Health care wait times do not violate Charter, BC Court of Appeal says

Dr. Brian Day is a plaintiff in this case.

In a nearly 150-page unanimous decision released on Friday, the three judges of the British Columbia Court of Appeal dismissed the claim of Cambie Surgery Center in Vancouver , which sought to be able to charge for services covered by the public system to patients who wish to turn to the private sector.

In their application, the plaintiffs alleged that public health laws in British Columbia were unconstitutional because they prevented patients who wanted to go to the private sector because of unreasonable wait times in the public system. /p>

According to the complainants, this was a violation of the right to security under section 7 of the Canadian Charter of Rights and Freedoms. In their appeal, they claimed that the trial judge erred in his analysis, concluding that these violations were justified under fundamental principles of justice.

• The private sector will not be able to offer the same health care as the public system in B.C.

• Dr. Day's lawsuit on the private sector of health: 5 things to know

In their decision, the judges upheld the essentials of Judge John Steeves' p>

Justices Robert Bauman and David Harris conclude that some delays infringe patients' rights to life and security, but that this is a reasonable situation under the principle of fundamental justice.

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Judge Lauri Ann Fenlon, for her part, believes that these deprivations are grossly exaggerated, but justified under section 1 of the Charter.

Although the trial judge underestimated the impact on thousands of patients not having access to the care they need in a timely manner, Judge Lauri Ann Fenlon writes in a separate decision, it must be remembered that not all patients […] would be able to access private care, even if private insurance were available.

According to her, opening up to the private sector would not lead to better access to care for those who are too poor to take out insurance or who have complex medical problems, in particular the elderly. On the contrary, reversing the provisions could reduce access and increase wait times in the public system, she writes

British Columbia's Medicare Protection Act authorizes private health care, but it regulates it, notably prohibiting doctors from offering services in both the public and private systems, as well as from requiring additional patient fees for care covered by the public plan. It also prohibits the creation of insurance policies covering services provided under the public plan.

Dr. Brian Day argues that because of delays in treatment, these provisions contravene the rights to life, liberty and security of the person, as well as to equality before the law and non-discrimination guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

However, according to Justice John Steeves:

• while the provisions of British Columbia law may impact on the charter rights to life, liberty and security of the person, they do not violate section 7 because x27;they are not arbitrary, overbroad, or result in grossly disproportionate consequences;
• even if the provisions of the law had violated section 7 of the Charter, the limits imposed on the rights to life, liberty and security of the person are “reasonable” and “are evidently justified in a free and democratic society” under section 1 of the Charter.

Source : Decision of Judge John Steeves

Dr. Brian Day, the owner of the private clinic Cambie Surgery Centre, in Vancouver, is one of the plaintiffs behind the case.

The orthopedic surgeon has fought for more than 10 years to be able to bill for services already offered by the public system to patients who wish to turn to the private sector.

He was appealing a 2020 decision of the Supreme Court of British Columbia, in which Judge John Steeves had rejected the fact that patients have the right to pay to fall back on private care when the public system cannot treat them in a reasonable time.

More details to come