What is this case about?

This case is about British Columbians’ rights to timely healthcare. Currently, in British Columbia, as in most Canadian provinces, access to medical treatment is rationed by the government using wait lists to limit the overall cost of healthcare spending. At the same time, the province imposes restrictions on access to healthcare outside the public monopoly system. In some cases, this can result in patients waiting many months or even years for medically necessary treatment, during which they suffer acute pain, mental anguish, and financial hardships from their inability to work. As the Supreme Court held in the 2005 case of Chaoulli v. Quebec, if a government does not or cannot provide timely medical services to everyone through the public healthcare system, then it unjustifiably violates the rights to life and security of the person to legally prohibit patients from accessing private healthcare within the province.

Cambie Surgeries Corp. (the Cambie Clinic) and four surviving patient plaintiffs are challenging British Columbia’s prohibitions against: (1) paying for medically-necessary health services using private insurance; and (2) doctors working both in the public health system and in private clinics. A victory would mean that the Cambie Clinic and other clinics like it can continue to provide the medical treatment they have been providing for almost two decades. It will also make it even possible for more patients to access the care provided at these clinics by allowing patients to pay for medically necessary treatments using their current disability insurance or other private insurance.

Ironically, some patients are already able to use private insurance to access treatment by doctors who also practice in the public system. These include prisoners, members of the Canadian Armed Forces, and persons covered WorkSafeBC, the provincial workers compensation plan. But, if you are covered by private disability insurance, you cannot take advantage of this exception. So, for example, if you injure your knee while working, you may be able to get surgery at a private clinic and thus return to work faster. But, if you had injured the same knee outside of work hours, you would have to wait for treatment under the public system, even though the need to get employees back to work quickly applies equally in both cases. This distinction is arbitrary and discriminates on the basis of age and disability, which is why the plaintiffs are also challenging this differential treatment as a violation of the equal treatment guarantee by section 15 of the Charter.

If Cambie and the patient plaintiffs lose, the private clinics that have served BC patients since the late 1990s will have to cease operating, because they rely on private surgeries for their financial viability.

How did this case start?

Private health clinics have operated in BC since the late 1990s, with the acquiescence of successive NDP and Liberal governments. There is no evidence that the provision of private surgeries in these clinics, including the Cambie Clinic, by physicians enrolled in the public system has resulted in harm to the public health system. In fact, the province has previously acknowledged that these clinics relieve pressure on the public system, reducing wait times.As then-Premier Ujjal Dosanjh put in in 2000:

One shouldn’t underestimate how difficult it’s going to be to deal with the issue. It would do us no good to shut down [Dr. Brian] Day’s [Cambie] clinic if we cannot provide those services elsewhere.

In 2009, the Nurse’s Union brought an application to court to compel the Government of BC to enforce the Medicare Protection Act by prohibiting doctors enrolled in the public system from providing private surgeries, including at the Cambie Clinic. Cambie and the patient plaintiffs responded to that application by bringing this constitutional challenge to the restrictions in the Medicare Protection Act on private surgeries.

Who are the plaintiffs?

The provider plaintiffs are:

Cambie Surgeries Corporation Specialist Referral Clinic (Vancouver Inc.)

The patient plaintiffs are:

  • Mandy Martens
  • Krystiana Corrado
  • Chris Chiavatti
  • Walid Khalfallah
  • Erma Krahn (deceased)

What is the Defendants’ Position?

The Defendants do not seem to deny that long wait times exist or that health care is rationed, but they say that this is justified in order to provide equal health care to all Canadians and that, if access to private health care were available, it would not only be inequitable, it would hurt the public system. The Defendants also claim that, if the patient plaintiffs were harmed by lengthy delays, it was the fault of their physicians for not making appropriate referrals, and not the fault of the overall system.

Who will be testifying?

The Plaintiffs’ witnesses will include patients who have suffered from not being able to access timely surgeries, physicians who have experienced the problems of lack of timely access to health care in BC, and experts on healthcare in Canada and in comparable countries. In all, we intend to offer evidence from more than 50 witnesses. The Defendants currently intend to call approximately 35 witnesses.

Are you seeking changes to the Canada Health Act?

No. While some healthcare experts are critical of elements of the Canada Health Act, nothing the plaintiffs are seeking in this case would touch that federal statute. This case only challenges restrictions in BC’s Medicare Protection Act that are not required by the Canada Health Act. The Canada Health Act guarantees “free at the point of service” access to public healthcare across Canada by penalizing provinces financially if they allow for extra billing of patients or user fees (including co-pays) to access treatment. It does not penalize provinces that allow patients to obtain private health services, or that allow doctors to work in both the public and outside it, or that allow persons to obtain private insurance to cover private health services.

If you win, will this lead to the “Americanization” of Canadian health care?

No. Like Canada’s public monopoly system, but for different reasons, the American health care system has long been an anomaly among developed countries. In every other developed western democracy, public and private healthcare co-exist within a system of universal coverage. While the specifics vary, as a general rule our peer countries provide broader universal coverage of healthcare services, including not only hospital and doctor care but dental care and prescription drugs, which are not covered in Canada, with a minority of the population opting for private provision of these service paid for through private insurance.

They also do better than Canada in most measures of healthcare quality and efficiency. For example, a 2014 report from the Commonwealth Fund, a respected source of comparative international health care research, ranked Canada 10th of 11 developed countries surveyed in overall quality of our healthcare system, behind only the United States. On the specific criterion of timeliness of access, we ranked dead last.

To repeat, however, this case would not affect the principles underlying the Canada Health Act, including the commitment to universal healthcare, so would not result in an “Americanization” of our system. It would be more accurate to say it could result in a “Europeanization” of our system, bringing Canada into line with our peer countries.

Will access to private insurance and private clinics hurt public healthcare in Canada?

No. Some provinces in Canada already allow doctors to work both in the public system and outside it (including Newfoundland and Labrador) and four provinces do not prohibit private insurance (Saskatchewan, New Brunswick, Nova Scotia, and Newfoundland and Labrador). A recent C.D. Howe Institute report (Rethinking Canada’s Unbalanced Mix of Public and Private Healthcare: Insights from Abroad, Feb. 2015), which compared the Canadian system with those in the United Kingdom, Australia, the Netherlands, and Switzerland, found no evidence that a parallel or complementary private healthcare system has a negative effect on the quality or availability of care in the universal public healthcare system. This is consistent with the results of the Commonwealth Fund study cited above.

To the contrary, the C.D. Howe report observed that diverting some patients outside the public system would leave more resources and space for the remaining patients. Further, as “there is evidence that many healthcare resources in Canada, including labour, are underutilized”, a parallel private market “might enable us to make use of idle resources.” It also noted that provinces would remain free to regulate physicians’ conditions of work, including requiring them to work a certain number of hours per month in the public system before they could “moonlight” in the private system, as the United Kingdom does. This would mean no reduction in doctors’ hours for public healthcare.

A majority of the justices of the Supreme Court in the 2005 case of Chaoulli v. Quebec reached the same conclusion as the C.D. Howe report. After surveying the evidence of healthcare in several other developed countries, they concluded that “[t]he experience of these countries suggests that there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system” and “the evidence on the experience of other western democracies refutes the government’s theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care.

The problem of heath care rationing and lengthening wait times is not going away and cannot be solved simply by spending more money in the current system. BC’s healthcare spending is already approaching 50% of the overall provincial budget, and with a growing and aging population and increasing costs for new treatments, something will have to give. According to the C.D. Howe institute report, in order to just to keep wait times steady in the coming decade, BC will have to spend less on other government services or significantly increase taxes, and this still wouldn’t remedy the current violations of patients’ Charter rights.

Didn’t the Supreme Court of Canada decide this issue in the 2005 case of Chaoulli v. Quebec?

Yes and no. A majority of the seven-member panel of the Supreme Court of Canada found that Quebec’s prohibition on private health insurance violated suffering patients’ rights. Three justices, including Chief Justice Beverley McLachlin, found that this prohibition violated the right to life and the right to security of the person found in section 7 of the Charter. The fourth judge in the majority did not reach the question of whether the Quebec system violated the federal Charter and, instead, found that it violated the similar provisions of Quebec’s provincial Charter of Human Rights and Freedoms. For this reason, the holding only applied within Quebec. This case seeks to take the reasoning of that majority, including the clear finding of a federal Charter violation by three justices, and apply it to the even more compelling and robust record of evidence in this case.

What other Supreme Court decisions are relevant to this litigation?

While Plaintiffs will be relying on numerous precedents, recent Supreme Court decisions on the scope and meaning of the rights to life, liberty, and security of the person in section 7 of the Charter are particularly relevant.

For example, in Canada v. PHS Community Services Society (2011) (the “Insite” case), the Court held that preventing persons from accessing “lifesaving and health-protecting services” violates the right to security of the person. It further held that “[w]here a law creates a risk to health by preventing access to health care, a deprivation of the right to security of the person is made out … Where the law creates a risk not just to the health but also to the lives of the claimants, the deprivation is even clearer.”

And in Carter v. Canada (2015) (the physician-assisted death case), the Court remarked on the “tenacious relevance in our legal system of the principle that competent individuals are – and should be – free to make decisions about their bodily integrity.” In that case, the Court held that the “right to ‘decide one’s own fate’” and the freedom to “direct the course of one’s own medical care” are protected by section 7’s rights to liberty and security of the person and observed that when “state action imposes death or an increased risk of death on a person, either directly or indirectly,” it will violate the right to life.

What is the current status of this case?

The trial court decision was released on September 11, 2020. The judge found that there was a violation of security of the person for individuals who are suffering from degenerative or deteriorating conditions and waiting for surgery in the government system beyond the medically acceptable wait times. However, the judge also found that the patients had not demonstrated that their suffering was not in accordance with the “principles of fundamental justice”.

We obviously disagree with this trial court decision, and from the beginning of this fight for patient rights, we fully expected this case to involve multiple levels of court. In October of 2020, an injunction was filed asking the B.C. Court of Appeal to prevent the province from closing down vital surgical and diagnostic clinics that have been helping BC patients for years. This application marks the beginning of the appeal process for the patient plaintiffs. It’s likely that this case will eventually make its way to the Supreme Court of Canada. And we remain eager to see the Supreme Court clarify our section 7 rights, and the right of all Canadians to seek out healthcare.

Would a victory in this case apply across Canada?

Not directly, but by strong implication. Each province manages its own health care system differently within the framework provided by the Canada Health Act. While this case challenges BC’s Medicare Protection Act and is based on facts and evidence applicable to wait times and healthcare rationing in BC, if the court finds a violation of the rights to life, liberty, security of the person in section 7 of the Charter or of the equality rights in section 15 of the Charter in this case, then it stands to reason that comparable evidence in other provinces would establish the same violations of Charter rights. The case, therefore, will have significant implications for how other provinces regulate access to health care across Canada.

Why is this case so important?

There are few things more important to Canadians than their health. A victory in this case would mean fewer people suffering unnecessary physical pain and mental anguish while waiting for rationed treatment on long wait lists in Canada’s provincial healthcare systems.

Specifically, it would ensure that the Cambie Clinic and similar clinics remain open. These clinics have been providing necessary treatment for thousands of patients in BC for almost two decades, with no evidence of any harm to the universal public healthcare system and with plenty of evidence of benefits to individual patient health and economic savings for the province. If the Plaintiffs lose, these private clinics that have served BC patients since the late 1990s will have to cease operating, because they rely on private surgeries for their financial viability, and British Columbians will lose the option of private treatment close to home.

Getting people on their feet and back to work quickly is also important to our economy, which is why BC’s workers compensation program, WorksafeBC, allows patients to be treated quickly and privately, saving the province approximately $200 million a year. If the government succeeds in shutting down the Cambie Clinic and other private clinics, the BC government will face an annual fiscal hit of the same amount. By contrast, if more Canadians could use their existing disability insurance or other private health insurance to pay for private treatments, the savings would be even greater, on top of the unnecessary suffering that would be avoided.

From a constitutional perspective, this case seeks to uphold the important constitutional principle described by the Supreme Court in Chaoulli, viz.: if a government does not or cannot provide timely medical services to everyone through the public healthcare system, then it cannot legally prohibit patients from accessing private healthcare within the province.

What is the Canadian Constitution Foundation (CCF)?

The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation. The CCF litigates cases and interventions with in-house litigation expertise as well as by partnering with experienced private counsel, as it has in this case with lead counsel Peter Gall, Q.C. of Gall Legge Grant & Munroe LLP.

How do I support this case?

To support this important litigation please donate at yourhealthcantwait.ca/donate. By designating your donation to “Healthcare and patient rights (Cambie case)” under the appropriate drop-down menu, your donation will go directly to funding this legal challenge.