Flora v. Ontario Health Insurance Plan, 2007 CanLII 339 (ON SCDC)

Flora v. General Manager, Ontario Health Insurance Plan [Indexed as: Flora v. Ontario Health Insurance Plan (General Manager)]

83 O.R. (3d) 721

Ontario Superior Court of Justice,

Divisional Court,

E. Macdonald, Epstein and Cameron JJ.

January 15, 2007

Administrative law -- Boards and tribunals -- Appeal -- Standard of review -- Appellant suffering from liver cancer and not meeting eligibility criteria for liver transplant in Ontario -- Appellant having liver transplant in England and seeking reimbursement of cost of that treatment from OHIP -- Reimbursement denied because treatment was not generally accepted in Ontario as appropriate for person in same medical circumstances as appellant as required by s. 28.4(2) of Regulation -- Health Services Appeal and Review Board confirming that decision -- Standard of review of Board's decision being reasonableness -- Board's decision not unreasonable -- Ontario Regulation 552, s. 28.4(2).

Charter of Rights and Freedoms -- Fundamental justice -- Appellant suffering from liver cancer and not meeting eligibility criteria for liver transplant in Ontario -- Appellant having liver transplant in England and seeking reimbursement of cost of that treatment from OHIP -- Reimbursement denied because treatment was not generally accepted in Ontario as appropriate for person in same medical circumstances as appellant as required by s. 28.4(2) of Regulation -- Section 28.4(2) not violating s. 7 of Charter -- Appellant not deprived of life and/or security of the person by state action -- Regulation not prohibiting appellant from obtaining health care necessary to save his life -- Governments not having constitutional obligation to fund particular medical treatments -- Canadian Charter of Rights and Freedoms, s. 7 -- Ontario Regulation 552, s. 28.4(2).

The appellant was diagnosed with liver cancer. He was evaluated as a potential candidate for a liver transplant using the Milan Criteria and was advised that he did not meet those criteria and was not a suitable candidate for a transplant. He was given six months to live. He sought treatment elsewhere, and underwent chemoembolization and a living-related liver transplant (collectively the "treatment") in England. The cost of the treatment was approximately $450,000. The appellant sought reimbursement of that amount from the respondent pursuant to s. 28.4(2) of Ontario Regulation 552 under the Health Insurance Act, R.S.O. 1990, c. H.6. The respondent denied his request. He sought a review of that decision by the Health Services Appeal and Review Board. The majority of the Board confirmed the decision on the basis that the treatment was not an insured service as it was not "generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person", as required by s. 28.4(2) (a) of the Regulation. The appellant appealed.

Held, the appeal should be dismissed.

The standard of review of the Board's decision was reasonableness.

It was reasonable for the Board to accept the position of Ontario doctors that the Milan Criteria were suitable to determine the appellant's suitability for a transplant. It was also reasonable for the Board to prefer the evidence of the Ontario doctors on the basis that the test was whether the treatment was "generally [page722] accepted in Ontario". It is reasonable to limit the funding of out-of-country medical care to those treatments "generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person". That limitation ensures that funding of out-of-country medical treatments is provided fairly and equally in a manner that upholds Ontario's medical and ethical standards, while protecting vulnerable Ontario patients in a responsible, cost-effective manner. Adopting an Ontario standard for determining funding ensures that limited public moneys are only spent on medical treatments that (i) are accepted by doctors of a recognizable high standard; (ii) are accepted as deserving of public funding in accordance with Ontario's values and laws; and (iii) are provided in accordance with the ethics and values of Ontarians. It was reasonable for the Board to conclude that the appellant's treatment was not an insured service.

The Board did not err in interpreting s. 28.4(2) of the Regulation in a manner that is inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms. Only if there is a multiplicity of plausible readings, each equally in accordance with the legislative intent, is it appropriate to resort to external interpretive aids, including Charter values, for purposes of interpretation. Section 28.4(2) is not ambiguous. If there is a constitutional frailty within s. 28.4, it had to be addressed directly in a constitutional challenge.

Section 28.4(2) of the Regulation affects an interest protected by the right to life in s. 7 of the Charter. The appellant's interest could not be characterized as a purely economic one, which is not protected by s. 7. The Board's decision that a transplant was not an insured service affected the appellant in a manner that went well beyond an incidental loss of money. The decision not to fund a potentially life- saving treatment had the effect of leaving in place substantial financial and practical obstacles to the appellant's obtaining the treatment needed to save his life. Section 28.4(2) also affected an interest protected by the right to security of the person. However, the appellant was not deprived of his right to life and/or security of the person by state action. His s. 7 rights were not engaged because the Regulation does not create an impediment to individuals securing out-of-country treatment. It does not prohibit or restrict an individual from securing his or her own health care or arranging his or her own treatment. The Charter does not impose on governments a constitutional obligation to fund particular medical treatments. There is no constitutional right to state-funded health care. Even if the appellant was deprived of his right to life and/or security of the person, the deprivation was in accordance with the principles of fundamental justice. The impugned provision is neither vague nor arbitrary. The principle of proportionality has no application to s. 28.4. This is a remedial benefit providing funding where none would otherwise exist for out-of-country treatment. The means chosen are measured and reasonable given the state objectives. To contend that such state regulation is grossly disproportional because some gravely ill individuals may not qualify for funding is an argument founded not upon the basic tenets of our legal system, but in the realm of general public policy.

APPEAL from a decision of the Health Services Appeal and Review Board.

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(Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. Â210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour); Ruggiero Estate v. Ontario Health Insurance Plan (General Manager) (2005), 2005 36175 (ON SCDC), 78 O.R. (3d) 28, [2005] O.J. No. 4276 (Div. Ct.); Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] SCC 1; Symes v. Canada, 1993 55 (SCC), [1993] 4 S.C.R. 695, [1993] S.C.J. No. 131, 110 D.L.R. (4th) 470, 161 N.R. 243, 19 C.R.R. (2d) 1, 94 DTC 6001 (sub nom. Symes v. Canada, Symes v. M.N.R., R. v. Symes); Voice Construction Ltd. v. Construction & General Worker's Union, Local 92, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, 238 D.L.R. 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S-29, s. 14(3) Rules and regulations referred to R.R.O. 1990, Reg. 552 (Health Insurance Act), ss. 2, 24(1), 28(2), 28.1-28.6 [page725] Authorities referred to Driedger, E. A. The Construction of Statutes (Toronto, Ont.: Butterworths, 1974) Hogg, Peter W., Constitutional Law of Canada, student ed. (Toronto: Carswell, 2004) Langan, P. st. J., ed., Maxwell on the Interpretation of Statutes, 12th ed. (London: Sweet & Maxwell, 1969) Sharpe, Robert & K. Swinton, The Charter of Rights and Freedoms, 2nd ed. (Toronto: Irwin Law, 2002) Sullivan, R., Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002)

Mark J. Freiman and Jennifer A. McKendry, for the appellant. Janet Minor, Shaun Nakatsuru and Matthew Horner, for respondent.

The judgment of the court was delivered by

1EPSTEIN J.: -- This appeal raises important issues regarding Ontario residents' access to health care and the allocation of the Province's health care resources.

2The appellant, Adolfo A. Flora, was a high school teacher in Toronto. In 1999 he was diagnosed with liver cancer. After consultations with several Ontario physicians, Mr. Flora was told he was not a suitable candidate for a liver transplant. Mr. Flora was given six months to live.

3Not prepared to accept this prognosis, Mr. Flora explored options in other countries. His research took him to the Cromwell Hospital in London, England, where, in March of 2000, one month before his 51st birthday, he underwent both chemoembolization and a living-related liver transplant (collectively the "treatment"). A living-related liver transplant ("LRLT") involves removing a portion of a living donor's liver. The donor was Mr. Flora's brother, a medical doctor.

4The cost of the treatment was approximately $450,000. With considerable difficulty, Mr. Flora was able to scrape the money together. For that reason alone he is alive and well today.

5Through his physician, Mr. Flora sought reimbursement of this amount from the respondent, the General Manager, Ontario Health Insurance Plan ("OHIP"), pursuant to s. 28.4(2) of Ontario Regulation 552 (the "Regulation") of the Health Insurance Act, R.S.O. 1990, c. H.6 ("HIA").

6OHIP denied Mr. Flora's request. He therefore sought a review of the decision by the Health Services Appeal and Review [page726] Board (the "Board"). In its decision dated November 21, 2002, the majority of the Board confirmed OHIP's decision on the basis that the treatment was not generally accepted in Ontario as appropriate for a person in the same medical circumstances as Mr. Flora, and therefore not an insured service. [See Note 1 below]

7Mr. Flora appeals the Board's decision to this court.

I. The Legislation

The Legislation

8OHIP is a provincial health care plan available to residents of Ontario and administered by the Ministry of Health and Long-Term Care. Its purpose is to provide insurance against the costs of "insured services" for residents of Ontario. "Insured services" are defined in s. 11.2 of the HIA to be the prescribed services of hospitals and health facilities, prescribed medically necessary services and prescribed health care services rendered by prescribed practitioners.

9The Regulation sets out the services insured under the plan. Section 28.4 of the Regulation deals with funding for services provided outside of Canada and reads as follows:

28.4(2) Services that are part of a treatment and that are rendered outside Canada at a hospital or health facility are prescribed as insured services if,

(a) the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person; and

(b) either,

(i) that kind of treatment that is not performed in Ontario by an identical or equivalent procedure, or

(ii) that kind of treatment is performed in Ontario but it is necessary that the insured person travel out of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage.

II. The Issues

The Issues

10Mr. Flora asserts three grounds of appeal:

(i) The Board erred in interpreting s. 28.4(2) of the Regulation by inappropriately considering the shortage of organs in Ontario when determining if the procedure was "generally accepted in Ontario as appropriate for a person in the same medical circumstances" as Mr. Flora. [page727]

(ii) The Board erred in interpreting s. 28.4(2) of the Regulation in a manner that is inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

(iii) Subsection 28.4(2) of the Regulation is inconsistent with the Charter.

III. The Chronology

The Chronology

11The chronology is not in dispute.

12In 1973, Mr. Flora underwent surgery to remove a benign tumour from his esophagus. Due to complications during the surgery, a blood transfusion was required. A routine check-up in 1976 revealed that Mr. Flora had contracted non-A, non-B Hepatitis (now known as Hepatitis C) from the blood transfusion.

13From 1979 through November 1999, liver specialists monitored Mr. Flora's medical condition. In November 1999, Mr. Flora was diagnosed with liver cancer (also known as hepatocellular carcinoma or "HCC") and underwent further diagnostic tests. The results disclosed that the cancer was "multifocal", meaning that it involved several lesions. The evidence was unclear as to the precise size and number of lesions, and as to whether there was any vascular invasion. Mr. Flora's doctors told him he had approximately six months to live.

14Confronted by a disastrous prognosis, Mr. Flora examined the possibility of a liver transplant. Dr. Florence Wong, Mr. Flora's physician and a liver specialist at the Toronto General Hospital ("TGH"), explored his treatment options with a number of other specialists.

15Dr. Wong consulted with Dr. Leslie Lily, Medical Director of Liver Transplantation at the TGH. The liver transplantation team at the TGH assessed Mr. Flora and found him to be ineligible for a cadaveric liver transplant.

16Mr. Flora sought assistance internationally. On February 8, 2000, he traveled to London, England where he met with Dr. Roger Williams, Head of the Liver Unit at the Cromwell Hospital. Mr. Flora underwent immediate chemoembolization to shrink the lesions. He was accepted as a candidate for a LRLT, and his brother agreed to act as the living-related organ donor.

17Mr. Flora returned to Canada and saw Dr. William Wall, Director of the Multi-Organ Transplant Program at the London Health Sciences Centre in London, Ontario ("LHSC"), the only other hospital in Ontario performing liver transplants. Dr. Wall [page728] determined Mr. Flora not to be an acceptable candidate for either a cadaveric transplantation or a LRLT.

18On February 22, 2000, before Mr. Flora underwent the LRLT in the United Kingdom, Dr. Wong completed a "Prior Approval Application for Full Payment of Insured Out-of-Country Health Services" on Mr. Flora's behalf, seeking OHIP reimbursement for the cost of Mr. Flora's treatment in the UK.

19On February 24, 2000, OHIP denied Mr. Flora's request on the basis that chemoembolization was viewed as experimental and therefore "is deemed not to be an insured services [sic] out- of-country and not part of insured services rendered by physicians or practitioners". In its decision OHIP went on to say, "[f]ull liver transplantation assessment and investigation is all available in Ontario in a timely fashion. Living related, as well as conventional liver transplantation is available in Ontario at major teaching medical centers. This clinical direction is expected to be pursued in Ontario with accepted therapeutic guidelines of protocol foundation criteria on a case-by-case basis."

20On March 13, 2000, Mr. Flora and his brother traveled to England. The surgery took place on March 26, 2000. The procedure was successful, and Mr. Flora returned to Canada on May 21, 2000 to continue his convalescence.

IV. The Board's Decision

The Board's Decision

21Over the course of the two-day hearing, the Board considered documentary evidence and oral testimony from a number of physicians.

22The Board identified the issues as: [See Note 2 below]

(1) Is the treatment generally accepted in Ontario as appropriate for a person in the same medical circumstances as Mr. Flora?

(2) Is the treatment performed in Ontario by an identical or equivalent procedure?

(3) Was it necessary for Mr. Flora to travel outside of Canada to avoid a delay that would have resulted in death or medically significant irreversible tissue damage? [page729]

23In terms of the treatment in issue, Mr. Flora claimed reimbursement for the cost of two medical treatments: chemoembolization and transplantation.

24Chemoembolization is used to decrease the size of tumours. It is also used as a holding measure prior to making a final decision about transplant. The Board (at p. 7) found that in Mr. Flora's case, chemoembolization was provided as a temporary measure while doctors evaluated him to determine if he met the criteria for transplantation. Because this temporary measure was deemed necessary to prepare Mr. Flora for the transplant, the Board determined it did not have to consider the cost of chemoembolization separately from the transplantation. The issue was whether the entire treatment was an insured service.

25The Board reviewed the extensive medical evidence and found that the doctors who specialize in treating liver disease in Toronto assessed Mr. Flora for cadaveric liver transplantation, but consistently found that he was not a suitable candidate.

26The Board went on to consider the evidence pertaining to the possibility of a LRLT at the LHSC, for which Mr. Flora was also rejected as a candidate. Dr. Wall met with Mr. Flora in February 2000 and determined that Mr. Flora "does not fit the definition of an early stage carcinoma for which transplantation is good treatment". Dr. Wall wrote that the LHSC would not have considered Mr. Flora for a transplant either from a cadaver or a living related donor, "because of the nature and extent of the tumours that has [sic] been identified on the imaging studies". The potential risk to the donor outweighed the estimated benefit to the recipient.

27The Board further noted that Dr. Wong, in completing the application for reimbursement on behalf of his patient, wrote: "the treatment can be performed in Ontario, but Mr. Flora was an unsuitable candidate". The Board found (at p. 10) that while in Dr. Wong's opinion liver transplantation is generally accepted as appropriate for a person suffering from Mr. Flora's condition, his condition did not satisfy eligibility guidelines established within the province.

28The Board observed that at the time Mr. Flora required his transplant, no Canadian transplant facility had performed an adult-to-adult LRLT. The LHSC had only performed paediatric LRLTs. The team at LHSC received approval to do its first adult-to-adult LRLT in the fall of 1999 and first performed the procedure on April 4, 2000, although the patient who received treatment did not have liver cancer.

29Specific guidelines regarding consideration of a patient for a LRLT had not been developed in Ontario. Mr. Flora was evaluated as a potential candidate for a LRLT using guidelines [page730] established for cadaveric liver transplant. Dr. Wall outlined those guidelines, referred to as the "Milan Criteria", in his expert report. For a patient with HCC, the following criteria had to be satisfied:

(1) A solitary tumour less than 5 cm in diameter, or

(2) Multiple tumours, three or fewer in number, with a maximum diameter of 3 cm; and

(3) No evidence of vascular invasion or evidence of spread outside the liver.

30The information contained in Mr. Flora's pre-surgical reports as to the size, location and number of tumours varied. After an extensive review of all available medical evidence, the Board accepted the evidence proffered by four Canadian medical liver specialists to the effect that Mr. Flora did not satisfy the Milan Criteria.

31The Board went on to consider Mr. Flora's "out of country assessment".

32The eligibility criteria for transplantation used at the Cromwell Hospital, which operates on private funding, were different from those used in Ontario.

33In his evidence before the Board, Dr. Williams (Head of the Liver Unit at the Cromwell Hospital) stated that each transplant centre makes its own decision based on its own guidelines. Further, in a letter dated November 15, 2000, Dr. Williams wrote, "Selection criteria for living donor liver transplantation have not been established or formulated in any national or international guidelines."

34Professor Williams' view was that while Mr. Flora was not the best candidate for transplant even in England, he was a suitable one. He added that this was not only his view but would be the view of many other centres in Europe.

35The evidence of Dr. Rela, a surgeon practising in the United Kingdom who specializes in liver and neurosurgery and one of Mr. Flora's transplant surgeons, was that Mr. Flora fell well within the accepted criteria for liver transplant given that "orthotopic transplantation is indicated where there are 3 or fewer lesions, primary tumour size is less than 5 cm, vascular invasion is absent and extrahepatic metastases are absent". [See Note 3 below] [page731]

36The British team determined that Mr. Flora had a better than 50 per cent chance of survival with a LRLT. (Even Dr. Wall agreed it was his only chance to live.)

37After an extensive review of all available medical evidence pertaining to Mr. Flora's medical condition and his candidacy to receive a LRLT, the Board made the following observations (at p. 16): "The decision as to whether or not the Appellant should have been a candidate for an adult-to-adult LRLT was determined primarily by the size, number and location of the tumours present at the time of diagnosis. The evidence concerning international guidelines, or those in Europe, goes to why Mr. Flora was deemed to be an acceptable candidate out- of-country. The guidelines in Europe and the UK, . . . are that the major lesions should not be more than 4, possibly 5, centimeters in diameter and that there should be no more than two or three lesions elsewhere in the liver. . . . Medical treatment decisions also seem to vary between centers and countries which, in turn, are influenced by the availability of both cadaveric and living organ donors."

38As the test was whether the treatment was generally accepted in Ontario as appropriate for a person in the same medical circumstances, the Board (at p. 17) felt that it must give greatest weight to the opinions of Ontario physicians, who found Mr. Flora an unsuitable candidate for either a cadaveric transplant or a LRLT.

39The Board recognized (at p. 17) that "given the necessity of allocating scarce resources, physicians in Ontario find it appropriate to set guidelines designed to ensure that patients with the greatest chance of recovery receive transplants before those at higher risk". The Board found this to be part of what is generally accepted as appropriate in Ontario. At. p. 18 the Board said, "A patient whose conditions exceed these guidelines must, therefore, be considered to be in medical circumstances considered inappropriate for transplant."

40Because the Ontario liver specialists were unanimously of the view that Mr. Flora exceeded the guidelines for liver transplantation in Ontario, the Board found that the treatment he received in England was "not generally accepted in Ontario as appropriate for a person with the same medical circumstances as the Appellant".

41Notwithstanding the fact that the first issue was determinative, the Board went on to consider the second issue -- whether the treatment was performed in Ontario by an identical or equivalent procedure. The Board found (at p. 20) that no "identical" medical treatment was available to Mr. Flora in Ontario, since no adult-to-adult LRLT had so far been performed. The [page732] Board determined, however, that the "equivalent" treatment of cadaveric transplant was available in the province. The Board was therefore satisfied that if Mr. Flora had been found to be a suitable candidate, equivalent treatment would have been available to him in Ontario.

42With respect to the third issue, delay, the Board held that even if the treatment in question (or its equivalent) was performed in Ontario, the Regulation provides that services are insured when it is necessary to travel out of Canada to avoid a delay in treatment that would result in death or medically significant irreversible tissue damage. The Board was satisfied that long waiting lists, shortages of organs, and the resulting need to set standard selection criteria complicated the chances of a patient in Mr. Flora's situation receiving a transplant in a timely manner.

43The Board concluded (at p. 22) that, "in spite of differing medical views from physicians in the United Kingdom, the evidence is that in Ontario, transplant was not considered to be appropriate for a patient in the medical circumstances of the Appellant". This finding was determinative -- the appeal could not succeed.

44The dissenting member found (at p. 41) that "adult LRLT was generally accepted in March 2000 as appropriate for someone with end stage liver disease and in fact, based on the evidence regarding Mr. Flora's condition at the relevant time that he sought treatment, for someone in Mr. Flora's medical condition. His tumour size and number fell within the range generally accepted as that for which good survival outcome rather than poor survival outcome could be expected. He had none of the contraindications cited in the literature or other evidence. Finally, the evidence is that his brother Peter Flora was assessed and found to be a suitable donor." In coming to this conclusion, the dissenting member preferred the evidence of Dr. Rela and Dr. Williams to that of Dr. Wall.

45The dissenting member also relied on the British experts in support of her conclusion that chemoembolization is a generally accepted practice.

46The dissenting member then went on to find that both adult-to-adult LRLT and chemoembolization were performed in Ontario in March 2000 by an equivalent procedure. While adult LRLT was generally accepted for HCC patients, this procedure was not performed in Ontario at the relevant time and, thus, no identical procedure was performed. However, an equivalent and more established liver transplant technique, cadaveric transplantation, was available. The dissenting member was not persuaded that there was a generally accepted guideline across [page733] Canada pertaining to liver transplantation. Due to liver shortages and the estimated waiting time, the equivalent treatment of cadaveric liver transplant was not available to Mr. Flora in Toronto. The dissenting member agreed with the majority that chemoembolization was not available to Mr. Flora in Ontario.

47With respect to the third issue before the Board, the dissenting member found that delay was irrelevant, given that adult-to-adult LRLT was generally accepted at the relevant time in Ontario for someone in Mr. Flora's medical condition, and that neither that procedure nor the equivalent cadaveric procedure was available in Ontario to Mr. Flora. Having said that, the dissenting member found that the delay would have necessitated out-of-country treatment.

48The dissenting member found that Mr. Flora's treatment at the Cromwell Hospital was therefore an insurable service.

V. The Standard of Review

The Standard of Review

49Mr. Freiman, counsel for Mr. Flora, submits that the standard of review with respect to the Board's interpretation of s. 28.4(2) of the Regulation is correctness. [See Note 4 below] The thrust of Mr. Freiman's argument is that the broad right of appeal and the fact that the question in the case is one of law, an area in which the Board has no particular expertise, combine to warrant a less deferential approach to the Board's reasoning.

50Mr. Nakatsuru, on behalf of OHIP, argues that the appropriate standard of review is reasonableness. This submission is based primarily on the argument that the Board's decision is "fact-intensive".

51In determining the standard of review of a tribunal's decision, the court must apply the pragmatic and functional analysis to determine the degree of deference intended by the Legislature. This involves consideration of four factors: the presence or absence of a privative clause or statutory right of appeal; the purposes of the legislation and the provision in particular; the nature of the question -- fact, law or mixed fact and law; and the expertise of the tribunal relative to that of the reviewing court on the issue in question. [See Note 5 below] (Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [2004] S.C.J. No. 2, [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, [page734] at paras. 29-38 and Voice Construction Ltd. v. Construction & General Worker's Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, at para. 16.)

52In my view, the interplay of the four contextual factors suggests a degree of deference is owed to the Board's decision. Its decision must stand unless it is unreasonable.

53Turning to the first factor, there is a broad right of appeal from a decision of the Board. Section 24(1) of the HIA permits any party to a proceeding before the Board to appeal to the Divisional Court. Section 24(4) provides:

24(4) An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the Appeal Board and may exercise all powers of the Appeal Board to direct the General Manager to take any action which the Appeal Board may direct the General Manager to take and as the court considers proper and for such purposes the court may substitute its opinion for that of the General Manager or of the Appeal Board, or the court may refer the matter back to the Appeal Board for rehearing, in whole or in part, in accordance with such directions as the court considers proper.

54The fact that this court may exercise the powers of the Board and is permitted to decide questions of law or fact suggests a less deferential standard of review should be applied.

55With respect to the second factor, the overall purpose of the Canada Health Act, R.S.C. 1985, c. C-6 ("CHA") and the HIA is to provide access to health care on the basis of medical need, not ability to pay. Further to this goal, ss. 28.1 to 28.6 of the Regulation provide for funding of out-of-country health services in certain circumstances. Subsection 28.4(2) is intended to provide funding for treatments that are generally accepted as appropriate in Ontario but are not otherwise available in the province, either because of delay that causes serious consequences, or because equivalent procedures are not performed in Ontario. In essence, it allows Ontarians to receive funding for the same level of health care services abroad that they are entitled to receive in Ontario.

56The Regulation contains an important limitation: funding is only provided where it is determined, on a case-by-case basis, that the services in question are generally accepted in Ontario as appropriate for a person in the same medical circumstances as the individual in question. This limitation seeks to balance the overall objective of access to health care on the basis of medical need with the goal of ensuring that funding for out-of-country treatments is only provided to the extent that Ontarians would be entitled to receive funding within Ontario, if the treatment were available here. [page735]

57While it is true that the Board's interpretation of "insured service" in s. 28.4(2) may have important implications for provincial health care funding, the Board is not charged with making polycentric determinations or balancing between various constituencies. Rather, the Board's task is to adjudicate specific two-party disputes under the Regulation and to establish entitlement to funding, not to reach conclusions based on broad policy concerns. This contextual factor, like the right of appeal, points to a less deferential standard of review.

58With respect to the third factor, Mr. Freiman submits that the nature of the question before the Board was one of pure law; that is, the meaning of the phrase "generally accepted in Ontario as appropriate".

59I do not agree.

60While the Board was required to consider the meaning of "generally accepted in Ontario as appropriate" in s. 28.4(2), the very language of the provision provides that this meaning is, in any particular case, inextricably linked to the specific medical circumstances of "a person in the same medical circumstances as the insured person". The wording of the Regulation requires the Board to embark upon a detailed factual analysis.

61The Board had the benefit of hearing the direct examination and cross-examination of the medical experts, allowing it to assess the evidence on this pivotal point. While, in the end, the Board preferred the opinions of the Ontario doctors based on the issue before it (what was generally accepted in Ontario as appropriate), it did so only after evaluating these opinions and concluding that they were worthy of equal weight to those of the UK doctors. This court, on judicial review, should not substitute its opinion on the sufficiency of the evidence for that of the statutory tribunal.

62In light of the fact-intensive nature of the question, the Board's reasoning is entitled to deference. (Ruggiero Estate v. Ontario Health Insurance Plan (General Manager) (2005), 2005 36175 (ON SCDC), 78 O.R. (3d) 28, [2005] O.J. No. 4276 (Div. Ct.), at para. 13 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, at para. 32.)

63The final contextual factor is expertise; in particular, the comparative expertise of the Board and the courts on the question in issue. Where the Board has more expertise, deference is warranted. Where the courts have as much or more expertise, little or no deference is warranted.

64Based on Mr. Flora's position that the nature of the problem was purely legal, Mr. Freiman argues that the Board's expertise was not engaged. [page736]

65I have already addressed the fact-intensive nature of the issue before the Board. In determining whether the treatment Mr. Flora obtained from the Cromwell Hospital was generally accepted in Ontario as appropriate for a person in the same medical circumstances, the Board was required to consider the specifics of Mr. Flora's case, clinical considerations, and professional and ethical standards. This analysis involved an understanding of medicine, an area where the courts cannot claim to have greater expertise than the Board members appointed by the Lieutenant Governor in Council on the recommendation of the Minister of Health and Long-Term Care. There is authority for the proposition that members of tribunals such as this are presumed to have been selected because of knowledge or experience in the field in which they are to operate. There is also authority to the effect that they may call upon their own knowledge and experience in deciding matters that come before them. (Caswell v. Alexandra Petroleums Ltd., 1972 1019 (AB SCAD), [1972] 3 W.W.R. 706, 26 D.L.R. (3d) 289 (Alta. C.A.), Lazar v. Manitoba Assn. of Professional Engineers, 1971 1003 (MB QB), [1971] M.J. No. 116, 5 W.W.R. 614 (C.A.), and Re Golomb and College of Physicians and Surgeons of Ontario (1976) 1976 752 (ON SC), 12 O.R. (2d) 73, [1976], O.J. No. 1707, 68 D.L.R. (3d) 25 (H.C.J.).)

66In my view, the expertise factor also points to a deferential standard of review.

67Overall, the contextual factors weigh in favour of deference. It is clear that the Legislature intended for the Board to decide whether the treatment Mr. Flora received outside of Ontario was an insured service -- a decision that was within the Board's expertise. In light of all of these considerations, the court should review the Board's decision against a standard of reasonableness.

68In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, Iacobucci J. provided considerable assistance concerning how a reviewing court might know whether a decision is reasonable. He expressed it in several ways. At para. 47 he said the standard of reasonableness requires the reviewing court to answer the following question. After a "somewhat probing examination, can the reasons given, when taken as a whole, support the decision?". Later in Ryan, Iacobucci J. said [at para. 55], "A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. . . . This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling." [page737]

VI. The Analysis

1. In interpreting s. 28.4(2) of the Regulation, did the Board err by inappropriately considering the shortage of organs in Ontario when determining if the procedure was "generally accepted in Ontario as appropriate for a person in the same medical circumstances" as Mr. Flora?

The Analysis

69Mr. Flora argues that the Board erred in its interpretation of s. 28.4(2) of the Regulation by taking into account the shortage of cadaveric livers available for transplant when determining whether the surgery was appropriate for a person in Mr. Flora's medical condition. In other words, the majority imported the question of whether the treatment was available to Mr. Flora into the question of whether it was medically appropriate.

70Mr. Freiman submits that the statutory language makes it clear that this is contrary to the legislative intent. The criterion of "generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person" can only be understood as a strictly medical analysis that considers the benefit of a particular treatment to a patient. The Board was not permitted to consider whether conditions of scarcity had necessitated the rationing of organs when determining whether the procedure was appropriate for Mr. Flora. In fact, the reference to the "medical circumstances" of the patient makes it clear that the only issue before OHIP and the Board was a purely medical one.

71In my view, the Board's decision was reasonable. The Board carefully examined the medical evidence and accepted that of the Ontario specialists in the field of liver transplantations that the treatment for which reimbursement was being sought, namely a LRLT, was not appropriate for a person in Mr. Flora's medical circumstances. The Board's finding that the treatment was not generally accepted in Ontario as appropriate for a person in the same medical circumstances as Mr. Flora, was based on the evidence of Mr. Flora's Ontario doctors who were unanimous in concluding that, for medical reasons, he should not receive a LRLT. This treatment was simply too high risk, given the advanced stage of Mr. Flora's cancer. This conclusion was supported by the evidence and was consistent with the intent of the legislation.

72Specialists in Ontario's two well-respected transplant centres turned Mr. Flora down for a transplantation because of the high risk. In the case of a cadaveric transplant, the chance of success was considered to be too low in relation to the scarcity of donor organs. In the case of a LRLT, the treatment in issue, the [page738] chance of success was considered to be too low in relation to the risk to the healthy donor.

73The doctors associated with TGH, all well-respected specialists in treating liver disease, assessed Mr. Flora for a cadaveric transplantation and concluded that based on the Milan Criteria, he was not a suitable candidate.

74When considering eligibility for cadaveric transplantation, Canadian liver transplant specialists as well as liver and organ transplant organizations in the United States have accepted the Milan Criteria as appropriate. These criteria were established and adopted in the mid to late 1990s to ensure that available livers were used effectively to achieve maximum success rates. HCC patients with multiple tumours had low survival rates following transplantation. As a result of various studies, transplant centres in Ontario and elsewhere only select HCC patients whose cancers are, pursuant to the criteria, small enough to predict good survival rates.

75While the Milan Criteria are not universally used to determine eligibility for cadaveric transplantation, the legitimacy of these guidelines as sound medical eligibility criteria is not challenged. It was therefore reasonable for the Board to accept the Milan Criteria for eligibility to cadaveric transplants and all of the available medical evidence from Ontario specialists that, based on that criteria, Mr. Flora was not a suitable candidate for a cadaveric liver transplant.

76However, Mr. Flora's case deals with access not to liver transplants in general, but to a specific subset of liver transplants, namely LRLTs. The evidence before the Board was that the physicians at the LHSC, like those at TGH, found Mr. Flora to be a "high-risk candidate".

77LHSC was the only facility in Ontario then capable of performing an adult-to-adult LRLT. It had not yet performed one, but was ready to do so.

78At the time Mr. Flora required the transplant, the guidelines in Ontario for a LRLT had not been specifically developed. As a result, the doctors at LHSC, in assessing Mr. Flora's eligibility for a LRLT, employed the same criteria as those used to assess candidates for a cadaveric liver transplant -- the Milan Criteria. Given the high risk, the LHSC medical specialists rejected Mr. Flora as a suitable candidate for a LRLT.

79This takes me to whether it was reasonable to accept the evidence of the Ontario specialists that the Milan Criteria were appropriate guidelines for assessing Mr. Flora's eligibility for a LRLT.

80While some of the wording in the Board's decision is arguably confusing in referring to organ shortages when considering [page739] whether Mr. Flora was a suitable candidate for a LRLT, an examination of the extensive evidence before the Board and the reasons as a whole demonstrate that there was sound rationale and support for the Board's acceptance of the evidence that the Milan Criteria were appropriate criteria for the determination of eligibility for both types of transplantation.

81The initial reason for establishing eligibility guidelines for transplantations, such as the Milan Criteria, was to address the shortage of cadaveric organs by determining which patients have the greatest chance of survival and should therefore be first in line for a cadaveric transplant. While the shortage of cadaveric organs is not relevant when considering who should get a LRLT (because there is no need for a cadaver, but a suitable living donor), the question of whether a patient has a good chance of survival remains relevant, given the ethical considerations.

82There was evidence before the Board that ethics is a fundamental aspect of the clinical practice of medicine. A doctor is both a technician and a moral agent. Transplant physicians have to use their judgment in determining eligibility of potential transplant recipients. Numerous ethical issues arise in the case of LRLTs. These include inappropriate pressure on the donor, issues of true consent, risks to the donor, and suspect motivations to donate, to name a few.

83In a LRLT, the potential risk to the donor, in relation to the estimated benefit to the recipient, plays a particularly significant role in the decision whether to offer a transplant. Donors in LRLT face serious risks. Removing part of a liver from a donor is considered to be the most invasive procedure that is performed on a healthy individual for which that person gains no physical benefit.

84As a result of these medical and ethical risks, the assessment of whether to perform a LRLT will depend on the clinical knowledge and expertise of the physicians involved in the case.

85Dr. Wall's evidence was that there was good reason for the LHSC to use the same eligibility criteria for both cadaveric and LRLT transplants. In his opinion, not having to be concerned with a limited cadaveric pool is not a satisfactory argument for proceeding with LRLT on expanded eligibility criteria. It is unacceptable to subject the living donor to a substantial risk for an outcome in the recipient that would not justify the risk.

86This view appears to be consistent with that of the UK doctors. The liver specialists at the Cromwell Hospital do not use the Milan Criteria in assessing patients' eligibility for liver transplantation, but they do apply the same criteria for LRLTs as for cadaveric transplants. [page740]

87Admittedly, it cannot be said that the appropriateness of the Milan Criteria for a LRLT was a matter of "consensus" in Ontario, as Ontario had no actual experience in the treatment. The reality was that there was, at the time Mr. Flora was attempting to be accepted for transplantation, very little medical experience, including at the Cromwell Hospital, with the performance of adult-to-adult LRLTs.

88The Board was well aware of this. Against this background, it accepted the evidence before it from Ontario doctors considered expert in their field. The opinions of the Ontario specialists provided the Board with a sound basis for the conclusion that the Milan Criteria were appropriate guidelines in assessing a candidate not only for a cadaveric transplant but also for a LRLT.

89While the Board acknowledged that the guidelines in Europe and the UK for a LRLT were different from those employed by the Ontario specialists who provided evidence to the Board, and further that the English physicians had extensive experience in the area of treating liver disease, it still felt the opinion of the Ontario doctors should be given the greatest weight since the test was whether "the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances" (emphasis in original).

90In my opinion, it was reasonable for the Board to accept the position of the Ontario doctors that the Milan Criteria were suitable to determine Mr. Flora's eligibility for a LRLT.

91This takes me to the question of whether the Board was reasonable in preferring the evidence of the Ontario doctors on the basis that the test was whether the treatment was "generally accepted in Ontario". In my view, it was.

92I disagree with Mr. Flora's argument that since medicine is an international discipline, preferring the opinions of the Ontario experts was "arbitrary". On the contrary, resolving the differences between the medical opinions concerning eligibility for a LRLT on this basis was consistent with accepted principles of statutory interpretation and with the purpose of the legislation.

93First, one of the fundamental rules of statutory interpretation is that every effort should be made to give meaning to each word or phrase of the section.

94In Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) at p. 158, it says:

It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. [page741]

Further, at p. 159:

. . . every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.

95It follows that some meaning must be given to the words "in Ontario" in s. 28.4(2)(a) of the Regulation.

96Secondly, the words are to be read "harmoniously with the scheme of the Act, and the intention of Parliament". (Elmer A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) at p. 67, Re Rizzo and Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at p. 41 S.C.R. and Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43.)

97Expanding on the purpose of the HIA, from that set out in para. 55 of these reasons, it is clear that the legislative scheme is designed to provide insurance coverage against the cost of insured services on a non-profit basis on uniform terms and conditions available to all residents of Ontario. Not all medical procedures are covered. Rather, only those procedures that have been specifically included as insured services qualify for coverage under the HIA. Further, the services are funded in a uniform manner to ensure equal access to those services within Ontario. The HIA governs only issues of funding for health services; it does not regulate which services a person may receive. Health professionals determine which medical services are appropriate in the treatment of their patients.

98Section 28.4 of the Regulation serves the general purposes of the HIA. It entitles residents of Ontario to public funding for the same medical services outside of the country as those insured in the province. It promotes equality of access for Ontarians to medical procedures that are covered by OHIP in certain specified circumstances of unavailability within the province, the provision of safe and competent health care to Ontarians, and responsible limits on the public funding of out of country health care in order to protect the integrity of the health care system given the resources available. Section 28.4 is concerned only with the public funding of out-of-country medical treatments. It does not prohibit anyone from seeking or obtaining such treatment.

99The wording of s. 28.4 of the Regulation clearly establishes that the purpose of the provision is to extend public health care funding to those treatments obtained outside of Canada that would have been provided to insured persons in [page742] Ontario, but cannot be because of a life- threatening delay, or because equivalent procedures are not performed in Ontario. This purpose is confirmed by [s.] 28.4(2) (b), which defines the particular circumstances in which OHIP will fund generally accepted treatment obtained out-of- country. OHIP will only fund treatments received outside of Canada where the treatment sought, although generally accepted in Ontario, is not performed in the province or would only be available after a "delay that would result in death or medically significant irreversible tissue damage".

100OHIP determines whether the regulatory requirement is satisfied based upon the particulars of an applicant's case and the medical evidence as to the general acceptance in Ontario of the treatment for a patient in those circumstances. This determination is a factual one that considers the specifics of the individual's case, clinical considerations, and professional and ethical standards. There is no evidence that OHIP establishes or sets these standards.

101It is reasonable to limit the funding of out-of-country medical care to those treatments "generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person". This limitation ensures that funding of out-of-country medical treatments is provided fairly and equally in a manner that upholds Ontario's medical and ethical standards, while protecting vulnerable Ontario patients in a responsible, cost-effective manner.

102Adopting an Ontario standard for determining funding ensures that limited public moneys are only spent on medical treatments that (i) are accepted by doctors of a recognizable high standard; (ii) are accepted as deserving of public funding in accordance with Ontario's values and laws; and (iii) are provided in accordance with the ethics and values of Ontarians.

103There is no internationally or globally recognized standard of health care. OHIP relies upon the opinions of Ontario physicians, the qualifications of whom are regulated, in determining what is generally accepted as appropriate treatment for a patient. The "generally accepted in Ontario" standard ensures that out-of-country funding is provided only to those treatments that are regarded in Ontario as safe and effective.

104Additionally, the "generally accepted in Ontario" standard limits public funding of medical treatments to those procedures that Ontario doctors have determined are of some clinical value. This standard can vary from country to country. The "Ontario" standard ensures that the public funding is consistently provided, regardless of whether the treatment is received in Ontario or abroad. [page743]

105Ontario's health system is designed in a manner consistent with the ethics and values of the Ontario public. Limiting the funding of out-of-country medical treatments to those that are "generally accepted in Ontario" ensures that public funds are not spent on treatments that are inconsistent with the ethics and values of the Ontario medical profession and the Ontario public. This safeguards the integrity of the health care system.

106By preferring the evidence of the Ontario specialists as to Mr. Flora's eligibility for a LRLT, the Board assessed Mr. Flora's claim in accordance with the foundation of the HIA -- Ontario's standards, priorities, ethics and values.

107Mr. Flora argues that by making reference to the use of scarce resources in its analysis on whether a LRLT was appropriate, the Board imported the concept of "availability" into that of "appropriateness". In essence, the Board erred in finding that the treatment was not appropriate because it was not available to Mr. Flora.

108I disagree with Mr. Flora's submission that the Board's interpretation of appropriate was in error as it imported the notion of "availability" into the concept of medical "appropriateness" for the treatment in issue, a LRLT. While the Board's decision may have been worded more clearly, it did not confuse appropriateness with availability. The Board did not deny him access to a medically necessary procedure because of an organ shortage. It is clear that based on the evidence and sound reasoning, the Board determined that a LRLT was not accepted in Ontario as being medically appropriate for Mr. Flora due to the risks involved.

109Mr. Flora further argues that since there was evidence that the treatment would benefit him, the Board ought to have concluded that it was appropriate despite an Ontario medical consensus that he was not eligible to receive such treatment. In oral argument Mr. Freiman put it this way: "It is an impossibly inappropriate interpretation of aeappropriate' to say that it is not appropriate to make a treatment available that will save someone's life." He contends that [s.] 28.4(2) (a) provides for an analysis that considers only whether the treatment is generally recognized as a treatment for a condition.

110This argument is necessarily based on the proposition that the purpose of the HIA is to promote the health and well being of insured persons to such an extent that the denial of public funding for a treatment of any potential benefit to a patient would violate the purpose of the Act. This interpretation is inconsistent with the overall purpose of the legislation and with the grammatical and ordinary sense of the Regulation's words as [page744] understood in the context of that purpose. Furthermore, it is overly broad.

111Mr. Flora's proposed interpretation would limit OHIP's and the Board's considerations to whether a given course of treatment is generally recognized as having some potential medical benefit, as opposed to examining what doctors would actually advise in the circumstances of the particular patient. There is nothing in the wording of the section to limit "generally accepted in Ontario as appropriate for a person in the same medical circumstances" to such a singular clinical analysis.

112In fact, such an interpretation does not reflect how medical practitioners actually make decisions. Medical decision-making requires more than just the consideration whether a treatment may have any benefit to the patient. Resource allocation, a naturally limited supply of donor organs, survival outcomes, and ethical considerations are all necessary and appropriate components to medical decision- making. The test of whether a given treatment is "appropriate" is a factual one depending on the evidence, and cannot preclude resource allocation and ethical factors.

113Moreover, Mr. Flora's interpretation of [s.] 28.4(2)(a) would support an incoherent interpretation of the overall provision. For many individuals, such as Mr. Flora, organ transplantation is their only treatment option. If that is considered sufficient to meet the "generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person" test, then any potentially life-saving out-of-country transplant would qualify for public funding, regardless of a patient's circumstances, since it would necessarily meet the delay test under [s.] 28.4(2)(b) (ii). Any ineligible patient will, by definition, not be able to secure their transplant in Ontario and hence be subjected to a "delay" in receiving treatment. This would erase the distinction between [s.] 28.4(2)(a) and [s.] 28.4(2)(b) (ii), making the latter redundant.

114Furthermore, the provision specifically refers to Ontario standards. To accept Mr. Flora's position would divorce it from the Ontario context and render meaningless the words in the Regulation "in Ontario".

115The Board was entitled to accept the evidence before it as to the nature and extent of Mr. Flora's medical condition and that the treatment was not generally accepted in Ontario as appropriate, because of Mr. Flora's failure to meet the accepted Ontario criteria. It was not that a LRLT was unavailable in Ontario; it was not appropriate for Mr. Flora due to the risks associated with the advanced stage of his cancer. [page745]

116It was reasonable for the Board to conclude that Mr. Flora's treatment was not an insured service. His appeal on this ground, therefore fails.

2. The Board erred in interpreting s. 28.4(2) of the Regulation in a manner that is inconsistent with s. 7 of the Charter.

Interpretation Inconsistent with Section 7 of the Charter

117The foundation of this portion of Mr. Flora's argument is that there is more than one possible interpretation of s. 28.4(2) of the Regulation and therefore it was unreasonable for the Board to have interpreted it in a manner inconsistent with the Charter.

118Mr. Flora argues that the Board's interpretation of the Regulation was unreasonable in that it deprived him of his right to life and security of the person as guaranteed by s. 7 of the Charter. Faced with a provision designed to ensure access to necessary medical care, the Board had a responsibility to interpret it in a manner that furthered that objective and complied with the Charter. In para. 43 of his Fresh as Amended Factum, Mr. Flora states that "by denying him access to a medically necessary procedure because of an organ shortage, the [Board] deprived him of his right to life and security of the person and this deprivation was not in accordance with the principles of fundamental justice".

119Mr. Nakatsuru, on behalf of OHIP, submits that there is no ambiguity in s. 28.4, and so this is not a case in which Charter values are required for interpretation.

120The divide between the parties and the point of departure for the purposes of analyzing this second issue involves whether the Regulation is genuinely ambiguous.

121The law is well settled that only if there is a multiplicity of plausible readings, each equally in accordance with the legislative intent, is it appropriate to resort to external interpretive aids, including Charter values, for purposes of interpretation. (Bell ExpressVu at para. 29; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 680 (SCC), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, at para. 14.)

122The Supreme Court recently re-affirmed this principle in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, at paras. 18-19:

It has long been accepted that courts should apply and develop common law rules in accordance with the values and principles enshrined in the Charter . . . However, it is equally well settled that, in the interpretation of a statute, Charter values as an interpretative tool can only play a role where there is a genuine ambiguity in the legislation. In other words, where the legislation permits two different, yet equally plausible, interpretations, each of which is equally consistent with the apparent purpose of the statute, it is [page746] appropriate to prefer the interpretation that accords with Charter principles. However, where a statute is not ambiguous, the court must give effect to the clearly expressed legislative intent and not use the Charter to achieve a different result. . . .

123If this limit were not imposed on the use of the Charter as an interpretative tool, the application of Charter principles as an overarching rule of statutory interpretation could well frustrate the legislator's intent in the enactment of the provision. Moreover, it would deprive the Charter of its more powerful purpose -- the determination of the constitutional validity of the legislation. (Symes v. Canada, 1993 55 (SCC), [1993] 4 S.C.R. 695, [1993] S.C.J. No. 131; Bell Express Vu Limited Partnership, supra; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563, [2005] S.C.J. No. 77.)

124The first step in determining whether the provision is ambiguous is to analyze it without regard to Charter values.

125The guiding principle of statutory interpretation is legislative intent (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, at para. 12). The dominant contextual approach takes this principle as its starting point (R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16).

126Determining the context of legislation involves the consideration of several factors, including both the legislative history and purpose, as well as the immediate context of the provision -- that is, the surrounding provisions and the rest of the statutory scheme (Montréal at para. 16).

127For ambiguity to exist, it must be "real" -- the words of the provision must be reasonably capable of having more than one meaning (Bell at para. 29; McIntosh at para. 36). Where the language of the statute is plain and admits of only one meaning, such interpretation is not necessary. Where no ambiguity arises on the face of a provision, the plain meaning of the clear words must be given effect.

128Ambiguity is not the same as absurdity. If "clear, unequivocal language" is used that is capable of only one meaning, "it must be enforced however harsh or absurd or contrary to common sense the result may be. . . . The fact that a provision gives rise to absurd results is not . . . sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis." (McIntosh at para. 34, citing Maxwell on the Interpretation of Statutes, 12th ed. (London: Sweet & Maxwell, 1969).).) Parliament is thus free to legislate illogically, barring constitutional concerns' being raised.

129Differing conclusions regarding the interpretation of a provision does not automatically lead to a conclusion that the provision is ambiguous (Bell at para. 30). [page747]

130It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if "the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning" (Bell at para. 30).

131While the contextual approach allows the courts to depart from the common grammatical meaning if required in a particular context, it "does not generally mandate the courts to read words into a statutory provision" (McIntosh at para. 26).

132In my opinion, there is no ambiguity in the statutory provision.

133The intention of the Legislature with respect to the provision is clear. The Legislature intended to impose a limit on funding for medical treatment obtained outside of the country. The critical factor is that the out of country treatment at issue must be appropriate in Ontario. It must be specifically suitable, proper or fitting for a person, in Ontario, in the same medical circumstances.

134The language of s. 28.4(2) is equally clear. The focus is on accepted treatment standards in Ontario. It is not ambiguous or arbitrary, but is rather animated by equal access to treatment consistent with Ontario's priorities, standards and values. To read it otherwise would engage not in a valid process of statutory interpretation, but would instead result in an impermissible reading-in of content foreign to the enactment.

135Mr. Flora advances the argument that the phrase "generally accepted in Ontario" does not sufficiently delineate the boundary between what will be covered and what will not. He therefore submits that the phrase is unconstitutionally vague, as it does not provide any guidance by which the Board may determine whether payment should be offered to persons seeking out-of-country medical care.

136However, the intention of the Legislature with respect to the provision is plain; clearly, it is intended to limit reimbursement to those procedures and treatments that would have been considered appropriate for an equivalent individual in equivalent circumstances in Ontario. By qualifying the statement with the provincial limitation, the Legislature clearly distinguishes between Ontario and elsewhere, implying that it was aware that standards and practices could, in fact, vary geographically. It is obvious that the Legislature intended to emphasize the local nature of the provision. This is not, as Mr. Flora submits, an arbitrary distinction, but one that is advanced with the idea of fairness and equity in the distribution of health care resources in Ontario. As Mr. Flora failed to [page748] meet the criteria for a LRLT in Ontario, he does not meet the requirements from obtaining reimbursement.

137The plain and unambiguous meaning of "appropriate" is just that -- appropriate. There is no room to interpret the word "appropriate" in the fashion advanced by Mr. Flora. The result of Mr. Flora's redefinition is the equation of "appropriate" treatment with that which is necessary for the protection of life and security of the person. "Appropriate" and "life-saving" are not always one and the same. It is not always appropriate to do all that would be necessary to save a life. This will often be the case where the risks to the patient or to others involved cannot be reconciled with the likelihood that the treatment will be successful. For example, while CPR in frail elderly individuals may be considered "life saving", it is not always appropriate due to the potential risks associated with CPR. Such an interpretation would result in a situation where an applicant need only demonstrate that a lack of funding for treatment would jeopardize his or her life or security of the person in order to satisfy the conditions of the provision. While funding additional medical treatments (in this case, a treatment available in the UK) may well be a laudable objective, I can see no basis in the language of s. 28.4(2) to suggest that this is the motivating goal behind its enactment. Rather, the provision is animated by equal access to treatment consistent with Ontario priorities, standards and values. There is therefore no reason to think the interpretation proposed represents an additional interpretation equally plausible and equally consistent with the legislative purpose.

138In light of my conclusion that there is no ambiguity in the section, Mr. Flora's argument that the Board's decision is unreasonable on the basis that its determination of the statutory provision violated his Charter rights, must therefore fail. If there is a constitutional frailty within s. 28.4, it should be addressed directly in a constitutional challenge. What remains in question, therefore, is whether the provision is constitutionally permissible.

3. Subsection 28.4(2) of the Regulation violates Mr. Flora's right to life and security of the person and is therefore inconsistent with the Charter.

Constitutionality of Subsection 28.4(2) of the Regulation

139Mr. Flora submits that the Regulation is unconstitutional and is therefore of no force and effect by virtue of s. 52 of the Constitution Act, because it violates his rights under s. 7 of the Charter. Section 7 provides that "everyone has the right to life, liberty and security of the person and the right not to be [page749] deprived thereof except in accordance with the principles of fundamental justice".

140Mr. Flora relies heavily on the recent decision of the Supreme Court of Canada in Chaoulli v. Québec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33. He submits that the government, having chosen to provide universal health care, is required to do so in a manner that complies with the Charter. Since s. 28.4(2) of the Regulation does not provide payment for a person who needs out-of-country medical treatment in order to save his or her life, it violates that person's right to life. Alternatively, he argues that if his right to life is not infringed by the provision, then his right to security of the person is engaged. Mr. Flora says that the obstacles he faced in obtaining life-saving out-of-country treatment threatened his life and forced him to choose between death and funding his own care. [See Note 6 below]

141Ms. Minor's position, on behalf of OHIP, is that there is no violation of s. 7 of the Charter as there was no state action or state deprivation of Mr. Flora's life or security of the person. His interest is economic and is not covered by s. 7. Moreover, the medical profession and not the government determined the standards according to which Ontario doctors decided that Mr. Flora was not a suitable candidate for a LRLT. Furthermore, Mr. Flora's s. 7 rights are not engaged. He was not deprived of anything. Specifically, he was not prohibited from seeking out-of-country treatment. Ms. Minor submits that Mr. Flora is, in effect, seeking a positive right to health care, which is not constitutionally protected under s. 7. In any event, she says, s. 28.4 complies with the principles of fundamental justice and is not constitutionally vague, arbitrary or grossly disproportional.

142In Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, at para. 75, Chief Justice McLachlin identified three elements that must be part of a claim such as that advanced by Mr. Flora. First, Mr. Flora must demonstrate that the Regulation affects an interest protected by the right to life, liberty or security of the person within the meaning of s. 7. Secondly, he must demonstrate that the limitations contained in the Regulation pertaining to funding for out-of-country treatment constitute a "deprivation" by the state. Thirdly, if deprivation of a right protected by s. 7 is established, Mr. Flora must [page750] demonstrate that this was not in accordance with the principles of fundamental justice.

143There is also the issue pertaining to the s. 1 considerations.

(i) Does the Regulation affect a s. 7 interest?

Does the Regulation affect a s. 7 interest?

144Life, liberty and security of the person are three distinct concepts or interests. Each has its own meaning or content that will be informed by the tradition of legal protection of these important interests, but "sensitive to [their] constitutional position" (R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, at para. 16). Only life and security of the person are relevant in this case.

145In Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326, [1989] S.C.J. No. 124, at paras. 51-52, Wilson J. indicated that because a right or freedom may have different meanings in different contexts, courts must engage in a contextual approach to Charter review, considering the right or freedom at stake and the relevant aspects of values that are in competition with that right or freedom. This allows the court to determine the importance and purpose of the right or freedom in each particular context, not in the abstract.

146This approach has been repeatedly endorsed and has been applied to s. 7. Thus, before undertaking the s. 7 analysis, the court must first "outline briefly the social and legislative context" of the impugned government action (Winnipeg Child and Family Services v. W. (K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519, [2000] S.C.J. No. 48, at para. 71). This is important for assessing the importance of the s. 7 rights and the principles of fundamental justice that are at stake.

147To some extent, the legislative context has already been commented upon in other parts of these reasons. I further note that in Chaoulli, the Supreme Court specifically addressed the legislative context of the CHA and the manner in which its provisions are implemented through provincial health legislation such as the HIA. Chief Justice McLachlin and Justice Major (at para. 105) identified the primary objective of the CHA as being "to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers" (emphasis in original).

148Mr. Flora argues that by refusing to fund the treatment, the state denied him access to life saving treatment. The Board's decision also exposed him to adverse physical and psychological consequences or certain death. Ms. Minor's position is that the [page751] real interest Mr. Flora raises is an economic one and that s. 7 does not protect economic interests. No right to "property" is included in the provision.

149The courts have, however, drawn a distinction between corporate-commercial economic interests, which clearly do not fall within the scope of protection in s. 7, and economic interests that are fundamental to human life. In obiter remarks in Irwin Toy Ltd. v. Québec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, Dickson C.J. noted that it would be inadvisable in that case to pronounce upon "whether those economic rights fundamental to human life or survival are to be treated as though they are of the same ilk as corporate- commercial economic rights" (at pp. 1003-04 S.C.R.).

150Arbour J. took this up in her dissent in Gosselin, supra, commenting at para. 311 that s. 7 should protect the right to social assistance where "the rights at issue . . . are so intimately intertwined with considerations related to one's basic health (and hence "security of the person") -- and, at the limit, even of one's survival (and hence "life")". She concluded that labeling the right "economic" constituted a "gross mischaracterization", since the "very nature of rights" is "that they crystallize certain benefits, which can often be quantified in economic terms" (para. 312).

151In my view, the Board's decision that a LRLT was not an insured service affected Mr. Flora in a manner that went beyond an incidental loss of money. The decision not to fund a potentially life-saving treatment had the effect of leaving in place substantial financial and practical obstacles to Mr. Flora's obtaining the treatment needed to save his life.

152I accept, as a matter of common sense, that few individuals would be able to fund a $500,000 treatment. Therefore, the Regulation affects, albeit in economic terms, access to health care services that implicate a person's life and security of the person. Accordingly, it may be a mischaracterization, in these circumstances, to label Mr. Flora's interest "economic" in the sense in which economic interests have been specifically excluded from s. 7 protection.

153It is, of course, impossible to say that Mr. Flora would certainly have died without a LRLT. However, all medical opinion was to the effect that it was "his only chance". Furthermore, the potential to cause death, or causing an increased risk of death, engages the right to life. (Chaoulli, supra, at para. 123, per McLachlin C.J. and Major J.; at para. 200, per Binnie and LeBel JJ.; at paras. 38-40 per Deschamps J.) That is consistent with the suggestion that "given the interest at stake, a risk to [page752] life may itself violate the right to life" (Roach, Swinton, Sharpe, The Charter of Rights and Freedoms at p. 183). It is also consistent with the idea that an "imminent deprivation" -- i.e., one that has not yet occurred -- can engage a protected interest (R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451, [1995] S.C.J. No. 10, at para. 27).

154It follows that the Regulation affects an interest protected by the right to life.

155Turning to the concept of "security of the person", I note that there are both physical and psychological dimensions to that right. In Morgentaler, the majority held that the impugned abortion provisions seriously compromised a woman's physical and psychological integrity in a manner that constituted an infringement of her security of the person: at pp. 56-7 S.C.R., per Dickson C.J. (Lamer J. concurring); at pp. 104-05 S.C.R., per Beetz J. (Estey J. concurring); at pp. 173-74 S.C.R., per Wilson J. For Dickson C.J., "state interference with bodily integrity and serious state-imposed psychological stress" (at para. 22) engaged the security of the person interest; see also Wilson J. at para. 245. See also: Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94 and New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47.

156In Chaoulli, Binnie and LeBel JJ. were of the view that delays in treatment could cause interference with physical and mental well being, amounting to a deprivation of both physical and psychological personal security (at paras. 203-206). McLachlin C.J. and Major J. also found that delay in medical treatment could engage security of the person, because injuries could become irreparable, or due to pain, constant discomfort or limited mobility and due to the possibility of "significant adverse psychological affects" (at paras. 111-119). That any psychological impact must be serious was emphasized in Chaoulli in both plurality judgments.

157I accept Mr. Flora's submissions that the Regulation has the potential of affecting his security of the person, given the potential psychological consequences of an individual's finding himself or herself in the position that results from OHIP's refusal to fund an out-of-country treatment. However, the panel's attention was not drawn to any evidence in support of a specific finding of any such consequences.

158Notwithstanding [that] I have found the Regulation to affect a s. 7 interest of Mr. Flora's, there remains a fatal hurdle to Mr. Flora's Charter challenge. [page753]

(ii) State Deprivation

State Deprivation

159That hurdle is the second element of a s. 7 analysis as identified by Chief Justice McLachlin in Gosselin, namely, whether restricting the circumstances under which an out-of- country treatment is an insured service, in the manner set out in the Regulation, constitutes a deprivation by the state. It is here that Mr. Flora's Charter challenge fails.

160Ms. Minor submits that there is no government action that could be understood to engage Mr. Flora's Charter rights. Mr. Flora was denied the treatment because he did not meet the criteria for a LRLT that were accepted in Ontario. Accordingly, it was the physicians, not the government who denied Mr. Flora a LRLT. There is no evidence that these physicians based their decision on anything other than an independent assessment of Mr. Flora's medical circumstances. There is no evidence that their decision was based on any government policy.

161Ms. Minor goes on to argue that even if the Charter is generally applicable to these circumstances, there has been no government action sufficient to engage Mr. Flora's s. 7 rights. A significant connection between the harm and the impugned state action is required to invoke the s. 7 protection of the Charter. She contends that Mr. Flora has not shown that there has been a deprivation by the state of any life or security of the person interest as, unlike in R. v. Morgentaler, supra, Rodriguez v. British Columbia, supra, or Chaoulli, supra, the provision at issue does not prohibit Mr. Flora from seeking medical treatment.

162Mr. Flora, on the other hand, argues that there is no shortage of government action in the issues he raises. Having established a system to pay for out-of-country medical care, the state had an obligation to administer it in a manner consistent with the Charter. In the context of Mr. Flora's personal circumstances, the state had an obligation to pay for life-saving treatment. He suffered a deprivation of his right to life and security of the person when OHIP, an arm of the state, denied funding for a LRLT. While he was not legally prohibited from accessing the treatment, the fact that he was denied funding had a two-fold effect. First, it gravely threatened his life. Secondly, by forcing him to choose between almost certain death and funding his own care, OHIP deprived him of his right to security of the person.

163In his oral submissions Mr. Freiman argued that the fact that Mr. Flora was able to raise the money necessary for the life-saving treatment is not relevant to his s. 7 claim. That was sheer good fortune. The reality is that what is at stake is not money for life-saving treatment but access to such treatment. The fact that [page754] the denial is in the form of failure to provide funding makes it no less a deprivation of the rights enshrined in s. 7 as the consequence of the lack of funding is to expose the individual to a denial of life-saving treatment and/or the stresses involved in seeking such treatment out of country.

164Mr. Freiman contends that Mr. Flora suffered an infringement of his life and security of the person when OHIP denied him access to an insured benefit, namely out-of-country treatment that carried with it a probability that his life would be saved. As in Chaoulli, the government has, through enacting s. 28.4 of the Regulation, "intervened in such a manner as to create an additional risk to health, and consequently this intervention constitutes a violation of . . . security to the person" (Chaoulli at para. 118).

165According to Mr. Freiman, this case goes beyond Chaoulli. In Chaoulli, the issue was delay. Here, the issue is total denial -- deprivation that involves both life and security of the person. In fact, in oral submissions, Mr. Freiman suggested that the facts of this case fit the reasoning of Chaoulli better than the facts of Chaoulli itself.

166I do not accept Ms. Minor's argument that the Charter is not engaged because there has been no government action. Even if it could be said that the core of Mr. Flora's problem is not OHIP's decision, but rather the physicians' decision that Mr. Flora was not eligible for a LRLT, there is still an element of state action that attracts Charter scrutiny. It is true that the Regulation does not mandate the denial of the treatment to Mr. Flora, but only tracks medical policy, making funding for out-of-country treatment a function of medical practise in Ontario. But, as per Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, the government is not permitted to shield itself from constitutional review by hiding behind its private delegates or the algorithms that determine its policies on the basis of what private actors do. The Regulation tracks medical policy and adopts it as government policy for the purpose of funding treatment. Because accepted medical practice is adopted as government policy for this purpose, the Regulation is permitted to track medical policy only within the bounds of the Constitution.

167I now turn to the heart of the matter, namely, whether state action deprived Mr. Flora of his right to life and/or security of the person.

168For the reasons that follow, I have concluded that the decision not to fund a LRLT did not deprive Mr. Flora of a constitutionally protected right and therefore did not contravene s. 7 of the Charter as it is now understood. Mr. Flora's s. 7 rights are not [page755] engaged because the Regulation does not create an impediment to individuals in securing out-of-country treatment.

169Mr. Flora's argument that his s. 7 rights are engaged can be briefly summarized as follows. He says he has been deprived of his right to life and/or security of the person in the following ways. First, the denial of funding effectively deprived him of access to life-saving treatment. Secondly, in 1993 the wording of the Regulation was changed in such a way as to narrow the circumstances under which an out-of-country treatment may be considered an insured service. Mr. Flora contends that the government's action of restricting a benefit that would have been available to him under the previous Regulation constitutes deprivation. Finally, Mr. Flora appears to be arguing that the funding restriction set out in the Regulation is arbitrary and that this arbitrariness amounts to a deprivation of his s. 7 rights.

170I do not accept any of these arguments.

171In dealing with Mr. Flora's first argument I start with Chaoulli since he relies upon it so heavily.

172In Chaoulli, the applicants challenged Québec legislation that "prohibited" Quebeckers from taking out insurance to obtain in the private sector services that were available under Québec's public health care plan. The applicants contested the validity of this prohibition on the basis that it deprived them of access to health care services that bypassed the waiting lists that plagued the public system. They claimed, among other things, that the legislation violated their rights under s. 7 of the Charter.

173McLachlin C.J. and Major J. essentially found that the Québec government's establishment of a virtual monopoly on health care in the context of waiting lists was not in accordance with the principles of fundamental justice. Preventing people from obtaining private insurance to purchase the health services they need was found to be arbitrary, since to permit this would not have adversely impacted the public health care system.

174This fact situation is distinguishable. In Chaoulli, the government's prohibition deprived an individual of the opportunity to avoid life-threatening delay in obtaining health care. However, in the case at bar, the government has not prohibited anything. Section 28.4 of the Regulation does not in any way restrict an individual from securing his or her own health care or in arranging his or her own treatment.

175As Ms. Minor points out, the key question is whether any alleged deprivation is the causal result of the Regulation.

176Causation was [an] issue in Morgentaler. Dickson C.J. determined that the complex decision-making mechanism set out in the Criminal Code, R.S.C. 1970, c. C-34 caused women eligible [page756] for a therapeutic abortion delay in obtaining one. The evidence showed that such delays could seriously impact a woman's physical and psychological well- being. Dickson C.J. rejected an argument by the Crown that women having difficulty obtaining a therapeutic abortion locally could simply travel elsewhere in Canada to obtain one: such an argument would not be "especially troubling if the difficulties facing women were not in large measure created by the procedural requirements of s. 251 itself. . . . But the evidence establishes convincingly that it is the law itself" which prevents access to local therapeutic abortion facilities (para. 51). Beetz J. also found that the law itself was the source of delays creating additional medical risk for pregnant women who were eligible under the act for a therapeutic abortion (para. 93).

177In Rodriguez, the majority considered this as a threshold issue and rejected the Crown's characterization of Mrs. Rodriguez's deprivation of security of the person as caused not by the government but by her physical disabilities. The court held that the Criminal Code prohibition on assisted suicide directly deprived her of the ability to terminate her life. It would undoubtedly contribute to her distress if she were prevented from managing her death (para. 128).

178Similarly, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, the court examined the causal link between the delay in the British Columbia Human Rights Commission proceedings against Mr. Blencoe and the alleged infringement of his s. 7 rights. The court assumed that the stigma attached to the outstanding complaints had contributed to the protracted and severe hardship Mr. Blencoe and his family endured, and that this could constitute "a sufficient nexus between the state-caused delay and the prejudice to Mr. Blencoe" (at para. 73).

179Whereas in Rodriguez and Morgentaler, the impugned provisions prohibited individuals from seeking medical treatment or related services, thereby directly infringing the individuals' s. 7 rights, in Blencoe, even in the absence of the impugned delay, there were pre-existing factors that would have led to the alleged deprivation in any event.

180Causation was raised as an issue in Chaoulli as well. Binnie and LeBel JJ. stated at para. 211 that "neither the mere existence of waiting lists, nor the fact that certain individuals like Mr. Zeliotis feel unfairly dealt with, necessarily points to a constitutional problem with the public health system as a whole". They noted that his physician believed that he was not an "ideal candidate" for the surgery because he had suffered a heart attack and undergone bypass surgery earlier that year. [page757] Binnie and LeBel JJ. pointed to the trial judge's findings that part of the delays were not caused by the waiting lists but by Mr. Zeliotis's pre- existing depression, indecision and complaints. For the trial judge, it was "hard to conclude that the delays that occurred resulted from lack of access to public health services". Ultimately, however, the plurality of the court was convinced that the prohibition on private insurance and resulting delays in the public system could provide the basis for a significant connection between state action and the alleged deprivation of s. 7 rights.

181In Whitbread v. Walley, 1988 2819 (BC CA), [1988] B.C.J. No. 733, 26 B.C.L.R. (2d) 203 (C.A.), affd on other grounds 1990 33 (SCC), [1990] 3 S.C.R. 1273, [1990] S.C.J. No. 138, 77 D.L.R. (4th) 25, McLachlin J.A. (as she then was) found that statutory limitations on liability did not deprive an accident victim of s. 7 rights. She held that s. 7 does not extend to an economic interest based on a loss of life, liberty or security of the person, nor does it encompass all economic interests that may affect a person's life, liberty or security of the person. The deprivation of life, liberty and security of the person that the plaintiff has suffered is not caused by the legislative provisions, but by the accident.

182Justice McLachlin distinguished Morgentaler by observing that there is a critical difference between legislation that directly tells a woman what she can and cannot do with her body on pain of criminal sanction and legislation that affects monetary recovery.

183Thus, unlike Rodriguez, Morgentaler and Chaoulli, in both Blencoe and Whitbread, there was no state action directly prohibiting an individual from making personal choices that impacted his or her life, liberty or security of the person.

184That is the situation here. The point has been made but bears repeating: the Regulation is not prohibitive. Its impact is to extend a benefit not otherwise available to residents of Ontario. Mr. Flora's complaint is that the benefit does not go far enough. A complaint of this nature, while understandable, is readily distinguishable from the rights infringements in cases such as Rodriguez, Morgentaler and Chaoulli.

185Mr. Flora's second point in support of his argument that the Regulation constitutes a deprivation, is based on a change in the wording of the Regulation. Previously, Regulation 552 provided, in s. 28(2), that "[w]here a person receives treatment in a hospital outside Canada as an in-patient or out- patient, the cost of the insured services paid by the Plan shall be the amount determined by the General Manager for that hospital." In 1993, the wording of the Regulation was changed to limit the definition [page758] of insured services insofar as they pertain to medical treatment rendered outside of Canada at a hospital or health facility in the manner set out in the currently worded version of s. 28.4(2).

186This amendment had the effect of reducing Mr. Flora's access to funding for certain medical treatments obtained out of the country. However, I agree with Ms. Minor that the repeal or limitation of a statutory benefit does not engage s. 7 rights unless there was a pre-existing, freestanding Charter right to that benefit. A government decision to establish a statutory benefit that is not constitutionally mandated does not itself create a constitutional right.

187This was made clear in the case of Ferrel v. Ontario (Attorney General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97, [1998] O.J. No. 5074 (C.A.), in which the Court of Appeal for Ontario held that if there is no constitutional obligation to enact legislation in the first place, the legislature is free to return to the state of affairs to what it was before the legislation in question was enacted, without being obligated to justify the repealing statute under s. 1 of the Charter. While this case arose in the context of a s. 15 claim, the manner in which the court analyzed the constitutional issue arising out of legislation that limited or repealed statutory benefits is equally applicable in the context of a s. 7 claim. The constitutional analysis must focus on whether a Charter right existed in the first place. To hold otherwise would create a broad class of statutes that would enjoy the status of a constitutional guarantee as they would be immune from repeal. (Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, [2001] S.C.J. No. 87.)

188Mr. Flora's final argument is that the very arbitrariness of the Regulation itself amounts to a deprivation of his s. 7 rights. In other words, a deprivation exists because he was deprived of what he would have had if the Regulation had not been arbitrary.

189In my view, grounding the deprivation on a breach of fundamental justice is inconsistent with both the wording of s. 7 and the manner in which the section has been interpreted. The wording of s. 7 establishes that it is first necessary to prove a deprivation of a right before turning to the issue of fundamental justice. This is undoubtedly why the Supreme Court invariably analyzes claims under s. 7 in stages -- first examining whether a s. 7 right is implicated, then whether there has been a deprivation by the state of the right in issue and finally whether the deprivation has been in accordance with the principles of fundamental justice. (Gosselin, supra, at paras. 75 ff; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, at para. 38; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, at para. 83.) This is more than a [page759] convenient and logical analytical structure; it goes to the essence of s. 7 protection.

190Absent an independent deprivation, arbitrariness of the legislation cannot itself engage Mr. Flora's life or security of the person. Arbitrariness is a matter of the relationship between the goal of the provision and the means put in place to advance that goal. Mr. Flora asks this court to find the means to have no connection to, or to be inconsistent with, the purpose of the Regulation, and to require the government to remedy the inconsistency or disconnect by adjusting the means. Clearly, however, it would be open to the government to clarify its purpose in enacting the Regulation, or to adjust the purpose in another way, so as to make it consistent with and connected to the existing limitation on funding for out-of- country treatment. Therefore it cannot be said that absent the supposed arbitrariness of the Regulation, Mr. Flora would have the benefit he is seeking. An independent deprivation of a protected interest is required to activate s. 7. In any event, as will be seen later in these reasons, I find the Regulation is not arbitrary.

191Mr. Flora further argues that the door has been left open for s. 7 to be interpreted in such a way as to create positive obligations on the part of the government and in the context of the provision of health care necessary for an individual's very survival, should be so interpreted.

192Ms. Minor submits that the statutory provision in issue provides a positive remedial benefit where, absent government action, none would exist. Mr. Flora's complaint that the benefits bestowed by the Regulation do not go far enough pre- supposes that s. 7 creates positive obligations on the government, a position that the Supreme Court has thus far steadfastly refused to endorse.

193I agree with Ms. Minor's submission. What Mr. Flora was deprived of was a benefit. His argument that being deprived of a benefit violated his s. 7 rights, is dependant on s. 7's being interpreted as creating a positive obligation on the part of government. I do not accept that, in the context of this case, s. 7 should be so construed.

194The rights protected in s. 7 have thus far been interpreted to constitute a "negative right" to non- interference by the state. The majority in Gosselin agreed that "[n]othing in the jurisprudence thus far suggests that s. 7 places a positive obligation [on government] to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these" (emphasis in original). [page760]

195However, in Gosselin, the Chief Justice did suggest (in para. 82) that, "one day s. 7 may be interpreted to include positive obligations". The question is, therefore, whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee out-of- country health care unrestricted by what is "generally accepted in Ontario as appropriate for a person in the same medical circumstances".

196Recently, in Wynberg v. Ontario, 2006 22919 (ON CA), [2006] O.J. No. 2732, 269 D.L.R. (4th) 435 (C.A.), the Court of Appeal for Ontario had an opportunity to consider whether s. 7 of the Charter creates a positive obligation on the government in the context of the provision of programs for autistic children.

197Justice Goudge, speaking for the court, confirmed (at para. 220) that to date, s. 7 has been interpreted only as restricting the state's ability to deprive individuals of life, liberty or security of the person. The court concluded that "standing alone", the government's decision to provide a certain program to autistic children up to a certain age did not create a constitutional obligation to provide programming on a more widespread basis. The government's actions in failing to provide programs to school-age children did not amount to depriving the applicants in that case of a constitutionally protected right and therefore did not contravene s. 7, as it is currently understood.

198Moreover, in Wynberg, the Court of Appeal rejected the argument that Chaoulli imposes a constitutional obligation on governments to fund particular medical treatments -- an argument that the applicants advanced in that case and that Mr. Flora advances here. The Court of Appeal recognized (at para. 222) that Chaoulli involved a challenge to a statute that prohibited activity. Individuals were prohibited from making private health insurance contracts. The court rejected the relevance of Chaoulli, since that case involved a law restricting individuals' "ability to spend their own money" in order to protect their health.

199As in Wynberg, no issue comparable to that in Chaoulli arises in this case. There is no law restricting Mr. Flora's ability to spend his own money for out-of-country treatment.

200Even if the right to life and security of the person in s. 7 could be characterized as providing for freestanding positive rights, to the extent that the government's health care policies may affect these rights, the Supreme Court has explicitly stated that there is no constitutional right to state-funded health care. In Chaoulli, the opening words of the judgment of McLachlin C.J. and Major J. (at para. 104) were that "[t]he Charter does not confer a freestanding constitutional right to health care." [page761]

201While Mr. Flora, as I said earlier, relies heavily on Chaoulli in support of his argument challenging the constitutionality of the Regulation, it is distinguishable in a very fundamental way. This fundamental distinction provides a useful base from which to summarize the reason why Mr. Flora's Charter challenge must fail.

202The legislative prohibition against private health insurance in Chaoulli violated s. 7 of the Charter because through it, the state impinged on s. 7 rights in an arbitrary fashion. At para. 106, McLachlin C.J. and Major J. stated that the legislation actually limited access to private health services by removing the ability to contract for private health care insurance to cover any services covered by public insurance. Due to the resulting "virtual monopoly" over health care by the state, delays occurred and s. 7 rights were violated: "The state has effectively limited access to private health care except for the very rich, who can afford private care without need of insurance". People who could not afford to pay for private care without securing private insurance were forced to accept delays in the medical system and the adverse consequences of such delays (para. 111).

203McLachlin C.J. and Major J. drew comparisons between Chaoulli and Morgentaler. They noted at para. 119 that in both cases, the problem (psychological and physical suffering) arose from a legislative scheme offering health services. In Morgentaler, the legislation, which created delays in obtaining therapeutic abortions, denied some people of the right to access alternative health care; the sanction would be criminal prosecution. In Chaoulli, the sanction for seeking prohibited private insurance would be administrative but "[t]he important point is that in both cases, care outside the legislatively provided system is effectively prohibited" (para. 119).

204In Chaoulli, Morgentaler and Rodriguez, but not in Mr. Flora's situation, the state took action to prohibit something. The prohibition in these cases meant that the individual was not allowed to take his or her desired course of control over his or her own health without suffering consequences imposed by the state (Chaoulli at para. 122). These are all very much cases essentially dealing with freedom "from" state interference in the manner in which individuals arrange their health care. While the decision by the state to fund or not to fund a particular course of treatment may certainly impact a person's s. 7 interests, such an effect is not the type of infringement contemplated by s. 7. If it were, it would seem that the burden on the government would be limitless.

205For these reasons, I conclude that Mr. Flora's Charter rights under s. 7 are not engaged. While this conclusion is sufficient [page762] to dismiss the Charter challenge, for the sake of completeness I will deal briefly with the principles of fundamental justice.

(iii) The principles of fundamental justice

The Principles of Fundamental Justice

206Lamer J. (as he then was), writing for the majority in Reference re Motor Vehicle Act (British Columbia) S. 94(2), 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, at para. 30, provided the following definition of the principles of fundamental justice:

[T]he principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of "principles of fundamental justice" provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters.

207The principles of fundamental justice relevant for the present purposes are vagueness, arbitrariness and gross disproportionality.

208The standard of unconstitutional vagueness is high: "a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate". The law must set an "intelligible standard" both for the citizens it governs and the officials who must enforce it. (R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67, at para. 71 and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, at para. 16.)

209Only "where a court has embarked upon the interpretive process, but has concluded that interpretation is not possible" should a law be declared unconstitutionally vague. (Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62.)

210I do not agree with Mr. Flora that the Regulation is unconstitutionally vague in that the phrase "generally accepted in Ontario" fails to sufficiently delineate the boundary between what will be covered and what will not. As evidenced earlier in these reasons, the phrase is quite capable of coherent interpretation. It establishes a fact-dependent test that is well understood and that recognizes and incorporates the current state of medical practice in Ontario. The courts and the Board have applied the standard for many years, in this and in other sections of Regulation 552. [See Note 7 below]

211It has long been recognized as a principle of fundamental justice that laws should not be arbitrary. As stated by McLachlin C.J. and Major J. in Chaoulli, "[t]he state is not entitled to arbitrarily limit its citizens' rights to life, liberty and security of [page763] the person" and a law is arbitrary if "it bears no relation to, or is inconsistent with, the objective that lies behind it". This is particularly so when the right to life is engaged requiring the connection between the infringing legislative measure and its objective to be especially clear (paras. 129-31).

212This is the breach of fundamental justice upon which Mr. Flora relies most heavily. He contends that the Regulation draws an arbitrary distinction between the state of medical knowledge in Ontario and elsewhere in the world.

213According to Mr. Flora, there is no rational reason why the state of medicine in Ontario should establish his entitlement to medically necessary health care. Mr. Flora submits that OHIP may not draw a distinction between services that it will pay for and those that it will not on the basis of the unintelligible and arbitrary standard of what is "generally accepted in Ontario". To hold otherwise is to erect precisely the sort of financial barrier that the CHA rejects, and to create an unfair distinction between those who can afford to fund their own care in like circumstances and those who cannot. Mr. Flora submits that this type of arbitrary distinction cannot comply with the Charter.

214Mr. Flora argues that the goals of the CHA or the HIA can be met without excluding Mr. Flora from the beneficial scheme.

215This brings me to his argument based on the similar provision under the Saskatchewan legislation. Mr. Flora submits that equivalent health care legislation in Saskatchewan recognizes the inherently international characteristic of quality health care standards. Saskatchewan's out-of-province health care provision gives discretion to the Minister to accept the opinion of reputable out-of-province medical experts, thereby ensuring a high quality of health care for all Saskatchewans, providing an example of how this international standard can be managed within the context of the Canadian health care system.

216Section 14 of the Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S-29, provides:

Insured Services

14(3) Subject to Sections 15 and 24, where a beneficiary receives a service outside Saskatchewan that would be an insured service pursuant to subsection (1) or (2) if it were provided in Saskatchewan, the service is an insured service if it is provided:

(a) by a person who, in the opinion of the minister, possesses qualifications equivalent to those required of a person providing that type of insured service in Saskatchewan; and

(b) in accordance with the terms and limitations prescribed in the regulations. [page764]

217While another province has chosen to define insured services differently, in terms of treatments obtained out-of- country, the accepted definition of arbitrariness remains that the measure "bears no relation to, or is inconsistent with" the goal. Even if the government of Ontario circumscribed the limits of the beneficial scheme in a manner that was not necessary, that does not bear on whether the law is arbitrary.

218Whether a law is arbitrary must be assessed in relation to its purpose. So long as the statutory provision is consistent with and connected to the legislative purpose, it is not arbitrary. Clearly it is consistent and connected -- particularly to the goals of responsible limits on public spending and making sure Ontarians have access to the Ontario standard of health care regardless of where the treatment is obtained.

219Specifically, I find that the limitations within the provision, rather than being arbitrary, are consistent with the objectives of the provision and the HIA. Once again, s. 28.4 of the Regulation is designed to promote equality of access for Ontarians to medical procedures that are covered by OHIP in certain specified circumstances of unavailability within the province, the provision of safe and competent health care to Ontarians, and responsible limits on the public funding of out- of-country health care in order to protect the integrity of the health care system given the available resources.

220Mr. Flora also submits that the deleterious effects of the Regulation are grossly disproportionate to the legislative objective.

221Mr. Flora submits that the effect of the Regulation is to deny a dying man treatment simply because the necessary treatment had not previously been administered in Ontario. It is intolerable in a civilized society that a man should be forced to choose between bankrupting his family in order to pay for life-saving treatment or facing certain death.

222The principle of proportionality is "fundamental to our constitutional system" (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, at para. 47). The Supreme Court has held that where the means to achieve an objective are grossly disproportionate to the desired end, they offend the principles of fundamental justice. A measure is grossly disproportionate where "Canadians would find [the measure] abhorrent or intolerable" (R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, [2000] S.C.J. No. 39, at para. 26; R. v. Malmo-Levine, supra, at para. 159). To be grossly disproportionate the response must be so extreme as to be per se disproportionate to any legitimate state interest (Suresh, supra, at para. 47). This is a very [page765] high threshold to meet. Even disproportionate or excessive means will not violate the principles of fundamental justice.

223In my view, this principle has no application to s. 28.4. This is a remedial benefit providing funding where none would otherwise exist for out-of-country treatment. The means chosen are measured and reasonable given the state objectives. To contend as Mr. Flora does that such state regulation is grossly disproportional because some gravely ill individuals may not qualify for funding is an argument not founded upon the "basic tenets of our legal system" but in "the realm of general public policy" (Malmo-Levine, supra, at para. 112).

(iv) Can a breach of s. 7 be justified under s. 1?

Can a breach of s. 7 be justified under s. 1?

224It has never been held by a majority of the Supreme Court that a breach of s. 7 of the Charter was justified under s. 1 (Hogg, Peter W., Constitutional Law of Canada, student ed. (Toronto: Carswell 2004) at 35.14(b)). The difficulty of justifying a breach of s. 7 under s. 1 arises partly because of the serious, fundamental nature of the interests protected in s. 7, and partly because of the internal limitation that already exists in s. 7. Lamer J. (as he then was), writing for the majority in Motor Vehicle, considered the rare circumstances under which administrative expediency might provide justification under s. 1, at para. 83: "Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like."

225For these reasons, I do not consider it necessary to embark upon a s. 1 analysis.

VII Conclusion

Conclusion

226At the core of Mr. Flora's case, he is seeking the extension of a health care benefit beyond that which the statute provides, through a challenge either to the Board's decision or to the Regulation itself.

227The Supreme Court has had opportunity to examine the extent of the government's obligations under its monopolistic control of our health care system. The law is clear that where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. That does not entail that, having decided to provide health care, the government must do everything possible to save the lives of its citizens in every circumstance, including funding all potentially life- saving treatments. [page766]

228Certainly the facts of this case are such as to create great sympathy for Mr. Flora. However, the legislative scheme under which health care is provided to Canadians does not have, as its purpose, the meeting of all medical needs. [See Note 8 below]

229For these reasons the appeal is dismissed. If costs are sought, the parties are encouraged to attempt to resolve this issue. If they are unable to do so, they may make written submissions within 30 days of the date of release of these reasons.

Appeal dismissed.

Notes ----------------

Note 1: A dissenting member provided separate reasons. For simplicity, I will refer to the majority as the "Board" and its decision as the "Board's decision". Explicit reference will be made to the dissenting opinion where it is discussed.

Note 2: The issue of Mr. Flora's Charter rights was not raised before the Board. In 2002, the Government of Ontario enacted the Government Efficiency Act, 2002, S.O. 2002, c. 18. This Act precludes the Board from considering the constitutional validity of a provision of an Act or a Regulation. On December 20, 2005, Carnwath J. granted Mr. Flora leave to amend the Notice of Appeal in the porceeding, in order to include Charter arguments: 2005 47693 (ON SCDC), [2005] O.J. No. 5482, 2007 O.A.C. 330 (Div. Ct.)

Note 3: However, the Board expressed concerns about both the relevance and the reliability of this evidence.

Note 4: There is no issue as to the standard of review with respect to the Charter argument as teh Board did not consider the impact of the Charter.

Note 5: I agree with Laskin J.A.'s reasoning on behalf of the Court of Appeal in Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1, [2006] O.J. No. 1756 (C.A.), at p. 11 O.R., fn. 3 that "expertise" should logically by considered fourth.

Note 6: To the extent that Mr. Flora relies upon delay occasioned by conditions of organ scarcity to bring his case within Chaoulli, his argument is weakened from the outset by the fact that the Board's decision was not based on organ scarcity but on risk.

Note 7: See: R.R.O. 1990, Reg. 552, ss. 24(1)17,28.5(1)

Note 8: Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, [2004] S.C.J. No. 71.