Course:Law3020/2014WT1/Group G/Case Overview

Facts:
In Quebec at this time the Quebec government was prohibiting Quebec residents from taking out insurance to obtain private sector health care services that were presently already available under Quebec's current public health care plan. Z was experiencing a number of health problems that lead him to speak out against the waiting times he was experiencing in the public health care system in Quebec. A physician, C, has also been continuously trying to have his home-delivered medical activities recognized as well as to obtain a license to operate an independent hospital in his city; he has been unsuccessful thus far.

Both Z and C have taken issue with the validity of the prohibition on private health insurance provided for in s.15 of the  Health Insurance Act (HEIA) and s.11 of the  Hospital Insurance Act (HOIA). They claim that these prohibitions deprive them access to health care services that do not come with extraneous waiting times that they currently receive with the public system.

s.15 of the Health Insurance Act
15. An insurer or a person administering an employee benefit plan may enter into or maintain an insurance contract, or establish or maintain an employee benefit plan, as the case may be, that includes coverage for the cost of an insured service furnished to a resident or temporary resident of Québec, only if

(1) the insurance contract or employee benefit plan does not cover any insured service other than the insured services required for a total hip or knee replacement, a cataract extraction and intraocular lens implantation or any other specialized medical treatment determined under section 15.1, and those required for the provision of the preoperative, postoperative, rehabilitation and home care support services described in section 333.6 of the Act respecting health services and social services (chapter S-4.2);

(2) the insurance contract or employee benefit plan includes coverage for the cost of all insured services and all preoperative, postoperative, rehabilitation and home care support services referred to in subparagraph 1, subject to any applicable deductible amount; and

(3) the coverage applies only to surgery performed or any other specialized medical treatment provided in a specialized medical centre described in subparagraph 2 of the first paragraph of section 333.3 of the Act respecting health services and social services.

An insurance contract or employee benefit plan inconsistent with subparagraph 1 of the first paragraph that also covers other goods and services remains valid as regards those other goods and services, and the consideration provided for the contract or plan 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 or the excess cost of any medication of which the Board assumes payment from being entered into or established. Nor does anything in this section prevent an insurance contract or an employee benefit plan that covers the contribution payable by an insured person under the Act respecting prescription drug insurance (chapter A-29.01) 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 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/cqlr-c-a-29/latest/cqlr-c-a-29.html

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

Issue(s):
The main question at hand in this case is whether Quebec has the constitutional authority to establish a single-tier health plan while discouraging a second private tier health sector through specific prohibitions and whether these prohibitions infringe a persons s. 7 right of Canadian Charter of Rights and Freedoms?

If so, is this deprivation of a persons s. 7 right of Canadian Charter of Rights and Freedoms in accordance with the principles of fundamental justice and can it be justified under s.1 of the Canadian Charter of Rights and Freedoms or under  s. 9.1 of Quebec Charter?

From the case*** cite

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.