Extending Health Care Entitlement to Lawful Non-Transient International Migrants: Untapped Potential of the Universality Principle in the Canada Health Act

(2015) 48:1 U.B.C. Law Review 79

66 Pages Posted: 27 Jun 2013 Last revised: 26 Feb 2015

See all articles by Y.Y. Brandon Chen

Y.Y. Brandon Chen

University of Ottawa, Faculty of Law, Common Law Section

Date Written: February 16, 2015

Abstract

Foreign nationals who reside in Canada on a non-transient basis face varying degrees of coverage gaps under the supposedly universal health care system. Although these international migrants have launched multiple lawsuits against the government based on the Canadian Charter of Rights and Freedoms in hope of acquiring public health care benefits, these advocacy efforts have remained unsuccessful to date. This paper explores an alternative litigation strategy by examining the untapped potential of the Canada Health Act (“CHA”), which articulates the fundamental principles that provincial health care schemes must observe in order to receive full federal transfer payments. Relying on statutory interpretation, I argue that the universality criterion stipulated in the CHA in fact envisions the inclusion of all lawful non-transient international migrants who are ordinarily present in Canada in the public health care system, and therefore the federal government must step up its enforcement of the Act to ensure provincial compliance. In the absence of such federal enforcement, I suggest that medically uninsured international migrants and their advocates should consider an application for judicial review as another means to enforce the terms of the CHA. Framing international migrants’ health care disentitlement as a violation of the CHA has the added potential of highlighting the solidarity between Canadians and foreign nationals in defending the founding principles of Canada’s health care regime.

Keywords: international migrants, health care, universality, entitlement, administrative law

Suggested Citation

Chen, Yin-Yuan, Extending Health Care Entitlement to Lawful Non-Transient International Migrants: Untapped Potential of the Universality Principle in the Canada Health Act (February 16, 2015). (2015) 48:1 U.B.C. Law Review 79. Available at SSRN: https://ssrn.com/abstract=2284929 or http://dx.doi.org/10.2139/ssrn.2284929

Yin-Yuan Chen (Contact Author)

University of Ottawa, Faculty of Law, Common Law Section ( email )

57 Louis Pasteur Pvt.
Ottawa, K1N 6N5
Canada

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