A Case that Could Determine the Future of Health Care in Canada

On September 6, 2016, the British Columbia Supreme Court began hearing a case (“Cambie”) that could have far-reaching effects on the face of health care in Canada.

In the case, the Cambie Surgery Corporation, which runs the Cambie Surgery Centre, a BC-based private surgical clinic, together with a number of patients and individuals (the “Plaintiffs”) are suing the BC Medical Services Commission, the Attorney General, and the provincial Ministry of Health (the “Defendants”). The Plaintiffs claim that sections of BC’s Medicare Protection Act (the "MPA"), which prohibit certain activities such as extra-billing by medical practitioners and obtaining private insurance for services that are available under the public plan, violate sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Canadian Charter”). The Plaintiffs claim that these provisions of the MPA are unconstitutional because they lead to unacceptable wait times preventing access to a reasonable standard of healthcare in a reasonable amount of time, and because under certain statutory schemes some individuals are exempted from the restrictions in the MPA, resulting in discriminatory treatment between patients.

The Defendants, however, seek to uphold the MPA. They argue that the current system is the fairest and most cost- and time-efficient means of providing access to medical services and, additionally, addresses the supply shortages of doctors, because doctors are not incentivized under the MPA to flee to the private sector to perform less complicated cases, also known as “cream-skimming”.1

Significance

The case is relevant because it (1) serves as an opportunity to re-visit the 2005 Supreme Court of Canada's decision in Chaoulli, (2) could have ripple effects across health legislation in Canada, and (3) highlights the unsettled and contentious ground in the Canadian health care system.

1. Opportunity to Re-Examine Chaoulli

Cambie is as an opportunity to review the Supreme Court of Canada’s (the "Supreme Court") 2005 decision in Chaoulli, a seminal case in which the Supreme Court held that section 15 of Quebec’s Health Insurance Act (the "HEIA") and section 11 of the Hospital Insurance Act (the "HOIA"), which prohibited Quebeckers from taking out private insurance for services available under Quebec’s public health care plan, violated Quebec’s Charter of Human Rights and Freedoms (the "Quebec Charter").  Chaoulli is an important precedent; although a majority of the seven-member panel of the Supreme Court held that the ban on private health insurance violated the Quebec Charter, only a minority of the Court held that the provisions violated the Canadian Charter. In fact, the court was divided in a 1-3-3 decision. While one judge declined to decide the case on the basis of the Canadian Charter, the remaining six judges were evenly split as to whether the HEIA and the HOIA violated section 7 of the Canadian Charter without being justifiable under section 1.

Cambie differs from Chaoulli in a number of ways, including that the provisions of the MPA in question are being challenged on the basis of the Canadian Charter, and section 15 as well as section 7 are being invoked to prove that the provisions are unconstitutional.  As a result, the Cambie case presents fertile ground to reconsider whether certain restrictions related to the provision of private health care in Canada are unconstitutional.

2. Influence on Legislation Across Canada

Under the Canada Health Act, provinces must provide health care plans that are comprehensive, universal, portable, and accessible in order to receive funding from the federal government. In practice, the Canada Health Act provides substantial latitude to each province to implement a plan that satisfies these conditions, resulting in variability between the provinces with respect to their public health plans. In British Columbia, like in Alberta, Prince Edward Island and Quebec, it is prohibited to obtain private insurance for services that can be obtained under the public health plan. In Ontario, Nova Scotia and Manitoba, physicians are prohibited from charging patients more for services than what they would obtain under the public plan. All of the provinces, moreover, differ in their interpretation of what services are "medically necessary". For example, the different interpretations of what constitutes a medical necessity across the provinces resulted in Quebec, Alberta and BC offering three cancer treatment drugs – Velcade, Alimta and Zevalin – that Ontario did not offer because it deemed they were not a necessity.2

It is difficult to know what the full ramifications of the Cambie case might be. In Quebec, some argue that the Chaoulli case was not as groundbreaking as anticipated – following the case, it turned out there was not much of a market for private insurance for services that were provided under the public plan.3 Nevertheless, should the courts rule in favour of the Plaintiffs in Cambie, particularly if the case reaches the Supreme Court, the case is sure to have ripple effects across the country. Notwithstanding the nuanced differences between the provinces in their health care plans, Cambie would set a precedent that would likely cause many provinces to revisit equivalent provisions in their respective plans.

3. Highlight Health Care’s Unsettled Grounds

The Cambie case highlights that Canada’s health care system is on unsettled grounds with strongly divided opinions – legal, ideological and policy-wise – regarding how our health care system should function, a debate some commentators argue is making courts a new battleground for health policy reform.4  It will raise policy issues such as the private/public health care boundary, the underlying assumptions concerning the government’s ability to address society’s needs, the role of health care in Canadian culture, and the function of the Constitution in advancing health care services. Importantly, it will throw into stark relief issues about our health care system that are often avoided. The case, then, will be fascinating to watch as it unfolds. It serves as an important vehicle to rethink the future of health care in Canada and ask difficult questions that affect all Canadians.

The hearing of the Cambie case is expected to last approximately 120 days in the Supreme Court of British Columbia. We will provide updates on the case as it progresses.

This article was written with the helpful contribution of Patricia Wood (Articling Student).

                                                                              

1 Save Canada’s Public Health Care, “The Defendants” available at http://www.savemedicare.ca/the_defendants.
2 See Colleen M. Flood and Lorian Hardcastle, “The Private Sale of Cancer Drugs in Ontario’s Public Hospitals,” 1 McGill Health Law Publication 5, April 2007,1.
3 Andre Picard, "Private vs. public: B.C. case could reshape medicare" (September 6, 2016), The Globe and Mail, online: http://www.theglobeandmail.com/.
4 Christopher P. Manfredi and Antonia Maioni, “The Last Line of Defence for Citizens,” 44 Osgoode Hall Law Journal 249.