Background
Vincent Jonckeau was diagnosed in summer 2021 with primary aldosteronism (Conn’s syndrome), an endocrine disorder causing fatigue, dizziness, vertigo, and mental fog. His BC surgeon required him to first undergo adrenal venous sampling (AVS), but waitlists at two BC hospitals stretched to nine months or more — and were further delayed by the COVID-19 pandemic. As his health deteriorated, Jonckeau consulted a Florida physician who advised that AVS was unnecessary and that surgery could proceed immediately. His BC surgeon refused to operate without AVS, so in April 2022 Jonckeau paid out of pocket for the MRI and adrenal surgery in Florida.
In August 2023 Jonckeau sought reimbursement from BC’s Medical Services Plan (MSP). MSP required a specialist’s approval form, but the BC surgeon he contacted did not respond. Jonckeau never formally applied for prior approval or completed the reimbursement process under either the Medicare Protection Act (MPA) or the Hospital Insurance Act (HIA). Instead, in March 2024 he filed a civil claim alleging that BC’s statutory reimbursement scheme — and the actions and omissions of the Province, his physician, and the hospitals — unjustifiably infringed his rights to life, liberty, and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms.
The Province applied to strike the amended notice of civil claim. On July 15, 2025, the BC Supreme Court granted the application and struck the claim without leave to amend, holding that the impugned provisions imposed limits on a government benefit rather than depriving Jonckeau of a constitutional right, and that no special circumstances supporting a positive obligation had been pleaded. Jonckeau appealed, arguing the case was about process and structural constitutional defects, not merely funding.
The Court’s Holding
The Court of Appeal (Brundrett J.A., Fleming and Gomery JJ.A. concurring) unanimously dismissed the appeal. The court affirmed that s. 7 of the Charter protects against state deprivations of life, liberty, and security of the person; it does not impose a positive obligation on government to provide financial benefits, even ones that might enhance those interests. The impugned statutory provisions — ss. 24 of the HIA, 6.1 and 6.2 of the Hospital Insurance Act Regulations, s. 29 of the MPA, and s. 35 of the Medical and Health Care Services Regulation — establish a voluntary, conditional reimbursement scheme for out-of-province care. They do not prohibit anyone from obtaining foreign treatment; they merely define the prerequisites for public funding of it.
The court rejected Jonckeau’s argument that comparative cases from Ontario, Alberta, and Saskatchewan were inapposite because those provinces offered adjudicative pathways. In each case cited, the court found no s. 7 deprivation because the state had not impeded access to care; it had simply declined to extend a benefit it was not constitutionally compelled to provide. The existence or absence of procedural safeguards was irrelevant to that constitutional conclusion. The court also rejected the contention that physician non-response and legislative silence amounted to a “structural deprivation” engaging s. 7, noting that Jonckeau never formally invoked the reimbursement process and thus gave no government actor an opportunity to refuse him.
While acknowledging the Gosselin v. Québec (Attorney General), 2002 SCC 84, reservation that a positive obligation under s. 7 might arise in special circumstances, the court held that no such circumstances were pleaded here. The pleadings were further deficient in failing to allege that the Province was responsible for the waitlists, that the appellant had sought prior approval, or that he had been formally refused a refund under either scheme.
Key Takeaways
- Section 7 of the Charter does not require governments to fund out-of-country or out-of-province medical treatment; failing to provide a financial health-care benefit is not a constitutional “deprivation” of life, liberty, or security of the person.
- A claim that a government reimbursement scheme imposes a positive obligation must plead special circumstances — merely alleging inadequacy of the benefit program or a physician’s failure to facilitate it is insufficient to engage s. 7.
- A claimant who never formally invokes the statutory process cannot argue that legislative silence or physician non-response constitutes a state-imposed structural deprivation; there must be government action or refusal before Charter scrutiny can attach.
- Out-of-province authority applying the same constitutional principle (Flora, Black, Yashcheshen) remains persuasive in BC even where the procedural architecture of each province’s scheme differs, because the core s. 7 analysis turns on deprivation versus benefit, not on procedural design.
Why It Matters
This decision reinforces a consistent line of Canadian appellate authority holding that publicly funded health insurance schemes are benefit-conferring programs, not constitutional obligations. Patients who obtain care abroad — whether due to wait times, clinical disagreement, or personal choice — face a high bar in challenging denial of reimbursement under the Charter: courts will not treat funding shortfalls or bureaucratic gaps as state deprivations of s. 7 rights absent pleaded facts showing truly exceptional circumstances. For health law practitioners, the case confirms that Gosselin‘s positive-obligation reservation remains narrow and that the burden of pleading those special circumstances is real and must be discharged with specificity.
The decision also clarifies the limits of creative pleading strategies that reframe funding disputes as procedural or structural constitutional defects. Characterizing a reimbursement gap as a “void in the process” or a “structural constitutional defect” does not convert a positive-obligation claim into a negative-rights claim cognizable under s. 7, at least where the statutory process was never actually engaged and where no government actor took an adverse action against the claimant.