Canadian Snowbirds Association Inc. et al. v. Attorney General of Ontario et al.

[Indexed as: Canadian Snowbirds Association Inc. v. Ontario (Attorney General)]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Sachs, Backhouse and Pattillo

JJ.

September 23, 2020

152 O.R. (3d) 738 | 2020 ONSC 5652

Case Summary

Administrative law — Judicial review — Regulations — Ontario enacting regulation discontinuing reimbursement of out-of-country medical expenses — Regulation clearly violated portability provision of Canada Health Act and was ultra vires the authority of the Lieutenant Governor in Council — Relevant part of impugned regulation quashed — Canada Health Act, R.S.C. 1985, c. C-6, s. 7 — Health Insurance Act, R.S.O. 1990, c. H.6, s. 45.

The corporate applicant was a national, not-for-profit advocacy organization dedicated to defending and improving the rights and privileges of travelling Canadians. The individual applicant was one of its members. In April 2019, the Ontario Ministry of Health posted a draft regulation affecting Reg. 552 under the Health Insurance Act, which had allowed for the reimbursement of out-of-country medical expenses by Ontario's Health Insurance Program ("OHIP"). The draft regulation discontinued the Out of Country Traveller's Program ("OOCTP"). In May 2019, a senior official at Health Canada wrote to the Ontario Ministry of Health, indicating concern that terminating the OOCTP would be inconsistent with the portability pillar of the Canada Health Act ("CHA"). The federal Minister of Health wrote a letter to the provincial Minister of Health expressing similar concerns. Ontario did not respond to the letters. Regulation 259, terminating the OOCTP, was approved in July 2019. A subsequent letter from Health Canada reiterating earlier concerns went unanswered. The applicants sought a declaration that Reg. 259 was ultra vires the Lieutenant Governor in Council and of no force or effect for inconsistency with ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, and an order of mandamus ordering the Minister of Health to amend the impugned regulation. [page739]

Held, the application should be allowed.

The part of Reg. 259 revoking the OOCTP was ultra vires the executive powers conferred by the Ontario Legislature. The respondents had argued that the application was premature and non-justiciable because no notice to engage in consultation had been issued pursuant to the CHA and the federal Minister of Health had taken no steps to refer the matter to the Governor in Council. That argument was disingenuous in that Ontario failed to respond to any of Canada's requests to discuss the matter, either before or after the impugned regulation was enacted. In effect, its response was to enact the regulation that clearly violated the portability criterion of the CHA. There were five pillars to the CHA and qualification for a full cash contribution from the federal government required satisfying all five, including portability. The remedy was to issue an order declaring that the part of Reg. 259 revoking the OOCTP was ultra vires the authority granted to the Lieutenant Governor in Council, and quashing that part of the regulation. A mandamus order was unnecessary.

The applicants' Charter arguments were found to have no merit. The fact that Reg. 259 cancelled a program that was previously funded did not constitute a deprivation within the meaning of s. 7. The s. 15 arguments alleged discrimination on the basis of residence and disability. Residence was not an analogous ground of discrimination to those enumerated in s. 15. Regarding disability, a non-profit corporation was not an individual for the purpose of s. 15, and the individual applicant could not assert the rights of third parties with disabilities that he himself did not possess.

Cameron v. Nova Scotia (Attorney General), [1999] N.S.J. No. 297, 1999 NSCA 14, 177 D.L.R. (4th) 611, 204 N.S.R. (2d) 1; Collett v. Ontario (Attorney General), [1995] O.J. No. 776, 124 D.L.R. (4th) 426, 81 O.A.C. 85, 1995 11063 (Div. Ct.); Lexogest Inc. v. Manitoba (Attorney-General), [1993] M.J. No. 54, 101 D.L.R. (4th) 523, 85 Man. R. (2d) 8, 16 Admin. L.R. (2d) 144, 1993 3365 (C.A.); Soth v. Ontario (Lieutenant Governor), [2012] O.J. No. 4384, 2012 ONSC 5172, 298 O.A.C. 100 (Div. Ct.), distd

Other cases referred to

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, [2011] S.C.J. No. 37, 2011 SCC 37, 239 C.R.R. (2d) 124, 418 N.R. 101, [2011] 3 C.N.L.R. 36, 334 D.L.R. (4th) 577, [2011] 12 W.W.R. 417, 505 A.R. 1, 49 Alta. L.R. (5th) 272; Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44, 244 C.R.R. (2d) 209, 310 B.C.A.C. 1, 421 N.R. 1, 336 D.L.R. (4th) 385, 272 C.C.C. (3d) 428, 96 W.C.B. (2d) 322, 86 C.R. (6th) 223, 22 B.C.L.R. (5th) 213, [2011] 12 W.W.R. 43; Canadian Doctors for Refugee Care v. Canada (Attorney General), [2014] F.C.J. No. 679, [2015] 2 F.C.R. 267, 2014 FC 651, 28 Imm. L.R. (4th) 1, 458 F.T.R. 1; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35, 254 D.L.R. (4th) 577, 335 N.R. 25, 130 C.R.R. (2d) 99, 53 C.H.R.R. D/1; Chaudhary v. Canada (Attorney General), [2010] O.J. No. 4751, 2010 ONSC 6092, 263 C.C.C. (3d) 537 (S.C.J.); Church of Atheism of Central Canada v. Canada (National Revenue), [2019] F.C.J. No. 1401, 2019 FCA 296, 2019 D.T.C. 5136, 440 D.L.R. (4th) 373, [2020] 6 C.T.C. 1; Flora v. Ontario Health Insurance Plan (2008), 91 O.R. (3d) 412, [2008] O.J. No. 2627, 2008 ONCA 538, 175 C.R.R. (2d) 19, 76 Admin. L.R. (4th) 132, 238 O.A.C. 319, 295 D.L.R. (4th) 309; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, 2002 SCC 84, 221 D.L.R. (4th) 257, 298 N.R. 1, 100 C.R.R. (2d) 1, 44 C.H.R.R. D/363; Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193; Irshad (Litigation Guardian of) v. Ontario [page740] (2001), 2001 24155 (ON CA), 55 O.R. (3d) 43, [2001] O.J. No. 648, 197 D.L.R. (4th) 103, 141 O.A.C. 239, 81 C.R.R. (2d) 77 (C.A.); Ontario (Attorney General) v. Mazurkewich, [2000] O.J. No. 4254, [2000] O.T.C. 795 (S.C.J.); Nevsun Resources Ltd. v. Araya, [2020] S.C.J. No. 5, 2020 SCC 5, [2020] 4 W.W.R. 1, 32 B.C.L.R. (6th) 1, 44 C.P.C. (8th) 225, 443 D.L.R. (4th) 183; R. v. S. (S.), 1990 65 (SCC), [1990] 2 S.C.R. 254, [1990] S.C.J. No. 66, 110 N.R. 321, 41 O.A.C. 81, 57 C.C.C. (3d) 115, 77 C.R. (3d) 273, 49 C.R.R. 79; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, [2002] S.C.J. No. 69, 2003 SCC 3, 221 D.L.R. (4th) 90, 299 N.R. 267, [2003] 4 W.W.R. 1, 173 Man. R. (2d) 1, 47 Admin. L.R. (3d) 205, 02 C.R.R. (2d) 345, 34 M.P.L.R. (3d) 163; R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, [1989] S.C.J. No. 47, 96 N.R. 115, 34 O.A.C. 115, 48 C.C.C. (3d) 8, 69 C.R. (3d) 97, 39 C.R.R. 306; Wynberg v. Ontario (2006), 2006 22919 (ON CA), 82 O.R. (3d) 561, [2006] O.J. No. 2732, 269 D.L.R. (4th) 435, 213 O.A.C. 48, 40 C.C.L.T. (3d) 176, 142 C.R.R. (2d) 311 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 7, 15, (1), (2), 24(1), 52

Canada Health Act, R.S.C. 1985, c. C-6, ss. 4 [as am.], 7, 11, (1), 14, (1), (2), (3), 15 [as am.]

Connecting Care Act, 2019, S.O. 2019, c. 5, Sch. 1 [as am.]

Controlled Drugs and Substances Act, S.C. 1996, c. 19

Health Insurance Act, R.S.O. 1990, c. H.6, s. 45 [as am.], (1)(h) [as am.], (3.3)

Rules and regulations referred to

O. Reg. 552 (under the Health Insurance Act, R.S.O. 1990, c. H.6)

O. Reg. 259/19 (under the Health Insurance Act, R.S.O. 1990, c. H.6)

APPLICATION for a declaration that a regulation was ultra vires.

Scott Fairley and Joan Kasozi, for applicants.

Hart Schwartz, Vanessa Glasser and Robert Ratcliffe, for respondents.

The judgment of the court was delivered by

SACHS J.: —

INTRODUCTION

[1] Regulation 552 under the Health Insurance Act, R.S.O. 1990, c. H.6 ("HIA") previously allowed for the reimbursement of out-of-country medical expenses by Ontario's Health Insurance Program ("OHIP"). On July 25, 2019, the Ontario Cabinet approved O. Reg. 259/19, which removed those provisions from O. Reg. 552, such that out-of-country medical expenses are no longer reimbursed by OHIP. The changes came into force on January 1, 2020.

[2] The applicant, the Canadian Snowbird Association ("CSA"), is a national, not-for-profit advocacy organization dedicated to defending and improving the rights and privileges of travelling Canadians. It has approximately 115,000 members, [page741] 56,000 of whom are Ontario residents. Its membership is largely composed of senior citizens, many of whom are on fixed or limited incomes. The applicant, Robert Bernard Slack, is a member and past president of CSA. He is 77 years old, resides in Ontario, but spends the winter months in Florida.

[3] In this application for judicial review, the applicants seek a declaration that O. Reg. 259 is (a) ultra vires the Lieutenant Governor in Council; and (b) of no force or effect for inconsistency with ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. The applicants also seek an order of mandamus, ordering the Minister of Health to amend the impugned regulation. Although the applicants challenged both O. Reg. 259 and O. Reg. 552, only a remedy with respect to O. Reg. 259 is necessary to dispose of this application.

[4] For the reasons that follow, I would allow the application on the basis that O. Reg. 259 is ultra vires the Lieutenant Governor in Council. I find that the applicants' Charter arguments have no merit.

BACKGROUND

Legislative Background

Canada Health Act, R.S.C. 1985, c. C-6 ("CHa")

Purpose of the CHA

[5] Section 4 of the CHA provides that its purpose "is to establish criteria and conditions in respect of insured health services and extended health care services provided under provincial law that must be met before a full cash contribution may be made".

The portability pillar

[6] Section 7 of the CHA specifies five criteria that a provincial health care plan must abide by in order to qualify for full cash contribution from the federal government as part of the Canada Health Transfer. These criteria have become known as the "five pillars" of the CHA. They include public administration, comprehensiveness, universality, portability and accessibility. It is the portability pillar that is at issue in this application.

[7] Section 11(1) of the CHA sets out what a provincial health care insurance plan must do in order to satisfy the portability pillar. The relevant portion of section 11(1) reads as follows:

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

. . . . . [page742]

(b) must provide for and be administered and operated so as to provide for the payment of amounts for the cost of insured health services provided to insured persons while temporarily absent from the province on the basis that

(ii) where the insured health services are provided out of Canada, payment is made on the basis of the amount that would have been paid by the province for similar services rendered in the province, with due regard, in the case of hospital services, to the size of the hospital, standards of service and other relevant factors . . .

[8] Thus, in order to satisfy the portability pillar, a provincial plan must provide payment for insured services that are delivered while an Ontario resident is temporarily outside of Canada at a rate that is similar to what would have been paid if the service had been provided in the province.

Default provisions

[9] Sections 14 and 15 of the CHA set out the process to be followed when a provincial health plan fails to satisfy one of the five pillars. The federal Minister of Health must send the provincial Minister of Health a notice by registered mail specifying their concern, seek additional information from the province through bilateral discussion, make a report to the province within 90 days after sending the notice of concern and, if requested by the province, meet within a reasonable time to discuss the report (s. 14(2)). Once this consultation has occurred, and if the federal Minister of Health is still of the opinion that the health insurance plan of the province fails to satisfy one of the five pillars and has not given an undertaking to remedy the default, the Minister "shall refer the matter to the Governor in Council" (s. 14(1)).

[10] The consultation process provided for in s. 14(2) is also regulated by a 2002 Dispute Avoidance and Resolution Process, which all provinces except Quebec have agreed to.

[11] Pursuant to s. 14(3) of the CHA the Minister "may act without consultation . . . if the Minister is of the opinion that a sufficient time has expired after reasonable efforts to achieve consultation and that consultation will not be achieved".

[12] Where a matter is referred to the Governor in Council by the Minister and the Governor in Council "is of the opinion" that the health care insurance plan of a province has ceased to satisfy one of the five pillars, the Governor in Council may by order direct that the cash contribution to that province for a fiscal year be either reduced or withheld (s. 15). [page743]

The HIA

[13] The HIA governs OHIP. Section 45 of the HIA gives the Lieutenant Governor in Council a long list of regulation-making powers, with an important exception:

(3.3) A regulation made under clause (1) (e) or (g) shall not include a provision that would disqualify the Province of Ontario, under the Canada Health Act, for contribution by the Government of Canada because the Plan would no longer satisfy the criteria [the five pillars] under that Act.

Factual Background

[14] Before this year, Ontarians who incurred medical expenses abroad had two options for seeking reimbursement from OHIP: (1) seek prior approval from OHIP's General Manager under the Out of Country Prior Approval Program; or (2) seek reimbursement after the fact from OHIP's Out of Country Traveller's Program ("OOCTP"). This application concerns Ontario's decision to remove the OOCTP.

[15] Over the past 30 years, the amounts payable by OHIP under the OOCTP have fluctuated. Prior to October 1, 1991, the reimbursement for out-of-country health services was the same as for health services provided in Ontario. Because of abuses, O. Reg. 552 was amended in 1992 to provide a cap on those services. The daily rate cap for out-patient services was set at $55, and the cap for in-patient services was set at $400 per day for the higher level of service or $200 per day for any other kind of care.

[16] On October 1, 1993, O. Reg. 552 was amended so that out-of-country services were only covered if the service related to an illness, disease, condition or injury that was acute and unexpected, arose outside of Canada and required immediate treatment. After this amendment, the only out-patient hospital service that was covered for a pre-existing condition was dialysis.

[17] On July 1, 1994, O. Reg. 552 was amended to lower the reimbursement rates for out-of-country services. The rate for in-patient services was set at a maximum of $100 per day, regardless of the level of service, and the rate for out-patient services lowered to a single fee of $50, with the exception of dialysis, which was reduced from $293 to $210.

[18] On September 1, 1995, O. Reg. 552 was amended to restore the previous rates for in-patient care to $400 (for higher levels of care). The out-patient rates were not changed.

[19] The rates did not change between September 1, 1995 and December 31, 2019, when the OOCTP ended. [page744]

[20] On July 25, 2019, the Ontario government approved a proposal to develop a new transfer payment program to be administered by the Ontario Renal Network (which is now part of Ontario Health), to provide some reimbursement to Ontario residents for costs of dialysis treatments while travelling outside of Canada. The Out-of-Country Hemodialysis Reimbursement Program began on January 1, 2020.

Events leading to this application

[21] On April 24, 2019, the Ontario Ministry of Health posted a draft regulation on the Ontario Regulation Registry. There was a six-day window given for public comments. The Ministry wrote to the applicant, the CSA, to advise them of the proposal on April 25, 2019. The CSA responded on April 29, 2019, indicating that travel medical insurance premiums would increase by 7.5 per cent and would affect Ontario travellers, including seniors, many of whom have fixed incomes.

[22] Following the consultation period, Ontario amended the proposal to extend the last day of the OOCTP to December 31, 2019. The government also agreed to provide funding for the Out-of-Country Hemodialysis Reimbursement Program.

[23] In May of 2019, a senior official at Health Canada wrote to the Ontario Ministry of Health, indicating concern that terminating the OOCTP would be inconsistent with the CHA. The federal Minister of Health wrote a letter to all of her provincial and territorial counterparts, and another letter specifically to the respondent Minister, expressing similar concerns. Ontario did not respond to any of these letters.

[24] On July 25, 2019, O. Reg. 259 was approved. It came into force on January 1, 2020. The OOCTP terminated. A third letter from Health Canada reiterating earlier concerns went unanswered.

Issues Raised on this Application

[25] The following issues are raised on this application.

Is Regulation 259 ultra vires the executive powers conferred by the Ontario Legislature under s. 45 of the HIA, which expressly prohibits the Lieutenant Governor in Council from enacting regulations that would disqualify Ontario from receiving contribution under the CHA because its plan would no longer satisfy the portability pillar? In this regard, the respondents submit that this application is non-justiciable and premature. The respondents rely on this court's previous decisions in [page745] Collett v. Ontario (Attorney General), [1995] O.J. No. 776, 1995 11063 (Div. Ct.) and Soth v. Ontario (Lieutenant Governor), [2012] O.J. No. 4384, 2012 ONSC 5172 (Div. Ct.). In those cases, the Divisional Court refused to decide whether prior payment schedules breached s. 45(3.3) of the HIA because no consultation had yet taken place between the federal and provincial governments, nor had any federal penalty been imposed. Accordingly, Ontario could not be said to have been "disqualified" for the purpose of s. 45(3.3).

Does O. Reg. 259 violate the applicants' rights to life, liberty and security of the person under s. 7 of the Charter? If so, can the impugned regulation be saved under s. 1 of the Charter? In this regard, the respondents raise a preliminary issue -- namely, they argue that the applicants have no standing to claim a remedy under s. 7 of the Charter.

Does O. Reg. 259 violate the applicants' right to equality under s. 15 of the Charter? If so, can the impugned regulation be saved under s. 1 of the Charter? The applicants allege three grounds of discrimination -- residency, disability and age. In addition to denying that a s. 15 Charter violation has occurred, the respondents assert that the applicants have no standing to claim a remedy under s. 15.

If O. Reg. 259 is found to be invalid, what remedy should the court award? The applicants seek an order by way of mandamus and the respondents assert that this is not an appropriate remedy.

Is the Application to Declare Regulation 259 Ultra Vires Premature and Non-justiciable?

The decision in Collett v. Ontario (Attorney General), 1995 11063 (Ont. Div. Ct.)

[26] Collett was a judicial review application brought by individuals who were Ontario residents but who resided for some period of time outside of Canada. The applicants asked the Divisional Court to declare that the regulation that was passed in July of 1994, which reduced the maximum in-patient service reimbursement from $400 per day to $100 per day, was ultra vires on the basis that it violated s. 45(1) (h) of the HIA. The [page746] wording of s. 45(1)(h) was essentially the same as the wording of s. 45(3.3) that is at issue on this application.

[27] The applicants in Collett argued that the July 1994 regulation clearly violated the portability criterion in s. 11 of the CHA as the maximum reimbursement amount of $100 provided for in that regulation was not on the "basis of the amount that would have been paid by the province for similar services rendered in the province" (Collett, para. 4).

[28] The majority of the Divisional Court (McMurtry C.J.O.C. and Hartt J.) refused to decide the issue of whether the impugned regulation satisfied the portability criterion under the CHA because "the consequence[s] of any failure to satisfy the criteria is a matter for consultation and ultimately within the discretion of the Governor-in-Council to decide whether to disqualify the Province of Ontario for contribution. In the event of such disqualification the issue could become justiciable but we must find that the application is premature at this time and must therefore be dismissed" (para. 10).

[29] In support of their decision, the majority found that the Governor in Council had a great deal of discretion in relation to its options if a provincial health insurance plan ceased to satisfy the five pillars. As put by the majority: "It is only at the final stage of decision-making by the federal government that it can be determined whether or not the prescription in s. 45(1)(h) of the [HIA] applies as to the disqualification of the province from federal funding. The federal and provincial legislation must therefore be considered an interlocking legislative scheme that requires intergovernmental consultation" (para. 7).

[30] The majority also focused on the words "would disqualify" and stated that these words denoted "an element of certainty which cannot be determined until the government consultation process runs its course" (para. 8).

[31] The dissent (O'Leary J.) agreed that the failure of a province to comply with the criteria in the CHA will not automatically result in the loss of a cash contribution. He continued [at para. 26]:

But to say that it cannot be determined whether Ontario has been disqualified until a cash contribution has been stopped by the Governor in Council, is to confuse disqualification with the imposition of the penalty that may follow as a result of that disqualification. The legislature in enacting s. 45(1)(h) of the [HIA] prohibited any payment schedule that would disqualify Ontario for a cash contribution because it failed to meet the federal criteria. The legislature did not concern itself with or make any mention of the penalty that might follow such disqualification. Very simply, the legislature provided that if a contemplated payment schedule would not satisfy the federal criteria, then such schedule was prohibited. [page747]

[32] In support of his conclusion, O'Leary J. referred to s. s. 7 of the CHA, which sets out the criteria that a provincial health insurance plan must satisfy in order to "qualify for a full cash contribution" (emphasis added). According to the dissent, the impugned regulation failed to satisfy one of those criteria (the portability criterion) and therefore, under s. 7, the Ontario plan would no longer "qualify" for a full cash contribution. Further, the wording of s. 45(1)(h) directs itself to limiting the Lieutenant Governor in Council from making any regulation that would disqualify Ontario from receiving a full cash contribution. Nowhere does it speak to the need to wait until the Governor in Council actually makes an order in relation to that disqualification. As put by the dissent [at para. 32]:

The legislature in enacting s. 45(1)(h) did not concern itself with when and in what circumstances the federal Minister of Health and the Governor in Council might enforce the disqualification but only in prohibiting what would disqualify.

[33] The dissent also found that the Ontario government's argument that s. 45(1)(h) only prohibits a regulation that someday the Governor in Council might find objectionable as failing to meet the portability criterion and, as a result, stop or reduce a cash contribution was a cynical one that gave no meaning to the last four lines of s. 45(1)(h). In effect, it was an argument that the legislature's intent in passing s. 45(1)(h) was to allow Cabinet to pass a regulation that on its face runs contrary to the qualifying criteria for cash contributions, but that the regulation only becomes invalid if the Cabinet "gets caught" and a penalty is exacted. Further, if it is only the Governor in Council that can stop a cash contribution, then what is the purpose of the last four lines of s. 45(1)(h)? These points are made, in paras. 33 to 36 of Collett:

In my view, it is not tenable to argue, as did the Attorney General, that what the legislature prohibited in s. 45(1) (h) was the making of a regulation that some day the Governor in Council finds objectionable as failing to meet the criteria of the federal Act and on the basis of which he stops a cash contribution. Such an argument is tantamount to saying the legislature did not prohibit the passing of regulations that on their face disqualify Ontario from contribution, that the legislature just prohibited those regulations on which Ontario eventually gets caught. Such cynical purpose cannot be attributed to the legislature. Besides such a limited prohibition can have no possible purpose or use. A prohibition against making only such regulations that in fact result in the stopping of a cash contribution can accomplish nothing. The legislature places no limit on the regulation-making power of the Cabinet by saying "do not get caught"; for neither legislature nor Cabinet will know whether such a limited prohibition has been violated until long after the regulation has been passed.

The last four lines of s. 45(1)(h) have no meaning if one accepts the argument of the Attorney General which is essentially this: No schedule of payments of [page748] and by itself will work a stoppage of contribution. It is the Governor in Council who must stop contributions. Accordingly, even if O. Reg. 489/94 on its face fails to meet the criteria in the federal Act as to portability, it does not by itself stop a cash contribution, [a]nd so is not prohibited by s. 45(1)(h).

If that argument is accepted, then the last four lines of s. 45(1)(h) have no meaning for no regulation of and by itself will stop contribution . . .

Section 45(1)(h) should be given the meaning that the words used plainly bear, namely, that the Lieutenant Governor in Council is not to make regulations "that would disqualify . . . Ontario . . . for contribution . . . because the [Ontario] Plan would no longer satisfy the criteria under [the federal] Act."

[34] O'Leary J. accepted that the $100 maximum provided for in the impugned regulation before him clearly violated the portability criterion as the average cost per day per patient in a Canadian hospital was over $500 at that time (the evidence before us is that it is now considerably more). Therefore, O'Leary J. expressed his view that the appropriate remedy to issue was a declaration that the impugned regulation was ultra vires.

Other jurisprudence

[35] In Soth v. Ontario (Lieutenant Governor), supra, an oral endorsement from the Divisional Court that was released on September 13, 2012, this court heard another challenge to O. Reg. 552, also brought on the basis that it was ultra vires because it violated the portability criterion in the CHA. By that time s. 45(1) (h) had become s. 45(3.3).

[36] The Attorney General relied on Collett to argue that the dispute was not justiciable. The court agreed and dismissed the application. The relevant portion of their decision reads as follows:

There is no significant difference between the wording of s. 45(3.3) of the Health Insurance Act and the limiting words in s. 45(1)(h) of the former Ontario Health Insurance Act which was the subject of judicial review by this court in [Collett].

We agree with the analysis and conclusion of the majority in that case. Because the consequence of any failure to satisfy the criteria under the Canada Health Act becomes a matter of intergovernmental consultation and ultimately is a decision within the discretion of the Governor in Council, the issue is not now justiciable, and the Applicant's challenge to the vires of the regulation is premature.

[37] We were also referred to several other decisions from courts (including appellate courts) in other jurisdictions dealing with challenges to provincial health legislation on the basis that their legislation violated one of the five pillars or criteria set out in the CHA (see, for example, Lexogest Inc. v. Manitoba (Attorney-General), [1993] M.J. No. 54, 1993 3365 (C.A.) and Cameron v. Nova Scotia (Attorney General), 1999 NSCA 14, [1999] N.S.J. No. 297, [page749] 1999 NSCA 14). All of these challenges were dismissed as non-justiciable on the basis that under the scheme of the federal Act the first step is a consultative one. It is only if these consultations break down that the federal Cabinet may, but does not have to, reduce the cash contribution. The consequences of non-compliance are political and policy oriented. However, counsel for the Attorney General conceded in oral argument that in none of these cases was the court faced with a section in the relevant provincial legislation that was similar to the one at issue in this case, namely s. 45(3.3).

[38] Therefore, I find that the most relevant jurisprudence are this court's decisions in Collett and Soth.

Features that distinguish this case from Collett and Soth

[39] There are two features that distinguish this case from Collett and Soth. First, by totally eliminating the out-of-country reimbursement feature (unless pre-approval has been obtained) the impugned regulation clearly violates the portability criterion. This is unlike in Collett where the majority noted, at para. 9, that "[t]he Attorney General further submits that in any event the criteria laid down in the Canada Health Act are not being breached in that that legislation provides a great deal of flexibility with respect to the basis on which payments may be made to in- or-out-of-province insured services". In this case, the Attorney General is not and could not advance that argument.

[40] The second distinguishing feature concerns the steps that the federal Government has taken in relation to the impugned regulation.

[41] On May 2, 2019, the Director of the Health Services Branch at OHIP received a letter from the Executive Director of the CHA Division at Health Canada. This was before the passage of the impugned regulation, but after the public consultation process had ended. That letter stated:

As Executive Director of the Canada Health Act Division at Health Canada, one of my responsibilities is to ensure that provincial and territorial health care insurance plans operate in a manner that is consistent with the requirements of the Canada Health Act.

Under the portability criterion of the Canada Health Act, provinces and territories are required to extend medically necessary hospital and physician coverage to their eligible residents during temporary absences from the province, territory or country. The allows individuals to travel or be absent from their home province or territory, within limits prescribed by the province or territory, and yet retain some health care insurance coverage.

I am concerned that by eliminating public health care insurance coverage for medically necessary hospital and physician services obtained during [page750] temporary absences from the country, Ontario's planned approach would not be consistent with the portability criterion.

[42] The letter ended with a request for "a response to my concerns" by May 17, 2019. There was no response.

[43] On July 24, 2019, the Federal Minister of Health wrote to the Provincial Minister of Health. In that letter, she expressed her concern about Ontario's proposal to end the OOCTP as follows:

While I recognize that there are various approaches to administering health care coverage for insured residents when they are temporarily absent from Canada, I am concerned about Ontario's proposal to end its Out-of-Country Travellers Program. This would make Ontario the first jurisdiction to provide no coverage for emergency hospital and physician services received out-of-country, an action which would be inconsistent with the portability criterion of the Canada Health Act.

The intent of the portability criterion of the Canada Health Act is to ensure that Canadians have continuing coverage under their provincial or territorial health care plan when they are temporarily absent from their province or territory of residence. This assures Canadians that if they leave their province for a few hours, days or weeks, they will still have some level of publicly funded health care insurance. This includes thousands of Canadians who cross the border into the United States on a daily basis for work, leisure or to visit friends and relatives.

Ontario's proposed approach will mean that Ontario residents will have to cover the costs of care out of pocket, should they require medical attention while traveling. This will most certainly be the case for residents who are unable to afford travel medical insurance or those who are not eligible for insurance coverage at any cost due to age or chronic and pre-existing conditions. Additionally, the need to purchase travel medical insurance will negatively affect Ontario residents traveling to countries other than the United States where the province's current reimbursement rates are adequate to cover a significant part, if not all, of the cost of health care services. If all publicly financed reimbursement for out-of-country physician and hospital services is eliminated, private health insurance premiums for travellers will inevitably rise for all Ontario residents. Even modest increases could pose a hardship for some individuals.

[44] The letter ends with an invitation to discuss the matter further. Again, Ontario did not respond.

[45] On August 16, 2019, the Executive Director of the CHA Division at Health Canada wrote to the Director of the Health Services Branch at OHIP. In that letter, she referred to the Federal Minister of Health's letter to the Provincial Minister of Health, reiterating concern about the elimination of the OOCTP. She further sought clarification regarding the proposed funding program for out-of-country dialysis services for Ontario residents. Again, Ontario made no response.

[46] In the 2018-2019 CHA Annual Report tabled in Parliament on February 24, 2020, the following statement appears: [page751]

OUT-OF-COUNTRY PORTABILITY

In April 2019, Ontario announced that it would end its program covering emergency hospital and physician services received by Ontario residents while outside Canada. The province officially eliminated this coverage on January 1, 2020. This is a direct contravention of the Canada Health Act's requirement that provincial and territorial health care insurance plans provide coverage to residents while outside the country. While Health Canada has long been concerned by the coverage levels in some provinces -- only Prince Edward Island and the territories appear to be meeting the requirement -- Ontario is the first province to eliminate coverage altogether.

In July 2019, the federal Minister of Health wrote to her counterparts in all provinces and territories to remind them of their obligations under the Act in this regard.

Analysis

[47] The applicants argue that these two features serve to distinguish this case from Collett and Soth. First, there is no doubt that Ontario has violated the portability criterion and second, Ontario has shown no willingness to engage in consultation, thereby undermining one of the other main features of the CHA and allowing the federal Minister of Health to invoke s. 14(3) of the CHA and refer the matter to Cabinet without engaging in any further consultation.

[48] The respondents reply by arguing that the principles articulated by the majority in Collett still apply -- until the Governor in Council takes action the impugned regulation is not ultra vires. A referral to Cabinet seeking an order reducing Ontario's cash contributions cannot be made without first engaging in consultation and the first step in such a consultation is the issuance of a notice pursuant to s. 14(2) of the CHA. No such notice has been issued and the federal Minister of Health has taken no steps to refer the matter to the Governor in Council.

[49] With respect to Ontario's position that no action can be taken without consultation, I find this argument somewhat disingenuous. While Ontario may be correct that no formal notice under s. 14(2) has been given, the fact remains that it failed to respond to any of Canada's requests to discuss the matter, either before or after the impugned regulation was enacted. In effect, its response was to enact the regulation that clearly violated the portability criterion of the CHA. This is very different from the situation that faced the court in Collett and Soth where there was no evidence that Ontario was unwilling to engage in consultation.

[50] It also appears that the majority in Collett accepted that there was an argument that the regulation they were dealing with could be found not to be a violation of the portability criterion. As the Federal Minister of Health indicated to the [page752] Provincial Minister of Health in her letter of July 24, 2019, the federal government appears to recognize that there are various ways that provinces could choose to administer out-of-country health coverage. Whether the criteria have been violated and why could be a matter for political consultation and negotiation. However, in this case, there is no issue. Out-of-country health coverage has been eliminated (unless it is pre-approved or related to kidney dialysis). The Ontario Cabinet has enacted a regulation that clearly violates the portability criterion. Unlike in Collett or Soth, there is no room for negotiation or argument on this issue. The only question is whether the federal government will act to penalize Ontario for its actions.

[51] Section 45(3.3) of the HIA reads:

A regulation made under clause (1) (e) or (g) shall not include a provision that would disqualify the Province of Ontario, under the [CHA], for contribution by the Government of Canada because the Plan would no longer satisfy the criteria [the five pillars] under that Act.

[52] The question then becomes what would disqualify Ontario for contribution by the Government of Canada. As O'Leary J. explained in his dissent in Collett, that question is answered by s. 7 of the CHA that reads:

7 In order that a province may qualify for a full cash contribution . . ., the health care insurance plan of the province must, throughout the fiscal year, satisfy the criteria described in sections 8 to 12 respecting the following matters:

(a) public administration;

(b) comprehensiveness;

(c) universality;

(d) portability; and

(e) accessibility.

(Emphasis added)

[53] Thus, qualification for a full cash contribution is dependent on satisfying the five pillars, including portability. The language in s. 7 is mandatory -- to qualify a plan must satisfy all five criteria. Thus, when the Ontario Cabinet passed the impugned regulation, which clearly did not satisfy the portability criteria, it passed a regulation that would disqualify it from receiving a full cash contribution. It is then up to the federal Minister of Health to take the steps necessary to refer the matter to the Governor in Council, who has considerable discretion as to whether to issue an order that affects the defaulting province's cash contributions. The CHA contemplates the possibility that a province may not qualify for a full cash contribution, but may [page753] still continue to receive a full cash contribution. This is because, as explained by the dissent in Collett, there is a distinction between qualification and penalty.

[54] The language of s. 45(3.3) is concerned with whether a regulation affects qualification for the full cash contribution, not with the penalty that the Governor in Council may impose as a result of that disqualification.

Conclusion

[55] There is no issue that the impugned regulation fails to satisfy one of the mandatory criteria under the CHA. Therefore, pursuant to s. 7 of the CHA, Ontario would be disqualified from receiving a full cash contribution from the federal government. Section 45(3.3) of the HIA prohibits Cabinet from passing a regulation that has this effect. Therefore, I find that the part of O. Reg. 259 revoking the OOCTP is ultra vires the executive powers conferred by the Ontario Legislature under s. 45 of the HIA.

Does O. Reg. 259 Violate the Applicants' Rights to Life, Liberty and Security of the Person as Guaranteed by [Section 7](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) 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)?

[56] In the event my conclusion on the ultra vires argument is found to be wrong, I will go on to deal with the applicants' Charter submissions.

[57] Section 7 of the Charter provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".

[58] The applicants state that denying health coverage when an individual is temporarily outside of Canada is a threat to the physical security and life of that individual. According to the applicants, CSA members, who have an average age of 67, are at an increased risk of personal injury or becoming ill due to the hazards posed by the cold, ice and snow that are the features of a Canadian winter. Thus, for them, leaving Canada to reside in a warmer climate is not a "choice", but a necessary precaution for preserving their health and well-being. The applicant, Mr. Slack, travels to Florida to avoid the hazards associated with the Canadian winter and to alleviate the symptoms of his medical condition.

[59] In support of their s. 7 argument the applicants rely on the Supreme Court of Canada decision in Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35. In Chaoulli, the Supreme Court dealt with a challenge to the provisions of the legislation governing Quebec's health care [page754] system that prohibited Quebeckers from taking out insurance or obtaining in the private sector services that were covered under Quebec's public health care plan. In that case the majority of the court accepted that the services at issue were, in practice, not available to many Quebeckers via the public system because of the lengthy waitlists to obtain those services. The majority found the prohibition at issue constituted an infringement of the right to life and security of the person, which could not be justified.

[60] The applicants also rely on Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44. PHS involved the operation of a safe injection site in Vancouver. To operate such a site involved obtaining an exemption from the prohibitions of possession and trafficking set out in the Controlled Drugs and Substances Act, S.C. 1996, c. 19. In 2003, the Minister of Health granted a conditional exemption and in 2008 he decided to deny the application for a new exemption. The Supreme Court found that the Minister's decision not to grant an exemption contravened the applicants' s. 7 rights and found that, in the special circumstances of that case, an order in the nature of mandamus was required directing the Minister to grant the exemption at issue.

[61] The respondents make a number of arguments in response to the applicants' s. 7 claims, including asserting a lack of standing. However, it is not necessary to deal with all of those arguments, given the jurisprudence that makes it clear that s. 7 does not create a positive obligation on the government to provide health care, including out-of-country health care.

[62] In Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, 2002 SCC 84, the Supreme Court dealt with a challenge to the Quebec social assistance scheme. The scheme set the base amount of welfare payable to people under 30 at approximately one-third the base amount payable to people who were 30 or over. The challenge was based on both ss. 7 and 15(1) of the Charter. The then Chief Justice wrote the majority decision and found as follows in relation to the s. 7 claim [at para. 81]:

Even if s. 7 could be read to encompass economic rights, a further hurdle emerges. Section 7 speaks of the right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice. Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these. Such a deprivation does not exist in the case at bar.

(Emphasis in original)

[63] The reasoning in Gosselin applies to the case at bar. By eliminating the right to out-of-country insurance, Ontario is not [page755] acting to deprive anyone of their life or security of the person. They still have the right to take steps to protect those rights, including paying for medical services abroad either directly or through private insurance. This is in contrast to the situation in Chaoulli, where the government's actions actually prohibited or deprived Quebeckers from taking the necessary steps through privately paid-for means to alleviate their medical conditions when the public system was failing to do so. This is also in contrast to PHS, where the effect of the government's actions was to deprive people of their right to access a safe injection site. This distinction is made clear by the Ontario Court of Appeal in Wynberg v. Ontario (2006), 2006 22919 (ON CA), 82 O.R. (3d) 561, [2006] O.J. No. 2732 (C.A.), at paras. 220-223. Wynberg involved a challenge to Ontario's program for access to treatment ("IEIP") for children with autism.

However, to date, s. 7 has been interpreted only as restricting the state's ability to deprive individuals of life, liberty or security of the person. In this case, the appellant has chosen to provide the IEIP to children up to the age of six. We have concluded that this choice, standing alone, does not create a constitutional obligation on the appellant to provide the same or similar programming on a more widespread basis. Viewed in this context, the appellant's actions in failing to provide intensive behavioural intervention consistent with the IEIP Guidelines to school-age children do not amount to depriving the respondents of a constitutionally protected right and therefore do not contravene s. 7 as it is now understood.

Chaoulli, supra, involved a challenge to the provisions of a Québec statute that prohibited residents from making private health insurance contracts. The appellants in Chaoulli did not seek an order requiring the government to fund their private health care or to spend more money on health care, or an order that waiting times for treatment be reduced; on the contrary, they sought the right to spend their own money to obtain insurance to pay for private health care services.

No comparable issue arises in this case, as there is no law restricting the respondents' ability to spend their own moneyfor intensive behavioural intervention services consistent with the IEIP Guidelines.

(Paras. 220, 222-223; emphasis added)

[64] In reaching its conclusion the court accepted that many, if not most parents of autistic children would not be able to fund the services at issue on their own (Wynberg, para. 231).

[65] The necessity of a "deprivation" was reiterated by the Court of Appeal in Flora v. Ontario Health Insurance Plan (2008), 91 O.R. (3d) 412, [2008] O.J. No. 2627, 2008 ONCA 538. Flora also dealt with a s. 7 challenge to Ontario's out-of-country reimbursement program for medical services provided abroad. [page756] In that case, the appellant was diagnosed with liver cancer and was told that he was not eligible for a liver transplant in Ontario. He went to England where they successfully performed the transplant and saved his life. He sought reimbursement from Ontario for the cost of that treatment, which was about $450,000. His claim was denied and the Court of Appeal sustained that denial. At para. 101, the court stated:

These cases are clearly distinguishable from the case at bar. In contrast to the legislative provisions at issue in Chaoulli, Morgentaler and Rodriguez, s. 28.4(2) of the Regulation does not prohibit or impede anyone from seeking medical treatment. Section 28.4(2) neither prescribes nor limits the type of medical services available to Ontarians. Nor does it represent governmental interference with an existing right or other coercive state action. Quite the opposite. Section 28.4(2) provides a defined benefit for out-of-country medical treatment that is not otherwise available to Ontarians -- the right to obtain public funding for certain specific out- of-country medical treatments. By not providing funding for all out- of-country medical treatments, it does not deprive an individual of the rights protected by s. 7 of the Charter.

[66] In Canadian Doctors for Refugee Care v. Canada (Attorney General), [2014] F.C.J. No. 679, [2015] 2 F.C.R. 267, 2014 FC 651, the Federal Court dealt with a s. 7 challenge to the cancellation by the federal government of a program providing health care coverage to refugee claimants in Canada. For many years, Canada had provided such health care coverage. The applicants in that case argued that s. 7 required the continuation of the program. The court concluded that s. 7 does "not include the positive right to state funding for health care" (para. 571). This conclusion was reached in spite of the court's recognition that the applicants could not afford to pay for the benefits. Thus, in the case at bar, the fact that O. Reg. 259 cancelled a program that it had previously funded does not constitute a "deprivation" within the meaning of s. 7.

[67] For these reasons, I find that the impugned regulation does not violate the applicants' s. 7 rights.

Does O. Reg. 259 Violate the Applicants' Right to Equality Under 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)?

[68] Section 15(1) of the Charter provides that "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".

[69] The applicants assert that O. Reg. 259, the effect of which was to eliminate the OOCTP, creates a distinction between senior [page757] Ontario residents who live in Ontario full-time and those who travel to another jurisdiction during the winter months. They allege that this is discrimination based on residence.

[70] They also allege discrimination based on disability. In particular, they assert that the coverage given to kidney dialysis patients should be extended to other Ontario residents with chronic illnesses who have medical service requirements while travelling abroad.

[71] During oral argument the applicants also maintained that they were asserting discrimination based on age, although this argument was not advanced in their Notice of Application (which only alleged discrimination based on residence) or in their factum.

[72] Again, the respondents have several responses to the applicants' s. 15 claims, including an argument that the applicants have no standing to assert such a claim. I will only focus on those aspects of the respondents' argument that I find are necessary to dispose of the applicants' s. 15 claims.

[73] Canadian courts have consistently held that residence is not an analogous ground of discrimination to those enumerated in s. 15(1) of the Charter (see R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, [1989] S.C.J. No. 47; R. v. S. (S.), 1990 65 (SCC), [1990] 2 S.C.R. 254, [1990] S.C.J. No. 66; Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, [2002] S.C.J. No. 69, 2003 SCC 3). In the health care context, the Ontario Court of Appeal found that a distinction drawn between permanent and non-permanent residents for the purposes of OHIP eligibility was "not a distinction made on a ground that is analogous to the enumerated grounds in s. 15(1)" since a person's status as a "non-permanent resident for the purpose of OHIP eligibility is not immutable" (Irshad (Litigation Guardian of) v. Ontario (2001), 2001 24155 (ON CA), 55 O.R. (3d) 43, [2001] O.J. No. 648 (C.A.), at paras. 140 and 136). As put at para. 78 of the respondents' factum:

The location where health services are received is not a "personal characteristic" central to personal identity. It is an inherently mutable status that changes as a person travels or moves through the world. The group of persons in a given place at a given time is transient and heterogeneous, generally composed of persons from all different backgrounds and cross-sections of society. It can hardly be said to constitute a "discrete and insular minority" analogous to the vulnerable minorities enumerated in section 15(1).

[74] With respect to disability, the applicants' argument is based on the fact that the government has drawn a distinction between people travelling outside of Canada who need kidney dialysis treatment and those who may be suffering from other [page758] chronic conditions that require medical treatment while they are out of the country.

[75] In making this argument the applicants are not seeking to strike down the kidney dialysis program, which was set up pursuant to the government's authority under the Connecting Care Act, 2019, S.O. 2019, c. 5, Sch. 1, and is administered by the Ontario Renal Network. Rather, they are seeking to have the program extended to other people with chronic diseases. Thus, they are not seeking a remedy under s. 52 of the Charter to have the program declared to be "of no force and effect"; they are seeking a remedy under s. 24(1) of the Charter, which grants a right to apply for a remedy to a court of competent jurisdiction to "[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied". This distinction is an important one when considering whether the applicants have standing to pursue their s. 15(1) argument on the basis of disability.

[76] The CSA is a non-profit corporation. As noted by the Federal Court of Appeal in Church of Atheism of Central Canada v. Canada (National Revenue), [2019] F.C.J. No. 1401, 2019 FCA 296, at para. 13"with respect to section 15 of the Charter, the courts have recognized that not-for-profit corporations are not individuals for its purposes". The CSA asserts public interest standing. In Chaudhary v. Canada (Attorney General), [2010] O.J. No. 4751, 2010 ONSC 6092 (S.C.J.), Belobaba J. considered the question of whether public interest standing is available under s. 24(1) and states the following [at paras. 19-20]:

Ms. Chaudhary is not challenging the validity of a government law or regulation or a policy or directive enacted thereunder. Her application is not based on the supremacy clause set out in s. 52 of the Charter. Rather, the application is being brought under Rule 14.05 (3)(g.1) which allows " a remedy under the Canadian Charter of Rights and Freedoms." Mr. Young agrees that the applicable remedy provision in the Charter is s. 24(1).

However, s. 24(1) provides a very narrow entry-way for litigants. Standing to apply for a remedy under s. 24(1) is limited to someone whose Charter rights "have been infringed or denied." The standing requirements under s. 24(1) are stricter than those that apply to the challenge of legislation under s. 52(1). The litigant must show that his or her rights have been infringed or denied. Put simply, the first litigant through the s. 24(1) portal cannot be a public interest litigant.

[77] I agree.

[78] Mr. Slack cannot assert the rights of third parties with disabilities that he himself does not possess. The applicants' reply affidavit of Dr. MacMillan listed five medical conditions to compare to kidney failure. Mr. Slack does not claim to have any of these conditions. Further, no evidence has been led that the condition he does have, hereditary hemochromatosis, has any [page759] similarities to kidney failure or that there is a need for regular treatment, if any, akin to life-saving kidney dialysis.

[79] Finally, the applicants' s. 15(1) challenge fails on the basis that the dialysis program is saved by s. 15(2). Under s. 15(2), governments are permitted to improve the situation of discrete or particular sub-classes of disadvantaged groups. To be saved by s. 15(2) "the government must show that the program is a genuinely ameliorative program directed at improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality. There must be a correlation between the program and the disadvantage suffered by the target group" (Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, [2011] S.C.J. No. 37, 2011 SCC 37, at para. 44, citations omitted).

[80] Dialysis patients have distinct needs, as they require treatment several times per week every week without exception, usually in a health facility under medical supervision, and will die quickly without it. The program targets and seeks to ameliorate the particular disadvantage experienced by dialysis patients. In oral argument in reply, the applicants made it clear that they were not seeking to challenge the fact that the out-of-country dialysis program met the test for s. 15(2).

[81] With respect to age, it is not sufficient to simply advance a claim under s. 15(1) in oral argument without proper notice or without a proper evidentiary record. In this case, as noted, discrimination on the basis of age was not asserted in the applicants' pleadings nor in its factum. It was also not mentioned in the Notice of Constitutional Question that they served. In terms of evidence, while there was evidence concerning the average age of the members of the CSA (67), there was no evidence beyond that.

[82] For these reasons, I find that the applicants' claim based on s. 15 has no merit.

REMEDY

[83] Mandamus is an extraordinary remedy that is discretionary and is only to be utilized in situations that are exceptional (Ontario (Attorney General) v. Mazurkewich, [2000] O.J. No. 4254, [2000] O.T.C. 795 (S.C.J.), at para. 49). In situations where a piece of legislation, or a regulation is outside the bounds of authority provided for by statute, the general practice of the courts is to invalidate the offending subordinate legislation through certiorari or a declaration (Nevsun Resources Ltd. v. Araya, [2020] S.C.J. No. 5, 2020 SCC 5, at para. 169, Brown and Rowe JJ. dissenting in part, but not on this point). [page760]

[84] In this case if O. Reg. 259 is quashed, O. Reg. 552 would stand as it was before. As a result, a mandamus order is unnecessary.

CONCLUSION

[85] For these reasons, the application is granted and an order will issue declaring that the part of O. Reg. 259 revoking the OOCTP is ultra vires the authority granted to the Lieutenant Governor in Council and an order will issue quashing that part of O. Reg. 259. The parties are to provide written submissions on the question of costs. The applicants are to e-mail their submissions within ten days of the release of these reasons and the respondents shall have ten days after receipt of the applicants' submissions to e-mail their response.

Application allowed.

End of Document