B.C. Court of Appeal rejects private health care, says Charter breach OK

Dr. Brian Day sits for a photograph at his office in Vancouver on Wednesday, Aug. 31, 2016. THE CANADIAN PRESS/Darryl Dyck

VANCOUVER — The British Columbia Court of Appeal has unanimously upheld a lower court’s dismissal of a Vancouver surgeon’s challenge of the Medicare Protection Act, saying bans on extra-billing and private insurance do not violate the Charter.

The decision upholds the law aimed at ensuring access to medical care in the public system is based on need, not a patient’s ability to pay.

The panel of three Appeal Court justices did find the lower-court judge erred in his analysis of the right to life, saying the provincial act’s provisions do deprive some patients, not only of the right to security of the person, but of the right to life.

However, in their ruling issued Friday, Chief Justice Robert Bauman and Justice David Harris found that breach is in accordance with the principles of fundamental justice.

While the rights to life and security of the person focus on individuals, the two judges said they don’t think the foundations of the health system “can be held hostage to the veto of any one individual who bears adverse consequences.”

Justice Lauri Ann Fenlon separately found that violations of the rights to life and security of the person can be overruled by Section 1 of the Charter, which says rights can be limited when justified in democratic society.

The court recognizes the 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,” she wrote.

The Appeal Court’s reasons show more than 33,000 adult patients in B.C. were waiting for necessary medical care beyond maximum benchmark wait times as of March 2018, including many with severe pain, risk of permanent functional impairment and time-sensitive conditions such as cancer.

B.C. Health Minister Adrian Dix welcomed the decision, saying it emphasizes the importance of public health care, which is “a cornerstone of our Canadian identity.”

Dix said in a statement B.C. has been working hard to increase access to surgeries and clear the backlog of procedures that were postponed due to the pandemic.

The B.C. Nurses’ Union also applauded the court’s decision, calling it a “victory for all patients.”

The union is “pleased the court has upheld our society’s foundational norms which prioritize fairness and favour a needs-based model for the provision of health care.”

Federal Health Minister Jean-Yves Duclos issued a statement saying the ruling validates the belief that any Canadian who requires medically necessary care should be able to receive it based on need, not on the ability or willingness to pay.

Charging patients undermines equity, he said, whether they pay at the point of service or for private insurance.

Martha Jackman, professor of constitutional law at the University of Ottawa, said the ruling is significant.

It “acknowledges that it makes no sense … to say that those who can buy (health care) have greater Charter rights than those who rely on the state,” she said.

Lower courts have repeatedly found the Charter does not guarantee a right to receive publicly funded health care, so the decision means the rights of those who can afford to buy private care do not supersede those who cannot, Jackman said.

However, Friday’s decision is not “an unqualified win for a government that does not want to face any kind of Charter accountability for wait times and other inequities within the single-payer system,” she said in an interview.

Questions remain about how the Charter may be applied when it comes to health care, she said, pointing to existing barriers to accessing abortion in Canada and recent findings from a Senate committee on forced sterilization.

The Supreme Court of Canada ruled in 2005 that Quebec’s limits on private health insurance violated that province’s Charter of Human Rights and Freedoms, noted Jackman, who worked as counsel for the Charter committee on poverty issues and the Canadian Health Coalition, intervenors in the Quebec case.

But the judges were split on the question of whether the restrictions on private care violated the Canadian Charter, with the seventh judge declining to weigh in, leaving a “big legal question mark” outside Quebec, she said.

In an email on Friday, Dr. Brian Day, who launched the B.C. Charter challenge, said “all patients deserve as much protection and should have the same rights under the Charter that Canada’s highest court gave to Quebecers in 2005.”

“If the (Appeal Court) decision stands as is, we truly do have a two-tier system in Canada — one for Quebecers and another for the rest of us,” wrote Day, who 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 a four-year trial, the lower court ruled in September 2020 that their lawyers failed to show patients’ rights are being infringed upon by the provincial act.

Justice John Steeves found expert evidence presented at trial showed duplicating care in a private system would not decrease wait times in the public system.

“There is expert evidence that wait times would actually increase,” he wrote.

“This would cause further inequitable access to timely care.”

In an interview, Day said he disputes evidence presented at trial showing public wait times would increase under a two-tier system.

He called the decision disappointing, though he noted it was “positive” that the Appeal Court found violations to the rights of life and security of the person.

Private insurance is a “safety valve” for patients facing long wait-lists unable to hold anyone accountable when they are forced to wait longer than the government’s own benchmark for receiving a procedure, he said.

“There’s a state monopoly, and the government doesn’t need to be accountable.”

Canadians are forced to accept “unacceptable wait times based on the government criteria of what’s unacceptable,” said Day, adding the government is responsible for severe shortages of doctors and nurses across the country.

Day said he and the other plaintiffs are thinking about their options and may seek to appeal to the Supreme Court of Canada, but “there’s a certain fatigue factor.”

“There’s hardly any point in having a Charter of Rights and Freedoms when you need millions of dollars to fight for those rights,” he said.

This report by The Canadian Press was first published July 15, 2022.

Brenna Owen, The Canadian Press