Case information

Charter of Rights — Right to life — Right to equality — Health law — Whether the results of the Court of Appeal’s restricted s. 15 analysis of failure to follow doctor’s orders send a signal that the Charter allows denial of access to healthcare to patients based on culpability for their disease or condition — At what point on the patient care spectrum between policy and individual clinical decisions does the Charter’s s. 7 right to life supersede government deference — Whether an overly broad objective in the s. 7 analysis shields the respondents from the evidentiary burden of a causal connection between alleged risk and stereotype.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In November 2010, Mark Selkirk was diagnosed with acute alcoholic hepatitis. Without a liver transplant, his risk of death was 80-90%. However, he was ineligible to be listed for a liver transplant because the eligibility criteria at the time required that patients with alcohol-related liver disease (“ALD”) be abstinent from alcohol for six months before they could be considered for a transplant. Mr. Selkirk had been sober for three weeks. Tragically, Mr. Selkirk died later that month. In 2015, his widow Debra Selkirk brought an application seeking a declaration that his rights under ss. 7, 12 and 15 of the Charter of Rights and Freedoms were violated and that the violation caused his death. She sought a declaration that the six-month wait period that was in effect for patients with ALD was unconstitutional. Since Mr. Selkirk’s death, the listing criteria for a liver transplant have changed, first in 2018 through a pilot program, and then through permanent modifications to the criteria in 2020. Ms. Selkirk was of the view that the changes did not go far enough and sought a declaration that the modified criteria for patients with ALD to be listed for a liver transplant were unconstitutional. She also sought a declaration that the criteria for participation in the living donor transplant program which mirror the same criteria were also unconstitutional.

Trillium Gift of Life Network (“Trillium”) administers the deceased donor program and sets the criteria. Its position is that the criteria are evidence-based and consistent with the best available scientific knowledge and the standard of care in Canada. The University Health Network (“UHN”) manages the living donor program.

At trial, the questions of the infringement of Mr. Selkirk’s rights and the constitutionality of the six-month rule were found to be moot. The criteria were not found to violate ss. 7, 12 or 15 of the Charter. Further, UHN’s action in establishing the living donor criteria were not subject to Charter scrutiny. The majority of the Court of Appeal dismissed the appeal relating to the mootness of the former wait regime for liver transplants involving deceased donors and dismissed the appeal relating to the constitutionality of the current criteria for liver transplants involving deceased donors. The court allowed the appeal relating to the current living donor criteria, but neither affirmed nor reversed the application judge’s reasons and conclusion on the issue. The court concluded that the constitutionality of the living donor criteria should be considered in the context of a real dispute with actual parties involved in an assessment under the living donor criteria. The dissenting judge of the Court of Appeal found that the application judge erred in granting Ms. Selkirk status as a self-represented public interest litigant.