Cambridge LLP lawyers, Scott Fairley and Joan Kasozi, successfully brought an application for judicial review on behalf of the Canadian Snowbird Association (“CSA”), alleging that the Ontario Government (“Ontario”) had exceeded its executive powers in eliminating the out-of-country travelers programme of insurance coverage for Ontario residents under the Ontario Health Insurance Plan (“OHIP”). While Ontario had announced its intent to do so in the spring of 2019, it delayed implementation until the beginning of this year. The CSA commenced litigation late last fall after having failed to persuade Ontario to change its position prior to implementation. 

In a unanimous decision for a three-judge panel, Justice Harriet Sachs quashed the regulation which terminated OHIP’s Out-of-Country Travellers Program (OOCTP), as beyond the powers conferred upon the Lieutenant Governor in Council by the Ontario Legislature under the Ontario Health Insurance Act (“OHIA”). By its terms, this required conformity with the Canada Health Act (“CHA”) assurances of the “portability” of health insurance outside the province, at least to the level that provinces provided for insured medical services rendered within the province.

Ontario and most other provinces have provided coverage for medical services rendered to their residents temporarily outside the country, at progressively lower percentages of actual costs over time. However, Ontario was the first and only province that attempted to abandon this commitment altogether. 

Courts across Canada, including the Supreme Court, have generally been deferential to provincial government policy decisions on health care expenditures. This Divisional Court decision represents a notable departure from that trend. Previously, the CSA brought a challenge to an Ontario reduction of benefits under the OOCTP in 1994 in Collett v. Ontario (Attorney General)  [1995] O.J. 776, in which case the Divisional Court rejected the challenge as being “premature”, based on statutorily prescribed consultation procedures between federal and provincial governments with respect to federal health care transfer payments, which the Attorney General successfully argued had to be exhausted before the CSA’s challenge could be termed “justiciable”.

Soon thereafter, the Conservative Ontario Government under Mike Harris restored OOCTP benefits to the pre-Collett level and there was no appeal from that decision. In the result, Collett remained good law, which the Divisional Court reapplied to a subsequent challenge to the OOCTP in 2012: Soth v. The Queen 2012 ONSC 5172.

Fast forward to the late fall of 2019 when the CSA again challenged Ontario’s treatment of out of country health insurance coverage, this time for the Ford Government’s elimination of the OOCTP altogether. Crown counsel proffered essentially the same defence of non-justiciability for a third time with two Divisional Court precedents in its favour. Thus, it is noteworthy that the Divisional Court departed from both Collett and Soth in vindicating the CSA on point.

Based on the CSA’s submissions, Justice Sachs agreed: “[f]irst, there is no doubt that Ontario has violated the portability criterion and second, Ontario has shown no willingness to engage in consultation…” with federal authorities, finding Ontario’s justiciability defence “somewhat disingenuous… [t]he fact remains that it failed to respond to any of Canada’s requests to discuss the matter, either before or after the impugned regulation was enacted”. 

In the event of an appeal on its ultra vires finding, the Court commented and ultimately rejected the CSA’s additional submissions that abolition of the OOCTP violated Ontarians’ rights to life and security of the person and equal benefit of the law, respectively, under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Here, the Court reaffirmed previous judicial authority for the proposition that Charter section 7 does not confer a constitutional entitlement to compel public expenditures for health care, but only offers protections from a governmental deprivation of such rights. Additionally, the Court accepted Crown arguments disputing the standing of the CSA and Mr. Slack personally to raise Charter claims under ss. 7 and 15. 

Having found Ontario’s abolition of the OOCTP to be ultra vires, the Court could have abstained from addressing the Charter altogether. In fact, immediately following release of the Divisional Court judgment, the CSA has publicly stated that it is happy with the Divisional Court decision as rendered and expressed the hope that the Ford Government will “respect” the result. Although the Crown initially indicated it would seek leave to appeal to the Ontario Court of Appeal and filed notice of its intention to do so, it later withdrew its application rendering the Divisional Court decision final and binding. 

Overall, the Canadian Snowbird decision, particularly as a final judgment from a unanimous three-judge bench, is a strong precedent in support of challenging the discretionary exercise of governmental powers in health care and with respect to other social policies. This is particularly the case where statutory constraints can be identified and invoked as they were by the CSA and where judicial deference to the executive powers of government is no longer appropriate or justifiable.