Appeal planned after B.C. court rules against private health care constitutional challenge

VANCOUVER — In a lengthy decision released Thursday, a B.C. Supreme Court justice ruled against a constitutional challenge launched by a doctor who argued patients should be able to pay for faster treatment and tests instead of staying on wait lists.

The ruling followed a legal battle spanning over a decade, and it’s not over yet.

The challenge was mounted by orthopedic surgeon and private clinic operator Dr. Brian Day, who heads the Cambie Surgeries Corp. He legally opened a clinic in Vancouver in 1996, but the facility has been operating in violation of unproclaimed provisions of the provincial Medicare Protection Act since 2003.

Day first launched legal action against the province in 2009 over sections of the act which prohibit doctors from billing the government for work they do in the public system, while also earning money from private clinics, along with billing patients and their insurance companies.

The case went to B.C. Supreme Court in 2016. Lawyers for Day had argued long waits in the health-care system are causing harm to patient’s physical and mental health, and people have a right to pay for faster treatment if they have to wait too long in the public system.

Opponents have argued a victory for Day could mean a move towards an American-style health care system with multiple insurance companies, and said the case threatens health care for everyone in Canada.

In the 880-page ruling, Justice John Steeves found some patients in need of elective surgeries do not receive care in a timely manner, which increases the risk of their condition worsening, and can prolong pain and suffering.

However, Steeves ruled the sections of the Medicare Act being challenged are intended to protect the universal public health care system “that ensures access to necessary medical care is based on need, and not on an individual’s ability to pay.”

Health Minister Adrian Dix praised the court’s decision.

“Obviously this judgement is a very good day for public health care in B.C.,” he said. “We’re going to continue to do everything we can to reduce wait times, to catch up for those surgeries that were delayed as a result of the COVID-19 pandemic.”

Dr. Day told CTV News he is disappointed by the decision, and intends to appeal.

“We will seek a stay of the ruling on an urgent basis,” Dr. Day said. “I think the court has made a decision that’s harmful to patients.”

Day said politics and ideology is the driving force behind Canada “outlawing” an alternative for patients who are forced to remain on wait lists instead.

“People are literally suffering and dying on wait lists. This is unacceptable. I think the courts have to step in,” Dr. Day said. “I just take the position that the government does not own the body of any patient, and a patient should be entitled to the freedom to look after themselves when the government is failing to look after them as promised.”

The Canadian Health Coalition’s national director of policy and advocacy Melanie Benard said the court’s decision reaffirms the need to protect the public health-care system.

“This was a 10-year legal battle, trying to dismantle that system, and to allow for-profit health care,” Benard said. “And so, this decision really affirms that patients should always come before profits in Canada.”

The B.C. Anesthesiologists Society was one of the intervenors in the trial, though it did not take a position on the central legal question.

The group’s CEO, Dr. Roland Orfaly, said it were pleased to hear the courts acknowledge some patients are still waiting too long.

The society is now calling on the province to commit to patient wait time guarantees, and it’s hoping the government will consult with front-line workers on how to improve waits for patients.

“Just recently I had a day of surgeries where I had three patients…the first had waited 352 days, the next one had waited 463 days, and the last one waited 420 days. That’s just not acceptable,” he said. “What we’re looking for are the real solutions that are going to address the real experiences of patients and not just numbers that are put together for a press release.”

The legal challenge is widely expected to eventually end up at the Supreme Court of Canada.


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