Publication

“The Enforcement of the Canada Health Act” (1996) 41 McGill Law Journal 461-508.

Abstract

The commitment to comprehensive and universal health care, as reflected in the Canada Health Act (CHA), is often regarded as a defining characteristic of our country. Today, Medicare in Canada faces a number of challenges which pose a serious threat to its survival. Overlooked in the political debate about the future of Medicare has been the potential to achieve social justice through the existing statutory framework of the Act. The author examines whether the basic criteria laid down in the CHA are capable of giving rise to legal liability and proposes a legal strategy for enforcing the terms of the Act. To this end, the feasibility of a legal claim against both federal and provincial governments is examined in turn. The author discusses the many hurdles that must be overcome in order for an individual to successfully bring a claim against the government. The author concludes that the CHA can function as both a political and a legal document. In terms of legally enforcing the CHA’s criteria, liability is likely to be restricted to the federal government, since the Act is probably not enforceable against the provinces. A successful claim would have the effect of inducing greater vigilance with respect to meeting the criteria of the CHA. Ultimately, however, it is argued that regardless of whether an individual legal claim is successful, it is the political value of litigation that could make a challenge worthwhile. The result of such litigation would be to raise public awareness of the challenges facing Medicare and, thus, lead to political change. In this way, the CHA can serve a dual purpose and prove to be an effective tool for ensuring the integrity of the Medicare system.