Question Period Note: Decision in the appeal of cambie surgeries corp v BC (attorney general)

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• On July 15, 2022, a three-judge panel (Chief Justice Bauman, Justice Harris, and Justice Fenlon) of the British Columbia Court of Appeal (BCCA), released its decision unanimously upholding the September 10, 2020 decision of the Supreme Court of BC in Cambie Surgeries Corporation et al. v. British Columbia (Attorney General).
• The Government of Canada welcomes the British Columbia Court of Appeal’s decision, which validates the fundamental principle of Canada’s health care system – access to medically necessary health services should be based on medical need, and not on the ability or willingness to pay.
• Given the significance of this case, the federal government joined the proceedings to support the Government of British Columbia in its defence of universally accessible health care, which values equity and fairness over profit and preferential access to required care.
• The Government of Canada will continue to work with British Columbia to vigorously defend Canada’s publicly funded health care system.
• Canada’s universally accessible health care system ensures that every Canadian who requires medical or hospital care is able to receive it without having to worry about how to pay for it.

Launched in 2009, this case involves a constitutional challenge to provisions of British
Columbia’s Medicare Protection Act (MPA) that prohibit patient charges (i.e. extra-billing and
user charges, as defined in the Canada Health Act), the purchase of private insurance for services publicly insured under BC’s Medical Services Plan (i.e., duplicative private insurance), and physician dual practice (i.e., when a physician who is enrolled in the public plan provides insured health care services in the public system at no cost to the patient, as well as on a privately paid for profit basis).

The plaintiffs/appellants 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 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.

On September 10, 2020, Justice Steeves of the Supreme Court of British Columbia released his decision in the proceedings, which dismissed the constitutional challenge in its entirety. While the Court agreed that long waits for care may increase the risk of harm to some patients, it concluded that the provisions were reasonable and justified by the greater objective of safeguarding the sustainability and integrity of BC’s publicly funded health system, in which access to care is based on need and not on the ability to pay.

The decision was immediately appealed to the BC Court of Appeal (BCCA), and the hearing took place June 14-18, 2021. On July 15, 2022, the BCCA dismissed the appeal, upholding the lower court decision.

As the BCCA decision is expected to be appealed to the Supreme Court of Canada, a final outcome in this case will not be known until the appeals process is complete.

In addition, during the course of the trial and appeal proceedings in the lower courts, the plaintiffs have been granted a series of injunctions that have prevented the BC government from fully enforcing provisions (e.g., large fines) to deter providers from charging patients for insured services. However, the last injunction expired on September 30, 2021, and given the BCCA decision, it is very unlikely that a new injunction will be granted. As such, there are no longer any legal impediments in place to impede the full enforcement of BC’s provisions.

While the Canada Health Act is 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 objectives of the CHA (and all PT health insurance legislation), that access to insured health services should be based on need and not on the ability to pay.

• This decision reaffirms the Supreme Court of BC’s decision in support of BC’s ban on patient charges and the purchase of duplicative private insurance for services publicly insured under the BC Medical Services Plan, as well as BC’s de facto prohibition on physician dual practice.
• The three justices held that BC’s prohibitions deprive some patients of their rights to life and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms (Charter), but diverged in their analyses of the principles of fundamental justice and whether the deprivation amounted to a breach of s. 7 rights.
• The Chief Justice and Justice Harris found that the deprivation of some patients’ rights was in accordance with the principles of fundamental justice and there was no breach of s. 7, while Justice Fenlon did not. She found that the deprivation of patient rights was grossly disproportionate to the objective of the legislation, in breach of s. 7. However, Justice Fenlon went on to find that this breach was justified under s. 1 of the Charter. The Chief Justice and Justice Harris noted that if their finding on s. 7 was incorrect, they would adopt Justice Fenlon’s analysis and uphold the legislation under s. 1 of the Charter.
• Given the significance of this case, the appellants will likely appeal this decision to the Supreme Court of Canada (SCC), and have until September 29, 2022 to do so.
• While the Canada Health Act is not under direct challenge, Canada will continue to advocate for the principles of universally accessible publicly financed health care, and will continue to work closely with BC on any future appeal.