Dr. Rolf Barth

The appellant, acting in person and representing her deceased husband's estate, appealed a decision finding that the former six-month sobriety requirement for liver transplants was moot and that the current eligibility criteria for alcohol-associated liver disease patients do not infringe sections 7, 12, and 15 of the Charter.

The Court of Appeal dismissed the appeal regarding the mootness of the former regime and the constitutionality of the current criteria, finding the criteria were based on medical evidence rather than stereotyping.

The court allowed the appeal relating to the Living Donor Criteria, holding that its constitutionality should only be decided in a live dispute.

A dissenting judge would have dismissed the application entirely on the basis that the self-represented appellant lacked the capacity to bring forward a complex constitutional claim under the public interest standing test.

The applicant widow brought a constitutional challenge against the eligibility criteria for liver transplants, arguing that the requirement for patients with alcohol-related liver disease to demonstrate abstinence or undergo rigorous multidisciplinary screening discriminated against them on the basis of their alcohol use disorder.

The court found that while the estate had standing to bring the claim, the challenge to the historical six-month sobriety rule was moot.

On the merits of the current criteria, the court held there was no violation of sections 15(1), 7, or 12 of the Charter, as the criteria were based on the best available medical evidence to allocate scarce organs to those most likely to have successful outcomes.

The court also found that the living donor program criteria were clinical policies not subject to Charter scrutiny.