Access to quality health care is a fundamental right that should not be determined by one's ability to pay.

And yet, 14 years ago, the CEO of a BC-based for-profit clinic launched a legal battle that aimed to dismantle key protections in the BC Medicare Protection Act ensuring equitable access to care. On April 6, 2023, that battle came to a close when the Supreme Court of Canada released its decision to dismiss Cambie Surgeries Corporation’s application for leave to appeal.

The Supreme Court of Canada’s dismissal means that the concurring decisions at the BC Supreme Court and BC Court of Appeal stand. This affirms the principle, enshrined in the Canada Health Act, that we are all entitled to health care based on need, regardless of our ability to pay.

Last week at the BC Court of Appeal a panel of three judges unanimously dismissed the appeal launched by Cambie Surgeries Corporation (CSC). The appeal was the latest round in the more than a decade-long legal attack on public health care launched by CSC, one of the largest for-profit clinics in Canada. This upholds the landmark 2020 BC Supreme Court ruling against Cambie Surgeries - one of the most comprehensive and longest verdicts in BC Supreme Court history. 

The Court found that the key provisions in the BC Medicare Protection Act at stake that prohibit extra billing and duplicative private insurance for medical necessary procedures are “premised on the principle of equity such that patients are prioritized based on medical need and not ability to pay”. 

The Court also agreed with the 2020 BC Supreme Court decision that the harms of striking down these provisions would result in longer wait times for the vast majority of us who rely on the public health care system. In fact, the Court’s decision underscored that the objective of equitable access to medically necessary services is a fundamental part of our public health care system, noting  “suppressing all private care is necessary” to meet the objective of an equitable health care system.

This latest decision has come at an important time. Our public health care system is under immense pressure - no doubt about that. And we need all hands on deck to strengthen and improve it. We have public solutions that are efficient, evidence-based, and proven to reduce wait times while improving the quality of care in an equitable way. 

With this latest stage in the Cambie case ending, we are refocusing on promoting new and existing public health care improvements such as single entry surgical referral models, which would reduce wait times. At the same time, we continue to raise the alarm in other areas of our health care system where for-profits interests are draining staffing capacity and resources.

The BC Court of Appeal is expected to release its Reasons for Judgment in Cambie Surgeries Corporation v. British Columbia tomorrow morning. 

These are the possible outcomes that we're preparing for:

1. Cambie's appeal is dismissed, and Justice Steeves ruling is upheld
2. Cambie's appeal is partially allowed 
3. The Court of Appeal allows Cambie's appeal, finding that critical provisions in the Medicare Protection Act are unconstitutional 

The legal attack by Cambie Surgeries Corporation, one of the largest for-profit clinics in Canada, sought to invalidate key protections in the BC Medicare Protection Act which prohibit physician extra billing, dual practice and duplicative private insurance for medically necessary procedures. 

The BC Supreme Court ruled against Cambie Surgeries on September 10, 2020 in a landmark decision. At over 800 pages, it was one of the most comprehensive and longest verdicts in BC Supreme Court history. 

This appeal was not about re-examining the evidence - which overwhelmingly showed that a duplicative private health care system would drain our public health care system leaving only the healthy and wealthy to benefit. The appellants are hoping to reverse the previous decision not on the strength of their evidence but on interpretations of the law. 

The BC Health Coalition (BCHC) and Canadian Doctors for Medicare (CDM), along with two doctors and two patients, are intervenors in this case. Spokespeople from both organizations are available for media interviews. 

Last week (June 14-18, 2021) we listened to the BC Court of Appeal’s hearing for the Cambie case.

Appellate courts look at potential errors in how the law was applied in the trial judge’s verdict. The appellants [led by Cambie Surgeries Corporation], however, attempted to re-try some of their arguments by presenting just a small cherry-picked selection of the evidence heard at trial. 

Counsel for the attorneys general of Canada (AG-C) and BC (AG-BC) both argued that equity is a key objective of both the Canada Health Act and the BC Medicare Protection Act (MPA). They also outlined why data on wait times cannot be viewed as black and white, that there are many factors that go into the length of a patient’s wait time (including decisions made by patients and their physicians), and that the appellants have failed to identify how the MPA actually causes those extended wait times.  

The appellants had a few core arguments, all of which were swiftly rebutted by AB-C and AG-BC:

1. They say that some wait times data showing some patients wait longer than the provincial benchmarks is evidence of a “risk” of harm for those patients; a mere risk is, they say, sufficient to invoke Charter rights.
2. They argue that the purpose of the legislation is only to ensure equity in access within BC’s publicly-funded system, not for privately-funded care.
3. They argue that concerns around physician resourcing (draining of resources from the publicly-funded system to care for private pay patients) could be addressed through regulation and point to international examples where they claim this has been successful.

The appellants also argue that this case isn’t about the wealthy having improved access to care. They say that the rise in crowd-funding and community support resources could help everyone pay for faster access to care. Who needs a public health care system when you can use Go-Fund-Me to pay for your surgery instead?!

Our counsel supported both the AG-C and AG-BC in our submission that the objective of the legislation is to ensure equity in access for all patients, both inside and out of the publicly-funded system. We also argued that patients with complex cases depending on the public system would be more harmed by the impacts of the duplicative system than those seeking to pay for quicker access to elective care. 

We remain confident in the strength and breadth of the decision from the BC Supreme Court last September. This case, which involved nearly 200 days in court at the trial level and more than 880 pages in the decision, is one of the most significant in Canadian legal history. We know that the evidence is on our side.

So … what’s next? Unfortunately, again we have to wait. Our legal counsel anticipates that it will be at least 6 months before a verdict is reached in this appeal. Regardless of the outcome we will almost certainly be headed to the Supreme Court of Canada.

As the Coalition Intervenors we remain committed to pursuing the case and will keep you posted along the way. Please encourage your friends and family to sign the pledge in support of public health care so they can learn more about this important fight. We wouldn’t be where we are without the support of people like you, so thank you! We will continue to share updates on the case as we have them.

In September 2020, the BC Supreme Court dealt a strong blow to the efforts of Dr. Brian Day and others to undermine Canada’s public health care system.

The landmark ruling by the court is a comprehensive endorsement of our universal public health care system. It found that duplicate private health care would benefit the wealthy and healthy, and harm the rest of the public by undermining our public health care system. This was the response to a decade-long legal attack launched by one of the largest for-profit clinics in Canada.

Despite our win, we have been dragged back into the courts by Dr. Day and his supporters as they appeal the previous decision. Medicare will be back on trial at the BC Court of Appeal in June 2021. We will be there to defend it and we need your support.

With your help, let’s make sure that public health care in Canada continues to provide care for everyone. Click here to sign our pledge to show your support for public health care!

Help spread the pledge on social media! 

Once you've signed the pledge, you'll be taken to a page with a collection of social media shareables, Facebook profile frames, and a Twibbon campaign (or click here). Help us grow the numbers who pledge to save medicare by downloading the graphics that resonate with you and sharing them on social media. 

With the Cambie appeal hearings coming up the week of June 14, we are inviting you to a webinar on June 2nd at 10am PT / 1pm ET to discuss the details of the case, next steps, and how we will be mobilizing together. Click this link to register for the event. 

While we remain confident in the strength of the verdict at the BC Supreme Court, we must continue to defend public health care through the appeal. Over the years, we have seen that the battle in the court of public opinion is just as crucial as the one in the courtroom, and we need your help to build public support. 

We encourage you to share the webinar on social media by hitting RSVP on the Facebook event page and inviting your friends.

Dr. Brian Day and his corporate allies have a firm plan for privatization and deep pockets to support their agenda. Let's remind him healthcare is for the public, and we intend to keep it that way.

We're pleased to announce that we have been granted intervenor status by the BC Court of Appeal in the Cambie case. This continues to build on the work we’ve been engaged in for the last ten years as we successfully defended public healthcare at the BC Supreme Court.

In September 2020, the BC Supreme Court ruled against Dr. Day and Cambie Surgeries in a landmark victory for public healthcare in BC and nationally. The Court found that Day was seeking to create a two-tiered US-style healthcare system where the wealthy and healthy got the care they needed at the expense of the majority. 

Unfortunately, Day and his supporters filed an appeal of the decision almost immediately proving that this challenge is not about evidence for them but about profits. Last week, the BC Court of Appeal ruled that the Save Medicare coalition (Canadian Doctors for Medicare, the BC Health Coalition, and our patient intervenors) can continue to intervene at the Appeal level. This is big news! It means we can continue to defend our public healthcare system and the landmark decision already passed by the BC Supreme Court. 

Now as we move toward the next steps in the Appeal process, let's revisit the September 2020 decision and why the previous verdict was a huge win for public healthcare.

The BC Health Coalition and Canadian Doctors for Medicare were deeply saddened to learn of the passing of Joseph Arvay, O.C., O.B.C., Q.C. As Coalition Intervenors in the Cambie trial, Joe was a key member of our legal team. In the legal battle to defend public health care in BC, Joe and his team was our voice in the courtroom.

Joe approached the case with not only his tremendous experience as a constitutional lawyer, but also the passion of an advocate determined to protect the public health care system we all rely on. He was our lawyer, but he was also an ally and a friend.

Those who have worked closely with him over the years remarked that every encounter with Joe was both intellectually rewarding and intensely personal. He was known for his rare gift of having a conversation with the judge and everyone in the courtroom - managing to get at the heart of the matters at hand in an engaging and personal way.

While we were fortunate enough to work with him on the Cambie case, the breadth of Joe’s work and the impact he had on Canadian law over the span of his career cannot be overstated. He was a fierce advocate for human rights and social justice and will be remembered as one of Canada’s greatest constitutional litigators.

Joe is perhaps most famous for his role in Carter v. Canada, the case that paved the way for medical assistance in dying. Other landmark cases involved bringing an end to indefinite solitary confinement, defending the right  of a community group to run supervised-injection facilities (Insite), striking down prostitution laws (Bedford), and the 2004 same-sex marriage decision..

At this time, we extend our condolences to  Joe’s family, friends, and colleagues. He will be sorely missed by so many.

(Unceded Coast Salish Territories - Vancouver, BC) In today’s landmark ruling in the Cambie Surgery Centre case, Justice Steeves dealt a strong blow to the efforts of Dr. Brian Day and others to undermine Canada’s publicly-funded health care system. The decade-long legal attack launched by one of the largest for-profit surgical centres in Canada sought to invalidate key sections of the BC Medicare Protection Act (MPA). This decision ensures that access to health care will continue to be based on need and not on ability to pay.

“This is a historic victory against profit-driven health care in Canada,” said Dr. Danyaal Raza, Chair of Canadian Doctors for Medicare. “We know that single-payer publicly-funded health care is the fairest way to pay for health care, rather than forcing patients to pay out-of-pocket or buy private insurance. This case was never about wait times - it was always about profit.”

The sections of the MPA that the plaintiffs sought to strike down are in place to preserve a public health care system in which access to necessary medical care is based on need and not an individual's ability to pay. This case has always been about increasing profits for doctors and investor-owned health care facilities.

“As a group of patients, doctors and health care advocates, we became involved in this case in order to defend and protect public health care,” said Edith MacHattie, co-chair of the BC Health Coalition. “This is a victory for everyone who uses health care in Canada. Even though the attack had been launched in BC, it took aim at the very heart of the Canada Health Act and every provincial health care insurance plan.”

Justice Steeves’ ruling affirmed that access to health care be based on need and not the ability to pay. He wrote that the sections of the MPA challenged in this case are in keeping with the “objectives of 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.”

The recent public health emergency caused by COVID-19 has underscored just how important our public health care system is. This decision protects our ability to endure crises and care for one other into the future.

-30-

For media inquiries please contact:

Katie Arnup, Executive Director of Canadian Doctors for Medicare at 647-289-5205 or [email protected]

Usman Mushtaq, Coordinator with the BC Health Coalition at 604-349-9079 or [email protected]

About the Intervenors:
The BC Health Coalition and Canadian Doctors for Medicare, along with two doctors and two patients, are Intervenors in this case.

The BC Health Coalition (BCHC) advocates for evidence-based improvements to our public health care system, stimulates public education on health care issues, and drives positive change to our health care system through campaigns across the province.

Canadian Doctors for Medicare (CDM) provides a voice for Canadian doctors who want to strengthen and improve Canada's universal publicly-funded health care system. We advocate for innovations in treatment and prevention services that are evidence-based and improve access, quality, equity and sustainability.

Share our victory!

Please visit our Facebook page and share some of these quotes from today's win.