Unfinished Business: The Alberta Court Of Queen’s Bench To Hear Constitutional Challenge To Alberta’s Prohibition On Private Health Care Insurance Based On Chaoulli

On October 17, 2013, the Alberta Court of Queen's Bench will hear two applications that aim to extend the Supreme Court of Canada's decision in Chaoulli v. Quebec (Attorney General)1 ("Chaoulli").2 Represented by John Carpay of the Justice Centre for Constitutional Freedoms, Darcy Allen and Richard Cross (the "Applicants") are challenging the constitutionality of section 26(2) of the Alberta Health Care Insurance Act3,which establishes a prohibition on the sale and purchase of private insurance for services that are available through the public health care system in Alberta. The Applicants claim that this provision violates their right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms4 ("Charter").

Factual Background 5

The Applicants both suffered from severe continuous back pain that prevented them from working and carrying out simple daily activities. Mr. Cross' pain stemmed from a multiple-level degenerative disc disease. He underwent a partial discectomy in December of 1998 but his pain continued to get progressively worse. After being informed that surgery was not available in Canada for his condition, Mr. Cross applied to Alberta's Out-of-Country Health Services Committee in 2010 seeking funding for spinal surgery at the Laser Spine Institute in Phoenix, Arizona. The Committee denied his request so Mr. Cross personally paid the associated cost of $24,236.34 to obtain the procedure at the clinic in Phoenix on March 18, 2010.

Mr. Allen's back pain arose from an injury he suffered while playing hockey in December of 2007. After many unsuccessful treatments, surgery was recommended in May of 2009. Mr. Allen claims that the surgery was initially scheduled to take place in September of 2010 but, in December of 2009, he was informed that he would have to wait an additional eighteen months or more. Mr. Allen claims that such a wait time would have been unbearable so he instead chose to personally pay $77,000.00 to receive the surgery sooner at a hospital in Great Falls, Montana. He claims that he did not apply to Alberta Health Services for funding for out-of-country treatment because he believed that his application would ultimately be rejected.6

For both Applicants, the surgical procedures they received in the United States resulted in a dramatic decrease in the pain they had been experiencing and marked the start of a gradual return to significantly improved health.

The Claims

The Applicants allege that Alberta's ban on private health insurance has created a "virtual monopoly" in the health care system, which, in combination with the government's failure to provide timely access to medical...