Timeline and Court Documents

Listed below are key (not all) court documents regarding the legal motions, claims, counterclaims, appeals and judgements made by all parties including the plaintiffs, defendants, judges and intervenors in the case. All these documents can be found at the courthouse (for more information, click HERE).

These documents are listed to help clarify both the timeline of the case and the arguments of all parties. Documents are presented to the court and are made public once they are formally filed. Sometimes there is a lag between when they are presented and when they are filed. Dates used are from when a document was submitted to the court. For information about how to access court document, click HERE.

For a Beginners Guide to Legal Definitions, click HERE.

For more detailed information about the civil process at the Supreme Court of BC, click HERE.

Acronyms and short forms used during these proceedings:

AGBC – Attorney General of BC
AGC - Attorney General of Canada
BCAS - BC Anesthesiologists Society
BCCA – BC Court of Appeal
BCHC – BC Health Coalition
BCSC – BC Supreme Court
Cambie – Cambie Surgical Centre (owned by Brian Day)
CDM – Canadian Doctors for Medicare
CIMCA - acronym given to this Charter Challenge by Cambie et al
Etches et al - also known as the Coalition Intervenors, is the intervenor group which includes BCHC, CDM, patients and doctors
MoH – Ministry of Health of British Columbia
MSC – Medical Services Commission of British Columbia
Schoof et al - also known as the Patient Petitioners/Intervenors, is the intervenor gorup which includes the initial group of patients who petitioned MSC to enforce the Medical Protection Act
SRC – Specialist Referral Clinic (owned by Brian Day)

 

2008 and earlier

The impetus for the case began in 2008 when a group of patients filed a legal petition (see amended Petition below) seeking to have the MSC enforce provincial laws that restrict private billing for medical services against Cambie Surgical Centre ("Cambie") and the Specialist Referral Clinic ("SRC"). The Petitioners alleged that the clinics were charging patients for medically necessary services and therefore acting in contravention of the Medicare Protection Act (see affidavits below)

2009

In response to the Patient Petition (above), Cambie and the SRC, along with a corsortium of other for-profit clinics, launched a constitutional challenge against the BC government. The clinics alleged that the provisions of the Medicare Protection Act that the Petitioners wanted enforced are unconstitutional and should be declared of no force and effect.

The Province responded to the constitutional challenge with their first Statement of Defense and Counterclaim against Cambie and SRC:

Both parties responded to each legal claim and counterclaim, further clarifying their positions (see Replies and Statements below).

Official Notice of the Constitutional Challenge

In October 2009, the Plaintiffs file their official constitutional challenge to section 14, 17, 18 and 45 of the Medicare Protection Act and Section 7 and 15 of the Canadian Charter of Rights and Freedom show, as well as how they will proceed.

  • Plaintiffs Notice of Constitutional Questions 2009.08.13 (to come)

Applications for interveners to gain standing in case:

With the case moving forward, the BC Health Coalition and Canadian Doctors for Medicare sought to become involved. Our organizations feared that, without the involvement of intervenors, crucial arguments about the importance of Medicare would go unheard. The BCHC and Canadian Doctors for Medicare were successful in their application for intervenor status in 2009.

MSC does not oppose Intervenor Motion

Plaintiffs oppose Intervenor and Defendant Motion

Other Intervenors

Patient Petitioners
Other parties also apply to become active participants in the Challenge - including the original group of patients who brought the original petition against Cambie.

BC Anesthesiologists’ Society

The Audit of Cambie & SRC

As well, the Province sought to enforce an injunction against Cambie and SRC to prevent them from continuing to extra-bill patients, as well as a declaration from the courts that the clinics were acting in contravention with the impugned laws (see section below). The court ultimately held that until the constitutional issues were resolved, the clinics could continue to operate.

Further to the counterclaims of the MSC and MoH, the Commission applied for a warrant requiring Cambie and SRC to submit to an audit of their practices. Their request was approved and the Commission carried out audits of Cambie and SRC between January - November, 2011. The Commission found that, during a period of less than 30 days, almost half a million dollars in extra-billing had taken place at Cambie. The Province filed a Notice of Application seeking a declaration from the Court that Cambie and SRC had contravened provincial laws restricting private billing and an order that Cambie and SRC be prohibited from continuing to contravene these laws (see 2012 below). The Court ultimately held that, despite the results of the audit, the Province's application for an injunction would be suspended until the constitutional issues in the case had been decided.

Plaintiffs Oppose audit request, and Day admits to contravening MPA in Affidavit

  • SRC Response to MSC Notice of Motion 2009.09.14 (to come)
  • Plaintiff’s Response to MSC Notice of Motion 2009.09.22 (to come)
  • Affidavit#1 of Brian Day (with or without exhibits) 2009.09.14 (to come)

MoH Responses to Brian Day’s Affidavit:

  • Affidavit #1 Craig Knight, Assistant Deputy Minister, MoH 2009.09.29
  • Affidavit #1 Ian Rongve, Executive Director Planning Analysis Branch, MoH (to come)

Plaintiffs Appeal against court approval of the injunction to audit their clinic:

2010 – 2011

  • Notice of Discontinuance removing plaintiffs Canadian Independent Medical Clinics Association, Delbrook Surgical Centre, False Creek Surgical Centre Inc., Okanagan Health Surgical Centre Inc., and Ultimate Medical Services Inc. from proceedings 2010.06.30

Court rules that the Medical Services Commission can audit Cambie:

2012

The Audit Report and injunction against the plaintiffs

MSC Audit Report: SRC and CSC 2012.06.01

Plaintiffs oppose injunction

Plaintiffs oppose Province’s injunction application 2012 11 08

Notice of Application – Abuse of Process Collateral Attack etc 2012.11.18

Affidavits in support of the clinics' opposition to the Province’s injunction application (above):

The Court ultimately held that, despite the results of the audit, the Province's application for an injunction would be suspended until the constitutional issues in the case had been decided.

Plaintiffs apply to include patients as a party to their case

2013

Cambie and SRC submitted a Further Notice of Civil Claim, outlining the material facts for their claim and what they are asking the court do decide upon.

The Province responded to that claim, making further counterclaims which included:

The MoH, in its counterclaim, alleged that there was a strong public interest in maintaining a fair, efficient, and cost-effective health care system and that the clinics’ unlawful billing practices both undermined this public interest and intentionally or recklessly caused economic loss to the province.

The AGBC, in its counterclaim, alleged that the clinics’ practice of having patients sign “Acknowledgment Forms” is unconscionable, oppressive, unlawful, inconsistent with public policy and constitutes a public nuisance.

In the final counterclaim, the MSC sought a declaration from the Court that Cambie and SRC have violated the Medicare Protection Act as well as interim and permanent injunctions to prevent Cambie and SRC from continuing to violate the Act.

Activities in 2013 and 2014 were primarily “Discovery.” Both parties submitted their Lists of Documents so the other parties could start to build a more detailed case based on each others’ arguments. This also included Expert Witness Affidavits and several requests by the Province, through the courts, to the Plaintiffs, requesting the information they required.

2014

The Discovery process continues:

BCHC and CDM apply to present expert evidence in court as part of the proceedings

Application for Intervenors to adduce evidence:

Coalition Intervenors are granted the right to present evidence in court of two experts: Marie-Claude Premont will present expert evidence illustrating how restraints on Medicare after Quebec's Chaoulli case undermined patient access to care. Dr. David Himmelstein will present expert evidence on the US health care system, the costs that for-profit health care and health insurance could have for Canada, and the high likelihood that US-based insurance companies will seize the opportunity to invest in a more private health care sector in Canada.

Trial postponed for parties to reach resolution

In September 2014, the plaintiffs asked for postponement of trial for 6 months to try and negotiate a resolution with the defendants. New trial date, if no resolution, to be in March 2015.

Discovery continues throughout this period.

2015

Trial to move ahead, but is postponed due to document discovery

In February 2015, the Ministry of Health realized it had not released thousands of documents as part of the discovery process. The trial, which was to possibly start in March 2015 was delayed again until the fall of 2015 in order for both parties to go over the documents.

On-going audit of Cambie

From the original audit of Cambie Surgeries there were a number of instances where it looked like there could be double-billing (both MSP and the patient charged for the same service) by certain surgeons. The Medical Services Commission, as part of it mandate, was moving forward with an audit of these specific charges, and wanted access to Cambie’s accounting books for the specific surgeons in question. The Plaintiffs filed an injunction to have MSC not move forward with these audits.

MSC Amended Counterclaim 2015 05 06

2016

The Ministry of Health document examination process ended up taking longer than expected and the trial was rescheduled for June 2016, and then due to sporadic summer availability of the different parties was rescheduled for September 6, 2016.

During this time, discovery continued, along with trial preparation.

Plaintiffs' Fourth Amended Notice of Civil Claim 2016 03 14

MSC Response to Fourth Amended Notice of Civil Claim 2016 03 14

Plaintiffs' Amended Notice of Constitutional Question 2016 03 15 (to come)

Trial Judge Steeves is assigned 2016 03 23

Coalition Intervenors question Cambie's to claim public interest standing

Attorney General of Canada participates

In June 2016, The Attorney General of Canada takes a role as a party in the Charter Challenge.

September 6, 2016 - Trial Begins

Pacific Newspaper Group re-applied for authorization to video record-broadcast

On the Defendant's side, the Medical Services Commission and the Minister of Health both dropped their Counterclaims against the Plaintiffs, Cambie et al, leaving the Attorney General of BC to be the sole party for the Defendant's. The AGBC amended their Counterclaim.

April 10, 2017 to April 9, 2018 - Trial is adjourned

The first 6 months were at the request of the Plaintiffs. The remaining time was due to the Ministry of Health realizing that it missed thousands of pages of data in its initial searches as part of the Plaintiff’s discovery process. It took several months for the parties to collect and analyze the data.

During the adjournment, the parties also scheduled times to deal with procedural and case management issues that would hopefully speed up the trial once it restarted. Other applications included the validity of the plaintiffs expanding their witness lists, and what evidence from the witnesses was allowable.

September 6, 2016 to April 8, 2019 - Plaintiff’s Case 

Over this time, more than 140 days were spent in the courtroom and 70 witnesses took the stand to be cross-examined.

Note: Only those witnesses who were to be cross-examined actually took the stand during the trial. Other witnesses’ evidence was entered through their affidavit alone.

April 2018 to September 2019 - Injunction over enforcement of unlawful extra-billing 

  • April 2018 - the BC government announced that it would be bringing into force outstanding sections of the 2003 Medicare Protection Amendment Act (MPAA). Although the MPAA was initially brought forward in 2003, most of its provisions were never enforced due to pressure from the owners of for-profit surgical clinics and the BC Medical Association (now Doctors of BC). With implementation of the new provisions, the government attempted to clarify the rules around extra billing, authorized the Medical Services Commission to refund patients in cases of extra billing, and set out consequences for breaking those rules. 
  • July 2018 - In response to the province’s announcement, Cambie Surgeries applied for an injunction to stop the enforcement of the Act, arguing that it was the status quo for private clinics to operate without these penalties and this status quo should be maintained until the underlying legal challenge has been heard. 
  • November 2018 - the BC Supreme Court granted an injunction preventing the enforcement of ss. 17, 18 and 45 of the Medicare Protection Act (MPA) until June 1, 2019. These provisions prohibit direct billing, extra-billing, and private insurance. The following break down was provided to us by our lawyers:
    • Section 17: 17(1)  prohibits medical practitioners from charging for a benefit under the MPA or for a related service (such as the use of a clinic), except as permitted by the MPA, the regulations, or the Commission. Under s. 17(1.2), any contract to pay such a charge is unenforceable. Subsection 17(2) states that s. 17(1) does not does not apply if the person receiving the medical service is not enrolled as a beneficiary under the MSP; if the Commission does not consider the medical services to be a “benefit", if the practitioner elects or is deemed to have elected to be paid for the service directly by the beneficiary under the MPA; or if the practitioner is not enrolled in the Plan.
    • Section 18 prohibits extra billing for benefits rendered by medical practitioners who are not enrolled in the Plan. Subs. (2) clarifies that subs. (1) applies only to benefits rendered in certain provincially-regulated medical care facilities. Subs. (3) prohibits extra billing by practitioners who elect, or are deemed to have elected, to be paid for benefits directly by a beneficiary. Subs. (4) makes contracts to pay extra billing charges to practitioners who are not enrolled in the Plan, unenforceable.
    • Section 45 prohibits and renders void private insurance contracts covering the costs of benefits under the MPA. It does not apply to those classes of costs or insurance described in s. 45(2).
  • January 2019 - The government tried to appeal the injunction decision, but they were denied leave to do so.
  • March 2019 - the government delayed the enactment of penalties for doctors providing expedited treatment to patients in private clinics. Section 18.1 of the Medicare Protection Act will not come into force until March 31, 2020, which is the deadline the federal government gave to all the provinces to get their diagnostic enforcement rules in place.
  • May 2019 - The BC government had started requiring doctors and other health care providers to sign Compliance Statements indicating that they wouldn’t illegally bill patients, and refusing to award public contracts to those who were non-compliant. The Cambie plaintiffs applied to court seeking to declare the statements contrary to the original injunction decision. The court dismissed their application and ruled that Cambie would have to bring “a contempt of court proceeding” against the government if it wants to challenge the Compliance Statements. 
  • June 2019 - the injunction was set to expire and the Province consented to a one-month extension, but that has also expired. This means that there is currently no injunction in place against enforcement of the Act. 
  • July 2019 - The Cambie Plaintiffs applied for a new injunction, but the hearing of that application, which was scheduled for 21 August, has been adjourned because it could not have been completed during the three days set aside for it.
  • September 2019 - The BC government consented to an order that the Medical Services Commission will not act on its new enforcement powers regarding "any privately funded surgeries or procedures at private surgical clinics", until a final decision has been made by the court on Cambie's constitutional challenge. As a result, no further hearing on the injunction application will occur.


April 16, 2019 to July 19, 2019 - Canada’s Case 

Four witnesses took the stand periodically over this time for cross-examination by the Plaintiffs.

May 6, 2019 - June 21, 2019 - Intervenors’ Cases

  • Patient Intervenors - two lay witnesses took the stand on April 15 and May 16
  • BCAS - one lay witness took the stand on May 6
  • Coalition Intervenors - two expert witnesses took the stand on May 13 and June 21 

May 7, 2019 to July 17, 2019 - Defense’s Case

Twenty-two witnesses took the stand for cross-examination.

Last day of evidence was on July 19, 2019 -  over three years, 102 witnesses were cross-examined over 179 days of trial time (not counting trial management meetings).

September 2019 to December 2019 - Closing Arguments

Written arguments were completed by November 1

November 18 - December 6, 2019 - Oral Closing Statements

  • November 18 - 23 - Plaintiffs
  • November 25 - BCAS
  • November 25 & 26 - Canada
  • November 26 - December 3 - Defense
  • December 3-4 - Canada
  • December 4 - Patient Intervenors
  • December 5 - Coalition Intervenors
  • December 5-6 - Plaintiffs’ Response

 

Unknown (sometime in 2020) - Court Judgement