The constitutional challenge with the power to reshape Canada’s public health-care system is expected to resume Monday, after a series of delays.
The trial, brought forward by a private Vancouver clinic and involving both the province of B.C. and the federal government, opened to significant attention in B.C. Supreme Court in September, 2016. The plaintiffs have argued the province does not provide timely medical services but many of its residents are prohibited from accessing private health care. The province has said its Medicare Protection Act is necessary to protect universal health care and prevent extra billing.
But the case, which was first launched in 2009, has continued to languish. The trial had been expected to run for six months but only 80 days or so have been completed and there have been approximately 25 rulings involving disputes between the parties.
And, just as the trial was set to resume, the province last week announced a new crackdown on doctors who engage in extra billing, with the implications for the case not immediately clear.
A Globe and Mail investigation last year found significant, unlawful extra billing by Canadian doctors through private clinics, particularly in B.C. Patients paid out of pocket for access to everything from medical appointments to surgery.
A physician or clinic engages in extra billing when patients face additional charges for procedures that are otherwise paid for by the public system.
Dr. Brian Day, medical director of the Cambie Surgery Centre, a plaintiff in the case, has accused the province of engaging in stall tactics to pressure his side financially. He reiterated that point during an interview and said the B.C. government’s goal is to maintain a monopoly.
Regarding the province’s announcement last week on double billing, Dr. Day said the plaintiffs – which include another private clinic and four patients – could seek an injunction that would remain in effect until the trial has concluded.
“To me, what they’re actually doing is usurping the legal process. There is a constitutional trial going on right now,” he said. “How can it be a coincidence that we’re about to resume court hearings … and this comes out the week before?
“It’s because, in my opinion, they see the writing on the wall.”
A spokesperson for B.C.’s Ministry of Health, when asked about the pace of the trial, in a statement wrote the province will “continue its strong defence of British Columbia’s public health-care system and the principle that necessary medical care should be available to all British Columbians on the basis of their need and not their ability to pay for it.”
The spokesperson said the province has attempted to work with the plaintiffs to “allow for a more focused presentation of evidence, reduce the number of witnesses, and reduce the time required for each witness.
“This has not always been successful,” the statement read.
The plaintiffs have said because the public system has failed to protect the health of all British Columbians, the province cannot constitutionally prohibit residents from accessing private health care. The plaintiffs have said allowing greater access to private health care would not undermine the public system.
The province has said a victory for the plaintiffs would “violate the fundamental principles on which the province’s universal health-care system is founded.” It has said “longer than desirable” waiting lists persist for some elective or scheduled procedures but a win for the plaintiffs would only worsen the situation.
Justice John Steeves, who is hearing the case, in a ruling in late March said the trial still has a long road ahead with “a large number of future days planned.” The ruling involved an application from the province and saw about one-fifth of the paragraphs in Dr. Day’s affidavit deemed inadmissible for reasons such as hearsay. The federal government supported the province’s challenge.
Justice Steeves said the plaintiffs were to have completed their evidence in January, 2017 but the province raised a number of objections. He said each side blamed the other for the protracted disputes.
The federal government is not a defendant in the case but instead a party, since it involves a constitutional question.
The case has reignited a debate that had its last major legal test in 2005, when the Supreme Court of Canada ruled a Quebec ban on private health care was unconstitutional. That ruling, however, only applied to Quebec.
Michael Da Silva, an assistant professor of law at the University of British Columbia who has written on health-care legislation, in an interview said he was not surprised the trial had run long, particularly since the case was first filed nine years ago.
“The very large amounts of evidence that are in this case do mean that the case is going to take a while,” he said.
The plaintiffs have said the health-care system violates the Charter right to life, liberty and security of the person but Prof. Da Silva said it is unclear whether the principle of fundamental justice has been violated.
He said it is also unclear that the courts are the best place to be developing health-care policy.
With a report from Justine Hunter