In Cambie Surgeries Corporation v. British Columbia (Attorney General) (“Cambie”), the plaintiffs claimed that sections 14, 17, 18 and 45 of British Columbia’s (“B.C.”) Medicare Protection Act (the “MPA”) violated their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Canadian Charter” or the “Charter”), and that these violations could not be saved under section 1 of the Charter.
Vancouver’s Cambie Surgery Centre (the “Cambie Clinic”) was the primary plaintiff in the action. The Cambie Clinic is a privately-owned surgical clinic, which offered medically required physician services that would typically be categorized as “benefits” under the provincial health insurance plan. The Cambie Clinic was of the position that, due to long wait times in the public system, patients should be able to exercise a choice to pay for private care to avoid such wait times. This case concerned whether the Cambie Clinic could offer these medically required services in contravention of the MPA, which seeks in part to protect the provision of medically required physician services through a publicly funded and administered system in accordance with the criteria established by the Canada Health Act.
The defendant, the Attorney General of British Columbia, and the Attorney General of Canada opposed the plaintiffs’ claim. Intervenors included the B.C. Friends of Medicare Society, Canadian Doctors for Medicare and the B.C. Anesthesiologists’ Society.
Justice Steeves of the B.C. Supreme Court dismissed the plaintiffs’ claim, finding that the impugned sections of the MPA did not violate either section 7 or section 15 of the Charter, but held that even if there was a violation of either of these sections, it would be justified under section 1 of the Charter.
The following is our brief review of the decision and analysis of its implications in B.C. and elsewhere.
Background Regarding Limitations on Private Healthcare in Canada
The Cambie statement of claim called into question the constitutionality of certain sections of the MPA that are aimed at discouraging the emergence of a parallel private healthcare system in B.C. for medically required physician services covered by B.C.’s publicly funded and administered insurance plan. As we examine this decision, it is important to distinguish the private delivery of such services from their funding and administration, and to recall that much of the delivery of physician services in every Canadian jurisdiction including B.C. is private. In general, there are few legal restrictions on this private delivery. By contrast, every province and territory has enacted legislation that seeks to protect the publicly funded and administered system respecting these services. All have imposed conditions on the provision of medically required physician services covered by the respective provincial/territorial health insurance plans, often rendering it impractical or unprofitable to provide such services. The way in which each province achieves this end is somewhat different. Many provinces have banned private insurance for medically necessary hospital and physician services (this was at issue in the Chaoulli decision, discussed infra). Some provinces prohibit directly billing patients for publicly-insured services, and many directly prohibit “extra-billing”, the practice of charging patients an amount in addition to the amount payable under the public insurance plans.
Cambie challenged provisions of the MPA that do all of the above.
Breaching the Right to Life, Liberty and Security of the Person?
Under section 7 of the Charter, “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.”
In order to succeed in establishing a breach of section 7 of the Charter, a plaintiff must do two things. Firstly, the plaintiff must prove that the state deprived them of their life, liberty or security of the person. Secondly, they must prove that such deprivation was not in accordance with the principles of fundamental justice.
Parallels to, and Persuasiveness of, Chaoulli v. Quebec (Attorney General)
In their written and oral arguments, the plaintiffs in Cambie relied heavily on Chaoulli v. Quebec (Attorney General), 2005 SCC 35 (“Chaoulli”). In Chaoulli, the Supreme Court of Canada was asked to determine whether the prohibition on private insurance for health care services in Quebec that are covered by Quebec’s public health care plan violated section 7 of the Charter and a similar provision of the Quebec Charter of Rights and Freedoms (the “Quebec Charter”). It was submitted that this prohibition resulted in subjecting Canadians to long delays with the resultant risk of physical and psychological harm. In Chaoulli, all members of the Supreme Court of Canada – even the three dissenting justices – found that the Quebec restrictions on the purchase of private health insurance for insured health care services covered by the public plan infringed the rights to life and security of the person. The evidence showed that delays in treatment, which contributed to prolonged pain, stress and worsened surgical outcomes, gave rise to physical and psychological suffering. The evidence also demonstrated that the lengthy wait times increased the risk of death, which ultimately caused a deprivation of the right to life. The Court also unanimously found that the deprivation was caused by the impugned legislative provisions.
At the second stage of the section 7 analysis, the Court split evenly (three-three), while the seventh judge declined to answer because she found that the law breached the Quebec Charter rather than the Canadian Charter. As a result of the Court’s even split on the issue of section 7 of the Canadian Charter, the case does not bind provinces other than Quebec.
Although non-binding, Justice Steeves agreed with the plaintiffs that Chaoulli was a persuasive authority. In his reasons, Justice Steeves acknowledged that he was ultimately guided by the Supreme Court of Canada’s analysis at stage one of section 7 in Chaoulli.
Stage 1: Deprivation of Section 7 Charter Rights
In order to establish a deprivation of section 7 Charter rights, a plaintiff must show that a law increases the risk of death, interferes with an individual’s fundamental personal choices or otherwise interferes with an individual’s physical or psychological integrity, causing physical or serious psychological suffering.
In his decision, Justice Steeves found that the plaintiffs’ constitutional challenge only engaged sections 17, 18(3) and 45 of the MPA (the “Impugned Provisions”). Section 45 of the MPA prohibits private insurance for medically required services to beneficiaries under the public provincial health insurance plan (Medical Services Plan or “MSP”). Sections 17 and 18, along with other related provisions of the MPA, prevent any person from billing more than the MSP rates or charging user fees when the service is considered a benefit under the MPA and prevent a medical practitioner from directly charging a patient unless the physician is not enrolled or the patient is not a beneficiary under the MPA.
Stage 1: Violation of Security of the Person Established
At stage one of his section 7 analysis, Justice Steeves found that a deprivation of the right to security of the person was established on the evidence for two of the individual plaintiffs and other similarly situated patients (but not the right to life or the right to liberty). Specifically, he found that making patients wait beyond the wait time benchmarks associated with their individual priority codes for elective surgeries can cause both physical or serious psychological harm. In doing so, he relied upon generalized evidence that large numbers of patients are not provided with medically necessary services in the time periods mandated by their diagnosis, which increases the risk of physical harm, including reduced surgical outcomes.
In order to establish that a particular piece of legislation violates section 7 of the Charter, a plaintiff must establish a causal connection between the impugned legislative provisions and the infringement of the protected section 7 right.
In this case, Justice Steeves noted that the Impugned Provisions do not prohibit private healthcare, but rather, only prohibit private insurance for “medically required services.” He found that the Impugned Provisions regulate the market for the funding and delivery of necessary medical services by imposing economic conditions on the provision of private healthcare. Sections 17 and 18(3), he held, set the price for the provision of medically necessary services to MSP beneficiaries, and section 45 limits the scope of private funding of such health care services. These provisions (by design) discourage the emergence of a parallel private healthcare system and are intended to preserve and secure the sustainability of a universal public healthcare system, which is accessible based on need and not the ability to pay, as stated in section 2 of the MPA. In his decision, Justice Steeves stated that this legislative policy choice warranted deference.
Justice Steeves found that the cumulative effect of sections 17 and 18(3) of the MPA is to prevent healthcare providers from lawfully recouping the operating costs associated with running a private surgical facility, thereby making it uneconomical to provide private surgical services to MSP beneficiaries. He further found that in so doing, these sections of the MPA effectively eliminate the supply of timely private surgical care and deny MSP beneficiaries access to such services that would otherwise be available.
With respect to section 45, Justice Steeves found that by making it unlawful to offer private insurance policies to MSP beneficiaries for necessary medical services that would be covered under the MSP, it effectively denies some patients’ access to timely private medical services they would have access to if private insurance could be offered and purchased in B.C.
Ultimately, Justice Steeves found that there was a sufficient causal connection between the impugned provisions and the deprivation of security of the person established in the evidence.
Stage 2: Principles of Fundamental Justice not Offended
Once a deprivation of life, liberty or security of person is established, a court will consider whether such deprivation is in accordance with the principles of fundamental justice. This requires that the impugned law not be arbitrary, overbroad or grossly disproportionate to its legislative purpose. Justice Steeves concluded that the deprivation of the right to security of the person in this case did not violate these principles of fundamental justice.
In his analysis, Justice Steeves held that the purpose of the MPA is to preserve and ensure the sustainability of a universal public healthcare system that provides necessary medical care based on need and not the ability to pay.
A law is considered arbitrary if there is no rational connection between the purpose of the legislation and its effects. In this case, Justice Steeves found that the deprivation of the right to security of the person was not arbitrary; there are multiple rational connections between the effects of the impugned provisions (preventing the emergence of a parallel private healthcare system) and the overarching purpose of the MPA (to preserve and ensure the sustainability of a universal public healthcare system that provides medical care based on need and not the ability to pay). He relied on evidence demonstrating that duplicative private healthcare would increase demand for healthcare as well as overall healthcare costs while reducing capacity in the public system. Ultimately, he reasoned that duplicative private healthcare would likely increase wait times in the public system, thereby putting patients with lower incomes and a lower socioeconomic status, and therefore greater healthcare needs, in a worse position.
A law that otherwise has a rational connection between its purpose and effects is considered overbroad if it goes too far by capturing some persons or activities that bear no relation to the law’s purpose. Justice Steeves found that the impugned provisions of the MPA are not overly broad as they do not deny patients’ rights to security of the person further than necessary. Justice Steeves reasoned that the plaintiffs did not demonstrate that the Impugned Provisions capture persons or activities that are unrelated to the overarching purpose of the MPA.
(c) Gross Disproportionality
The gross disproportionality analysis asks if the impugned law’s effects on a section 7 right are so grossly disproportionate to its purpose that they cannot rationally be supported. It applies where the seriousness of the deprivation to life, liberty or security of the person is totally out of sync with the objective of the law. In this case, Justice Steeves concluded that the effects of the Impugned Provisions are not grossly disproportionate to the purpose of ensuring a universal healthcare system based on need. Justice Steeves found that urgent and emergent care in B.C. is timely and of good quality and does not have a “lethal impact”. He also emphasized that all medical conditions have consequences for waiting for healthcare, including pain, disability and impacts on family life, social life and fitness for work. Justice Steeves stressed that something more than what the plaintiffs established on their evidence is required to elevate the medical condition to an extreme level that would violate gross disproportionality.
Section 7 Conclusion
In sum, Justice Steeves found that while the plaintiffs had established that the Impugned Provisions cause a deprivation of security of the person for some individuals, this deprivation is in accordance with the principles of fundamental justice. As such, a breach of section 7 of the Charter was not established, and no section 1 analysis was required.
Breaching the Right to Equality?
Subsection 15(1) of the Charter guarantees the equal protection and equal benefit of the law to all, without discrimination, and explicitly sets out enumerated grounds of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
To establish a section 15 claim, a claimant must first identify how the challenged law provides a benefit or imposes a burden and determine a comparator group that mirrors the claimant’s characteristics, except with respect to the personal characteristic related to the enumerated ground raised as the basis for discrimination. The claimant must then demonstrate a prima facie violation of subsection 15(1) by proving as follows:
Step 1: that the challenged law draws a distinction in comparison to the comparator group either through its direct impact or on the basis of an enumerated or analogous ground; and
Step 2: that the challenged law imposes burdens or denies benefits in a way that reinforces, perpetuates or exacerbates disadvantages.
If such prima facie violations are established, the government must then demonstrate under subsection 15(2) that the program or law has an ameliorative purpose and targets a disadvantaged group identified by the enumerated or analogous grounds. A program that meets these requirements will not be held to violate section 15 of the Charter.
In Cambie, the plaintiffs argued that beneficiaries who are covered under WorkSafeBC, and are thereby exempt from the MPA for services related to workplace injuries, receive expedited access to surgical care at private clinics, while B.C. residents who cannot work (such as people who are very young or elderly or have a disability) cannot suffer work-related injuries and thus cannot access this expedited care. The plaintiffs claimed that this exclusion had a disproportionately adverse impact on this demographic.
Justice Steeves found “a number of immediate problems” with this claim. First, he stated that the plaintiffs had inadequately pleaded the claim, as successfully challenging the MPA provisions would not halt the Workers Compensation Act (“WCA”) exemption, which is located in Minute #97-068 (“Minute”) of the Medical Services Commission. The Minute was not at issue in this claim. There was nothing in the challenged provisions of the MPA about public healthcare such as that provided by WorkSafeBC.
Second, Justice Steeves declared the plaintiffs’ claim was based on a non-existent benefit, as the WCA exemption did not create the alleged benefit which allowed patients to be charged directly for medical services and purchase private health insurance without the confines of the MPA.
Although ruling that the plaintiffs’ section 15 claim failed on these threshold considerations, Justice Steeves nonetheless carried out a section 15 analysis. He found that the exemption contained in the Minute, which is based on whether a patient is covered under an alternative health plan, does not impose a burden or confer a benefit in a manner that draws a distinction on the basis of an enumerated or analogous ground. Accordingly, the plaintiffs’ claim failed the first step of subsection 15(1), and there was no need to consider the second step of subsection 15(1) (whether or not the challenged law imposes burdens or denies benefits in a way that reinforces, perpetuates or exacerbates disadvantages).
He did note, however, that if the plaintiffs had met the subsection 15(1) requirements, the challenged laws would have been saved under subsection 15(2), as they have an ameliorative purpose in “ensuring that access to necessary medical care is based on need and not the ability to pay,” including for persons with disabilities as well as the young and elderly.
No Basis to Consider Interest-Based Theory of Discrimination
The plaintiffs also urged the court to consider a new “interest-based” framework to recognize section 15 discrimination, alleging that denying some B.C. residents access to private surgical care was discriminatory towards an “interest in one’s bodily integrity, personal health and well-being, and the need for access to timely medical care”. This would have been a departure from earlier case law setting out the test for section 15.
A departure from the case law is warranted only when “new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” (see Canada (Attorney General) v Bedford, 2013 SCC 72 at para 42).
Justice Steeves stated that the plaintiffs had not identified any shifts or developments to justify revisiting the section 15 framework.
Would a Section 7 or Section 15 Violation be Justified Under Section 1?
Although neither of the plaintiffs’ Charter claims were successful, Justice Steeves chose to carry out a section 1 analysis.
Under section 1 of the Charter, a law found to violate rights and freedoms under other sections of the Charter can be saved if the court finds that the legislation’s objective is pressing and substantial, and that the measures chosen to attain this objective are reasonable and demonstrably justifiable in a free and democratic society.
Justice Steeves held that had either claim been successful, the challenged laws would have been saved under section 1.
As discussed above, all provinces in Canada have laws akin to the Impugned Provisions aimed at discouraging the emergence of a parallel private healthcare system respecting publicly insured physician and hospital services. The way in which this is done differs province by province, but the aim of each is to preserve and secure the sustainability of a universal public healthcare system for such services accessible based on need and not the ability to pay. The Attorney General of B.C. succeeded in convincing the Court that the Impugned Provisions actually have this effect. It provided evidence that the emergence of a parallel private healthcare system would have negative impacts on the public system, and this evidence was accepted and relied on by the Court in deciding this case.
The evidence on this point, however, is not universally accepted. Supporters of the plaintiffs in this case have suggested that there is no evidence that the introduction of private clinics in B.C. in the 1990s did any damage to the public system.
If this case was decided differently, i.e. if the Court had found that the Impugned Provisions did violate the Charter and these violations could not be saved under section 1 of the Charter, it would have had far-reaching implications. Although the Supreme Court of B.C.’s ruling would only have applied directly in B.C., one would have expected to see similar challenges in other provinces and, unlike in Chaoulli, a Supreme Court of Canada ruling upholding the lower court’s decision would have indirectly applied to other provinces’ similar legislative provisions.
There is still a possibility that the decision may be varied on appeal. Legal counsel for the plaintiffs has indicated that they will be appealing the decision and applying for a stay in the meantime to prevent the Cambie clinics from being closed. An appeal will first be heard by the B.C. Court of Appeal. Regardless of what is decided by the Court of Appeal, it seems likely that an application for leave to appeal to the Supreme Court of Canada will be made. Given the tension between the Supreme Court of Canada’s ruling in Chaoulli and Justice Steeves’ decision in this case, the Supreme Court of Canada may well provide additional guidance on this issue. We will continue to provide updates on Cambie as it makes its way through the courts.