Lorne Sossin

Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada

Historically, the Supreme Court of Canada has avoided direct intervention in health care policy-making. This posture changed dramatically with the release of the Chaoulli decision in June 2005. In a narrow four-to-three decision, the Supreme Court struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebecs Charter of Human Rights and Freedoms. Three of the four judges in the majority also found the provisions violate section seven of the Canadian Charter of Rights and Freedoms. In a blistering dissent however, the three judges in the minority found that the insurance restriction violated neither the Quebec nor the Canadian charters. The result makes further Charter challenges to similar laws in other provinces inevitable, but the question of whether they will or should succeed remains contested. In September 2005, a conference was convened at the University of Toronto to discuss the legal implications of the Chaoulli decision. Some of the top Canadian scholars in the fields of health law and health policy were brought together to exchange ideas and to chart the potential legal course for Canada in the decisions wake. Access to Care, Access to Justice contains all the papers given at this conference. Edited by Colleen Flood, Lorne Sossin, and Kent Roach, the collection explores the role that courts may begin to play in health care and how this new role is of crucial importance to the Canadian public and their governments. As litigators for those who favour more freedom to provide private health care and aggrieved patients marshal their legal resources, provinces across the country are considering their options. Some are seeking guidance on how to better insulate themselves from review; others may welcome such challenges as a way to revisit the provisions of the Canada Health Act. The contributors to Access to Care, Access to Justice examine how the future of Canadian health care is likely to be determined both in the courts and in the legislatures and scrutinize how these changes will affect Canadians.

Bureaucratic Disentitlement, Vulnerable People and the Appeal of Review

This important study highlights how little we know and how much we ought to know about how administrative disputes arise (or, more to the point, fail to arise). The authors, David Cowan and Simon Halliday, state that the purpose of their study is to test the explanatory models of disputing behaviour which exist in the general socio-legal literature. The study does far more than this, however, and provides a rare window into not just the practice of seeking redress for adverse discretionary decisions but also the perception of that redress from the vantage of those affected. This study is all the more timely and important in light of the kind of administrative disputes involving invariably vulnerable parties on which it focuses – that is, challenges of negative determinations for public housing. Reliable, empirical work among vulnerable groups in the administrative decision-making sphere is rare – especially studies, like this one, which emphasize interviews and data culled both from case-workers and welfare recipients across two different geographical settings. Because of the empirical heavy lifting undertaken by the authors, however, some of the richest normative questions raised by the study, such as the role of trust and dependence in the nature of bureaucratic authority, are only lightly touched and remain to be more fully developed.

Access to Justice and Beyond

This essay examines Michael Trebilcocks access to justice scholarship from his work on consumer protection in the 1970s to his 2008 Legal Aid Review. Trebilcocks approach over the years has consistently been informed by a consumer welfare perspective, including a concern that the middle class be included in access to justice initiatives, and by a broad concern with access to markets and regulatory regimes as well as to adjudication. Trebilcocks use of public choice analysis, however, has made him more sceptical about the use of regulatory regimes to lessen or simplify disputes. The authors argue that the increased resources that would be required to add the middle class to legal aid might be better directed at the replacement of a costly court-based system in areas such as family law with a more efficient and holistic tribunal structure and by a return to the political process to produce regulation to limit and simplify disputes.

Ontario’s Administrative Tribunal Clusters: A Glass Half-Full or Half-Empty for Administrative Justice?

Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal rights are fragmented between agencies with diverse norms and mandates. The provincial government of Ontario in Canada has recently enacted a novel strategy called tribunal clustering to confront these challenges. This paper explores the structure and rationales behind Ontario’s new tribunal clusters and compares these with reform models in Australia and the United Kingdom. The authors argue that tribunal clusters offer a flexible approach to institutional change that is responsive to the needs of users and can ultimately improve access and the quality of decision making. In their view, clusters represent a promising first step – but not a final destination – to achieve a more effective and coherent system of administrative justice.

Justiciability, Access to Justice and the Development of Constitutional Law in Canada

Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigants duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of Charter rights. The authors ultimately posit that the government should have a duty of restraint in using summary procedures to end public law litigation, and courts should be reluctant to permit the government to preclude such litigation aimed at advancing the evolution of the Charter from reaching hearings on the merits.