Court File and Parties

COURT FILE NO.: 86/03 DATE: 2005-12-20 SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

RE: ADOLFO A. FLORA, Appellant - and - GENERAL MANAGER, ONTARIO HEALTH INSURANCE PLAN, Respondent

BEFORE: Mr. Justice Carnwath

COUNSEL: Mark J. Freiman & Jennifer A. McKendry, for the Appellant Shaun Nakatsuru & Bay Ryley, for the Respondent

HEARD at Toronto: December 9, 2005

ENDORSEMENT

CARNWATH J.:

[1] The appellant (“Mr. Flora”) applied for, but was denied, payment for life-saving out-of-country medical treatment received in England in March of 2000. The appellant sought a review of the respondent’s (“OHIP”) decision to refuse payment before the Health Services Appeal and Review Board (“the Board”). The majority of the Board dismissed the appeal because the treatment for Mr. Flora was not generally accepted in Ontario at the time of the procedure.

[2] Mr. Flora then appealed the decision of the Board to the Divisional Court. Briefly stated, the grounds for appeal were that the Board erred in its interpretation of s. 28.4(2) of Regulation 552, R.R.O. 1990, made under the Health Insurance Act, R.S.O. 1990, c. H. 6 (“the Regulation”).

[3] Following perfection of the appeal to the Divisional Court, the Supreme Court of Canada issued its judgment in Chaoulli v. Québec (Attorney General), [2005] S.C.C. 35. The Supreme Court found that Mr. Chaoulli’s Charter rights were violated by a law that prohibited the provision of private health insurance because delays in the publicly-funded system threatened the health of patients.

[4] Mr. Flora now seeks to amend his appeal to the Divisional Court to allege infringement of his right to life, pursuant to s. 7 of the Charter. In the alternative, Mr. Flora submits the Regulation does not comply with the Charter.

[5] OHIP opposes the amendments, submitting that Mr. Flora did not raise any s. 7 or other Charter arguments before the Board, thus presenting the constitutional issue for the first time on appeal. OHIP further submits the constitutional issue is not necessary for the resolution of the appeal. Finally, OHIP submits there are critical differences between the facts in Chaoulli and those in the case at bar such that Chaoulli does not assist Mr. Flora.

BACKGROUND

[6] Mr. Flora, now fifty-six years of age, was born on April 26, 1949. Until December 1999, he was a high school chemistry and biology teacher in Toronto.

[7] In 1973, Mr. Flora underwent surgery to remove a benign tumour from his oesophagus. Unfortunately, due to complications during the surgery, a blood transfusion was required. During a routine check-up in 1976, Mr. Flora was diagnosed with non-A, non-B Hepatitis (now known as Hepatitis C), which he contracted from the blood transfusion in 1973.

[8] From 1979 through November 1999, Mr. Flora was monitored regularly by liver specialists in Toronto. In late November 1999, he was diagnosed with liver cancer. After undergoing further diagnostic tests, Mr. Flora was told that the cancer was “multifocal”, meaning that it involved several lesions, though there is some considerable dispute in the evidence as to the precise size and number of lesions. Mr. Flora was also initially told that there was vascular invasion, although he was later told that the evidence of vascular invasion was unclear. Mr. Flora was told that he had approximately six to eight months to live.

[9] Mr. Flora was told by Ontario physicians that cadaveric liver transplantation was not available to him in Ontario. Dr. Florence Wong, the appellant’s physician and a liver specialist at the Toronto General Hospital, explored his treatment options with a number of other specialists.

[10] Dr. Wong also consulted with Dr. Leslie Lily, Medical Director of Liver Transplantation at the Toronto General Hospital about Mr. Flora’s treatment options. After reviewing Mr. Flora’s medical records, Dr. Lily wrote to Dr. Wong that although “there is no definitive proof that he does indeed have vascular invasion…the group as a whole felt that Mr. Flora does indeed exceed our criteria for liver transplantation…the simple matter is that we can not afford in our current environment of organ shortages to undertake patients that are at such high risk of a poor outcome”.

[11] Finally, Mr. Flora’s case was reviewed by Dr. William Wall of the London Health Sciences Centre in London, Ontario. In a letter dated February 29, 2000, Dr. Wall wrote that Mr. Flora “would not be accepted as a transplant candidate for a cadaveric organ in transplant programs”. Dr. Wall went on to write that “I find it difficult to justify the risks for the donor of a living-related liver transplant, but he knows that is his only possibility of getting a transplant”.

[12] After being denied medical care in Ontario, Mr. Flora sought assistance internationally. On February 8, 2000, Mr. Flora travelled to London, England where he met with Dr. Roger Williams at the Cromwell Hospital and underwent immediate chemoembolization to shrink the lesions. Mr. Flora was also accepted as a candidate for Living-Related Liver Transplant (“LRLT”) at that time. Mr. Flora’s brother agreed to act as the living-related organ donor.

[13] On February 22, 2000, Dr. Wong completed a “Prior Approval Application for Full Payment of Insured Out-of-Country Health Services” on behalf of Mr. Flora. Under the heading “Services not performed in Ontario”, Dr. Wong wrote that “Physicians in Ontario will not give Mr. Flora chemoembolization or living-related liver transplant”. When asked for her reasons for supporting the application, she wrote, “The patient is dying from a hepatoma. He needs the chemoembolization to shrink the tumour followed by a liver transplant”.

[14] On February 24, 2000, OHIP replied to Dr. Wong’s application. OHIP denied Mr. Flora’s request on the basis that chemoembolization was viewed as experimental, and that “full liver transplantation assessment and investigation is all available in Ontario in a timely fashion. Living related, as well as conventional liver transplantation is available in Ontario at major teaching medical centers”. The Board eventually rejected both of these assertions.

[15] On March 13, 2000, Mr. Flora returned to England with his brother in order to undergo the organ transplant. The surgery took place on March 26, 2000. The procedure was successful and Mr. Flora returned to Canada on May 21, 2000, to continue his convalescence.

[16] At the hearing before the Board, Mr. Flora called as witnesses the two medical professionals who treated him in England. Both expressed the view that he was a good candidate for adult to adult LRLT. OHIP called Dr. Wall, who testified that Mr. Flora was not an appropriate candidate for the procedure, which at the time he assessed Mr. Flora’s case had not yet been performed in Canada.

[17] The issue of Mr. Flora’s Charter rights was not raised before the Board. In November 2002, the Government of Ontario enacted the Government Efficiency Act, 2002, S.O. 2002, c. 18. This Act precludes the Board from considering the constitutional validity of a provision of an Act or a Regulation. Thus, if there was any doubt about the Board’s competence to consider the issue of constitutional validity before the enactment of the Government Efficiency Act, that doubt has been removed by legislative action. Indeed, the legislation applies retroactively and deems the Board never to have had the power to consider constitutional validity.

[18] Before the Board, the issues were:

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

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

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

[19] The majority of the Board found that although the identical procedure (i.e., LRLT) was not performed in Ontario at the relevant time, the equivalent treatment of cadaveric liver transplantation was. While the majority also concluded that Mr. Flora was in urgent need of medical attention at the time of surgery, and that failure to seek treatment would have resulted in death or medically significant irreversible tissue damage, it found that the first stage of the test had not been met.

[20] The Board found that at the time of Mr. Flora’s surgery, guidelines in Ontario for LRLT had not been solidified. Instead, Mr. Flora’s candidacy was evaluated based on the criteria used for cadaveric liver transplantation. The majority noted that “treatment guidelines outlining specific criteria for eligibility have been established by medical groups and hospital programs to assist with the rationing of the limited supply of organs in order to achieve the highest risk benefit ratio”.

[21] In its conclusion, the majority wrote that the evidence adduced by Mr. Flora as to the international guidelines for LRLT went to the issue of whether he was an acceptable candidate for out-of-country treatment. However, the majority emphasized that the issue for the Board was “whether the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances” [emphasis in original]. After acknowledging the expertise of the British medical professionals who testified, the majority noted that several Ontario doctors had concluded that Mr. Flora did not qualify for a cadaveric liver transplant. The majority emphasized again that “the test is whether the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances as the Appellant” [emphasis in original].

[22] The majority rejected the explanation provided by OHIP that “full liver transplantation assessment and investigation is all available in Ontario in a timely manner. Living-related, as well as conventional liver transplantation is all available in Ontario in a timely manner”. The majority wrote that contrary to the assertions of OHIP, it was “satisfied that long waiting lists, shortages of organs, and the resulting need to set standard selection criteria complicated the chances of a patient in the Appellant’s situation receiving a transplant in a timely manner”.

[23] On the question of when a treatment should be considered “generally accepted in Ontario” for a person in a particular medical situation, the majority wrote:

[G]iven the necessity of allocating scarce resources, physicians in Ontario have found it appropriate to set guidelines that endeavour to ensure that those patients with the greatest chance of recovery receive transplants before those at higher risk. This, the Board finds, is part of what is generally accepted as appropriate in Ontario. A patient whose conditions exceed these guidelines must, therefore, be considered to be in medical circumstances considered inappropriate for transplant.

[24] The dissenting member of the Board would have found that based on the criteria being used in Ontario at the time, Mr. Flora was an appropriate candidate for cadaveric liver transplantation. She wrote that this “is different from a particular institution deciding not to accept him at their program because of their assessment of him vis-à-vis their own program limitations, in this case cadaveric liver shortage”.

[25] The Board’s hearing was on March 5 and 6, 2001. Its reasons issued November 21, 2002. Chaoulli issued June 9, 2005.

ANALYSIS

[26] Courts have long been reluctant to permit new arguments on appeal. The two major reasons are: firstly, the lack of a sufficient record upon which to make the findings of fact necessary to rule on the new issue, and secondly, prejudice to the other side caused by lack of opportunity to respond and adduce evidence at the first hearing.

Brown v. Dean, [1910] A.C. 373 (H.L.)

Perka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232

[27] The issue was canvassed by L’Heureux-Dubé J. in her dissenting judgment in R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918. She formulated three prerequisites that must be satisfied in order to permit the raising of a new issue, including a Charter challenge, for the first time.

(1) There must be a sufficient evidentiary record to resolve the issue;

(2) The failure to raise the issue at trial can not have been due to a tactical decision;

(3) Refusal to allow the issue must not result in a miscarriage of justice.

[28] The majority in Brown did not quarrel with the prerequisites but, rather, differed in their application from the view taken by L’Heureux-Dubé J.

(1) The Sufficiency of the Evidentiary Record

[29] Courts have refused to allow constitutional issues to be raised for the first time on appeal where there is no factual foundation to support the Charter argument. This has led to a distinction between “adjudicative facts” and “legislative facts”. The distinction reflects the difference between a constitutional challenge based on the manner in which a particular government body allegedly violated a Charter right, as opposed to a challenge based on the purpose and background of legislation sought to be impugned.

[30] The Supreme Court of Canada has stated there are less stringent admissibility requirements for “legislative facts” than for “adjudicative facts”.

Danson v. Ontario (Attorney General), 1990 93 (SCC), [1990] 2 S.C.R. 1086 (para. 28)

[31] The results in a number of cases suggest that the sufficiency of the evidentiary record depends on the nature of the constitutional question raised.

McKay v. Manitoba, [1989] 2 S.C.R. 97

R. v. Viduluch (1989), 47 B.C.L.R. (2d) 391 (C.A.)

R. v. Weir (1999), 1999 ABCA 275, 181 D.L.R. (4th) 30 (Alta. C.A.)

[32] A new ground of appeal is more likely to be permitted where it raises an issue of law alone.

Brown, supra, (para. 19)

[33] In Weir, supra, (para. 19), the Alberta Court of Appeal is reported:

There is, I suggest, a qualitative difference between an argument based on the evidentiary context in which, say, a confession was elicited in a manner said to be contrary to the Charter, and an argument raised for the first time on appeal that alleges constitutional invalidity of an enactment where the evidentiary foundation would go not to the unfolding of the narrative but, rather, to Charter s. 1 considerations. Where, as here, the legislative underpinnings are under attack, the absence of an evidentiary record is not fatal.

[34] In the matter before me, it cannot be said it is completely devoid of “adjudicative facts”. Nevertheless, I find there to be a sufficient evidentiary base for the Charter argument to be made without significant prejudice to OHIP. Moreover, counsel for Mr. Flora has consented to OHIP leading whatever evidence the Divisional Court finds relevant, as that evidence relates to the Charter challenge, including s. 1 issues.

[35] Most significant are the amendments to the Act prohibiting the Board from considering constitutional matters when construing its own Act. The Legislature’s intention is clear – the government will be faced with this “prejudice” whenever a party wants to raise a constitutional challenge of the Board’s decision, since it is now the Divisional Court where such a challenge can first be raised. It hardly lies in the mouth of the government to complain about the argument being raised at this point in the appeal process when government action has required it to be raised at the Divisional Court level since November of 2002.

(2) The failure to raise the issue at the first hearing as a tactical decision

[36] OHIP argues that Mr. Flora was free to raise the constitutional issue before the Board. This submission ignores the state of the law as it existed at the time of the hearing. Without suggesting that Chaoulli represents a seismic shift in constitutional law, s. 7 of the Charter as it relates to public health care must now be viewed in a new light. I find the failure to raise s. 7 before the Board was not a tactical decision on behalf of Mr. Flora, but a realistic assessment of the available constitutional remedies at the time.

(3) A refusal to allow the matter to be argued may result in a miscarriage of justice

[37] If Mr. Flora is refused permission to amend his appeal, I see a certain miscarriage of justice and a possible one.

[38] It is certain he would be denied an opportunity open to everyone else similarly situated since November of 2002.

[39] If the Board was correct in its interpretation of the Regulation, it is at least possible that based on s. 7, OHIP should pay for out-of-province procedures that are recognized as necessary to prevent death. To refuse Mr. Flora the opportunity to make such an argument would, I find, possibly result in a miscarriage of justice.

[40] I find the interests of justice favour allowing Mr. Flora to amend his appeal. I therefore exercise my discretion and grant the amendment in the form he requests.

ORDER

[41] The appeal shall be amended in the form contained at Tab 1“A” of the appellant’s Motion Record dated September 20, 2005 (returnable October 13, 2005).

[42] The parties have thirty days to make brief written submissions as to costs.

CARNWATH J.

DATE: 2005-12-20