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Extending health care entitlement to lawful non-transient international migrants: untapped potential of the universality principle in the Canada Health Act.



Across Canadian provinces and territories, health insurance benefits are restricted to individuals who qualify as residents. In 7 of the 13 Canadian jurisdictions-namely, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, and Yukon-a "resident" for the purpose of assessing medicare eligibility is described in relevant legislation (100) in a manner that either reproduces or closely follows the definition of resident found in the CHA. That is, in general, a health insurance beneficiary in these provinces and territories must be someone lawfully entitled to be or to remain in Canada, meet the residency requirement so as to be considered ordinarily present in the concerned jurisdiction, and is not a tourist, transient, or visitor. In contrast, a medicare-eligible resident in British Columbia, Ontario, or Quebec is defined as a person who not only has established ordinary presence or domicile in the said province, but also holds one of the citizenship and immigration statuses enumerated in relevant laws and regulations. (101) Alberta, Manitoba, and Saskatchewan have adopted a hybrid model whereby individuals would qualify as residents for the purpose of provincial health insurance if they either fall within the ambit of a definition that essentially resembles its counterpart in the CHA or possess one of the prescribed immigration statuses that would bestow upon them deemed residency. (102)

Despite these diverse approaches to determining who constitutes a resident, all provinces and territories have extended medicare benefits to Canadian citizens and foreign nationals with permanent resident status upon their satisfactory demonstration of ordinary presence in the jurisdiction. However, public health insurance coverage for non-citizens whose stay in Canada is temporary is inconsistent across the country and varies according to immigration statuses. In the following subsections, I aim to illustrate the health coverage gaps facing temporary international migrants by examining the health care entitlement of four particular groups: temporary foreign workers, international students, holders of Parent and Grandparent Super Visas, and asylum seekers.

1. Temporary Foreign Workers (TFWS)

Recall that it is my contention that a properly interpreted universality criterion would demand all lawfully admitted foreign workers, regardless of their length of stay in Canada, to be covered by medicare upon their meeting the condition of ordinary presence in a province or territory. Indeed, unlike other groups of temporary international migrants examined in this paper, every provincial and territorial health plan currently extends coverage to at least some foreign nationals who are in the country for short-term employment.

Generally, most TFWs can qualify for medicare if they hold a work permit that would remain valid for the duration necessary to establish ordinary presence in a jurisdiction, which is normally either 6 or 12 months. For instance, in British Columbia, a medicare-eligible resident is deemed to have fulfilled the residency requirement if he or she is physically present in the province for at least six months in a calendar year. (103) Correspondingly, TFWs who possess an employment authorization valid for more than six months are considered "residents" and therefore prima facie covered by the British Columbia Medical Services Plan. (104) In comparison, most TFWs in Newfoundland and Labrador are only eligible for provincial health insurance if they have a work visa that is valid for 12 or more months, since the province interprets a resident who makes his or her home therein as someone with "the stated intention, under oath, ... to live in Newfoundland and Labrador for a period of at least twelve consecutive months." (105) However, TFWs in the Seasonal Agricultural Worker Program, notwithstanding their markedly short stay in Canada (i.e., up to eight months per year), are expressly granted medicare in Ontario and Quebec, (106) which host the bulk of migrant farm workers in the country. (107)

Although inter-jurisdictional discrepancies concerning the length of work permits needed by TFWs to qualify for medicare arguably stand at odds with the CHA's goal of fostering a national standard across various provincial and territorial schemes, it is not immediately clear that they are per se in contravention of the universality criterion. As these inconsistencies stem from different understandings of the CHA's definition of resident, particularly what constitutes "making one's home and being ordinarily present in the province" it would appear that provinces and territories are technically complying with the universality principle so long as they impose the same residency requirement, however it is interpreted, on both TFWs and everyone else in their respective jurisdiction that are applying for medicare coverage. It will be up to both levels of government to work collaboratively to resolve this definitional ambiguity through their agreed-upon conflict avoidance and resolution mechanism. (108)

Comparatively, more problematic and likely in breach of the universality criterion are legislative regimes in Manitoba, Northwest Territories, and Yukon, where public health insurance is only available to TFWs possessing work visas that are valid for at least one year, but is extended to others on the ground that they demonstrate an intention of remaining in the province or territory for merely six months. (109) To the extent that TFWs in these jurisdictions are effectively demanded to fulfil a longer residency requirement than other persons in order to become eligible for medicare, it would seem that insured health services are not provided to all beneficiaries "on uniform terms and conditions" as mandated by the CHA's universality clause.

Another infraction of the universality criterion concerns medicare-ineligibility of some TFWs with an open work permit. As opposed to a closed work permit whose validity is contingent upon the holder's continuing to work for the employer and in the occupation listed on the document, an open employment authorization affords the holder more flexibility in the job market by not restricting him or her to a particular employer and at times even an identified location or occupation. (110) Insofar as closed permit holders have been found to be more vulnerable to exploitation and maltreatment at the hands of employers because of their inability to switch jobs, advocates have repeatedly urged the government to liberalize the employment authorization regime. (111) Paradoxically, until relatively recently, TFWs in Ontario and Quebec could only qualify for medicare if their employment authorization was closed in nature. Following legislative changes in April 2009, all TFWs with at least a six-month work visa are now in principle entitled to public health insurance in Ontario if they present a letter from an employer that states, among other things, an intent to hire the said worker for no less than six consecutive months. (112) However, to date, TFWs holding an open permit remain largely excluded from medicare in Quebec, (113) contrary to the universality principle and undermining the value of open permits in lessening TFWs' precariousness.


Based on my interpretation of the CHA's universality provision, I argue that all foreign students issued a study permit valid for at least 12 months should be considered LNTIMs and consequently entitled to medicare on equal terms with other qualified residents. However, at present, arguably only 6 of Canada's 13 jurisdictions are fully meeting this requirement. (114) In provinces like British Columbia and Manitoba, medicare is even offered to holders of student visas that are valid for

as short as six months. Nevertheless, in keeping with the emphasis of Canada's contemporary immigration system on economic gains, governments' decisions to grant health care benefits to foreign students in these jurisdictions are often described as being motivated by a desire to attract more skilled international migrants and to boost economic development rather than by an appreciation that such health care coverage is mandated by the CHA. (115)

Among the remaining jurisdictions, whereas New Brunswick, Ontario, and Prince Edward Island currently exclude all international students from their health insurance programs, the other four provinces and territories provide health care benefits to at least some foreign students, although the scope of such coverage falls well shy of satisfying the universality criterion. In Newfoundland and Labrador, only foreign students registered in a post-secondary institution are eligible for medicare. (116) In Quebec, an international student must either have received a government scholarship or be from one of the European countries that have entered into a social security reciprocity agreement with the province in order to qualify for public health insurance. (117) International students in Yukon are denied territorial health care benefits except if they are dependent children of TF Ws that hold a work permit valid for 12 or more months. (118) In Nova Scotia, foreign students face a 12-month waiting period before becoming eligible for medicare unless they also possess an authorization to work as a teaching or research assistant at a university, and their coverage is limited to services rendered within the province. (119) As neither conditions are imposed on other residents, they are arguably in contravention of the uniform-entitlement clause under the CHA's universality criterion.

It is noteworthy that many international students in these latter jurisdictions are not left completely uninsured as they are commonly obligated by governments and/or their educational institutions to purchase private health insurance. (120) For example, when Ontario decided to remove foreign students from its health care program in 1994, the Council of Ontario Universities not only introduced the University Health Insurance Plan (UHIP) as a substitute, but also mandated post-secondary international students' enrolment therein, unless they have coverage under one of the approved alternative insurance schemes. (121) While governments' reliance on a mixture of public and private insurance to secure health care coverage for residents, as I have remarked above, does not in principle frustrate the aim of health care for all, the practice in its current form nonetheless elicits at least two concerns in the Canadian context. First, according to multiple reports published by student organizations, private health insurance such as UHIP falls short of being truly equivalent to their public counterpart. In particular, problems have been identified concerning UHIP's accessibility, including expensive premiums that on occasions have jumped by more than 50% from one year to the next, as well as incomplete reimbursement of costs incurred, which have resulted in students commonly having to pay for treatment out of pocket. (122) Second, and even more importantly, the use of private insurance to extend health care coverage to international students, who I argue should qualify as insured persons under medicare, breaches the universality criterion as outlined in the CHA that specifically calls on provinces and territories to adopt a single-payer insurance model.


As I have already noted, since late 2011, elderly migrants who wish to avoid the long wait times associated with family sponsorship or whose relatives in Canada do not qualify as sponsors could apply for a new "super visa" to reunite with their family. However, whereas parents and grandparents who are sponsored as family-class immigrants are admitted into Canada as permanent residents and are therefore entitled to medicare, holders of the super visa not only are excluded from all provincial and territorial health care programs but are also required to purchase a private health insurance plan with a minimum of $100,000 coverage. (123) Like those for international students, private health care schemes for parents and grandparents have been criticized for charging prohibitive premiums, thus rendering them inaccessible to the less well-off, (124) and they may not cover individuals with certain pre-existing health conditions or may do so at an even higher price. (125) In addition to these equity concerns, I contend that super visa holders, at least those who clearly intend to remain in Canada for over 12 months, should rightly be considered LNTIMs instead of tourists or visitors pursuant to the UNWTO definition and be entitled to medicare; their blanket disentitlement to medicare is arguably contrary to the CHA's universality criterion.


Between 1995 and the legislative change in June 2012 that resulted in benefit reductions, persons that the Canadian immigration and border officials determined were eligible to submit a refugee claim were provided temporary health care coverage through the Interim Federal Health Program (IFHP), usually until either they were granted refugee status and could access medicare, or-if their application was unsuccessful-they exhausted all channels of appeal and were issued an active deportation order. (126) Technically, in order to qualify for the IFHP, asylum seekers must demonstrate that they were unable to afford health care services and that they were not otherwise insured by a private or public health care program. (127) In practice, however, IFHP coverage was essentially extended to refugee claimants upon request, recognizing that they seldom had the capacity to finance health care privately, (128) and that they were excluded from all provincial and territorial health plans.

Although I have contended that refugee claimants who are lawfully present in Canada are prima facie within the CHA's definition of resident, their disentitlement to medicare does not necessarily contravene the universality provision in light of their receipt of IFHP benefits. Given that the universality principle merely requires all qualified residents be entitled to "insured health services"-specified in the CHA as medically necessary hospital, physician, and surgical-dental care except for "any health services that a person is entitled to and eligible for under any other Act of Parliament" (129) -the health care responsibility of provinces/territories vis-a-vis refugee claimants may be limited to the shortfall in the IFHP's coverage relative to that of medicare. Prior to June 2012, refugee claimants' health care benefits under the IFHP were comparable to those covered by medicare, (130) and disqualification from provincial or territorial health insurance could not be interpreted as violating the universality criterion.

Nevertheless, since June 2012, asylum seekers' ability to access health care through the IFHP has been significantly curtailed as the federal government tightened the program's eligibility criteria and pared down the scope of coverage. (131) Generally speaking, individuals who have not made a refugee claim, but have challenged their deportation order by applying for a pre-removal risk assessment would no longer qualify for the IFHP. Individuals whose refugee claims are rejected, even if their removal order is stayed due to dangerous conditions in the country of origin, and refugee claimants from one of the nations that Canada designates as ostensibly safe and capable of protecting their own citizens would only be entitled to services that are necessary to alleviate public health or public safety concerns. For instance, pregnant women belonging to this category would no longer qualify for publicly funded reproductive care, and persons with mental health issues would only receive treatment if they are deemed to pose a threat to the general public, but not if they manifest suicidal ideations. Though in a better position, the remaining asylum seekers would see their IFHP coverage reduced to treatments that are urgent or essential in nature, namely no primary and preventive care for the most part and a loss of their prescription drug benefits, including access to certain medications administered in hospitals (e.g., chemotherapeutic agents) that are otherwise covered by medicare. (132)

Cuts to these IFHP benefit have drawn heavy criticism and resistance from officials of several provinces who raise concerns about, among other things, refugees' general vulnerability to ill health and the risk of their otherwise treatable medical conditions becoming threateningly precarious when left unchecked. (133) Even so, to date, Quebec and Ontario remain the only provinces that have taken the steps to fill the void the federal government left in refugee claimants' health care coverage. (134) While the legality of the IFHP cutbacks is currently under contestation, (135) I argue that the lack of remedial actions by provinces other than Quebec and Ontario constitutes a breach of the universality requirement in the CHA as long as the scope of asylum seekers' health care entitlement continues to fall short of the medicare standard. That is, the IFHP can no longer be seen as offering asylum seekers a level of health care benefits equivalent to medicare and provincial and territorial insurance plans arguably must broaden their coverage for refugee claimants accordingly to conform with the universality principle. At the same time, I further contend that the cost should rightly be borne by the federal government in the form of increased health care transfer payments because an expansion of provincial and territorial health care programs essentially amounts to a transfer of responsibility between the two levels of government.


In addition to breaching the universality criterion, private expenses incurred by LNTIMs that should qualify for publicly covered health care services under medicare arguably constitute a forbidden form of user fees and/or extra-billing. According to the CHA, a user fee-defined as any charge other than extra-billing "for an insured health service that is authorized or permitted by a provincial health care insurance plan that is not payable, directly or indirectly, by a provincial health care insurance plan" (136)--is not permissible unless it is associated with "accommodation or meals provided to an in-patient who ... requires chronic care." (137) In other words, generally, a medicare-eligible patient should not be asked to assume the cost of health care services that are publicly insured. Requiring LNTIMs to make out-of-pocket payments for medically necessary treatment that I argue should have been covered by medicare, and are not later reimbursed by provinces, is a prima facie contravention of the CHA's prohibition on user fees. Moreover, given that LNTIMs are often asked to pay for their treatment at a significantly higher rate than the established fee schedule-for example, international students in Ontario have reportedly been billed more than twice the amount payable by the provincial health insurance for medically necessary care (138)--there is presumably a violation of the CHA's provisions banning extra-billing, a practice of "billing for an insured health service rendered to an insured person by a medical practitioner ... in an amount in addition to any amount paid or to be paid for that service by the health care insurance plan of a province." (139)

Notwithstanding these apparent breaches, the federal government has hitherto never invoked its power under the CHA to reduce or withhold cash contributions to provinces and territories for non-compliance resulting from international migrants' inadequate medicare entitlement. The Governor in Council (GIC) has not once exercised its discretion to financially penalize a province or territory for violating any of the five funding criteria stipulated in the Act. Although the federal government has on multiple occasions clawed back its health transfers to provinces for having contravened the prohibitions against extra-billing and "user charges", as mandated by the CHA, the infractions in those cases largely concern improper fees levied by private clinics rather than out-of-pocket payments made by LNTIMs for medically necessary services. (140) Furthermore, it does not appear that the issue of LNTIMs' insufficient medicare coverage has ever arisen as a topic of the CHA-specific dispute avoidance and resolution discussions between the two levels of government. My review of bilateral communications about matters of CHA compliance that have been documented in Health Canada's annual reports suggests that the federal government has not queried the conformity of provinces or territories with the universality criterion in general, let alone pursued any cooperative efforts to remedy this problem.141

The federal government's inaction in the face of LNTIMs' under-inclusion in medicare presumptively calls into question both its practical capacity and its political will to fully administer the CHA. In terms of capacity, Health Canada has repeatedly been observed to lack a robust system for monitoring provincial and territorial adherence to the CHA. For instance, in 1999 and again in 2002, Canada's Auditor General remarked that the federal health department routinely failed to collect detailed information from its provincial and territorial counterparts that would allow it to adequately assess whether the terms of the CHA were being satisfied. Instead, Health Canada adopted a "passive stance", relying heavily on data voluntarily submitted by provinces and territories, public complaints, and information uncovered by the media, professional organizations, and other stakeholders. (142) As Health Canada appears to have continued to depend on these sources for its information, (143) the federal government's under-enforcement of the universality criterion may partly stem from its incomplete appreciation of the coverage gaps facing LNTIMs under medicare.

Nevertheless, considering the relative ease of ascertaining LNTIMs' disentitlement to medicare by reviewing relevant laws and policies of each province and territory, a more plausible explanation for the federal inertia in this case may be a lack of political will on the part of Health Canada to embrace the generous scope of the CHA's universality criterion and to rigorously enforce it. This assumption arguably is particularly germane to the current federal administration for at least two reasons. First, judging by its immigration and refugee policies, the present federal government is demonstrably opposed to broad inclusion of foreign nationals in public health care and social programs. As I noted in Section II, the Canadian immigration system has been emphasizing newcomers' self-sufficiency above all else in the last few decades. International migrants deemed to have greater economic utility are prioritized over those seeking humanitarian assistance or family reunification. (144) This policy trend has become especially explicit and ever more uncompromising in recent years. Accordingly, federal officials have increasingly characterized international migrants' access to health care and social benefits as "an abuse of Canada's generosity" that must be eschewed rather than fostered. (145)

Second, the current federal administration is seemingly uninterested in becoming involved in health care beyond strictly assuming the role of a funder, as seen in its latest round of negotiations with provinces regarding the terms of future health transfer payments. In 2004, the federal government at the time agreed to inject additional resources into the health care system in exchange for provincial commitment to the principles outlined in the CHA as well as a set of 10 priorities for health care reform. (146) However, in late 2011, the present government unilaterally decided to renew its health care contributions for another 10 years, although with potentially reduced annual increases starting in the 2017-2018 fiscal year, and apparently without any request for corresponding quid pro quo from provinces. (147) In the wake of this funding announcement, some critics have chastised the federal government for "abdicating its responsibility to maintain a high national standard for health care" by failing to take full advantage of its spending power to encourage provinces and territories to engage in further health care reform. (148) The same laissez-faire attitude whereby the federal government is content with provinces and territories taking the lead in setting the health care agenda, coupled with a restrictive stance with regard to international migrants' health care entitlement, likely contributes to a lack of political appetite for robust enforcement of the universality criterion.

As such, health care coverage gaps facing LNTIMs in Canada are effectively an outcome of both levels of government retreating from the agreed terms of the CHA. On one side, provinces and territories have fallen short of ensuring that all eligible residents, as defined in the Act, would be entitled to medicare on an equal basis. On the other side, the federal government-with a flawed compliance monitoring system, a political ideology that discourages participation of foreign nationals in public health care programs, and growing reluctance to become more involved in health care reform-has disregarded its undertaking to hold provinces and territories liable for violations of the universality criterion as well as related bans on extra-billing and user charges. Viewed in this light, one potential avenue for expanding LNTIMs' entitlement to medicare would be to urge both levels of government to adhere more assiduously to the CHA. LNTIMs and their advocates could do this by utilizing moral suasion strategies. In addition, so far as Health Canada's responsibility to implement the CHA is legally enforceable, another strategy would be to request a judicial review of the agency's failure to subject universality-related infractions to dispute resolution and, ultimately, funding withdrawal. In Section V, I elaborate on the nature of this administrative law strategy and to offer a preliminary evaluation of its likelihood of success.


Although the CHA is commonly perceived as merely a political document that sets out the basic parameters of federal health care contributions, Sujit Choudhry has forcefully made the case for conceptualizing the CHA as a legally enforceable instrument. (149) According to this view, when the federal government fails to properly observe the terms of the CHA, adversely affected individuals could seek to enforce the medicare funding criteria by applying for judicial review. Such an administrative law remedy offers medically uninsured LNTIMs in Canada a viable legal recourse beyond Charter challenges, which have hitherto remained ineffectual in extending public health care coverage to non-citizens. In fact, as Colleen Flood and I have observed, Charter litigation has seldom brought about a positive right to health care for applicants of any sort. The only case to date in which the SCC recognized an entitlement to publicly financed health service, namely medical translation for deaf patients, has not yet provoked satisfactory policy changes. (150) Therefore, an alternative administrative law solution to LNTIMs' incomplete health care coverage may have considerable upside potential.

That being said, the endeavour to enforce the CHA through administrative law will not be free from obstacles. I now move onto a preliminary analysis of the key questions, relating to issues of justiciability, standing, merits, and remedy, that LNTIMs must address when bringing forward an application for judicial review.


LNTIMs seeking to judicially enforce the CHA must foremost convince adjudicators that the federal Health Ministers decision to refrain from invoking the Act's conflict resolution and penalty provisions is legally reviewable despite contradictory jurisprudence. In Hughes v Canada, (151) a resident of Prince Edward Island argued that the province had contravened the CHA's accessibility criterion when it conditioned residents' medicare eligibility upon their possession of a valid social insurance number, and that the continuation of federal transfer payments under such a circumstance was illegal. (152) When the government moved to strike the plaintiff's statement of claim for disclosing no reasonable cause of action, Justice Reed of the Federal Court dismissed the motion by holding inter alia that the matters raised by the plaintiff were justiciable. (153) Although this ruling lends support to the justiciability of questions concerning federal funding decisions made pursuant to the statutory authority of the CHA, its precedential value has been challenged by a later decision from the same court. In CUPE v Canada (Minister of Health), (154) the applicants accused successive federal Health Ministers of, among other things, fettering their discretion by failing to investigate and properly report suspected CHA non-compliance. (155) Contrary to the holding of Hughes, Justice Mosley rejected the applicants' claim on the ground that the Health Ministers' decision regarding whether to enforce the CHA in situations of provincial or territorial default was not a justiciable issue but a "political and policy-oriented" calculation relating to how federal funds should be allocated. (156)

Underlying this divergence of opinion appears to be the opposing approaches taken by the respective judges in grappling with the SCCs ruling in Finlay v Canada (Minister of Finance). (157) Finlay was a legal action opposing federal contributions to Manitoba's welfare program in the face of alleged provincial non-compliance with certain funding criteria stipulated in the Canada Assistance Plan (CAP), which laid out a conditional funding scheme akin to the one outlined in the CHA. The Court found that the case raised a question of law and therefore was "clearly justiciable." (158) Whereas Justice Reed was of the view that sufficient parallels between the facts in Hughes and Finlay rendered the latter persuasive authority, Justice Mosley determined that the contexts surrounding CUPE and Finlay were distinguishable on two levels. First, while the purported provincial infraction in Finlay was rooted in an impugned Manitoba statute, the CHA non-conformity allegations in CUPE were not anchored in a challenge against any specific provincial legislation. Second, unlike the discretionary enforcement scheme delineated in the CHA respecting contraventions of the five program criteria, the CAP dictated the withholding of funding due to violations in a mandatory fashion. (159) Aggrieved LNTIMs looking to judicially enforce the CHA must therefore contend with both of these distinctions if they wish to draw from the dictum in Finlay and persuade courts to favour the precedent of Hughes over CUPE.

Regarding MosleyJ s first observation, with the focus of the litigation in question on the appropriateness of federal under-enforcement of a certain conditional funding regime, it is puzzling why the nature of how the federal governments enforcement obligation is triggered-either by some offending provincial legislation as in Finlay or some regulatory failure on the part of provinces and territories to rein in improper health care practices as in CUPE-would influence the outcome of a justiciability determination. It would seem that however the alleged provincial non-compliance arises, courts are called upon to interpret a funding criterion specified in a federal enactment, assess the operation of a provincial program against this funding standard to verify conformity, and clarify the scope of the federal government's statutory discretion concerning the enforcement measures in cases of provincial default. (160) Despite a political undertone, all are arguably tasks with a significant legal aspect according to SCC precedent that ought to render them suitable for judicial involvement. (161) Even if a courts finding of justiciability indeed turns on the characteristics of provincial non-conformity at issue, it is notable that the proposed judicial review pertaining to the federal under-enforcement of the CHA's universality criterion will inevitably engage with the under-inclusiveness of provincial laws and policies that establish medicare eligibility, thus bringing the case close in line with the facts in Finlay.

As for the differences in the level of discretion the CHA and the CAP afford to the federal government vis-a-vis transfer payment deductions, at first glance, it seems proper for Justice Mosley to distinguish Finlay from CUPE on this basis and to consider this a relevant factor when assessing justiciability. Canadian case law suggests that courts may be more cautious about recognizing the justiciability of an issue if it relates to the exercise of a permissive power rather than a mandatory duty, presumably because a discretionary decision may involve a greater degree of policy-related consideration that falls outside the judiciary's expertise. (162) Nonetheless, Justice Mosley overlooked the fact that in cases of non-compliance with the five program criteria, the CHA not only grants the GIC the discretion to reduce or withhold cash contributions to provinces, but also obligates the federal Health Minister to issue a notice of concern to, and consult with, the offending jurisdictions. (163) The imperative language used to describe the Health Minister's consultative duty in the event of provincial infraction should prima facie favour the justiciability of a legal challenge against federal under-enforcement of at least this part of the CHA. Moreover, as I have argued, when provinces and territories allow health care providers to privately charge medicare-eligible LNTIMs for medically necessary services, they effectively contravene the prohibitions against user fees and extra-billing that are subject to a separate mandatory enforcement regime under the CHA. As such, the actual distinction between the nature of the federal authority to respond to provincial non-compliance under the CHA, especially in cases of universality-related breaches, and that under the CAP is arguably not as stark as Mosley J claimed it to be.

To the extent that the negative decision of CUPE can be challenged and set aside, a strong analogy could be drawn between LNTIMs' application for judicial review and Finiay. Accordingly, the justiciability of LNTIMs' claims may presumptively be derived from the precedent oiHughes.


The determination of justiciability often is embedded in a broader assessment of whether a plaintiff possesses proper standing to bring forward a case for judicial consideration. As Le Dain J opined in Finiay, the justiciability requirement serves to both preserve the constitutional boundaries of the different branches of government and protect scarce judicial resources from frivolous lawsuits brought by "mere busybod[ies]." (164) Pursuant to the Federal Courts Act, besides the Attorney General of Canada, judicial review must be initiated by someone "directly affected by the matter in respect of which relief is sought." (165) That is, as a general rule, in order to acquire standing, a close nexus has to exist between the plaintiff's alleged grievance and the government action being challenged. In Finiay, the plaintiff was found to lack standing per this general rule because the supposed prejudice experienced under Manitoba's welfare system was considered too indirectly related to the federal transfer payments that were under attack. The SCC reasoned that, even if federal contributions in the face of provincial non-conformity were declared illegal and ordered discontinued, there would be no guarantee that Manitoba would reform its welfare program to comply with the CAP and ultimately remedy Mr. Finlay's grievance. (166)

The Court in Finlay, however, went on to consider whether the plaintiff might instead have public interest standing to challenge the legality of the federal cost-sharing payments. In answering this query in the affirmative, the Court observed that Mr. Finlay's litigation met a three-prong test for public standing, namely that (l) it raised serious justiciable questions (2) in which the litigant had a genuine interest, and that (3) there would be no other reasonable and effective way to bring the matter before a judge. As Justice Le Dain explained:

   The issues of law raised with respect to the alleged provincial
   non-compliance with the conditions and undertakings to which the
   federal cost-sharing payments are made ... are ... far from
   frivolous.... The status of [Mr. Finlay] as a person in need within
   the contemplation of the [CAP] who complains of having been
   prejudiced by the alleged provincial non-compliance shows that he
   is a person with a genuine interest in these issues and not a mere

   Here it is quite clear from the nature of the legislation in issue
   that there could be no one with a more direct interest than the
   plaintiff in a position to challenge the statutory authority to
   make the federal cost-sharing payments. (167)

Thus, if the proposed judicial enforcement of the CHA is indeed justiciable as I have contended, given the factual similarities that they share with Finlay, medicare-ineligible LNTIMs should arguably have a sufficient stake in the federal under-enforcement of the CHA's universality criterion to at least make a case for public interest standing.

Even so, in practice, it is likely that a sizable segment of LNTIMs may be without the necessary time, resources, or capacity to launch the proposed judicial review. As scholars have noted, aside from lacking finances to secure legal representation and to cover court costs, many immigrants and refugees often face difficulty accessing the justice system because of, inter alia, language barriers, unfamiliarity with the law and legal institutions, perceived racism within the judiciary, and fear of litigation having an adverse impact on their immigration status. (168) While it is perceivable that the judicial review in question could instead be requested by an advocacy group that works closely with LNTIMs, thus demonstrating a genuine interest in the concerned legal issues, for some time the possibility of such a group being granted public interest standing had been considered relatively remote, owing largely to the precedent of Canadian Council of Churches v Canada (Minister of Employment and Immigration). (169) In that case, the SCC rejected a non-profit organizations application for public interest standing to challenge the constitutionality of the refugee determination process because the applicant failed to satisfy the last element of the three-part test for standing; in the Courts view, individual refugee claimants could have more effectively brought the issue before a court. (170)

However, of late, the SCC appears to have considerably relaxed its approach to the granting of public interest standing. In Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, the Court remarked that the question of whether a reasonable and effective alternative exists for bringing a case to court ought to be appraised in a "flexible and purposive" fashion, taking into account the practical realities surrounding a potential litigants access to the justice system and whether the prospective public interest plaintiff could bring "any particularly useful or distinct perspective" to the resolution of the issues at hand. (171) Relying on this precedent, a lower court has recently awarded public interest standing to groups of doctors and lawyers working with refugees in an ongoing legal challenge against the 2012 IFHP cuts. (172) As such, in the event that LNTIMs may not be prepared to contest the federal under-enforcement of the universality criterion on their own, it is probable that a legal action may likewise be initiated by a public interest group that is more ready and better positioned to do so, especially if it can inform courts of the diverse problems faced by the broad range of LNTIMs in qualifying for medicare.


At the stage of substantive review, the task of courts is to assess whether relevant federal administrative decision makers have properly executed their delegated functions with respect to the enforcement of universality and related criteria. This review will involve two steps. Courts must first consider the validity of the Health Minister's interpretation of the CHA's provisions on universality and those that prohibit user charges and extra-billing. Then, based on the outcome of this assessment, courts must determine whether the federal government's inaction with respect to LNTIMs' medicare coverage gap is appropriate.

To this end, courts must begin by determining the degree of deference that it ought to accord to the Health Minister's interpretation of the relevant CHA provisions. Although it may be to LNTIMs' advantage to have the statutory interpretation analyzed by courts on a correctness standard, in Dunsmuir v New Brunswick, the SCC opined that "[djeference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity." (173) In fact, today, judicial review of a tribunal's interpretation of its home or closely related legislation is presumed by Canadian courts to attract the less stringent reasonableness standard, unless the interpretation deals with constitutional issues,

questions of law that are of general importance, concurrent authority between tribunals, or true questions of jurisdiction. (174) More recently, in McLean v British Columbia (Securities Commission), (175) in a restatement of its pertinent rulings since Dunsmuir, the SCC appeared to signal that such judicial deference could apply to "administrative decision makers" generally when resolving ambiguities in their home statutes, even though McLean involved a tribunal and the standard of review analysis therein did not necessitate this finding. (176) This across-the-board presumption of reasonableness respecting administrative decision makers' interpretation of home statutes, as a number of lower court judges have noted, arguably demands more careful consideration by the SCC as the approach may be difficult to square with some of the established case law and it may be fanciful to expect decision makers such as the GIC or ministers to possess expertise in a multitude of legislation that could be regarded as their home statutes. (177) Nevertheless, in light of the SCCs stipulation in McLean, insofar as the Health Minister's function in the context of the CHA renders him or her an administrative decision maker, the proper standard for reviewing his or her interpretation of the universality and related clauses will likely be reasonableness.

Having decided the applicable standard of review, courts must then examine whether the Health Minister's narrow interpretation of the universality criterion vis-a-vis LNTIMs showcases a degree of reasonableness to warrant judicial deference. According to the SCCs instruction in Dunsmuir, "reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process", as well as "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." (178) These directives notwithstanding, the SCC's own reasonableness analysis since Dunsmuir has been described by Matthew Lewans as being "muddled", with the case law oscillating between a "restrictive approach" that seemingly verges on the correctness standard and a "restorative approach" that pays considerable deference to administrative actors. (179)

As an example of the more interventionist approach, in Canada (Canadian Human Rights Commission) v Canada (Attorney General), a human rights tribunal's decision to award legal costs to a successful complainant based on its interpretation of an enabling statute was found by the SCC to be unreasonable. (180) Writing for a unanimous court, Justices LeBel and Cromwell acknowledged that the tribunal's statutory construction was grounded in Federal Court precedents and what the tribunal characterized as compelling policy considerations, going so far as to concede at one point that "the text of the provisions in issue ... are wide enough" to accommodate the tribunal's interpretation. (181) While such an observation might have led some to conclude that the tribunal's ruling reflected the requisite rationality, transparency, and intelligibility for meeting the reasonableness threshold, the justices went on to conduct "a full contextual and purposive analysis" of the concerned statutory provisions of their own and ultimately rejected the tribunal's findings. (182) As such, although deference was supposedly called for in such a situation, the SCC appeared to have left very little space for the tribunal to maneuver in the interpretation of its home statute.

By contrast, in Alberta Teachers the SCC exhibited much hesitancy to interfere with an administrative adjudicator's implicit decision to extend an inquiry beyond the statutory time limit. (183) Such judicial deference is especially notable considering that, because the issue of timeliness was not challenged at the level of tribunal but raised for the first time during judicial review, the adjudicator's reasons for her time extension were never provided. Instead of chastising the concerned decision for its apparent lack of justification, the Court held that, under the circumstance, the proper course of action was to determine whether "there exists a reasonable basis upon which the decision maker could have decided as it did". (184) Although the outcome of this case might have been heavily influenced by the peculiar facts involved, it nonetheless revealed the SCC's willingness, where appropriate, to allow an administrative actors decision to stand when it was per se deficient in meeting the reasonableness standard and required some repair or gap-filling by the judiciary.

Thus, within the ambit of reasonableness, the degree of deference that a reviewing court affords administrative decision makers may vary markedly from one case to another, which complicates one's attempt to assess the possibility of success of a legal challenge. With respect to the judicial review that I have proposed, if a more restrictive stance is adopted by courts, I argue that a "full contextual and purposive analysis" (185) of the universality clause in the CHA-taking into account its text, legislative history and intent, and compliance with international human rights norms-should find interpretations that exclude LNTIMs unreasonable. Even when the Health Minister's statutory interpretation is reviewed through a more deferential lens, at a minimum, I contend that a reasonable reading of the definition of residents in the CHA should still see some of the LNTIMs being included. Recall that in Hernadi, the British Columbia Court of Appeal held that it was patently unreasonable when an administrative decision maker interpreted "residents" in the context of provincial health care to mean permanent residents only. (186) To put it differently, a rational understanding of the term "residents" for the purpose of medicare eligibility determination must duly recognize the qualification of at least some LNTIMs that are "lawfully entitled to be in Canada" but are not "tourists, transients or visitors". (187) The same reasonableness analysis arguably also applies to the federal Health Minister's interpretation of "residents" under the CHA, considering its identical definition and related legislative background.

Once the exclusion of LNTIMs, or at least some of them, from the CHA's definition of residents is ruled unreasonable, these individuals' lack of medicare benefits necessarily violates the universality guarantee, and their private payments for medicare-insured services should be understood as constituting a form of user fee and/or extra-billing. It follows that the federal governments inaction in the face of these CHA breaches prima facie contravenes the Health Minister's obligations under the Act, which include investigating and resolving suspected provincial defaults by way of consultation, referring outstanding issues of non-compliance to the GIC to consider potential financial penalties, and deducting from federal contributions any amount of user charges and/or extra-billing imposed by provinces. As well, provincial non-conformity with the universality criterion that cannot be resolved through intergovernmental negotiations triggers the discretionary authority of the GIC to withhold its health care transfers to the offending provinces in whole or in part. Although the manner in which the GIC decides to exercise such discretion normally calls for a high degree of deference from courts, given LNTIMs' enduring under-coverage in medicare, the GIC's dogged refusal to impose any financial penalties on provinces presumably raises questions about its respect for the rule of law, and may require judicial intervention unless the government can justify its decision with some "reasonable basis in law or on the evidence." (188)


As a prerogative writ that compels a decision-maker to perform a specific public duty, mandamus is arguably one of the most obvious remedies that LNTIMs may wish to seek in their application for judicial review. Theoretically, an order of mandamus could be sought to demand the federal Health Minister to fulfil his or her mandatory enforcement obligations under the CHA (e.g., intergovernmental consultations concerning suspected provincial defaults, imposition of deductions relating to user charges and/or extra-billing), as well as direct the GIC to exercise its discretion respecting any additional financial penalties.

However, the availability of mandamus is greatly circumscribed. As the Federal Court of Appeal recently observed, such relief is typically awarded "only where the outcome of the case on the merits is a foregone conclusion-in other words the evidence can lead only to one result." (189) To meet this high threshold, pursuant to Apotex Inc v Canada (Attorney General), applicants for mandamus must establish that, inter alia, a decision maker owes them a public legal duty to act, they have a clear right to the execution of that duty, and there exists no other adequate remedy. (190) When the order aims to enforce a discretionary authority, applicants not only must further demonstrate that the decision maker's discretion is not unfettered and is spent, but also usually need to show that the discretion has been exercised in bad faith or according to illegitimate considerations. (191) A cursory analysis alone reveals that these requirements may pose a barrier to LNTIMs' successful attainment of mandamus, particularly when seeking to force the GIC to reduce or withhold federal funding for universality-related violations. For example, as Sujit Choudhry noted, the fact that the GIC's discretionary power in this case goes beyond deciding whether to impose financial sanctions or not and involves calibrating the precise amount of funding deduction according to the severity of provincial defaults, would likely dissuade courts from granting mandatory relief. (192)

Even assuming that LNTIMs can satisfy all the requisites that merit an order of mandamus, as was held in Apotex, courts retain the ultimate discretion to deny such a relief if the balance of convenience demands so. (193) Indeed, when the Finlay case returned to the SCC for a decision on the merits (Finlay No 2), (194) the dissenting judges, while disagreeing with the majority by finding that Manitoba's social assistance scheme indeed contravened the CAP, nevertheless refrained from ordering the federal government to withhold its transfer payments as per Mr. Finlay's request. According to Justice McLachlin (as she then was), to compel such funding cuts would have been "draconian and undesirable" as it would inevitably undermine the financial viability of many other benefit programs, including child welfare. (195) Similar concerns about the adverse systemic impact of federal health care funding reductions may also motivate courts to refuse LNTIMs' application for mandamus in the instant case.

Instead, the preferred remedy by the dissenting judges in Finlay No 2 was a declaration of impropriety.' (96) Such a declaratory relief calls relevant decision makers' attention to their wrongdoing while affording them some margin to decide how the illegality at hand is to be corrected, and as such "contribute [s] to an appropriate institutional division of labour between the court and the government." (197) Moreover, relative to prerogative remedies such as mandamus, it is long recognized that a declaratory judgement is less encumbered by technical limitations. (198) In Solosky v The Queen, the SCC remarked that "[declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a 'real issue' concerning the relative interests of each has been raised and falls to be determined." (199) As such, concerning the proposed judicial review, once LNTIMs are successful at the merit stage, a declaration-i.e., insofar as their exclusion from provincial and territorial health care programs constitutes a violation of the universality principle and the prohibitions against user fees and/or extra-billing, the federal government's abdication of its duties to enforce the CHA is illegal-is prima facie available. Although the less coercive nature of a declaratory remedy may be a concern for some, McLachlin J in Finlay No 2 expressed confidence that "declarations are invariably honoured by governments" and left open the possibility of further relief being sought at a future time should it becomes necessary. (200)


In this article, I have relied on statutory interpretation to illustrate that the exclusion of LNTIMs from medicare by provinces and territories could constitute violations of the universality criterion and, by extension, the CHA's provisions banning extra-billing and user charges. Although the CHA, as a federal statute, is generally understood to not bind provinces or territories per se, it bestows upon the federal government a duty to enforce the funding requirements and to take appropriate steps in cases of provincial or territorial non-compliance, including transfer payment deductions when necessary. As such, the federal government's under-enforcement of the universality criterion as I have shown represents an abdication of its statutory responsibilities. To the extent that federal inaction continues in the near future due to a lack of institutional capacity and/or political will to monitor and police provincial or territorial infractions, I argue that medically uninsured LNTIMs and their advocates may have better prospects of realizing their desired health care policy changes by seeking to enforce the CHA via an application for judicial review.

Admittedly, as this proposed legal challenge is predicated on governments' failure to observe the terms of the CHA, the nature of the remedy attainable is inherently constrained by the four walls of the statute. First, as the CHA is designed to foster a national health care standard indirectly through financial incentives, even if LNTIMs are successful in judicial review litigation, it will remain uncertain whether provinces and territories will subsequently expand their medicare eligibility criteria to meet the demand of the universality principle. It is possible that if the amount of financial penalties levied by the federal government is perceived to be less than the potential costs associated with expanding medicare to cover LNTIMs, a purely economic cost-benefit analysis may lead the provinces and territories to choose the status quo. Indeed, as the proportion of federal contributions to the overall health care outlays incurred by provinces and territories declines over the years, some jurists have suggested that the ability for federal conditional grants to function as a catalyst for provincial or territorial health care reform has correspondingly diminished. (201) Given the federal government s plan to further reduce the Canada Health Transfer funding escalator starting in 2017-2018, the decreasing federal influence over provincial and territorial health care schemes may be expected to persist.

Second, supposing that provinces and territories do ultimately relax their medicare eligibility criteria following federal funding deductions, some foreign nationals are likely to remain precluded from public health care benefits. For instance, as the CHA clearly excludes persons without lawful immigration status in Canada as well as tourists, transients, and visitors from its definition of resident, short of a successful constitutional challenge, the CHA imposes no legal obligation on provinces and territories to include these individuals in their health insurance plans on the basis. However, notwithstanding this shortcoming, the administrative law remedy outlined in this paper could arguably have significant upside potential for a large fraction of international migrants who are currently uninsured, especially if one takes into account their infrequent success hitherto with Charter challenges. Moreover, it behooves me to point out that the exact number of non-citizens that will be left without remedy in the proposed judicial review will depend on how courts decide to interpret the CHA's definition of resident. So far as my construction of this definition represents only a floor rather than a ceiling with respect to its proper scope, it is conceivable that a more liberal interpretation of the term "resident" may be advocated in the actual judicial review proceeding. The challenge in that instance, of course, will be for the applicants to persuade the adjudicators to adopt as reasonable an even broader interpretation of "resident" than the one suggested here.

Third, the availability of such an administrative law remedy is contingent upon the CHA-specifically the universality criterion-remaining in force in its current or a similar state. As the Canadian health care system continues to struggle with balancing the objects of equity, efficiency, and quality, numerous commentators have recommended the CHA be amended as a part of broader health care reform, with some going as far as to urge the Act's suspension or even outright abolishment. (202) If these calls for the CHA's scaling back or elimination ever become reality, the legal basis for the proposed judicial review will concomitantly be extinguished. In fact, it is foreseeable that a federal administration may be so adamantly opposed to LNTIMs' inclusion in medicare that it undertakes legislative changes to foreclose the prospect of a CHA-based remedy. That being said, any government that attempts to steer medicare away from its core principles, particularly that of universality, must be prepared to face considerable public outcry given the strong attachment that Canadians have consistently shown towards these values.

Despite these limitations and their potential to undermine the proposed judicial review, I argue that the mere attempt to legally enforce the CHA is likely to engender considerable extralegal benefits, making it a worthwhile endeavour irrespective of the judicial outcome. Politically, the publicity surrounding such judicial review proceedings could in and of itself be valuable as it raises awareness of the plight of medically uninsured international migrants, draws Canadians' attention to governments' contravention of the universality criterion, and galvanizes public support for greater federal enforcement of the CHA as well as for the necessary legislative reform at the provincial and territorial level. Recent events in Canada suggest that political advocacy, while not without its challenges, could be effective in overcoming legislative inertia and advancing international migrants' interests with respect to health care under the right circumstances. For example, in response to public dissidence led by health care practitioners, CIC reversed its initial position and announced on the eve of the IFHP cutbacks that the benefit reductions would not be applied to refugees whose resettlement in the country was fully supported by government, (203) and as mentioned above, both Quebec and Ontario have decided to cover the health care costs of asylum seekers in the interim. Similarly, after years of political advocacy by community organizations, the City of Toronto in February 2013 declared itself a "sanctuary city" where undocumented migrants would be able to access all municipal services, including public health programs, without fear of being reported to immigration officials. (204) The proposed judicial review litigation could further fuel this political momentum and substantially bolster international migrants' advocacy for more equitable health care coverage under medicare.

In addition, the framing of international migrants' health care coverage gaps as a consequence of under-enforcement of the universality criterion will serve an important rhetorical function. Whereas the prevailing advocacy strategy, including the resort to Charter challenges, has largely centered on demonstrating why international migrants ought to be afforded public health care akin to Canadian citizens, the CHA-based approach takes it as given that a large segment of international migrants should have long been eligible for medicare pursuant to the universality principle. Accordingly, the narrative surrounding international migrants' quest for greater health care coverage shifts from a demand to expand public benefits-which is increasingly looked upon pejoratively as "an abuse to Canada's generosity"-to a rightful insistence that governments live up to their original promise contained in the CHA. This alternative discourse in turn has the capacity of beginning to chip away international migrants' perennial status as the "other" who struggle for inclusion in the Canadian welfare state, while at the same time accentuating the solidarity between Canadians and international migrants in defending medicare's founding principles. On this basis alone, I am hopeful that it will be invaluable for international migrants to seriously consider tapping into the legal potential of the CHA in advancing their health care entitlement.

(1) WHO, Social Health Insurance: Sustainable Health Financing, Universal Coverage and Social Health Insurance, WHO Doc A58/20, 58th Sess at para 2, online: <>.

(2) International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 12, 6:2 ILM 360 (entered into force 3 January 1976) [emphasis added]. See also Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, art 24, 28:6 ILM 1448 (entered into force 2 September 1990); Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, art 25, 46:3 ILM 443 (entered into force 3 May 2008).

(3) OECD, Health at a Glance 2013: OECD Indicators (Paris: OECD, 2013) at 138.

(4) Pub L No 111-48, 124 Scat 119 (2010) (codified in scattered sections of 42 USC and 26 USC).

(5) Ibid.

(6) Norman Daniels, "Justice, Health, and Healthcare" (2001) 1:2 American Journal of Bioethics 2 at 3-6 [emphasis in original],

(7) JP Ruger, "The Moral Foundation of Health Insurance" (2007) 100:1 QJM 53.

(8) "Note-Universal Access to Health Care" (1995) 108:6 Harv L Rev 1323.

(9) See e.g. Paul Menzel & Donald W Light, "A Conservative Case for Universal Access to Health Care" (2006) 36:4 Hastings Center Report 36 at 38-39; Daniel M Hausman, "A Lockean Argument for Universal Access to Health Care" (2011) 28:2 Social Philosophy & Policy 166.

(10) See e.g. David M Cutler & Richard J Zeckhauser, "Adverse Selection in Health Insurance" in Alan M Garber, ed, Frontiers in Health Policy Research, vol 1 (Cambridge, Mass: MIT Press, 1998) 1.

(11) Colleen M Flood, International Health Care Reform: A Legal, Economic and Political Analysis (London, UK: Routledge, 2000) at 17-19.

(12) Tom Baker, "Containing the Promise of Insurance: Adverse Selection and Risk Classification" (2003) 9:2 Conn Ins LJ 371 at 379-80.

(13) RSC1985,cC-6[CH/f].

(14) Ibid, s 10.

(15) Stephen Vail, Canadians' Values and Attitudes on Canada's Health Care System: A Synthesis of Survey Results (Ottawa: Conference Board of Canada, 2001) at 6.

(16) See e.g. Ritika Goel, Gary Bloch & Paul Caulford, "Waiting for Care: Effects of Ontario's 3-Month Waiting Period for OHIP on Landed Immigrants" (2013) 59:6 Canadian Family Physician e269; Paul Caulford & Yasmin Vali, "Providing Health Care to Medically Uninsured Immigrants and Refugees" (2006) 174:9 CMAJ 1253.

(17) Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, ell [Charter].

(18) See e.g. Irshad (Litigation guardian of) v Ontario (Ministry of Health) (2001), 55 OR (3d) 43, 197 DLR (4th) 103 (CA) [Irshad]; darken v Ontario (Health Insurance Plan) (1998), 109 OAC 363, 3 CCLI (3d) 1 (Ct J Gen Div); SP v Ontario Health Insurance Plan (19 August 1999), 5399E (Ont HSARB); Toussaint v Canada (AG), 2011 FCA 213,343 DLR(4th) 677 [Toussaint].

(19) Still another plausible tactic is to seek direct legal enforcement of the CHA against provinces and territories. That is, insofar as provinces and territories can be deemed as having undertaken to observe the CHA's funding requirements, their subsequent non-performance could be a ground for judicial review. However, legal challenges based on such claims have yet to receive judicial approval. For an overview of related jurisprudence, see Halvorson v British Columbia (Medical Services Commission), 2001 BCSC 632 at paras 52-62, 88 BCLR (3d) 319.

(20) Naomi Alboim & Karen Cohl, Shaping the Future: Canada's Rapidly Changing Immigration Policies (Toronto: Maytree Foundation, 2012) at 58.

(21) Citizenship and Immigration Canada, Facts and Figures 2012-Immigration Overview: Permanent and Temporary Residents (Ottawa: Minister of Public Works and Government Services Canada, 2013) at 4-5, 52-53 [Facts and Figures 2012].

(22) See Fay Faraday, Made in Canada: How the Law Constructs Migrant Workers' Insecurity (Toronto: Metcalf Foundation, 2012) at 19-25, 76-77.

(23) Jason Foster, "Making Temporary Permanent: The Silent Transformation of the Temporary Foreign Worker Program" (2012) 19:1 Just Labour 22 at 40-42. See generally Judy Fudge & Fiona MacPhail, "The Temporary Foreign Worker Program in Canada: Low-Skilled Workers as an Extreme Form of Flexible Labor" (2009) 31:1 Comp Lab L & Poly J 5.

(24) Facts and Figures 2012, supra note 21 at 4-5.

(25) Immigration and Refugee Protection Regulations, SOR/2002-227, s 72.1 [IRPR].

(26) Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2013-246.

(27) Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act, 1st Sess, 41st Parl, 2012, (assented to 28 June 2012), SC 2012, c 17.

(28) See Citizenship and Immigration Canada, News Release, "Government of Canada to Cut Backlog and Wait Times for Family Reunification-Phase I of Action Plan for Faster Family Reunification" (4 November 2011) [CIC News Release],

(29) Irshad, supra note 18 at para 120.

(30) Tobi Cohen, "'Bogus Refugees' Sap Health Care", The Vancouver Sun (1 August 2012) B2.

(31) Jenna Hennebry, "Permanently Temporary? Agricultural Migrant Workers and Their Integration in Canada" (2012) 26:1 IRPP Study 1 at 12-13.

(32) The "Super Visa" enables multiple entries into the country over a period of up to 10 years and a maximum stay of 24 months on each visit. See CIC News Release, supra note 28.

(33) Eldridge v British Columbia (AG), [1997] 3 SCR 624 at para 24, 151 DLR (4th) 577. Territories' power over health care provision is constitutionally rested with the federal government. However, through a series of legislative arrangements, the Canadian government has delegated much of this power to territorial authorities. See Martha Jackman, "Constitutional Jurisdiction over Health in Canada" (2000) 8:1 Health LJ 95 at 116.

(34) Pursuant to Constitution Act, 1867 (UK), 30 & 31 Viet, c 3, s 92(2), reprinted in RSC 1985, Appendix II, No 5, provinces are limited to imposing direct taxes within their respective jurisdictions and these revenues must be raised strictly for provincial purposes.

(35) Howard Leeson, "Constitutional Jurisdiction over Health and Health Care Services in Canada" in Pierre-Gerlier Forest, Gregory P Marchildon & Tom Mclntosh, eds, The Governance of Health Care in Canada: The Romanow Papers, vol 3 (Toronto: University of Toronto Press, 2004) 50 at 54.

(36) SC 1957, c 28, ss 4, 6 [Hospital Insurance Act].

(37) Malcolm G Taylor, Health Insurance and Canadian Public Policy: The Seven Decisions that Created the Canadian Health Insurance System and Their Outcomes, 2nd ed (Kingston: McGill-Queen's University Press, 1987) at 234.

(38) SC 1966, c64, s5.

(39) See Taylor, supra note 37 at 374-76.

(40) For a description of the changes to the cost-sharing arrangements between the two levels of government following the passage of the Medical Care Act, see William Lahey, "Medicare and the Law: Contours of an Evolving Relationship" in Jocelyn Downie, Timothy Caulfield & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed (Markham, Ont: LexisNexis Canada, 2011) 1 at 32-35.

(41) CHA, supra note 13, s7.

(42) Ibid, ss 18-19.

(43) Ibid, s 14.

(44) Ibid, ss 15-16.

(45) Ibid, ss 20-21.

(46) (1988), 53 DLR (4th) 413, [1989] 1 WWR 193 (Alta CA) [Winterhaven cited to DLR].

(47) Ibid at 433-34, citing Constitution Act, 1982, s 36(1), being Schedule B to the Canada Act 1982 (UK), 1982, ell.

(48) Elmer Driedger, The Construction of Statutes, 1st ed (Toronto: Butterworths, 1974) at 67.

(49) See Stephane Beaulac & Pierre-Andre Cote, "Driedger's 'Modern Principle' at the Supreme Court of Canada: Interpretation, Justification, Legitimization" (2006) 40:1 RJT 131 at 135-40.

(50) Ruth Sullivan, "Statutory Interpretation in a New Nutshell" (2003) 82:1 Can Bar Rev 51 at 54-55.

(51) Ibid at 56.

(52) Supra note 13, s 10 [emphasis added].

(53) Guy Carrin et al, "Universal Coverage of Health Services: Tailoring its Implementation" (2008) 86:11 Bull World Health Organization 857 at 857.

(54) The scope of health care services that must be covered by provincial and territorial insurance plans is identified by the comprehensiveness criterion in the CHA. See supra note 13, s9.

(55) Colleen M Flood & Sujit Choudhry, "Strengthening the Foundations: Modernizing the Canada Health Act" in Forest, Marchildon & Mclntosh, supra note 35, 346 at 348-49.

(56) Supra note 13, s 2.

(57) Ibid.

(58) Ibid.

(59) For examples of how courts have interpreted the ordinary presence aspect of the definition of resident in provincial/territorial health insurance legislations, which replicates the definition found in the CHA, see e.g. R v Nielsen (1973), 43 DLR (3d) 634, 14 CCC (2d) 224 (YCA); Carmel v Manitoba (Health Services Commission) (1981), 124 DLR (3d) 367,9 Man R (2d) 167 (CA).

(60) (1990), 65 DLR (4th) 744, 107 AR 247 (QB) [Manassian cited to DLR].

(61) RSA 2000, c A-20.

(62) Ibid, s 1(x).

(63) For a summary explanation of the refugee claim process under the Immigration Act, 1976, SC 1976-1977, c 52, see Singh v Canada (Minister of Employment and Immigration), [1982] 2 FC 689,132 DLR (3d) 751 (TD).

(64) See Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177 at para 15, 17 DLR (4th) 422.

(65) Manassian, supra note 60 at paras 19, 26.

(66) An alternative, and broader, interpretation of "lawful" presence could see it encompassing not only persons with authorizations to reside in Canada, but also anyone who has an active application in the immigration and refugee system even if such an application does not per se entitle the person to a stay of the removal process; this latter group includes, inter alia, applicants for permanent residence on humanitarian and compassionate grounds, as well as unsuccessful refugee claimants from designated countries of origin or those deemed to be irregular arrivals who have requested a judicial review. Still another interpretation, grounded in a more radical form of cosmopolitanism, would be to view all international migrants in Canada, inclusive of those without either a valid authorization or an active file in the immigration and refugee system, as "lawfully" present. My decision here to not adopt these more expansive interpretations should not be taken as a sign of disapproval but a mere recognition that, in light of the pronouncement in Manassian, these positions are likely to face greater resistance from Canadian jurists.

(67) (1985), 67 BCLR 334, 1985 CarswellBC 331 (WL Can) (SC) [Hernadi (SC) cited to BCLR], rev'd (1986), 34 DLR (4th) 145, 10 BCLR (2d) 81 (CA) [Hernadi (CA) cited to DLR].

(68) RSBC 1979, c 255.

(69) RSBC 1979, c 180.

(70) Hernadi (SC), supra note 67 at 338-39, citing Immigration Act, 1976, supra note 63, s 2(1).

(71) Hernadi (CA), supra note 67 at 148.

(72) Ibid at paras 150.

(73) SC2001, c 27.

(74) IRPR, supra note 25 (a description for what qualifies a person as a visitor in the immigration and refugee context is provided, but in a circular manner; it stipulates that "[a] foreign national is a visitor and a member of the visitor class if the foreign national has been authorized to enter and remain in Canada as a visitor" at s 192).

(75) The New Oxford Dictionary of English, 1998, subverbo "tourist".

(76) Ibid, sub verbo "transient".

(77) Ibid, sub verbo "visitor".

(78) Statistics Canada, National Tourism Indicators, Quarterly estimates, Second quarter 2012, Catalogue No 13-009-X (Ottawa: Statistics Canada, 2012) at xiii, online: <>.

(79) UN Statistics Division & UNWTO, International Recommendations for Tourism Statistics 2008, UN Doc ST/ESA/STAT/SER.M/83/Rev.l (2010) at para 2.9, online: <>.

(80) Ibid 31 para 2.13.

(81) Ibid at para 2.21.

(82) Ibid at paras 2.46, 2.62, 2.64.

(83) Hospital Insurance Act, supra note 36, s 5(2)(a); Medical Care Act, supra note 38.s4(l)(c).

(84) Taylor, supra note 37 at 331-77.

(85) Ibid at 346, citing Royal Commission on Health Services, Report (1964) vol 1 at 743-44.

(86) House of Commons Debates, 22nd Parl, 5th Sess, vol 3 (8 April 1957) at 3251.

(87) Stephane Beaulac, "Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?" (1998) 43:2 McGill LJ 287 at 323 .

(88) Hospital Insurance Regulations, SOR/58-329, s 3(2) [emphasis added].

(89) Hernadi (CA), supra note 67.

(90) House of Commons Debates, 27th Parl, 1st Sess, vol 7 (12 July 1966) at 7548 [emphasis added].

(91) [1999] 2 SCR 817 at para 70, 174 DLR (4th) 193.

(92) Ibid, citing Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed (Markham, Ont: Butterworths, 1994) at 330.

(93) See supra note 2.

(94) Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12 of the Covenant), UNCESCROR, 22nd Sess, UN Doc E/C. 12/2000/4 (2000) at para 34 [emphasis in original].

(95) Committee on Economic, Social and Cultural Rights, General Comment No 19: The Right to Social Security (Art 9 of the Covenant), UNCESCROR, 39th Sess, UN Doc E/C.12/GC/19 (2008) at paras 37-38.

(96) 28 July 1951, 189UNTS 137, art 23 (entered into force 22 April 1954).

(97) Report of the Committee on the Elimination of Discrimination Against Women on its Twentieth Session, UNGAOR, 54th Sess, Supp No 38, UN Doc A/54/38/Rev.l (1999)1 at para 6.

(98) Committee on the Elimination of Discrimination Against Women, General Recommendation No 26 on Women Migrant Workers, UNCEDAWOR, 42nd Sess, UN Doc CEDAW/C/2009/WP.l/R (2008) at para 26.

(99) General Comment No 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, UNCRC, 39th Sess, UN Doc CRC/GC/2005/6 at para 46.

(100) Medical Services Payment Act, RSNB 1973, c M-7, s 1, sub verbo "resident"; Medical Care Insurance Act, 1999, SNL 1999, c M-5.1, s 2(h); Hospital Insurance and Health and Social Services Administration Act, RSNWT 1988, c T-3, s 1, sub verbo "resident"; Hospital Insurance Regulations, NS Reg 11/58, s l(m)(i); Hospital Insurance and Health and Social Services Administration Act, RSNWT 1988, c T-3, s 1, sub verbo "resident", as duplicated for Nunavut by s 29 of the Nunavut Act, SC 1993, c 28; Health Services Payment Act Regulations, PEI Reg EC453/96, s l(s); Health Care Insurance Plan Act, RSY 2002, c 107, s I, sub verbo "resident".

(101) For the legislative regime in British Columbia, see Medicare Protection Act, RSBC 1996, c 286, s 1, sub verbo "resident"; Medical and Health Care Services Regulation, BC Reg 426/97, s 2. For the Ontario scheme, see RRO 1990, Reg 552, ss 1.2-1.14. For Quebec, see Health Insurance Act, RSQc A-29, ss 5-5.0.1; Regulation respecting eligibility and registration of persons in respect of the Regie de I'assurance maladie due Quebec, RRQ, c A-29, r 1, ss 2-3.

(102) For Alberta, see Alberta Health Care Insurance Act, RSA 2000, c A-20, s l(x); Alberta Health Care Insurance Regulation, Alta Reg 76/2006, s 5. For Manitoba, see Health Services Insurance Act, RSM 1987, c H35, s 2(1), sub verbo "resident"; Residency and Registration Regulation, Man Reg 54/93, s 8. For Saskatchewan, see Saskatchewan Medical Care Insurance Act, RSS 1978, c S-29, s 2(q); Medical Care Insurance Beneficiary and Administration Regulations, RRS c S-29, Reg 13, s 6.

(103) See Medicare Protection Act, supra note 101.

(104) See Medical and Health Care Services Regulation, supra note 101, s 2(b).

(105) Letter from Cherry Hicks, Manager of Public Services and Administration at the Newfoundland and Labrador Department of Health and Community Services to YY Brandon Cheng (22 November 2012) [unpublished; on file with author]. See also "Medical Care Plan Eligibility" (2 January 2013), online: Newfoundland and Labrador Department of Health and Community Services <>.

(106) RRO 1990, Reg 552, supra note 101, s 1.3(2); RRQ, c A-29, r 1, supra note 101, s3(3).

(107) See Janet McLaughlin, Trouble in Our Fields: Health and Human Rights among Mexican and Caribbean Migrant Farm Workers in Canada (PhD Thesis, University of Toronto, Department of Anthropology, 2009) [unpublished] at 38.

(108) For an overview of the dispute avoidance and resolution process under the CHA, see Health Canada, Canada Health Act-Annual Report 2012-2013 (Ottawa: Minister of Public Works and Government Services Canada, 2013) at 171-74 [CHA Annual Report].

(109) For legislation in Manitoba, see Health Services Insurance Act, supra note 102, and Residency and Registration Regulation, supra note 102, s 8(1)(a). For information on the Northwest Territories, see "NWT Health Care Plan-Eligibility for Coverage", online: Northwest Territories Health and Social Services <>;"NWT Health Care Plan-Registration," online: <>. For Yukon, see "Health Care Card-Eligibility", online: Yukon Health and Social Services <>; CHA Annual Report, supra note 108 at 117-18.

(110) Citizenship and Immigration Canada, "Foreign Worker Manual" (Temporary Foreign Workers Guidelines, FW 1) (2013) at 97, online: Government of Canada Publications <>.

(111) For calls on the government to make work permits more open, see e.g. Faraday, supra note 22 at 76-78.

(112) See RRO 1990, Reg 552, supra note 101, s 1.4(6).

(113) Citizenship and Immigration Canada, "Open Work Permits and Provincial Health Insurance in Ontario and Quebec", Operational Bulletin 111 (27 April 2009), online: <>.

(114) These jurisdictions are Alberta, British Columbia, Manitoba, Northwest Territories, Nunavut, and Saskatchewan. See respectively "Temporary Residents-Alberta Health", online: Alberta Health <>; "Medical Service Plan-Eligibility and Enrolment", online: British Columbia Ministry of Health <>; "Frequently Asked Questions: Health Coverage for International Students", online: Government of Manitoba <>; "NWT Health Care Plan-Registration", supra note 109; CHA Annual Report, supra note 108 at 136; "Eligibility for Health Benefits-Students," online: Government of Saskatchewan <>.

(115) See e.g. Paul Turenne, "Foreign Students in Manitoba to Get Free Health Care" Winnipeg Sun (25 October 2011), online: <>; Sylvia Reitmanova, "Unequal Treatment of International Students in Canada: Handling the Case of Health Insurance Coverage", online: (2008) 11:2 College Quarterly 6 <>.

(116) "International Students", online: Newfoundland and Labrador Department of Health and Community Services <>.

(117) "Health Insurance-Eligibility," online: Regie de l'assurance maladie Quebec <>.

(118) CHA Annual Report, supra note 108 at 117.

(119) Hospital and Medical Services Program for Persons on Student Visas Regulations, NS Reg 67/78; Hospital and Medical Services Program for International Students Employed as Teaching or Research Assistants Regulations, NS Reg 92/98.

(120) See e.g. Regulation respecting the selection of foreign nationals, RRQ, c 1-0.2, r 4, s 47(l)(iii); "International Health Insurance," online: University of New Brunswick <>.

(121) See Ontario Undergraduate Student Alliance, "Policy Paper: International Students" prepared by Daud Grewal (November 2010) at 9, online: <> [OUSA Policy Paper].

(122) See ibid at 9-11; Queen's University Society for Graduate and Professional Students, "Report: Addressing the Cost of UHIP (University Health Insurance Plan) for International Graduate and Professional Students" by the Special Committee on International Graduate and Professional Students (5 February 2007), online: <>.

(123) "Backgrounder-Applying for a Parent and Grandparent Super Visa" (1 December 2011), online: CIC <>.

(124) Carol Sanders, "New Super Visa Is 'Super Disappointing'" Winnipeg Free Press (21 December 2011), online: <>.

(125) See e.g. "Backgrounder-Medical Insurance for the Parents & Grandparents Super Visa" (19 February 2013), online: David Cummings Insurance Services <>.

(126) Citizenship and Immigration Canada, "Operational Manual-Reference, IR 3, 'Medical'" (25 February 2011) at 4-5 [unpublished; on file with author]. However, even before 1995, the federal government was already providing some health care benefits to certain medically indigent refugee claimants when some provinces began to exclude them from medicare. See e.g. Ann Silversides, "Exclusion of Refugees from Health Coverage Draws Criticism in B.C." The Globe and Mail (10 April 1986) A17.

(127) PC 1957-11/848, reprinted in Toussaint v Canada (Attorney General), 2010 FC 810,323 DLR (4th) 338 at para 36.

(128) Citizenship and Immigration Canada, "Audit of the Control Framework for the Interim Federal Health Program: Final Report" by the Internal Audit and Disclosures Branch (21 April 2004) at n 2, online: <>.

(129) Supra note 13, s 2, sub verbo "insured health services".

(130) For healthcare services and products covered by the IFHP before June 2012, see Citizenship and Immigration Canada, Information Sheet for Interim Federal Health Program Recipients (Ottawa: CIC, 2011) at 2, online: Government of Canada Publications <>.

(131) Order Respecting the Interim Federal Health Program, 2012, SI/2012-26, (2012) CGazII, 1135.

(132) For a summary of the IFHP benefits after June 2012, see Citizenship and Immigration Canada, "Interim Federal Health Program: Summary of Benefits" (14 December 2012), online:<>.

(133) See e.g. Nicholas Keung, "Don't Reduce Health Care for Refugees, Ontario Urges" Toronto Star (29 June 2012) A18; Carol Sanders, "Province Steps Up for Refugees" Winnipeg Free Press (13 September 2012), online: <http://www.winnipeg>.

(134) Regie de l'assurance maladie Quebec, Infolettre 005, "Services Medicaux Rendus aux Demandeurs D'asile Admissible au PFSI et Residant au Quebec" (9 April 2013), online: <>; Ontario Ministry of Health and LongTerm Care, News Release, "Reinstating Access to Health Care for Refugee Claimants" (9 December 2013), online: Ontario Newsroom <>. Although the Ontario government's news release suggested that Alberta, Manitoba, Saskatchewan, and Nova Scotia have adopted similar measures to restore refugee claimants' health care coverage, refugee health care programs in these provinces are either incomprehensive or forthcoming. See Wendy Glauser, "Feds Stick with Decision Not to Fund Refugee Health Care" (2014) 186:2 CMAJE70.

(135) See Debra Black, "Federal Court Rules Refugee Health-Care Cuts 'Cruel and Unusual'" Toronto Star (5 July 2014) A4.

(136) Supra note 13, s 2, sub verbo "user charge".

(137) Ibid, s 19(2).

(138) OUSA Policy Paper, supra note 121 at 9.

(139) Supra note 13, s 2, sub verbo "extra-billing".

(140) For a historical review of federal transfer payment deductions resulting from CHA violations, see CHA Annual Report, supra note 108 at 12-15.

(141) For an archive of Health Canada's annual reports on the CHA, see "Reports and Publications-Canada Health Act Annual Reports" (10 February 2014), online: Health Canada <>.

(142) See Office of the Auditor General of Canada, 1999 November Report of the Auditor General of Canada to the House of Commons (Ottawa: Minister of Public Works and Government Services Canada, 1999) at paras 29.51-29.55. See also Office of the Auditor General of Canada, 2002 September Status Report of the Auditor General of Canada to the House of Commons (Ottawa: Minister of Public Works and Government Services Canada, 2002) at paras 3.41-3.46.

(143) CHA Annual Report, supra note 108 at 12.

(144) See supra notes 21-28 and accompanying text.

(145) Meagan Fitzpatrick, "Don't Bring Parents Here for Welfare, Kenney Says", CBC News (10 May 2013), online: <>, quoting Citizenship and Immigration Minister Jason Kenney. See also Eva Ferguson, "Refugee Health Care Facing Cutbacks" Calgary Herald (28 May 2012), online: <http: // >.

(146) Standing Senate Committee on Social Affairs, Science and Technology, Time for Transformative Change: A Review of the 2004 Health Accord (March 2012) at 9-10 (Chair: The Honourable Kelvin K Ogilvie).

(147) Department of Finance Canada, News Release, 2011-141, "Harper Government Announces Major New Investment in Health Care" (19 December 2011), online: <>.

(148) Heather Scoffield, "Health Accord: Leona Aglukkaq Says Talks with Provinces to Emphasize Measurement, Not Money", Canadian Press (29 December 2011), online: The Huffington Post <>.

(149) Sujit Choudhry, "The Enforcement of the Canada Health Act" (1996) 41:2 McGill LJ 461.

(150) Colleen M Flood & YY Brandon Chen, "Charter Rights & Health Care Funding: A Typology of Canadian Health Rights Litigation" (2010) 19 Annals Health L 479 at 484-94.

(151) (1994), 80 FTR 300, 1994 CarswellNat 655 (WL Can) [Hughes cited to FTR],

(152) Ibid at para 1.

(153) Ibid at paras 6-7.

(154) 2004 FC 1334,244 DLR (4th) 175 [CUPE cited to FC].

(155) Ibid at paras 29-38.

(156) Ibid at para 44.

(157) [1986]2SCR607, 33 DLR(4th)321 [Finlay cited to SCR].

(158) Ibid at 633.

(159) CUPE, supra note 154 at para 47.

(160) See e.g. Reference Re Canada Assistance Plan (BC), [1991] 2 SCR 525 at paras 26-28, 83 DLR (4th) 297.

(161) Ibid.

(162) See e.g. Friends of the Earth v Canada (Governor in Council), 2008 FC 1183, 299 DLR (4th) 583.

(163) CHA, supra note 13, s 14(2).

(164) Supra note 157 at 632-33.

(165) RSC 1985, cF-7,s 18.1(1).

(166) Supra note 157 at 623-24.

(167) Ibid at 633-34.

(168) See e.g. Baukje Miedema & Sandra Wachholz, A Complex Web: Access to Justice for Abused Immigrant Women in New Brunswick (Ottawa: Status of Women Canada, 1998) at 2-6; Sudha Shetty, "Equal Justice under the Law: Myth or Reality for Immigrants and Refugees?" (2004) 2:2 Seattle J Social Justice 565 at 566.

(169) [1992] 1 SCR 236, 88 DLR (4th) 193 [cited to SCR].

(170) Ibid at 245-55.

(171) 2012 SCC 45 at paras 51-52, [2012] 2 SCR 524.

(172) Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at paras 304-53, [2014] FCJ no 679 (QL) (TD).

(173) 2008 SCC 9 at para 54, [2008] 1 SCR 190 [Dunsmuir].

(174) See e.g. Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paras 30,34, [2011 ] 3 SCR 654 [Alberta Teachers].

(175) 2013 SCC 67 at para 33, [2013] 3 SCR 895 [McLean].

(176) Ibid at para 33.

(177) See e.g. Toussaint, supra note 18 at para 19; Public Mobile Inc v Canada (Attorney General), 2011 FCA 130 at para 35, [2011] FCR 3.

(178) Supra note 173 at para 47.

(179) Matthew Lewans, "Deference and Reasonableness Since Dunsmuir" (2012) 38:1 Queen's LJ 59 at 82,92.

(180) 2011 SCC 53, [2011] 3 SCR471 [Canadian Human Rights Commission].

(181) Ibid at paras 34-35.

(182) Ibid at para 34.

(183) Supra note 174.

(184) Ibid at para 53.

(185) Canadian Human Rights Commission, supra note 180 at para 34.

(186) See supra notes 67-68 and accompanying text.

(187) Hernadi (CA), supra note 67 at 147-48.

(188) Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at para 3, [2012] 1 SCR 364. For a more in-depth analysis of what a reasonableness review of the GIC's discretionary decision may entail, see Choudhry, supra note 149 at 494-98.

(189) D'Errico v Canada (Minister of Human Resources and Skills Development), 2014 FCA 95 at para 16,459 NR 167.

(190) [1994] 1 FC 742 at para 45, 162 NR 177, aff'd [1994] 3 SCR 1100, 175 NR 1 [Apotex].

(191) Ibid.

(192) Choudhry, supra note 149 at 499.

(193) Apotex, supra note 190 at para 106.

(194) Finlay v Canada (Minister of Finance), [1993] 1 SCR 1080, 101 DLR (4th) 567 [Finlay No 2 cited to SCR]

(195) Ibid at paras 69-71.

(196) Ibid.

(197) See Kent Roach, Constitutional Remedies in Canada (Aurora, Ont: Canada Law Book, 1994) at para 12.30.

(198) Gordon Borrie, "The Advantages of the Declaratory Judgement in Administrative Law" (1955) 18:2 Mod L Rev 138 at 138-42.

(199) (1979), [1980] 1 SCR 821 at para 11, 105 DLR (3d) 745.

(200) Supra note 194 at 1120, citing MacGuigan JA in Finlay v Canada (Minister of Finance), [1990] 2 FC 790 at 816, [1990] FCJ No 600 (QL) (CA).

(201) See Flood & Choudhry, supra note 55 at 368.

(202) See e.g. Nadeem Esmail, "Kill the Canada Health Act" National Post (7 May 2004) A17; Mark Rovere, "Time Out on the Canada Health Act" National Post (30 November 2010) A19.

(203) Meagan Fitzpatrick, "Refugee Health Cuts 'Clarified,' Not Reversed, Kenney Says" CBCNews (3 July 2012), online: <>.

(204) See Nicholas Keung, "City Declared a 'Sanctuary'", Toronto Star (22 February 2013) Al.

Y.Y. BRANDON CHEN ([dagger])

([dagger]) JD, MSW, SJD Candidate, University of Toronto, Faculty of Law, Toronto, Ontario.
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Title Annotation:IV. Gaps in LNTIMS' Health Care Coverage in Canada through VI. Conclusion, with footnotes, p. 109-79
Author:Chen, Y.Y. Brandon
Publication:University of British Columbia Law Review
Date:Jan 1, 2015
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