BC Health Care revisited


 

BC Care CardBack in April I mentioned a Huffington Post article about a woman here in BC who had to give birth in a hotel here rather than in hospital because she was not yet eligible for provincial health services.

Since that time I have learned that in fact this really wasn’t the case and that in fact BC really is quite generous when it comes to granting medical care to those with PR applications in process.  Since I found this to be useful information, I’m going to capture it here as well in hopes that it will be useful to others in the future.

Bottom line: the spouse of a BC resident living with that resident in BC is normally eligible for coverage as well according to documents on the BC MSP website:

Most immigration documents, when submitted with the required MSP form, provide sufficient information for MSP to determine whether a person qualifies for benefits. There are circumstances, however,  where additional documentation is required. If, for example, a spouse/child has visitor status in Canada and his/her papers do not state “Case Type 17” or provide any other indication that permanent resident status has been applied for, the MSP form should be submitted with copies of as many of the following as possible:

  • a photocopy of any immigration document he/she may hold
  • any relevant letters issued by Citizenship and Immigration Canada (CIC)
  • proof that the application fee for permanent resident status has been paid to CIC online or through a financial institution
  • the identity page of the spouse/child’s passport and any other pages stamped by CIC or the Canada Border Services Agency
  • a copy of the spouse/child’s birth certificate if he/she is a United States citizen.
  • pages one and two from the CIC e-Client Applications Status website (www.cic.gc.ca) showingthe receipt date of the application. (On that website, click on Check Application Status.)

The above helps confirm that CIC considers the person to be an applicant for permanent resident status, and helps MSP determine when, if appropriate, coverage should begin.

Thus, it would seem that had that woman submitted evidence they had submitted the application (payment receipt, evidence that it was received in Vegreville, AB) she likely would have been eligible.  Instead, the original point of the article was that she wouldn’t qualify until such time as she was granted AIP (initial approval).

I’d been looking at this recently in any case, because of the opt-out provision of the BC provincial plan (as far as I can tell, only BC and Alberta have such a provision, although hopefully if there are other options for other provinces someone will tell me and I can update this information).  For me that was important because it demonstrated one possible way out of the excessive demand argument and indeed, had there been [b]any hint[/b] from the visa officer that no amount of insurance would overcome the BC policy, I would have offered to opt-out.  All I received was a generic form letter – and the only text in the medical officer’s opinion that deviated from the standard language that provides no insight into the rationale of the officer was “This applicant’s medical condition is likely to require treatment that is expensive and publicly funded in B.C.  Although he has private insurance, antiretroviral medications are covered 100% by the provincial drug plan in the province of British Columbia with no payment from private insurance.”

Previously, this same medical officer (in a different case, with the same medical condition): “Admissibility is dependent on the visa officer determining if the clients will have access to private or employer based insurance”.

Thus my point – I’ve investigated insurance alternatives.  It’s not easy to [b]get[/b] insurance with a pre-existing condition but it isn’t impossible – there are actually brokers who deal with that sort of thing (albeit with restrictions).

Of course, now that’s a moot point – CIC didn’t communicate clearly, so there was no effective way for me to respond back to them.

 

 

 

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Ovalle v MCI


Court Decision (Gavel)It’s been several weeks since I reviewed the recent court decisions.  I was glad to see a new one that is pertinent to my case: Ovalle v MCI (2012 FC 507).  It was argued by the same attorney that I am using and – interestingly enough – the government was represented by the same attorney as well.  At some point I suspect these two will feel like old friends (or perhaps rivals at least.)

At any rate, in this case, Mr. Ovalle applied for immigration, was HIV positive when he applied, was taking drugs provided to him by a non-profit known as Aid for AIDS International and they agreed to continue providing him with the drugs, even if he were to immigrate to Canada.  He also showed that he was stable and other than the meds, he would not be an excessive demand on the health services of Canada.

The medical officer reviewed the additional evidence and said that it did not change the diagnosis or prognosis.  The visa officer relied solely upon the feedback from the medical officer, discounted everything submitted by Mr. Ovalle, and rejected him.

The Court was not happy with this decision – this was reviewed strictly on the “fairness” of the actual decision (an admittedly challenging basis on which to win a decision):

While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer’s opinion that Mr. Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan was not satisfactory.

(Paragraph 9).

As a result, the judge decided the decision was not reasonable.   Kudos to Justice O’Reilly in holding CIC accountable to the standards as set forth in Sapru v MCIas I previously discussed.

The decision in this case is a narrow one (e.g., it applies to the specifics of this case) but it does demonstrate that the Courts are not allowing the Minister to simply reject people without a reasonable explanation as to why they are being rejected.

My own case has now been pending a decision on my application (to see if we even get to have a hearing) for 27 days.  While there is no guarantee of any specific time frame, it is now longer than most decisions of this type based upon my review of other cases – I have seen as long as two months to make a decision (twice – once it was granted, once it was denied).

Only time will tell.

Healthcare in Canada: Who is responsible?


Political Map of Canada

As I previously noted, my application for judicial review before the Federal Court of Canada argues that the Federal Government does not have the legal right to make excessive demand decisions, because it involved an exclusively provincial domain (namely, health care.)

While researching this issue I found the following description of the history of health care in Canada on Wikipedia:

The federal government felt that the health of the population fell under the Peace, Order, and Good Government part of its responsibilities. This led to several decades of debate over jurisdiction that were not resolved until the 1930s. Eventually the Judicial Committee of the Privy Council JCPC decided that the administration and delivery of health care was a provincial concern, but that the federal government also had the responsibility of protecting the health and well-being of the population.

What I find interesting is that when I look back at one of the seminal cases (Deol v Canada) the court specifically said that CIC had no obligation to advise the applicant of a provincial bonding program.  If the Federal government is representing the interests of the province in making immigration oriented health care decisions who is responsible for advising the applicant of such a program? In other words, if CIC is the agent of the province in this case, how can they abrogate a reasonable obligation to advise the applicant of their option under the very laws and regulations they are purportedly representing?

Here is the text from the judicial review application, as filed:

Issue four: s. 38(1)(c) violates the constitutional division of powers

1. Section 38(1)(c) of the Act authorizes the federal Minister of Citizenship and Immigration to make determinations involving costs of administering provincial health plans. Therefore, this section is invalid because it intrudes upon provincial health jurisdiction and jurisdiction in local matters under ss. 92(7), (13) and (16) of the Constitution Act. 1867.

2 . S. 91(25) of the Canadian Constitution Act authorizes the federal government to regulate naturalization and aliens.

Constitution Act, 1867, s. 91(25)

3. S. 92(7), (13) and (16) of the Constitution Act. 1867 provide provinces with the authority to regulate health care and jurisdiction over local matters.

Constitution Act, 1867, s. 92(7), (13) and (16)

4. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in
regulating the cost of provincial health care. As such, it is ultra vires the federal
government.

5. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

6. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in regulating the cost of provincial health care. As such, it is ultra vires the federal government.

7. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration  provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

Quebec (Procureur General) v. Canada (Procuruer General) 2010 SCC 61 at para. 78,87

8. The purpose or ” matter” of s. 38(1)(c) has been acknowledged to be “to reduce the impact on Canada’s publicly funded health and social services from excessive demand”. Unlike s. 38(1)(a) and (b), which are concerned with protecting the health of Canadians from newcomers who could pose a threat, s. 38(1)(c) in pith and substance is designed to manage and contain the cost of provincial health programs. This is not a valid immigration law purpose. This is a provincial concern.

Regulatory Impact Analysis Statement, Canada Gazette Part I, Part IV, p. 4497

9. The Supreme Court has determined that s. 92 provides provinces with jurisdiction over the costs of health care. The Court stated:

“In addition, there is no dispute that the heads of s. 92 invoked by the appellant confer on the provinces jurisdiction over health care in the province generally, including matters of cost and efficiency, the nature of
the health care delivery systems, and the privatization of the provision of medical services.”  [Emphasis added]

R. v. Morgantaler [1993] 3 S.C.R. 463 78,87

10. Recently, the Supreme Court described the provincial health power as “broad and
extensive”.

PHS Community Services Society v. Canada (Attorney General) 2011 SCC 44 at
para. 68

11. Deciding which newcomers are too costly for provincial health programs IS a provincial concern because it is a local matter requiring expertise regarding local conditions. For example, such an assessment requires detailed knowledge regarding how the health care system in a specific province is administered. Provincial authorities rather than federal bureaucrats are best placed to make such determinations.

12. Deciding which newcomers are too costly for provinces is also a local concern because it requires a balancing of the cost of the particular newcomer’s contributions with their expected costs.

13. In the Applicant’s case, for example, it is more appropriate for British Columbia to determine whether the Applicant is too great a cost for the province, taking into consideration that he resides there contributing to the local economy, consuming local goods and services. and paying taxes to British Columbia. A system which allows a federal medical officer in Ottawa to make such determinations on behalf of the province intrudes into provincial jurisdiction over local matters.

The Application


Last night I received a copy of the actual application that my attorney filed with the court.  It’s 259 pages of material, some of which I’d never seen before – like the original notes from the medical officer‘s file.  I thought it was interesting what was omitted from the file (some of the documents that were filed with the case) so I’m not sure what the rationale was for including or excluding specific information.  Be that as it may, the application record contains the bulk of information that was provided to CIC as well as information received from CIC.

Of particular interest to me were the legal arguments (19 pages), as ultimately it is the persuasive value of those arguments that will determine if the court agrees to hear the case (“grant’s the application for judicial review“).  The legal arguments for review consist of five different points:

  • The medical officer did not make an individualized assessment
  • The medical officer violated the duty of procedural fairness by not allowing me a fair opportunity to respond to the medical officer’s concerns
  • The medical officer’s reasons for her decision are inadequate.  In my case the medical officer reached a conclusion that is opposite of the conclusion reached in a different case with similar circumstances
  • The medical inadmissibility clause of the law is invalid because health care is legally the jurisdiction of the provinces
  • The medical inadmissibility clause violates Section 15(1) of the Charter of Rights and Freedoms

After reading the basic rationale, I would assume the lawyer assigned to this case for the Respondent will have some work to do.  The fourth argument is novel and has not previously been considered by the court, although there is plenty of case law pertaining to the separation of powers in the arena of health care.  The fifth argument is one that remains unsettled in Canadian jurisprudence.

My initial sense after reading this was that the first three arguments really do merit review.  The facts backing this up are interesting – the same medical officer decided that insurance was of paramount importance in the original Companioni decision, yet in my case decided that insurance was immaterial in my case.  Following the medical officer’s logic, no one in my situation would be medically admissible for immigration to BC.  That would seem to make things easy for CIC – blanket rejection.  Yet the point of the Hilewitz decision was to reject such a “cookie cutter” approach.  The inconsistency of the medical officer’s opinions does seem to be troubling (same medical officer, similar circumstances, completely different and contradictory rationale.)

It is, however, the last two arguments that are the more intriguing.  The separation of power’s argument has a reasonable counter-response: to cite to the British Columbia/Federal agreement allowing the Federal government to make medical decision on behalf of British Columbia with respect to immigration. (See canada bc immigration agreement for a copy of the 2010 agreement.)  It is a bit vague, but it is reasonable to argue that this grants the Federal government the authority to make decisions on British Columbia’s behalf.  There is a trap here however: first, the agreement requires that BC and CIC have drafted mutually agreed upon standards – and I haven’t been able to find them yet.  Second, and perhaps more dangerous, it would make the Federal government liable under British Columbia human rights legislation.  The idea here is that a government cannot abrogate it’s legal obligations by contracting with someone else to discharge its duties.  In theory then, it should be possible for me to bring a provincial human rights complaint (denying access to services based upon disability) against the Federal government.  If they then argue that they are immune from such, it would seem to create a very untenable position – they claim to have the right to exercise provincial authority in one context, yet deny the obligation to abide by provincial law in another context – both involving the same case?

The Charter argument has had plenty of time to ripen – it does not appear to have been argued in recent memory and there’s been quite a bit of development in the intervening years.  The arguments the attorney put forward are actually well-developed.

I was actually a bit concerned when I finished reading the legal arguments: they seem to be sufficiently interesting that I now rate the likelihood of judicial review happening at about 40% – there’s enough here to pique the curiosity of a judge.  My thinking is that if you’re given a stack of applications to review, most of which are refugee applications, and then you find one that appears to have some interesting potential arguments, you’d be inclined to grant the application.  At least that’s my hope.

Then there’s the scary side of this: suppose one of those last two arguments is successful and the court agrees that Section 38(1)(c) of IRPA is unlawful and must be struck down.  There is no way that the government will not challenge this, which means that it will take 2-3 years to resolve (and I’m betting that the cost of supporting an appeal in this regard will cost $30-50k.)

If judicial review is granted, particularly with these arguments presented, I worry about being successful – it basically would mean that a complete decision, with my name attached to it, would be splattered all over the legal history books.  I realize that’s a long shot.  It seems far more likely that a judge would decide on narrow grounds (e.g., “medical officer erred in her analysis”) than on broad grounds (“Section 38(1)(c) of IRPA violates the Canadian Constitution and/or Charter of Rights and Freedoms”). But to deny review, the judge must dismiss all of these concerns.  Under review, they can all be addressed (or some can be ignored.)

A positive decision on narrow grounds would simply return the file to CIC for further consideration.  In that case, with two applications in process, I’ll gladly take the one that comes first.  A negative decision on this application won’t affect the application in process.

A positive decision on broad grounds would be interesting – it would remand the decision to CIC after having invalidated this section of IRPA.  Thus, it would seem that the visa office would have to issue the PR visa (and in fairly short order, since all other criteria were satisfied.)  As I have mentioned before, there is a certain level of notoriety with a successful decision.  I’d have to expect an affirmative decision in this case on broad grounds would be exactly that sort of notorious decision.

Over the next few weeks I’ll see what I can do to capture more information about some of the arguments presented and the rationale used.

March 30: Respondent’s deadline.  I expect them to respond and disagree with our position.  I give a small chance to them assenting to the first points and disagreeing with the latter few points.  If they do the latter, it would be tactical – assenting on the first few points could lead to a decision in which the judge remands the case back to CIC based just upon the written pleadings (and thus side-stepping the Constitutional and Charter arguments.)  I’m not familiar enough with Canadian Jurisprudence to know if this is even a reasonable possibility.