Up in smoke, what role should litigation play in funding Canada's health care.

Canadians place importance on the provision of universal health care and value their current scheme for the fact that distribution of services is based upon need rather than fault or income. However, to provide this level of service provincial and federal governments, of all political stripes, face a delicate balance of three constraints; cost of health care, cost of other income maintenance schemes such as pensions, and electoral demands for reduced taxes. One product of the interplay of these forces is renewed government interest in enforcing health care cost recovery mechanisms through litigation. In this article I argue such a movement is a retrograde step. Litigation is a good way to make determinations of fault and assign responsibility for wrongdoing. However, such a development is at odds with the organizing principles of our health care. Litigation threatens to undermine those principles by reifying fault as a mechanism for allocating health resources and in effect transferring health funding away from public onto private insurers. In addition, as a source for health funding, litigation incurs significant transaction costs — the cost of litigation — to effect such transfer. Yet, the prospect of litigation funding significant parts of the health care system is becoming increasingly real now that most provinces have enacted class action legislation, or other specifically drafted statutes designed to aid cost recovery actions.