Health care rights in Canada: the Chaoulli legacy

The 2005 Supreme Court decision of Chaoulli v. Quebec (A.G.) is the most significant Canadian case vis-à-vis health care rights in the last decade. The two litigants were Dr. Chaoulli, a physician originally from France who was frustrated with governmental limits on his ability to practice privately, and George Zeliotis, a sixty-seven-year-old patient with hip and heart conditions who had to wait nine months for a hip operation. Mr. Zeliotis thought that if he were able to purchase private insurance then he could have financed his hip operation in the private sector. Chaoulli and Zeliotis were unsuccessful at both the trial and appeal levels but struck controversial success before the Supreme Court of Canada. In this paper, we first set out the rationale for the majority's decision in Chaoulli and critique four assumptions/conclusions inherent in this reasoning. We then discuss the Quebec government's politically astute response to this controversial decision, in the form of a White Paper and Bill 33. The Quebec government seemed to respond to Chaoulli by liberalizing the law relating to private health insurance. But it did so only for three areas and it also significantly reduced any incentive to buy private health insurance by putting in place measures in the public health care system to cap waiting times in those three specific areas. This nimble policy response balanced the need to respond to the Supreme Court's decision with the need to protect the publicly-funded health care system. However, as we discuss, this response may be injeopardy due to changing political circumstances, in particular the election of the Action démocratique du Québec (ADQ), the new official opposition in Quebec. Finally, we explore how, across Canada, Chaoulli has inspired a range of different claims to health care based on Charter rights. We discuss three types of cases: first, Charter cases that have sprung up post Chaoulli arguing for greater access to publicly-funded care; second, Charter cases that (similar to Chaoulli) seek to liberalize present regulations and open up the system to further private financing; and third, challenges based in private law, for example tort law, challenging limitations in publicly-funded care.