Chaoulli at centre of Alberta health-care challenge

Two Albertans who sought care outside Canada after suffering in pain while on waiting lists are launching a constitutional challenge to the Alberta government’s health care system calling it a “monopoly.”

On Oct. 17, the Alberta Court of Queen’s Bench will hear two applications that aim to extend the Supreme Court of Canada’s 2005 decision in Chaoulli v. Quebec (Attorney General). Calgary lawyer John Carpay, president of the Justice Centre for Constitutional Freedoms, will represent Darcy Allen and Richard Cross who are challenging the constitutionality of s. 26(2) of the Alberta Health Care Insurance Act.

“In a nutshell, we’re seeking to extend the Chaoulli ruling of the Supreme Court of Canada in 2005 in which the court held that access to a waiting list is not access to health care,” says Carpay. “We’re arguing the prohibition on private health insurance, which the court in Chaoulli unanimously found, is a violation of the Charter s. 7 right to life. We’re urging the Alberta Court of Queen’s Bench to adopt the ruling in Chaoulli that this violation is not justified.”

This is the first time a court will hear an application to extend Chaoulli beyond Quebec.

In 2005, the SCC ruled the ban on private health insurance violates the right to “life, liberty, and security of the person” as set out in the Canadian Charter of Rights and Freedoms. It considered that thousands of Canadians suffer while on waiting lists for diagnosis or surgery and explained how such suffering is caused by the government’s “virtual monopoly” over health care.

According to the JCCF, Allen, a dentist, was forced to stop practising in 2009 due to “debilitating and continuous back pain” that began two years earlier as a result of a hockey injury. While he had received a referral for surgery in Alberta for May 2009, the procedure could not be performed until September 2010 and was then pushed to June 2011. Unable to work and facing another 18 months of pain, in December 2009 Allen paid $77,503 out of pocket for back surgery in Montana. He did not apply for out-of-country treatment because he believed his application would be rejected.

Cross, a Calgary businessman, paid $24,236 for surgery in Arizona after living with severe back pain from 2006 to 2010. He found it difficult to perform even simple tasks such as tying his shoes and slept on a hard floor at night. After surgery in May 2010, Cross applied to Alberta’s Out-of-Country Health Services Committee for reimbursement and was denied. The committee’s appeal panel also denied his request.

Both Allen and Cross are seeking reimbursement for the expenses they incurred to obtain out-of-country treatment.

The province of Alberta has argued in the Cross case, it was not about delay in obtaining medically necessary treatment but about obtaining a procedure his doctors held was not an option for treating his condition. The province also holds that both Allen and Cross failed to prove the ban on private health insurance caused the delays and pain they experienced.

Their hearing will be held at the Calgary Courts Centre beginning Thursday at 10 a.m.

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