9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 1/599 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cambie Surgeries Corporation v. British Columbia (Attorney General), 2020 BCSC 1310 Date: 20200910 Docket: S090663 Registry: Vancouver Between: Cambie Surgeries Corporation, Chris Chiavatti, Mandy Martens, Krystiana Corrado, Walid Khalfallah by his litigation guardian Debbie Waitkus, and Specialist Referral Clinic (Vancouver) Inc. Plaintiffs And: Attorney General of British Columbia Defendant And: Dr. Duncan Etches, Dr. Robert Woollard, Glyn Townson, Thomas McGregor, British Columbia Friends of Medicare Society, Canadian Doctors for Medicare, Mariёl Schooff, Daphne Lang, Joyce Hamer, Myrna Allison, and the British Columbia Anesthesiologists’ Society Intervenors And: The Attorney General of Canada Pursuant to the Constitutional Question Act Before: The Honourable Mr. Justice Steeves Reasons for Judgment 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 2/599 Counsel for the Plaintiffs: P. A. Gall, Q.C. R. W. Grant, Q.C. A. L. Zwack S. Gyawali J. Sebastiampillai B. J. Oliphant K. D. Nonis A. R. Alberti Counsel for the Defendant: J. G. Penner J. D. Hughes K. E. Saunders T. C. Boyar P. T. Duncan H. Hughes C. Friesen P. McLaughlin M. A. Witten Counsel for Canada (Attorney General): B. J. Wray K. A. Manning L.M.G. Nevens H. L. Davis Counsel for the Coalition Intervenors: J.J.M. Arvay, Q.C. A. M. Latimer Counsel for the Patient Intervenors: D. G. Knoechel J. L. Gould M. Freedman Appearing on behalf of the British Columbia Anesthesiologists’ Society: Dr. R. Orfaly 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 3/599 Place and Dates of Trial: Vancouver, B.C. September 6-9; 12-16; 19-23, 2016 October 3-7; 11-14; 17-21; 31, 2016 November 1-4; 7; 14-18; 28-30, 2016 December 1-2; 5-9; 12-14, 2016 January 16-19; 23-24; 26-27, 2017 February 6-10; 14; 21; 23-24, 2017 March 6-10; 13-17, 2017 April 3; 5-6; 10, 2017 April 9-13; 16-20; 23-26, 2018 May 30-31, 2018 June 11-15; 28, 2018 July 3-5; 9; 11-13, 2018 September 4-5; 11; 14; 17-19, 2018 October 1; 3-5, 2018 November 19-20, 2018 December 3, 2018 February 4-8; 12-13; 20-22, 2019 March 4; 6; 8; 15, 2019 April 8; 12; 15-17; 29-30, 2019 May 1; 6-10; 13-16; 27; 29, 2019 June 4-6; 10-11; 13; 17-21, 2019 July 9-12; 15-19, 2019 November 18-22; 25-29, 2019 December 2, 2019 February 25-28, 2020 Place and Date of Judgment: Vancouver, B.C. September 10, 2020 Table of Contents Paragraph Range SUMMARY OF JUDGMENT [1] - [23] A. INTRODUCTION [24] - [39] (a) The plaintiffs’ claim [30] - [30] (b) Response [31] - [34] (c) Counterclaim [35] - [39] B. BACKGROUND [40] - [159] (a) The Parties and Intervenors [40] - [53] (i) Plaintiffs [40] - [43] (ii) Defendant [44] - [44] (iii) The Attorney General of Canada [45] - [45] (iv) Patient Intervenors, Coalition Intervenors and British Columbia Anesthesiologists’ Society [46] - [53] (b) Voluminous litigation [54] - [65] (c) Procedural history [66] - [159] (i) The pleadings [68] - [71] (ii) Development of the plaintiffs’ claim [72] - [91] 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 4/599 (iii) The trial [92] - [112] (iv) Expert evidence [113] - [120] (v) Documentary evidence [121] - [131] (vi) Adjournment of the evidence [132] - [146] (vii) Amendments to the MPA [147] - [159] C. HISTORY OF PUBLIC HEALTHCARE AND WAIT TIME INITIATIVES [160] - [246] (a) The origins of public healthcare in Canada and British Columbia [162] - [169] (b) Public healthcare in Canada [170] - [179] (c) Public healthcare in British Columbia [180] - [192] (d) Canada Health Act [193] - [198] (e) The Medicare Protection Act [199] - [207] (f) Canada’s and British Columbia’s efforts to address wait times [208] - [236] (g) Summary: history of public healthcare, the MPA and the CHA [237] - [246] D. PUBLIC HEALTHCARE IN BRITISH COLUMBIA [247] - [351] (a) The Ministry of Health [252] - [253] (b) Medical Services Commission (the “MSC”) [254] - [256] (c) Medical Services Plan (“MSP”) [257] - [261] (d) Health authorities [262] - [276] (e) Healthcare delivery and physicians [277] - [296] (f) Diagnostics [297] - [302] (g) Medical education and training [303] - [325] (h) WorkSafeBC - the Workers’ Compensation System [326] - [342] (i) Funding of the healthcare system in British Columbia [343] - [348] (j) Summary: public healthcare in British Columbia [349] - [351] E. PRIVATE HEALTHCARE IN BRITISH COLUMBIA [352] - [401] (a) Six private clinics [369] - [395] (i) Cambie Surgery Centre [370] - [373] (ii) Specialist Referral Clinic [374] - [379] (iii) False Creek Surgical Centre [380] - [382] (iv) Kamloops Surgical Centre [383] - [384] (v) White Rock Orthopaedic Centre [385] - [387] (vi) Okanagan Health Surgical Centre [388] - [395] (b) (Non) enforcement of the impugned provisions [396] - [401] F. EVIDENCE OF PATIENTS AND PHYSICIANS [402] - [931] (a) Preliminary objections to the plaintiffs’ lay witnesses [403] - [415] (b) The patient journey [416] - [444] (c) The patients [445] - [451] (d) Summaries of evidence of patient plaintiffs [452] - [566] (i) Mandy Martens [453] - [469] (ii) Walid Khalfallah [470] - [498] (iii) Chris Chiavatti [499] - [514] 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 5/599 (iv) Krystiana Corrado [515] - [538] (v) Erma Krahn [539] - [566] (e) Summaries of evidence of patient witnesses [567] - [645] (i) Monique Forster [569] - [581] (ii) Barbara Collin [582] - [589] (iii) Grant Pearson [590] - [606] (iv) Michelle Graham [607] - [613] (v) Marshal Van de Kamp [614] - [626] (vi) Denise Tessier [627] - [645] (f) Summaries of evidence of Patient Intervenors [646] - [712] (i) Kyle Doyle [648] - [656] (ii) Larry Cross [657] - [671] (iii) Mariël Schooff [672] - [685] (iv) Carol Welch [686] - [695] (v) Myrna Allison [696] - [700] (vi) Peggy Eburne [701] - [712] (g) Summaries of the lay evidence of physicians [713] - [931] (i) Orthopedic Surgery: Dr. Brian Day [716] - [750] (ii) Other orthopedic surgeons: Drs. Costa, Douglas, Dvorak, Hollinshead, Masri, Nacht, Outerbridge, Penner, Regan, Reilly, Smit, Tarazi, Wing, Younger [751] - [803] (iii) Neurosurgery: Dr. Sahjpaul [804] - [815] (iv) Sports medicine: Dr. Taunton [816] - [819] (v) Pediatrics: Drs. Warshawski, Nouri [820] - [827] (vi) Family (or general) medicine: Drs. Weckworth, Hansen, Samaroo, Reddoch, McCracken, Hendry [828] - [838] (vii) Ophthalmology: Drs. Wade, Parkinson [839] - [855] (viii) General Surgery: Dr. Lauzon [856] - [870] (ix) Plastic Surgery: Drs. Van Laeken, Peterson [871] - [883] (x) Sinus Surgery: Dr. Javer [884] - [898] (xi) Anesthesiology: Drs. Godley, Honeywood, Orfaly [899] - [910] (xii) Other physicians: Drs. Adrian, Smith [911] - [923] (xiii) Summary: lay physicians’ evidence [924] - [931] G. ADMINISTRATIVE WITNESSES [932] - [1063] (a) The state of surgical wait times [935] - [961] (i) The surgical patient registry (SPR) [936] - [944] (ii) Wait One and Wait Two [945] - [953] (iii) Prioritization codes [954] - [961] (b) Factors that contribute to the surgical wait times [962] - [980] (i) Lack of operating room availability and post-surgical beds [963] - [965] (ii) Surgical slowdown [966] - [966] (iii) A shortage of anesthesiologists [967] - [972] (iv) Shortage of operating room nurses [973] - [975] 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 6/599 (v) Age of the patient population [976] - [977] (vi) Proactive screenings [978] - [980] (c) Efforts to reduce surgical wait times [981] - [1037] (i) Implementing policy [982] - [995] (ii) Using advanced practice physiotherapists [996] - [999] (iii) Directing patients to other physicians [1000] - [1000] (iv) Contracts with private surgical centres [1001] - [1006] (v) Opening new hospitals and operating rooms [1007] - [1010] (vi) Improving operating room efficiency [1011] - [1015] (vii) Recruiting anesthesiologists [1016] - [1017] (viii) Improving training for operating room nurses [1018] - [1022] (ix) Making scheduling a shared responsibility of the health authorities and surgeons [1023] - [1023] (x) Transitioning to a central referral/intake system [1024] - [1032] (xi) Improving referrals [1033] - [1033] (xii) Providing out-of-province and out-of-country care [1034] - [1037] (d) Operation and enforcement of the MPA and the CHA [1038] - [1053] (e) Differences between MSP, WorkSafeBC and ICBC [1054] - [1057] (f) Other witnesses [1058] - [1063] H. EXPERT EVIDENCE [1064] - [1152] (a) Disputes over expert evidence [1066] - [1152] (i) Legal context [1069] - [1081] (ii) Scope of expert reports [1082] - [1089] (iii) Form and content of expert reports [1090] - [1099] (iv) Independence and impartiality of experts [1100] - [1103] (v) Experts’ affiliations and associations with parties [1104] - [1110] (vi) Pecuniary interest in the outcome of the litigation [1111] - [1114] (vii) Dr. Day’s communications to certain experts [1115] - [1139] (viii) Other issues with plaintiffs’ experts [1140] - [1152] I. INTRODUCTORY ISSUES [1153] - [1198] (a) Standing of the corporate plaintiffs [1155] - [1172] (b) Scope of the plaintiffs’ pleadings [1173] - [1185] (c) Urgent and emergent medical care [1186] - [1198] J. WAIT TIMES [1199] - [1367] (a) Introduction [1199] - [1208] (b) Measuring wait times: patients and physicians [1209] - [1281] (i) Patients views on wait times [1210] - [1223] (ii) Measuring patient views on wait times [1224] - [1237] (iii) Physicians’ views of wait times [1238] - [1253] (iv) Measuring physicians’ views on wait times [1254] - [1281] (c) Priority codes and benchmarks [1282] - [1339] (i) Federal benchmarks [1288] - [1295] 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 7/599 (ii) British Columbia priority codes [1296] - [1307] (iii) The significance of benchmarks and priority codes [1308] - [1329] (iv) Summary: benchmarks and priority codes [1330] - [1339] (d) Causes of wait times [1340] - [1356] (e) Wait times today [1357] - [1367] K. SECTION 7: THE JURISPRUDENCE [1368] - [1555] (a) Two stage analysis - deprivation and principles of fundamental justice [1372] - [1385] (i) Stage one: life, liberty and security of the person [1376] - [1379] (ii) Stage two: principles of fundamental justice [1380] - [1385] (b) Section 7 authorities [1386] - [1555] (i) R. v. Morgentaler, [1988] 1 S.C.R. 30 [1387] - [1393] (ii) Chaoulli v. Quebec (Attorney General), 2005 SCC 35 [1394] - [1429] (iii) Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (“Insite”) [1430] - [1443] (iv) Canada (Attorney General) v. Bedford, 2013 SCC 72 [1444] - [1480] (v) Carter v. Canada (Attorney General), 2015 SCC 5 [1481] - [1494] (vi) The significance of Chaoulli [1495] - [1529] (vii) Summary: The analytical framework for section 7 [1530] - [1541] (viii) Burden of proof [1542] - [1555] L. DEPRIVATION OF LIFE, LIBERTY OR SECURITY OF THE PERSON [1556] - [1806] (a) Introduction [1556] - [1558] (b) Positions of the parties [1559] - [1570] (c) Legal issues under section 7 of the Charter [1571] - [1642] (i) The legal context: the scope of section 7 rights [1573] - [1589] (ii) Causal link for proving deprivation under section 7 [1590] - [1616] (iii) Are Morgentaler, Insite, Bedford and Carter distinguishable? [1617] - [1631] (iv) Summary: legal context [1632] - [1642] (d) Understanding wait times [1643] - [1739] (i) SPR wait time data [1645] - [1664] (ii) The expert evidence on harm of wait times [1665] - [1708] (iii) The “clinically significant” threshold for waiting [1709] - [1735] (iv) Summary: wait times [1736] - [1739] (e) Deprivation of rights under section 7 of the Charter [1740] - [1806] (i) Right to life [1748] - [1763] (ii) Right to liberty [1764] - [1768] (iii) Right to security of the person [1769] - [1806] a. Harms from waiting or from underlying medical condition? [1775] - [1779] b. Subjective vs. objective evidence on harms of wait times [1780] - [1793] c. Conclusions on individual and general evidence [1794] - [1798] d. Proof of psychological harm [1799] - [1806] M. PATIENT PLAINTIFFS AND PATIENT WITNESSES [1807] - [1942] (a) Mandy Martens [1811] - [1822] 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 8/599 (b) Walid Khalfallah [1823] - [1829] (c) Chris Chiavatti [1830] - [1836] (d) Krystiana Corrado [1837] - [1844] (e) Erma Krahn [1845] - [1852] (f) Patient witnesses [1853] - [1880] (g) Summary: security of the person is engaged for some patients [1881] - [1886] (h) Sufficient causal connection: impugned provisions and harms [1887] - [1907] (i) The unavailability of private surgical services [1908] - [1930] (j) Conclusion: deprivation of security of the person [1931] - [1942] N. PRINCIPLES OF FUNDAMENTAL JUSTICE [1943] - [2064] (a) The legislative purpose and means chosen to achieve the purpose [1946] - [2064] (i) The positions of the parties and intervenors [1954] - [1968] (ii) The purpose of the MPA [1969] - [1998] (iii) The impugned provisions [1999] - [2044] a. Section 14 and sections 18(1) and (2) [2003] - [2020] b. Section 17 [2021] - [2021] c. Section 18(3) [2022] - [2029] d. Section 45 [2030] - [2033] e. The purpose and effects of the impugned provisions [2034] - [2044] (iv) Is deference applicable? [2045] - [2064] O. ARBITRARINESS [2065] - [2670] (a) Introduction [2065] - [2076] (b) Purpose and effect [2077] - [2082] (c) Connection or rational connection [2083] - [2084] (d) Positions of the parties [2085] - [2090] (e) Evidentiary issues [2091] - [2144] (i) Use of studies and articles in the literature [2094] - [2103] (ii) The facts and methodologies used by the experts [2104] - [2123] (iii) Twenty-year history of private healthcare in British Columbia [2124] - [2144] (f) Universal healthcare in other countries and Québec [2145] - [2273] (i) A cautious approach and different systems of healthcare [2152] - [2170] (ii) United Kingdom [2171] - [2188] (iii) New Zealand [2189] - [2203] (iv) Ireland [2204] - [2219] (v) Australia [2220] - [2233] (vi) Québec [2234] - [2256] (vii) Summary: comparisons of healthcare systems [2257] - [2273] (g) The expert evidence: areas of agreement [2274] - [2306] (i) All healthcare systems, public and private are complex and not easily explained [2282] - [2282] (ii) The introduction of private duplicative health insurance would increase the overall demand for health services [2283] - [2286] (iii) The introduction of duplicative private healthcare generates additional [2287] - [2292] 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 9/599 costs and increases the overall costs for health services (iv) Private healthcare has higher administrative costs than public healthcare [2293] - [2294] (v) Private healthcare is predominately purchased by people who are wealthier, healthier and better educated [2295] - [2301] (vi) An important reason that people purchase private health insurance is to get faster access to healthcare services [2302] - [2303] (vii) Summary [2304] - [2306] (h) The expert evidence: issues in dispute [2307] - [2661] (i) Would the introduction of duplicative private healthcare in British Columbia affect wait times in the public system? Would wait times stay the same, decrease or increase? [2308] - [2349] a. Would wait times improve? [2312] - [2317] b. Evidence of Professor Kessler [2318] - [2328] c. Would wait times increase? [2329] - [2345] d. Summary: wait times [2346] - [2349] (ii) Would the introduction of private healthcare reduce the “effort” of physicians in the public system and lead to diversion of resources from the public to the private system? [2350] - [2389] (iii) Would the introduction of duplicative private healthcare and insurance in British Columbia stimulate demand in the public system? [2390] - [2401] (iv) Would healthcare costs rise in the public system? [2402] - [2465] a. Competition for human resources [2408] - [2428] b. The need for regulation and its costs [2429] - [2449] c. Loss of federal funding [2450] - [2462] d. Summary: costs to the public system [2463] - [2465] (v) Would duplicative private healthcare create perverse incentives for physicians and unethical behavior by healthcare providers? [2466] - [2513] a. Self-referrals and conflicts of interest [2470] - [2490] b. False declarations and double billing [2491] - [2505] c. Summary: ethical issues and conflicts of interest [2506] - [2513] (vi) Would the introduction of private healthcare undermine political support for the public system and willingness to fund it through taxes? [2514] - [2530] (vii) Quality of care issues [2531] - [2552] (viii) Professor Kessler’s fourth hypothesis: “Other mechanisms” [2553] - [2561] (ix) Do the impugned provisions of the MPA promote equity? Would striking them down create inequity in terms of access to necessary medical care? [2562] - [2661] a. Equity in access to healthcare [2576] - [2604] b. Equity in utilization of healthcare [2605] - [2632] c. Equity in financing healthcare [2633] - [2639] d. Equity in health and socioeconomic outcomes [2640] - [2655] e. Summary and conclusion: duplicative private healthcare and equity [2656] - [2661] (i) Summary and conclusion on arbitrariness [2662] - [2670] P. OVERBREADTH [2671] - [2711] (a) Introduction [2671] - [2674] 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 10/599 (b) Legal context [2675] - [2678] (c) Discussion [2679] - [2708] (d) Summary and conclusion: overbreadth [2709] - [2711] Q. GROSS DISPROPORTIONALITY [2712] - [2784] (a) Introduction [2715] - [2722] (b) The legal context [2723] - [2729] (c) Discussion [2730] - [2779] (i) Introductory issues [2732] - [2741] (ii) The plaintiffs’ reliance on Insite [2742] - [2752] (iii) Evidence on gross disproportionality [2753] - [2779] (d) Conclusion: gross disproportionality [2780] - [2784] R. SUMMARY AND CONCLUSIONS ON SECTION 7 [2785] - [2803] S. SECTION 15: EQUALITY [2804] - [2874] (a) Introduction [2805] - [2812] (b) The plaintiffs’ section 15 claim [2813] - [2821] (c) The legal context [2822] - [2832] (d) Threshold problems with the plaintiffs’ section 15 claim [2833] - [2846] (e) The first step of section 15(1) [2847] - [2859] (f) The second step of section 15(1) [2860] - [2860] (g) Interest-based theory of discrimination [2861] - [2869] (h) Section 15(2): is the MPA an ameliorative program? [2870] - [2874] T. SECTION 1: REASONABLE AND DEMONSTRABLY JUSTIFIED LIMIT IN A FREE AND DEMOCRATIC SOCIETY [2875] - [2937] (a) Positions of the parties [2878] - [2884] (b) Section 1 and section 7 of the Charter [2885] - [2934] (i) Pressing and substantial objective [2895] - [2903] (ii) Rational connection [2904] - [2909] (iii) Minimal impairment [2910] - [2922] (iv) Proportionality [2923] - [2934] (c) Conclusions on section 1 [2935] - [2937] U. CONCLUSION [2938] - [2943] SCHEDULE I - SCHEDULE II - SCHEDULE III - SCHEDULE IV - ENDNOTES - SUMMARY OF JUDGMENT [1] The plaintiffs claim that ss. 14, 17, 18 and 45 of the Medicare Protection Act (“ MPA ”) violate their rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (“ Charter ”) and that 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 11/599 these violations cannot be saved under s. 1 of the Charter (paras. 24-27, 30). [2] Section 14 of the MPA provides the mechanism of payment to physicians registered under the public provincial health insurance plan (Medical Services Plan or “MSP”) for services rendered to beneficiaries of the public plan (paras. 25, 2003 ‑ 2020). Sections 17 and 18 of the MPA set limits on the prices that physicians can charge MSP for the provision of medically required or necessary services they provide to beneficiaries of British Columbia’s public health insurance plan (paras. 25, 2005-2029, 2041). Section 45 prohibits the sale of private health insurance to beneficiaries of the public plan for medically necessary services that are covered under the plan (paras. 2030-2033, 2041). [3] There is currently private and legal healthcare in British Columbia (paras. 352-355). This includes services not covered under the MPA and services under the MPA provided by private clinics under contract with health authorities (paras. 353-355). There has also been private healthcare over the last 20 years that the plaintiffs admit has been illegal, being contrary to ss. 17 and 18 of the MPA (paras. 356-357, 361, 368-387, 2124-2144). This illegal healthcare is the subject of this litigation. [4] The plaintiffs submit it is unconstitutional to prevent patients from accessing private medically necessary healthcare, including private surgeries, when they are unable to access timely care in the public system (paras. 26-27, 68-69, 73-76). They do not say that the introduction of duplicative private healthcare in British Columbia would necessarily decrease wait times in the public system (paras. 27, 2310). This is consistent with the expert evidence in this trial and there is in fact expert evidence that wait times would actually increase (paras. 2308-2349). [5] The plaintiffs accept that a previous decision regarding a prohibition against duplicative private healthcare insurance in Québec ( Chaoulli v. Quebec (Attorney General) , 2005 SCC 35) is not binding in British Columbia but they say it is persuasive (paras. 27, 1395, 1496). In any event, they acknowledge that the law on s. 7 of the Charter has developed since Chaoulli through later decisions of the Supreme Court of Canada (paras. 1395, 1496). [6] The defendant British Columbia, Canada, the Patient Intervenors and the Coalition Intervenors oppose the plaintiffs’ claim (para. 28). The intervenor British Columbia Association of Anesthesiologists’ Society takes no position on the plaintiffs’ claim but emphasizes certain aspects of wait times in British Columbia that are consistent with the plaintiffs’ allegations (para. 28). [7] A claim challenging a law under s. 7 of the Charter has two stages (paras. 1372-1375). First, a person making a claim challenging a law under s. 7 must establish that the impugned law deprives the person of the right to life, the right to liberty or the right of the security of the person (paras. 1376- 1379). Second, if there has been a deprivation of a right under s. 7, then the person making the claim must also demonstrate that the deprivation is not in accordance with the principles of fundamental justice (paras. 1380-1384). 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 12/599 [8] In this case, under the first stage of s. 7 of the Charter , in the reasons that follow, I find that the plaintiffs have established that unreasonable wait times engage the right to security of the person for some patients, including two of the individual plaintiffs, one of the non-party witnesses and other persons similarly situated (paras. 1807-1942). However, under the second stage of s. 7, I find that the plaintiffs have not established that the right to security of the person has been deprived contrary to the principles of fundamental justice (paras. 1943-2803). Accordingly, the plaintiffs’ claim under s. 7 is dismissed (para. 2803). [9] The legal and factual basis for my decision under the first stage of s. 7 of the Charter includes a conclusion that some patients suffering from non-urgent, deteriorating conditions and waiting for elective surgeries do not receive care in a timely manner (paras. 1807-1886). These patients are assigned a timeframe (or benchmark) by their physicians as part of the triaging process within which they ought to have surgery to avoid an increased risk of harm (paras. 1282-1339). The province’s wait time data shows that there are some patients in most surgical categories who are waiting beyond the benchmark assigned for their condition because of lack of capacity in the public system (paras. 1645- 1664). [10] Based on expert evidence, I find that for some patients waiting beyond their assigned benchmark for their elective surgery increases the risk of deterioration and reduced surgical outcomes (paras. 1665-1708). The wait is clinically significant to their health and wellbeing (paras. 1807-1886). I conclude that in these situations denying patients the ability to avoid unreasonable wait times violates their right to security of the person (paras. 1931-1942). [11] Sections 17, 18(3) and 45 of the MPA do not prohibit private healthcare (para. 1899). Sections 17 and 18(3) deal with billing practices by physicians. More specifically they prohibit some physicians and healthcare facilities, who are providing medically necessary services covered by the public plan, from charging user fees and billing MSP beyond the MSP schedule (paras. 2021-2022). Section 45 prohibits the sale of private health insurance to MSP beneficiaries for medically necessary services covered by the public plan (paras. 2032, 2081, 2568, 2696). Nevertheless, these provisions are intended to prevent, and in fact do prevent, the emergence of a duplicative private healthcare system in British Columbia by restricting the prices physicians can charge patients and the scope of private funding for healthcare (paras. 1899-1906). [12] The impugned provisions do not engage the right to life or the right to liberty under s. 7 (paras. 1748-1768). The expert evidence (including from the plaintiffs’ experts) is that timely and high quality care is provided to patients with urgent and emergent conditions where there is risk to life or limb, and there is no evidence of any deaths caused by waiting in British Columbia (paras. 1748-1763). Therefore, the right to life is not engaged (para. 1763). The liberty interest is not engaged because the challenged provisions of the MPA do not deny patients the freedom to accept or reject medical treatment (paras. 1764-1768). 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 13/599 [13] The second stage under s. 7 is to consider whether the plaintiffs have demonstrated that the deprivation of security of the person is contrary to the principles of fundamental justice (paras. 1380- 1384). They are the principles against arbitrariness, overbreadth and gross disproportionality (paras. 1380-1384). [14] Weighing the totality of the evidence (including extensive expert evidence) I find that the impugned provisions are not arbitrary (paras. 2662-2670). The purpose of the impugned provisions is to preserve and ensure the sustainability of a universal public healthcare system that ensures access to necessary medical care is based on need and not on an individual’s ability to pay (paras. 1969- 2044). The combined effect of the impugned provisions is one of supressing and discouraging the emergence of a parallel duplicative private healthcare system for the financing and provision of necessary medical services to MSP beneficiaries (paras. 2042 ‑ 2044, 2082). [15] The evidence demonstrates that there are multiple connections or rational connections between the purpose and effect of the impugned provisions of the MPA (paras. 2065-2670). These include rational bases for concluding that the introduction of duplicative private healthcare would increase demand for public care, reduce the capacity of the public system to offer medical care, increase the public system’s costs, create perverse incentives for physicians, increase the risk of ethical lapses related to conflicts between the private and public practices of physicians, undermine political support for the public system, and exacerbate inequity in access to medically necessary care (paras. 2274-2670). Indeed, it would create a second tier of preferential healthcare where access is contingent on a person’s ability to pay. As a result, the impugned provisions are not contrary to the principle against arbitrariness (paras. 2065-2670). [16] As well, the expert evidence (including from the plaintiffs’ experts) is that duplicative private healthcare would not decrease wait times in the public system and there is expert evidence that wait times would actually increase (paras. 2308 ‑ 2349). This would cause further inequitable access to timely care. [17] The impugned provisions are not overbroad or grossly disproportionate (paras. 2671-2784). They do not capture conduct unrelated to their purpose, nor is their effect totally out of sync with their purpose (paras. 2671-2784). [18] For these reasons, I conclude the impugned provisions do not violate the s. 7 rights of the plaintiffs or other similarly situated patients in the public system. [19] The plaintiffs’ s. 15 claim also fails (paras. 2804-2874). The impugned provisions do not confer a benefit or impose a burden that draws a discriminatory distinction based on an enumerated or analogous ground (paras. 2847-2859). There is also no evidence to suggest that the impugned provisions have a disproportionate adverse impact on the elderly, the very young or the disabled as alleged by the plaintiffs (para. 2860). I have also declined to consider the plaintiffs’ novel “interest ‑ based” theory relating to s. 15 (paras. 2861-2869). 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 14/599 [20] Since I have not found a breach of ss. 7 or 15 of the Charter , it is not necessary to consider whether the impugned provisions are justified under s. 1 of the Charter (para. 2875). Nevertheless, the unique nature and legal issues of this case make it appropriate to comment on s. 1 (para. 2876). [21] In the context of a complex social program such as healthcare where there is a need to balance conflicting interests and claims over limited resources, a high degree of deference is owed to the government under s. 1 (paras. 2885-2893, 2898, 2922, 2931, 2936). Bearing this in mind, I find that the objectives of the impugned provisions, preserving and ensuring the sustainability of the universal public healthcare system and ensuring access to necessary medical services is based on need and not the ability to pay, are pressing and substantial (paras. 2895-2903). I also find that there is a rational connection between deterring the emergence of a competitive duplicative private healthcare system and these objectives (paras. 2904 ‑ 2909). Finally, the evidence also supports the defendant’s claim that the impugned provisions are minimally impairing and their effects are proportionate to their objectives (paras. 2910-2934). [22] Thus, even if I had found a violation of ss. 7 or 15 of the Charter , I would have nonetheless concluded that the impugned provisions are a reasonable limit on those rights and are demonstrably justified in a free and democratic society under s. 1 (paras. 2935-2937). [23] The plaintiffs’ claim is dismissed (paras. 2938-2940). A. INTRODUCTION [24] The plaintiffs seek to have four provisions of the Medicare Protection Act , R.S.B.C. 1996, c. 286 (“ MPA ”) struck as being unconstitutional. They say their rights to life, liberty and security of the person under s. 7 of the Charter have been violated contrary to the principles of fundamental justice. They also claim their equality rights under s. 15 of the Charter have been violated. And they say that these violations cannot be saved under s. 1 of the Charter [25] The four impugned provisions of the MPA are s. 14 (a medical practitioner can elect to be paid directly by patients who are later reimbursed by the public medical plan), ss. 17 and 18 (limits on direct or extra billing by a medical practitioner) and s. 45 (prohibition on private insurance for “medically required services”). [26] The subject matter of the plaintiffs’ claim is wait times for elective surgery in British Columbia. The plaintiffs submit that, given the state of wait times for care in the public system, patients should have the choice of accessing private care (paid for by them) in order to avoid wait times for medical care in the public system. The main objective of the plaintiffs’ claim is a duplicative private healthcare model which exists in other countries. This is sometimes called a dual system. The plaintiffs describe the inclusion of private healthcare along with public care as a “safety valve” that would permit some patients to avoid the harm of waiting for care. 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 15/599 [27] The plaintiffs do not claim that duplicative private healthcare would reduce wait times in the public system. Instead, the plaintiffs rely on ss. 7 and 15 of the Charter to say that when the defendant cannot guarantee timely care it cannot also maintain its monopoly over medical services and prevent the plaintiffs from accessing alternative and timely private care at their expense. They rely on a previous decision of the Supreme Court of Canada ( Chaoulli v. Quebec (Attorney General), 2005 SCC 35 ) about a similar case in Québec but they accept that it is not binding in British Columbia. [28] The defendant, British Columbia, and Canada oppose the plaintiffs’ claim. The Patient Intervenors and Coalition Intervenors also oppose the plaintiffs’ claim. The British Columbia Anesthesiologists’ Society takes no position on the claim but supports the plaintiffs’ allegations regarding the state of wait times in the province. [29] Attached to this judgment are the following schedules: a) Schedule I : excerpts from the MPA - preamble, s. 1 (definitions), s. 2, and ss. 13-14, 16.1, 17, 18, 45 and 46; b) Schedule II : excerpts from the Canada Health Act - preamble, s. 2 (definitions), and ss. 3-20; c) Schedule III : index of interlocutory rulings pre-trial and during trial; and d) Schedule IV : list of expert witnesses, their qualifications and brief descriptions of their evidence. (a) The plaintiffs’ claim [30] The plaintiffs’ most recent claim is the Fifth Amended Notice of Civil Claim, filed October 17, 2018. They claim that the impugned provisions of the MPA breach ss. 7 and 15 of the Charter and they say these breaches cannot be justified under s. 1 of the Charter (b) Response [31] The most recent response filed by the defendant was filed on October 26, 2018. It opposes the plaintiffs’ claim. [32] In response to the s. 7 claim, the defendant says that none of the impugned provisions either individually or in combination have the effect of depriving the plaintiffs, or any one plaintiff, of their life, liberty, or security of the person. In the alternative, the defendant says that if such deprivation did occur, it was consistent with the principles of fundamental justice. [33] In response to the s. 15 claim, the defendant says the plaintiffs have failed to establish that the impugned provisions in purpose or effect draw a distinction on the basis of an enumerated or analogous ground, specifically age and disability 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 16/599 [34] In the alternative, the defendant says if the impugned provisions constitute a breach of ss. 7 or 15 of the Charter , any such breach is justified under s. 1. (c) Counterclaim [35] Counterclaims were filed in January 2013, on behalf of the defendant, the Minister of Health and the Medical Services Commission against the corporate plaintiffs, Cambie Surgeries Corporation (“Cambie Surgeries”) and the Specialist Referral Clinic (the “SRC”). The counterclaims sought declarations that the two corporate plaintiffs were acting in violation of ss. 17 and 18 of the MPA which prohibit extra billing and user charges when providing medically required services to MSP beneficiaries. The defendant also sought an injunction restraining the corporate plaintiffs from engaging in “Unlawful Billing” of MSP beneficiaries. [36] The counterclaims were discontinued on September 21, 2016. The defendant filed a new counterclaim on October 18, 2016, this time only seeking a declaration that Cambie Surgeries and the SRC had contravened ss. 17(1)(a) and (b) as well as s. 18(3) of the MPA [37] Ultimately, the corporate plaintiffs admitted to having violated these sections of the MPA . Under these circumstances the defendant advised the court during closing submissions that it has decided to abandon its counterclaim as the plaintiffs’ admission that they had contravened the MPA made it unnecessary to issue a declaration. [38] Accordingly, the defendant’s counterclaim is no longer an issue before this court. [39] The evidence and submissions in this trial ended on February 28, 2020, before the COVID-19 pandemic was declared. B. BACKGROUND (a) The Parties and Intervenors (i) Plaintiffs [40] The plaintiffs in this action consist of both corporate plaintiffs, Cambie Surgeries and the SRC, and the four individual plaintiffs. [41] Cambie Surgeries owns and operates the Cambie Surgery Centre, a private surgical clinic located in Vancouver, British Columbia. The clinic is a multi-specialty surgical and diagnostic facility, containing six operating rooms, recovery beds and overnight stay rooms. The clinic is equipped and accredited to standards that are equivalent to those of a major public hospital in British Columbia. Operations, diagnoses, and treatments are performed by physicians who are independent professionals and not employees of Cambie Surgeries. The patients pay Cambie Surgeries which then pays the physicians. There is some history of patients paying for services and MSP being billed for the same services. This is discussed below. 9/10/2020 2020 BCSC 1310 Cambie Surgeries Corporation v. British Columbia (Attorney General) https://www.bccourts.ca/jdb-txt/sc/20/13/2020BCSC1310.htm 17/599 [42] The SRC owns and operates a medical clinic located in Vancouver, British Columbia. It provides expedited assessments and consultations. It also arranges for diagnostic testing ordered by specialists and provides patients with access to Cambie Surgeries if they choose to pursue surgery. If a patient undergoes surgery at the Cambie Surgeries’ clinic, the SRC performs the billing function for Cambie Surgeries in relation to the surgery, pursuant to an agreement between the SRC and Cambie Surgeries. [43] There are four individual plaintiffs in this action. They are Chris Chiavatti, Mandy Martens, Krystiana Corrado, and Walid Khalfallah. Walid Khalfallah was represented by his litigation guardian and mother Debbie Waitkus. Ms. Erma Krahn was originally a plaintiff in this action, but she unfortunately died on April 15, 2014 (unrelated to waiting for any medical treatment). The individual plaintiffs gave evidence regarding their personal experiences in the public healthcare system as discussed in detail below. Ms. Krahn’s evidence was tendered by way of affidavit. There are also comprehensive agreed statements of fact for the individual plaint