Major appeal decision coming in constitutional challenge to B.C.'s public health-care law

B.C.'s highest court is set to rule this week in an appeal of a landmark decision on a challenge to public health care.

On Friday morning, the B.C. Court of Appeal will release its judgment on the constitutional challenge launched by private health-care advocate Dr. Brian Day, the owner of Vancouver's Cambie Surgery Centre.

Day is appealing a 2020 B.C. Supreme Court decision dismissing his claims that patients have the charter right to pay for private care when wait times in the public system are too long.

Justice John J. Steeves found that while some patients are not receiving care in a timely manner, in violation of their right to security of the person, B.C.'s limits on private health care are justified under the principles of fundamental justice.

In reasons for judgment that run more than 800 pages, the judge said the legislation Day objects to is meant "to preserve and ensure the sustainability of a universal public health-care system that ensures access to necessary medical care is based on need and not on an individual's ability to pay."

Steeves went on to write that introducing a parallel system of private health care would seriously damage equitable access to care.

"Further, the evidence suggests that duplicative private healthcare would increase demand and costs overall while also reducing capacity in the public healthcare system. There is a genuine risk that both the sustainability of the universal public system and equitable access to healthcare would be undermined," Steeves said.

The decision was hailed as a "historic win" for public health care, but Day has long said that he expects to fight all the way to the Supreme Court of Canada.

When the appeal court's judgment is made public on Friday, it will land in a very different world from when Day began his legal crusade against the province in 2009. 

The COVID-19 pandemic has drastically altered the health-care landscape in B.C., and the strains on the public system have become glaringly obvious.

Recent months have seen a slew of reports from across the province about long wait times for cancer treatment, health-care workers burning out and leaving their jobs and hospital emergency rooms closing because there aren't enough doctors and nurses to staff them.

It's not just a B.C. issue though. Earlier this week, Canada's premiers ended a two-day summit in Victoria by calling on the federal government to sit down with them to discuss the future of health-care funding, as resources across the country are stretched thin.

Day opened the Cambie Surgery Centre in 1996, billing privately for a variety of different procedures, including orthopedic surgeries, screening colonoscopies and oral and plastic surgery. From 2004 to about 2013, the clinic contracted with health authorities to provide some services through the provincial Medical Services Plan.

Day's legal challenge, filed with four patients as co-plaintiffs, sought to have sections of the Medicare Protection Act declared violations of the Canadian Charter of Rights and Freedoms.