Top court’s refusal to hear private healthcare ban appeal ‘unfathomable,’ B.C. doctor says

Click to play video: 'Supreme Court declines to hear B.C. doctor’s private health care appeal'
Supreme Court declines to hear B.C. doctor’s private health care appeal
WATCH: The B.C. government is celebrating a Supreme Court of Canada decision that ends a bid to expand access to private health care – Apr 6, 2023

The head of a private surgical clinic in Vancouver has come out swinging against the Supreme Court of Canada for its refusal to hear an appeal of British Columbia’s ban on private surgical coverage.

“Every Canadian knows our health system is in a crisis,” Dr. Brian Day, CEO of the Cambie Surgery Centre, told Global News in an interview Thursday.

“As a result of the supreme court’s failure to even consider the rights of Canadians waiting on wait-lists, this means that Canadians such as the patient plaintiffs in our cases suffered such outcomes as permanent paralysis and death as they waited for care and justice.”

Canada’s top court Thursday confirmed it would not hear an appeal in the case, which has wound its way through the courts for 13 years.

Story continues below advertisement

Day, an orthopedic surgeon who opened the Cambie Surgery Centre in 1996, argued patients should have the right to pay for private care if waits in the public system are too long, potentially worsening their health outcomes.

Click to play video: 'Code Blue: Does Canada need a parallel private health-care system?'
Code Blue: Does Canada need a parallel private health-care system?

The B.C. Supreme Court and B.C. Court of Appeal have previously upheld B.C.’s Medicare Protection Act, which bans extra-billing and the use of private insurance to cover medically necessary procedures.

The latest health and medical news emailed to you every Sunday.

The Supreme Court of Canada does not release reasons for declining to hear appeals, and only granted leave to appeal for seven per cent of cases that applied last year.

Day said it was “unfathomable” that the court declined to hear his case, considering its 2005 ruling that overturned a ban on private coverage for private insurance in some cases in Quebec.

Story continues below advertisement

The court in that case found that Quebec’s ban violated that province’s own Charter of Rights and Freedoms, but did not rule on whether it violated Canada’s Charter of Rights and Freedoms.

“The wealthy don’t have to worry because they can go down to the Mayo Clinic or the Cleveland Clinic in the States and get treated,” he said.

“It’s the ordinary Canadians in Canada that are denied access to insurance of the type that most Canadians have through their employment.”

In the initial ruling at the B.C. Supreme Court, trial judge Justice John Steeves found that while long wait-lists may increase risk to some patients, the provisions were reasonable in the context of the overall goal of maintaining a system that provides access to care based on need, not the ability to pay.

Click to play video: 'B.C.’s top court dismisses private health care challenge launched by Dr. Brian Day'
B.C.’s top court dismisses private health care challenge launched by Dr. Brian Day

“I think you can probably tell I am delighted,” B.C. Health Minister Adrian Dix said Thursday.

Story continues below advertisement

“The decision by the Supreme Court ends the matter. I just want to say it is an exceptional victory for public health care in B.C., for the people in B.C., for the Medicare Protection Act, for our public health-care system. It supports public health care and has us do what we need to do, which is provide continuously better service under the public system and that’s exactly what we are going to do.”

In a statement earlier Thursday, Dix said the province was moving to cut wait times in the province, despite the effects of the COVID-19 pandemic.

The statement said 99 per cent of B.C. patients who saw procedures postponed during the pandemic have now had their surgeries, and that the province currently ranks first in Canada for the percentage of patients meeting clinical benchmarks for cataract surgeries, and second for hip and knee replacements.

BC Liberal Leader Kevin Falcon responded to the news by calling the NDP’s celebration over the win “hypocritical.”

“At the very same time they are sending patients today to private clinics to receive surgical procedures. They are doing that right now,” he said.

“We would have an even bigger crisis if the private clinics were not taking care of patients right now in British Columbia. It’s only because the NDP don’t tell you that, but it’s happening every day.”

Story continues below advertisement

With legal options to challenge the private care ban now exhausted, Day argued the issue was now a political rather than judicial one.

“The public has to start speaking out,” he said.

“With an aging population, and Canada has a large percentage of baby boomers who are going to impact this system greatly in the future, if there’s not going to be a legal solution there needs to be a political solution, and our politicians have to bite the bullet.”

— with files from The Canadian Press

Sponsored content