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A Long and Winding Road: Ontario Court Refuses to Strike Charter Claim to Essential Healthcare for Irregular Migrants

September 6, 2022

A two-decade fight against the Federal government, claiming Charter and international human rights to life-saving healthcare for irregular migrants, will be allowed to proceed, the Ontario Superior Court of Justice (Court) has ruled.

In Toussaint v. Canada (Attorney General), 2022 ONSC 4747, Justice Perell dismissed the Attorney General of Canada (AGC)’s motion to strike the plaintiff’s claim on the basis that it was statute-barred, that the issues had been determined (res judicata), and that it disclosed no reasonable cause of action. In doing so, the Court held that the plaintiff’s claim raised a number of complex factual and legal issues that ought to be adjudicated on their merits.

The decision provides important procedural guidance on motions to strike rights-based claims, confirming that the threshold on a motion to strike is “very high” and is a procedural tool that must be used with considerable care. It also affirms the important role of Canadian courts in contributing to the ongoing development of international law.


Ms. Toussaint is a woman of colour who lawfully entered Canada from Grenada in 1999 and had attempted to, but was unsuccessful in, regularizing her status in the following years. Beginning in 2009, Ms. Toussaint’s health began to deteriorate quickly and significantly. She applied for access to public health care under the federal government’s Interim Federal Health Program (IFHP) but was denied coverage by the Minister of Citizenship and Immigration (Minister). Ms. Toussaint applied for judicial review in the Federal Court in 2010, alleging that her Charter rights had been violated. Despite the Federal Court finding that Ms. Toussaint was exposed to a risk to her life and to severe health consequences, her application and subsequent appeals were dismissed.

Having exhausted her domestic remedies, Ms. Toussaint applied to the United Nations Human Rights Committee (UNHRC) which, in 2018, concluded that Canada had violated Ms. Toussaint’s right to life and her equality rights under the International Covenant on Civil and Political Rights (ICCPR). (Although the ICCPR was acceded to and ratified by Canada, it has not been enacted into legislation or incorporated into domestic law.) The UNHRC directed Canada to provide Ms. Toussaint with compensation and to take steps to address its health care legislation to protect similarly-situated individuals. Canada refused to implement the Committee’s views and Ms. Toussaint sued in the Ontario Superior Court of Justice.

The AGC moved to strike out Ms. Toussaint’s action, including her claims that Canada violated her rights under section 7 (right to life, security of the person) and section 15 (equality) of the Charter, and that Canada breached customary international law and principles of domestic administrative law. Ten groups intervened in the motion to strike, including the Canadian Civil Liberties Association.


In his decision, Justice Perell resoundingly rejected Canada’s “land, sea, air, submarine, and celestial procedural attack” against Ms. Toussaint’s pleading, concluding that “it was plain and obvious that the case at bar is not an appropriate case to be determined summarily on a pleadings motion”.

The Court rejected the AGC’s submission that it was plain and obvious Ms. Toussaint’s Charter claims were res judicata, despite having been decided against her in the Federal Court decisions. In doing so, the Court confirmed that there are situations where, rather than being an abuse of process, re-litigation may actually enhance the integrity of the judicial system, such as when fairness dictates that the original result should not be binding in a new context.

The Court noted that changes in circumstances since 2010 might warrant reconsideration of the Federal Courts decisions. Those include changes to the IFHP (including by giving the Minister discretion to provide health care to irregular migrants in exceptional circumstances), the UNHRC decision, and Canada’s refusal to implement that decision. Justice Perell noted there had been fundamental changes to Charter and human rights jurisprudence since 2010, and that Ms. Toussaint’s action raises matters of importance for others in similar situations. Given the context of the case, it would be open to a court to conclude that applying discretionary doctrines such as res judicata and issue estoppel would “work an injustice.”

The Court also found that it is not plain and obvious that Ms. Toussaint’s claims under customary international law, which did not necessarily depend upon the ICCPR, were doomed to fail, re-iterating that insofar as it is not inconsistent with existing domestic laws, customary international law is automatically adopted as part of Canadian law.


The Court’s decision is an important one for rights-claimants. Novel rights claims, which can be factually and legally complex, may also be vulnerable to motions to strike by government. This decision confirms the high bar that moving parties must meet in seeking to strike such claims on a Rule 21 motion, particularly where there have been intervening events and developments in facts or law, and where a case may have impact beyond the individual plaintiff, such that re-litigation may be warranted.

As a result of the Court’s decision, Ms. Toussaint is now permitted to pursue her claims, with the benefit of a full evidentiary record and an appreciation of a new legislative and jurisprudential context.

For more information, please contact:

Alysha Li          +1-416-863-2506
Kaley Pulfer    +1-416-863-2756

or any other member of our Litigation & Dispute Resolution group.

*Blakes lawyers Iris Fischer, Kaley Pulfer and Alysha Li acted on a pro-bono basis for the intervenor, Canadian Civil Liberties Association, in this matter.