Nell Toussaint V. Attorney General of Canada

Nell Toussaint, lived and worked in Canada as an irregular migrant for almost a decade. She was in the process of seeking to regularize her status in Canada when she developed life-threatening health problems. She sought access to the Interim Federal Health Program (IFHP) but was denied because of her immigration status. She challenged this as a violation of her rights to life and security of the person under section 7 of the Charter and her right to equality under section 15.

The Federal Court and the Federal Court of Appeal agreed that her life and long term health had been put at risk but held that the violation of the right to life was justified as a means to promote compliance with immigration law. Toussaint filed a petition to the United Nations Human Rights Committee (UNHRC) alleging violations of the right to life in article 6 of the International Covenant on Civil and Political Rights (ICCPR) and the right to non-discrimination under article 26. On August 7, 2018 the UNHRC found that Canada had violated Toussaint’s right to life and non-discrimination and that the government must take necessary measures to ensure that no one is denied access to essential health care because of their immigration status. Canada responded to the Committee’s decision on January 29, 2019, stating that it did not agree with the UNHRC’s interpretation of Canada’s obligations under the ICCPR and would not be implementing the required remedy. Toussaint filed a claim in Ontario Superior Court alleging that Canada’s violation of the Charter must now be interpreted in light of the UNHRC Decision. Canada has brought a motion to strike the claim without an evidentiary hearing.

On January 14, 2022, BLAC – together with South Asian Legal Clinic Ontario (SALCO), Chinese Southeast Asian Legal Clinic, and the Colour of Poverty-Colour of Care – was granted intervenor status. The coalition will argue:

• Vulnerable and marginalized groups will be impacted by the outcome of this case
• The court must consider the existence and impact of systemic discrimination and systemic barriers when determining whether to dismiss a novel claim without hearing it on its merits
• The Supreme Court has recognized that customary international law norms form part of the Canadian common law. The court must consider the effect of systemic discrimination and systemic barriers when interpreting such customary international law norms in the context of a party’s rights under the Charter

The motion to strike hearing date took place on June 13, 2022. To read news coverage about the results of the hearing date, click here.