COURT FILE NO.: CV-15-539225
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Debra Selkirk and the Estate of Mark Selkirk
Applicants
– and –
HMQRO as represented by the Ministry of Health and Long-Term Care, Trillium Gift of Life Network and University Health Network
Respondents
Debra Selkirk, in person
Ewa Krajewska, Logan Crowell and Heather Webster, for the Respondents Trillium Gift of Life Network and University Health Network
HEARD: February 23 and 24, 2021
J.T. Akbarali J.:
Overview
[1] In November 2010, 52-year-old Mark Selkirk was diagnosed with acute alcoholic hepatitis. Without a liver transplant, his risk of death was 80-90%. However, he was ineligible to be listed for a liver transplant because the eligibility criteria at that time (the “2010 Criteria”) required that patients with alcohol-related liver disease (“ALD”) be abstinent from alcohol for six months before they could be considered for a transplant (the “six-month rule”). Mr. Selkirk had been sober for three weeks.
[2] Tragically, Mr. Selkirk died later that month. His widow, Debra Selkirk, brings this application seeking a declaration that his rights under ss. 7, 12, and 15 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter of Rights and Freedoms” or the “Charter”) were violated, and that the violation caused his death. She seeks a declaration that the six-month wait period that was in effect for patients with ALD is unconstitutional.
[3] Since Mr. Selkirk’s death, the listing criteria for a liver transplant have changed, first through a pilot program, and now through permanent modifications to the criteria. In Ms. Selkirk’s view, the changes do not go far enough. She seeks a declaration that the current referral and listing criteria for patients with ALD to be listed for a liver transplant (the “Criteria”) are unconstitutional. Moreover, she seeks a declaration that the criteria for participation in the living donor liver transplant program (the “Living Donor Criteria”), which mirror the Criteria, are unconstitutional.
[4] Fundamentally, Ms. Selkirk argues that the Criteria unfairly discriminate against ALD patients as a result of their alcohol use disorder (“AUD”), a disability, and make them ineligible for a liver transplant on the basis of arbitrary criteria, endangering their lives, without demonstrable justification.
[5] Trillium Gift of Life Network (“Trillium”) administers the deceased donor program and sets the Criteria. It argues that the Criteria are evidence-based and consistent with the best available scientific knowledge and the standard of care in Canada. It argues that there is no evidence that there is currently a more reliable scientific method of identifying ALD patients who will have successful outcomes after a liver transplant. It does not argue that its system is perfect; it argues that it is the best available.
[6] University Health Network (“UHN”) manages the living donor program. It has chosen to mirror the Criteria in setting its Living Donor Criteria. It argues that its actions are immune from Charter scrutiny.
Procedural Background
[7] This proceeding was commenced in 2015. The amended notice of application sets out the relief sought, which I summarize as follows:
a. A declaration that Mr. Selkirk’s Charter rights were infringed, and that this infringement caused his death;
b. A declaration that the six-month rule for liver transplants imposed on persons suffering from liver failure caused by ALD infringes the rights guaranteed under ss. 7, 12 and 15(1) of the Charter, and cannot be justified under s. 1;
c. A declaration that insofar as the Criteria provide for permanent exclusion from liver transplant eligibility as a result of failure to comply with medical advice, the Criteria infringe ss. 7, 12, and 15(1) of the Charter, and cannot be justified under s. 1;
d. A declaration that the Criteria are of no force and effect.
[8] The relief sought in the amended notice of application does not accurately describe the relief sought in the proceeding before me. All parties have approached the hearing on the basis that Ms. Selkirk raises the constitutionality of the 2010 Criteria, which required a six month period of sobriety before a patient could be considered for a liver transplant, and seeks declaratory relief with respect to Mr. Selkirk’s rights in connection with the alleged unconstitutionality of them. In addition, she challenges the constitutionality of the Criteria on multiple bases, not limited to the criteria related to compliance with medical advice. Finally, she seeks declaratory relief with respect to the Living Donor Criteria, arguing that it, too, is unconstitutional.
[9] Although the relief sought departs in some ways from the amended notice of application, the parties agree that the issues as I have just described them are canvassed and briefed in this application, and they ask that I decide them. I am prepared to proceed on that basis. Ms. Selkirk is acting for herself, and while her skills are impressive, it would be unjust to demand procedural perfection from her. I will focus on the substance of the issues that have been raised, and not their technical presentation.
[10] This action is proceeding only against Trillium and UHN. It was dismissed as against the respondent, the Minister of Health and Long-Term Care, on November 20, 2020, after the Minister brought a motion on the basis that the application was properly brought against Trillium, whose rules and conduct are at issue.
[11] A related proceeding, Williams v. Trillium Gift of Life Network et al., was brought by the estate of Mark Williams, who died of liver disease in 2019 after being refused placement on the transplant waitlist. This application was intended to be heard together with the Williams application. I understand that the applicant in the Williams proceeding decided to discontinue that proceeding following the changes that resulted in the current Criteria, which I describe below. At the time of the hearing of this application, the Williams application had not yet been discontinued, but counsel expected that it would be. By agreement, the parties rely on the evidence filed in both applications on this application.
The Respondents
[12] The UHN is a non-share capital corporation and public hospital. It operates Canada’s largest transplant centre. Through its multi organ transplant program, UHN performs liver, kidney, lung, heart, pancreas, and intestine transplant using organs from deceased and living donors. In Ontario, adult liver transplants are also performed at London Health Sciences Centre (“LHSC”).
[13] Trillium is a not-for-profit corporation established pursuant to s. 8.7 of the Trillium Gift of Life Network Act, R.S.O. 1990, c. H.20. Its objects are set out in s. 8.8 and include managing the procurement, distribution and delivery of tissue, establishing and managing waiting lists for the transplanted tissue, and establishing and managing the system to fairly allocate tissue that is available. Trillium also educates the public to promote tissue and organ donation.
Brief Background: The System for Allocating Organs
[14] The need for organs for transplant is significantly greater than the number of organs available. Approximately 700 to 750 referrals for a liver transplant are made annually by treating physicians to the transplant program in Ontario. In the one-year period between April 2018 and March 2019, only 202 livers were available and transplanted. On January 1, 2019, 288 patients were on the waitlist for a liver transplant.
[15] The shortage of available organs means that hard decisions have to be made about who will receive an organ when one becomes available. Waitlists have been established with the goal of fairly allocating available organs.
[16] Before a patient is placed on the waitlist for a liver transplant, they are first assessed for eligibility using the Criteria. The goal of the Criteria is to identify patients who need a liver transplant, are likely to have successful outcomes initially, and will continue to benefit from their new liver for at least five years following the transplant.
[17] Once a patient is placed on the waitlist for a liver transplant they may move up or down the waitlist or be removed entirely. Their spot on the waitlist is determined using a medical assessment system called the sodium model for end-stage liver disease (“NaMELD”). A patient’s NaMELD score changes over time, and is updated based on clinical information and laboratory tests performed by the patient’s treating physician.
[18] When a donated liver becomes available, it is offered to the blood group matched patient at the top of the list, who is then assessed by the transplant team to determine if the patient is compatible with the available liver. If they are, the transplant proceeds.
[19] Alternatively, a person in need of a liver transplant may have someone who is willing to become a living donor, and who is a suitable match. Living donors are healthy people who undergo a significant surgery to donate 70% of their liver to someone in need, most often to a loved one. The evidence suggests that a living donor runs a morbidity risk of 30% and a mortality risk of 0.2%. Living donors present particular ethical considerations because a living donation requires performing significant surgery that carries serious risks on a healthy person in order for them to give an organ to someone else. Patients are assessed for suitability for living donor transplant using the Living Donor Criteria, which, as I have noted, mirror the Criteria.
Brief Overview of the Evolution of the Criteria
[20] At the time of Mr. Selkirk’s death, in 2010, each transplant centre was responsible for developing its own listing criteria for each type of organ transplant.
[21] In 2012, Trillium issued its first listing criteria to prescribe the eligibility criteria that apply to adults seeking placement on the waitlist for organ transplant. The first listing criteria for liver transplantation was very similar to the criteria that the transplant centres had been using up to that point.
[22] For liver transplants, at the time of Mr. Selkirk’s diagnosis, and until May 2018, the eligibility criteria included a firm requirement that patients with ALD abstain from alcohol use for six months prior to being placed on the waitlist. The six-month rule was originally the focus of this application, which was commenced in 2015.
[23] In May 2018, Trillium and UHN launched a three-year pilot program for providing transplants to people with ALD who had not completed a six-month period of sobriety. The pilot program introduced new selection criteria and guidelines to assist in the assessment of the patient’s risk of alcohol relapse in place of the six-month rule. The pilot program also funded additional resources to the most at-risk patients to help them reduce the risk of harmful relapse. Patients were assessed by a multidisciplinary team for eligibility. Once a candidate was waitlisted for a liver transplant, addiction specialists provided addiction treatment to the candidate. Relapse prevention therapy was also available after the transplant.
[24] The program was scheduled to end in May 2021, but the pilot program model was judged to be successful and was permanently adopted in November 2020.
[25] The Criteria identifies patient listing indications. There are three general requirements that apply to everyone being considered for a liver transplant:
a. therapeutic options, other than liver transplantation, have been exhausted;
b. there is an absence of obvious contraindication for transplant; and
c. the expected five-year survival is greater than 60%.
[26] To help ensure optimal transplant outcomes, in addition to meeting standard transplant listing and contraindication criteria, patients with ALD must also be carefully assessed for a higher risk of return to problematic alcohol use. In assessing whether a patient with ALD has a higher risk of return to problematic alcohol use, the Criteria direct the transplant team to consider the following factors:
a. the patient does not meet criteria for moderate to severe AUD likely to result in a return to problematic drinking in the post-transplant period;
b. the patient is willing to commit to abstinence from alcohol;
c. the patient is willing to commit to AUD treatment pre- and post-transplant;
d. the patient has a history of no more than one previously failed AUD treatment;
e. absence of comorbid active substance use disorder, excluding cannabis and tobacco;
f. absence of untreated and refractory severe psychiatric comorbidity likely to interfere with treatment adherence;
g. other than in relation to alcohol use, no history of recurrent problems with adherence to medical treatment and repeated inability to follow up with or contact the patient;
h. the patient has a dedicated support person available to assist them through the process and has stable housing.
[27] Where a patient’s ALD is severe alcoholic hepatitis, the patient must meet the additional criterion as having severe alcoholic hepatitis as their first liver decompensating event leading to a diagnosis of acute liver disease.
[28] An ALD patient who does not meet the above criteria may be reassessed when there is a change, including a change in their psychosocial profile, that would merit reconsidering whether they meet the criteria. If an ALD patient does not meet the criteria, they may be listed if they demonstrate a sustained period of abstinence from alcohol of six months or more and have demonstrated a commitment to sustained abstinence.
[29] The Criteria also prescribe specific eligibility requirements for people who require a liver transplant for reasons other than ALD, including metabolic diseases and carcinoma, among others.
[30] The Criteria identify patient listing contraindications that apply to all potential liver transplant candidates. These include: (i) comorbidities that decrease the likelihood of surviving five years post-transplant to below 50%; (ii) patients with a body mass index over or under certain thresholds; (iii) patients with certain infections; (iv) patients with extrahepatic malignancy; (v) patients with certain vascular abnormalities; (vi) patients with unstable psychiatric disorder; (vii) patients who have engaged in illicit drug misuse within six months; (viii) patients who have been previously documented to, or are currently, unwilling or unable follow the advice of health professionals; and (ix) patients who have social support or compliance issues prohibiting adherence to post-operative medications or follow-up care.
Issues
[31] This application raises certain threshold issues before one reaches the constitutional questions.
[32] On this application, I must determine the following preliminary questions:
a. Is declaratory relief unavailable with respect to Mr. Selkirk’s Charter rights and cause of death because (i) a s. 24(2) Charter remedy is unavailable to a deceased person or their estate; (ii) the limitation period for declaratory relief has expired; or (iii) the relief sought is moot?
b. Is the declaratory relief with respect to the (un)constitutionality of the six-month rule moot because the Criteria no longer require a six month wait for an ALD patient to be listed?
[33] If I determine that the relief sought with respect to Mr. Selkirk’s rights, and/or the six-month waiting period are not unavailable, I must consider those issues on the merits. That will require me to consider:
a. Whether UHN, in setting and maintaining the six-month rule, before Trillium was constituted by statute to manage organ donation from deceased donors, was exercising a governmental function subject to Charter review;
b. Whether the six-month rule was unconstitutional because it violated the rights of ALD patients under ss. 7, 12, and 15 of the Charter. The time period within which I consider this will expand or shrink depending on the answer to whether the impugned actions of UHN are subject to Charter review, or only the actions of Trillium;
c. If the six-month rule infringed any or all of the Charter rights claimed herein, whether the violation(s) can be justified under s. 1 of the Charter;
d. If not, and if UHN’s impugned actions are reviewable under the Charter, whether the violation(s) of Mr. Selkirk’s rights under the Charter caused his death.
[34] No matter what I conclude with respect to the preliminary issues, I must engage in an analysis to determine the constitutionality of the Criteria. This requires me to consider:
a. Whether the Criteria violate s. 15 of the Charter;
b. Whether the Criteria violate s. 7 of the Charter;
c. Whether the Criteria violate s. 12 of the Charter;
d. Whether the violation(s), if any, are justified under s. 1 of the Charter;
e. Whether UHN’s impugned actions in setting the Living Donor Criteria are reviewable under the Charter, and if so, how the Charter analysis applies to the Living Donor Criteria.
Preliminary Issues
Is a remedy available under [s. 24(1)](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) for a breach of ss. 7, 12 or 15 to a deceased person or their estate?
[35] The respondents argue that no remedy is available to Ms. Selkirk or Mr. Selkirk’s estate because Charter rights cannot be asserted on behalf of a deceased person.
[36] With respect to the claim for a declaration that Mr. Selkirk’s s.15 Charter rights were infringed, the respondents rely on Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at paras. 72 to 73. Hislop dealt with the constitutionality of provisions of the Canada Pension Plan addressing same-sex couple survivor benefits. Under s. 60(2), where a survivor entitled to a deceased spouse’s CPP pension dies without making application for that pension, the survivor’s estate may apply and obtain the pension benefit to which the survivor would have been entitled, provided the application is made within twelve months of the death of the survivor. However, some same-sex survivors had been deceased for over 12 months when the amendments were made allowing same-sex survivor’s estates the right to apply for pension benefits.
[37] The government argued that s. 15(1) rights cannot be enforced by an estate because those rights are personal and terminate with the death of the affected individual. It argued that estates are artificial entities incapable of having their human dignity infringed. It relied upon minutes from the Special Joint Committee on the Constitution to argue that s. 15(1) refers to “every individual” rather than “everyone”, consistent with the Minister of Justice’s desire to make it clear that s. 15(1) rights apply to natural persons only. The Supreme Court of Canada held, at para. 73:
In our opinion, the government submissions have merit. In the context in which the claim is made here, an estate is just a collection of assets and liabilities of the person who has died. It is not an individual and it has no dignity that may be infringed. The use of the term “individual” in s. 15(1) was intentional. For these reasons, we conclude that estates do not have standing to commence s. 15(1) Charter claims. In this sense, it may be said that s. 15 rights die with the individual.
[38] The Court identified two exceptions to this principle. First, an appeal from a judgment raising s. 15(1) issues must be allowed to survive the party’s death pending the appeal. Second, where an individual dies after the conclusion of argument but before judgment is entered, the Court found that judgment shall be entered, because a person’s estate should not be prejudiced by the time required for a court to render judgment.
[39] The Court of Appeal for Ontario applied the reasoning in Hislop to s. 7 in Giacomelli Estate v. Canada (Attorney General), 2008 ONCA 346, 90 O.R. (3d) 669. In that case, Mr. Giacomelli had commenced the proceeding arising out of his detention in a concentration camp in Petawawa, Ontario during the Second World War as a result of his Italian heritage. Among other things, he sought declaratory relief and compensation, relying on ss. 7 and 15(1) of the Charter. While the action was ongoing, Mr. Giacomelli died.
[40] The Court of Appeal held that the reasoning of the Supreme Court of Canada in Hislop applied equally to Mr. Giacomelli’s s. 7 claim as it did to his claim under s. 15(1), even though s. 7 uses the term “everyone”, not “every individual.” Although Mr. Giacomelli had commenced his Charter claims during his lifetime, they had not been adjudicated nor argued at the time of his death. As a matter of law, the Court of Appeal concluded that they did not survive his death.
[41] No one was able to locate a case that considered whether an estate can advance a claim under s. 12 of the Charter. The respondents argue that s. 12 uses the same language to describe the entitlement to the right as s. 7 does - that is, “everyone.” They thus argue that an estate has no basis in law to seek a declaration based on a violation of s. 12, having regard to the decisions in Hislop and Giacomelli Estate.
[42] Ms. Selkirk distinguishes both Hislop and Giacomelli Estate. First, she argues that the determination in Hislop hinged on the financial context of the claim.
[43] Second, she argues that Hislop and Giacomelli Estate can be distinguished because in this case, the alleged Charter infringement is directly related to the death of Mr. Selkirk. She relies on a decision of the United States Court of Appeals, Seventh Circuit in Green v. Carlson, (1978) 581 F (2d) 669 (1978), aff’d 446 U.S. 14 (S.C.U.S). In that case, the issue was whether a claim against federal officials for damages based on alleged constitutional violations resulting in death survives for the benefit of the decedent’s estate. The court noted that the state in question, Indiana, had a survivorship statute but applying it to the federal claim at issue would have left the plaintiff without a remedy. It asked itself whether the application of Indiana’s law was inconsistent with the Constitution and laws of the United States. The court found that it would be anomalous and ironic to conclude that the decedent could have sought redress for violation of his constitutional rights if he had survived the alleged wrongdoing, but because the wrongdoing caused his death, the law was impotent to provide a remedy to benefit his estate: “[s]uch a holding would not only fail to effectuate the policy of allowing complete vindication of constitutional rights; it would subvert that policy.” The court noted the absurdity of a policy that would allow recovery for injury but deny relief for death, making it more advantageous for the wrongdoer to kill rather than to injure.
[44] The court in Green quoted the United States Court of Appeals, Fifth Circuit, from a 1961 decision in Brazier v. Cherry, 293 F (2d) 401 (1961). Brazier raised the question whether death resulting from violation of the civil rights statutes gave rise to a federally enforceable claim for damages sustained by the victim during his lifetime, by his survivors, or both. Judge Brown of that court wrote, in a passage quoted with approval in Green:
[I]t defies history to conclude that Congress purposely meant to assure the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple.
[45] Ms. Selkirk argues that a finding that there is no basis to claim for a Charter infringement, the result of which is the death of the claimant, is inconsistent with s. 7 which guarantees the right to life. As she puts it, “if there is no available redress, either by an estate or its administrator, s. 7 becomes unenforceable, is reduced to a risk of loss of life and does not protect the right to life itself.”
[46] The respondents argue that remedies for wrongful death, or the breach of a deceased’s human rights, are available through s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23, which permits a personal representative of an estate to pursue a non-Charter action stemming from torts or injuries to the person while they were alive, although they argue that any action brought under this section is barred by the two-year limitation period in s. 38(3). They also note that family members can bring their own claims under the Family Law Act, R.S.O. 1990, c. F.3, for their losses, including loss of care, guidance and companionship. Neither of these avenues would produce what Ms. Selkirk seeks – a declaration of the infringement of Mr. Selkirk’s constitutional rights.
[47] After the argument, the decision of the Manitoba Court of Appeal in Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44, 319 Man R (2d) 67 came to my attention. I provided the parties with the opportunity to make submissions on it.
[48] The Grant appeal arose from the decision of a Master, upheld by the Court of Queen’s Bench, to strike parts of a claim under ss. 7, 12 and 15 of the Charter advanced by the sister and administratrix of the estate of the deceased, Mr. Sinclair. Mr. Sinclair died after a prolonged stay in the emergency waiting room of the Health Sciences Centre, without receiving medical attention. The claim alleged that Mr. Sinclair, who was of Aboriginal ancestry, was confined to a wheelchair because his legs had been amputated, he was cognitively impaired, and he had difficulties with his speech. He suffered from chronic illnesses including a seizure disorder, a kidney ailment and a neurogenic bladder.
[49] He had attended a community health clinic on September 19, 2008, complaining of abdominal pain and no urinary output. The physician diagnosed the problem as an obstructed catheter. Clinic staff arranged for a taxi to take Mr. Sinclair to the emergency department, where the procedure to unblock the catheter could be completed. Mr. Sinclair had a letter from the physician diagnosing the problem.
[50] Mr. Sinclair waited at the hospital for 34 hours as he slowly died from an infection of his bladder caused by the blocked catheter. Had he received a timely change of his catheter and antibiotics, he would not have died.
[51] During the 34 hours Mr. Sinclair sat at the waiting room, on multiple occasions, security staff, patients, and visitors brought Mr. Sinclair’s deteriorating condition to the attention of medical staff, without response. No medical staff approached him until after he was already dead.
[52] At the Court of Appeal, the plaintiff argued that it was an appropriate case for public interest standing to allow her to advance the Charter claims. The Court of Appeal agreed.
[53] The Court of Appeal concluded that neither Hislop nor Giacomelli Estate dealt with or determined the issue of whether redress is available for a violation of the Charter that ends in death. It found that the circumstances of death are consequential to any existing or resulting Charter litigation: at para. 32.
[54] The court found that the language in Hislop was tailored to the context of claims on behalf of persons who were already deceased at the time the change to the Canada Pension Plan occurred. The Supreme Court of Canada could have made a broad declaration that redress for a violation of the Charter ends on death, regardless of context, but it did not: at para. 66.
[55] Similarly, with respect to Giacomelli Estate, the court found that the Court of Appeal for Ontario did not undertake a broad discussion of the question of the standing of a personal representative to bring a Charter claim in circumstances like those present in the Grant case. Rather, the Court of Appeal for Ontario used carefully tailored language to address the dispute before it and went no further: at paras 75-76.
[56] The Manitoba Court of Appeal also held that the Charter claim raised societal interests, such as vindication of Charter rights and deterrence of state actors: at para. 33.
[57] The court acknowledged that simply being a family member and administrator of Mr. Sinclair’s estate did not give the plaintiff a sufficient personal interest to challenge the alleged unconstitutional actions against Mr. Sinclair, but the Court considered whether she had an extraordinary basis to advance the claim, arising from a statute or the common law.
[58] The court considered the survival legislation in Manitoba, which did not assist the plaintiff. The court then considered the criteria of public interest standing, which asks whether there is a serious justiciable issue, whether the plaintiff has a real stake or genuine interest in it, and, in all the circumstances, whether the proposed suit is a reasonable and effective way to bring the issue before the courts: at para. 55.
[59] The court also considered the decision in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, where the Supreme Court of Canada discussed the four-part analysis for when a remedy for a breach of the Charter may be awarded pursuant to s. 24(1). Objectives of a s. 24(1) remedy include compensation for personal loss, vindication of the Charter right infringed, and deterrence of state actors from committing like breaches going forward. The objectives of vindication and deterrence address societal purposes: Ward, at paras. 28-29; Grant, at para. 80.
[60] The Court of Appeal held that “the Charter must also be interpreted in such a way as to allow courts to craft responsive and effective remedies in order to protect the purpose which a particular Charter right serves. Failing that, Charter rights would exist in on paper only”: at para. 91 [cites omitted].
[61] Having regard to the analysis above, the court concluded that limits to the application of the Charter must come from the language of the Charter itself, taking into account the context of the case. When the voice of the affected individual has been lost by death, allegedly at the hands of a state actor, necessity requires a substitute plaintiff. The court found that the fiduciary duties owed by a personal representative as a trustee make them well-suited to decide whether to advance a Charter claim. The set aside the motion judge’s order, and directed a different judge to hear afresh whether the facts alleged in the claim supported a reasonable cause of action under the Charter.
[62] While the decision in Grant dealt with a motion to strike and not a final adjudication, I am persuaded by the reasoning set out there, and by the policy reasoning set out by the courts in Carlson and Brazier.
[63] I do not think that either Hislop or Giacomelli Estate determine whether a Charter claim may be asserted by an estate in circumstances where the alleged Charter violation is said to contribute to or cause the death of the decedent. In my view, Hislop clearly raised the question of private interest standing; neither case considered public interest standing.
[64] In Ontario, the survival legislation is the Trustee Act, to which the respondents make reference. It does not provide a basis for Ms. Selkirk to advance a Charter claim on behalf of Mr. Selkirk’s estate. However, I am satisfied that the criteria for public interest standing are made out here. Ms. Selkirk has raised a serious justiciable issue with respect to the constitutionality of the 2010 Criteria and its application to Mr. Selkirk. She has a genuine interest in it, and the proposed application is a reasonable way to bring these issues before the court.
[65] I rely on the societal purposes of Ms. Selkirk’s claim. Assuming, at this threshold stage of my analysis, that there is no other reason not to proceed to determine the claims that Mr. Selkirk’s Charter rights were violated, and assuming the violation can be proven - the objective of vindication of the alleged breach of Mr. Selkirk’s Charter rights serves society broadly. I agree with the court in Green that it would wrong if an applicant could have sought redress for a breach of his Charter right, if only it had not contributed to his death. It cannot be correct that a state actor who commits a Charter breach has accountability if the breach injures someone, but none if the breach results in the death of that person.
[66] Nor do I find that the other avenues available at law – such as tort actions, which can be maintained by an estate under Ontario’s survivorship legislation – are a sufficient avenue to provide a remedy for a breach of a Charter right alleged to result in death. To conclude otherwise would be to ignore the inherent value of the rights accorded by the Charter, and the inherent value of the vindication of those rights, even absent other remedies being sought. There is a public dimension to vindicating the Charter right to life where a state actor has, in violation of s. 7, contributed to, or caused, the death of someone. If s. 7 is to meaningfully protect the right to life, there must be some accountability for a Charter violation that causes death. Concluding that the right dies with the individual where the violation is implicated in the death does not accord with the purposes of the Charter.
[67] Retrospective declaratory relief can thus be understood to be a publicly-oriented remedy. The fact that the declarations sought with respect to Mr. Selkirk’s rights are best understood to be a remedy sought under s. 24(1) of the Charter, and not a s. 52 remedy does not, in my view, change the public impact of the remedy. Section 24(1) gives the court broad remedial discretion to craft an effective and responsive – an “appropriate and just” – remedy. Retroactive declaratory relief under s. 24(1) can meet the goal of vindication of Charter rights within the public dimension in the appropriate case.
[68] I find that this is an appropriate case for Ms. Selkirk and Mr. Selkirk’s estate to advance claims based on violations of Mr. Selkirk’s Charter rights during his lifetime on the basis of public interest standing, having regard to the circumstances, where the alleged Charter violations are said to have contributed to, or caused, his death. To deny this right would be to empty the right to life contained in s. 7 of all meaning.
Has the limitation period for declaratory relief with respect to Mr. Selkirk or his estate passed?
[69] The respondents argue that the relief sought relating to the death of Mr. Selkirk is statute barred. Mr. Selkirk died in 2010 and this application was commenced in 2015. They argue that a two-year limitation period applies to personal relief sought under s. 24(1) of the Charter.
[70] In Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181, the court distinguished between the litigant’s personal remedies, brought by her as an individual, from an in rem remedy flowing from s. 52 of the Constitution Act, 1982. In that case, the appellant’s personal claim was statute barred, but her claim for a declaration of invalidity arising out of s. 52 was allowed to proceed.
[71] In Alexis v. Darnley, 2009 ONCA 847, 100 O.R. (3d) 232, the Court of Appeal held that limitation periods of general application apply to an action brought by an individual for a personal remedy under s. 24(1) of the Charter. Pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, the relevant limitation period is two years: Alexis, at para. 21.
[72] Ms. Selkirk argues that the relief sought is not out of time. She relies on s. 16(1)(a) of the Limitations Act, 2002, which provides that there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought. She argues that she seeks a simple declaration that Mr. Selkirk’s rights were infringed, which does not pronounce any sanction against the respondents. She seeks no consequential relief.
[73] In determining whether the relief sought is purely declaratory, the court asks the question: if it granted the declaration, and the defendant resisted the implementation of the declaration, could the plaintiff leave the court in peace and enjoy the benefits of the declaration without further resort to the judicial process?: Skylark Holdings Limited v. Minhas, 2017 ONSC 4599, at paras. 26, 28-29, Yellowbird v. Samson Cree Nation No. 444, 2008 ABCA 270, 433 A.R. 350, at paras. 45-47.
[74] I agree with Ms. Selkirk that the personal remedies sought with respect to Mr. Selkirk’s rights are declaratory only. If the declaratory relief is granted, Ms. Selkirk could leave the court in peace and enjoy the benefits of the declaration without further resort to the judicial process.
[75] This is because the declaration sought would, if granted, serve the purpose of vindicating Mr. Selkirk’s Charter rights, and recognize that public confidence in the Charter may be negatively impacted when state actors violate Charter rights, especially if doing so results in death. On its own, the vindication, if warranted, would have value.
[76] Ms. Selkirk makes no claim for monetary compensation or any other consequential relief. If the declaratory relief is granted, the court’s role is complete.
[77] I thus find that these claims are not statute-barred.
Is the question of declaratory relief for Mr. Selkirk or his estate moot?
[78] The respondents argue that the declaratory relief sought for Mr. Selkirk or his estate is moot. In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, the Supreme Court of Canada held that the doctrine of mootness applies when the court’s decision will not have the effect of resolving some controversy which affects or which may affect the rights of the parties. The court should assess whether to hear a case at all if the concrete dispute has disappeared and the issues have become academic. When determining whether to exercise its discretion, the court must consider the presence of an adversarial context, the concern for judicial economy, and the concern for the traditional role of the courts. The court should hear the case only if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it: Borowski, at paras. 15-16, 31, 34, 40.
[79] The respondents argue that the allegations that Mr. Selkirk’s rights were violated relate to the UHN policy that was supplanted in 2012 when Trillium issued its first listing criteria. UHN has not created or employed its own criteria for the deceased donor program since that time. Transplant medicine and practice have developed significantly since Mr. Selkirk’s death. Whether his rights were violated will not impact the practice of liver transplants going forward.
[80] I agree that the declaratory relief sought with respect to Mr. Selkirk’s rights has become moot due to the changes in the Criteria. To the extent Ms. Selkirk argues that the six-month rule continues to apply, that issue will be addressed in the context of the constitutionality of the current Criteria, which remains an issue in this case.
[81] I also note a practical concern with the request for declaratory relief related to Mr. Selkirk. The evidentiary record does not include the kind of evidence about his medical condition, or any expert evidence about him specifically, that would allow me to address whether the violation of his rights, if there were any, caused his death.
[82] In determining whether to exercise my discretion to hear the case as it relates to Mr. Selkirk’s rights, it is plain that the issue arises in the presence of an adversarial context, and does not create significant concerns for judicial economy because the proceeding is ongoing in any event.
[83] However, with respect to the third factor – the traditional role of the courts - the Supreme Court of Canada warned that courts must be sensitive to their role as the adjudicative branch in our political framework, and demonstrate a measure of awareness of their proper lawmaking function: Borowski, at para. 40. The respondents argue that declaratory relief that something that existed years ago was unconstitutional, where no consequential relief is sought, would be a declaration without a true legal purpose, and outside of the role of the court to adjudicate matters as they affect the people of Ontario today, and as they relate to the laws as they are currently written.
[84] I appreciate that Ms. Selkirk seeks declaratory relief because she wants to restore dignity to Mr. Selkirk. To her, that relief is very important. Moreover, as I have reviewed, retrospective declaratory relief under s. 24(1) can vindicate the infringement of Charter rights by state actors in the public interest.
[85] However, in this case, the six-month rule that lies at the heart of the alleged violations of Mr. Selkirk’s Charter rights has been replaced by the Criteria, which will be scrutinized for Charter compliance in this proceeding. In these circumstances, I agree with the respondents that adjudicating the declaratory relief sought with respect to Mr. Selkirk’s rights does not have a true legal purpose and is outside of the traditional role of the court. Accordingly, I find this relief is moot.
Is the request for declaratory relief relating to the six-month waiting period moot?
[86] The respondents also argue that the request for declaratory relief relating to the six-month rule is moot, because the six-month rule no longer exists in the form in which it existed prior to May 2018. There is still some reference to a six-month period of sobriety in the Criteria, but it does not function as a hard and fast rule as it used to; rather, it is only one way in which commitment to alcohol abstinence can be demonstrated.
[87] The constitutionality of the current Criteria, including the manner in which the six-month rule is taken into account, is in issue in this proceeding. The question is whether the constitutionality of the earlier criteria that included the six-month rule should also be determined.
[88] The considerations to determine whether this issue is moot are set out above. Borowski remains the test.
[89] I agree with the respondents that the question of the constitutionality of the six-month rule, as it existed prior to the Criteria, is moot. It would not affect any the rights of any of the parties were the court to resolve it, nor would it impact the rights of the public because the six-month rule is no longer applied as it was in the past.
[90] I also conclude that I should not exercise my discretion to hear it, because, as with the issues around Mr. Selkirk’s rights, it is outside the role of the court to make pronouncements that would be nothing more than an academic exercise.
Constitutionality of UHN’s Actions in Establishing the 2010 Criteria
[91] Having determined that the issues regarding Mr. Selkirk’s rights and the six-month rule are moot, it is not necessary at this stage to consider whether UHN actions were subject to Charter scrutiny in 2010 when its policy provided that, to be considered for a transplant, a patient with AUD had to comply with the six-month rule.
The Expert Evidence
[92] In addressing the constitutionality of the Criteria, both parties adduced expert evidence. Neither party objects to the experts adduced by the other.
[93] Notwithstanding the lack of objection, it is still my obligation to consider whether the expert evidence is admissible.
[94] There is a two-stage analysis for expert evidence to be admissible. In the first stage, four threshold requirements must be established: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) a properly qualified expert: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19 and 23.
[95] In the second stage, the judge has a residual discretion to exclude proposed expert evidence when its probative value is outweighed by its prejudicial effect. Relevance, necessity, reliability, and absence of bias continue to play a role in weighing the overall competing considerations in admitting the evidence during the second stage: White Burgess, at paras. 24 and 54.
[96] I agree with the parties the evidence of the experts in this case is admissible. I review each briefly below.
[97] Ms. Selkirk has adduced expert evidence from Dr. John J. Fung. Dr. Fung is the Chair of the Digestive Disease Institute at Cleveland Clinic in Cleveland, Ohio. He has been involved in kidney, liver, pancreas, islet, and intestinal treatment, transplantation and research for more than 30 years. He sits on the US Department of Health and Human Services – Advisory Committee on Organ Transplantation. He is the former editor-in-chief of Liver Transplantation, one of the primary publications of the American Association of Study of Liver Disease. He completed a transplant surgery fellowship at the University of Pittsburgh in 1986 under Dr. Thomas Starzl, who pioneered the first liver transplant in 1963. In 1989, he joined the faculty at the University of Pittsburgh. In 1991 he was named Chief of the Division of Transplant Surgery. There is no question that Dr. Fung is experienced, and widely published in liver transplantation, including in peer-reviewed journals.
[98] Dr. Fung’s evidence focuses on long-term survival outcomes in patients with liver transplantation, and in particular ALD patients, including by a review of medical literature. Dr. Fung’s evidence is thus necessary and relevant. There is no question that he is a properly qualified expert. No exclusionary rule applies.
[99] Dr. Fung is qualified to give evidence on liver transplantation and outcomes in people with ALD.
[100] Dr. Eric M. Yoshida gave evidence on behalf of the applicant in the Williams application which, by agreement, is evidence in this proceeding. Dr. Yoshida is a Professor of Medicine at the University of British Columbia, and a staff physician at the Vancouver General Hospital. He is a past Head of the Division of Gastroenterology of the University of British Columbia and the past Head of the Division of Gastroenterology of the Vancouver General Hospital. He practices in the areas of hepatology, liver transplantation and gastroenterology. He is the former director of the Liver Transplant Program, a provincial program based at the Vancouver General Hospital, and remains a practising member of the liver transplant program. He has been the chair of the Canadian Liver Foundation Medical Advisory Committee since 2010. He is the editor-in-chief of the Canadian Liver Journal. He is widely published in peer-reviewed journals.
[101] Dr. Yoshida’s evidence focuses on the impact of a six-month abstinence period on post-transplant outcomes in patients with ALD, best practices in terms of treatment of ALD as it relates to liver transplant, and whether attempts at sobriety pre-transplant impact post-transplant outcomes. I have no difficulty concluding that Dr. Yoshida’s evidence is both necessary and relevant, and that he is a properly qualified expert. No exclusionary rule applies.
[102] Dr. Yoshida is qualified to give evidence on the effect of sobriety on outcomes on patients with ALD who receive liver transplants, and the treatment of ALD patients as it relates to liver transplants.
[103] The final expert advanced by Ms. Selkirk is Dr. Rolf Barth. At the time he swore his affidavit, Dr. Barth was the Head of the Division of Transplantation and Director of Liver Transplantation at the University of Maryland Medical Center in Baltimore. He has been involved in kidney, liver, and pancreas transplantation and research for more than 15 years. He served on the U.S. Department of Human and Health Services, Organ Procurement and Transplantation Network Ad Hoc Systems Performance Committee – Transplant Program Work Group, the mandate of which includes the study of existing metrics and effective practices, and recommendation of new or updated ways to assess and improve performance. Dr. Barth is widely published in peer-reviewed journals.
[104] Dr. Barth’s evidence focuses on the approach to liver transplantation in ALD patients at his transplant centre in Maryland, and the evaluation of candidates with ALD for suitability for liver transplantation. Although both parties agree that Dr. Barth’s evidence relates solely to the practice at his particular transplant centre in Maryland, I am prepared to conclude that it is relevant, as it addresses a multidisciplinary approach to assessing liver transplant candidates and may assist in providing a comparison to the procedure now in use in Ontario. The evidence is also necessary. No exclusionary rule applies. Dr. Barth is a properly qualified expert.
[105] Dr. Barth is therefore qualified to give evidence on the approach to liver transplantation in ALD patients and the evaluation of ALD patients for suitability for liver transplantation used at the University of Maryland Medical Center.
[106] The respondents have adduced evidence from one expert, Dr. Gonzalez Abraldes, who is a transplant hepatologist. Dr. Gonzalez Abraldes is the Director of the Liver Unit and co-director of the Cirrhosis Care Clinic at the University of Alberta. He is an Associate Professor of Medicine at the University of Alberta. He has been a member of a number of scientific societies with a focus on the study of the liver, including a position he holds currently, as Co-Chair, Research Committee, Canadian Association for the Study of the Liver. He is the associate editor of Liver International, and has held many other committee, academic, editorial, and reviewer positions. He, too, is widely published in peer-reviewed journals.
[107] In his evidence, Dr. Gonzalez Abraldes reviews medical literature and studies that have been conducted with respect to identifying and selecting patients with ALD for transplant and the criteria that have been applied to select those patients. He opines on whether the medical literature and evidence support the Criteria in use in Ontario, and he opines on whether there is an agreed-upon and medically substantiated standard or set of criteria that exists to help determine which ALD patients are suited for transplant. Dr. Gonzalez Abraldes’s evidence is thus both relevant and necessary. No exclusionary rule applies. He is a properly qualified expert.
[108] Dr. Gonzalez Abraldes is admitted as an expert qualified to give evidence on the medically substantiated criteria to identify ALD patients who are suitable for transplant, and whether the Criteria is based on medically substantiated standards or criteria.
Constitutionality of the Criteria
Do the Criteria violate [s. 15(1)](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)?
The Legal Framework
[109] 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.
[110] Section 15(1) requires a “flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group”: Quebec (Attorney General) v. A, 2003 SCC 5, [2013] 1 S.C.R. 61, at para. 331. It protects substantive equality, and reflects a profound commitment to promote equality and prevent discrimination against disadvantaged groups: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at para. 17; Quebec v. A, at para. 332.
[111] As the court held in Kahkewistahaw First Nation, s. 15 is “an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages”: at para. 17. The focus is thus on laws that draw discriminatory distinctions - distinctions that perpetuate arbitrary disadvantage based on an individual’s membership in an enumerated or analogous group: Kahkewistahaw First Nation, at para. 18; Quebec v. A, at para. 331.
[112] The test under s. 15 requires the claimant to prove that the impugned law or state action (i) on its face or in its impact, creates a distinction based on an enumerated or analogous ground, and (ii) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: Kahkewistahaw First Nation, at paras. 19-20. As the court held in Kahkewistahaw First Nation, at para. 20, the second part of the analysis focuses on arbitrary, or discriminatory, disadvantage.
[113] When the claim of discrimination relates to medical treatment or a medical service for a disability, it is important to remember that a link between the conduct in question and the disability is not, on its own, indicative of discrimination. An applicant would have to establish that there was some arbitrariness in the manner in which she was treated because of her disability: Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044, at para. 43. Physicians may need to take a disability into account when making professional treatment decisions; they must be free to take into account the factors that they consider relevant in their medical judgment: Egan v. Kennedy, 2006 BCHRT 15, at para. 23.
[114] Ms. Selkirk argues that the Criteria fall afoul of s. 15(1) of the Charter. She argues that the central purpose under s. 15(1) is to prevent governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating group disadvantage and prejudice, or that impose disadvantage on the basis of stereotyping: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 25. She notes that people with AUD have a disability as that term is defined in s. 25 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and that people living with addiction are subject to prejudice and stigma, as recognized by the Court of Appeal for Ontario in Ontario (Disability Support Program) v, Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 197, at para. 121.
[115] Ms. Selkirk argues that the Criteria create a distinction based on an enumerated or analogous ground, because they limit access to liver transplantation that is available to other members of society, and the limitation is based on the cause of an ALD patient’s liver disease – their AUD, a disability.
[116] Trillium agrees that the first branch of the test under s. 15(1) is met. The Criteria create a distinction on their face, and treat patients with ALD differently than other patients.
[117] The real question is whether the distinction imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage - in other words, in an arbitrary manner. Trillium argues that the distinction is not arbitrary, but based on the best available medical evidence.
[118] To determine if the distinction imposes a burden or denies a benefit in an arbitrary manner, it is necessary to consider in detail the history of the development of the eligibility criteria into its current iteration, and the science behind the criteria as it has evolved.
The Medical Evidence Develops: Abstinence and Positive Outcomes in Liver Transplantation
[119] As I have already noted, the purpose of eligibility criteria is to ensure the fair allocation of available organs to those people most likely to have positive outcomes from a liver transplant.
[120] At the time of Mr. Selkirk’s illness, the 2010 Criteria required a six-month period of abstinence from alcohol before an ALD patient could be considered for a liver transplant. In 2012, Trillium pronounced its first listing criteria which continued the requirement that ALD patients be abstinent from alcohol for six months before they could be considered for a liver transplant.
[121] The respondents describe the rationale for the six-month rule as follows:
a. alcohol misuse following transplant can have significant detrimental effects on the transplant outcomes and patient compliance with post-transplant treatment;
b. sustained alcohol use after a liver transplant is associated with damage to the new liver, loss of the liver graft and increased mortality;
c. there is common agreement in the medical community that the transplant survival rate after five years should be at least 50%.
[122] No one disputes that a return to problematic drinking after a liver transplant is associated with negative transplant outcomes. Dr. Gonzalez Abraldes’s evidence is that sustained alcohol use after liver transplant is associated with damage to the new liver, loss of the liver graft and increased mortality. In support of this conclusion, he cites two studies. One study, by Vanlemmens C, Di Martino V, Milan C, Messner M, Minello A, Duvoux C, et al., “Immediate listing for liver transplantation versus standard care for Child-Pugh stage B alcoholic cirrhosis: a randomized trial” Ann Interm Med. 2009; 150(3): 153-61, (the “Vanlemmens Study”) found that the absence of ongoing alcohol consumption is a predictor of survival for transplant patients. The authors of this study found the mortality rate was 7.6 times greater in patients with continuing alcohol consumption after transplantation.
[123] In a study by Lee BP, Mehta N, Platt L, Gurakar A, Rice JP, Lucey MR, et al., “Outcomes of Early Liver Transplantation for Patients With Severe Alcoholic Hepatitis” (2018) Gastroenterology, 155(2), 422-30, (the “Lee Study”), the authors saw substantial reduction in survival in patients with alcohol use after liver transplant, finding a reduction of 3.5 times with any alcohol use and 4.6 times with sustained use.
[124] Dr. Gonzalez Abraldes gave evidence that the six-month abstinence criterion had been used for many years in Europe and North America. Although it has been controversial, he noted that there was academic support for some association between the length of abstinence and the potential risk of recurrence of harmful alcohol use. He cited a study by Tandon P, Goodman KF, Ma MM, Wong WW, Mason AL, Meeberg G et al., “A shorter duration of pre-transplant abstinence predicts problem drinking after liver transplantation” (2009) Am J Gastroenterol 104(7), 1700-6, which concluded that pre-transplant abstinence was the most important predictor of post-transplant problematic drinking. The study had a limited number of patients, which the authors noted prevented firm conclusions from being drawn, but they noted a dose-response relationship was found with the risk of problem drinking decreasing by 5% for every incremental month of pre-transplant abstinence. The patients in the study nearly all had at least six months of pre-transplant abstinence, thus limiting the utility of the study with respect to ALD patients with a period of sobriety of less than six months.
[125] Dr. Gonzalez Abraldes explained that the six-month rule was controversial because there is no evidence that the risk of recurrence of harmful alcohol use decreases sharply at six months, many patients with less than six months abstinence might have other good prognostic criteria, and many patients would die within six months without a transplant.
[126] Dr. Gonzalez Abraldes’s evidence was that the six-month rule becomes especially problematic in cases of alcohol associated hepatitis, in which a sub-acute deterioration of liver function occurs. Alcohol associated hepatitis has a high mortality rate, and because recent alcohol use is the trigger for the disease, liver transplantation for alcohol associated hepatitis was rare; patients cannot meet a six-month sobriety requirement.
[127] Dr. Gonzalez Abraldes went on to explain that in 2011, the first prospective study on liver transplant for alcohol associated hepatitis was conducted in France and Belgium (Mathurin P, Moreno C, Samuel D, Dumortier J, Salleron J, Durand F, et al. “Early liver transplantation for severe alcoholic hepatitis” (2011) N Engl J Med., 365(19), 1790-800 (the “Mathurin Study”). Dr. Fung agreed that the Mathurin Study was a seminal paper that has been influential in creating a structure around how to implement a protocol to provide liver transplants to patients with acute alcoholic hepatitis.
[128] In the Mathurin Study, 26 carefully selected patients with alcoholic hepatitis underwent liver transplants. Their outcomes were compared to a previous series of patients with alcoholic hepatitis who were not considered for liver transplant. The patients who received a transplant had a much better survival rate.
[129] In selecting patients for participation in the study, psychosocial assessment was undertaken. Patients were assessed for criteria including: (i) non-responsiveness to medical therapy; (ii) severe alcoholic hepatitis is the first liver-decompensating event; (iii) presence of close support of family members; (iv) absence of severe co-existing psychiatric disorders; and (v) agreement by patients, with support from family members, to adhere to lifelong total alcohol abstinence.
[130] The selection process consisted of several meetings between four medical team circles, the patient’s family and the patient. The team circles were, first, the inner circle, closest to the patient, comprising nurses, one resident and one fellow; second, a specialist in addiction; third, senior hepatologists; and fourth, an anesthetist and surgeons. The four circles had to reach complete consensus on selection.
[131] The selection criteria and intensive addiction support after the transplant resulted in only three patients returning to alcohol, with no liver dysfunction related to alcohol use during the follow-up of the study.
[132] Following the Mathurin Study, other studies were undertaken that looked at liver transplantation in patients with alcoholic hepatitis.
[133] In a study by Im, GY, Ki-Schluger L, Shenoy A, Schubert E, Goel A, Friedman SL, et al. “Early Liver Transplantation for Severe Alcoholic Hepatitis in the United States – a Single-Center Experience” (2016) Am J Transplant, 16(3), 841-9, (the “Mount Sinai Study”), described by Dr. Gonzalez Abraldes in his evidence, selection criteria for alcohol associated hepatitis patients mostly mirrored those used in the Mathurin Study in terms of medical and psychosocial evaluation. Of 90 assessed candidates, nine patients received transplants. Survival was excellent and only one patient relapsed. In assessing the history of alcohol use, the Mount Sinai study indicates that multiple previous relapses or failed attempts in relapse prevention programs, poor insight, lack of adequate social support, previous hospitalizations for alcoholic hepatitis, active non-alcohol substance abuse or uncontrolled psychiatric illness were considered to increase the risk of alcohol recidivism and were assessed in each patient. The determination of each case was individualized to the specific patient in question, with these considerations serving as guidelines.
[134] In another study by Weeks SR, Sun Z, McCaul ME, Zhu H, Anders RA, Philosophe B, et al., “Liver Transplantation for Severe Alcoholic Hepatitis, Updated Lessons from the World’s Largest Series” (2018) J Am Coll Surg, 226(4): 549-57, (the “Weeks Study”), described by both Dr. Gonzalez Abraldes and Dr. Yoshida, 46 patients with alcoholic hepatitis were transplanted with excellent survival rates, and a 17% rate of return to drinking. The selection criteria in the Weeks Study also mostly mirrored the medical and psychosocial evaluation criteria of the Mathurin Study, although in the Weeks Study, patients with a previous diagnosis of a mental health disorder were not excluded if the mental illness was stable and well-managed. In the Weeks Study, patients were evaluated for characteristics previously reported as risk factors for alcohol relapse after liver transplantation, including marital status, pre-transplantation employment, age at onset of drinking, duration of heavy drinking, family history of alcoholism, daily number of standard drinks consumed, and history of return to drinking after formal inpatient alcohol rehabilitation.
[135] In the Lee Study, discussed above, about which both Dr. Gonzalez Abraldes and Dr. Yoshida gave evidence, patients were enrolled without any particular abstinence time requirement. Patient survival at one and three years was 95% and 84% respectively. The alcohol relapse rate at one-year post-transplant was 25%, and at three years was 34%. Of the patients who relapsed, only 11% had sustained alcohol drinking and 72% were abstinent – rates that Dr. Yoshida deposed are similar to relapse rates reported in patients who have undergone liver transplantation after a six-month period of abstinence. As I have already noted, the Lee Study reported that sustained alcohol use post-transplant was associated with an increased risk of post-transplant mortality.
[136] In addition, in 2016, in Austria, a retrospective study was undertaken of 382 patients with alcoholic liver disease who received liver transplants without the requirement of six months of abstinence: Kollman D, Rasoul-Rockenshaub S, Steiner I, et al. “Good outcome after liver transplantation for ALD without a 6 months abstinence rule prior to transplantation including post-transplant CDT monitoring for alcohol relapse assessment – a retrospective study” (2016) Transplant International, 29, 599-567 (the “Kollman Study”). According to Dr. Yoshida, the Kollman Study reported a one-year survival of 82% and a five-year survival rate of 69%. The study found that 16% of patients suffered alcohol relapse, but alcohol relapse was not found to have an effect on post-transplant survival. On cross-examination, Dr. Yoshida confirmed that the listing criteria for patients who were transplanted in the Kollman Study included psychosocial criteria such as demographic data; causes for alcohol consumption; coping mechanisms past and future; compliance past and future; agreement to therapy; medical, psychological and future goals; and willingness to abstain from alcohol. Dr. Yoshida confirmed that these types of psychosocial criteria remain relevant in assessing a patient for a liver transplant.
[137] As this review demonstrates, medical knowledge about liver transplant into ALD patients has been evolving, prompted, at least in part, by the Mathurin Study.
The Review of Trillium’s Policies and the Launch of the Pilot Program
[138] By August 2016, in view of the evolving medical science, Trillium decided it had to take another look at the listing criteria for eligibility for a liver transplant.
[139] Trillium’s policies, including its listing criteria, are developed using a multi-stage process that includes consultation with members of the transplant community. Policies drafted by Trillium are reviewed by working groups comprised of experts including transplant physicians, hospital administrators, and Trillium staff. The Liver and Small Bowel Working Group (the “working group”) provides advice on access to liver transplant and transplant patient care.
[140] The process includes reviewing and summarizing recent medical literature and international practices. The evidence indicates that Trillium drafts proposed policies or policy amendments when research, international practice and/or working group discussions determine that change is appropriate.
[141] Once a policy or policy amendment is approved by the working group, the policies are sent to Trillium’s Transplant Steering Committee (the “steering committee”) which is comprised of transplant clinicians and administrators, hospital administrators, a Bioethics representative, Critical Care Services Provincial Lead, Critical Care LHIN Leader, Trillium staff, and ad hoc members as needed. The steering committee either approves the policy, rejects it, or sends it back to the working group for further review. If approved, Trillium implements the policy.
[142] Between September and November 2016, Trillium conducted a fresh jurisdiction and research review, which it shared with the working group. The working group commenced a review of the listing criteria for liver transplant in ALD patients, focusing on the six-month rule. Trillium engaged addictions experts and ethicists to assist the working group. The working group concluded that there were valid concerns about the effectiveness of the six-month rule, but also that there was no medical consensus on what should replace it.
[143] The working group sought the views of Trillium’s Ethics Committee, and considered the possibility of a pilot program to study alternatives to the six-month rule. The Ethics Committee recommended that the six-month rule be re-examined, and that additional work be undertaken to build new evidence in the area, perhaps through a provincial pilot study. By late March 2017, the working group concluded that a pilot project was the best approach to develop the needed alternative system.
[144] Trillium established a Pilot Program Planning Committee to develop specific criteria for ALD patients who had not been abstinent from alcohol for six months. The Pilot Program Planning Committee included surgeons, hepatologists, gastroenterologists, psychiatrists, psychologists, a nurse coordinator, and addiction specialists. They reviewed the most current medical literature. They developed the pilot program protocols which were approved in April 2018. They obtained a funding commitment from the Ministry of Health and Long-Term Care for three years. The pilot program was launched in May 2018 at UHN and LHSC.
[145] The aim of the pilot program was to implement a specialized treatment protocol permitting the listing for transplant of ALD patients who had been abstinent from alcohol for less than six months. The results were studied through monitoring and evaluating outcomes. The pilot program was thus prospective and designed to inform permanent evidence-based change.
[146] Although Ms. Selkirk argues that the pilot program capped the livers that would be available for transplant under its criteria, such that ALD patients enjoyed no meaningful increased access to livers, I am satisfied that the estimate that the pilot program patients would constitute 10 to 15% of existing liver transplants was an estimate only, and no limit was placed on the number of pilot program participants. All patients who had not been abstinent for six months were considered eligible for placement on the waitlist. I accept Trillium’s evidence that, practically speaking, the pilot program represented the end of the rigid six-month rule that had previously operated in Ontario.
[147] The criteria under the pilot program is the same as the current Criteria. Using that criteria, during the pilot project, a multidisciplinary team assessed every patient individually for eligibility for the waitlist. The multidisciplinary assessment team considered the patient’s clinical, psychological and social profile. The patient was assessed by surgeons, hepatologists, anaesthetists, addiction psychiatrists, addiction psychologists, social workers, and service coordinators. The team considered the patient’s substance abuse history, support network, psychological illnesses, and prior instances of acting against medical advice or failing to comply with treatment regimes. Before a patient was accepted, the members of the team had to reach consensus that the patient was suitable for transplant and met the eligibility criteria.
[148] The other significant change that came with the pilot program was that funding was obtained to provide additional resources to the most at-risk patients to help them reduce the risk of harmful relapse alcohol. The pilot program provided candidates with addiction specific resources once the patient was waitlisted for a liver transplant. Post-transplant, relapse prevention therapy remained available.
[149] As of January 29, 2020, UHN had received 472 referrals to the pilot program, all of which were triaged by a hepatologist. Of those, 246 were assessed by social worker, and 227 were also assessed by an addiction psychiatrist. One hundred patients met the pilot program criteria and pass the medical assessment stage. As of January 29, 2020, 29 of those patients had received liver transplants, 16 remained on the waitlist, nine had been listed but subsequently removed, and the remaining patients were at various stages of medical testing.
[150] The pilot project was considered a success. The working group recommended that the pilot program model be permanently adopted. The steering committee approved the recommendation, resulting in the permanent adoption of the Criteria as of November 2020. Patients continue to be assessed in accordance with the Criteria through the multidisciplinary approach described above.
Is the differential treatment created by the Criteria arbitrary?
[151] Having considered the medical evidence, and the development of the pilot project, and the permanent adoption of the Criteria, it remains to consider whether, in view of this evidence, the Criteria create a distinction that is arbitrary, such that there is a breach of s. 15(1).
[152] Ms. Selkirk raises concerns about certain aspects of the Criteria in particular.
[153] First, she argues that the Criteria exclude from transplant any patient who has “previous documentation or current unwillingness or inability to follow the advice of health professionals.” This contraindication to transplantation is a general listing criterion that applies to all potential liver transplant patients, but she argues it has a disproportionate effect on ALD patients, who will likely have been told by their physicians to stop drinking, and have not complied with that advice. She argues that the door is shut on ALD patients before they can even be considered using the multidisciplinary approach to determine their likely risk of return to problematic drinking.
[154] I do not believe that Ms. Selkirk’s reading of the Criteria in this respect is correct. The Criteria specific to ALD patients indicates that the patient should have no history of recurrent problems with adherence to medical treatment “other than in relation to alcohol use.” I thus conclude that this criterion is not arbitrary. Rather, it contextually takes into account the risk of a patient not complying with post-transplant care - which, as Dr. Gonzalez Abraldes deposed, follows highly invasive surgery and requires an aggressive regimen of medications post-transplant, and which carries a significant rate of adverse effects - while at the same time allowing that patients with AUD may have had difficulty complying with medical advice to stop drinking. This is especially so given the difficulty some patients may have had in accessing supportive resources to assist them on the journey to sobriety.
[155] Second, she argues that the six-month rule remains in effect, and creates an arbitrary barrier to ALD patients who seek a liver transplant.
[156] Ms. Selkirk relies on Dr. Yoshida’s evidence, given in May 2019, that the six-month rule is not consistent with the best medical evidence, which has demonstrated that with appropriate support, patients without a six month period of alcohol abstinence can undergo liver transplantation with good outcomes in terms of post-transplant survival, and alcohol relapse rates that are similar to patients who underwent six months of abstinence pre-transplant. Like Dr. Gonzalez Abraldes, Dr. Yoshida was particularly concerned about patients with severe alcoholic hepatitis, who have a very high mortality rate. He opined that the current best medical evidence does not support denying patients with severe alcoholic hepatitis a life-saving liver transplant solely because they have not abstained from alcohol for six months.
[157] In his affidavit sworn May 9, 2019, Dr. Fung also agreed that the use of the six-month rule as a predictor of post-transplant abstinence is questionable and not evidence based. He refers to guidelines on liver transplantation for alcoholic liver disease from the International Liver Transplant Society that provide that decisions on liver transplant candidacy should not be made solely on length of sobriety criterion. He notes the guidelines also indicate that “when medical urgency does not allow a 6-month waiting time, the [liver transplant] evaluation may proceed in selected patients, incorporating expert assessment by a mental health professional, which may include a contract for addiction treatment before or after [liver transplant], depending on clinical circumstances.” He also notes that liver transplant is an appropriate treatment in ‘carefully selected patients with life-threatening alcoholic hepatitis that has not responded to medical management.”
[158] While I accept the evidence of Dr. Yoshida and Dr. Fung, I do not agree with Ms. Selkirk’s reading of the Criteria. While it is true that the Criteria provide that an ALD patient may be listed if they have demonstrated a period of abstinence from alcohol of six months or more, that criterion only comes into effect if the patient has not otherwise been accepted for listing using the multidisciplinary approach prescribed by the Criteria. The current six-month sobriety period criterion allows a patient who does not otherwise qualify under the Criteria the opportunity to demonstrate that they are likely to have a successful outcome after transplantation by demonstrating their commitment to alcohol abstinence. As Trillium notes, the problem with the six-month rule is not that it does not work; it is effective at identifying people that are not likely to return to problematic drinking post-transplant. The problem is that it excludes too many people who would otherwise have successful outcomes.
[159] The Criteria, properly understood, operate in a manner consistent with that which Dr. Fung describes as being set out in the guidelines from the International Liver Transplant Society as they relate to the six-month abstinence period.
[160] Third, Ms. Selkirk argues that the requirement that patients with severe alcoholic hepatitis experience it as their first severe liver-decompensating event means that liver transplants are only available for those alcoholic hepatitis patients who did not know they were sick, and that this is an arbitrary distinction.
[161] I do not accept this submission. Although I agree that the Criteria state that those patients who are diagnosed as having severe alcoholic hepatitis “must meet the additional criterion as having severe alcoholic hepatitis as their first liver-decompensating event leading to diagnosis of acute liver disease,” this criterion is not arbitrary. It is a criterion that was used in the Mathurin, Mount Sinai, Weeks, and Lee Studies. It was not a criterion in the Kollman Study, but patients with severe alcoholic hepatitis were not transplanted in that study. The use of this criterion as a predictor of transplant outcomes was explained by Dr. Gonzalez Abraldes in his cross-examination, where he testified that ongoing alcohol use despite knowing that the patient has significant liver disease is a bad prognostic indicator for alcohol relapse after liver transplantation.
[162] Moreover, Dr. Gonzalez Abraldes also gave evidence about a very recent report that arose out of a consensus conference convened to propose recommendations for programs performing or intending to perform liver transplantation for patients with alcohol associated hepatitis: Arsani, Trotter, Lake et al. “Meeting Report: The Dallas Consensus Conference on Liver Transplantation for Alcohol Associated Hepatitis” (2020) (the “Dallas Report”). The consensus criteria for liver transplant in ALD patients coming out of the Dallas Report are very similar to the Criteria. Patients with alcoholic hepatitis are recommended to have their first presentation with decompensated ALD to be eligible for consideration for liver transplant.
[163] Fourth, Ms. Selkirk argues that the Criteria are arbitrary insofar as they require a history of no more than one previously failed AUD treatment, where failure is defined as a return to problem drinking that would meet the criteria for AUD. She argues that achieving sobriety can take multiple attempts, and the Criteria unfairly punish someone for attempting to become sober more than once. She argues this is a distinction that is based wholly on the disease from which AUD patients suffer. However, the Criteria is not a checklist. Rather, the Criteria are meant to guide the transplant team in its multidisciplinary approach to assessing the ALD patient for transplantation. A patient’s history of failed AUD treatment is thus one factor to consider, but it is not a threshold requirement for transplant eligibility.
[164] Fifth, Ms. Selkirk argues that the Criteria are arbitrary because they are not based on the likely outcomes of ALD patients, but are guided by Trillium’s concern about public perception. She suggests that Trillium is worried that the public will perceive liver transplantation into ALD patients as providing livers to people who are responsible for their own illness, and less deserving of an organ, which in turn may impact the willingness of people to become organ donors. I do not accept this argument. The evidence indicates that Trillium has paid attention to the public perception of organ donation, as it must in the discharge of its mandate to educate the public about organ donation and encourage organ donation. However, the evidence does not support a conclusion that Trillium has made clinical decisions or decisions about the Criteria on the basis of public perception.
[165] Sixth, Ms. Selkirk argues that the criteria seeking to evaluate likely abstinence are ineffective, because medical science is not good at identifying who will return to problem drinking post-transplant. Dr. Yoshida gave evidence that predicting alcohol relapse post-transplant with any degree of reliability is difficult and inexact. It is easier, however, to predict who is unlikely to return to alcohol post-transplant. In other words, health professional assessment for predicting which patients are unlikely to relapse to alcohol drinking after transplant is reliable, but predicting which patients are likely to relapse to alcohol is poor: citing De Nooy S, Zimmerman SB, Jones JL, Voight MD, presented at the Liver Meeting, the American Association for the Study of Liver Disease, San Francisco CA, November 2018. Dr. Yoshida opined that excluding patients from transplantation based on unreliable assessments of possible post-transplant alcohol relapse is likely to exclude some patients who could have done well after transplantation had they been given the opportunity.
[166] Dr. Gonzalez Abraldes did not fully agree with Dr. Yoshida’s evidence about the ability to predict the absence of relapse as opposed to the ability to predict the probability of relapse. Notably, he gives evidence that a predictive tool referenced by Dr. Yoshida – the SALT score – is not currently validated and requires further study before it can be adopted. Even if the current methods for assessing likelihood of relapse are flawed, there is no evidence of a medically accepted better way to predict which ALD patients are likely not to return to problem drinking post-transplant.
[167] I note Trillium’s concession that the Criteria are not perfect. Trillium agrees that there are people excluded by the Criteria from liver transplantation who would have successful outcomes. The problem is that there is currently no way to identify who those people are. Every liver transplanted into someone who does not have a successful outcome is a liver that is not transplanted into someone else who would have been likely to have a successful outcome. Transplanting a liver into a poor candidate will not likely save the life of the recipient, and it will sacrifice the life of someone else who could have lived had they received the liver. The stakes could not be higher.
[168] With respect to the operation of the Criteria as a whole, I note that Dr. Gonzalez Abraldes was the only expert to opine on the pilot project criteria. In May 2019, he deposed that the pilot project criteria followed the criteria used in the Matherin Study, although some of the criteria were less restrictive. The criteria used in the pilot project are also similar to those used in the Mount Sinai, Lee and Weeks Studies. In his evidence, Dr. Gonzalez Abraldes stated that the multidisciplinary approach used in the Mathurin, Mount Sinai, Lee and Weeks Studies, and in the pilot project, are still not considered the standard of care in many centres – rather this approach was the subject of pilot programs in most centres. He noted that the expansion of eligibility criteria should come from new research studies, testing the outcomes of liver transplant in patients with less restrictive criteria than the ones used in the studies I have mentioned, but Dr. Gonzalez Abraldes was not aware of any such studies ongoing.
[169] On cross-examination, both Dr. Fung and Dr. Yoshida confirmed that they were provided with copies of the pilot program listing criteria, which mirrors the Criteria, but neither gave expert evidence about the Criteria or its alignment with current best medical evidence. Dr. Barth had not received a copy of the pilot program criteria.
[170] Of note, however, Ms. Selkirk’s experts endorse a similar approach to the Criteria in identifying ALD patients for transplant. In identifying patients for liver transplant, Dr. Yoshida agreed in cross-examination that the psychosocial criteria evaluated in Matherin “remain relevant criteria in assessing a patient for a liver transplant.”
[171] Similarly, in cross-examination, Dr. Fung confirmed that, in the United States, each transplant centre uses criteria similar to the Mathurin criteria, but he believed that each would modify the criteria according to their own philosophy and institutional priorities. In any event, he said that the centres would undertake a multidisciplinary approach to look at patients and accept them on an individual basis based on alcohol abstinence rates of less than six months.
[172] Dr. Barth’s affidavit indicates that, at his transplant centre, they have accepted patients for transplant who have not completed any period of sobriety if they meet other selection criteria. He deposes that candidates undergo rigorous selection based on social work, psychiatric, substance abuse, medical, surgical and nursing criteria. He explains that the liver transplant team works in conjunction with social workers, nurse coordinators, psychiatrists and substance misuse counsellors to create a comprehensive treatment plan to support ALD patients post-transplant and ensure a successful long-term outcome.
[173] The criteria identified in the Dallas Report are also similar to the Criteria. They recommend a multidisciplinary psychosocial team to establish acceptable risk of relapse in the patient, the assessment of the patient by an addiction specialist, the lack of other current substance use or dependency, an acceptance of ALD with insight, a commitment to sobriety, family support, and lack of repeated unsuccessful attempts at addiction rehabilitation.
[174] The Criteria, the approaches by the experts, and the approaches seen in the studies reviewed, all consider alcohol use because it is a medically relevant criterion when assessing the likely outcome of a liver transplant in a patient with ALD.
[175] Medical science has not yet developed a better way to ensure that organs – which are scarce – are fairly deployed to those who are most likely to benefit from them. Selection bias is built into the studies which exist. Until ALD patients who are using alcohol up to transplantation receive liver transplantations, there will be no data to assess if drinking up to transplant predicts a high probability of problematic alcohol use after transplant.
[176] But it is not the role of the court, in undertaking a Charter analysis, to direct medical research. The question for me to answer is whether, in view of the current state of medical science, the Criteria create a distinction that imposes a burden or denies a benefit to ALD patients in an arbitrary manner.
[177] I find that the Criteria do not create an arbitrary distinction. They are based on the best available medical knowledge, and provide a reasoned, if not a perfect, basis on which clinical decisions can be made about which patients are most likely to have successful outcomes from a liver transplant such that they should be waitlisted for the opportunity to receive one from a deceased donor.
Do the Criteria violate [s. 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)?
[178] Section 7 of the Charter guarantees that “[e]veryone 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.”
[179] Section 7 poses a two-stage enquiry. First, the claimant must show that the law interferes with, or deprives them of, their life, liberty, or security of the person. Once they have established that s. 7 is engaged, they must then show that the deprivation in question is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55.
[180] Trillium acknowledges that Ms. Selkirk’s claims engage the right to life and the right to security of the person. The question is thus whether the Criteria are consistent with the principles of fundamental justice.
[181] As the Supreme Court of Canada noted in Carter, at para. 72, s. 7 does not enumerate the principles of fundamental justice, but the Court’s jurisprudence has defined the minimum constitutional requirements that a law that trenches on life, liberty or security of the person must meet. Three are central: it must not be arbitrary, it must not be overbroad, and it must not have consequences that are grossly disproportionate to its object.
[182] Arbitrariness targets the situation where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person. An arbitrary law is one that is not capable of fulfilling its objectives: Carter, at para. 83.
[183] Here, the Criteria are rationally connected to their object of ensuring that a scarce resource – livers – are allocated to patients who are most likely to have successful outcomes, because they have been articulated in a manner consistent with the best available science. The Criteria must consider harmful alcohol use, because it is relevant to liver transplant outcomes.
[184] When considering if a law is overbroad, the court asks whether it takes rights away in a manner that generally supports the object of the law, but goes too far by denying the rights of some individuals in a way that bears no relation to the object. The enquiry does not ask whether the least restrictive means have been chosen, but rather, whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature: Carter, at para. 85.
[185] In this case, the denial of rights to those individuals who would have successful outcomes with a liver transplant bears some relation to the object of ensuring that livers are transplanted into candidates who are most likely to have successful outcomes. Because the current state of medical knowledge does not allow us to identify which patients who are likely to have successful outcomes are being excluded, their current exclusion is related to the object of ensuring that transplant patients are likely to have successful outcomes. Put another way, there is no known way to better refine the Criteria, so any widening of the Criteria will result in more failed transplants, and more lost lives. Moreover, the Criteria does not prohibit liver transplantation for all patients with ALD, but relies on the current best medical evidence to identify those patients with ALD for whom a liver transplant is medically indicated.
[186] The last enquiry asks whether the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure. It compares the law’s purpose with its negative impact on the rights of the claimant and asks if this impact is completely out of sync with the object of the law. The standard is high: “the law’s object and its impact may be incommensurate without reaching the standard for gross disproportionality”: Carter, at para. 90.
[187] I cannot find that the standard of gross disproportionality is met in this case. The purpose of the Criteria is a laudable one, in the public good. There is no perfect way of achieving it in view of current scientific and medical knowledge. The impact of the law on those patients who would likely not return to problematic drinking post-transplant, and are likely to have good outcomes, but who are currently excluded from being waitlisted for a transplant is not completely out of sync with the object of the Criteria, because we cannot identify who those patients are. The imperfect scientific knowledge is regrettable; it is tragic for those patients who should have a chance to have a liver transplant, but whom we cannot identify. But given the state of medical knowledge, the negative impact on those individuals science does not yet allow us to identify is not grossly disproportionate to the object of the Criteria. Moreover, the Criteria allow for reassessment of a patient who was denied if their situation, including their psychosocial profile, changes. The Criteria are thus in sync with their object, as best as they can be in view of the current limits of our scientific knowledge.
Do the Criteria violate [s. 12](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)?
[188] Section 12 of the Charter provides that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” The parties agree that punishment is not at issue in this case. Thus, to come within the protection of s. 12, Ms. Selkirk must demonstrate that ALD patients in need of liver transplants are subjected to treatment at the hands of the state, and that the treatment is cruel or unusual: Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, at pp. 608-609, 107 D.L.R. (4th) 342.
[189] Ms. Selkirk argues that “treatment” outside the penal context requires an “active state process in operation, involving an exercise of state control over the individual, in order for the state action in question, whether it be positive action, inaction or prohibition, to constitute ‘treatment’ under s. 12”: Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, at p. 611. She argues that the Criteria prevent ALD patients from accessing the only transplant healthcare available in Canada, and as such, it is treatment under s. 12.
[190] She argues that the treatment is cruel and unusual, because the medical system denies life-saving treatment to viable transplant patients.
[191] Trillium argues that treatment under s. 12 does not refer to consensual medical treatment, but to a condition imposed on someone by the state outside of the sanction or sentencing context. To be “treatment”, the sufferer must be “in some way within the special administrative control of the state”: Rodriguez, at p. 611. Trillium notes that healthcare policy has never been found to constitute treatment under s. 12.
[192] I agree with Trillium that s. 12 has no application in this case. ALD patients are not in the special administrative control of the state. The assessment of whether they are eligible for a liver transplant is a clinical assessment, made using the Criteria, by a multidisciplinary team of specialists. The Criteria do not prohibit ALD patients from being listed for a liver transplant, and are consistent with the best available science. ALD patients are not in the special administrative control of the state.
[193] In any event, I would not find that the Criteria are cruel and unusual, because they are not arbitrary, and because they are rationally linked to their purpose of ensuring that livers are fairly allocated to patients who need them, and who are most likely to have successful outcomes from transplant surgery. Moreover, they are neither cruel nor unusual because the Criteria capture more ALD patients as good candidates for liver transplantation than Dr. Gonzalez Abraldes’s evidence – the only evidence in the record on the point – indicates is consistent with the standard of care today.
Section 1 Analysis
[194] Because I have found no breach of ss. 15, 7 or 12 of the Charter, it is not necessary to undertake the s. 1 analysis with respect to the Criteria.
The Living Donor Program
[195] I turn now to the question of the constitutionality of the Living Donor Criteria. UHN argues that its activities, including prescribing the Living Donor Criteria, are not subject to Charter scrutiny. I agree.
[196] Section 32 of the Charter provides that the Charter applies to the Parliament and government of Canada, and to the legislature and government of each province. UHN is obviously not the government. However, the Charter has been interpreted to apply to government entities or entities carrying out a governmental activity: Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2009 SCC 31, [2009] 2 S.C.R. 295 at para. 16.
[197] The living donor program has never been controlled by the government. It was not until 2012 that Trillium, which acknowledges that it is subject to Charter scrutiny, pronounced listing criteria pursuant to its statutory mandate in connection with the deceased donor program. The deceased donor program is, in some senses, very different from the living donor program. Organs from deceased donors must be allocated fairly, while a living donor is generally prepared to donate only to a certain person. There is no question of fair allocation of organs when dealing with a living donor, because a donation from a living donor does not impact the pool of organs that are available for transplantation to liver disease patients at large. As a result, government control of the deceased donor program through Trillium serves desirable public interest goals, in ensuring, among other things, a fair system for the distribution of tissue and organs from deceased donors.
[198] In contrast, the Living Donor Criteria is a policy shaped by medical criteria, as decisions about whether to proceed with a living donation turn on the medical risks and likely outcomes to both the patient and the donor. Patients and donors who are assessed for participation in the living donor program are the subject of clinical decision-making by the transplant team. The Living Donor Criteria is a guide for the transplant team on how to clinically assess patients. It is not a government function subject to the Charter.
[199] I allow that Ms. Selkirk raises important questions about the Living Donor Criteria. Notably, she asks why not transplant more ALD patients with donations from living donors when they are available and appropriate? Doing so might improve medical knowledge about which ALD patients are suited for liver transplant. Better knowledge could lead to better informed criteria for liver transplant in ALD patients from deceased donors. While I think these are good questions, they are not questions the court can address in this application. They are also complex questions, that engage questions about allocations of resources at transplant centres, the safety of, and risks to donors, the impact of death or harm to donor on liver transplant programs, and the possible need of a recipient for an urgent liver transplant if the transplant from a living donor fails.
[200] The Living Donor Criteria are open to challenge in other ways, including human rights legislation, or through laws regarding medical negligence in the appropriate case. However, I agree with UHN that its policy is a clinical one, not a government function. The Living Donor Criteria are thus immune from Charter scrutiny.
Conclusion
[201] In summary, the questions of the infringement of Mr. Selkirk’s rights and the constitutionality of the six-month rule are moot.
[202] The Criteria do not breach ss. 15, 7 or 12 of the Charter.
[203] The actions of UHN in establishing the Living Donor Criteria are not subject to Charter scrutiny.
[204] I wish to thank Ms. Selkirk and counsel for the respondents. They each brought care and attention to their work, and each of them treated these proceedings, and each other, with respect.
[205] I understand that my conclusions will disappoint Ms. Selkirk. She explained to me that she wished to restore Mr. Selkirk’s dignity through these proceedings. During the hearing, she told me about Mr. Selkirk. He was much more than a man with AUD. He was a grandfather who crawled on the floor with his grandchildren. He supported women’s shelters, and he was active in his community. He loved and he was loved. His life mattered.
[206] I think that Ms. Selkirk has already restored his dignity, if it needed doing. Her efforts to advocate for people with AUD, to assist and comfort families of patients with ALD, and to work to destigmatize AUD, have been a tribute to Mr. Selkirk’s life, and its inherent value. The respondents acknowledge that Ms. Selkirk’s advocacy contributed to the establishment of the pilot program, and therefore to the adoption of the Criteria. More patients with ALD have the chance to receive a liver transplant, in part due to her work. Ms. Selkirk’s dedication to her advocacy is a living and forceful demonstration of the dignity and worth of Mr. Selkirk’s life.
Costs
[207] Appropriately in my view, neither party seeks costs of this application. None are ordered.
J.T. Akbarali J.
Released: March 31, 2021
COURT FILE NO.: CV-15-539225
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Debra Selkirk and the Estate of Mark Selkirk
Applicants
– and –
HMQRO as represented by the Ministry of Health and Long-Term Care, Trillium Gift of Life Network and University Health Network
Respondents
REASONS FOR JUDGMENT
J.T. Akbarali J.
Released: March 31, 2021