law. As such, we have seen that the Supreme Court’s juris-

prudence pertaining to health has been developed through principles arising,

for example, in tort law/law of extra-contractual obligations, constitutional law

and human rights, intellectual property law, criminal law, administrative law,

and environmenta l law.

In recognition of this diversity of contexts in wh ich health law issues arise,

the direction of future Supreme Court litigation in this area is uncertain, and

could be pursued within a number of dierent contexts. In thinking about the

future of Supreme Court juri sprudence in the he alth context, it is important to

explore the complexities surrounding Supreme Court litigation and adjudica-

* e author is grateful f or the extremely able and helpful res earch and editing assist ance of

Gillian Nycu m and Kristin A li. She also wishes to tha nk colleagues who re ad through this

dra and provided i nsightful comments a nd feedback: Charles-Ma xime Panaccio, Mar ie-

Claude Prémont, and Colleen Sheppard. Fi nally, the author acknowledges t he generous

support received from the Mc Gill Wainwright Trust in pur suing this resea rch project.

366 Health Law at the Supreme Court of Canada

tion. While many dierent issues, both within and outside the realm of health

law, are intellectually intriguing and in need of judicial at tention and clarica-

tion, these oen do not form the subject of litigation. When they do, the cases

generally do not travel as far as the Supreme Court. Furthermore, even when

matters are litigated before our highest court, questions about the eective-

ness and the reach of judicial decision-making commonly surface. For example,

how do we deal with behaviour and circumstances that seem to run counter

to Supreme Court rulings? Should a Supreme Court judgment pertaining to a

particular set of facts have any impact or reach beyond the immediate parties

to the appeal?

is paper aspires to add to the scholarship on the Supreme Court of Can-

ada by considering challenges associated with accessing the Court and imple-

menting judicial decisions. While this is not a novel question, the inquiry here

is distinct in that it is pursued through particular lens of health law decisions

rendered by the Supreme C ourt of Canada . e rst par t of this paper at tempts

to obtain a sense of the role that health law has played at the Supreme Court.

Although there is currently no exhaustive study determining the frequency

of “health law” litigation at the Supreme Court, a brief overview of the recent

jurisprudence reveals that health is a focal point in only a small part of the

Court’s docket. Yet, while health is not central to most cases the Court hears,

some decisions in this area have contributed to charting law’s development in

the broad area of “health,” as well as other domains in which health litigation

oen arises, such as constitutional law and human rights, and the law of torts/

extra-contractua l obligations.

Having acknowledged that health litigation at the Supreme Court is rela-

tively uncommon, the inquiry turns to considering possible dynamics that

might deter Supreme Court litigation or hinder access to the Court for liti-

gants. e most evident factors that might encumber litigants on the “road to”

the Court, such as the Court’s leave to appeal procedures, as well as the costs

and the delays associated with Supreme Court litigation, are discussed.

While these factors are important, it is arg ued here that they are not the only

dynamics that could dissuade prospective litigants from attempting to pursue a

claim through Supreme Court litigation. Even if access to the Supreme Court is

obtained, there is no guarantee of judicial “victory” or of obtaining the practical

and/or social outcomes that the parties seek. On the “road om” the Supreme

Court, resource shortages and social and political resistance might prevent the

Court’s dictates from ful ly materializing. e nal par t of this paper examines

this phenomenon through a discussion of the practical consequences yielded by

Pathways to and from the Supreme Cour t of Canada for Health L aw Litigants 367

three of the C ourt’s most prominent decisions aecting hea lth care in Cana da.

is discussion demonstrates the circumscribed and imperfect reach of judicial

decisions and remedies for dealing eectively with the full range of challenges

and controversies raised by health, law, and ethics. Litigants aware of these prac-

tical limits of adjudication might be deterred from seeking justice through liti-

gation, and thus might attempt alternate routes to deal with their claims.

B. HEALTHLAWATTHESUPREMECOURTOFCANADA

Obtaining an accurate sense of the frequency with which the Supreme Court

of Canada has dealt with health law matters is a di cult task. e complexity

relates largely to the uidity of health law as a concept. “Health” as a theme is

quite uid and generally is not seen as a domain or category of law unto itself,

but rather as an area that has been developed and shaped through judgments

predominantly characterized, for example, as “crimina l law,” “tort law,” or “con-

stitutional law” cases.

e Supreme Court of Canada collects and publishes statistical data on

the leave to appeal applications it considers and the actual appeals that it hears.

is data prov ides information per taining to the nu mber of leave to appeal ap-

plications submitted to the Court in the last decade a nd the number of these

that have been granted or dismissed. ese statistics also indicate the number

of leave application s from each province in t he most recent year, as well a s the

various categories of law to which the leave applications pertained. Similar in-

formation is provided for the cases that have been heard and decided by the

Court. Yet, this information does not provide extensive assistance in deter-

mining the extent to which health law has been a focus at the Supreme Court.

While the data gives a sense of the number of cases that the court has heard and

the proportion that these cases represents in comparison with the much larg-

er pool of leave applications the Court received, it is impossible to determine

 e general requirements for leave to appeal to t he Supreme Court of Canada are set

out in the Supreme Court Act, R .S.C., , c. S-, s. (). e intricacies of t he leave

process are discu ssed in the second part of this pap er.

 See Supreme Court of Canada, Statistics  to . Categor y : Applications for Leave

Submitted, online: ww w.scc-csc.gc.ca/information/statistics/HTML/cat_e. asp [Cat-

egory ].

 e data indicates the total number of app eals heard by leave and as of rig ht; the number

of appeals al lowed, dismissed, a nd reserved; the province of or igin of the appeals hea rd

in the preceding yea r; and the areas of law to which the appe als heard pertaine d. See Su-

preme Court of Canada , Statistics  to . Category : Appeals Heard, on line: www.

scc-csc.gc.ca/information/statistics/HTML/cat_e. asp [Category ].