Question Period Note: DECISION IN CAMBIE SURGERIES CORP V BC (ATTORNEY GENERAL)

• What is the federal government’s position on the Court’s decision?

• Our Government fully welcomes the Court’s decision and commends the Government of BC for its successful defense of universally accessible health care.

• This decision validates Canada’s single-payor public health care system and the fundamental principle that access to medically necessary health services should be based on health need and not on the ability or willingness to pay.

• Patient charges – whether they take the form of charges at the point of service or payment for private insurance – undermine the principles of fairness and equity.

• These values are more important than ever as we continue to respond to the unprecedented challenges presented by the COVID-19 outbreak, and the Government of Canada will continue to defend universally accessible health care for all Canadians.

• On September 10, 2020, Justice Steeves of the Supreme Court of British Columbia released his decision Cambie Surgeries Corp v. BC (Attorney General), which dismissed a constitutional challenge to provisions of British Columbia's Medicare Protection Act and upheld the province’s ban on patient charges and the purchase of private insurance for publicly insured health care services.
• Launched in 2009, the plaintiffs in this case (two private health facilities, founded and co-owned by Dr. Brian Day, and four individual patients who paid privately to obtain publicly insured health care services), argued that in light of long waits for care in BC’s publicly funded system, provisions of the Medicare Protection Act (MPA) that place limits on a patient’s ability to access more timely, privately paid medical care violate section 7 (right to life, liberty and security of person) of the Canadian Charter of Rights and Freedoms (Charter). They also argued that exclusions under the MPA, which allow some BC residents (e.g., Workers’ Compensation claimants) unobstructed access to timely care in the private system, violate section 15 (equality rights) of the Charter. The trial began on September 6, 2016, and after numerous delays concluded on February 28, 2020.
• During the course of the proceedings the plaintiffs were also granted an injunction that prevented the BC government from enforcing new penalty provisions (e.g., large fines) to deter providers from charging patients for insured services. The injunction expired on September 10, 2020, with the release of the decision.
• On September 12, 2020, the plaintiffs filed their notice to appeal the decision to the BC Court of Appeal, in an attempt to overturn Justice Steeves’ decision. Both BC and Canada will participate in the appeal, which will be heard over five days during the week of June 14, 2021. Regardless of the outcome of this appeal (i.e., whether it is successful, in part or in whole, or unsuccessful), it is expected that the decision will ultimately be appealed to the Supreme Court of Canada.
• On October 16, 2020, the plaintiffs also filed a new injunction application (to replace the injunction that expired on September 10, 2020). The new injunction seeks to further delay BC’s enforcement of provisions to deter providers from charging patients for insured services, as well as block BC’s injunctive authority to restrain providers from levying these patient charges. If successful, the injunction would apply to privately paid insured services provided in private surgical clinics, and be in place until the appeal of the Cambie decision has been adjudicated. Canada is not participating in these proceedings but will provide assistance to BC, as required. The injunction hearing will take place on November 17-18, 2020.
• While the Canada Health Act was not under direct challenge in this case, Canada joined these proceedings playing a supporting role to British Columbia in defending the constitutional validity of provisions of the MPA, which reflect the CHA’s objective of ensuring universal access to insured health services based on need and not on the ability to pay.
• Given the significance of the plaintiffs’ challenges to Canadian Medicare, Canada will continue to advocate for the principles of universally accessible publicly financed health care, including support for BC for the duration of any appeals process.

SYNOPSIS
• On September 10, 2020, the Supreme Court of British Columbia released its decision in Cambie Surgeries Corp v. BC (Attorney General), which dismissed a constitutional challenge to provisions of British Columbia's Medicare Protection Act and upheld the province’s ban on patient charges and the purchase of private insurance for publicly insured health care services.