10/01/2014 03:58 EDT | Updated 12/01/2014 05:59 EST

Rushed Canada Refugee Health Care Rehaul Would Create Chaos: Feds


OTTAWA - The health care system serving thousands of refugee claimants will be thrown into chaos next month if there's a rush to create a new program, the federal government says.

But the lawyer representing the refugees who took the government to court over the issue says the government had plenty of time to devise a plan.

Now all sides are being forced to scramble in the face of a Nov. 4 deadline for the government to either create a new, charter-compliant system of funding refugee health care or return to the one in place before 2012.

Justice Anne Mactavish of the Federal Court ruled in July that the existing interim federal health program, which restricts how much the government will pay for refugee claimants' health care, amounted to cruel and unusual treatment.

The ruling came two years after the Conservative government implemented sweeping changes to the program, which had been in place since the 1950s.

The government argued that refugee claimants were getting better care than most Canadians and program costs were ballooning as refugees arrived specifically to take advantage of health care benefits.

Advocates and claimants were caught off guard by the change, which they argued put the health of untold numbers of refugee claimants at risk as they could no longer afford treatments such as prenatal care and diabetes medication.

They went to court, arguing the changes violated the charter. They won and the government was given four months to change the program again or go back to the old one.

With a month left to go, the federal government filed its appeal this week and with it, a request for a stay of the decision, arguing for more time.

"The order of Justice Mactavish does not provide any guidance as to what form of interim policy would be constitutionally compliant," Craig Shankar, who oversaw the program for the Immigration Department, said in an affidavit.

"The government must presumably implement a new policy which requires strategic review and cabinet approval. Once approved, this new policy, whatever it may be, would represent the second substantive change to the program in two years. If the government is successful on appeal, there is the potential for a third major change in the program."

Negotiating new contracts and breaking old ones at significant cost, getting regulations passed, even software upgrades and the time required to communicate with provinces and territories are stumbling blocks to coming up with a new system in time, he said.

Training staff to process files would take at least a month on its own.

"Should changes be implemented Nov. 4, 2014, the training process will likely be incomplete, potentially resulting in eligible clients being without IFHP certificates or being given incorrect IFHP coverage," said Shankar.

"Clients without certificates or without the correct coverage will not have access to covered services."

Lorne Waldman, the lawyer who took the case to Federal Court on behalf of refugee claimants and advocacy groups, wondered why the government waited until the last minute.

"If this was going to create chaos, why didn't they move forward quickly, so that there could be a determination on all of the issues in a timely fashion and not a determination at the last possible minute?" he asked in an interview.

The reason the judge imposed such a tight deadline was because of the urgency of people's health needs, he said.

"The government chose to wait three months before they served us with the appeal papers and so it's putting us all in an extremely difficult position as we try to respond effectively and in a fair manner and give the court sufficient time to adjudicate this," he said.

"So I'm obviously very concerned about the delays."

— With files from Maria Babbage in Toronto