On September 10, 2020, the BC Supreme Court handed down its long-awaited decision in Cambie Surgeries Corporation v British Columbia (AG), 2020 BCSC 1310. In a nearly 3,000 paragraph judgement, the court ruled against the plaintiffs, led by private health care advocate, Dr. Brian Day, to find that the impugned provisions of the Medicare Protection Act (the “MPA”) do not violate the section 7 or 15 Charter rights of the plaintiffs or similarly situated individuals. Cambie Surgeries is a landmark case in affirming the constitutional significance of protecting universal public health care.
The plaintiffs argued that provisions of the MPA violate their section 7 right to life, liberty, and security of the person by laws that discouraged their access to private clinics where, by paying more than what was covered by the MPA, they could jump the queue that applied in the public system. While the court found that the impugned laws deprived some patients of their right to security of the person the laws were held to be in accordance with the principles of fundamental justice and in any event justified by s.1of the Charter.
Joseph Arvay QC of Arvay Finlay represented a coalition of individuals and organizations committed to the public medicare system including the BC Health Coalition and Canadian Doctors for Medicare (compendiously described in the decision as the “ Coalition Intervenors”). They argued that “in order to succeed in their s. 7 claim, the plaintiffs must identify the wait time threshold beyond which there is a deprivation of life, liberty or security of the person. The plaintiffs have not defined that threshold and their claim is really for a positive entitlement to private healthcare on demand” (para 1569). Justice Steeves agreed that the plaintiffs’ claim indeed amounted to an argument for a constitutional right to private healthcare on demand, which was rejected.
Although the focus of the plaintiffs’ case was based on what they claimed were unreasonably long wait times in the public system Justice Steeves held:
[16] ….., the expert evidence (including from the plaintiffs’ experts) is that duplicative private healthcare would not decrease wait times in the public system and there is expert evidence that wait times would actually increase). This would cause further inequitable access to timely care.
Justice Steeves also held that there were many rational reasons for discouraging the growth of a duplicative private health care system beyond the most fundamental reason that necessary medical care should be based on need and not on wealth: He said:
[15] …. These include rational bases for concluding that the introduction of duplicative private healthcare would increase demand for public care, reduce the capacity of the public system to offer medical care, increase the public system’s costs, create perverse incentives for physicians, increase the risk of ethical lapses related to conflicts between the private and public practices of physicians, undermine political support for the public system, and exacerbate inequity in access to medically necessary care…. Indeed, it would create a second tier of preferential healthcare where access is contingent on a person’s ability to pay.
Read the full judgement here.