(b) British Columbia
Section 6.1(2)(a) of the Hospital Insurance Act Regulations, B.C. Reg. 25/61 states that the Minister of Health must pay the actual cost of care for hospital services provided in participating provinces, while Section 6.1(2)(b) limited the province's maximum payment for hospital services provided for outside of British Columbia to $75 per day.

On August 6, 1997, Mr. Justice Hunter of the British Columbia Supreme Court held that the B.C. Hospital Insurance Act allowed for the different treatment of hospital services outside of Canada on a different basis than services provided in other Canadian provinces and such differences are not always discriminatory.

In addition, the court held that it would not determine whether Section 6.1(2)(b) of the regulation violated Section 11(1)(b)(ii) of the CHA, since as in the Ontario case, it was held to be a political, not judicial matter. In fact, the court held that it saw no point in providing a declaration that Section 6.1(2)(b) of the regulation violated Section 11(1)(b)(ii) of the CHA, since it would have no practical effect of striking down the regulation, rather its only purpose would be to provide political pressure on the provincial and federal governments to correct any alleged violation. No doubt, the court missed the very remedy the CSA was seeking and hence the CSA has continued and refocused its lobbying effort on the federal government.

(c) Quebec
The CSA also challenged Quebec's reduced payments for emergency insured medical services received outside of Canada from $509 to $100 for certain Quebec residents on the basis of discrimination under the Quebec Charter of Human Rights and Freedoms.

For example, under the regulations to the Quebec Health Insurance Act, Quebec residents who travel abroad as tourists (i.e. snowbirds) are only entitled to a maximum payment of $100 per day for emergency insured medical services received outside of Canada. However, other Quebec residents, such as politicians, bureaucrats, and students who travel abroad are entitled to the maximum payment of $509 per day for emergency insured medical services received outside of Canada.

On October 28,1997, the Quebec Superior Court held that the health insurance regulations which treated some residents differently than others was not considered discrimination under Quebec's Charter of Rights and Freedoms.

With three court cases, and all suggesting that this issue be resolved politically, the CSA has turned its attention to lobbying the federal government to enforce its legislation.

CSA POSITION

(a) Annual Indexed Formula
Every province should have an annually indexed formula that determines the amount of insured health services within a province for similar services rendered out of province, as required under Section 11(1)(b)(ii) of the CHA, and that such amount be paid to each provincial resident for an insured health service incurred out of province.

(b) Lack of Consultation Violates Rule of Law
The federal government's position violates the rule of law, wherein it has placed itself above the law by failing to acknowledge, let alone remedy provincial violations under the CHA. By failing to engage in the consultation process, the government's action is arbitrary and contrary to fundamental rights, wherein it has clearly failed to submit to a clear legal authority.

(c) Common Law Duty for a Province Not to Pass a Regulation that Offends Federal Legislation
The common law maintains that a province cannot pass a regulation that contravenes a federal legislation, wherein in one case the court held that " ... where a power to make regulations is given to a public body by statute, no regulations made under it can abridge a right conferred by the statute itself."

(d) Federal Government Has a Fiduciary Duty Under the CHA
The federal government has a fiduciary duty to supervise provincial compliance under the CHA and to consult with those offending provinces, within a reasonable time after a province's action has arguably violated the CHA.

(e) Federal Government Does Not Have Unfettered Discretion
Although the federal government has discretion to withhold federal payments under the CHA, the CSA believes that a cause of action would arise if it refused to exercise its discretion. The federal government must exercise its discretion in a manner that promotes the purposes of the act and if not, then the CSA believes that the beneficiaries under the act, such as snowbirds, are entitled to court protection. The federal government does not have unfettered discretion.