She lost a leg, her sight and her kidneys. An Ontario court had ruled she could sue Ottawa for denying her ‘right to life,’ but an appeal court has put a stop to it for now.
A woman’s bid to sue Ottawa over its decision to deny her health care while she was an undocumented migrant — a situation that subsequently saw her lose her sight, undergo a leg amputation and endure kidney failure and a stroke — has again been halted.
“I accept that, a failure to stay the underlying order will result in a fragmented, inefficient, and unsatisfactory discovery process.” Although the immigration minister has the discretionary power to extend the coverage in some circumstances, Toussaint’s request was refused. Her challenge of the minister’s decision was dismissed by the Federal Court and the Federal Court of Appeal.
In 2013, she made a submission to the United Nations Human Rights Committee, arguing that Canada had violated her right to life and her 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 appropriate compensation, and to take all steps necessary to prevent similar violations in the future.
At an appeal court hearing last week, federal government lawyers argued that Superior Court Justice Paul Perell exceeded his jurisdiction by declaring that the Ontario court had the authority to hear Toussaint’s claims of Charter of Rights and Freedoms violations. Perell also prevented the defence from using the argument that the legal action was past the statutory time limit.
Andrew Dekany, Toussaint’s lawyer, said he was disappointed with Trotter’s decision, which, in his view, failed to recognize “the live constitutional issue” because other undocumented migrants continue to be denied essential care and have their health compromised.
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