Cambie Surgeries and the Persistent Problem of Healthcare Wait Times
Jack Olson, 3L, Volume 81 Senior Editor
Can a province offering publicly funded healthcare restrict the ability of its citizens to access private healthcare when wait times in the public system are too long? This issue was at the heart of the recent British Columbia Court of Appeal (BCCA) decision Cambie Surgeries Corporation v British Columbia (Attorney General), 2022 BCCA 245 (CanLII) (Cambie Surgeries BCCA). The plaintiffs in this case challenged the constitutionality of three provisions of the Medicare Protection Act, 1996 (“MPA”) that were designed to prevent the emergence of a private healthcare system in British Columbia. The plaintiffs argued that by assuming a monopoly over the provision of certain healthcare services, and by failing to provide those services in a timely manner, the B.C. government infringed the right to life, liberty, and security of the person of various B.C. residents.
The purpose of this comment is twofold: (i) to review the Cambie Surgeries BCCA decision and the healthcare laws challenged by the plaintiffs; and (ii) to examine how the Supreme Court of Canada (SCC) will decide the appeal if leave is granted. As we will see, while both the trial court and Court of Appeal found no constitutional infringement, the 2005 Supreme Court precedent Chaoulli v Quebec (Attorney General), 2005 SCC 35 (CanLII) (Chaoulli) may compel the nation’s highest court to decide otherwise.
The B.C. Healthcare Regime and the Challenged Provision
Healthcare in B.C. is, in the words of the trial judge, “publicly funded and privately delivered” (Cambie Surgeries Corporation v British Columbia (Attorney General), 2020 BCSC 1310 (CanLII) (Cambie Surgeries BCSC) at para 2167). In B.C., physicians are not employees of the province. Rather, they are more akin to private contractors who bill the province under a public insurance scheme for the medical services they perform.
B.C. healthcare legislation does not technically prohibit the provision of privately funded healthcare. Doctors may unenroll from the public insurance scheme if they wish and bill patients directly for the medical services provided. However, ss. 17 and 18 of the MPA prohibit doctors from billing these patients more than could be billed to the state under the public insurance scheme. In addition, s. 45 prohibits the sale of private health insurance to cover the cost of a medical service that would be covered by the public insurance scheme. A doctor will therefore lack the economic incentive to provide privately-financed healthcare because they will not be able to charge (and therefore earn) more than if they provided the service while enrolled under the public insurance system. Additionally, it is unlikely patients would be able to pay for such services without private healthcare insurance. Hence, the MPA is designed to prevent the emergence of a duplicative private healthcare system by making the practice of providing privately-financed healthcare economically non-viable (Cambie Surgeries BCCA at para 34).
Against this backdrop, we may better understand the basis of the plaintiffs’ s. 7 Canadian Charter of Rights and Freedoms, 1982 (“Canadian Charter”) challenge in Cambie Surgeries.
Cambie Surgeries—The Trial Court and BCCA Decisions
There were five plaintiffs in Cambie Surgeries BCSC: two medical service providers (the Cambie Surgeries Corporation and the Special Referral Clinic), and three patients of the B.C. public healthcare system. The plaintiffs argued that ss. 17-18 and 45 of the MPA violated s. 7 of the Canadian Charter because they inhibited the development of a private healthcare system, thereby making citizens solely reliant on the publicly funded system for healthcare. Patients who did not receive timely care in the publicly funded system risked exposure to prolonged pain and disability, serious psychological harm, and irreparable damage (Cambie Surgeries BCSC at para 73). The plaintiffs argued such harms were serious enough to violate the right to life, liberty, and security of the person.
After a trial lasting 194 days, the trial judge held that the impugned MPA provisions constituted a deprivation of security of the person, but one which was in accordance with the principles of fundamental justice (Cambie Surgeries BCSC at para 2803). In particular, the trial judge found that the MPA’s legislative objective was the preservation of a public healthcare system where access to care is based on need and not the ability to pay (Cambie Surgeries BCSC at paras 1998, 2662). He then found that the impugned MPA provisions were neither arbitrary, overbroad, nor grossly disproportionate to that legislative objective (Cambie Surgeries – BCSC at paras 2065-2785). Critical to the trial judge’s reasoning were several factual findings detailing the impact that a duplicative private healthcare system would have on the public system:
Introducing duplicative private healthcare would increase wait-times in the public system (Cambie Surgeries BCSC at para 2348).
There would be no change in the quality of medical services (Cambie Surgeries BCSC at para 2552).
Demand for healthcare would generally increase, worsening access to healthcare within the public system (Cambie Surgeries BCSC at para 2398).
Physicians would likely prioritize privately-paying patients over those within the public system (Cambie Surgeries BCSC at para 2385).
Based on these findings, the trial judge ruled that ss. 17-18 and 45 of the MPA were rationally connected to the objective of maintaining a public healthcare system (Cambie Surgeries BCSC at para 2662). In the result, he found no violation of s. 7.
The BCCA affirmed the trial judge’s ruling. In a two-person majority decision, Chief Justice Bauman and Justice Harris held that the MPA deprived certain patients of the right to life, liberty, and security of the person, but also found these deprivations to accord with the principles of fundamental justice (Cambie Surgeries BCCA at para 368). The majority affirmed that the challenged MPA provisions were not arbitrary in achieving the objectives of the MPA, nor were they overbroad to their legislative objective or grossly disproportionate in their effects on B.C. citizens. Madam Justice Fenlon, concurring, would have found a violation of s. 7 of the Canadian Charter that was justified under s. 1 (Cambie Surgeries BCCA at paras 411, 419-420).
Chaoulli: Revisiting Supreme Court Jurisprudence on Healthcare Legislation
While an SCC ruling on Cambie Surgeries would no doubt mark an important constitutional moment, the Supreme Court has, in fact, already considered the constitutional validity of provincial legislation designed to curb the development of a private healthcare industry. In the 2005 case of Chaoulli, the Supreme Court struck down Quebec legislation that, similarly to the MPA, prohibited the sale of private healthcare insurance. The plaintiffs in Chaoulli argued that the inability to access private care when wait times in the public system grew exceedingly long constituted violations of s. 7 of the Canadian Charter and s. 1 of the Quebec Charter of Human Rights and Freedoms (“Quebec Charter"), which guarantees the right to life, personal security, inviolability and freedom.
A three-Justice panel composed of McLachlin CJ and Major and Bastarache JJ held that the challenged provisions caused a deprivation of life, liberty, and security of the person which was not in accordance with the principles of fundamental justice. On the issue of arbitrariness, the three Justices held that the legislative objective of providing quality public healthcare was in no way advanced by legislation restricting access to private health insurance (Chaoulli at para 149). In reaching this conclusion, the Justices pointed to several Western democracies with public healthcare systems that also had duplicative private systems (see Chaoulli at paras 139-148). According to the majority, the co-existence of the two systems in foreign jurisdictions offered proof that stopping the emergence of a private healthcare system in Quebec was not rationally connected to the goal of preserving the public system.
Writing in dissent, another three-Justice panel composed of Binnie, LeBel, and Fish JJ held that a rational connection did exist between the objective and the effects of the challenged legislation. The dissent criticized the three-Justice majority for failing to defer to the trial judge’s factual findings that a duplicative private system would detrimentally affect the publicly funded system (Chaoulli at para 214).
The decisive judgment in Chaoulli was written by Justice Deschamps. Splitting the three-three tie, Justice Deschamps struck down the impugned provisions for violating the Quebec Charter, without ruling whether said provisions also contravened the Canadian Charter. Because the remaining Justices settled three-three on the Canadian Charter question, the ruling lacked national effect and was only binding in Quebec.
This outcome explains why neither the trial court nor the BCCA in Cambie Surgeries BCCA viewed Chaoulli as decisive authority in the case at hand: Chaoulli only ever bound Quebec courts and lawmakers. Nevertheless, if the Supreme Court grants leave to the plaintiffs in Cambie Surgeries BCCA, it must contend with the ruling it set down in Chaoulli. The late scholar Peter Hogg stated that Chaoulli, alongside R v Morgentaler, [1988] 1 SCR 30 (CanLII), established that “when the state assumes a monopoly power over the provision of a medical service that affects life or security of the person, it is under a constitutional duty to ensure that the service is provided in a timely fashion” [1]. Given this maxim, how can the Supreme Court uphold the rulings of the lower courts, when the legislation under review effectively creates a monopoly on healthcare services, and the delivery of such services was found to have exceeded reasonable wait times?
Cambie Surgeries on Appeal: Predicting a Supreme Court Outcome
Despite the compelling similarities between Cambie Surgeries BCCA and Chaoulli, key differences between the cases may lead the Supreme Court to distinguish Chaoulli and uphold the rulings of the trial court and the BCCA. First among these differences are the factual findings made by the respective trial judges in Cambie Surgeries BCSC and Chaoulli.
The factual record in Chaoulli is scant compared to its counterpart in Cambie Surgeries BCCA. In Chaoulli, the trial judge found, based on relatively little expert testimony, that a private healthcare system would threaten the viability of the Quebec public system. At the Supreme Court, the majority dismissed these expert testimonies as nothing more than “common sense arguments” (Chaoulli at paras 136-137). In contrast, the trial judge in Cambie Surgeries BCSC made a wide swath of discrete factual findings (some of which are presented above) based on the evidence of over 100 witnesses and 40 expert reports (Cambie Surgeries BCCA at para 44). These findings indicated that a private healthcare system would be injurious to the stability and prosperity of the public system. In light of these findings, it is doubtful that a court could conclude that the MPA provisions designed to curb the development of a private healthcare system would be unrelated to the objective of preserving a sustainable public system.
Recall that the evenly split court in Chaoulli disagreed as to whether legislation prohibiting private healthcare insurance was rationally connected to the goal of preserving a quality public healthcare system. The majority held that the evidence revealed no rational connection, while the dissent held that it did. In effect, the source of disagreement between the majority and the dissent in Chaoulli lay in each panel’s appreciation of the evidence. In a Cambie Surgeries BCCA appeal, however, there will be much less opportunity to take opposing views of the evidentiary record. This record was compiled through the hearing of a wide range of expert opinions, and the factual findings of the trial judge based on that record state unequivocally that a duplicative private healthcare system would damage the integrity of the public system.
There are, of course, other salient differences between Chaoulli and Cambie Surgeries BCCA that may afford the Supreme Court grounds for distinguishing Chaoulli. The constitutional challenge in Chaoulli was targeted towards legislative provisions prohibiting private healthcare insurance, whereas the challenge in Cambie Surgeries BCCA concerned provisions that both restrict the sale of private healthcare insurance and prohibit physicians from engaging in extra-billing. In addition, the analytical framework for adjudicating s. 7 claims has developed in the years since Chaoulli, most notably in Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII) (Bedford) and Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (Carter). The only principle of fundamental justice considered by the majority in Chaoulli was arbitrariness. Both the BCCA and trial judge in Cambie Surgeries, however, considered overbreadth and gross disproportionality too – no doubt influenced by the rulings in Bedford and Carter. It is likely the Supreme Court on a Cambie Surgeries appeal would apply these latter two principles of fundamental justice as well.
Conclusion
While the Charter challenge in Cambie Surgeries is facially similar to the challenge in Chaoulli, differences in (i) the factual record produced by the respective trial judges; (ii) the legislative provisions being challenged; and (iii) the framework used to decide s. 7 claims may lead the Supreme Court to distinguish Chaoulli. Professor Hamish Stewart observed that “many commentators regarded the [Chaoulli] decision as at best an unwise assertion of judicial power in an area particularly unsuited to regulation by constitutional means and at worst as a catastrophe for Canada’s public health care system” [2]. Do not be surprised if the Supreme Court soon moves away from Chaoulli by upholding the decisions of the lower courts in Cambie Surgeries. Whether such a move would be prudent is less clear. The trial judge in Cambie Surgeries BCSC found that in the first quarter of 2018, of the 85 468 British Columbians needing medically necessary or publicly funded surgeries, 41.3% experienced wait times exceeding a “reasonable time” benchmark (paras 1334, 1358). It appears that wait times in the public healthcare system have only worsened during the pandemic.
Healthcare is indeed an area over which the Court may feel uncomfortable exercising judicial power. But the s. 7 infringements in British Columbia have reached a severity and scale that arguably makes judicial intervention a necessary measure to protect the health and safety of B.C. residents. Whether the Supreme Court agrees with this claim could have significant ramifications on the future administration of healthcare in this country.
[1] Peter W. Hogg, Constitutional Law of Canada, 5th Edition (Scarborough: Thomson Reuters, 2017) at § 32. 6.
[2] Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms, 2nd Edition (Toronto: Irwin Law, 2019) at 175-176.