Flora v Ontario Health Insurance Plan

2008 ONCA 538
Download Judgment: English


The appellant was diagnosed with liver cancer but was told he was not eligible for a liver transplant in Ontario. The appellant was eligible for a liver transplant according to the UK criteria and received a transplant in London, but his request for the Ontario Health Insurance Plan (OHIP) to cover the cost of this procedure was denied. Both the Health Services Appeal Board and the Divisional Court upheld the denial, as the treatment was found to not be an “insured service” under OHIP regulations. The Ontario Court of Appeal upheld this decision. The Court further held that the regulation did not violate the appellant’s s. 7 Charter right to life, liberty and security of person by effectively denying him access to health-care.


The appellant, Mr. Flora, was diagnosed with liver cancer. Doctors in Ontario told him he was not a suitable candidate for cadaveric liver transplantation according to medically-established guidelines known as the Milan criteria, as his cancer had progressed too far. The Milan criteria is used to define who is eligible for a liver transplant based on the size and number of tumors, thus prioritizing candidates who have high chances of survival given the chronic shortage of transplant organs. The appellant considered his options in England at the Cromwell Hospital, where the Cromwell criteria for eligibility for liver transplants was more lenient. The appellant was selected as eligible for a liver transplant in England. As his wait time would be too long for a cadaveric liver transplant, he was given a living-related liver transplantation (LRLT)—a procedure not yet available in Ontario at the time of his treatment. The applicant’s request for compensation of the LRLT, which cost $450 000, to Ontario Health Insurance Plan (OHIP) was denied, but he decided to proceed with the surgery anyways.

The appellant then sought a review of OHIP’s decision at the Health Services Appeal and Review Board. The Board upheld the denial of reimbursement as the treatment was not an “insured service” under the Health Insurance Act and s. 28.4(2) of R.R.O 1990, Reg. 552. According to the OHIP regulations, for an out-of-country procedure to be funded two criteria must be met. The procedure must be considered appropriate treatment in Ontario, and it must be either not available in Ontario in an identical or equivalent procedure or it must be necessary to complete elsewhere because time delays in Canada would result in death or medically significant harm. The Board held that the procedure was not considered appropriate for an individual in the appellant’s medical circumstances by doctors in Ontario.

The appellant appealed to the Divisional Court arguing that his treatment was medically appropriate under s. 28.4(2)(a) because it would potentially benefit him. Alternatively, the appellant claimed that the definition of insured service in the OHIP regulation was contrary to the Canada Health Act which has a stated purpose of “facilitat[ing] reasonable access to health services without financial or other barriers”. The appellant further argued that the definition violated s. 7 of the Canadian Charter of Rights and Freedoms, infringing his right to life, liberty and security of the person. The Divisional Court of Ontario dismissed his appeal; the Court held the Board did not err in their interpretation of s. 28.4(2)(a) of the Regulation and the Court rejected the s. 7 challenge. The appellant appealed again to the Ontario Court of Appeal.


Health Insurance Act, R.S.O. 1990, c. H.6
s. 11.2(1): The following services are insured services for the purposes of the Act:
1. Prescribed services of hospitals and health facilities rendered under such conditions and limitations as may be prescribed.
2. Prescribed medically necessary services rendered by physicians under such conditions and limitations as may be prescribed.
3. Prescribed health care services rendered by prescribed practitioners under such conditions and limitations as may be prescribed.

R.R.O 1990, Reg. 552
s. 28.4(2): Services that are part of a treatment and that are rendered outside Canada at a hospital or health facility are prescribed as insured services if,
(a) the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances, as the insured person; and
(b) either,
(i) that kind of treatment that is not performed in Ontario by an identical or equivalent procedure
(ii) that kind of treatment is performed in Ontario but it is necessary that the insured person travel out of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage.

Canada Health Act, R.S.C. 1985, c. C-6
s. 3: It is hereby declared that the primary objective of Canadian health care policy is to protect, promote and restore the physical and mental well-being of the residents of Canada and to facilitate reasonable access to health services without financial or other barriers.

Canadian Charter of Rights and Freedoms
s. 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Court of Appeal upheld the Board’s decision that the appellant’s treatment was not an insured service as defined by the Health Insurance Act and s. 28.4(2) of Regulation 552. The Court agreed with the Board’s interpretation of what is required to be “appropriate” medical treatment in Ontario. Appropriateness of the treatment is not meant to be measured based on medical efficacy i.e. whether treatment is available that could benefit the patient. Other factors must be considered such as patient survival prospects. The regulation is not meant to allow patients to receive funding based solely on foreign assessments concerning potential benefits of the treatment. This would be an overly broad approach to publicly-funded health care.

The Court of Appeal held that denying coverage for life-saving operations was not inconsistent with the purpose of the Health Insurance Act and the Canada Health Act. The Acts have a purpose of “providing access to health care on basis of medical need, not ability to pay.” Under this scheme, determining what health care services are appropriate and should be accessible to patients is up to health professionals. Neither the Act nor Regulation promise public funding for all medically beneficial treatment. Limiting funding for out-of-country treatments to those that are accepted in Ontario helps protect the integrity of Ontario’s health care system by ensuring public funding is only used on treatments that reflect values of the Ontario public and medical professionals.

The Court of Appeal held that the denial of the appellant’s claim for reimbursement was not a violation of his s. 7 Charter right. To engage s. 7, there must be a deprivation of the right to life, liberty or security of the person—but no such deprivation was present in this case. Denying the appellant reimbursement for the procedure did not deprive him of access to a life-saving medical treatment; he was not prohibited from seeking private treatment. S. 28.4(2) does not limit the available medical services in Ontario, but extends benefits for limited out-of-country treatments not otherwise available in Ontario. Not funding all out-of-country medical treatments does not deprive Canadians of s. 7 Charter rights. Additionally, the Court held that the legislature’s decision to amend the former version of the Regulation that would have provided the appellant with funding was not a Charter infringement. There was no constitutional requirement for the law to exist in the first place, and therefore the government could change the law even if the original form better supported Charter values. Finally, the Court held that s. 7 has not been extended to establish positive economic rights surrounding health care. The government was providing a financial benefit not required by law in the form of reimbursement for some out-of-country medical treatments, and limitations placed on the scope of this benefit did not violate s. 7. S. 7 does not impose a positive constitutional obligation on the Ontario government to fund all treatment.

The Court held that the Board’s decision should be upheld, and the appeal was dismissed.

Para 96: “’The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, the scheme must comply with the Charter’.”

Para 101: “Section 28.4(2) neither prescribes nor limits the types of medical services available to Ontarians. Nor does it represent governmental interference with an existing right or other coercive state action. Quite the opposite. Section 28.4(2) provides a defined benefit for out-of-country medical treatment that is not otherwise available to Ontarians — the right to obtain public funding for certain specific out-of-country medical treatments. By not providing funding for all out-of-country medical treatments, it does not deprive an individual of the rights protected by s. 7 of the Charter.”

Para 105-107: “The Supreme Court of Canada has expressly left open the question of whether a positive right to a minimum level of health care exists under s. 7. […] But, to date, the protection afforded by s. 7 of the Charter has not been extended to cases — like this one — involving solely economic rights. As this court stated in Wynberg, supra at para. 220, s. 7 of the Charter has been interpreted ‘only as restricting the state's ability to deprive individuals of life, liberty or security of the person’ […] On the facts here, there was no law restricting Mr. Flora's ability to spend his own money to obtain a LRLT at a private hospital in England. Indeed, that is precisely what he chose to do.”

Para 108: “[O]n the current state of s.7 constitutional jurisprudence, where—as here—the government elects to provide a financial benefit that is not otherwise required by law, legislative limitations on the scope of the financial benefit provided do not violate s.7. On the law at present, the reach of s. 7 does not extend to the imposition of a positive constitutional obligation on the Ontario government to fund out-of-country medical treatments even where the treatment in question proves to be life-saving in nature.”