Health Care and Human Rights after Auton and Chaoulli

The judicial approach to the interpretation of entitlement to health care under the Charter of Rights and human rights legislation has tended to swing between interventionist and non-interventionist poles. In Eldridge, the Supreme Court held that a failure to provide for sign language interpretation as a medically required service where this was necessary to ensure equal access to health care was in breach of the equality provisions of the Charter. However, in the subsequent Auton case, the Court rather narrowly circumscribed the limits of this approach. Here the Court held that the failure to provide a particular treatment for autistic children was not an infringement of their equality rights. The Court held that the Canadian system of public health care was, by its very terms, a partial health plan and its purpose was not to meet all medical needs. It followed that exclusion of particular non-core services could not, in itself, be seen as less favourable treatment. The Chaoulli decision marked a return to a more interventionist approach with the Court holding (by a narrow majority) that the prohibition on private health insurance provided for in Quebec law was inconsistent with s. 1 of the Quebec Charter. Three of the majority held that the prohibition also violated s. 7 of the Canadian Charter and was not justifiable under s. 1. This decision has been cited in over 60 decisions of courts and tribunals (to mention only those included in the Canlii database). However, just how important has the Chaoulli decision been in terms of the overall approach of the Canadian courts? This article examines the post- Chaoulli case law on health care and the Charter of Rights and/or human rights legislation. It suggests that Chaoulli – whatever about its impact in the legislative arena – has had a somewhat limited impact to date on the case law concerning health care and that Auton has clearly had a greater impact to date. It argues that the subsequent case law points to the weakness of the approaches taken in both Auton and Chaoulli. The narrow approach adopted in Auton can lead to equality claims being dismissed without any proper discrimination analysis and shows the manner in which a broad use of the ‘benefit provided by law’ requirement may weaken equality jurisprudence. Conversely the case law highlights the fact that the courts – unless they wish to develop positive obligations under s. 7 – will have to turn down much harder cases than Chaoulli and raises the question as to why a Court anxious to limit intervention in this area took such an interventionist position on the issue of private health care.

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