British Columbia’s Supreme Court dismissed a decade-long legal challenge seeking to lift restrictions on private healthcare alternatives in the face of long wait times.

The case, Cambie Surgeries Corporation v. British Columbia, was first filed by Dr. Brain Day in 2009 alongside a number of his patients and it made it to trial in the BC Supreme Court in 2016. 

Dr. Day is a longtime orthopedic surgeon who runs Vancouver’s private Cambie Surgery Centre.

Dr. Day opened the centre in 1996 to allow surgeons to access operating room time when it wasn’t available in public hospitals.

Justice John Steeves released the 800-page long-ruling on Thursday afternoon, deciding against Dr. Day’s and the other plaintiff’s arguments.

The Cambie Surgery Centre filed a constitutional challenge against the British Columbia government in 2009, arguing a number of provisions of the Medicare Protection Act violate the Charter rights of patients.

In particular, the action sought to strike provisions of the act that ban BC doctors from working in both public and private systems, as well as the ban on obtaining health insurance for services covered by the provincial healthcare plan.

“I have found that the impugned provisions do not deprive the right to life or liberty of the patient plaintiffs or similarly situated individuals,” wrote Justice Steeves.

“Specifically, the impugned provisions are not arbitrary, overbroad or grossly disproportionate. There is a rational connection between the effects of the impugned provisions and the objectives of preserving and ensuring the sustainability of the universal public healthcare system and ensuring access to necessary medical services is based on need and not the ability to pay.”

The plaintiffs include British Columbians who say their lives have been negatively affected by BC’s ban on accessing private care.

Dr. Day has maintained that the Canadian Charter of Rights and Freedoms guarantees Canadians the right to access private healthcare if the public system is burdened by long wait times.

The four-year trial wrapped in February. Despite the significance of this decision, the case is almost certainly headed to the Supreme Court of Canada.

The federal Supreme Court ruled in the 2005 Chaoulli case that Quebec residents were owed access to healthcare outside the government system, but this case was decided based on Quebec’s Charter of Rights and Freedoms rather than the federal constitution, so it was never implemented outside of Quebec.

Dr. Day’s challenge targeted certain portions of B.C’s Medicare Protection Act including prohibitions against patients using their own money to access private care. 

The ruling could have widespread implications for Canada’s public healthcare system.

Medicare proponents have opposed Cambie’s case as they believe increased choice for patients weakens the public healthcare system.

“This case threatens health care for everyone in Canada,” said a statement by the BC Health Coalition. 

Critics have accused Dr. Day of trying to create an opportunity for physicians to earn more money through a two-tier healthcare system which would privilege those who can afford more efficient medical attention. 

2020 BCSC 1310 Cambie Surge… by Andrew Lawton

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