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The Mandated 3-Month Wait for OHIP Coverage

By Shalu Atwal

While the Canadian health care system is widely touted for its universality, three provinces – Ontario, Quebec[1] and British Columbia – do not allow landed immigrants[2] to access provincial health care coverage until three months after their arrival.[3] According to a piece published by the Toronto Star, entitled “Ontario urged to eliminate OHIP wait,” there are two main rationales behind this policy.[4] First, the policy operates as a cost-saving measure. The three-month wait has supposedly resulted in $90 million in savings per year for Ontario. Second, delaying access to federally-funded health care serves to discourage medical tourism. In other words, the three-month wait disincentivizes persons moving to Ontario for a brief period of time solely for the purpose of taking advantage of free medical services. Instead, the Ontario Government provides alternatives for landed immigrants, including advising immigrants to obtain private insurance before arriving to Canada.[5] The government also funds several Community Health Centres (CHC), which provide primary care free of charge.[6]

However, critics of the policy maintain that these alternatives are inadequate. Private insurance is often not purchased because it is incomprehensive (e.g. emergency-oriented rather than preventative) or too costly.[7] The CHCs also have their barriers; for instance, Scarborough’s only CHC reported a waiting list of 3,000 uninsured newcomers seeking to access health care.[8] Regarding the policy itself, critics argue that it is not only arbitrary (why not impose a two-month wait instead?), but also ineffective. The Ontario Medical Association (OMA), which publicly advocates for the elimination of the wait, stated in a review paper that any immediate savings gained by not providing insurance to newcomers were subsequently depleted.[9] Immigrants without health coverage often seek primary medical care at hospital emergency departments, an expensive and already overcrowded part of the health care system.[10] Moreover, the OMA found that immigrants tend to delay seeking care until the three-month period is over.[11] Not only can this compound costs, as illnesses can worsen over time, but it also poses a danger to the broader community from a public health perspective. A former president of the OMA, Dr. Mark MacLeod, stated: “whether a person has an infectious disease, an urgent health event, an accident, or a chronic illness, the best possible outcomes will be achieved when the person seeks medical care as quickly as possible.”[12]

Critics also argue that the mandated three-month wait for health care coverage violates the right to health.[13] A right to health is recognized by numerous international instruments, including the Universal Declaration of Human Rights. However, while Canada is a signatory to the Declaration, it is not, in itself, binding law in Canada. In fact, Canada has not yet recognized a legal right to health.[14]

Even so, opponents of the three-month wait for OHIP coverage emphasize that its removal is the “right thing to do.”[15] When New Brunswick eliminated the wait, the Health Minister, Mary Schryer, echoed this sentiment, stating:

“Removing the three-month waiting period is the right thing to do… Our government recognizes that removing this barrier will enhance access to health-care services for immigrants…”[16]

 

[1] There are exemptions to the three-month wait in Quebec for infectious and communicable diseases and women are provided care for pregnancy, domestic violence, or sexual assault.

[2] This wait also applies to former residents returning from abroad.

[3] Caulford, Paul and Jennifer D’Andrade. “Health care for Canada’s medically uninsured immigrants and refugees.” Canadian Family Physician. 2012. 58: 725.

[4] Keung, Nicholas. “Ontario Urged to Eliminate OHIP Wait | Toronto Star.” Thestar.com. Toronto Star, 3 Feb. 2011. Web. 14 Jan. 2016.

[5] “OHIP Coverage Waiting Period.” Ontario Ministry of Health and Long-Term Care, 1 Dec. 2011. Web. 14 Jan. 2016.

[6] “Community Health Centres.” Ontario. Government of Ontario, 9 Sept. 2015. Web. 14 Jan. 2016.

[7] Elgersma, Sandra. “Immigration Status and Legal Entitlement to Insured Health Services.” Parliament of Canada. 2008. 7.Parliament of can not only compoitlement to Insured Health Services.”s oned: hese words: ruary 2012. , . This can not only compo

[8] Caulford, Paul and Jennifer D’Andrade 725.

[9] Ontario Medical Review. “Reviewing the OHIP Three-Month Wait.” 2011. 13.

[10] Ibid. 14.

[11] Ibid.

[12] “Three-Month Wait for OHIP.” Ontario Medical Association. 2016. Web. 14 Jan. 2016.

[13] “Right to Health Care Coalition.” Access Alliance. 2015. Web. 27 Jan. 2014.

[14] “The Health of Canadians – The Federal Role: Final Report” Parliament of Canada.

[15] Goel, Ritika and Michaela Beder. “Welcome to Canada…but don’t get sick.” CMAJ. 2012. 184(1): E103.

[16] Ontario Medical Review 17.

By |February 9th, 2016|Blog, Uncategorized|

Municipal Challenges, Global Obligations: Urban Childhood Poverty and International Treaty Law

By Kevin Laforest

The intersection of the local with the global has found a new manifestation in Canada’s urban cores. Toronto, where this writer is based, was recently crowned Canada’s child poverty capital. The report released by Campaign 2000, indicated that 28.6% of children in Toronto are living in low-income households. This is down only slightly from 2014’s 29%, a startling 149,000 children. This is not to say this is exclusively Toronto’s, or even Ontario’s concern – urban and childhood poverty can be found across the country. And despite the sheer scope of this problem, Canadians everywhere will have to act quickly as the international spotlight is fast approaching.

This coming spring, the Committee on Economic, Social, and Cultural Rights, (CESCR) the body which oversees the implementation of the ICESCR, will be conducting a review of Canada. The last time the Committee visited was in 2006. Ratified by Canada on 19 May 1976, the International Convention on Economic, Social and Cultural Rights (ICESCR) is otablene of the ten core international human rights treaties.[1]

Toronto’s involvement with the ICESCR began in the mid-1990s when local services realignment saw municipalities in Ontario take on a number of new roles as social assistance providers – something that the provincial government had previously been in charge of. The scale of this project can be seen in the table 1, above.[2]

As the city’s social assistance provider for nearly 20 years, Toronto’s response to the current child poverty crisis, entitled TOProsperity, will target six areas of need: housing stability; access to services; transportation; food access; quality jobs and living wages and; institutional change. The intersection of the Committee’s visit and the City’s poverty reduction strategy proves a timely moment to reflect on these obligations, and the different strategies employed to meet them.

There is a tension in the emergence of municipalities as international actors. The Supreme Court in 1994’s Shell Canada Products Ltd. v City of Vancouver which concerned the City’s boycott of Shell’s products due to the latter’s business interests in apartheid South Africa, held that municipalities, “must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality”[3]. The ratio in Shell Canada provides an interesting challenge for municipalities in the increasingly globalized world – global actors with a limited jurisdiction.

This emergence of municipalities onto the global stage provides opportunities for positive change, but remains shrouded in uncertainty. One the one hand, municipalities engaging with issues such as childhood poverty shows great potential for the creation and implementation of bespoke solutions to very local issues. On the other hand, as creatures of statute, cities are limited in the scope of the solutions they may implement. Given this challenge, there is the need for cooperation across provincial and federal and potentially international jurisdictions to engage with the diversity of issues which accompany poverty. This is precisely what international treaties envision.

Downloading the responsibility of urban poverty onto municipalities increases the risk that international treaties become a highly pluralistic regime, subject to localized interpretations of provisions. Nevertheless, TOProsperity and other municipally crafted anti-poverty strategies provide a much more accessible forum for lawyers and concerned citizens alike to ask that all levels of government recognize and respect Canada’s international obligations. TOProsperity, in its closing remarks, declares itself a movement, not a moment[4]. In which direction this movement is going, we have yet to find out.

[1] OHCHR Human Rights Bodies, online: http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx

[2] Andre Cote & Michael Fenn “Provincial-Municipal Relations in Ontario: Approaching an Inflection Point” (2014) 17 Institute on Municipal Finance & Governance, at 10.

[3] Shell Canada Products v Vancouver (City) [1994] 1 SCR 231 at para 101; [1994] 1 RCS 231, [Shell Canada].

[4] City of Toronto TOProsperity, online: City of Toronto <http://www.toronto.ca/legdocs/mmis/2015/ex/bgrd/backgroundfile-81653.pdf>.

By |January 19th, 2016|Blog, Uncategorized|

Bringing the Right Home? Canada’s Domestic Recognition of the International Human Right to Adequate Housing

By Lauren Pinder

Tonight approximately 30,000 Canadians will spend the night homeless. 1 in 5 low-income Canadians spend more than 50% of their income on accommodation. Paradoxically, Canada has signed and ratified several international human rights treaties that identify the right to adequate housing as a fundamental human right. There is an inherent disconnect between recognition of the right to adequate housing and the persistence of homelessness and unaffordable housing in Canada.

In 2007, the UN Special Rapporteur of Adequate Housing visited Canada and published key findings and recommendations for the country. The report identified that a key obstacle in upholding the right in Canada is that the right is not recognized in any Canadian legislation. Eight years have passed since this evaluation took place. Has Canada made any steps towards recognition?

International Recognition of the Right

Article 11 of the International Covenant on Economic, Social, and Cultural Rights outlines ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’.

Article 25.1 of the Universal Declaration of Human Rights states ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing…’

National Human Rights Act

Canada’s Human Rights Act does not outline a right to adequate housing. In regards to housing, the Human Rights Act states that the purchase of tenancy of accommodation cannot be denied based on prohibited discriminatory grounds. These include race, gender, source of income, etc. This is the only mention of accommodation of housing in the Act.

Provincial Human Rights Legislation

The Special Rapporteur’s Report identified that while no provinces outline a right to adequate housing in their human rights legislation, two provinces in some way addressed social and economic rights that are associated with housing.

Article 45 of Quebec’s Charter of Human Rights, short of directly including a right to adequate housing, guarantees for any person in need “the right for himself and his family to measures of financial assistance and to social measures provided to him by law, susceptible of ensuring such a person an acceptable standard of living.”

In Newfoundland and Labrador, the Human Rights Code was amended in 2006 to include ‘source of income’ – whether social assistance, employment insurance, wages, etc. – as a prohibited ground of discrimination for seeking occupancy.

Since the report was released, most provinces have amended their human rights legislation to include source of income and/or social class as a prohibited ground of discrimination along the lines of the national Human Rights Act and Newfoundland and Labrador. To this date, no province has taken the bigger step of including a specific right to adequate housing.

The Charter of Rights and Freedoms

In the report, the UN Special Rapporteur stated that since the 1982 induction of the Charter of Rights and Freedoms, the right to housing had seen advances. The Charter does not directly recognize a right to housing, or address housing in general. The report speculates that the section 7 right to life, liberty and security of the person or the section 15 equality right would provide an indirect route to addressing violations of the right to adequate housing.

Last year, this was put to the test with Tanudjaja v Canada Attorney General. Four homeless individuals challenged the constitutionality of the Canadian and Ontarian governments’ failure to implement strategies to address homelessness and provide affordable housing options. A successful challenge would have effectively created a positive duty for the government to create programs to provide affordable, adequate housing.

The case went to the Ontario Court of Appeal where it was dismissed in a 2-1 majority decision on two key grounds. First, the claimants did not identify legislation that violated their rights which is standard in a Charter Challenge. They instead argued that the failure to act was in violation of their right to housing. The decision states that in framing their argument this way, the claimants had made the issue one of politics and policy-making instead of a legal issue within the mandate of the judicial system. This framework could make any exploration of and determination regarding the issue resemble a public inquiry instead of a judicial application of law.

Second, the majority found that there is no law that confers a freestanding right to housing or a positive duty to establish programs that provide affordable housing. The court deferred to the legislature the ability to recognize the right to adequate housing.

In June of this year, the case was denied leave to the Supreme Court of Canada. This suggests that Canadian courts will likely only uphold the right to adequate housing if this right is directly recognized in legislation.

Building a Stronger Foundation

It does not appear that Canada has taken steps to recognizing the right to adequate housing in legislation since the Special Rapporteur’s report. However there have been positive advancements that could indicate a shift in approach. Last month a group of homeless people in British Columbia won a case at the B.C. Supreme Court that allowed them to set up tents and shelters in which to sleep in overnight. Within days of that judgement, Ontario announced that – following the recommendation from a panel of housing experts appointed in the spring – it has set a 10 year deadline to end homelessness in the province. This winter will mark the first point-in-time survey of the homeless population across Canada with the hopes of capturing the state of homelessness in Canada on any given day. The newly elected federal government ran on a platform that included a national housing strategy, which Canada does not currently have. Hopefully, these factors indicate that Canada is building a solid foundation for a future recognition of the right to adequate housing.

By |January 10th, 2016|Blog, Uncategorized|

Canadian Mining Companies and Human Rights Violations Abroad: Part I

This post is first of a three-part series examining Canadian multinational corporations, particularly within the extractive sector, and the issue regarding human rights violations caused by their actions abroad.

By Diana Norwich
In its July 2015 Concluding Observations on Canada’s compliance with the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee expressed concern over the “allegations of human rights abuses by Canadian companies operating abroad, in particular mining corporations and about the inaccessibility to remedies by victims of such violations”.(1) Last November, the Inter-American Commission on Human Rights (IACHR) released a statement on its 153rd Session, stressing its apprehension over reports of alleged human rights violations in Latin America, and urged the Organization of American States (OAS) to “adopt measures to prevent the multiple human rights violations that can result from the implementation of development projects, both in countries in which the projects are located as well as in the corporations’ home countries, such as Canada.” (2) As well as submitting reports of violations to these human rights bodies, some have turned to taking legal action against Canadian companies in Canadian courts, as seen in ongoing lawsuits against Tahoe Resources and Hudbay Minerals.

This may be considered the Canadian iteration of the chronic quandary of finding and holding legal accountability to transnational corporations (TNCs) in their home state, for the misconduct of their affiliates abroad. Over 50% of the world’s mining companies are headquartered in Canada, holding interests in properties across more than 100 countries. (3) When a violation of international humanitarian law occurs on the site of one of these mines outside of Canada, can the Canadian company be held legally responsible in their home state? Should it? The serious allegations of human rights abuses abroad, some of which are outlined in the report submitted by the Canadian Network on Corporate Accountability to the IACHR, raise pressing questions on Canada’s extraterritorial obligations. In many of these situations, the remedies that the domestic jurisdiction in which these violations occur can offer are inadequate, or entirely out of reach. In the background of the plaintiffs’ claims against Tahoe Resources, which asserted liability for severe shooting injuries allegedly caused by Tahoe’s mining security personnel, hangs concerns of the lack of judicial independence and corruption in Guatemala. Regardless, in their judgement issued November 9th, the British Columbia Supreme Court exercised forum non conveniens, declining jurisdiction in favour of Guatemala as “clearly the more appropriate forum”. (4) With these events, it is apparent that, given their considerable economic influence (in 2010, Canadian mining companies held 41% of the larger-company mineral exploration market in Latin America and the Caribbean) (5) and border-transcending dimensions, the actions of Canadian mining corporations play a significant role in the human rights conditions of their operational spaces, a role for which many stakeholders are demanding greater accountability and oversight from the Canadian government.

The business structures, multiple jurisdictions and the entangled nature of the interests of involved actors make a clear-cut division of responsibility difficult. As exactingly summarized by Professor John Ruggie, the former UN Special Representative of the Secretary General on Business and Human Rights, “[t]he root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge.” (6) Professor David Bilchitz, a human rights and constitutional law professor and Chair of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, identifies three legal doctrines which exacerbate the accountability gap and prevent access to remedy for victims of human rights violations:(7)

  1.  The jurisdictional challenge: International law generally gives each state sovereignty over its own internal affairs, meaning that although the home state may have jurisdiction over a parent company that has incorporated in that state, it has no jurisdiction over the parent company’s foreign subsidiaries. Although the Maastricht Principles (8) provide that “[a]ll States must take necessary measures to ensure that non-State actors which they are in a position to regulate…such as…transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, social and cultural rights”, there are serious considerations a state must balance when exercising extraterritoriality (as detailed by Jennifer Zerk in her report for the Special Representative of the UN Secretary General on Business and Human Rights).
  2.  Weak governance zones: Certain jurisdictions may lack an independent judiciary, or its laws may not be properly enforced. States wishing to encourage foreign direct investment may be reluctant to impose or enforce regulations on these businesses.
  3. Corporate structure and the separate legal personality: TNCs are not one entity. They are typically comprised of separate corporations constituted individually for different countries, each considered its own distinct legal entity with limited liability. As Professor Bilchitz puts it, “How does one hold the main corporate structure (or actors therein) accountable for its failure to meet its human rights obligations where it is divided into distinct legal entities across national borders?” (9)

In my next post, I will outline the current international and domestic framework of norms that have been established to address this issue, as well as transnational private regulation.

 

(1)UNHRC, “Concluding observations on the sixth periodic report of Canada”, CCPR/C/CAN/CO/6 (July 2015).

(2)OAS, “IACHR Wraps Up its 153rd Session” (7 Nov 2014), online: <www.oas.org/en/iachr/media_center/PReleases/2014/131.asp> [6].

(3)Government of Canada, “Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad” (June 2015), online: <www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/Enhanced_CS_Strategy_ENG.pdf.>

(4)Garcia v Tahoe Resources Inc, 2015 BCSC 2045, [5].

(5)Natural Resources Canada, “Canadian Global Exploration Activity”, online: <www.nrcan.gc.ca/mining-materials/exploration/8296>

(6)UNHRC, “Protect, Respect and Remedy: a Framework for Business and Human Rights” A/HRC/8/5, online: <www.reports-and-materials.org/sites/default/files/reports-and-materials/Ruggie-report-7-Apr-2008.pdf> 3.

(7) David Bilchitz, “The Necessity for a Business and Human Rights Treaty,” available at SSRN 2562760 (2014) 15-16.

(8)Maastricht Principles on Extraterritorial Obligations of States on in the area of Economic, Social and Cultural Rights. online

(9)Bilchitz, 16.

By |December 22nd, 2015|Blog, Uncategorized|

“Evening with Dallaire” a Huge Success

On September 16, 2013, CLAIHR, in partnership with Child Soldiers Initiative and The Law Society of Upper Canada, hosted LGen Roméo Dallaire (Ret) and MP Paul Dewar for a panel discussion on child soldiers, conflict minerals, and Canadian responses.

Thank you to everyone who made this event a success, including Shangri-La Hotel Toronto for providing our guests’ accommodations. In case you missed the action, you’ll be pleased to know that we live-Tweeted the event, the summary for which is available here.

Happy reading!

By |September 18th, 2013|Uncategorized|

An evening with L.Gen. Roméo Dalliare (Ret.)

L.Gen. Roméo Dallaire (Ret.) will share insights on the plight of child soldiers in conflict zones during a Law Society panel discussion with NDP Foreign Affairs Critic Paul Dewar.

Bencher Paul Schabas, chair of Law Society of Upper Canada’s Human Rights Monitoring Group will moderate.

The event is presented by CLAIHR in association with the Roméo Dallaire Child Soldiers Initiative (CSI)

Date: Monday, September 16, 2013
Time: Discussion will start at 5:30PM; Guests are invited to a post-event reception at 7PM
Location: Osgoode Hall (130 Queen St W, Toronto) in the Lamont Room
RSVP: equityevents@lsuc.on.ca or (416) 947-3413/(800) 668-7380 ext. 3413

Thank you to everyone who has supported this event, including the generous sponsorship of Shangri-La Hotels Toronto. The event is officially SOLD OUT now. Please follow us on Twitter (@CLAIHR) and use the event hashtag #EveWithDallaire to join the discussion.

This event is a free public program. Lawyers in attendance may count this program as 1.5 Substantive Hours of their Continuing Professional Development requirement.

**Photographs and video taken at this event may be used in Law Society of Upper Canada, CLAIHR and CSI publications.

By |August 12th, 2013|Uncategorized|

Dr Kapila, Former Head of UN in Sudan, to speak at Toronto event May 10th

CLAIHR is proud to partner with Canadian International Council and Gowlings LLP to present a free keynote event featuring Dr Mukesh Kapila OBE, former Head of the United Nations in Sudan. In the talk, entitled Why do our global institutions fail to prevent & protect against mass atrocities?, Dr Kapila will reflect on his experiences in Darfur when he attempted to alert the world to the unfolding genocide and will consider the current crises in Sudan today. He will draw upon his extensive international experience working within the UK government, the UN and Red Cross movement which also took him to Rwanda and Bosnia. Dr Kapila will highlight the importance of individual accountability as well as collective responsibility in the prevention of genocide and other crimes against humanity in Sudan and around the world and will pose lessons to be drawn for future practice.

Date: Friday, May 10, 2013
Time: Noon (attendee sign-in will begin at 11:45AM)
Venue: Gowlings LLP, First Canadian Place, 100 King St W, 16th Floor

Registration Instructions:
Participants *must* pre-register. No walk-ins allowed. Deadline to pre-register is 5PM, Thursday, May 9th.

By email: toronto [at] opencanada [dot] org
By phone: 416-590-0630
Online: http://cictoronto10may2013.eventbrite.ca/

Additional Details:
Light refreshments will be served after the talk.
Program is eligible for 1.5 hours of substantive CPD with LSUC.

Click here to download event flyer.

Dr Kapila’s New Book, “Against a Tide of Evil”
Dr Kapila is in Toronto as part of a cross-Canada tour to promote his new memoir about his efforts to bring attention to the mass atrocities in Darfur while he was UN Chief in Sudan. The book was launched in Geneva at the start of May, to coincide with the 10 year anniversary of the horrific events in Darfur. A portion of the proceeds from the books sold through the UK non-profit organization Aegis Trust will go towards preventing future mass atrocities.

MK Geneva press release to read the news release by Aegis Trust on the book and its launch in Geneva.

By |April 28th, 2013|Uncategorized|

CLAIHR’s 2011 AGM

CLAIHR will be holding it’s Annual General Meeting on July 12 at 6:00 PM for the purpose of reviewing its financial statements for the past fiscal year.  The meeting will be held at 1 Queen Street East, Suite 1620 in Toronto and all current members are invited to attend.

 

By |July 12th, 2011|Uncategorized|

CLAIHR joins International Coalition for R2P

CLAIHR is proud to announce its recent membership in the International Coalition for the Responsibility to Protect. CLAIHR is the first Canadian NGO to join the international coalition and we  look forward to working with this global network to further promote the principles of the Responsibility to Protect.   The Responsibility to Protect provides a framework to determine when outside intervention is required in domestic crises so that the international community can provide protection to civilians when their government is unable or unwilling to do so.  As part of our commitment to the principles of R2P, CLAIHR will continue its work in education and awareness raising for this important international legal norm in the Canadian context.

By |May 18th, 2011|Uncategorized|

Responsibility to Protect and the Libyan Crisis

CLAIHR President Jillian Siskind

CLAIHR President Jillian Siskind speaks about the Responsibility To Protect

On March 26th, 2011, CLAIHR’s President, Jillian Siskind, delivered the keynote address for a two-day symposium at the University of Toronto titled “Deconstructing Humanitarian Aid in the 21st Century”.  The symposium was organized by the International Relations Society at the Munk School of Global Affairs and featured many speakers and panellists in the field of human rights.

Delegates were presented with a comprehensive investigation of contemporary issues relating to the politics of humanitarian aid and intervention.  In particular, the symposium offered a well-timed opportunity for students, scholars, practitioners and individuals interested in human rights to gather and discuss relevant human rights issues concerning the recent turmoil in the Middle East.

Jillian provided the delegates with an overview of the legal framework for humanitarian intervention and the responsibility to protect with the corresponding political considerations inherent in such actions.  The focus then turned to the current armed conflict in Libya, with first the background history of the country, followed by a political discussion of the current crisis and the response of the international community.

Click here to read Jillian’s speech.

By |April 26th, 2011|Uncategorized|