Claiming the Right to Life and to Non-discrimination of Undocumented Migrants in Access to Healthcare
Historic challenge based on sections 7 and 15 of the Canadian Charter. The UN Human Rights Committe ruled on a communication under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), finding that the denial of essential health care to Nell Toussaint violated article 6, the right to life and article 26, the right to non-discrimination. The Committee's Views in : Toussaint v Canada (2018) CCPR, Communication No. 2348/2014 require Canada to provide appropriate compensation to Ms. Toussaint and to take all measures necessary to ensure that irregular migrants have access to essential health care where there is risk to life.
However, Canada has refused to implenment the Committee's Views, stating that it disagrees with the Committee's findings of law and fact. Ms. Toussaint applied to the Supreme Court of Canada for reconsideration of its previous denial of leave to appeal but this application was denied.
Ms Toussaint has now filed a Claim in Ontario Superior Court alleging that Canada's refusal to implement the Committee's decision and continuing to deny access to essential health care to irregular migrants is a violation of the Canadian Charter which must now be interpreted in light of the Human Rights Committee's Decision. Canada has brought a motion to strike the claim without an evidentiary hearing. Multiple NGOs have applied for leave to intervene in this historic case.
Statement of Claim (as amended May 25 2021) in Ontario Superior Court
Amended Amended Statement of Claim (May 25, 2021) Nell Toussaint v Attorney General of Canada (Ontario Superior Court of Justice Court File No. CV-20-00649404-0000)
AG Canada Brings Motion to Strike the Statement of Claim
AG Canada Motion to Strike the Statement of Claim
Motions for Leave to Intervene in Motion to Strike
Charter Committee on Poverty Issues/Canadian Health Coalition/FCJ Factum for Leave to Intervene
Amnesty International/ESCR-Net Factum for Leave to Intervene
Colour of Poverty Coalition Factum for Leave to Intervene
Canadian Civil Liberties Association Factum for Leave to Intervene
Canada Opposes Motions for Leave to Intervene
AG Canada's Factum on Intervention Applications
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Application for Reconsideration of the decision of the Supreme Court of Canada to deny leave to appeal in light of the decision of the UN Human Rights Committee
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Canada's Refusal to Comply with the Decision
Canada's Response to Committee's Decision
Author's Response to Canada's Refusal to Implement
Committee Follow-up to Canada's Response
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The Petition to the United Nations Human Rights Committee (2013 ongoing)
Historic Decision: Toussaint v Canada (2018) CCPR, Communication No. 2348/2014
Executive Summary of the Petition
Petition: Nell Toussaint v Canada HRC No 2348-2014
Canada's Response on Admissibility
Author's Comments on Admissibility
Author's Comments on Canada's Submissions
Amnesty International's Opinion in Support of the Author
ESCR-Net's Opinion in Support of the Author
Canada's Supplementary Response
Author's Response to Canada's Supplementary
Opinion Letter of Constitutional and Health Law Experts
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Motion for Leave to Appeal to the Supreme Court of Canada (2011-12)
Applicant's Application for Leave to Appeal to SCC Memorandum
Letter from Office of the UN High Commissioner on Human Rights
Affidavit of Nathalie Des Rosiers
The leave application was dismissed by a panel of Justices LeBel, Abella and Cromwell on March 5, 2012.
At the Federal Court of Appeal (2011)
Appellant's Memorandum of Fact and Law
Canadian Civil Liberties Association Intervenor Memorandum
Respondants Memorandum of Fact and Law
The Federal Court of Appeal unanimously upheld the decision of Justice Zinn that denying healthcare necessary to the protection of life and security of undocumented migrants in Canada violates the right to life but is in accordance with principles of fundamental justice.
See the Federal Court of Appeal Decision Toussaint v. Canada (Attorney General) 2011 FCA 213
At the Federal Court (2009-2010)
Notice of Application issued August 10, 2009
Applicant's Memorandum of Argument
Affidavit of Nell Toussaint sworn August 23, 2009
Supplementary Affidavit of Nell Toussaint sworn January 3, 2010
Affidavit of Manuel Carballo Executive Director of the International Centre for Migration, Health and Development (ICMHD) in Geneva. Exhibit A – Curriculum Vitae and Resumé of Manuel Carballo
Report of Dr. Gordon H. Guyatt August 21, 2009
Affidavit of Stephen W. Hwang sworn August 25, 2009
Affidavit of Ilene Hyman sworn August 25, 2009
See decision of Justice Zinn in Toussaint v. AG (Canada) 2010 FC Canada 810.
The applicant filed a Motion for Reconsideration of Justice Zinn's reasons with respect to the allegation of discrimination, arguing that the allegation of discrimination was mischaracterized. See the Applicant's Request for Reconsideration challenging mischaracterization of Discrimination Allegation. The Reconsideration application was dismissed by Justice Zinn after the Attorney General agreed not to object to the applicant arguing on appeal that discrimination on the ground of immigration status is prohibited under s.15 of the Charter.
See Decision of Zinn J on Application for Reconsideration
CURA research partner the Social Rights Advocacy Centre and co-director Bruce Porter provided research and drafting assistance for the Charter and international human rights components of the case. The case was ably argued by counsel for Nell Toussaint: Raj Anand, Andrew Dekany and Angus Grant. See the article in the Toronto Star .
The Original Decision (2009) and the Order-in-Council
Letter of aplication for IFHP dated May 6, 2009
Decision of Craig Shankar dated July 10, 2009 re Application for IFHP
Order-in-Council P.C. 157-11/848, effective June 20, 1957
"...The first two decades of Charter litigation testify to a certain timidity – both on the part of litigants and the courts – to tackle head on the claims emerging from the right to be free from want." (Louise Arbour)
