Irshad, by his Litigation Guardian Irshad et al. v. Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health of Ontario et al.

[Indexed as: Irshad (Litigation guardian of) v. Ontario (Ministry of Health)]

55 O.R. (3d) 43

[2001] O.J. No. 648

Docket No. C31680

Court of Appeal for Ontario

Doherty, Laskin and Feldman JJ.A.

February 28, 2001**

** Note: This judgment recently came to the attention of the editors.

• Application for leave to appeal to the Supreme Court of Canada dismissed September 13, 2001 (Gonthier, Major and Binnie JJ.). S.C.C. File No. 28571. S.C.C. Bulletin, 2001, p. 1582.

Charter of Rights and Freedoms -- Equality rights -- Residence -- Eligibility for provincial health insurance coverage in Ontario linked to immigration status -- Persons who are ordinarily resident in Ontario and whose status under federal immigration law is such that they are entitled to or will shortly be entitled to be permanent residents of Ontario are eligible for coverage -- Persons who are ordinarily resident in Ontario but who by virtue of their immigration status are not entitled to become permanent residents are not eligible -- Status as permanent or non-permanent resident not an enumerated or analogous ground under s. 15 of Charter -- Distinction between permanent and non-permanent residents not discriminatory -- Three-month waiting period for eligibility for coverage imposed on persons moving to Ontario not discriminatory -- Change from dependency-based eligibility to eligibility based on individual assessment not discriminatory -- Canadian Charter of Rights and Freedoms, s. 15.

OHIP is a provincial health care plan available to residents of Ontario. Residency in Ontario has always been a prerequisite for OHIP coverage. In 1994, changes were made to the rules governing eligibility for OHIP coverage which narrowed the definition of resident by linking residency to status under the Immigration Act, R.S.C. 1985, c. I-2; introduced a three-month waiting period for residents of Ontario applying for OHIP coverage; and eliminated, with two exceptions, eligibility for OHIP based on dependency status, requiring that eligibility be decided on an individual basis. To come within the definition of resident for the purposes of OHIP coverage, a person must be ordinarily resident in Ontario and must fall within one of 11 categories.

The applicants were either ineligible for OHIP coverage as a result of the 1994 changes or incurred medical expenses during the new three-month waiting period. They brought an application for a declaration that the 1994 changes violated s. 15 of the Canadian Charter of Rights and Freedoms and were of no force or effect. Their claim was dismissed and the applicants appealed.

Held, the appeal should be dismissed.

The application judge erred in finding that, as the applicants could not invoke the mobility rights guaranteed by s. 6(2) of the Charter to challenge the residency requirements for OHIP, they could not successfully challenge those provisions under s. 15 of the Charter. Sections 6(2)(a) and 6(3)(b) of the Charter do not immunize social service programs that are limited to residents and impose a reasonable residency requirement from scrutiny under s. 15 of the Charter. Sections 6(2)(a) and 6(3)(b) are not, however, irrelevant to the s. 15 analysis where the alleged discrimination arises out of a law which imposes limits on eligibility for publicly funded social services. The meaning to be given to one section of the Charter must be informed by the language and meaning of other provisions in the Charter. Distinctions which are part of and integral to the mobility right recognized in s. 6(2) and s. 6(3)(b) cannot in and of themselves be discriminatory under s. 15. Sections 6(2)(a) and 6(3)(b) when read together establish residency in a province as an appropriate criterion for eligibility for publicly funded social services. Section 15 would not label that distinction discriminatory.

The definition of resident does not discriminate against new immigrants who are ordinarily resident in Ontario. Many new immigrants are eligible for OHIP (e.g. landed immigrants, some applicants for landed immigrant status, refugees, some applicants for refugee status and some Minister's permit holders). Furthermore, some people who are not eligible for OHIP because of the definition of resident are neither new to Ontario nor immigrants.

The definition of resident does not draw a distinction based on national origin, gender or age. Nor does it draw a distinction based on physical disability. Some of the applicants were denied landed immigrant status because of their physical disability. But for their disabilities, they would have been granted that status and would have been eligible for OHIP. However, it was the federal Immigration authorities who decided that the physical disabilities of these applicants rendered them ineligible for landed immigrant status. The OHIP authorities were interested only in the permanence of the applicants' residency as evidenced by their immigration classification, not in the physical condition of the applicants. The categories of persons who may be residents of Ontario are not tied to the existence or absence of physical disability, but are directed exclusively at their immigration status.

The definition of resident makes a distinction between those persons who are ordinarily resident in Ontario and whose status under federal immigration law is such that they are entitled or will shortly be entitled to be permanent residents of Ontario, and those persons who are ordinarily resident in Ontario but who, by virtue of their immigration status, are not entitled to become permanent residents in Ontario. A person's status as a permanent or non-permanent resident of a province is not a ground enumerated in s. 15 of the Charter or an analogous ground. The distinction between permanent and non-permanent residents is not, therefore, discriminatory within the meaning of s. 15.

The three-month waiting period for OHIP eligibility does not violate s. 15. The waiting period applies to all new residents of Ontario, regardless of their citizenship, former place of residence or immigration status. The fact that persons moving to Ontario from another province are covered under the health plan of that province until they are eligible for OHIP as a result of an inter-provincial agreement did not affect their status under OHIP. The distinction is between persons covered by provincial health care plans at the time they apply for OHIP and persons who are not covered by any provincial health care plan when they apply for OHIP. This distinction is not based on a personal characteristic. It is not based on residency or Canadian citizenship. It is not discriminatory.

A scheme which requires each individual to establish his or her residence and, therefore, his or her entitlement to OHIP would not on its face appear to raise s. 15(1) concerns. Individual assessments for eligibility do not necessarily exclude discrimination. They do, however, contra-indicate discrimination. The fact that dependants of persons working in Ontario for a specified time under a specific immigration authorization and dependants of clergy working temporarily in Ontario under specified contracts are eligible for OHIP does not render individually-based eligibility discriminatory. The basis upon which the distinction is drawn is not one enumerated in s. 15(1) and is not analogous to any of those grounds. The fact that dependants of two specified small groups are eligible for OHIP in no way demeans the human dignity or self-worth of the vast majority of persons who may not qualify on that basis and must qualify on an individual basis.

APPEAL from a judgment of Dilks J. (1999), 1999 14890 (ON SC), 60 C.R.R. (2d) 231, dismissing an application for a declaration that changes to the rules governing eligibility for OHIP coverage violated s. 15 of the Canadian Charter of Rights and Freedoms.

Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49, apld Other cases referred to British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 652 (SCC), [1999] 3 S.C.R. 3, 66 B.C.L.R. (3d) 253, 176 D.L.R. (4th) 1, 244 N.R. 145, [1999] 10 W.W.R. 1, 68 C.R.R. (2d) 1, 46 C.C.E.L. (2d) 206, 99 C.L.L.C. 230-038; Chiarelli v. Canada (Minister of Employment & Immigration), 1992 87 (SCC), [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 135 N.R. 161, 8 C.R.R. (2d) 234, 72 C.C.C. (3d) 214; Clarken v. Ontario Health Insurance Plan (1998), 52 C.R.R. (2d) 74, 109 O.A.C. 363 (Ont. Div. Ct.); Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1, 163 F.T.R. 284n, 239 N.R. 1, 61 C.R.R. (2d) 189 (sub nom. Batchewana Indian Band (Non-Resident Members) v. Batchewana Indian Band); Ferrell v. Ontario (Attorney General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97, 168 D.L.R. (4th) 1, 58 C.R.R. (2d) 21, 99 C.L.L.C. 230-005 (C.A.) [Leave to appeal to S.C.C. refused (1999), 252 N.R. 197n]; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, 186 D.L.R. (4th) 1, 253 N.R. 329, 74 C.R.R. (2d) 1, 50 C.C.E.L. (2d) 177; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, 2000 S.C.C. 37, 48 O.R. (3d) 735n, 188 D.L.R. (4th) 193, 255 N.R. 1, 75 C.R.R. (2d) 189 (sub nom. Ardoch Algonquin First Nation v. Ontario); M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, 43 O.R. (3d) 254n, 171 D.L.R. (4th) 577, 238 N.R. 179, 62 C.R.R. (2d) 1, 46 R.F.L. (4th) 32; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, 37 Alta. L.R. (2d) 97, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 13 C.R.R. 64, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); S.P. v. Ontario Health Insurance Plan (General Manager), unreported, August 19, 1999, File No. 5399E; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193, 241 N.R. 1, 63 C.R.R. (2d) 189, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1 Statutes referred to Budget Measures Act, 1994, S.O. 1994, c. 17, ss. 68, 70, 72(1) (b). Canada Health Act, R.S.C. 1985, c. C-6, ss. 2 [as am.], 7, 10, 11(1) Canadian Charter of Rights and Freedoms, s. 6, 15 Health Insurance Act, R.S.O. 1990, c. H.6, ss. 1 [as am.], 10, 11 [as am.] Immigration Act, R.S.C. 1985, c. I-2, ss. 19 [as am.], 37 [as am. S.C. 1992, c. 49, s. 26], 38 [as am. S.C. 1992, c. 49, s. 27], 121 [as am.] Rules and regulations referred to O. Reg. 85/99 (Health Insurance Act) O. Reg. 490/94 (Health Insurance Act) O. Reg. 491/94 (Health Insurance Act) O. Reg. 552 (Health Insurance Act), ss. 1, 1.1, 3

Chris G. Paliare and Andrew K. Lokan, for appellants. Sarah T. Kraicer and Janet E. Minor, for respondents. Martha Jackman and Kim Buchanan, for intervenors Leaf, OCASI, Dawn Canada.

The judgment of the court was delivered by

DOHERTY J.A.:--

I

[1] In April 1994, as part of its effort to reduce government spending, Ontario made significant alterations in its health care system, including changes to the rules governing eligibility for coverage under the Ontario Health Insurance Plan (OHIP). The appellants were among many who were adversely affected by the new rules. Some of the appellants became ineligible for OHIP for the duration of the three-month waiting period introduced by the changes. For others, the ineligibility was indefinite and continued as long as their status under the Immigration Act, R.S.C. 1985, c. I-2 did not change.

[2] The changes to OHIP challenged in this proceeding (the 1994 changes) did three things:

• They narrowed the definition of resident, a precondition to eligibility for OHIP, by linking residency to one's status under the Immigration Act.
• They introduced a three-month waiting period for residents of Ontario applying for OHIP coverage.
• They eliminated, with two exceptions, eligibility for OHIP based on dependency status. Under the changes, eligibility for OHIP was to be decided on an individual basis.

[3] The appellants brought an application seeking a declaration that the 1994 changes contravened s. 15 of the Canadian Charter of Rights and Freedoms and were of no force and effect, and seeking compensation for medical expenses incurred by them when, but for the 1994 changes, those expenses would have been covered by OHIP. Dilks J. found there was no breach of s. 15 of the Charter and dismissed the application. [See Note 1 at end of document] He held that the more restrictive definition of resident and the 3-month waiting period introduced by the 1994 changes distinguished among applicants for OHIP on the basis of residency, and that the distinction did not contravene s. 15 of the Charter. He also held that the determination of eligibility on an individual rather than family basis "cannot create an inequality under the law", but instead avoids potential discriminatory distinctions based on family membership.

[4] The appellants appeal from the judgment of Dilks J., submitting that he erred in finding that none of the impugned changes to OHIP violated the appellants' equality rights. The appellants are supported in the appeal by the Women's Legal Education and Action Fund, the Ontario Council of Agencies Serving Immigrants, and the Disabled Women's Network Canada, all of whom were granted intervenor status on the appeal. The intervenors were represented by the same counsel and filed a joint factum.

[5] The respondent (Ontario) submits that Dilks J. properly found that none of the 1994 changes infringed s. 15 of the Charter.

[6] I would hold that s. 15(1) is not infringed by any of the 1994 changes and dismiss the appeal.

II

[7] The claims advanced by the appellants require, first, an examination of the legislative provisions governing OHIP eligibility, particularly the changes made to those provisions in 1994; second, a review of the factual circumstances of each appellant; third, an analysis of the relationship between s. 6 and s. 15 of the Charter; fourth, a consideration of the principles underlying s. 15 of the Charter; and fifth, an application of those principles to the appellants' claims.

[8] Before turning to the analysis outlined above, three features of the appellants' submissions should be highlighted. The appellants do not contest Ontario's right to limit the availability of OHIP to persons who are ordinarily resident in Ontario. They contend, however, that the definition of residency introduced by the 1994 changes and the waiting period introduced by those changes had the effect of discriminating against them and infringed their s. 15 equality rights.

[9] The appellants also do not challenge the 1994 changes to OHIP on any basis other than s. 15 of the Charter. There was no claim that the regulations which effected two of the challenged changes are beyond the regulation-making power granted by the operative statute.

[10] Finally, the appellants do not challenge the constitutionality of any of the federal laws or actions of the federal government that intertwine with the operation of the OHIP scheme. Specifically, there is no challenge to any part of the federal immigration scheme nor the Canada Health Act, R.S.C. 1985, c. C-6. The federal government is not a party to these proceedings.

III

The Legislative Scheme

(a) Prior to April 1, 1994

[11] OHIP is a provincial health care plan available to residents of Ontario and administered by the Ministry of Health and Long-Term Care ("the Ministry"). Its purpose is described in s. 10 of the Health Insurance Act, R.S.O. 1990, c. H.6:

10. The Ontario Health Insurance Plan is continued for the purpose of providing for insurance against the costs of insured services on a non-profit basis on uniform terms and conditions available to all residents of Ontario, in accordance with this Act, and providing other health benefits related thereto.

[12] Services available through OHIP are provided to insured persons without charge and without regard to pre-existing medical conditions. The services include medically necessary physician services, in-patient and out-patient services provided by public hospitals, some drug and home care costs, and some costs associated with other health care services (e.g. physiotherapy).

[13] OHIP is part of the national health care scheme created in 1966 and presently maintained under the Canada Health Act. Under that scheme, provincial health plans deliver health services and the federal government provides assistance in funding those services. Provincial health plans that meet the five criteria set out in the Canada Health Act are eligible for full federal funding. Section 7 of the Canada Health Act identifies the five criteria and subsequent sections define each criterion. I need refer only to the universality and portability criteria. Section 10 of the Canada Health Act defines universality in these terms:

10. In order to satisfy the criterion respecting universality, the health care insurance plan of a province must entitle one hundred per cent of the insured persons of the province to the insured health services provided for by the plan on uniform terms and conditions.

[14] Under the Canada Health Act, subject to four specific exceptions, all residents of a province are insured persons. Resident is defined in s. 2 as:

. . . a person lawfully entitled to be or to remain in Canada who makes his home and is ordinarily present in the province, but does not include a tourist, a transient or a visitor to the province.

[15] One of the four categories of residents who are not insured persons under the Canada Health Act is relevant to this appeal. A resident of a province who has not completed any minimum period of residence as may be required for eligibility under the provincial plan is not an insured person for the purposes of the Canada Health Act. The minimum period may not exceed three months.

[16] Section 11(1) addresses the portability criterion. Two parts of that section are germane:

11(1) In order to satisfy the criterion respecting portability, the health care insurance plan of a province

(a) must not impose any minimum period of residence in the province, or waiting period, in excess of three months before residents of the province are eligible for or entitled to insured health services;

(c) must provide for and be administered and operated so as to provide for the payment, during any minimum period of residence, or any waiting period, imposed by the health care insurance plan of another province, of the cost of insured health services provided to persons who have ceased to be insured persons by reason of having become residents of that other province, on the same basis as though they had not ceased to be residents of the province.

[17] In summary, there are three aspects of the Canada Health Act that are important for the purposes of this appeal. First, it contemplates that persons ordinarily resident in a province, with specified exceptions, will be covered by that province's health plan. The Canada Health Act also permits, but does not mandate, a waiting period of up to three months before a resident of a province is eligible for coverage under that province's health plan. Finally, the Canada Health Act directs that where a person is insured under a provincial health plan and moves to another province that has a waiting period for eligibility for coverage under its plan, the plan of the province from which the person has moved must extend coverage to that person during the waiting period.

[18] Residency in Ontario has always been a prerequisite to eligibility for OHIP. Section 11(1) of the Health Insurance Act provides that:

11(1) Every person who is a resident of Ontario is entitled to become an insured person upon application therefor to the General Manager in accordance with this Act and the regulations.

[19] Prior to April 1994, the Health Insurance Act defined resident in terms which were very similar to those used in the Canada Health Act. Resident was defined in s. 1 as:

. . . a person who is legally entitled to remain in Canada and who makes his or her home and is ordinarily present in Ontario, but does not include a tourist, a transient or a visitor to Ontario, . . .

[20] Under the definition of resident in the Health Insurance Act prior to April 1994, a person's immigration status was irrelevant as long as that person could lawfully remain in Canada. People who were temporarily resident in Ontario were also eligible for OHIP as long as they were not tourists, transients or visitors. For example, foreign workers working in Ontario temporarily and foreign students studying in Ontario could be eligible for OHIP.

[21] Prior to 1994, neither the Health Insurance Act nor any regulation made under that Act imposed a waiting period for eligibility for OHIP on Ontario residents. Persons who were not covered under another provincial health plan and met the residency requirement were eligible for OHIP from the day they took up residency in Ontario. Persons moving into Ontario who were insured under another province's health plan remained under that plan for two to three months.

[22] Prior to April 1994, s. 11(2) of the Health Insurance Act read:

11(2) Every dependant of an insured person is an insured person.

[23] Dependants were defined in R.R.O. 1990, Reg. 552 to include cohabiting spouses and children under 18 years of age.

(b) The 1994 changes to OHIP

[24] In 1993, Ontario, like the rest of the country, was in a deep and prolonged recession. Rapid increases in government spending, combined with marked decreases in government revenues, had created a serious fiscal crisis. Ontario struggled under a large and ever increasing debt load, and was running a deficit of some $17 billion. In April 1993, the Minister of Finance said:

Ontario is facing a serious economic and financial problem. Escalating debt, driven by declining revenues, threatens to undermine our long-term ability to provide important public services and invest in jobs and people.

This government will not allow the growing debt to knock us off our plan to get Ontario back to work and preserve essential services for the people of Ontario.

[25] The government concluded that the continued fiscal viability of Ontario demanded immediate and extensive cuts to government expenditures. A plan was announced that aimed at reducing those expenditures by $4 billion in the next year. Every government department and agency was required to develop a plan that would significantly reduce its expenditures.

[26] Health care costs accounted for some 32 per cent of all government expenditures in 1993. Those costs had increased dramatically in the decade before 1993. By 1994, total health care costs were some $17.4 billion. OHIP accounted for about $4.7 billion of that amount.

[27] The annual increases in health care costs, coupled with large reductions in the federal transfer payments relied on to fund health care, made the fiscal crisis faced by the province particularly acute within the health care field. The Ministry had to make deep cuts in its budget. The measures it took to achieve these reductions affected every part of the health care system, and virtually every resident of Ontario. Physicians' fees were reduced, hospital beds were eliminated, and it was announced that services that had previously been covered by OHIP would no longer be covered. These changes were seen as essential to the long-term preservation of an effective health care system for residents of Ontario.

[28] This appeal focuses on three of the many changes made to the health care system in Ontario in 1993-94. Two of these, the more restricted definition of those eligible for OHIP and the introduction of a three-month waiting period for all persons applying for OHIP, were motivated principally by the need to reduce spending. The third change, the removal of eligibility for OHIP based on one's status as a dependant of a person eligible for OHIP, was motivated partly by the need to reduce expenditures and partly by other considerations that will be outlined below.

[29] The first change, the more restricted definition of residency, was aimed at eliminating OHIP coverage for persons who were temporarily resident in Ontario. The government concluded that it could no longer afford to provide health care coverage for those persons. As of 1993, there were approximately 190,000 temporary residents registered under OHIP. The annual cost to the health care system for the health services provided to those temporary residents was estimated at $194.1 million. The government proposed that most temporary residents would no longer be eligible for OHIP. The change targeted primarily foreign workers and foreign students. [See Note 2 at end of document] At the same time, it proposed to exclude temporary residents from OHIP coverage, Ontario also called upon the federal government to assume the health care costs of refugees living in Ontario. [See Note 3 at end of document] The government also determined that persons applying for landed immigrant status while residing in Ontario should not receive OHIP unless and until they had passed the medical examination required of persons applying for landed immigrant status.

[30] The second change, the introduction of a three-month waiting period of eligibility for OHIP was also a cost saving measure. Forty-three per cent of persons newly registered for OHIP made claims against OHIP within 30 days of registration. OHIP officials believed that a significant but undetermined number of these claims were made by people who had come to Ontario not with any intention of establishing a permanent residence, but rather to take advantage of the services available under OHIP. Consistent with its view that OHIP should be available only to permanent residents, Ontario sought to prevent persons from coming into the province solely for the purpose of obtaining OHIP coverage. A three-month waiting period applicable to all persons applying for OHIP was seen as the most effective method of ensuring that persons would not move into Ontario temporarily simply to obtain OHIP.

[31] The government also viewed the three-month waiting period as providing an objective basis upon which to test residency that was less intrusive, less expensive and more predictable than any attempt to determine residency on a case-by-case basis. Ontario also justified the three-month waiting period on the basis that it was consistent with the Canada Health Act and provisions in some other provincial health plans.

[32] The third change, the shift to individual eligibility for OHIP from family-based eligibility, had its genesis in 1990 when it was announced that OHIP would move from a family-based system to one [in] which every individual would have his or her own OHIP card. The change to individual eligibility was consistent with the elimination of the premium system which had existed up to 1990 for the funding of OHIP. Under that system, insured persons paid a premium for OHIP coverage that was calculated on the basis of the number of dependants the insured person had. After 1990, individuals were not required to pay premiums and OHIP was funded in part by way of an employer health tax. The abolition of the premium requirement based on the number of dependants logically opened the way to a system based on individual eligibility for OHIP.

[33] OHIP officials also believed that the determination of eligibility on an individual basis would result in more permanent and reliable records of those covered by OHIP and the services provided to them, while at the same time serving as a more effective safeguard for the confidentiality of individuals' health records. It was also anticipated that a system based on individual eligibility could be administered more efficiently and that frauds against OHIP could be reduced.

[34] The government realized that these changes to OHIP would have serious ramifications for those affected by them. Steps were taken to notify those who would lose OHIP as a result of these changes, and a three-month grace period beyond April 1, 1994 was introduced to allow those people to obtain private health care coverage. The OHIP application form was changed to show the date from which the applicant would be eligible (normally three months beyond the date of the application). Applicants were advised to obtain private health care coverage during the waiting period.

(c) The present legislation

(i) The definition of resident

[35] The three changes to the OHIP scheme described above were made by way of amendments to the Health Insurance Act and the enactment of two new regulations, all effective as of April 1, 1994. [See Note 4 at end of document] The amendments to the Health Insurance Act repealed the definition of resident in the Act and provided that the Lieutenant-Governor-in-Council could define the term by way of regulation. O. Reg. 490/94 (attached as Appendix A) amended R.R.O. 1990, Reg. 552 to provide a new definition of resident. O. Reg. 491/94 (attached as Appendix B) amended the same regulation to bring in the three-month waiting period.

[36] Under the amended terms of R.R.O. 1990, Reg. 552, with the exception of certain agricultural workers temporarily present in Ontario under an authorization granted by specific federal program (s. 1.1(1)(a)), [See Note 5 at end of document] the determination of residency and, therefore eligibility for OHIP, is a two-step process. First, a person must be "ordinarily resident" in Ontario as defined in s. 1.1(2) of the regulation. Second, persons who are ordinarily resident in Ontario must bring themselves within one of the 11 categories set out in s. 1.1(1)(b). These categories are in the main based on one's status under federal immigration law.

[37] The term "ordinarily resident" is defined somewhat differently for persons moving into Ontario from another province (s. 1.1(2)(a)) than for persons moving into Ontario from outside of Canada (s. 1.1(2)(b)). The differences are not, however, significant for present purposes. Under the regulation, as amended, persons moving into Ontario from outside of Canada are regarded as ordinarily resident in Ontario if they intend to make their permanent and principal home in Ontario, and are present in Ontario for five of the six months -- and at least six of the 12 months -- immediately following the making of the OHIP application.

[38] Although the regulation is somewhat unclear, the parties advised the court that persons applying for OHIP are not required to fulfill the ordinary residence requirements before receiving OHIP. By that I mean it is not a "condition precedent" that OHIP applicants reside in Ontario for 12 months before they actually receive OHIP coverage. Assuming the applicant satisfies OHIP that he or she will fulfill the residency requirements in s. 1.1(2), and assuming that the applicant meets the other residency criteria, the applicant will be covered by OHIP upon the expiry of the three-month waiting period. For most successful applicants, this means that OHIP coverage will commence three months after the application is made.

[39] It is not suggested by Ontario that any of the applicants were unable to satisfy the "ordinary resident" component of the definition of resident in the regulation. Some could not, however, bring themselves within any of the 11 categories set out in s. 1.1(1)(b) of the amended regulation.

[40] According to Ms. Jacqueline Heath, a senior official at OHIP whose affidavit was relied on by Ontario, the categories established in s. 1.1(1)(b) of the amended regulation were intended to make persons who had a significant degree of permanence attached to their status in Canada eligible for OHIP, and to deny OHIP to those persons whose status in Canada did not have the requisite degree of permanence. For example, Ms. Heath pointed out that under the amended regulation, OHIP was extended to applicants for landed immigrant status who were ordinarily resident in Ontario only after those persons had passed their medical examination. Ontario understood that the medical examination was the last step in the process of applying for landed immigrant status and that persons who passed their medical examinations were virtually assured of becoming landed immigrants. Their status in Canada was, therefore, sufficiently permanent to warrant OHIP eligibility.

[41] Assuming they are ordinarily resident in Ontario, the following categories of persons are eligible for OHIP:

• Canadian citizens (para. 1);
• persons registered as Indians under the Indian Act [R.S.C. 1983, c. I-5] (para. 2);
• landed immigrants (para. 1);
• applicants for landed immigrant status who have passed the medical examination required of those applying for landed immigrant status (para. 4);
• convention refugees (para. 3);
• persons who have made a convention refugee claim if it has been determined they are eligible to have their claim determined by the appropriate authority and a removal order has not been made against them (para. 5 [Repealed, O. Reg. 87/95, s. 1]);
• permits issued by the Minister of Citizenship and Immigration (Minister's permits) designated as case type 86, 87, 88, 89 or 80 (para. 10);
• persons working temporarily in Ontario under a specific kind of employment authorization granted by the immigration department, and their spouses and dependant children (paras. 6 and 7);
• members of the clergy, their spouses, and their dependant children where the member of the clergy has signed a contract of employment to administer to a religious congregation in Ontario for a period of not less than six months (paras. 8 and 9); and
• persons granted employment authorizations under certain federal programs directed at those employed as nannies or domestics (para. 11).

[42] Persons who are ordinarily resident in Ontario within the meaning of R.R.O. 1990, Reg. 552, as amended, but do not fit within one of the categories in s. 1.1(1)(b) of that regulation, can never be eligible for OHIP no matter how long they have been in Ontario and regardless of whether they are a dependant of a person who is eligible for OHIP.

[43] Paragraph 10 of s. 1.1(1)(b) of the amended regulation is of significance to the claims made by the appellant, Raja Jawad Irshad ("Raja"). It provides that an ordinary resident of Ontario will meet the residency requirement if he or she is:

[a] person granted a minister's permit under section 37 of the Immigration Act (Canada) which indicates on its face that the person is a member of an inadmissible class designated as case type 86, 87, 88 or 89 or, if the permit is issued for the purpose of an adoption by an insured person, as case type 80. [See Note 6 at end of document]

[44] Paragraph 10 can only be understood after a consideration of certain provisions of the federal Immigration Act and the policies and procedures followed by those responsible for the administration of the Immigration Act. Unfortunately, there is no evidence in this record from anyone familiar with or responsible for the operation of the Immigration Act. The only assistance comes from extracts of Ministry of Citizenship and Immigration (the Immigration Department) manuals attached as exhibits to the affidavit of Ms. Heath. Parts of those manuals are less than self-explanatory.

[45] Section 19 of the Immigration Act declares that certain persons shall not be allowed to enter Canada nor be granted landed immigrant status in Canada. These persons are referred to as members of an inadmissible class. Section 19 establishes two inadmissible classes, those inadmissible for medical reasons (medical inadmissibility) and those inadmissible for reasons associated with criminal activity or national security concerns (criminal/national security inadmissibility). Medical inadmissibility is addressed in s. 19(1)(a) of the Immigration Act.

19(1) No person shall be granted admission who is a member of any of the following classes:

(a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,

(i) they are or are likely to be a danger to public health or to public safety, or

(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;

[46] The remaining subsections in s. 19 describe persons who are inadmissible for reasons related to criminal activity or national security concerns.

[47] Persons who have been found to be members of an inadmissible class under s. 19 of the Immigration Act are not "immigrants" within the definition of that word in the Immigration Act. Section 37 of the Immigration Act, however, authorizes the Minister of Citizenship and Immigration to issue a permit authorizing a person to come into or remain in Canada even though that person is a member of an inadmissible class under s. 19 of the Act. Section 121 of the Act allows the Minister to delegate her authority to issue permits under s. 37. Minister's permits can be issued to persons applying for entry into Canada or applying for permission to remain in Canada. The Minister's permit remains in effect for a fixed period of time and may be extended at the discretion of the Minister. Section 38 of the Immigration Act authorizes the Minister to grant landed immigrant status to any person who has resided in Canada for at least five years under the authority of a permit issued under s. 37.

[48] Under the combined effect of ss. 19, 37, and 38 of the Immigration Act, a person may be declared a member of an inadmissible class and refused permission to immigrate to Canada, but nonetheless, at the Minister's discretion, be allowed to enter and remain in Canada. Further, again at the Minister's discretion, that person may be granted landed immigrant status after five years.

[49] Minister's permits issued under s. 37 of the Immigration Act are intended to address exceptional situations where, having regard to the overall purposes of the Immigration Act, the reasons for which the person has been found to be a member of an inadmissible class, and the particular circumstances of that person, it is deemed appropriate to allow the person to enter or remain in Canada at the discretion of the Minister. One of the Immigration Department manuals attached as an exhibit to Ms. Heath's affidavit describes the assessment to be made when considering whether to issue a Minister's permit to a person who has been declared medically inadmissible in the following terms:

In the case of medically inadmissible clients, you assess risk the same way, whether they are immigrants or visitors.

Answer the following questions:

-- Does the person suffer from a communicable or contagious disease? In A19(1)(a)(i) cases you must evaluate the immediate threat to the travelling public and the community of destination. You must know that precautions are in place to ensure that persons diagnosed or suspected of being infected with a communicable disease will NOT pose a threat to ANYONE encountered en route or in Canada. If you are not certain on this point, you should NOT recommend a permit.

-- Can you forewarn officials and the travelling public about contact with a person who presents a medical risk?

-- How severe is the person's anticipated need for health or social services in relation to the demand for these services by/to Canadian residents?

-- What is the cost of the treatment or care?

-- If an immigrant, will provincial public health insurers provide insurance coverage? (Note: Rules governing eligibility in provincial public health insurance plans vary widely. They are also subject to change. You may ask applicants to obtain information about eligibility directly from provincial plan administrators. You may also ask the regional Director General or Director (see section 3.1) to answer this question.)

-- If a visitor, how will the costs be covered? (Insurance? Family finances?)

-- Are the arrangements for treatment/cure and cost coverage in place?

-- Is the person likely to become productive or self- supporting?

You must address all of these issues and contingencies satisfactorily as part of your risk assessment.

[50] At the time Ontario introduced the new definition of resident in April 1994, the federal Immigration Department issued Minister's permits under s. 37 of the Immigration Act that fell into one of two broad categories. One category was referred to as "visitor" case type permits and the other was referred to as "early admission" case type permits. The permits identified in para. 10 of the Regulation (case types 86, 87, 88, and 89) were all "early admission" case type permits. Persons holding these permits were eligible for OHIP. Persons holding a Minister's permit characterized as a "visitor" case type permit were not eligible for OHIP. This distinction was consistent with the previous legislation, which had denied OHIP coverage to visitors.

[51] When the amendments to R.R.O. 1990, Reg. 552 took effect, persons in the position of Raja, having been granted entry to Canada on the basis of a Minister's permit, would likely have been issued a case type 89 Minister's permit, referred to in the Immigration Department manual as "member of a family class" permit. The OHIP eligibility of persons holding this type of permit was not affected by the amendments to the regulation. They were eligible for OHIP before and after the amendments.

[52] In 1994, there were approximately 5,000 persons holding Minister's permits residing in Ontario. In announcing the changes to OHIP, the government stated that these changes would have no effect on the OHIP eligibility of persons holding Minister's permits. Ms. Heath explained that the government understood that persons holding Minister's permits were placed in either the visitor or early admission category. The former had not previously been covered by OHIP and the latter had been eligible for OHIP. It was the government's intention that the latter group of permit holders would continue to be covered by OHIP after the 1994 changes. This was consistent with Ontario's intention to provide OHIP to persons who were well along in the process of obtaining a permanent status in Canada. According to Ms. Heath, Ontario was not aware that some individuals who were granted early admission case type permits prior to the 1994 changes had in fact been found to be medically inadmissible and declared ineligible for landed immigrant status.

[53] In May 1995, after consultation with the provinces, the Immigration Department established a new series of Minister's permits referred to as case type 90 permits. Holders of these permits were described as "refused applicants for permanent residence". These new permits were intended to distinguish between those persons who were granted Minister's permits in anticipation of receiving landed immigrant status (case type 80 permits other than visitors permits) and those who have been found to be members of an inadmissible class, denied landed immigrant status, but still allowed to enter and remain in Canada (case type 90 permit holders). Holders of case type 90 permits included individuals who were declared medically inadmissible and individuals who were declared inadmissible for reasons relating to criminal activity or national security concerns.

[54] Raja received a case type 92 permit in January 1996. The permit described him as "medically inadmissibility/member of a family class". This classification meant that he was a person who had been sponsored for landed immigrant status by a member of his family, had been found to be medically inadmissible under s. 19 of the Immigration Act, but would be allowed to enter Canada under a Minister's permit. He entered Canada in February 1996.

[55] Ontario did not expand the definition of resident in the regulation when the Immigration Department introduced the case type 90 permits. Consequently, a person like Raja, who received a case type 92 permit, was ineligible for OHIP even though prior to the introduction of the case type 90 permits, he or she may well have received a case type 89 permit and would have been eligible for OHIP.

[56] In February 1996, Ontario advised the Immigration Department that it would not extend OHIP coverage to persons receiving case type 90 permits. Immigration officials took steps to advise applicants who received case type 90 permits, that they would not be eligible for OHIP. Beginning in March 1996, about a month after Raja arrived in Canada, persons who sponsored family members who received case type 90 permits were required to sign a declaration acknowledging that they were aware that the permit holder was not eligible for coverage under provincial health plans. Sponsors were required to acknowledge their responsibility for the medical expenses of the permit holder.

[57] Approximately 200 persons holding Minister's permits take up residence in Ontario annually. There is no evidence how many of these persons are case type 90 permit holders. [See Note 7 at end of document] Nor is there any evidence whether any case type 80 permit holders had their classification changed to case type 90 permit holders when their permits were extended in 1995 or 1996.

[58] In cross-examination, Ms. Heath acknowledged that persons holding case type 90 Minister's permits could lawfully remain in Canada indefinitely and that to her knowledge some permit holders remained in Ontario for many years.

[59] Ontario plays no role in the medical assessments made under the Immigration Act. Unlike British Columbia, Ontario refuses to become involved in that process, taking the position that eligibility for OHIP depends on a person's residence and not on a person's medical condition.

(ii) The three-month waiting period

[60] The amendments to R.R.O. 1990, Reg. 552 also introduced the three-month waiting period. Section 3(3) of that regulation, as amended, states:

3(3) A resident who makes an application under subsection (1) shall only be enrolled as an insured person three months after the day the person becomes a resident.

[61] Section 3(4) of the amended regulation sets out 16 categories of persons to whom s. 3(3) does not apply. These persons are not subject to any waiting period.

[62] The 16 exceptions to the three-month waiting period found in s. 3(4) of R.R.O. 1990, Reg. 552, as amended, refer to a diverse group of persons who are exempted from the waiting period requirement for a variety of reasons, ranging from the existence of federal/provincial agreements (paras. 4-9) to the desire to provide economic incentive for certain persons to work in Ontario (para. 14) to humanitarian concerns (paras. 1, 2, and 10-13). The exempted persons include:

• newborns and adopted children under 16 of insured persons (paras. 1 and 2);
• persons who have resided in Ontario for three months prior to making an application (para. 3);
• persons who received OHIP before becoming employed by certain federal agencies, and in some cases their spouses and dependant children (paras. 4-7);
• inmates in penitentiaries or correctional institutions (paras. 8 and 9);
• persons moving to Ontario from another province where they were insured under a provincial health plan, and subsequently taking up residence in an old age home in Ontario (para. 10);
• convention refugees and those applying for that status if they are otherwise eligible for OHIP (paras. 11 and 12);
• persons holding Minister's permits under s. 37 of the Immigration Act if they are otherwise eligible for OHIP (para. 13);
• persons in Ontario by virtue of an employment authorization issued under certain federal programs (para. 14); and
• women who became pregnant before April 1, 1994 and applied to become an insured person during the course of the pregnancy, assuming they are otherwise eligible for OHIP (paras. 15 and 16).

[63] Persons may apply for OHIP the day they take up residence in Ontario. Assuming they satisfy OHIP that they intend to take up permanent residence and can place themselves in one of the enumerated categories in the regulation, those persons will be approved for OHIP effected three months after their arrival. As indicated above, applicants for OHIP are not required to actually satisfy the ordinary residence requirement (presence in Ontario for five of the previous six months and six of the previous 12 months) before they become insured under OHIP.

[64] Subject to the exceptions in s. 3(4), the waiting period established in s. 3(3) applies to all residents of Ontario who are applying for OHIP, including Canadian citizens, persons moving to Ontario from another province and persons from outside of Canada who have been admitted to Canada under one of the various classifications established under the Immigration Act.

[65] Although persons moving into Ontario from another province are not covered by OHIP during the waiting period, the portability requirement in the Canada Health Act requires that the health plan of the province from which that person moved extend coverage to that person during the waiting period. To comply with the portability requirement in the Canada Health Act, Ontario has entered into an inter-provincial eligibility and portability agreement with the other provinces. Persons moving into Ontario from another province maintain their health care coverage under the plan of the province from which they moved during the period that they are not eligible for OHIP. Under the agreement, the ineligibility period will range from two months plus one day to three months, depending on the timing of the application. Coverage under another province's health plan is not necessarily the same as coverage under OHIP. Procedures and costs covered by OHIP may or may not be covered by other provincial plans.

[66] Ontario residents who are insured by OHIP and decide to leave Ontario temporarily, but for an extended period of time, may cease to be ordinarily resident in Ontario under the definition of ordinary resident in s. 1.1(2) of the amended regulation. Those persons will lose their OHIP eligibility. If they subsequently return to Ontario, they must reapply for OHIP and are subject to the three-month waiting period.

[67] OHIP, however, had a policy that allowed residents who were insured by OHIP and who would lose their OHIP status through a prolonged absence from the province to make application to extend their OHIP coverage while absent from the province. If the extension were granted, these persons would not have to reapply for OHIP upon resuming their residence in Ontario. The policy applied to persons who were leaving Ontario for an extended period of time, usually for employment, educational or travel purposes, but who fully intended to return to Ontario and to make their permanent residence in the province. If an extension were granted under the policy, those persons would maintain their OHIP eligibility during their absence from Ontario. Extensions were not automatic but depended on various considerations.

[68] The policy outlined above is now reflected in R.R.O. 1990, Reg. 552, by virtue of amendments to that regulation made by O. Reg. 85/99 (attached as Appendix C). [See Note 8 at end of document] That regulation achieves the same purpose as the policy described above by exempting Ontario residents who qualify under the regulation from the requirement in the definition of ordinarily resident that those persons be in the province for a certain number of days in a year.

(iii) Individual based eligibility

[69] The 1994 amendments repealed s. 11(2) of the Health Insurance Act which had made dependants of insured persons eligible for OHIP. That subsection was replaced with the following:

11(2) It is the responsibility of every person to establish his or her entitlement to be, or to continue to be, an insured person.

[70] There are two exceptions to the requirement that each individual establish his or her own eligibility for OHIP. They are found in R.R.O. 1990, Reg. 552, as amended. Dependants of persons working temporarily in Ontario under an employment authorization issued under the Immigration Act are eligible for OHIP on the basis of their dependant status alone (s. 1.1(1) (b), paras. 6, 7). Dependants of members of the clergy who are working in Ontario under a contract of employment to administer to a religious congregation for a period of not less than six months are similarly eligible for OHIP (s. 1.1(1)(b), paras. 8, 9). The first exception was justified by the economic advantage to the province produced by persuading persons from outside Ontario to fill certain job needs on a temporary basis. OHIP coverage for the dependants of those persons was used as an inducement to attract those persons to come to work in Ontario. The second exception, while not the subject of extensive evidence on the application, would appear to be based on the perceived need to attract persons to fill a specific kind of employment. Once again, OHIP coverage for dependants is used as an inducement.

IV

The Appellants

(a) Raja Jawad Irshad ("Raja")

[71] Raja's father came to Canada in December 1988 as a refugee and was granted permanent resident status in 1992. Mr. Irshad's wife remained in Pakistan with Raja who was born in 1988. Raja suffers from cerebral palsy and is severely disabled. A younger brother was born in Pakistan in 1993. In 1992, Raja's father applied to sponsor the entry of his wife and Raja as landed immigrants into Canada. In 1993, he amended his application to include his newborn son. The application was considered by Canadian immigration authorities in Pakistan. Raja's mother and brother were granted permission to enter Canada as landed immigrants. Raja, because he suffered from cerebral palsy, was denied entry on the basis of medical inadmissibility. He was, however, permitted to enter Canada on a case type 92 Minister's permit designating him as medically inadmissible/member of a family class. Raja came to Canada with his mother and brother in February 1996.

[72] Raja's father has been eligible for OHIP since 1988. His upon their arrival in Ontario. They were subject to the three- month waiting period. Raja would have been eligible for OHIP prior to the 1994 amendments, either as a resident in his own right or as a dependant of an insured person.

[73] Shortly after Raja arrived in Canada, his father learned that Raja was not covered by OHIP. Raja's father instituted appeal proceedings under the Health Insurance Act, but those proceedings were adjourned pending this application.

[74] Raja's father is gainfully employed and has health insurance. Raja also has access to some resources within the community. His father's health care coverage and these community resources do not, however, provide the resources that would be available to Raja if he were an insured person under OHIP.

(b) Marie Tudor, Sergio Bodington and Leandra Bodington

[75] Ms. Tudor came to Canada in 1989 as a visitor. In 1990, she began to work in Canada as a person sponsored under a federal program known as the Foreign Domestic Workers Program. Under that program, Ms. Tudor could apply on behalf of herself and her family for permanent residence status after two years. She had two children, Leandra, born in 1984 and Sergio, born in 1987. Both children were born in Trinidad and Tobago. Sergio has a severe bilateral hearing loss. Leandra has no disabilities.

[76] In December 1993, under the auspices of the Foreign Domestic Program, Ms. Tudor applied for permanent residence status for herself and her two children. Her children were in Canada at the time on student visas. Ms. Tudor and her children were insured under OHIP prior to the 1994 changes.

[77] In December 1995, immigration authorities determined that Sergio was inadmissible for permanent residence because of his medical condition. They advised Ms. Tudor that because of her son's medical inadmissibility, neither she nor her daughter could be approved for permanent residence status. Ms. Tudor remained in Canada on an "open employment" authorization issued by the immigration department and renewable on a year-to-year basis. Her children were granted student visas. As of December 1995, neither Ms. Tudor nor her children came within any of the 11 categories in s. 1.1(1) (b) of R.R.O. 1990, Reg. 552, as amended. They were not eligible for OHIP.

[78] In 1997, the immigration authorities reconsidered their determination that Sergio was medically inadmissible and approved the entire family for permanent residence status. They then became eligible for OHIP.

(c) Gnei Assan

[79] Ms. Assan was born in Sri Lanka in December 1956. She married Tuan Assan in Sri Lanka in January 1983. Mr. Assan came to Canada as a refugee in 1992 and eventually became a citizen in 1997. In August 1993, Ms. Assan applied for landed immigrant status under the sponsorship of her husband. Ms. Assan and her children were approved for permanent landing and arrived in Canada in August 1994.

[80] Mr. Assan was insured under OHIP and he told his wife that she had to apply for OHIP upon her arrival. She did so two days after her arrival in Canada. Ms. Assan said she did not receive any communication from OHIP indicating that her application for OHIP was subject to a three-month waiting period. She believed that she was covered right away because a relative of hers had come to Ontario a year earlier and to Ms. Assan's knowledge had been covered by OHIP immediately. Ms. Assan was unaware that the rules had changed in April 1994. But for the three-month waiting period and the removal of coverage for dependants of insured persons, Ms. Assan would have been eligible for OHIP in October 1994.

[81] On October 22, 1994, about two months after her arrival in Ontario, Ms. Assan was hospitalized on an emergency basis. She required the surgical removal of kidney stones and a damaged ovary. Ms. Assan's OHIP coverage commenced in November 1994. By that time, her medical bills were about $23,000. She has been able to pay off only a small part of that debt.

(d) Nagulamikai Karthigesu

[82] Ms. Karthigesu was born in Sri Lanka in 1943 and married her husband there in 1966. In 1994, she applied for landed immigrant status from Sri Lanka. She was sponsored by her son who was living in Ottawa. Ms. Karthigesu was approved for entry to Canada as a landed immigrant in June 1994 and arrived in September 1994. On September 7, 1994, she applied for OHIP. She was told that she would not be covered for three months. She was not told anything about private health insurance, and when she made inquiries about the possibility of obtaining private health insurance later in September, she was told that she had to apply within seven days of her arrival in Canada.

[83] Unfortunately, Ms. Karthigesu had serious medical problems during her three-month ineligibility period. She was hospitalized and her medical bills amounted to about $16,000. Ms. Karthigesu's medical bills would have been covered by OHIP but for the three-month waiting period. Ms. Karthigesu has made diligent efforts to pay her medical bills, but still owes some $13,000. She appealed her OHIP ineligibility under the procedures set out in the Health Insurance Act, but that proceeding was adjourned pending this application.

(e) Gabriella Simon

[84] Ms. Simon was born in Hungary in 1967. She entered Canada as a visitor in May 1994 and in July 1994, married Zoltan Simon, a Canadian citizen. She went back to Hungary in August 1994 because of the death of her father and returned to Canada in October 1994. In October 1994, she applied for landed immigrant status. That status was eventually granted in March 1996. Unfortunately, Ms. Simon became very ill in January 1995. She was hospitalized until the middle of March and underwent several surgical procedures, including one for the removal of a deep brain thrombosis. She also learned that she was pregnant. Ms. Simon gave birth in the spring of 1995.

[85] Ms. Simon knew that she was not covered by OHIP when she arrived in Canada as a visitor. She explored the possibility of obtaining private health insurance but decided that it was not worth the cost. After she was married, Ms. Simon and her husband assumed that she was covered under his OHIP. They learned differently in January 1995 after she was hospitalized. Mr. Simon then applied for OHIP on his wife's behalf. The OHIP authorities determined that the three-month waiting period for Ms. Simon should run from December 1994 when she passed the medical examination required on her application for landed immigrant status. Ms. Simon's OHIP coverage took effect in the middle of March 1995. During the period that she was not covered, Ms. Simon accumulated medical bills of some $7,000. Ms. Simon's ineligibility flowed both from the three-month waiting period and the removal of coverage for dependants of insured persons.

(f) Anna Dobrescu

[86] Ms. Dobrescu and her husband came to Canada as landed immigrants from Romania in December 1994. She was seven months pregnant when she arrived in Ontario. She applied for OHIP two days after her arrival, but was told that the OHIP coverage would not be effective until three months after the date of her application.

[87] Ms. Dobrescu gave birth in February 1995, before the effective date of her OHIP coverage. During the period of her ineligibility she incurred medical expenses associated with pre-natal and childbirth care. But for the three-month ineligibility period, Ms. Dobrescu would have been eligible for OHIP.

(g) Robert Lee Melvin

[88] Mr. Melvin came to Ontario from the United States as a visitor in 1961. He has been a resident of the province ever since. Mr. Melvin worked in Ontario and was covered by OHIP for many years. In the late 1980s, he had a series of strokes and could no longer work. He went on social assistance and continued to be covered by OHIP.

[89] In 1992, Mr. Melvin, who by this time had been in Canada for many years without any legal right to remain here, finally applied for landed immigrant status. The immigration authorities rejected his application because of his medical condition.

[90] Mr. Melvin recalled that in around June 1994, he was told that he was no longer covered by OHIP. He was hospitalized later in 1994 and accumulated hospital bills of about $12,000. But for his immigration status, Mr. Melvin would have qualified for OHIP after the 1994 amendments. Some time after this application was commenced, Mr. Melvin was granted landed immigrant status and became eligible for OHIP.

V

The Relationship Between S. 6 and S. 15 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[91] Dilks J. concluded that s. 6(2)(a) and s. 6(3)(b) of the Charter were determinative of the appellants' s. 15 claim. The relevant sections read:

6(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(3) The rights specified in subsection (2) are subject to

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[92] Section 6(2)(a) recognizes that citizens and permanent residents (landed immigrants) have a right to move to and take up residence in any province in Canada. Section 6(3)(b) provides that the mobility right described in s. 6(2)(a) is subject to laws that impose a reasonable residency requirement as a precondition to eligibility for publicly provided social services. Put in terms of the present problem, Canadian citizens and landed immigrants have a constitutional right to move into Ontario but they cannot complain that their mobility rights are infringed by a law which makes their eligibility for OHIP dependent upon their meeting a reasonable residency requirement.

[93] Dilks J. observed that the mobility rights in s. 6(2)(a) applied to citizens and landed immigrants, but not to others who were living in Canada. He said, at para. 86 [pp. 249-50 C.R.R.]:

However, it seems to me that had Parliament intended to enshrine such mobility rights in persons such as the applicants it would have expressly provided for all persons lawfully entitled to remain in Canada to have s. 6(2) rights, but it chose not to do so. Therefore, the class of those entitled to s. 6(2) rights does not include non-landed immigrants such as the applicants. While I certainly agree that the applicants are not entitled to better treatment, I do not interpret s. 6 as affording them treatment equal to that afforded to Canadian citizens and landed immigrants. Accordingly, they have no Charter right to insist that residency requirements affecting them be reasonable. If there is discrimination, it is discrimination impliedly, but clearly recognized and tolerated by the Charter itself.

(Emphasis added)

[94] As I understand this analysis, Dilks J. found that as the appellants could not invoke the mobility rights of s. 6(2) to challenge the residency requirements for OHIP, it followed that they could not successfully challenge those provisions under s. 15 of the Charter.

[95] I cannot agree with that reasoning. Section 6(3)(b) speaks to reasonable residency requirements in the context of the mobility rights described in s. 6(2). Any limit on eligibility for social services imposed on citizens or landed immigrants who are residents must be reasonable or it will infringe their right to move from province to province. Section 6(2) affords no mobility rights to individuals who are not citizens or permanent residents. Those persons cannot complain that a residency requirement is "unreasonable". Section 6(2) does not, however, deny those persons the protection of s. 15. Section 15 applies to "every individual".

[96] A residency requirement as a prerequisite to access to a publicly funded social service may be reasonable in the sense that it does not unduly limit mobility rights but it may still be discriminatory either in its purpose or its effect. The reasonableness of a residency requirement for the purposes of s. 6(3)(b) will depend in large measure on the length of the waiting period established by the residency requirement. The s. 15 inquiry looks not to reasonableness, but to distinctions drawn between individuals or groups by the impugned legislation. Section 15 asks whether those distinctions are discriminatory and contrary to the equality right protected by s. 15.

[97] Section 6(2)(a) and s. 6(3)(b) do not immunize social service programs that are limited to residents and impose a reasonable residency requirement from scrutiny under s. 15 of the Charter. Two examples make the point. First, if the province imposed a one-month waiting period for eligibility for OHIP on men and a three-month waiting period for eligibility for OHIP on women, it could not be said that either was an unreasonable residency requirement and, therefore, an infringement of the mobility right in s. 6(2)(a). It would, however, be open to a woman applicant to claim that the provisions denied her the equal benefit of the law based on her sex. Second, a law might provide that only residents were eligible for OHIP. It might then go on to define resident by reference to race, excluding some while including others. A member of the excluded race could challenge the legislation on the basis that it constituted racial discrimination even if that person were not a citizen nor a permanent resident. He or she could not allege a breach of any mobility right under s. 6(2)(a), but as an "individual" could allege a breach of s. 15.

[98] Section 6(2)(a) and s. 6(3)(b) are not, however, irrelevant to the s. 15 analysis where the alleged discrimination arises out of a law which imposes limits on eligibility for publicly funded social services. The meaning to be given to one section of the Charter must be informed by the language and meaning of other provisions in the Charter: R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295 at p. 344, 18 D.L.R. (4th) 321; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 at p. 688, 180 D.L.R. (4th) 1. Distinctions which are part of and integral to the mobility right recognized in s. 6(2) and s. 6(3)(b) cannot in and of themselves be discriminatory under s. 15: Chiarelli v. Canada (Minister of Employment and Immigration), 1992 87 (SCC), [1992] 1 S.C.R. 711 at p. 736, 90 D.L.R. (4th) 289.

[99] Section 6(2)(a) and s. 6(3)(b) when read together establish residency in a province as an appropriate criterion for eligibility for publicly funded social services. Section 15 would not countenance an argument that a law providing for access to publicly funded social services was discriminatory because it drew an otherwise non-discriminatory distinction between residents and non-residents. Similarly, s. 6(2)(a) and s. 6(3)(b) recognize that, for the purposes of eligibility for publicly funded social services, a distinction may appropriately be made between residents who have met a reasonable residency requirement and those who have not. Section 15 would not label that distinction discriminatory. As Chilcott J. said in Clarken v. Ontario Health Insurance Plan (1998), 109 O.A.C. 363 at p. 373, 52 C.R.R. (2d) 74 at p. 86 (Div. Ct.):

[R]esidency is a constitutionally recognized measure of the extent and sufficiency of a person's connection to a province for the purpose of determining qualification for the receipt of publicly funded social benefits.

[100] The appellants' challenge to the constitutionality of the definition of resident in the amended R.R.O. 1990, Reg. 552 recognizes the interaction between s. 6 and s. 15 that I have just described. The appellants do not suggest that a residency requirement for OHIP eligibility contravenes s. 15. They accept that the definition of "ordinarily resident" in s. 1.1(2) of the amended regulation is an appropriate criterion for determining OHIP eligibility. All of the appellants could meet that definition.

[101] The appellants do contend, however, that the further requirement for residency set out in the amended s. 1.1(1) (b) of R.R.O. 1990, Reg. 552 effectively excludes residents of Ontario from OHIP eligibility based on their immigration status. It is the appellants' position that the definition of resident based on the categories set out in s. 1.1(1)(b) has nothing to do with residency, but is based on different grounds which are discriminatory within the meaning of s. 15.

VI

The Interpretation of S. 15

[102] Section 15 of the Charter demands that everyone be equal in the eyes of the law. Equality may mean that a law must treat everyone in the same way. Equality may, however, demand that one individual or group be treated differently from others. Legal distinctions can lie at the root of either equality or inequality. Some distinctions undermine the equality right, others foster that right, and still others have no relevance to the equality right. The essential task given to the judiciary by s. 15 of the Charter is to segregate those laws or other forms of state action that draw distinctions that are not inconsistent with the equality right from those laws that discriminate by drawing distinctions that offend the equality right.

[103] The difficulty inherent in providing a clear and all encompassing definition of equality is evident in the jurisprudence. In Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, the court, speaking through Iacobucci J., synthesized and harmonized its previous s. 15 jurisprudence. The approach set down in Law has been followed in several subsequent decisions of that court: M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577; Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1; British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, 186 D.L.R. (4th) 1; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, 188 D.L.R. (4th) 193.

[104] In Law, supra, at pp. 547-52 S.C.R., Iacobucci J. set out detailed guidelines to assist in the analysis of s. 15(1) claims. He was careful, however, to disclaim any suggestion that the guidelines were a litmus test controlling the result of each and every s. 15 challenge. They were instead a means by which the court could adhere to a "purposive and contextual approach to discrimination analysis": Law, supra, at pp. 547-48 S.C.R. The parties have used the summary of those guidelines set out in Law as the template for their submissions.

[105] The purpose underlying s. 15(1) is the central beacon that must guide the assessment of a s. 15(1) claim. The section speaks of equality in the sense of the absence of discrimination. Its purpose lies in the meaning to be given to the concepts of equality and discrimination: Law, supra, at p. 516 S.C.R.

[106] After extensive reference to the case law, Iacobucci J., at p. 549 S.C.R., described the purpose of s. 15 in these terms:

In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

[107] He had earlier, at p. 530 S.C.R., formulated this description of human dignity:

Human dignity means that an individual or group feels self- respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all the circumstances regarding the individuals affected and excluded by the law?

[108] The equality right cannot be calibrated as if it were a precise point on a ruler. Equality does not exist in isolation, but is a comparative concept that takes on meaning in the context of different treatment afforded different individuals or groups by a law or state action. A person alleging a breach of s. 15(1) must contrast the way he or she is treated by the law with the way others are treated and establish, first, that the treatment is different, and second, that the different treatment amounts to discrimination under s. 15(1): Law, supra, at pp. 531-32 S.C.R.

[109] The party advancing the s. 15(1) claim draws the terms of the comparison to be made for the purpose of advancing that claim. The court must, however, adjust the terms of that comparison if they do not accord with the actual distinctions drawn by the challenged law or other form of state action. Those distinctions are found by a consideration of the context, purpose and effect of the challenged law or state action: Law, supra, at p. 541 S.C.R.; Granovsky, supra, at p. 730 S.C.R. In other words, claimants cannot make up distinctions that are not found in the challenged law or state action.

[110] The comparative exercise required by an equality claim under s. 15(1) calls upon the court to determine whether the challenged state action in purpose or effect conflicts with the purpose of s. 15(1): Law, supra, at p. 549 S.C.R. A conflict arises where the purpose or effect of the state action is to impose a disadvantage or withhold a benefit based on factors that deny the claimant's right to be treated as an individual fully worthy of the respect, concern and consideration that should be afforded to all Canadians.

[111] As observed above, equal treatment does not necessarily mean the same treatment. A conflict between state action and s. 15 may arise because a claimant is not treated in the same way as the comparator, or the conflict may arise because the differences between the claimant and the comparator are not taken into account by state action in treating them identically. The dignity and self-worth of an individual may be demeaned and undermined either by state action that draws distinctions indicating that the claimant is somehow less worthy of recognition, or by state action that fails to recognize differences between the individual and others that are fundamental to the individual's sense of self and ability to participate in the community: Law, supra, at pp. 517-18 S.C.R.

[112] In determining whether the purpose or effect of the state action conflicts with the purpose of s. 15(1), the court must place itself in the shoes of the claimant. Once again, I borrow the words of Iacobucci J. in Law, supra, at pp. 532-34 S.C.R.:

[T]he focus of the discrimination inquiry is both subjective and objective: subjective in so far as the right to equal treatment is an individual right, asserted by a specific claimant with particular traits and circumstances; and objective in so far as it is possible to determine whether the individual claimant's equality rights have been infringed only by considering the larger context of the legislation in question, and society's past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances. The objective component means that it is not sufficient, in order to ground a s. 15(1) claim, for a claimant simply to assert, without more, that his or her dignity has been adversely affected by a law.

[T]he relevant point of view is that of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant. . . . All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.

Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purposes of s. 15(1).

[113] The essential question that must be answered on a s. 15(1) claim comes down to this:

Would a reasonable person in the position of the claimant, fully apprised of the context, purpose and terms of the impugned state action, conclude upon a careful and dispassionate consideration that his or her sense of self-worth and entitlement to be treated as an individual who is as worthy and valuable as any other in the community was demeaned or denied by the different treatment afforded him or her by the state action?

[114] The previously mentioned guidelines developed by Iacobucci J. in Law provide the analytical road map to be followed in addressing this difficult question. He said, at pp. 548-49 S.C.R.:

Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position with Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[115] The first of these three steps determines whether any distinction is drawn by the impugned law. If no distinction is drawn, that is the end of the s. 15 inquiry. The second and third steps together determine whether distinctions which are drawn by the law are discriminatory. To be discriminatory, the distinction must be made on an enumerated or analogous ground. If it is not, that is the end of the s. 15 inquiry. If the distinction is made on the basis of an enumerated or analogous ground, one must then determine, based on a fact specific inquiry, whether the distinction amounts to discrimination in the particular case.

[116] In Corbiere, supra, McLachlin J., for the majority, at p. 221 S.C.R., described this third step of the inquiry in these terms:

In plain words, does the distinction undermine the presumption upon which the guarantee of equality is based -- that each individual is deemed to be of equal worth regardless of the group to which he or she belongs?

VII

The Specific S. 15 Challenges

(a) The amended definition of resident

[117] As described above, everyone who is a resident as defined in the amended R.R.O. 1990, Reg. 552 is eligible for OHIP. To be a resident, a person must be "ordinarily resident" in Ontario as defined in s. 1.1(2) of the amended regulation, and come within one of the enumerated categories in s. 1.1(1) (b) of the same regulation. The appellants' s. 15 argument targets s. 1.1(1)(b).

[118] Five of the appellants did not come within the enumerated categories in s. 1.1(1)(b) and were, therefore, ineligible for OHIP when this application was commenced. I have already outlined Raja's situation in some detail. He came to Canada on a Minister's permit, but not the type of Minister's permit referred to in para. 10 of s. 1.1(1)(b). He was, therefore, ineligible for OHIP. When Ms. Tudor and her children were denied OHIP in December 1995, Ms. Tudor was in Canada on a year-to-year open employment authorization. Her children, Sergio and Leandra Bodington, were in Canada on student visas. Neither category was covered by s. 1.1(1)(b). When Mr. Melvin was removed from the OHIP rolls in the summer of 1994, it would appear that he had no legal standing in Canada and no right to remain in Canada. That "status" is not covered by s. 1.1(1)(b).

[119] Section 1.1(1)(b) does make certain temporary residents of Ontario eligible for OHIP (e.g. some agricultural workers). Most temporary residents, however, do not come within the definition of resident set out in that section. In advancing their s. 15 claim, the appellants do not suggest that they should be compared to those relatively few temporary residents who are eligible for OHIP. The appellants take the position that they should be compared to persons who, like them, meet the definition of ordinarily resident in Ontario, but who, unlike them, fall within one of the categories set out in s. 1.1(1)(b). The appellants contend that the categories established under that section effectively exclude "new immigrants" from OHIP eligibility even though they are ordinarily resident in Ontario. The appellants argue that the definition discriminates against "new immigrants" who are ordinarily resident in Ontario by treating them differently from other persons who are ordinarily resident in Ontario but come within the immigration classifications referred to in s. 1.1(1)(b).

[120] Ontario takes the position that the definition draws a distinction between persons who are ordinarily resident in Ontario and who are entitled, or will shortly be entitled, to stay in Ontario on a permanent basis; and those who, while ordinarily resident in Ontario are not, because of their immigration status, entitled to remain permanently in Ontario. Ontario describes this distinction as one based on "residency status" and contends that residency status is not one of the grounds enumerated in s. 15(1) and is not an analogous ground. Ontario also submits that status under the immigration laws provides a valid indicator of whether residency is temporary or permanent. Finally, it is also Ontario's position that it is constitutionally entitled to distinguish between permanent residents and others when determining eligibility for publicly funded social services.

[121] With these submissions in mind, I turn to the three steps identified in Law. The definition of resident, like most laws, draws distinctions. By virtue of the definition, some people who are ordinarily resident in Ontario are not eligible for OHIP and others are. Clearly, those who are ineligible are denied an important benefit.

[122] The second stage of the inquiry requires a determination of the basis upon which the impugned distinction is made. It is only after identifying that basis that one can decide whether the distinction is made on a ground enumerated in s. 15 or on an analogous ground.

[123] The appellants suggested several bases upon which the distinction created in the regulation is made. I cannot accept any of them. The appellants' primary submission was that the regulation draws a distinction between "new immigrants" who are ordinarily resident in Ontario and other persons who are ordinarily resident in Ontario. The regulation does not draw that distinction. Many new immigrants are eligible for OHIP (e.g. landed immigrants, some applicants for landed immigrant status, refugees, some applicants for refugee status, and some Minister's permit holders). It is simply wrong to suggest that new immigrants as a class cannot meet the definition of resident in the regulation.

[124] Furthermore, some persons who are not eligible for OHIP because of the definition of resident in the regulation are neither "new" to Ontario nor immigrants (e.g. Mr. Melvin).

[125] The appellants also submitted that the definition of residency in the amended regulation draws a distinction between citizens of Canada who are ordinarily resident in Ontario and non-citizens who are ordinarily resident in Ontario. On this submission, the former are eligible for OHIP and the latter are not. The language of the regulation does not reflect this comparison. Many non-citizens are eligible for OHIP under the definition of resident. Canadian citizenship is but one of many criteria which may bring a person within the definition of resident and make that person eligible for OHIP if he or she is ordinarily resident in Ontario.

[126] The appellants also submitted that the definition of resident in the amended regulation somehow draws a distinction based on national origin, gender, or age. None of these factors have any relevance to the determination of whether a person comes within one of the enumerated categories set out in the amended regulation.

[127] It was forcefully argued on behalf of Raja, Sergio Bodington and Mr. Melvin that the definition of resident in the amended regulation draws a distinction based on physical disability. Physical disability is one of the grounds enumerated in s. 15(1). There can be no doubt but that Raja, Sergio Bodington and Mr. Melvin were denied landed immigrant status because of their physical disability. But for their disabilities, they would have been granted that status and would have been eligible for OHIP.

[128] It was the federal immigration authorities who decided that the physical disabilities of these appellants rendered them ineligible for landed immigrant status. These same authorities classified the appellants for immigration purposes. There is no constitutional challenge to the action of the immigration authorities nor to the underlying legislation. The validity of both must be assumed in these proceedings. Having concluded that neither Raja nor Sergio Bodington should be granted landed immigrant status, the immigration authorities, again acting under their legal mandate, allowed Raja to enter Canada and permitted Sergio to remain in Canada. Mr. Melvin also remained in Canada, although it would seem he had no legal right to do so.

[129] OHIP officials looked to the classification of the appellants made by the immigration authorities in determining whether the appellants fell within the definition of resident. The OHIP authorities were interested only in the permanence of the applicant's residency as evidenced by his or her immigration classification and not in the physical condition of any of the appellants.

[130] The categories of persons set out in the regulation who may be residents of Ontario are not tied to the existence or absence of physical disability, but are directed exclusively at the immigration status of individuals as determined by the immigration authorities. This distinction is made clear in the cases of Sergio Bodington and Mr. Melvin. Sergio was initially classified as medically inadmissible because of his severe bilateral hearing loss. He was allowed to remain in Canada on a student visa. Because of that status, he was ineligible for OHIP. Subsequently, the immigration authorities reclassified Sergio and he was granted landed immigrant status. He immediately became eligible for OHIP. Sergio's physical disability had not changed, but the permanence of his immigration status had. With that change came an entitlement to OHIP. Similarly, Mr. Melvin was refused landed immigrant status because of his poor health after a series of strokes. The immigration authorities later reconsidered that assessment and Mr. Melvin was granted landed immigrant status. There is no suggestion that his physical condition changed. Like Sergio, however, once his immigration status changed, Mr. Melvin became eligible for OHIP.

[131] Of all the appellants, only Raja is still ineligible for OHIP. He is ineligible not because he is physically disabled, but because he is allowed to remain in Canada on a Minister's permit that is not one of the permit types referred to in the regulation. Under the terms of his permit, Raja remains entitled to stay in Canada only at the discretion of the Minister of Citizenship and Immigration. Sadly, Raja's physical disability will never change. His entitlement to OHIP will, however, if the immigration authorities reclassify him as happened in the case of Sergio and Mr. Melvin, or if after five years the Minister sees fit to grant Raja landed immigrant status.

[132] I think Ontario's submissions accurately capture the basis upon which the distinction is drawn in the definition of resident in s. 1.1(1)(b) of the amended regulation. Aside from those categories referring to temporary residents, which are not in issue on this appeal, the various categories in the regulation refer to persons whose status in the country gives their residency in Ontario a potential permanence. Persons who come within the various enumerated categories are either entitled to remain in Canada permanently or will shortly be entitled to remain in Canada permanently. Persons who are excluded by the categories are persons who, despite their intention to remain in Ontario permanently, do not have an immigration status that permits them to remain in Canada and, therefore, Ontario on a permanent basis.

[133] The relevance of permanence to the definition of residence is evident upon an examination of the unchallenged definition of "ordinarily resident" found in s. 1.1(2) of the amended regulation. That definition provides in part that a person is ordinarily resident in Ontario only if that person "intends to make his or her permanent and principal home in Ontario". The requirement that persons who are ordinarily resident in Ontario have an immigration status that permits them or will shortly permit them to remain permanently in Canada is a logical corollary to the requirement that a person intend to make his or her permanent home in Ontario. The categories set out in the amended regulation do no more than require that persons who intend to make their permanent home in Ontario have the legal status that permits them to legitimately hold that intention. Viewed in this light, the categories established in s. 1.1(1)(b) of the amended regulation are closely linked to the unchallenged definition of "ordinarily resident" set out in s. 1.1(2) of the regulation.

[134] It think the distinction made in the regulation is a distinction between those persons who are ordinarily resident in Ontario and whose status under federal immigration law is such that they are entitled or will shortly be entitled to be permanent residents of Ontario, and those persons who are ordinarily resident in Ontario but who, by virtue of their immigration status, are not entitled to become permanent residents in Ontario. For ease of reference, I will refer to the former as permanent residents and the latter as non- permanent residents.

[135] A person's status as a permanent or non-permanent resident of a province is not a ground enumerated in s. 15 of the Charter. Nor, in my view, is it an analogous ground. In Corbiere, supra, at p. 219 S.C.R., McLachlin J. said:

. . . the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion.

[136] A person's status as a non-permanent resident for the purposes of OHIP eligibility is not immutable. In the course of this litigation, four of the five appellants who were non- permanent residents for the purposes of OHIP eligibility became permanent residents by virtue of changes in their immigration status. The residency status of the fifth appellant, Raja, will also change if his immigration status changes, either because he is reclassified or because the Minister grants him landed immigrant status. While Raja's physical disability is an immutable characteristic, and that characteristic is the reason for his present immigration classification and consequently his ineligibility for OHIP, there is no basis in this record for concluding that his immigration status, unlike his physical disability, is immutable. To the contrary, to the limited extent that the record speaks to the issue, it demonstrates that the immigration status of persons with physical disabilities changes. When that status changes, those persons may become eligible for OHIP.

[137] This distinction between the basis upon which immigration authorities make their determinations and the resulting immigration status is crucial to this case. The appellants have chosen not to challenge any facet of the immigration process. I think it must be assumed that the process operates within constitutional limits and specifically within the spirit of s. 15(1). Immigration status can determine a person's right to take up permanent residence in a province. Once it is accepted that the process that results in a particular immigration status does not offend s. 15(1), I fail to see how Ontario's reliance on that status in determining the nature of an individual's residence in the province can be classified as discriminatory.

[138] Mr. Paliare, in his able submissions, contended that regardless of Raja's formal immigration status, he was a de facto permanent resident by virtue of his disability and dependence on his mother and father, both of whom were permanent residents. Mr. Paliare submitted that as Raja was in reality a permanent resident, Ontario's claim that he was denied OHIP because of his temporary status should be rejected.

[139] The argument is an attractive one. It is difficult to see how Raja could ever be required to leave the country. There is, however, nothing in the record which would permit the inference that case type 90 permit holders are in fact permanent residents despite the apparently temporary nature of their legal status in the country. If there was evidence that case type 90 permit holders as a category are as likely to become permanent residents as those holding early admission case type permits, my conclusion that the regulation draws a distinction between permanent and non-permanent residents would have to be reconsidered.

[140] The distinction drawn between permanent and non- permanent residents in the definition of resident in the amended regulation is not a distinction made on a ground that is analogous to the enumerated grounds in s. 15(1). The distinction cannot, therefore, be discriminatory within the meaning of s. 15 and I need not proceed to the third stage of the inquiry described in Law.

(b) The three-month waiting period

[141] As indicated above, all of the appellants, except Raja, are now insured by OHIP. Each appellant had to go through the three-month waiting period. Four of the appellants, Ms. Assan, Ms. Karthigesu, Ms. Simon and Ms. Dobrescu, incurred significant medical expenses during that waiting period. Those expenses would have been covered by OHIP but for the waiting period.

[142] The three-month waiting period imposed by s. 3(1) of the amended R.R.O. 1990, Reg. 552 is consistent with the Canada Health Act. That Act contemplates that provincial health plans may include waiting periods for eligibility of up to three months. As I understand the appellants' submissions, they do not suggest that the imposition of a waiting period for OHIP eligibility is, in and of itself, contrary to s. 15. They have not challenged any aspect of the Canada Health Act.

[143] Section 3(4) of the amended regulation lists some 16 categories of persons who are exempt from the three-month waiting period requirement. Those exemptions create a clear distinction between the persons who fall within them and those persons who do not. Those who are exempt enjoy the benefit of immediate eligibility for OHIP, while those who are not exempt must wait for three months. The appellants do not, however, base their s. 15 claim on the distinction between those who are exempt under the regulation and those who are not. It is not surprising that the appellants do not make this argument, as several of the exemptions (e.g. refugees) provide immediate OHIP eligibility for persons who fall within the very categories (e.g. new immigrants) that the appellants submit are discriminated against by the imposition of the three-month waiting period.

[144] The appellants submit, however, that the amended regulation, providing for the waiting period, cannot be considered in isolation. They contend that it must be considered in combination with the inter-provincial agreement covering persons who move into Ontario from another province, and the policy (now found in ss. 1.1(3)-(6) of R.R.O. 1990, Reg. 552, as amended) that the appellants characterize as a waiver of the three-month waiting period, available only to returning Canadian citizens or permanent residents of Ontario. The appellants argue that when the three-month waiting period is viewed in combination with these two features of the OHIP scheme, the overall effect is to discriminate against "new immigrants", non-citizens and persons of nationalities other than Canadian.

[145] I cannot accept either argument advanced by the appellants. Apart from the exceptions in s. 3(4) of R.R.O. 1990, Reg. 552, as amended, the waiting period applies to all new residents of Ontario, regardless of their citizenship, former place of residence, or immigration status. Persons moving into Ontario from another province must wait for up to three months before they are covered by OHIP. The fact that they are covered under the health plan of the province from which they move does not affect their status under OHIP. Like anyone else who is subject to the waiting period, they cannot look to OHIP to cover their medical expenses, even if those expenses are not covered under the plan of the province from which those persons moved.

[146] Nothing in the regulation prevents new residents of Ontario who are not from another province from obtaining health care coverage for the three-month waiting period. All of the appellants who were adversely affected by the waiting period could have obtained alternate health care coverage. Indeed, those new immigrants who are most likely to be unable to obtain health care coverage for the three-month period (e.g. refugees) are exempt from the waiting period.

[147] The appellants' submission would also undermine the portability provisions of the Canada Health Act. Those provisions require that provinces extend health coverage to former residents who move to a province in which they are subject to a waiting period before they become eligible for coverage under that province's health care plan. The obvious intent of the requirement is to avoid gaps in health care coverage when residents of one province take up residence in another province. If the appellants' submission is correct, however, compliance with the portability requirement demands that a province extend immediate coverage to all new residents from outside of Canada. Only persons from other provinces would be subject to the waiting period. Consequently, a person moving into Ontario in need of a health service covered by OHIP but not by the plan in the province from which that person moved would be in a worse position than a person moving into Ontario from outside of Canada. This result seems entirely inconsistent with the spirit of the Canada Health Act. That legislation has, of course, not been challenged in these proceedings.

[148] Even if I were to conclude that the waiting period set out in the regulation, combined with the terms of the inter- provincial agreement, creates a distinction which bestows a benefit on some Ontario residents that is not available to others, I would not find that the distinction is based on a ground enumerated in s. 15 or on a ground which is analogous to those enumerated in s. 15. The distinction is between persons covered by provincial health care plans at the time they apply for OHIP and persons who are not covered by any provincial health care plan when they apply for OHIP. In my view, this distinction is not based on anything that could reasonably be described as a personal characteristic. It is certainly based neither on residency nor on Canadian citizenship. Persons living in other provinces may or may not have been covered under that province's health plan when they applied for OHIP. Canadian citizens may or may not have been covered by a health care plan of another province when they applied for OHIP. Similarly, persons who may properly be described as "new immigrants" who resided in another province before moving to Ontario may or may not have been covered by another provincial health plan when they applied for OHIP.

[149] The appellants' attempt to compare their situation with residents of Ontario who are permitted to maintain their OHIP coverage during extended absences from the province is also misplaced. The problem with this comparison is that the group identified by the appellants does not comprise persons applying for OHIP, but rather persons who are insured by OHIP and who are seeking an exemption from the normal residency requirement so that they may maintain their OHIP coverage during a temporary absence from Ontario. This exemption is available to anyone who is insured by OHIP and meets the requirements of the regulation. Anyone seeking such an exemption who became insured under OHIP after April 1994 will already have gone through the three-month waiting period. There is no valid comparison between the treatment of persons applying for OHIP upon taking up residence in Ontario and the treatment of persons who are resident in Ontario, insured by OHIP, and seeking to maintain that status during a lengthy, but temporary, absence from the province.

[150] Apart from the specific exemptions in s. 3(4) of the amended regulation, the waiting period requirement does not distinguish between different groups or persons. Everyone who applies for OHIP after April 1994 is subject to the waiting period. The law neither draws a formal distinction between groups based on personal characteristics nor fails to take into account the disadvantaged position of a group within Canadian society. The waiting period requirement does not impose differential treatment and cannot, therefore, be discriminatory within the meaning of the equality guarantee.

(c) The requirement that each individual establish his or her eligibility for OHIP

[151] Residency as defined in R.R.O. 1990, Reg. 552, as amended, is the sole requirement for OHIP eligibility. With two narrow exceptions, every person must establish that he or she is a resident within the meaning of the regulation. Prior to the 1994 changes, dependants of insured persons were insured persons without establishing their own residency. In seeking to establish a discriminatory distinction, the appellants cannot compare their treatment under the present legislation to that provided to persons like them under the previous legislation. Having initially determined OHIP coverage on the basis of dependency, the province is not constitutionally obliged by s. 15(1) to maintain coverage on that basis: Ferrell v. Ontario (Attorney General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97 at p. 110-11, 58 C.R.R. (2d) 21 (C.A.).

[152] None of the appellants lost existing OHIP coverage because of the change from dependency-based eligibility to eligibility based on individual assessment. The elimination of eligibility for OHIP based on dependency status did, however, affect the entitlement of Raja, Ms. Assan and Ms. Simon to OHIP. All were dependants of insured persons and would have been eligible for OHIP on that basis prior to the 1994 changes.

[153] A scheme which requires each individual to establish his or her residency and, therefore, his or her entitlement to OHIP would not on its face appear to raise s. 15(1) concerns. Individual assessments for eligibility do not necessarily exclude discrimination. They do, however, contraindicate discrimination: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625 at pp. 681-82, 175 D.L.R. (4th) 193.

[154] The appellants' contention that individually-based eligibility for OHIP is discriminatory arises out of the two exceptions to the elimination of dependency-based eligibility for OHIP made by the 1994 changes. Persons who fall within two discrete groups are eligible for OHIP if they are dependants of persons insured by OHIP. Dependants of persons working in Ontario for a specified period of time under a specific immigration authorization, and dependants of clergy working temporarily in Ontario under specified contracts, are eligible for OHIP. Although there is no evidence of the size of either group, it is obvious that together they make up a very small minority of the total OHIP-eligible population.

[155] The appellants contend that the distinction drawn in the present regulation between those who are eligible for OHIP because they are dependants of persons who are eligible and those who cannot rely on that status to establish their eligibility for OHIP amounts to discrimination and infringes s. 15. If this argument is correct, the vast majority of the residents of Ontario who are dependants of persons insured by OHIP are the victims of discrimination.

[156] The appellants describe the distinction they rely on in the following terms in their factum:

. . . a similar formal distinction is drawn between children of new immigrants, who must establish their individual eligibility, and others who continue to be assessed on a family basis, such as the spouses and children of certain short-term contract employees and members of the clergy who have contracted for employment in Ontario, . . . Again, this distinction is made on the basis of the personal characteristic of status as new immigrants.

[157] The distinction set out in the appellants' factum applies only to Raja, the only one of the affected appellants who is a "child of new immigrants". In any event, the distinction the appellants would draw simply does not exist in the impugned regulation. With the exception of the two limited groups described above, everyone applying for OHIP must establish his or her own eligibility based on residency. Canadian citizens must do so, landed immigrants must do so, and all other persons who are potentially residents of Ontario within the definition must do so. An applicant's immigration status has nothing to do with the requirement that the applicant establish his or her entitlement to OHIP on an individual basis. Nor does the length of time one has been in the province affect one's obligation to establish entitlement on an individual basis. Persons who apply for OHIP the day they arrive in Canada must establish their individual entitlement to OHIP, as must persons who have lived in Canada all their live.

[158] The only distinction drawn in the legislation is between dependants of the two groups described above, who are eligible for OHIP on that basis, and the rest of the population of Ontario. This distinction denies to the vast majority of the population of Ontario a benefit which is available to the two identified groups. The first step in the three-step analysis of a s. 15(1) claim set out in Law is, therefore, satisfied.

[159] The basis upon which the distinction is drawn is not one enumerated in s. 15(1) and is not analogous to any of those grounds. The distinction is between dependants of certain clergy and some persons working temporarily in Ontario, and dependants of the rest of the population of Ontario. A group identified in such wide terms can hardly be the subject of stereotypical discriminatory decision making. The government's decision to offer an incentive by way of OHIP eligibility for dependants of certain persons who can fill specified workplace needs hardly denigrates the human dignity or self-worth of the vast majority of persons who do not come within those groups. The fact that dependants of two specified small groups are eligible for OHIP in no way demeans the human dignity or self- worth of the vast majority of persons who may not qualify on that basis but must qualify on an individual basis.

[160] The requirement that each person establish his or her eligibility for OHIP does not place any undue burden on the appellants. Neither Ms. Assan nor Ms. Simon had any difficulty establishing her residency. Raja had difficulty doing so, however, his difficulty stemmed not from the requirement that he establish his individual entitlement to OHIP, but from the definition of resident that excluded him because he was not eligible to become a permanent resident of Ontario. I have already dealt with his s. 15(1) claim based on the definition of resident.

[161] I am satisfied that no reasonable person in the position of the appellants and fully apprised of the context, purpose and terms of the OHIP scheme could possibly conclude that the requirement that persons establish their entitlement to OHIP on an individual basis demeans their sense of self- worth or their entitlement to be treated as individuals, as worthy as any other in the community to the benefit and protection of the law.

VIII

[162] I would dismiss the appeal. In doing so, however, I must observe that the present interface between the complex immigration process, as administered by the federal government, and the determination of OHIP eligibility as made by the province is not entirely satisfactory. It seems inherently contradictory, if not cruel, to permit a young boy like Raja to enter Canada on compassionate grounds so that he might live with the rest of his family who have been allowed to settle in Canada, while at the same time not taking cognizance of Raja's need to access expensive medical services that can, to some degree, at least alleviate his severe physical disability. While I have found no constitutional violation, I would think that the federal and provincial authorities could work together to find some way to extend our country's compassion beyond permission to enter Canada to include access to the medical services available through OHIP to persons like Raja.

[163] This is not an appropriate case for costs. The issues raised by the appellants were complex and important. The public at large, and especially those charged with the difficult task of administering the OHIP scheme, benefited by the thorough, vigorous, and responsible manner in which those issues were presented by the appellants.

Appeal dismissed.

APPENDIX "A"

ONTARIO REGULATION 490/94 made under the HEALTH INSURANCE ACT

Made: July 20, 1994 Filed: July 21, 1994

Amending Reg. 552 of R.R.O. 1990 (General)

1. Regulation 552 of the Revised Regulations of Ontario, 1990 is amended by adding the following section:

1.1 (1) For the purposes of the Act, "resident" means an individual,

(a) who is present in Ontario by virtue of an employment authorization issued under the Caribbean Commonwealth and Mexican Seasonal Agricultural Workers Programme administered by the federal Department of Citizenship and Immigration; or

(b) who is ordinarily resident in Ontario and who is one of the following:

1. A Canadian citizen or a landed immigrant under the Immigration Act (Canada).

2. A person who is registered as an Indian under the Indian Act (Canada).

3. A Convention refugee as defined in the Immigration Act (Canada).

4. A person who has submitted an application for landing under the Immigration Act (Canada), who has not yet been granted landing and who has been confirmed by the federal Department of Citizenship and Immigration as having satisfied the medical requirements for landing.

5. A person who has made a claim to be a Convention refugee under the Immigration Act (Canada) and in respect of whom,

i. a senior immigration officer has determined that the person is eligible to have his or her claim determined by the Refugee Division, and

ii. a removal order, as defined in the Immigration Act (Canada), has not been executed.

6. A person who has finalized a contract of employment or an agreement of employment with a Canadian employer situated in Ontario and who, at the time the person makes his or her application to become an insured person, holds an employment authorization under the Immigration Act (Canada) which,

i. names the Canadian employer,

ii. states the person's prospective occupation, and

iii. has been issued for a period of at least six months.

7. The spouse or dependant child under the age of 19 years of a person referred to in paragraph 6 if the Canadian employer provides the General Manager with written confirmation of the employer's intention to employ the person referred to in paragraph 6 for a period of three continuous years.

8. A member of the clergy of any religious denomination who has finalized an agreement of employment to minister on a full-time basis to a religious congregation in Ontario for a period of not less than six consecutive months and whose duties will consist mainly of preaching doctrine, presiding at liturgical functions and spiritual counselling.

9. The spouse and dependant children under the age of 19 years of a member of the clergy referred to in paragraph 8 if the religious congregation provides the General Manager with written confirmation that it intends to employ the member for a period of at least three consecutive years.

10. A person granted a minister's permit under section 37 of the Immigration Act (Canada) which indicates on its face that the person is a member of an inadmissible class designated as case type 86, 87, 88 or 89 or, if the permit is issued for the purpose of an adoption by an insured person, as case type 80.

11. A person granted an employment authorization under the Live-in Care Givers in Canada Programme or the Foreign Domestic Movement administered by the federal Department of Citizenship and Immigration.

(2) For the purposes of subsection (1), a person is ordinarily resident in Ontario only if,

(a) in the case of an insured person or of a person who comes to Ontario from another province or territory in which that person was insured by the provincial or territorial health insurance authority, the person,

(i) makes his or her permanent and principle home in Ontario, and

(ii) is present in Ontario for at least 183 days in any twelve-month period; and

(b) in the case of a person who is applying to be an insured person for the first time or who is re- establishing his or her entitlement after having been uninsured for a period of time, other than a person who comes to Ontario from another province or territory in which that person was insured by the provincial or territorial health insurance authority, the person,

(i) intends to make his or her permanent and principle home in Ontario, and

(ii) is present in Ontario for,

(A) at least 183 days in the twelve-month period immediately following the application, and

(B) at least 153 of the 183 days immediately following the application.

2. The Regulation is amended by adding the following section:

INFORMATION WITH RESPECT TO ELIGIBILITY

3.1(1) The General Manager may require the following information as a condition for an insured person to continue as an insured person:

1. In cases where the insured person's name is changed to a name other than the one indicated on the person's health card, the person's health number, former name and new name.

2. In cases where the insured person's address is changed to an address other than the one indicated on the person's application to become an insured person, the person's health number, former address and new address.

3. In cases where the insured person's citizenship or immigration status is changed to a status other than that indicated on the person's application to become an insured person, the person's health number, former status and present status.

(2) If an insured person is under 16 years of age, the General Manager may require that the information referred to in subsection (1) relating to the change of name, address or citizenship or immigration status of the child be provided by the parent of the child who has custody of the child, or by any other insured person who has custody of the child.

3. Section 5 of the Regulation is revoked and the following substituted:

4. The benefit period of an insured person who, upon ceasing to be a resident of Ontario, immediately establishes residence in another province or territory of Canada shall be continued for three months after the date the person ceases to be a resident under the Act.

5. (1) Subject to subsection (2), this Regulation shall be deemed to have come into force on April 1, 1994.

(2) Section 3 comes into force on October 1, 1994.

APPENDIX "B"

ONTARIO REGULATION 491/94 made under the HEALTH INSURANCE ACT

Made: July 20, 1994 Filed: July 21, 1994

Amending Reg. 552 of R.R.O. 1990 (General)

Note: Since January 1, 1994, Regulation 552 has been amended by Ontario Regulations 19/94, 199/94, 221/94, 255/94, 302/94, 356/94, 357/94, 496/94, 487/94, 488/94, 489/94 and 490/94. For prior amendments, see the Table of Regulations in the Statutes of Ontario, 1993.

1. Regulation 552 of the Revised Regulations of Ontario, 1990 is amended by striking out the heading "Pay-Direct Participation" immediately preceding section 3 and substituting "Applications".

2. Subsection 3 (3) of the Regulation is revoked and the following substituted:

(3) A resident who makes an application under subsection (1) shall only be enrolled as an insured person three months after the day the person becomes a resident.

(4) The three-month waiting period referred to in subsection (3) does not apply to the following persons who are residents and who apply to the following persons who are residents and who apply to become insured persons:

1. A child under the age of 16 who is adopted by an insured person.

2. A newborn born in Ontario to an insured person.

3. A person who satisfies the General Manager that he or she has been resident in Ontario for at least three months at the time of his or her application to become an insured person.

4. A member of the Canadian Forces who was an insured person immediately before becoming a member and is discharged from the Canadian Forces.

5. A member of the Royal Canadian Mounted Police who had been appointed to a rank therein and who was an insured person immediately before becoming a member and is discharged.

6. A Canadian diplomat who returns to Ontario after a posting to a place outside Canada and who was an insured person immediately before the posting.

7. The spouse, or dependent child under 19 years of age, of a Canadian diplomat referred to in paragraph 6 who was an insured person immediately before the posting of the Canadian diplomat.

8. An inmate at a penitentiary as defined in the Corrections and Conditional Release Act (Canada) who is released.

9. An inmate at a correctional institution established or designated under Part II of the Ministry of Correctional Services Act who is released.

10. A person who,

i. takes up residence in Ontario directly from elsewhere in Canada where the person was insured under a government health plan or a hospital insurance plan, and

ii. upon taking up residence in Ontario, becomes a resident of an approved charitable home for the aged under the Charitable Institutions Act, a home under the Homes for the Aged and Rest Homes Act or a nursing home under the Nursing Homes Act.

11. A Convention refugee as defined in the Immigration Act (Canada).

12. A person who has made a claim to be a Convention refugee under the Immigration Act (Canada) and in respect of whom,

i. a senior immigration officer has determined that the person is eligible to have his or her claim determined by the Refugee Division, and

ii. a removal order, as defined in the Immigration Act (Canada), has not been executed.

13. A person granted a Minister's permit under section 37 of the Immigration Act (Canada) which indicates on its face that the person is a member of an inadmissible class designated as case type 86, 87, 88 or 89 or, if the permit is issued for the purpose of an adoption by an insured person, as case type 80.

14. A person who is present in Ontario by virtue of an employment authorization issued under the Caribbean Commonwealth and Mexican Seasonal Agricultural Workers Programme administered by the federal Department of Citizenship and Immigration.

15. A pregnant woman who became pregnant before April 1, 1994 and who applied to become an insured person during the course of that pregnancy.

16. A pregnant woman who,

i. has submitted an application for landing under the Immigration Act (Canada) and has not yet been granted landing,

ii. became pregnant before April 1, 1994, and applied to become an insured person during the course of that pregnancy, and

iii. has been confirmed by the federal Department of Citizenship and Immigration as having satisfied,

A. all the medical requirements for landing, or

B. all the medical requirements for landing except for the requirement to submit to an x-ray.

3. This Regulation shall be deemed to have come into force on April 1, 1994.

APPENDIX "C"

ONTARIO REGULATION 85/99 made under the HEALTH INSURANCE ACT

Made: February 24, 1999 Filed: March 1, 1999

Amending Reg. 552 of R.R.O. 1990 (General)

1.(1) Subclause 1.1(2)(a)(11) of Regulation 552 of the Revised Regulations of Ontario, 1990 is revoked and the following substituted:

(ii) subject to subsections (3), (4), (5) and (6), is present in Ontario for at least 153 days in any 12- month period; and

(2) Subclause 1.1(2)(b)(ii) of the Regulation is revoked and the following substituted:

(ii) is present in Ontario for at least 153 days immediately following the application.

(3) Section 1.1 of the Regulation is amended by adding the following subsections:

(3) A person referred to in clause (2)(a) is exempt from the requirement of subclause (2)(a)(ii) if the person provides the General Manager with evidence that he or she meets one of the following criteria:

1. The person's employment requires the person to travel frequently outside of Ontario.

2. The General Manager has approved, under section 28.4, payment for a treatment to be provided to the person outside Canada.

3. The person,

i. leaves Ontario for a reason mentioned in subsection (4),

ii. met the requirement of subclause (2)(a)(ii) for at least two consecutive 12-month periods immediately before leaving, and

iii. intends to return to make his or her permanent and principal home in Ontario.

4. The person,

i. is the spouse of, or a dependent child who is under 19 years of age of, a person who is exempt under paragraph 3,

ii. leaves Ontario to accompany the exempt person referred to in subparagraph i,

iii. met the requirement of subclause (2)(a)(ii) for at least two consecutive 12-month periods immediately before leaving, and

iv. intends to return to make his or her permanent and principal home in Ontario.

(4) For the purposes of paragraph 3 of subsection (3), the reasons for which a person leaves Ontario are as follows:

1. To work in a place outside Canada which constitutes the person's primary place of employment.

2. To attend a full-time educational program at an institution outside Canada that is accredited by the government of that jurisdiction.

3. To engage in missionary work outside Canada that is sponsored by a religious denomination in Ontario.

(5) A person who is exempt from the requirement of subclause (2)(a)(ii) under paragraph 3 of subsection (3) shall no longer be exempt from the requirement if,

(a) after having left Ontario for one of the reasons mentioned in subsection (4), the person is absent from Ontario for one of the other reasons mentioned in that subsection without having first returned to Ontario and met the requirement of subclause (2)(a)(ii) for at least two consecutive 12-month periods; and

(b) in the case of a person who leaves to work in a place outside Canada under paragraph 1 of subsection (4), the person fails to meet the requirement of subclause (2)(a)(ii) for more than five consecutive 12-month periods.

(6) In addition to any exemption under subsection (3), a person referred to in clause (2)(a) who leaves Ontario for an extended vacation or for any other reason is exempt from the requirement of subclause (2)(a)(ii) for two consecutive or separate 12-month periods if,

(a) the person previously met the requirements of clause (2)(a) for at least two consecutive 12-month periods;

(b) the person intends to return to make his or her permanent and principal home in Ontario; and

(c) the person has not previously been exempted from the requirement of subclause (2)(a)(ii) under this subsection.

Notes

Note 1: [1999] O.J. No. 301 (Gen. Div.).

Note 2: There were about 19,000 foreign students receiving OHIP and about 44,000 foreign workers receiving OHIP. It was anticipated that the amendments to OHIP would remove all of the foreign students and about one half of the foreign workers from the OHIP rolls.

Note 3: There were 85,000 refugees in Ontario in 1993 receiving OHIP. Although the record is somewhat unclear, it would appear that the vast majority still receive OHIP, although some now receive health care benefits under a federal plan.

Note 4: The amendments to the Health Insurance Act were made by the Budget Measures Act, 1994, S.O. 1994, c. 17, ss. 68, 70, 72(1)(b).

Note 5: The appellants' claims do not take issue with the distinction drawn between agricultural workders and others.

Note 6: Case type 80 permits are limited to those issued to children who are being adopted by Ontario residents. The appellants' claims do not rely on any distinction between them and those children.

Note 7: In S.P. v. Ontario Health Insurance Plan (General Manager) (19 August 1999), 5399E, the Health Services Appeal Board indicated there was a total of some 2,785 case type 90 permit holders in Ontario.

Note 8: The amending O. Reg. 85/99 was proclaimed after the proceedings before Dilks J., but was referred to in argument on the appeal.