Question Period Note: Decision by the Supreme Court of Canada on the Application for Leave to Appeal in Cambie Surferies Corp V BC (Attorney General)

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• On April 6, 2023, the Supreme Court of Canada decided not to hear an appeal of the BC Court of Appeal (BCCA) decision in Cambie Surgeries Corporation et al v. BC (Attorney General), bringing this case, which was initiated in 2009, to a close. With this decision the BCCA decision in this case stands, upholding British Columbia’s (BC) 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.
KEY MESSAGES
• The Government of Canada fully supports the Supreme Court of Canada’s decision and commends British Columbia for its successful defence of universally accessible health care.
• Canada joined these proceedings to support British Columbia in its defence of our publicly funded health care, which values equity and fairness over profit and preferential access to required care.
• Our government will always defend the values and principles that uphold the Canada Health Act and ensure that everyone, no matter where they live, can get the care they deserve based on their need and not their ability to pay.

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, a three-judge panel (Chief Justice Bauman, Justice Harris, and Justice Fenlon) of the BCCA released its decision unanimously upholding the lower court’s decision. 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.

On September 29, 2022, the Cambie appellants applied to seek leave to appeal the BCCA decision to the Supreme Court of Canada (SCC). Canada filed its response with the SCC on November 25, 2022.
On April 6, 2023, the Supreme Court of Canada dismissed the Cambie appellants request to hear an appeal of the BC Court of Appeal decision, bringing this case to a close.

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 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.

• On April 6, 2023, the Supreme Court of Canada decided not to hear an appeal of the BC Court of Appeal (BCCA) decision in Cambie Surgeries Corporation et al v. BC (Attorney General), bringing this case, which was initiated in 2009, to a close.
• On July 15, 2022, the British Columbia Court of Appeal, released its decision unanimously upholding the September 10, 2020 decision of the Supreme Court of BC, which affirmed the constitutional validity 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.
• While the Canada Health Act was not under direct challenge, Canada joined these proceedings playing a supporting role to BC in defending its legislation (Medicare Protection Act) which reflects the objectives of the CHA (and PT health insurance legislation), that access to insured health services should be based on need and not on the ability to pay.