Constitutional Challenge to Provincial Regulations?

Fall 2013 CSANews Issue 88  |   Posted date : Oct 10, 2013.Back to list

Bird talk - Le Jaseur
Dear Bird Talk,

Each of the provincial health plans, even the “generous ones,” threaten their citizens with cancellation of their provincial health-care plan should they dare absent themselves from the province for longer than some bureaucratically set period of time. I suggest that such a draconian punishment for temporarily abandoning one's province of residence for some number of days effectively abrogates Canada’s Constitution Act of 1982, Part I, paragraph 6 (1) which states: Every citizen of Canada has the right to enter, remain in and leave Canada. While many of our rights under the Canadian Charter of Rights and Freedoms are subject to exclusions and restrictions, this is one right that stands alone, unfettered and unlimited – except by provincial bureaucracy which seeks to limit it to an enumerated period of days.

Has anyone ever launched a constitutional challenge to the provincial regulations? It seems to me that most snowbirds find the potential loss of their health-care policy such a fearsome threat that they are effectively denied that fundamental mobility right that is theirs under the Constitution.

Perhaps the CSA should augment its lobbying efforts with a constitutional challenge in the federal court.

Les L. Petry

Response :
The CSA has extensively reviewed these issues and we have been given the opinion that, even should we win in the Supreme Court of Canada, the provinces would not necessarily comply. This is exactly the situation which we have with the provinces relating to the ridiculously low payments for medical bills outside of Canada. The current federal government agrees with us regarding the meaning of the Canada Health Act and has sent a letter to all provinces asking them to comply. Very few have done so and Alberta’s paltry $100 per day in-hospital payments when outside of Canada are egregious, to use a legal word. The costs of mounting this Supreme Court challenge would also be prohibitive and beyond the financial capability of CSA and its members.

We have tried, though. Several years ago, we took the Ontario government to court when the then-NDP government cut the benefits from $400 per day to $100 per day. Three judges ruled on our case, with one of them writing a scathing minority opinion of the Ontario government’s actions. The other two judges said that the Ontario government needed more time for “consultation” with the federal government, as was outlined in the act. This was nonsense, in my opinion. This issue has been ongoing since 1975, when B.C. unilaterally cut its out-of-Canada hospital payments to $75 per day, where it remains today. What more consultation could they possibly need??? Fortunately, when the Harris government was elected in Ontario, they restored the payments to the $400 level, as they had promised CSA that they would. We were working on a formula to keep up with inflation, but they were not able to implement it as they were voted out of power. The current Ontario Liberal government has been unresponsive to CSA’s many requests to pay what the Canada Health Act requires.

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