Litigating Canadian Medical Monopolies: One Issue That is Simply Not Going Away

Earlier this month The Canadian Constitutional Foundation (“CCF”) announced that it would be supporting Lindsay McCreith’s challenge to Ontario’s health care system. While this case is only at the threshold of the Ontario court system, it is more than possible that this case will eventually find itself before the Supreme Court of Canada (“SCC”). Indeed, following on the heels of the SCC’s controversial Auton v. British Columbia, 2004 SCC 78 [Auton], and Chaoulli v. Quebec (Attorney General), 2005 SCC 35 [Chaoulli], decisions, the case of Lindsay McCreith offers yet another potential example of polemical rights-based litigation aimed at health care policy reform.

After suffering a seizure in January of 2006, Lindsay McCreith, a retired autobody shop owner from Newmarket, Ontario, was told that he likely had a brain tumour. Mr. McCreith was further informed by his doctors that he would have to wait until the end of May for an MRI test to determine if the tumour was malignant or benign. Unwilling to risk the possible progression of brain cancer, McCreith travelled to Buffalo, where an MRI test revealed that the tumour was, indeed, cancerous. Even with the MRI result in hand, McCreith was told that he would have to wait up to eight months for surgery within Ontario. McCreith opted to have surgery in Buffalo in March of 2006, at the cost of $27,600 (U.S.).

The Ontario government now refuses to reimburse McCreith’s medical costs because he had not received government approval for out-of-country surgery. The approval process, however, would have likely taken considerably longer than the month interval between the MRI test and the actual operation.

In the words of John Carpay, Executive Director of the CCF,

“Ontario’s laws make it illegal to spend your own after-tax dollars on your own health, and the health of your loved ones. This violates the Charter right to life and security of the person”.

Certainly, as McLachlin C.J. declared at para. 123 of Chaoulli, “access to a waiting list is not access to health care”.

The Chaoulli case and its aftermath have provoked considerable discussion here at in posts by Dean Patrick Monohan & Yu-Sung Soh. It may be to our advantage to momentarily return to these thoughtful comments and concerns as Lindsay McCreith’s case slowly winds itself through the court system.

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