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)
- Affidavit of Barbara Gosling 2006.12.12
- Affidavit of Terry Gosling 2006.12.12
- Affidavit of Myrna Allison 2007.02.28
- Affidavit of Carol Welch 2008.12.04
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.
- Writ of Statement of Claim 2009.01.28 – Original claim made by the consortium of for-profit clinics against the provisions of the Medicare Protection Act
- Amended Notice of Claim - filed 2012.09.13
- Further Amended Notice of Claim 2013.01.10
- Third Amended Notice of Civil Claim 2014.03.25
- Fourth Amended Notice of Civil Claim 2016.03.14
- Amended Petition submitted by the Petitioners 2009.10.01
- Writ of Summons filed by the clinics 2009.01.28
The Province responded to the constitutional challenge with their first Statement of Defense and Counterclaim against Cambie and SRC:
- MSC Statement of Defense and Counterclaim 2009.02.20
Both parties responded to each legal claim and counterclaim, further clarifying their positions (see Replies and Statements below).
- Reply of Plaintiffs and Defense to Counterclaim 2009.03.30
- Reply of the MoH to the Statement of Defense of Plaintiffs and Defendants by Counterclaim 2009.04.06
- Reply of the MSC to the Statement of Defense of Plaintiffs 2009.04.06
- Statement of Defense to Counterclaim filed by SRC 2009.05.04
- Reply on behalf of the MSC to the Statement of Defense of SRC 2009.05.13
- Affidavit #1 Bob de Faye, Chair of Medical Services Commission 2009.07.23
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.
- Affidavit #1 Dr. Duncan Etches 2009.08.13
- Affidavit #1 Joyce Jones 2009.08.13
- Affidavit #1 Dr. Robert Woollard 2009.08.13
- Affidavit #1 Glyn Townson 2009.08.14
- Affidavit #1 Thomas McGregor 2009.08.14
MSC does not oppose Intervenor Motion
Plaintiffs oppose Intervenor and Defendant Motion
Other parties also apply to become active participants in the Challenge - including the original group of patients who brought the original petition against Cambie.
- BCSC decision granting intervenor status to Schoof et al. 2010.07.02
- Court’s Reasons for Judgement 2010.07.02
BC Anesthesiologists’ Society
- BCAS Notice of Application 2012.09.19
- BCSC decision granting intervenor status to BC Anesthesiologists' Society 2012.10.15
- Further Notice of Application 2014.05.06
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.
- Initial MSC Notice of Motion 2009.08.18
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:
- Cambie Notice of Appeal 2009.12.16
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:
- BCCA Ruling allowing MSC to audit CSC 2010.09.09
The Audit Report and injunction against the plaintiffs
MSC Audit Report: SRC and CSC 2012.06.01
- MSC Motion of Application for injunction, requesting Cambie and SRC be prohibited from charging patients “an amount greater than the amount payable under the MP Act” 2012.08.22
- Notice of Application filed by MSC 2012.09.06
Plaintiffs oppose injunction
Affidavits in support of the clinics' opposition to the Province’s injunction application (above):
- Affidavit #1 Debra Sutherland 2012.11.08 (large file-to come)
- Affidavit #1 Derryk Smith 2012.10.11
- Affidavit #1 Dr. Leslie Vertesi 2012.10.11
- Affidavit #1 William Regan 2012.10.10
- Affidavit #1 Anokh Aadmi 2012.10.05
- Affidavit #1 Dr. Mark Adrian 2012.10.05
- Affidavit #1 Dr. Marcel Dvorak 2012.10.05
- Affidavit #1 Dr. Ramesh Sahjpaul 2012.10.05
- Affidavit #1 Barbara Collin 2012.10.04
- Affidavit #1 Antoni Otto 2012.10.04
- Affidavit #1 Janet Walker 2012.10.04
- Affidavit #1 Alastair Younger 2012.10.04
- Affidavit #1 Gordon Denford 2012.10.03
- Affidavit #1 Ross Davidson 2012.10.02
- Affidavit #4 Brian Day 2012.10.02
- Affidavit #1 Dr. Richard Kramer 2012.10.02
- Affidavit #1 Bassam Masri 2012.10.02
- Affidavit #1 Zoltan Nagy 2012.09.12
- Affidavit #1 Debbie Waitkus 2012.09.02
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
- Plaintiffs' Notice of Application 2012 07 31
- Affidavit #1 of Rita Chiaveatti 2012.09.25
- Affidavit #1 Mandy Martens 2012.09.26
- Affidavit #1 Krystiana Corrado 2012.09.25
- Affidavit #1 Erma Krahn 2012.09.24
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:
- MSC Response to Further Amended Civil Claim 2013.01.11
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.
- MoH Counterclaim 2013.01.11
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.
- AGBC Counterclaim 2013.01.11
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.
- MSC Counterclaim 2013.01.11
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.
- Summary of Crown Expert Witnesses (Colleen Fuller)
- Affidavit #1 Tracy Tso (includes Plaintiffs list of expert witnesses) 2013.10.08 (to come)
- MSC Notice of Application (asking for the Plaintiffs to produce court documents already approved as part of Discovery) 2013.09.20
- Plaintiff’s Response to MSC Notice of Application 2013.10.08
- Affidavit #5 Brian Day 2013.10.09
- Order of Judgement of Judge Cullen 2013.10.21
- Oral Reasons for Judgement 2013.10.21
The Discovery process continues:
- MSC Notice of Application re: examination of Lauzon et al (surgeons working at Cambie) 2014.01.24
- MSC Notice of Application re: examination of Smit et al 2014.01.24
- Plaintiffs Response to Lauzon Application 2014.01.31
- Reasons for Judgement of Judge Cullen regarding Defendants examining above parties under oath 2014.03.05 (NSF)
- Affadavit #1 Heather Lewis (containing materials pertaining to the above examinations, including transcripts of Lauzon et al examinations) 2014.04.29
- Affadavit #1 Paul McEwen (explaining the need for source accounting information to really understand how billing works at Cambie and SRC) 2014.04.29
- MSC Notice of Application (asking for information needed, and approved for by the court, regarding billing practices by the Plaintiffs) 2014.04.29
- Plaintiffs’ Notice of Application #1(requesting all information gathered through auditing Cambie and SRC) 2014.04.29
- Plaintiffs’ Notice of Application #2 (requesting information regarding financial and policy decisions made by Defendants in the provisions of public health care in BC including costs, resource allocation, wait times etc.) 2014.04.29
- MSC response to plaintiffs' Notice of Application 2014 05 05
- MSC Notice of Application (to hire forensic accountants to further investigate Cambie accounting practices) 2014 07 11
- Order of Judge Cullen in response to MSC Notice of Application (agreeing to the hiring of forensic accountants) 2014 07 22
BCHC and CDM apply to present expert evidence in court as part of the proceedings
Application for Intervenors to adduce evidence:
- Notice of Application for Interveners' Etches - CDM to adduce expert evidence 2014.04.24
- Affidavit #1 Adam Lynes-Ford 2014.04.17
- MSC Response to Application 2014.05.05
- Response to Application by Plaintiffs 2014.05.07
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.
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.
- Plaintiffs Notice of Application_injunction 2015 09 28 (large file - to come)
- Affidavit #7 Dr. Brian Day 2015 09 28
- Affidavit #7 of Stephen Abercrombie 2015 09 28
- MSC Application Response 2015 09 29
- Plaintiffs written argument_stay application 2015 10 19
- Plaintiffs Notice of Application_stay MSC motion to strike 2015 10 20
- MSC Application Response_motion to strike 2015 10 27
- Order of Cullen CJ_motion to strike-stay 2015 11 25
- Reasons for Judgement of Cullen CJ_motion to strike-stay 2015 11 25
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' 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
- Coalition Intervenors objection to CSC claim to public interest standing 2016 04 21 (to come)
- Plaintiffs' Response to application re: public interest standing 2016 05 03 (to come)
- MSC Application response to public interest standing objection 2016 05 17
- AGC application response to public interest standing objection 2016 05 18
- Plaintiffs' reply response to MSC response 2016 06 10 (to come)
- Reasons for judgement of Judge Steeves regarding public standing objection 2016 07 12) (intervenors do not have the right to question party standing in a case; and Judge would not state whether CSC has public interest standing, but they have private interest standing in the case and therefore have full rights as a party in the case)
Attorney General of Canada participates
In June 2016, The Attorney General of Canada takes a role as a party in the Charter Challenge.
- AGC Trial Brief 2016 08 05
- Plaintiffs Trial Brief 2016 08 02
- MSC’s Third Revised Trial Brief 2016 08 05
- Pacific Newspaper Group Application for authorization to video record-broadcast 2016 08 23
- Plaintiffs' Consent to video recording or broadcast (to come)
September 6, 2016 - Trial Begins
- Plaintiff's Opening Statements 2016 09 06
- Defendant's Opening Statments 2016 09 12
- Patient Intervenor's Opening Statements 2016 09 15
- Coalition Intervenor's Opening Statements 2016 09 15
- BCAS' Opening Statements (to come)
Pacific Newspaper Group re-applied for authorization to video record-broadcast
- Judge Steeves' Oral Response 2016 09 09
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.
- AGBC's Notice of Discontinuance of Counterclaim 2016 09 21
- MSC's Notice of Discontinuance of Counterclaim 2016 09 21
- Minister of Health's Notice of Discontinuance of Counterclaim 2016 09 21
- Plaintiff's Notice of Discontinuance against MSC and Minister of Health 2016 09 21
- AGBC updated Counterclaim 2016 10 18
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 March 2020 - Closing Arguments
Written arguments were completed by November 1, 2019.
November 18, 2019 - February 28, 2020 - Oral Closing Statements
- November 18 - 23 - Plaintiffs
- November 25 - BCAS
- November 25 & 26 - Canada
- November 26 - December 3 - Defense
- February 25-26 - Canada
- February 26 - Patient Intervenors
- February 27 - Coalition Intervenors
- February 27-28 - Plaintiffs’ Response
Unknown (sometime in 2020) - Court Judgement