On Tuesday September 6, 2016, four British Columbians will finally get their day in court. With the support of the Canadian Constitution Foundation, plaintiffs Walid Khalfallah, Mandy Martens, Chris Chaivatta, and Krystiana Corrado are joining Dr. Brian Day’s Cambie Surgeries Corp. (the Cambie Clinic) in a constitutional challenge against the Government of British Columbia for failing to provide them with timely, medically necessary treatment while simultaneously making it illegal for them to access that treatment privately in BC. Lead counsel on the case will be Peter A. Gall, Q.C., of Gall Legge Grant & Monroe LLP.
Canadian Constitution Foundation Executive Director, Howard Anglin, said:
“No one in BC — no child, no parent, no retired person — should be forced to suffer or risk death while waiting for medically-necessary treatment because of government rationing of healthcare. If a province cannot provide timely, medically-necessary healthcare for all its residents, then it must allow doctors and patients to work together to find a solution for their healthcare needs. To do this, the province must allow surgeons who have completed their government-enforced limit on procedures in the public system to also provide their services privately, and it must lift the ban on BC residents paying for medically-necessary treatment using private insurance, so that more people can afford private treatment. As long as the government fails to do this, it continues to violate patients’ constitutional rights, including the fundamental rights to life, liberty, and security of the person — rights that the Supreme Court has repeatedly recognized and upheld.”
BC Law Violates Constitutional Rights to Life, Security of the Person, and Equality
Because healthcare funding is determined by what the province is willing or able to pay in its annual budgets, and not by either the demand for treatment or the availability of resources, patients are left suffering for many months or even years waiting for treatment while operating rooms remain closed and surgeons idle after fulfilling their quotas of procedures. This unnecessary suffering violates the rights to life, liberty, and security of the person guaranteed by section 7 of the Charter of Rights and Freedoms.
It is a problem with a straightforward solution. BC law prohibits doctors enrolled in the public system from providing treatment outside of that system for government-insured, medically-necessary procedures. It also prohibits BC residents from using private insurance to pay for government-insured, medically-necessary treatment. If these two restrictions — neither of which is required by the Canada Health Act — were removed from BC’s Medicare Protection Act, patients currently suffering physical pain, mental anguish, and loss of employment could access faster treatment at clinics like the Cambie Clinic.
Until recently, these clinics have operated with the acquiescence of successive NDP and Liberal governments since 1998. In fact, in 2000 then-Premier Ujjal Dosanjh actually acknowledged the work of the Cambie Clinic, noting it relieved pressure on the public system. It is only under legal pressure from the provincial Nurse’s Union that the current government has been forced to bring legal action to try to close the Cambie Clinic and other private clinics. This constitutional case is a pre-emptive challenge to that legal action.
Interestingly not everyone in BC is forced to languish on waiting lists. BC law exempts from the restrictions described above federal prisoners, RCMP officers, members of the Canadian Armed Forces, some government workers, and workers injured on the job who are covered by WorkSafeBC. These persons are allowed to receive timely medical care at private clinics. For example, the court will hear about the case of a teacher who injured one of his knees on the school playground while working and the other while skiing on a weekend. This teacher was only able to have the knee injured at work repaired in a timely fashion, while he was forced to wait considerably longer for surgery on his other knee. The absurdity of this two-tier system within the current law disproportionately discriminates on the basis of age and disability, and therefore violates the equality provisions of s.15 of the Charter.
Chaoulli v. Quebec (2005)
In the 2005 Chaoulli decision, the Supreme Court of Canada struck down similar prohibitions in Quebec. While that decision only applied in Quebec, it put all provinces including BC on notice that, if they could not provide timely medically necessary services to all of their residents, then they could no longer legally prevent them from accessing private treatment.
As three of the Justices, including the current Chief Justice of Canada, Beverly McLachlin, pithily put it:
“Access to a waiting list is not access to health care.”
