After Canada denied him medical care, he lost a leg, his eyesight and his kidneys. A court has just ruled that she can sue

Nell Toussaint knew what was at stake.

Diagnosed with diabetes and other chronic ailments, she understood that if left untreated, the day might come when she would lose a limb, her vision, and even her kidneys.

That is why she had pleaded with the Canadian government as early as 2010 to grant her and other undocumented immigrants access to essential government health care. That request was dismissed by a court.

When Toussaint finally got his permanent residency on humanitarian grounds in 2013, and much-needed health insurance coverage, he had already suffered from “irreversible illnesses.”

Over the years, her leg was amputated above the knee, leaving her blind. Her kidneys failed. She had a stroke and anoxic brain injury due to heart failure.

But his permanent status and health issues have not stopped him from fighting for others still in immigration limbo with dire medical needs.

This week, Toussaint scored a victory in his latest legal saga when an Ontario court threw out an attempt by the federal government to nullify his claim, which has been prompted by a United Nations investigation that found Canada failed to meet its international obligations to she. right to life.”

Conceding to the complexity of a case that intersects with international and domestic law, as well as the Canadian Charter of Rights and Freedoms, the Ontario Superior Court of Justice said there is reason to hear the merits of the 51-year-old woman’s claim. years.

The ruling means your lawsuit can continue.

“Given Canada’s land, sea, air, underwater and sky procedural attack on Ms. Toussaint’s allegation, there are many factual and legal issues to address in this pleading motion in what is a matrix of fact and of complex law that may affect others. by the precedent set by the sad case of Ms. Toussaint,” Judge Paul Perell wrote in a 60-page ruling released this week.

“It pains me to have to say that Canada’s argument that it is clear and obvious that Ms. Toussaint’s claim is doomed is not a source of pride, because Canada pejoratively misrepresents Ms. Toussaint’s human rights claim and thus his rhetorical and largely conclusive argument fails. And it’s also unfair.”

Toussaint’s supporters and defenders say they are delighted with the court’s decision.

“This is a a big win because, unfortunately, our experience with these test case statute claims is that judges are often out to smack them down,” said Martha Jackman, a University of Ottawa law professor who represented one of the 10 community and rights groups involved in the case.

“Justice Perell says many times that this is a complex evidentiary and doctrinal case. Complexity is often seen by the courts as a reason these cases are not justiciable, so they should not be heard and should be dismissed.”

Toussaint came to Canada from Grenada in 1999 and remained in the country as an irregular migrant after his visitor visa expired and numerous attempts to regularize his status failed.

He asked the Canadian government for urgently needed health care under Canada’s Federal Interim Health Program, which covers limited health care benefits for asylum seekers, resettled refugees and detained migrants.

Although the immigration minister has the discretionary power to extend coverage in some circumstances, Toussaint’s waiver request was rejected. His challenge to the minister’s decision was dismissed by the Federal Court and the Federal Court of Appeals.

In 2013, he made a submission to the United Nations Human Rights Committee that Canada had violated his right to life and his right to non-discrimination. In 2018, the committee concluded that Toussaint’s rights were violated and that Canada was obligated to offer the woman an effective remedy, including adequate compensation, and all necessary steps to prevent similar violations in the future.

In 2020, Toussaint took the federal government to court in Ontario, suing the government for $1.2 million and demanding that irregular immigrants have access to essential health care after the federal government refused to follow the committee’s directive. the ONU.

During a one-day hearing in June, government attorneys argued that the case was an abuse of process since it had already been adjudicated by federal courts. Their legal action, they argued, was essentially a request for judicial review, which is beyond the jurisdiction of the Ontario court.

Judge Perell disagreed.

“The Ontario Court has concurrent jurisdiction with the Federal Court with respect to Charter’s claims brought against the Federal Government. There is nothing in the Federal Court Act that would bar a claim for damages against Canada for violation of Ms. Toussaint’s rights under the Charter or international law,” she said.

“The immediate case raises new issues that did not come before the Federal Court in 2010-12. The immediate case addresses additional and different legislation than the one brought before the Federal Court.”

The judge also criticized the government’s argument that granting publicly funded health care to undocumented immigrants would provide an incentive for more people to come and take advantage of Canada’s largesse..

“In a dog whistle argument that smacks of the damaging stereotype that immigrants come to Canada to milk the welfare system, Canada mischaracterizes Ms. Toussaint’s Charter claim as a right to free health care in anywhere in the world, regardless of one’s lack of status.” Perell said.

“Given that Ms. Toussaint’s claim does not assert a right to free health care anywhere in the world, regardless of a person’s lack of status, Canada’s argument is a fallacious straw-man argument that could topple with success the claims that are not affirmed”.

The court’s decision to allow Toussaint’s case to proceed is particularly significant in light of federal and provincial measures in place during the pandemic to ensure access to public health services regardless of immigration status, Jackman said.

“The COVID pandemic really illustrated that keeping everyone healthy is in the best interest of everyone in Canada. Canadian governments recognized in the pandemic that we all live together,” she said.

“The sky did not fall and public finances were not paralyzed. In a way, the evidence suggests that this is actually… economically sound as well as human rights compliant policy.”

The court has given the federal government 40 days to file a defense statement. The merits of Toussaint’s claim will be heard next year.

“Nell is a strong person. She participated in a protest in the middle of a winter blizzard in downtown Toronto a couple of years ago for a health-for-all (campaign) across the country,” her attorney, Andrew Dekany, said.

“She is very involved and has a fine mind. And it has been very hard for her not to have had a decision for so long. We are on it now. She is persistent in a good way, in a fighting way. So, subject to her own health issues, her persistence and will is there.”

Toussaint, who has been in and out of hospital, said she is elated with the court’s decision and hopes her persistence pays off.

“It’s a good decision. I love this judge,” she said, adding that what has kept her going is her motto: “Fight for others and win.”

Nicholas Keung is a Toronto-based reporter who covers immigration for the Star. Follow him on Twitter: @nkeung

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