In his novel Bleak House, Charles Dickens satirized the crippling inefficiency of the old Court of Chancery using the case of Jarndyce v. Jarndyce, an inheritance dispute that dragged on so long that the value of the original estate had been consumed by the costs of litigation.
Jarndyce v. Jarndyce may have been fiction, but it was based on at least two real life cases that had each lasted more than a decade.
Now, the B.C. Government seems determined that the Cambie Clinic case — the constitutional challenge by four patients and Dr. Brian Day’s Cambie Clinic to provincial restrictions on healthcare choice — will join the ranks of those historic examples of waste and delay.
The essence of the constitutional challenge, which resumed this week in the B.C. Supreme Court after a Christmas break, is simple: if the government is unable to provide patients with access to medical treatment within a reasonable time, then it cannot prohibit those suffering on wait lists from taking control of their own healthcare and arranging for treatment privately.
It is a position rooted in the Supreme Court of Canada’s 2005 decision in Chaoulli v. Quebec and more recent precedents of that Court holding that the Charter right to life, liberty, and security protects the right to “control over one’s bodily integrity free from state interference.”
Although the case began in 2009, the plaintiffs had to endure seven years of legal maneuvering by Government lawyers before the trial finally began last September. At that time, it was scheduled for 24 weeks — already a long and expensive road to justice — but it quickly became clear that the Government’s pretrial tactics would carry over into the courtroom.
The original schedule would have seen the trial conclude sometime this Spring; now Counsel are talking about the need for a summer schedule.
This is beyond infuriating. Time that should be spent presenting evidence is being wasted arguing over whether renowned experts can testify about their areas of expertise or whether doctors are qualified to testify about the effects of wait lists on their own patients’ conditions.
Journalist Ian Mulgrew, who has followed the case closely, is probably correct in thinking that the Government lawyers believe that delaying the case is in their interest. In his view, “[t]he strategy of the government defendants has become evident — to drag it out, knowing that appeals of [Judge] Steeves’s ultimate ruling will take years and any negative findings then diminished as involving an ‘historic’ situation.”
There may be a second, even more cynical motive. The Government has virtually unlimited resources, while the plaintiffs’ constitutional challenge is being financed by donations from supportive Canadians.
There are days when the plaintiffs’ lawyers are outnumbered 10 to 1 in the courtroom. While the Government spends millions of dollars defending its abysmal record of harmful wait lists, they are bleeding the plaintiffs’ financial resources dry.
This is not simply unjust; it is a profound threat to the ability of ordinary Canadians to hold the Government accountable for violations of our Charter rights.
The Government of British Columbia is, in effect, sending a message to citizens: don’t bother standing up for your rights; we will drown you in procedure and then bury you with costs.
Who in their right mind would launch a constitutional challenge that could take seven years before it even gets to trial and then cost millions of dollars once it finally does?
No one seriously disputes either the existence of long wait lists or their harmful effects. Perhaps knowing they cannot defend the indefensible, Government lawyers instead seem determined to exclude as much evidence about them as possible.
Meanwhile, thousands of British Columbians continue to suffer acute pain, psychological trauma, and financial loss as they wait for months or years for medical treatment. If these delays continue, someone will die while the Government lawyers dawdle.
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