Fight for Private Health Care Back to Political Arena After Legal Defeat, Doctor Behind the Case Says

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

After losing his legal battle to ensure the right to private health care in B.C., Dr. Brian Day says it’s now up to legislators to bring change.

The Supreme Court of Canada (SCC) announced it would not hear the case brought forward by the Vancouver orthopedic surgeon and patient plaintiffs who had suffered due to long wait lists in the publicly funded system.

Day’s legal challenge, first launched in 2009, argued that B.C.’s Medicare Protection Act (MPA) was unconstitutional in barring doctors from billing the provincial government for services rendered under the public system while also earning income from private clinics. He also contested its ban prohibiting doctors from billing patients or their insurance companies for services already covered under the public system.

“I’m actually ashamed of the Supreme Court of Canada for not wishing to hear this,” Day told The Epoch Times.

“It’s a very sad reflection on Canada. It’s very important to reiterate that there is no country in the world, not Cuba, not China, not Russia, not Afghanistan, not the Taliban, that outlaws private health insurance. Only in Canada, outside of Quebec. It’s bizarre.”

Day, co-founder of the Cambie Surgery Centre in Vancouver, said “we did what we could do,” and now that his legal fight is over, his cause needs a new champion in the political arena.

“I would just be there to support lobbying and political action, but I’m not going to stand for political office or anything like that,” he said.

“It’s in the hands of the politicians again now. And I think that there are a bunch of Canadians who get sick and they realize this has to change.”

Challenge

In 2020, 11 years after Day launched his constitutional challenge, the B.C. Supreme Court upheld the MPA following a four-year trial, a decision reaffirmed by the B.C. Court of Appeal in June 2022.

A similar challenge years earlier by a Quebec doctor and patient to Canada’s highest court produced the opposite outcome for privatized health care in that province.

The SCC ruled 4–3 in 2005 that Quebec’s ban on private health care went against the province’s Charter of Human Rights and Freedoms given the unreasonably long wait times to receive health care. Judges were split, however, over whether the issue also violates Canada’s charter. Quebec is the only province with its own charter.

Day says the SCC’s refusal to hear his case means Quebecers are left with rights other Canadians don’t have. He says many of his court opponents were treated at the Cambie Surgery Centre, just as judges, prisoners, workers’ compensation claimants, and people from outside B.C. can continue to do.

“It’s bizarre. We live in a bizarre country, and to say the U.S. Supreme Court has become politicized—it’s nothing compared [to ours]. The Canadian Supreme Court is more politicized.”

In a written statement, B.C. Health Minister Adrian Dix affirmed the SCC decision.

“Today’s decision affirms our ongoing efforts to preserve and uphold our public health-care system, and confirms the legal arguments heard at the B.C. Supreme Court and the B.C. Court of Appeal,” Dix said.

“It sends a strong message that our nation’s highest court supports the principles of universal health care where access to medical care is determined by a patient’s needs, not their ability to pay their way to the front of the line.”

Day said the status quo means many people have no way to do anything but wait in line, just as his five patient plaintiffs did.

“Those patients represented ordinary people suffering under the health system, a young teenage boy paralyzed for life because they waited an unacceptable time in the health system, cancer patients dying after not having access.”

Day, a past president of the Canadian Medical Association, says the situation in Canada is so unusual, he has been invited abroad to talk about it.

“I was invited to go to Budapest and speak to an international health conference. I gave the opening address. Afterwards, five delegates from Beijing, China, came up to me and said, ‘No Chinese government would ever dare to outlaw private health care. There would be 100 million people in the streets protesting,'” he said.

“That’s what we’re facing here. This is authoritarian government by definition. Canadians don’t realize it.”