BC Court of Appeal Rejects Private Health Care, Says Charter Violation Can Be Overruled

Dr. Brian Day sits for a photograph at his office in Vancouver on Aug. 31, 2016. The Canadian Press/Darryl Dyck

The B.C. Court of Appeal has dismissed an appeal by a Vancouver surgeon who challenged that a lower court erred in judgement in rejecting his claim that patients have the charter right to pay for private medical care when wait times in the public system are too long.

In a ruling on July 15, Chief Justice Robert Bauman and Justice David Harris wrote that while some patient’s rights to security of the person were impeded by the lengthy wait times, which prevented them from timely access to medical treatment, “this deprivation accorded with the principles of fundamental justice.”

The panel of three Appeal Court justices found that the breach can be overruled by Section 1 of the Charter of Rights and Freedoms, which says rights can be limited if it’s shown to be justified in democratic society.

Bauman and Harris concluded that the fundamental purpose of the the Medicare Protection Act (MPA) is to ensure that access to medical care for everyone who’s eligible in the public system is based on need, not a patient’s ability to pay.

The court recognizes that the provincial law is “upheld at the cost of real hardship and suffering to many for whom the public system is failing to provide timely and necessary care,” wrote Justice Lauri Ann Fenlon, who ruled separately that provisions in the act do breach charter rights, but it’s justified under Section 1.

The judges’ ruling pertains to the Cambie Surgeries Corporation vs. British Columbia case, in which Justice John Steeves from the B.C. Supreme Court in September 2020 rejected Dr. Brian Day’s challenge against the MPA, which bans extra billing and private insurance for medically necessary procedures. Day filed a notice of appeal in early 2021.

Given the July 15 ruling, the charter challenge launched by Day in 2009 is expected to reach the Supreme Court of Canada.

Day opened the Cambie Surgery Centre in 1996, saying he wanted to create more operating-room time for surgeons who couldn’t get it in hospitals. After the case was launched, it landed in the B.C. Supreme Court in 2016 with support from four patients as co-plaintiffs.

Specifically, the plaintiffs argued that patients should have the choice to access private medical care at their own expense or by using private insurance when wait times in the public system are too long, which resulted in them suffering prolonged pain, deterioration, or irreparable harm from their conditions.

In other words, not allowing patients the option to do so is a violation of Section 7 of the charter: the right to life, liberty, and security of the person, the plaintiffs claimed.

The plaintiffs sought to overturn the impugned provisions of the MPA that prohibits duplicative private healthcare, and which they say deprive patients’ Section 7 rights in a manner that is not consistent with the principles of fundamental justice.

The attorney-generals of B.C. and Canada, on the other hand, together with several intervenors, argued that the case is of pecuniary interest to the plaintiffs, and that a two-tier system would favour those who can afford to pay privately and upend Canada’s universal system.

During the trial, which lasted 194 days, the lower court judge heard evidence from 17 patients, 36 physicians, 17 health authorities/ministerial agents, and 75 lay witnesses. A total of 590 exhibits and 40 expert reports were admitted.

In his 880 page judgement in September 2020, Steeves reasoned that the impugned provisions did not violate the Section 7 rights as “there is no evidence of any deaths caused by waiting in British Columbia.”

He also wrote that duplicative private health care does not reduce wait times.

“There is expert evidence that wait times would actually increase,” Steeves said. “This would cause further inequitable access to timely care.”

In response to Steeves’s ruling, Day said the decision by the judge will be detrimental to the well-being of patients.

“I think it’s very disappointing. I think the court made a decision that’s harming patients,” Day said at the time.

The Canadian Press contributed to this report.