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 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)
  • Plaintiffs Notice of Motion 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