The Case

This case is a Charter Challenge to BC’s Medicare Protection Act. The plaintiffs are arguing that this act violates Sections 7 and 15 of the Canadian Charter of Rights and Freedom, and should therefore be struck down.

Specifically, the plaintiffs, Cambie et al, are arguing that:

  • Publicly funded doctors should be able to charge taxpayers in general (through MSP), but should also be able to charge the patients themselves for whatever the market will bear
  • B.C. should lift its ban on the sale of private health insurance for publicly insured service

The sections of the Medicare Protection Act that the plaintiffs are challenging are:

Section 14: Election (enrolled doctors can opt out and bill the patient instead of the Medical Services Plan; in these cases, the patient applies for reimbursement from MSP and the physician cannot bill both the patient and MSP for the same service; enrolled doctors also cannot bill above the tariff negotiated between the government and Doctors of BC[CR1] );

Section 17: General limits on direct or extra billing (an enrolled and opted-in physician cannot bill a patient directly for a service included in MSP, or for “materials, consultations, procedures, use of an office, clinic or other place or for any other matters that relate to the rendering of a benefit”);

Section 18: Limits on direct or extra billing by a medical practitioner (enrolled and unenrolled physicians who practise in a public hospital or community care facility may not bill more than the tariff negotiated between the government and Doctors of BC; this restriction does not apply to unenrolled physicians practising in a nonhospital facility);

Section 45: Private insurers (physicians may not charge private insurers for a service included in the Medical Services Plan; only applies to physicians who are enrolled in the MSP).

Removing these restrictions will allow all doctors to charge patients above MSP rates if they so choose. It will also allow private insurance companies to cover the services that people get for free in the public system.

How does BC’s Medical Protection Act relate to the Canada Health Act?

Medicare rests on a complex web of arrangements among federal and provincial governments, each administering their own laws and regulations upholding the right of Canadians to access health services without being driven into poverty or bankruptcy. At the federal level, the Canada Health Act lays out the conditions—including a ban on extra-billing and user fees—that each province must meet to receive federal cash transfers for health. 

The provinces, in turn, enact laws that establish which services will be publicly funded. Provincial laws are designed to be consistent with the criteria of the Canada Health Act. In B.C., the purpose of the Medicare Protection Act is to preserve a publicly managed insurance plan and a fiscally sustainable health care system in which access to necessary medical care is based on need and not an individual's ability to pay. 

To achieve these objectives, the MPA prohibits extra-billing (charging more than the fees established in the MSP’s payment schedule) and the sale of private health insurance for publicly insured health services. It also prevents doctors from collecting fees from the MSP and then billing additional fees to patients for the same service, a practice known as double-billing. Finally, B.C.’s medicare laws ban facility fees at private surgical clinics, making it illegal for private clinics to charge fees to cover their overheads.

B.C.’s medicare laws do not prevent doctors or clinics from operating on an exclusively private basis. Doctors can legally withdraw from B.C.’s public insurance plan and charge patients directly for publicly insured services at whatever price the market will bear. 

What is at stake?

Right now in Canada, everyone is covered by public insurance and we can get basic treatment and care no matter how much money we have. That means that under our current laws, doctors and private insurance companies don't get to decide who gets care and who doesn't based on our income.

The goal of the lawsuit is to change these rules to:

  • Let doctors bill patients whatever price they want for all health care services.
  • Let private insurance companies sell insurance for publicly covered services. In other words, let private insurance companies offer - and deny - coverage for basic care like visits to the doctor or the emergency room, or cancer treatment.

The BC Government is the Defendant in the case (the Medical Services Commission of B.C., the Minister of Health Services of B.C., and the Attorney General of B.C.). One of their main arguments in the case is that evidence from around the world shows striking down the challenged laws would create a health care system where medical care is provided preferentially to those who can pay for it, while waitlists grow longer for the vast majority of the population.

Canadian Doctors for Medicare, the BC Health Coalition, two patients and two doctors, are an intervenor group in this case. We represent the vast majority of people in Canada who believe our ability to get health care should be based on need, not ability to pay.

We are advocating for real action on wait times so that all Canadians get timely access to care - not just those that can afford to pay the most.

This lawsuit could fundamentally change Canadians' ability to get health care. The laws Brian Day is challenging are the bedrock of Canadian public health care. If the Charter challenge succeeds, many Canadians will not be able to afford health care and we will have to wait longer for treatment.

The case will almost certainly advance to the Supreme Court of Canada. The outcome will impact all provinces and territories because the rules the plaintiffs seek to strike down are central to the Canada Health Act and every provincial health care insurance plan.