Supreme Court of Canada should toss private clinic’s case against B.C. Medicare

Public health care advocates are watching developments closely as the Supreme Court of Canada considers a private corporation’s request to appeal its failed constitutional case against the British Columbia Medicare Protection Act.

Last week, the B.C. Attorney General urged the Supreme Court of Canada to dismiss Cambie Surgeries Corporation’s application for leave to appeal a ruling by B.C. Courts, saying, “The present case raises no legal issue of national or public importance, and that leave to appeal should be denied [emphasis in original].”

Cambie Surgeries launched a case against the B.C. Medicare Protection Act arguing it unfairly denies patients the right to timely care. In September 2020, the B.C. Supreme Court’s Justice John J. Steeves ruled against the private, for-profit corporation.

“The expert evidence (including from the plaintiffs’ experts) is that duplicative private healthcare would not decrease wait times in the public system and there is expert evidence that wait times would actually increase (paras. 2308‑2349). This would cause further inequitable access to timely care,” said Justice Steeve’s judgement, contradicting Cambie’s arguments.

• Read “BC Court of Appeal dismisses challenge to Medicare Protection Act” by Pat Van Horne, published on July 20, 2022

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Cambie Surgeries appealed, arguing Justice Steeves’ had made critical errors of fact in denying its constitutional challenge. But in July, 2022, the B.C. Court of Appeal upheld Steeves’ judgement.

Undeterred by the court’s decision, Dr. Brian Day, the owner of Cambie Surgeries Corporation, seems to believe that the current crisis in the hospital sector could shift opinion in his favour of a two-tier system.

He recently used the pages of the Globe and Mail to argue that the terrible situation plaguing hospitals warrants access to options outside the public system if limits on patient wait times are exceeded. “If that time is exceeded, the government must fund care elsewhere, even if that involves funding private care or travel to another province or country,” he wrote.

The B.C. courts looked at the evidence thoroughly and concluded that an increased role for private, for-profit corporations like Cambie Surgeries will only make wait times longer by drawing health care workers away from public hospitals to private clinics. Even worse, the ensuing disparity of access will affect disadvantaged and marginalized communities much more that wealthier and privileged sectors of society.

In its submission to the Supreme Court of Canada, the B.C. Government argued, “The result would be a two-tier health care system where those who have the ability to access private treatment would receive preferential treatment over those who cannot, irrespective of medical need [emphasis in original].”

Public health care advocates are gearing up for Round 2 of the fight against Cambie’s push for more private, for-profit health care. Canadian Doctors for Medicare, the B.C. Nurses Union, the British Columbia Friends of Medicare Society, and others intervened in the case with support from many individuals and organizations including the Canadian Health Coalition.

It is anticipated that should the Supreme Court of Canada grant Cambie Surgeries Corporation leave to appeal, then public health care groups will similarly organize themselves to defend the public system. A response from the Supreme Court of Canada is expected early in the new year.