EGALE CANADA v ALBERTA

An Action was commenced by Originating Application to challenge amendments to the Health Professions Act, RSA 2000, c H-7. The amendments prohibited health care professionals from providing certain treatments to minors, including sex reassignment surgeries and certain hormone therapies (the “Ban”). The Applicants initially advanced claims under Sections 7, 12, and 15 of the Charter.

The Applicants previously obtained an Interlocutory Injunction suspending portions of the Ban. After Alberta invoked Section 33 of the Charter, the Injunction was set aside. The Applicants then applied pursuant to Rule 3.65 to amend their Originating Application, alleging that the Ban was criminal in nature and ultra vires provincial jurisdiction.

Justice Kuntz confirmed that Rule 3.65 gives the Court broad discretion to permit amendments, and that amendments are presumptively allowed unless they are hopeless. An amendment is hopeless if it discloses no reasonable claim, or when it is clear there is no triable issue.

Kuntz J. noted that an Amendment Application was not a Summary Judgment Application. In the normal course, determining whether an amendment is hopeless does not involve an inquiry into the merits because pleadings define the scope of record production and questioning, and summary adjudication usually occurs after discovery. However, where the record on an Amendment Application is extensive, the Court may make a more detailed assessment of the evidence and apply the more stringent evidentiary standard used on summary determinations.

Justice Kuntz held that this was an appropriate case to apply that standard. The record from the earlier Injunction Application included 34 Affidavits, nine expert reports, and 38 cross-examination transcripts. The proceeding was also brought by Originating Application, so discovery was not the ordinary rule and was unlikely to alter the assessment of the proposed claim.

Applying that standard, Justice Kuntz determined that the evidence established that the Ban’s dominant purpose was to address the health and safety of minors by restricting access to treatments the government considered harmful or uncertain. Kuntz J. further held that Alberta’s invocation of Section 33 of the Charter did not make the proposed amendment necessary or viable. The ultra vires claim had to stand on its own and could not succeed on the existing record.

The Application to amend the Originating Application was dismissed.