Brady and Ellingsen v. Nova Scotia (Attorney General)

Brady and Ellingsen v. Nova Scotia (Attorney General) Court Supreme Court Date 2024-10-31 Citation 2024 NSSC 329 Docket No. 516523 and 516524 Judge/Registrar/Adjudicator Gabriel, D. Timothy (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Brady and Ellingsen v. Nova Scotia (Attorney General), 2024 NSSC 329 Date: 20241031 Docket: No. 516523 and 516524 Registry: Halifax Between: Jennifer Brady Applicant v. The Minister of the Department of Health and Wellness, and Attorney General of Nova Scotia Respondents Crystal Ellingsen Applicant v. The Minister of the Department of Health and Wellness, and Attorney General of Nova Scotia Respondents Judge: The Honourable Justice D. Timothy Gabriel Heard: March 25, 2024 Counsel: Richard W. Norman and Sarah Dobson, for the Applicants Myles Thompson, for the Respondents By the Court: [1] Jennifer Brady and Crystal Ellingsen (“the Applicants”) challenge decisions made by the Respondent Minister of the Department of Health and Wellness (“the Department”) to deny their requests for out of country treatment on June 23, 2022. [2] Both Applicants suffer from debilitating medical conditions. In order for the Applicants to be reimbursed for the surgeries that they required, they needed to go through an approval process beforehand. The Applicants each ultimately had the surgery performed abroad without the necessary approval. [3] Each Applicant has filed a Notice for Judicial Review, as amended on August 16, 2022 (“the Notice”). They are represented by the same lawyer, and, in the interests of fiscal and judicial economy, have agreed that their matters may be heard at the same time. The Respondents were not opposed to proceeding in this fashion. [4] I will proceed to outline each of the Applicants’ situations. It will not be an exhaustive outline. Indeed, if I were to set forth everything that is in each of their Records and augmenting Affidavits, it would require a “book length” decision. I have, however, considered all of it, and will reference the most significant factors. Jennifer Brady [5] Ms. Brady is afflicted with secondary lymphedema. She contracted the condition in the aftermath of a radical hysterectomy with lymph node dissection to treat cervical cancer. The condition causes her to experience chronic debilitating pain, which also negatively impacts her mobility. She obtained information pertinent to MSI's “out of Province” health services program. She corresponded with the coordinator during the spring and summer of 2021. She says that, at first, she was told that coverage for the required treatment was contingent upon a referral from her Nurse Practitioner (“NP”). As a result, the following letter dated June 8, 2021 was sent by her (then) NP: Dear MSI, Ms. Jennifer Brady has been a patient of mine since 2018. She unfortunately was diagnosed with stage 1B cervical cancer in 2019 and underwent a radical hysterectomy, bilateral salpingectomy, and bilateral pelvic node dissection on May 13, 2019 by Dr. James Bentley (genecology-oncologist). Since her surgery she has been experiencing lymphedema. She complains of swelling in her upper R leg, mons pubis and her labia majora. Ms. Brady was referred to our lymphedema clinic here in Halifax, but they offered her nothing more than compressive garments. Ms. Brady has also been seeing a massage therapist here specializing in lymphedema. She is currently wearing compressive garments but finds it difficult to find ones that fit her as her BMI is -20. She continues to have heaviness in her leg, and upper genitals, she is quite active and this is interfering with her running routine as well as intimate relationships. Lymph node transplant and micro surgery are not available here in Nova Scotia. Dr. Vorstencosch offers this surgery in Montreal, Quebec as a means to improve/cure lymphedema in patients experiencing this disorder. Ms. Brady should be assessed for this surgical option due to the extent of her symptoms, the effect on her quality of life, as well as being a prime surgical candidate due to her age, and physical health. Yours sincerely, Breanna Lloy, BScN MN NP, Billing #150787 (Brady Record, p. 369) [6] Subsequently, she was told by Dr. Valerie Ross, Medical Consultant for MSI (by letter dated June 17, 2021) that she needed a referral from a Nova Scotia specialist (Brady Record, p. 368). The text of that letter is set forth below: Dear Breanna Lloy; This letter is in response to your letter dated June 8, 2021 and received in our office on June 10, 2021 by fax regarding the above named patient. In order for a patient to be referred outside Nova Scotia for treatment, the Nova Scotia Department of Health and Wellness regulations stipulate, that any referral out of province must come from a specialist, who is involved in the care of the patient at the time of referral. As this does not seem to be the case in regards to the above named patient, your request is denied. Please ensure you follow up with your patient regarding this decision. Yours sincerely, Dr. Valerie Ross [emphasis in original] [7] Next, Ms. Brady says that she was advised that a referral from her oncologist, Dr. Bentley would suffice. Through his intervention, she was able to obtain a consultation with a specialist in Montréal. However, her application for coverage of the cost of the consultation was again denied by MSI, this time on the ostensible basis that she did not have a referral from a Nova Scotia-based specialist (Brady Record, p. 371). So, she pursued such a referral. [8] She met with a vascular surgeon in the fall of 2021. She later heard from the surgeon in Montréal (Dr. Vorstenbosch) that COVID-19 delays had negatively impacted surgeries, to the point that hers was unlikely to occur. So, she looked into other options (Brady Affidavit, para 13). [9] In November 2021, Ms. Brady developed cellulitis and a blood infection and was hospitalized (Brady Affidavit, para 16, Brady Record, p. 364). These were complications directly linked to her lymphedema. She contacted MSI to seek an exemption from the requirement for a vascular surgeon’s referral, as she had been waiting for months and her condition was deteriorating. She subsequently filed an appeal regarding the denial by MSI with respect to the denial of coverage of her expenses related to the (Montréal) consultation on February 9, 2022. [10] This Applicant was next told by MSI that the appropriate individual to provide the referral, in the circumstances, was a plastic surgeon, Dr. Williams. Although he does not treat lymphedema, she was advised that he does specialize in Brandt’s breast cancer reconstruction. Accordingly, her NP wrote to Dr. Williams on February 16, 2022 (Brady Affidavit, Ex. I): … Jennifer has exhausted all options in Nova Scotia and has been looking at surgical options in other provinces and countries. She has found a plastic surgeon, Dr. Vorstenbosch in Montreal, who will perform lymphatic transplantation procedure. Jennifer has had letters from myself, Dr. Bentley and Dr. Vorstenbos[c]h sent to MSI for approval for out-of-province surgery. After all of this MSI has told her she needs to be assessed by plastic surgery in Nova Scotia and will require your expertise to determine if this procedure or other options are available in Nova Scotia. If not available, MSI requires you to fill out a formal out-of-province referral form (I have attached the letter from MSI). Thank you for your time, I would appreciate if you could see Jennifer. [emphasis added] [11] Her oncologist, Dr. Bentley, subsequently wrote to Dr. Williams on May 25, 2022: Hi Jim, I have a patient Jennifer Brady MRN 000[******] who has significant worsening lymphedema. There is a referral in to you for an appt. She needs to see a plastic or vascular surgeon to be covered by MSI for out of province treatment. I believe we have spoken about her previously. She is planning on going to go to Japan for surgery. Is there anyway you can see her to see if she can get some approval MSI [Thanks] Jim (Affidavit of Jennifer Brady, filed January 5, 2024, Ex. K) [12] To which Dr. Bentley received the following reply the following day: Hi Jim Have had a group of lymphedema/lipedema patients badgering my poor assistant over the last few weeks. We in plastic surgery don’t see or treat lymphedema or lipedema currently, and the surgeries that are being done have mixed results per what I have seen and heard. Not to discount the value of trying something for someone who is suffering tho. We are under-resourced and can’t see people just to write msi letters. I have had this conversation with Valerie Ross at msi and have offered to write a general letter to them indicating that these surgeries are not offered in NS I sympathize with your patient’s situation Jim. She is on our consult list but is triaged along with Xander patients and everyone else. Perhaps my letter to msi will help her with her plans. J [emphasis added] (Affidavit of Jennifer Brady, filed January 5, 2024, Ex. K) [13] Ms. Brady’s appeal with respect to the Montreal expenses was denied on the basis that she had not provided a referral from a provincially licensed specialist supporting her application letter. [14] She also wrote directly to the Health Minister on May 3, 2022. The correspondence is set out below: I’m writing to follow up on the issue that [I’ve] been having with seeking out of province health services. My colleague, Ann Fox reached out to you about my situation. I have lymphedema for which there is no treatment in Nova Scotia, and which is a progressive and potentially life threatening condition. Essentially, delaying treatment matters to my quality of life and prognosis. I had a serious blood infection in November as a result of my lymphedema. I’ve been waiting for a year now to get into a Nova Scotia specialist to provide the referral that insured services is asking for, but the specialist I need to get into has a four to five year long waiting list. Moreover, I’ve already provided Insured Services with referrals from my Nova Scotia-based Nurse Practitioner and oncology surgeon, as well as a lymphedema specialist in Montreal. I really need some assistance to navigate this situation. I need treatment sooner rather than later, and treatment is available to me outside of Nova Scotia. I’d very much appreciate hearing from you on my situation. (Brady Affidavit, Ex. T) [15] Bereft of any options in Nova Scotia or Canada, she applied to MSI for out-of-country surgical treatment. In May 2022, Ms. Brady’s Oncologist wrote to MSI in support of that request. [16] Ms. Brady’s counsel summarizes the remainder of what occurred: Ms. Brady had a consultation with Dr. Mihara, a surgeon in Japan, in January 2022, where her case was discussed. Dr. Mihara agreed to perform surgery on Ms. Brady. Ms. Brady’s oncologist, Dr. Bentley, followed up with [plastic surgeon] Dr. Williams and was told he did not need to see or treat lymphedema or lipedema patients. In May 2022, Dr. Bentley wrote a letter to the Department supporting Ms. Brady’s request for out-of-country surgical treatment. Ms. Brady paid for her surgery in Japan and the travel to Japan. She submitted a request for MSI coverage. She travelled to Japan for surgery in June 2022. She requested a review of the decision from the Department of Health and Wellness. By decision on June 23, 2022, the Department denied this request. She was advised a new process would be established for dealing with out-of-province care requests, but that it would not be retroactive. Ms. Brady brought a judicial review of the June 23, 2022, decision. [emphasis added] (Applicant Brady’s Brief, p. 3) Crystal Ellingsen [17] This Applicant suffers from lipedema. It is a condition that causes an excess buildup of fatty tissue in the legs and arms. She has received medical advice to the effect that she requires surgery to remove the diseased tissue and increase mobility and relieve chronic pain. [18] This is not cosmetic surgery by any means – it is a three hour staged surgery which should only be performed by surgeons trained in the removal of lipidemic tissue – up to 10% of the patient’s body weight (Ellingsen Affidavit, para 6, Ex. A). These surgeries are not available in Nova Scotia. In fact, Dr. Ross of MSI told this Applicant directly that such surgeries are not available in Nova Scotia (Ellingsen Affidavit, para 10). [19] Next, Ms. Ellingsen spoke with a physician in Germany. She was told that he would be able to provide the necessary surgery and avert permanent disability. She spoke with MSI on January 28, 2022, after applying for coverage. She says that she was told by an MSI representative (Ellingsen Affidavit, para 11) that a referral from a general practitioner would suffice. [20] However, on March 10, 2022, Ms. Ellingsen was advised that she needed a provincially licensed specialist in lipedema to refer her, in order to obtain coverage (Ellingsen Record, p. 285). Since Nova Scotia did not have such a specialist, she was later advised that a plastic surgeon's referral would suffice and she, too, was referred to Dr. Williams. However, she had already contacted his office by this time (in fact, on April 25, 2022) and his receptionist had already advised her that he was not currently seeing any one other than cancer patients, and that they are booking four years out (Ellingsen Affidavit, p. 12). [21] On May 5, 2022, Ms. Ellingsen was copied on the following letter from Valerie Ross: Dear Dr. Massoud: Please be advised that it has come to my attention that Dr. Jason Williams has agreed to see patients with lipedema in consultation. I hope that this may be of benefit with the management of your patient’s condition and will provide the necessary specialist input for any proposed out-of-country referral. (Ellingsen Record, p. 274) [22] Confused, Ms. Ellingsen called Dr. Williams’ office again, on May 14, 2022. The receptionist insisted that Dr. Valerie Ross was mistaken (Ellingsen Affidavit, para 14). She contacted Dr. Ross again, and this apparently prompted her to write the following: Good Morning, I just got off the phone with Dr. Jason Williams…..apparently, the information relayed to us was not correct. He is not looking to take on the lip[e]dema patients as John thought. I had told Dr. Massoud that she could refer her patient to him and now that it appears that the information was then passed to the Lip[e]dema network and they have been inundated with calls. I apologized to him and I contact Dr. Massoud ASAP. He apparently said that he would never refuse anyone but is aware the surgery is not done here and can not prioritize these people over cancer etc.. Valerie [emphasis added] (Ellingsen Record, p. 275) [23] With her request for coverage of out of country surgery denied by MSI’s administration, Ms. Ellingsen also sought a review of that decision by the Department. It was denied on June 23, 2022. [24] As a consequence, in November 2022, March 2023, July 2023, and October 2023 Ms. Ellingsen travelled to Germany for treatments. She did so without the Department’s approval. She is not scheduled for any more treatments. [25] She, too, seeks judicial review of the Department’s decision disentitling her to reimbursement for her medical treatment. [26] Ms. Brady’s Notice says that she seeks Judicial Review on the following bases: 1. Jennifer Brady is a resident of the Province of Nova Scotia and a single mother of two small children. 2. The Attorney General of Nova Scotia represents the Department of Health and Wellness, a provincial ministry, and the Ministers of the Department of Health and Wellness. 3. Ms. Brady suffers from secondary lymphedema, a rare medical condition. Lymphedema is a painful, chronic, and progressive condition with life-threatening complications, including recurring cellulitis and blood infection. 4. Recently Ms. Brady has had serious adverse health effects as a result of her lymphedema and has been required to seek emergency care in Nova Scotia. 5. Medical practitioners have advised Ms. Brady that the non-surgical, conservative treatment for her form of lymphedema that she has pursed in recent years is no longer sufficient. She requires surgical treatment. 6. The surgical treatment is not available in Nova Scotia. The treatment is available on a very limited basis in Canada with a wait time of several years. The treatment is available outside of Canada on an urgent basis. 7. Based on her recent adverse health experiences, the surgical treatment was urgently required by Ms. Brady. It was not elective. 8. Although the treatment was urgently required, Ms. Brady sought advance approval for coverage for the medically required treatment out of country from the Administrator of the Medical Services Insurance Program (the “Administrator”). 9. Ms. Brady was told that she required an opinion from a provincially licensed specialist in the treatment of secondary lymphedema supporting her request for out of country treatment. 10. There is no provincially qualified specialist in Nova Scotia. On that basis, her request was denied. 11. With her request for coverage denied by the Administrator, Ms. Brady sought a review of that decision from the Department of Health and Wellness. By decision dated June 23, 2022, the Department of Health and Wellness denied her request. 12. Around this time Ms. Brady was advised by the Department of Health that a new process was being established to deal with people in her situation as a result of her advocacy. However, she was advised that the new process would not be retroactive and it would be of no benefit to her. 13. In late June 2022, Ms. Brady flew to Japan to seek urgent treatment from a Japanese hospital on an in-patient basis. She borrowed against her home in order to pay fees of approximately $80,000. 14. Ms. Brady says that the Department of Health and Wellness’s Decision should be quashed or set aside on the following basis: a) it was unreasonable and/or incorrect; b) it was made in a procedurally unfair manner; c) it violated Ms. Brady’s right to equality pursuant to section 15 of the Charter of Rights and Freedoms insofar as it discriminated against Ms. Brady by requiring a person like her who suffers from a rare condition to obtain an opinion from a Nova Scotia specialist who does not exist as compared to a person who has a more common illness and for whom specialists in Nova Scotia do exist. Furthermore, the Applicant seeks a declaration that s. 8 of the Hospital Insurance Regulations made pursuant to the Health Services and Insurance Act is of no force and effect pursuant to s. 52 of the Constitution Act, 1982 because it violates her Charter right as described above, and the violation cannot be justified as reasonable in a free and democratic society. 15. Ms. Brady seeks costs of her judicial review. [Underlining in original] [27] Ms. Ellingsen’s Notice sets out the following: 1. Crystal Ellingsen is a resident of the Province of Nova Scotia. 2. The Attorney General of Nova Scotia represents the Department of Health and Wellness, a provincial ministry, and the Ministers of the Department of Health and Wellness. 3. Ms. Ellingsen suffers from lipedema, an under-diagnosed, chronic, and progressive medical condition which results in debilitating pain, impaired mobility, and other adverse effects. The condition causes accumulation of excess fat, typically in the lower body, regardless of caloric intake. Lipedema is poorly understood by health care professionals. 4. Ms. Ellingsen has sought and received all recommended conservative treatments for lipedema that are available in Nova Scotia. 5. She has received medical advice that she requires surgical treatment to address the debilitating progression of her condition. The surgery she requires is not elective. 6. The surgical treatment is not available in Nova Scotia or Canada. 7. Ms. Ellingsen sought advance approval from the Administrator of the Medical Services Insurance Program for coverage for the medically required treatment in Germany. 8. Ms. Ellingsen was told that she required an opinion from a provincially licensed specialist in the treatment of lipedema supporting her request for out of country treatment. 9. There is no provincially qualified specialist in Nova Scotia. The Administrator first indicated a referral from her family physician would be sufficient, but then indicated it was not. She was then directed to a plastic surgeon who would be an acceptable referral source. The plastic surgeon’s office indicated that he was not currently seeking lipedema patients and it would be approximately five years before she could be seen. Ms. Ellingsen has contacted may other plastic surgeons in Nova Scotia but has been told that they will not provide consultations because they do not treat lipedema. 10. With her request for coverage denied by the Administrator, Ms. Ellingsen sought a review of that decision from the Department of Health and Wellness. By decision dated June 23, 2022, the Department of Health and Wellness denied her request. 11. Ms. Ellingsen says that the Department of Health and Wellness’s Decision should be quashed or set aside on the following basis: d) it was unreasonable and/or incorrect; e) it was made in a procedurally unfair manner; f) it violated Ms. Ellingsen’s right to equality pursuant to section 15 of the Charter of Rights and Freedoms a. insofar as it discriminated against Ms. Brady by requiring a person like her who suffers from a rare condition to obtain an opinion from a Nova Scotia specialist who does not exist as compared to a person who has a more common illness and for whom specialists in Nova Scotia do exist; and/or b. insofar as it discriminated against her on the basis of weight and/or obesity. Furthermore, the Applicant seeks a declaration that s. 8 of the Hospital Insurance Regulations made pursuant to the Health Services and Insurance Act is of no force and effect pursuant to s. 52 of the Constitution Act, 1982 because it violates her Charter right as described above, and the violation cannot be justified as reasonable in a free and democratic society. 12. Ms. Ellingsen seeks costs of her judicial review. [Underlining in original] [28] The proposed form of order is uniformly stated in both Notices: The applicant requests an order: 1. quashing the decision; 2. such further and other relief's counsel may advise and this Honourable Court considers just in the circumstances; 3. awarding the applicant the costs of this proceeding. [29] The Applicants brought a preliminary motion seeking to file affidavits and exhibits to augment the Record. The Decision is reported in Brady and Ellingsen v. Nova Scotia (Attorney General), 2023 NSSC 385. Some of the augmented material was allowed. Much was not. I allowed the Respondent to file an affidavit in response to the augmenting material which was allowed. [30] Boiling down the Applicants’ stated bases for challenging the decision made by the Department, they initially intended to argue that: 1. The decisions violate the Applicants’ section 15(1) rights to be free from discrimination; 2. The decisions are procedurally unfair; and 3. The decisions are unreasonable. [31] But there was an additional complication, and it surfaced a little more than one month before the Application was heard. It is referenced in the Applicants’ brief dated February 9, 2024 (pp.1 - 2) thus: In addition, the notices for judicial review challenge the constitutionality of s. 8 of the Hospital Insurance Regulations. The Applicants intended to argue that this provision should be held to be of no force and effect because it violates s. 15 of the Charter. However, upon review it appears that the government has repealed s. 8 of the Hospital Insurance Regulations pursuant to an order in council dated February 2023. The change alters s. 7 of the Regulations which also governed the challenged decisions. The changes are notable. The Applicants say the changes are an admission that the previous regulations were defective. [emphasis added] [32] The upshot of the above is that there are additional issues with which the Court must contend. For example, the Respondent now argues that because of the changes to the relevant Regulations, the Applicants’ Charter challenge has been rendered moot. Moreover, it is argued that even if I were to agree that the Applicants had been treated in a procedurally unfair manner, and/or that the decisions arrived at were unreasonable, the fact remains that the regulatory framework pursuant to which the decisions were rendered no longer exists, and the present framework is not retroactive. Put differently (the Respondent argues) how could the matter be remitted back to the Department for further consideration under a framework which is no longer extant? Issues [33] First, I will provide an overview of the legislation in question. Then I will address the various issues that have arisen. I propose to address them sequentially: A. Is the application moot, and if so, should it be heard at all? B. If the Court decides to hear the application, should a declaration issue that the Department, acting under the auspices of (then) s. 8 of the Regulations violated the Applicants’ rights under s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”)? C. Alternatively, were the decisions procedurally unfair? D. Alternatively, were the decisions unreasonable? E. If the answer to B, C and/or D is “yes”, what remedy(ies) are available to the Applicant(s)? The Legislation in Question [34] The Health Services and Insurance Act, RS NS 1989, c. 19 (hereinafter “the Act”) states that all residents of Nova Scotia have a presumptive entitlement. Specifically, they are “entitled to receive insured hospital services from hospitals upon uniform terms and conditions” (s. 3(1)). We further note that s. 10 of the Act requires the Minister to make payments to hospitals in respect of insured services provided to residents under the Act, and that she “may make payments with respect to the cost of insured hospital services that have been rendered to residents of the Province by hospitals that are...situated outside the Province.” [35] The full text of these Sections is provided below: Insured services 3 (1) Subject to this Act and the regulations, all residents of the Province are entitled to receive insured hospital services from hospitals upon uniform terms and conditions. (2) Subject to this Act and the regulations, all residents of the Province are insured upon uniform terms and conditions in respect of the payment of the cost of insured professional services to the extent of the tariffs. R.S., c. 197, s. 3; 1992, c. 20, s. 2. … Payments to hospitals 10 Subject to the regulations, the Minister shall make payments to hospitals in respect of the cost of insured hospital services rendered by them under this Act to residents of the Province and may make payments with respect to the cost of insured hospital services that have been rendered to residents of the Province by hospitals that are owned or operated by the Government of Canada or are situated outside the Province. R.S., c. 197, s. 10 [36] These Sections remain unchanged since 2022, when the Department’s decisions with respect to the Applicants were rendered. [37] Turning to ss. 1(e) of the MSI Regulations, NS Reg 41/69, it provides that “insured services” are defined as: “all services rendered by physicians which are medically required or which are deemed by the Commission to be medically required”. This is not unqualified. The Hospital Insurance Regulations, NS Reg 11/58, (“the Regulations”) at s . 2(1)(a), provides that, subject to the Act, “and these regulations … a resident is entitled to receive in-patient and out-patient services that are medically required by him, without charge as insured services …” (I note parenthetically that the legislation also imposes various conditions on coverage relating to new residents of the Province, which are not relevant here). [38] It is important, for contextual purposes, to first consider ss. 7 and 8 of the Regulations as they existed at the time of the decisions under review. Section 7 provided for reimbursement for medically necessary services received outside of Nova Scotia, and s. 8 governed such services received outside of Canada. Where the services were received in Canada, a Nova Scotia resident would be reimbursed provided that the Health Services and Insurance Commission was “satisfied that the person [was] entitled to receive the services and that they were medically necessary” (s. 7(1)(d)). [39] However, s. 8 (at the relevant time) provided: 8(a) Where a resident of the Province (i) is referred by a physician approved as a specialist by the Provincial Medical Board to a hospital outside Canada for non-emergency or elective treatment not available in Canada, and (ii) the specialist obtains written approval for the treatment of the resident from the Commission prior to the treatment being rendered, the Commission may make payment for those services which have been so approved, to such extent and subject to such terms and conditions as the Commission has deemed fit. … (c) Where the referring specialist does not obtain the prior written approval of the Commission or the Department under Section [subclause] 8(a)(ii) for non-emergency or elective treatment, the commission shall not be liable to make payment for the treatment rendered. [40] Section 7 contains no equivalent to the requirement for specialist referral which is found in s. 8(a). [41] As earlier mentioned, these Regulations were amended in 2023, well after the Department’s decisions had been rendered in relation to both Applicants. These amendments resulted in the repeal of s. 8, and some amendments being made to s. 7. The latter now authorizes payment or reimbursement for medically necessary services received outside Nova Scotia, whether inside or outside Canada (s. 7(1)). Section 7(2) stipulates the conditions for payment or reimbursement. The presumptive requirement for specialist referral has been retained. Section 7(2)(b) provides the prerequisite that “a physician who holds a relevant specialty approved by the Minister and who has treated the resident provides the Minister with a referral, in form and content acceptable to the Minister, for the resident to receive the services.” The Minister may waive this requirement if the services are rendered in Canada: s. 7(3). [42] The text of the amended s. 7 now reads: Insured services outside the Province 7(1) Subject to subsection (2), the Minister may pay for a resident, or reimburse a resident for the costs incurred by the resident, for all of the following: (a) to receive medically necessary in-patient services, out-patient services or insured professional services outside the Province; (b) to travel and obtain accommodation and food for the purposes of receiving medically necessary in-patient services, out-patient services or insured professional services outside the Province; (c) to be accompanied by 1 or more persons for the purposes of receiving medically necessary in-patient services, out-patient services or insured professional services outside the Province. (2) The Minister may make the payment or reimbursement described in subsection (1) only if all of the following conditions are met: (a) before the resident receives the in-patient services, out-patient services or insured professional services, the Minister approves all of the following in writing: (i) the in-patient services, out-patient services or insured professional services to be received by the resident, (ii) the facility where the resident will receive the in-patient services, out-patient services or insured professional services, (iii) the costs of all of the following: (A) the in-patient services, out-patient services or insured professional services, (B) travel, accommodation and food, (C) the person or persons to accompany the resident; (b) a physician who holds a relevant specialty approved by the Minister and who has treated the resident provides the Minister with a referral, in form and content acceptable to the Minister, for the resident to receive the services. (3) Despite subsection (2), the Minister may waive the requirement for the Minister’s prior approval, and the requirement for a specialist referral, or both, for payment or reimbursement under clause (1)(a) if the services are received by the resident in Canada. (4) The Minister may pay for a resident, or reimburse a resident for the costs incurred by the resident, to receive in-patient services, out-patient services or insured professional services outside the Province if the services are medically necessary because of an accident or sudden attack of illness, and the Minister has determined that the payment or reimbursement is reasonable. (5) Despite subsection (4), the Minister must not pay for a resident, or reimburse a resident for the costs incurred by the resident, to receive out-patient services in the circumstances described in subsection (4) outside Canada. (6) To determine whether to grant the approval required by subsection (2) or whether a payment or reimbursement is reasonable under subsection (4), the Minister may require the recipient or any other person to provide any information, record or supporting document. (7) The Minister may establish maximum amounts to be paid or reimbursed under this Section. (8) The Minister must not make a payment or reimbursement under this Section in relation to services received outside Canada if the claim is received by the Minister more than 6 months after the later of the following dates: (a) the date the resident received the services; or (b) if the resident has been admitted to a hospital, the date of discharge from the hospital. (9) Despite subsection (8), the Minister may make a payment or reimbursement under this Section in relation to services received outside Canada if the claim is received after the time period described in subsection (8) if all of the following apply: (a) the conditions of subsection (2) are met; (b) the Minister considers it reasonable to make a payment or reimbursement for the services. (10) The Minister must not make a payment or reimbursement under this Section for services received in Canada if the amount is greater than the amount specified for the service in the applicable inter-provincial agreement or agreements regarding rates or charges for insured health services. A. Is the application moot, and if so, should it be heard at all? (i) The application is not moot [43] We know that a moot question is one that is merely hypothetical or abstract. In Borowski v. Canada (AG), [1989] 1 SCR 342, the Court noted therein that the mootness principle applied: ...when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, a case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereafter. (p. 353) [44] The Respondent submits that the repeal of s. 8 of the Regulations means this case is moot, as does the fact that the Applicants had the out of country treatments without prior approval, contrary to the regulatory scheme which was extant at the relevant time (Respondent’s brief, paras 69 – 84). [45] The Applicants have agreed that there would be no practical effect to a declaration of invalidity and review of the repeal of s. 8, and the amendments to s. 7 of the Regulations. With that said, they argue that the unconstitutionality of the provisions in the resulting impugned decisions is at the heart of these proceedings. The alleged violation of the Applicants’ s. 15 Charter rights remains the case, they say, notwithstanding that the Department has changed these Regulations. They argue that so long as there is an allegation that an administrative decision has violated a Charter right, a live controversy exists. [46] The Applicants rely, in part, upon Robinson v. Canada (AG), 2020 FC 942. However, that case does not stand for the application of that rule as a general principle. In Robinson, the applicant sought judicial review of an administrative decision “denying his request for ongoing authorization to use a medical substitute operator [MSO] for his lobster fishing license.” Among other things, he argued that "the decision to impose a temporal limitation upon his use of a MSO was arbitrary and infringed his equality rights under s. 15(1) of the Charter, as a person with a disability” (para 32). As a result of the administrative decision which was rendered, he had received an injunction which applied only to a single year (para 15). [47] In response to a claim of mootness, the Court (in Robinson) said at para 32: … [Mr. Robinson’s] argument was not limited to a particular fishing season. I cannot conclude that Mr. Robinson received the relief he requested through the Robinson Injunction and that there is no longer a live controversy between the parties. [48] Accordingly, it is clearly the case that, in Robinson, the specific dispute was ongoing into the future. This is not the case here. [49] The Applicants further argue that s. 24 (1) of the Charter clothes this Court with broad remedial powers. It is reproduced below: 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [50] On the above basis, the Applicants submit that the powers available therein are “broad enough to permit a remedy through either approving the compensation for the medical treatments or remitting the decision to the Minister with the proviso that the Minister can consider compensation with ‘retroactive’ effect” (Applicants’ Reply, p. 3). [51] The Applicants also reference Hislop v. Canada (AG), [2007] 1 SCR 429 (Applicants’ Reply, p. 3). Therein, the majority held that a declaration of invalidity of legislation pursuant to s. 52(1) of the Constitution Act 1982 “may also operate retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law … If the law was invalid from the outset, then any government action taken pursuant to that law is also invalid, and consequently, those affected by have a right to redress which reaches back into the past” (paras 82 – 83). However, the Applicants do not appear to have sought a declaration under s. 52. [52] The Applicants applied for reimbursement before they travelled out of the country to receive treatment. These applications were denied, they say, in contravention of their Charter rights. They point out that they then proceeded to receive their “medically necessary and time-sensitive care, thereby mitigating the impacts on their health and lives” (Applicants’ Reply, p. 4). Accordingly (the argument continues) the judicial review of those decisions cannot be rendered moot by the Department’s (allegedly) unconstitutional and unreasonable decisions that forced them to pay out-of-pocket. They go on to submit that the matter should be remitted to the department on the basis that the applications must be considered as of the time the original decisions were made, with the guidance of the Court’s reasons (Applicants’ Reply, pp. 4-5). [53] In First Nation of Nacho Nyak Dun v. Yukon, [2017] 2 SCR 576, the Court said: 58 Where a government decision is quashed, the process prescribed by the treaty simply continues as though the government decision “had never been made” (G. Régimbald, Canadian Administrative Law (2nd ed. 2015), at p. 557). The effect of quashing Yukon’s approval of the plan is to return the parties to “the position that they were in prior to the making of the invalid decision”, that is, to the s. 11.6.3.2 stage of the land use plan approval process (D. J. M. Brown and J. M. Evans with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 12-105; Chandler v. Assn. of Architects (Alberta), [1989] 2 S.C.R. 848 (S.C.C.), at p. 862)… [54] Alternatively, the Applicants submit (but do not elaborate upon) that the Court could order compensation (Reply, p. 4). The Respondent counters by suggesting that the Applicants are seeking Charter damages, which have not been pleaded. During oral argument however, Applicants’ counsel stated that they were not seeking Charter damages, but merely referencing s. 24 as an additional source of remedial power. I will return to the internally conflicting nature of each party’s position on the relief potentially available to the Applicants in due course. [55] For now, it suffices to say that I have come to the conclusion that the case is not moot. The decision-maker cannot avoid reviews of administrative decisions by claiming that the same administrative scheme has rendered their ability to seek a remedy from the Court moot. The Applicants allege their claims were mishandled. If that is established, and the decisions are quashed, conceivably the parties would revert to the status quo ante. The fact that the earlier Regulations no longer exist, and that the current Regulations do not authorize retroactive payments is irrelevant, in my view, to the Court’s power to provide a remedy on judicial review. I will return to this point later. (ii) Discretion to hear a moot case exists in any event [56] If I have erred in coming to the above conclusion, I am nonetheless possessed of the discretion to hear a moot case. As our Court of Appeal explained in Springhill Institution v. Richards, 2015 NSCA 40: [53] Justice Sopinka, writing for the Court in Borowski, stressed that certain established principles guide how a court should exercise its discretion. These include whether: there is still an adversarial context; resolution will have some practical consequences on the rights of the parties; the cases that spark the controversy are of a recurring, but brief duration; it is in the public interest to expend judicial resources to mitigate the social cost of continued uncertainty in the law; adjudicating may be viewed as intruding into the role of the legislative branch (pp. 358-362). [57] In the later case of Bancroft v. Nova Scotia (Lands and Forestry), 2022 NSCA 78, the Court also elaborated: [19] Assuming that a decision is moot as between the parties—that is to say there is no live issue between them—the Court may still entertain the appeal after considering three factors which guide the exercise of its discretion where no live issue endures: (a) Whether there are collateral consequences of the outcome that may provide a necessary adversarial context; (b) Whether entertaining the moot issues respects the need for judicial economy; (c) Whether entertaining the moot issues respects and is sensitive to the Court’s role as adjudicative, not legislative. [20] Regarding the first criterion—adversarial context—Borowski recognized that an adversarial relationship may survive cessation of a live controversy. There may be collateral consequences of the outcome such as having an impact on other litigation or the potential liabilities of a party or parties. But the examples given for the latter point involved existing or foreseeable legal disputes (¶32-33). They did not extend to hypothetical cases like those raised here, which may never occur. [21] Regarding the second criterion, judicial economy, Borowski noted that the reluctance to expend scarce judicial resources may be overcome if a decision would have some practical effect on the rights of the parties, although no longer determinative of the controversy that brought them to court. Sometimes the live issue has resolved by the time it gets to court, and so becomes moot. But if the issue is likely to recur, the court can exercise its jurisdiction and make a ruling (Borowski, at ¶34-36). [22] A case may also be of such public importance that expenditure of judicial resources is justified in the public interest. The Court may consider the “social cost” of leaving something undecided. In Borowski, the Supreme Court gave as an example the constitutionality of patriation of the Constitution, notwithstanding occurrence of that event (Borowski, at ¶38, citing Re: Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793). [23] Finally, the third criterion is the constitutional need for judicial restraint in the absence of an existing controversy. Courts do not legislate. They adjudicate. A decision in the absence of a present dispute more resembles the former than the latter. But some flexibility is required. In Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, the Court had to consider the constitutional rights of Francophone parents’ access to French language schools. Although the immediate issue was resolved between the parties, the Supreme Court nevertheless considered the appeal observing: [17] The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353). In our view, the instant appeal is moot. The parties attended several reporting hearings, presented evidence and allowed the deponents of affidavits to be cross-examined. The desired effect has been achieved: the schools at issue have been built. Restoring the validity of the trial judge’s order would have no practical effect for the litigants in this case and no further reporting sessions are necessary. [18] Although this appeal is moot, the considerations in Borowski, supra, suggest that it should be heard. Writing for the Court, Sopinka J. outlined the following criteria for courts to consider in exercising discretion to hear a moot case (at pp. 358-63): (1) the presence of an adversarial context; (2) the concern for judicial economy; and (3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. [19] In this case, the appropriate adversarial context persists. The litigants have continued to argue their respective sides vigorously. [20] As to the concern for conserving scarce judicial resources, this Court has many times noted that such an expenditure is warranted in cases that raise important issues but are evasive of review (Borowski, supra, at p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46). The present appeal raises an important question about the jurisdiction of superior courts to order what may be an effective remedy in some classes of cases. To the extent that the reporting order is effective, it will tend to evade review since parties may rapidly comply with orders before an appeal is heard. […] [22] Finally, the Court is neither departing from its traditional role as an adjudicator nor intruding upon the legislative or executive sphere by deciding to hear this case (Borowski, supra, at p. 362). The question of what remedies are available under the Charter falls squarely within the expertise of the Court and is not susceptible to legislative or executive pronouncement. Furthermore, unlike in Borowski, supra, at p. 365, the appellants are not seeking an answer to an abstract question on the interpretation of the Charter; they are not “turn[ing] this appeal into a private reference”. The Attorney General of Nova Scotia appealed successfully against an order made against it by a superior court. Although the immediate grievances of the appellants have now been addressed, deciding in this case will assist the parties to this action, and others in similar circumstances, in their ongoing relationships. [emphasis added] [58] In Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, that Court dealt with a moot appeal. In that decision, reference is made to the fact that the expenditure of judicial resources “is warranted in cases that raise important issues but are evasive of review” (para 20) and, in that case, the “question of what remedies are available under the Charter falls squarely within the expertise of the Court and is not susceptible to legislative or executive pronouncement” (para 22). [59] Even if I had decided that the case was moot (as the Respondent argues) I would have nonetheless concluded that the Court should exercise its discretion to hear it. I agree with the Applicants that the matter is “of public importance and deals with the issue of the constitutionality of how the Province makes decisions about medical treatment” (Applicants’ Reply, p. 7). [60] Moreover, the decision would have a practical effect in these circumstances. Both Applicants may require further surgical intervention. A finding of a breach of the Applicants’ Charter rights may an impact upon the necessity for future applications. [61] It is clear that an ongoing adversarial relationship still exists. I have been presented with no evidence that either Applicant’s condition has resolved, nor is there any evidence that the situation with respect to available treatment in Nova Scotia has changed. The fact that the Regulations have been amended does not dispose of this dispute given that there is still a presumptive requirement for specialist referral. [62] Moreover, the procedure governing access to out-of-province and out-of-country medical services is a matter of great public importance to the extent that, combined with the potential for an ongoing adversarial relationship, expenditure of judicial resources would be justified. It is fair to say that this is an issue that will be evasive of review, and it is before the Court now, with resources having been expended already to bring it to the application stage. [63] Consequently, I do not find the Respondent’s appeals to judicial economy persuasive. The matter was heard in one day and did not involve extensive evidence or argument. The Court, when it scrutinizes impugned administrative procedures and decisions, is acting within its purview. Even if the immediate live controversy between the parties could be said to have been concluded, the reasonable prospect of similar issues recurring involving the same parties, not to mention other Nova Scotia residents seeking extra-provincial medical services, further reinforces the need to decide this matter, even if it were to be considered moot. [64] In sum, the public importance of the issue, and the non-hypothetical possibility of ongoing dealings between the Applicants and the Respondent’s department, and the modest (to date) impact on judicial resources, I would have concluded that the case should be heard, even if I had concluded that it was moot. B. If the Court decides to hear the application, should a declaration issue that the Department, acting under the auspices of (then) s. 8 of the Health Regulations violated the Applicants’ rights under s. 15 of the Charter? (i) Section 15 of the Charter [65] With respect to the process followed by the Department under the former regulations, the Applicants argue that it violated their equality rights under s. 15 of the Charter. This is set forward below for ease of reference: Equality before and under law and equal protection and benefit of law 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. Affirmative action programs (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. [66] Consequently, a two-step process is triggered. In R. v. Sharma, 2022 SCC 39, the Court succinctly stated: [28] The two‑step test for assessing a s. 15(1) claim is not at issue in this case. It requires the claimant to demonstrate that the impugned law or state action: (a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage … [67] The Applicants contend that they were, in a very real and direct manner, denied access to the out-of-country claims process by the requirement for an in-province specialist referral, which was impossible for them to obtain, since there were (and are) no specialists in the Province who treat their diseases. They argue that they sustained discrimination on the basis of their physical disability. Moreover, they say that this discrimination was exacerbated by the fact that their medical conditions are rare and not well understood (Applicants’ Brief, pp. 22 – 24). Indeed (somewhat incredibly) it appears that the Department completely misapprehended or misunderstood the treatment for which Ms. Brady sought funding (Brady Record, p. 349). More on this will also be said below. [68] In Cameron v. Nova Scotia (AG), 1999 NSCA 14, it was determined that section 15 was engaged where the appellants (originally, the plaintiffs) had sought coverage for out-of-province in vitro fertilization (IVF) services of a kind not available in Nova Scotia. Their claim had been denied under the Regulations. [69] The majority in Cameron agreed with the trial judge that the services in question “were not shown to be medically required, as a matter of interpretation of the Act, the Regulations and the administration of the policy” (para 90). They concluded, however, that “[c]onsidering the purpose of the equality guarantee, the contextual factors and the generous approach towards claimants which has been mandated by the Supreme Court of Canada, … the distinction drawn here with respect to the exclusion by the policy of IVF and ICSI – albeit unintentional – is discrimination” (para 208, emphasis added). However, the Court concluded that the violation was saved by s. 1 of the Charter which reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [70] The Applicants rely on the observation in Cameron that the Regulations have created a distinction with respect to their specific (and rare) diseases, and that this has led to them being treated substantially differently than others. [71] The Respondent, for its part, denies that (then) s. 8 imposed differential treatment. Counsel has argued that the application of the Regulations governing approval for out-of-country treatment was “the same … for all Nova Scotians” (Respondent’s Brief, para 142). Additionally (the argument continues) since liposuction was not an insured service in any event, no distinction was made between the two Applicants (Respondent’s Brief, para 147). [72] I will pause at this point to observe that this contention is irrelevant to Ms. Brady, as she was not seeking liposuction. Moreover, in my view, the question is not whether the Minister had designated the service as an “insured service,” but, rather, whether the Applicants were permitted to even get into a position to advance their claims in the first place. [73] Recall that an insured service is one that is “medically required or deemed by the commission to be medically required” (MSI Regulations, s. 1(e)), and a resident is entitled to receive services “that are medically required by him, without charge as insured services…” (Regulations, s. 2(1)(a). What was vital to the calculus, then, was not simply whether the service was (then) listed as “insured”, but rather whether it was “medically required”. This is not a point of controversy – by extrapolation, the Department’s own process confirms this: despite liposuction not being listed as an insured service, the Department embarked on its own investigation of its use as a treatment. [74] The real issue in this case requires examination of the Applicants’ access to the process itself. The specialist requirement created a barrier. The Respondent maintains that there was a plastic surgeon who could see them, “although they would be triaged like all other patients”, and argues that the Applicants simply decided to “jump the queue” because they did not want to wait (Respondent’s Brief, para 142). This allegation that the “plastic surgeon” was both available and suitable has been touched upon earlier, and will be discussed in more detail shortly. For present purposes, it will suffice to say that, in my view, the plastic surgeon cannot be referred to as a viable “specialist” for the purpose of the Applicants’ s. 8 applications. [75] The Respondent further cites Auton v. British Columbia (AG), [2004] 3 SCR 657 for the proposition that provincial health services legislation “does not promise that any Canadian will receive funding for all medically required treatment” (Respondent’s Brief, para 142). Surely, however, it is recognized that this is not what the Applicants are arguing. As has just been noted, they have not taken the position that liposuction should be declared a medically required or insured service. Rather, their claim is that the Department’s application of the Regulations, and its own policy, prevented them from even advancing their claims for out-of-country treatment, in the first place. [76] Moving on then, to the second step of the s. 15 analysis – whether the distinction imposed a burden or denied the benefit so as to reinforce, perpetuate, or exacerbate disadvantage – the Respondent says that this did not occur because, first, there was a plastic surgeon who could see the Applicants and, second, because the lack of specialist referrals was not the basis for the denials, but rather the non-insured status of liposuction. [77] This argument is completely unsustainable. The Respondent appears to find fault with the Applicants for being impatient, rather than waiting for an indeterminate period of time (in the queue) to see a specialist who, in his own words, was not able to treat them, and had no time to “simply see patients for the purpose of MSI letters”. As we have seen, Dr. Williams, the plastic surgeon in question (and to whom both Applicants were referred) actually wrote to Ms. Brady’s oncologist, the gist of which was to have him stop having the Applicants “badgering” his office, that he is “under-resourced,” and, in any event, he does not treat their conditions, and that he has previously told Valerie Ross, the MSI Medical Consultant, all of this (Brady Affidavit, Ex. K). This is not a criticism of Dr. Williams. His position is perfectly understandable in light of the considerable demands on his time by the cancer patients that he has prioritized. The point is merely that his position was communicated to Valerie Ross, long before the Departmental review was initiated (Ellingsen Record, p. 275). [78] In my view, s. 8 of the Regulations, as they were constituted when the Department made its decisions with respect to the Applicants, required an applicant for out-of-country coverage to provide a referral “by a physician approved as a specialist by the Provincial Medical Board.” The policy as framed by MSI added the additional proviso that the specialist be “actively involved in the patient’s care” (Barbarie Palmer Affidavit, para 6 (a)). A Nova Scotian’s ability to access the process is predicated upon this referral. [79] Although this will be discussed in more fulsome detail below, the only evidence in the Record indicates that, as far as the Applicants knew, there was no specialist in the Province who treats either one of their conditions. I cannot formulate the Applicants’ common dilemma better than Ms. Brady did (Brady Record, p. 3): MSI/Medavie Policy: As per the elective out of province services, the referral must be from a specialist registered in NS, who is actively involved in the eligible residents care. Response: There is no specialist in Nova Scotia whose area of expertise is the conservative management or surgical treatment of lymphedema. The only specialist who has been, and who will be for the foreseeable future, involved in my care is Dr. Bentley (NS gyne-oncologist) and Dr. Vorstenbosch (QC plastic surgeon with expertise in lymphedema). I have sent in letters from both, and neither have been acceptable to MSI/Medavie. [emphasis added] [80] Moreover, the Respondent has not pointed to any evidence which suggests otherwise. Both counsel for the Respondent, and Ms. Palmer (the witness who testified for the Department) suggest that there was no need for the specialist to be one who treats the relevant condition, hence their suggestion that the plastic surgeon, Dr. Williams (whose name was provided to the Applicants) could provide the referral (despite his indication that he was understaffed and that he did not treat patients with conditions such as those of the Applicants). Interestingly, as we have already seen, Dr. Williams mentioned that he had already explained all of this to Valerie Ross, MSI’s Medical Consultant. [81] An even more practical and obvious problem exists. How can a specialist be “actively involved” in the care of a patient whose condition they do not treat, as required by MSI policy, and moreover, who has already, upfront, told Ms. Brady’s oncologist that he would not treat them (presumably, even if they wait in the “queue” for what promised to be a lengthy period of time). [82] Through all of this, the Applicants were attempting to function through a miasma of debilitating and chronic pain. The situation in which they found themselves could very well be described as kafkaesque. [83] Clearly, these requirements created a distinction with respect to, and imposed an onerous burden upon, the Applicants. This distinguished them from other Nova Scotians who could find specialists in the Province to treat their conditions, which is to say, this was a distinction which was based upon the particular physical disability or disease with which they were afflicted. The result was to deny the Applicants access to the very approval process itself for funding out-of-country medical expenses. This greatly exacerbated their disadvantage. (ii) Section 1 of the Charter [84] Recall that s. 1 provides that the rights and freedoms set out are guaranteed “subject only to such reasonable limits prescribed by laws can be demonstrably justified in a free and democratic society”. The analysis required in order to justify a limitation on a particular right is discussed in cases such as R. v. Oakes, [1986] 1 SCR 103 and Carter v. Canada (AG), [ 2015] 1 SCR. [85] In Carter, the Court observed that: [94] In order to justify the infringement of the appellants’ s. 7 rights under s. 1 of the Charter, Canada must show that the law has a pressing and substantial object and that the means chosen are proportional to that object. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. [86] The Respondent argues that the objective of allowing access to insured services that are unavailable in Nova Scotia is rationally connected to the parameters created by the legislation, and that the scheme imposed was proportionate to and minimally impairing because it applied equally to all residents of Nova Scotia. Counsel goes on to point to Eldridge v. British Columbia (AG), [1997] 3 SC SCR, where the Court observed that “where the legislation under consideration involves a balancing of competing interests and matters of social policy, the Oakes test should be applied flexibly, and not formally or mechanistically” (para 85). [87] However, counsel does not quote the next sentence in Eldridge: “It is also clear that while financial considerations alone may not justify Charter infringements … governments must be afforded wide latitude to determine the proper distribution of resources in society …” (emphasis added). [88] The Applicants argue that the violation of their s. 15 rights was not rationally connected to the aim of the law. Unlike in Cameron, the denial was not of a specific service, but rather, as earlier mentioned, of access to the claim procedure itself. The 2023 amendments to the Regulations (the argument continues) confirm that there was a more minimally – impairing way to structure the process, given the fact that the requirement for a referral by a Nova Scotia specialist has now been removed. Finally, they submit that there is no rational connection between the requirement for specialist to be based in Nova Scotia and the goal of the policy, that being to provide for out-of-country medical services within the context of pressures on the Department’s resources. [89] Clearly, the burden is on the Attorney General to demonstrate that s. 1 is applicable. It is clear that the regulations and policy, under the auspices of which the Applicants’ claims were dealt, was not merely minimally impairing of their right to medically necessary treatment. This is evidenced by the very fact that the Regulations (although apparently not the policy) were modified to make the regulatory requirements somewhat less onerous. [90] The Attorney General has not demonstrated that the regime under which the Applicants’ claims were dealt constituted “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. A declaration shall therefore issue that the impugned decisions of the Department, rendered as they were pursuant to the provisions of the (now repealed) s. 8 of the Regulations, have violated the Applicants’ rights to equal protection and equal benefit of the law under s. 15(1) of the Charter. (iii) Charter values [91] I have just dealt with the s. 15(1) Charter declaration above. It is therefore convenient to deal directly with “Charter values” here, even though this discussion pertains more closely to whether the decisions with respect to the Applicants were reasonable. [92] Dealing then with the Charter, and in particular, Charter values, the Respondent accepts that an administrative decision-maker must consider Charter values, as described in Doré v. Barreau du Québec, [2012] 1 SCR 395. In Doré, the Court considered the issue of “whether the presence of a Charter issue” called for the replacement of the usual administrative law framework of reasonableness review with the earlier referenced Oakes test (Doré, para 3). [93] While a direct application of the Oakes test was not workable, the Court did say: [7] … the nature of the reasonableness analysis is always contingent on its context. In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionally impairing of the guarantee, it is unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one. [emphasis added] [94] Subsequently, in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, the Court observed that: [64] … [I]t has consistently been held that the Doré framework applies not only where an administrative decision directly infringes Charter rights, but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights … [65] This is the case because administrative decision makers have an obligation to consider the values relevant to the exercise of their discretion, in addition to respecting Charter rights. There can be no doubt about this, because “[t]he Constitution — both written and unwritten — dictates the limits of all state action” (Vavilov, at para. 56). As L’Heureux‑Dubé J. clearly stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, a discretionary decision, to be reasonable, must be made in accordance with the “fundamental values of Canadian society” as reflected in the Charter (para. 56). Relying on this statement, Abella J. held in Doré that discretionary decisions must “always” take Charter values into consideration (para. 35 (emphasis in original)). [66] An administrative decision maker must consider the relevant values embodied in the Charter, which act as constraints on the exercise of the powers delegated to the decision maker. I refer in this regard to the considerations identified by this Court in Vavilov: “. . . a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision . . .” (para. 105). In practice, it will often be evident that a value must be considered, whether because of the nature of the governing statutory scheme (at para. 108), because the parties raised the value before the administrative decision maker (at paras. 127‑28), or because of the link between the value and the matter under consideration (P. Daly, “The Doré Duty: Fundamental Rights in Public Administration” (2023), 101 Can. Bar Rev. 297, at p. 309). For example, it is obvious that the development of policies and the making of decisions that are likely to have an impact on a minority language educational environment require consideration of the values underlying s. 23 of the Charter (p. 309). A decision cannot be unreasonable because the decision maker failed to consider a Charter value that was not relevant for the purposes of its decision. However, if the decision maker takes a relevant value into account in its decision while opting to prioritize another objective, it must be concluded that the decision engages the Charter. [emphasis added] [95] The Court went on to say that, once a Charter violation is found, Doré requires an assessment of “whether the exercise of discretion reflects a ‘proportionate balancing’ of Charter rights and the values underlying them, on the one hand, with the statutory objectives in respect of which the discretion was granted, on the other” (para 67). To be found reasonable, “a decision must reflect the fact that the decision maker considered the Charter values that were relevant to the exercise of its discretion” and “that the decision maker ‘meaningfully’… addressed the Charter protections to ‘reflect’ the impact that its decision may have on the concerned group or individual” (para 68, citing Vavilov at paras 128 and 133). [96] The Applicants’ submission was somewhat vague on the specific significance of Charter values in the circumstances; nevertheless, in my view, it would be difficult to argue that the Department’s decisions reflected any consciousness of Charter values whatsoever, much less any attempt to vitiate the impact of the breaches upon the Applicants. C. Were the decisions procedurally unfair? [97] This issue is to be determined with respect to the principles set forth in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. It does not rise or fall on the basis of curial deference. In fact, no deference at all is due to the Department’s process, as I consider it. [98] Instead, the Court must concern itself with whether the process afforded to the Applicants was a fair one. The approach has been described as “flexible and variable,” one which depends on “an appreciation of the context of the particular statute and the rights affected”. The underlying concept coincides with the purpose of participatory rights “contained within the duty of procedural fairness [which is] … to ensure that administrative decisions are made using a fair and open procedure appropriate to the decision being made and it statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker” (Baker, para 22). [99] Writing for the majority in Baker, L'Heureux- Dube, J. set out a non- exhaustive list of factors to be considered: 23 … One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making”. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, at p. 896, per Sopinka J. 24 A second factor is the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”: Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-67. 25 A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113: A high standard of justice is required when the right to continue in one’s profession or employment is at stake. . . . A disciplinary suspension can have grave and permanent consequences upon a professional career. As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667: In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body. The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness. 26 Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), 1989 CanLII 9488 (FCA), [1989] 3 F.C. 16 (C.A.). Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, “Legitimate Expectation and its Application to Canadian Immigration Law” (1992), 8 J.L. & Social Pol’y 282, at p. 297; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 1994 CanLII 18483 (FC), 76 F.T.R. 1. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. 27 Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances … [100] So, we begin the analysis with the procedure that was followed when the impugned decisions were made. This included a requirement that “the request must be received from a specialist registered in Nova Scotia that is actively involved in the patient’s care” (Affidavit of Barbarie Palmer, filed January 19, 2024, para 6(a)). The MSI medical consultant then is to advise the Department whether the specialist referral met the necessary criteria (para 6(d)). If the process or service was uninsured, MSI should reject the request on behalf of the Department (para 6(e)). Any appeal by the Applicants of the MSI decision would then be forwarded to the Department, which would complete “a secondary review on behalf of the Minister” (para 6 (f)). [101] The Respondent contends that the applicable duty of fairness was “relatively low”, since this was a “purely administrative” and “highly discretionary” decision, with “no likeness to a judicial process” (Brief, para 116). It is genuinely difficult to credit this argument. Rather, the gravity of the decisions being made by the Minister, which carry with them very serious implications for the health and quality of life of the Applicants, including adverse health outcomes and possibly death, demanded procedural fairness at a level much higher than this. Consider that there was no provision for an appeal beyond the Departmental review of MSI’s decision, and also that Ms. Brady, on the basis of her evidence, had legitimate expectations that her claim would be considered after her consultation in Montréal (for example, see Brady Record, p. 329). [102] Indeed, further consider her email to Jillian Hart, of MSI, on February 18, 2022, part of which reads: • Given the complete lack of options for any kind of treatment in Nova Scotia, in summer 2021 I sought surgical treatment in Montreal. • Based on information that I previously received from your office, information that I have since learned was incorrect, I provided your office with referrals for surgical treatment from my primary care practitioner (NP Hartman), my oncology surgeon (Dr. Bentley), and plastic surgeon in Montreal who has specialized training in the surgical management/treatment of lymphedema (Dr. Vorstenbosch) in application to have my travel to Montreal for a consult and tests with Dr. Vorstenbosch covered by MSI. • The misinformation I received including the timing by which MSI had to approve my application (Courtney told me the approval could come after I travelled) and from whom the referral for surgical treatment was to come (I was told it was to come from my NP, then my oncologist, then the specialist in Montreal, then a vascular surgeon, and now a specialist of my NP’s choosing) • This information has delayed not only the reimbursement for my travel to Montreal, which means I am out of pocked by over 1000$, but has also delayed actually receiving appropriate treatment for my lymphedema by nearly a year at this point, during which time my lymphedema has worsened, and I was hospitalized with a potentially fatal blood infection [emphasis added] (Brady Record, p. 6) [103] At the very least, the Applicants were entitled to a transparent process that they were able to access. This would not necessarily require judicial or “Court-like” procedures, such as a formal hearing, but the Applicants should at least be able to expect that the decision-maker will provide them with accurate information about the process, will not unnecessarily raise barriers to access, and will ensure that the decisions made are based upon accurate information. [104] The Applicants submit that the Minister, through the Department, provided no “discernible procedural safeguards for applicants attempting to access out of the country medical services” (Brief, p. 34). They go on to argue that the process by which their claims were dealt was unintelligible: it “is evident from the Record that the administrative decision-makers interfacing with the Applicants did not understand their own process.” This is because the Applicants received differing advice from various actors in and associated with the Board at various times (Brief, p. 33). [105] The Applicants have contended that they were unaware that there was a process underway to determine whether or not the services were insured. As a result, they had no chance to place submissions before the decision-maker related to the ultimate decision which was made. They were simply directed to provide referrals, which were, in turn, rejected by MSI, or to provide referrals from a specialist who, on the available information, did not treat MSI’s conditions, and would not treat them. They also received no notice that their claims were being considered on their merits “as all communications prior to June 23, 2022, indicated that the denials were being issued due to a lack of a specialist referral”, a requirement for which they had requested exemptions (Brief, p. 32). [106] Indeed, we have already seen that, in Ms. Brady’s case, the process followed by the Department was so flawed that it resulted in the decision-maker erroneously thinking that she was seeking funding for liposuction, which she had not requested. Rather, the treatment for which she had sought funding was lymphovenous anastomosis, and lymph node transplant. [107] Had proper attention been paid to the file, there is no way that such a fundamental error would have been made. Ms. Brady’s Oncologist, Dr. Bentley, wrote to MSI (whose decision the Department subsequently reviewed) on August 6, 2021 as follows: … Jennifer is a 43-year old lady who has had a radical hysterectomy for cervical cancer in May 2019. She has had pain and discomfort with lymphedema in her lower legs since that time and has exhausted conventional methods including massage and stockings support. This causes significant interference with her day to day life. She has requested a referral to a specialist in Montreal. This therapy which would include potential surgery to help with the lymphedema is not currently performed in the province. It is done by several surgeons in Montreal and Toronto and is an evolving field. I would support her being funded to have this consultation and she may benefit from surgical procedures that could be offered. (Brady Record, p. 353) [108] Dr. Bentley also had occasion to write Dr. Valerie Ross, MSI Medical Consultant, on another occasion, this time on May 26, 2022: … Miss Brady is a 44-year-old lady who had a cervical cancer that was Stage 1B and was operated on in 2019. She had quite a radical hysterectomy for this, which included radical removal of the cervix, uterus and bilateral pelvic lymphadenectomy. The surgery itself was successful and, oncologically, she has not had any problems since then. Her problem has been that she has ongoing lymphedema that has required numerous therapies to treat. She was having to wear stockings on a regular basis, lymphatic massage and devices such [as] Lympha Press that provides pressure on the legs on a regular basis. She has sought several opinions out-of-province for some therapy to help with this. This includes lymphovenous anastomosis and lymph node transplant. I realize that some of these therapies are considered experimental, however, her quality of life is severely impacted by this. This is all exacerbated by an episode of cellulitis on the left thigh and leg that required intravenous antibiotics and, subsequent to that, she has required to use significant compression and has much more marked lymphedema present. I realize you have asked that she see a plastic surgeon here in Halifax or vascular surgeon to validate her need for an opinion. Unfortunately, this has been very difficult to get as, nobody here has an interest in this, and after seeing the patient yesterday and noting her significant swelling despite double pressure stockings, I would strongly support and advocate that MSI provide some help for her previous appointments and upcoming potential surgery. I would be more than happy to discuss her case in person. Please reach out to me if you wish to do so. I trust this is satisfactory. [emphasis added] (Brady Record, p. 349) [109] Barbarie Palmer who testified for the Department, and provided an Affidavit, described her position with the Department thus: I am a Project Executive employed with the Department of Health and Wellness (the “Department” or “DHW”). I am responsible for leading physician remuneration initiatives focused on increasing efficiency, effectiveness and accountability within the health system. I have been in the position for 2 years. (Palmer Affidavit, para 1) [110] Neither in the Respondent’s submissions, nor in the evidence offered by Ms. Palmer on behalf of the Department, was serious issue taken with most of the specifics of either Applicant’s account of how their claims were handled. The Department’s view seemed to consist of the belief that the onus was entirely upon the Applicants, and that those handling their claims did not even have the minimal obligation of confirming that decisions were made based on accurate information. This was epitomized when Ms. Palmer testified that she was operating under the mistaken assumption that Ms. Brady was requesting liposuction (she was not, as the letters above had made abundantly clear) and that at least one of the Applicants had seen the plastic surgeon, Dr. Williams. [111] Moreover, Ms. Palmer seemed to regard it as entirely reasonable to assume that, because the two Applicants appeared to be coordinating their efforts in their approach to obtain coverage, that the assumption should be made that they were seeking the same treatment. [112] Even in argument, counsel for the Respondent insisted that this was a perfectly reasonable and fair process. To the contrary, the only available conclusion, based on the Record and viva voce evidence, is that whatever level of procedural fairness was required – even if it was relatively low, as the Respondent has submitted (which argument I reject entirely) was not met. D. Were the decisions unreasonable? [113] Even if I had decided that the process followed by the Department was a fair one, I would have concluded that the decisions with respect to both Applicants were unreasonable. I will explain. [114] A reasonableness review is conducted under the auspices of the framework set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 SCR 653. Therein, the majority stated: [83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker - including both the rationale for the decision and the outcome to which it led - was unreasonable. [84] As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286. [85] Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable. As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision. [115] In each case, the written reasons afforded to each of the Applicants were minimal. In substance, they were told that their requests for exceptions for uninsured services were denied. (i) Ms. Brady's decision [116] In the decision on Ms. Brady’s claim rendered June 23, 2022, the Department indicated that they had reviewed “available comparators against existing standard treatment options (e.g. compression, drainage)”, and had reviewed “what other Canadian jurisdictions are covering for this condition”. The Department determined that her “request for exceptional coverage is not supported by the available body of evidence” (Brady Record, p. 9, Ellingsen Record, p. 7). The letter makes reference to a (then) incomplete review by the Canadian Agency for Drugs and Technologies in Health (“CADTH”), and anticipates a staff recommendation to the Minister would be ready in the fall of 2022. Interestingly, while the decision itself does not mention liposuction, the CADTH review referenced (which, when released, was dated November 2022) is entitled “Liposuction for Lymphedema” (Brady Record, p. 101, emphasis added). [117] As earlier discussed, Ms. Palmer stated in her Affidavit that Ms. Brady was requesting liposuction, and she repeated it on cross-examination. One possible pretext for this belief appears to be that the word “liposuction” appeared in one piece of correspondence. In a July 19, 2021 email to MSI following up on her application, Ms. Brady wrote, in part: What is more, the possible medical repercussions of lymphedema are significant and include repeated bouts of cellulitis which can lead to sepsis as well as hardening and thickening tissue around the edamatous site which often eventually requires surgical intervention (i.e. liposuction) to treat... This is all to say that surgery to treat my lymphedema now is likely to prevent the surgical treatment and loss of quality of life that is part of the progression of this disease. (Brady Record, p. 403) [118] It is quite obvious from the above that this was not a request for liposuction treatment. To the contrary, Ms. Brady is clearly referring to liposuction as something to be avoided. Reference has earlier been made to a letter sent to MSI on Ms. Brady’s behalf by her nurse practitioner (Brady Record, p. 369) which referred specifically to “lymph node transplant and microsurgery … as means to improve …” her lymphedema. Moreover, the letter advised that the service was unavailable in Nova Scotia, but could be provided by Dr. Vorstenbosch, in Montréal, who Ms. Brady eventually consulted as noted earlier (and who subsequently declared himself unable to perform the surgery because the COVID crisis was then rampant). Reference has also been specifically made to Oncologist Dr. Bentley’s letter to Dr. Ross of May 26, 2022 (Brady Record, p. 349). In a similar vein, Tara Hartman, Ms. Brady’s second NP, had earlier echoed the need for such treatment (Brady Record, p. 375). [119] There are plenty of other instances which could be cited. What it all amounts to is that the Department had no reasonable basis to believe that Ms. Brady was seeking liposuction. Ms. Palmer testified that she felt that Ms. Brady’s initial request was unclear on the exact treatment being sought, yet also admitted that there was no attempt made to clarify this with Ms. Brady or with any of her supporting medical professionals, since she had not provided the required specialist referral for a specific course of treatment. Rather than attempting to obtain accurate information, the assumption was made that she was seeking liposuction. [120] Ms. Palmer appeared to view this as a reasonable assumption because Ms. Ellington was seeking liposuction, and the two Applicants appeared to be coordinating their efforts. She also agreed that it was “potentially true” that Ms. Brady was “lumped in” with Ms. Ellingsen and another person who was seeking liposuction. [121] Respondent’s counsel argued that the Department should be excused for this error because staff acted in a “good faith” belief that Ms. Brady was requesting liposuction. According to counsel, given the lack of a specialist referral, and the fact that Ms. Brady and Ms. Ellingsen were “lobbying the government together ... you can understand” why the Department would assume they were requesting the same treatment. [122] Merely to describe the above submission is to reject it. It should not be necessary to point out that the Applicants were entitled to be treated as individuals, and were also entitled to decisions made on a foundation of accurate information. In Ms. Brady’s case, the foundation of the Department’s decision was that she was requesting liposuction, which was patently not the case. This would have been apparent to anybody who had taken the time to properly review her record. [123] Vavilov states that a decision, in order to be considered “reasonable” must possess “an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker.” In Ms. Brady’s case, the process by which the Department proceeded was, put at its mildest “opaque”. At its worst, it was incomprehensible. The process was so flawed that no reasonable decision was possible. (ii) Ms. Ellingsen’s decision [124] Ms. Ellingsen’s referrals from her GP were rejected on the basis they were not from a specialist. She was advised to consult plastic surgeon, Dr. Jason Williams. As we have seen, on the basis of correspondence attached to both Ms. Brady and Ms. Ellingsen’s Affidavits, Dr. Williams does not treat lymphedema or lipedema patients. She therefore requested an exception on the basis that the requirement for a local specialist referral “actively involved in her care” was denying her access to the process. An exception request would require an assessment of the proposed service, normally by way of a CADTH review, and whether the case amounted to “exceptional medical circumstances” on the ground of medical necessity (Applicants’ Brief, pp 37-38). It has already been noted that the CADTH review was not completed until several months after the Department had rendered its decision with respect to Ms. Ellingsen (Brady Record, p. 101). [125] Dealing with the lack of a specialist referral, counsel for the Respondent submitted that Dr. Williams, an “under resourced” plastic surgeon with a lengthy wait list, could have fulfilled this role. And, as the argument continued, that the Applicants did not require a “sub-specialist in their particular disease,” but only a “specialist” in a more general sense. I have already commented (in conjunction with Ms. Brady’s decision) that this submission is baseless. The actual language of MSI’s policy, as we have seen, says that what is required is “a specialist registered in Nova Scotia that is actively involved in the patient’s care” (Palmer Affidavit, para 6(a)). [126] Counsel further submitted in argument that “we do not know” what would have happened if the Applicants’ had simply waited to see Dr. Williams, whenever that might have been. Instead, they made the personal choice to go outside the system and get the work done out of the country without permission. [127] With respect, it is pretty clear, from his earlier reference correspondence with Dr. Bentley, what would have happened had they waited to see Dr. Williams. They were placed on his waitlist, where they would sit for a lengthy, indeterminate period, likely years (Ellingsen Affidavit, para 12). After waiting, they would be told “we in plastic surgery do not see or treat lymphedema or lipedema currently,” and “we can’t see people just to write MSI letters.” For ease of reference I will reproduce (yet again) the letter from Dr. Williams’ office with which Dr. Bentley was provided dated May 26, 2022: Hi Jim Have had a group of lymphedema/lipedema patients badgering my poor assistant over the last few weeks. We in plastic surgery don’t see or treat lymphedema or lipedema currently, and the surgeries that are being done have mixed results per what I have seen and heard. Not to discount the value of trying something for someone who is suffering tho. We are under-resourced and can’t see people just to write msi letters. I have had this conversation with Valerie Ross at msi and have offered to write a general letter to them indicating that these surgeries are not offered in NS I sympathize with your patient’s situation Jim. She is on our consult list but is triaged along with Xander patients and everyone else. Perhaps my letter to msi will help her with her plans. J [emphasis added] (Affidavit of Jennifer Brady, filed January 5, 2024, Ex. K) [128] It is quite obvious that nothing in this email indicates that there is any real possibility for Dr. Williams to act in the capacity of a specialist “actively involved” in Ms. Brady’s care, or, by implication, Ms. Ellingsen’s. Counsel for the Respondent pointed to the word “currently” in the second sentence, apparently implying that this was a temporary situation. There is no substance to the suggestion. What is clear that is that, at the time of the request, the very “specialist” whom MSI had told Ms. Ellingsen to see for specialist referrals, had already indicated to MSI, Ms. Brady’s Oncologist (Dr. Bentley) and to Ms. Ellingsen herself, that he was not treating either lymphedema or lipedema, and that he could not see patients for the purpose of simply writing letters to MSI. Moreover, he indicated, “I have had this conversation with Valerie Ross at msi and have offered to write a general letter to them indicating that these surgeries are not offered in NS”. [129] Ms. Palmer testified that she was “under the impression” that one or both Applicants had actually been seen by Dr. Williams. This was commented upon earlier. When asked whether she was aware that Dr. Williams did not treat either of the relevant conditions, she simply said that these conditions were “in his scope of education” and she had “no reason to think that it was not within his scope of expertise”. [130] As with Ms. Brady’s case, the process followed in dealing with Ms. Ellingsen’s appeal was opaque (at best) and appeared to be driven by misunderstandings on the part of the Department. The direct evidence of the actual situation is that specialist access is very sparse. Indeed, in reality, there was nobody in Canada who could treat either of their conditions. It does not appear to be disputed that the best case scenario for both Applicants was that in order to meet the requirement for referral to a specialist acceptable to MSI (hence the Department) they would have to remain on a waitlist for a very long time in order to see Dr. Williams – who, as far as is known, would not treat or refer either one of them. This is the situation that Ms. Ellingsen faced. [131] Moreover, I do not accept the Respondent’s argument that because Ms. Ellingsen (unlike Ms. Brady) actually was seeking liposuction, an uninsured service, that this fact renders the decision reasonable. The process which the Department implemented effectively denied her the opportunity to have a specialist make the case that the service was nonetheless medically required. As noted earlier, the Department itself undertook an investigation of the efficacy of liposuction, in other Provinces. The obvious implication is that there was a least the possibility that it could have been deemed a “medically necessary” (hence, insured) service. [132] As a consequence, in my view, the decisions with respect to both Applicants fail to meet the test of reasonableness. E. If the answer to B, C, or D is “yes,” what remedy(ies) are available to the Applicant(s)? (i) Summary [133] I have concluded that the effect of the Regulations, in particular s. 8 thereof, which were extant during the Applicants’ struggles with MSI and the Department, discriminated against the Applicants on the basis of their rare medical conditions, and in particular, that the result was to deny the applicant's access to the approval process itself for funding of out of country medical expenses. I further concluded that this result was not saved by s. 1 of the Charter, and that also a Doré analysis reveals that the Respondent does not appear to have even considered Charter values in making the decisions. Hence, there was no attempt to vitiate or mitigate the effect of what can only be considered to have been a significant impact upon the Applicants of their Charter protected rights. [134] Finally, I have found that the Applicants have been treated in a procedurally unfair manner, and that in any event, the decision rendered by the Department with respect to each of their individual cases, was unreasonable. (ii) Where does this leave the Applicants? [135] The entire process within the context of which the claims of the Applicants were dealt first, by MSI, and second, by the Department, was unfair to them. Moreover, the decisions with respect to each were unreasonable, and s. 8 of the Regulations (at the time that the decisions were made, when read in conjunction with the policies of MSI and, subsequently the Department) offended s. 15 of the Charter, and are not saved by s. 15 of the Charter. [136] The Department’s decisions with respect to each Applicant are quashed. [137] The current difficulty which must now be confronted, is that the submissions of all parties are quite vague as to the remedy which should be provided to the Applicants, in the event that I were to quash the decisions, as I have done. For example, if I were to consider an award of Charter damages, it does not appear that I have even been provided with the entire quantum of the losses sustained by each Applicant. [138] Compounding this, we know that s. 8 of the Regulations, which was in place at the time the relevant decisions were rendered, has now been repealed. Section 7 has been amended. If I were to decide to remit back for review, does that review take place under the auspices of the Regulations as they are currently constituted, or as they were formerly constituted, to be determined with the assistance of this decision? Instead, or in addition, should the manner in which the Applicants have been treated result in Charter damages, or some other form of damages, in addition to the specific out of pocket losses which have been sustained? [139] My conclusion is that the fairest manner in which to approach this is to invite further submissions from the parties on the nature of the remedies to be afforded to the Applicants now that the Department’s decisions have been quashed, in these highly unusual circumstances. [140] In the event that the parties are unable to agree upon the appropriate redress and/or process to which the Applicants are entitled, I will accept written submissions on this specific topic, within 30 days, after receipt of which I will decide the issue. I also invite submissions on costs within that period, if the parties are unable to agree. Gabriel, J.