Ontario Health Coalition and Advocacy Centre for the Elderly v. His Majesty the King in Right of Ontario, 2025 ONSC 415

Overview
Standing to bring this application
A. The applicants do not have private interest standing
B. The Advocacy Centre has legal capacity to seek standing but the Coalition does not
C. Public interest standing for the Advocacy Centre
The statutory and regulatory scheme prior to Bill 7
A. There is no statutory right to be admitted to or remain in a hospital unless that is clinically necessary
B. The designation of patients as ALC
C. Managing the placement of ALC patients into long-term care homes
Bill 7 and consequential regulatory changes
The evidence on this application
A. The Advocacy Centre’s fact evidence
B. The Advocacy Centre’s expert evidence
C. Ontario’s fact evidence
D. Ontario’s expert evidence
Section 7 of the Charter
A. Introduction: there is no Charter right to publicly funded health care
B. Bill 7 does not limit the right to life
C. Bill 7 does not limit the right to liberty or security of the person
D. Conclusion: Bill 7 does not limit the right to life, liberty, or security of the person
E. Any deprivation is in accordance with the principles of fundamental justice
F. Conclusion: Bill 7 does not violate s. 7 of the Charter
Section 15 of the Charter
A. Section 15 analytical framework
B. Step One
C. Step Two
D. Conclusion: Bill 7 does not violate s. 15 of the Charter
Section 1 of the Charter
A. Bill 7 has a sufficiently important objective
B. The impugned measures are rationally connected to Bill 7’s objective
C. Bill 7 minimally impairs the rights
D. The benefits from Bill 7 are proportionate to its deleterious effects
E. Conclusion: any limitation on the right is justified under s. 1 of the Charter
Conclusion and Costs

1. Overview

[1] The Ontario health care system is large, complex, and of enormous importance to all who need its services. This case concerns the interface between two crucial parts of this system: hospitals and long-term care homes. In particular, this case concerns how elderly patients who no longer require the intensity of resources or services provided in a hospital transition to a long-term care home. A patient who no longer requires hospital-level care is called an alternate level of care patient or ALC patient.

[2] Absent issues of scarcity, the transition process would be relatively straightforward. The ALC patient would apply to the long-term care home of their choice. The patient could choose the home with the best services, facilities, and ratings, the one that was closest to their community of choice, or the one that best supported their linguistic and cultural needs. The ALC patient would wait in the hospital for a day or two, the patient’s preferred long-term care home would admit them, and they would move into that long-term care home.

[3] Unfortunately, no one can wish scarcity away. The parties agree that there are about 65,000 individuals on waitlists for one of the approximately 80,000 long-term care beds in Ontario. In 2023, there were 2,500 ALC patients waiting in a hospital bed for a space in a long-term care home. At the same time, Ontario is coping with a significant shortage of hospital beds. Demand for hospital beds currently exceeds supply. Many hospitals will have ALC patients occupying between 10 and 20 percent of their acute beds at any one time (although not all of these patients are waiting for long-term care). This causes back-ups in emergency departments and intensive care units, the cancellation of surgeries, and very ill patients waiting far longer than is desirable in hallways and other non-traditional spaces. As hospital beds are a scarce resource, very difficult questions arise regarding how best to allocate them.

[4] Ontario identified that the waitlists for long-term care homes were not all the same length. Sometimes, there were long-term care homes with short or non-existent waitlists. Sometimes, there were ALC patients who wished to remain in hospital while a long-term care home with a years-long waitlist processed their application even though they no longer needed hospital-level care. Sometimes, those same ALC patients occupied beds in hospitals that were experiencing paralyzing bed shortages that imperilled their ability to provide emergency, surgical, and medical care. Only one person can occupy a hospital bed at a time.

[5] In response to this situation, in August 2022, the Ontario Legislature passed Bill 7, which amended several other pieces of legislation. The purpose of the legislation was to reduce the number of ALC patients in hospital who are eligible for admission to a long-term care home, in order to maximize hospital resources for patients who need hospital-level care. The legislation and the regulations that were subsequently enacted made two fundamental changes:

a. placement coordinators are now permitted to authorize the admission of ALC patients to long-term care homes selected by the placement coordinator without the patient’s consent; and

b. once a long-term care home that can meet the ALC patient’s care requirements offers that patient a bed, the patient must either leave the hospital within 24 hours or pay a daily fee of $400 to remain in the hospital.

[6] The Ontario Health Coalition and the Advocacy Centre for the Elderly challenge the constitutionality of Bill 7. As I will explain, I do not grant the Coalition standing in this proceeding, as it is not a legal person. It describes itself as an “unincorporated citizen-based coalition and non-governmental organization.” The Coalition can not commence litigation in its own name. I grant the Advocacy Centre public interest standing to advance this litigation, although I do so reluctantly. It would be preferable to have individuals affected by this legislation bring claims in their own names, so that the constitutionality of the legislation could be determined on the facts of live cases with the Advocacy Centre playing its natural role as counsel to its clients.

[7] The Advocacy Centre submits that the legislation infringes ALC patients’ rights under s. 7 of the Canadian Charter of Rights and Freedoms because it limits the right to life, liberty, and security of the person. It submits that such limitations are not in accordance with the principles of fundamental justice because the legislation is arbitrary, overbroad, and grossly disproportionate. I disagree with both submissions.

[8] I find that Bill 7 does not violate an ALC patient’s right to life because Bill 7 is not a law or state action that imposes an increased risk of death on the patient. Bill 7 does not prevent any ALC patient from obtaining access to necessary health care. Bill 7 does not even prevent an ALC patient from remaining in hospital even though they no longer require hospital-level care. It only requires ALC patients who refuse an available bed in a long-term care home to pay about one-third of the cost of their care while they remain in the hospital. This cannot violate s. 7 of the Charter, because prior cases have determined that s. 7 does not confer a constitutional right to a certain level of funding for health or social benefits. No one has a statutory or common law right to occupy a hospital bed, particularly where a clinician has determined that a patient does not require the intensity of resources or services provided in the hospital care setting.

[9] I also find that Bill 7 does not limit an ALC patient’s right to liberty or security of the person. Bill 7 does not enact a penal prohibition or impose fines or imprisonment. It does not compel an ALC patient to do, or to refrain from doing anything. It does not authorize anyone to touch, restrain, or physically examine an ALC patient without their consent. It does not permit the hospital to transfer an ALC patient to a long-term care home without their consent.

[10] Bill 7 permits disclosure of a limited amount of an ALC patient’s personal health information for a limited purpose that is integrally linked to its legislative purpose. Patients do not have an absolute right to control the dissemination of their personal health information. The relevant statutes permit disclosure of an individual’s personal health information without the individual’s consent in many circumstances, including where that disclosure is necessary to facilitate the provision of health care, improve the health care system, protect the public, and allow public officials to discharge their statutory duties. The disclosure permitted by Bill 7 does not limit the right to liberty or security of the person.

[11] Bill 7 does not limit the right to liberty and security of the person by permitting a paper-based assessment of the patient in circumstances where a patient does not consent to an examination. A patient can consent to a physical, in-person assessment at any time. Absent that consent, there can be no objection to an assessment on a paper record.

[12] The Advocacy Centre submits that Bill 7 interferes with a “patient’s fundamental right…to choose where they will live in what will typically be the final months of their life.” As I will explain, an ALC patient has no statutory or common law right to stay in a hospital bed once a clinician has determined that the patient no longer requires hospital-level care. No one, including an ALC patient, has the “fundamental right…to choose” to live in a hospital.

[13] Bill 7 requires an ALC patient who chooses to wait in the hospital for an available bed in the long-term care home of their choice to pay about one-third of the daily cost of the hospital care they no longer require. I do not accept the Advocacy Centre’s submission that this daily fee is unconstitutionally “coercive.” It is not. The government may create economic incentives and disincentives to behaviour without those economic consequences becoming unlawfully coercive. Relatedly, the Advocacy Centre submits that Bill 7 is unconstitutional because it removes the “leverage” previously held by ALC patients in their “negotiations” with the hospital regarding their transfer to a preferred long-term care home. I reject the troubling suggestion that the constitution protects anyone’s right to hold a hospital bed hostage during negotiations to obtain a private benefit for themselves.

[14] Finally, Bill 7 does not “negate informed consent” contrary to the right to liberty and security of the person. Nothing in Bill 7 prohibits a patient from seeking or obtaining medical treatment or authorizes medical treatment of a patient without that patient’s consent. Bill 7 does not lower the threshold for discharging ALC patients from the hospital.

[15] Even if Bill 7 did limit the right to life, liberty, and security of the person, and I find that it does not limit those rights, the deprivation would be in accordance with the principles of fundamental justice. I find that the purpose of Bill 7 is to reduce the number of ALC patients in hospital who are eligible for admission to a long-term care home in order to maximize hospital resources for patients who need hospital-level care. This statutory scheme is not arbitrary as there is a rational connection between the object of the law and any limit placed on the s. 7 interests of the ALC patient. The provisions in Bill 7 are capable of advancing the legislative purpose. Relatedly, I conclude that Bill 7 is not overbroad. Bill 7 is narrowly tailored to achieve its purposes and its provisions are only triggered when reasonable efforts have been made to obtain a patient’s consent and those efforts have failed. Bill 7’s effects are not grossly disproportionate to its legislative objective.

[16] I conclude that Bill 7 does not violate an individual’s right to life, liberty, or security of the person and that any deprivation would be in accordance with the principles of fundamental justice because Bill 7 is not arbitrary, overbroad, or grossly disproportionate.

[17] The Advocacy Centre also submits that Bill 7 violates the equality guarantee in s. 15 of the Charter because the legislation discriminates against ALC patients on the basis of age and disability. I disagree. Bill 7 affects all ALC patients waiting for long-term care the same way, regardless of age or disability. ALC patients waiting for long-term care also fit uneasily within the enumerated grounds protected by s. 15 or the previously recognized analogous grounds. Membership in this group is determined both by a transient clinical assessment that the patient, at a particular moment in time, does not require the intensity of resources or services provided in the hospital care setting and the patient’s failure to consent to certain long-term care options available to them. I find that the Advocacy Centre has not proved that Bill 7 created or contributed to any disproportionate impact based on age or disability, which is fatal to its s. 15 argument.

[18] Finally, even if the provisions of Bill 7 limited the constitutional rights of an ALC patient, Ontario has justified that limitation under s. 1 of the Charter. The provisions have a sufficiently important objective and the means chosen by the Legislature are proportional to that objective because they are rationally connected to the objective, minimally impairing of the right, and there is proportionality between the salutary and deleterious effects of the law.

[19] As stated above, I find that the purpose of Bill 7 is to reduce the number of ALC patients in hospital who are eligible for admission to a long-term care home in order to maximize hospital resources for patients who need hospital-level care. I conclude that Bill 7’s objective is sufficiently important to justify a limitation on rights.

[20] Ontario has proved that on the basis of reason or logic that there is a connection between the infringement and the benefit sought. Bill 7 furthers an important government aim. There is evidence in the record that ALC patients and their decision-makers modified their behaviour and made different choices in response to Bill 7 than they would otherwise have made. As a result of this modified behaviour, hospital beds were made available on an earlier date than otherwise would have been the case. This evidence demonstrates that the legislation is rationally connected to its objective.

[21] The Advocacy Centre submits that Bill 7 is not minimally impairing of the constitutional rights of ALC patients. In support of this submission, the Advocacy Centre filed affidavits from experts providing their views on what, in their opinion, would be superior policy solutions to this situation. The experts’ proposals included the following: increased funding for hospitals; increased funding for long-term care homes; higher wages for staff working in long-term care homes; increased funding for palliative care; increasing funded home care hours by “20 to 50%”; increased funding for hospice care; increased funding for “senior friendly care”; changing the priorities of the health care system; changing the electronic document system for health care; mandating senior-friendly hospital practices in all hospitals; and increased funding for primary care to prevent hospitalizations.

[22] While I accept that the Advocacy Centre’s experts sincerely hold these views, they are of little assistance to me in determining whether the Legislature’s policy choices reflected in Bill 7 are unconstitutional. For reasons of institutional legitimacy and institutional capacity, it is not the role of the court to second-guess how the Legislature chooses to allocate scarce resources. The court must show significant deference to the Legislature’s decisions regarding health care spending while ensuring that the government acts within the limits of the constitution. I find that the Legislature made a reasonable choice among many alternatives to address a pressing and substantial legislative objective when it enacted Bill 7. Ontario has met the minimal impairment test.

[23] Finally, Bill 7 has an important social objective. This goal should not be lightly sacrificed. The evidence on this application satisfies me that Bill 7 addresses a pressing problem, and the benefits of Bill 7 significantly outweigh any of the supposed limitations on rights that it imposes.

[24] I dismiss the application in its entirety.

The remainder of the judgment, including detailed analysis, evidence, and legal reasoning, follows as in the original document, with all section and paragraph formatting, subheadings, and spacing corrected for clarity and readability.

Cited Cases

Legislation

Case Law

For the full text of the judgment, including all subheaders, analysis, and references, see the official source.

Ontario Health Coalition and Advocacy Centre for the Elderly v. His Majesty the King in Right of Ontario, 2025 ONSC 415

Ontario Health Coalition and Advocacy Centre for the Elderly v. His Majesty the King in Right of Ontario, 2025 ONSC 415

Table of Contents

1. Overview

Cited Cases

Legislation

Case Law

Cited By (1 case)

Cycle Toronto v. Ontario (Attorney General), 2025 ONSC 1650

Judge

Counsel

Parties

Legislation 9