BC Lawsuit Has Potential to Dismantle Canada’s Publicly Funded Health Care

Dr. Brian Day, medical director of the Cambie Surgery Centre, at his office in Vancouver on Aug. 31, 2016. Day says his legal challenge is about patients' access to affordable treatment, while his opponents accuse him of trying to gut the core of Canada's medical system. (The Canadian Press/Darryl Dyck)

A pivotal lawsuit, currently in its second week of hearing at the Supreme Court of British Columbia, could potentially dismantle what Canadians have come to regard as a quintessential element of life—a health-care system that is accessible to all, regardless of financial status.

The plaintiffs in the case, led by Brian Day, a Vancouver doctor and co-owner of the Cambie Surgery Centre, a private, for-profit clinic, are challenging the B.C. government’s ban on people buying private insurance for necessary medical services already covered by medicare.

In what University of Ottawa law professor Colleen Flood has described as one of the biggest constitutional challenges ever, Day’s stance is that the long wait times inherent in the current system violates the charter rights of patients.

Last week in court, a lawyer for Cambie Surgery Centre extolled the benefits of a public-private system, arguing that such a change would help rein in rising health-care costs by taking the pressure off the public system, resulting in shorter wait times and freed-up resources.

The province gave its opening statement on Tuesday, Sept. 13, followed on Wednesday by opening remarks from various interveners.

Counsel for the interveners said the legal changes proposed by the surgery centre will make health care less accessible and more expensive for most people.

Adam Lynes Ford, a campaigner with the BC Health Coalition, one of the interveners in the case, said in an interview that a public-private system would come with its own set of problems.

“We are worried that many Canadians who can’t afford health care would have to wait even longer for service, and that it is negating the fundamental principle of equity. It would also divert resources into the private sector,” he said.

Ford emphasized that it is difficult to overstate the seriousness of the case, adding that the rules in the B.C. health-care system that Day and his cohorts are seeking to strike down are the same in other provinces and territories.

“This will have a domino effect,” he said. “This is striking at the heart of the public health-care system that Canadians are rightly proud of.”

Other interveners supporting the defendants are Canadian Doctors for Medicare and two individual patients and doctors.

If the plaintiff wins and B.C. sets a precedent, it will open the door for other jurisdictions to follow.

— Dr. Monika Dutt, Canadian Doctors for Medicare

Dr. Monika Dutt, a family doctor and public health specialist from Sidney, Nova Scotia, who chairs Canadian Doctors for Medicare, said the plaintiffs’ goal is to give those who can afford to pay the opportunity to move ahead in the wait list and get treated before those who can’t.

“It threatens the very basis of our health-care system, which is all about equal access to all for medical treatment,” she said.

As for the long wait times, especially for non-emergency procedures such as hip or knee replacement, Dutt said the system is not perfect, but that solutions can be found within it.

“Creating a second tier is not going to improve matters,” she said.

She added that the trial, which is expected to last six months, is likely to go to the Supreme Court of Canada, regardless of whether the ruling is in the plaintiffs’ or defendants’ favour.

“If the plaintiff wins and B.C. sets a precedent, it will open the door for other jurisdictions to follow,” she warned.

Susan Korah is a freelance journalist based in Ottawa. She has a Master of Journalism degree from Carleton University, and writes on Canadian and international politics as well as travel and lifestyle.

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