Chaoulli v. Quebec

Background

The case involved two different appellants who decided to work together because they were both contesting the same regulations. The first appellant, after whom the case is named, was Dr. Jacques Chaoulli. Chaoulli had contested provincial rules that prevented him from working full-time as a doctor making house calls. The second appellant was George Zeliotis, a retired entrepreneur of industrial chemicals. At the time, he had been on a waiting list for hip replacement surgery.

Zeliotis wanted to use private insurance to pay for his surgery with private-sector medical services. Both complainants argued that the limitations placed on them by Quebec’s health insurance regulations — one in terms of how he could practice as a physician, the other in terms of using private insurance to pay for medical procedures in the private sector — contravened their fundamental Charter rights i.e., both the rights and freedoms provided by the Charter and by the Quebec Charter of Human Rights and Freedoms. However, the Quebec Superior Court and the Quebec Court of Appeal disagreed.

Jacques Chaoulli

Dr. Jacques Chaoulli is a French Canadian physician who practiced in Quebec. His practice specialized in house calls and served the South Shore suburbs of Montreal. Chaoulli began advocating for changes to the province’s health care system in the mid-1990s. At the time, his practice was denied a “priority service” designation from the provincial government’s health authority. Because of this, Chaoulli was given the choice to either work 12 hours per week in a public sector health facility (like a hospital or public clinic), or to have payments made to him through the provincial health insurance cut by 30 per cent. Chaoulli argued that by seeing patients in their homes, he spared the government the expense of his patients using ambulance services or making hospital visits.

Based on his advocacy to reform Canada’s health care system that would encourage more private-sector activity, Chaoulli has been described as a privatization activist. (See also Health Care Reform.) In 1996, he went on a hunger strike to protest the Quebec government’s regulations that insisted he either forfeit a third of his earnings or work the required 12 hours per week in a government facility.

Court Decision

The Supreme Court of Canada sided with the appellants in a 4–3 decision on 9 June 2005. Chief Justice Beverley McLachlin argued that hospital waiting times were jeopardizing Canadians’ constitutional rights. Because of this, the provincial government’s exclusive control of providing medical services could not be legally justified.

The dissenting justices argued that no fundamental rights were violated. They further argued that matters of social policy ought to be determined by elected politicians, rather than the courts. They wrote: “The proper forum to determine the social policy of Quebec in this matter is the National Assembly.”

There was grave concern at the time that the Chaoulli decision would lead to dismantling of public health care in Canada. However, the decision was limited to Quebec, as Justice Marie Deschamps ruled only that the Quebec ban on private health insurance violated the rights of Quebecers. She wouldn’t go further and judge whether the same could be said of the rights of all Canadians.

The case is almost always referred to as Chaoulli v. Quebec. This is arguably a misnomer, given that the main argument — that patients’ constitutional rights are being violated by public health care systems that could negatively impact a person’s right to life, liberty or security of the person — more closely reflects the complaint made by George Zeliotis.

Aftermath

George Zeliotis won his right to use private health insurance to pay for surgery from a private-sector provider. He was nonetheless a supporter of public health care in Canada. Interviewed in November 2005, several months after the Supreme Court sided with him in his case, he stated that he wanted the Quebec government to reinforce public health care.

In the aftermath of the court ruling, most Canadian political leaders — both at the federal and provincial levels — vowed to protect public health care and to oppose a two-tier system. Alberta premier Ralph Klein was one of the few political leaders to embrace the decision. He argued in an editorial in the Edmonton Journal that it was time to embrace private health care. (See also Klein’s Controversial Health-Care Reform.)

Some provinces have privatized certain aspects of their public health care systems. Some procedures with long wait times have gradually been allowed to be covered by private insurance and providers. As of 2023, the dismantling of Canada’s public health care system had not occurred. But advocates for public health care remain concerned about “creeping privatization,” especially in Alberta and Ontario.

A similar challenge by Cambie Surgeries Corporation was brought before the courts in British Columbia in 2020. As with the Chaoulli case, the provincial court found that rules preventing private health insurance were not constitutional violations, though there was a partial dissent over the rights of the person. The Supreme Court of Canada denied Cambie’s application to be heard in April 2023.

(See also Maclean’s articles: Managing Health Care a Challenge; Our Health Care Delusion; The Health Care Time Bomb; Wealth Equals Health.)