Docket: T-492-16
Citation:
2017 FC 515
Ottawa, Ontario, May 19, 2017
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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STACEY SHINER
IN HER PERSONAL CAPACITY, AND AS GUARDIAN OF JOSEY K. WILLIER
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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and
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FIRST NATIONS
CHILD AND FAMILY CARING SOCIETY OF CANADA
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Intervener
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JUDGMENT AND REASONS
[1]
The one; the only; legal issue in this judicial
review is whether the federal government should pay for Josey Willier’s dental
braces. The costs were not covered by the Alberta Health Insurance Plan. Broadly
speaking, Medicare does not cover dental care. As a First Nations adolescent,
Josey could benefit from Health Canada’s Non-Insured Health Benefits Program.
However, it was determined that her condition was not serious enough to warrant
braces.
[2]
On a personal level, this case is about Josey’s
mother, Stacey Shiner. She felt her daughter’s pain. She consulted two
dentists. She fought her way through four levels of federal bureaucracy. Not
satisfied, she came to this Court. Given the government’s refusal, with the
help of the Treaty 8 First Nations of Alberta, she still managed to have Josey
fitted with braces at a cost of $6,000.00. Josey doesn’t hurt anymore.
[3]
Unfortunately, I must dismiss this judicial
review. I find the decision that Josey’s condition was not covered by the
policy was reasonable, and that the procedure followed was fair.
Josey’s Condition
[4]
According to the evidence of Ms. Shiner, Josey’s
mother, which evidence was not contradicted, Josey suffered pain due to a severely
blocked lower second premolar lingual. She had to take over-the-counter pain
medicine on a daily basis to relieve the aching pain to her lower gums and the
bottom of her mouth caused by overcrowding. She frequently had headaches. As a
result of her malocclusion, meaning imperfect positioning of the teeth when the
jaws are closed, she had clicking in her jaw, tooth-wear, and avoided chewing
certain foods.
[5]
Ms. Shiner consulted two dentists. She thought
the first was somewhat vague and so then consulted Dr. Mark Antosz. It was his
recommendation that Josey required orthodontic treatment. He wrote:
She has crowding, and overbite and her
midline is off centre. These problems are only to get worse as she gets older
and can cause her problems when she reaches adulthood.
These problems can be treatment [sic] now
quite easily with appliances and braces. However, if left much longer she will
require jaw surgery in conjunction with braces in order to correct this
problem. This is a functional problem with her bite not a cosmetic problem.
[6]
Josey had crowding, retroclined maxillary and
mandibular incisors, mandibular midline deviated left, a deep overbite and
constricted arches with space loss on the lower left and soft tissue injury, as
well as an impacted tooth. Dr. Antosz was of the view that Josey had a severe
and functionally handicapping malocclusion within the meaning of the Program’s criteria.
[7]
The initial application for coverage was
dismissed. There are three subsequent levels of appeal. These appeals are de
novo in that new evidence may be led and the decision is a fresh one based
on all the evidence at hand. It is not an appeal limited to whether the earlier
decision was reasonable. Each time, the advice of a different orthodontist is
sought.
[8]
The decision under judicial review is the third
level appeal decision rendered by Scott Doidge, Director General, Non-Insured
Health Benefits Program, First Nations and Inuit Health Branch, Health Canada.
He stated that to be eligible for the Non-Insured Health Benefits Program, a
claimant must have a severe and functionally handicapping malocclusion as set
out in the Program’s published clinical criteria. Based on the documentation
submitted, it was determined that Josey’s condition fell short, and thus the
request for coverage was denied.
Health Services in Canada
[9]
As a general proposition, health care falls
within provincial jurisdiction. However, the federal government contributes to
the cost of providing health services through the Canada Health Act. It
is a requirement of that funding that each province, and the three territories,
provides or “insures” minimum health care. However,
provinces may provide additional benefits so that coverage is not quite uniform
across the country. As mentioned above, Josey’s condition was not covered by
the Alberta Plan.
[10]
The federal government may provide direct health
care services in matters which fall within its jurisdiction as set out in s 91
of the Constitution Act, 1867. For instance, one such class of subject
is the “militia, military and naval service, and defence”.
Members of the Armed Forces are excluded from provincial health coverage but
are provided with a federal plan in lieu thereof (Canada (Attorney General)
v Buffet, 2007 FC 1061, 319 FTR 119).
[11]
The federal government also has jurisdiction
over, to use the words of the Constitution, “Indians,
and lands reserved for the Indians”. In furtherance thereof, Canada has
put in place a Non-Insured Health Benefits Program that provides coverage to registered
First Nations and recognised Inuit. In reality, it is an insurance policy, only
better. There are no premiums, no deductibles, and no co-pay. The program
provides coverage for a limited range of medically necessary goods and services
not otherwise available. Apart from dental benefits, benefits include eye and
vision care, drugs, mental health consultations and the like. The Program is
neither an Act of Parliament, nor a regulation thereunder.
[12]
The dental services which are covered are drawn
from various Canadian dental association guides and cover a wide range of
services not otherwise provided. Coverage includes such routine matters as the
filling of cavities and teeth cleaning. When it comes to more complex matters,
predetermination is required.
[13]
The program provides coverage for a limited
range of orthodontic services:
[…] when there is a severe and functionally
handicapping malocclusion, as set out by the established clinical criteria,
which are a combination of marked skeletal and dental discrepancies.
[14]
The clinical criteria are as follows:
To be eligible for coverage for orthodontic
treatment, client’s condition must have a combination of marked skeletal and
dental discrepancies such as, but not limited to: (my emphasis)
ο Crossbite
associated with a significant and clear functional shift;
ο Severe overbite
with evident soft tissue injury (˃ 2/3 overlap with impinging of the
palate);
ο Severe open
bite (≥ 5mm)
ο Severe overjet,
positive (≥ 7 mm) or negative (≥ -4mm).
[15]
Despite Dr. Antosz’ opinion, Mr. Doidge
preferred the wealth of opinion offered him by four other orthodontists. I do
not find it was unreasonable for him to decide that Josey’s condition did not
fall within the criteria. In his decision, he specifically referred to the “such as, but not limited to” part of the criteria.
Issues
[16]
It is common ground that the standard of review
is reasonableness. The applicant and the intervener submit that the decision was
unreasonable because it was limited to the four bullets set out in the criteria.
Consideration should have been given to matters:
(a) “such as” Josey’s
impacted tooth;
(b) “such as”
soft tissue injury;
(c) “such as”
possible jaw surgery in the future;
(d) “such as” Josey’s
best interests as a child, particularly her pain and suffering; and
(e) “such as” her
equality rights as a member of a First Nation.
[17]
The applicant adds that the decision was procedurally
unfair because not one of the orthodontists retained by Health Canada examined
Josey. No deference is owed to the decision-maker on this point.
Discussion
[18]
The federal government was under no legal
obligation to enact a law, regulation or policy providing benefits to members
of First Nations not covered, in this case, by the Alberta Health Care
Insurance Plan, or by any other provincial health plan. However, having enacted
that policy, it must be properly interpreted and applied (Laurentides Motels
Ltd v Ville du Lac Beauport, [1989] 1 S.C.R. 705).
[19]
The first step is to interpret the actual
language used in the policy with respect to orthodontic treatment. There must
be “marked skeletal and dental discrepancies”.
These discrepancies are measurable. There followed four examples, all of which
were measurable, although there may be a difference of opinion as to what qualifies
as “severe”. This brings into play the limited
class or ejusdem generis principle of interpretation. In Sullivan on
the Construction of Statutes, 6th ed, Ruth Sullivan quotes Mr.
Justice La Forest as saying in National Bank of Greece (Canada) v
Katsikonouris, [1990] 2 S.C.R. 1029, at p 1040:
Whatever the particular document one is
construing, when one finds a clause that sets out a list of specific words
followed by a general term, it will normally be appropriate to limit the
general term to the genus of the narrow enumeration that precedes it.
[20]
There were two physical abnormalities: an
impacted tooth and possible soft tissue injury. The impacted tooth was duly
noted. There is no evidence to support a misinterpretation of the clinical
criteria. At the second level appeal process, Dr. Clarke, an independent
orthodontist retained by Health Canada, suggested that thought could be given
to extracting that tooth.
[21]
As to soft tissue injury, before a decision was
reached at the third level appeal, the Honourable Charlie Angus MP raised
Josey’s condition during question period in the House of Commons. This led to a
telephone conference between Dr. Jonathan Britton, a certified orthodontic
specialist, and Health Canada officials on the one hand, and Dr. Antosz on the
other. Dr. Britton had reviewed Josey’s level one appeal. Mr. Doidge did not
participate in that phone call. However, he was provided with notes thereof
which indicated that Josey was not in fact suffering from soft tissue injury.
[22]
As to possible jaw surgery in the future, the
policy does not have an “ounce of prevention is worth a
pound of cure” aspect to it, as it relates to malocclusion. If so, Dr.
Antosz’ suggestion would have had to have been critiqued.
[23]
This leaves us with Josey’s pain and suffering.
The “such as” skeletal and dental discrepancies
either do not take account of pain in accordance with the ejusdem generis
rule or some pain and suffering is inherent in crossbite, overbite, evident
soft tissue injury and overjet. In any event, Mr. Doidge testified that if he
had received professional advice that remedial action was a medical necessity,
he would have considered whether an exception should be made.
[24]
The allegation that Mr. Doidge only limited his
analysis to the four listed criteria is, accordingly, incorrect. The
presumption that he considered the entire record, including the impacted tooth and
soft tissue injury, has not been rebutted. There is nothing in the record which
leads away from his decision and which therefore would have had to have been
explained (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425).
[25]
The applicant submits that there should be
better criteria to assess whether a claimant suffers from a functionally
handicapping malocclusion, referring to criteria being drafted by the American
Association of Orthodontics. It’s not for me to say. That is a matter for
others.
Best Interests of the Child
[26]
Both the applicant and the intervener submit
that Mr. Doidge unreasonably failed to consider Joey’s best interests.
Reference was made to the Convention on the Rights of the Child, and to Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 which
dealt with a seventeen-year-old refugee claimant. The intervenor points out
that First Nations children are overrepresented in the child welfare system and
refers to a recent decision of the Canadian Human Rights Tribunal which held
that it is unlawful and discriminatory for the Canadian government to engage in
conduct that adversely impacts First Nations children by acting in such a
manner as to leave them open to be removed from their families and homes (see First
Nations Child and Family Caring Society of Canada et al v Attorney General of
Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT
2). Reference was also made to the summary of the final report of the Truth and
Reconciliation Commission of Canada.
[27]
With the greatest respect, this case has nothing
to do with the European settlement of North America. It has nothing to do with
residential schools. It has nothing to do with “scooping”
First Nations children from their homes. This case has to do with Josey’s
teeth; no more, no less.
[28]
Hypothetical scenarios wherein Josey could have been
taken away from her mother for failing to care for her and that the child
welfare authorities in Alberta might have caused braces to be fitted are distasteful
in the extreme. The federal plan comes into play because Josey was not covered
by the Alberta Health Insurance Plan, plain and simple.
[29]
Josey is not a candidate for the child welfare
system. In fact, we should all be so lucky as to have a mother who stands up
for her children as Ms. Shiner has!
[30]
The Convention, although ratified by
Canada, is not, in itself, part of Canadian domestic law, as it has not been
enacted by Parliament (see Chung Tchi Cheung v The King, [1939] AC 160; Reference
as to Powers to Levy Rates on Foreign Legations, [1943] S.C.R. 208; and Adventurer
Owner Ltd v Canada, 2017 FC 105). Nevertheless, international law may serve
as a guideline as to the content of our own domestic law (see Pembina County
Water Resource District v. Manitoba (Government), 2017 FCA 92).
[31]
There is nothing in the record to suggest that any
child in Canada, First Nations or not, would have been treated any differently
than Josey was.
[32]
The whole point of the dental policy is to
benefit children. If there are those who think the policy does not go far
enough, redress should be sought from Health Canada or Parliament, not from the
courts.
Procedural Fairness
[33]
It is suggested that the procedure followed was
unfair because Josey was not physically examined by any orthodontist retained
by Health Canada. This is a lawyer’s point, raised after the fact. There was no
request, while the process was ongoing, that Josey be examined. There is no
evidence whatsoever to suggest that the documentation submitted, such as
diagnostic orthodontic models, a cephalometric radiograph and tracing, a
panoramic radiograph, intraoral and extraoral photographs, a complete
orthodontic treatment plan, as well as information gathered during the
teleconference with Dr. Antosz, was insufficient to allow a decision to be
made. If indeed this was the applicant’s assertion, it should have been raised
a lot sooner.
The Intervention
[34]
In addition to the best interests of the child,
the intervener raised s 15 of the Canadian Charter of Rights and Freedoms,
Schedule B to the Constitution Act, 1982 which provides:
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Equality before and under law and equal protection and benefit of
law
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Égalité devant la loi, égalité de bénéfice et protection égale de
la loi
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15 (1) Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
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15 (1) La loi ne fait acception de personne et s'applique
également à tous, et tous ont droit à la même protection et au même bénéfice
de la loi, indépendamment de toute discrimination, notamment des
discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur,
la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
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Affirmative action programs
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Programme de promotion sociale
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(2) Subsection
(1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including
those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
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(2) Le paragraphe
(1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés
à améliorer la situation d'individus ou de groupes défavorisés, notamment du
fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de
leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou
physiques.
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[35]
Based on Doré v Barreau du Québec, 2012
SCC 12, [2012] 1 S.C.R. 395, it was submitted that the decision-maker had to
balance the infringement of a Charter right with the statutory purposes at
hand.
[36]
In my opinion, there is absolutely no breach of
an equality right here. Indeed, if anything, the orthodontic policy, and the Non-Insured
Health Benefits Program as a whole, is an “affirmative
action program” within the meaning of s 15(2) of the Charter.
[37]
This is not to say, and indeed the Attorney General
of Canada so acknowledges, that there are not historical disadvantages faced by
First Nations children, colonial roots underpinning much of that disadvantage,
and the overrepresentation of First Nations children in foster care. These are
indeed important and serious matters, but they are beyond the scope of this
judicial review.
[38]
As stated at the onset, my duty is to rule on a
disagreement between Ms. Shiner, as Josey’s mother, and Health Canada. Anything
I would say that is not necessary to resolve that matter would not only be
obiter but would also be unhelpful in such future consideration, as there may
be, of issues which are not strictly before me.
Costs
[39]
The Attorney General does not seek costs, and
none shall be awarded. The First Nations Child and Family Caring Society of
Canada was granted leave to intervene on the basis that it would neither seek,
nor be saddled with, costs. So it shall be.
[40]
Finally, the style of cause is amended to add
First Nations Child and Family Caring Society of Canada as intervener.
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