This decade-long legal challenge over the right to expand the provision of private health care was decided in favour of the existing public health care system in a ruling released last week. The case raised issues about the constitutionality of restricting the ability of British Columbia residents to pay privately for medically necessary health care services as an alternative to, and in the face of, long wait times in the public health care system.
Cambie Surgeries Corporation v. British Columbia was first filed in 2009. The case made its way to trial in the British Columbia Supreme Court beginning in 2016. On Thursday, September 10, 2020 the presiding judge, the Honourable Justice John Steeves, released his 880-page long decision, which ruled against the Plaintiffs' arguments.
The trial has been referred to in the media colloquially as "the Brian Day case", referring to one of the Plaintiffs, Dr. Brian Day, an Orthopaedic Surgeon and the CEO of the private Vancouver clinic, Cambie Surgery Centre. Dr. Day and the other Plaintiffs initiated a legal challenge against the province's ban on allowing residents to pay privately for medically necessary services that are already covered by the public health care system. They argued it is unconstitutional to prevent residents from accessing private medically necessary health care, including surgeries, when timely care cannot be accessed in the public system. Further, the Plaintiffs submitted that long wait times for treatment cause real and substantial harm to patients, and that enabling a parallel private health care system would create a much-needed safety valve.
The Plaintiffs argued that sections 14, 17, 18 and 45 of BC's Medicare Protection Act (the "Act") are unconstitutional. They claimed that these provisions have the effect of prohibiting BC residents from accessing private medically necessary health care services and that this ban violates the rights of BC residents under section 7 and section 15 of the Canadian Charter of Rights and Freedoms (the "Charter") Further, the Plaintiffs argued these infringements cannot be saved under section 1 of the Charter.
In outline, section 14 of the Act provides the mechanism for payment to physicians for services rendered to BC residents. Section 17 and section 18 set limits on the prices physicians can charge the provincial plan for providing those services. Section 45 prohibits the sale of private health insurance for medically necessary services covered under the provincial plan. The Plaintiffs argued that the ban created by these sections violates the Charter-protected rights under section 7 and section 15.
With regard to the section 7 Charter claim, the Plaintiffs argued the impugned provisions violate the right to life, liberty, and security of the person as the wait times in the public system are clinically unreasonable, and that by failing to provide timely medical services to all residents, the Act causes real and substantial harm to the physical and mental health of BC residents. Moreover, the Plaintiffs submitted that the deprivation created by these provisions is arbitrary and unnecessary and the harm caused is exacerbated by the restrictions on access to private health care alternatives.
Additionally, the Plaintiffs argued that these impugned provisions violate section 15 of the Charter, by conferring a benefit or imposing a burden that draws a discriminatory distinction based on an enumerated or analogous ground. They stated that the exceptions in the Act constitute unequal treatment under the law, as some BC residents can obtain private health care if they qualify for the exemption. For example, the Plaintiffs highlighted an exception that applies to those eligible under BC's Workers Compensation Act. The Plaintiffs maintained that it is arbitrary and unfair to expedite and provide more timely access to care in private clinics only to workers injured on the job, as opposed to anyone who has suffered an accident, regardless of occupational status. In this way, the impugned provisions in the Act impose an unequal burden linked to protected grounds of discrimination, particularly age and disability. Further, the Plaintiffs proposed a novel interest-based theory, arguing that the impugned provisions treat people unequally on the basis of the interest in one's bodily integrity, personal health and well-being, and the need for access to timely medical care. They said that this "reflects an interest of fundamental importance that ought to be recognized as unlawful discrimination" under section 15.
Lastly, the Plaintiffs argued that the impugned provisions cannot be saved under section 1 of the Charter as a reasonable and justified limit on one's section 7 and section 15 rights.
The Province's Position
The Province argued that the impugned provisions should not be struck down as unconstitutional and pointed to federal legislation for its reasoning. It argued that the provisions in question ensure that the primary objective of the Canada Health Act (the "CHA") is upheld, as the province must facilitate continuous and "reasonable access to health care services without financial or other barriers". Further, the Province claimed that the prohibition against a parallel private insurance plan is necessary to ensure the public health care system does not subsidize an "unethical" private system accessible only to some. For example, the Province argued that if physicians were permitted to work in both the public and private health care systems, there would be incentives and self-interest for them to maintain long wait lists in the public system so as to encourage patients to seek treatment from them privately. Additionally, the care available in the private system would be focused on profitable areas with low risk patients, which would in turn leave the public system to address the complex less profitable cases.
The Province further argued that if a parallel private health care system in BC was allowed to coexist with the public system and charge patients for medically necessary services, ensuring an adequate supply of physicians in the public system would become more difficult due to competition over the same pool of professionals. Hence, a private health care system would likely increase wait times in the public system. It would also create an equity issue, as individuals with lower socio-economic status who could not afford private care or who would not be eligible for private insurance would suffer due to a diversion of human resources to the private system. Accordingly, the Province argued that the prohibitions on private health care are necessary to preserve the integrity of a universal public health care system, one where all BC residents have access to medically necessary insured services on uniform terms and conditions, free of financial or other barriers.
Justice Steeves noted that challenging a law as inconsistent with section 7 of the Charter requires a two-stage analysis. First, the claimant must establish that the impugned provisions deprive a person of a Charter-protected right. Second, once it has been established that there has been a deprivation, the person making the claim must also demonstrate that the deprivation is not in accordance with the principles of fundamental justice.
Justice Steeves ruled that the Plaintiffs were only successful at the first stage of the section 7 analysis. He agreed that unreasonable wait times could engage the right to security of the person for some patients. In coming to this conclusion, Justice Steeves relied on expert evidence which showed that waiting beyond the assigned time frame (or wait list benchmark) for surgery can increase a patient's risk of deterioration and reduce surgical outcomes. He held that the wait list is clinically significant to one's health and wellbeing and noted "in these situations denying patients the ability to avoid unreasonable wait times violates their right to security of the person (paras. 1931-1942)". However, Justice Steeves also held that the expert evidence proved that "timely and high quality care is provided to patients with urgent and emergent conditions where there is risk to life or limb, and there is no evidence of any deaths caused by waiting in British Columbia (paras. 1748-1763)". Consequently, he concluded that the right to life was not engaged, nor was the liberty interest engaged, because the provisions being challenged did not deny patients the freedom to accept or reject medical treatment.
Turning to the second stage of the section 7 analysis, Justice Steeves held that the Plaintiffs had failed to demonstrate that the deprivation of the relevant section 7 right (security of person) was contrary to the principles of fundamental justice - specifically the principles against arbitrariness, overbreadth, and gross disproportionality. Justice Steeves reasoned that the combined effect of the impugned provisions is not arbitrary, as their effect is to preserve the primary objective of the CHA: ensuring that access to necessary medical care is based on need and not on an individual's ability to pay. Likewise, he found that there was a rational connection between the purpose and harm (or effect) of the impugned provisions, as the impugned provisions suppressed and discouraged the emergence of a parallel and duplicative health care system which would create a second tier of preferential health care for necessary medical services available to BC residents who could afford to pay privately. Importantly, Justice Steeves reiterated what he felt were "valid concerns" put forward by the Province's experts, that if a private health care system was enabled, wait times would not decrease in the public system but would actually increase, causing further inequitable access to timely care for those who could not afford the private alternative. (para. 2664) Moreover, Justice Steeves concluded that the impugned provisions are not overbroad, as they do not capture conduct unrelated to their purpose; nor are they disproportionate, as their effect is not out of sync with their purpose. Accordingly, the Plaintiffs' claim under section 7 was dismissed for failing to demonstrate that the right to security of person under the Charter had been deprived contrary to the principles of fundamental justice.
In coming to his conclusion on section 7, Justice Steeves held that the well-known Supreme Court of Canada decision Chaoulli v. Québec (Attorney General)  was not determinative of the issue. Among the reasons for this conclusion were that it was not binding in BC (the majority decision having been based on the Québec Charter), and the lack of a clear majority of the Supreme Court at this second stage of the section 7 analysis made it impossible to infer a clear ratio that could be applied to the case before him.
Justice Steeves also dismissed the Plaintiffs' claim under section 15. He did not agree that the impugned provisions confer a benefit or impose a burden that draws a discriminatory distinction based on an enumerated or analogous ground. Further, he reasoned, there was no evidence to support the Plaintiffs' suggestion that the provisions have a disproportionate adverse impact on the elderly, the very young, or the disabled. He declined to consider the Plaintiffs' novel "interest-based" theory, on the grounds that it departed from well-established Supreme Court of Canada jurisprudence that "the analysis of discrimination ought to occur within the context of traditional enumerated and analogous grounds." He added that "as a conceptual and practical matter, I do not see how a court can determine when a law is discriminatory because it infringes on the 'fundamental personal interests' of a group without resort to some other distinguishable feature of the group." (paras. 2861-2869)
In finding no breach of either section 7 or section 15 of the Charter, Justice Steeves concluded that it was not necessary to consider whether the impugned provisions are justified under section 1 of the Charter. However, in light of the unique nature and legal issues of the case, he decided that it was appropriate to do so. He wrote that "in the context of complex social programs such as healthcare where there is a need to balance conflicting interests and claims over limited resources, a high degree of deference is owed to the government under s. 1 (paras. 2885-2893, 2898, 2922, 2931, 2936)". Further, he found that there was a rational connection between deterring the emergence of a competitive duplicative private health care system and the pressing and substantial objectives of preserving and ensuring the sustainability of a universal public health care which ensures access to necessary medical services based on need and not the ability to pay. Moreover, he reiterated that the evidence supported the Province's claim that the impugned provisions are minimally impairing, and their effects are proportionate to their objectives. Thus, he summarized "even if I had found a violation of ss. 7 or 15 of the Charter, I would nonetheless have concluded the impugned provisions are a reasonable limit on those rights and are demonstrably justified in a free and democratic society under s. 1".
This battle will likely continue. The Plaintiffs are almost certain to appeal the decision to the British Columbia Court of Appeal. It would not be surprising if the unsuccessful party at the Court of Appeal sought leave to appeal that Court's decision to the Supreme Court of Canada. Developments in this seminal case will be important to follow, as it has wide-spread implications for the future of Canada's public health care system.
 2020 BCSC 1310
 S.C. 1984, c. 6, s. 3.
 2005 SCC 35.