Court File and Parties

COURT FILE NO.: CV-15-539225 DATE: 2020-11-02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Debra Selkirk et al., Applicants

• and - Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long-Term Care et al., Respondents

BEFORE: F.L. Myers J.

COUNSEL: Padraic Ryan, for Her Majesty the Queen in Right of Ontario Debra Elizabeth Selkirk, for herself

READ: November 2, 2020

Endorsement

[1] The Applicants seek a declaration that a liver transplant waiting list rule adopted by Trillium Gift of Life Network pursuant to its delegated legislative authority as applied by a University Health Network hospital, is unconstitutional in its treatment of patients whose liver failure is caused by alcohol consumption.

[2] Her Majesty the Queen moves to dismiss the application against the Province, through the Minister, on the basis that the application is rightly brought against the delegates whose rules and conduct are in issue. The Province argues that no legislation and no act of the Minister is sought to be declared unconstitutional in this proceeding.

[3] The Applicants submit that the Minister bears collective responsibility with Trillium Gift of Life Network and University Health Network for the unlawful waiting list rule. They say that a review of the evidence at a hearing will show the depth of the Ministry's involvement in the creation and implementation of the rule.

[4] This motion represents the height of formalistic, technicality. Perhaps there is a practical reason why Her Majesty the Queen does not want to be a party to a case determining the constitutionality of a policy of a government run and controlled division of our government run and controlled health care system. The law provides the government an opportunity to participate in all constitutional challenges to delegated legislation. However, counsel has indicated that if the application is dismissed against it, the Province will not intervene in this proceeding despite its authority to do so.

[5] The Amended Notice of Application seeks declarations that the waiting list criterion that requires a six month wait for liver transplants for people whose liver disease is caused by alcoholism infringed Mark Selkirk’s rights and is invalid under the Charter of Rights and Freedoms.

[6] The relief sought by the Applicants in this legal proceeding is not about determining who bears responsibility for the death of Mark Selkirk or who was responsible for the adoption of the impugned waiting list rule. The Applicants are challenging the constitutionality of the rule.

[7] The Supreme Court of Canada has held that where the constitutionality of the content of delegated legislation is challenged, that is not the same thing as challenging the constitutionality of the legislation that granted the delegate its authority. Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), at para. 29. The latter affects the legal position of Her Majesty in Right of a province. The former does not.

[8] In this case, the Applicants challenge the constitutionality of a rule adopted by Trillium Gift of Life Network and applied by a University Health Network hospital. The Applicants are not challenging the legislation delegating authority to Trillium Gift of Life Network or hospitals to adopt and apply transplant rules respectively. There is nothing constitutionally suspect raised in this application about giving authority over transplant waiting lists to delegates including hospitals. The Applicants’ complaint is how those bodies exercised the authority that the Province gave them.

[9] Technically therefore, Her Majesty the Queen is not a proper party to this application. As a matter of law, no matter what the evidence shows about the involvement of the Minister or Ministry employees in the operations of Trillium Gift of Life Network or hospitals, the relief pleaded by the Applicants does not affect the legal interests of Her Majesty the Queen in Right of Ontario.

[10] I repeat however that this is a matter of legal formality and technicality. I say nothing about the ultimate legislative and regulatory authority and responsibility of the Minister of Health in respect of the health care system in Ontario. I am holding only that under the laws relating to civil procedure, if a person wants to seek a declaration of unconstitutionality of an rule made under a rule-making power delegated to an authority that has its own corporate personality, regardless of the degree of control over the authority exercised by government personnel, the application is to be brought and, if successful, the declaration is made against the rule-making authority rather than Her Majesty the Queen.

[11] The applicant is dismissed against Her Majesty the Queen in Right of Ontario as represented by the Minster of Health and Long-Term Care. The Minister rightly seeks no costs.

F.L. Myers J.

Date: November 2, 2020