British Columbia Court of Appeal rules against expansion of private health care | Knowledge
Recently, the British Columbia Court of Appeal (the “BCCA”) released its decision in the case of Cambie Surgeries Corporation v. British Columbia (Attorney General). The case raised questions about the constitutionality of the Medicare Protection Act (British Columbia) (the “MPA”), which limits the ability of residents of British Columbia to pay privately for medically necessary health care services. At trial, the plaintiffs argued that this restriction violates the Canadian Charter of Rights and Freedoms (the “Charter”) as it prevents residents of British Columbia from accessing private medical treatment when the public system cannot provide timely care.
In 2020, the Supreme Court of British Columbia dismissed the plaintiffs’ claim. The plaintiffs (appellants) appealed against this judgment to the BCCA.
In July 2022, the BCCA rendered its judgment, dismissing the appeal and upholding the disputed provisions of the MPA.
As noted above, the appellants alleged that sections 14, 17, 18 and 45 of the MPA are unconstitutional because they prevent BC patients from accessing private care when wait times in the public system are too long.
The appellants argued that the impugned provisions violate the patients’ rights to life, liberty and security of the person guaranteed by section 7 of the Charter and are not saved by section 1. The appellants allege that the trial judge made multiple errors of fact and law in his analyzes of section 7 and section 1. In addition, the appellants allege that the judge erred in his application principles of fundamental justice.
The BCCA dismissed the appeal. The majority concluded that while the impugned provisions deprive some patients of their rights to life and security of the person, they do so in accordance with the principles of fundamental justice. In concurring reasons, Justice Fenlon also wrote that the appeal should be dismissed because, even if the provisions violate section 7 of the Charter, such a violation is justified under section 1.
The BCCA noted that the test for showing a violation of section 7 of the Charter is a two-step process. First, there must be evidence “that the law impairs or deprives [citizens] life, liberty or security of person”. Second, it must also be proven that the deprivation does not comply with the principles of fundamental justice.
The majority found that the trial judge erred in his analyzes of the right to life and the right to security of the person, so that the first stage of the test was met. However, the majority found that the appellants had failed to show that the deprivation was not in accordance with the principles of fundamental justice, as they had failed to prove that the law was arbitrary, overbroad or grossly disproportionate. . The majority concluded that the objective of the MPA is to preserve the universal public health care system for medically necessary services and to ensure that access to medical care is based on the patient’s need and not on his or her ability to pay. The majority concluded that the purpose of the MPA is rationally connected to its object and was not arbitrary; that the disputed provisions concerning MPAs are not too broad; and that the impact of the MPA on Section 7 rights is not out of step with the purpose of the law. Therefore, the majority concluded that the test to show a breach of section 7 of the Charter was not met.
In light of their conclusion, the majority did not believe that a section 1 analysis was necessary to determine the case.
In her concurring reasons, Madam Justice Fenlon disagreed with the analysis of the majority and concluded that the impugned provisions of the PPA were manifestly disproportionate to their purpose such that a breach of the section 7 of the Charter was established. However, Justice Fenlon concluded that the violation is justified under section 1 of the Charter.
The battle over the future of private fee-based health services is likely to continue. Privately funded health services remain at the forefront of public consciousness in British Columbia, particularly in light of the provincial government’s recent announcement of a review of privately paid programs in that province. The appellants are almost certain to seek leave to appeal the decision to the Supreme Court of Canada. It will be important to follow the evolution of this seminal case, as it has far-reaching implications for the future of Canada’s public health care system.
 See: Cambie Surgeries Corporation v. British Columbia (Attorney General)2022 BCCA 245.
 Section 14 of the MPA provides the mechanism for payment to physicians for services rendered to residents of British Columbia who are insured under the provincial health insurance plan. Sections 17 and 18 set limits on the prices physicians can charge the provincial plan for providing these services. Section 45 prohibits the sale of private health insurance for medically necessary services covered by the provincial health insurance plan.
 At trial, the plaintiffs/appellants also argued that the impugned provisions violated s. 15 of the Charter. This claim was dismissed at first instance and not pursued on appeal.