Chaoulli Five Years On: All Bark and No Bite?

Abstract

In June 2005 the Supreme Court handed down a complex and non-unanimous decision in the case Chaoulli v. Quebec. The ruling held that prohibitions on the sale of private health insurance for services that are already provincially insured are unlawful, but only under certain circumstances. Further adding to the complexity of the ruling is that it was so worded as to apply only to the Province of Quebec. The Chaoulli ruling generated a virtual avalanche of media stories and a significant volume of scholarly publications. Such activity is characteristic of a public policy-network and its associated policy-community that have been severely disrupted. This paper identifies the element of the ruling which caused this disruption and goes on to ask why this disruption failed to produce a suitable policy window for reforming Canadian health policy along lines favoured by free-market advocates. Specifically, Canada’s system of provincial universal public health insurance plans remains largely as it was before the ruling and no meaningful market for parallel private insurance has emerged. Only a handful of niche products have entered the field. Significantly, Canada’s major insurers have shown little interest in offering such coverage. This paper argues that the reason for this reticence is simply that there is no business case for the major insurers to offer such a product. Even if the courts were to further widen the conditions under which rival private insurance for provincially insured services could be sold and were to lift other restrictions as well, a profitable private alternative to provincial health insurance would still be very difficult to create. As far as health care policy-making is concerned, Chaoulli has proven to be a decision which is primarily bark and very little bite. The paper concludes by asking what lessons the Canadian health policy community can draw from the Chaoulli decision with regard to how future issues are assessed and debated.