Court File No.: 97-CV-126042 ONTARIO COURT OF JUSTICE (GENERAL DIVISION) B E T W E E N : Raja Jawad Irshad by his Litigation Guardian Mohammad Irshad, Marie Antoinette Tudor, Sergio Bodington by his Litigation Guardian Marie Antoinette Tudor, Leandra Bodington by her Litigation Guardian Marie Antoinette Tudor, Robert Lee Melvin, Gnei Assan, Nagulamikai Karthigesu, Gabriella Simon and Anna Dobrescu Applicants - and - Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Health of Ontario and The Attorney General for Ontario Respondents APPLICANTS’ FACTUM PART I - NATURE OF THE APPLICATION 1. The Applicants challenge the constitutionality of certain changes to the Ontario Health Insurance Plan (“OHIP”) eligibility requirements that were effected through amendments to the Health Insurance Act and related regulations in April 1994. The Applicants are individuals who all have demonstrable and substantial connection to Ontario, who are all lawfully entitled to remain in Ontario, and who all make their homes in and are ordinarily resident in Ontario. The Applicants have all been denied the benefit of OHIP coverage that is available to most other persons who are ordinarily resident in the province at times when they required emergency or ongoing medical treatment and/or health care. At its heart, this case is concerned with whether vulnerable and disadvantaged members of Ontario society have the right to receive equal benefit of publicly funded health care services, or whether they must attempt to survive on such limited health care services that they can pay for by themselves or obtain through charity. Notice of Application, Application Record (“Record”), Vol. 1, Tab 1 2. Five of the Applicants incurred significant costs for necessary physician’s services and or hospital care as a result of the denial of OHIP benefits to them. To date, five of the Applicants remain ineligible for the benefit of OHIP and, accordingly, are still being denied appropriate health care. Affidavits of Melvin, Assan, Karthigesu, Simon, Dobrescu, Irshad and Tudor, Record, Vol. 1, Tabs 1, 3, 4, 6, 8, 9, 12

3. The Applicants assert that the impugned legislation violates section 15 of the

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Canadian Charter of Rights and Freedoms and that such violation is not justifiable in a free and democratic society. Notice of Application, Record, Vol. 1, Tab 1 PART II - THE FACTS HEALTH CARE IN ONTARIO PUBLICLY FUNDED HEALTH CARE IN ONTARIO: ONTARIO HEALTH INSURANCE PLAN (“OHIP”)

4. OHIP was created by the Ontario legislature and is continued under the Health Insurance Act. The stipulated purpose of OHIP is to provide “insurance against the costs of insured services on a non-profit basis on uniform terms and conditions available to all residents of Ontario”. (emphasis added) Health Insurance Act, R.S.O. 1990, c. H.6, s. 10 (“Health Insurance Act”) 5. In order to be eligible for the benefit of OHIP coverage an individual must be a “resident of Ontario”. Health Insurance Act, ibid. ss. 1, 10 6. “Insured services” covered by OHIP are provided without charge or premiums to the insured person and without any reference to the pre-existing nature of the insured person’s medical condition or the cause of the condition. The kinds of insured services provided by OHIP are summarized by the Respondent as follows: medically necessary physician’s services; most in-patient and out-patient services of public hospitals, including the provision

of drugs for in-patient and out-patient use in hospital; partial funding for chiropractic, osteopathic, optometric and podiatry services; physiotherapy benefits provided in prescribed facilities; limited payment for emergency physician and hospital services outside of Canada; some ambulance services; and some home care services. Affidavit of Jacqueline Heath, para 9 [“Heath Affidavit”], Record, Vol. **, Tab ** Cross-Examination of Health, p.9, l.13-l.25; p.12, l.21-p.13, l.24, Record, Vol. **, Tab ** OHIP Eligibility Prior to April 1994: Before the Impugned Amendments 7. Prior to the enactment of the impugned amendments, in order to be eligible for the benefit of OHIP coverage, an individual had to satisfy the broad definition of resident that was set out in the Health Insurance Act. That definition was as follows: “resident” means a person who is legally entitled to remain in Canada and who

makes his or her home and is ordinarily present in Ontario, but does not include a tourist, a transient or a visitor to Ontario, and the verb has a corresponding meaning.

Health Insurance Act, supra, s.1

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8. Prior to 1994, there was no statutory waiting period that an individual had to endure prior to receiving the benefit of OHIP coverage. If an individual was eligible under the broad definition of resident, he or she was deemed to be an “insured person” and OHIP coverage commenced immediately. Health Insurance Act, ibid. 9. Further, prior to the enactment of the impugned amendments, a “dependant” of an insured person was automatically entitled to the benefit of OHIP coverage. The Health Insurance Act provided in section 11(2) that “[e]very dependant of an insured person is an insured person”. “Dependant” was defined in the regulation as including a child under eighteen years of age. Health Insurance Act, ibid. s. 11(2) O. Reg. 552, R.R.O. 1990, s.1 OHIP Eligibility Post-April 1994: the Impugned Statutory Scheme 10. In April 1994, the Respondents amended the eligibility requirements for OHIP benefits. These amendments were effected through sections 68 and 70 of the Budget Measures Act and through Ontario Regulations 490/94 and 491/94. Budget Measures Act, S. O. 1990, c.17 O. Reg. 490/94 amending O. Reg. 552 R.R.O. 1990 O. Reg. 491/94 amending O. Reg. 552, R.R.O. 1990 (“O. Reg. 491/94”) 11. As a result of the amendments, the requirements for OHIP eligibility were altered significantly. Of particular relevance to this Application: A three month waiting period during which no OHIP benefits are provided was

imposed on all new “residents”, subject to certain exclusions. The definition of “resident” in the Health Insurance Act was repealed. “Resident”

was re-defined in the regulation much more narrowly, as discussed below. Automatic OHIP coverage for dependents of certain categories of insured persons

was repealed. 12. The changes to OHIP eligibility were put in place to achieve savings and were prompted by the government-wide Budget Measures Control Plan which required “each area of government and every Ministry to find ways to save money”. The Ministry of Health chose, it is submitted, to save money by amending the requirements for OHIP eligibility in a manner that placed a disproportionate and highly inequitable burden on new immigrants, disabled persons, pregnant women, and children. The Applicants acknowledge that the Ministry of Health has introduced certain reductions in the scope of discretionary services for all residents of Ontario. However, within the class of people who are lawfully entitled to remain in Ontario and who make their homes in Ontario, only new immigrants, and particularly, new immigrants with disabilities face an absolute denial of the benefit of OHIP coverage, with no opportunity to have their entitlement reviewed against the facts of their situation. For new immigrants, the bar lasts a minimum of three months. For persons whose immigration processing is delayed for reasons relating to disability, the denial of

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OHIP coverage may persist for years. Among those barred from coverage, the impact of the bar is more adverse for pregnant women, children, and individuals with disabilities. Cross-Examination of Heath, p. 4, l.21- p. 6, l. 2, Record, Vol. **, Tab ** (a) Three Month Waiting Period 13. Subsection 3(3) of the amended regulation provides for a three-month waiting period, subject to exemptions stipulated in subsection 3(4): 3(3) A resident who makes an application under subsection (1) shall only be enrolled as an

insured person three months after the day the person becomes a resident. (4) The three-month waiting period referred to in subsection (3) does not apply to the following

persons who are residents and who apply to become insured persons: 1. A child under the age of 16 who is adopted by an insured person. 2. A newborn born in Ontario to an insured person. 3. A person who satisfies the General Manager that he or she has been

resident in Ontario for at least three months at the time of his or her application to become an insured person.

4. A member of the Canadian Forces who was in insured person

immediately before becoming a member and is discharged from the Canadian Forces.

5. A member of the Royal Canadian Mounted Police who had been

appointed to a rank therein and who was an insured person immediately before becoming a member and is discharged.

6. A Canadian diplomat who returns to Ontario after a posting to a place

outside Canada and who was an insured person immediately before the posting.

7. The spouse, or dependant child under 19 years of age, of a Canadian

diplomat referred to in paragraph 6 who was an insured person immediately before the posting of the Canadian diplomat.

8. An inmate at a penitentiary as defined in the Corrections and Conditional

Release Act (Canada) who is released. 9. An inmate at a correctional institution established or designated under

Part II of the Ministry of Correctional Services Act who is released. 10. A person who, i. takes up residence in Ontario directly from elsewhere in Canada

where the person was insured under a government health plan or a hospital insurance plan, and

ii. upon taking up residence in Ontario, becomes a resident of an

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approved charitable home for the aged under the Charitable Institutions Act, a home under the Homes for the Aged and Rest Homes Act or a nursing home under the Nursing Homes Act.

11. A Convention refugee as defined in the Immigration Act (Canada). 12. A person who has made a claim to be a Convention refugee under the

Immigration Act (Canada) and in respect of whom, i. a senior immigration officer has determined that the person is

eligible to have his or her claim determined by the Refugee Division, and

ii. a removal order, as defined in the Immigration Act (Canada),

has not been executed. 13. A person granted a Minister’s permit under section 37 of the Immigration

Act (Canada) which indicates on its face that the person is a member of an inadmissible class designated as case type 86, 87, 88 or 89 or, if the permit is issued for the purpose of an adoption by an insured person, as case typed 80.

14. A person who is present in Ontario by virtue of an employment

authorization issued under the Caribbean Commonwealth and Mexican Seasonal Agricultural Workers Programme administered by the federal Department of Citizenship and Immigration.

15. A pregnant woman who became pregnant before April 1, 1994 and who

applied to become an insured person during the course of that pregnancy. 16. A pregnant woman who, i. has submitted an application for landing under the Immigration

Act (Canada) and has not yet been granted landing, ii. became pregnant before April 1, 1994, and applied to become

an insured person during the course of that pregnancy, and iii. has been confirmed by the federal Department of Citizenship

and Immigration as having satisfied, A. all the medical requirements for landing, or B. all the medical requirements for landing except for the

requirement to submit to an x-ray. O. Reg. 491/94, s.3(3) and s.3(4) amending O. Reg. 552, R.R.O. 1990 14. In practice, the application of the three month waiting period by the Ministry of Health is subject to exceptions and qualifications that are not set out in the regulation. As a result (as detailed in paragraph 20 below), the only group against whom the three month waiting period is

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rigidly applied is new immigrants. Cross-Examination of Heath, p.145, l.6-l.11; p.147, l.19-l.25; p.186, l.24-p.187, l.5; p.191, l.15-p.194,

l.2; p.199, l.4-l.8, Record, Vol. **, Tab **

Respondents’ Stated Purpose for the Three Month Waiting Period 15. The Respondents’ stated purpose in introducing the three month waiting period is threefold: to prevent people from coming into Ontario just to receive medical care, without any

real intention of living in Ontario (“deterrent objective”); to ensure consistency of coverage among all new arrivals to Ontario; and to achieve cost savings. Heath Affidavit, paras 14, 46, 47, Record, Vol. **, Tab ** Cross-Examination of Heath, p.157, l.5 - l.23; p. 177, l.22 - p. 178, l.9; p. 179, l.5 - l.8, Record, Vol. **, Tab **

16. The impugned amendment does not satisfy any of these stated purposes. Failure to Establish a Need for Deterrent Objective 17. The Manager of Registration, Planning and Verification of OHIP, Jacqueline Heath (“Heath”), baldly asserted that the three month waiting period acts as a deterrent to individuals who would otherwise come to Ontario for the purpose of receiving medical care without any real intention of living in Ontario. There is no evidence, however, there has ever been an influx of persons into Ontario just to receive medical care. Further, there is no evidence to substantiate the veracity of Heath’s assertion that the three month waiting period acts as a deterrent to such individuals. Cross-Examination of Heath, p.165, l.1-l.12, Record, Vol. **, Tab ** 18. An individual can apply for OHIP the day he or she arrives in Ontario. The OHIP applicant is required to show documentation that establishes that he or she is a resident of Ontario. The determination that the applicant is going to have a substantial connection to the province is made by OHIP on the basis of the information provided on the day the individual applies. Absent any irregularities with the documentation submitted on the date of application, three months later the health card is automatically sent out in the mail. Neither OHIP nor any other representative of the Respondents take any steps to ensure that the applicant is still living in Ontario or has, in fact, established a substantial connection to the province when the card is automatically sent out. Cross-Examination of Heath, p.161, l.2-p.163, l.17 19. Even if the Respondents submitted evidence to substantiate the alleged need for deterrence (which they have not), the Respondents admit that they have not considered alternative means to satisfy this need. In particular, the Respondents have not considered whether making retroactive payment to those “residents” who can substantiate that they were ordinarily resident in Ontario during the three month waiting period, and that they continue to be ordinarily resident in Ontario subsequently, for expenses incurred for insured services during that period, would be an

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adequate deterrent while inflicting less hardship. Cross-Examination of Heath, p.171, l.1 - p.172, l.9, Record, Vol. **, Tab ** Failure to Create Consistency Among All New Arrivals to Ontario 20. The three month waiting period does not create consistency among all new arrivals to Ontario. In particular: Ontario has negotiated an inter-provincial eligibility and portability agreement which

ensures that individuals coming to Ontario from another province will receive the benefit of public health care provided by their former province of residence until they are covered by OHIP. The waiting period for OHIP coverage for these individuals is a maximum of three months and may be as short as two months plus one day.

Residents who are leaving Ontario for an extended period of time and who are intending to return to Ontario may apply to the Ministry for an exemption from the three month waiting period that could be imposed upon their return. Such exemptions are granted at the discretion of the Ministry in accordance with a long-standing policy.

There is no existing discretion within the Ministry to exempt new immigrants from the three month waiting period. The only group upon which a mandatory three month wait is imposed without any discretion or guarantee of alternative coverage is the new registrants from out-of-country, that is, new immigrants.

Cross-Examination of Heath, p. 145, l. 6- l. 11; p.147, l.19 - l. 25; p.156, l.21 - p.157, l.2; p.186, l.24 - p.187, l.5; p.191, l.15 - p.194, l. 2; p.199, l.4 - l.8, Record, Vol. **, Tab **

Ministry of Health News Release dated 31 March 1994 being Exhibit “E” to Heath Affidavit, Record, Vol. **, Tab **

Ministry of Health Backgrounder at pp. 1, 2 being Exhibit “H” to Heath Affidavit, Record, Vol. **, Tab **

Failure to Achieve Cost Savings 21. Although cost saving was not specifically identified in the Respondents’ filed evidence as an intended purpose for implementing the three month waiting period, the Respondents ultimately took the position on cross-examination that the primary purpose of the three month waiting period “were the fiscal realities and the need to save money”. Indeed, the Respondents stated that “the overall financial atmosphere of constraint, expenditure reduction, was the main driving force [behind the three month waiting period]”. Heath Affidavit, para 47, Record, Vol. **, Tab ** Cross-Examination of Heath, p. 177, l.22 - p.178, l.9; p.179, l.5 - l.8, Record, Vol. **, Tab ** 22. Heath admitted that one cannot calculate the cost savings (if any) from the alleged deterrent feature of the waiting period. Moreover, as acknowledged by the Respondents, the three month waiting period may be more costly to the system in that persons who require insured services during this period will likely delay getting medical treatment until after the waiting period expires. As a result of waiting, their condition may worsen and, ultimately, the cost for treatment and the expense to the system will be greater. The Respondents admit that they have not done any studies to

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determine whether the three month waiting period, in fact, resulted in any savings or whether claims increased because individuals waited three months to obtain health care and, as a result, their conditions worsened. Cross-Examination of Heath, p.180, l.1 - p.182, l.1, Record, Vol. **, Tab ** 23. The only evidence relating to savings in relation to the three month waiting period is a 1993 projection of the then anticipated cost savings flowing from the impugned amendments. In 1993 the Respondents projected a saving equivalent to 0.10% of the then Ontario health budget as a result of the three month waiting period. The Respondents admit that any savings that might be achieved through the three month waiting period, would be achieved as a result of not providing the benefit of OHIP coverage to persons who are in emergency medical situations and cannot postpone treatment, and by not providing the benefit of OHIP coverage for people to go the doctor when they have a non-emergency sickness. Cross-Examination of Heath, p.180, l.14 - l.19; p.181, l.14 - p.182, l.1, Record, Vol. **, Tab ** Heath Affidavit, para 17, Record, Vol. **, Tab ** Three Month Waiting Period Violates the Charter 24. The application of the three-month waiting period denies equal protection and benefit of the law to new immigrants, who are the only group against whom the full three month waiting period is rigidly applied. In addition, among persons affected by the three month waiting period, pregnant women, children, and individuals with disabilities are more adversely affected than others. As a result of this amendment, as outlined below, Applicants Assan, Karthigesu, Simon, Dobrescu, Tudor, Sergio Bodington (“Sergio”) and Leandra Bodington (“Leandra”) have been or continue to be denied the benefit of OHIP coverage. (b) Significantly Narrowed Definition of Resident 25. The definition of “resident” in the Health Insurance Act (set out in paragraph 7 of this factum) was repealed. “Resident” was re-defined in the impugned regulation to encompass only specified groups among individuals who are ordinarily resident in Ontario. Heath described this definition as encompassing only “certain citizenship groups”. Cross-Examination of Heath, p.199, l.21 - l.25, Record, Vol. **, Tab ** 26. The new definition of “resident” provides as follows: 1.1(1)For the purposes of the Act, “resident” means an individual, (a) who is present in Ontario by virtue of an employment authorization issued under the

Caribbean Commonwealth and Mexican Seasonal Agricultural Workers Programme administered by the federal Department of Citizenship and Immigration; or

(b) who is ordinarily resident in Ontario and who is one of the following: 1. A Canadian citizen or a landed immigrant under the Immigration Act (Canada). 2. A person who is registered as an Indian under the Indian Act (Canada). 3. A convention refugee as defined in the Immigration Act (Canada).

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4. A person who has submitted an application for landing under the Immigration Act

(Canada), who has not yet been granted landing and who has been confirmed by the federal Department of Citizenship and Immigration as having satisfied the medical requirements for landing.

5. A person who has made a claim to be a Convention refugee under the Immigration

Act (Canada) and in respect of whom, i. a senior immigration officer has determined that the person is eligible to

have his or her claim determined by the Refugee Division, and ii. a removal order, as defined in the Immigration Act (Canada), has not

been executed. 6. A person who has finalized a contract of employment or an agreement of

employment with a Canadian employer situated in Ontario and who, at the time the person makes his or her application to become an insured person, holds an employment authorization under the Immigration Act (Canada) which,

i. names the Canadian employer, ii. states the person’s prospective occupation, and iii. has been issued for a period of at least six months. 7. The spouse or dependant under the age of 19 years of a person referred to in

paragraph 6 if the Canadian employer provides the General Manager with written confirmation of the employer’s intention to employ the person referred to in paragraph 6 for a period of three continuous years.

8. A member of the clergy of any religious denomination who has finalized an agreement of

employment to minister on a full-time basis to a religious congregation in Ontario for a period of not less than six consecutive months and whose duties will consist mainly of preaching doctrine, presiding at liturgical functions and spiritual counselling.

9. The spouse and dependant children under the age of 19 years of a member of the clergy

referred to in paragraph 8 if the religious congregation provides the General Manager with written confirmation that it intends to employ the member for a period of at least three consecutive years.

10. A person granted a minister’s permit under section 37 of the Immigration Act (Canada)

which indicates on its face that the person is a member of an inadmissible class designated as case type 86, 87, 88 or 89 or , if the permit is issued for the purpose of an adoption by an insured person, as case type 80.

11. A person granted an employment authorization under the Live-in Care Givers in Canada

Programme or the Foreign Domestic Movement administered by the federal Department of Citizenship and Immigration.

1.1(2) For the purposes of section 1.1(1), a person is ordinarily resident only if:

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(a) in the case of an insured person or a person who comes to Ontario from another Province or territory in which that person was insured by the provincial or territorial health insurance authority, the person,

(i) makes his permanent and principal home in Ontario; and, (ii) is present in Ontario for at least 183 days in any 12 month period; and (b) in the case of a person who is applying to be an insured person for the first time or who is

establishing his or her entitlement after being uninsured for a period of time, other than a person who comes to Ontario from another province or territory in which that person was insured by the provincial or territorial health insurance authority, the person,

(i) intends to make his permanent and principal home in Ontario; and, (ii) is present in Ontario for (A) at least 183 days in the 12 month period following the application and (B) at least 153 days of the 183 days immediately following the application. O. Reg. 490/94 amending O. Reg. 552, R.R.O. 1990 27. Thus in order to satisfy the new definition of resident, an individual must be resident in Ontario and must fall within one of the 11 categories listed in section 1.1(1)(b) and satisfy the definition of “ordinarily resident” as set out in section 1.1(2). As a result of this categorical approach to defining “resident” and, in particular, as a result of 1.1(1)(b)4 and 1.1(1)(b)10, new immigrants who are “ordinarily resident” in Ontario are required to achieve a particular immigration status that is connected to their medical fitness prior to being granted “resident” status for the purpose of OHIP eligibility. Medical Requirements for Landing: s.1.1(1)(b)4 28. Section 1.1(1)(b)4 of the amended regulation requires new immigrants who are “ordinarily resident in Ontario” to have satisfied the “medical requirements for landing” prior to being granted “resident” status. O. Reg. 490/94 amending O. Reg. 552, R.R.O. 1990 Minister’s Permits: s.1.1(1)(b)10 29. Section 1.1(1)(b)10 of the amended regulation stipulates certain case types of Minister’s Permit holders can satisfy the definition of resident. This section reads: 1.1(1) For the purposes of the Act, “resident” means an individual, . . .

(b) who is ordinarily resident in Ontario and who is one of the following: . . . 10 A person granted a minister’s permit under section 37

of the Immigration Act (Canada) which indicates on its face that the person is a member of an inadmissible class designated as case type 86, 87, 88 or 89 or, if the permit is issued for the purpose of adoption by an insured person, as case type 80.

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This section requires some additional explanation, as follows. O. Reg. 490/94 amending O. Reg. 552, R.R.O. 1990 30. A Minister’s Permit is a document issued by Immigration Canada, in its discretion, to an individual and, by virtue of its issuance, entitles that individual to legally come into or remain in Canada. Heath Affidavit, para 36, Record, Vol. **, Tab ** 31. At the time the impugned amendments were enacted there were eight case type codes of Minister’s Permits. They fell into two general classifications, namely early admission cases and visitor cases. Early admission allowed immigrants to come to Canada prior to satisfying all of the requirements for permanent residence. The case type codes in early admission cases were: Case Type 89 - Member of Family Class; Case Type 88 - Convention Refugee, Member of Designated Class; Case Type 87 - National Interest (entrepreneur, self-employed, urgent labour market need); Case Type 86 - Other, N.E.S. The case type codes in visitor cases were: Case Type 85 - Medical Treatment; Case Type 84 - Student; Case Type 81 - Worker; Case Type 80 - Inadmissible Person, N.E.S. Immigration Canada Manual - Chapter 12 “Minister’s Permits” at p.8-9 being Exhibit “R” to Heath Affidavit, Record, Vol. **, Tab ** Heath Affidavit, paras 38, 39, Record, Vol. **, Tab ** 32. Before the impugned amendments were introduced in 1994, early admission case types (codes 86, 87, 88 and 89) were covered by OHIP. By way of contrast, visitor case types (codes 80, 81, 84 and 85) were never covered by OHIP, except for case type 80 permits issued for the purpose of adoption by an insured person. Heath Affidavit, paras 37, 38, Record, Vol. **, Tab ** 33. It is undisputed that, in relation to Minister’s Permit holders, the Respondents’ intention in amending the OHIP eligibility statutory scheme was to keep existing coverage for Minister’s Permit holders intact. None of the savings sought to be achieved through the amendments were to be at the expense of Minister’s Permit holders. In fact, not only were non-visitor Minister’s Permit holders to be deemed “residents”, but also they were not to be subjected to the three month waiting period. Cross-Examination of Heath, p. 218, l.15 - l. 23; p. 220, l.14 - l.20; p.221, l.3 - l.15, Record, Vol. **, Tab **

Ministry of Health Backgrounder at p.4 being Exhibit “F” to Heath Affidavit, Record, Vol. **, Tab **

Ministry of Health Document: “Facts About Ontario Health Coverage” at p. 2 being Exhibit “G” to Heath Affidavit, Record, Vol. **, Tab **

O. Reg. 552, R.R.O., as amended, s.1.1(1)(b)10 and s.3(4)13 34. On 1 May 1995, more than one year after the Respondents amended the OHIP eligibility requirements, Immigration Canada introduced five new case types for Minister’s Permit

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holders. These “new” case types bear the general classification “ ‘Refused’ Applicant for Permanent Resident”. The case types under this general classification are: Case Type 90 - Medical Inadmissibility - Other, NES; Case Type 91 - Medical Inadmissibility - National Interest (entrepreneur, self-employed, urgent labour market need); Case Type 92 - Medical Inadmissibility - Member of Family Class; Case Type 93 - Criminal Inadmissibility - Other, NES; Case Type 94 - Criminal Inadmissibility - National Interest (entrepreneur, self-employed, urgent labour market need) and Case Type 95 - Criminal Inadmissibility - Member of Family Class.

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Heath Affidavit, para 39, Record, Vol. **, Tab ** Immigration Canada Manual - Chapter 12 “Minister’s Permits” being Exhibit “R” to Heath Affidavit, Record, Vol. **, Tab **

35. Prior to the federal amendments of the case type codes in 1995, no “special” case type of Minister’s Permits existed for those individuals who were not able to satisfy the medical requirements for gaining landed status. As a result, such individuals were subsumed within case types 86-89 of the then existing scheme, without differentiation. The Respondents agree, for example, that prior to the creation of the new case types in 1995, someone now classified as a case type 92 (medical inadmissibility-member of family class) may well have been classified as a case type 89 (member of family class). As such, that individual would have been eligible for the benefit of OHIP coverage even under the impugned definition. Cross-Examination of Heath, p.215, l.16 - p.216, l. 5; p. 217, l.8 - p.218, l.5; p. 220, l.14 - l.20; p.232,

l.14 - l.19, Record, Vol. **, Tab **

36. Many of the individuals who hold what are now known as Minister’s Permits case type 92, are ordinarily resident in Ontario for years and have a substantial connection and a significant degree of permanence in Ontario. Indeed, Heath provided an example of people who have been in Ontario on Minister’s Permits case type 92 for nine years. Cross-Examination of Heath, p. 227, l.16 - p.228, l.14, Record, Vol. **, Tab ** 37. The Respondents did not consider coverage and cost issues associated with individuals who would be issued Minister’s Permits and who were medically inadmissible for landing when the impugned changes to the definition of resident were formulated. In fact, as stated by Heath, “it was just a non-issue”. Cross-Examination of Heath, p. 227, l.6 - l.9, Record, Vol. **, Tab ** 38. The Respondents did not further amend the legislative scheme governing OHIP eligibility upon the creation of the new case codes by the federal government in May 1995, despite the fact that the effect of the amendment to the federal scheme was to further restrict eligibility for OHIP coverage for individuals ordinarily resident in Ontario. In effect, the Ministry of Health delegated its power to determine OHIP eligibility to the federal government. Respondents’ Stated Purpose of the Impugned Definition 39. In re-defining “resident” the Respondents state that their intended purpose was to

remove the benefit of OHIP coverage from some “temporary” residents and to “put more emphasis on people who had a certain degree of permanency about being a resident of the province”. As the Minister of Health made very clear at the time this

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amendment was introduced, the amendment was intended to effect “most people who arrive in Ontario but do not plan to live here permanently” because “[m]aintaining the best possible health care for Ontarians remains our priority and our commitment”. The Minister of Health identified foreign students and most foreign workers and their dependants as individuals who would be effected by this amendment. In addition, it was intended that convention refugee claimants and their dependents would be transferred to federal responsibility. Cross-Examination of Heath, p.201, l.3 - l. 14, Record, Vol. **, Tab **

Heath Affidavit, paras 16, 28, Record, Vol. **, Tab ** Statement by Honourable Ruth Grier, 31 March 1994 being Exhibit “D” to Heath Affidavit, Record, Vol. **, Tab **

40. The Applicants do not challenge the exclusion of foreign students or the exclusion of “most” foreign workers and their dependants from the benefit of OHIP coverage. The Applicants do not challenge the transfer of convention refugee claimants and their dependants to federal responsibility. In terms of the narrowed definition of “resident”, the Applicants challenge the exclusion of individuals who have a “significant degree of permanence” in Ontario but who are required to bring themselves within either section 1.1(1)(b)4 or 1.1(1)(b)10 of the amended regulation because they are new immigrants, and those individuals who are unable to do so because they suffer a disability. Failure to Tailor the Amendment to Ensure that “Residents” have a “Significant Degree of Permanence in Ontario” 41. In determining which temporary residents to exclude from coverage the Respondents considered “economic factors”. Despite their stated intention to focus on degree of permanency in Ontario in determining eligibility, the Respondents decided to cover certain temporary residents and their families who the Respondents acknowledge do not have a significant degree of permanence in Ontario or Canada. Through the impugned amendments, the Respondents attempt to use the benefit of OHIP coverage as an enticement for foreign business people to come to Ontario, even if only

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temporarily. In re-defining “resident” for the purposes of determining eligibility for the benefit of OHIP coverage, Respondents state that: ...there’s a degree of permanence looked at in some of the decisions that were made,

but there were also some very clear decisions made to give coverage to people who we knew were only going to be here temporarily and for economic reasons the government appears to have made those decisions... Based on the government’s decisions to providing [sic] coverage to certain individuals who are in the working category who are expected to bring far more to the province than basically I expect that they would utilize, that there were reasons economically for attracting those people into the province and creating jobs and so on, that it’s certainly true that in certain circumstances those people will get coverage, whereas Mr. Irshad’s son [a nine year old child with cerebral palsy whose father is a Canadian citizen] does not. [emphasis added]

Cross-Examination of Heath, p. 50, l.22 - p. 51, l. 16; p.202, l.23-p.203, l.5, Record, Vol. **, Tab **

42. In addition to the foreign business people temporarily resident in Ontario, and their families, the Respondents included clergy persons and their families in the definition of “resident” who, it is acknowledged, do not have any degree of permanence in Ontario or Canada and who, in fact, who may only be in Ontario for a period as short as six months. Cross-Examination of Heath, p.206, l.17 - p.207, l.19, Record, Vol. **, Tab ** O. Reg. 490/94 amending O. Reg. 552 R.R.O. 1990, s.1.1(1)(b)8 and 1.1(1)(b)9 43. There is no evidence that the Respondents ever intended to restrict OHIP eligibility for Minister’s Permit holders ordinarily resident in Ontario, beyond the exclusion for visitor case types (which exclusion pre-dates the 1994 amendments).

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Failure to Establish Actual Savings Attributable to the Exclusion of Persons Who Have Not Passed the Medical Requirements for Landing and/or Minister’s Permit Holders

44. The Respondents assert that the impugned definition of “resident”, like all of the impugned amendments, was introduced to achieve savings. There is no evidence, however, as to the actual savings achieved as a result of the narrowed definition of “resident”. In particular, there is no evidence of the actual savings achieved as a result of the exclusion of Minister’s Permit holders case type 92. Indeed, the Ministry of Health has never conducted a study to determine the financial cost of providing OHIP to such individuals, nor has it ever conducted a study to determine how many holders of Minister’s Permits case type 92 are ordinarily resident in Ontario, ultimately become landed, or have been denied the benefit of OHIP coverage since April 1994. Further, there is no evidence of actual savings achieved as a result of the exclusion of other persons who are legally entitled to remain in Ontario but who have not been granted landed status because of a disability. Again, the Respondents do not know how many people in this category have been denied the benefit of OHIP coverage since April 1994. Cross-Examination of Heath, p.221, l.16 - p.222, l.8; p.227, l.10 - l.15; p.238, l.22 - l.25, Record, Vol. **, Tab **

45. The only evidence relating to savings in relation to the narrowed definition of “resident” is a 1993 projection of the then anticipated cost savings flowing from the impugned amendments. In 1993 the Respondents projected a saving equivalent to 0.17% of the then Ontario health budget as a result of the narrowed definition of “resident”. Holders of Minister’s Permits case type 92 were not considered in this projection, as no such case type existed in 1993. Persons denied landed status because of a disability, it is submitted, comprise a small percentage of the total persons excluded as a result of the narrowed definition. Heath Affidavit, paras 17, Record, Vol. **, Tab ** Significantly Narrowed Definition of “Resident” Violates the Charter 46. Subsection 1.1(1)(b) denies equal protection and benefit of the law to new immigrants who, while legally entitled to remain in and who are ordinarily resident in Ontario, experience delay in the immigration process or have not been granted landed status because of their inability to satisfy the medical requirements imposed by the federal government in the immigration process and imposed (by reference) by the Respondents in the OHIP eligibility requirements as a result of their disability. Subsections 1.1(1)(b)4 and 10 on their face predictably disadvantage new immigrants with disabilities in themselves or in their families. In addition, among persons excluded from eligibility by subsection 1.1(1)(b), pregnant women, children, and individuals with disabilities are more adversely affected than others. As outlined below, Applicants Irshad, Tudor, Sergio, Leandra, and Melvin have been or continue to be denied the benefit of OHIP coverage. (c) Removal of Automatic Coverage for Certain Categories of Dependants 47. The definition of “dependant” and the provision in the Health Insurance Act stipulating automatic coverage for all dependants were repealed by sections 68(1) and 70 of the Budget Measures Act. Instead of automatic dependent coverage, the amended scheme stipulates: It is the responsibility of every person to establish his or her entitlement to be, or to

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continue to be an insured person. Budget Measures Act, S.O. 1994, c. 17, s.70 and s. 68(1)

Respondents’ Stated Purpose for the Removal of Automatic Coverage for Certain Categories of Dependants

48. The Respondents’ stated purposes for repealing automatic coverage for dependants and requiring each individual to establish his or her own eligibility are summarized as follows: To create an individualized OHIP registration scheme and, consequently, a more

reliable database of registrants. According to the Respondents, such a database requires less frequent updating and provides better safeguards against breach of confidentiality than family based registration, permits better sharing of health information between OHIP and other parts of the health care system, and enhances the ability of the Ministry of Health to undertake long-term planning regarding future health needs and more efficient allocation of health care resources. In addition, an individualized OHIP registration scheme permits better monitoring of payments and speedier payments to health care providers.

To create an individualized OHIP registration scheme to permit greater monitoring

of and control over fraudulent and unintentional misuse of Ontario health insurance by non-residents of Ontario.

Heath Affidavit, para 10, Record, Vol. **, Tab ** Failure to Create an Individualized OHIP Registration Scheme 49. Even under the amended scheme, however, certain classes of dependants and spouses are afforded automatic coverage, without regard to their health status. In particular, the spouse or dependant child of (i) a person who has a finalized contract of employment or an agreement of employment with a Canadian employer in Ontario and (ii) a member of the clergy of any religious denomination who has finalized an agreement of employment to minister in Ontario is automatically covered under the amended scheme. The Respondents have not created an individualized OHIP registration scheme. O. Reg. 490/94 amending O. Reg 552, R.R.O. 1990 Removal of Automatic Coverage from Certain Categories of Dependants Violates the Charter 50. The repeal of the provision that allowed for automatic coverage for minor dependant children denies equal protection and benefit of the law to children, who are thereby treated the same as adults although their needs and abilities are significantly different. Further, the amended scheme retains the benefit of dependant coverage for children of classes described in paragraph 49, above, thereby differentiating adversely against the children of new immigrants. Finally, among children affected by the repeal of dependant coverage, individuals with disabilities are more adversely affected than others. As a result of this amendment, Applicant Irshad was denied and continues to be denied the benefit of OHIP coverage, as outlined below.

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ALTERNATIVES TO PUBLICLY FUNDED HEALTH CARE IN ONTARIO Private Health Insurance 51. The Respondents suggest that the existence of private health insurance excuses the absolute denial of the benefit of OHIP coverage during the three month waiting period for new immigrant entrants to Ontario, and to excluded individuals (who cannot bring themselves within the narrowed definition of “residents”), indefinitely. Heath Affidavit, paras 97-99, Record, Vol. **, Tab ** Ministry of Health Backgrounder at p. 3 being Exhibit “F” to the Heath Affidavit, Record,

Vol. **, Tab ** Ministry of Health Document: “Facts About Ontario Health Coverage” at p.1-2 being

Exhibit “G” to the Heath Affidavit, Record, Vol. **, Tab ** Ministry of Health Backgrounder at p. 2 being Exhibit “H” to the Heath Affidavit, Record,

Vol. **, Tab ** Ministry of Health Document: “Facts About Ontario Health Coverage” at p.2 being Exhibit

“I” to the Heath Affidavit, Record, Vol. **, Tab **

52. Contrary to the Respondents’ assertions, however, the evidence is clear that private health insurance plans contain significant restrictions as to both availability and coverage. Consequently, benefits afforded through private health insurance plans do not come near to being an equivalent or comparable benefit to OHIP coverage. Indeed, after reviewing numerous policies in detail on cross-examination, Respondents admitted that the private health insurance policies do not provide an equivalent level of protection to OHIP and “depending on the circumstances of the individual and their condition or health, yes, they could provide substantially less”. Cross-Examination of Heath, p. 64, l.17 - l.24; p. 72, l.19 - p.73, l.9; p.76, l.19 - l.24; p.83, l.11- l.15,

Record, Vol. **, Tab ** 53. In particular, the shortfalls of private health insurance relative to the benefit of OHIP coverage include: Private health insurance must be paid for by the individual to be insured, while OHIP

has no premiums. Cross-Examination of Heath, p. 9, l. 13 - l.20 ; p.82, l.21 - p.83, l.10, Record, Vol. **, Tab ** Private health insurance has a monetary limitation on the covered services, while

OHIP has no monetary limitations on any medically necessary physicians’ services. Cross-Examination of Heath, p. 11, l.7 - l.20, Record, Vol. **, Tab ** Private health insurance policies exclude coverage for pre-existing conditions.

Respondents indicate that it might be possible to obtain coverage for some pre-existing conditions but the costs are “exorbitant”. OHIP does not limit coverage for pre-existing conditions. Indeed, Respondents admit that a very large percentage of the OHIP budget is expended on people with pre-existing conditions.

Cross-Examination of Heath, p. 12, l.21 - p. 13, l. 24; p. 26, l. 5 - l.23, Record, Vol. **, Tab ** Private health insurance policies in Ontario generally exclude any and all coverage

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for pregnancy. In 1993 there was one exception in Ontario, the John Ingle policy which, provided only partial coverage for “eligible expenses”. OHIP provides full coverage for all pregnancy-related expenses.

Cross-Examination of Heath, p. 16, l.1 - l.5; p.18, l.20 - p. 19, l.12; p.22, l.8 - l. 24, Record, Vol. **, Tab **

With respect to the sole policy that covered “eligible expenses” related to pregnancy, it excluded coverage for pregnancy if the pregnancy commenced before the effective date of the policy. OHIP provides full coverage for all pregnancy-related expenses for insured persons, regardless of when the pregnancy commenced.

Cross-Examination of Heath, p. 15, l. 18 -l.25; p.18, l.7 - l.19, Record, Vol. **, Tab ** With respect to the sole policy that covered “eligible expenses” related to pregnancy,

it expressly excluded coverage for childbirth, miscarriages or complications instant to pregnancies. OHIP provides full coverage.

Cross-Examination of Heath, p. 22, l.8 - p.23, l.8; p. 24, l.18 - l.22; p.56, l.24 - p.27, l.6, Record, Vol. **, Tab **

OHIP provides coverage for some treatments performed out of the country; there is no evidence that private insurance policies provide this.

Cross-Examination of Heath, p. 29, l. 2 - p. 31, l. 5, Record, Vol. **, Tab ** A standard restriction in private health insurance policies is to exclude non-

emergency medical treatment such as check-ups and elective surgery. OHIP provides coverage for check-ups and much elective surgery (although some elective surgery is excluded). Indeed, Respondents admit that for a great number of people, the only claims they will make to OHIP in a given year is for non-emergency care.

Cross-Examination of Heath, p. 33, l.16 - p.37, l.20; p.55, l.5 - p.56. l.23, Record, Vol. **, Tab **

At least one private health insurance policy excludes all benefits for expenses incurred as a result of ongoing medical or outpatient care and hospitalization without prior approval from the insurance company’s doctor. There is not a similar vetting process within OHIP.

Cross-Examination of Heath, p. 38, l.23- p.39, l. 10, Record, Vol. **, Tab ** At least one private health insurance policy provides coverage for a maximum of 180

days. The insured must return to “home country” before re-applying. OHIP has no such requirement.

Cross-Examination of Heath, p.44, l.22 - p.45, l. 25, Record, Vol. **, Tab ** At least one private health insurance policy excludes coverage for psychiatric care.

OHIP provides this coverage. Cross-Examination of Heath, p.60, l.5 - l.14, Record, Vol. **, Tab ** At least one private health insurance policy does not provide coverage for substance

abuse which includes medication, drugs or alcohol. OHIP does provide coverage for substance abuse. Indeed, Respondents admit that dealing with and funding the

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treatment of substance abuse problems is an important function that OHIP fulfills. Cross-Examination of Heath, p.61, l.6 - l.22, Record, Vol. **, Tab ** Some private health insurance policies will not pay for medical expenses that were

caused by the involvement of the insured in certain kinds of activities. OHIP has no such limit.

Community Health Centres 54. The Respondents assert that “persons who are not visitors who are not covered by OHIP and who are unable to pay may obtain primary medical care at no cost through Community Health Centres”. Heath Affidavit, para 58, Record, Vol. **, Tab ** 55. However, there is no indication in the Respondents’ materials prepared at the time the impugned amendments were brought in that Community Health Centres were being considered as an alternative source of primary care for individuals denied OHIP coverage as a result of the changes. The only government “backgrounder” that refers to Community Health Centres makes it clear that the Respondents had given little thought to the role of Community Health Centres, in that it states that people without health cards can attend at Community Health Centres for “emergency or urgent care”. As a matter of fact, Community Health Centres are not intended to provide emergency or urgent care to anyone. Ministry of Health Backgrounder being Exhibit F to Heath Affidavit, Record, Vol. **, Tab ** Cross-Examination of Heath, p. 106, l. 20 - p.108, l.2, Record, Vol. **, Tab ** 56. The Respondents have made a conscious decision to not generally disseminate information about Community Health Centres, although individual Ministry of Health staff may choose to inform a particular individual of their existence. As stated by Heath on cross-examination: Community Health Centres, you must remember, and the public hospital system, it

provides a safety net, but it’s not something we’re out there promoting that anyone can come into the province and access those services. So you won’t find it widely communicated... We don’t broadcast it from the tree tops.

Indeed, there is no evidence that the Ministry of Health has produced any written information for the public that explains what a Community Health Centre is. The Ministry of Health does not provide anything for Immigration Canada to distribute to new immigrants regarding Community Health Centres. Cross-Examination of Heath, p.111, l.23 - p.112, l.6; p.114, l.6 - l.12; p.124, l.15 - l.20, Record, Vol. **, Tab ** [emphasis added] 57. Community Health Centres provide an inadequate replacement for OHIP coverage. The Respondents, it is submitted, did not consider Community Health Centres to be a reasonable alternative to OHIP coverage and, in fact, they are not. In particular the Community Health Centres are an inadequate replacement for, inter alia, the following reasons: Community Health Centres provide no hospital care, and have no funding to pay for

hospital care.

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Community Health Centres are not equipped or intended to handle any acute

emergency medical conditions. Community Health Centre do not service all regions of the province, and the

Respondents have shelved plans to expand the Community Health Centre system from the current 55 Centres to 100 Centres to provide more adequate coverage.

Community Health Centres have “target populations” (they seek to provide services

to specific, defined segments of society), and can refuse to accept new patients who are not within their target populations.

Community Health Centres can refuse to accept patients because they have reached

their patient capacity. Community Health Centres can have long waiting periods prior to accepting a new

patient. Community Health Centres may require an individual to pay for their services if the

individual does not receive the benefit of OHIP. Community Health Centres do not allow an individual a significant choice of

physicians (as there are only 52 full time equivalent physician positions in all of the Community Health Centres in the province, combined).

Ministry of Health communication about the existence and function of Community

Health Centres has been grossly inadequate. The Respondents make no effort to make new immigrants who are subjected to the three month waiting period aware of the services provided by Community Health Centres, even when those individuals apply for OHIP. Rather, the Respondents inform such people that they should get private insurance.

Individual Community Health Centres are not required to budget for expenses

associated with providing services to uninsured individuals.

Cross-Examination of Heath, p. 91, 1.7-1.9, p.136, l.22 - l.25, Record, Vol. **, Tab ** Cross-Examination of Davey, **, Record, Vol. **, Tab ** Fee for Service Medical Care 58. The Respondents assert that a final alternative to OHIP is for uninsured individuals to pay for their own medical care. However, the Applicants assert that, unless a person is wealthy, this presents significant barriers to health care. Heath provided an illustrative example of such a barrier on cross-examination. She stated: [D]octors basically generally won’t put you on a waiting list or a hospital won’t book

you for surgery unless they first check to ensure that you have either the finances to

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pay for it and are committed to that, or you have an eligible OHIP card, which means generally you don’t even get on a waiting list for a period of time.

Hospitals are only required to provide medical services to uninsured individuals in life threatening circumstances. If the medical circumstance is not life threatening, a hospital is at liberty to turn a non-insured person away, even if the negative health consequences of delayed medical attention are significant. In such circumstances, hospitals do turn people away who need medical attention, but are incapable of paying for it. If hospitals do provide needed medical services, as the circumstances of many of the Applicants in this case make clear, they render an account to the uninsured patient for the services provided, without regard to the emergency nature of the medical treatment. Cross-Examination of Heath, p. 33, l. 4- l.10; p.136, l.4 - l.14; p.137, l.4 - l.7, Record, Vol. **, Tab **

Denial of OHIP Benefits to Applicants 1. Applicant Irshad 59. Raja Jawad Irshad (“Raja Irshad”), now nine years old, emigrated with his mother from Pakistan to join his father Mohammad Irshad (“Mr. Irshad”) in Ontario. Mr. Irshad is a Canadian citizen and has been working in Ontario for approximately 10 years. Raja Irshad’s mother and brother are both permanent residents of Canada. Every member of Raja Irshad’s family, except himself, is an “insured person” under the Health Insurance Act and regulations. Affidavit of Mohammad Irshad, paras 1, 2, 7, Record, Vol. 1, Tab 9

Cross-Examination of Mohammad Irshad, p. 28, l. 11- 19, Record, Vol. **, Tab ** 60. Since 10 February 1996, Applicant Raja Jawad Irshad has made his home and has been ordinarily resident with his family in Ontario. Affidavit of Mohammad Irshad, para 5, Record, Vol. 1, Tab 9 Raja Irshad is Disabled 61. Raja Irshad has cerebral palsy. The disease affects his left side from the shoulder down and his right leg is not functional. Raja Irshad has never walked. He cannot stand. He cannot use the bathroom alone. He cannot dress himself or bathe himself. Prior to obtaining a borrowed wheelchair for Raja Irshad, Mr. Irshad and his wife carried Raja Irshad everywhere he went. The Applicants assert that this constitutes a “physical disability” within the meaning of section 15(1) of the Charter. Affidavit of Mohammad Irshad, paras 3, 13, Record, Vol. 1, Tab 9 Raja Irshad is Denied Equal Protection and Benefit of OHIP and is Disadvantaged as a Result of his Disability, National Origin, Place of Origin and/or Immigration Status

62. Since his arrival in Ontario in February 1996, Raja Irshad has been and continues to be denied the benefit of OHIP coverage. Affidavit of Mohammad Irshad, para 7, Record, Vol. 1, Tab 9 Cross-Examination of Mohammad Irshad, p. 14, l. 24 - p. 15 - l. 2, Record, Vol. **, Tab **

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63. As a new immigrant who has not been granted landed status, in order to be eligible for the benefit of OHIP coverage Raja Irshad must achieve a status that corresponds with either 1.1(1)(b)4 or 1.1(1)(b)10 of the regulation, as well as establishing “ordinary residence” as defined. To date Raja Irshad has failed to satisfy “the medical requirements for landing” (a requirement of subsection 1.1(1)(b)4). He remains in Canada on a Minister’s Permit case type 92 (Medical Inadmissibility-Member of Family Class). The case type 92 Minister’s Permit was created after the impugned amendments were brought in and, accordingly, is not among those specified in subsection 1.1(1)(b)10 of the regulation. If Raja Irshad were not disabled, he would have been able to satisfy one of the requirements in s.1.1(1)(b), as his brother did. He is as yet unable to do so because of his disability, cerebral palsy. It is thus submitted that Raja Irshad is denied equal benefit and protection of OHIP and is disadvantaged as a result of his disability. If Raja Irshad were not a new immigrant who has yet to be granted landed status, his medical fitness would not have been at issue under s.1.1(1)(b) of the regulation. Accordingly, it is submitted that Raja Irshad is denied equal benefit and protection of OHIP and is disadvantaged as a result of his national origin, place of origin and/or immigration status. 64. With respect to the “ordinary residence” requirement, Raja Irshad has, in fact, been ordinarily resident in Ontario for almost two years with his family (including his father, a Canadian citizen who has been ordinarily resident and has worked in Ontario for 10 years). However, because Raja Irshad is disabled, he has not been able to satisfy the other criteria in 1.1(1)(b)4 or 1.1(b)10. Affidavit of Mohammad Irshad, paras 6,7, Record, Vol. 1, Tab 9, Cross-Examination of Mohammad Irshad, p. 25, l. 18 - p. 26, l. 4, Record, Vol. **, Tab ** Exclusion from OHIP Causes More Disadvantage to Raja Irshad than to Others Because of his Age and Disability

65. Raja Irshad requires health care that is covered by OHIP. As do all children under the age of 10, Raja Irshad requires primary health care and the services and treatment of a family doctor. The impact of exclusion from OHIP is more adverse to Raja Irshad as a child under the age of 10 than it would be to an adult, since children under that age require more regular primary health care than do adults. In addition, the impact of exclusion from OHIP is more adverse to Raja Irshad than it would be to a child without a disability. As a child with cerebral palsy, Raja Irshad requires secondary health care and the services and treatment of a specialist. Indeed, the uncontradicted medical evidence is that all children with cerebral palsy require secondary health care. Affidavit of Mohammad Irshad, paras 9, 11, Record, Vol. 1, Tab 9,

Cross-Examination of Carol Birkenheier, R.N., p. 14, l. 18-21; p. 17, l. 2-11, Record, Vol. **, Tab **

Cross-Examination of Dr. Donna Goldenberg M.D., p.21, l. 24 - p. 22, l.1; p. 25, l. 2-5, Record, Vol. **, Tab **

66. The form of secondary health care required by a child with cerebral palsy, such as Raja Irshad, includes ongoing evaluation of his physical disability with intervention to facilitate normal functioning. Increased spasticity in involved muscle groups progressively compromises limb function, unless the child receives ongoing therapy to maintain functional use of the involved limbs.

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Use of physical aids such as splints, walkers and wheelchairs increase ability to function. Many children with cerebral palsy also have seizure disorders which require medication. The child being treated with medication requires monitoring for potential side effects from the medication. It is essential that children with cerebral palsy receive ongoing supportive care from specialists in order to facilitate their physical, emotional and psychosocial development. Affidavit of Donna Goldenberg, M.D., F.R.C.P.(C), para 11, Record, Vol. 1, Tab 14, Affidavit of Carol Birkenheier, R.N., paras 4-6, Record, Vol. 1, Tab 11 67. Mr. Irshad's family doctor, Dr. Mahmood, consented to see Raja Irshad on four occasions, at no cost, when the child has been ill. It is not clear how long this form of charity will continue to be available to Raja Irshad. Affidavit of Mohammad Irshad, para 11, Record, Vol. 1, Tab 9 68. Dr. Mahmood advised Mr. Irshad that Raja Irshad needs to see a specialist in order to assess what type of secondary health care he requires. Dr. Mahmood referred Raja Irshad to a specialist at the neurology clinic at the Hospital for Sick Children. Mr. Irshad attended at the hospital with Raja Irshad. Mr. Irshad was informed that because Raja Irshad was not covered by OHIP, Mr. Irshad would have to pay the costs, personally. The cost of an over-night evaluation of Raja Irshad was $975, which included the expense of the overnight hospital stay. The cost of an evaluation, not including an over-night stay, was $120. Mr. Irshad could not afford either of these amounts. Consequently, Raja Irshad was denied the benefit of an assessment by a specialist, and is denied the benefit of any treatment that specialist would have recommended in the form of secondary health care. Affidavit of Mohammad Irshad, paras 8, 9, 10, Record, Vol. 1, Tab 9 Cross-Examination of Mohammad Irshad, p. 20, l.23 - 23, l. 6, Record, Vol. **, Tab ** No Viable Alternative is Available to Raja Irshad 69. Raja Irshad cannot obtain equivalent benefits to those provided through OHIP by private insurance because he has a pre-existing medical condition. None of the private insurance policies cover pre-existing medical conditions. At the time Raja Irshad was granted a Minister’s Permit, no one informed Mr. Irshad that his son would not be eligible for the benefit of OHIP coverage. Cross-Examination of Heath, p.12, l.21-p.13, l.24; p.26, l.5-l.23, Record, Vol. , Tab Cross-Examination of Mohammad Irshad, p. **, l.**, Record, Vol. , Tab 70. There is no evidence that Raja Irshad could obtain equivalent benefits to those provided through OHIP through a Community Health Centre. Indeed, it is uncontradicted that Community Health Centres do not have funding and do not cover expenses incurred for hospital stays. Thus, a Community Health Centre would not even provide full coverage for the overnight assessment of Raja Irshad by the neurology clinic at the Hospital for Sick Children. 2. Applicants Marie Antoinette Tudor, Sergio Bodington and Leandra Bodington 71. Marie Antoinette Tudor (“Tudor”), the mother of Sergio Bodington (“Sergio”) and Leandra Bodington (“Leandra”), came to Canada in December 1989. Tudor began employment in Ontario as a person sponsored under the Foreign Domestic Program in March 1990. Tudor has

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resided in Ontario and worked in Ontario since that time. Affidavit of Marie Antoinette Tudor, para 2, Record, Vol. 1, Tab 12 72. Sergio and Leandra moved to Ontario in January of 1993 to live with Tudor. They have resided in Ontario since that time. In December 1993, having completed all of the requirements of the Foreign Domestic Program, Tudor applied for permanent resident status for herself and her children. Affidavit of Marie Antoinette Tudor, paras 1-3, Record, Vol. 1, Tab 12 Sergio is Disabled; Tudor and Leandra are Not Disabled 73. Sergio, presently ten years old, has a severe bilateral hearing loss, as a result of which he must use hearing aids. The Applicants assert that this constitutes a “physical disability” within the meaning of section 15(1) of the Charter. Sergio communicates through sign language, lip reading and oral speech. Sergio is making good academic progress at school. He requires no medical treatment or medication for his disability and is a healthy child. Affidavit of Marie Antoinette Tudor, paras 4, 9, 15, Record, Vol. 1, Tab 12 74. Tudor has no disabilities or illnesses. Leandra, presently thirteen years old, has no disabilities or illnesses. Affidavit of Marie Antoinette Tudor, paras 5-6, Record, Vol. 1, Tab 12 Sergio is Discriminated Against as a Result of his Disability, National Origin, Place of Origin and/or Immigration Status; Tudor and Leandra are Discriminated Against on the Basis of Family Status, National Origin, Place of Origin and/or Immigration Status

75. Prior to 1996, Tudor, Sergio and Leandra had OHIP coverage. In or about November 1995, Tudor received notice from the Ministry of Health that she should renew her health card that covered herself, Leandra and Sergio. Tudor attended at the OHIP office in early 1996 and was then told that she and her children were no longer eligible for OHIP. Since that time Tudor, Leandra and Sergio have been and continue to be denied the benefit of OHIP coverage. Affidavit of Marie Antoinette Tudor, para **, Record, Vol. 1, Tab 12 Cross-Examination of Marie Antoinette Tudor, p. 26, l.8 - p. 27, l. 7, Record, Vol. **, Tab ** 76. Both Tudor and Leandra were found medically admissible to Canada in the course of their application for permanent residence. 77. Sergio, however, was found medically inadmissible because of his disability. This finding had two consequences. Firstly, Sergio was unable to satisfy the requirements in section 1.1(1)(b) of the impugned regulation. If Sergio were not disabled, he would have been able to satisfy the requirements set out in s.1.1(1)(b)4 of the regulation. He was unable to do so for over three years because of his disability. It is thus submitted that Sergio is denied equal benefit and protection of OHIP and is disadvantaged as a result of his disability. If Sergio were not a new immigrant who was yet to be granted landed status, his medical fitness would not have been at issue under section 1.1(1)(b) of the regulation. Accordingly, it is submitted that Sergio is denied equal benefit and protection of OHIP and is disadvantaged as a result of his national origin, place of origin and/or immigration status.

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78. The second consequence of the finding that Sergio was medically inadmissible was that his family’s application for permanent resident status was not granted at that time. The family lawfully remained in Ontario pursuant to Tudor’s open employment authorization. Because the family’s application for permanent residence was not granted when Tudor applied to renew OHIP coverage for herself and her children in 1996, they were denied OHIP eligibility. If Tudor and Leandra had not been related to a disabled person (Sergio), they would have satisfied the requirements of s.1.1(1)(b)(4) of the regulation and they would have been eligible for OHIP in 1996. Thus, it is submitted, Tudor and Leandra were denied equal benefit and protection of OHIP and were disadvantaged on the basis of family status. If Tudor and Leandra had not been new immigrants who had yet to be granted landed status, their medical fitness and the medical fitness of their family member Sergio would not have been at issue under the impugned regulation. Accordingly, it is submitted that Tudor and Leandra are denied equal benefit and protection of OHIP and are disadvantaged on the basis of national origin, place of origin and/or immigration status. Affidavit of Marie Antoinette Tudor, paras 7-8, 10-14, Record, Vol. 1, Tab 12 79. Fortunately, Tudor, Leandra and Sergio have all been relatively healthy since 1996 and have not required any emergency medical treatment. However, Tudor, Leandra and Sergio have all been denied the benefit of primary health care as a result of the discriminatory treatment they have experienced flowing from Sergio’s disability and by reason of their national origin, place of origin and/or immigration status. In particular, Tudor, Leandra and Sergio have been denied benefits that would have been covered by OHIP such as routine and preventative medical treatment including annual physical examination. Affidavit of Marie Antoinette Tudor, para 12, Record, Vol. 1, Tab 12 Cross-Examination of Tudor, p. 30, l. 19-25, Record, Vol. **, Tab ** 80. On two occasions Leandra and Sergio had the flu. Tudor had to arrange for a friend’s doctor to see her children. Tudor paid $20 for each visit. Cross-Examination of Tudor, p. 33, l.21 - p.34, l.1, Record, Vol. **, Tab ** Exclusion from OHIP Causes More Disadvantage to Sergio than to Others Because of his Age, Disability

81. The impact of exclusion from OHIP was more adverse to Sergio as a child who, at the time, was under the age of 10 than it would be to an adult, since children under that age require more regular primary health care than do adults. No Viable Alternative is Available to Tudor, Leandra and Sergio 82. Upon learning that she and her family were not eligible for OHIP in early 1996, Tudor inquired into private insurance. Tudor is employed and works two jobs in order to support her family. Tudor is a sole-support parent with a modest income. She is unable to afford private medical coverage for herself and her family. Affidavit of Marie Antoinette Tudor, para 11, Record, Vol. 1, Tab 12 Cross-Examination of Tudor, p. 29, l. 15 - p.30, l. 14, p. 34, l. 8-12, Record, Vol. **, Tab **

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83. No one from the Respondents, including the OHIP office, ever informed Tudor about Community Health Centres. Tudor, through her church, was referred to the Catholic Immigration Centre which, in turn, provided Tudor with the telephone number for a Community Health Centre on Davenport. Tudor telephoned the Centre on numerous occasions, but only reached an answering machine. Eventually, in the spring of 1997, Tudor did get hold of someone at the Centre and was told that “they weren’t taking any patients until October and [Tudor] should call in October to find out”. In addition Tudor called a women’s centre on College Street in Toronto for help; however, she again had difficulty in getting hold of someone to help her. Cross-Examination of Tudor, p. 31, l. 1 - p. 32, l.14, p. 34, l. 8- p.35, l.15, Record, Vol. *, Tab Anticipated Future Eligibility for OHIP 84. Since the commencement of this Application, Tudor has been advised that she and her children have been approved for permanent residence. Sergio, upon submitting further medical evidence, passed his immigration medical. After learning this, in November 1997 Tudor attended at the OHIP office with the requisite documentation to re-apply for coverage. At that time she was advised that she and her children were eligible and that coverage would commence on 18 February 1998, after the three month waiting period expires. Cross-Examination of Tudor, p. 3, l. 4 - p. 8, l.25, Record, Vol. **, Tab ** Answer to Undertakings (Tudor: Undertaking # 3), Record, Vol. , Tab 3. Applicant Melvin 85. Robert Melvin (“Melvin”), now aged 69, moved to Ontario from the United States in 1961. Melvin has made his home and has been ordinarily resident in Ontario since then. He received a Social Insurance card in 1963 and has worked continuously, paid income tax, paid OHIP premiums, and thus contributed to the federal and provincial social security net from 1967 - 1989. Melvin did not take steps to regularize his immigration status until 1992, at which time he had been ordinarily resident in Ontario for 31 years. Melvin is Disabled 86. Melvin suffered a series of strokes in 1986 -87 which resulted in a disability. This disability ended Melvin’s full-time working career in 1989. The Applicants assert that this constitutes a “physical disability” within the meaning of section 15(1) of the Charter. Affidavit of Robert Melvin, paras 2-6, Record, Vol. 1, Tab 1 Melvin Received OHIP Commencing in 1963-64 87. Melvin received the benefit of OHIP coverage commencing in 1963-64 almost continuously until November 1994. In May 1994, approximately two months after the impugned amendments came into effect, Melvin was issued a new Ontario Health Card. Melvin understood that the card was temporary, although he did not know why it was temporary or when it would expire. Melvin continued to see the doctor as usual and the processing of accounts appeared to proceed as usual. Affidavit of Robert Melvin, paras 6, 10, Record, Vol. 1, Tab 1 Cross-Examination of Melvin, p. 10, l. 24 - p. 12, l. 9, Record, Vol. **, Tab ** Melvin is Denied Equal Protection and Benefit of OHIP and is Disadvantaged as a

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Result of his Disability, National Origin, Place of Origin and/or Immigration Status

88. Approximately seven months after he was issued a new Ontario Health Card, on 11 November 1994 Melvin was admitted to hospital after suffering another stroke. Upon his admission to hospital Melvin was advised, for the first time, that his Ontario Health Card was no longer valid and that he was not entitled to receive OHIP coverage for his health care. Affidavit of Robert Melvin, paras 10, 11, Record, Vol. 1, Tab 1 Cross-Examination of Melvin, p. 16, l. 24 - p. 17, l. 8, Record, Vol. **, Tab ** Affidavit of Jacqueline Lewis, M.D., para 4, Record, Vol. 1, Tab 2 89. On that occasion, Melvin remained in hospital until 16 November 1994. His symptoms at that time could not have been ignored and required close follow-up monitoring at a hospital. Failure to provide medical care would have risked a markedly worse outcome involving any number of neurological disabilities or death. Affidavit of Jacqueline Lewis, M.D., paras 4, 5, Record, Vol. 1, Tab 2 Affidavit of Robert Melvin, Application Record, Tab 1, para 11 90. In 1994, Melvin had not been granted landed status (he commenced his application in 1992) and, thus, in order to re-establish his eligibility for OHIP coverage, Melvin was obliged to achieve a status that corresponded with either 1.1(1)4 or 1.1(1)10, as well as establishing “ordinary residence” as defined. Had Melvin not been disabled, he would have been able to satisfy s.1.1(1)(b)(4) promptly. He was unable to do so because of his disability. It is thus submitted that Melvin was denied equal benefit and protection of OHIP and was disadvantaged as a result of his disability. If Melvin were not an immigrant who had yet to be granted landed status, his medical fitness would not have been at issue under section 1.1(1)(b) of the regulation. His 33 years of “ordinary residence” in Ontario were insufficient to qualify him as a “resident” for OHIP purposes. It is submitted that Melvin was therefore denied the benefit and protection of OHIP coverage and was disadvantaged by reason of his national origin, place of origin, and/or immigration status. 91. Melvin has incurred over $12,000.00 in fees for insured services since November, 1994. Melvin has been contacted by the Accounts Department at the hospital for payment of his outstanding account. Melvin cannot afford to pay for the medical services he incurred as a result of his stroke. Exclusion from OHIP Causes More Disadvantage to Melvin than to Others Because of his Disability 85. The impact of exclusion from OHIP has been more adverse to Melvin than it would be to an individual without a disability. 92. Melvin failed to make appointments for ongoing recommended care because he cannot afford to pay. He is at serious risk of sustaining serious disability if he does not receive on-going health care Affidavit of Robert Melvin, paras 14, 17-19, Record, Vol. 1, Tab 1 Affidavit of Jacqueline Lewis, M.D., paras 7, 8, Record, Vol. 1, Tab 2 No Viable Alternative is Available to Melvin

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93. Melvin cannot obtain equivalent benefits to those provided through OHIP by private insurance because he has a pre-existing medical condition. None of the private insurance policies cover pre-existing medical conditions. Indeed, for an individual who has already suffered a stroke, at least one policy expressly excludes coverage for a recurrence of that condition. Private insurance is not a viable or equivalent to the benefit of OHIP coverage for Melvin. Cross-Examination of Heath, p.14, l.9 - p.15, l.17, Record, Vol. **, Tab ** Exhibit “N” to Manning Affidavit, Record, Vol. **, Tab ** 94. Community Health Centres provide primary health care. They do not have the facilities for emergency treatment of stroke victims. The medical care that Melvin required in November 1994 could only have been provided at a hospital. Affidavit of Jacqueline Lewis, M.D., paras 4, 5, Record, Vol. 1, Tab 2 Cross-Examination of Melvin, p. 15, l. 6 - p. 16, l. 10, Record, Vol. **, Tab ** Cross-Examination of Davey, p.39, l.1 - l.6, Record, Vol. **, Tab ** 95. Community Health Centres do not have a fund or any other mechanism to cover expenses incurred for hospitalization; OHIP does cover hospitalization expenses as an insured service. The cost of hospitalization for Melvin during his last stroke was $10,200.00. Exhibit H to the Affidavit of Robert Melvin, Record, Vol. 1, Tab 1-H Anticipated Future OHIP Eligibility 96. In 1992 Melvin applied for landed status on humanitarian and compassionate grounds. That application was pending at the time of this Application and was granted effective 6 November 1997. It is anticipated that, as a result, Melvin will be granted the benefit of OHIP coverage in the future. Affidavit of Robert Melvin, paras 8, 15-16, Record, Vol. 1, Tab 1 Cross-examination of Robert Melvin, Record, Vol. **, Tab ** 4. Applicant Assan 97. Gnei Assan (“Assan”), born in Sri Lanka, arrived in Ontario to join her husband on 18 August 1994. Assan arrived in Ontario as a landed immigrant. Since August 1994 she has made her home and has been ordinarily resident in Ontario. Affidavit of Gnei Assan, paras 2, 4-6, Record, Vol. 1, Tab 3 Assan is Denied Equal Protection and Benefit of OHIP and is Disadvantaged as a Result of her National Origin, Place of Origin and/or Immigration Status

98. Assan applied for OHIP coverage on 20 August 1994, within two days of her arrival in Ontario. She was informed that she would receive her health card in three months. Assan understood that she was covered by OHIP as of 20 August 1994. No one informed Assan, in Colombo or in Ontario, that she would only be eligible for the benefit of OHIP coverage after three months until it was medically necessary for her to be hospitalized on 22 October 1994. Affidavit of Gnei Assan, paras 7, 13, Record, Vol. 1, Tab 3 99. As outlined below, after being admitted to hospital for emergency surgery, Assan

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learned that she did not have the benefit of OHIP coverage until a three month waiting period expired. Unlike new entrants to Ontario from other Canadian provinces, Assan did not have the benefit of an inter-provincial eligibility and portability agreement during this period. Unlike returning Ontarians, Assan did not have the benefit of a discretionary application of the three month waiting period by the Ministry of Health. Accordingly, Applicants assert that Assan was discriminated against as a result of her national origin, place of origin and/or immigration status. Heath Affidavit, para 46, Record, Vol. **, Tab ** Cross-Examination of Heath, p.145, l.6-l.11; p.147, l.19-l.25; p.156, l.21-p.157, l.2; p.186, l.24-p.187, l.5; p.191, l.15-p.194, l.2; p.199, l.4-l.8, Record, Vol. * , Tab *

Assan is Disabled 100. On 22 October 1994, Assan was admitted to hospital and was required to have emergency surgery that could not have been postponed without risk of death or other medical complications. Assan suffered from kidney stones and a gangrenous cyst that had damaged her ovary. The surgery was for the removal of the stones, cyst and the damaged ovary. Assan was discharged from hospital on 6 November 1994. The Applicants assert that this constitutes a “physical disability” within the meaning of section 15(1) of the Charter. Affidavit of Gnei Assan, para 9, Record, Vol. 1, Tab 3 Cross-Examination of Assan, p. 38, l. 2 - l.25, Record, Vol. **, Tab ** Affidavit of Samir John Batarseh, M.D., para 2, Record, Vol. 1, Tab 15 101. Assan incurred charges for insured services rendered during the three month waiting period in amount exceeding $22,000.00. Approximately $21,000.00 of these charges were for her hospitalization. Affidavit of Gnei Assan, paras 9-12, Record, Vol. 1, Tab 3 Affidavit of Samir John Batarseh, M.D., paras 2-6, Record, Vol. 1, Tab 15 Exclusion from OHIP Causes More Disadvantage to Assan than to Others Because of her Disability

102. Because of Assan’s disability, she was unable to wait out the three month waiting period before obtaining medical care. Because Assan was denied the benefit of OHIP coverage on 22 October 1994, her husband was required to sign a guarantee of payment for her account with the hospital. Accordingly, the Applicants assert that the three month waiting period has a significant and adverse impact on Assan as a result of her disability. Affidavit of Gnei Assan, para 12, Record, Vol. 1, Tab 3 Guarantee, Exhibit G to the Affidavit of Assan, Record, Vol. 1, Tab 3-G No Viable Alternative was Available to Assan 103. The uncontradicted medical evidence is that Assan was not medically able to wait until after 18 November 1994 (the date on which she became covered by OHIP) to receive her medical treatment and surgery because of the emergency nature of her condition. Affidavit of Samir John Batarseh, M.D., para 7, Record, Vol. 1, Tab 15 104. Assan did not understand that she was not eligible for the benefit of OHIP coverage for the duration of a three month waiting period until her emergency medical condition presented on 24 October 1994. Rather, she thought she was covered from the date she attended at the OHIP

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office (being 20 August 1994). Accordingly, Assan did not apply for private medical insurance. Assan’s uncontradicted evidence is that if she and her husband had known about the three month waiting period, they would have “acted on it immediately”. Cross-Examination of Assan, p. 30 , l.5- p.31, l. 13, Record, Vol. **, Tab ** 105. Once Assan learned that she was not entitled to the benefit of OHIP coverage until 18 November 1994, she was already in hospital for her emergency surgery. Accordingly, Assan would have been ineligible for private medical insurance to cover her emergency surgery because none of the private insurance policies cover pre-existing conditions. Indeed, even if Assan had known that she was not going to be covered by OHIP until November and even if she had applied for private insurance immediately upon her arrival in Ontario, there is no evidence that the emergency medical condition for which she was treated would be covered by any private insurance policy instead of being classified as a pre-existing medical condition. Cross-Examination of Assan, p. 46, l. 9 - l.12, Record, Vol. **, Tab ** Cross-Examination of Heath, p.12, l.21-p.13, l.24; p.26, l.5-l.23, Record, Vol. *, Tab * 106. Community Health Centres provide primary health care. They do not have the facilities for surgery. A Community Health Centre is not equipped to remove an individual’s kidney stone or a cyst on an individual’s bowel or ovary. Cross-Examination of Davey, p.40, l.18 - l.23, Record, Vol. **, Tab ** 107. Community Health Centres do not have a fund or any other mechanism to cover expenses incurred for hospitalization; OHIP does cover hospitalization expenses as an insured service. The cost of hospitalization for Assan for the emergency surgery she required in October 1994 was approximately 21,000.00. Assan’s OHIP Coverage Commenced on 18 November 1994 108. Assan was granted OHIP coverage on 18 November 1994, after the three month waiting period. However, Assan was denied the benefit of OHIP coverage for insured services rendered in relation to her emergency surgery approximately three weeks prior. 5. Applicant Simon 109. Applicant Gabriella Simon (“Simon”), born in Hungary, has made her home and has been ordinarily resident in Ontario since May 1994. On 17 July 1994, Simon married a Canadian citizen. Simon’s husband thought that Simon would be covered under his OHIP coverage. Simon is not fluent in English and had no information to the contrary. Affidavit of Gabriella Simon, paras 2-5, 9, Record, Vol. 1, Tab 6 Cross-Examination of Simon, p. 13, l. 7 - l.9, Record, Vol. **, Tab ** Answers to Undertakings (Simon: Undertaking #3) 110. Simon completed her Application for Landing in or about October 1994. She passed the necessary medical examination on or about 19 December 1994. Simon was granted landed status effective 22 March 1996. Affidavit of Gabriella Simon, paras 8, 11-12, Record, Vol. 1, Tab 6

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Simon is Disabled 111. On or about 28 January 1995, Simon required emergency surgery for a deep brain thrombosis caused by a congenital arteriovenous malformation which could not be delayed without risk of death or other serious medical complications. The surgery took approximately 7 hours and, subsequently, Simon was in a coma for a period of time. Applicants assert that this constitutes a “physical disability” within the meaning of section 15(1) of the Charter. Affidavit of Gabriella Simon, paras 13-20, Record, Vol. 1, Tab 6 Cross-Examination of Simon, p. 13, l. 1 - l.3; p. 28, l. 3 - l.4, Record, Vol. **, Tab ** Affidavit of Harley Smyth M.D., para 9, Record, Vol. 1, Tab 7 Simon’s Pregnancy 112. In January 1995, when Simon was hospitalized for emergency brain surgery, she learned that she was 8 or 9 weeks pregnant. Affidavit of Gabriella Simon, para **, Record, Vol. 1, Tab 6 Simon is Denied the Benefit of OHIP Coverage and is Disadvantaged as a Result of her National Origin, Place of Origin and/or Immigration Status

113. It was not until Simon attended at the emergency room of the Scarborough General Hospital on 28 January 1995 that she and her husband learned that Simon was not covered by OHIP. The two hospitals at which she attended required Simon to pay Non-Canadian Resident fees, because she was not covered by OHIP. Affidavit of Gabriella Simon, paras 13-23, Record, Vol. 1, Tab 6 114. While Simon was in hospital, her husband applied for OHIP on her behalf. He was informed that Simon would become eligible for OHIP on 19 March 1995, being three months from the date on which she passed her immigration medical examination. Unlike new entrants to Ontario from other Canadian provinces, Simon did not have the benefit of an inter-provincial eligibility and portability agreement during this period. Unlike returning Ontarians, Simon did not have the benefit of a discretionary application of the three-month wait by the Ministry of Health. Accordingly, Applicants assert that Simon was discriminated against as a result of her national origin, place of origin and/or immigration status. Cross-Examination of Simon, p. 19, l.22 - l.25, Record, Vol. **, Tab ** Cross-Examination of Heath, p.145, l.6-l.11; p.147, l.19-l.25; p.156, l.21-p.157, l.2; p.186, l.24-p.187, l.5; p.191, l.15-p.194, l.2; p.199, l.4-l.8, Record, Vol. * , Tab *

115. Before Simon received OHIP coverage on 19 March 1995, she required medical monitoring because of her pregnancy. Simon could not afford this pre-natal care and relied on the charity of a Hungarian doctor in Ontario who provided this service free of charge prior to 19 March 1995. This doctor did not remain Simon’s obstetrician after 19 March 1995 because it was “very far”. Affidavit of Gabriella Simon, para 33, Record, Vol. 1, Tab 6, Cross-Examination of Simon, p. 26, l. 9 - l.12, Record, Vol. **, Tab ** Affidavit of Caroline Bennett, M.D., paras 5-7, Record, Vol. 1, Tab 13

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116. Simon incurred costs of over $7,400 in relation to the insured services rendered during the three month waiting period. Approximately $6,700 of these charges were for hospitalization. Affidavit of Gabriella Simon, paras 13-23, 27, Record, Vol. 1, Tab 6 117. Simon was advised to see her neurosurgeon for a post-operative checkup. She did not have the checkup because the cost would have been $200.00, and she could not afford it. Affidavit of Gabriella Simon, para 26, Record, Vol. 1, Tab 6 Affidavit of Dr. Harley Smyth, para 8, Record, Vol. 1, Tab 7 Exclusion from OHIP Causes More Disadvantage to Simon than to Others Because of her Disability and Pregnancy

118. Because of Simon’s disability, she was unable to wait for three months from the date she passed her immigration medical in order to obtain medical care. Accordingly, Applicants assert that the three month waiting period has a significant and adverse impact on Simon as a result of her disability. Affidavit of Harley Smyth, M.D., para 9, Record, Vol. 1, Tab 7 119. Because of Simon’s pregnancy, she required medical monitoring which could not be postponed for three months. Because her choice of physician was limited to a doctor who would monitor her pregnancy on a charitable basis, she was obliged to arrange to see a physician who was located too far away from her home to make continuity of care feasible. Accordingly, Applicants assert that the three month waiting period has a significant and adverse impact on Simon as a result of her sex. Affidavit of Caroline Bennett, M.D., paras 5-7, Record, Vol. 1, Tab 13 Cross-Examination of Simon, p.26, l.9-l.12, Record, Vol. * , Tab * No Viable Alternative was Available to Simon 120. The uncontradicted medical evidence is that Simon was not medically able to wait until after 19 March 1995 (the date on which she became covered by OHIP) to receive her medical treatment and surgery because of the emergency nature of her condition. Affidavit of Harley Smyth M.D., para 9, Record, Vol. 1, Tab 7 121. Simon did not understand that she was not eligible for the benefit of OHIP coverage for the duration of a three month waiting period until her emergency medical condition presented and she was admitted to hospital on 28 January 1995. Rather, it was thought that she was covered by virtue of her husband’s OHIP coverage. Accordingly, she did not apply for private medical insurance. 122. Once Simon learned that she was not entitled to the benefit of OHIP coverage until 19 March 1995, she was already in hospital for her emergency surgery. Accordingly, Simon would have been ineligible for private medical insurance to cover her emergency surgery because none of the private insurance policies cover pre-existing conditions. Indeed, even if Simon had known that she was not going to be covered by OHIP until March and even if she had applied for private

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insurance immediately upon her arrival in Ontario, there is no evidence that the emergency medical condition for which she was treated, which is described by Dr. Smyth as being caused by a “congenital arteriovenous malformation” would be covered by any private insurance policy instead of being classified as a pre-existing medical condition. [emphasis added] Affidavit of Harley Smyth M.D., para 3 Record, Vol. 1, Tab 7 Cross-Examination of Heath, p.12, l.21-p.13, l.24; p.26, l.5-l.23, Record, Vol. * , Tab * 123. Community Health Centres provide primary health care. They do not have the facilities for emergency treatment of brain haemorrhage victims. Cross-Examination of Davey, p.41, l.14 - l.16, Record, Vol. **, Tab ** 124. Community Health Centres do not have a fund or any other mechanism to cover expenses incurred for hospitalization; OHIP does cover hospitalization expenses as an insured service. The cost of hospitalization for Simon for the emergency surgery she required in March 1995 was approximately $6,700.00. 125. In any event, Simon only became aware of Community Health Centres after she was receiving the benefit of OHIP coverage. Cross-Examination of Simon, p. 27, l.25 - p. 28, l. 10, Record, Vol. **, Tab **

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Simon’s OHIP Eligibility Commenced on 19 March 1995 126. Simon was granted OHIP coverage effective March 19, 1995 (this being three months from the date on which she passed the immigration medical examination). However, Simon was denied OHIP coverage for the medical services rendered in relation to her emergency brain surgery, approximately 7 weeks prior. Affidavit of Gabriella Simon, paras 24-25, Record, Vol. 1, Tab 6 6. Applicant Karthigesu 127. Nagulambikai Karthigesu (“Karthigesu”), now aged 54, moved to Ontario from Sri Lanka on 4 September 1994. Karthigesu arrived in Ontario as a landed immigrant. Since 4 September 1994, she has made her home and is ordinarily resident in Ontario. Affidavit of Nagulambikai Karthigesu, paras 2, 4, 5, 7-8, Record, Vol. 1, Tab 4 Karthigesu is Denied the Benefit of OHIP Coverage and is Disadvantaged as a Result of her National Origin, Place of Origin and/or Immigration Status

128. Karthigesu applied for OHIP coverage on 7 September 1994. She was told that she would not receive OHIP coverage for three months. Her OHIP coverage became effective on 4 December 1994. Affidavit of Nagulambikai Karthigesu, paras 9, 10, Record, Vol. 1, Tab 4 129. Unlike new entrants to Ontario from other Canadian provinces, Karthigesu did not have the benefit of an inter-provincial eligibility and portability agreement during this period. Unlike returning Ontarians, Karthigesu did not have the benefit of a discretionary application of the three month waiting period by the Ministry of Health. Accordingly, Applicants assert that Karthigesu was discriminated against as a result of her national origin, place of origin and/or immigration status. Heath Affidavit, para 46, Record, Vol. *, Tab * Cross-Examination of Heath, p.145, l.6-l.11; p.147, l.19-l.25; p.156, l.21-p.157, l.2; p.186, l.24-p.187, l.5; p.191, l.15-p.194, l.2; p.199, l.4-l.8, Record, Vol. *, Tab *

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Karthigesu is Disabled 130. Karthigesu became ill in mid-September 1994. On 7 October 1994 she was admitted to hospital for emergency surgery for gallstones including removal of the gall-bladder that could not be postponed without risk of death or other serious medical complications. The Applicants assert that this constitutes a “physical disability” within the meaning of section 15(1) of the Charter. Affidavit of David Hodgkiss M.D., para 7, Record, Vol. 1, Tab 5 131. Karthigesu incurred charges of over $15,000.00 for insured services rendered during the three month waiting period. Approximately $14,300.00 of these charges were for her hospitalization and emergency visit. Affidavit of Nagulambikai Karthigesu, para **, Record, Vol. 1, Tab 4 132. As of 10 July 1996 Karthigesu had arranged for the payment of $2,326.03 towards these outstanding charges. Some of this money was borrowed from Karthigesu’s 24-year old son who is a university student with a student loan. Some of this money was borrowed from Karthigesu’s neighbour. Karthigesu has received numerous invoice statements and a final notice in relation to these charges. Cross-Examination of Karthigesu, p. 15, l.1 - p.16, l.10; p. 19, l.17 - l.20; p. 31, l.5-l.25, Record, Vol. **, Tab **

Invoice Statement being Exhibits H and M to the Affidavit of Karthigesu, Record, Vol. 1, Tab 4-H and 4-M

Invoice Statements and Final Notice, being Exhibit 2 to the Cross-Examination of Karthigesu, Record, Vol. **, Tab **

Exclusion from OHIP Causes more Disadvantage to Karthigesu than to Others Because of her Disability

133. Because of Karthigesu’s disability, she was unable to wait out the three month waiting period prior to obtaining medical care. Before being admitted to the hospital, because Karthigesu was denied the benefit of OHIP coverage, Karthigesu was required to pay a Non-Canadian Resident Deposit. In addition, a promissory note in favour of the Scarborough General Hospital was given in relation to Karthigesu. Accordingly, Applicants assert that the three month waiting period has a significant and adverse impact on Karthigesu as a result of her disability. Affidavit of Nagulambikai Karthigesu, paras 15, 26, 28, Record, Vol. 1, Tab 4 Affidavit of Dr. David R. Hodgkiss, paras 3-7, Record, Vol. 1, Tab 5 Promissory Note in Favour of Scarborough General Hospital dated 11 October 1994 being Exhibit 2 to the Cross-Examination of Karthigesu, Record, Vol. **, Tab **

No Viable Alternative was Available to Karthigesu 134. The uncontradicted medical evidence is that Karthigesu was not medically able to wait until after 4 December 1994 (the date on which she became covered by OHIP) to receive her medical treatment and surgery because of the emergency nature of her condition. Affidavit of David Hodgkiss M.D., para 7, Record, Vol. 1, Tab 5

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135. No representative of the Respondents informed Karthigesu that she should obtain private health insurance during the three month waiting period. On the advice of a friend, on 14 September 1994 Karthigesu’s husband contacted Blue Cross and several other private insurance companies to inquire about obtaining coverage. He was informed that applications had to have been made within 6 days of arriving in Canada; as a result, they did not obtain private insurance. At the time, Karthigesu was not aware of any policy that did not have a time limitation for applying. Affidavit of Nagulambikai Karthigesu, paras 10-14, Record, Vol. 1, Tab 4 Cross-Examination of Karthigesu, p. 22, l. 9 - p. 24, l. 19, Record, Vol. **, Tab ** 136. Even if Karthigesu had applied for private health insurance within the requisite time limitation, there is no evidence that the emergency medical condition, which presented within 11 days of her arrival in Ontario, would have been covered by any private insurance policy instead of being classified as a pre-existing medical condition. 137. Community Health Centres provide primary health care. They do not have the facilities for emergency surgery. A Community Health Centre is not equipped to perform surgery for the removal of an individual’s gall bladder or gall stones. Cross-Examination of Davey, p.40, l.23 - l.25, Record, Vol. **, Tab ** 138. Community Health Centres do not have a fund or any other mechanism to cover expenses incurred for hospitalization; OHIP does cover hospitalization expenses as an insured service. The cost of hospitalization for Karthigesu for the emergency surgery she required in September and October 1994 was approximately $14,300.00. Karthigesu’s OHIP Eligibility Commenced on 4 December 1994 139. Karthigesu was granted OHIP coverage effective 4 December 1994. However, Karthigesu was denied OHIP coverage for the insured services rendered in relation to her emergency surgery prior to that date. 7. Applicant Dobrescu 140. Anna Dobrescu (“Dobrescu”), born in Romania, arrived in Ontario with her husband on 10 December 1994. Dobrescu arrived in Ontario as a landed immigrant. Since 10 December 1994, she has made her home and has been ordinarily resident in Ontario. Affidavit of Anna Dobrescu, paras 2, 6, Record, Vol. 1, Tab 8 Dobrescu’s Pregnancy 141. Dobrescu was approximately seven months pregnant when she arrived in Ontario. The fact of Dobrescu’s pregnancy was noted in her immigration medical examination that was conducted in Bucharest in July 1994. Affidavit of Anna Dobrescu, paras 11, 12, Record, Vol. 1, Tab 8 Dobrescu is Denied the Benefit of OHIP Coverage and is Disadvantaged as a Result of her National Origin, Place of Origin and/or Immigration Status

142. Dobrescu learned, for the first time, that she might not receive the benefit of OHIP

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coverage for three months when she read the flyers that were handed to her shortly after she arrived at Pearson International Airport in Toronto on 10 December 1994. Upon reading the flyers, Dobrescu was not sure whether, as a pregnant woman, she fell within one of the exemptions to the three month waiting period. Dobrescu applied for OHIP coverage on 12 December 1994. At that time Dobrescu learned that she did not fall within one of the exemptions and she was informed that the effective date of her OHIP eligibility was 10 March 1995. Affidavit of Anna Dobrescu, paras 12-14, 23, Record, Vol. 1, Tab 8 Cross-Examination of Dobrescu, p. 11, l. 16 - p. 13, l. 11, Record, Vol. **, Tab ** 143. Unlike new entrants to Ontario from other Canadian provinces, Dobrescu did not have the benefit of an inter-provincial eligibility and portability agreement during this period. Unlike returning Ontarians, Dobrescu did not have the benefit of a discretionary application of the three month waiting period by the Ministry of Health. Accordingly, Applicants assert that Dobrescu was discriminated against as a result of her national origin, place of origin and/or immigration status. Heath Affidavit, para 46, Record, Vol. *, Tab * Cross-Examination of Heath, p.145, l.6-l.11; p.147, l.19-l.25; p.156, l.21-p.157, l.2; p.186, l.24-p.187, l.5; p.191, l.15-p.194, l.2, p.199, l.4-l.8, Record, Vol. *, Tab *

Exclusion from OHIP Causes More Disadvantage to Dobrescu than to Others Because of her Pregnancy

144. Because of Dobrescu’s pregnancy, she required the medical monitoring which is routinely required to ensure a healthy pregnancy and which could not be postponement for three months. As Dobrescu had no OHIP coverage, she signed an agreement binding her to make monthly instalments toward the cost of hospital charges including prenatal visits. Dobrescu gave birth on 18 February 1995, approximately one month before the effective date of her OHIP coverage. Applicants assert that the three month waiting period had a significant and adverse impact on Dobrescu as a result of her sex. Affidavit of Anna Dobrescu, paras 12, 19-22, 24, Record, Vol. 1, Tab 8 Affidavit of Caroline Bennett, M.D., paras 5-7, Record, Vol. 1, Tab 13 145. Dobrescu incurred expenses in excess of $600.00, for pre-natal and childbirth medical services (insured services under OHIP) that were necessarily incurred during the three month waiting period. Affidavit of Anna Dobrescu, para **, Record, Vol. *, Tab *

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No Viable Alternative was Available to Dobrescu 146. Upon learning that she would not receive the benefit of OHIP coverage until 10 March 1995 (approximately one month before her baby was due), Dobrescu attempted to purchase private health insurance. As a pregnant person, it was not possible for her to do so. Cross-Examination of Heath, p. 15, l.18-p.16, l.5; p.18, l.7-p.19, l.12; p.22, l.8-p.23, l.8; p.24, l.18-l.22; p.56, l.24-p.27, l.6, Record, Vol. *, Tab

147. Community Health Centres provide primary health care. They do not have the facilities for childbirth. Community Health Centres do not have a fund or any other mechanism to cover expenses incurred for hospitalization; OHIP does cover hospitalization expenses as an insured service. The cost of hospitalization for Dobrescu for the delivery of her child was approximately $500.00. In any event, nobody at OHIP informed Dobrescu of the existence of Community Health Centres. Indeed, Dobrescu learned of their existence, for the first time, in November 1997. Affidavit of Dobrescu, para 22, Record, Vol. **, Tab ** Cross-Examination of Dobrescu, p. 24, l. 1- l. 3; p. 36, l. 21-l.25, Record, Vol. **, Tab ** Cross-Examination of Davey, p. 41, l.11 - l.13, Record, Vol. **, Tab ** Harm to Children Children Under the Age of 10 Years 148. It is not disputed that even well children under ten need more regular and routine medical attention than most adults. Diseases that are not particularly dangerous to adults may be serious or even fatal in children, without timely medical intervention, because of anatomical and physiological differences between children and adults. Thus delay in or inability to access medical attention for a period of three months or longer presents a heightened risk in children under the age of 10. Affidavit of Donna Goldenberg, M.D., paras 2, 4-5, 6-10, Record, Vol. 1, Tab 14

149. Routine medical care for well children over the age of two and under the age of ten includes an annual physical examination, to monitor growth and development and to screen for developmental and other health problems such as speech delay (which may involve a hearing problem) and deficits in visual acuity. If such problems are not caught at an early age, the child may suffer significant delays in physical and social interactive development, as well as in academic achievement and the development of self-esteem. Affidavit of Donna Goldenberg, M.D., para 8, Record, Vol. 1, Tab 14 Infants 150. It is important for a newborn to be seen by a doctor within the first week of life to

address problems of jaundice and feeding difficulties. The Canadian Paediatric Society recommends seven well-baby visits, at the ages of one, two, four, six, nine, thirteen and eighteen months. These visits enable the physician to give immunization

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and to screen the baby for physical problems such as disorders of hearing and vision, and hip dislocation, as well as to counsel parents on the needs of the developing child.

Affidavit of Donna Goldenberg, M.D., paras 3-4, Record, Vol. 1, Tab 14, citing Canadian Guide to Clinical Preventive Health Care (Exhibit “A”)

151. Babies under six months of age are among the most vulnerable individuals in our population. For this reason, it is standard paediatric practice to anticipate illness in babies, and to treat swiftly to prevent problems. For example, babies under three months who develop fever may be admitted to hospital and treated with intravenous antibiotics while test results are pending. To delay parents' access to medical care for babies could have devastating consequences. Affidavit of Donna Goldenberg, M.D., para 7, Record, Vol. 1, Tab 14 Harm to Pregnant Women 152. It is not disputed that, during the average uncomplicated pregnancy in a well woman, an appropriate standard of care necessitates a minimum of once-per-month visits to a doctor during the first six months, bi-weekly visits during the seventh and eighth month, and weekly visits during the last four weeks before the due date. Thus delay in or inability to access medical attention for a period of three months or longer presents a heightened risk in pregnant women. Affidavit of Carolyn Bennett, M.D., para 5, Record, Vol. 1, Tab 13 153. Even healthy women require routine medical attention during pregnancy for two primary reasons. The first is that there are a number of health problems that are often associated with pregnancy, such as high blood pressure and diabetes. Failure to detect, at an early stage, a health problem that would interfere with maternal health can have serious and rapidly progressive consequences. The second reason is that the fetus is in a stage of rapid growth and development. Any problems with fetal development and fetal growth can progress rapidly, and it is essential that they be detected early. Affidavit of Carolyn Bennett, M.D., para 7, Record, Vol. 1, Tab 13 154. In practice, most pregnant women are seen more often than indicated above, because of intercurrent illnesses, in particular, upper respiratory tract infections, bladder infections, and various discomforts. In addition, psychological preparation is imperative to a healthy postpartum period. Anxiety and depression need to be dealt with preventatively. Affidavit of Carolyn Bennett, M.D., para 6, Record, Vol. 1, Tab 13 155. It is not disputed that little or no prenatal care results in an increase in premature births and low birth weight. Affidavit of Carolyn Bennett, M.D., para 8, Record, Vol. 1, Tab 13 PART III - THE ISSUES

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156. Does the imposition of the three month waiting period for OHIP coverage by subsection 3(3) of Regulation 552, as amended, deny individuals equal protection and equal benefit of the law in a manner that violates section 15(1) of the Canadian Charter of Rights and Freedoms, and in a manner that cannot be justified under section 1 of the Charter? 157. Does the definition of “resident” created by subsection 1.1(1)(b) of Regulation 552, as amended, deny individuals equal protection and equal benefit of the law in a manner that violates section 15(1) of the Canadian Charter of Rights and Freedoms, and in a manner that cannot be justified under section 1 of the Charter? 158. Did the repeal and amendment of section 11(2) of the Health Insurance Act by section 70 of the Budget Measures Act, which resulted in the loss of automatic OHIP eligibility for most dependants of insured persons, deny individuals equal protection and equal benefit of the law in a manner that violates section 15(1) of the Canadian Charter of Rights and Freedoms, and in a manner that cannot be justified under section 1 of the Charter? PART IV - THE LAW A. Section 15 of the Charter: “promotion of a society in which all are secure in the knowledge that they are recognised at law as human beings equally deserving of concern...” 159. Section 15(1) of the Charter reads: Every individual is equal before and under the law and has the right to the

equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c.11

160. In a seminal Supreme Court of Canada judgement on Section 15, the purpose of Section 15 was described as follows: It is clear that the purpose of Section 15 is to ensure equality in the

formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognised at law as human beings being equally deserving of concern, respect and consideration. It has a large remedial component. (emphasis added)

Andrews v Law Society of British Columbia [1989] 1 SCR 143 (SCC); 91 NR 255; 56 DLR (4th) 1, at S.C.R. p. 171

161. Since Andrews (supra) the Supreme Court of Canada has consistently recognised that section 15 is to be generously and purposively interpreted. As was very recently stated in the

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Eldridge decision, the provision “expresses a commitment -deeply ingrained in our social, political and legal culture - to the equal worth and dignity of all persons.” Section 15 also provides a mechanism for rectifying and preventing discrimination against particular groups “suffering social, political and legal disadvantage in our society”. Eldridge v British Columbia (1997) 218 N.R. 161 (S.C.C.) at 206-207, paras 53-54

162. The Supreme Court has unanimously found that ...the purpose of s.15 of the Charter is not only to prevent discrimination by the

application of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society.

Re Eaton and Brant County Board of Education [1997] 1 S.C.R. 241, (1997) 207 NR 171 (S.C.C.), at N.R. 203

163. The legislative changes that are impugned in the case at hand, as is explained below, indicate that all residents of Ontario are not equally deserving of respect, concern and consideration in relation to the provision of publicly funded health care services-- that they are not all of equal worth. They offend section 15(1)’s fundamental purpose of preventing the infringement of essential human dignity. 1. The Test for a Breach of s.15 164. The Supreme Court of Canada has agreed upon a “general analytic framework” for determining whether a law, or its application, breaches s. 15 of the Charter. This framework involves what has been described as a two step approach: (a) The first step: determine whether a law creates an inequality. Inequality is created if the law draws a distinction (either on its face or in its

application) between the claimant and others, on the basis of certain personal characteristics, with the effect of denying the claimant equality under the law, equality before the law, equal protection of the law or equal benefit of the law.

(b) The second step: determine whether the distinction is discriminatory. A distinction is discriminatory, and thereby engages the purpose of section 15(1), if: i) the distinction was made on the basis of personal

characteristics protected by section 15(1) of the Charter, either because the relevant personal characteristics are enumerated in s.15, or because they are analogous to grounds enumerated; and,

ii) the distinction has the effect on the claimant of

imposing a burden, obligation or disadvantage not imposed on others or of withholding or limiting

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access to benefits or advantages which are available to others.

(A minority of the Justices of the Supreme Court have indicated that in addition to

the above two requirements, for a distinction to be discriminatory, it must be based upon personal characteristics that are irrelevant to the functional values underlying the impugned law, provided those values are not themselves discriminatory).

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, 208 N.R. 81, at S.C.R 389-91 Eldridge v British Columbia, supra, at paras 58 and 59

Andrews v Law Society of British Columbia [1989] 1 SCR 143 (SCC); 91 NR 255; 56 DLR (4th) 1, at (S.C.R.) pp. 174-175

i) General principles and concepts utilised in applying the test: 165. No judicial deference is owed by a Court to the Legislature during section 15 analysis of the formulation or application of challenged law, even when the impugned government action relates to fiscal matters. Consideration of factors that might justify discrimination must take place within the analysis under s. 1 of the Charter. Symes v. Canada, (1993) 110 D.L.R. (4th) 470 (S.C.C.) at pp.550-551 Andrews v. Law Society of Upper Canada, supra, at D.L.R. pp.20-21, 24 Miron v. Trudel, (1995) 124 D.L.R. (4th) 693 (S.C.C.) at 739-40 166. When applying the two-step test, it is important to remember that discrimination can arise both from the adverse effects of rules of general application, which may appear facially neutral, as well as from express distinctions flowing from the distribution of benefits. It is well established that a discriminatory purpose or intention is not a necessary condition of a section 15(1) violation. It is sufficient that the effect of the legislation is to deny someone the equal protection or benefit of the law. Adverse effect discrimination is especially relevant in the case of disability. Eldridge v British Columbia, supra, at paras 60-62, 64-66, 77

167. The Supreme Court of Canada has unanimously ruled that while, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination, proof that impugned government action, legislation or regulations was based on a stereotype, or perpetrates a stereotype, is not a necessary precondition to establish a breach of section 15. Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, 207 N.R. 171 (S.C.C.) at 203-204 paras 66-67

168. The Supreme Court has repeatedly held that once the state provides a benefit through legislation, it is obliged to do so in a non-discriminatory manner. This is the case regardless of whether the legislature had any obligation to “enter a field”. In many cases, this will require the government to take positive action, such as extending the scope of a benefit to a previously excluded class of persons. Inaction or silence can be discriminatory. Eldridge v British Columbia, supra, at paras 66, 72-73, 77

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169. In enacting legislation, legislatures have a positive obligation to ensure that such legislation does not adversely affect already disadvantaged groups: In other words, to promote the objective of the more equal society, s.

15(1) acts as a bar to the executive enacting provisions without taking into account their possible impact on already disadvantaged classes of persons.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at 549, per Lamer, C.J.C., quoted with approval by LaForest J. for the Court in Eldridge, supra, at para 64

170. The concept of equal benefit of the law should not be restricted to a simple calculation of profit or loss, but may include the opportunity to make a choice and the recognition by the state of the legitimacy of a particular status. Egan v. Canada, [1995] 2 S.C.R. 513, 182 N.R. 161 per Cory, Iacobucci, dissenting in result, at S.C.R. 593-5 R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C. (3d) 8 per Wilson J. for the Court, at 1313

171. In reviewing the constitutionality of legislation or of government action, the court must take into account not only the circumstances pertaining to the individual applicants, but circumstances that pertain to classes of individuals that the applicants exemplify: ...it is not in strictness necessary to decide whether, according to this

standard, the appellants’ s. 15(1) rights were breached. This Court has held that if claimants prove that the equality rights of members of the group to which they belong have been infringed, they need not establish a violation of their own particular rights.

Eldridge, supra, at para 83 Egan v. Canada, supra, per Cory, Iacobucci, dissenting in result, at N.R. 236-237, paras 134-136

172. An adverse effect experienced by some, but not all members of a group can constitute discrimination within the meaning of s.15. Symes, supra per Iacobucci J., at p. 562 Rodriguez v British Columbia (Attorney General), per Lamer, C.J.C., at NR p.100-101 Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161; 59 D.L.R.(4th) 321 (at SCR p. 1247)

Janzen and Govereau v. Pharos Restaurant and Grammas et al., [1989] 1 S.C.R. 1252; 95 N.R. 81; 58 Man.R.(2d) 1. (at pp. 1288-1289)

173. A person who suffers discrimination may be identifiable by more than one “personal characteristic” that attracts the protection of s.15. It is important to focus on the fact of

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discrimination rather than an excessive concern with precise characterization. It is increasingly recognised that categories of discrimination may overlap,

and that individuals may suffer historical exclusion on the basis of both race and gender, age and physical handicap, or some other combination. The situation of individuals who confront multiple grounds of disadvantage is particularly complex...On a practical level, where both forms of discrimination are prohibited, one can ignore the complexity of the interaction...The person is protected from discrimination in either event.

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 per L'Heureux-Dubé J., (dissenting) at pp. 645-646, 149 NR 1 at pp.108-109

174. “There are situations where a person suffers discrimination on more than one ground, but where only one form of discrimination is a prohibited ground. When faced with such situations, one should be cautious not to characterize the discrimination so as to deprive the person of any protection.” Mossop, supra per L'Heureux-Dubé J. SCR at p. 645-646, 149 NR 1 at p.108-109 R v Bushnell Communications Ltd (1973), 1 OR (2d) 442, aff'd (1974) 4 OR (2d) 288 (CA) ii) Personal characteristics protected by the Charter: 175. Section 15(1) prohibits discrimination on the basis of a number of express grounds of distinction. The Courts have recognised these grounds as those which, on the basis of historical practice, are most likely to give rise to discrimination. Additionally, section 15(1) prohibits discrimination on the basis of grounds that are analogous to those expressly listed. Andrews v. Law Society of Upper Canada, supra, at S.C.R. 175 Eldridge v. British Columbia, supra, at para 58 176. A distinction relating to an enumerated or analogous ground will, except in “rare” or “exceptional” circumstances, constitute discrimination contrary to s. 15(1). Miron v. Tridel, supra, at 741, 745 Andrews v. Law Society of Upper Canada, supra, at 179-182 a) “enumerated” grounds of distinction: 177. Race, national or ethnic origin, colour, religion, sex, age or mental or physical disability and physical disability are the grounds enumerated in s.15 of the Charter. In the case at hand, discrimination on the basis of national origin, sex, age and mental or physical disability are all at issue. National Origin: 178. The British House of Lords has interpreted the phrase “national origins” as referring to a person’s birth connection with a “nation”. In finding that a rule requiring that applicants be British subjects in order to be placed on the waiting list for housing violated the English Race Relations Act, which prohibited discrimination on the ground of “...ethnic or national origins, a majority of the House of Lords held ruled “national origin” is not equivalent to “nationality”, which connotes present membership in a “nation”.

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London Borough of Ealing v. Race Relations Board, [1972] AC 342, 1 All ER 105 Sex: 179. Where a statutory provision that is gender neutral on its face gives rise to a disproportionately adverse impact on women, the section 15(1) prohibition on discrimination on the basis of sex is engaged. Hogg, Constitutional Law of Canada, 4th ed. (Toronto: Carswell, 1997), at pp.52-52 180. Discrimination on the basis of pregnancy is included as a ground of discrimination under the Ontario Human Rights Code, and has been accepted by the Supreme Court of Canada as sex discrimination. Human Rights Code RSO 1990 c. H.19. s. 1-6, 10(2) Brooks v Canada Safeway Ltd., supra, Disability: 181. Disability is not defined in the Charter. The Concise Oxford English Dictionary defines “disability” as follows: thing or lack that prevents one’s doing something;...physical

incapacity caused by injury or disease.

182. The Supreme Court has consistently acknowledged the utility of human rights jurisprudence in interpreting section 15. Human Rights Code, RSO 1990, Chap H-19, as amended, s.10(1) Andrews v. Law Society of Upper Canada, supra, D.L.R. 18 Eldridge v. British Columbia, supra, at para 63 Symes v. Canada, supra 183. David Lepofsky and Jerome Bickenbach suggest, in "Equality Rights and the Physically Handicapped", that if a condition has been recognized as a disability in human rights legislation, it should also be found to be a disability under section 15 on this basis. Lepofsky and Bickenbach propose the following definition of physical disability (at 346): Physical disability refers to any physical or physiological condition,

whether visible or not, which imposes any limit or restriction on any activity, and includes such conditions as blindness, deafness, speech impairment, and so on, and also includes any history of the foregoing conditions, or any perception that such a condition exists.

Equality Rights and the Canadian Charter of Rights and Freedoms, Bayefsky, A. and Eberts, M., eds. (Carswell; 1985)

184. An Ontario court has found that "disability" under section 15 should be interpreted broadly, noting that human rights legislation has been construed to cover a wide range of permanent and temporary characteristics, whether congenital, accidental or disease-related. Speerin v North Bay (City) (1991), 5 OR (3d) 492 (OCJ), (a limitation period which barred a

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claim by a plaintiff who was unable to comply with notice provisions because she was in hospital with an injury and unable to move was found to be discriminatory.)

b) analogous grounds of distinction: 185. As stated above, section 15 is not restricted to prohibiting discrimination on the basis of the enumerated grounds. It also provides protection against discrimination on grounds that are analogous to the enumerated grounds. In determining whether a particular personal characteristic constitutes a ground analogous to those enumerated in s. 15, a broad, generous and purposive approach must be adopted. The purpose of s. 15 is to prevent or remedy discrimination against groups suffering social, political and legal disadvantage in our society. R. v. Turpin, supra at p. 36, per Wilson J. for the court Miron supra at NR p. 264, per McLachlin J. (for Sopinka, Cory, Iacobucci JJ.) 186. As stated by McLachlin J: One indicator of an analogous ground may be that the targeted group has suffered

historical disadvantage, independent of the challenged distinction... Another may be the fact that the group constitutes a "discrete and insular minority"...Another indicator is a distinction made on the basis of a personal characteristic... By extension, it has been suggested that distinctions based on personal and immutable characteristics must be discriminatory within s. 15(1)...Additional assistance may be obtained by comparing the ground at issue with the grounds enumerated, or from recognition by legislators and jurists that the ground is discriminatory. All of these may be valid indicators in the inclusionary sense that their presence may signal an analogous ground. But the converse proposition -- that any or all of them must be present to find an analogous ground -- is invalid.

Miron, supra, at N.R. p. 276-278, per McLachlin J. (for Sopinka, Cory, Iacobucci JJ.) (emphasis added)

187. McLachlin J. further states: ...analogous grounds cannot be confined to historically disadvantaged

groups; if the Charter is to remain relevant to future generations, it must retain a capacity to recognize new grounds of discrimination. Nor is it essential that the analogous ground target a discrete and insular minority; this is belied by the inclusion of sex as a ground enumerated in s. 15(1). And while discriminatory group markers often involve immutable characteristics, they do not necessarily do so. Religion, an enumerated ground, is not immutable. Nor is citizenship, recognized in Andrews; nor province of residence, considered in Turpin. All these and more may be indicators of analogous grounds, but the unifying principle is larger: the avoidance of stereotypical reasoning and the creation of legal distinctions which

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violate the dignity and freedom of the individual, on the basis of some preconceived perception about the attributed characteristics of a group rather than the true capacity, worth or circumstances of the individual.

Miron supra at NR p. 277-78, per McLachlin J. (for Sopinka, Cory, Iacobucci JJ.) para 31 Immigration status/Citizenship 188. Immigration status is closely linked to the concept of citizenship, which is included as a ground of discrimination under the Ontario Human Rights Code, and has been accepted as an unenumerated ground of discrimination for the purpose of s.15. The Supreme Court in Andrews v Law Society of British Columbia focussed on the disadvantaged situation of non-citizens: Relative to citizens, non-citizens are a group lacking in political power and as such

vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among "those groups in society to whose needs and wishes elected officials have no apparent interest in attending. ...

[N]on-citizens are an example without parallel of a group of persons who are relatively powerless politically, and whose interests are likely to be compromised by legislative decisions. History reveals that Canada did not for many years resist the temptation of enacting legislation the animating rationale of which was to limit the number of persons entering into certain employment. Discrimination on the basis of nationality has from early times been an inseparable companion of discrimination on the basis of race and national or ethnic origin, which are listed in s.15.

...That is not to say that no legislative conditioning of benefits (for example) on the

basis of citizenship is acceptable in the free and democratic society that is Canada, merely that legislation purporting to do so ought to be measured against the touchstone of our Constitution. It requires justification.

Human Rights Code RSO 1990 c. H.19. s. 1-6 Andrews, supra at DLR p 32-33 per Wilson, J., per LaForest J. at 39-41 189. The United States Supreme Court has also acknowledged that non-citizens ("aliens") are a prime example of a "discrete and insular" minority. That Court has ruled against states' legislating to limit expenses by preserving welfare benefits for its own citizens, and to refuse school admission to the children of undocumented aliens. Shapiro v. Thompson (1969), 394 US 618 Graham v. Richardson (1971), 403 US 365. Plyler v. Doe, 102 S.Ct. 2382 (1982) Place of Origin: 190. Place of origin is included as a ground of discrimination under the Ontario Human Rights Code. Place of origin is obviously analogous to national origin, which is an enumerated ground. Human Rights Code RSO 1990 c. H.19. s. 1-6 Rajput v Algoma University (1976) Ont. (unreported)

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Family Status: 191. The Ontario Human Rights Code, R.S.O. 1990, c.H-19 prohibits discrimination on the basis of family status. The definition of “family status” given in s.10 is “the status of being in a parent and child relationship”. Human Rights Code, R.S.O. 1990, c.H-19, as amended, s.10(1) 192. The term “family status” encompasses persons who experience discrimination not only because of being in a parent-child relationship, but because of their parent-child relationship with a particular person. Brossard (Town) v. Quebec (Comm. des droits de la personne), (1989) 53 D.L.R. (4th) 609, 10 CHRR D/5516 (SCC)

193. Family status has been recognised by an analogous ground of discrimination under s.15. Schafer v Canada (Attorney General), (1996) 29 O.R. (3d) 496 rev’d (1997) 34 OR (3d) 1 (OCA) Milne v Alta. (AG) [Alta] (1990) 26 RFL (3d) 389 (Alta QB) Minister of National Health and Welfare v. Blais (1991), CEB & PGR #8626 (PAB)

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iii) Discriminatory Denial of Insurance Protection Violates Section 15 of Charter 194. The Supreme Court of Canada has ruled that the statutory denial of insurance coverage on the basis of a personal characteristic protected by the Charter is a burdensome distinction of the kind that violates the right to equal protection of the law guaranteed by s.15(1). Miron v. Tridel, supra, at 732-33, 746 195. In Eldridge, the Supreme Court of Canada found that a partial restriction to the quality of insured medical services provided to deaf people caused by the failure of the publicly funded health insurance scheme to pay for interpretation services was a violation of section 15 that could not be saved by section 1. Eldridge v. British Columbia, supra 2. Application of the Section 15 Test in this case: a) The three month wait provision: 196. The Applicants Simon, Dobrescu, Assan, Karthigesu, Tudor, Leandra and Sergio were denied the benefit and protection of OHIP coverage available to other residents of Ontario for the first three months of their residency in Ontario as a result of the passage of s. 3(3) of regulation 552. The first step: The law creates an inequality 197. New immigrants arriving in Ontario from foreign countries face a three month wait for OHIP coverage upon their arrival in this province as a result of the passage of section 3(3) of the impugned regulation. Even though they have satisfied the Ministry that they are "residents" within the meaning of the regulations, and will be eligible for coverage once the three month waiting period has run its course, new immigrants are denied any and all OHIP coverage during the waiting period, without regard to their personal circumstances or needs. In contrast, residents of Ontario who have been residents for more than three months (and certain others, including a "newborn born in Ontario to an insured person") have complete access to OHIP benefits. Thus, an inequality amongst residents is created by the impugned regulation that is based upon the personal characteristic national origin, place of origin or status as a new immigrant from abroad. 198. An inequality is also created between new immigrants and individuals who arrive in Ontario from other Provinces, based on their national origin, place of origin or status as recent immigrants to Ontario from abroad. Ontario has signed the Interprovincial Eligibility and Portability Agreement for the purpose of ensuring that individuals who move to Ontario from other provinces have uninterrupted health care coverage from their home province until they become eligible for OHIP. The waiting period for eligibility for OHIP is also shorter for those moving to Ontario from other provinces than it is for those moving to Ontario from abroad. 199. New immigrants are not treated equally with individuals who return to Ontario from foreign countries after being away long enough to lose their status as “residents” under the regulation. As a matter of practice or policy, Ontarians who ought to lose their status under the regulation can apply to have coverage upon their return without a three month wait. There is no mechanism by which new immigrants can avoid the three month wait. Thus, once again, an

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inequality or distinction is created on the basis of national origin, place of origin or status as a new immigrant. 200. The imposition of the three month waiting period creates a disproportionate inequality for new residents with disabilities, children and pregnant women, as such individuals, because of their personal characteristics, typically have greater needs for medical services. The second step: The law is discriminatory: i) the distinction is made on the basis of enumerated or analogous grounds: 201. The three month wait provision, on its face, applies to all new residents. However, as said above, new residents from other provinces and returning Ontarians are not, in fact, subjected to the same mandatory waiting period for publicly funded healthcare. Thus, as a matter of practice, a distinction is made between new immigrants and: established residents; residents subject to the enumerated exception list in Section 3(4); migrants from other provinces; and, returning ex-patriot Ontarians 202. The lack of equal benefit of the law is based upon the immigrants’ status as new immigrants. This status ought to be found to be an analogous ground, much as citizenship has been. Moreover, the distinction could fairly be described as one based on the listed ground of national origin, or the analogous Human Rights Code ground of place of origin. 203. As said above, imposing a three month waiting period has an adverse impact on disabled persons, children and pregnant women who are new immigrants, on the basis of their personal characteristics as disabled persons, children and women, which require that they have greater access to medical care. ii) the distinction imposes a disadvantage not imposed on others: 204. The vast majority of Ontario residents have complete access to the OHIP system and the care it provides. Other new arrivals to the Province who are residents have had their access to the medical system guaranteed to a significant degree as a result of the government's active participation in the Interprovincial Eligibility and Portability Agreement. Further, the Ministry has established a long-standing policy to assist those residents who leave the province for an extended period of time to be able to return with immediate coverage. New immigrants, on the other hand, have been denied any access to the benefit and protection of OHIP coverage for their first three months as residents in the Province. Prior to the passage of the regulation, no waiting period was imposed, and new immigrants were given equal benefit of the OHIP provisions. The distinction created by the regulation, as it is applied in fact, clearly imposes a disadvantage on new immigrants not imposed on others. 205. It is clear from the Respondents’ own evidence that one of the main reasons that a three month wait was imposed upon new immigrants was the attribution of stereotypical assumptions about foreigners coming to Ontario simply to take advantage of our medical system. It

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is obvious that none of the Applicants came to Ontario for this purpose. In fact, they came to be bona fide residents. The three month wait regulation imposes a disadvantage on all new immigrants, based on the fact that they are new immigrants, without regard to their personal merit, capacity or circumstances. It is a prime example of the kind of stereotype driven legislation that has been widely recognised to fully “engage the purposes of s. 15(1)”. 206. Regulation 3(3) engages the purpose of s. 15(1) not only by being an obvious example of legislation driven by stereotyping, but also on the basis that it is legislation that works against s. 15(1)'s purpose of ameliorating existing disadvantage. The passage of a regulation that imposed a total denial of access to OHIP benefits to new immigrants - who are certainly among the most vulnerable groups of "non-citizens" in our society - for a three month period after the establishment of residency, where no such waiting period had been imposed historically, as part of a package of cost saving amendments in which the access to health services of other residents was, at most, marginally effected, must be seen to fully engage this latter purpose of section 15(1). In the face of government action designed to increase (rather than ameliorate) the relative disadvantage suffered by an already marginalised group within Canadian society, the Court must use its power under section 15(1) to re-affirm “the equal worth and dignity of all persons”. b) The change to the definition of “resident”: 207. The narrowing of the definition of “resident” by s.1.1(1)(b) of the regulation made OHIP eligibility for “new immigrants”, that is, immigrants who have yet to gain landed status but who are lawfully entitled to remain in Canada, dependent on aspects of the federal immigration process which involve disability assessment. Raja Irshad, Melvin and Sergio were barred from any OHIP coverage because they could not satisfy the new definition of “resident” as they had disabilities that made them unable to pass the federal immigration department’s medical requirements for landing. Leandra and Tudor were denied OHIP coverage despite the fact that they had been ordinarily resident in Ontario since 1993 and 1989 respectively and despite the fact that they had both satisfied the medical requirements for landing, because they had not been granted landed status due to the physical disability of their family member, Sergio. The first step: The law creates an inequality 208. In order to gain access to OHIP as an “insured person”, an individual must satisfy the new definition of “resident” by being “ordinarily resident in Ontario” and by falling within one of the 11 categories listed in subsection 1.1(1)(b) of the impugned regulation. Among persons who are “ordinarily resident in Ontario,” only new immigrants, by operation of ss.1.1(1)(b)4 and 10, are denied the benefit of OHIP coverage until and unless they are able to satisfy the medical requirements imposed by the federal government as part of the immigration process. No other persons who are ‘ordinarily resident in Ontario’, other than new immigrants, are subjected to a denial of OHIP coverage for the duration of any delays inherent in the federal government’s immigration process or as a result of being unable to satisfy the medical requirements for landing imposed by the federal government. Thus, new immigrants are treated differently from all others who are “ordinarily resident” in Ontario. 209. New immigrants who suffer from disabilities of a nature that will prevent them from

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satisfying the medical requirements of the federal immigration scheme in a timely manner, or at all, but who are permitted to remain in Ontario either on a Minister’s Permit or on some other basis, will be barred from OHIP coverage by the wording and application of ss.1.1(1)(b)4 (which denies coverage to applicants for landed status who have not yet passed their medical exams) and ss.1.1(1)(b)10 (which does not extend coverage to holders of Minister’s Permit case type 92 - Medical Inadmissibility - Member of Family class). Ultimately, this bar is based on the individual’s disability. Thus, individuals who are lawfully entitled to remain in Ontario, and who make their homes and are ordinarily resident in Ontario, are denied the benefit and protection of OHIP available to “residents” with a similar degree of connection to the province on the basis of disability. 210. All individuals excluded from OHIP coverage by the new definition of resident are disadvantaged by the exclusion. However, the exclusion has a disproportionately adverse effect on children, pregnant women, and persons with disabilities. Because children, pregnant women, and persons with disabilities require immediate or frequent medical attention, the application of the regulation, as amended, imposes a more onerous burden on members of these groups than the burden that is imposed on others affected by the regulation. The second step: The distinction is discriminatory: i) The distinction is made on the basis of enumerated or analogous grounds: 211. None of the Applicants would have been placed in the position of having their OHIP eligibility delayed or determined by the medical requirements of the federal immigration process had they not been new immigrants. They are distinguished from other applicants for OHIP on the basis of national origin, place of origin, or status as new immigrants. 212. In addition, Raja Irshad, Melvin and Sergio were denied eligibility because, due to their disabilities, they were unable to promptly satisfy “the medical requirements for landing” (subsection 1.1(1)(b)4). Moreover, Raja Irshad was denied eligibility on the basis that he was issued a Minister’s Permit case type 92 on the basis of disability, and the Respondents did not amend subsection 1.1(1)10 to provide coverage to case type 92 Minister’s Permit holders when the federal government created the new codes. They are distinguished from other applicants for OHIP on the basis of disability. 213. Further, Tudor and Leandra were able promptly to fulfil the requirements of subsection 1.1(1)(b)4, yet they were denied OHIP eligibility because of their family relationship to a disabled person. They are distinguished from other applicants for OHIP on the basis of family status. ii) The distinction imposes a disadvantage not imposed on others: 214. As said above, among those individuals who are “ordinarily resident in Ontario”, only new immigrants suffer the substantial disadvantage of having their OHIP eligibility be contingent upon the vagaries of the federal immigration process. Only new immigrants are denied coverage for the duration of any delays inherent in the immigration process, or on an ongoing basis should they fail to satisfy the medical requirements imposed by the federal government. Denial of coverage can last for years -- despite the fact that such people are “ordinarily resident in Ontario”.

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215. Individuals who are denied resident status because they are unable to satisfy the federal medical requirements for landing because of disability are completely barred from receiving OHIP coverage until they are able to bring themselves within the definition of resident. Unlike the vast majority of other people who have a substantial and demonstrable connection to Ontario, who are lawfully entitled to remain in Ontario and who make their homes and are ordinarily resident in Ontario, these individuals must make do without medical services that they cannot pay for themselves or obtain through charity. The disadvantage suffered by these individuals is compounded by the very fact that they are disabled: their disability renders them in both ineligible for services and most in need of services. 216. The impact of exclusion from OHIP was more adverse to Raja Irshad and Sergio, as children who at the relevant time were under the age of 10, than it would be to an adult, since children under that age require more regular primary health care than do adults. In addition, the impact of exclusion from OHIP is more adverse to Raja Irshad and Sergio than it would be to children without disabilities. 217. The impact of exclusion from OHIP has been more adverse to Melvin than it would be to an individual without a disability. Melvin has failed to make appointments for ongoing recommended care because he cannot afford to pay. He is at serious risk of sustaining further serious disability if he does not receive on-going health care. 218. The purposes of s. 15 are engaged by the passage of a definition of “resident” that has the effect of making disabled immigrants ineligible for publicly funded health care on the basis of their disability because the revised definition works directly against the purpose of s. 15 to ameliorate disadvantage for those who are already disadvantaged. As the Supreme Court of Canada has previously indicated, “there could be no personal characteristic less relevant” to the functional purposes of Canada’s publicly funded health care systems “than an individual’s disability” [Eldridge]. In the circumstances of the case at hand, the Court ought to be moved to recognise that there has been an obvious violation of s. 15, and the Respondents ought to be required to explain why it passed regulations clearly designed to increase the disadvantage to an already disadvantaged group for the “benefit” of the health insurance scheme provided to the vast majority of the province’s population. c) The repeal of automatic coverage for dependants: The first step: The law creates an inequality 219. The move to individual assessment for eligibility has an adverse impact upon disabled minor dependants who are new immigrants. Prior to the repeal, such individuals would have not have been required to establish a right to OHIP on the basis of their own ability to pass federal immigration medical requirements -- they would have gained coverage as the minor dependants of insured persons. While the repeal of automatic dependant coverage affects virtually all dependants, in that they must all qualify on an individual basis, the impact of the change is only negatively experienced by dependants who are new immigrants who suffer from disabilities and those minor dependants who are present in Ontario on Minister’s Permits due to the fact that they

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are medically inadmissible for landing. By contrast, immigrant dependants without disabilities will be able to satisfy the federal immigration medical requirements on their own, and are therefore relatively unaffected by the change. Minor dependants with disabilities who are not immigrants from foreign countries do not face the immigration medical requirement hurdle, and will qualify for OHIP. Thus, dependants who are new immigrants and who are disabled, and dependants who are present in Ontario on Minister’s Permits due to their disabilities suffer an adverse impact as a result of their disability and national origin, place of origin or status as a new immigrant. The second step: The law is discriminatory i) As is set out immediately above, the distinction is made on the basis of enumerated and

analogous grounds.

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ii) The distinction imposes a disadvantage not imposed on others: 220. But for the repeal of the provision allowing for automatic coverage of minor dependants, Raja Irshad would have coverage as a dependant of his father. Because of the repeal, Raja Irshad was placed in the position of having to meet the criteria set out in subsection 1.1(1)(b)4 or 10 of the regulation, as well as establishing “ordinary residence” as defined. Had Raja Irshad not been disabled, he would have been able to satisfy one of these criteria, as his brother did. He is as yet unable to do so because of his disability. Had Raja Irshad not been a new immigrant, he would not have been required to meet the federal immigration medical requirements incorporated in ss.1.1(1)(b)4 or 10. Thus, the effect of the repeal of automatic dependant coverage was to deny Raja Irshad the benefit of OHIP coverage by reason of his national origin, place of origin, or immigration status, and because of his disability. 221. Not all disabled dependants who come to Ontario from foreign countries are denied access to automatic OHIP coverage. Raja Irshad’s situation can be contrasted with that of a disabled minor dependant not born in Canada whose parent is deemed, via subsection 1.1(b)6 or 8 of the regulation, to be a resident on the basis of the ostensible economic or spiritual value they bring to the province. A disabled minor dependant not born in Canada gets automatic OHIP coverage in these circumstances pursuant to subsection 1.1(1)(b)7 and 9. As a result of this exception to the revocation of coverage for minor dependants, Raja Irshad, the son of a Canadian citizen, cannot get coverage, whereas the disabled son of a foreign executive or foreign clergy person who has no intention of establishing a long-term connection to Ontario, will receive automatic coverage. 222. The purposes of section 15 are engaged by the Respondents’ amendments to the automatic dependant coverage provisions which fly in the face of ameliorating disadvantage to those who are already disadvantaged. Summary: s.15 223. The vast majority of Ontario residents are eligible for a broad range of publicly funded medical services pursuant to a comprehensive and easily accessed scheme. The Applicants, as a result of the impugned legislative changes, have been denied the equal protection and benefit of OHIP coverage. Obviously, these changes have placed the Applicants in a position of much greater risk, physically and financially, than is experienced by those who can access the OHIP system. The Applicants have far fewer medical options than those available to individuals covered by OHIP. Because of the impugned provisions, none of the Applicants could be “secure in the knowledge that they are recognised at law as human beings being equally deserving of concern, respect and consideration.” The Respondents have made it clear that it does not consider them to be such people. B. Section 1 224. Section 1 of the Charter reads: The Canadian Charter of Rights and Freedoms guarantees the rights

and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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1. How Section 1 is Applied: 225. Section 1 is utilised to justify limitations placed on constitutionally guaranteed rights and freedoms. The Supreme Court has consistently indicated that section 1 places a significant burden on the government to demonstrate that the limit it has placed on constitutionally protected rights and freedoms are reasonable and justifiable. In order to meet this burden, the government must satisfy two central criteria: First, the objective of the impugned legislation or government action that limits

Charter rights must be of sufficient importance to justify over-riding a charter right. That is, the Court must be satisfied that the objective addresses concern that is so pressing and substantial that it warrants overriding constitutional rights.

Second, the government must show that the means chosen to attain those objectives

must be proportional or appropriate to the ends. The proportionality test has three aspects:

i) the limiting measures must be carefully designed to achieve

the objective, and must not be arbitrary, unfair or based on irrational considerations; and,

ii) they must impair the right as little as possible; and, iii) their effects must not so severely trench on individual or

group rights that the legislative objective, albeit important, is, nevertheless, outweighed by the abridgement of rights. Further, unless there is proportionality between the deleterious effects and the salutory effects of the measure, the measureme will not satisfy s.1.

R. v. Oakes, [1986] 1 S.C.R. 103, at 138-40, per Dickson C.J.C. Dagnais v. C.B.C. [1994] 3 S.C.R. 385 at 389, per Lamer, C.J.C. RJR MacDonald Inc. v. Canada (1995) 187 N.R. 1 per McLachlin J. at p.11, para 5, p.13,

para 9; per LaForest at 117 para 157

i) The Evidentiary Burden: 226. The section 1 inquiry is by its nature fact-specific. It is an exercise based on the facts of the law at issue and the proof offered in its justification and not abstractions. A rigorous approach to the Crown’s burden of proof will be taken. In order to satisfy the stringent standard of justification, there must be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. No matter how important the goal may seem, if the state has not demonstrated that the means by which it seeks to achieve it are reasonable and proportionate to the infringement of rights, then the law must fail. RJR MacDonald, supra, at NR p. 12, paras 8, 12 and pp.15-18, paras 13, 15 and 17 per McLachlin

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227. The government must shoulder a heavier justificatory burden when the Charter infringement is severe. Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1190 Speerin v. North Bay (1991), 5 OR (2d) 492 (Gen.Div.) Snow (Guardian ad Litem of) v Kashyap (1995) 53 ACWS (3d) (Nfld CA) 228. The government will not discharge its burden by submitting evidence which is primarily concerned with statutory interpretation or evidence which relates to the impugned legislation in a general way. Rather, evidence brought forth by the government must be specifically related to the test to be met under s.1 of the Charter. Symes supra per Iacobucci J at DLR p.564 ii) The Issue of Deference: 229. The Legislature and the Courts have independent obligations to ensure that legislation conforms with Charter principles. While the Court must weigh the legislature’s objectives, constitutionally protected rights must be given priority in the equation: Deference must not be carried to the point of relieving the

government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.

RJR MacDonald, supra, at NR p.17 per McLachlin J Edwards Books and Arts v. The Queen (1986) 35 D.L.R. (4th) 1, at 67 iii) The Objective: The Requirement of a Pressing and Substantial Concern: 230. In applying s. 1, the Court must determine whether the values which the legislature seeks to promote through the impugned statute are sufficiently important to justify the overriding the constitutional values enshrined in the Charter. Obviously, only objectives that are consistent with the values of a free and democratic society will qualify. The Supreme Court of Canada has emphasised that equality and respect for the inherent dignity of all human persons are among the most fundamental values of a free and democratic society. It is not enough for the governmental objective to be legitimate, or even merely “pressing and substantial”; it must be sufficiently pressing and substantial to override constitutionally protected equality rights. R. v. Oakes, supra, at 225

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231. The objective that is relevant to the section 1 analysis is the objective of the infringing measure. An objective that is ascribed to a measure after its enactment cannot provide the basis for a section 1 justification. The identified objective must lead to the enactment of the law, as the Court is concerned with the legitimacy of the intent of those who drafted and enacted the legislation. RJR MacDonald, supra, at 20, para 23 232. The Supreme Court of Canada has clearly and repeatedly recognised that “budgetary considerations cannot be used to justify a violation of s. 1.” The guarantees of the Charter would be illusory if they could be overridden simply in pursuit of administrative and budgetary convenience. A shortage of institutional resources cannot be used to render Charter rights meaningless. In McKinney, it was held: [I]n a period of economic restraint competition over scarce resources will almost

always be a factor in the government distribution of benefits. Moreover, recognition of constitutional rights and freedoms of some will in such circumstances almost inevitably carry a price which must be borne by others. Accordingly, to treat such a price...as a justification for denying the constitutional rights of the [claimants] would completely vitiate the purpose of entrenching rights and freedoms.

In Egan, supra, Justice Cory (for Iacobucci, McLachlin), stated: The jurisprudence of this Court reveals, as a general matter, a reluctance to accord

much weight to financial considerations under a s. 1 analysis. In Schachter, supra, at p. 709, the Chief Justice noted that "[t]his Court has held, and rightly so, that budgetary considerations cannot be used to justify a violation under s. 1". This is certainly the case when the financial motivations are not, as in the case at bar, supported by more persuasive arguments as to why the infringement amounts to a reasonable limit.

McKinney, supra, at 617 Egan supra per Cory J., at NR p. 229

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iv) The Means: The Proportionality Test: a) The requirement of a rational connection to the objective: 233. A restriction on Charter rights must be carefully designed to meet the objective, and cannot be arbitrary, unfair or based on irrational considerations. Rodriguez v British Columbia (Attorney General), per Lamer, C.J.C., at NR p.106 234. Where access to benefits is based on attainment of a particular status or “marker”, the legislature must choose a “marker” that is reasonably relevant to the legislative goal. Where the government does not choose a marker that is rationally connected to its stated objective, it cannot justify restrictions under s.1. Miron, supra, at NR p. 290, per McLachlin J. (for Sopinka, Cory, Iacobucci JJ.) para 53 Austin v British Columbia (Ministry of Municipal Affairs) (1990) 66 DLR (4th) 33 Pearkes v Canada (1993) 72 FTR 90 (TD) M v H, (1995) 27 OR (3d) 593, aff'd (1996) 31 OR (3d) 417 (CA) at 27 OR p.611 235. Conservation or allocation of scarce resources may in a proper case be served by distinctions in a benefits program, but the rational connection test will be used strictly in such cases to ensure that the restrictions do not simply promote the very inequalities the program was designed to alleviate. Moreover, in applying the test, the mere assertion by government that the removal of the discrimination will result in cost consequences will not satisfy the rational connection requirement. Ontario Human Rights Commission v. Ontario (1994), 19 O.R. (3d) 387 (C.A.) at 405-407 per Weiler J.A.

b) The requirement of minimal impairment: 236. To meet this aspect of the section 1 test, the government must demonstrate that it could not have met its valid objectives in any way less intrusive on constitutionally protected equality rights. Furthermore, it must demonstrate that it considered alternatives less intrusive on such rights. RJR-MacDonald, supra, 237. Judicial deference in section 1 most typically becomes an issue in relation to the second test of the three part proportionality test, particularly when this test is being applied to remedial “social” legislation in which the legislature is making choices about the allocation of scarce resources between different disadvantaged groups. The Supreme Court of Canada has accepted that deference to government’s discretion to determine what and how to spend on social programs cannot be absolute: ...members of this Court have suggested that deference should not be accorded to the

legislature merely because an issue is a social one or because a need for governmental incrementalism is shown; see Egan, supra, at para 97 (per L’Heureux-Dubé J.) and at paras 215-216 (per Iacobucci J.). In the present case, the failure to provide sign language interpreters would fail the minimal impairment branch of the Oakestest under a deferential approach...the leeway to be granted to the state is not infinite. Governments must demonstrate that their actions infringe the rights in question no more than is reasonably necessary to achieve their goals. Thus, I stated

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the following for the Court in Tétreault-Gadoury, supra, at p.44: It should go without saying, however, that the deference that will be

accorded to the government when legislating in these matters does not give them an unrestricted licence to disregard an individual's Charter rights. Where the government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down.

Eldridge, supra, at N.R. 230-232, paras 85, 86 Rodriguez v British Columbia (Attorney General), per Lamer, C.J.C., at p.110-111, para 196 RJR MacDonald, supra, at N.R. p.17, per McLachlin J. c) The requirement that the abridgement not outweigh the objective or the statutory effects of the measure: 238. The inquiry at the third stage must examine the nature of the right which has been infringed and the extent of the infringement. As was written in Oakes: Some limits on rights and freedoms protected by the Charter will be more serious

than others in terms of the right or freedom violated, the extent of the violation and the degree to which the measures trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justifiable in a free and democratic society.

R. V. Oakes, supra, at p.228 239. The Oakes formulation of the third test has been updated, such that the Court now recognises that even if an objective is of sufficient importance, the first two elements of the proportionality test are satisfied, and the deleterious effects are proportional to the objectives, it is still possible that because of a lack of proportionality between the deleterious effects and the salutary effects of a measure, the measure will not satisfy section 1.The test requires that there must be a proportionality between both the deleterious effects of the measures which are responsible for limiting the rights or freedoms and the objective, and that there be a proportionality between the deleterious and the salutary effects of a measure. Dagenais v. C.B.C. [1994] 3 S.C.R. 385 at 889, per Lamer, CJC. 2. Application of Section 1 Test in this case: (a) The Three Month Waiting Period The First Step: Is the objective such a pressing and substantial concern that it justifies

the abridgement of Charter equality rights?

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240. The Respondents’ stated objectives for introducing the three month waiting period are three-fold: to prevent people from coming into Ontario just to receive medical care, without any

real intention of living in Ontario (“deterrent objective”); to ensure consistency of coverage among all new arrivals to Ontario; and to achieve cost savings. 241. It is submitted that these stated objectives have not been shown to be such pressing and substantial concerns that an abridgment of Charter equality rights is justified. In particular: Deterrent Objective Other than a bald assertion by Heath, the Respondents have not adduced any

evidence to support the allegation that individuals come into Ontario just to receive medical care without any real intention of living in Ontario. Without any supporting evidence to substantiate that the concern is, in fact, a pressing and substantial problem (as opposed to a stereotypical assumption), the Respondents have not satisfied rigorous evidentiary burden on them to establish the pressing and substantial concern.

Consistency Among New Arrivals There may be an administrative interest in establishing consistency among new

arrivals. However, no evidence was adduced to indicate why consistency of this kind was such a pressing and substantial concern of the government that it warranted the abridgment of Charter rights. It is submitted that the goal of mere administrative convenience should never be seen as a goal of such pressing and substantial importance as to justify violation of the fundamental rights protected by the Charter.

Cost Savings Cost saving was not specifically identified by the Respondents as an intended

objective for implementing the three month waiting period. There is absolutely no evidence to suggest that curbing the expense to the system incurred by new applicants during their first three months as ‘residents’ was such a pressing and substantial concern that the fundamental equality rights protected by the Charter should be abridged. In any event, as stated by the Supreme Court of Canada: “budgetary considerations cannot be used to justify a violation under section 1”.

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The Second Step: Do the means of achieving the objective satisfy the proportionality test?

(i) Is there a rational connection between the means and the objective? 242. It is submitted that there is no rational connection between the means, that is the three month waiting period, and any of the stated objectives: Deterrent Objective As stated above, Respondents have not adduced any evidence to support the

allegation that individuals come into Ontario just to receive medical care without any real intention of living in Ontario. Nor have the Respondents adduced any evidence to demonstrate that the three month waiting period was carefully designed to meet the deterrent objective. Rather, the evidence is that after an application for OHIP is made, the health card is automatically sent out after the three month waiting period expires without any further inquiry as to whether the applicant continues to reside in Ontario. An individual who has applied for OHIP may not, in fact, reside in Ontario for the duration of the three month wait, or afterwards. The Ministry does not seek confirmation, at the end of the three month waiting period, or subsequently, that the applicant has continued to reside in Ontario. Thus the three month waiting period would not serve as a deterrent to individuals who intend to come to come to Ontario for either non-emergency medical services that can be postponed until after the expiration of the three month wait or for emergency medical services that arise after that time. Accordingly, it is submitted, the Respondents have failed to satisfy evidentiary burden that three month waiting period is rationally connected to the deterrent objective.

Consistency Among All New Arrivals Rather than creating consistency among new arrivals to Ontario, the evidence

demonstrates that the three month waiting period achieves the converse. In particular:

There is an inter-provincial eligibility and portability agreement which ensures that individuals coming to Ontario from another province will receive the benefit of public health care provided by their former province of residence. The waiting period for these individuals is a maximum of three months and may be as short as two months plus one day.

There is a long-standing Ministry of Health policy that enables Residents

who are leaving Ontario for an extended period of time and who are intending to return to Ontario to apply to the Ministry for an exemption from the three month waiting period that would be imposed upon their return. Such exemptions are granted at the discretion of the Ministry.

There is no existing discretion within the Ministry to exempt new immigrants

from the three month waiting period. The only group upon which a mandatory three month wait is imposed without any discretion or guarantee of alternative coverage is the new registrants from out-of-country, that is, new immigrants.

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Thus the impugned three month waiting period does not create consistency among all new arrivals in Ontario. Consequently, it is submitted, the means is not rationally connected to the stated objective.

Cost Savings The Respondents have not conducted any study or adduced any evidence to

demonstrate actual cost savings as a result of the three month waiting period. Rather, the Respondents agree that the effect of the three month waiting period might be to increase the net cost to the system as a result of residents delaying treatment until coverage commences and having their conditions worsen in the interim. It is thus submitted that the Respondents have failed to meet their evidentiary burden to establish that the three month waiting period is rationally connected to the objective of cost savings.

(ii) Do the means satisfy the objective of minimal impairment? 243. The Applicants submit that the minimal impairment tier of the section 1 analysis only becomes engaged if the government has established that the impugned means in fact achieved the government’s pressing and substantial objectives. Indeed, requiring the government to show that it “could not have met its valid objectives in any way less intrusive on constitutionally protected equality rights” presupposes firstly, that the objectives are valid and, secondly, that the objectives were achieved. 244. In the instant case there is no evidence that the three month waiting period enabled the government to achieve any of its stated objectives (deterrence, consistency among new arrivals, or cost savings). Moreover, there is no evidence that the Respondents considered any alternative means to achieve these objectives. 245. With respect to deterrence, the Respondents did not consider the possibility of reimbursing residents who could demonstrate that they were ordinarily resident in Ontario during and after the three month waiting period (and thus could establish that they were bona fide applicants) for the cost of insured services received during that period. Indeed, no reimbursement scheme was considered at all. The deterrence objective could have been satisfied by a less intensive means. 246. The Respondents’ amendments did not achieve consistency amongst new registrants. If the government had come closer to achieving actual consistency (by imposing an equivalent waiting period and by enacting a policy to allow discretionary coverage based on individual circumstances), the violation would have been less intrusive of the section 15 right to equal protection and benefit of the law. 247. The Respondents have provided no explanation in evidence as to why it was appropriate to impose a total denial of OHIP coverage on new residents as a method of saving costs, rather than equitably imposing the costs associated with such savings on all residents covered by OHIP. Spreading the costs would certainly have been a means of achieving the desired objective

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that was for less intrusive on fundamental equality rights. (iii) Does the abridgement outweigh the objective or the salutory effects of the measure? 248. The Applicants are not aware of any evidence of any salutory effects of the three month waiting period. At its highest, the abridgment may result in fewer fraudulent claims by non-residents and may result in some modest savings for OHIP. In contrast, the deleterious effects on theApplicants are substantial. They are totally denied access to the protection and benefit of publicly funded health care -- which must be seen as a foundational pillar of Canadian society. This denial has an immediate effect of potentially imposing significant monetary burdens on the Applicants, and an obviously foreseeable effect of creating substantial medical risks. In our free and democratic society, where respect for the inherent dignity for the human person is paramount, the balance must be decided in favour of the Applicants in these circumstances. (b) Re-Defining “Resident” The First Step: Is the objective such a pressing and substantial concern that it justifies

the abridgement of Charter equality rights?

249. The Respondents’ stated objective for re-defining “resident” was to remove the benefit of OHIP coverage from some “temporary” residents and to “put more emphasis on people who had a certain degree of permanency about being a resident of the province” in order to preserve the long and short term viability of OHIP for residents of Ontario. Put another way, the Respondents’ objective for re-defining resident was to achieve cost savings by narrowing the definition. 250. At the time of enacting the impugned amendments, as the evidence makes abundantly clear, it was not an objective to gain cost savings at the expense of individuals on non-visitors Minister’s Permits. 251. The Respondents’ stated objective did not include cost savings through the deprivation of the benefit of OHIP coverage from individuals who were not “temporary” residents in the province. 252. The Applicants challenge the new definition of “resident” insofar as it excludes individuals on non-visitors Minister’s permits and others who have established a substantial degree of permanence in Ontario. In relation to these individuals, the Respondents had no stated objective at the time of enacting the impugned amendments. Only since the commencement of this Application have the Respondents attempted to ascribe the cost savings objective to the exclusion of these individuals. It is thus submitted that the Respondents fail this tier of the section 1 analysis as there is no evidence that there was a pressing and substantial objective in relation to these individuals at the time of the enactment of the impugned amendment. 253. In relation to the concern identified (the need to reduce the scope of “resident” in order to maintain the viability of OHIP) the Applicants assert that the Respondents have not met

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their evidentiary burden of demonstrating that there was, in fact, a pressing and substantial concern that could justify the abridgment of any Charter rights. While there is evidence that financial cut backs were being required of the Ministry of Health, as they were of every other Ministry, at the time that the impugned amendments were enacted, there is a notable paucity of evidence in support of the Respondents’ assertion that steps needed to be taken, as a matter of fact, to preserve the long and short term viability of OHIP. The Respondents have failed to meet their evidentiary burden of demonstrating that a concern of such pressing and substantial import as is required to justify the abridgment of the fundamental equality rights protected by the Charter actually existed. The Second Step: Do the means of achieving the objective satisfy the proportionality test?

(i) Is there a rational connection between the means and the objective? 254. In order for the Respondents to satisfy the Court that there is a rational connection between the objectives and the enactment of the impugned provisions they would have to demonstrate that the provisions were carefully designed to achieve the stated objective. As stated above, the Respondents did not intend the removal of coverage for non-visitor Minister’s Permit holders to assist in achieving the objective. In such circumstances it is impossible to satisfy the rational connection test as there was no rational intention at the time of the enactment. 255. Similarly, as the Respondents articulated an intention to only remove the benefit of OHIP coverage from individuals who could not establish a substantial degree of permanence in Ontario (such as foreign students and visitors), insofar as the change in the definition of resident excludes individuals who are able to establish a substantial degree of permanence despite their inability to satisfy the medical requirements for landing, the amendment is overbroad and has not been carefully designed to achieve the objective. Such individuals who have been able to achieve a substantial degree of permanence in Ontario are being denied coverage in an arbitrary manner. 256. It is particularly telling that at the time of the enactment of the impugned provisions, or at any point to date, no estimate had been conducted as to the potential cost savings of removing certain non-visitor Minister’s Permit holders and others who have established a substantial degree of permanence in Ontario from the definition of “resident”. In fact, the Ministry of Health representative candidly admitted that the Ministry does not track the number or have an estimate of the number of case type 92 Minister’s Permit holders residing in Ontario. The Ministry does not know the potential cost that would be incurred if coverage were provided to such individuals. The Applicants submit that the Respondents’ lack of knowledge or data in this regard further demonstrates that the impugned amendments were not carefully tailored to achieve the stated objective. 257. In effect, the Respondents have chosen as a “marker” the ability of individuals to meet medical requirements imposed by the federal government as part of the immigration scheme. As the Applicants Melvin and Raja Irshad make clear, this marker is not rationally connected to the objective of limiting OHIP coverage to individuals who have a substantial degree of permanence within the province. Despite failing to meet the medical requirements for landing, such individuals are entitled to legally remain in Ontario, establish a substantial connection to the province over a significant number of years, are ordinarily resident in Ontario and make it their home.

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258. Finally, it is difficult to give credence to the purpose of directing health care to persons with a substantial degree of permanence in Ontario given that the impugned definition of resident extends eligibility to persons who clearly intend to be in Ontario for a limited period of time, (s.1.1(1)(b)6, for example). It is apparent that the definition of “resident” was not carefully designed to achieve its stated objective. (ii) Do the means satisfy the objective of minimal impairment? 259. The effect of the impugned provisions is to absolutely impair the right to equal benefit and protection of OHIP coverage. Individuals who cannot satisfy the definition of “resident” because of their disabilities receive no OHIP coverage. The Respondents were obliged to consider alternatives to this complete abridgment of equality rights. In the case of non-visitors Minister’s Permit holders we know that this could not have happened as the Respondents had no intention of affecting them by amending the definition of resident. With respect to other individuals who have been denied OHIP coverage on the basis of their disability despite their substantial connections to the province, there is no evidence that the Respondents considered any alternatives other than complete denial of coverage. 260. It is almost trite to point out that an alternative that could have been considered was imposing the cost of the necessary savings more equitably upon all individuals who have established a substantial connection with the province of Ontario. (iii) Does the abridgement outweigh the objective or the salutory effects of the measure?

261. The Applicants are not aware of any evidence of any salutory effects of new definition of “resident” insofar as it affects non-visitor Minister’s Permit holders and others who have established a substantial degree of permanence in Ontario. The Respondents have never attempted to quantify the savings to the OHIP system that resulted from the denial of coverage to such individuals. However, at its highest, the salutory effect of excluding these individuals will be a relatively modest cost saving to the OHIP plan. In contrast, the Applicants are faced with a complete denial of access to the protection and benefit of publicly funded health insurance. This denial has an immediate effect of imposing potentially significant monetary burdens on the Applicants, and an obviously foreseeable effect of creating substantial medical risks. In our free and democratic society, where respect for the inherent dignity for the human person is paramount, the balance must be decided in favour of the Applicants in these circumstances. (c) Repeal of Automatic Coverage for Dependants The First Step: Is the objective such a pressing and substantial concern that it justifies

the abridgement of Charter equality rights?

262. The Respondents repeal of the automatic OHIP coverage for dependants of insured persons was motivated by a desire to effect a number of administrative changes regarding the recording and tracking of information pertaining to insured persons. It was anticipated that increased administrative efficiency and a decrease in the potential for fraud would result from the

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change from family-based assessment to individual-based assessment for OHIP eligibility. It is clear from the record that it took the government at least four years to make the change to the current system. What is not clear, however, is that this need for administrative efficiency was so pressing and substantial as to justify an abridgment of Charter equality rights. In fact, the Respondents have failed to satisfy their evidentiary burden in this regard. 263. The Respondents have not suggested that they intended to reduce the scope of OHIP eligibility through this amendment. As set out in detail above, the effect of this amendment has been to deny the benefit of OHIP coverage to individuals who previously would have been covered because of their status as dependants. The Second Step: Do the means of achieving the objective satisfy the proportionality test? (i) Is there a rational connection between the means and the objective? 264. The Applicants have no reason to believe that the move to individual-based assessment for OHIP eligibility would not increase administrative efficiency. However, the impugned amendments have had the unintended effect of reducing the scope of OHIP eligibility by denying coverage to individuals who previously would have been covered as dependants. The means were not tailored with adequate care to meet the objective as negative results of an unanticipated nature occurred.

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(ii) Do the means satisfy the objective of minimal impairment? 265. The impairment to individuals who would have had OHIP but for the impugned amendments is absolute. As stated above, the Respondents have not suggested that they intended to reduce the lawful scope or change the lawful scope of OHIP eligibility. Therefore, it is not surprising that there is no evidence that the Respondents considered alternatives that might have abrogated the right of those affected by the adverse impact of the change to equal benefit and protection of OHIP coverage to a lesser degree. Similarly, there is no evidence to suggest that the administrative objectives could not have been satisfied while also ensuring that no individuals would be discriminated against in a manner that violated their Charter rights through the adverse impact of the impugned amendments. As is clear from the fact that certain categories of dependants continue to receive automatic coverage, the provision of automatic dependant coverage is not, of itself, antithetical to the objective of increased administrative efficiency. (iii) Does the abridgment outweigh the objective or the statutory effects of the measure?

266. As the courts have previously recognized, mere increases administrative efficiency cannot justify the abridgment of Charter rights. In this case, the Applicants are faced with a complete denial of access to the protection and benefit of publicly funded health insurance. This denial has an immediate effect of imposing potentially significant monetary burdens on the Applicants, and an obviously foreseeable effect of creating substantial medical risks. In our free and democratic society, where respect for the inherent dignity for the human person is paramount, once again the balance must be decided in favour of the Applicants in these circumstances. Summary: Section 1 267. In the language of Eldridge, given the central place of good health in the quality of life of all persons in our society, the lack of provision of medical services necessarily diminishes the overall quality of life for the Applicants. The Respondents have simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Eldridge v. British Columbia, supra, at para 94 C. Remedy 268. Section 52(1) of the Charter provides as follows: The Constitution of Canada is the supreme law of Canada, and any law that is

inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Charter, supra, s. 52(1) 269. Section 52 of the Charter is engaged when a law is itself held to be unconstitutional as opposed to simply an action taken under it. The unconstitutional law will be struck down to the extent that it is inconsistent with the Constitution. Schachter v. Canada, supra at 27

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270. The range of remedies available to the Court pursuant to section 52 includes: Nullification, that is, striking down (declaring invalid) the statute that is inconsistent

with the Constitution; Temporary validity, that is, striking down a statute that is inconsistent with the

Constitution, but temporarily suspending the coming into force of the declaration of invalidity;

Severance, that is, holding that only part of the statute is inconsistent with the

Constitution, striking down only that part and severing it from the remainder; Reading in, that is, adding words to a statute that is inconsistent with the Constitution

so as to make the statute consistent with the Constitution and valid; Reading down, that is, interpreting a statute that could be interpreted as inconsistent

with the Constitution so that it is consistent with the Constitution; and, Constitutional exemption, that is, creating an exemption from a statute that is partly

inconsistent with the Constitution, so as to exclude from the statute the application that would be inconsistent with the Constitution.

Hogg, supra, at 37-3 271. Section 24(1) of the Charter reads: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed

or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Charter, supra, s.24(1) 272. In addition to the “defensive remedies” available under section 52, “affirmative remedies”, such as mandatory orders and damage awards are available under s. 24. Hogg, ibid. REMEDIES RELEVANT TO THE DEFINITION OF RESIDENT 273. The Applicants submit that the categorical restrictions imposed by the regulatory definition of “resident” are inconsistent with the Constitution and, accordingly, that items 1-11 of subsection 1.1 (1), of Ontario Regulation 552 ,as amended by Ontario Regulation 491/94, should be struck down pursuant to s. 52(1). 274. The list comprising items 1-11 is self-contained, and is severable from the remainder of Ontario Regulation 552, as amended. Removal of the list would leave the following definition of “resident” intact: 1.1(1) For the purposes of the Act, “resident” means an individual,

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(a) who is present in Ontario by virtue of an employment authorization issued under the Caribbean Commonwealth and Mexican Seasonal Agricultural Workers Programme administered by the federal Department of Citizenship and Immigration; or

(b) who is ordinarily resident in Ontario. 275. The applicants submit that the above-noted regulatory wording would be sufficient to bar persons with no substantial connection to Ontario from OHIP eligibility, given that subsection 1.1(2)(b) of Ontario Regulation 552, as amended, defines “ordinarily resident” as follows: ... (b) in the case of a person who is applying to be an insured person for the first

time...the person, (i) intends to make his or her permanent and principal home in

Ontario, and

(ii) is present in Ontario for, (a) at least 183 days in the twelve-month period

immediately following the application, and

(b) at least 153 of the 183 days immediately following the application.

276. In the alternative, the Applicants request that this Honourable Court: a. strike down part of item 4 of subsection 1.1 (1), from “and” to “landing”, such that

the item would read: 1.1(1) For the purposes of the Act, “resident” means an

individual, ... who is ordinarily resident in Ontario and who is one of

the following: ... 4. A person who has submitted an application for landing

under the Immigration Act (Canada), who has not yet been granted landing.

and, b. read in the number "92" to the Minister's Permit case types listed in item 10 of

subsection 1.1(1)(b). REMEDIES RELEVANT TO THE THREE-MONTH WAITING PERIOD 277. The Applicants submit that the restriction imposed by the three-month waiting period is inconsistent with the Constitution and, accordingly, that subsection 3(3) of Ontario Regulation 552, as amended, should be struck down pursuant to s. 52(1). Subsection 3(4) of the regulation, which comprises exceptions to the three-month wait, would thereby be rendered redundant.

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REMEDIES RELEVANT TO THE REMOVAL OF COVERAGE FOR DEPENDANT CHILDREN 278. The Applicants submit that the removal of dependant coverage for most minor children is inconsistent with the Constitution and, accordingly, request this Honourable Court to strike down s. 70 of the Budget Measures Act, S. O. 1990, c.17. This would restore the former language of s.11(2) of the Health Insurance Act: 11(2) Every dependent of an insured person is an insured person. Health Insurance Act, s.11(2) REMEDIES RELEVANT TO THE DENIAL OF OHIP TO EACH APPLICANT 279. The Applicants submit that the denial of OHIP in each of their individual cases is inconsistent with the Constitution and, accordingly, request this Honourable Court, pursuant to s. 24(1), to: a. grant them a declaration of entitlement: i. for Applicants Melvin, Tudor, Sergio and Leandra, as of the date their

OHIP was cut off, (1 April, 1994, the date the impugned amendments came into effect);

ii. for Applicants Assan, Karthigesu, Dobrescu and Irshad, as of the date of their arrival in Ontario as permanent residents (landed immigrants) or on a Minister's Permit;

iii. for Applicant Simon, as of the date she, having married a Canadian citizen, filed an application for permanent residence;

and, b. an order that the Applicants be reimbursed for the cost of medical services

incurred, which services would have been covered by OHIP as insured services, had each Applicant been insured at the relevant time.

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PART V - ORDER REQUESTED 280. The Applicants respectfully request that the Court make the following order: “Subsection 3(3) of Ontario Regulation 552, as amended by Ontario Regulation

491/94, offends s. 15 of the Canadian Charter of Rights and Freedoms, and is struck down”;

“Items 1-11 of subsection 1.1(1)(b) of Ontario Regulation 552, as amended by

Ontario Regulation 490/94, offends s. 15 of the Canadian Charter of Rights and Freedoms, and are struck down”;

In the alternative to (b), supra, “Items 4 and 10 of subsection 1.1(1)(b) of Ontario

Regulation 552, as amended by Ontario Regulation 490/94, offend s.15 of the Canadian Charter of Rights and Freedoms, and that:

(i) in respect of item 4 of section 1.1(1)(b), that part of item from

"and" to "landing" are struck down, and (ii) in respect of item 10 of section 1.1(1)(b), the number "92" is to

be read in to the Minister's Permit case types listed”; “The exclusion of dependant children of insured persons from automatic OHIP

coverage under the Health Insurance Act R.S.O. 1990, c. H-6, offends s. 15 of the Canadian Charter of Rights and Freedoms, and that section 70 of the Budget Measures Act, SO 1994, c.17 is struck down”;

“Applicant Raja Jawad Irshad has been entitled to coverage since 10 February 1996”; “Applicants Marie Antoinette Tudor, Sergio Bodington and Leandra Bodington have

been entitled to coverage since 1 April 1994, the effective date of the impugned amendments”;

“Applicant Robert Melvin has been entitled to coverage since 1 April 1994, the

effective date of the impugned amendments”; “Applicant Gnei Assan has been entitled to coverage since 18 August 1994”; “Applicant Nagulambikai Karthigesu has been entitled to coverage since 4 September

1994”; Applicant Gabriella Simon has been entitled to coverage since 26 October 1994”; “Applicant Anna Dobrescu has been entitled to coverage since 10 October 1994”;

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“The General Manager of the Ontario Health Insurance Plan shall grant coverage

under the Act to the Applicants effective from the dates noted in paragraph (e)-(k), and reimburse the Applicants for expenses incurred after these for medical services that would otherwise have been insured by OHIP”;

“The Applicants shall have their costs of this Application on a solicitor and client scale

together with G.S.T.”; and Such further and other relief as counsel may advise and this Honourable Court permit.

ALL OF WHICH IS RESPECTFULLY SUBMITTED Chris G. Paliare John J. Monger Odette S. Soriano Of counsel for the Applicants