Health Law – Law is Cool The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 1338880 Alternative medicines need regulation: Op-Ed Sat, 24 Jul 2010 22:47:34 +0000 Federal Health Minister Leona Aglukkaq recently had the opportunity to prevent the sale of potentially dangerous health products to unwitting consumers. Canadians should ask why she let it pass by.

This June, the Harper government introduced Bill C-36 with respect to consumer product safety. When compared to legislation offered in 2008, the planned bill fails to provide much-needed regulation of Canada’s burgeoning natural health product (NHP) industry …

Read the entire July 24th commentary at the Calgary Herald.

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Liebeck v. McDonald’s Restaurants – Redux Sun, 07 Feb 2010 17:40:43 +0000 Aimee Green of The Oregonian reports,

An attorney for Aurora Hill filed suit in Multnomah County Circuit Court Wednesday afternoon — stirring memories of a controversial 1994 suit in which a jury awarded $2.86 million to an Albuquerque, New Mexico woman who spilled scalding-hot coffee on herself, suffering severe burns that required hospitalization. Upon appeal, the parties settled for an undisclosed amount.
…She went into “nervous shock,” endured pain and has scarring. She seeks $7,182 for her pain and suffering, plus another $318 for lost wages and medical expenses.

See our previous posts:

Dr. Gabor Maté of Insite Wed, 03 Feb 2010 21:22:11 +0000 Democracy Now has an interview with Dr. Gabor Maté of Insite,

AMY GOODMAN: The Obama administration’s budget proposal for the Office of National Drug Control Policy sets aside nearly twice the amount of funding for law enforcement and criminalization than for treatment and prevention of drug addiction. Out of a total of $15.5 billion, some $10 billion are used for enforcement. National Drug Control Policy Gil Kerlikowske praised the numbers as reflecting a “balanced and comprehensive drug strategy.”

Well, just last year, the newly appointed drug czar and former Seattle police chief had called for an end to the so-called “war on drugs,” raising hopes among advocates of harm-reduction approaches to curbing drug use. In an interview with the Wall Street Journal last May, Kerlikowske said, “People see a war as a war on them. We’re not at war with people in this country.”

Well, I’m joined right now here in the Democracy Now! studio by a doctor who has spent the last twelve years working with one of the densest populations of drug addicts in the world. Dr. Gabor Maté is the staff physician at the Portland Hotel, a residence and harm reduction facility in Vancouver, Canada’s Downtown Eastside. Dr. Maté also treats addicts at the only safe-injection site in North America, a center that’s come under fire from Canada’s Conservative government led by Stephen Harper.

Dr. Gabor Maté is the bestselling author of four books. His latest, just out in the United States, is called In the Realm of Hungry Ghosts: Close Encounters with Addiction

DR. GABOR MATÉ: Well, the first point to get there is that if people who become severe addicts, as shown by all the studies, were for the most part abused children, then we realize that the war on drugs is actually waged against people that were abused from the moment they were born, or from an early age on. In other words, we’re punishing people for having been abused. That’s the first point.

The second point is, is that the research clearly shows that the biggest driver of addictive relapse and addictive behavior is actually stress. In North America right now, because of the economic crisis, a lot of people are eating junk food, because junk foods release endorphins and dopamine in the brain. So that stress drives addiction.

Now imagine a situation where we’re trying to figure out how to help addicts. Would we come up with a system that stresses them to the max? Who would design a system that ostracizes, marginalizes, impoverishes and ensures the disease of the addict, and hope, through that system, to rehabilitate large numbers? It can’t be done. In other words, the so-called “war on drugs,” which, as the new drug czar points out, is a war on people, actually entrenches addiction deeply. Furthermore, it institutionalizes people in facilities where the care is very—there’s no care. We call it a “correctional” system, but it doesn’t correct anything. It’s a punitive system. So people suffer more, and then they come out, and of course they’re more entrenched in their addiction than they were when they went in.

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Insite Victory Sat, 23 Jan 2010 06:13:43 +0000 InSite placard

The InSite facility in Vancouver won its most recent hearing at the B.C. S.C.

See more at Junkie Life

Don’t Smile when Depressed and Dancing with Strippers Sun, 22 Nov 2009 19:12:04 +0000 Nathalie Blanchard of Bromont, Quebec, has been on sick leave for a year and a half for long-term chronic depression.

The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show,  her own birthday party and on holidays.  Her Manulife representative told her that,

I’m available to work, because of Facebook.

Ironically, most of these events were recommended by her physician as part of her treatment.

Depression is not like other disabilities where Facebook has been used to demonstrate lack of impairment.  The complex parameters of a psychosocial condition like depression is entirely distinct from factors such as range-of-motion, flexibility, and strength that are more commonly assessed in physical disabilities.

Thomas Lavin, Blanchard’s counsel, expressed similar reservations,

I don’t think for judging a mental state that Facebook is a very good tool.  It’s not as if somebody had a broken back and there was a picture of them carrying …a load of bricks.  My client was diagnosed with a major depression. And there were pictures of her on Facebook, in a party or having a good time. It could be that she was just trying to escape.

We don’t know if Blanchard was bipolar, or has a chronic pain condition that may affect the presentation of her depression disorder.  Although the inability to smile can lead to depression, those that do smile and possibly appear happy are not necessarily without depression.

And if we think about it for a second, Blanchard is not likely to select the photos of her sulking in the corner onto her profile.  Facebook photos go through a screening process, essentially attempting to put the “best face forward.”  What each person considers best, whether it’s attractiveness, professionalism, interesting, provocative, or wacky, does vary from person to person.  In Blanchard’s case, where family and friends likely know about her prolonged bout with the blues, it is not unreasonable to expect her to at least try to look happy.

Here are some more established methods of evaluating depression, that long precede the use of Facebook photos:

As persuasive as Facebook photos might be to a jury, it lacks scientific reliability and validity.  Insurance adjusters know this, and without corresponding clinical data to confirm any impressions, they should be reluctant to reject or terminate claims on the basis of photos alone without any context.

Cross-posted from Slaw

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Part II: Soldiering on? The invisible injuries of war Sun, 08 Nov 2009 22:35:42 +0000 Guest Post by Krystalline Kraus | Reproduced from with permsision

Next week, on November 11, veterans will get only two minutes of recognition — if people stop to reflect at all — while the rest of the year their sacrifice is forgotten.

If Canada’s mission in Afghanistan does end in 2011, 35,000 men and women will have served in that theatre — 133 have been killed thus far — and the Canadian Forces’ (CF) low estimate is that as many as 2,000 could be returning home with an Operational Stress Injury (OSI) such as PTSD.

These soldiers will return home with, among other things, an OSI or plagued by survivor’s guilt and the pressure to do good by their dead friends; first they bury them and then they bury their own feelings. As the saying goes: Survivors die twice.

Massacre at Fort Hood

The problems the U.S. military would prefer to hide violently surged to the public’s attention when Major Nidal Malik Hasan, a 39-year-old U.S. Army psychiatrist, allegedly opened fire yesterday afternoon at Fort Hood, Texas. He is accused of killing 13 people and wounding 30.

A New York Times article features an interview with Hasan’s cousin, who states that he expressed deep concern about being sent to Iraq or Afghanistan; the cousin also notes that Hasan’s job was to counsel returning soldiers suffering with PTSD which gave him an intimate window into the horrors of war. This made him fearful of deploying to either theatre. His cousin also claims he was having second thoughts about his military career a few years ago after other soldiers harassed him for being a Muslim.

Bringing the war home

After the battle’s over, some scars are more visible than others. But they can’t stay hidden forever, and like tiny landmines they will eventually explode. Nor should they be a hidden shame. Refusing to acknowledge the challenges faced by active duty, reservists or veterans is as insulting as refusing to properly acknowledge the dead; and one presidential visit to inspect a standing army of coffins isn’t enough.

This is the horror of war that society and — too often — the anti-war community fail to acknowledge. We cry and lament for the civilian casualties and too often hate the individual soldiers who we insist are cold hearted bastards who enlisted to kill, ignoring the reality of military recruitment tactics that purposefully target young vulnerable teenagers and young adults often from poor and disadvantaged urban centers, rural communities and First Nation reserves with the promise of medallion glory and video-game thrills; or, more simply, the promise of a large sign-up bonus and free healthcare.

The damage done by war

The damage from war and our society’s treatment of these heroes is damning. The statistics are explosive.
Exposure to war time violence can cause Post Traumatic Stress Disorder (PTSD) — the Canadian government uses the term Operation Stress Injury (OSI) instead of the DSM-IV diagnosis of PTSD since apparently soldiers who “cannot cope” with the reality of war are just “stressed.”

The impact and fallout on troops can be devastating on the soldier and their family. Symptoms of PTSD (or shell shock as it was once called) include persistent frightening thoughts and memories of their ordeal, emotionally numbness, especially with people with whom they were once close. Sufferers may also experience sleep problems or be easily startled.

The Harper government’s military policy paper, ‘The Canada First Defence Strategy,’ proposes spending $490 billion on the military over the next 20 years. Instead of spending tax payers money on bombs and bullets, money should be invested in veteran specific health care needs, especially better access to mental health services.

Canada’s Chief of Defence Staff, General Walter Natynchuk, has pledged to do more to assist soldiers suffering from OSI, but is quick to blame the military’s warrior culture without acknowledging the systemic refusal to acknowledge how deep the problem runs.
One bright light in the darkness is a new program offered by Veterans Affairs Canada called Operational Stress Injury Support Services (OSISS), which began offering peer-support counseling to returning soldiers of all rank, bars and stripes, including active-duty, reservists and veterans.

In a 2002 NOW Magazine article Terry Allan interviewed Lt.-Gen. Romeo Dallaire (Ret.’d) about the long-term consequences of his war experiences. “Eight years after Rwanda, in daylight and in dreams, Dallaire still hears the cries of wounded children, the weeping of survivors, the voice of the man who died at the other end of a phone line as the general listened. He still can’t escape the smell of death, the memories of hacked-off limbs scattered on the ground, and worst of all, he says, the ‘thousands upon thousands of sets of eyes in the night, in the dark, just floating and looking back’ at him in anger, accusation, or eternal pleading.”

Now a Senator, Dallaire has estimated, “about 20 per cent of troops and humanitarian workers on missions like his suffer much the same thing, as do 5 to 10 percent of diplomats. ‘They are casualties … High suicide rates, booze, drugs, pornography, finding themselves on skid row.’

Whisper the word Rwanda and everyone knows the horror you’re referencing, the horror that Dallaire and other Canadian peacekeepers lived through in 1994 while thousands and thousands of the people they were UN mandated to protect did not.
“Ultimately PTSD leads to suicide,” he said. “I tried to kill myself four times.” To suggest that Dallaire, who has been open about his battles with PTSD, is weak-minded or weak willed is an insult to every one of Canada’s heroes.

Glass soldiers

Soldiers like to believe they are invinsible, that they are steel warriors. Sure, Kevlar helmets and Molle vests protect the body, but what about the mind and the pride that soldiers often carry that prevents them from seeking help even when their lives are falling apart? Along with mental health issues, returning soldiers often face social and personal problems such as rising incarceration rates.

According to a November 2008 report, 4,000 new cases of PTSD in the UK were reported last year and service personnel on operations are nine times more likely to suffer than those not posted. It also found that women were more vulnerable to the condition, with an eight out of 1,000 chance rather than the four out of 1,000 chance for men.

A UK National Association of Probation Officers report, issued September 25, 2009, stated, “Depression, post-traumatic stress disorder and substance abuse are behind an alarming rise in the number of former British soldiers ending up in prison, a report says — and more veterans have had tangles with the law than there are British troops in Afghanistan. It also noted that most veterans don’t receive adequate counseling or support when they leave the armed forces.”

The statistics are hauntingly similar for Canadian soldiers. Our heroes are dying, with suicide rates more than double those of the general population.

These statistics only include active duty service personnel and do not include reservists or veterans, as the Department of National Defense (DND) does not currently track overall suicide rates despite calls for greater transparency from the public, the media and Canadian politicians like Senator Dellaire.

A Canadian Broadcasting Corporation (CBC) investigation found that the suicide rate among Canada’s soldiers doubled from 2006 to 2007.  Last year, the number of suicides among regular and reserve members of the Canadian Forces rose to its highest point in more than a decade. Veterans Affairs says that the number of vets experiencing some kind of operational stress injury, such as PTSD, has tripled in the past five years, and they expect it to continue rising with Canada’s mission in Afghanistan likely to last until 2011. It has also recently pledged to review the way the Department of Defence tracks suicide rates. (For the U.S., the month of January 2009 brought the highest rate of suicide among all branches of the U.S. military and had the highest rates since 1980.

Killing overseas and killing our own

If the Department of National Defense and Veterans Affairs Canada are speaking the truth regarding wanting to break the stigma of mental health issues within military, than nothing less than full disclosure and transparency, as opposed to secrecy and shame, regarding suicide statistics is necessary for healing to begin.

Senator Dallaire, in an exclusive interview with the CBC, said, “I mean there are regiments who won’t recognize that one of their soldiers who’s committed suicide, you know, a year or so after a mission, should go on the list of those who are a casualty of the mission. If you’re killed in operation, your name is on the Honour List. But if you kill yourself due to the injury of that operation, then you’re not recognized.”

In regards to the military structure, Dallaire blames the middle level functionaries for stalling the disclosure. It is they “who feel that they’ve got the responsibility of the purses of the government, who feel they’ve got the responsibilities of not setting up precedents and of applying the rules and so on. They’re the ones both in DND and in Veterans Affairs, they are the ones who are making it more difficult,” he said.

If the military demands loyalty from its troops, then the troops should expect loyalty in return, loyalty in good times as in bad, during victory parades and when a soldier breaks down.

Canadians cannot have it both ways; a hero-honouring culture that does not honour its heroes. Neither can the anti-war movement rail against the treatment of civilians, foreign combatants and detainees — the war overseas — while ignoring the challenges facing soldiers and veterans who have brought the war home. All are casualties. This is where a new peace keeping effort must begin.

krystalline kraus is a Toronto-based writer.

Read Part I of this article:

Withler We Go From Here: The Future of Pension Reform Mon, 12 Oct 2009 03:25:22 +0000 Western Law hosted a forum on pension reform this past Thursday, featuring community leaders, legal academics, and practitioners.

Pension Plan Basics

Prof. Robert Brown of the University of Waterloo explained some of the basics behind pensions.

There are two kinds of pension plans, defined benefit and defined contribution plans.  A defined benefit plan provides flat benefits at a specified amount per year of work.  They can present a pretty good idea of what to expect in terms of benefits, but if investments are hit hard it can decrease amount of funds, and they are often open to the vagaries of the market.  A defined contribution plan allows you to determine how much goes into the plan, but you don’t know what you will get when you retire.

A multiple employer pension plan allows you to work for many different people, all of whom contributing to funds in your pension, and are common in the building trades. Single employer pension plans are far more common, and are usually what people think about when they refer to pensions.

A further refinement of types of plans are jointly sponsored pension plans, quite common in the public sector, where there is a shared risk with the government, who matches contributions to the plan. The largest of these Ontario Teachers’ Pension Plan, which is considered one of the better plans available, with a 12% matching.

There have been four major panels on pension reform across Canada in five different provinces.  The Province of Quebec came up with a member funded pension plans which are defined benefit, but the benefit is not a guarantee but a target benefit.  The plan sponsor just has to make a defined contribution, with very little risk to them, in a large co-mingled asset pool providing risk-sharing.   Indexation of benefits, both before and after retirement is contingent on funding health of plan.  They can be multi-employer or single employer, and is intended to stay funded at all times.

The Nova Scotia Pension Review Panel pointed out in their report early this year that existing rules inhibit innovation, and they liked the idea of some multi-employer and jointly sponsored plans in the province that a jointly-governed with share decision-making, but with some contingent benefits.  They suggested joint governance and transparency would create a lot less regulation. They also suggested a province-wide plan by an independent agency that would be voluntary but open to everyone, and could take over some orphaned pension plans or fully managed ones, as a target-benefit plan.

Alberta and B.C.  had a joint commission, the ABC Report, which also criticized the inflexibility in pension plans, and said there was a need for someone to champion pension reform. Plans should state how they will be governed and their funding policies.  Both are starting their own defined contribution provincial plans that will be available to everyone, with co-mingled assets and pooling of risk, and expenses of less than 0.4% basis points.  Defined target benefits and indexation would not be available unless the funding was healthy.  You have to act to opt-out, but it is not mandatory.  An independent board would do the investing, similar to the Canada Pension Plan.

Prof. Brown worked for the Ontario Expert Commission on Pensions and made similar recommendations, stating that the rules under the Pension Benefit Act and Income Tax Act stifle innovation.  He said it was a good idea to co-mingle assets because you get lower administration costs, lower investment expenses, can hire in-house expertise, and invest in some new types of plans, and pool some of the risks.  The size they are considering are in the magnitude of $10 billion.  If there was shared responsibility for the plan, they could have a lot less regulation.  He suggested they should have consultation with retirees, which are not normally considered part of the plan, and provide more information more often. It could be used by single employers, but there would be co-mingling of assets, through an Ontario pension agency or one of the large existing plans like Ontario Teachers Pension Plan (OTPP), OMERS, or Hospitals of Ontario Pension (HOOP).  Management fees would be kept down.

If none of this works, they would consider expanding the Canada Pension Plan.  The similarity in findings between all of these panels suggests that there might be some merit behind the recommendations.

Looking for an Alternative

Mitch Frazer, a Partner at Torys LLP and adjunct faculty at UofT specializing in pensions, continued the discussion, focusing on the creation of a supplemental pension plan. He joked that pension law was a bit like the Maytag repair-person – people sit around and ask you questions without understanding what he does.  Then suddenly because of the economy pensions are a big topic with considerable media attention.

He saw two major portions for reform – trying to fix the system in the way described by Prof. Brown, but also looking at alternative solutions.  A lot of politicians are interested in this as well, and he noted that Glen Pearson and Doug Ferguson were in attendance.

Frazer provided some background behind pension alternatives.  Canada’s aging population is foremost among this.   By 2031, over 25% of the population will be older than 65, and only 13% of the population was over this age in 2005, almost a doubling of the aging population.  There is also less participation in occupational pension plans, anything not a CPP, by private sector employees.  Pension plan participation is just over 20% in Alberta and B.C., 25% in Ontario.  As people are getting older and need some form of pension plan, there are less people contributing to them.

A lot of employers are terminating plans, or not offering it at all.  His clients do not approach him these days about creating a new pension plan.  The decline in the stock market has resulted in diminished retirement funds, so there is a decrease in personal savings rate coupled with record-high debt.

There have been some initiatives to address the problems, including the provincial reviews of legislation mentioned above.  The Federal government has also initiated consultations on the federal regulatory framework, and there is increased commentary by professionals and academia.  But only Quebec has been successful in considerably revising their pension plan, and they continue to revise it on an annual basis to keep abreast of changes, leaving all the other provinces behind.  The one positive thing out of the economic crisis is that everyone is now focusing on pension plans, similar to the mid-90s and the focus on CPP reform.

The objectives of reform would be improving retirement income security and enhancing pension coverage.  Pensions are going down, and we need to address that halt and figure out a way to prevent it from going further down.  We can take advantage of economies of scale by pooling assets, and benefit from the management and expertise in larger plans top reduce administrative burdens and costs.  We need to improve benefit portability and reduce risk and uncertainty.

The details of a supplemental plan are difficult to list, because there is no ideal plan, it is to be custom tailed for everyone.  But a lot of the discussion around a supplemental plan is going to be what the features are about.  There are some ideas of what it could consist of.  There could be automatic enrollment of employers and employees, with an opt-out option.  If the employer opts out, an employee could still participate by contributing.  There could be an option for self-employed individuals to opt-in, or not.  A minimum earnings threshold for eligibility, so the plain does not catch people with no discretionary income.  All these features provide flexibility for the type of coverage offered.

Some of the possible features for contribution and participation include allowing employees to transfer the value of their current pension plan to a new plan, to provide some portability.  You could allow an employee to continue to contribute to a plan even if the employer discontinues or terminates the pension plan.   There could be a minimum contribution rate, with an option for additional voluntary contribution beyond that.

Governance and administration could also take different forms.  It could be governed by an expert board with full transparency, so that participants would have confidence in the management of money.  Confidence in the plan is essential.  The reason why CPP works is transparency and their ability to provide confidence that their managed properly.  Alternatively, some cost savings might be realized by a fully governmental body controlled plan with no options for contributions, even though it would compromise flexibility.  Reducing administrative burdens by direct payroll contributions might work, but how do you deal with self-employed individuals?  Efficiency comes with trade-offs.

The role of government in an alternative plan is also debated.  They could the legislative and regulatory framework for operation of the plan, and probably should.  They could provide investment at the initial stage to ensure a successful launch, or put out a tender for private bidders so that it doesn’t cost the government anything.  But government involvement might also be needed to create confidence in the public.

Some of the criticisms of the alternatives are that since participation would not be mandatory, people would out and choose not to participate at all.  Most people don’t have extra money.  Even worse, employers could participate and then drop out of it when there is a recession.  They could use it as a recruiting tool during good times, and lost it during bad ones.  The plan may not require employers to match employee contributions, which reduces one of the key benefits for employees and encourages they to save.

If based on a defined contribution model, there is a big risk during a downturn of not getting the returns would would want.  Although RRSPs can be held out as an alternative benefit to those without pension plans, there are enormous benefits that those excluded from pensions are missing out on as well.  Some argue that creating a pension is the responsibility of each individual, and people should be able to make their own decisions about retirement.

Perspectives from the Community

The panel also included some comments from community members, to provide some perspectives from people who would be affected by pension reforms.

Janis Mark, a local teacher in London and President of the local chapter of the Congress of Black Women pointed out that with all the living expenses, it’s difficult for the average person to put away money.  Many people get older and then realize they haven’t saved as much as they would have liked, and they wonder, “Is it too late for me?”

She also noted that most of what is being considered by the other panelists wouldn’t even affect our generation, it would be for our grand-kids.  But this is also why for many citizens this is too much of a headache to figure out, and they don’t want to even worry about it.

Robert Sexsmith, a local retiree, added that workers everywhere feeling pressure.  Governments have advocated responsibility in name of economic realism or competitiveness, but the reality is that the “war against pensions” has received less attention than it should.

People complain about taxes, and they complain when it rises.  They understand wages.  But pensions baffle us, and the implications of pensions is not something we understand.

Even before the recession it was clear that pensions were under the gun.  Retirement benefits interfere with the labour market’s flexibility, and the willingness of people to take low-wage jobs.  There is even serious discussion about raising retirement age to 75, and many of these people do not want to work.

Tax reforms not enough, and tax concessions don’t work because retirees are not paying taxes.  The labour movement has argued for immediate improvements to old age security for this increasingly vulnerable population.  He believes that nationalizing all private pensions would be a first step, because they are almost always underfunded, unlike public sector.

A Human Rights Perspective of Pension Reform

Michael Lynk, currently Associate Dean (Academic) at UWO, addressed the human rights and equality issues and dimensions of pension issues, which are very much becoming in the forefront in Canada and the world.

The Organisation for Economic Co-operation and Development (OECD) has produced reports and documents relating to the pension issue.  So has the World Economic Forum (WEF), with a report looking at scenarios to 2030.

All Western societies are facing the same types of demographic and financial challenges, with a greying and shrinking workforce, with less resources.  In Canada 2/3 of our workforce will not have a pension plan.

There are three major reasons why pensions are becoming topical in Canada:

  1. Charter issues and human rights legislation does apply to pension plans
  2. Age discrimination is becoming more prevalent in litigation
  3. Pension issues already play a discreet role in advancing human rights, especially in the area of sexual orientation

We already have an extraordinary human rights Canada.  According to Lynk, we probably have the most advanced human rights system anywhere in the world, with major breakthroughs in gender issues, race, family status, and sexuality.  This is something to revel in.  Even Europe laws on human rights is still about 5-15 years behind us.

However, one of our major deficits has been in age discrimination.  Most of the case law has focused on mandatory retirement.  Virtually every case at the Supreme Court of Canada through the 90’s were unsuccessful, based on the “lump of coal” trade-off.  Retirement allows others to progress in society by making room for others, and was an exception in respect to other human rights cases.  Most of the cases also assume a declining ability with older age.

Unions did have the resources to fund further litigation, but just weren’t interested in it.  They often had seniority clauses that they felt provided adequate protection.  Same-sex benefits cases at the tribunal level started to side-step the stance taken by the Supreme Court, and by the late 90’s the Court started to agree with them.  This was one example of how litigation was able to advance interests for these types of benefits.

But the court was unwilling to apply these broader tests developed in this period for disabilities to age discrimination cases, despite the 1999 B.C. v. BCGSEU [“Meiorin”] case that said we have to make human rights standards higher.  The test in Law v. Canada imposed a higher and more difficult threshold in respect to Charter litigation.

A more recent case in N.B. v. Saskatchewan Potash dealt with the term “bona fide pension plan,” and whether the appropriate test was Meiorin or Law.  The decided with the more modest standard, and said the differential standard used in N.B. did not offend the Charter.

Although Lynk was discouraged that the Court has left age discrimination behind, there are a range of questions that need to be asked on how we structure our pension plans.  He was pessimistic in the way age discrimination has been treated in the past, but he was optimistic that the Court or legislatures were going to catch up and enforce a more broader, enlightened, and liberal view towards age discrimination.  It would be impossible to keep building a higher silo of other human rights, and keep out other forms such as age discrimination out of it.

He reached this conclusion because:

  1. Average age in Canada is steadily increasing.  This cohort of aging population is the most educated in our history, but also most healthy, and some will want to continue to work.
  2. Pension benefits are rising to the forefront.  There is a huge amount of money involved in this, and it will continue to be an important policy and litigation issue.  The sheer volume of cases will eventually force the issue.

Lynk pointed to one upcoming case before the SCC, Withler v. Canada, dealing with supplementary death benefits, but with the potential to provide a wider interpretation for pension benefits.  Survivors of spouses receiving benefits would decrease by 10%, and the question was whether it is discrimination if the benefits are decreasing as people get old.  The trial judge ruled against claimants, and the B.C.C.A. decision upheld the decision. The dissent held that it was a s. 15 violation on equality, and not justified by s. 1, because an improper distinction was made.

The decision is expected some time in March 2010, and will likely be published about a year from now.  Even though the case is a small and discreet issue, it could determine the direction of age discrimination for future cases to come.

Cross-Posted from Slaw

Call Them Feel-Good Expenditures, but These Girls Will Cost You Mon, 28 Sep 2009 01:35:01 +0000 Running a call-girl business is an inherently risky venture.  The lines frequently blur, and participants end up in what the law would describe as prostitution.

To sort out these complicated legal dilemmas operators frequently have to hire counsel.  Should these expenses be reportable for tax purposes?

The now-defunct Exchequer Court examined the issue back in 1964, in Canada (Minister of National Revenue – M.N.R.) v. Eldridge, when several employees of the respondent were arrested on prostitution charges.

The Taxation Division provided Notices of Assessment of $22,046.75 and $19,103.77 for the previous two years.  Objections over the government collecting taxes on illegal revenue were dismissed by Mr. Justice Cattanach,

25 … it is abundantly clear from the decided cases that earnings from illegal operations or illicit businesses are subject to tax. The respondent, during her testimony, remarked that she expressed the view to the officers of the Taxation Division that it was incongruous that the government should seek to live on the avails of prostitution. However, the complete answer to such suggestion is to be found in the judgment of Rowlatt, J. in Mann v. Nash ((1929-1932) 16 T.C. 523.) where he said at p. 530:

It is said again: “Is the State coming forward to take a share of unlawful gains?” It is mere rhetoric. The State is doing nothing of the kind; they are taxing the individual with reference to certain facts. They are not partners; they are not principals in the illegality, or sharers in the illegality; they are merely taxing a man in respect of those resources. I think it is only rhetoric to say that they are sharing in his profits, and a piece of rhetoric which is perfectly useless for the solution of the question which I have to decide.

The court was more lenient with some of the substantial business expenses excluded, namely $1,925 legal fees for some of the girls who had been arrested.

The court held that the fees were properly deductible because:

  1. it was for the purpose of income, because the call girl could not earn any income while she was imprisoned
  2. it was part of the arrangement that the operator would assume legal fees in the possibility of legal troubles

Most criminal lawyers would say that $1,925 is  not a lot of money for that kind of an operation, even back then.  And maybe there’s good reason why they skimped on legal fees.  A more sizable deduction for $16,500 was rejected, because it was claimed as “protection fees.”  The recipient of the fees was none other than the local law enforcement.

So if prostitutes can claim their legal fees as a tax deduction, can lawyers claim prostitutes as a legitimate tax deduction as well?  It’s a disbursement that many Bay St. firms probably wouldn’t flaunt in their recruiting brochures.

Garry Slapper of Times Online suggests that the answer, at least before the U.S. Tax Court, is that they cannot.

William G Halby, a tax lawyer from Brooklyn, claimed $111,364 in 2002 for therapeutic sex.  His 2005 claims were more detailed, $5,005 in books, magazines, and videos, and $42,152 for specifically for prostitutes.  He cited section 213 of the Internal Revenue Code:

§ 213. Medical, dental, etc., expenses
(a) Allowance of deduction
There shall be allowed as a deduction the expenses paid during the taxable year, not compensated for by insurance or otherwise, for medical care of the taxpayer, his spouse, or a dependent (as defined in section 152, determined without regard to subsections (b)(1), (b)(2), and (d)(1)(B) thereof), to the extent that such expenses exceed 7.5 percent of adjusted gross income.

Brian L. Friedman, Administrative Law Judge, said in the case,

…portions of petitioner’s “sex therapy” were, in fact, sex for a fee, in violation of Penal Law § 230.02. Such expenses were not paid to medical professionals or for activities prescribed by medical professionals but were made to unlicensed providers for legally proscribed services. (See Penal Law § 230.00.)

Additionally, even if it were accepted that sex constitutes medical care, such expenses would be more for petitioner’s general well-being rather than cure, mitigation, treatment or prevention of a specific disease or condition.

…petitioner failed to produce evidence that the claimed expenses were for prescribed activity, and he had little regard for physician’s advice on sexually related matters. As the periodicals cited by petitioner were neither specific towards him nor for a specific illness, they cannot possibly constitute a prescription or medical advice. Because petitioner purchased the videos, books, periodicals, pornographic materials and sexual performance aids without prescription, and they were not medically necessary to treat a specific disease or condition, they are not medical expenses for which an income tax deduction is warranted.

We still have to overcome cases like Nina Baccala of North Providence, cum laude from the New England School of Law and clerk for Superior Court Judge Raymond J. Brassard, one of the many new law graduates who moonlight as an escort. Her case was only revealed after an assault last year while on the “job.”

With a clever title for a Constitutional paper like, “A Guide to Aborting Roe v. Wade and All of Its Bastard Progeny,” I would’ve hoped Baccula could come up with some fundamentally different choices in life.

But at least next time someone cracks, “What’s the difference between a prostitute and a lawyer,” you can give them a different answer:


Cross-posted from Slaw

Flu shots can give a different kind of immunity Mon, 21 Sep 2009 17:53:39 +0000 Swine flu vaccine makers may get a special gift from the federal government: immunity from civil negligence suits. You may not have heard about it because other swine flu news recently got much more spotlight. First, Ottawa spent five times as much on stimulus plan ads as on H1N1 awareness. And the federal Health Ministry shipped body bags to aboriginal communities to help them prepare for the epidemic. But the story about legal immunity for vaccine makers is equally deserving of national attention. Taxpayers will foot any bill for the government’s protection of pharmaceuticals, and vaccine users may bear an excessive risk of death or injury. Although the US already offers immunity to vaccine makers, Canada is different enough to require careful study and discussion of this issue.

Immunity from legal suits in this case means if the vaccine is a suspected cause of death or injury, the law will not allow victims to sue the vaccine manufacturer. They may have no recourse at all, or the government may compensate them from a special fund. The immunity shifts the risk of mistakes in vaccine making from the pharmaceutical industry to victims or to taxpayers. Under the common law, negligent companies are liable for injury or death caused by their products. But the government can protect a company from the common law liability by statute or executive decision. The main reason is to bring vital products to as many people as possible faster and at a lower cost. The government may need as many vaccine doses as possible sooner to prepare for a coming pandemic. Protecting themselves from legal liabilities can slow vaccine makers down or make the vaccine too expensive. To get a lot of vaccine fast, the government shifts the risk from pharmaceutical companies to taxpayers or vaccine users.

Unless the government compensates victims, the vaccine makers’ immunity shifts the whole burden and risk of injury or death to vaccine users. The US government has granted immunity to vaccine makers after the 1976 swine flu outbreak, but it has set up a fund to compensate victims. This is essentially a specialized public health insurance fund. For a victim to take advantage of it, a special federal court must approve the claim. It’s also an insurance fund for pharmaceuticals because taxpayers pay for their negligence. It’s not clear if vaccine makers have to pay any premiums to get the protection. And no immunity is available for wilful acts, such as intentional tainting of the vaccine.

What about Canada? Are we at the moment of truth before the epidemic hits? Are the demand for the vaccine and the threat of legal liability so high that they are bogging down pharmaceutical companies? Or are vaccine makers trying to maximize their profits at the expense of Canadian taxpayers? The federal government refuses to tell if it will shield pharmaceutical companies from liability. GlaxoSmithKline, which has already signed a contract to make 50.4 million vaccine doses at its plant in Quebec, says only that it’s talking to Ottawa. It’s already much more difficult to sue for medical or pharmaceutical malpractice in Canada than in the US. Any immunity will lower the incentive to make vaccines safer, although they will not necessarily be less safe. We don’t know if the Quebec facility can simply conveyor doses out, or if more R&D and testing are required. Neither do we know if the vaccine will be mandatory taking away our choice between the risks of the swine flu and vaccine side effects. But even if the shot is voluntary, the government should require warnings before the vaccine is administered—that is, of course, if it makes us bear the risk of vaccine makers’ negligence by offering them immunity.


Differing Views on Healthcare from an Economics Perspective Mon, 07 Sep 2009 18:42:37 +0000 I have heard, seen and read the debate among pundits in regard to healthcare reform south of the border. Cutting through the misinformation, spin, rhetoric and outright bull, there is a somewhat trivial economic explanation to the differing opinions. As usual, some of the easiest explanations are the ones most often overlooked.

This economic perspective is a result of one of the comments I saw on the WiseLaw Blog which talked about the comments of Glenn Beck (who was ranting about a “lottery” that is the Canadian healthcare system). The comment went as follows:

“…I know nothing of Beck but suspect he promotes the “conservative” point of view, which, briefly stated, is that being rich should MEAN something….”

This is serious food for thought. What exactly does it mean to be rich? In obvious language, it implies an ability to consume luxury goods and services available in the market. Conversely, what does it mean to be the opposite of rich (I don’t want to say “poor” because that has a different definition)? It means a general inability to consume luxury goods due to having to spend the majority of income on necessities.

You can see where this is going with regards to healthcare. Framed like this, the question is trivial: is healthcare a necessity or a luxury? Your initial answer will depend on your political preference, but consider the following premises and let’s see where logic takes us:

  • People cannot control when they become ill; and
  • Spending on luxury goods and services is first to get cut in an economic downturn due to less money being available and thus a greater proportion of income being spent on “necessities”.

What is the logical conclusion if we assume that healthcare is a luxury? If a “rich” person becomes ill during a recession when there is less money to spend on luxuries, money would not be spent on treatment.

Politics notwithstanding, I hope my readers can see why this conclusion is silly. Treatment for an illness cannot wait for an economic upswing nor should people’s health be affected by where we stand in the business cycle.

I can therefore conclude that healthcare is not a luxury, but a necessity. This also means that the anonymous reader of WiseLaw is only partially correct: for “conservatives” being “rich” should mean something, but any conservative with an understanding of economics will understand that being the opposite of rich should not spell lack access to healthcare.

*Note*: I am well aware that I used some “economics” terms without proper “economics” definitions. I did this because I didn’t want eyes to glaze over.

Cross-posted at