2011 was an amazing year for health law cases. We strained to reduce the number of cases to ten. Other organizations might well choose different cases, and CBA’s National Health Law section will be publishing its own list in its newsletter, The Pulse. Since Lisa is both an author of this list, and the editor for the article in The Pulse, her staying impartial was difficult!
Without further ado, and in no particular order, here are ten important health law cases from 2011.
1. Compensable psychological injuries must still rise to the level of recognizable psychiatric illness
Plaintiff patients attending at the facilities of a defendant health corporation were potentially exposed to two patients with active tuberculosis. In a class proceeding, one plaintiff class consisted of patients testing negative for the disease, but alleging psychological injury from being informed they might be infected. The defendant sought to have the claim of the uninfected patients dismissed. In response the uninfected representative plaintiffs sought partial summary judgment to establish that the damage they claimed was compensable in law. They failed on the basis the psychological injuries the uninfected plaintiffs suffered, such as depression, fear, shock, anxiety, anger, frustration, and the like, were non-compensable.
The traditional test for damages for pure psychological injury requires a plaintiff to prove a recognizable psychiatric illness. The plaintiffs argued this standard was reduced by the Supreme Court of Canada in Mustapha v. Culligan,  2 S.C.R. 114, such that a plaintiff need only show something amounting to serious trauma or illness that was serious, prolonged and rising above ordinary annoyances, anxieties and fears. The Ontario Court of Appeal acknowledged criticisms of the recognizable psychiatric illness threshold, but concluded that the Mustapha decision did not change the nature of the well-established legal threshold. As a matter of policy, the law required an objective standard to screen claims: “ … Given the frequency with which everyday experiences cause transient distress, the multi-factorial causes of psychological upset, and the highly subjective nature of an individual’s reaction to such stresses and strains, such claims involve serious questions of evidentiary rigour.”
Healey v. Lakeridge Health Corp., 2011 ONCA 55
2. Professional standard of care and the “respectable minority principle”
A physician found negligent in treating a newborn after two abnormal test results by ordering a screening test, rather than a diagnostic test, appealed on the basis the trial judge failed to apply the “respectable minority principle.” The principle holds that where the practice followed by a doctor is adhered to by at least a respectable minority of competent medical practitioners in the same field; it is not for the court to prefer the practice of the majority over that of the respectable minority. The Court of Appeal rejected the argument, finding that the trial judge considered the expert evidence favouring the physician to suffer from frailties such that the court could not rely on it to establish the existence of a respectable minority opinion. The Court of Appeal noted the respectable minority principle “does not absolve a doctor from liability in negligence whenever there is a conflict in the expert evidence led at trial concerning the reasonableness of a doctor’s conduct….”  Further, the court had discretion to assess liability for negligence even in the face of uncontradicted evidence of common professional practice; even a professional following the practice of peers might be found liable, if the practice is not in accordance with the general requirement of acting in a reasonable manner. 
Cleveland (Litigation guardian of) v. Hamilton Health Sciences Corp. (Henderson General Division), 2011 ONCA 244
3. Long-term care accommodation charges might amount to unjust enrichment of government
The defendant Province of Alberta appealed from a decision dismissing its application to strike an action brought by representatives of residents of Alberta’s nursing homes. The province had for many years asked that long-term care recipients contribute to the cost of their care through the imposition of “accommodation charges”. The plaintiffs alleged that some of these funds had been used to pay for services that the province was constitutionally obligated to provide for free. The Supreme Court of Canada found that the plaintiffs could not possibly succeed in an action based on fiduciary duty, as the patients’ vulnerability alone could not ground such a claim. Similarly, there was no sufficient proximity in the relationship between the government and the patients to establish a duty of care to found an action in negligence. However, the Court found that it was not plain and obvious that the patients could not establish the requisite elements of unjust enrichment — benefit to the government in the form of its being relieved of expenses it was required to incur under various statutes; deprivation of the plaintiffs; and absence of juristic reason for the deprivation. In addition, the patients’ plea for relief under section 15(1) of the Charter was not directly contested by the Province. The latter two causes were allowed to proceed to trial as a class action.
Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24
4. Manner of conception an analogous ground of discrimination under equality provision of the Charter
The plaintiff in this case was conceived through artificial insemination by donated sperm. Under provincial law, the doctor who performed the procedure was not obligated to retain the records relating to the procedure after a certain period of time. As a result, the plaintiff’s efforts to discover her paternity were thwarted when the records were destroyed. Provincial law provided adopted children with the right to information regarding their birth parents under legislation, but this law did not extend to protect donor offspring, i.e., the children of sperm donors. The plaintiff sued the province on the basis provincial law unjustifiably discriminated between donor offspring and adopted children. The B.C. Supreme Court found that manner of conception was a ground of discrimination analogous to those enumerated in section 15(1) of the Charter. The manner of one’s conception is a personal characteristic that is immutable, like race. The discriminatory distinction, which failed to provide donor offspring with the same benefits provided to adoptees, based on a stereotypical view that donor offspring did not have needs similar to adoptees for information about the other half of their biological history, violated the Charter without being justified under section 1. The remedy that the court granted included, inter alia, a permanent injunction prohibiting the future destruction of donor records.
Pratten v. British Columbia (Attorney General), 2011 BCSC 656
5. Health Minister fettered discretion in declining special review of pesticide
An environmental researcher requested, under the Pest Control Products Act, that the Minister of Health initiate a special review of the health and environmental risks posed by a certain pest control product sold in Canada since 1976, based not only on studies allegedly linking exposure to miscarriages and cancer in humans, but also on toxicity to amphibians. The Minister declined to order a special review. The Minister’s decision recognized the toxicity of the pesticide to aquatic organisms including amphibians, as illustrated by mitigation measures, and possible environmental risk to amphibians in ephemeral wetlands, but a two-year study already was already underway investigating the effects of the product on amphibians and small wetlands. The Minister concluded a special review was unnecessary due to a re-evaluation of the product anticipated in the near future when the two-year study was complete.
The Federal Court found the Minister erred in law by fettering her discretion to order a special review based on a re-evaluation of environmental risks planned for when the two-year studies were complete. The statute required a “special review” regardless of whether a re-evaluation under another section was planned or underway. The court also noted a special review of whether the pesticide presented an unacceptable environmental risk to amphibians was required by the precautionary principle, which holds that given threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent adverse health impact or environmental degradation. Further, the Minister’s 29-page decision did not address and was not transparent or intelligible with respect to the environmental risk at issue. Accordingly, the Minister’s decision was quashed, and sent back for reconsideration.
Wier v. Canada (Minister of Health), 2011 FC 1322
6. No tort liability for federal government’s previous health policy favouring low-tar cigarettes
In its defence of two actions against Imperial Tobacco, one being litigation by British Columbia for health care costs incurred by BC to treat illnesses caused by tobacco usage, and the second being a claim by class members who bought “light” or “mild” cigarettes, Imperial Tobacco sought to add Canada as a third party, based on statements Canada made to tobacco companies and the public about the purportedly lesser risk of “light” reduced-tar cigarettes as compared with normal cigarettes. Imperial Tobacco alleged various causes of action, including contribution or indemnity for breaches of duties to consumers, and damages for breaches of various duties owed to Imperial Tobacco.
The chambers judge struck out the third party notices, and these rulings were affirmed by the Supreme Court of Canada. Any prima facie duty of care that Canada owed to tobacco companies was eliminated by policy considerations. Canada’s policy of encouraging smokers to consume low-tar cigarettes, and its promoting this variety of cigarette pursuant to its policy, was exempt from tort claims. The court clarified that “core policy” government decisions protected from suit are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith.”  As Canada’s course of action was adopted at the highest level of government, involved social and economic considerations, and developed out of concern for the health of Canadians, the representations were matters of government policy. Canada’s health policy on low tar cigarettes could not attract tort liability for misrepresentation, failure to warn, or negligent design.
Further, the court found Canada was not a “manufacturer” under various cost recovery statutes, and also could not be liable for contribution or indemnity under the Negligence Act, or under the common law, since it was not also liable to the plaintiff directly. [136 and 139]
R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42
7. Judicial deference to the BC Health Professions Review Board
In the course of a 2009 complaint against a physician to the College of Physicians and Surgeons of BC, the College disclosed a number of letters referring to the physician’s past complaint history to the Health Professions Review Board. The Board subsequently decided these letters should be disclosed to the complainant seeking a review, over the objections of the physician and the College. The physician sought judicial review of the HPRB’s decision. The result was the first judicial review of a decision by the HPRB, which itself reviews decisions by registration and inquiry committees of health professional regulators, not covered by a right to appeal disciplinary decisions under s.40 of the Health Professions Act. The court confirmed that s.58 of the Administrative Tribunals Act applied to the HPRB, such that a court would not interfere with findings of fact or law, or an exercise of discretion by the HPRB, unless patently unreasonable, e.g., where discretion is exercised arbitrarily or in bad faith, for an improper purpose, based on entirely or predominantly irrelevant factors, or fails to account for statutory requirements. In upholding the Board’s decision, the B.C. Supreme Court found that the HPRB’s approach, which was premised on the complainant being able to fully participate in the proceedings before the HPRB, was not patently unreasonable.
NB: This case does not, in itself, establish a complainant has a right to access a registrant’s complaint history if that history has not gone before an inquiry committee. An inquiry committee that does not examine a registrant’s complaint history may, however, open its decision to review on the basis the committee might have acted differently had it considered the registrant’s history.
RM v. the College of Physicians and Surgeons of British Columbia, 2011 BCSC 832
8. Withdrawal of life-support by physicians requiring consent
In this case, the spouse of a patient who had been diagnosed as being in a persistent vegetative state sought an order restraining his doctors from withdrawing life support. The primary issue on appeal was whether the withdrawal of life-support amounted to “treatment” under the Health Care Consent Act, 1996, S.O. 1996, c. 2. The respondent physicians argued that patients do not have the right to insist upon medically ineffective and inappropriate treatment. However, the Ontario Court of Appeal held that the withdrawal of life-sustaining care is necessarily accompanied by the initiation of palliative care, and that this “package” of care constituted “treatment” under the Act. Therefore, the spouse’s consent was required. Further, the ONCA held that absent her consent, the respondent physicians’ treatment proposal must be referred to the Ontario’s Consent and Capacity Board. 
The Supreme Court of Canada granted leave to appeal on December 22, 2011.
Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482
9. Federal criminal drug laws violating Charter right of health care providers working at safe-injection-site
InSite, a pilot project providing a safe-injection-site for intravenous drug addicts in Vancouver, relies on a federal exemption from provisions of the Controlled Drugs and Substances Act to provide services. While InSite received an exemption in 2003 and temporary extensions of its initial mandate in 2006 and 2007, the Minister indicated he would be denying InSite’s application for a new exemption in 2008, leading to InSite bringing a court action to keep its doors open. While the Supreme Court of Canada rejected the approach taken by a majority of the BC Court of Appeal that the doctrine of interjurisdictional immunity protected InSite as a creation of the province’s purported “core” legislative power over health issues – the SCC could not identify a “core” power over health exclusive to provinces, found that the ousting of criminal law from the domain of health could potentially create problematic “legal vacuums”, and that the CDSA as a whole was still valid and applicable legislation – the Minister’s decision to deny an exemption to InSite violated the claimants’ section 7 Charter rights. In particular, the absence of an exemption under the CDSA for InSite’s staff exposed them to the threat of being imprisoned for carrying out their duties, specifically by allowing prohibited drugs on the premises. The SCC found the Minister’s decision was “arbitrary”, bearing no relation to the CDSA’s stated objectives; that the decision undermined the very purposes of the CDSA which include public health and safety; and that the foreseeable harm to the claimants arising from that decision was “grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.” As such, the decision could not be justified under section 1 of the Charter. While the Court insisted that its ruling should not serve to fetter the Minister’s discretion over future decisions, the Court noted the Minister’s exercise of such discretion had to be consistent with Charter requirements.
Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44
10. A challenge to the prohibition on physician-assisted suicide
On 26 April, 2011 the BC Civil Liberties Association, along with a number of representative plaintiffs, commenced a constitutional challenge to Canada’s prohibition on physician-assisted suicide. The hearing of the summary trial has now concluded, and a decision is expected shortly.
In a 1993 case on the same issue (Rodriguez), a majority of the Supreme Court of Canada held that, despite the prohibition on physician-assisted suicide infringed the plaintiff’s section 7 Charter right to life, liberty and security of the person, such a deprivation was justifiable in a free and democratic society. Of particular importance to Mr. Justice Sopinka was the conclusion of significant societal consensus in favour of the prohibition. In this latest challenge, the plaintiffs argue the prohibition infringes both section 7 and 15 (equality) Charter rights of the plaintiffs, and is not justified in a free and democratic society. The plaintiffs’ argument relies partially on the assertion that Canadian values and opinions on this subject have shifted over the last 20 years.
Carter v. Attorney General of Canada, B.C.S.C. Action No. S112688 Vancouver Registry
Lisa Fong and Michael Ng