Course:Law3020/2014WT1/Group G

Section 11 of the Hospital Insurance Act
11. No insurer may enter into or maintain an insurance contract that includes coverage for the cost of an insured service furnished to a resident.


 * No person may establish or maintain an employee benefit plan that includes coverage for the cost of an insured service furnished to a resident.


 * An insurance contract or employee benefit plan inconsistent with the first or the second paragraph, as the case may be, that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract must be adjusted accordingly unless the beneficiary of the goods and services agrees to receive equivalent benefits in exchange.


 * Nothing in this section prevents an insurance contract or an employee benefit plan that covers the excess cost of insured services rendered outside Québec from being entered into or established.


 * “Insurer” means a legal person holding a licence issued by the Autorité des marchés financiers that authorizes it to transact insurance of persons in Québec.


 * “Employee benefit plan” means a funded or unfunded uninsured employee benefit plan that provides coverage which may otherwise be obtained under a contract of insurance of persons.


 * An insurer or a person administering an employee benefit plan that contravenes the first or second paragraph is guilty of an offence and is liable to a fine of $50,000 to $100,000 and, for a subsequent offence, to a fine of $100,000 to $200,000.

Source: http://www.canlii.org/en/qc/laws/stat/rsq-c-a-28/latest/rsq-c-a-28.html

Ratio:
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Analysis:
In relation to Mr. Z having to wait for his surgical procedure, the court did find that delays that are the necessary result of waiting lists increase the patient's risk of mortality or the possibility of their injury/condition becoming much worse. This waiting period is often filled with pain and a lack of enjoyment of patients life due to their urgent need for medical treatment. These waiting times causing pain and lack of enjoyment of life affects the right to life and to personal inviolability. This is a clear violation of an individual's section 7 Charter right.

[38-43]

When a Charter right is infringed upon, the provision that infringes upon the right can sometimes be protected under s.1. The objective of the HOIA and the HEIA is to promote health care in Quebec that is of high quality even if the citizen lacks the adequate funds. Therefore, the purpose of the provisions being examined are to prohibit private insurance in order to preserve the integrity of the public health care system in Quebec. There is no proportionality between the measure adopted to attain the objective and the objective itself.

In order to be justified under s.1 of the Charter there must be a rational connection and minimal impairment, but there is no rational connection with the objective or preserving the public plan, as well Quebec was not able to prove that there was minimal impairment by the provisions being examined.

Hence, the evidence presented to the courts shows that delays in public health care are widespread and in some cases can have serious consequences such as death as patients wait for proper medical attention. This evidence shows that the prohibition against private health care insurance/systems can lead to physical and psychological suffering that meets the threshold test of seriousness. [112][123]

Conclusion/Holding:
According to the Supreme Court of Canada the appeal should be allowed. The Court decided that s.15 of the HEIA and s.11 of the HOIA are inconsistent with the Quebec Charter.

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