B.C. Appeal Court decision not ‘slam dunk’ for public health care in Canada, legal scholar says

By Ian Burns

Law360 Canada (July 20, 2022, 9:31 AM EDT) -- A doctor has lost another battle in his fight against restrictions on private medical care in British Columbia after the province’s top court ruled the B.C. Medical Protection Act’s ban on doctors providing services both in the public and private systems, as well as a prohibition on the sale of private insurance, passes constitutional muster.

The ruling is the latest step in the legal odyssey of Dr. Brian Day, an orthopedic surgeon who has long argued the restrictions are unconstitutional because they effectively prevent patients in British Columbia from accessing private medical treatment that would otherwise be available to them when the public system cannot provide timely service. But unlike Homer’s Odysseus, Day’s fight has surpassed the 10-year mark — and may continue into the future. 

The three-justice panel of the B.C. Court of Appeal rejected Day’s appeal of a trial decision which upheld the restrictions, ruling the lower court did not make any major factual errors in its mammoth 880-page decision, which was issued in September 2020. Provincial Chief Justice Robert Bauman and Justice David Harris wrote that while the Medical Protection Act (MPA) does deprive some patients of their rights to life and security of the person, it is done in accordance with principles of fundamental justice (Cambie Surgeries Corporation v. British Columbia (Attorney General) 2022 BCCA 245).

“We accept the personal interest British Columbians have in avoiding a lengthy wait when they have resources to avail themselves of private care to avoid an increased risk of death. We do not minimize the seriousness of that issue,” they wrote in the decision, which was issued July 15. “But, we also recognize that the objective of the MPA includes ensuring that individuals without the ability to pay are not thereby deprived of medically necessary care. We repeat the judge’s findings of fact that, in the absence of the impugned provisions, individuals in the public system may wait longer and may not receive the medical care they need.”

Justices Bauman and Harris wrote that if they were to conclude some individuals who can afford to pay are the victims of a law that deprived them of their rights in a manner that is not in accordance with the principles of fundamental justice, the court would grant a veto over public health policy to a single individual at the expense of other individuals who were deprived of their s.7 rights.

“It may be that this veto should be dealt with and dissolved under s.1, but that would not address the underlying issue,” they wrote. “Patients who face increased risk of death because they wait beyond the benchmark but who lack the ability to pay for private care surely also have a s.7 claim that their rights are engaged by state action that has failed to ensure that benchmark wait times are met or who face longer wait times because a private system has been permitted to emerge.”

Justice Lauri Ann Fenlon concurred in the overall result but disagreed with her colleagues, ruling the deprivations caused by the Act are grossly disproportionate and are not saved by principles of fundamental justice but are permissible under s. 1 of the Charter. She wrote the court reached the decision in the case constrained by the record presented at trial and “recognizing that the impugned provisions are upheld at the cost of real hardship and suffering to many for whom the public system is failing to provide timely necessary care.”

“For a court accustomed to protecting Charter rights of the parties who come before it, the conclusion we are compelled to reach is far from a satisfactory one,” she wrote. “The record establishes that thousands of patients every year are waiting beyond medically acceptable wait times for care. Those thousands include many, perhaps even a majority, who could afford private insurance and private care if the impugned provisions did not effectively prevent a private system from emerging.”

Even without private insurance many people would pay for basic surgeries such as hip and knee replacements, Justice Fenlon wrote.

“It is this broad range of British Columbians of relatively ordinary means who are being denied a remedy by the application of s. 1 — the truly wealthy will simply cross the border to avail themselves of the private care available in the United States,” she wrote.

In a statement, B.C. Health Minister Adrian Dix said the province was “extremely pleased” with the decision.

“This ruling emphasizes the importance of our strong public health-care system, which is a cornerstone of our Canadian identity,” he said. “The purpose of the Medicare Protection Act is to have a publicly managed health-care system for British Columbia in which access to necessary medical care is based on need and not an individual’s ability to pay.”

The Canadian Medical Association (CMA) echoed Dix’s praise of the decision, saying Canadians expect and deserve timely access to health care when they need it, no matter where they live in the country or where they access care.

“[The case] has illustrated once again the ongoing challenges the health care system has been facing, issues that the CMA and other health organizations and professionals have been raising for many years,” CMA president Katharine Smart said. “The health care system is in crisis. Five million Canadians do not have primary care providers. We routinely hear of emergency departments closing across Canada because of staff shortages. Surgeries are backlogged across the country. As a result, patients are suffering.”

But the praise of the decision was not universal. In a statement, the Montreal Economic Institute (MEI) said there is “absolutely no justification for maintaining a government monopoly on the provision of medical care.”

“It’s important to remember that Canada is the odd man out among industrialized countries in preventing the purchase of duplicate private insurance in order to obtain timely care," said MEI senior public policy analyst Krystle Wittevrongel. “The next steps will be crucial, since the Cambie Surgeries Corporation could appeal the decision, but even if they ultimately prevail, the provincial government could severely restrict the scope of the ruling.”

Lorian Hardcastle, University of Calgary

Lorian Hardcastle, University of Calgary

University of Calgary professor Lorian Hardcastle said it would be “difficult to argue” that Canada’s health-care system doesn’t cause some patients issues with security of the person and potentially their life.

“But it is not surprising the trial judge, when looking at all that evidence from other jurisdictions and Canada about private finance, came to the conclusion it wasn’t arbitrary or disproportionate to limit private care in the way B.C. did,” she said. “And the Court of Appeal is of course limited in terms of its ability to disagree on the facts, and it was such a fact-based inquiry on what the effects of private health care are the majority here really didn’t have a ton of room to disagree unless the trial judge had made major legal errors — and the majority was largely satisfied with the trial judge’s decision.”

But Hardcastle noted the decision is not a “slam dunk” victory for public health care in Canada.

“I think that if Justice Fenlon felt somewhat differently about the role of the courts or being constrained by the factual findings of the trial judge, I think she could have found differently,” she said. “And if you had another panel of judges with another judge who would be inclined to agree with her, then the case could very easily could have had a different outcome. So, hopefully this decision sends a message to policymakers around the wait times issue, which has been a persistent problem in Canada and a difficult one to fix, should be an area where they continue to make progress.”

Trudo Lemmens, professor and Scholl Chair in Health Law and Policy at the University of Toronto, said the Supreme Court in recent cases has restricted the ease by which governments could invoke the principles of fundamental justice to justify restrictions on individual rights like life, liberty and security of the person.

“And the court in the past has rarely accepted that if something was not justified under s. 7 and under the principles of fundamental justice, it could still be justified under s. 1,” he said. “So, maybe this is an occasion, if this goes up to the Supreme Court, to clarify what the interaction is between s. 7 and s. 1 of the Charter.”

The Supreme Court has never recognized a positive right to health care in Canada, said Lemmens.

“And even if they do take it on and confirm the appeal decision it doesn’t mean they recognize that positive right, but it does mean they can clarify the importance of taking into consideration the social good in allowing government to make certain decisions which restrict individual rights,” he said. “Unfortunately, the government didn’t appeal the Truchon decision to see if courts should recognize or pay deference to governments in designing complex systems to protect certain groups from harm.”

Counsel for Day did not respond to a request for comment.

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