On April 6, 2023 the Supreme Court of Canada dismissed Cambie Surgeries Corporation’s application for leave to appeal ending a 14 year-long legal battle that threatened to overturn key provisions in the BC Medicare Protection Act that ensure equitable access to medically necessary services.
The Supreme Court of Canada’s dismissal upholds the decisions at the BC Supreme Court and BC Court of Appeal that protected key principles ensuring patients are prioritized based on medical need and not ability to pay. In fact, the BC Supreme Court’s landmark decision based on extensive evidence made clear that allowing doctors to provide preferential access to patients who can afford to pay privately would increase inequities for those who may not be able to pay but who have greater need.
Cambie Surgeries CEO, Brian Day, launched this constitutional challenge against public health care in BC in 2009. After dozens of patients complained that they had been illegally extra-billed at Cambie Surgeries Clinics, the Medical Services Commission (MSC) audited Brian Day’s clinic. The audit revealed that Day’s clinic had overcharged patients by almost half a million dollars in just a 30-day period.
Instead of paying back the money his clinics illegally extra-billed, Brian Day marshalled a group of private, for-profit clinics and a few of his patients to file a constitutional challenge.
The corporate plaintiffs sought to make health care more profitable by striking down key protections in BC's Medicare Protection Act (Sections 14, 17, and 18). These provisions maintain private and public health care as two separate systems with no financial connection, and limit preferential access to essential health care services for financial gain.
While the appellants argued that long wait times for surgeries infringe on an individual’s charter rights, the actual issue at the centre of the case was whether private for-profit clinics could bill patients for medically necessary and publicly insured procedures. In other words, Cambie and its supporters were hoping to strike down key provisions in the BC Medicare Protection Act that would allow the public system to subsidize profits for private surgical clinics and their shareholders.
However, the BC Supreme Court found that duplicative private health care would not reduce wait times in the public system, and instead make them worse. In addition, the court found that a private pay system would undermine equitable access to care by essentially allowing people who have the ability to pay to cut to the front of the line, not actually fix the line. The BC Supreme Court of Appeal confirmed these findings.
Had this case advanced to the Supreme Court of Canada, the outcome would have certainly impacted all provinces and territories. The rules the plaintiffs sought to strike down go beyond BC’s Medicare Protection Act and had the potential to undermine the Canada Health Act and every provincial health care insurance plan.
To be clear, Cambie and other for-profit surgery clinics can continue to operate. But they can’t rely on the public to subsidize their profits. If this case was truly about the impact of long wait times on patients, surgical clinics can choose to continue taking patients willing to pay out of pocket without the profit margin.
While the Supreme Court’s dismissal is a victory for the stakeholders who fought tirelessly for 14 years, the threat of for-profit delivery continues in British Columbia and beyond. The BC Health Coalition and our allies are committed to continuing to advocate for public solutions to our health challenges that seek to address the root cause of the issue.
For a deeper look into the Cambie case, visit www.savemedicare.ca.