Chaoulli Comes to Alberta

Posted on Jul 10, 2012 in Latest Updates

JCCF takes Alberta government monopoly on health care to court

John Carpay announces new JCCF court action, Calgary Court House, July 10, 2012
  • “Access to a waiting list is not access to health care.”(Chaoulli v. Quebec, SCC)
  • Waiting lists violate Charterright to life, liberty and security of the person
  • Darcy Allen and Richard Cross launch court actions to extendChaoulli decision to Alberta
  • Plaintiffs suffered in pain for years, without timely access to surgery in Alberta

John Carpay announces new JCCF court action, Calgary Court House, July 10, 2012

The Justice Centre for Constitutional Freedoms (JCCF) today announced its support for Darcy Allen in his constitutional challenge to the Alberta government’s health care monopoly. Two separate court applications, filed in the Alberta Court of Queen’s Bench, seek to extend the Supreme Court of Canada ruling in Chaoulli v. Quebec to Alberta.

Dr. Darcy Allen was forced to stop practicing dentistry in Okotoks, Alberta, in 2009, due to extreme, debilitating and continuous back pain. What started in 2007 as a seemingly minor injury from playing hockey gradually turned the dentist’s life into a nightmare of around-the-clock pain. Normal tasks, like shovelling snow or tying shoelaces, became impossible. Dr. Allen finally received a referral for surgery in 2009, but no surgery could be performed until September of 2010. Later, his anticipated surgery date was pushed back to June of 2011.

Unable to work, unable to enjoy life, unwilling to continue living in a state of forced unemployment, and unwilling to face many more long months of continuous and severe pain, Dr. Allen paid $77,503 out-of-pocket for back surgery in Montana. This surgery significantly reduced his pain, and started his slow journey back to good health.

“Extending the Chaoulli judgment into Alberta will push Canada towards adopting the superior health care policies of Asian and European countries,” stated Calgary lawyer and JCCF President John Carpay, who represents Darcy Allen and Richard Cross in their constitutional court actions.

“More significantly, extending the Chaoulli decision into Alberta, and eventually other provinces, will secure the right to life, liberty and security of the person for all Canadians,” continued Carpay.

For more information contact: John Carpay at jcarpay@jccf.ca.

Background information on Chaoulli v. Quebec

In the 2005 Chaoulli decision, the Supreme Court of Canada held that “access to a waiting list is not access to health care.” The Court struck down Quebec’s law prohibiting the purchase of private insurance for health services, holding that this law placed the citizens’ life, health and security at risk.

In Alberta today, citizens’ access to health care is being restricted by laws very similar to those which the Court struck down in Quebec. In Chaoulli, the Court noted that Quebec’s legislative provisions, similar to those in Alberta Health Care Insurance Act, effectively created a “virtual monopoly” for the public health scheme. The Court held: “The state has effectively limited access to private health care except for the very rich, who can afford private care without need of insurance. This virtual monopoly, on the evidence, results in delays in treatment that adversely affect the citizen’s security of the person. Where a law adversely affects life, liberty or security of the person, it must conform to the principles of fundamental justice. This law, in our view, fails to do so.”

Darcy Allen and Richard Cross seek a Court Declaration that Alberta’s ban on private health insurance, which creates what the Court in Chaoulli calls the government’s “virtual monopoly” over health care, be struck down as violating the Charter Section 7 right to life, liberty and security of the person.

Darcy Allen seeks to secure their right to life, liberty and security of the person, as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. They also seek a Declaration that they are entitled to reimbursement of the expenses they incurred to obtain medically necessary surgery out-of-country.

Studies and rankings by the World Health Organization, the Organisation for Economic Co-operation and Development, the Frontier Centre for Public Policy, and other non-partisan authorities show that Canada’s health care performance ranks behind that of European and Asian countries. While spending more per person on health care, Canada has longer waiting lists than other countries. France, Germany, and Switzerland are examples of countries that allow private health care, and private health insurance, to co-exist alongside their public health systems. There are no significant waiting lists in these countries.

The Alberta Legislature has discretion to choose from a wide variety of health policies, and many legislative and regulatory options, that do not violate the Applicant’s Charter section 7 rights. Where the government of Alberta is able to choose health care policies, legislation, and regulations which do not violate the Charter, it must do so.

When Tommy Douglas established Canada’s first government-run health program in Saskatchewan, he did not ban private health care. A recent Ipsos Reid poll reveals that 76% of Canadians support the right to buy private health insurance for all forms of medically necessary treatment, including cancer care and heart surgery. Extending the Chaoulli judgment into Alberta will push Canada towards adopting the superior health care policies of Asian and European countries. More significantly, extending the Chaoulli decision into Alberta and other provinces will secure the right to life, liberty and security of the person for all Canadians.

Background information – Darcy Allen

Dr. Darcy Allen, practiced dentistry in Okotoks, Alberta, from June of 2004 until he was forced to stop working in July of 2009, due to extreme, debilitating and continuous back pain.

A summary of Darcy Allen’s chronology is as follows:

  • In December of 2007, Darcy Allen injured his back while playing hockey.

  • From January to September of 2008, Darcy Allen experienced moderate but increasing lower back pain.

  • In September of 2008, an MRI confirmed bulging and deterioration of the lumbar discs. Neither physiotherapy nor acupuncture brought significant improvement.

  • By September of 2008, Darcy Allen’s pain had become severe.

  • From September of 2008 to May of 2009, Darcy Allen’s pain continued to worsen, rising from severe to debilitating and unmanageable. When not working, he was lying on his back, in bed or on the floor.

  • In February of 2009, the case was assessed as “serious” by Dr. Bowman, who prescribed Lyrica, which was ineffective in addressing pain, and also brought negative side-effects.

  • In February and April of 2009, facet injections were administered by Dr. Bowman, but provided only marginal and temporary relief from pain.

  • In May of 2009, Dr. Jacques Bouchard recommended surgery. However, Darcy Allen had to first wait for one year for a discogram, without which surgery would not be scheduled. After the discogram was obtained, the wait list for surgery would be an additional year: a total of a two-year wait at the minimum before surgery.

  • By May of 2009, the pain had become extreme, debilitating and unmanageable.

  • In July of 2009, Darcy Allen stopped working at his dentistry practice entirely, having already reduced his working hours significantly in prior months.

  • In September of 2009, Darcy Allen obtained an early discogram, having waited four months rather than twelve months, thanks only to the intervention of the Alberta Health Minister’s Office. Surgery was scheduled to take place one year later, for September, 2010.

  • In December of 2009, Darcy Allen’s anticipated surgery for September 2010 was pushed back even further to June of 2011.

  • Unable to wait in a state of extreme, debilitating and unmanageable pain for a year, and unwilling to remain in a state of forced unemployment, Darcy Allen scheduled surgery at the Benefis Hospital in Great Falls, Montana.

  • Darcy Allen received this surgery on December 18, 2009, for which he paid $77,503 of his own money.

  • The surgery brought about a significant reduction in pain, and a gradual return towards good health.

In December of 2009, the Applicant’s choices were to pay for out-of-country surgery himself (paying out-of-pocket, because private health care insurance is illegal in Alberta), or to continue suffering in a state of extreme and continuous physical and psychological pain for an additional predicted eighteen months, or a longer period given the uncertainty of further delays arising.