Health Coalition wins right to intervene in important refugee health care case

The Canadian Health Coalition has won the right to intervene in an important case before the Ontario Superior Court of Justice that could impact the ability of refugees to access Canada’s medicare system.

The CHC, the Charter Committee on Poverty Issues (CCPI) and the FCJ Refugee Centre were granted leave to intervene in the case of Nell Toussaint v. Attorney General of Canada by Justice Belobaba on January 14, 2022. Their application was opposed by the Attorney General of Canada. The coalition was represented by well-known human rights lawyer Martha Jackman, past board member who also represented the CHC and CCPI in the Chaoulli case.

Nell Toussaint came to Canada as a visitor from Grenada in 1999, and worked in Canada as an irregular migrant for almost a decade when she developed life-threatening health problems. In 2009, she applied for and was denied access to the Interim Federal Health Program (IFHP) because of her irregular immigration status. The IFHP provides limited, temporary coverage of health care benefits to people who aren’t eligible for provincial or territorial health insurance.

More than 1,500 doctors and other health care professionals have supported her case, and urged the federal government to extend medical coverage to people living in Canada with uncertain immigration status, usually because of insufficient documentation.

She contested her denial in court, but was unsuccessful at the Federal Court and the Federal Court of Appeal under Canada’s immigration law, despite the courts agreeing that her life and long-term health had been put at risk. The Supreme Court of Canada refused to grant Ms. Toussaint leave to appeal these shocking decisions.

Supporter Bruce Porter and a legal team brought her case to the UN Human Rights Committee arguing her rights were violated under the International Covenant on Civil and Political Rights. On August 7, 2018 the Human Rights Committee agreed and ruled Canada must take necessary measures to ensure that no one is denied access to essential health care because of irregular immigration status.

This is the first decision of a UN treaty monitoring body to consider access to health care for irregular migrants as a right to life issue, according to her legal team.

With the UN decision in hand, Nell Toussaint is going to the Ontario Superior Court of Justice to force the government to change its policy, and she is being supported by the Canadian Health Coalition and others.

“The CHC believes that access to health care is of such direct and fundamental importance to every resident of Canada that the administration and operation of Canada’s health care and publicly funded health insurance system must be thoroughly transparent, accountable and subject to rigorous scrutiny for compliance with rights guaranteed by the Charter and international human rights law,” said Steven Staples on behalf of the Canadian Health Coalition in its court application.

(Cover: Nell Toussaint (centre) surrounded by health care supporters. Submitted)