COURT OF APPEAL FOR ONTARIO

CITATION: Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478

DATE: 20220622

DOCKET: C69447

Feldman, MacPherson and Lauwers JJ.A.

BETWEEN

Debra Selkirk and The Estate of Mark Selkirk

Applicants (Appellants)

and

HMQRO as represented by the Ministry of Health and Long-Term Care,¹ Trillium Gift of Life Network and University Health Network

Respondents (Respondents)

Debra Selkirk, acting in person and for The Estate of Mark Selkirk

Ewa Krajewska, Logan Crowell and Heather Webster, for the respondents Trillium Gift of Life Network and University Health Network

Heard: February 23, 2022 by video conference

On appeal from the judgment of Justice Jasmine T. Akbarali of the Superior Court of Justice, dated March 31, 2021, with reasons reported at 2021 ONSC 2355.

MacPherson J.A.:

A. introduction

1The appellants Debra Selkirk and the Estate of Mark Selkirk appeal from the judgment of Akbarali J. of the Superior Court of Justice, dated March 31, 2021. In this decision, the application judge determined: (1) the six-month wait for transplant (the “Wait”) imposed on Ms. Selkirk’s late husband, Mark Selkirk, and on all patients with liver failure caused by alcohol (“ALD patients”) from 1991-2018 is moot; (2) the current Trillium Gift of Life Network (“TGLN”) liver transplant waitlist criteria (the “Criteria”) for ALD patients do not infringe sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms; and, (3) the current Living Donor Criteria established by the University Health Network (“UHN”) are not subject to Charter scrutiny.

2The appellants challenge all three of these components of the application judge’s decision.

B. facts

3The appellant, Debra Selkirk, appears both in her personal capacity and as the representative for the estate of her deceased spouse Mark Selkirk. Mr. Selkirk sadly died in November 2010 of alcohol-related liver disease (“ALD”).

4At the time of his death, Mr. Selkirk was not eligible for a transplant under UHN’s former transplant regime.

5In her application, the appellant chose to challenge three different transplant regimes that were in force at various times between 2010 and 2020.

6The first regime the appellant challenged was the one in force in 2010 when Mr. Selkirk died. For liver transplants at the time of Mr. Selkirk’s diagnosis and until May 2018, the eligibility criteria included a firm requirement that ALD patients abstain from alcohol use for six months prior to being placed on the waitlist. This six-month rule was the original focus of the application which was commenced in 2015.

7The second regime (the Criteria), flowing from a pilot program commenced in May 2018, came into force in November 2020 and continues to apply. The Criteria identify patient listing indications. There are three general requirements that apply to everyone being considered for a liver transplant: (1) therapeutic options, other than liver transplantation, have been exhausted; (2) there is an absence of obvious contraindication for transplant; and (3) the expected five-year survival post-transplant is greater than 60 percent.

8To help ensure optimal transplant outcomes, in addition to meeting standard transplant listing and contraindication criteria, ALD patients must also be carefully assessed for a higher risk of return to problematic alcohol use. In assessing whether an ALD patient has a higher risk of return to problematic alcohol use, the Criteria direct the transplant team to consider the following factors:

a) the patient does not meet criteria for moderate to severe alcohol use disorder (“AUD”) likely to result in a return to problematic drinking in the post-transplant period;

b) the patient is willing to commit to abstinence from alcohol;

c) the patient is willing to commit to AUD treatment pre-and post-transplant;

d) the patient has a history of no more than one previously failed AUD treatment;

e) absence of comorbid active substance use disorder, excluding cannabis and tobacco;

f) absence of untreated and refractory severe psychiatric comorbidity likely to interfere with treatment adherence;

g) other than in relation to alcohol use, no history of recurrent problems with adherence to medical treatment and repeated inability to follow up with or contact the patient; and

h) the patient has a dedicated support person available to assist them through the process and has steady housing.

9The third regime the appellant challenged is the very different assessment that applies to potential liver transplants involving a live donor. Specifically, the crucial question raised by the Living Donor Criteria is whether it is subject to Charter scrutiny in the context of Ms. Selkirk’s application and/or whether it is subject to Charter scrutiny at all if UHN is not subject to Charter scrutiny.

C. issues

10I would frame the issues as follows:

1. Does the appellant have standing to represent her spouse’s Estate in these proceedings?

2. Did the application judge err by concluding that the challenge with respect to the Wait imposed on Mr. Selkirk was moot?

3. Did the application judge err by concluding that the current Criteria for ALD patients do not infringe sections 7 and 15 of the Charter?

4. Did the application judge err by concluding that the current Living Donor Criteria established by UHN are not subject to Charter scrutiny?

D. Analysis

(1) Standing

11At the application hearing, the appellant purported to represent herself and her spouse’s Estate. It is possible that, technically speaking, this representation fell afoul of rr. 9.01 and 15.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. For three reasons, I do not regard this as a problem.

12First, the respondents did not object to this representation in either the Superior Court of Justice or this court.

13Second, the principal rationale for these rules – a non-lawyer should not act on behalf of beneficiaries when seeking money on their own behalf – is not engaged in this case.

14Third, and crucially, Ms. Selkirk’s representation of the Estate on this appeal, through her factum, supporting material and oral argument, was of a high quality indeed.

15Combining these reasons, I would apply r. 2.03 and say that, in this case, it is “necessary in the interest of justice” to dispense with strict compliance with the rule(s).

(2) The Wait issue

16On the second issue, the constitutionality of the Wait that was part of the regime for the allocation of scarce donated livers from 1991-2018, the application judge concluded:

I agree with the respondents that the question of the constitutionality of the six-month rule, as it existed prior to the Criteria, is moot. It would not affect any of the rights of any of the parties were the court to resolve it, nor would it impact the rights of the public because the six-month rule is no longer applied as it was in the past.

I also conclude that I should not exercise my discretion to hear it, because, as with the issues around Mr. Selkirk’s rights, it is outside the role of the court to make pronouncements that would be nothing more than an academic exercise.

17I agree with this analysis and conclusion. Sadly, Mr. Selkirk, who was subject to the Wait, passed away in November 2010. And the Wait was removed from the criteria for the allocation of scarce livers, first as part of a Pilot Program in May 2018 and then permanently by the adoption of the new Listing Criteria in November 2020. The combination of these two important facts makes the application judge’s conclusion on this issue entirely reasonable.

(3) The current criteria for ALD patients issue

18On the third issue, the appellant submits that the application judge’s Charter analysis was flawed and that she should have concluded that the current Criteria applying to liver donations and transplants are arbitrary: ss. 7 and 15 of the Charter, and grossly disproportionate to their object: s. 7 of the Charter.

19I do not accept this submission. In my view, the application judge’s analysis of the Criteria underss. 7, 12 and 15 of the Charter is, in a word, exemplary. I cannot say it better and there is no need to say it differently.

20I note that the appellant contends that ALD patients are a vulnerable group and are subject to stereotyping, social prejudice and marginalization by some institutions and fellow citizens because of their regular and often extreme alcohol use. The appellant says that the application of the Criteria can create a further disadvantage for ALD patients by perpetuating this prejudice or stereotyping.

21I do not accept this submission. In my view, the Criteria are informed by, and flow from, the current medical evidence. The application judge concluded:

The Criteria, the approaches by the experts, and the approaches seen in the studies reviewed, all consider alcohol use because it is a medically relevant criterion when assessing the likely outcome of a liver transplant in a patient with ALD.

22In my view, this is an entirely reasonable conclusion.

23Finally, I observe that the appellant filed fresh evidence on the appeal. This evidence was a scientific article published by Lauren Carrique et al. in December 2021 entitled “Results of Early Transplantation for Alcohol-Related Cirrhosis: Integrated Addiction Treatment with Low Rate of Relapse”: 161:6 Gastroenterology 1896 (AGA Institute).

24I see nothing in this article that might change the result in this appeal. Indeed, the authors conclude, at p. 1905:

Evidence to support the 6-month [alcohol abstention] rule is mixed at best. Our pilot highlights the importance of considering a wide range of variables when assessing the risk for relapse for patients with ALD, rather than relying solely on the arbitrary passage of time.

25The former regime had the six-month rule. The current Criteria direct the transplant team to consider an amalgam of eight factors, four of which relate to alcohol history, current use and potential future use. I do not see how the proposed fresh evidence could possibly change the result reached by the application judge.

(4) The Living Donor Criteria issue

26On the fourth issue, the constitutionality of UHN’s Living Donor Criteria, I begin with the observation that the relationship between a living donor (usually a relative or close friend) and a recipient is very different from the relationship between a deceased donor and a potential recipient. Nevertheless, the application judge addressed it and concluded:

[T]he Living Donor Criteria is a policy shaped by medical criteria, as decisions about whether to proceed with a living donation turn on the medical risks and likely outcomes to both the patient and the donor. Patients and donors who are assessed for participation in the living donor program are the subject of clinical decision-making by the transplant team. The Living Donor Criteria is a guide for the transplant team on how to clinically assess patients. It is not a government function subject to the Charter.

27I decline to address this issue on the appeal. In my view, it would only be appropriate to consider it in a case where there is a living donor and a living recipient and a legal challenge arises in a context that, at the moment, I cannot envision.

Addendum

28My colleague dissents on only one of the four issues in play on this appeal, namely the appellant’s public interest standing. He concludes: “I dissent from my colleague’s affirmation of the appellant’s public interest standing and take no position on the application judge’s analysis of the constitutionality of the current eligibility criteria”.

29My colleague's reason for reaching this conclusion is:

Despite Ms. Selkirk’s dedication to her cause, in my view the application judge erred in granting her status as a self-represented public interest litigant. This complex and difficult case required the assistance of competent counsel.

30With respect, I do not agree, for several reasons, with this conclusion.

31First, the respondents did not raise the counsel issue in their materials or argument in the Superior Court. The respondents did advance several preliminary arguments in that court. The application judge set them out in this fashion:

On this application, I must determine the following preliminary questions:

a. Is declaratory relief unavailable with respect to Mr. Selkirk’s Charter rights and cause of death because

(i) a s. 24(2) Charter remedy is unavailable to a deceased person or their estate; (ii) the limitation period for declaratory relief has expired; or (iii) the relief sought is moot?

b. Is the declaratory relief with respect to the (un)constitutionality of the six-month rule moot because the Criteria no longer require a six month wait for an ALD patient to be listed?

32The application judge addressed all these issues under the heading Preliminary Issues. Under issue (a), she found that while declaratory relief was not available to redress Mr. Selkirk’s grievances, as he had passed away, his widow, Ms. Selkirk, should be granted public interest standing to assert her Charter claims and, if successful, to obtain a Charter remedy. The issue of whether Ms. Selkirk required counsel to do so was not raised or addressed as part of the considerations.

33Second, the respondents did not raise this issue in their materials or argument in this court as a ground of appeal. In their factum, the respondents mention the fact that the appellant appears in her personal capacity and as the representative of the Estate of her deceased spouse, but do not dispute her ability to do so. Rather, the respondents address the same issues as the appellant, especially Charter sections 7, 15 and 1. They also advance mootness as an issue relating to the 2010 version of the Criteria which suggests that they were alive to potential preliminary issues. Against this backdrop, the respondents did not appeal the application judge’s finding that it was necessary and appropriate to grant Ms. Selkirk public interest standing to assert the Charter claims, nor did they argue that she should have been represented by counsel.

34Third, in both the Superior Court and this court, the parties provided a very full factual record which, easily and sufficiently, grounds the required constitutional analysis.

35Fourth, in this case and indeed in most cases, it is inconceivable that the ALD patient could initiate a constitutional challenge to the statutory regime. In this case, Mr. Selkirk was diagnosed with acute alcoholic hepatitis in November 2010. On November 7 and 9, he was told that he did not meet the criteria for transplant. On November 24, Mr. Selkirk died. Obviously, it makes sense for someone other than the patient to be granted standing to bring the issue of the constitutionality of the Criteria to the courts.

36Fifth, Ms. Selkirk was, demonstrably, a good person to mount the constitutional challenge. The trial judge said this in her reasons for judgment. And I said it in my initial draft reasons:

Third, and crucially, Ms. Selkirk’s representation of the Estate on this appeal, through her factum, supporting material and oral argument, was of a high quality indeed.

37Sixth, with reference to my colleague’s comment that “[t]his complex and difficult case required the assistance of competent counsel”, I have a one word response: amicus. If the application judge was concerned about a non-lawyer making legal arguments in a “complex and difficult case” she could have asked for amicus to be appointed or discussed the possibility of the involvement of pro bono counsel to assist Ms. Selkirk. From the record, she did not think that this was necessary.

E. disposition

38I would permit the appellant Ms. Selkirk to represent her spouse’s Estate in this appeal.

39I would dismiss the appeal relating to the mootness of the former Wait regime for liver transplants involving deceased donors.

40I would dismiss the appeal relating to the constitutionality of the current Criteria for liver transplants involving deceased donors.

41I would allow the appeal relating to the current Living Donor Criteria. For clarity, I would neither affirm nor reverse the application judge’s reasons and conclusion on this issue. The constitutionality of the Living Donor Criteria should be considered in the context of a real dispute with actual parties involved in an assessment under the Living Donor Criteria.

42The respondents, fairly, do not seek their costs of the appeal. I would make no award of costs.

“J.C. MacPherson J.A.”

“I agree. K. Feldman J.A.”

Lauwers J.A. (dissenting):

A. overview

43The subject matter of Ms. Selkirk’s application is the constitutionality of the eligibility criteria for liver transplants for individuals with alcohol-associated liver disease under s.7 and s.15 of the Canadian Charter of Rights and Freedoms.

44Courts are sometimes required to resolve issues of great public importance. Decision-making in circumstances of uncertainty is always fraught. The consequences of getting it wrong – particularly in constitutional law – can be severe. The rules of public interest standing are intended in part to protect the public from the negative consequences of judicial decision-making where neither the evidence nor the adversarial context is adequate. This is such a case.

45Despite Ms. Selkirk’s dedication to her cause, in my view the application judge erred in granting her status as a self-represented public interest litigant. This complex and difficult case required the assistance of competent counsel. Ms. Selkirk was not able to muster sufficient evidence and argument to sustain her case, or to conduct effective cross-examination of the witnesses arrayed against her by the formidable legal teams representing the respondents.

46I admire Ms. Selkirk and recognize her to be an effective lay advocate for the rights of patients suffering from liver failure caused by alcohol consumption. Her interest is deeply personal. Her husband, Mark Selkirk, died in 2010 because he was not eligible for a liver transplant under the criteria then in force; he could not show six months' sobriety. The respondents admit that Ms. Selkirk’s passion – even this very lawsuit – has driven much of the work that led to the development of the current eligibility criteria.

47This case’s chronology shows that the issue determined definitively by the application judge and now by my colleagues – that the current eligibility criteria are constitutional – was late to this litigation, in my view much too late and without proper adversarial testing.² The criteria were adopted only in November 2020, fully five years after this application was launched. Moreover, the first definitive study of the operative effects of the Pilot Project eligibility criteria was released in 2021, months after the application judge’s decision was released. Although the Study comes to this court as fresh evidence, it is untested and lacks admissible supporting expert evidence.

48Neither the factual record nor the legal argument was adequate to address the complexity and importance of the constitutional issues this application raises, issues that far transcend the interests of a single applicant. This is constitutional law-making on the fly, and flies in the face of settled principle. The important constitutional issues Ms. Selkirk raises should be left for factual and legal exposition and disposition in a live case in which the factual record is properly developed, both sides represented by competent counsel, and the target is not moving. This might well be a case in which one or more interventions would be appropriate.

49I would allow the appeal, set aside the application judge’s judgment and dismiss the application.

B. Drilling Down

50Here I set the context for what follows. Ms. Selkirk’s claim has evolved and the evidence has continued to change, even after the argument before the application judge, as the fresh evidence application shows. At issue in this evolving application have been no less than four sets of eligibility criteria for liver transplants for individuals who have alcohol-associated liver disease. The first were those criteria in force when Mark Selkirk first sought a transplant in 2010 (the “old eligibility criteria”). These were still in force when Ms. Selkirk launched this application in 2015. In June 2018, the respondents started a Pilot Project using the “Pilot Program criteria”. In November 2020 these were permanently adopted and became the “current eligibility criteria”. Ms. Selkirk challenges elements of both the current eligibility criteria and the living donor criteria used by the UHN.

51What suffuses Ms. Selkirk’s oral submissions, her factum, and her cross-examination questions is her deep conviction that Trillium’s eligibility criteria continue to reflect the discriminatory stigma arising from a public sentiment that it is wasteful to give a donated liver to patients with alcohol-associated liver disease.

52Ms. Selkirk submits that the “barriers to transplant … included in all versions of Ontario’s liver transplant Criteria since 1991, caused the death of Mark Selkirk in 2010 and continue to end the lives of [alcohol-associated liver disease] patients based on their disability”. In her 2015 application, Ms. Selkirk challenged the requirement in the old eligibility criteria that transplant candidates must demonstrate six months’ sobriety to become eligible for a liver transplant. Her amended application challenges two aspects of the Pilot Project eligibility criteria and the current eligibility criteria. The first flaw is the alleged undue focus on a patient’s potential sobriety. Ms. Selkirk submits that this fixation on potential sobriety does not accommodate the reality that individuals suffering from alcohol-associated liver disease often require more than one course of treatment to achieve sobriety.

53The second flaw she alleges is the persistence, direct and indirect, of the “last-ditch” eligibility requirement that a candidate who has not met the other criteria must show six months’ sobriety to become eligible. Neither criterion, she argues, is medically indicated, which means that the current eligibility criteria still fall short of constitutionality.

54Ms. Selkirk might well be correct. If she is, then by definitively approving the constitutionality of the current eligibility criteria, the court shelters the respondents from additional pressure for reform, in the face of the fresh evidence that more work might well be warranted.

55I next address the principles that govern the courts’ approach to granting public interest standing and their intersection with the principles that govern constitutional adjudication, then address the application judge’s reasoning, and finally apply the principles to the facts in this case.

C. THE GOVERNING PRINCIPLES

56The court must be especially deliberative and careful in deploying its authority to decide constitutional issues. This is because the reach of a constitutional decision often goes well beyond the immediate parties to affect the interests of those not present, in ways that are not obvious. This worry underpins the test for public interest standing.³ The test was set in Downtown Eastside, at para. 37:

In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.⁴

57Cromwell J. explained that the three factors are not to be treated as technical requirements but are to be “considered in a purposive, flexible and generous manner” and “weighed cumulatively rather than individually”. The party seeking public interest standing must convince the court that these factors favour granting standing. That is, the court must be convinced that it would be appropriate for the court to adjudicate the matter, knowing that the decision will have impact far beyond the party who brings the case.

58My reasons turn on the third Downtown Eastside factor, which instructs courts to consider “whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality”.⁵ I see as decisive in this case the “plaintiff’s capacity to bring forward a claim”, considering his or her “resources, expertise, and whether the issue will be presented in a sufficiently concrete and well-developed factual [and adversarial] setting,”⁶ so that it will be “suitable for judicial determination”.⁷

59This third factor implicates the more general principle that constitutional and “Charter decisions should not and must not be made in a factual vacuum” because doing so would “inevitably result in ill-considered opinions”.⁸ In her concurring reasons in Ernst v. Alberta Energy Regulator, Abella J. noted that “the public interest requires that the fullest and best evidence possible be put before the Court when it is asked to decide the constitutionality of a law”, accompanied by “thorough examination of the constitutional issues in the courts or tribunal from which the appeals arise”.⁹ Courts should hesitate to make constitutional determinations, which can have far-reaching consequences, on the basis of inadequate evidence and argument, as Cory J. cautioned in MacKay.

60Courts therefore insist on a concrete factual context for the determination of constitutional issues. See, Bogaerts v. Ontario (Attorney General), 2019 ONCA 876, 389 C.C.C. (3d) 227, per Sharpe J.A., at para. 33; Grant v. Winnipeg Regional Health Authority, 2015 MBCA 44, 319 Man. R. (2d) 67, at para. 97.

61In Allen v. Alberta¹⁰, the court noted: “The presumption is that constitutional cases will be decided on a full evidentiary record, including, where appropriate, the evidence of expert witnesses”. The expectation is that parties “will prove the facts on which the constitutional challenge lies, and that resort to judicial notice will be kept on a ‘short leash’, the more so the closer one comes to the ultimate issue”.¹¹ The court pointed out that “[a]ll of the leading section 7 cases”, citing Bedford¹², Carter¹³, and Smith¹⁴, were “decided on full evidentiary records”. More specifically:

Each had a substantial record of evidence demonstrating (a) how the claimant was deprived of the right to security of the person by specific actions of the state, (b) the relevant principles of fundamental justice, (c) whether any of those applied and to what effect and (d) whether section 1 of the Charter was potentially applicable.¹⁵

62There are two particularly pertinent reasons that justify principled judicial restraint in this case. The first, rooted in the factual matrix, is the danger of assuming that the court has adequate command of all the material facts it needs to make a definitive disposition. This can be an unwarranted assumption, particularly in an area of complex and specialized knowledge such as medicine, as in this case. The second, is the danger of legitimating a state of affairs prematurely, thus relieving a government actor of ongoing constitutional pressure, as in this case.¹⁶

E. THE APPLICATION JUDGE’S REASONS

63The application judge granted Ms. Selkirk public interest standing respecting the preliminary issue of whether a Charter remedy is available to a deceased person or their estate under s. 24(1). She found that Ms. Selkirk met the test for public interest standing in that context, and held, at para. 64, that:

Ms. Selkirk has raised a serious justiciable issue with respect to the constitutionality of the 2010 Criteria and its application to Mr. Selkirk. She has a genuine interest in it, and the proposed application is a reasonable way to bring these issues before the court.

64The application judge noted that the retrospective declaratory relief sought by Ms. Selkirk is a “publicly-oriented remedy”. The fact that the remedy sought was under s. 24(1), and not s. 52, did not “change the public impact of the remedy”: at para. 67. She concluded, at para. 68:

[T]his is an appropriate case for Ms. Selkirk and Mr. Selkirk’s estate to advance claims based on violations of Mr. Selkirk’s Charter rights during his lifetime on the basis of public interest standing, having regard to the circumstances, where the alleged Charter violations are said to have contributed to, or caused, his death. To deny this right would be to empty the right to life contained in s. 7 of all meaning.

65However, after reaching this conclusion, the application judge went on to dismiss as moot Ms. Selkirk’s request for declaratory relief relating to the old eligibility criteria. She then moved on to the constitutional assessment of the current eligibility criteria and found them to be Charter-compliant.

F. APPLICATION OF THE GOVERNING PRINCIPLES

66The application judge’s analysis granting public interest standing to Ms. Selkirk focused on her challenge to the old eligibility criteria, which were the cause of Mr. Selkirk’s death in 2010 and led to her demand for retrospective declaratory relief. The scope of the application judge’s analysis was too limited. She did not consider the Downtown Eastside factors in evaluating Ms. Selkirk’s broader request for standing to challenge the Pilot Project and the current eligibility criteria, which was an error of law. The parties’ factums in this court did not address the standing issue. When probed on appeal, respondents’ counsel simply noted that their clients conceded Ms. Selkirk’s public interest standing at first instance because it was important that the constitutionality of the criteria be adjudicated.

67Downtown Eastside’s third factor is “whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts”. As noted, the related desiderata include: “the plaintiff’s capacity to bring forward a claim” and to marshal a full evidentiary record for the determination of the issues “in a context suitable for judicial determination in an adversarial setting”.¹⁷

68Despite the importance of the issue, there are two basic reasons why this application was not a “reasonable and effective means” of bringing the constitutionality of the current eligibility criteria for liver transplants to court: Ms. Selkirk’s self-represented status and the unsatisfactory nature of the evidence. These two reasons are linked.

(1) Ms. Selkirk’s Self-Represented Status

[69] Not every constitutional challenge requires the challenger to be represented by counsel. But complex constitutional litigation, like this case, requires rigorous development and testing of the evidence and argument. As shown by Bedford and Carter, the determination of s. 7 and s. 15 Charter issues is exceptionally fact-specific and nuanced, and would be difficult for a self-represented litigant, however able, to undertake.¹⁸ McLachlin C.J. noted that: “An unrepresented litigant may not know how to present his or her case [so that] [p]utting the facts and the law before the court may be an insurmountable hurdle”.¹⁹

70Ms. Selkirk is not a lawyer. What she has learned of constitutional law has come from self-study and an unwavering dedication to her cause. Understandably, her advocacy was not suited for the creation of a record that could be used to decide on the constitutionality of the province’s liver transplant regime. In oral submissions, Ms. Selkirk said, poignantly:

It is difficult for me to appear here today for several reasons. First, I recognize that I am not a doctor and I’m not a lawyer. It is my role to provide the court with my best understanding of complex areas of medicine and law in the hopes that you will agree with my interpretation. Second, it reminds me again of my role to procure justice for the hundreds of Ontario families who have lost people they loved to unjust policies…and to fight for justice going forward for every Ontarian who develops liver disease in the future…that responsibility for me is overwhelming…Third, it is a stark reminder of what I have lost.

71The application judge noted that while the appellant’s “skills are impressive, it would be unjust to demand procedural perfection from her”: at para. 9. As a result, the application judge chose to focus on the substance of the issues that Ms. Selkirk raised “and not their technical presentation”. However, the skills brought to bear by counsel go beyond the “technical presentation” of arguments. Everything from the preparation of written materials to the cross-examination of witnesses is part of a litigation strategy aimed at putting the client’s best position forward through the creation of a robust application record, followed by adversarial argument. Ms. Selkirk’s case did not benefit from counsel’s skill set, to the detriment of the evidentiary record and the argument, as I will show in the next section of these reasons.

(2) The Unsatisfactory Nature of the Evidence

72To determine the constitutionality of the current eligibility criteria for transplants for individuals with alcohol-associated liver disease, the court must parse the expert medical evidence in light of the constitutional principles. I begin with a description of the evidence, then consider the cross-examinations, and turn finally, to the fresh evidence.

(a) The Evidence

73The major barrier to the creation of an adequate record in this case is that the evidence was not focused on the current eligibility criteria for liver transplants, which the application judge found to be constitutional. Ms. Selkirk’s application started as a challenge to the old 2010 eligibility criteria, which relied on the then-mandatory six-month sobriety requirement. Although the application was amended in 2018 to address the Pilot Program eligibility criteria, the actual evidence never caught up.

74The evidentiary corpus in this case is quite ragged. Some of it came from the Williams application, to which Ms. Selkirk was not a party. Mark Williams was refused placement on the transplant waitlist. Represented by counsel, he brought an application against the same respondents. This was continued by his estate but then discontinued when the current eligibility criteria were adopted. The parties agreed that the evidence in the Williams application could form part of the evidence in Ms. Selkirk’s application.

75Consequently, the combined evidence before the application judge consisted of: (i) affidavits from UHN and Trillium administrators, including Dr. Nazia Selzner, the lead of the Alcohol Liver Disease Pilot Program Committee, and Dr. Mark Cattral, the Director of the Living-donor Liver Transplant Program; and (ii) reports from four experts in this and the Williams application, who were retained at various points in the evolution of these proceedings.

76Ms. Selkirk retained Dr. John Fung, Chief of Transplant Surgery and Co-Director of the University of Chicago Medicine Transplantation Institute in Chicago, Illinois. He was asked to “focus on whether the six-month rule [in the old 2010 eligibility criteria] was something that could be supported and what the current practices were, outcomes in patients that were being considered with acute on chronic decompensation or acute alcoholic hepatitis”. In Dr. Fung’s first affidavit, sworn September 23, 2015, he discussed his own and other studies, all of which pointed away from the efficacy of a six-month wait period. He built on this in his updated affidavit of May 9, 2019, sworn in the Williams application.

77Ms. Selkirk also retained Dr. Rolf Barth, Head of the Division of Transplantation and Director of Liver Transplantation at University of Maryland Medical Center. He was not familiar with Trillium or UHN or the Pilot Program and had not reviewed any of the affidavits or medical records in the application record.

78The Williams applicant had retained Dr. Eric Yoshida, a gastroenterologist at Vancouver General Hospital. Dr. Yoshida had prepared a report on the Liver Transplant Program at Vancouver General, which had a six-month wait period in effect. The policy was revoked as the result of his report. He reviewed the Pilot Program Listing Criteria but did not provide evidence on them. He had reviewed only the Williams file, not the Selkirk file.

79The respondents in the Williams matter had retained Dr. Juan Gonzalez-Abraldes, Director of the Liver Unit at the University of Alberta. He wrote three reports, the last two updating the first one with more recent medical research. He reviewed the Pilot Program criteria (as of May 2019) and agreed that they corresponded with the most current medical literature.

80Only Dr. Gonzalez-Abraldes was able to speak to the Pilot Project eligibility criteria and their medical basis. None of the experts retained by Ms. Selkirk or on the Williams application were able to give evidence on the medical soundness of the Pilot Project eligibility criteria – Dr. Fung had seen only a 2017 draft of the criteria, Dr. Barth had no familiarity with UHN, Trillium or the Pilot Program and Dr. Yoshida had seen the Pilot Program criteria but did not give evidence on them.

(b) The Cross-Examinations

81It is axiomatic that cross-examination is critical to the proper development and appreciation of expert evidence. This is particularly important for evidence in constitutional cases where the stakes are higher than in most ordinary litigation.

82As noted above, Ms. Selkirk sought to establish that the current eligibility criteria have two constitutional flaws. The first flaw is the undue focus on potential sobriety. The second flaw is the persistence, direct and indirect, of the “last-ditch” eligibility requirement that a candidate who has not met the other criteria must show six months’ sobriety to become eligible. Neither criterion, she argues, is medically indicated, which means that the current eligibility criteria still fall short of constitutionality.

83Ms. Selkirk does not condemn the current eligibility criteria entirely. She notes in her factum that she does not dispute that a patient’s “alcohol use should be part of the assessment process”. Her points are more focused. She asserts that the criteria are still “so stringent that [they] disproportionately [eliminate]” patients with alcohol-associated liver disease. These patients “are the only group evaluated by Addiction Severity and eliminated for having ‘too many symptoms’ of the disease causing their liver failure”. She points out that this group of patients “are held to a higher standard, being the only group required to prove they can control the disease that caused their liver failure”. Ms. Selkirk argues that this “permanently excludes all patients with liver failure caused by alcohol use disorder who have notes in their files of failure to follow physicians’ advice to stop drinking”. This does not accommodate the reality that individuals suffering from alcohol-associated liver disease often require more than one course of treatment to achieve sobriety. In this way, the criteria continue to reflect the discriminatory stigma arising from a public sentiment that it is wasteful to give a donated liver to patients with alcohol-associated liver disease.

84None of these propositions is inherently implausible, nor are they plainly contradicted by the existing evidence.

85Given the flow of events, Ms. Selkirk had no positive expert evidence to adduce on the Pilot Project eligibility criteria. She was left to ferret support out of her cross-examinations. But she had limited scope. The respondents’ expert, Dr. Juan Gonzalez-Abraldes, testified in the Williams application and was cross-examined by counsel for the Williams Estate, who did not have the same focus as Ms. Selkirk. She was offered the chance to cross Dr. Gonzalez-Abraldes, but declined. Of the medical professionals, she cross-examined only Dr. Selzner and Dr. Cattral.

86The propositions Ms. Selkirk sought to establish in cross-examination were nuanced and would daunt even a seasoned lawyer, who would need to carefully plan, sequence, and execute the questions. This was well beyond Ms. Selkirk’s skill level. I focus on Ms. Selkirk’s cross-examination of Dr. Selzner to make the point.

87In her affidavits Dr. Selzner generally sought to portray the Pilot Project eligibility assessment as an “all-things-considered” exercise in which there were no trumps. Her May 23, 2019 affidavit stated that factors considered in the assessment include psychological factors, such as the candidate's “support network, substance abuse history (alcohol or otherwise), psychological illnesses, and prior instances of acting against medical advice or failing to comply with treatment regimes”. Dr. Selzner added: “if a potential transplant patient demonstrates multiple instances of non-compliance with medical advice in the pre-transplant phase then this creates doubt that the person will follow the post-transplant treatment regime which is necessary for the transplant to be successful”.

88Dr. Selzner’s affidavit notes that a “patient's history of failed alcohol use disorder treatments” is a relevant consideration. With reference to Mr. Williams, she stated:

The ALD Committee unanimously concluded that Mr. Williams did not meet the criteria for the Pilot Program. Central to that conclusion were Mr. Williams' active alcohol use and a documented history of failing to follow medical advice to stop alcohol use and treatment for his alcohol liver disease. We concluded that these documented factors meant that Mr. Williams was not eligible for inclusion in the Pilot Program or for placement on the liver waiting list.

89Ms. Selkirk’s task in cross-examining Dr. Selzner was to pin her down on the specific propositions Ms. Selkirk was trying to establish. However, her cross-examination was not effective, productive or coherent.

(c) The Fresh Evidence

90Ms. Selkirk’s fresh evidence application includes a copy of the Study of the Pilot Project: “Results of Early Transplantation for Alcohol-Related Cirrhosis: Integrated Addiction Treatment with Low Rate of Relapse” (2021) 161 Gastroenterology 1896. Among the co-authors were Drs. Selzner and Cattral. This fresh evidence arrived well after the application judge’s decision and just before the argument of this appeal. It is highly complex and does not speak for itself.

91At one level, the Study meets the admissibility test established in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, and in Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.). The test applies in constitutional cases: Public School Boards' Association of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; R. v. Powley, 2001 CanLII 24181 (ON CA), 53 O.R. (3d) 35, per Sharpe J.A, aff’d 2003 SCC 43, [2003] 2 S.C.R. 207.

92However, admitting the Study in this case would not respect the Supreme Court’s instructions in Barendregt v. Grebliunas, 2022 SCC 22. Karakatsanis J. noted, at para. 31, that “the admission of additional evidence on appeal will be rare”. She added, at para. 46: “After a court has decided to admit evidence on appeal, it should remain mindful that the evidence has not been put to the test of cross-examination or rebuttal at trial, and the adverse party may not have had the ability to verify its accuracy”. Accordingly, Karakatsanis J. noted: “If the evidence is challenged or its probative value is in dispute, appellate courts may, among other things, provide the opposing party an opportunity to respond, allow cross-examination of a witness, permit the submission of expert evidence in response to additional expert evidence, or remit the matter to the court of first instance”.

93In Barendregt the court focused on the adversarial testing of disputed fresh evidence. The concern in this case is different and more prosaic, but in my view Barendregt still has application because the court needs expert assistance to fully understand the implications of the complex medical information in the Study as applied to the facts in this case. This is simply not within the ken of application judges, appeal judges or other laypeople.

94The most cogent evidence about the Pilot Program came with the publication of the Study. While the current eligibility criteria flowed from the Pilot Program criteria, how their permanent implementation functions on the ground was not probed in the evidence, because the application was decided mere months after the current eligibility criteria were adopted in November 2020, and, even more notably, months before the Study was released in August 2021. The Study authors noted that some adjustments need to be made to the eligibility criteria and that there are lessons still to be learned, but how those adjustments and lessons are to be or were operationalized is not information available on the record.

95This leaves Ms. Selkirk’s questions unanswered. Will there be an adjustment to account for the fact that recovery from addiction often takes several rounds of treatment? Will there be changes to reflect the Study’s findings that the six-month abstinence period was not a good measure for relapse and that there were no post-transplant deaths related to resumption of alcohol abuse? What are the respondents’ plans to keep abreast of the most current medical science? These questions were never put to the experts or to the respondents before the application judge gave constitutional approval to the current eligibility criteria.

96The current eligibility criteria may well be generally based, as the application judge noted, “on the best available medical knowledge”. But, given Ms. Selkirk’s trenchant questions and the findings in the Study, the application judge’s comment that “there is no known way to better refine the Criteria, so any widening of the Criteria will result in more failed transplants, and more lost lives” is self-evidently not correct. The criteria should not be given a constitutional bye in the absence of credible expert evidence on the questions Ms. Selkirk raised.

97The application judge’s finding that the current eligibility criteria for liver transplants for individuals who have alcohol-associated liver disease is constitutional under s.7 and s.15 of the Charter was profoundly premature. Granting Ms. Selkirk public interest standing contravened settled constitutional doctrine most fully reflected in the Supreme Court’s decision in Downtown Eastside. Despite her manifest good faith, Ms. Selkirk lacked the personal capacity to present the case for judicial determination in an appropriate adversarial setting.

G. DISPOSITION

98I agree with my colleague that Ms. Selkirk’s challenge to the constitutionality of the old eligibility criteria was moot. I also agree with my colleague’s proposed disposition of Ms. Selkirk’s challenge to the Living Donor Criteria.

99I dissent from my colleague’s affirmation of the appellant’s public interest standing and take no position on the application judge’s analysis of the constitutionality of the current eligibility criteria.

100I would allow the appeal and dismiss the application.

Released: June 22, 2022 “K.F.”

“P. Lauwers J.A.”

APPENDIX “A”: CHRONOLOGY OF EVENTS

Date

Event

November 7, 2010

Mr. Selkirk admitted to the hospital in critical condition.

November 8, 2010

Mr. Selkirk informed that he needed a liver transplant but that he was ineligible because he had not been sober for six months. There was a firm six-month sobriety requirement in place in order to be placed on the liver transplant waitlist.

November 24, 2010

Mr. Selkirk died from acute alcoholic hepatitis.

October 12, 2012

Application filed with the Human Rights Tribunal of Ontario.

November 13, 2012

Trillium assumed responsibility for the province-wide referral and listing criteria, pursuant to the Trillium Gift of Life Network Act, R.S.O. 1990, c. H.20, s. 8.8.

Trillium issued its first set of listing criteria, which were very similar to the ones already in place at individual transplant centres and included the six-month wait period.

November 29, 2013

HRTO dismissed application for delay – 2013 HRTO 1980.

January 14, 2014

Reconsideration request denied – 2014 HRTO 53.

March 12, 2014

Application for judicial review filed.

December 12, 2014

Application for judicial review dismissed – 2014 ONSC 7174.

September 23, 2015

Affidavit of Dr. John Fung sworn (appellant expert).

October 27, 2015

Application commenced pursuant to r. 14.05(3)(g.1) for a remedy under the Charter.

May 2018

Trillium and UHN launch three-year Pilot Program

September 17, 2018

Ms. Selkirk serves an Amended Notice of Application and Amended Notice of Constitutional Question to include a challenge to the Pilot Program Criteria.

May 4, 2019

Expert report of Dr. Eric Yoshida (appellant expert).

May 9, 2019

Updated Affidavit of Dr. John Fung sworn; affidavit of Dr. Yoshida sworn.

May 21, 2019

Expert report of Dr. Juan Gonzalez-Abraldes (respondent expert).

May 23, 2019

Affidavit of Dr. Nazia Selzner affirmed.

January 23, 2020

Affidavit of Dr. Rolf Barth sworn (appellant expert).

February 20, 2020

Supplemental affidavit of Dr. Selzner affirmed.

March 6, 2020

Second Report of Dr. Gonzalez-Abraldes.

March 12, 2020

Affidavit of Dr. Mark Cattral affirmed.

March 16, 2020

Cross-Examinations of Dr. Yoshida and Dr. Barth.

September 4, 2020

Third Report of Dr. Gonzalez-Abraldes.

September 16, 2020

Cross-Examinations of Dr. Gonzalez-Abraldes and Dr. Selzner.

September 17, 2020

Cross-Examinations of Dr. Fung and Clare Payne.

September 18, 2020

Cross-Examination of Dr. Cattral.

October 5, 2020

Respondents inform Ms. Selkirk that the Pilot Program will be ended earlier than expected.

November 25, 2020 application hearing date pushed to February 23-24, 2021 as a result.

November 2020

Pilot Program Criteria permanently adopted, ahead of May 2021 Pilot Program end date.

February 23-24, 2021

Application heard.

March 31, 2021

Application decision and endorsement released – 2021 ONSC 2355.

April 29, 2021

Notice of Appeal filed.

August 8, 2021

UHN published the results of the Pilot Program in a medical journal.

February 13, 2022

Notice of Motion for leave to adduce fresh evidence on appeal filed.

February 23, 2022

Appeal heard.

Footnotes

1. 1The application as against Her Majesty the Queen in right of Ontario as represented by the Ministry of Health and Long-Term Care was dismissed by Justice Frederick L. Myers of the Superior Court of Justice on November 2, 2020, with reasons reported at 2020 ONSC 6707.
2. 2The chronology is attached as an appendix to my reasons.
3. 3Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at paras. 22-37.
4. 4Downtown Eastside, citing Thorson v. Canada (Attorney General), 1974 CanLII 6 (SCC), [1975] 1 S.C.R. 138; Nova Scotia (Board of Censors) v. McNeil, 1975 CanLII 14 (SCC), [1976] 2 S.C.R. 265; Canada (Minister of Justice) v. Borowski, 1981 CanLII 34 (SCC), [1981] 2 S.C.R. 575.
5. 5Downtown Eastside, at para. 50.
6. 6Downtown Eastside, at para. 51.
7. 7Downtown Eastside, at para. 50.
8. 8MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at p. 361. See also, Alberta Union of Public Employees v. Alberta, 2021 ABCA 416, at para. 50, leave to appeal requested, [2022] S.C.C.A. No. 58.
9. 9Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, at para. 108, citing Sopinka J.’s reasons in Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241 (emphasis in original removed).
10. 10Allen v. Alberta, 2015 ABCA 277, 606 A.R. 274, leave to appeal refused, [2015] S.C.C.A. No. 461.
11. 11Allen v. Alberta, at para. 23, citing R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 58, 64.
12. 12Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.
13. 13Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.
14. 14R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602.
15. 15Allen v. Alberta, at para. 24. See also, Alberta Union of Public Employees, at paras. 43 and 82.
16. 16Standing is one of a suite of principled restraints courts have evolved. Others include justiciability, mootness, ripeness or prematurity, the refusal to answer constitutional questions, and the exercise of remedial discretion.
17. 17See above, at para. 58. Downtown Eastside, at paras. 50-51.
18. 18New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, per Lamer C.J., at para. 88.
19. 19Beverley McLachlin C.J., “The Challenges we Face”, remarks delivered to the Empire Club of Canada, March 8, 2007 (Toronto): https://www.scc-csc.ca/judges-juges/spe-dis/bm-2007-03-08-eng.aspx#:~:text=the%20challenge%20of%20access%20to,deeply%20rooted%2C%20endemic%20social%20problems.