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A cancer patient will be allowed to argue that being forced to pay for a lifesaving liver transplant overseas was a violation of his constitutional rights because to deny him would be a "miscarriage of justice," a judge has ruled.

Mr. Justice James Carnwath of the Ontario Divisional Court ruled that Adolfo Flora could make the constitutional argument that his rights were infringed when he had to choose between dying or facing the crushing financial burden of obtaining treatment in England.

"If Mr. Flora is refused permission to amend his appeal, I see a certain miscarriage of justice and a possible one," Judge Carnwath wrote in a seven-page decision released yesterday. ". . . To refuse Mr. Flora the opportunity to make such an argument would, I find, possibly result in a miscarriage of justice."

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The retired schoolteacher's case is the first in Canada to apply the Charter of Rights and Freedoms directly to a right to health care since Quebec physician Jacques Chaoulli successfully argued that a prohibition of private health insurance jeopardizes the well-being of those who desperately require medical treatment.

Mr. Flora, 56, of Toronto, is making his argument using the section of the Charter that guarantees the right to life, liberty and security of the person, the same one Dr. Chaoulli used before the Supreme Court of Canada. But unlike the Quebec case, which focused on government bans on buying private insurance, the heart of Mr. Flora's case is the burden of trying to obtain life-saving medical services.

Mr. Flora called yesterday's decision a "very nice Christmas present.

"The only thing we can say is that my family and I are really, really pleased with the outcome and grateful for the court's consideration on this matter," he said in a telephone interview.

Canadian Medical Association spokeswoman Carole Lavigne said yesterday that the judge's ruling "appeared to be a precedent-setting challenge."

And Dr. Chaoulli, whose successful argument before the Supreme Court produced a seismic shift in constitutional law, said yesterday that Mr. Flora should win his case.

"No democratic government in the world should be allowed to put a citizen in the situation where they have no choice but to suffer or die," Dr. Chaoulli said in a telephone interview from Montreal. "Whenever governments act in such a way that the citizen is suffering as a result of it, that action is unconstitutional as far as I'm concerned."

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Certainly, that is the way Mr. Flora's constitutional lawyer, Mark Freiman, felt when he told Judge Carnwath more than a week ago that had his client not been able to obtain a liver transplant in England almost six years ago, using his brother as a living donor, he "undoubtedly would have died."

Indeed, Mr. Flora, a retired chemistry and biology teacher, was told by Toronto doctors six years ago that his liver cancer was so advanced, he would be "lucky" to live another six to eight months.

He was not deemed suitable for a liver transplant from a deceased donor because he was said to be at "high risk of a poor outcome," and doctors could not risk the loss of a liver in the current environment of organ shortages, according to Leslie Lily, medical director of liver transplantation at Toronto General Hospital.

Mr. Flora then asked whether he could use part of his brother's liver for a live-donor transplant. But at the time, in January of 2000, Ontario had no programs performing such living transplants between adults.

Faced with certain death if he stayed in Canada, Mr. Flora depleted his retirement savings and used the proceeds from the sale of his mother's home to pay for the transplant surgery in England, with his brother as a live donor. The costs amounted to about $477,000.

When he went to England in March of 2000, not only did doctors there find him suitable for a living-donor transplant, but if Mr. Flora had been British he would have qualified for one from a deceased donor, according to Roger Williams, the liver specialist at Cromwell Hospital in London. That is because Mr. Flora's tumours were smaller than initially thought.

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When he returned from England, Mr. Flora appealed his case to Ontario's Health Services Appeal and Review Board, which hears from patients trying to recoup costs for out-of-country treatment. However, in a decision in March of 2002, a majority of that board refused to order the Ontario government to reimburse him. Board vice-chairman Judith Hinchman disagreed.

With this new ruling, Mr. Flora's case will head to Ontario Divisional Court, where he will fight on two fronts: In addition to the constitutional argument, he is appealing the board's decision, saying it confused what is medically necessary -- a liver transplant -- with what was medically available, because of an organ shortage.

Mr. Freiman said in a telephone interview that he was "pleased the case has passed this hurdle.

"I'm looking forward to the opportunity to vindicate Mr. Flora's rights before a full panel of the Divisional Court."

No date has yet been set for the appeal.

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