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The Cambie Surgery Centre in Vancouver, 2019.JONATHAN HAYWARD/The Canadian Press

The B.C. Court of Appeal will decide Friday whether a lower court made legal errors in a landmark decision that upheld key components of the province’s public health care system and dismissed a challenge that critics charged would prioritize health care access based on ability to pay over medical need.

The pandemic has laid bare the vulnerabilities of Canada’s health system and left many demanding change.

Colleen Flood, the University of Ottawa Research Chair in Health Law and Policy, noted that COVID-19 significantly exacerbated long wait times – a problem central to the marathon Cambie Surgeries Corporation vs. British Columbia case.

“From a policy perspective, the question is: Would this actually be solved by having a two-tier health care system?” said Prof. Flood, who is also co-author of the book Is Two-Tier Health Care the Future? “And then the legal question is: Can you stop someone with money, or private insurance, from accessing private health care if they are claiming a Charter right when there are long wait times?”

The plaintiffs in the case – led by Brian Day, an orthopedic surgeon and president and chief executive of Cambie Surgeries Corporation – argued that patients have a constitutional right to pay out-of-pocket for medically necessary care when wait times in the public system are too long. They invoked Section 7 of the Charter of Rights and Freedoms: the right to life, liberty and security of the person.

They sought to overturn provisions of B.C.’s Medicare Protection Act that prohibit physicians from accepting pay from both public and private purses, limit extra billing and ban health insurance for services that are already covered under the public plan. The court heard from more than 100 witnesses.

The lawsuit named as defendants the Attorney-Generals of B.C. and Canada, as well as two intervenor groups. The defendants and intervenors countered that the case was not about health care delivery but financial greed, and that lifting restrictions on a two-tier system would prioritize treatment for those who could afford it, upending the very foundation of Canada’s public health care system.

Dr. Day launched the legal action in 2009, and it landed in B.C. Supreme Court in 2016 with support from four of his patients. In September, 2020, B.C. Supreme Court Justice John Steeves released an 880-page judgment upholding the provisions of the act.

Justice Steeves wrote that the impugned provisions did not violate the plaintiffs’ rights to life or liberty, as there was no evidence anyone died from long waits and the provisions do not interfere with a patient’s ability to make fundamental personal choices, respectively.

The provisions did deprive some patients of the right to security of the person because they experienced wait times that were clinically significant to their health, Justice Steeves wrote. However, this deprivation was in accordance with “fundamental justice” because the medicare laws serve the purpose of ensuring public health care is sustainable.

In a notice of appeal filed in early 2021, the plaintiffs said the trial judge erred in narrowly construing the scope of each Section 7 right, “concluding that the harms to patients were justified on the basis of legally incorrect and constitutionally irrelevant concerns.”

By requiring proof that long wait times caused the deaths of specific people, for example, the plaintiffs say he excluded the increased risks to life caused by the delays. The judge also wrongly concluded Section 7′s interest “does not include accessing necessary medical care, but only choosing to accept or decline treatment,” they say.

Dr. Day told The Globe and Mail this week that he is hopeful about Friday’s decision, as he believes the judge made multiple errors in law.

Whatever Friday’s outcome, the case is expected to reach the Supreme Court of Canada.

Prof. Flood said the case is “extremely important,” as it is foundational to public medicare. Allowing a two-tier health care system would worsen access to health care because it would take more doctors and nurses away from a public system already debilitated by staff shortages, she said.

“If we take them from the public health care system and transport them over to the private health care system, then we are taking them away from a problem that is already terrible,” Prof. Flood said. “One can only imagine it would get infinitely worse.”

Prof. Flood said she is hopeful that the case will spur government action.

“This has been happening for years and years now, this problem of wait times, eroding away people’s commitment to the public system,” she said. “What I hope for is the reverse of what Dr. Day is hoping for, which is that these bad things will enable privatization. What I hope for is that these bad things will galvanize federal and provincial governments to work together and fix this problem.”

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