News

Canadian Constitution Foundation dismayed by Supreme Court’s refusal to hear Cambie case

The Canadian Constitution Foundation is greatly dismayed by the Supreme Court of Canada’s decision to refuse leave in Cambie Surgeries v. Attorney General.

“The Supreme Court of Canada’s decision to refuse leave in the Cambie matter is a shocking dereliction of the Court’s duty to provide legal clarity across the country”, said Joanna Baron, Executive Director of the CCF. “The Court is to hear cases that raise legal issues of national importance, and given the growing crisis of wait times across Canada as well as the complex and contradictory state of the law, it is inexplicable and stunning that it elected not to hear this challenge. This morning, the Globe and Mail’s editorial board called the issue “literally one of life and death.”

In 2005, a majority of the Supreme Court of Canada in Chaoulli ruled that Quebec’s ban on private health insurance was unconstitutional. A majority ruled that the ban was “not constitutional where the public system fails to deliver reasonable services” and that “life, liberty and security of the person must prevail.”

“That Supreme Court decision, which was ultimately decided under the Quebec Charter, remains good law and allows Quebeckers the right to choose to take their health into their own hands by going outside a failing government system instead of suffering on lengthy waiting lists. It remains unclear why the same reasoning ought not to apply in the rest of Canada under the Charter’s guarantee of life, liberty and security of the person. It is lamentable that the Supreme Court declined to resolve these ambiguities, which directly affect every Canadian”, continued Baron.

In addition to the inequality between Quebec and the rest of Canada, there remains massive inequality between federal public servants, such as judges, who are entitled to federal health insurance and are able to be treated in private healthcare facilities like Cambie, and the rest of Canadians who are forced by government monopolies into dangerous and long waiting times.

The CCF is grateful for the courageous leadership of Dr. Brian Day, who has dedicated fourteen years of his life to the cause of improving the healthcare system for all Canadians, and is currently considering other avenues of litigation to continue his fight for patient choice.

Patients asking for choice in healthcare access are seeking leave to appeal case to Supreme Court of Canada

VANCOUVER: A group of patients and surgical clinics that are challenging the government healthcare monopoly for failing to provide timely access to care have sought leave to appeal the case to the Supreme Court of Canada.
 
The case, Cambie Surgeries Corporation v British Columbia (Attorney General), was brought by a group of private BC surgical centres and by patients who have suffered the consequences of lengthy medical wait times in the government system. Unfortunately for these patients, the three judge panel at the BC Court of Appeal dismissed the appeal. On September 29, the plaintiffs filed an application for leave to appeal to the Supreme Court of Canada.
 
“This case raises issues of national importance, and the BC Court of Appeal’s reasoning on the principles of fundamental justice in this case is inconsistent with the rights guarantees of the Charter,” said CCF Executive Director, Joanna Baron. “This case deserves a final determination by Canada’s highest court, and we at the Canadian Constitution Foundation fully support the patients and clinics in their fight for choice in accessing healthcare.”
 
In the BC Court of Appeal decision, the majority held that the BC law that prevents patients from accessing medical treatment outside the government monopoly system does deprive some patients of their rights to life and security of person. However, the majority found that the prohibitions are in accordance with the principles of fundamental justice.
 
“We know that long wait times for patients worsen medical outcomes, and that patients even die on these government wait lists. We disagree that this bizarre form of social cruelty that traps patients in a dysfunctional government monopoly can be justified by the principles of fundamental justice, and we are optimistic that this error in law will be corrected by the Supreme Court” concluded Baron.
 
The filing of an application for a leave to appeal to the Supreme Court does not guarantee that the Supreme Court will hear the case. The Canadian Constitution Foundation will issue an additional news release once a decision regarding leave has been issued by the Court.
 
The CCF supports the plaintiffs in the Cambie litigation, but is not itself a party to the litigation. More information on the case is available at YourHealthCantWait.ca.

BC Court of Appeal decision and next steps in the case for Healthcare Freedom

Recently, Canadian Justice on The News Forum aired two episodes of the show covering the recent decision at the BC Court of Appeal and the next steps in Canada’s case for healthcare freedom. Canadian Justice is a legal affairs talk show hosted by the CCF’s own Christine Van Geyn.

We highly recommend checking both of these episodes out online using the links below.

Episodes:

The Cambie Appeal & the Government Monopoly Healthcare System
The Cambie Appeal & the Principles of Fundamental Justice

Canada’s Healthcare Crisis and Big Ideas to Solve it

The Canadian healthcare system is in a state of perilous collapse. It’s time to talk seriously about ideas for reform in the 21st century.
 
On October 19th, join a panel of experts at the Albany Club in downtown Toronto who will discuss an upcoming Supreme Court challenge to strike down the nation’s private health care ban, other policy solutions that could improve our system and most importantly – how we finally move forward with reform.
 
The evening will include networking with drinks and hors d’oeuvres, a panel discussion, and Q&A.
 
This event is presented by the Canadian Constitution Foundation and SecondStreet.org.
 
October 19th, 6:00pm – 7:30 pm
Albany Club, Toronto
 
Registration: $150. Tax-deductible receipts provided.
 
Speakers:
 
  • Joanna Baron, Executive Director, Canadian Constitution Foundation
  • Dr. Brian Day, President and CEO, Cambie Surgery Centre
  • Andrew Enns, Executive Vice-President, Leger
  • Tony Clement, former federal Minister of Health
Register

CCF disappointed in BC Court of Appeal Decision in Cambie – looking forward to inevitable Supreme Court Appeal

VANCOUVER: Today the BC Court of Appeal released the long awaited decision in Cambie Surgeries Corporation v British Columbia (Attorney General). The appeal was dismissed with the majority written by Chief Justice Bauman and Justice Harris, and a concurrence by Justice Fenlon.

The majority held that the BC law that prevents patients from accessing medical treatment outside the government monopoly system does deprive some patients of their rights to life and security of person. However, the majority found that the prohibitions are in accordance with the principles of fundamental justice. Justice Fenlon held in a concurrence that the law deprives some patients of their rights to life and security, but that it was not in accordance with the principles of fundamental justice because the deprivations are grossly disproportionate. However, in her opinion that breach is justified under section 1 of the Charter. It is extraordinarily rare for violations of the right to life and security to be justified under s. 1.

“We are disappointed in this decision, and our heart goes out to the patients who have suffered on endless government wait lists while their health deteriorates. We know that long wait times for patients worsen medical outcomes, and that patients even die on these government wait lists. We disagree that this bizarre form of social cruelty that traps patients in a dysfunctional government monopoly can be justified by the principles of fundamental justice,” said CCF Executive Director, Joanna Baron.

“The guiding case here should clearly be the Supreme Court of Canada’s Chaoulli decision from 2005. A case where those advocating for patient choice were ultimately successful at the nation’s highest court after two consecutive losses at the Superior Court and Quebec Court of Appeal. We are optimistic about a similar result in the Cambie case following the inevitable appeal to the Supreme Court,” concluded Baron.

The CCF supports the plaintiffs in the Cambie litigation, but is not itself a party to the litigation. More information on the case is available at YourHealthCantWait.ca.

Further Reading: “When do we admit Canada’s healthcare system just isn’t working?”

The fight for healthcare freedom and choice continues as we wait for a decision from British Columbia’s Court of Appeal.

We expect this decision to arrive anytime now.

Being put on a waiting list is not healthcare, and we need to have a serious conversation about alternative ways of delivering and paying for healthcare in Canada. COVID-19 has exposed the lack of flexibility in our healthcare system of rationed care and low hospital bed capacity. Perhaps one positive from the pandemic can be a wider acknowledgement of this problem supporters of the healthcare freedom case are already acutely aware of.

Further Reading:

Regardless of the outcome at BC’s Court of Appeal, we expect this case to make it all the way to the Supreme Court of Canada. Please consider donating today to help us pay for this case going forward so that all Canadian patients can have more choice and more freedom in seeking healthcare.

“A Bizarre Form of Social Cruelty”: Vancouver Cambie Surgery’s Fight for Better Health Care

In light of the fight for healthcare freedom and choice resuming once again in the courts, we recommend all supporters of this case read Executive Director Joanna Baron’s newest article. Published in C2C journal, the article carefully outlines the fundamental issues behind this landmark case.

We know that this has been a very long wait to see this case progress. Since the case is now finally at the Court of Appeal in BC, the pace will be faster than it was when it was at trial.

As we expect the case to ultimately end up at the Supreme Court of Canada, we continue to accept donations to help us pay for this legal action.

Thank you again for the support.

Donate here.

BC Court of Appeal hearing appeal in Cambie healthcare case this week

The Canadian Constitution Foundation is looking forward to the appeal of the decision in Cambie Surgeries Corporation v British Columbia (Attorney General), being heard this week at the BC Court of Appeal.

“The trial decision contains errors in both fact and law, and we look forward to this week’s appeal,” said CCF Executive Director, Joanna Baron. “The pandemic has underscored the need for innovative thinking in healthcare. With wait lists worsening across Canada it is crucial that patients are able to make choices about their own healthcare needs.”

In the lower court decision, Justice Steeves found that there was a violation of the security of 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, Justice Steeves found that the patients had not demonstrated that their suffering was not in accordance with the principles of fundamental justice.

“It is certainly not in accordance with fundamental justice to leave patients suffering on wait lists when there are existing clinics, that have existed for over 20 years, that could treat them,” continued Baron. “The lower court decision is inconsistent with Chaoulli and with existing Charter law on the right to security of person.”

Read the original release.

Major victory for patient choice as private BC medical clinics granted injunction to remain open

The BC Court of Appeal has granted an injunction that allows Cambie Surgeries Corporation and other private BC clinics to continue to treat patients, as they have done for over 20 years. This means while we await for the appeal for the larger case for greater healthcare freedom and choice next year, patients can continue to access needed care during the ongoing pandemic.

Read the full release here.

BC Government wants to shut down medical clinics mid-pandemic

TORONTO: On November 17 and 18, Cambie Surgeries Corporation will be in court fighting for patients’ right to access non-government medical clinics that have served BC patients for over 20 years.

The BC Court of Appeal will hear the injunction arguments in Cambie Surgeries v Attorney General (BC). Cambie Surgeries Corporation will argue that patients have a right to continue to access private surgical and diagnostic clinics while the larger case on the future of private healthcare is appealed.

“It’s hard to believe that in the middle of a global pandemic, the BC government wants to restrict access to healthcare for ideological reasons,” said CCF Litigation Director, Christine Van Geyn. “There are hundreds of surgeries that have been delayed as a result of COVID-19, and these clinics are vital in tackling the backlog of patients who can’t get care in government hospitals,” continued Van Geyn.

This injunction comes on the heels of the trial decision in Cambie Surgeries v Attorney General (BC). The trial judge in that case held that the BC Medicare Protection Act, which denies patients the right to pay for private surgery or obtain private insurance, violates patients’ section 7 Charter right to security of person. However, the trial judge declined to strike down the law because he held that the denial of this right is in accordance with the principles of fundamental justice.

The trial decision is being appealed, and while the parties litigate, Cambie is seeking the ability to continue to treat patients, something they have already been doing in BC for more than 20 years.

“It is hard to understand how it is fundamentally just to leave pediatric patients to suffer unnecessarily when there is another option. Patients should not be sacrificed on the altar of a failed healthcare ideology, and we are confident in our arguments for the appeal,” continued Van Geyn. “While we await the appeal, we want to make sure patients get the best care available. And that means keeping these non-government clinics open for patients.”

The CCF is a registered charity, independent and non-partisan. We defend the constitutional rights and freedoms of Canadians in the courts of law and public opinion. The CCF is supporting Cambie Surgeries Corporation in their litigation.

The original version of this release can be found here.

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