B.C. court upholds public health-care principles, striking down appeal

A Vancouver surgeon and businessman has lost his appeal of a landmark court case that threatened the foundations of the Canadian health-care system.

The B.C. Court of Appeal has dismissed the appeal brought by Dr. Brian Day of the Cambie Surgical Centre, finding that a 2020 judgment from a lower court judge was appropriate in their 142-page ruling. Appeals only address perceived errors in law, not the fundamental facts established by the initial judgment.

Day had argued that British Columbians had the right to pay for private medical treatment, primarily scheduled day surgeries, because waits in the public system were so long, they violated patients’ constitutional rights to life, liberty and the security of the person under Section 7 of the Charter.

The Court of Appeal described Day’s argument as patients suffering “when the public system is broken and has failed to deliver on its promise of timely quality care, unjustly prevents individuals from using their own resources to meet their health-care needs,” and that “permitting parallel private care would act as a safety valve, relieving the pressure on the public system without harming it.”

While they disagreed with lawyers for the attorney general, representing the province, who had argued “the case was really about the financial interests and preferred business model of some physicians and private clinics,” the court of appeal did agree that equitable health care for all was of paramount importance.

“We’re disappointed,” Day told CTV News after the decision.

"This ruling means more Canadians are going to die before we fix the system.”

Day first launched the legal action back in 2009, before it finally made it to the B.C. Supreme Court in 2016.

GOVERNMENT AND ADVOCATES PLEASED

Asked for reaction to the latest development, B.C. Health Minister Adrian Dix said the government is “very pleased of the decision of the court to support Canada's public health-care system.”

The BC Health Coalition, which has denounced the creep of privatized medicine into the public system, also applauded the decision.

"We can go to a hospital or a doctors office and we don’t walk away with a bill for $10,000. That would be in essence what we would start to see if the legislative framework is unravelled," said policy analyst, Andrew Longhurst.

"(Two-tiered medicine) would drain resources – limited health-care professionals, doctors, surgeons, nurses – out of the public system." 

A SLIGHT DISAGREEMENT

While she agreed with her two colleagues that health care should be available to all based on their needs, rather than financial wherewithal, one of the judges essentially argued it’s unfair for patients to suffer because governments have decided to fund and operate the health-care system at current service levels.

“It is more than incommensurate to ask patients to risk irremediable harm and increased risk of death in order to preserve a public health-care system that is intentionally under-designed in order to achieve fiscal sustainability,” wrote justice Lauri Ann Fenlon, who pointed out the truly wealthy already travel to the United States or other countries and pay for swift access to medical services.

She acknowledged there is a “legal dissonance” in finding that a law is constitutional while being contradictory to the principles of fundamental justice.

“The record and findings of the judge amply support his conclusion that a duplicative system would result in longer wait times and, therefore, even poorer care for those who would have no option but the public system,” wrote Fenlon.

“We do not find that the judge overstated the societal benefits of the suppression of private care or the negative effects of striking the provisions on the sustainability and effectiveness of the public system.” 

Day said he’s frustrated that despite recognizing that, the court ultimately upheld a system that has thousands waiting for medically necessary procedures.

"They deferred to government, essentially saying: ‘Yes, patients are suffering and dying but governments have the right to allow that,’" he said.

Day said he will now seek leave to appeal to the Supreme Court of Canada.