September 6, 2016 marked the beginning of the trial for Cambie Surgeries Corporation v. British Columbia (Medical Services Commission), a constitutional challenge to British Columbia’s prohibition against private health insurance for publically insured medical services and restrictions on private billing and extra-billing.
British Columbia’s Medicare Protection Act prohibits the existence of private insurance for health services which are covered by the province’s Medical Services Plan. As well, the Medicare Protection Act prevents physicians who are enrolled with the Medical Services Plan from billing patients instead. Lastly, both the Medicare Protection Act and the Canada Health Act prohibit the practice of ‘extra-billing’, whereby an enrolled physician charges their patient an extra fee for their services in addition to what was paid by the public plan. These restrictions against private health insurance, private billing, and extra-billing have the effect of dissuading the existence of private medical practices and favouring what is often perceived as a public, single-payer health system.
The constitutional challenge in Cambie is being pursued by a group of for-profit surgical clinics and associations, with Dr. Brian Day acting as the plaintiffs’ spokesperson. Dr. Day is an orthopedic surgeon and the President and CEO of the Cambie Surgeries Corporation. The defendants include the Medical Services Commission of British Columbia, the Minister of Health Services of British Columbia, and the Attorney General of British Columbia. Various entities have sought or are seeking intervenor status, including the BC Health Coalition, Canadian Doctors for Medicare, patient groups, and the federal government.
This latest challenge to the public single-payer health system is reminiscent of Chaoulli v. Quebec (AG),  1 S.C.R. 791. There, Dr. Jacques Chaoulli, an orthopedic surgeon, sought a licence to offer his services as an independent private hospital but was rejected due to provincial legislation prohibiting private health insurance. In response, Dr. Chaoulli commenced a legal proceeding seeking a declaration from the Court relief that the prohibition against private health insurance was unconstitutional. More specifically, Dr. Chaoulli argued that the restriction against private health insurance violated s. 7 rights under the Canadian Charter of Human Rights and Freedoms (rights to liberty, life, and security) and the equivalent rights under the Quebec Charter of Human Rights and Freedoms.
In Chaoulli, a divided Supreme Court of Canada produced three opinions. The majority reasoned that the prohibition against private health insurance protected the public plan. Thus, there was a rational connection between the prohibition and the long waiting lists that some patients had to bear for necessary health services delivered through the public plan. They also accepted that the failure to provide timely health care through the public plan can, at times, constitute a deprivation of the rights to life and security of the person. Ultimately, the majority decided that this deprivation constituted a violation of the Quebec Charter, limiting the application of the ruling to that province only. A ruling of unconstitutionality based on the Canadian Charter was only narrowly avoided (3-4; with one judge, having found a violation under the Quebec Charter, declining to consider whether the prohibition also violated the Canadian Charter).
In Cambie, the plaintiffs are arguing that British Columbia’s prohibition on private health insurance, private billing, and extra-billing unduly restricts patients’ s. 7 Canadian Charter rights and s. 15 rights (equality rights), and are thus unconstitutional.
The Cambie plaintiffs’ s. 7 arguments are similar to those considered in Chaoulli. Under s. 15, the plaintiffs note that certain individuals have preferential access to medical care beyond the benefits set in the Medicare Protection Act through other government schemes (e.g., the Civilian War-Related Benefits Act). In turn, the plaintiffs argue, individuals who do not qualify for those government schemes are subject to discriminatory restrictions on reasonable access to medical care.
While Cambie has received increased attention as of late, the lawsuit has been ongoing for several years (the plaintiffs’ pleading was first issued on January 2, 2009; the commencement of trial was delayed for several reasons, including an audit of the plaintiffs’ practices by the province). And it will likely be several years still before a final decision in Cambie is reached. If the matter is heard by the Supreme Court of Canada, the parties would go before a differently constituted Court than in Chaoulli. In fact, only one judge who heard Chaoulli still sits on the Supreme Court of Canada, Chief Justice McLachlin, and she faces mandatory retirement in September 2018.
Cambie goes to the heart of how health care is delivered in Canada. As mentioned above, a prohibition against extra-billing is required under the federal Canada Health Act. Furthermore, six other provinces in Canada have a combination of similar prohibitions against private health insurance and/or private billing. Should the plaintiffs in Cambie be successful, it will only be a matter of time before health care in Canada is significantly reformed.
Maria Eugenia Brunello