Dilucidando los enfoques y los procesos metodológicos

The a priori questions surrounded relevant legislation and legal precedents established through previous Court rulings:

• Requirements of provincial health plans under the Canada Health Act (CHA) • Court precedents

Does Ontario’s Health Insurance Plan meet the requirements set out by the Canada Health Act to qualify for the federal cash contribution?

The Canada Health Act (CHA), as a piece of federal legislation and not a guarantee of rights, sets the five criteria of universality, public administration, comprehensiveness, portability, and accessibility for every province and territory to fulfill to qualify for the federal cash contribution. The CHA defines “insured person” as: “a resident of the province other than…(d) a resident of province who has not completed such minimum period of residence or waiting period, not exceeding three months, as may be required by the province for eligibility for or entitlement to insured health services” (p.4). Under this definition, Ontario, British Columbia, and Quebec are the only provinces in Canada that continue to implement the three-month wait period before eligibility is established for provincial health insurance plans (Elgersma, 2008). The physical presence requirement in the Health Insurance Act of Ontario is outlined in subsection 5(1), “a person shall only start receiving insured services once the General Manager is satisfied that he or she has been a resident for three full consecutive months, and has not stopped being a resident since meeting that three-month waiting period requirement”.

During this time, new permanent residents to Ontario are advised by the CIC and MOHLTC to purchase private health insurance coverage, however as discussed earlier in the report, inconsistencies and a lack of comprehensiveness have prevented many new permanent residents from qualifying for private health insurance plans due to age exclusions and pre-existing conditions. A particularly problematic public health concern outlined by the Toronto Board of Health is TB because it is legally impermissible to refuse treatment, although private health insurance companies consider TB a pre-existing

condition due to its dormant nature (McKeown, 2011). The lack of options available to new permanent residents in such a case forces them to incur significant debt over

diagnostic tests and potentially hospitalization. In Elgersma’s 2008 parliamentary report, it was recommended that the federal government assert more of a role in “enforcing and strengthening requirements for private health insurance” (p.10) because of their role in admissions of immigrants. However, considering the current economic and political climate, the federal government continues to decrease their role in healthcare delivery in Canada (Elgersma, 2008).

What have past rulings been regarding the legality of the three-month wait period?

New permanent residents are guaranteed all rights under the Canadian Charter of Human Rights and Freedoms. Past cases have argued that the three-month wait period

discriminates against new permanent residents and infringes on their rights for equality under section 15 of the Charter. In Irshad (Litigation Guardian of) v. Ontario (Minister of Health), the Ontario Court of Appeal ruled, “this limit on OHIP eligibility was reasonable and did not infringe on the rights to equality of any particular group”

(Canadian Civil Liberties Association, p. 20, 2010). The Court also reviewed that under section 6 of the Charter, some residency requirements are acceptable to qualify

individuals for entitlement to some services, if found reasonable. Importantly, the Court also found that one’s permanent or non-permanent residency status is not analogous ground to be protected under section 15 because it is not unchangeable. However, this decision is contrary to the findings from the Court’s ruling in Andrews v. Law Society of British Columbia where permanent residents who were not citizens were considered a “discrete and insular minority” to be within protection of s. 15 (Canadian Civil Liberties Association, 2010; Sansom, 1997).

In Sansom’s (1997) legal analysis of the changes introduced by the Minister of Health in 1994, it is argued that the new policies discriminate against refugees and new permanent residents and it can not be justified under subsection 1 or 15(1) of the Charter through the R. v. Oakes test of proportionality. From the explanation provided by Health Minister Ruth Grier to the Legislative Assembly of Ontario on March 31, 1994, the three-

month wait period serves the purposes of “(1) fulfilling a budget promise; (2) controlling costs; (3) preserving free health care in Ontario; (4) preserving free health care for those who intend to live in Ontario permanently” (p. 217). In determining a “sufficiently important objective” to justify the changes under section 1 of the Charter, Sansom (1997) explains that immigration is a federal power, so deterring non-citizens from taking advantage of Ontario’s healthcare system could not be the subject of inquiry of the province. After a review of Canadian precedents regarding justifying cost-savings to violate Charter rights, it is argued that fulfilling a budget promise and controlling costs is also not sufficiently important to justify denying a group of people a constitutional right (Sansom, 1997). Maintaining a high standard and quality of care for Ontario could be a sufficiently important objective, but budget costs alone could not be justified.

When putting the three-month wait period through the proportionality test, several deleterious effects were found, while the only salutary effect that could be gleaned was containing healthcare costs and thereby “fulfilling an electoral promise” (Sansom, 1997). With only this found by Sansom (1997), the Ontario government would fail the minimal impairment test by reducing health care costs at the expense of discriminating against entire immigration categories.

Deleterious effects of the policy changes on new permanent residents include discouraging new permanent residents from engaging with the healthcare system and perpetuating prejudice (Sansom, 1997). After being denied OHIP eligibility, and possibly private health insurance, new permanent residents face having to pay for care out-of- pocket or foregoing care. When seeking care without health insurance, new permanent residents have reported feeling discriminated against and even being denied care in different health care settings (Gardner, 2009). The most damaging effect of the three- month wait period may be the “perpetuation of alienation and disadvantage that stems from the Ontario government’s validation of discriminatory distinction” (Sansom, p. 225, 1997). The distinction the MOHLTC makes with new permanent residents further

marginalizes an already vulnerable population. Sansom (1997) goes on to argue that “The psychological effects of being treated differently, and of virtually being accused by the Minister of Health of having come to Canada to defraud Ontario’s health care system, are

deleterious effects to be considered in s. 1” (p. 226). With these considerations of both salutary and deleterious effects, it is concluded that the new policies fail to pass the proportionality test.