Appeal court tosses out constitutionality challenge over health care

Court of Queen’s Bench (Wikipedia photo)

OKOTOKS, Alta. – A former Calgary-area dentist who paid for back surgery in Montana rather than wait to have it done in Alberta has lost his challenge of a lower-court ruling that determined he could not sue the government over a delay in getting the procedure done in his own province.

Darcy Allen, who is from Okotoks, Alta., had argued unsuccessfully in Court of Queen’s Bench that the Alberta government’s monopoly on health care was unconstitutional.

Allen’s legal team had sought to have a 2005 Supreme Court of Canada decision expanded to Alberta.

That decision struck down a Quebec law that banned private insurance for medically necessary services.

However, a Court of Queen’s Bench judge ruled Allen had failed to establish a sufficient link between the government’s practices and the harm he suffered.

On Wednesday, the Alberta Court of Appeal ruled against him again, concluding that his “attempt to adjudicate the constitutionality of the Alberta statute in a summary fashion was inappropriate” and the issues raised in the case would require a full trial.

Allen injured his back playing hockey in late 2007 and was told it could take up to eight months to get an MRI scan under public health care.

A scan he had done at a private clinic confirmed disc damage and when pain medication and other treatments didn’t work, the dentist was told he needed surgery.

He was scheduled for an operation in September 2011, but he instead paid $77,000 to have it done in Montana in December 2009.

Allen, who eventually had to give up his practice due to his condition, had originally wanted to sue the province for damages resulting from the time he spent on MRI and surgical wait lists.