IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Cambie Surgeries Corporation v. British

Columbia (Attorney General),

2020 BCSC 1310

Date: 20200910

Docket: S090663

Registry: Vancouver

Between:

Cambie Surgeries Corporation, Chris Chiavatti, Mandy Martens, Krystiana Corrado, Walid Khalfallah by his litigation guardian Debbie Waitkus, and Specialist Referral Clinic (Vancouver) Inc.

Plaintiffs

And:

Attorney General of British Columbia

Defendant

And:

Dr. Duncan Etches, Dr. Robert Woollard, Glyn Townson, Thomas McGregor, British Columbia Friends of Medicare Society, Canadian Doctors for Medicare, Mariёl Schooff, Daphne Lang, Joyce Hamer, Myrna Allison,

and the British Columbia Anesthesiologists’ Society

Intervenors

And:

The Attorney General of Canada

Pursuant to the Constitutional Question Act

Before: The Honourable Mr. Justice Steeves

Reasons for Judgment

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SUMMARY OF JUDGMENT

[1]The plaintiffs claim that ss. 14, 17, 18 and 45 of the Medicare Protection Act

(“MPA”) violate their rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (“Charter”) and that these violations cannot be saved under s. 1 of the Charter (paras. 24-27, 30).

[2]Section 14 of the MPA provides the mechanism of payment to physicians registered under the public provincial health insurance plan (Medical Services Plan or “MSP”) for services rendered to beneficiaries of the public plan (paras. 25,

2003-2020). Sections 17 and 18 of the MPA set limits on the prices that physicians can charge MSP for the provision of medically required or necessary services they provide to beneficiaries of British Columbia’s public health insurance plan (paras. 25,

2005-2029, 2041). Section 45 prohibits the sale of private health insurance to beneficiaries of the public plan for medically necessary services that are covered under the plan (paras. 2030-2033, 2041).

[3]There is currently private and legal healthcare in British Columbia

(paras. 352-355). This includes services not covered under the MPA and services under the MPA provided by private clinics under contract with health authorities (paras. 353-355). There has also been private healthcare over the last 20 years that the plaintiffs admit has been illegal, being contrary to ss. 17 and 18 of the MPA (paras. 356-357, 361, 368-387, 2124-2144). This illegal healthcare is the subject of this litigation.

[4]The plaintiffs submit it is unconstitutional to prevent patients from accessing private medically necessary healthcare, including private surgeries, when they are unable to access timely care in the public system (paras. 26-27, 68-69, 73-76). They do not say that the introduction of duplicative private healthcare in British Columbia would necessarily decrease wait times in the public system (paras. 27, 2310). This is consistent with the expert evidence in this trial and there is in fact expert evidence that wait times would actually increase (paras. 2308-2349).

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[5]The plaintiffs accept that a previous decision regarding a prohibition against duplicative private healthcare insurance in Québec (Chaoulli v. Quebec (Attorney General), 2005 SCC 35) is not binding in British Columbia but they say it is persuasive (paras. 27, 1395, 1496). In any event, they acknowledge that the law on s. 7 of the Charter has developed since Chaoulli through later decisions of the Supreme Court of Canada (paras. 1395, 1496).

[6]The defendant British Columbia, Canada, the Patient Intervenors and the

Coalition Intervenors oppose the plaintiffs’ claim (para. 28). The intervenor British Columbia Association of Anesthesiologists’ Society takes no position on the plaintiffs’ claim but emphasizes certain aspects of wait times in British Columbia that are consistent with the plaintiffs’ allegations (para. 28).

[7]A claim challenging a law under s. 7 of the Charter has two stages

(paras. 1372-1375). First, a person making a claim challenging a law under s. 7 must establish that the impugned law deprives the person of the right to life, the right to liberty or the right of the security of the person (paras. 1376-1379). Second, if there has been a deprivation of a right under s. 7, then the person making the claim must also demonstrate that the deprivation is not in accordance with the principles of fundamental justice (paras. 1380-1384).

[8]In this case, under the first stage of s. 7 of the Charter, in the reasons that follow, I find that the plaintiffs have established that unreasonable wait times engage the right to security of the person for some patients, including two of the individual plaintiffs, one of the non-party witnesses and other persons similarly situated (paras. 1807-1942). However, under the second stage of s. 7, I find that the plaintiffs have not established that the right to security of the person has been deprived contrary to the principles of fundamental justice (paras. 1943-2803). Accordingly, the plaintiffs’ claim under s. 7 is dismissed (para. 2803).

[9]The legal and factual basis for my decision under the first stage of s. 7 of the Charter includes a conclusion that some patients suffering from non-urgent, deteriorating conditions and waiting for elective surgeries do not receive care in a

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timely manner (paras. 1807-1886). These patients are assigned a timeframe (or benchmark) by their physicians as part of the triaging process within which they ought to have surgery to avoid an increased risk of harm (paras. 1282-1339). The province’s wait time data shows that there are some patients in most surgical categories who are waiting beyond the benchmark assigned for their condition because of lack of capacity in the public system (paras. 1645-1664).

[10]Based on expert evidence, I find that for some patients waiting beyond their assigned benchmark for their elective surgery increases the risk of deterioration and reduced surgical outcomes (paras. 1665-1708). The wait is clinically significant to their health and wellbeing (paras. 1807-1886). I conclude that in these situations denying patients the ability to avoid unreasonable wait times violates their right to security of the person (paras. 1931-1942).

[11]Sections 17, 18(3) and 45 of the MPA do not prohibit private healthcare (para. 1899). Sections 17 and 18(3) deal with billing practices by physicians. More specifically they prohibit some physicians and healthcare facilities, who are providing medically necessary services covered by the public plan, from charging user fees and billing MSP beyond the MSP schedule (paras. 2021-2022). Section 45 prohibits the sale of private health insurance to MSP beneficiaries for medically necessary services covered by the public plan (paras. 2032, 2081, 2568, 2696). Nevertheless, these provisions are intended to prevent, and in fact do prevent, the emergence of a duplicative private healthcare system in British Columbia by restricting the prices physicians can charge patients and the scope of private funding for healthcare (paras. 1899-1906).

[12]The impugned provisions do not engage the right to life or the right to liberty under s. 7 (paras. 1748-1768). The expert evidence (including from the plaintiffs’ experts) is that timely and high quality care is provided to patients with urgent and emergent conditions where there is risk to life or limb, and there is no evidence of any deaths caused by waiting in British Columbia (paras. 1748-1763). Therefore, the right to life is not engaged (para. 1763). The liberty interest is not engaged because

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the challenged provisions of the MPA do not deny patients the freedom to accept or reject medical treatment (paras. 1764-1768).

[13]The second stage under s. 7 is to consider whether the plaintiffs have demonstrated that the deprivation of security of the person is contrary to the principles of fundamental justice (paras. 1380-1384). They are the principles against arbitrariness, overbreadth and gross disproportionality (paras. 1380-1384).

[14]Weighing the totality of the evidence (including extensive expert evidence)

I find that the impugned provisions are not arbitrary (paras. 2662-2670). The purpose of the impugned provisions is to preserve and ensure the sustainability of a universal public healthcare system that ensures access to necessary medical care is based on need and not on an individual’s ability to pay (paras. 1969-2044). The combined effect of the impugned provisions is one of supressing and discouraging the emergence of a parallel duplicative private healthcare system for the financing and provision of necessary medical services to MSP beneficiaries

(paras. 2042-2044, 2082).

[15]The evidence demonstrates that there are multiple connections or rational connections between the purpose and effect of the impugned provisions of the MPA (paras. 2065-2670). These include rational bases for concluding that the introduction of duplicative private healthcare would increase demand for public care, reduce the capacity of the public system to offer medical care, increase the public system’s costs, create perverse incentives for physicians, increase the risk of ethical lapses related to conflicts between the private and public practices of physicians, undermine political support for the public system, and exacerbate inequity in access to medically necessary care (paras. 2274-2670). Indeed, it would create a second tier of preferential healthcare where access is contingent on a person’s ability to pay.

As a result, the impugned provisions are not contrary to the principle against arbitrariness (paras. 2065-2670).

[16]As well, the expert evidence (including from the plaintiffs’ experts) is that duplicative private healthcare would not decrease wait times in the public system

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and there is expert evidence that wait times would actually increase

(paras. 2308-2349). This would cause further inequitable access to timely care.

[17]The impugned provisions are not overbroad or grossly disproportionate (paras. 2671-2784). They do not capture conduct unrelated to their purpose, nor is their effect totally out of sync with their purpose (paras. 2671-2784).

[18]For these reasons, I conclude the impugned provisions do not violate the s. 7 rights of the plaintiffs or other similarly situated patients in the public system.

[19]The plaintiffs’ s. 15 claim also fails (paras. 2804-2874). The impugned provisions do not confer a benefit or impose a burden that draws a discriminatory distinction based on an enumerated or analogous ground (paras. 2847-2859). There is also no evidence to suggest that the impugned provisions have a disproportionate adverse impact on the elderly, the very young or the disabled as alleged by the plaintiffs (para. 2860). I have also declined to consider the plaintiffs’ novel “interest-based” theory relating to s. 15 (paras. 2861-2869).

[20]Since I have not found a breach of ss. 7 or 15 of the Charter, it is not necessary to consider whether the impugned provisions are justified under s. 1 of the Charter (para. 2875). Nevertheless, the unique nature and legal issues of this case make it appropriate to comment on s. 1 (para. 2876).

[21]In the context of a complex social program such as healthcare where there is a need to balance conflicting interests and claims over limited resources, a high degree of deference is owed to the government under s. 1 (paras. 2885-2893, 2898, 2922, 2931, 2936). Bearing this in mind, I find that the objectives of the impugned provisions, preserving and ensuring the sustainability of the universal public healthcare system and ensuring access to necessary medical services is based on need and not the ability to pay, are pressing and substantial (paras. 2895-2903).

I also find that there is a rational connection between deterring the emergence of a competitive duplicative private healthcare system and these objectives

(paras. 2904-2909). Finally, the evidence also supports the defendant’s claim that

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the impugned provisions are minimally impairing and their effects are proportionate to their objectives (paras. 2910-2934).

[22]Thus, even if I had found a violation of ss. 7 or 15 of the Charter, I would have nonetheless concluded that the impugned provisions are a reasonable limit on those rights and are demonstrably justified in a free and democratic society under s. 1 (paras. 2935-2937).

[23]The plaintiffs’ claim is dismissed (paras. 2938-2940).

A.INTRODUCTION

[24]The plaintiffs seek to have four provisions of the Medicare Protection Act, R.S.B.C. 1996, c. 286 (“MPA”) struck as being unconstitutional. They say their rights to life, liberty and security of the person under s. 7 of the Charter have been violated contrary to the principles of fundamental justice. They also claim their equality rights under s. 15 of the Charter have been violated. And they say that these violations cannot be saved under s. 1 of the Charter.

[25]The four impugned provisions of the MPA are s. 14 (a medical practitioner can elect to be paid directly by patients who are later reimbursed by the public medical plan), ss. 17 and 18 (limits on direct or extra billing by a medical practitioner) and s. 45 (prohibition on private insurance for “medically required services”).

[26]The subject matter of the plaintiffs’ claim is wait times for elective surgery in

British Columbia. The plaintiffs submit that, given the state of wait times for care in the public system, patients should have the choice of accessing private care (paid for by them) in order to avoid wait times for medical care in the public system. The main objective of the plaintiffs’ claim is a duplicative private healthcare model which exists in other countries. This is sometimes called a dual system. The plaintiffs describe the inclusion of private healthcare along with public care as a “safety valve” that would permit some patients to avoid the harm of waiting for care.

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[27]The plaintiffs do not claim that duplicative private healthcare would reduce wait times in the public system. Instead, the plaintiffs rely on ss. 7 and 15 of the Charter to say that when the defendant cannot guarantee timely care it cannot also maintain its monopoly over medical services and prevent the plaintiffs from accessing alternative and timely private care at their expense. They rely on a previous decision of the Supreme Court of Canada (Chaoulli v. Quebec (Attorney General), 2005 SCC 35) about a similar case in Québec but they accept that it is not binding in British Columbia.

[28]The defendant, British Columbia, and Canada oppose the plaintiffs’ claim. The Patient Intervenors and Coalition Intervenors also oppose the plaintiffs’ claim. The British Columbia Anesthesiologists’ Society takes no position on the claim but supports the plaintiffs’ allegations regarding the state of wait times in the province.

[29]Attached to this judgment are the following schedules:

a)Schedule I: excerpts from the MPA - preamble, s. 1 (definitions), s. 2, and ss. 13-14, 16.1, 17, 18, 45 and 46;

b)Schedule II: excerpts from the Canada Health Act - preamble, s. 2 (definitions), and ss. 3-20;

c)Schedule III: index of interlocutory rulings pre-trial and during trial; and

d)Schedule IV: list of expert witnesses, their qualifications and brief descriptions of their evidence.

(a)The plaintiffs’ claim

[30]The plaintiffs’ most recent claim is the Fifth Amended Notice of Civil Claim, filed October 17, 2018. They claim that the impugned provisions of the MPA breach ss. 7 and 15 of the Charter and they say these breaches cannot be justified under s. 1 of the Charter.

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(b)Response

[31]The most recent response filed by the defendant was filed on October 26,

2018. It opposes the plaintiffs’ claim.

[32]In response to the s. 7 claim, the defendant says that none of the impugned provisions either individually or in combination have the effect of depriving the plaintiffs, or any one plaintiff, of their life, liberty, or security of the person. In the alternative, the defendant says that if such deprivation did occur, it was consistent with the principles of fundamental justice.

[33]In response to the s. 15 claim, the defendant says the plaintiffs have failed to establish that the impugned provisions in purpose or effect draw a distinction on the basis of an enumerated or analogous ground, specifically age and disability.

[34]In the alternative, the defendant says if the impugned provisions constitute a breach of ss. 7 or 15 of the Charter, any such breach is justified under s. 1.

(c)Counterclaim

[35]Counterclaims were filed in January 2013, on behalf of the defendant, the Minister of Health and the Medical Services Commission against the corporate plaintiffs, Cambie Surgeries Corporation (“Cambie Surgeries”) and the Specialist Referral Clinic (the “SRC”). The counterclaims sought declarations that the two corporate plaintiffs were acting in violation of ss. 17 and 18 of the MPA which prohibit extra billing and user charges when providing medically required services to MSP beneficiaries. The defendant also sought an injunction restraining the corporate plaintiffs from engaging in “Unlawful Billing” of MSP beneficiaries.

[36]The counterclaims were discontinued on September 21, 2016. The defendant filed a new counterclaim on October 18, 2016, this time only seeking a declaration that Cambie Surgeries and the SRC had contravened ss. 17(1)(a) and (b) as well as s. 18(3) of the MPA.

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[37]Ultimately, the corporate plaintiffs admitted to having violated these sections of the MPA. Under these circumstances the defendant advised the court during closing submissions that it has decided to abandon its counterclaim as the plaintiffs’ admission that they had contravened the MPA made it unnecessary to issue a declaration.

[38]Accordingly, the defendant’s counterclaim is no longer an issue before this

court.

[39]The evidence and submissions in this trial ended on February 28, 2020, before the COVID-19 pandemic was declared.

B.BACKGROUND

(a)The Parties and Intervenors

(i)Plaintiffs

[40]The plaintiffs in this action consist of both corporate plaintiffs, Cambie Surgeries and the SRC, and the four individual plaintiffs.

[41]Cambie Surgeries owns and operates the Cambie Surgery Centre, a private surgical clinic located in Vancouver, British Columbia. The clinic is a multi-specialty surgical and diagnostic facility, containing six operating rooms, recovery beds and overnight stay rooms. The clinic is equipped and accredited to standards that are equivalent to those of a major public hospital in British Columbia. Operations, diagnoses, and treatments are performed by physicians who are independent professionals and not employees of Cambie Surgeries. The patients pay Cambie Surgeries which then pays the physicians. There is some history of patients paying for services and MSP being billed for the same services. This is discussed below.

[42]The SRC owns and operates a medical clinic located in Vancouver, British Columbia. It provides expedited assessments and consultations. It also arranges for diagnostic testing ordered by specialists and provides patients with access to Cambie Surgeries if they choose to pursue surgery. If a patient undergoes surgery at the Cambie Surgeries’ clinic, the SRC performs the billing function for Cambie

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Surgeries in relation to the surgery, pursuant to an agreement between the SRC and Cambie Surgeries.

[43]There are four individual plaintiffs in this action. They are Chris Chiavatti, Mandy Martens, Krystiana Corrado, and Walid Khalfallah. Walid Khalfallah was represented by his litigation guardian and mother Debbie Waitkus. Ms. Erma Krahn was originally a plaintiff in this action, but she unfortunately died on April 15, 2014 (unrelated to waiting for any medical treatment). The individual plaintiffs gave evidence regarding their personal experiences in the public healthcare system as discussed in detail below. Ms. Krahn’s evidence was tendered by way of affidavit. There are also comprehensive agreed statements of fact for the individual plaintiffs as discussed below.

(ii)Defendant

[44]The defendant is the chief law officer of the Crown. By agreement, the Attorney General stands in place of and acts for the Medical Services Commission

(the “MSC”) and the Minister of Health Services of British Columbia (“Minister of Health”), who were initially named as defendants. Originally, the defendant was also plaintiff by counterclaim seeking a declaration that Cambie Surgeries and the SRC (defendants in the counterclaim) had breached certain provisions of the MPA. However, as noted above, the defendant ultimately withdrew its counterclaim.

(iii)The Attorney General of Canada

[45]Pursuant to the Constitutional Question Act, R.S.B.C. 1996, c. 68, the Attorney General of Canada appeared and is a party to these proceedings.

(iv)Patient Intervenors, Coalition Intervenors and British Columbia

Anesthesiologists’ Society

[46]The Patient Intervenors oppose the plaintiffs’ claim. They describe themselves as “ordinary British Columbians” who claim to have experienced harm while being treated by physicians engaging in dual practice and extra billing. There are four Patient Intervenors: Mariël Schooff, Daphne Lang, Joyce Hamer, and Myrna

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Allison. Ms. Carol Welch was originally a Patient Intervenor in this action, but she unfortunately died in September 2012 (unrelated to waiting for any treatment). Only Mariël Schooff gave evidence at trial. Myrna Allison did not testify in court but provided an affidavit. There were also agreed statements of facts for the Patient Intervenors.

[47]The Coalition Intervenors also oppose the plaintiffs’ claim. They represent four individuals and two organizations. The four individuals are two patients and two physicians. The two patients are Mr. Glyn Townson and Mr. Thomas McGregor. The two physicians are Dr. Duncan Etches and Dr. Robert Woollard. The two organizations that the Coalition Intervenors represent are the Canadian Doctors for Medicare and the British Columbia Friends of Medicare Society.

[48]Mr. Glyn Townson experiences many concurrent health problems and is a frequent user of the public healthcare system. Mr. Thomas McGregor suffers from limb-girdle muscular dystrophy and is accordingly also a frequent user of the public healthcare system. Both Mr. Townson and Mr. McGregor have low annual incomes ($20,000 and $15,000 respectively) and rely on the public healthcare system to cover the cost of their medical needs.

[49]Dr. Duncan Etches is a practising physician and clinical professor in the Department of Family Practice in the Faculty of Medicine at the University of British Columbia. He is also the medical director of South Granville Park Lodge, Dogwood Lodge and False Creek Residence, the chair of the board of Chalmers Lodge, and the District 3 representative for the College of Physicians and Surgeons.

[50]Dr. Robert Woollard has practised medicine in British Columbia for over

40 years and has been involved in teaching medicine since 1974. He is currently a tenured, full professor at the Faculty of Medicine at the University of British Columbia. Dr. Woollard is the Vice-Chair of Canadian Doctors for Medicare, one of the organizations the Coalition Intervenors represent.

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[51]Canadian Doctors for Medicare represents doctors across Canada committed to preserving, strengthening, and improving Canada’s universal and publicly funded healthcare system.

[52]The British Columbia Friends of Medicare Society, which is also known as the BC Health Coalition, is a network of organizations and individuals from across British Columbia who claim to be dedicated to the preservation and improvement of medicare. The organization was founded in 1995 and encompasses more than

50 member organizations representing various people including seniors, women, people with disabilities, anti-poverty activists, healthcare providers, and patients. The Coalition Intervenors claim to advocate for all British Columbians, including their own clients, who rely on the public healthcare system.

[53]The British Columbia Anesthesiologists’ Society (“BCAS”) is a voluntary association representing anesthesiologists in British Columbia. It is also a provincial division of the Canadian Anesthesiologists Society.

(b)Voluminous litigation

[54]The trial in this case trial took 194 days, during which 590 exhibits were admitted into the record. The lay evidence in this trial includes oral testimony, affidavits and medical records of 17 patients, 36 physicians (some of whom acted as treating physicians for some of the patient plaintiffs, witnesses or intervenors), 17 health authorities’ or ministerial agents and directors, and five other lay witnesses who gave evidence on matters relating to the administration of healthcare in British Columbia.

[55]The parties have tendered the evidence of 75 lay witnesses. In some cases, dozens of documents were also appended to the affidavits of lay witnesses, overall adding to the record hundreds of documents as well.

[56]There were also a total of 40 expert reports and most of the experts were cross-examined in court. The plaintiffs tendered 19 expert reports, the defendant tendered 17, Canada and the Coalition Intervenors tendered two each. In some

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cases the same expert authored multiple reports. The evidence of the experts broadly relates to medical issues about waiting for necessary medical care, health policy or health economics.

[57]Thousands of documents were also tendered directly and not through any particular witness. This was primarily done by way of two books of documents. The first is the “Prima Facie Facts” documents which were tendered pursuant to an agreement between the plaintiffs and the defendant. In the agreement this compendium of documents was described as “written statements prepared by the Defendants” relating to the operation of the Ministry of Health, regional health authorities, provincial health services, MRI and CT services, and medical, nursing and medical imaging technologist education. The parties agreed that the documents were admissible “for the prima facie truth of their contents”. However, each party was free to dispute or contradict all or part of any statement. Further, the agreement stated that it was not to be construed as an admission by the plaintiffs of any facts set out in the defendant’s statements. In total the Prima Facie Facts compendium includes 118 documents, totalling over 3,600 pages.

[58]The second source of documents tendered not through witnesses, is found in the several iterations of the “Common Books of Documents.” Initially the plaintiffs and defendant agreed to a joint Common Book which was tendered at the outset of trial in September 2016. This included general government and quasi-government studies and reports about public and private healthcare systems as well as documents specific to the provision and funding of healthcare in British Columbia. Overall, 217 documents were included in this initial Common Book, totaling 9,606 pages. Some of the documents were tendered for the truth of their contents, while others only as proof of their authenticity. In any event, the parties were always free to raise arguments regarding what weight if any should be given to any particular document.

[59]Subsequently, the parties wished to supplement the Common Book and add new documents. In some instances disputes arose regarding what documents could

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be added to the Common Book and if so for what purpose (see plaintiffs’ Brandeis Brief applications, 2017 BCSC 860 and 2019 BCSC 212). Ultimately, the plaintiffs, the defendant and Canada each supplemented the initial joint Common Book with their own compendium in 2019. The plaintiffs tendered a “Supplemental Common Book of Documents,” containing 170 new documents, totaling over 4,600 pages. The defendant introduced a Supplemental Common Book with 79 new documents, totaling more than 2,600 pages. Canada presented a Supplemental Common Book which includes 124 documents totaling nearly 900 pages. Thus, in total, more than 17,500 pages and 590 documents were tendered through the Common Books.

[60]The types of documents contained in these compendiums include medical records, documents of the Ministry of Health (including data from the Surgical Patient Registry, discussed below), Health Canada documents, documents from the health authorities, Canadian Institute for Health Information and Canadian Institutes of Health Research reports, OECD and WHO documents, academic publications and reports published by non-governmental organizations. In addition to all of this there were more voluminous materials that were part of the submissions related to the more than 50 rulings I made during the trial.

[61]The plaintiffs have consistently taken an expansive approach to the evidence.

Early on in the trial counsel for the plaintiffs submitted that “anything and everything that sheds light on the issues in this case should be considered by the court ...”

Further, “anything that touches upon our public healthcare system, its operation and the effects on it of a parallel private supplementary system is something that should be before the court. And it’s open to the court. The court can sift through that. It knows what is helpful, not helpful, relevant, credible.” The plaintiffs also stated that the Supreme Court of Canada will not be concerned about the manner in which a document is tendered and whether an exhibit is tendered as evidence or for identification purposes only. Therefore, I should not be concerned with these procedural and evidentiary issues.

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[62]I have disagreed with some of the specific objections of the defendant to the plaintiffs’ evidence and I have agreed with some. However, overall, I have consistently rejected the plaintiffs’ expansive approach to the scope of admissible evidence in a Charter claim. I have generally concluded that the ordinary rules of evidence, including the rules against hearsay and opinion evidence apply. I have set out elsewhere an excerpt from a 2016 ruling where I concluded that some latitude is appropriate to the admissibility of legislative facts in constitutional litigation, but the evidentiary record must still be manageable using the usual techniques available to the courts (2016 BCSC 1390 at para. 41).

[63]In another ruling I concluded that legislative fact evidence that may be dispositive of an issue must be subject to cross-examination and cannot simply be admitted on the basis of judicial notice as part of a Brandeis Brief (2017 BCSC 860 at paras. 56, 68). I also disagreed with the plaintiffs that 45 complaint letters (containing hearsay and opinions) sent to the defendant could be admitted for their truth (2016 BCSC 2377).

[64]There have been disputes between the parties on almost every aspect of the evidence including the admissibility and proper use of documents, the issue of proving medical causation, the scope of expert evidence and qualifications of experts, and the use of statistical data. In addition, there were disputes about whether reports and studies issued by governments and non-governmental bodies could be tendered by way of compendiums of documents rather than through witnesses.

[65]These evidentiary disputes persisted throughout the trial and they also make up a significant portion of the parties’ closing arguments. For example, in their final argument the plaintiffs rely on statements I previously ruled inadmissible and they rely on the opinions of witnesses who I ruled were not qualified to give those opinions. They also rely on the lay evidence of physicians who they did not certify as experts in court for opinions about the harm from waiting for medical care. I had previously ruled that physicians could testify about their observations of their

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patients while waiting for healthcare, but health consequences of wait times must be proven through admissible expert opinion evidence (2016 BCSC 1896). For reasons that are unclear, the plaintiffs have chosen not to tender any expert evidence with respect to the alleged harm suffered by any of the individual patients who gave evidence at trial (despite being given considerable latitude in filing late expert reports).

(c)Procedural history

[66]The plaintiffs commenced these proceedings in January 2009. The most recent Notice of Civil Claim (“Fifth Amended Notice of Civil Claim”) was filed on October 17, 2018 and the most recent Response (“Response to the Fifth Amended Civil Claim”) was filed on October 26, 2018.

[67]A chronological description of the course of this litigation is contained in Schedule III, including citations for all of the evidentiary rulings. I provide here some more detail. As will be seen the plaintiffs’ claim has undergone a number of changes since it was commenced.

(i)The pleadings

[68]In the Fifth Amended Notice of Civil Clam the plaintiffs set out the factual basis of their claim. This includes: the specific circumstances of the individual patient plaintiffs and corporate plaintiffs and the state of wait times for public healthcare services. It also sets out the alleged effects of the impugned provisions (ss. 14, 17, 18 and 45 of the MPA) on patients who cannot obtain medical services through the public system in a timely manner. In Part 3 of the claim, under the heading “Legal Basis,” the plaintiffs set out the legal basis for what they allege is the breach of ss. 7 and 15 of the Canadian Charter.

[69]Under the section entitled “Relief Sought” in their claim, the plaintiffs seek:

98.A declaration that sections 14, 17, 18 and 45 of the Act, to the extent that those provisions are designed and have the effect of preventing or severely limiting the development and availability of private health care to ordinary British Columbians, particularly when the public health system

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cannot guarantee reasonable health care within a reasonable time, is contrary to section 7 and section 15 of the Charter and is not demonstrably justified under section 1.

99.An order pursuant to section 52(1) of the Constitution Act, 1982 that sections 14, 17, 18 and 45 of the Act are of no force and effect to the extent of the Charter violation.

100.Alternatively, a declaration pursuant to section 52(1) of the Constitution Act, 1982 that sections 14, 17, 18 and 45 of the Act are inconsistent with section 7 and section 15 of the Charter and are therefore of no force and effect to the extent of the inconsistency, with a suspension of the declaration on the condition that the Province amend the Act to bring it into compliance with the Charter within six months.

101.Costs; and;

102.Such further and other relief as this Court may deem just.

[70]The defendant filed its Response to the Fifth Amended Civil Claim on October 26, 2018. The defendant challenges the plaintiffs’ description of the state of wait times for public healthcare in the province and the alleged harm suffered by patients as a result. Furthermore, the defendant denies that the impugned provisions infringe the plaintiffs’ rights under ss. 7 and 15 of the Charter. The defendant further argues that even if such an infringement is found the impugned provisions constitute a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society.

[71]The Notice of Constitutional Question in this case was filed on October 8, 2009, and an amended version was filed on July 12, 2016. It reads:

1.Do sections 14, 17, 18 and 45 of the Medicare Protection Act, RSBC 1996, c 286 infringe the rights to life, liberty and security of the person guaranteed by section 7 of the Charter of Rights and Freedoms?

2.Do sections 14, 17, 18 and 45 of the Medicare Protection Act, RSBC 1996, c 286 infringe the equality rights guaranteed by section 15 of the Charter of Rights and Freedoms?

3.If so, are these infringements a reasonable limit prescribed by law as can be demonstrabl[y] justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms?

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(ii)Development of the plaintiffs’ claim

[72]During the course of this trial the plaintiffs have clarified the scope of their claim and reframed the factual foundation of their claim.

[73]As above, the plaintiffs submit that it is a violation of s. 7 to prohibit patients enrolled in British Columbia’s public health plan from accessing private “diagnostic and surgical services” when they are unable to access those services in a timely fashion in the public system. As a result, they suffer prolonged pain and disability, serious psychological harm or deterioration and irreparable harm.

[74]In other words, the plaintiffs claim that in light of lengthy wait times in the public system, it is a violation of their s. 7 rights to life, liberty and security of the person to prohibit the private financing and private delivery of medically necessary services outside the public system. Further, according to the plaintiffs, the impugned provisions of the MPA prohibit duplicative private healthcare and deprive s. 7 rights of patients in a manner that is inconsistent with the principles of fundamental justice.

[75]Under s. 15 of the Charter, the plaintiffs claim that a breach of their equality rights arises because persons who suffer workplace injuries are exempted from the impugned provisions and they can legally access timely private surgical care through WorkSafeBC. Since young, elderly and disabled persons are disproportionately unable to work, they are therefore disproportionately excluded from accessing care in private surgical clinics because they are not entitled to WorkSafeBC benefits. In that way, according to the plaintiffs, the impugned provisions impose differential and discriminatory treatment on the basis of age and disability in a manner contrary to s. 15.

[76]The plaintiffs say that their claim is not concerned with reducing wait times in the public system, nor with increasing funding for the public system. They also submit that they are not claiming a constitutional right to timely healthcare in the public system. Rather, the plaintiffs maintain it is unconstitutional to deny patients

“the option of obtaining private diagnostic and surgical services … in the face of the lengthy waits for medical services in the public system.” Thus, the plaintiffs in this

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case argue it is a breach of s. 7 of the Charter to deny access to timely care in the private system, while failing to provide such care in the public system. On the plaintiffs’ view, unless timely care is available to all patients within the public system, patients should have the choice of obtaining private care at their own expense or by using private insurance.

[77]An issue arises about the scope of the medical care that is described in the plaintiffs’ claim. In their Fifth Amended Notice of Civil Claim, they challenge the constitutionality of the impugned provisions with respect to the private funding and the private delivery of all medical services insured under MSP. In setting out the legal basis for their claim, the plaintiffs’ state that the impugned provisions constitute an unconstitutional deprivation of s. 7 because the public system cannot provide

“reasonable health care within a reasonable time.”

[78]In the relief sought in their claim, the plaintiffs seek a declaration that the impugned provisions are unconstitutional to the extent they “have the effect of preventing or severely limiting the development and availability of private health care.” Indeed, throughout their pleadings, the plaintiffs refer to the provisions as prohibiting “private care” and “private healthcare.” On the face of the pleadings the plaintiffs’ claim appears to be directed at the provision of all medically necessary services covered under MSP.

[79]The plaintiffs depart from this broad focus on all medically necessary services in their pleadings when discussing wait times. In the wait times section of their claim, they focus on waits for “diagnostic services and surgical treatment.” This suggests a narrower scope to the plaintiffs’ claim than in the rest of the pleadings, albeit one that is still much wider than in later presentations of their claim (as will be seen). However, this reference to diagnostic and surgical services, brief as it is, does not alter the overall impression from the pleadings that the plaintiffs challenge the restrictions in the impugned provisions on the private delivery of all healthcare services insured under MSP. Indeed, the relief they seek is much broader and not limited to diagnostic and surgical care.

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[80]On Day 169 of the trial, however, the plaintiffs presented a narrower version of their claim. On that day, the plaintiffs stated that their pleadings had always limited their claim to scheduled surgeries, primarily those day surgeries that can otherwise be provided in private clinics. They acknowledged that while their pleadings expressly referred to all healthcare services, it was clear from the context of their pleadings that scheduled surgeries were the “circumstances” where wait times were unreasonable and therefore, limits on the private funding and delivery of these medical services are unconstitutional.

[81]I do not agree that the pleadings imply a focus on scheduled or day surgeries alone, as the plaintiffs suggest. Indeed, as noted above, the discussion of wait times in the pleadings refers generally to both diagnostic and surgical services. Contrary to the plaintiffs’ suggestion, the “circumstances” referred to in the pleadings are not limited to elective surgeries performed in private clinics. Thus, in my view, on Day 169 of this trial, the plaintiffs effectively narrowed their claim to elective day surgeries performed at private clinics.

[82]Then, on Day 183, during closing submissions, the plaintiffs stated that their claim concerned diagnostic and surgical services (not just scheduled surgeries). This position appears to be more consistent with the framing of their claim in the wait time section of their pleadings. The plaintiffs went on to specify that, for instance, their claim does not concern services of family physicians. Despite that being narrower than in the pleadings, this expands the scope suggested on Day 169 because it challenges restrictions on the private delivery of all surgical services and not just scheduled day surgeries.

[83]With respect to the reference to diagnostic services in the plaintiffs’ pleadings, this must be interpreted in the context of the specific statutory provisions they challenge. The impugned provisions do not prohibit the private delivery of diagnostic imaging services provided in stand-alone diagnostic facilities, like MRIs. There is considerable evidence of the private and legal provision of diagnostic services. The plaintiffs’ claim about diagnostic services is not clear. As I understand it, surgical

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services with a diagnostic function, like colonoscopies, are captured in the impugned provisions but diagnostic imaging is not (2018 BCSC 1141 at para. 50).

[84]In 2018, during this trial, the Government of British Columbia announced it would proclaim into force s. 18.1 of the MPA, which would prohibit private diagnostic services (it had been passed in the Legislature by a previous government but not proclaimed). The plaintiffs then brought an application to amend their pleadings to include s. 18.1 in their constitutional challenge. As addressed below, I denied the plaintiffs’ application to expand their claim to challenge s. 18.1 and include all diagnostic services (2018 BCSC 1141). Thus, the reference to “diagnostic services” in the plaintiffs’ claim refers only to those surgical services with a diagnostic function that are available at private surgical clinics, like colonoscopies, which the impugned provisions capture.

[85]Another shift in the plaintiffs’ position over the course of trial related to the evidentiary foundation of their claim. Initially their position was that other countries demonstrate that private and public healthcare systems co-exist very well. In their claim they rely on the co-existence of private and public healthcare systems in other countries. As well, they tendered evidence from a number of experts to explain the experiences in other countries (discussed below). Significant time was taken in the trial admitting documents related to other countries and the Common Books of Documents also contain many documents on the experiences of other jurisdictions. The final submissions of the plaintiffs, the defendant and Canada went into considerable detail about the funding and provision of healthcare in other countries.

[86]However, in their reply, during closing submissions, the plaintiffs submitted that the expert evidence of all parties, which relied primarily on the experiences in other countries, was, “theoretical, speculative and hypothetical.” This is because, according to the plaintiffs, the experiences of other countries do not indicate what would be the likely effects of duplicative private healthcare in British Columbia. In an exchange with the court, the plaintiffs acknowledged that this comment applies to their own expert evidence which is primarily based on literature relating to the

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experiences of other jurisdictions. I later set out in detail the evidence about duplicative private healthcare in other countries.

[87]At that point the plaintiffs emphasized British Columbia’s experience with private care over the past 20 years (not the experiences of other countries) as the “best evidence” about the likely impact duplicative private healthcare would have on the public healthcare system in British Columbia. It is this evidence about the previous 20 years, they suggest, that demonstrates no harm to the public system would arise from allowing duplicative private healthcare. I discuss below, under the principles of fundamental justice section of this judgment, the significance of this 20-year period of private practice, including that it was contrary to the MPA.

[88]The plaintiffs’ current emphasis on the experiences of private clinics in British

Columbia during the last 20 years appears to reframe the foundation of their claim as suggested by their pleadings, the evidentiary record they built at trial and the arguments they made earlier in their closing submissions.

[89]The above changes or clarifications in the plaintiffs’ position are noted (as is the fact that no application has been made to amend the plaintiffs’ pleadings).

However, I conclude that ultimately the plaintiffs are bound by their pleadings as reflected in the Fifth Amended Notice of Civil Claim, filed October 17, 2018. Applying the principle that pleadings ought to be interpreted generously, I nonetheless accept that the plaintiffs’ claim is limited to surgical services and diagnostic services that are otherwise available in private surgical clinics.

[90]On the basis of the pleadings and the evidence I conclude that

cross-jurisdictional comparisons are at issue. I discuss them and what use can be made of them below, under the principles of fundamental justice section of this judgment.

[91]I note one final development in the plaintiffs’ case. In pleading their s. 7 claim, the plaintiffs alleged that the impugned provisions were not in accordance with the principle of fundamental justice against vagueness. However, the plaintiffs did not

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pursue this claim at trial. In their closing submissions, the plaintiffs submit that the impugned provisions offend three principles of fundamental justice against arbitrariness, overbreadth and gross disproportionality. There is no mention of the principle against vagueness. I conclude that the plaintiffs effectively abandoned their claim that the impugned provisions offend the principle against vagueness and therefore I find it unnecessary to address this aspect of their claim in the reasons for judgment.

(iii)The trial

[92]There is a complicated history to this litigation, including litigation that

pre-dates the subject claim. I set out some of it here. Schedule III records a number of the details in a chronological format, in particular a very brief description of the numerous interlocutory and evidentiary rulings.

[93]In May 2007, the MSC wrote to the corporate plaintiffs and indicated concerns regarding extra billing of patients contrary to ss. 17 and 18 of the MPA. In September 2008, the MSC informed the corporate plaintiffs of its intention to conduct an audit of their records and to employ its investigation powers under the MPA.

[94]In December 2008, a petition (the “Petition”) was commenced by Mariël

Schooff, Daphne Lang, Joyce Hamer, Myrna Allison, and Carol Welch (currently, the Patient Intervenors; Ms. Welch passed away in 2012). Ultimately, the respondents were the MSC, Cambie Surgeries, the SRC, and False Creek Surgical Centre Inc.

The Petition challenged the legality of the three private clinics’ operations and billing practices, namely the charging of extra billing and user charges beyond what is permitted under the MPA. The petitioners sought, among other things, a declaration that the MSC was not acting in accordance with its obligations under the MPA to enforce the Act against the private clinics.

[95]In January 2009, in a separate action, Cambie Surgeries, and five other corporate plaintiffs, filed a Writ of Summons against the MSC, the Minister of Health and the defendant. The plaintiffs claimed that ss. 14, 17, 18, and 45 of the MPA violated the plaintiffs’ rights under ss. 7 and 15 of the Charter (the “Constitutional

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Action”). A statement of defence was filed in February 2009. A Notice of Constitutional Question was served by the plaintiffs on the Attorneys General of British Columbia and on Canada in August 2009. The Attorney General of Canada became a party pursuant to s. 8(7) of the Constitutional Question Act, R.S.B.C. 1996, c. 68.

[96]In June 2010, Notices of Discontinuance were filed by five of the corporate plaintiffs with the result that Cambie Surgeries remained the sole corporate plaintiff. In September 2012 and January 2013 the current individual plaintiffs and the SRC were added.

[97]In February 2009, a counterclaim in the Constitutional Action was filed by the Minister of Health and the MSC against Cambie Surgeries and the SRC, who became defendants by counterclaim. Amended counterclaims were filed on January 11, 2013 and May 6, 2015. The trial was originally scheduled to start in September 2014 but it was adjourned by consent as a result of new disclosure of documents by the defendant.

[98]This trial commenced on September 6, 2016.

[99]Shortly after the commencement of the trial, and following an agreement between the parties, the defendant discontinued its amended counterclaim on September 21, 2016 and filed a new counterclaim on October 18, 2016. The defendant later abandoned this second counterclaim during closing submissions in November 2019. The reason was that the counterclaim sought a declaration that the plaintiffs had contravened of ss. 17 and 18 of the MPA and the plaintiffs had conceded as much.

[100]At the same time the defendant amended its counterclaim, the parties also reached an agreement that the defendant would stand in place of the MSC and the Minister of Health as the sole defendant in the action. Accordingly a Notice of Discontinuance of the proceeding against the MSC and Minister of Health was filed by the plaintiffs on September 21, 2016.

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[101]The Coalition Intervenors and the Patient Intervenors were added to the Constitutional Action by orders dated November 20, 2009 and July 2, 2010, respectively.

[102]The following previous judgments and orders are also part of the pre-trial history of this litigation:

a)Under the Petition, on November 20, 2009, Madam Justice L. Smith ordered that the constitutional issues ought to be decided in the Constitutional Action rather than the Petition and she stayed the Petition (Schooff v. Medical Services Commission, 2009 BCSC 1596). She also granted an injunction to permit the defendant MSC to conduct an audit of Cambie Surgeries and the SRC as of March 1, 2010.

b)On September 9, 2010 the Court of Appeal allowed appeals by Cambie Surgeries and the SRC and set aside the above injunction (2010 BCCA 396), but without prejudice to the right of the MSC to apply for a warrant under the MPA. Cambie Surgeries then consented to an audit which was completed in 2012. On the basis of the audit, the MSC sought confirmation from Cambie Surgeries that it would cease violations of the MPA. When that confirmation was not given, the MSC applied for an interim injunction. It subsequently agreed to defer its application to facilitate a timely trial.

c)On November 20, 2009 Justice L. Smith also granted intervenor status in the Constitutional Action to the Coalition Intervenors (2009 BCSC 1596). On July 2, 2010 she added five more individual intervenors, the Patient Intervenors who were previously the petitioners in the Petition (2010 BCSC 927). On October 15, 2012 Chief Justice Bauman (C.J.S.C., as he then was), granted intervenor status to the British

Columbia Anesthesiologists’ Society (“BCAS”) (2012 BCSC 1511).

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d)By order of January 10, 2013 Bauman C.J.S.C. varied the rights of all intervenors and ordered that the intervenors:

i.will receive copies of all pleadings, submissions and lists of documents exchanged or produced by the parties;

ii.may apply for access to specific documents from the list of documents exchanged or produced by the parties;

iii.may apply to participate in any cross-examination on affidavits;

iv.may submit evidence at the hearing of this action in a form and with such limits as are determined by the Court;

v.may submit legal argument at the hearing of this Action in a form and with such limits as are determined by the Court;

vi.may apply to participate in examinations for discovery.

[103]A number of orders were made with respect to the disclosure of documents and other procedural matters in the Constitutional Action (see 2013 BCSC 2066 and

2014 BCSC 361; see also Associate Chief Justice Cullen’s oral ruling given on May 21, 2014 in the defendant’s application for disclosure and discovery). It is not necessary to go into the specifics of each of these decisions here.

[104]Later in June 2014, Cullen A.C.J. made further amendments to the role and rights of the intervenors in this action (2014 BCSC 1028). In that ruling he ordered that BCAS’s application to adduce evidence be adjourned but admitted some of the Coalition Intervenors’ expert reports. A.C.J. Cullen also limited the Patient Intervenors’ evidence to affidavits and 12 witnesses.

[105]On November 25, 2015, Cullen A.C.J. ordered an interim stay of ss. 14, 17, 18, and 45 of the MPA, the provisions challenged by the plaintiffs on constitutional grounds (2015 BCSC 2169). The legal basis of the stay was the court’s inherent jurisdiction and the need to prevent the “clogging or obstruction of the stream of justice” (at para. 144). The specific concern was that the enforcement duties of the MSC had become entangled with this litigation, in particular through discovery hearings. The stay restrained the audit by the MSC of the corporate plaintiffs on an interim basis but future enforcement actions were not foreclosed (at para. 150).

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[106]In very broad terms the result of the above is that the Petition has been stayed and the Constitutional Action and counterclaim have proceeded. As Justice L. Smith stated, this litigation is the best way to determine the issues under the Charter (2009 BCSC 1596 at para. 37).

[107]In anticipation of trial, the standing of the corporate plaintiffs in this action was confirmed in a decision I gave in July 2016 (2016 BCSC 1292). There is disagreement between the parties with respect to the correct interpretation of that decision and the nature and scope of the corporate plaintiffs’ standing. I address this issue separately below.

[108]Later that same month I ordered that portions of Dr. Roland Orfaly’s affidavit

(representing the BCAS intervenor) be struck on a number of grounds including relevance (2016 BCSC 1390). In that ruling I also provided general guidelines as to the manner in which evidence will be admitted in this trial. Due to the many procedural and evidentiary disputes that have arisen in the course of this trial, and which I discuss later, I find it useful to include the following excerpt from that decision:

[37]The BCAS and the plaintiffs rely on the approach taken by Bauman C.J.S.C., as he then was, in the Polygamy Reference for their submission that there should be a greater scope for the admissibility of evidence in constitutional cases.

[38]That case involved a reference whereby the Lieutenant Governor in

Council referred questions to the court with respect to the constitutionality of

s.293 of the Criminal Code, R.S.C. 1985, c. C-46. The Chief Justice took an

“expansive approach to admissibility” and he admitted all evidence tendered (at paras. 59, 46). He also noted the “novelty” of the proceeding (at para. 45) and that there was a danger of a “factual vacuum” in a reference case because, among other reasons, there were “no parties in the usual sense” (at para. 52). Since there are no immediate parties in a constitutional reference, there were no adjudicative facts, and there was “no specific ‘who’ that did ‘what, where, when, how and with what motive or intent’” (at para. 61).

[39]The subject case is not a reference but adversarial litigation involving informed and resourced parties, as well as intervenors. There are critical and controversial adjudicative facts to be determined with respect to the system of health care in British Columbia, wait lists in particular. That is the who, what, where, when, how, and motive of the MPA. I conclude that the expansive approach to the admissibility of evidence in the Polygamy Reference decision has little application to the adjudicative facts here.

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[40]I do accept from that judgment that some latitude to the admissibility of legislative facts is appropriate, as was discussed in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 and by Professor Hogg. As noted above, it seems to me that this latitude can apply most appropriately to issues of hearsay with respect to legislative facts and some of the paragraphs discussed below are examples. Opinion evidence is less amenable to this latitude because it is, of course, opinion and there can be both informed and other kinds of opinions. With respect to relevance, where (as here) there is extensive evidence expected from adversarial parties, a structure is needed to give shape to the evidence. That is the role of the pleadings and I see no reason to expand that structure with a broader scope of evidence, especially for an intervenor.

[41]Overall, I conclude that a full and inclusive record is appropriate in constitutional litigation such as this with some latitude given to the admissibility of legislative facts, particularly with respect to hearsay. At the same time, this is not a constitutional reference or a royal commission and the record must be manageable as determined by the traditional techniques available to courts. These include limitations on opinion evidence, focus on relevance and the application of the restrictions, exceptions and principles applicable to hearsay (in particular for adjudicative facts).

[109]The plaintiffs filed their trial brief on August 2, 2016. The defendant and Canada filed their respective trial briefs on August 5, 2016. The action was then certified for trial on August 17, 2016.

[110]At the opening of trial, I rejected an application brought by Pacific Newspaper Group to set up a daily live feed of the trial, due to privacy issues relating to records of patients, among other reasons (2016 BCSC 1686). The application was also made without notice and on the first day of trial and allowing it would have required standing down the trial.

[111]As above, the trial commenced on September 6, 2016. Following opening statements the plaintiffs commenced their case and evidentiary disputes immediately arose. Many of these disputes involved questions of admissibility of expert evidence such as the qualification of experts, late filing of expert reports and issues of format and proper notice. In other disputes the parties raised issues relating to the admissibility of documentary evidence. Overall since commencement of the trial I have issued over 50 evidentiary rulings. It is not necessary to mention them all here. They (and decisions from the Court of Appeal) are listed in Schedule III, including their citations.

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[112] In order to provide a more complete background of how this trial unfolded,

I will briefly discuss some of the more significant evidentiary disputes and rulings in this litigation. Generally, the evidentiary disputes between the parties during the plaintiffs’ case related to the admissibility of expert evidence or the admissibility of documentary evidence not tendered through witnesses for different purposes.

(iv)Expert evidence

[113]The expert evidence in this case is discussed below and, as will be seen, all parties and intervenors have treated it as a very important component of the evidence. Reports of 40 experts were tendered, and all experts were cross-examined. A number of additional expert reports were originally tendered but ultimately withdrawn by the parties.

[114]Soon after the trial commenced and in anticipation of the plaintiffs’ first witnesses, disputes arose about the proper form of expert reports and the scope of expert evidence. For example, during the evidence of Professor Michael Bliss, an expert for the plaintiffs, the defendant objected to the plaintiffs tendering into evidence articles and reports cited in his expert report. In deciding that matter

I reviewed the rules relating to expert evidence, namely Rule 11-7(5) and 11-7(6) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, as well as the relevant case law. I concluded that portions of papers or studies relied upon and cited by an expert may be read into the record during the expert’s examination (assuming it is done consistently with the usual constraints on the direct evidence of experts). However, the entire document that is cited in the report cannot form part of the expert’s evidence. The expert taking the stand may adopt or reject the cited work put to him or her and the document will be marked for identification purposes only (2016 BCSC 1739).

[115]Another class of disputes concerned the permissible scope of expert evidence, including delineating the subject matter that some of the experts were qualified to opine on. It is trite that opinion evidence is not admissible unless it falls under one of the exceptions, such as expert evidence (2016 BCSC 1390 at

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paras. 22-23). However, a party seeking to tender expert opinion evidence must then satisfy the requirements under the Rules pertaining to the timeliness and form of an expert report and the expert must be qualified to opine on the matters discussed in his or her report.

[116]On three occasions I determined that experts for the plaintiffs, all economists, were not qualified to opine on matters relating to medical causation (see: oral ruling on Mr. Yanick Labrie’s qualifications, given on December 5, 2016; oral ruling on Professor Daniel Kessler’s qualifications given on December 12, 2016; and oral ruling on Professor Alistair McGuire’s qualifications, 2017 BCSC 156). As a result of these decisions, portions of these experts’ reports opining on medical effects of waiting for surgical care have been given no weight.

[117]Another issue that was raised with respect to the proper scope of expert evidence concerned whether or not a responding expert report can stand once the original report it responded to has been withdrawn by the adverse party. On two occasions I determined that portions of expert reports submitted by the plaintiffs must be struck because they were not understandable without the original initiating reports which were withdrawn by the defendant (see rulings on Mr. Labrie’s report, 2016 BCSC 2345 and Dr. Leslie Vertesi’s report, 2017 BCSC 581 at para. 45).

[118]The plaintiffs applied to the Court of Appeal seeking leave to appeal the ruling on Professor Kessler’s qualifications and the order that portions of Mr. Labrie’s report which responded to an original report withdrawn by the defendant, must be struck.

[119]In an oral decision given on March 6, 2017, Madam Justice Smith in the Court of Appeal dismissed both leave applications. The plaintiffs were then granted leave to make an application to vary Smith J.’s decision before a five-member division of the Court of Appeal. In a decision delivered on July 31, 2017, the Court of Appeal dismissed the plaintiffs’ applications (2017 BCCA 287), including a third application seeking leave to appeal a third evidentiary decision pertaining to the inadmissibility of Dr. Vertesi’s late report (2017 BCSC 581). In reaching its conclusion the Court of

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Appeal determined that it did not have jurisdiction to entertain appeals from the challenged decisions because the evidentiary decisions in question did not constitute “orders” appealable as of right or with leave.

[120]In the meantime and in an attempt to fill the evidentiary gap left on matters relating to the medical and psychological consequences of wait times, the plaintiffs sought to file several late expert reports pursuant to Rule 11-7(6). In most cases, subject to objections relating to qualifications and relevance, I allowed these new reports after finding that doing so would not cause significant prejudice to the defendant or Canada (see 2016 BCSC 2376, 2017 BCSC 445 and 2017 BCSC 581). In the result, the plaintiffs were permitted to introduce six new late expert reports. The plaintiffs also sought to tender an additional late expert report in June

2018, which was an “update” to a late expert report I previously admitted. After determining that admitting the “updated” report would cause prejudice to the defendant I rejected the plaintiffs’ application and did not allow the late filing of the

June 2018 additional report (2018 BCSC 1146).

(v)Documentary evidence

[121]Another contentious evidentiary matter has been the admissibility of documentary evidence. On a number of occasions the plaintiffs sought to tender documents by themselves as proof of the truth of their contents, or alternatively to establish that the defendant had knowledge of those documents and their contents. The plaintiffs sought to have these documents admitted for their truth without calling witnesses involved in their production or distribution.

[122]In one instance the plaintiffs applied to admit 45 pages of complaint letters sent by the general public and received by the Ministry of Health in order to establish the prima facie truth of their contents. They contained opinions, hearsay (sometimes double hearsay) and opinion evidence. In my ruling on that application I concluded that the exceptions to the rule against hearsay did not apply and none of the documents were admissible (2016 BCSC 2377).

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[123]Later in the trial the plaintiffs sought to have similar complaint letters as well as a large number of other documents, including internal email communications within the Ministry of Health, admitted under the documents in possession doctrine. These documents were essentially all of the thousands of documents listed on the defendant’s list of documents (and substantial disclosure from the defendant continued throughout the trial on something of a routine basis).

[124]Generally, the complaint letters and the Ministry’s responses to them related to wait times for medical services. In their application the plaintiffs distinguished between documents authored by third parties and received by the Ministry and documents authored by Ministry employees. Under the documents in possession doctrine the plaintiffs sought to have the former category of documents admitted for the purpose of establishing that the Ministry knew about the complaints. The plaintiffs sought to admit the latter category of documents as proof of the truth of their contents.

[125]In my ruling I concluded that while it is clear that the defendant had possession of all the documents, only a small number of them were admissible (2017 BCSC 861). Many of the documents were either not relevant to this litigation or inadmissible hearsay, at times even double hearsay. The result was that only a small number of authorized Ministry responses, whether in final or draft form, were admitted for the purpose of establishing that the Ministry had knowledge of specific information mentioned in the documents.

[126]In a separate application, filed at around the same time, the plaintiffs sought to introduce what they called a “Brandeis Brief”, containing a collection of hundreds of documents into evidence. The plaintiffs submitted that although uncommon in most litigation in Canada, a Brandeis Brief would be appropriate in a constitutional action of this nature where government and scientific documents are both extremely reliable and central to the issues at hand. Moreover, the plaintiffs argued that it would be unreasonable and unnecessary to require that they tender each and every document through a witness. The plaintiffs relied on the doctrine of judicial notice

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and the distinction between legislative and adjudicative facts. Counsel for the plaintiffs submitted that the documents they sought to have admitted through this brief related to legislative facts concerning the purposes and effects of the impugned provisions of the MPA.

[127]The defendant and Canada both argued that a Brandeis Brief was inappropriate in this case. In their submissions they challenged the relevance, necessity and reliability of some of the documents listed by the plaintiffs as examples of what they wished to introduce through such a brief. Moreover, the defendant emphasized that such a collection of documents relating to relevant legislative facts was already agreed to and prepared jointly by the parties in the form of the Common Books of Documents which were introduced into evidence at the commencement of trial. If there was any reason to add more documents into the Common Book that could be done on a case by case basis but an omnibus type order which would simply allow the plaintiffs to introduce potentially thousands of documents was not sanctioned by the rules of evidence.

[128]In deciding this application I had only a limited number of documents before me as the plaintiffs submitted only examples of what they wished to introduce through a Brandeis Brief. Therefore, my ruling was limited to general guidelines with regards to the types of documents the plaintiffs had suggested could be admitted through a brief and the specific documents I was able to review (2017 BCSC 860).

[129]Overall, I concluded that the Common Book was the appropriate format for introducing documents relating to legislative facts and that it was unnecessary to introduce another brief for that purpose. In other words, the Common Book would serve the purpose of a Brandeis Brief in this case. I also found that, generally, official government sources are presumed to be reliable and, subject to issues of relevance, could be added to the Common Book. As to other documents, I provided general guidelines to aid the parties in deciding what can be added to the Common Book. In some cases I found that, based on previous submissions of the parties, the

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documents appeared on their face to be inherently reliable and encouraged the parties to consider adding them to the Common Book.

[130]However, I also commented that a large number of other documents seemed irrelevant. Others were controversial and could not be introduced without a witness who could be examined on the circumstances of the production of the document.

Likewise, based on the limited documents I was able to review I concluded that, generally, documents that discussed wait times and the health consequences of wait times related to adjudicative facts and therefore these documents would not be admissible through the Common Book. An amended version of the Common Book of Documents was later submitted by the parties.

[131]Later in the trial, the plaintiffs sought to add another 36 documents by way of a Brandeis Brief. Ultimately, the defendant opposed admitting three of the documents through this method. The three documents concerned policy alternatives to the current statutory provision on private health insurance. In my ruling on these documents, I found two were inadmissible for lack of relevance, while a third was broadly relevant and admissible (2019 BCSC 212).

(vi)Adjournment of the evidence

[132]Due to the many procedural and evidentiary disputes it became apparent in late March and early April 2017 that the hearing of the evidence could not continue as scheduled. Evidence of both lay and expert witnesses was being interrupted constantly and most scheduled court dates were being used to hear procedural and evidentiary disputes. In too many cases blocks of previously scheduled court time were adjourned.

[133]Another issue that caused delays in the hearing of the evidence was the ongoing discussions between the plaintiffs and the health authorities. The plaintiffs sought disclosure of large numbers of documents which they initially assumed were in the possession of the Ministry of Health. It was only after the trial had commenced that the plaintiffs realized that many documents they believed were relevant to their case were in the possession of the health authorities and not the Ministry. The result

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of this was that a significant amount of new evidence was anticipated, beyond the already extremely large evidentiary record in this case. I expressed concern more than once that this matter (and others) had not been resolved before the commencement of the trial.

[134]It should be noted at this point that subsequent to a number of applications and judicial case management conferences involving the parties and health authorities, thousands of new documents were disclosed by the health authorities at the request of the plaintiffs. However, only a very small number of these documents were ultimately used or relied on by the parties, including the plaintiffs, in their closing submissions.

[135]In any event, as a result of these delays and disruption of the flow of the evidence, the parties filed a joint application seeking to adjourn the hearing of evidence on April 10, 2017. Initially the adjournment was supposed to end on September 5, 2017, but it was later extended multiple times at the parties’ request, with the trial ultimately recommencing on April 9, 2018. In the meantime, and during the adjournment of the evidence, a series of applications and procedural disputes were heard and resolved in addition to those related to the disclosure and production of the documents of the health authorities. I will briefly discuss the more important procedural and evidentiary decisions made during the adjournment (disputes that required rulings continued after the recommencement of the trial).

[136]First, during the adjournment, a dispute arose over the plaintiffs’ addition of 13 new names to its witness list of September 18, 2017 (2017 BCSC 2216). This was the latest in a series of amendments to the plaintiffs’ witness list since their trial brief was filed on August 3, 2016. After this latest amendment, the defendant brought an application barring the plaintiffs from calling the newly added witnesses. The defendant argued that one of my rulings in October 2016 (2016 BCSC 2038) and a ruling in another trial (Fu v Zhu, 2017 BCSC 749) required the plaintiffs to seek leave to call these witnesses, which ought to be denied. I found, however, that my October 2016 ruling did not impose this requirement. I also noted that while this

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requirement was imposed in Fu, I declined to impose it here due to the different circumstances of this case. For instance, in Fu, the adding of new witnesses raised issues of notice and trial by ambush, which did not arise here given the lengthy trial. Thus, I declined to grant the defendant’s application. During the hearing on this matter, however, the plaintiffs accepted that their September 18, 2017 witness list was “final,” meaning that the agreement of the parties or leave of the court was required before they could add to the list.

[137]Second, in late 2017, I proposed the use of a hybrid trial as a means of enhancing efficient use of court time and completing the evidence sooner than it would take with a full trial. The evidence in chief of some witnesses was to be tendered in affidavit form and opposing parties were to have the opportunity to cross-examine these witnesses. This was agreed but, unfortunately, the use of affidavit evidence created a new opportunity for evidentiary disputes.

[138]In December 2017, the parties filed a joint application for the use of a hybrid trial and presented a schedule to hear disputes relating to the admissibility of the evidence in the parties’ affidavits in March and April 2018. Following these hearings,

I made several rulings during the adjournment and after the trial recommenced on the admissibility of this affidavit evidence. One of the more significant rulings concerned the affidavit of Dr. Brian Day of Cambie Surgeries and SRC (2018 BCSC 514).

[139]Dr. Day’s affidavit was 95 pages, with exhibits adding an additional

874 pages. It touched on, among other things, his medical practice before and after founding Cambie Surgeries, his tenure as president of the Canadian Medical Association and the treatment he provided to two of the patient plaintiffs, Chris Chiavatti and Krystiana Corrado. The plaintiffs did not seek to qualify Dr. Day as an expert witness.

[140]The defendant contested the admissibility of approximately half of the paragraphs in Dr. Day’s affidavit and attached exhibits. The defendant’s submissions on the impugned paragraphs raised similar issues (in some cases the same issues)

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that had arisen in previous evidentiary disputes: relevance, hearsay, argument and opinion evidence. In reply, the plaintiffs contested the defendant’s characterization of the evidence in Dr. Day’s affidavit and also renewed their position that a broad, permissive scope ought to be taken to the admissibility of evidence in constitutional litigation.

[141]In my ruling on Dr. Day’s affidavit, I reiterated that I disagreed with the

plaintiffs’ expansive approach to the evidence. On this point, I relied on my decision in 2016 BCSC 1390, where I found that while I may give some latitude to the admissibility of evidence on legislative facts, the traditional techniques for managing a trial’s evidentiary record applied, including the limitations on opinion evidence, a focus on relevance and restrictions on hearsay. I reiterated the conclusion in the Brandeis Brief ruling, that a very broad approach to admissibility, as urged by the plaintiffs and described as “the court may go anywhere for its facts,” was not appropriate or supported by the authorities (2017 BCSC 860 at paras. 39-45, 53, citing R. v. Spence, 2005 SCC 71 at paras. 48-66 and R. v. Find, 2001 SCC 32 at para. 48).

[142]Consequently, I reviewed each of the impugned paragraphs and exhibits in

Dr. Day’s affidavit. I agreed with the defendant’s submissions in part, finding some paragraphs in the affidavit, and some of the exhibits, were inadmissible because they were irrelevant or contained hearsay and argument. I also determined that several paragraphs and their related exhibits contained opinion evidence and ruled they were inadmissible, since the plaintiffs did not seek to qualify Dr. Day as an expert witness. I ordered the plaintiffs to tender a copy of the affidavit with the exhibits and paragraphs found inadmissible struck or removed.

[143]A third significant dispute concerned the plaintiffs’ application in March 2018 seeking various orders relating to the defendant’s alleged failure to comply with its disclosure obligations (2018 BCSC 749). If granted in full, the plaintiffs’ application would have doubled the list of documents that the defendant had already produced. The main issue on the application was the cut-off date beyond which the defendant

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was not required to search for documents to list pursuant to Rule 7-1(1) of the Rules. This rule obliges a party to list for production those documents that “could, if available, be used by any party … to prove or disprove a material fact.”

[144]The plaintiffs contended that for some documents the appropriate cut-off date was 1984 and for other documents it was 1992 when private healthcare began to have a presence in British Columbia. The defendant argued the cut-off date was 2005, citing an agreement between counsel. In my ruling, I agreed with the plaintiffs that there was no formal agreement to a 2005 cut-off date. I did, however, find that the plaintiffs had acquiesced to that date and that the plaintiffs had not demonstrated that documents dating back to 1984 or 1992 were relevant to their claim as evidenced in correspondence between counsel. Thus, I determined that January 1, 2005 was an appropriate general cut-off date. I went on to find that some classes of documents were appropriately part of an order for production of documents by the defendant. I listed those classes in my ruling, with my comments on their scope, and made an order for their production accordingly.

[145]A final dispute arose in relation to the payment of court fees. The plaintiffs brought an application seeking an exemption from paying statutory court fees. They argued it was unconstitutional to require a party with a prima facie meritorious constitutional challenge to pay court fees, since court fees are a deterrent to the assertion of Charter rights. The plaintiffs relied on Christie v. British Columbia (Attorney General), 2005 BCCA 631, where the Court of Appeal cited a dissenting opinion that found a legal services tax was ultra vires to the extent it applied to constitutional cases. In my judgment, I determined that Christie did not support the plaintiffs’ position (2017 BCSC 1493). For one, the Court of Appeal in Christie found there was no general right of access to legal services, meaning the court determined constitutional cases were not subject to special treatment from the standpoint of access to justice. Moreover, I noted that, in any event, Christie was overturned by the Supreme Court of Canada: 2007 SCC 21. For these and other reasons,

I dismissed the plaintiffs’ application. The plaintiffs subsequently appealed my judgment on court fees. The Court of Appeal upheld this court’s judgment and

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dismissed the plaintiffs’ appeal (2018 BCCA 385, leave to appeal ref’d [2018] S.C.C.A. No. 526).

[146]With some procedural and evidentiary disputes not yet resolved, the hearing of the plaintiffs’ evidence recommenced on April 13, 2018. However, before the hearing of evidence could resume, the Government of British Columbia amended the MPA. This precipitated several events in the trial, which I now turn to.

(vii)Amendments to the MPA

[147]On April 4, 2018, the Government of British Columbia proclaimed into force amendments to the MPA that in October 2018 would add two new sections, ss. 18.1 and 46. The former created a new prohibition on charging privately for provision of diagnostic services that are benefits under the MPA. This new prohibition captured diagnostic imaging, like MRIs, but not surgical services with a diagnostic function already captured under the impugned provisions, like colonoscopies. The latter increased the financial penalties for violating ss. 17-18.1.

[148]The plaintiffs filed an application to amend their pleadings in response to the new amendments to the MPA. Some of the amendments the plaintiffs sought were relatively minor. However, the plaintiffs also sought to add a constitutional challenge to s. 18.1 and to add the issue of the enforcement of the MPA, although they did not seek to challenge s. 46. The defendant agreed several amendments were necessary but objected to adding the issue of enforcement and the challenge to s. 18.1.

[149]On the challenge to s. 18.1, the defendant submitted the challenge was a new cause of action and the plaintiffs could not expand their pleadings to include it. On the enforcement issue, the defendant submitted that since there was no constitutional challenge to the enforcement provisions of the MPA, the issue of enforcement could not be properly part of the plaintiffs’ claim. The plaintiffs maintained that the issue of enforcement could be raised, since it was context for their constitutional challenge. I granted the plaintiffs’ application in part, accepting that some of the amendments were necessary but I concluded that a challenge to

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s. 18.1 and the issue of enforcement under s. 46 could not be added to the pleadings (2018 BCSC 1141).

[150]I cited several reasons for declining the plaintiffs’ attempt to add s. 18.1 to their claim. I found that the plaintiffs lacked a sufficient interest in the provision of the diagnostic services captured under s. 18.1. Cambie Surgeries did not provide such services and I was not persuaded that a private surgery clinic, such as Cambie Surgeries, could represent for the interests of a private diagnostic clinic.

[151]I also determined that different evidence was required to support a challenge to s. 18.1. This opened up the prospect of fresh disputes over discovery of documents and witnesses, which might require another adjournment to resolve.

I found that the prospect of new disputes and delays outweighed any efficiencies gained in hearing a challenge to s. 18.1 alongside the other challenges. In declining the plaintiffs’ attempt to add the issue of enforcement under s. 46, I found it was bound to fail for the simple reason that the plaintiffs made no legal challenge to

s. 46.

[152]In response to the new amendments, the plaintiffs also filed an application on July 6, 2018 for injunctive relief, seeking to stay or suspend enforcement of ss. 17, 18 and 45 of the MPA. Justice Winteringham heard the application on September 24-26, 2018, and in reasons issued on November 23, 2018, she granted the plaintiffs’ application for injunctive relief (2018 BCSC 2084). In granting the injunction, Winteringham J. applied the legal test for injunctive relief in constitutional cases set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. In her decision, Winteringham J. summarized the basis for granting the injunction:

[190]In summary, for the purposes of the Injunction Application, I have determined the following:

a)Taking into account the circumstances of this constitutional litigation and a preliminary assessment of the evidence, the Plaintiffs have established that injunctive relief is appropriate in this case. I make that determination based on a preliminary assessment of the evidence and

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finding that the Plaintiffs have established that there is a serious question to be tried in that:

i.Some patients will suffer serious physical and/or psychological harm while waiting for health services;

ii.Some physicians will not provide private-pay medically necessary health services after the MPA Amendments take effect;

iii.Some patients would have accessed private-pay medically necessary health services but for the MPA Amendments;

iv.Some patients will have to wait longer for those medically necessary health services that could have been available but for the MPA Amendments and impugned provisions;

v.A sufficient causal connection between increased waiting times for private-pay medically necessary health services and physical and/or psychological harm caused to some patients.

b)The Plaintiffs have established irreparable harm in the context of a constitutional case that has proceeded in a manner that is consistent with public interest litigation in that some patients, but for the prohibitions, could have obtained private-pay medically necessary health services much sooner at a private clinic (such as Cambie) and the subsequent delay in receiving treatment causes some patients to endure serious physical and psychological suffering. The nature of this constitutional case complicates the assessment of damages at the interlocutory stage.

c)The Plaintiffs have established that the balance of convenience tips in their favour. This is so despite the Court’s conclusion that the MPA Amendments are directed to the public good and serve a valid public purpose. The Plaintiffs have tilted the balance by establishing that restraint of the enforcement provisions will also serve the public interest in that private-pay medically necessary health services will be accessible in circumstances where the parties are in the midst of a lengthy trial to determine the complicated constitutional issues at play. Enjoining the province from enforcing the prohibitions for a relatively short period of time serves that important public purpose.

[153]On January 24, 2019, the Court of Appeal dismissed the defendant’s application for leave to appeal the injunction (2019 BCCA 29).

[154]On February 12, 2019, the plaintiffs filed an application seeking a declaration that the defendant had breached the injunction and an order that the defendant cease the conduct that contravened the injunction. The principal conduct that allegedly contravened the injunction was the British Columbia government’s request for “Compliance Statements” from enrolled physicians. These statements obliged

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physicians to confirm in writing that they would not provide any privately paid medically necessary healthcare services. Failure to sign the statement would result in restrictions on the physician’s operating room time in the public system. In response to the application, the defendant argued that the plaintiffs were not entitled to the relief sought because it required invoking contempt proceedings, which the plaintiffs did not do.

[155]In her ruling on the plaintiffs’ application, Winteringham J. found that the relief sought did require contempt proceedings and for that reason, the plaintiffs’ application failed (2019 BCSC 860). Winteringham J. noted that the Court of Appeal has previously barred parties from seeking a stand-alone declaration or finding of a breach of an order in the absence of a finding of contempt (at para. 89). In this case, the extra procedural protections associated with contempt proceedings were required in part because the relief sought rested on disputed facts.

[156]While the plaintiffs’ injunction application was heard and resolved, the trial continued. The later phases of the trial saw comparatively fewer disputes over evidence and unfolded with greater efficiency. The plaintiffs completed their case on March 8, 2019, or Day 139 of the trial. The Patient Intervenors, BCAS and Canada presented their cases between April 15 and May 6, 2019, or from Day 143 to 149 of the trial. The defendant presented its case between May 7, and July 19, 2019, or on Days 150-179. Witnesses for the Coalition Intervenors appeared on May 13 and June 21, 2019.

[157]Two disputes related to the defendant’s experts arose in the presentation of their case. During the cross-examination of one expert witness, counsel for the plaintiffs relied on documents that had not been previously served on the defendant. I determined these were inadmissible (2019 BCSC 1221). The plaintiffs also challenged the admissibility of portions of an expert report authored by Professor Kluge and tendered by the defendant. I agreed with the plaintiffs that portions of the report were inadmissible and struck them from the Professor Kluge’s report (2018 BCSC 748).

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[158]Closing submissions took place from November 18, 2019 to December 2, 2019, and concluded during the week of February 24, 2020. During closing submissions, the defendant abandoned its counterclaim seeking a declaration that the plaintiffs had violated the MPA after the plaintiffs admitted having contravened ss. 17 and 18 of the MPA.

[159]It also became apparent during final argument that the plaintiffs considered the injunction to still be in force at the time of closing submissions. However,

Winteringham J.’s order was effective until June 1, 2019 or further order of the court. The plaintiffs had not sought to extend the injunction before the June 1, 2019 expiry date and so, under the terms of Winteringham J.’s order, the injunction expired months before the closing submissions began. I make no findings about the previous or current status of any injunction.

C.HISTORY OF PUBLIC HEALTHCARE AND WAIT TIME INITIATIVES

[160]It may be recalled that the object of the plaintiffs’ claim are four provisions of the MPA: s. 14 (a medical practitioner can elect to be paid directly by patients who are later reimbursed by the public medical plan), s. 17 (limits on direct or extra billing by an opted-in enrolled practitioner), s. 18 (limits on direct or extra billing by an opted-out enrolled practitioner) and s. 45 (prohibition on private insurance for

“medically required services”).

[161]This section explains the historical development of those provisions in the context of evolving provincial and federal legislation.

(a)The origins of public healthcare in Canada and British Columbia

[162]Before Canada established public healthcare it was the Prussian Chancellor, Otto von Bismarck, who first introduced the concept of state funded healthcare accessible to all citizens. In 1893, he established what is still known as the Bismarck model of public healthcare.

[163]In very broad terms, the Bismarck model provides for a multi-payer financing structure with multiple insurance funds providing health insurance coverage. The

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healthcare market is highly regulated, ensuring that the different health plans cover everyone, regardless of level of income or pre-existing health conditions. In some cases the model also ensures that the different healthcare funds remain not profitable. Nearly half a century later other European countries followed Bismarck’s vision of the modern welfare state.

[164]A second tradition of public healthcare is generally attributed to the economist William Beveridge who was a cabinet minister in the British government after World War II. He led the establishment of the National Health Services (“NHS”) in 1948. Unlike Bismarck’s model, the Beveridge model, which remains the basis for the United Kingdom’s healthcare system today, is a single-payer financing model, in which the state is both the sole financer and the sole provider of healthcare.

[165]In the post-World War II era, modern countries around the world followed suit and introduced state funded healthcare inspired by either the Beveridge or Bismarck models.

[166]It is important to note that there are still some countries which do not have extensive state funded healthcare. These countries are described as having market driven healthcare models where access to healthcare depends, at least to a large extent, on one’s ability to pay for it. However, nearly all industrialized countries have some form of state funded healthcare for its citizens and most of these are what is called a universal healthcare system to capture the participation of the general population.

[167]A third model of public healthcare has emerged and it combines aspects of both the Bismarck and Beveridge models. This third model is known as the National Insurance Model and Canada is considered to be a primary example of this model. Broadly speaking this model draws the financing side of healthcare from the Beveridge model and the provision side from the Bismarck model. In other words, under this model the state is the sole funder of healthcare through a central insurance plan but the provision of care is accomplished through private practitioners and facilities.

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[168]This is of course further complicated in the Canadian context due to the division of powers between the federal government and the provinces. While the federal government plays an important role through its spending powers, it is the constitutional responsibility of the provinces to establish and administer healthcare. I discuss the specifics of the Canadian constitutional context in greater detail later on, but for now I stress the importance of the historical background to the Canadian public healthcare system.

[169]With respect to the single payer model in Canada, the plaintiffs’ experts say that the rest of the world considers Canada to be an outlier because it does not have a duplicative private healthcare. On the other hand, the experts of the other parties say that the rest of the world believes Canada has done well to avoid the harm of duplicative private healthcare. This dispute is discussed in considerable detail in the section below on the principle against arbitrariness, one of the principles of fundamental justice.

(b)Public healthcare in Canada

[170]Turning to the specific history of healthcare in Canada, before World War II healthcare was, for the most part, privately delivered and funded. In 1946, the government of Saskatchewan, with Tommy Douglas as premier, introduced a province-wide, universal hospital care plan. The Saskatchewan plan limited coverage to hospital and diagnostic services and inpatient drugs, which were provided free of charge. By 1948, British Columbia had a plan similar to Saskatchewan.

[171]The federal government passed the Hospital Insurance and Diagnostic Services Act, S.C. 1957, c. 28, in 1957, which offered to reimburse, or cost share, one-half of provincial and territorial costs for specified hospital and diagnostic services. Under this legislation, federal funding would be available to those provinces who provided insured hospital and diagnostic services to all residents “on uniform terms and conditions.” Within four years, all the provinces and territories had implemented universal hospital coverage that met the federal conditions.

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[172]Saskatchewan was the first province to introduce universal health insurance for doctors' services to all its residents in October 1961. This was the Saskatchewan Medical Care Insurance Act (current citation: R.S.S. 1978, c. S-29). Due to pressure from the province’s physicians and medical association, physicians remained independent practitioners and were compensated on a fee-for-service model, unlike physicians in Britain’s NHS, who are salaried employees. Despite these changes, doctors opposed the new legislation and went on strike. The government brought in replacement doctors from the United Kingdom. The strike prompted further concessions from the Saskatchewan government: physicians would be permitted to practise outside the public plan, while physicians working within the public plan could opt to be paid through provincially sponsored private insurance plans. In exchange, however, the private insurance plans were reduced to a “cheque-writing” function, as the plans were funded by the government and merely issued cheques to physicians for services rendered.

[173]Encouraged by the public support for Saskatchewan's historic medicare experiment, the federal government began to study the possibility of creating such a plan for all Canadian citizens. The Royal Commission on Health Services, chaired by Supreme Court Justice Emmett Hall, was established by Order in Council on June 20, 1961, under Part I of the Inquiries Act (current citation: R.S.C. 1985, c.-I-11). Its purpose was to:

... inquire into and report upon the existing facilities and the future need for health services for the people of Canada and the resources to provide such services, and to recommend such measures, consistent with the constitutional division of legislative powers in Canada, as the Commissioners believe will ensure that the best possible health care is available to all Canadians ...

[174]Twelve issues were identified, including: financing methods; present and future requirements for health services personnel and their training; present and projected costs of healthcare services in Canada; and methods of improving healthcare services.

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[175]Two final reports were issued, the Royal Commission on Health Services: 1964: Volume I, tabled in the House of Commons on June 19, 1964, and the Royal Commission on Health Services: 1965: Volume II, issued on December 7, 1964. Known collectively as the Hall Report, it recommended a single-payer universal scheme for physician services along the lines of what Saskatchewan had implemented, as the most administratively viable and cost-effective way to ensure comprehensive coverage.

[176]The Hall Commission also recommended creating a “Health Charter for all Canadians” with guidelines for universal and comprehensive coverage on uniform terms and conditions. In its proposed Charter, the Commission endorsed the principle that doctors working under the universal plan should be free to choose their patients, and patients accessing care through the plan should be free to choose their doctors. Contrary to the plaintiffs’ submissions in the subject claim, this principle was not an endorsement of private healthcare. Rather, it expressed the view that patients and doctors ought to be free to choose who they saw in a public healthcare system.

[177]The Commission also made specific policy recommendations in terms of the financing structure of healthcare. For example, the Commission members recommended that a fee-for-service method be adopted for the payment of providers. Likewise, the Commission recommended that fees be regulated according to a schedule of agreed upon maximum rates and that extra billing beyond these rates be prohibited.

[178]The Hall Report led to the introduction of the federal Medical Care Act,

S.C. 1966-67, c. 64. When he introduced the Bill in the House of Commons on July 12, 1966 Allan J. MacEachen, Minister of National Health and Welfare, said:1

... The government of Canada believes that all Canadians should be able to obtain health services of high quality according to their need for such services and irrespective of their ability to pay. And we believe that the only practical and effective way of doing this is through a universal, prepaid, government- sponsored scheme.

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[179]The Medical Care Act offered to reimburse, or cost share, one-half of provincial and territorial costs for medical services provided by a doctor outside of hospitals. Federal funding was conditional on meeting four criteria: comprehensiveness, portability, public administration and universal coverage, such that all residents would have access on uniform terms and conditions. Within five years, all the provinces and territories had universal physician services insurance plans.

(c)Public healthcare in British Columbia

[180]In 1965, the Government of British Columbia enacted An Act Respecting Medical Grants, S.B.C. 1965, c. 25, (“the 1965 plan”), making British Columbia among the first provinces to introduce its own universal provincial health plan.

[181]To secure the support of the province’s medical association, the British Columbia Medical Association (“BCMA”), British Columbia’s original plan was fundamentally different from the plan in Saskatchewan. Significantly, coverage under the plan was provided through a roster of “certified” non-profit private insurance carriers and a public insurer that covered high-risk patients. In response to pressure from the BCMA, the plan did not limit extra billing, nor did it prohibit doctors from working outside the plan. The 1965 plan also did not prohibit non-certified private insurance carriers from offering plans on terms and conditions different from those offered by a certified carrier. However, three years later, the 1965 plan was reformed in order to conform to federal requirements for funding under the Medical Care Act. The result of the reform was the British Columbia Medical Services Act, S.B.C. 1967, c. 24, passed into law in 1968.

[182]The Medical Services Act and its regulations (Medical Services Act Regulations, B.C. Reg. 144/68 (“MSA Regulations”)) reformed several aspects of the 1965 plan. First, the province prohibited private insurance carriers from selling or providing health insurance for insured services, unless they were a “licensed” non-profit carrier. Second, licensed carriers had to provide coverage under an overall Medical Services Plan (“MSP”), which required the insurers to offer the same

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premiums, comprehensive coverage, and uniform terms and conditions. Third, the province created the Medical Services Commission (“MSC”), a body answerable to the provincial Legislature, which had the power to audit the licensed carriers. Lastly, while enrolment in MSP was voluntary, the province required residents with health insurance under non-licensed carriers to transfer their accounts to licensed carriers. These reforms allowed British Columbia to meet the federal government’s public accountability requirement.

[183]According to the plaintiffs, there were no restrictions on the ability of patients to obtain private insurance outside of the public plan for medically necessary services, no express restrictions in the MSA Regulations on the ability of physicians to operate outside of the public plan entirely, and no restrictions on those physicians’ billing practices. However, the province did limit the sale of private insurance for insured services to licensed carriers. The definition of insured service included medically required services covered by the plan and rendered by a medical practitioner (i.e., a licensed physician in British Columbia). It would not have been possible to purchase “private insurance outside of the public plan” as the plaintiffs submit since private insurance could only be purchased from licensed carriers operating under the “overall” plan, MSP.

[184]As well, there was no option to work entirely “outside” the plan in the sense of being unenrolled as under the current version of the MPA. The scheme enacted by the Medical Services Act did give doctors the ability to elect to seek payment directly from insured patients. However, physicians who made this election effectively still operated under MSP, since their services were still considered “insured services” and, as a result, an insured patient could later seek reimbursement from MSP. This category of physicians is similar to physicians who “opt out” under the current version of the MPA. Unenrolment, however, was not introduced until much later (voluntary unenrolment arrived in 1986).

[185]Moreover, there were restrictions on billing practices. Extra billing was permitted but subject to conditions. Physicians could charge insured patients

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amounts above the MSP rates, provided they secured the consent of the patient in advance and the extra amount was reported to the MSC. “Licensed” carriers were not liable for extra billing charges. This was the only form of extra billing permitted under the Medical Services Act. Extra billing was subject to oversight, as the MSC was empowered to prevent charges that would impede reasonable access. To that end, the MSC could decide disputes on whether a charge constituted an impediment to reasonable access. Doctors could charge patients who were not enrolled under MSP any amount, regardless of whether the doctor made the election above.

[186]The Medical Services Act also excluded workers’ compensation schemes that had already existed in British Columbia. British Columbia’s workers’ compensation system predated the Medical Care Act and the Medical Services Act by approximately 50 years.2 Workers’ compensation schemes arose as a historic compromise, where workers lost the right to sue their employers for workplace injuries in exchange for an employer-funded, and state-sponsored no-fault insurance scheme. Employers gained protection from lawsuits related to work-related injuries and diseases. Employers, not general taxation, pay for workers’ compensation in

British Columbia.

[187]When the Medical Care Act and the Medical Services Act were introduced, it was intended that workers’ compensation continue alongside the universal health plans. Reasons for this exclusion included the desire to have employers bear the cost of workplace injuries, the benefit of workers relinquishing the right to sue and the emergence of specialized clinics targeting common workplace injuries. To that end, the plan stipulated that the definition of “insured services” under the Medical Services Act excluded services provided under the province’s workers’ compensation legislation. Thus, patients with workplace injuries maintained the option of reimbursement through workers’ compensation schemes for medical services. The plaintiffs rely on what they describe as the workers’ compensation “exception” to waiting in the public system and I will return to it later on in my analysis section. However, at this stage it is worth noting that the historical origins of this “exception” pre-dates the universal public healthcare system in British Columbia

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and the rest of Canada. The evidence is that it was grandfathered into the public system when the public system began.

[188]The 1970s brought several significant changes to British Columbia’s universal health plan as it was enacted in 1968. For one, the multi-payer approach to health insurance came to an end. In 1972, only two licensed carriers remained in the province, as the tight restrictions on premiums and benefits made private health insurance unprofitable. By 1973, the province had empowered the MSC to administer MSP directly. After agreements were reached with the remaining licensed carriers, the administration of MSP was consolidated into one department in the Ministry of Health. By 1975, the province had dissolved the government-run insurer for high-risk patients and ceased using “licensed” carriers. However, the prohibition on “non-licensed” carriers remained in force.

[189]Additional restrictions on extra billing also arose in the 1970s as a result of complaints from patients in British Columbia about extra billing. In response, British

Columbia enacted regulations permitting extra billing only for “unusual time-consuming” services. As well, in 1974, the province and the BCMA reached an agreement that extra billing would not be permitted, unless the MSP’s rates were less than 90% of the medical association’s suggested rates. This arrangement continued until 1981, when the BCMA and the province could not reach an agreement on a rate increase. The disagreement resulted in British Columbia legislating a permanent ban on extra billing, enacted in the Medical Services Plan Act, 1981, S.B.C. 1981, c. 18.

[190]A final change in the 1970s concerned the ability of physicians to work outside of MSP. In the 1970s, British Columbia amended the Medical Services Act to permit the MSC to “unenrol” physicians at its discretion. This provision was intended as a penalty and unenrolment was for cause. Once unenrolled, a physician’s services were not considered “insured services,” so patients could not seek reimbursement for the physician’s services from MSP. When the ban on extra billing was introduced in 1981, unenrolment was added as a penalty for contravening the

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prohibition. Unenrolled physicians were required to notify patients in advance that their services were not insured services under MSP. However, unenrolled physicians could charge whatever amount they thought the market would bear. In 1986, the province granted physicians the right to voluntarily request unenrolment from MSP, which the MSC granted at its discretion. Voluntary unenrolment continues under

s. 13(8) of the MPA.

[191]The 1970s also brought changes to the federal government’s funding of provincial health plans. From 1957 to 1977, the federal government's financial contribution in support of healthcare was determined as a percentage (originally, 50%) of provincial and territorial expenditure on insured hospital and physician services. In 1977, under the Federal-Provincial Fiscal Arrangements and Established Programs Financing Act, (current citation: R.S.C. 1985, c. F-8) cost sharing was replaced with a block fund. This amounted to a combination of cash payments and “tax points” (i.e., the federal government reduced taxes, allowing provinces to increase them to an equivalent amount).

[192]During this period, the federal government expressed concerns that extra billing was making healthcare inaccessible for patients in many parts of the country. Extra billing became more commonplace after some provincial governments saw it as a means of compensating doctors for low fee rates from bargaining agreements under provincial health plans. Following the federal government’s introduction of block funding, user charges and extra billing became even more widespread.

(d)Canada Health Act

[193]In 1979, the federal Minister of Health and Welfare asked Justice Emmett Hall to examine the extent to which the new policies and legislation introduced since the 1964 Hall Report, including the use of block funding, had met the goals of the

“Health Charter” that Justice Hall had recommended in his earlier report. One year later, in 1980, Hall J. published a report entitled “Canada's National-Provincial Health Program for the 1980s”.3 In his report, he described extra billing by doctors and hospital user charges as creating a two-tiered healthcare system. He concluded that:

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These then are the two cornerstones upon which my conclusions on this issue are based:

1.That physicians are entitled as a right to adequate compensation for services rendered.

2.That if extra billing is permitted as a right and practised by physicians in their sole discretion it will over the years destroy the program creating in that downward path the two-tier system incompatible with the societal level which Canadians have attained.

[194]Following the 1980 Hall Report, the Canada Health Act, R.S.C. 1985, c. C-6 (“CHA”) was introduced in 1984. The CHA reaffirms the four key principles enunciated by the first Hall Report which are: comprehensiveness, universality, portability, and public administration. A fifth principle, accessibility, was also added.

[195]Pursuant to the CHA, each province must ensure that its health plan meets these five criteria in order to be eligible for federal funding. However, under the CHA, it is left for the provinces to choose how to structure their healthcare systems to meet the five program criteria.

[196]Nevertheless, due to the central role of federal funding, the CHA has a significant effect on what the provinces can and cannot realistically do. Broadly speaking, under the CHA, for a province to be eligible for its full share of federal funding, it must have in place a comprehensive health insurance plan that is administered by a public authority accountable to the provincial government. Furthermore, with some limited exceptions, the health plan must pay the full rates of essential medical and hospital services whenever they are provided to beneficiaries of the province’s plan. If a province permits extra billing, the CHA empowers the federal government to make a dollar-for-dollar deduction in federal funding for the amount of extra billing taking place. As already noted, British Columbia prohibited extra billing in 1981. As such, it was not among the five provinces initially subject to a deduction for extra billing after the CHA’s introduction. However, the evidence shows that in recent years British Columbia has been subject to such deductions due to extra billing by physicians, primarily at private surgical facilities such as Cambie Surgeries and the SRC, as discussed below.

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[197]While it is not explicitly mandated under the CHA, in order to meet the five federal criteria, provinces have generally employed regulatory measures including prohibiting the sale and purchase of private health insurance and restricting the ability of physicians to bill patients above and beyond the provincial health plan rates.

[198]In the subject claim the plaintiffs do not challenge any provisions of the CHA.

(e)The Medicare Protection Act

[199]The next significant point in the historical development of British Columbia’s healthcare system was in 1990 with the appointment of the Royal Commission on Health Care and Costs, chaired by Justice Peter Seaton (the “Seaton Commission”). The Seaton Commission issued its comprehensive three-volume report entitled

“Closer to Home” on November 5, 1991.4

[200]In its recommendations, the Seaton Commission endorsed the four principles from the 1964 Hall Report and the additional principle of accessibility, which was added to the CHA. In its conclusions, the Commission advised strongly against allowing any private financing of healthcare that is covered by the public plan. The Seaton Commission was concerned about the risk of creating a two-tier system through private financing of healthcare which would undermine the objective of having a universal and accessible system. The defendant and Canada both voice these same concerns in this litigation.

[201]One year later, in 1992, the impugned provisions that are the subject of this litigation were enacted, drawing from the recommendations of the Seaton Commission. They were first introduced under the Medical and Health Care Services Act, S.B.C. 1992, c. 76 (the “1992 Act”), which repealed and replaced the 1967 Act (Medical Services Act, S.B.C. 1967, c. 24) and the 1981 Act (Medical Services Plan Act, 1981, S.B.C. 1981, c 18.). The 1992 Act was renamed the Medicare Protection Act in 1996. In the next section, I discuss the MPA in greater detail as well as the structure of the healthcare system in British Columbia. Here, however, I will briefly note the key legislative changes introduced in the 1990s.

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[202]The 1992 Act was not a radical break from the province’s earlier legislation, but an evolution. MSP remained the province’s universal health plan and the MSC continued its administration of the plan. Although not recommended by the Seaton Commission, s. 39 of the 1992 Act introduced a prohibition on selling private health insurance for services insured under MSP. This section was amended and renumbered as s. 45 of the MPA (one of the impugned provisions in this trial). Section 39 strengthened the earlier restrictions on private health insurance, since the previous restriction prohibited “non-licensed” private insurance carriers.

[203]The 1992 Act included new provisions on extra billing by enrolled practitioners. As was the case before the 1981 Act (the 1981 Act introduced a permanent ban on extra billing), physicians who “opted-out” could generally extra bill a patient for services rendered, provided the patient was informed beforehand regarding the extra amount and agreed to pay it. However, “opted-in” physicians

(i.e., those who billed MSP directly) were still prohibited from extra billing under the 1992 Act. Unenrolled physicians, as under the previous legislation, were permitted to charge insured patients whatever amount they pleased, provided they notified patients in advance of providing a service that they were not enrolled and their services were not covered by MSP. There is no specific evidence of the numbers of unenrolled physicians in British Columbia today, but all parties indicated it is very small.

[204]I provide a detailed description of opted-in enrolled physicians, opted-out enrolled physicians and unenrolled physicians in the section discussing the impugned provisions of the MPA below, as part of the discussion of the principles of fundamental justice.

[205]The 1992 Act was in place for all of nine months before concerns were raised in the Legislature regarding extra billing in the province. Following the 1992 Act, physicians in several communities opted-out or unenrolled and began extra billing. In

1994, the federal government began deducting amounts from the province’s health transfer as a result of extra billing. To bring an end to the practice of extra billing,

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British Columbia introduced legislation in 1995 amending the 1992 Act. Those amendments renewed the prohibition on extra billing by physicians who had “opted-out” of billing MSP directly, in line with the 1981 Act. The 1995 Act also prohibited unenrolled physicians from extra billing if their services were rendered in a hospital or community care facility.

[206]In June 1995, the Minister of Health stated that the Act was introduced so that the practice of “extra-billing of patients [would] cease.”5 During the second reading of the 1995 Act, he noted the Act would affect thousands of British Columbians who were subject to extra billing.6

[207]Additional amendments to the prohibitions on extra billing were introduced in

1997. These amendments were intended to prevent “third-party” extra billing, or billing of persons other than a patient for services rendered to the patient. The then Minister of Health stated the amendments expanded the extra billing measure to

“ensure that there are no loopholes that would allow even a small minority of practitioners to extra-bill.”7 During the second reading of the amendments, The

Minister stated that the amendments clarify “that no additional fees can be imposed on a spouse, parent or other person acting on behalf of a beneficiary receiving a service” and they ensure “any possible means to extra-bill will be eliminated.”8

(f)Canada’s and British Columbia’s efforts to address wait times

[208]In December 1999, concerns regarding the administration and provision of healthcare throughout Canada led the Senate Standing Committee on Social Affairs, Science and Technology, chaired by Mr. Michael J.L. Kirby, to examine the challenges facing Canada’s healthcare system. After hearing from 400 witnesses, Senator Kirby and 10 other senators presented their final report entitled The Health of Canadians -- The Federal Role in 2002.9

[209]The Kirby Committee issued five volumes of interim reports between March 2001 and April 2002. In its 2001 interim report the Committee defined its role more specifically:

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That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine and report upon the state of the health care system in Canada. In particular, the Committee shall be authorized to examine:

a.The fundamental principles on which Canada's publicly funded health care system is based;

b.The historical development of Canada's health care system;

c.Publicly funded health care systems in foreign jurisdictions;

d.The pressures on and constraints of Canada's health care system; and

e.The role of the federal government in Canada's health care system.

[210]The sixth volume, which comprised the final report and recommendations of the Kirby Committee, was released in October 2002, was entitled

“Recommendations for Reform.”

[211]Lengthy waiting times experienced by patients in public healthcare systems throughout Canada were a central issue addressed by the Kirby Committee. The Committee concluded that lengthy wait times for treatment do not conform to the principles of accessibility underlying Canada’s healthcare policy and legislation

(Kirby Report, Volume Six: Recommendations for Reform, part 6.1):

The accessibility principle of the Canada Health Act stipulates that Canadians should have “reasonable access” to insured health services. However, the Act does not define what constitutes reasonable access. Lately, concerns about access to health care have been associated with the problem of waiting lists and times -- that is, lack of timely access is increasingly perceived to be a major problem plaguing the health care system. Of course, “timely” is a subjective word; what is timely to one person may be an eternity for another, particularly where illness is involved. Nevertheless, the Committee believes that “timely access” describes more accurately what the public expects from the publicly funded health care system than “reasonable access.”

[212]In Chaoulli, the majority relied on findings of the Kirby Committee in its interim reports on waiting times. For example, Chief Justice McLachlin, as she then was, and Justice Major drew from the Committee’s comparative discussion in the third volume of the Kirby Report on healthcare systems in some OECD countries in which universal public healthcare co-exists with private financing and provision of healthcare (at paras. 141-151).

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[213]On the other hand, the dissenting judges relied on the sixth volume of the Kirby Report which comprised the final findings and recommendations of the Committee (at paras. 226-230). Justice Binnie and Justice LeBel stated that:

Taking the good with the bad, the Final Kirby Report recommended continuation of a single-tier health system (as did the Romanow Report). The authors of the Kirby Report were fully aware of the extracts from their interim report relied upon by our colleagues the Chief Justice and Major J., yet they specifically rejected two-tier health care ... (para. 230).

[214]While in the interim reports the Kirby Committee indicated that the private sector should take on a greater role in the financing and provision of healthcare in Canada, some of these conclusions did not make it into the final report and recommendations. Instead, the Committee concluded in its sixth and final report (Kirby Report, Volume Six: Recommendations for Reform, part 1.1.3.):

The Committee is keenly aware that shifting more of the cost to individual patients and their families via private payments, the facile “solution” recommended by many, is really nothing more than an expensive way of relieving or, at the least, diminishing governments’ problem. Regardless of how it is expressed (as a share of GDP, share of government spending, etc.), there is only one source of funding for health care -- the Canadian public -- and it has been shown conclusively that the most cost-effective way of funding health care is by using a single (in our case, publicly administered or governmental) insurer/payer model.

The Committee believes strongly that Canada should continue to adhere to this most efficient and effective model of universal health care insurance, and it is clear to the Committee that Canadians believe this too.

[215]It perhaps goes without saying that the recommendations and conclusions from reports such as the Kirby Report are not binding on this court. Nor is it for this court to decide why a finding or recommendation in the interim reports did not make it into the Kirby Committee’s final report. Nonetheless, the Kirby Report and the extensive study conducted by the Committee in preparing it are relevant evidence in this litigation. They are not determinative in the subject case but must be weighed together with the other evidence in this case. Moreover, since the Kirby Report, a large number of studies have been published and new data has been collected, as both the plaintiffs and the defendant have properly pointed out and as set out elsewhere in this judgment.

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[216] While the Kirby Committee was still conducting its own investigation,

Roy Romanow was appointed by Order in Council under the federal Inquiries Act, R.S.C. 1985, c. I-11, in April 2001 to:

... inquire into and undertake dialogue with Canadians on the future of Canada’s public healthcare system, and to recommend policies and measures respectful of the jurisdictions and powers in Canada required to ensure over the long term the sustainability of a universally accessible, publicly funded healthcare system, that offers quality services to Canadians and strikes an appropriate balance between investments in prevention and health maintenance and those directed to care and treatment.

[217]The work of the Romanow Commission relied mainly on submissions of healthcare experts from Canada and around the world as well as on scholarly papers and policy analysis. The submissions were peer reviewed by the Institute of Health Services and Policy Research. In addition roundtable discussions with experts were held as well as public consultations. The Commission released its final report in November 2002, entitled “Building on Values: The Future of Health Care in Canada.”10

[218]In contrast with some of the suggestions made in the Kirby interim reports, the Romanow Report concluded that increased private healthcare would not provide a solution to lengthy wait times:

Early in my mandate, I challenged those advocating radical solutions for reforming health care -- user fees, medical savings accounts, de-listing services, greater privatization, a parallel private system -- to come forward with evidence that these approaches would improve and strengthen our health care system. The evidence has not been forthcoming. I have also carefully explored the experiences of other jurisdictions with co-payment models and with public-private partnerships, and have found these lacking. There is no evidence these solutions will deliver better or cheaper care, or improve access (except, perhaps, for those who can afford to pay for care out of their own pockets). More to the point, the principles on which these solutions rest cannot be reconciled with the values at the heart of medicare or with the tenets of the Canada Health Act that Canadians overwhelmingly support. It would be irresponsible of me to jeopardize what has been, and can remain, a world-class health care system and a proud national symbol by accepting anecdote as fact or on the dubious basis of making a “leap of faith.”

[Emphasis in the original.]

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[219]Later on in the Romanow Report, in a chapter dedicated to recommendations to reduce wait times, it is stated at 138-139 that:

Time and time again, the Commission heard that, when it comes to access to specific diagnostic procedures and some surgical procedures, wait lists (i.e., the number of people waiting for a particular service) and waiting times (i.e., the average time people are on the wait list before they receive a service) are too long. Long waiting times are the main, and in many cases, the only reason some Canadians say they would be willing to pay for treatments outside of the public health care system. Health care providers, regional health authorities and hospitals are trying to keep pace with growing demands. More surgeries, treatments and tests are being performed, but demands often outstrip their ability to deliver the necessary services on a timely basis. As a participant in the Commission’s Policy Dialogue on Access at Dalhousie University put it, long waiting times are not caused by the system performing fewer diagnostic and surgical procedures but because medical advances now allow us to deliver more of these services and to a wider range of people.

While the concerns of Canadians are clear, the debate over waiting times and wait lists is anything but. The debate has become clouded by contradictory evidence and conflicting claims by health care professionals, managers, health policy experts, and governments at all levels across the country (Lewis et al. 2000; Barer and Lewis 2000; Shortt 1999). The current debate appears to be polarized between two extreme and incompatible positions:

Those who look at the way wait lists are managed across the country and conclude either that it is impossible to say whether there is a problem or that the problem is more perception than reality; and

Those who use incomplete information to conclude that the problems are so severe that the only solution is to allow parallel private facilities in which individuals can use their own funds to purchase some services and, in their view, “take some pressure off the public system.”

The Commission rejects both of these positions.

[220]In Chaoulli, Binnie and LeBel JJ. relied on the Romanow Report’s findings that allowing a parallel private healthcare system would undermine the public system and make wait times for patients in the public system worse (at para. 243). On the other hand, Justice Deschamps relied on the Romanow Report for her conclusion that both the governments of Canada and Québec had ample time and opportunity to address lengthy wait times in the public healthcare system but have repeatedly failed to do so (at para. 96).

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[221]My comments above, regarding the limited import of the Kirby Report in this litigation, apply equally to the Romanow Report. On this point McLachlin C.J.C. and Major J. noted in Chaoulli that (at para 151):

…We observe in passing that the import of these reports, which differ in many of their conclusions, is a matter of some debate, as attested by our earlier reference to the Kirby Report. But the conclusions of other bodies on other material cannot be determinative of this litigation. They cannot relieve the courts of their obligation to review government action for consistency with the Charter on the evidence before them.

[222]Growing concerns about wait times in Canada eventually led not only to the establishment of commissions but also to provincial and national initiatives to reform healthcare. One of the primary concerns in this regard has persistently been lengthy wait times for diagnostic testing, consultations with specialists and treatment by specialists.11

[223]Provinces have made attempts to reduce waiting times in specific areas such as cardiac and other surgical care. However, the most significant development came in 2003 through the first ministers’ 2003 Accord on Health Care Renewal (sometimes called the “2004 Accord”). In this Accord, all of the provinces affirmed that all Canadians should have timely access to insured health services on the basis of need, not ability to pay, regardless of where they live in Canada.

[224]In 2004, the Canadian first ministers reaffirmed this commitment and agreed to the “10-Year Plan to Strengthen Health Care.” As part of this plan the provinces promised to deliver evidence-based waiting benchmarks and measurable waiting time reductions in five priority areas: cancer treatment, cardiac care, diagnostic imaging, hip and knee joint replacement, and sight restoration. The 10-Year Plan was the first national initiative aimed specifically at reducing wait times. In support of the initiative, the federal government committed to allocating $41.3 billion in new funding to the provinces and territories over the 10-year period. Additional funds were allocated for specific wait time reduction initiatives.

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[225]Not long after, evidence-based national wait time benchmarks were

developed for procedures in four of the five clinical areas identified in the 10-Year Plan, including:

a)Hip or knee joint replacements - 26 weeks.

b)Cataract surgery for high-risk patients - 16 weeks.

c)Cardiac bypass surgery - 2-26 weeks depending on level of urgency.

d)Cancer radiation therapy - 4 weeks.

A benchmark of 48 hours for hip fracture repairs was also developed.

[226]A benchmark for diagnostic imaging was not provided due to a lack of reliable evidence and data. The 10-Year Plan also required the provinces to report on their progress as well as develop public websites which provide patients with useful information, including average wait times according to treatment areas and practitioners.

[227]Two reviews of the progress of the implementation of the 10-Year Plan were undertaken. The first in 2008 by the House of Commons Standing Committee on Health, and the second in 2012 by the Standing Senate Committee on Social Affairs, Science and Technology. In 2008, the House of Commons Standing Committee reported that it could not conclude that consistent and meaningful reductions in waiting times had occurred. One of the Committee’s main findings was that there is an absence of comprehensive and reliable data needed to monitor progress and conduct comparisons across jurisdictions.

[228]The 2012 Senate Committee already had before it significantly more data and information in comparison with the 2008 House of Commons Committee, and it was able to conclude that in Canada approximately 80% of priority procedures were completed within the benchmark. The Senate Committee noted, however, that there were significant variations across the country. Among its recommendations, the Senate Committee recommended expanding the benchmarks model and

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establishing wait time targets for all specialty medical care, hospital emergency departments, and long-term care. The evidence in this case indicates that federal wait time benchmarks have not yet been established for other health services besides the five practice areas identified shortly after the 2004 first ministers’ agreement.

[229]I discuss the federal benchmarks below and conclude that the British

Columbia wait time benchmarks are a better indication of when waiting for medical care becomes clinically significant.

[230]While the Kirby and Romanow Commissions were still working on their

respective reports, the Chaoulli case was already making its way up to the Supreme Court of Canada. In the year 2000, Jacques Chaoulli and George Zeliotis, the former a physician and the latter a patient, commenced proceedings in the Superior Court of Québec. They were seeking a declaration that the prohibition against the sale and purchase of private health insurance under Québec legislation was unconstitutional given the state of wait times in the public system. The challenge was to the Québec equivalent of s. 45 of the MPA (the Québec equivalents of the other three provisions at issue here were not challenged in Chaoulli). Their claim was dismissed by the Superior Court and the Court of Appeal but these decisions were later overturned by the Supreme Court of Canada.

[231]In a 4-3 decision, the majority of the Supreme Court of Canada found that given the lengthy wait times in the public system the province could not prevent patients from accessing private health insurance. Three of the four majority justices held that the prohibition deprived individuals of their s. 7 rights to life and security of the person under the Canadian Charter and that the deprivation was not in accordance with the principles of fundamental justice and could not be saved under s. 1. The fourth member of the majority, Deschamps J., reached the same conclusion applying the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12. Three judges dissented and held that even if there was deprivation of s. 7

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under the Canadian Charter it was in accordance with the principles of fundamental justice.

[232]In the analysis section of this judgment, I discuss the Supreme Court of Canada’s decision in Chaoulli in some detail including its application to the subject case. For the purposes of the historical background of healthcare in Canada and British Columbia, suffice it to say that the decision in Chaoulli had major implications well beyond the Province of Québec. The evidence is that, for example, the court’s decision about wait times has been discussed within the healthcare system in British Columbia. I also discuss below decisions from the Supreme Court of Canada following Chaoulli about the approach to be taken in adjudicating claims under s. 7 of the Charter.

[233]In response to concerns about wait times following Chaoulli, and in an attempt to implement the first ministers’ commitment to federal wait time benchmarks, British Columbia adopted its own strategic approach to improve timely access to surgical services. The province’s strategic approach is based on four pillars: governance, organizational structure, patient management and accountability. In 2007, the provincial Ministry of Health established operational wait time targets requiring that on average 90% of patients be treated within the national wait time targets for the five clinical areas mentioned above. As well, in 2007, in an effort to monitor wait times and access to surgery, British Columbia began collecting data for the Surgical Patient Registry (“SPR”), a province-wide database that tracks patients waiting for scheduled surgery in British Columbia. It is not an overstatement to describe the SPR data as vast. It is a complex matrix of about 200,000 surgical procedures performed per year, tracked at a number of different points and divided in a number of different ways including by specialty and by surgeon.

[234]In 2009, British Columbia established the Provincial Surgical Advisory Council

(“PSAC”), which was tasked with identifying ways to restructure and improve the delivery of surgical services consistent with the waiting time reduction initiative.

PSAC led the development and implementation of British Columbia’s patient

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prioritization system in 2010. This project introduced a standardized approach to prioritizing adult patients waiting for scheduled surgeries in the province that is still used today. Under the system, surgeons rely on their assessment of each patient to assign a diagnosis or clinical condition, which corresponds with a priority level and maximum recommended wait time, according to the patient’s condition and diagnosis. In 2014 and 2015, the priority codes adopted in 2010 underwent a comprehensive review, aimed at producing “clinically acceptable benchmarks.” The priority codes now cover over 600 diagnoses across multiple surgical subspecialties. I discuss the patient prioritization system and priority codes in further detail below.

[235]In December 2009, shortly before British Columbia introduced the patient prioritization system, which involves patient priority codes for adults, the province adopted the “Paediatric Canadian Access Targets for Surgery” (P-CATS). Developed as part of the federal government’s efforts to reduce wait times, P-CATS introduced standardized priority codes for children requiring surgeries, which is still used today. The system covers 850 diagnoses and conditions across 11 surgical subspecialties. Like the province’s adult priority codes, each P-CATS code is associated with a maximum waiting period. In 2016, British Columbia released updated P-CATS codes in line with a national update. The P-CATS codes have some application to the claims of two of the individual plaintiffs.

[236]Once again, the parties in this litigation disagree on the effects and likelihood of success of British Columbia’s actions to reduce and manage wait times. The plaintiffs have presented evidence they say shows that all these actions have made no or very little difference in terms of reducing actual wait times in the province. The defendant, on the other hand, claims that the government has appropriately and effectively responded to the waiting time problem with some successes.

(g)Summary: history of public healthcare, the MPA and the CHA

[237]In the following sections, I will return to discuss several of the events and provisions canvassed here. However, this overview demonstrates that since the Medical Services Act was implemented in 1968, British Columbia has maintained

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various restrictions on user charges and extra billing as well as private health insurance for medically necessary medical care covered by the public plan.

[238]Starting in 1968, private insurance carriers that were not licensed were prohibited from operating. The province ceased relying on “licensed” private insurance carriers as of 1975 before banning private health insurance in 1992. Except for short periods in the early 1970s and the early 1990s, extra billing has been prohibited or highly restricted. Moreover, the ability of physicians to work outside the public plan has been limited since 1968. It was only in 1986 that physicians were first permitted to voluntarily unenrol from MSP and offer what would otherwise be considered as insured services under the provincial plan at whatever rates they deem appropriate. Thus, the impugned provisions in this litigation have a long history, dating to the origins of universal medicare in the province.

[239]There is also the history of the CHA including the five principles of public administration, accessibility, comprehensiveness, universality and portability. And there have been extensive and expensive national attempts to relieve wait times for specific medical procedures with some limited success.

[240]As might be expected the parties interpret this history in different ways although all of the experts on the issue accept that public healthcare is a foundational national project in Canada. The difference between the parties is whether it is rational and necessary to restrict duplicative private healthcare in order to maintain and preserve this social project.

[241]For example, Professor Michael Bliss, an expert historian for the plaintiffs, explained in his evidence the special and unique status that public healthcare has achieved in Canadian society. However, he also opined in a report he prepared for the C.D. Howe Institute (and that is the core of his expert report in this trial) that it is precisely this unique status which today impedes decision makers from taking the necessary steps to reform and improve the system. Further:

Medicare came to Canada in 1968 as a national shared-cost program, had been implemented in all the provinces by 1971, and quickly gained political

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currency as “the country’s most cherished social program”, and its most costly. It also became in some ways Canada’s most contentious social program, but with the qualification that there was seldom open debate about its fundamental principles because they were so widely accepted. Indeed, the sacred cow status that Canadian medicare appears to enjoy often seems to preclude a range of possible changes to the system, even as it encourages further change in certain approved directions.

[242]In the Supreme Court of Canada decision in Chaoulli Deschamps J. expressed a similar critical perspective on the special status public healthcare enjoys in Canadian political discourse:

[16]Although the federal government has express jurisdiction over certain matters relating to health, such as quarantine, and the establishment and maintenance of marine hospitals (s. 91(11) of the Constitution Act, 1867), it is in practice that it imposes its views on the provincial governments in the healthcare sphere by means of its spending power ... In order to receive federal funds, a provincial plan must conform to the principles set out in the Canada Health Act, R.S.C. 1985, c. C-6: it must be administered publicly, it must be comprehensive and universal, it must provide for portability from one province to another and it must be accessible to everyone. These broad principles have become the hallmarks of Canadian identity. Any measure that might be perceived as compromising them has a polarizing effect on public opinion. The debate about the effectiveness of public healthcare has become an emotional one. The Romanow Report stated that the Canada Health Act has achieved an iconic status that makes it untouchable by politicians (Building on Values: The Future of Health Care in Canada: Final Report

(2002) (Romanow Report), at p. 60). The tone adopted by my colleagues Binnie and LeBel JJ. is indicative of this type of emotional reaction. It leads them to characterize the debate as pitting rich against poor when the case is really about determining whether a specific measure is justified under either the Quebec Charter or the Canadian Charter. I believe that it is essential to take a step back and consider these various reactions objectively.

[243]The defendant, Canada, the Coalition Intervenors and the Patient Intervenors certainly take a different view about public healthcare in Canada. They accept that its history reflects problems in the past and there are problems now but they emphasize in very strong terms the equity principles inherent in a healthcare system that is based on need and not the ability to pay. This view is perhaps reflected in a speech that Justice Emmett Hall gave in 1968:12

The right to health services and to education are now entrenched rights. They are twin endeavours advancing mankind. [And] the ultimate aim is elimination, as much as lies with society’s power, of poverty, sickness,

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ignorance and want -- the structuring of a society that willingly accepts to distribute its wealth equitably to its citizens.

[244]It is also a reminder of the harsh realities ordinary Canadians faced before public healthcare was introduced. Justice Piché of the Superior Court of Québec described these realities in the introduction to her decision in Chaoulli over a decade ago (Chaoulli c. Québec (Procureure générale), [2000] R.J.Q 786, [2000] J.Q.

No. 479 (QL)):

The present dispute concerning health and its accessibility problems sometimes makes us forget the not too distant past, in which people who were sick did not obtain care because they simply did not have the means to do so. In a spirit of generosity and equality, Canadian society has decided that this shall no longer happen. [translated from French]

[245]Whether the value of Canadian public healthcare is an obstacle to any meaningful reform is not something I have to decide. My role is to decide whether the four impugned provisions of the MPA deprive people of their rights to life, liberty and security of the person in a manner that is contrary to the principles of fundamental justice. Alternatively, have the plaintiffs’ equality rights under s. 15 of the Charter been violated? If the evidence and the law support a finding that one or more of the four provisions of the MPA violate s. 7 or s. 15 then I must decide whether the provision or provisions can be saved under s. 1 of the Charter as a reasonable limit of those rights, justified in a free and democratic society.

[246]The above history of public healthcare in Canada and British Columbia provides general background for the decisions I have to make and no more.

D.PUBLIC HEALTHCARE IN BRITISH COLUMBIA

[247]There is no question that the British Columbia healthcare system is among the largest, most complex and most expensive social programs administered by the provincial government.

[248]The public healthcare system in British Columbia serves a population of approximately five million people and consists of many participants including the Ministry of Health, regional health authorities, the Provincial Health Services

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Authority (“PHSA”), the Medical Services Commission (“MSC”), the Medical Services Plan (“MSP”), individual hospitals and other publicly funded medical facilities, individual professionals such as family physicians and surgeons, private medical facilities, diagnostic facilities and labs, and of course patients. It is worth noting that British Columbia generally has the healthiest population in Canada and has among the highest life expectancies (average 82.2 years) in Canada (average 81.5 years) and the world (average 71 years).

[249]While the healthcare system is commonly referred to as the “public healthcare system” it is important to keep in mind that private healthcare is in fact a major part of the healthcare system in British Columbia. Indeed, the healthcare model adopted across Canada is one which entails public funding for healthcare but private delivery of healthcare services. As discussed above, this reflects the hybrid nature of healthcare in British Columbia, combining features of both the Bismarck and Beveridge approaches.

[250]The vast majority of healthcare providers, in particular physicians, are independent and private enterprises. As discussed above, there is a long and complicated history behind this model. When public healthcare was introduced, physicians consistently resisted attempts to transform the Canadian healthcare system into a model where, for example, surgeons are employees on salary (as in the United Kingdom) rather than independent contractors paid on a fee-for-service basis (as in British Columbia). Nonetheless, both individual physicians as well as hospitals and other medical facilities depend primarily on public funding in one way or another.

[251]In this section I discuss the different participants as well as the funding structure of healthcare in British Columbia. In the next section I discuss the evidence with respect to the operation of private surgical facilities in the province.

(a)The Ministry of Health

[252]The Ministry of Health guides the province’s healthcare services, in conjunction with health authorities, healthcare providers, agencies, and other

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organizations. The Ministry of Health sets province-wide goals, standards, and expectations for health service delivery by health authorities. This is achieved through the development of social policy, legislation, and professional regulation as well as through funding decisions and an accountability framework for health authorities.

[253]Overall, the Ministry of Health is responsible for administering provincial legislation and regulations related to healthcare, including the MPA and the Health Professions Act, R.S.B.C. 1996, c. 183. The Ministry of Health also directly manages a small number of provincial programs and services, including: MSP, which covers most physician services; PharmaCare, which provides prescription drug insurance; and the BC Vital Statistics Agency, which registers and reports on vital events such as a birth, death, or marriage.

(b)Medical Services Commission (the “MSC”)

[254]The MSC is responsible for the administration of the MPA, including MSP, and facilitation of reasonable access throughout the province to quality healthcare, and diagnostic facility services for British Columbia residents. The MSC is also responsible for administering billing by physicians and enforcing the restrictions on certain billing practices pursuant to the MPA, including ss. 17 and 18 which are the subject of the plaintiffs’ constitutional challenge.

[255]The MSC consists of nine members appointed by the Lieutenant Governor in Council: three are appointed to represent the Province; three are appointed from three or more persons nominated by the Doctors of BC (formerly, the British Columbia Medical Association); and three are appointed on the joint recommendation of the Minister of Health and the Doctors of BC (to represent beneficiaries). The MSC has no employees of its own and must rely on other persons or bodies to carry out its administrative functions. Various divisions of the Ministry of Health support the MSC in this regard.

[256]In administering the MPA, the MSC must ensure compliance with the MPA, including with respect to enforcement of the impugned provisions. For example, it

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decides whether a physician can continue to be enrolled in MSP. The MSC must also have regard to the principles of the CHA in its administration of the MPA: public administration, comprehensiveness, universality, portability, and accessibility. The MSC must also have regard to principle of sustainability, as set out in s. 5.7 of the MPA.

(c)Medical Services Plan (“MSP”)

[257]MSP is a publicly funded program that pays for medically necessary healthcare services and some supplementary prescribed benefits on behalf of beneficiaries in accordance with the MPA. In most respects, MSP is a fee-for-service funding model in which enrolled physicians and healthcare practitioners are paid per service provided to beneficiaries. Payments are based on the amounts set out in a payment schedule approved by the MSC.

[258]A person is a “beneficiary” of MSP if they are a resident of the province who is enrolled in MSP in accordance with the MPA. However, enrolment is voluntary, and beneficiaries may unenrol from MSP by applying to the MSC, after which they must wait 12 months before re-enrolling.

[259]The MPA also applies to “practitioners”, which includes “medical practitioners” (physicians) as well as “health care practitioners”, such as dentists, optometrists, acupuncturists, physical therapists, massage therapists, chiropractors, naturopathic physicians, podiatrists, and midwives. Enrolment as a practitioner is voluntary. A practitioner who wishes to be enrolled must apply to the MSC, and the MSC must enrol the applicant if satisfied that they are in good standing with the relevant professional regulatory body (for example, the College of Physicians and Surgeons of British Columbia).

[260]The MSC has the authority under s. 5 of the MPA to “determine the services rendered by an enrolled medical practitioner … that are not benefits under [the MPA]” (emphasis added). The following services are currently excluded pursuant to this authority:

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a)Services provided by a medical practitioner to the medical practitioner’s family members or a member of the medical practitioner’s household;

b)General hospital services provided by medical practitioners under the Hospital Insurance Act, R.S.B.C. 1996, c. 204 (such services may be benefits under the HIA);

c)Services requested or required by a “third party” for reasons other than medical requirements, such as independent medical examinations, medico-legal services, services related to or for employment purposes, and services solely for insurance purposes, etc.;

d)Services determined by the MSC not to be medically required or necessary (for example, purely cosmetic services, routine circumcision, etc.);

e)“Experimental” medicine services; and

f)Services provided to persons who are entitled to and eligible for the services under other statutes, including:

i)Merchant Seaman Compensation Act, R.S.C. 1985, c. M-6 (i.e., services paid for by the federal government for merchant seaman injured in work-related accidents),

ii)Corrections and Conditional Release Act, S.C. 1992, c. 20 (i.e., services paid for by the federal government for federal offenders injured while taking part in an approved program),

iii)Government Employees Compensation Act, R.S.C. 1985, c. G-5 (i.e., services paid for by the federal government for federal government employees injured in the course of employment), and

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iv)Workers Compensation Act, R.S.B.C. 1996, c. 49213 (i.e., services paid for by WorkSafeBC arising from job-related injuries or disease).

[261]Because these services have been determined by the MSC not to be

benefits, the impugned provisions do not apply to them; the MPA does not prohibit physicians from charging their patients any fee they deem appropriate for these services. As discussed in greater detail later in this judgment, the plaintiffs place significant importance on the exemption for services to which a beneficiary is entitled under the Workers Compensation Act. Indeed, this exemption forms the primary basis for the plaintiffs’ s. 15 claim.

(d)Health authorities

[262]The province’s health authorities are the organizations primarily responsible for health service delivery in British Columbia. Five regional health authorities deliver a full continuum of health services to the population within their respective geographic regions. A sixth health authority, the Provincial Health Services Authority (“PHSA”), is responsible for managing the quality, coordination, and accessibility of certain services and province-wide health programs. I recognize there are two additional health authorities: the First Nations Health Authority and the Nisga’a

Valley Health Authority. However, when I discuss health authorities below, for the purposes of this judgment, the definition of “health authorities” excludes the First Nations Health Authority and the Nisga’a Valley Health Authority. This is done in accordance with how the plaintiffs and defendant framed their “Prima Facie Facts” document before me which I rely on in this section of the judgment.

[263]The five regional health authorities are created pursuant to the Health Authorities Act, R.S.B.C. 1996, c. 180: Fraser Health Authority (“FHA”) has approximately 1.7 million residents; Interior Health Authority (“IHA”) has approximately 726,000 residents; Northern Health Authority (“NHA”) has approximately 289,000 residents; Vancouver Island Health Authority (“VIHA”) has

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approximately 765,000 residents; and Vancouver Coastal Health Authority (“VCHA”) has approximately 1.1 million residents.

[264]The regional health authorities have an expansive statutory mandate, which includes:

a)to develop and implement a regional health plan that covers:

i)the health services provided in the region, or in a part of the region,

ii)the type, size and location of facilities in the region,

iii)the programs for the delivery of health services provided in the region,

iv)the human resource requirements under the regional health plan, and

v)the making of reports to the Minister of Health on the activities of the board in carrying out its purposes;

b)to develop policies, set priorities, prepare and submit budgets to the Minister of Health and allocate resources for the delivery of health services in the region, under the regional health plan;

c)to administer and allocate grants made by the provincial government for the provision of health services in the region;

d)to deliver regional services through its employees or to enter into agreements with the provincial government or other public or private bodies for the delivery of those services by those bodies;

e)to develop and implement regional standards for the delivery of health services in the region;

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f)to monitor, evaluate and comply with provincial and regional standards and ensure delivery of specified services applicable to the region;

g)to collaborate, to the extent practicable, with British Columbia Emergency Health Services, the PHSA and societies that report to the PHSA, facilities and other health institutions and agencies, municipalities and other organizations and persons in the planning and coordination of

i)the provision, in British Columbia, of provincially, regionally and locally integrated ambulance services, emergency health services, urgent health services and ancillary health services, as those terms are defined in the Emergency Health Services Act, R.S.B.C. 1996, c. 182 and

ii)the recruitment and training of emergency medical assistants, within the meaning of the Emergency Health Services Act, and other persons to provide the services referred to in subparagraph (i).

[265]The sixth health authority, the PHSA, is responsible for managing the quality, coordination, and accessibility of certain services and province-wide health programs. These include the following specialized programs and services:

BC Cancer Agency; BC Centre for Disease Control; BC Provincial Renal Agency; BC Transplant; Cardiac Services BC; BC Emergency Health Services, which provides ambulance services across the province; Health Shared Services BC

(“HSSBC”), which finds opportunities and delivers back office programs for health authorities to improve cost effectiveness and enhance service quality (for example, HSSBC delivers common non-clinical services such as supply chain management, technology services, and finance and employee services for other health authorities); BC Mental Health Addiction Services; and Perinatal Services BC. The PHSA is also responsible for the British Columbia Children’s Hospital and Sunny Hill

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Health Centre for Children, and the British Columbia Women’s Hospital and Health Centre.

[266]The health authorities are required to plan and deliver, either directly or

through contracted service providers, a range of programs. Although the specific mix of programs and services may vary from community to community, the health authorities must ensure that patients have access to services in all areas of the province, where practicable.

[267]The health authorities are the organizations primarily responsible for the delivery of most healthcare programs and services in the province categorized according to the following sectors:

a)Acute care (i.e., services where the recipients, both inpatient and ambulatory patients, are diagnosed and treated on the basis of immediate medical need in a dedicated facility). Such services typically have a limited duration, and include surgical services, diagnostic services, therapeutic care, nursing care, ground ambulance emergency services, air evacuation services, and support services such as housekeeping, laundry, food services, plant operations, and medical records required for the facilities to serve the recipients. Acute care includes the following sub-sectors: (a) ambulance services; (b) cancer treatment hospitals; (c) community ambulatory care centres; (d) general hospitals; (e) other speciality hospitals; (f) other hospitals; (g) paediatric hospitals; (h) private clinics (a clinic that is not publicly funded that may provide health services to public agencies on a contract basis); (i) provincial programs; and (j) rehabilitation hospitals.

b)Residential care (i.e., healthcare and support services provided in live-in facilities where the care is provided on a continuous long-term basis or as shelter for a short period of time to provide respite, convalescent and hospice palliative care). Residential care includes

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the following sub-sectors: (a) extended care hospitals; (b) long-term residential care; and (c) other residential care facilities.

c)Population health and wellness (i.e., public health promotion, prevention, and protection programs that are provided primarily in a community setting). Population health and wellness includes the public health program subsector, which administers and provides public health programs such as health screening, promotion and education, disease and injury prevention and control, as well as environmental health and licensing.

d)Community care (i.e., healthcare and support services provided in the community to clients primarily outside acute and residential care facilities, for undetermined periods). Such services include specialized community-based programs and in-home primary care services. Community care includes the following sub-sectors: (a) combined home healthcare and support services; (b) health professional services; (c) home support services; (d) assisted living; and (e) community services programs.

e)Mental health and substance use (i.e., healthcare services related to the diagnosis and treatment of mental health and substance use disorders). Mental health and substance use includes the following sub-sectors: (a) substance use treatment residential treatment facilities; (b) combined community mental health and substance use treatment centres; (c) combined mental health and substance use residential treatment facilities; (d) community substance use treatment centres; (e) community mental health centres; and (f) mental health and substance use acute and tertiary care facilities.

[268]The health authorities receive operating funding from the Ministry of Health each year, which they must allocate across the continuum of healthcare services. To align with the provisions of the Balanced Budget and Ministerial Accountability Act,

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S.B.C. 2001, c. 28, Ministry of Health policy prohibits health authorities from budgeting a deficit for any fiscal year.

[269]The Ministry of Health uses a number of methodologies to allocate funding to the health authorities. In making funding allocation decisions the Ministry of Health:

a)determines the amount of funding that remains after making allocations to its core demand-driven program area commitments and executive and support services;

b)considers the funding provided to the health authorities in previous years;

c)identifies targeted funding that is required to support key government priorities such as funding necessary to support the implementation of major hospital projects, life support programs (i.e., funding to support the provision of cancer drugs, cardiac services, renal services and transplant services), and other Ministry of Health priority initiatives.

This funding is “top sliced” from the incremental funding available in any given fiscal year and allocated to the appropriate health authority; and

d)any remaining incremental funding is allocated primarily using the population needs-based funding (“PNBF”) model.

[270]The “patient focused funding” methodology was previously used to provide a fixed amount of funding on a one-time basis to the health authorities to encourage delivery of specifically identified acute care services for a set price per unit. The overall objective of the methodology was to reduce wait times and increase same-day surgical procedures.

[271]For example, in 2011/2012, hip and knee joint replacement surgeries and cataract surgeries became part of patient focused funding. Regional health authorities received $11 million for providing additional specifically identified hip and

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knee joint replacement and cataract surgeries. There have been other initiatives as well as alternative funding models implemented in order to reduce wait times for surgeries. This is discussed in greater detail later in this judgment.

[272]For the most part, the Ministry of Health does not specify or restrict how health authorities use their funding. Health authorities allocate their PNBF among the health sectors and to programs and services as they consider necessary.

[273]The Ministry of Health has also used the activity based funding (“ABF”) model from time to time. For example, in 2009/2010, the Ministry of Health revised its ABF methodology for hip and knee joint replacement surgeries and cataract surgeries to include a direct link between funding and wait times. An ABF amount was identified within each regional health authority’s overall funding allocation, and in order to receive the full ABF amount each health authority was required to achieve targets for both surgery case volumes and wait times.

[274]In 2017/2018, the health authorities’ budgeted total expenditures were $15.62 billion, divided as follows:

a)Acute care ($9.327 billion): (a) FHA: $1.982 billion; (b) VCHA: $2.256

billion; (c) IHA: $1.219 billion; (d) VIHA: $1.292 billion; (e) NHA: $455.4

million; and (f) PHSA: $2.124 billion;

b)Residential care ($1.985 billion): (a) FHA: $597 million; (b) VCHA:

$490.7 million; (c) IHA: $392.7 million; (d) VIHA: $394.4 million;

(e)NHA: $107.7 million; and (f) PHSA: $2 million;

c)Population health and wellness ($0.568 billion): (a) FHA: $89.6 million;

(b)VCHA: $105 million; (c) IHA: $63.3 million; (d) VIHA: $65.2 million;

(e)NHA: $28.8 million; and (f) PHSA: $216.4 million;

d)Community care ($1.406 billion): (a) FHA: $343.6 million; (b) VCHA:

$268.2 million; (c) IHA: $226.3 million; (d) VIHA: $271.9 million;

(e)NHA: $125.2 million; and (f) PHSA: $170.9 million;

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e)Mental health and substance use services ($1.122 billion): (a) FHA:

$277 million; (b) VCHA: $334.3 million; (c) IHA: $146 million; (d) VIHA:

$181.3 million; (e) NHA: $45.7 million; and (f) PHSA: $138.1 million; and

f)Corporate services ($1.209 billion): (a) FHA: $251.9 million; (b) VCHA:

$330.2 million; (c) IHA: $150 million; (d) VIHA: $180.2 million; (e) NHA:

$61.5 million; and (f) PHSA: $235.2 million.

[275]Most of the health authorities occasionally contract with private clinics for the delivery of certain diagnostic and medical services, including surgical services. Such contracts have been permitted since 2002, when the Ministry of Health implemented a “patient service delivery policy.” However, any such contractual arrangements must comply with the CHA and the MPA, including the impugned provisions.

[276]The volume of surgeries performed by private clinics pursuant to such contractual arrangements typically amounts to between 1% and 2% of the total number of day surgeries provided by the health authorities. Approximately 27 private clinics have provided services pursuant to such contracts at one time or another. Very few of the highest-volume day surgeries are performed in the private clinics and almost three quarters of the surgeries performed consist of cataracts, dental, and arthroscopy surgeries.

(e)Healthcare delivery and physicians

[277]While the healthcare system in British Columbia is referred to as the “public system,” as in the rest of Canada, most necessary medical services are delivered by physicians who are independent, private actors.

[278]Healthcare is provided directly to British Columbians through a variety of publicly-funded organizations, including: over 100 individual hospitals (including diagnostic and treatment centres with no acute care beds); over 600 general medical care clinics, including more than 200 walk-in clinics; over 1,000 community pharmacies; over 60 non-hospital medical imaging facilities; over 200 substance

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abuse and mental health facilities/programs; over 75 programs for intake/assessment for psychiatric services; community nursing; community rehabilitation; adult day services; home support; assisted living residences; physical therapy clinics; occupational therapy clinics; family care homes; group homes; dental clinics; psychiatric inpatient units; healthcare centres; community health centres; crisis evaluation units; public health units; aboriginal health teams; more than

20 environmental health programs; home care programs; residential care facilities; British Columbia Ambulance Service; psychosocial rehabilitation services; mobile crisis response programs; integrated primary and community mental health services; Telehealth; and HealthLink BC.

[279]For the most part, healthcare services provided in the province are delivered by a continuum of medical practitioners, healthcare practitioners, and other healthcare professionals including: nearly 6,000 general practitioners; over 5,000 specialist physicians; over 1,000 resident physicians and post-graduate fellows; approximately 36,000 practising registered nurses; almost 13,000 licensed practical nurses; over 2,500 registered psychiatric nurses; over 500 nurse practitioners; over 1,000 chiropractors; over 3,000 dentists; over 5,800 certified dental assistants; approximately eight dental therapists; over 200 denturists; over 1,200 dieticians; over 3,000 registered massage therapists; over 200 midwives; over 500 naturopathic physicians; over 2,300 occupational therapists; over 600 opticians; over 5,400 pharmacists (approximately 3,400 of whom are authorized to administer injections); over 900 pharmacy technicians; over 3,500 physical therapists; podiatrists; over 1,000 registered psychologists; approximately 32,000 healthcare assistants; approximately 1,500 speech and hearing health professionals; and approximately 500 traditional Chinese medicine practitioners and acupuncturists.

[280]Pursuant to the MPA, physicians, dentists, optometrists, podiatrists, acupuncturists, massage therapists, chiropractors, naturopaths, physical therapists, midwives, nurse practitioners, and certified registered nurses may register with the MSC to be paid for benefits rendered to beneficiaries on a fee-for-service basis.

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Other professionals may provide publicly-funded services to beneficiaries pursuant to the Hospital Insurance Act if they are contracted by the health authorities.

[281]In total, the health sector in British Columbia employs over 240,000 providers. Since 2010 the public health workforce has increased in size by almost 20%, a significantly higher growth rate than growth of the provincial population and labour market.14

[282]The public health system engages the services of 166,500 British Columbians; 109,000 work directly for health authorities in nursing or allied health, approximately 32,000 are employed through the publicly-funded affiliate system, approximately 11,500 are physicians, and 14,000 are managers or administrative employees. A further 73,500 healthcare providers deliver services through the private sector, which spans a wide variety of services, including physiotherapy offered at community-based clinics, long-term residential care in privately operated facilities, and many other privately operated facilities.

[283]In terms of surgical services, the British Columbia health system delivers a full continuum of surgical services for adults and children in the following specialities: general surgery, bariatric surgery, cardiac surgery, otolaryngology, plastic surgery, thoracic surgery, obstetrics/gynecology, neurosurgery, ophthalmology, oral and maxillofacial surgery, orthopedic/spinal surgery, transplant surgery, trauma surgery, dental surgery, urology, and vascular surgery.

[284]In British Columbia, as in the rest of Canada, the vast majority of all physicians are independent professionals who decide where they will practise, set their own hours of practice and determine how many and which patients to treat.

[285]Most enrolled physicians providing benefits to beneficiaries (whether in the community or hospital settings) receive payment through MSP on a fee-for-service basis. However, the Physician Master Agreement (“PMA”), which establishes the compensation and benefit structure for medical practitioners who provide

MSP funded services, also provides for alternative payment arrangements whereby

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some enrolled physicians providing benefits to beneficiaries may engage in service, sessional, or salary agreements:

a)Fee-for-service program: MSP pays enrolled physicians for the provision of benefits to beneficiaries on a fee-for-service basis in accordance with the MSP payment schedule. Specifically, all benefits approved by the MSC for provision to beneficiaries under MSP are listed in the plan’s payment schedule. When an enrolled opted-in physician provides a benefit to a beneficiary (whether in a hospital or community care facility), he/she submits a claim to MSP for the provision of that specific benefit. Likewise, when an enrolled opted-out physician provides a benefit to a beneficiary (whether in a hospital or community care facility), he/she charges that patient directly for the MSP amount and the patient submits a claim to MSP for the reimbursement of that specific benefit. Accounts are paid by MSP on a semi-monthly basis. In 2014/2015, MSP paid enrolled medical practitioners $3.06 billion for rendering benefits to beneficiaries in the province on a fee-for-service basis.

b)Alternative payment program (“APP”): Appendix D to the PMA

(discussed below) defines the APP, which provides funding for the payment of contracted service, sessional, and salaried medical practitioners where an alternative to fee-for-service funding is needed to maintain, stabilize, or improve patients’ access to medically necessary physician services. An APP arrangement can be used to fund:

i)part-time medical practitioners,

ii)practices where the volume of services provided would not provide service stability or dependable medical practitioner income, and

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iii)contracted medical practitioners’ management of complex or time-consuming patient care by allowing them to bill for the actual amount of time spent with or on behalf of patients, instead of the number and type of services.

c)Examples of the types of clinical programs funded by APP include psychiatry, oncology, addictions treatment, emergency room, and primary care.

d)All service, sessional, and salaried medical practitioners under the APP are funded by the Ministry of Health. However, the Ministry of Health does not pay the medical practitioners directly. Rather, MSP funds the health authorities, who, in turn, pay medical practitioners.

Individual APP contracts are between individual health authorities and specific medical practitioners.

e)In 2014/2015, MSP paid health authorities $436.91 million allocated to APP contracts with physicians.

[286]Since 1993, British Columbia, the MSC, and the Doctors of BC have entered into a series of agreements that define the parameters of the working relationship between medical practitioners and British Columbia, which is captured by the PMA. As already mentioned, the PMA establishes the compensation and benefit structure for medical practitioners who provide MSP-funded services, whether on fee-for-service or through alternative funding methods, such as service contracts, salary, and sessional arrangements. The PMA covers a period of five years and includes five subsidiary agreements.

[287]The subsidiary agreements provide for funds to be disbursed through the General Practice Services Committee, the Specialist Services Committee, the Joint Standing Committee on Rural Issues, and the Benefits Committee, all of which are joint committees of the Ministry of Health and the Doctors of BC which look at

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innovative ways to improve care and service for patients. The Ministry of Health funding of the joint committees in 2014/2015 was approximately $166 million.

[288]As noted above, the primary focus of the plaintiffs’ claim is on scheduled surgeries which are surgeries for which a surgeon’s office has sent a surgical booking form to the appropriate health authority booking office. Until an actual date/time has been determined for the surgery, scheduled patients are placed on the particular surgeon’s wait list. Data related to all scheduled surgeries is stored in the

SPR which is discussed below.

[289]Unscheduled surgeries include emergency surgeries and surgeon add-ons to the surgical slate. That is, such surgeries do not appear on a wait list and a surgery booking form is not sent to the health authority booking office. As such these surgeries are also not captured in the SPR data (as is the case for psychiatric services).

[290]One of the main issues in this litigation is the manner in which operating room time is allocated to individual specialists and practice areas. The plaintiffs place significant importance on the fact that surgeons who gave evidence at trial all complained about not having enough operating room time allotted to them in order to provide their patients surgeries within the applicable wait time benchmarks.

[291]Every healthcare system, public and private, is faced with the inescapable necessity of portioning operating room time. Hospitals have a finite number of surgical spaces and healthcare professionals such as surgeons, operating room nurses and anesthesiologists. Making things more complicated are things like the current acute shortage of anesthesiologists and what appears to be periodic shortages of operating room nurses. Likewise, hospitals must ensure that operating room space and capacity remains available in order to deal with urgent and emergent cases at all times. As a result, scheduling of surgeries is a highly complex and fluid exercise.

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[292]Dr. Marcel Dvorak, a spinal orthopedic surgeon at Vancouver General Hospital, described in his testimony how operating room time is collaboratively allocated amongst his group of spine care specialists (including neurosurgeons):

... We divide our core activity up equally reflecting the remuneration of that so that we get a bulk allocation of elective OR time and we assign that to surgeons, and it’s never the same day each week. It’s a very fluid thing based on, you know, complexities of the type of surgery we do so that, for example, a surgeon may need two days back to back to do a big tumour case, and so they get two days one week and then may not get OR time the next week. But we divide it up so by the end of the year the number of scheduled OR hours are the same ...

[293]In terms of how the total amount of operating time is allocated to the whole group Dr. Dvorak testified that:

Well, that’s made at the hospital level, and the hospital has historically allocated OR time to divisions and groups of physicians based on what they for many, many years have received, so that you know, neurosurgery had so much -- so many hours of elective OR time and that was the foundation of what they got.

There have been attempts to change those allocations, but they’ve been imperceptibly small from my perspective. Things like resource allocation methodology and things like that have been attempted, but we have seen our OR time, the total amount, stay relatively static and then, because of recent events, shrink substantially.

[294]Other surgeons use different models of assigning cases, some less collaborative than this. But the evidence does not include a hospital where there is a hierarchical model where some supervising administrator assigns operating room time among the surgeons. To their credit surgeons generally work it out among themselves, including the need for on-call time.

[295]As Dr. Dvorak’s evidence demonstrates, operating room allocation is complex and determined by multiple factors and participants. At the highest level, total operating room time is dependent on the amount of resources allocated to the hospitals from the health authorities who in turn depend on government funding. As discussed previously, at times that funding will be specifically designated to a certain practice area, such as joint replacement surgeries, in an attempt to increase

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capacity and reduce wait times in that area. However, for the most part, funds are distributed through the health authorities to the medical facilities, namely hospitals, without a specific designation. It is hospital administrators who are charged with the difficult task of allocating operating room resources amongst the different practice areas and surgeons.

[296]At the level of the surgeons, Dr. Dvorak described scheduling of surgeries as

“a dynamic process.” He explained that his regular and scheduled surgical slate can be replaced literally on the spot by the arrival of urgent patients requiring surgery. The patients who had been scheduled for surgery would then go back on a waiting list that also has to account for full slates the following days. It will then be up to the individual surgeons to divide their collective operating room time amongst themselves, taking into consideration the needs of their respective patients. The evidence is that these very complex situations are not common. However, they do occur and they demonstrate the intricacy of the surgical wait list system.

(f)Diagnostics

[297]Diagnostic testing and imaging is without a doubt a crucial part of the delivery of quality healthcare, as the case of Ms. Martens demonstrates, which is discussed below. Without the colonoscopy she had it seems that her physicians would not have detected she had cancer in time. On the other hand, there is also evidence of physicians over-ordering certain costly tests, primarily MRIs, when it might not be necessary. All physicians and healthcare experts who gave evidence on this point acknowledged that a delicate balance must be struck in order to ensure optimal use of diagnostic tools and technologies.

[298]Similar to the provision of physician services, most diagnostic services are publicly funded but privately delivered in British Columbia. Most diagnostic services are provided as benefits to beneficiaries outside of the hospital infrastructure (for example, in diagnostic facilities approved by the MSC), or to outpatients in the hospital infrastructure, are funded on a fee-for-service basis by MSP. On the other hand, diagnostic services provided to beneficiaries through the health authorities’

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hospital infrastructure to inpatients and emergency room patients are hospital services within the meaning of the Hospital Insurance Act and are funded through the health authorities’ global operating budgets.

[299]Where the diagnostic test requires advance booking, such as MRI, CT, and PET imaging, hospital-specific requisition forms must be submitted by the referring practitioner to the facility providing the service. As part of the booking process, requests are given a priority level assigned by a radiologist. A booking is then scheduled for the next available slot based on the designated priority. If a patient’s situation changes during the wait time for the service, the referring physician is required to contact the booking institution to request reprioritization.

[300]The plaintiffs raise the issue of wait times for certain diagnostic tests throughout their arguments. However, wait times for diagnostic services are not an issue in this litigation (excepting surgical services with a diagnostic function captured under the impugned provisions). I note in this regard that at one point the plaintiffs sought to amend their claim in order to introduce a legal challenge to an amendment to the MPA (s. 18.1). The plaintiffs’ proposed new claim involved wait times for diagnostic services. However, I dismissed that aspect of the plaintiffs’ application, finding that the corporate plaintiffs did not have sufficient interest to grant them standing with respect to diagnostic services, among other reasons (2018 BCSC 1141). Thus, issues pertaining to diagnostic services, including wait times, are only relevant in terms of providing context to the plaintiffs’ claims, namely in terms of understanding the full patient journey as discussed below.

[301]For historical reasons the funding, service delivery, and governance models for MRI and CT services are different from those for most other diagnostic services. At the time they were introduced, MRI and CT services were considered to be new technologies, the value of which had not been clearly identified. Therefore, they were not considered to be part of the standard of care. Further, in comparison to other imaging modalities, MRI and CT were high-cost and required controlled deployment to manage utilization growth and system costs. For these reasons, with

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the exception of the CT professional fee paid to the physician, publicly-funded MRI, CT, and PET imaging technologies were embedded only in the hospital structure.

[302]Health authorities are responsible for determining where MRI, CT, and PET imaging technology services will be located, and the volume of services provided. Unlike other diagnostic services governed under the MPA, there is no provincial oversight over the location of the imaging technology services or service levels.

(g)Medical education and training

[303]In considering the evidence about the potential effects a parallel duplicative private healthcare system would have on equitable access to healthcare (discussed below) and the public system more generally, it is important to appreciate the complexities associated with maintaining or increasing the supply of healthcare professionals. Training healthcare professionals takes time and involves significant public funding. While governments do not have absolute control over how many individuals will join the healthcare professions, they play an important role in ensuring that sufficient numbers of professionals are properly trained.

[304]With respect to physicians, there are normally six stages in their training and licensure. The first three stages are related to training, while the latter three relate to licensure:

a)First stage: Completion of at least two years of an undergraduate degree program;

b)Second stage: Completion of a four-year undergraduate Doctor of Medicine degree program;

c)Third stage: Completion of a two- to five-year post-graduate residency program;

d)Fourth stage: Certification from an appropriate certifying body, like the College of Family Physicians of Canada, the Royal College of Physicians and Surgeons of Canada, etc.;

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e)Fifth stage: Licensure to practise independent medicine in Canada (i.e., the Licentiate of the Medical Council of Canada); and

f)Sixth stage: Registration to practise in a particular province (i.e., with the College of Physicians and Surgeons of British Columbia).

[305]None of the stages of training or licensure imposes restrictions or requirements regarding where a physician may practise in Canada, except for the requirement of appropriate provincial registration for each province the physician practises in (sixth stage). As will be seen below, physicians have had some success with legal challenges to efforts by government to regulate where they practise (but there is reason to question whether those previous cases would be decided the same way today).15

[306]There is only one Doctor of Medicine degree program offered in British

Columbia by the University of British Columbia (“UBC”), with locations in Victoria,

Vancouver, Kelowna and Prince George. Over the past decade, the Ministry of Health has increased the quotas for the number of physicians that can be trained in British Columbia. Since 2003, the number of first-year undergraduate medical school spaces has more than doubled from 128 to 288. As of 2015, 288 students graduated from the Doctor of Medicine degree program in British Columbia per year. Of course, some of these graduates end up practising medicine in other provinces or even outside Canada. Likewise, some physicians will be trained in other provinces but end up practising medicine in British Columbia.

[307]Nonetheless, the investment in training new physicians is substantial. As of 2016, the start-up cost for each new space in the undergraduate Doctor of Medicine program was approximately $1 million, and the additional annual operating cost for each new space was approximately $273,175. The tuition paid by a student for each year of the undergraduate Doctor of Medicine program was $17,066, and the total yearly cost for the undergraduate program, inclusive of textbooks, supplies, and fees, ranged from $18,314 to $24,921, depending on the year of the degree program.

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[308]In 2013/2014, UBC had 1,146 Doctor of Medicine undergraduate students and 1,169 post-graduate students, as well as 677 full-time faculty members and 6,059 clinical faculty members. Following completion of the Doctor of Medicine degree program, students wanting to practise in British Columbia are required to complete a residency program. The UBC Faculty of Medicine offers residency training in family medicine, as well as in 69 specialties and sub-specialties, which typically take between two to five years to complete.

[309]Between 2003 and 2016, the number of entry-level post-graduate residency positions in British Columbia increased from 134 to 346. This too is not a simple matter since, as explained by Dr. Andrew Hamilton, increasing the number of residency positions requires a consideration of available funding and whether there are enough practitioners with time to devote to the supervision of new residents.

[310]During their residency, students are employees of hospitals; however, their remuneration is funded entirely by the Ministry of Health. Specifically, the Ministry of Health provides all operational funding for the residency program, including residents’ salaries and benefits, to UBC, which in turn provides the required funding to the health authorities to remunerate residents. As of 2016, residents were entitled to an annual salary of between $50,000 and $80,000 (depending on the year of residency), as well as benefits including maternity and parental leave, double pay on statutory holidays and 20 working days of annual paid vacation.

[311]Overall, the cost of educating and training physicians is significantly borne by the public. In 2014/2015, British Columbia provided $579,588,251 in operational funding to UBC. The funding was provided on the condition that, among other things, the Doctor of Medicine degree program had a minimum target of 1,152 full-time equivalent student spaces. Between 2003/2004 and 2014/2015, UBC received $1.041 billion in operational funding for the post-graduate medical education residency program from government sources: $1.035 billion from the Ministry of Health, and $5.98 million from Health Canada. In 2014/2015, the Ministry of Health provided $122.4 million, and Health Canada provided $718,554 to UBC to support

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1,247 full-time equivalent resident positions in the post-graduate medical education residency program.

[312]Based on these projected amounts, the average cost to the public for training of a full-time resident is estimated at approximately $100,000 per year; $200,000 total for a two-year residency in family medicine; or $500,000 total for a five-year residency in a specialty like general surgery.

[313]Between 2007 and 2016, the Ministry of Health invested approximately

$119.1 million to upgrade and expand UBC’s clinical academic space, allowing faculty members to conduct undergraduate and post-graduate classes through a virtual learning setting.

[314]With respect to the training of nurses, prior to September 2018, entry into the profession of nursing in British Columbia was regulated by the College of Licensed Practical Nurses of British Columbia; the College of Registered Nurses of British Columbia; and the College of Registered Psychiatric Nurses of British Columbia. As of September 2018, these colleges were combined into a new college, the British

Columbia College of Nursing Professionals (“BCCNP”). Entry into the practice of nursing as a licensed practical nurse (“LPN”) or registered nurse (“RN”) in British

Columbia is now regulated by the BCCNP.

[315]Historically, the two main entry-level programs for students wanting to become RNs were the three-year bachelor of nursing diploma program (“BN”), and the four-year bachelor of science in nursing degree program (“BScN”). Since 2006, the BCCNP (and its predecessor) now requires nurses to obtain a BScN before they will be permitted to practise nursing as an RN in British Columbia.

[316]As of 2016, there were 27 recognized education programs in British Columbia training students to become RNs (“Nursing Schools”), with annual tuition ranging between $3,500 and $8,000, and total program costs to the student ranging between $17,500 and $40,000.

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[317]After successfully completing a recognized nursing education program, students wanting to practise as an RN in British Columbia must first pass the BCCNP registration exam and a criminal record check.

[318]BScN programs are typically general nursing qualification programs that do not involve a specialization. However, many nursing positions also require specialized nursing training, such as: critical care nursing, emergency nursing, high acuity nursing, neonatal nursing, nephrology nursing, occupational health nursing, pediatric nursing, perinatal nursing, and perioperative or operating room nursing.

[319]Nurses who want to work in an operating room require specialized perioperative training and are required to either complete a program based on the

Association of Perioperative Registered Nurses (“AORN”) curriculum offered by the health authorities; or obtain an Advanced Certificate in Perioperative Nursing (“ACPN”) through a post-secondary institution.

[320]In order to qualify for the ACPN program, students must have a BScN, at least six months of nursing experience in an acute care environment, and be sponsored by their employer. The ACPN program is typically paid for by the nurse’s employer, and if employed by a health authority, the nurse typically receives wages during enrollment in the program through their employer. As of 2016, Vancouver Coastal Health Authority estimated that training one operating room nurse through the ACPN program involved costs averaging $81,234, inclusive of wages and program costs. The health authority-based AORN program requires up to 27 weeks to complete.

[321]Nurse practitioners are registered nurses with a graduate level degree in nursing. They perform a full range of nursing functions that would be performed by an RN plus additional tasks such as diagnosing, prescribing, ordering diagnostic tests, managing common acute and chronic illnesses, and referring patients to specialists.16 The three universities in British Columbia that offer a graduate level degree in nursing are the University of Northern British Columbia, University of Victoria, and UBC.

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[322]As of 2019, there are 529 practising nurse practitioners in British Columbia, and the Ministry of Health has announced funding to increase that number by 200. The Ministry of Health has also committed to doubling the number of nurse practitioners graduating per year from 45 to 90, by 2022. This is consistent with the evidence in this trial that there is increasing use of nurse practitioners as a way to reduce the workload of physicians for appropriate cases or as part of a multidisciplinary approach to healthcare.

[323]The Ministry of Health provides operational funding to each of the nursing schools on an annual basis, on the condition that, among other things, the nursing programs in each school maintain a minimum number of full-time equivalent student spaces. For example, in 2014/2015, British Columbia provided $131,052,000 in operational funding to the British Columbia Institute of Technology. The funding was provided on the condition that, among other things, the nursing program has a minimum of 2,286 full-time equivalent student spaces.

[324]As of 2016, it cost the Ministry of Health between $12,500 and $19,100 to train one nursing student for one year of a BScN program. Generally, between 2001 and 2016, British Columbia invested more than $200 million to educate, recruit, and retain nurses. British Columbia has also added more than 4,500 new nursing education spaces and increased the number of licensed nurses in British Columbia by 37% to more than 55,000. More than $13.6 million owed on student loans was forgiven for nursing graduates in the province.

[325]British Columbia also invests significant resources in the training and regulation of other crucial aspects of healthcare delivery. This includes diagnostic technicians, healthcare administrators and other essential staff. Overall, a great deal of resources and planning goes into the training of healthcare professionals, including complex assessments regarding the projected needs of a growing and aging population.

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(h)WorkSafeBC - the Workers’ Compensation System

[326]The workers’ compensation system is a parallel public welfare and partial healthcare system that operates alongside MSP to ensure that workers injured on the job are adequately compensated and treated. It operates differently from MSP in some unique ways. Nevertheless, a broad common feature of both systems is that much like MSP, the workers’ compensation system is a mandatory system in which the provision of benefits is not dependent on a worker’s ability to pay but on their medical needs with benefits calculated based on individual incomes (with some maximums).

[327]In very broad policy terms, in the current workers’ compensation system, workers receive the benefit of a no-fault, publicly administered compensation system and in return they give up the right to sue their employers for work-related injuries and diseases. The statutory immunity from litigation is the benefit for employers. The system is paid only from assessments against employers and there is no funding from general taxation. There is a relationship between an employer’s assessment rate and its safety record as a means to incentivize employers to create a safe workplace.

[328]Looking at the history of workers’ compensation, in Canada, and specifically the British Columbia’s workers’ compensation system, it predates medicare by approximately 50 years. The workers’ compensation scheme was “taken into consideration when universal hospital coverage and universal medical care coverage was introduced.” Instead of merging the two systems it was decided that they would function alongside one another. The workers’ compensation system was developed to protect employers against personal injury lawsuits and to provide employees with a better measure of compensation, while incentivizing the creation of better working conditions, thereby reducing opportunities for accidents.

[329]Prior to the existence of the workers' compensation scheme, injured workers were obliged to file lawsuits against their employers. This proved to be inefficient and it was accepted to be unfair to workers and their families. Seeking

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compensation by suing through the courts was a poor option for employees, but it also presented the possibility of dire consequences for employers, including bankruptcy. These types of risks compromised the viability of many businesses. In 1902 Canada’s first Workmen’s Compensation Act was enacted in British Columbia, which established a no-fault compensation scheme.

[330]Eventually, legislation governing the workers’ compensation systems was further developed to reflect what is commonly known as the “historic compromise.”

In the interests of public welfare, both workers and employers surrendered to the state certain rights. Workers gave up the right to sue their employer and, in return, employers funded a state-sponsored system of no-fault insurance. In exchange for the lost right to sue, workers received compensation for wage-loss and certain medical costs. This “historic compromise” was recommended by the 1912 British

Columbia Royal Commission on Labour.

[331]Another objective of workers’ compensation legislation was to internalize the cost of workplace injury and illness, including the cost of healthcare and cost of non-employment. This structure serves to provide an incentive to employers to reduce the incidence of illness and injury by maintaining safe workplace environments.

[332]The trade-off from the perspective of the workers is that by relinquishing their right to sue their employers they ensured that more workers would be protected and that they would receive fair compensation even if the business went insolvent, for example. In this regard, the eventual exclusion of workers’ compensation schemes from the general public healthcare system was a considered and deliberate choice.

The Hall Commission explicitly considered the workers’ compensation health system at the time and recommended that it remain excluded from the broader public healthcare system due to its unique characteristics and objectives. Put another way, the workers’ compensation systems in place when public healthcare was introduced were “grandfathered.”

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[333]Overall, the workers’ compensation legislation serves an important function as part of the provincial social safety net, as observed in the Final Report of the

Royal Commission on Workers’ Compensation in British Columbia:

The relationship of compensation boards to other agencies and systems has also changed in the last half century. Once largely stand-alone, workers’ compensation in Canada is now part of a social safety net that insures Canadians against a variety of risks, including unemployment, health problems and the consequences of old age and poverty. ...

[334]Based on British Columbia’s Workers Compensation Act, R.S.B.C. 1996, c. 492 (“WCA”), and WorkSafeBC’s mission statement, WorkSafeBC’s purposes are to: promote occupational health and safety (Part 3 of the WCA); adjudicate and pay claims (Divisions 2 and 3 of Part 1 of the WCA); and classify and assess employers (Division 4 of Part 1 of the WCA).

[335]Benefits under the WCA and administrative costs of WorkSafeBC are borne by employers. WorkSafeBC (formerly, the named “Workers’ Compensation Board”) is authorized to assess, levy and collect funds from employers and independent operators for the purposes of maintaining the accident fund that pays workers’ compensation benefits, costs and expenses. Assessments/premiums charged reflect an employer’s record of workplace safety, which provides an incentive for employers to promote safety, support treatment and promote return to work.

[336]WorkSafeBC pays for services and treatments that are not covered by MSP. The types of benefits, treatments and services covered by WorkSafeBC include wage loss payments, permanent disability pension, discretionary benefits for rehabilitation and retraining, death benefits, and healthcare benefits which include, among other things, treatments provided by practitioners such as chiropractors, physiotherapists, massage therapists and others.

[337]In addition, the Visiting Specialist Clinic (“VSC”), developed by WorkSafeBC in 1997, offers expedited surgical and medical consultations by about 30 specialists and subspecialists. However, the VSC is not used for all cases, and a worker does not automatically attend at the VSC. Rather, WorkSafeBC must first determine that

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the specific individual’s case is appropriate for referral to the VSC. For example, injured workers may be referred to the VSC when an appropriate specialist is unavailable in the regular public system in the worker’s location or where the worker’s injuries are particularly complex.

[338]Only a small proportion of claims are referred to the VSC and, of those

referred, an even smaller proportion result in surgery. Out of a total of approximately 159,000 claims that were reported in 2018, only about 3,200 were referred to the VSC. Of those 3,200 referrals, only about 22.8% ended up having surgery. This is generally consistent with the evidence of physicians in this litigation that in some practice areas only around 30% of specialist consultations result in a decision to undergo surgery. Ultimately, whether a worker’s surgical treatment takes place at a public or private facility is determined by the surgeon.

[339]WorkSafeBC also introduced an expedited fee system in approximately 1997. Physicians and specialists are able to receive the premium fees for expedited services irrespective of whether the procedure is performed in a public or private facility. Payment is based on whether the procedure was performed within the prescribed time frame. Fees for physicians providing services to WorkSafeBC

(expedited or otherwise) are set out in the “Physician Services Contract,” which is negotiated between the Doctors of BC and WorkSafeBC. Pursuant to this contract, physicians are eligible to receive premium rates for additional services, including expedited services. WorkSafeBC limits specialists’ participation in the VSC to two days per week in most cases and pays specialists at the VSC a sessional rate of $2,220.66 per 3.5-hour session.

[340]The primary reason for expedited consultations and surgeries in the workers’ compensation system is to save money for WorkSafeBC and, ultimately, employers. If a worker is on temporary disability benefits while waiting for a consultation or surgery that is a cost to the system. The sooner the worker can be treated and can return to work (or be assessed for a pension) the less cost there is in benefits paid. The plaintiffs point to this as a model for public healthcare generally in British

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Columbia and question why MSP beneficiaries cannot have the same timely care. They do not challenge any part of the workers’ compensation system itself but they refer to it as part of their challenge to the impugned provisions of the MPA under s. 15 of the Charter, as discussed below.

[341]Andrew Montgomerie, the Director of Financial Services and Health Care Programs at WorkSafeBC, provided current figures regarding its scope of benefits and number of beneficiaries. Overall, payments for expedited consultations, imaging and surgeries comprise a small portion of WorkSafeBC’s overall spending. The figures for 2018 are as follows:

a)More than 245,000 employers and 2.44 million workers in British Columbia are insured by WorkSafeBC;

b)WorkSafeBC spent a total of $362.6 million on healthcare benefits;

c)Only $8.3 million of the $362.6 million total was paid to private surgical facilities; and

d)Expedited surgery and imaging represented only 3% of the total amount spent on healthcare in 2018.

[342]To conclude, the workers’ compensation scheme has always been intended to operate alongside the general public healthcare insurance plan, MSP. When a worker qualifies for coverage through WorkSafeBC, the worker receives all of the necessary benefits through WorkSafeBC, and treatment and services pertaining to the accepted claim are not covered by MSP. However, in accepting the benefits of the WorkSafeBC system, the worker loses some autonomy with respect to treatment, benefits and services. Ultimately, WorkSafeBC retains control and decision making powers over all matters pertaining to the quality and quantity of treatment a worker receives. If WorkSafeBC determines that a particular treatment will not be beneficial or is unnecessary it will decline to pay the cost of that treatment and it can decide when a period of disability ends.

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(i)Funding of the healthcare system in British Columbia

[343]There are two main sources of funding of healthcare in British Columbia. The first is the provincial government through the Ministry of Health. The second is

Health Canada, through the Canada Health Transfer (“CHT”) as well as periodic special funding.

[344]The Province of British Columbia is the sole source of revenue for the Ministry of Health. The Ministry of Health’s funding is allocated to various program areas, including:

a)MSP, which insures medically required services provided by physicians and supplementary healthcare practitioners, laboratory services, and diagnostic procedures, as described above. The amount allocated to MSP for 2018/2019 was $4.81 billion.

b)Pharmacare, which assists eligible British Columbia residents with the cost of prescription drugs and designated medical supplies. The amount allocated to Pharmacare for 2018/19 was $1.27 billion.

c)Health Benefits Operation (“HBO”), which administers MSP and

PharmaCare programs (including enrolment), and supporting technology through Health Insurance BC and MAXIMUS. The amount allocated to HBO for 2018/2019 was $46.12 million.

d)Regional Services, which provides funding for the delivery of a number of healthcare services, including:

i)The five regional health authorities, the Provincial Health Services Authority, and the First Nations Health Authority;

ii)Canadian Blood Services;

iii)Post-Graduate Medical Education Plan;

iv)Out-of-Province claims;

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v)Nisga’a Valley Health Authority;

vi)Primary Care Integrated Health Services;

vii)Risk Management;

viii)HealthLink BC; and

ix)The Travel Assistance Program.

The amount allocated to Regional Services for 2018/2019 was $13.39 billion.

e)Executive and Support Services, which provides stewardship and corporate services to support various health programs such as MSP, PharmaCare, HealthLink BC, Regional Services, Out-of-Province claims, and others. The amount allocated to Executive and Support Services for 2018/2019 was $232.13 million.

[345]The Ministry of Health also provides capital funding to the health authorities to assist with major capital projects. The health authorities collaborate with the Ministry of Health on financial and infrastructure planning to ensure capital investments are cost effective. Capital projects are also supported by contributions from regional hospital districts established under the Hospital District Act, R.S.B.C. 1996, c. 202. The amount allocated for capital grants for 2018/2019 was $615.2 million.

[346]The Government of Canada contributes to the cost of healthcare services in British Columbia, primarily through the CHT, which provides block funding to all provinces on an equal per capita basis according to the criteria outlined in the CHA. The CHT for British Columbia for 2015 was $4.446 billion.

[347]However, the federal Minister of Health has authorized a number of mandatory deductions from the CHT to British Columbia because of reported user charges and extra billing in violation of the CHA since at least 2003. After the MSC started auditing private surgical clinics in 2008, including Cambie Surgeries and the

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SRC, the amount deducted each year was increased by the amount of extra billing and user charges disclosed by the audits.

[348]In March of 2018, the federal Minister of Health authorized a deduction of $15.9 million from the CHT to British Columbia, based on the results of three extra billing and user charge audits of private clinics carried out in the summer and fall of 2017. This was the largest amount deducted from any province’s CHT since 1992. In March of 2019, a further $16.2 million was deducted from British Columbia’s CHT. That amount was based on the British Columbia’s auditing of private clinics which indicated that 11 private clinics had extra billed that amount in 2016/2017.

(j)Summary: public healthcare in British Columbia

[349]To conclude, the above general overview of the healthcare system in British Columbia illustrates its size, scope and complexity. It also underlies the importance of assessing any specific aspect of the system, such as the funding and provision of surgical services, within the broader context of the entire healthcare system. There are multiple stakeholders and participants in the system who play different roles and represent different, and at times conflicting interests and perspectives.

[350]It is also important to bear in mind the responsibilities of each participant in the system. In this regard, even within the specific context of scheduled surgeries, government, health authorities, hospitals, physicians and even patients themselves all have key roles and responsibilities in ensuring sufficient resources are allocated and efficiently used in order to meet the medical needs of all patients.

[351]Within this intricate system, most things are connected. Changes to one aspect of the healthcare system will also have ramifications in terms of the quantity and quality of other aspects of the healthcare system. This does not mean the system is immune from legal challenges but it does mean that any challenge requires considerable attention to the details of the system and their interconnectedness.

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E.PRIVATE HEALTHCARE IN BRITISH COLUMBIA

[352]There is private and legal healthcare in British Columbia.

[353]As described above, the vast majority of healthcare in British Columbia is delivered through private healthcare professionals and clinics. These include family physicians and specialists operating private businesses (sometimes called clinics) and facilities that conduct laboratory tests (also called clinics). It also includes private physiotherapists, medical laboratories and numerous other services. This is the idea of a public system being delivered privately and it has been in place since 1965.

[354]There are also private surgical clinics which provide surgical services that are exempt from the MPA, such as surgeries for WorkSafeBC patients. The plaintiff Cambie Surgeries is one such clinic. In providing surgical services exempt from the MPA, private clinics are not subject to MSP rates. Rates for exempt services provided at private clinics are instead established through agreements between them and the relevant regulatory bodies or administrative bodies (such as WorkSafeBC). The primary revenue streams for the private clinics come from publicly funded healthcare systems, either MSP or one of the parallel systems such as the Insurance Corporation of British Columbia (“ICBC”), the Merchant Seaman Compensation Act, R.S.C. 1985, c. M-6, the Corrections and Conditional Release Act, S.C. 1992, c. 20, and the Government Employees Compensation Act,

R.S.C. 1985, c. G-5, as well as WorkSafeBC.

[355]In addition, since 2002, private surgical clinics have contracted directly with health authorities to provide services to MSP beneficiaries. The plaintiff Cambie Surgeries did so from approximately 2004 to about 2013. These clinics provide medically necessary services (usually surgical) to MSP beneficiaries at rates that are negotiated between the private clinics and the relevant health authority. Physicians and the cost of the facilities are paid from public funds, not by patients and, absent these contracts, these services would be performed in public hospitals. As previously noted this typically amounts to only 1% to 2% of the total number of day

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surgeries funded by the health authorities. Thus far, around 27 private clinics have taken part in such arrangements.

[356]There is also healthcare in British Columbia provided by private clinics that is admitted by the plaintiffs to be illegal, being contrary to the MPA.

[357]These clinics provide medically necessary services for MSP beneficiaries who pay for them privately. The distinct advantage to the patients is that they can get healthcare much sooner than they would if they attended at publicly funded facilities for care. As discussed below, the expert evidence is that the main reason patients turn to private healthcare, especially private insurance, is the timeliness of that care. The clinics involved appear to have started by providing exempt medical services for programs like workers’ compensation. The private provision of medically necessary services to MSP beneficiaries contrary to the MPA seems to have followed.

[358]Workers’ compensation patients continue to make up a substantive part if not the majority of the procedures performed at the private clinics. Dr. Day’s evidence in cross-examination was that up to 20% of the surgeries performed annually at Cambie Surgeries are for MSP beneficiaries and in contravention of the MPA. However, in an earlier affidavit, he stated the figure was approximately 10%. Overall, the evidence suggests that the volume of private pay surgeries being provided at the private clinics in violation of the impugned provisions is very small.

[359]Whether the services of a private clinic are performed legally or are contrary to the MPA, the types of diagnostic and surgical services that can be provided is regulated by the College of Physicians and Surgeons of British Columbia (the

“College”) pursuant to the Health Professions Act, R.S.B.C. 1996, c. 183. The Non-Hospital Medical and Surgical Facilities Program (“NHMSFP”) of the College

(through its Committee) approves the list of all procedures that can be performed at a private surgical clinic. This list of approved procedures must be maintained on file at the private clinic.

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[360]While exceptions can be made by the NHMSFP Committee, there are procedures that the College does not generally allow to be performed at private clinics. Generally, non‐hospital surgical facilities (private clinics) are accredited for relatively less complicated daycare procedures that require short stays at the medical facility. Private clinics do not have the capacity or infrastructure to deal with large numbers of patients or emergent medical needs. At least through their claim in this litigation, the plaintiffs do not seek to expand the range of services the corporate plaintiffs can provide. As well, even when a procedure is permitted at a private clinic, co-morbidities (such as heart disease or obesity) may elevate the risk of complications for the procedure and the patient then must be treated at a public hospital.

[361]Nonetheless, over time the private clinics started to provide some non-exempt services at rates that exceed MSP rates. As noted above, it is only extra billing for non-exempt services that constitute a contravention of the MPA and are therefore at issue in this case. In addition private clinics provide medical services to MSP beneficiaries and non-MSP beneficiaries that are not considered benefits under the MPA and as such are not subject to the impugned provisions. An example is cosmetic surgery. Further, for non-exempt services, opted-out physicians are free to provide medically required services in private clinics to MSP beneficiaries, provided they do not charge more than the amount set out in the MSP schedule. There is no ban on the provision of medically required services to beneficiaries under the MPA at private clinics; rather there is a restriction on how much can be charged for the services. For completeness, private clinics can provide medically required services to non-MSP beneficiaries in accordance with s. 17(2)(a) of the MPA. This would include, for instance, out-of-country patients.

[362]According to the Ministry of Health there are 62 private surgical facilities in British Columbia. However, the evidence shows that most of these clinics do not provide care to MSP beneficiaries in contravention of the MPA. For example, a 2017 agreement between British Columbia and Canada to conduct audits of private clinics, suggests that extra billing and user charges had occurred only at 22 such

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clinics in the past 10 years. There is also evidence that the majority of physicians and private clinics providing surgical services pursuant to contracts with the health authorities are not violating the MPA, i.e., they are not engaged in extra billing or imposing user charges for the provision of necessary medical care to MSP beneficiaries.

[363]A related matter is that there is no evidence to support the plaintiffs’

assertions that, if they are unsuccessful in this case and the impugned provisions are enforced, then many if not all private surgical clinics will be forced to shut down. As the evidence above shows, most of the private clinics in this province are not engaged in extra billing or user charges. Further, most of the procedures performed at the private clinics are for exempt services. Accordingly, the outcome of this litigation will have little or no impact on the vast majority of medical services provided at the private clinics.

[364]Counsel for the plaintiffs stated in final argument that if the plaintiffs are unsuccessful then approximately 60,000 surgeries performed annually in private clinics will no longer be available to patients. Instead, they will be forced to wait a long time in the public system which is already plagued with long and unreasonable wait times. The result would be worse wait times in the public system.

[365]I have reviewed the totality of the evidence and cannot find any reference to 60,000 surgeries being performed annually at private surgical clinics. More importantly, counsel for the plaintiffs acknowledged that this number would include exempt services such as those provided under one of the parallel public healthcare systems such as WorkSafeBC and services that are not considered benefits under the MPA. These services are not subject to the impugned provisions of the MPA and that would not change in any event. I can only conclude that there is no basis for the plaintiffs’ assertion that, if their claim is unsuccessful, private clinics will be forced to shut down, wait times in the public system will become worse and the overall system of healthcare in British Columbia will suffer.

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[366]Another concern here is that there is an absence of reliable evidence from the plaintiffs regarding some of the economic and financial aspects of the operations of the private clinics. For instance, there is a lack of reliable evidence relating to the cost of performing a medically required service in a private clinic as demonstrated by the lack of evidence from Cambie Surgeries about its finances. This lack of evidence poses significant challenges in assessing the causal relationship between the impugned provisions and the operation of the private surgical clinics. Moreover, it also underlies the challenges identified by some of the experts of what impact, if any, the provision of necessary medical care at private clinics to a small number of MSP beneficiaries at rates that exceed the MSP rates has had or will have on the public system. I address these issues in greater detail later in this judgment.

[367]To reiterate, for non-exempt services, opted-out physicians are free to provide medically required services in private clinics to MSP beneficiaries, provided they do not charge more than the amount set out in the MSP schedule. There is no ban on the provision of medically required services to beneficiaries under the MPA at private clinics; rather there is a restriction on how much can be charged for said services.

[368]In any event, there is direct evidence from physicians involved in the establishment and operations of six private clinics, five of which have been engaged in extra billing and user charges in the context of providing surgical services to MSP beneficiaries. The six private clinics are Cambie Surgery Centre, the SRC, False Creek Surgical Centre, Kamloops Surgical Centre, White Rock Orthopaedic Centre, and Okanagan Health Surgical Centre. It should be noted that partial and incomplete financial records have only been disclosed by the corporate plaintiffs, Cambie Surgeries and SRC in this litigation. As such it is not possible to corroborate or test some of the factual assertions made by the witnesses about certain aspects of the operations of the four other clinics. The evidence does not include any information from the other 56 private clinics.

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(a)Six private clinics

[369]The following is the evidence about six private clinics and the services they provide:

(i)Cambie Surgery Centre

[370]The types of diagnostic and surgical services performed at the Cambie

Surgeries Corporation (referred to throughout as “Cambie Surgeries”) include:

a)Pediatric dental surgery: extractions and restorations.

b)General surgery: diagnostic colonoscopy (for cancer); procedural colonoscopy for polyp removal, excision of skin lesions/soft tissue lesions and lumps; diagnostic gastroscopy; laparoscopic surgery such as cholecystectomy; hernia repair, breast surgery, including mastectomy for cancer.

c)Gynecological surgery: cystocoele and rectocele repair, laparoscopic procedures including ovarian cystectomy (removal of cysts from ovaries).

d)Interventional pain: nerve blocks (for serious, debilitating pain).

e)Neurosurgery: lumbar discectomy, laminectomy, anterior cervical discectomy with fusion (all spine surgery).

f)Ophthalmology: cataract extractions.

g)Orthopedic surgeries: arthroscopy for hip, knee, shoulder, elbow, wrist, and finger; small joint replacement; including ankle joint replacement and hemiarthroplasty (partial knee replacement); rotator cuff repair; fracture and dislocation repair; tendon repair; excision of bone or soft tissue tumors; nerve transposition (to alleviate nerve compression); and ACL reconstructions.

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h)Plastic surgery: excision of lesions, including cancerous lesions; tendon grafting; and amputation of fingers.

[371]Dr. Day testified that private surgeries for non-exempt patients (i.e., patients not covered by the Merchant Seaman Compensation Act, R.S.C. 1985, c. M-6, the Corrections and Conditional Release Act, S.C. 1992, c. 20, the Government Employees Compensation Act, R.S.C. 1985, c. G-5, or the Workers Compensation Act) have been paid by the patients and their families as well as by employers, either directly or through employer provided disability benefits and by ICBC pursuant to automobile insurance. Dr. Day also testified that health authorities and provincial Crown Corporations, such as BC Hydro, have paid for private surgeries at Cambie Surgeries for their employees, as have Canada Post and trade unions, including the Nurses Union, the Plumbers Union, the Postal Workers Union, and the Boilermakers Union. He testified that Cambie Surgeries has also provided private surgeries to federal judges and senators, paid for by the federal government.

[372]Dr. Day testified that a primary client for private surgical services provided at Cambie Surgeries has consistently been WorkSafeBC since the establishment of

Cambie Surgeries. I address the evidence on Cambie Surgeries’ operations, including its billing practices, in my discussion of Dr. Day’s evidence below.

[373]As well, as indicated earlier, for a period of time, from 2004 to around 2013, Cambie Surgeries performed surgeries for MSP patients pursuant to contracts with the health authorities.

(ii)Specialist Referral Clinic

[374]The Specialist Referral Clinic (the “SRC”) was established in 2001 “patterned after the Visiting Specialist Clinic at WorkSafeBC.” The SRC’s services mainly comprise of medical consultations or evaluations referred to by the clinic as:

a)“Independent medical assessments” (“IMAs”), typically commissioned by the patient;

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b)“Independent medical examinations” (“IMEs”), typically commissioned by a law firm or third-party insurance or employment benefit agency;

c)“Medical legal reports” or “Medico legal reports,” commissioned by a law firm; and

d)“Independent medical consultations” (“IMCs”), typically commissioned by the employer of the patient or third-party insurance or employment benefits agency, other than WorkSafeBC, ICBC, or the RCMP.

[375]IMAs, IMEs, and IMCs are performed by a physician at the SRC. IMEs, by definition, are not meant to include any consideration of medical treatment and would typically encompass medical legal or medicolegal reports.

[376]The SRC charges clients for the provision of these services. In particular, the SRC charges beneficiaries for the provision of IMAs, and pays a portion of the amount charged to the physician providing the service.

[377]IMAs provided at the SRC are functionally the same as consultations provided by physicians in the public healthcare system as benefits, which are paid for by MSP. The physicians providing services at the SRC are enrolled in MSP.

[378]Some of the assessments provided at the SRC are related to medical issues or conditions that require treatment with procedures that are benefits, including surgeries. Where an IMA or IMC results in a recommendation for surgery, the physician making that recommendation will typically perform that surgery at Cambie Surgeries, as was the case for Chris Chiavatti who consulted Dr. Day at the SRC and was later operated on by Dr. Day at Cambie Surgeries. However, privately paid assessments at the SRC are sometimes used by patients to expedite access to the public system. For example, a patient can attend a private consultation with a surgeon to avoid the surgeon’s consultation wait time in the public system.

[379]Where the SRC service results in a recommendation for surgery at Cambie Surgeries that is accepted by the client, the SRC will usually levy and collect the fee

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for the surgery from the client on behalf of Cambie Surgeries, retaining a portion of it as an administrative fee.

(iii)False Creek Surgical Centre

[380]Dr. Mark Godley, the founder of the False Creek Surgical Centre, testified that

False Creek started performing private hand surgeries for the Workers’ Compensation Board (“WCB”), now operating as WorkSafeBC, in 1997. In 1999, he opened the False Creek Surgical Centre, which performed other surgeries for WCB patients.

[381]At the same time, in 1999, the False Creek Surgical Centre began providing surgeries for non-exempt British Columbian patients, using enrolled surgeons in contravention of the MPA. Both Dr. Day and Dr. Godley testified that their private surgeries for non-exempt British Columbian patients have been paid for by ICBC on behalf of ICBC claimants and by employers, as well as by the patients.

[382]False Creek Surgical Centre has also performed surgeries for MSP patients pursuant to contracts with the Vancouver Coastal Health Authority. According to Dr. Godley, False Creek has also provided exempt services to RCMP members paid for by Blue Cross, and ICBC claimants paid for by their lawyers.

(iv)Kamloops Surgical Centre

[383]Dr. Ross Outerbridge established the Kamloops Surgical Centre in about 2003. The Kamloops Surgical Centre is owned by the eight orthopedic surgeons at Royal Inland Hospital, who each have one day of operating room time per week in the public system.

[384]The Kamloops Surgical Centre provides “cosmetic surgery, orthopedic surgery, neurosurgery, ophthalmology, dental surgery, general surgery, and pain management.” These medical services are provided by enrolled surgeons to both exempt (in this case WorkSafeBC patients) and non-exempt residents of British Columbia. The Kamloops Surgical Centre also has performed surgeries for MSP patients pursuant to a contract with the Interior Health Authority.

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(v)White Rock Orthopaedic Centre

[385]Dr. Arno Smit is the founder of the White Rock Orthopaedic Centre. Dr. Smit testified about establishing the White Rock Orthopaedic Centre, a private surgical clinic, in 2007. He is the owner of the White Rock Orthopaedic Centre, and from time to time other surgeons work there as well.

[386]Dr. Smit explained his reason for establishing his private surgical clinic was because he “could not see too much progress” in the public system with respect to increasing capacity, “[s]o I decided to build an operating room, in effect increasing the capacity in our community by a third, with the anticipation that I would find a way to collaborate with the health authority and just, you know, basically address the issue, or at least partly, of insufficient OR capability in our community.”

[387]The White Rock Orthopaedic Centre has one operating room that cost

Dr. Smit about $1 million to build. Dr. Smit performs a variety of orthopedic procedures that require no more than 24 hours of hospitalization, such as knee arthroscopy, ACL reconstruction, and some shoulder procedures including shoulder reconstruction. He testified that he provides these surgical services to both exempt (WorkSafeBC patients) and non-exempt British Columbian patients including ICBC patients. The White Rock Orthopaedic Centre has also provided surgical services to MSP patients by way of contracts with the health authorities.

(vi)Okanagan Health Surgical Centre

[388]Dr. Brian Peterson testified that he established the Okanagan Health Surgical Centre in 2004.

[389]Beginning in 1992 he started performing medically necessary surgeries at Kelowna General Hospital such as hand surgeries, trauma surgeries, reconstructive breast surgeries, cleft lip and palate surgeries. He had one day per week of operating time. He also performed private cosmetic (non-medically necessary) surgeries at Kelowna General Hospital. The patients paid his surgeon’s fee and the

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anesthesiologist fee directly to him, as well as a “day rate” fee, which Dr. Peterson remitted to Kelowna General Hospital.

[390]As the wait times for medically necessary surgeries became longer, Dr. Peterson was no longer able to use operating rooms at Kelowna General Hospital for his private cosmetic surgeries, so he established the Okanagan Plastic Surgery Centre in 1996 to provide these private surgical services. He continued to perform medically necessary surgeries at Kelowna General Hospital.

[391]In the late 1990s, Dr. Peterson began providing expedited plastic surgery services for acutely injured workers at the Okanagan Plastic Surgery Centre. This was expanded in around 2000 to include urgent and scheduled plastic surgeries, mainly hand surgeries. In 2000, the Okanagan Plastic Surgery Centre started performing orthopedic surgeries for WorkSafeBC patients.

[392]Dr. Peterson testified that he and the other plastic surgeons at Kelowna General Hospital also had one day of operating time every week or two at the Summerland Hospital. In 2004 the Summerland Hospital was closed, resulting in the loss of four to six operating room days per month for these plastic surgeons. There was no additional operating room time available at Kelowna General Hospital. The plastic surgeons entered into an arrangement with Kelowna General Hospital to perform the “Summerland” surgeries at the Okanagan Plastic Surgery Centre for the payment of a facility fee by Kelowna General Hospital.

[393]Given the increased volume of surgeries at the Okanagan Plastic Surgery Centre, Dr. Peterson built a free standing surgical clinic with three operating rooms on the new property he purchased. The new private surgical clinic was named the

Okanagan Health Surgical Centre (“OHSC”). The new Centre provides surgeries in a number of specialties, including plastics, orthopedics, general surgery (mainly hernia), ENT, urology, and gynecology.

[394]OHSC initially provided surgical services only to WorkSafeBC patients and to MSP patients pursuant to a contract with Kelowna General Hospital. OHSC had

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contracts with Kelowna General Hospital to provide surgical services to MSP patients from 2006 to 2014.

[395]In 2007, OHSC began performing private surgeries for non-exempt British Columbian patients outside of the public system. The non-exempt private surgeries are a small portion of the surgical procedures currently performed at OHSC. In 2015, OHSC did 47 private-pay surgeries; in 2016, it did 49 private-pay surgeries; and in the first five months of 2017, it did 23 private-pay surgeries.

(b)(Non) enforcement of the impugned provisions

[396]The plaintiffs assert in their closing submissions that:

Despite being aware from at least 2000 that private clinics were providing private surgeries to non-exempt British Columbians in contravention of the prohibition on dual practice, there was no attempt to enforce this exemption until legal proceedings were commenced in 2005.

Up until then, the Government’s policy was simply to respond to letters from patients seeking reimbursement of the fees they paid for private surgeries by asking the private clinics to reimburse the patients. There was no follow-up by the MSC if the patients weren’t reimbursed by the private clinics.

[397]Thus, the plaintiffs submit that until the 2008 audit of Cambie Surgeries and the SRC by the MSC there were no attempts to enforce the impugned provisions.

From this the plaintiffs draw the conclusion that “the private provision of surgeries … to non-exempt British Columbians by enrolled doctors ... has become an established (and as will be explained later, necessary) component of the health care system in

British Columbia.”

[398]The defendant, on the other hand, opposes this submission. It says that MSC did enforce the impugned provisions by requiring that private clinics reimburse patients for amounts collected by way of user charges and extra billing when such instances were brought to the attention of the MSC. The evidence includes correspondence from the Ministry of Health to this effect. There is also evidence of surgeons replying to defend their billing of MSP beneficiaries in excess of MSP rates.

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[399]As a starting point I note that the plaintiffs do not claim estoppel or any similar cause of action. I have previously ruled that estoppel cannot be relied on as a defence against a clear legislative provision (2018 BCSC 514 at paras. 181, 211, 361, citing Immeubles Jacques Robitaille Inc. v. Québec (City), 2014 SCC 34 at para. 29).

[400]In any event, I do not see how the alleged failure to enforce the impugned provisions has any relevance to the issues in this litigation. Even if the defendant failed to enforce the law that would not make the actions of the private clinics any less unlawful. More importantly, failure to enforce the impugned provisions does not deem them more or less constitutional. In this regard, Bauman C.J.S.C. (as he then was) noted as follows in Reference re: Section 293 of the Criminal Code of Canada,

2011 BCSC 1588 (“Polygamy Reference”):

1337. The Amicus suggests that s. 293 has not been effective, and points to the miniscule number of prosecutions over the provision’s 120 year history. The Supreme Court answered this submission in R. v. Lucas, [1998] 1 S.C.R. 439, where it rejected a similar argument with respect to s. 300 of the Criminal Code, the prohibition of defamatory libel (at 466):

The appellants argued that the provisions cannot be an effective way of achieving the objective. They contended that this was apparent from the fact that criminal prosecutions for defamation are rare in comparison to civil suits. However, it has been held that “[t]he paucity of prosecutions does not necessarily reflect on the seriousness of the problem”, rather it “might be affected by a number of factors such as the priority which is given to enforcement by the police and the Crown” (R. v. Laba, [1994] 3 S.C.R. 965, at p. 1007 (emphasis added)). There are numerous provisions in the Code which are rarely invoked, such as theft from oyster beds provided for in s. 323 or high treason in s. 46. Yet, the infrequency of prosecutions under these provisions does not render them unconstitutional or ineffective.

I agree that the small number of prosecutions under s. 300 may well be due to its effectiveness in deterring the publication of defamatory libel (Stevens, supra, at p. 310).

[401]Thus, I find it unnecessary to determine whether the MSC or any other government body in fact failed to take effective steps to enforce the impugned provisions of the MPA prior to 2008. Whether they did or did not is not material to whether the impugned provisions violate the plaintiffs’ ss. 7 or 15 rights under the

Charter. Neither does the issue of enforcement of the impugned provisions have any

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bearing on whether the impugned provisions can be saved under s. 1 of the Charter, if they are found to violate the plaintiffs’ Charter rights.

F.EVIDENCE OF PATIENTS AND PHYSICIANS

[402]I now turn to specific elements of the evidentiary record including objections by the defendant to the lay evidence of certain of the plaintiffs’ witnesses because of their affiliations with the corporate plaintiffs. I also provide summaries of the evidence of individual witnesses.

(a)Preliminary objections to the plaintiffs’ lay witnesses

[403]The defendant argues that little weight, if any, should be given to the

evidence of the patient plaintiffs and physician witnesses. In this section I address only the defendant’s objections to the lay evidence. I address objections to the expert evidence elsewhere in this judgment.

[404]The defendant claims that the majority of the patient witnesses have a pecuniary interest in having the impugned provisions of the MPA set aside. This is because they were compensated by way of free or heavily discounted medical services from the corporate plaintiffs; or they are otherwise not independent of the corporate plaintiffs. With respect to most of the plaintiffs’ physician lay witnesses, the defendant submits that little weight if any should be given to their evidence because they all have a direct pecuniary interest as shareholders or physicians operating in private surgical clinics, including Cambie and SRC. The plaintiffs do not really dispute these affiliations and that patient witnesses were provided free or discounted services. However, the plaintiffs contend that there is nothing objectionable in the relationships between their lay witnesses and the corporate plaintiffs.

[405]Beginning with the plaintiffs’ non-expert physician witnesses the majority of them are either shareholders or have privileges at Cambie Surgeries and/or the SRC. Specifically, Drs. Adrian, Costa, Day, Godley, Hollinshead, Javer, Lauzon, Masri, Nouri, Outerbridge, Parkinson, Penner, Peterson, Regan, Sahjpaul, Smit, Tarazi, Wade, Wing and Younger all have a pecuniary interest in the outcome of this

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litigation either as shareholders or as physicians who operated in one of the private surgical clinics, primarily Cambie Surgeries or the SRC, including during the course of this proceeding. If the plaintiffs are successful and the impugned provisions are struck, then these individuals stand to benefit not just by continuing to offer privately funded surgical services, but also by the potential expansion of private healthcare in British Columbia.

[406]This interest is evidenced by financial records as well as the direct evidence of the physicians. It confirms that between 2015 and 2018 all the above mentioned physicians reported annual earnings from their work at the private clinics to varying degrees. In some cases those private earnings were quite minor but in others they were very substantive in comparison with their MSP billings.

[407]However, it is important to note that the physicians’ total earnings at the private surgical clinics may include services provided to WorkSafeBC or ICBC patients or to MSP patients pursuant to contracts with the health authorities. These services are legally provided, they are not at issue in this litigation and they would remain intact regardless of the outcome of this case. In other words, I am not able to determine the extent to which each physician’s earnings or pecuniary interest in the private clinics depends on the provision of private surgeries to MSP beneficiaries. Nonetheless, although it is not possible to definitively quantify the extent of each physician’s pecuniary interest in the outcome of this litigation, there is no doubt that such a pecuniary interest exists. Further, for some physicians the pecuniary interest is potentially substantive.

[408]The defendant relies on Lovell and Christmas Ltd. v. Wall (1911), 104 L.T. 85 (P.C.), Lee v. Swan (1996), 19 B.C.L.R. (3d) 21 (C.A.); Northwest Mettech Corp. v. Metcon Services Ltd., [1997] 45 B.C.L.R. (3d) 366 (S.C.); and Mackie v. Wolfe (1996), 7 C.P.C. (4th) 11 (Alta. C.A.) for the proposition that the weight to be given to the evidence of the plaintiffs’ physician witnesses ought to be significantly reduced due to their pecuniary interest in the outcome of this litigation. However, all these cases relate to expert witnesses. Unlike lay witnesses, expert witnesses provide

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opinion evidence to assist the court and they are subject to a higher standard of independence and impartiality (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23). I therefore find that the cases relied on by the defendant are of limited application. I address the situation of the plaintiffs’ expert witnesses below.

[409]Moreover, unlike expert witnesses who are expected to maintain neutrality and impartiality in providing their evidence, it is quite common for lay witnesses to have an interest in the outcome of litigation. For example, in most personal injury cases, a spouse giving evidence with respect to the nature of the injuries or reduced mobility of a plaintiff clearly has a pecuniary interest in the outcome of the litigation.

That does not necessarily undermine that person’s credibility as a witness. I also note that even in the context of expert witnesses the fact that an expert is affiliated with a party does not necessarily mean their evidence is less credible. What is required is a contextual approach to determine the relationship between a party and a witness (More v. Bauer Nike Hockey Inc., 2010 BCSC 1395 at para. 183).

[410]Thus, the existence of a pecuniary interest is simply one factor to be considered when weighing the evidence of any witness as a whole. It becomes especially relevant where there are other indications that the witness may have embellished or exaggerated their evidence or otherwise was not forthcoming in their testimony.

[411]Accordingly, I do not find that the existence of a pecuniary interest constitutes an a priori reason to reduce the weight of the plaintiffs’ physician witnesses. Rather, it is one factor to be considered in assessing the overall credibility of each individual witness, especially when their evidence is contradicted by other reliable evidence.

[412]I turn next to the defendant’s objection to the evidence of the patient plaintiffs and other patient witnesses.

[413]It is undisputed that some of the patient plaintiffs and witnesses who received medical services at Cambie Surgeries were given discounted rates, or their fees

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were waived. The defendant draws a connection between that fact and their willingness to participate in this litigation. The defendant does not expressly allege Cambie Surgeries gave patients monetary benefits in the form of discounts or free surgery in exchange for their testimony in this litigation, although that seems to be the implication.

[414]However, I find that the evidence does not establish such a serious allegation. Indeed, in oral testimony the patient plaintiffs and witnesses were forthcoming regarding the discounts they received as well as the fact that Dr. Day or someone on his behalf had approached them to explore the possibility of participating in this litigation. It was apparent that their motivation for joining the litigation was their genuine interest in enabling other patients to access quicker medical care. There is no evidence to suggest that the discounts offered to the patients were conditioned on their participation in this litigation.

[415]To conclude, I find that the patient plaintiffs’ and physician witnesses’ affiliation with Cambie Surgeries is not a sufficient reason in and of itself to question their credibility. As above, I consider the pecuniary interest and affiliations of the witnesses to Cambie Surgeries as one factor among others in assessing the evidence of the lay witnesses as a whole.

(b)The patient journey

[416]The time that people spend in the healthcare system is sometimes called the

“patient journey”, using the language of health policy. While many patients might find that term an odd way to describe their illness or injury it does provide a useful way to understand the various steps in a patient’s treatment. Of course, each patient is different with different steps in the journey and therefore the journey of one patient may reasonably take more or less time than someone else. Each patient would like their journey to be as short as possible without sacrificing quality of care and the evidence is that all other participants in the system desire that outcome as well, including treating physicians and employees of the defendant.

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[417]The patient’s journey proceeds from first symptoms to first appointment with a family physician to consultation with a specialist and then (in a minority of cases) to surgery. If there is surgery there would then be recovery and rehabilitation.

[418]A not well understood time period for wait times is the period from first symptoms to the appointment with the family physician. This time is almost entirely in the control of the patient and how to measure it is complex. In some cases, the first symptoms may be mild and unnoticed or they could be identified by a routine test done for prevention purposes in the absence of any reported symptoms. First symptoms may also be the reason for a hospital visit.

[419]Some physicians suggested in their evidence that there are also wait times to see family physicians and that wait times are worse in rural areas. However, this issue was not developed at trial and there is no reliable evidence on this point. Further, it is impossible to make any determinations on this point in the absence of evidence regarding the ratio of family physicians per capita province-wide. Nor does the record include any evidence on what the proper ratio of family physicians per capita would be in a province like British Columbia. And there are rural and urban issues. In any event, the plaintiffs have stated that they do not raise any constitutional issues in relation to access to family physicians.

[420]At this stage of the patient’s journey, when they first see their family physician, patients may have an incomplete or inaccurate understanding of their medical situation. For example, Dr. Thomas Warshawski, a specialist in paediatrics and a witness for the plaintiffs, testified that a specialist can have a different view of a child’s condition than the parents. This is because the “[p]arents don't know that much about the particular disorder, usually.” People try to understand their medical condition on their own but their decision to see a doctor is precisely because they do not have expertise in medicine.

[421]In British Columbia the time between first symptoms and first visit to a doctor is not tracked by the Ministry of Health in the SPR database, the provincial database that tracks waiting for surgery (and discussed below). Given the complexities

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described above this is not particularly surprising. It is also not clear how reliable the data could be in light of the individual circumstances of patients and the fact that ultimately it is up to the patient to decide when they wish to consult their family physician. Nonetheless there is general support for the idea that in assessing overall wait time consideration should be given to the entire “patient journey”.17

[422]The actual appointment with the family physician includes an assessment by the doctor. Pain or restricted activities can be issues requiring management by the doctor. Hopefully the family physician can deal with the problem but there may need to be a referral to a specialist (or even directly to a hospital). If so, the general practice is that referrals to specialists are still done by a fax from the family physician with a brief description of the reasons for the referral (Dr. Bassam Masri expressed exasperation with the use of fax machines as not using the technology available in

2019). It can also include the family physician’s assessment of the priority for treatment, especially if it is a higher priority than usual.

[423]Tests such as imaging may be requested. Some specialists have specific requirements for referrals and they require that certain diagnostic tests be completed prior to consultation with the patient. Sometimes the family physician will telephone the specialist to discuss a patient and to request they be prioritized, although the evidence suggests this is unusual and I think the system would not work effectively if it was done routinely.

[424]Once the specialist receives the referral from the family physician the Wait One period commences. I explain Wait One (and Wait Two) in more detail below.

[425]The evidence is that an increasing number of specialists’ offices and clinics are putting significant resources into assessing the patient as quickly as possible at the point of referral. The primary reason for this is that many referrals do not result in surgery. For example, in orthopedic surgery for joint replacements, only 30-40% of patients go on to surgery after a consultation because they are not good candidates for surgery. There can be co-morbidities such as a heart condition or a program of physiotherapy could be more effective than surgery. This early assessment is a

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recent and salutary change to the system because, where a decision can be made at or close to the time of the referral from the family physician, the patient benefits by having a shorter Wait One time and, ultimately, this also reduces the wait for other patients.

[426]While the Ministry of Health tracks Wait One times in the SPR database it does not publish that data and this was a subject of some controversy in this trial. The plaintiffs question why it is not included in the wait time website used by physicians and patients. However, the evidence is that it is significantly more complex to track Wait One times and therefore the data on Wait One is not reliable enough to be used or made public. The Ministry of Health has given priority to Wait Two data which it has determined is a more appropriate way of tracking wait times at this point in time. The plaintiffs take a different view and say that Wait Two should be tracked from the date a decision is made by the surgeon and the patient to proceed to surgery. I discuss this below.

[427]Professor John McGurran, an expert witness for the plaintiffs, who previously worked as a consultant for the defendant, discussed this. In cross-examination he agreed with a statement he made in his previous work for the Ministry about the complexities of tracking Wait One in an email dated March 1, 2011:

Recognizing that the SPR [Surgical Patient Registry] is doing a very good job with the patient population judged to be in need of a scheduled procedure, there is emerging interest in including referral information and somehow incorporating Wait #1. It is well known that there is considerable variation among primary care providers with respect to how they manage potential surgical patients. Osteoarthritis of a major joint is a case in point. Some family docs will medically manage osteoarthritis of the knee right up to the point where surgery is the appropriate clinical option. Others will refer their patients sooner for clinically valid reasons. The point I want to make here is that trying to incorporate Wait #1 in the SPR is a complex matter, and even preliminary discussion should include primary care providers. Further, it will almost certainly involve discussion of an appropriate referral: another challenging area. My suggestion is to work on improving SPR as it relates to Wait #2. There are many areas where refinement is needed, and it is preferable to have it working well for BC for surgeons before adding the complexities of Wait #1 and the referring physicians.

[Emphasis in original.]

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[428]In any event, upon consultation with the specialist, an assessment is completed, often with the assistance of imaging and blood work. This ends Wait One. The specialist may find it necessary to conduct further investigations and see the patient again once results of imaging and other diagnostic tests are available.

[429]Ultimately, if the specialist determines that surgery would be beneficial to the patient then the patient will be asked to sign a consent form. That is referred to as the “decision date”, i.e. the date when the patient and specialist have decided to pursue surgery. At that point further testing may be required, including blood work in order to complete the surgery booking form that is filled out by the specialist’s office.

As the Ministry of Health calculates it, Wait Two begins only once the surgical booking office at the relevant hospital receives the completed booking form from the specialist. As discussed below, there is evidence that in some cases specialists fail to promptly complete the booking form and send it to the hospital, sometimes adding significant time to the overall wait time.

[430]Further, as I have already indicated, another difficulty with Wait Two data has to do with the fact that until recently some surgeons were adding patients to their wait lists notwithstanding that they were not yet medically cleared or available for surgery. Recent changes to wait list management and the manner in which surgery booking forms are completed have partially addressed this issue. However, as

Dr. Masri explained in his evidence at trial, ultimately appropriate wait list management and prioritization of patients lies at the heart of the physician’s role:

I basically don’t want to put somebody on the waitlist unless they’re truly surgical candidates. In other words, forget the waitlists; if I had the opportunity to book them in a month I would like them to be willing and able to have surgery within a month. I don’t want to have this thing where somebody says well, I know I’m not that bad now, but, you know, in a year I’m going to be pretty bad, so why don’t you put me on the waitlist so that when a year comes by I’m really ready and now I don’t have to wait.

Now, I can’t quite do that, because, number one, it’s not the right thing to do; I’m kind of cheating the system. Number two, it -- then those two thirds of patients I haven’t booked the first time, they’re going to sit on my waitlist and they’re going to clog my waitlist, and it makes trying to book very difficult, because every time you phone and say oh, no, I’m not ready, delay me a little

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bit. So I really only want to have patients on the waitlist who I truly think are

ready for surgery ...

...

QAnd so how do you decide, then, how to book -- whether to book a patient for surgery and what priority to assign to them?

A... the big buzz now in the orthopedic literature is shared-decision making. So it’s -- I always tell patients, nobody has to have a joint replacement. This is not cancer; it’s not life-threatening. Nobody’s going to die if they don’t have a joint replacement. It’s an operation with risks and with great benefits. So I discuss the risks and the benefits with the patients ... I only go through the process if I truly think that they will benefit from surgery ...

... that’s the number one factor, do they need surgery. And in terms of priority, for a primary joint replacement for the most part -- I call them the priority buckets. I use two buckets: either less than 6 weeks or less than 12 weeks … It’s either less than 6 weeks or less than 12 weeks based on how desperate the patients are. So if they come in with a walker or a wheelchair or walking on crutches or if they have social issues such as they’re the caregivers for a spouse or a family member or if they’re the sole provider for their family, they can’t work anymore. Or if they run a business and a whole bunch of people depend on them for running that business and if not they’re a whole bunch of people are going to be unemployed. So there’s a whole bunch -- it’s a complex process. So it’s the art of medicine, and you have to use your own humanity and humanness in trying to see this guy is more urgent than the other guy ... but I always leave the door open and I say look, if you get worse please let me know, come back. And then when you bump somebody up the list because they’re getting worse that means you’re bumping somebody else down.

[431]Dr. Masri’s evidence demonstrates the central and primary role physicians play in determining wait times through triaging and prioritization of patients as well as wait list management. Ultimately, it is the specialist who determines who needs surgery and how to prioritize their needs along with the needs of other patients.

There are situations when things can move very fast. For example, elsewhere in his evidence, Dr. Masri gave an example of how he operated on a patient almost immediately (within one week) based on reviewing an x-ray and a telephone consultation with the patient.

[432]I note that one of the reasons Dr. Masri gave to explain the ability of specialists to advance patients’ treatment in this manner is because they have more flexibility to do consultations. This is an important point I return to later. One of the defendant’s rationales for the impugned provisions is that if physicians could devote

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consultation time to private patients that would effectively mean that they will spend less time consulting patients in the public system, thereby subjecting these public patients to longer waits.

[433]In any event, returning to the patient’s journey, Wait Two only tracks surgical patients so those who are not having surgery after seeing a specialist are not included in the Wait Two data of the Ministry of Health. That is, patients who see a specialist on consultation but are not proceeding to surgery do not appear in the SPR data. Also, urgent and emergent patients (some of whom require surgery) are not recorded in the SPR data.

[434]If surgery is not appropriate then alternate treatments like physiotherapy or medication are discussed. Co-morbidities such as a heart condition or obesity may require other expertise and more time. In a small number of cases another speciality or sub-specialty may be required. For example, an assessment by an orthopedic surgeon may reveal the need for expertise in neurology or an ankle problem may require an orthopedic surgeon who specializes in arthritis of the ankle. There can be referrals between specialists without the patient going back to the family physician and creating additional delay. Nonetheless, there is evidence that some specialists simply send patients back to their family physician instead of making a direct referral to another specialist. It is unclear why some specialists choose to do so.

[435]As part of the surgical booking form filled out by the surgeon’s office one of five priority codes is assigned to the individual patient and each has a recommended wait time. Most surgical procedures in British Columbia are performed in public hospitals but some health authorities contract with private clinics, primarily for daycare surgeries and less complicated procedures.

[436]As discussed in other places in this judgment, there is a dispute between the plaintiffs and the defendant as to how to calculate the total wait time period. Further, the plaintiffs also argue that the manner in which the Ministry of Health tracks Wait Two skews the real wait time for surgery. The plaintiffs say that Wait Two should be calculated from the decision date to have surgery, i.e. when the patient

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signs the consent form. The defendant, on the other hand, says it should start when the booking form is received at the hospital, because that is when it is certain that the patient is willing, able and available to undergo surgery.

[437]Until recently the Ministry of Health tracked Wait Two only from the time the booking form was received at the booking office of the relevant hospital. However, the Ministry has more recently started to also track wait times from the decision date. Calculating from the decision date generally makes the wait time longer because, according to the surgeons, there are often delays between the decision dates to the date the form is received by the hospital. Some of this time is for legitimate reasons such as getting up-to-date imaging. The evidence also demonstrates that, despite denials by some surgeons, a partial explanation of the time between the decision date and the booking date is the result of administrative delays in the offices of surgeons.

[438]With respect to the triaging role of the specialist during Wait Two the same considerations apply as for family physicians, in particular the priority to be assigned to the patient. As discussed elsewhere in this judgment, the workers’ compensation scheme has its own system of referrals and specialty clinics as well as prioritization, which is based on different criteria specific to that context.

[439]Pain is one of the factors to be considered by physicians when triaging patients as well as the ability of the patient to work and support a family. The evidence is that there can be very different presentations of pain so that two individuals with the same objective medical findings may have very different pain experiences as well as impacts on functionality. If there is a physiological explanation for this, it is not in the evidence. But virtually all doctors described pain as a subjective factor in the assessment of a patient. I hasten to add that different presentations of pain do not mean that one person is exaggerating his or her medical condition and another is not. Pain is a complex phenomenon caused by genuine medical problems but with individual overlays of history and stoicism (leaving aside psychological disorders related to pain).

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[440]How ever it is assessed, pain is a factor in the medical assessment of how long a patient can wait for medical care before risk of deterioration or long term harm will arise. Whether pain is over (or under) reported by a patient as measured by objective findings (from, for example, medical imaging such as x-rays) is a difficult matter for the professional judgement of physicians (family physicians and specialists) as part of the triaging process.

[441]Other factors discussed with the surgeon can include the need to work, the need to plan time off from work and the need to arrange child or elder care. As well, in the case of a small number of surgeries, a patient might decide to take a vacation prior to surgery that involves lengthy rehabilitation. For example, the repair of a shoulder rotator cuff can require six months of hard rehabilitation including physiotherapy and exercises. So a patient might reasonably decide to live with some pain to have a vacation or to visit family before undertaking the procedure and rehabilitation.

[442]The evidence is that another part of the discussion between the surgeon and the patient about the decision to have surgery is the time the patient will have to wait given operating room and surgeon availability. However, throughout the triaging and consultation process, patients are told to return for a reassessment if there is a worsening of the condition. The patient may also see his or her family physician for this reason in which case the family physician will deal with the problem or make another referral to the same specialist, perhaps with a different priority.

[443]The end of the Wait Two period is the actual surgery. Recovery and perhaps rehabilitation will follow but those stages are not tracked.

[444]The following chart illustrates the surgical journey for many patients:

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[447]The third group consists of the Patient Intervenors, some of whom also obtained care privately. Nevertheless, these patients urge this court to dismiss the plaintiffs’ claim and they have concerns that, if the plaintiffs were to succeed, serious harm to the public healthcare system would result.

[448]Seventeen patients in total provided evidence in this trial and for some of these people there is also direct evidence from their treating physicians. However, it is important to note that the parties, namely the plaintiffs and Patient Intervenors, did not tender expert medical evidence with respect to any individual patient who gave evidence at trial. This includes expert medical evidence with respect to the harm some of the patients allege they suffered as a result of waiting for treatment in the public system. I discuss the implications of the absence of this kind of expert evidence later in the reasons.

[449]As a result of the collaborative efforts of counsel for the parties, agreed statements of facts were tendered with respect to all of the patient plaintiffs and two of the Patient Intervenors. No agreed statements of facts were tendered in relation to the patient witnesses.

[450]The following section summarizes the evidence of these 17 patients. Where available I have extracted the essential portions of facts as set out in the agreed statements of facts. I have then supplemented the agreed statements of facts with key facts revealed over the course of trial through oral testimony of the patients as well as the evidence of treating physicians, where available. For witnesses for whom there are no agreed statements of facts, I have relied on the affidavits of these patients, their medical records and oral evidence as well as testimony of treating physicians where it was available.

[451]What follows here is a description of the evidence for each patient. With respect to the individual patient plaintiffs, my decision on their claims under s. 7 and s. 15 of the Charter are set out in the analysis section below.

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(d)Summaries of evidence of patient plaintiffs

[452]The following are summaries of the evidence of the individual patient plaintiffs.

(i)Mandy Martens

[453]Mandy Martens was born on October 8, 1975. She was 40 at the time of the commencement of the trial. Ms. Martens testified and an agreed statement of facts was tendered with respect to her experience. In May 2010, she observed blood and mucus in her stool. The symptoms stopped without treatment. She did not consult her doctor at that time. Her symptoms recurred in March 2011.

[454]On May 2, 2011, Ms. Martens attended her family doctor’s office where she saw Dr. Willem de Vynck, who was filling in for her regular family doctor.

Dr. de Vynck performed a physical examination and, as Ms. Martens put it in her evidence, “didn’t see anything irregular.” He then referred her to Dr. Scott Cowie, a general surgeon, for a consultation and a diagnostic colonoscopy. On May 24, 2011,

Dr. Cowie’s office advised Dr. Hansen’s office that a consultation had been scheduled for November 3, 2011. That information was communicated to

Ms. Martens the same day. She testified that she felt some anxiety about having to wait for so long.

[455]On May 28 2011, Ms. Martens attended a walk-in clinic for back pain, since her family doctor was unavailable on weekends. The doctor ordered an abdominal ultrasound and advised Ms. Martens that she should attend the emergency department if the pain worsened.

[456]Her pain did worsen and she attended the Langley Memorial Hospital on May 29, 2011 where she was seen by Dr. Petrus Van Tonder. He ran a number of blood tests and Ms. Martens testified that he advised her that her blood work “looked good.” Ms. Martens told Dr. Van Tonder that she was on a waiting list for a colonoscopy and asked whether she could see a specialist right away. She testified that he said calling in a specialist surgeon for an urgent examination was not

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warranted at that time because she appeared to be a healthy 35-year old woman. He did, however, order an outpatient abdominal ultrasound to determine why she was experiencing pain in her side. The ultrasound was performed on June 1, 2011, and the medical imaging report indicated “abnormal liver masses.”

[457]Sometime in early June 2011, about when Ms. Martens had her ultrasound, she contacted Dr. Cowie’s office to see if she could move up her November 2011 colonoscopy appointment. Although the receptionist put her on a cancellation list, the receptionist explained that this was unlikely to speed up the process since most of Dr. Cowie’s other patients also wanted earlier appointments and were likewise on the cancellation list.

[458]In 2011 there were no wait time benchmarks for colonoscopies (they were developed later) and there is no expert evidence about the time Ms. Martens should have waited for the procedure. The plaintiffs say the wait time should have been two months.

[459]A copy of the ultrasound results was sent to Ms. Martens’ family physician,

Dr. Steven Hansen, on June 2, 2011. After reviewing the ultrasound results and Ms. Martens’ chart, which included Dr. de Vynck’s notes, Dr. Hansen phoned her to come in to discuss the results. Ms. Martens subsequently saw Dr. Hansen on June 6, 2011. His differential diagnosis based on her presenting symptoms and age was “inflammatory bowel disease such as colitis.” The plan was to have her assessed by colonoscopy and to start on medication for treating colitis.

[460]Dr. Hansen testified that he believed there was no association between the abnormal liver masses detected by the ultrasound and Ms. Martens’ primary complaint of blood in her stool. He did not think the liver masses were cancerous since they were quite large (eight cms). Had they been cancerous he would have expected to see other features, such as enlarged lymph nodes, which were not present. Rather, he thought they might have been congenital.

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[461]Dr. Hansen advised Ms. Martens that he might be able to arrange an earlier appointment with Dr. Cowie than November 2011 as scheduled, possibly as early as August. Ms. Martens raised with Dr. Hansen the possibility of her obtaining a colonoscopy privately in order to expedite the diagnostic process. Following the consultation, Dr. Hansen submitted a “requisition for a multiphasic liver study

(CT scan)” to assist in diagnosing the masses on Ms. Martens’ liver. He testified that he personally took the requisition to the radiology department for the procedure to be expedited, something he regularly does when a matter is urgent.

[462]However, in the meantime, after doing some research and learning about the services offered by the plaintiff, SRC, Ms. Martens contacted the clinic on June 6, 2011. She was booked for a private diagnostic colonoscopy at Cambie Surgeries with Dr. Jean Lauzon, a general surgeon, on June 20, 2011. Dr. Hansen saw

Ms. Martens again on June 13, 2011 at which time he completed a pre-operative assessment form she required for her colonoscopy.

[463]Ms. Martens’ CT scan was performed on June 17, 2011. According to the medical imaging report, the exam confirmed the presence of three liver lesions. Dr. Lauzon testified that prior to the colonoscopy, his working diagnosis based on

Ms. Martens’ age and symptoms was “inflammatory bowel disease, ulcerative colitis.” He said that colon cancer is rare in patients under the age of 50 and is not the first diagnosis when a young person presents with rectal bleeding.

[464]On June 20, 2011, Dr. Lauzon performed a diagnostic colonoscopy on

Ms. Martens at Cambie Surgeries. Following the procedure, which identified a carcinoma in Ms. Martens’ rectum, Dr. Lauzon advised Ms. Martens that the colonoscopy indicated she had stage four cancer. He had a long discussion with Ms. Martens and her husband about her diagnosis, including that she would require immediate surgery. Dr. Lauzon recommended that Ms. Martens see Dr. Paul Phang at St. Paul’s Hospital for laparoscopic surgery, and his office contacted Dr. Hansen to arrange for the referral.

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[465]Ms. Martens paid the SRC $1,924.00 for the consultation and colonoscopy, which included: $1,400.00 for the colonoscopy at Cambie Surgery Centre; $200.00 for an administration fee; $300.00 for an “Independent Medical Assessment for Personal Use”; and $24.00 for HST. The SRC paid Dr. Lauzon $300.00 in connection with the “Independent Medical Assessment” portion of the colonoscopy charge. Cambie Surgeries and the SRC refunded the entire amount that

Ms. Martens paid with respect to her colonoscopy, after she sought reimbursement from the government.

[466]Dr. Hansen first reviewed the results of Ms. Martens’ CT scan on June 21,

2011. When he met with her that afternoon she provided him with the results of her colonoscopy. Dr. Hansen sent a referral to Dr. Phang at St. Paul’s Hospital for

Ms. Martens on June 22, 2011 regarding “rectal carcinoma ... as per Dr. Lauzon”. He also referred to Ms. Martens’ June 17, 2011 CT scan, noting that there were “3 liver lesions not clearly definable on contrast CT, but not classic for hemangioma”.

[467]Also on June 22, 2011, an additional CT scan of Ms. Martens’ chest and pelvis was conducted for cancer staging purposes at Langley Memorial Hospital. The medical imaging report described Ms. Martens’ relevant medical history as “Colonoscopy shows rectal carcinoma.” Dr. Phang saw Ms. Martens the same day, June 22, 2011, at St. Paul’s Hospital. After reviewing the CT scan she had just had at Langley Memorial Hospital, he told her that the cancer had metastasized to her liver.

[468]Dr. Phang successfully performed surgery on Ms. Martens to remove the cancer on June 28, 2011. That surgery as well as all the consultations and diagnostic testing, besides the colonoscopy at Cambie Surgeries and consultation with Dr. Lauzon at the SRC, were paid for by MSP. The surgery could not have been done in a private clinic in British Columbia.

[469]Ms. Martens continued to receive cancer treatment subsequently through the public system, including:

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a)Liver surgery (hepatectomy and lysis of intra-abdominal adhesions) by Dr. Stephen Chung on October 14, 2011;

b)A colonoscopy by Dr. Phang on May 24, 2012;

c)A colonoscopy by Dr. Phang on August 15, 2013;

d)Chemotherapy periodically from January 20, 2014 to April 22, 2014; and

e)A further hepatectomy by Dr. Chung on June 10, 2014.

(ii)Walid Khalfallah

[470]Walid Khalfallah was born on March 16, 1996. He was 20 years old at the time the trial commenced. He is represented in this trial by his litigation guardian and mother, Debbie Waitkus, who testified at trial. An agreed statement of facts was also prepared with respect to Walid’s experience.

[471]Walid has dealt with complex medical conditions since birth and has seen a number of specialists over the years. Pediatric consultant Dr. Thomas Warshawski has been primarily responsible for coordinating Walid’s medical care.

[472]In 2004, Dr. Warshawski referred Walid to Dr. Stephen Tredwell, a pediatric orthopedic surgeon at the British Columbia Children’s Hospital (“BCCH”).

Dr. Tredwell diagnosed Walid as having “a high thoracic kyphosis over three vertebrae levels, also known as kyphoscoliosis of the spine.” Kyphosis is a forward rounding of the spine. While some rounding is normal, kyphosis usually refers to an exaggerated rounding of the back by more than 50 degrees. Severe cases of kyphosis can cause various health complications, including pain and disfigurement.

[473]Dr. Tredwell measured Walid’s kyphosis to be 53 degrees in 2004. He noted that Walid did not need surgery at that time, and recommended that Walid follow up in nine months and then on an annual basis.

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[474]Walid did not return to either the BCCH or Dr. Warshawski for his kyphosis until 2009. Ms. Waitkus, Walid’s mother, testified that she did not return to BCCH as directed since she had not realized she was expected to book the follow-up appointment before she left the orthopedic department after the first consultation. She left without an appointment fully intending to book one in due course but, as matters turned out, she did not. As Ms. Waitkus explained, she was attending university at the time as a single mother of two children, one of whom had significant medical challenges, and thus her life was very busy.

[475]As well, Ms. Waitkus herself had been diagnosed with scoliosis when she was younger, and the condition had not progressed even though she never underwent treatment. Walid’s back at the time presented to her as stable.

Dr. Tredwell’s successor at BCCH, Dr. Christopher Reilly, testified that with children it is often appropriate to wait some time before deciding whether to perform surgery as their bodies are still developing significantly. Sometimes their physical development reduces the original condition or even eliminates it.

[476]Walid’s condition changed within months of his 13th birthday in March 2009. Ms. Waitkus recalled that her son’s back appeared to change dramatically, which caused her great concern. She took him to see Dr. Warshawski on May 22, 2009. Dr. Warshawski noted significant and progressing kyphosis and referred Walid for a

“relatively urgent assessment” to Dr. Reilly at BCCH. Dr. Warshawski also arranged for Walid to return to see him in one year’s time to check on his progress.

[477]Dr. Warshawski’s referral was received and reviewed by Dr. Reilly, likely shortly after May 22, 2009. Between that date and August 3, 2010, Ms. Waitkus made numerous telephone calls to Dr. Reilly’s office seeking information about the scheduling of Walid’s surgical consultation. She testified that she told Dr. Reilly’s office that her son’s back condition was progressing, and that Dr. Reilly’s medical office assistant advised her to ask Walid’s referring physician to send a reassessment of his condition.

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[478]Ms. Waitkus testified that as the months passed, she saw an increasingly dramatic progression in her son’s condition and that the wait to see Dr. Reilly took an emotional toll on her.

[479]An x-ray of Walid’s spine taken on March 2, 2010 indicated “severe thoracic kyphosis measur[ing] approximately 100 degrees.” Walid saw Dr. Warshawski on

March 29, 2010 for reassessment, at which time Dr. Warshawski noted that the family had still not heard from Dr. Reilly. Dr. Warshawski told Ms. Waitkus that he would call the BCCH to attempt to get an expedited consultation. Dr. Warshawski noted that he would like to see Walid in about three months to check on his progress.

[480]In June 2010 Ms. Waitkus was advised that Walid had a surgical consultation with Dr. Reilly scheduled for August 3, 2010. Dr. Reilly testified that the delay between the referral in May 2009 and the August 2010 consultation was likely the result of two factors. One was the overwhelming volume of referrals he was processing; the other was clinic availability.

[481]Dr. Reilly examined Walid and concluded that, left untreated, his kyphosis would progress severely and would ultimately lead to a great compromise in his quality of life. He advised Ms. Waitkus that Walid would require a highly complex and risky surgical procedure to correct his kyphosis. Dr. Reilly indicated that he intended to reassess Walid in the clinic in the fall and re-triage him for surgery at that time. He told her that without surgery Walid’s prognosis was poor. In his letter to Dr. Warshawski summarizing his assessment of Walid, Dr. Reilly noted that the “wait list was going to be a problem for this boy because his kyphosis will progress dramatically as we wait.”

[482]Dr. Reilly put Walid on his surgical wait list and submitted a requisition for a CT scan and MRI. Ms. Waitkus testified that Dr. Reilly indicated that the wait list was two years but that he would watch Walid and if at any time her son’s situation became more urgent he would expedite the surgery. The surgical procedure for Walid was a very complex one. Dr. Reilly testified that, if it had been done at BCCH,

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it would have taken a long day, two or more specialized surgeons would be involved, two spinal cord technicians would be in the operating room as would two or more nurses who specialized in pediatric spinal surgery. He also testified that he explained to Ms. Waitkus the significant risks to Walid of the procedure including the risk of damage to the spinal cord. In her evidence Ms. Waitkus confirmed she was told about the risks.

[483]Dr. Reilly’s August 2010 clinical note contains a handwritten notation stating “Book OR ... F/U Jan” (the note is circled) and “Book OR, F/U Jan 2010” (the note is underlined). It appears the reference to the January date was mistakenly written as

“Jan 2010” instead of 2011.

[484]Ms. Waitkus understood that Dr. Reilly intended to follow up with Walid in January 2011. She called Dr. Reilly’s office in October or November 2010 and was told that there was no follow-up appointment booked for Walid because she had not booked it after the August 2010 consultation.

[485]Dr. Warshawski saw Walid again on December 6, 2010. He noted in a report that was copied to both Dr. Reilly and Walid’s family physician that “the major concern is ensuring that [Walid] gets the appropriate orthopedic follow up.”

Dr. Warshawski told Ms. Waitkus that he would call Dr. Reilly to inquire as to what the appropriate follow-up should be. Ms. Waitkus recalls that approximately one week after the December 6, 2010 consultation with Dr. Warshawski, he told her that he had spoken with Dr. Reilly and told her to call Dr. Reilly’s office to get the details of another appointment for Walid. She did and was advised that an appointment with Dr. Reilly was scheduled for February 22, 2011.

[486]On that date Walid saw Dr. Reilly again and had an x-ray taken of his spine. Dr. Reilly believed that the x-rays showed some progression of Walid’s kyphosis since his last visit. The MRI and CT study that Dr. Reilly had requisitioned in August 2010 had not yet been completed at the time of this consultation. The MRI was required pre-operatively but not prior to the February 22, 2011, follow-up appointment.

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[487]There are two reports dated February 22, 2011 from Dr. Reilly to Dr. Warshawski summarizing his consultation with Walid:

a)One report states that Dr. Reilly was “awaiting CT scan and MRI scanning to further clarify [Walid’s] anatomy and had ‘already have him book [sic] for surgical procedure.’”

b)The second report states “I have already tried to organize an MRI and

CT study from the time of my last visit, but we are still waiting for that ...

I am going to book a follow-up appointment for right after the CT and MRI date so we can review that study ... I am going to review Walid in detail again at our next visit.”

[488]Dr. Reilly also noted that he thought Walid would have a risk of spinal cord compromise because of the kyphosis progression and the short sharp nature of his curve, and that he would like to have Walid’s surgery done within six months. It should be noted that this was the first time Dr. Reilly indicated a specific time frame for Walid’s surgery. He testified that he met with Walid who seemed comfortable and without any significant pain.

[489]Ms. Waitkus recalls Dr. Reilly told her that Walid’s surgery would need to be expedited and that he would be put on an urgent priority list. His clinical notes state

“book OR for this summer, not June”. At that time Dr. Reilly believed that it might be possible to perform Walid’s surgery in the summer of 2011, as the pediatric orthopedic surgery group at the BCCH had been in discussions with the hospital administration to increase their operating room time.

[490]Ms. Waitkus was not notified of a surgery date for Walid and called

Dr. Reilly’s office in April 2011 to attempt, unsuccessfully, to confirm a date.

Ms. Waitkus testified that as the wait went on she became increasingly upset as it was evident to everyone that her son needed surgery.

[491]Ms. Waitkus deposed that at some point in late June 2011, she again called

Dr. Reilly’s office to confirm a date for her son’s surgery, and was advised by a

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nurse at the BCCH that Walid was not on the list of surgeries scheduled through late September 2011. She testified that a nurse told her that the “[wait list] situation was really bad” and that “other children on the list were also urgently waiting”. The nurse provided Ms. Waitkus with the names of people she should call within the hospital, such as the Director of Nursing and the Program Manager, to try to “make some noise” to expedite Walid’s care.

[492]Ms. Waitkus testified that she was very upset at the end of the conversation. She felt alone and did not know what to do since no one seemed to be responding. She also felt that her son had fallen through the cracks and that things were not going to turn out well for him. However, Ms. Waitkus then resolved that if that were to be the case it would not be for lack of trying on her part.

[493]She also contacted the Patient Care Quality Office to express her concerns about the wait times for orthopedic surgery at BCCH. Dissatisfied with the response she received, Ms. Waitkus made a subsequent complaint to the Patient Care Quality Review Board. Ms. Waitkus wrote letters to her MLA and the provincial Minister of Health, and also campaigned publicly for her son, which led to media coverage of his situation. In the course of her research, she learned of children on long wait lists for medical treatment receiving care at the Shriners Hospitals in Spokane, Washington.

[494]Dr. Reilly called Ms. Waitkus on August 12, 2011 to advise her that he was hopeful he could get a surgical date for Walid in November 2011. She testified that she told Dr. Reilly that she was considering arranging for Walid’s surgery to be performed at a Shriners Hospital in the United States. Ultimately, Ms. Waitkus decided to have Walid’s surgery performed at the Shriners Hospital and she made the necessary arrangements. She took him to the hospital on September 12, 2011 for an assessment. An examination of his spine indicated a 121-degree thoracic kyphosis. She was told again about the risks of the procedure to try and repair the problem. Because of its complexity and the rules established by the College of

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Physicians and Surgeons, it could not be performed at a private clinic in British Columbia.

[495]Ms. Waitkus advised Dr. Reilly the following week on September 19, 2011 that she was electing to have Walid treated with a three-month period of halo-traction followed by surgery at the Shriners Hospital. Ms. Waitkus took Walid to see Dr. Warshawski on October 3, 2011 to discuss her concerns regarding the wait her son had experienced. The following day she and Walid travelled to Spokane for a series of MRI scans which were performed on October 7, 2011 (Walid has to be medicated for a MRI and it can take most of a day).

[496]Ms. Waitkus also submitted a complaint to the Provincial Patient Care Quality Review Board on October 21, 2011 and the Board issued a report on April 16, 2012. The plaintiffs sought to tender the report for the truth of its contents. I ruled it was inadmissible because it contained medical opinions not obtained through a qualified expert witness. The defendant also had very limited participation in the Board’s proceedings and it could therefore not be admitted under one of the exceptions to the rule against hearsay or under the principled approach to hearsay (2019 BCSC

7). There is no evidence from a court certified expert about issues relating to medical causation in Walid’s case.

[497]Ms. Waitkus and Walid travelled to Spokane on October 30, 2011 to begin preparation for Walid’s surgery at the Shriners Hospital. On November 1, 2011 he underwent a procedure to have a “halo” device installed, after which he spent

12 hours each day in traction. His spinal surgery was performed at the hospital on January 9, 2012. Unfortunately, he suffered serious complications, including complete paralysis below the navel. The operative report states that the surgeons

“did have some issues with hypotension from the anesthesia standpoint.”

[498]Based on Walid’s P-CATS Code and characterizing his kyphosis as unstable, his Wait One target time for surgery was six weeks and the Wait Two target time was three months. Therefore, he should have had his surgery in the public system

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by November 2010. As above, Dr. Reilly offered a date in November 2011 which the mother declined in favour of a later date at Shriners’ Hospital.

(iii)Chris Chiavatti

[499]Chris Chiavatti was born on July 3, 1994. He was 22 at the time of the commencement of trial. Mr. Chiavatti testified at trial and an agreed statement of facts was tendered about his experience.

[500]On January 14, 2009, at age 14, Mr. Chiavatti hyperextended his right knee while participating in a wrestling practice as part of the physical education class at his high school. Later that day he attended the emergency department at the Royal Columbian Hospital in New Westminster due to his symptoms of pain and locking in his knee and difficulty walking. X-rays were performed and the attending physician advised him there were no bone chips in his knee. The attending physician recommended he follow up with his family physician.

[501]On January 28, 2009, Mr. Chiavatti had physiotherapy for his knee. The following day, January 29, 2009, he followed up with Dr. Laurence Barzelai, who was filling in for Mr. Chiavatti’s family physician, Dr. Rhona Gordon. Dr. Barzelai advised Mr. Chiavatti that he appeared to have a torn meniscus, but required an assessment by an orthopedic surgeon. Dr. Barzelai sent a referral to the British

Columbia Children’s Hospital and the Sports Medicine Clinic at the University of British Columbia (“UBC”).

[502]On February 10, 2009, Dr. Barzelai’s office received a standardized consultation confirmation from Dr. William Regan’s office at the Joint Preservation

Centre at UBC. The form indicated Dr. Regan would be able to assess Mr. Chiavatti, but the wait time for a consultation would be four to six months and a definitive date could not be scheduled at that time. The form also indicated an MRI of

Mr. Chiavatti’s knee would be required before his consult and requested that

Dr. Barzelai’s office arrange an MRI. The form ended with the notation, in bold, “You may also consider referring your patient to another surgeon who may have a shorter wait time.”

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[503]On February 17, 2009, Dr. Barzelai’s office was advised that Dr. Reilly at the

BCCH was available to see Mr. Chiavatti the next day, due to a last minute cancellation. He and his father attended the BCCH on February 18, 2009 where an x-ray was taken. A radiology consultation report accompanying the x-ray indicated that “no bone, joint, or abnormality” was seen. After discussing potential differential diagnoses, Dr. Reilly advised Chris that he would need an MRI to provide a positive diagnosis. Dr. Reilly subsequently arranged for an MRI of Mr. Chiavatti’s knee at the BCCH, which was performed on April 1, 2009. The MRI disclosed “a tear of the lateral meniscus.” The radiologist advised him to follow up with Dr. Reilly’s office to discuss the results.

[504]Mr. Chiavatti’s mother, Ms. Chiavatti, contacted Dr. Reilly’s office by telephone a few weeks following the MRI. Ms. Chiavatti was told by the receptionist that Mr. Chiavatti would probably be waiting for several months to see Dr. Reilly and his office would be in touch to arrange an appointment. Ms. Chiavatti followed up in May 2009 and was advised that her son still did not have an appointment to see Dr. Reilly. In June or July 2009, Ms. Chiavatti followed up again. She was advised by the receptionist that Mr. Chiavatti was on a waiting list, there were approximately 400 people ahead of him on the waiting list and if emergencies arose with other patients that would create additional delays. The receptionist also asked

Ms. Chiavatti to stop calling Dr. Reilly’s office.

[505]Mr. Chiavatti testified that his knee was painful and getting worse during the wait to see Dr. Reilly for the follow-up consultation. By the end of the school day he was in pain simply from walking. He was unable to participate in any sporting activities, and the pain interfered with his ability to participate in other extracurricular activities, which were important to him, not only as activities he enjoyed but also because he believed universities considered them in the admission process.

Mr. Chiavatti testified that his inability to do these things was socially isolating. The pain also made it difficult for him to sleep. These collective challenges made him

“quite unhappy.” He regarded himself as “kind of grouchy”. When he heard that there

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were 400 people ahead of him on the wait list to see Dr. Reilly he was in shock at first, then angry and disappointed.

[506]On September 23, 2009 Mr. Chiavatti went to see his family physician, Dr. Gordon. Mr. Chiavatti advised Dr. Gordon that he was still waiting to see

Dr. Reilly for a follow-up appointment. In response Dr. Gordon advised him that she was aware other children were waiting a long time for treatment. Dr. Gordon advised him that there was no alternative to waiting for Dr. Reilly. Dr. Gordon’s records state that his knee was not locking, was stable, and he was continuing with modified physical education at school.

[507]Mr. Chiavatti’s parents then looked into the possibility of expediting his surgery by obtaining it privately. Ms. Chiavatti first contacted the False Creek Surgical Centre, but declined to pursue this option as she regarded the price she was quoted for surgery to be “very high”. Ms. Chiavatti then called the office of a surgeon in New Westminster that she heard did some surgeries privately. She was advised this surgeon was going to be away for four to five weeks and decided not to pursue this option. Ms. Chiavatti then contacted Dr. Brian Day at the Specialist

Referral Clinic (“SRC”). She scheduled a consultation with Dr. Day for October 28,

2009. Ms. Chiavatti was advised that the consultation fee would likely be approximately $400.

[508]On October 28, 2009, Ms. Chiavatti and her son saw Dr. Day for a consultation. Dr. Day reviewed Mr. Chiavatti’s medical records, conducted a physical examination and subsequently diagnosed him with a torn meniscus. Dr. Day recommended arthroscopic surgery. At the consultation, Mr. Chiavatti and his mother signed a consent form for Dr. Day to perform surgery on Mr. Chiavatti’s knee. On November 13, 2009, Mr. Chiavatti’s parents were charged $700 by the SRC as “prepayment for surgery”. They were not charged separately for the

October 28, 2009 consultation.

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[509]Also, on November 19, 2009, Dr. Day performed a partial arthroscopic meniscectomy on Mr. Chiavatti to repair his right knee. In his operative report, Dr. Day noted softening in the tissues near the tear in the meniscus.

[510]Dr. Day billed MSP $280 for the surgery. Dr. William Penz, the anaesthesiologist, billed MSP $128 for the anaesthesia.

[511]On January 15, 2010, Dr. Day saw Mr. Chiavatti for a follow-up assessment at the SRC. In the follow-up report Dr. Day noted that Mr. Chiavatti was progressing well, though he “still has some restrictions and some lack of conditioning which is to be expected based on his long history”.

[512]Mr. Chiavatti testified that his recovery was swift. He was back at school and walking within several days, without pain within one week, back at gym class and skiing within one month. It was a relief to him to be participating again in activities at school and with friends.

[513]In February or March of 2010, Mr. Chiavatti and his mother received a telephone message from Dr. Reilly’s office at BCCH advising that Mr. Chiavatti had been scheduled for a consultation for September 2010.

[514]Mr. Chiavatti agreed in cross-examination that his parents had not made any attempts to find a different surgeon within the public system, other than Dr. Reilly. He testified that had he known of surgeons other than Dr. Reilly with shorter wait lists who could have operated on him, he would have asked for a referral. He said that no one spoke to him about the wait lists of other surgeons in the Lower Mainland who could treat a torn meniscus.

(iv)Krystiana Corrado

[515]Krystiana Corrado was born on April 5, 1995. She was 21 at the time of the commencement of the trial. Ms. Corrado testified at trial and an agreed statement of facts regarding her experience was tendered.

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[516]Ms. Corrado began playing soccer at the age of five, and for many years played the sport at the highest level available to her. She decided when she started Grade 10 that she wanted to obtain a soccer scholarship to a Canadian university. She knew that she would need to work hard on her soccer skills in addition to achieving high academic marks.

[517]On April 14, 2011, Ms. Corrado, who was then 16 years old, was playing in a soccer game when she twisted her right knee as she planted her right foot to turn. She immediately felt intense pain in and around her knee, and was unable to walk or put any weight on her knee.

[518]Mr. Corrado, Ms. Corrado’s father, took her to the emergency department at

Eagle Ridge Hospital in Port Moody where x-rays were taken of her right knee. The medical imaging report noted that “small joint effusion” was present. The attending physician examined Ms. Corrado’s knee and reviewed the x-rays. He advised her that they showed no evidence of bone chips, and that he was not sure whether she had damaged ligaments in her knee. He gave her Tylenol and told her to take more if necessary to relieve the pain. He also told her to follow up with her family physician and she was sent home with a pair of crutches. Her knee was very swollen at the time, and the pain persisted.

[519]On April 19, 2011, Ms. Corrado saw her family physician, Dr. Mary Weckworth. As her knee was still swollen, Dr. Weckworth advised her to return for another appointment in one week once the swelling had subsided. She noted that Ms. Corrado might have a ligamentous injury.

[520]Ms. Corrado testified that she was on crutches in the weeks after the injury, as her knee was very swollen and painful, and she had difficulty getting around. She was extremely distressed by her situation since her lack of mobility meant she could not play sports or participate in student government activities as she usually did.

[521]On May 17, 2011, she returned to see Dr. Weckworth. She advised the doctor that the swelling in her knee had receded for about three and a half weeks, but that

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she could not run and had difficulty with stairs. Dr. Weckworth suspected that she had a ligamentous injury and decided that the next step was to obtain an MRI of her knee.

[522]Dr. Weckworth sought to expedite Ms. Corrado’s MRI as she was aware that there were long wait times for obtaining one. She spoke with a radiologist at Burnaby

Hospital and described Ms. Corrado’s situation. The radiologist told Dr. Weckworth to put as much information as possible on the requisition and fax it to his attention at the department, and that he would try to expedite the MRI. Dr. Weckworth faxed the requisition that same day, May 17, 2011.

[523]An MRI was performed on Ms. Corrado knee two weeks later on June 2, 2011. The imaging report, which was forwarded to Dr. Weckworth on June 15, 2011, indicated that she had a complete tear of her anterior cruciate ligament (“ACL”).

When Dr. Weckworth saw Ms. Corrado to review the results of the MRI on June 21, 2011, she advised her that she would likely require surgery to repair the ACL tear.

[524]Dr. Weckworth referred Ms. Corrado to Dr. Christopher Reilly at the BCCH, as she understood him to be a good surgeon and one who performed ACL repairs.

Dr. Weckworth testified that at the time she did not know about Dr. Reilly’s wait times and thought the wait would be about three months.

[525]On June 22, 2011, a member of Dr. Weckworth’s office faxed a one-page consultation request to Dr. Reilly. Seven weeks later on August 9, 2011,

Dr. Weckworth’s office received a fax from the BCCH requesting a detailed referral. Dr. Reilly’s office received the detailed referral on August 11, 2011. One of

Ms. Corrado’s parents subsequently phoned Dr. Reilly’s office and was told by a receptionist that Dr. Reilly was unavailable for a consultation until October 2011, and that Ms. Corrado had an appointment with Dr. Reilly on October 19, 2011.

[526]Ms. Corrado testified that she was in shock when she heard how long she had to wait. She described the period between June and October as follows:

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It was probably the darkest period of my life, honestly. I wasn’t used to being so stationary and just not moving. I wasn’t used to not being able to exercise. I did fall behind in school. I did my best to -- I was a straight A student. I did my best to keep up with that, but it was hard to focus because I felt like there was no point in getting good grades if I wasn’t -- I was just very down on myself, so it was a very dark time.

[527]She said that she was depressed, anxious, and difficult to talk to or reason with. Her whole family felt the impact and were saddened for her. Her knee was also in constant pain.

[528]When Ms. Corrado saw Dr. Reilly on October 19, 2011, he confirmed that she had torn the ACL in her right knee and that she would require surgery to repair it. However, he also advised her that he would not be able to perform the surgery before she turned 17, in April 2012. Because she would be older than 16 and no longer a pediatric patient at this point, he would require special permission from the Head of Surgery at the BCCH to perform the surgery and there was no guarantee he would receive it. Dr. Reilly recommended that Ms. Corrado see another specialist who would be able to perform the surgery she required. She was aware that a fellow athlete friend of hers had received knee surgery from Dr. Fadi Tarazi, she asked Dr. Reilly to refer her to him. Dr. Reilly dictated a referral letter to Dr. Tarazi the same day.

[529]On November 9, 2011, Ms. Corrado attended an appointment with

Dr. Weckworth. She was upset because of the delay in her treatment and because her knee was in significant pain. Dr. Weckworth then contacted Dr. Tarazi’s office to request that Ms. Corrado’s consultation be expedited. When Dr. Weckworth was told that Dr. Tarazi had not yet received a referral from Dr. Reilly she arranged for her office to fax Dr. Reilly’s consultation letter and the MRI results to Dr. Tarazi. Subsequently, Dr. Reilly’s office faxed the referral to Dr. Tarazi’s office on November 17, 2011. Dr. Reilly’s consultation report was also faxed to Dr. Weckworth on November 17, 2011.

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[530]A consultation with Dr. Tarazi was arranged for December 2, 2011, two weeks after Dr. Reilly’s office finally sent the referral and imaging to Dr. Tarazi’s office.

[531]Ms. Corrado testified that the she felt demoralized during the wait to see

Dr. Tarazi. She had gone to see Dr. Reilly with the expectation that she would get a date for her surgery and soon be able to play soccer again. Instead, she was put on another wait list. Her knee continued to hurt, though she had become accustomed to the constant pain and buckling and random swelling. Physical activity had been such a big part of her life and now that she could not fully engage in such activity she felt demoralized testifying, “honestly, I didn’t know what to do with myself in those months”. On December 2, 2011, Ms. Corrado met Dr. Tarazi. She recalls that he advised her that he would likely not be able to perform the surgery until July 2012. She agreed to undergo the surgery, and Dr. Tarazi submitted a surgical booking form that same day. Ms. Corrado testified that:

I’d just been told by another surgeon -- it kind of became humorous in the fact that I couldn’t -- I had no control over this, and I felt like I was just being tossed around. It was troubling to hear the news, and I was not happy.

[532]At that point, Ms. Corrado gave up the notion of playing soccer in high school and university. This was because there would be a considerable rehabilitation period following her surgery, especially since she had been unable to engage in physical activity for so long. She felt that “all the work I’d put in to get to what I was just went down the drain.” She described herself as upset, down and feeling “like everything kept going wrong.”

[533]In early January 2012, a mutual friend of Mr. Corrado and Dr. Day suggested that the family consult with Dr. Day at the plaintiff Cambie Surgeries to see whether he might be able to provide the needed surgery more quickly than Dr. Tarazi.

Ms. Corrado and her family saw Dr. Day at Cambie for a consultation on January 12, 2012. Dr. Day observed that her knee was “not functioning well” and “unstable and painful when it shifted out of position”. The same day she signed a form consenting to surgery. The following day Dr. Weckworth faxed a referral to Cambie Surgeries.

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[534]On January 19, 2012, Dr. Day performed ACL reconstruction surgery on Ms. Corrado’s right knee at Cambie Surgeries. During the surgery Dr. Day discovered that in addition to a torn ACL, there was a lateral meniscus tear which he described as “occurred during her wait for surgery”. Dr. Day did not attribute the wait as the cause of the tear and nor is there expert evidence on that issue.

[535]Ms. Corrado’s family paid Cambie Surgeries $170.00 for the procedure. MSP was billed for the surgery as follows: $704.78 for Dr. Day; $315.92 for the surgical assistant (a nurse); and $237.30 for anaesthesia. On February 21, 2012, Dr. Tarazi wrote to Dr. Reilly to advise he would be cancelling Ms. Corrado’s booking at

Burnaby Hospital because her mother had informed him that Ms. Corrado had already had her surgery.

[536]Ms. Corrado underwent vigorous physiotherapy following her surgery. By October or November of her Grade 12 year she was back playing soccer, though not at the level she had been previously. She also played on her volleyball team that year. She testified that these activities were very uplifting and unexpected, as she had not believed she would be able to play sports at all. She was much happier in her life in general since she was able to volunteer again at school and in the community, and re-engage in her daily activities.

[537]Ms. Corrado testified that she knew she was not going to receive a soccer scholarship because of the time it took to get her surgery but she grew to accept that fact and focussed herself academically. She was accepted directly into the kinesiology program at Simon Fraser University as she had wanted. She made the university soccer team in her third year.

[538]With Ms. Corrado’s P-CATS Code (when she was younger than 17 years old), her maximum acceptable Wait One was three weeks and Wait Two was three months for a combined maximum acceptable wait time for completion of surgery of 16 weeks. Since P-CATS targets are measured from the decision date, accordingly, in order to meet the benchmark she should have had her surgery by mid-October 2011, three months prior to when she received her private surgery from Dr. Day.

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Based on SPR data, Dr. Tarazi’s 50th percentile Wait Two time for ACL repairs in 2011 was 24.9 weeks, and his 90th percentile Wait Two time was 35.9 weeks from booking form received date (“BFRD”).

(v)Erma Krahn

[539]Erma Krahn was initially a plaintiff in this action but she passed away on April 15, 2014, prior to the first day of trial (her death was unrelated to any issues in the subject claim). She was born on January 31, 1933.

[540]Ms. Krahn had a complex medical history involving many surgeries and procedures to address a range of conditions including colitis, hypertension, hyperlipidemia, gastroesophageal reflux disease, coronary artery disease, and lung cancer. In August 2008, she was diagnosed with stage IIIA non-small lung cancer. She was advised the overall survival rate, with chemotherapy, was 38 months.

[541]She also had bilateral knee problems and her complaint in this trial was solely with respect to the wait times for her knee surgeries. She acknowledged during an examination for discovery in 2013 that she was otherwise satisfied with the medical treatment she had received and had not previously experienced what she would characterize as “unreasonable wait times” in the public healthcare system.

[542]With her left knee, Ms. Krahn felt a popping sensation in September 2008. She attended a walk-in clinic and also had an x-ray performed at Peach Arch

Hospital, which found no significant abnormalities apart from a “small knee effusion.”

Over the next couple of months, Ms. Krahn discussed her knee pain with her family physician, Dr. John O’Brien, a number of times. She also attended several physiotherapy sessions.

[543]On October 23, 2008, Ms. Krahn had a cardiac consultation with Dr. Hartmut

Henning, during which she also discussed her knee pain. In his report to Dr. O’Brien,

Dr. Henning indicated he would discuss MRI arrangements with him since Ms. Krahn would likely require arthroscopic surgery.

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[544]Dr. O’Brien subsequently recommended to Ms. Krahn on November 27, 2008 that she have a private MRI to facilitate a consultation with a specialist. It is unclear why, but it appears Ms. Krahn never attempted to obtain an MRI in the public system. In any event, the private MRI was performed on December 8, 2008 and it confirmed a tear of the medial meniscus of her left knee. Dr. O’Brien referred

Ms. Krahn to Dr. Bernardus (Arno) Smit, an orthopedic surgeon, because he had a short wait time for consultations. Dr. Smit received Dr. O’Brien’s referral on

January 14, 2009.

[545]On January 20, 2009, Ms. Krahn had another x-ray of both her knees ordered by Dr. Smit. The x-ray showed no definite change of osteoarthritis with respect to her right knee. As for her left knee, it showed “joint space narrowing, mild subchondral sclerosis, and subchondral cyst formation in keeping with early degenerative change”. Dr. O’Brien’s clinical notes regarding an appointment with Ms. Krahn on

January 29, 2009, indicated that she was experiencing depression, which ought to be monitored closely.

[546]Ms. Krahn had a consultation with Dr. Smit on February 2, 2009. After conducting a physical examination and reviewing the December 2008 MRI, he concluded that Ms. Krahn had a torn medial meniscus in her left knee. Ms. Krahn told Dr. Smit that she would like to be considered for arthroscopic surgery. He discussed the pros and cons of the procedure with her, including the risks of anesthesia, infection and injury to the neurovascular structures. Ms. Krahn indicated she understood the risks, and wished to proceed with arthroscopic surgery. Dr. Smit obtained Ms. Krahn’s consent for surgery and advised her that he would arrange to perform the procedure at Peace Arch Hospital. She was put on his waiting list at the hospital that day, and the information was relayed to the hospital within a few days.

[547]In his report dated February 2, 2009 to Dr. O’Brien, Dr. Smit advised him that

Ms. Krahn understood the issues, and wished to proceed with the surgery. He further noted that he would be asking for internal medicine to review Ms. Krahn’s general medical status prior to surgery due to Ms. Krahn’s limited life expectancy.

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He also said he would heavily rely on both the opinions of Dr. O’Brien and Dr. Turner (an internist) when determining whether to proceed.

[548]Dr. Smit testified that he had approximately 300 patients on his wait list for a variety of procedures in February 2009. Based on a review of his records, Dr. Smit stated that he knew that patients who were receiving arthroscopic surgery at the time had been waiting for well over one year. He informed Ms. Krahn of this but she did not express any concern about the wait at that time. Dr. Smit testified that all of his patients receive a standardized document upon registration that outlines the policies of his clinic and advises of surgical options such as a further referral to another orthopedic surgeon or having the procedure performed in a private facility, including his own, White Rock Orthopaedic Surgery Centre. Ms. Krahn did not explore this option further with him at that time.

[549]When Ms. Krahn saw Dr. O’Brien again on February 10, 2009, he advised her that he would try to expedite her surgery to help with her quality of life concerns. On February 13, 2009, Dr. Smit received a follow-up note from Dr. O’Brien indicating that Ms. Krahn would be a good candidate for the proposed surgery and her quality of life would benefit from more expedient surgery.

[550]Dr. Smit was concerned that Ms. Krahn’s general medical status be assessed prior to surgery because individuals with cancer tend to have a higher risk of complications from surgery. For this reason she saw an internist, Dr. Mark Turner, on March 25, 2009. He concluded that she was fit for knee surgery, and recommended that she be booked for arthroscopy as soon as feasible. On April 17, 2009, Ms. Krahn had further x-rays on both her knees as ordered by Dr. Smit. The x-rays showed mild changes of osteoarthrosis in both knees.

[551]Ms. Krahn had a follow-up office visit with Dr. Smit on May 28, 2009 during which they discussed the wait for surgery. This appointment had come about because Dr. O’Brien asked him to reassess the possibility of doing Ms. Krahn’s procedure sooner than had been planned. Dr. Smit advised her that the orthopedic program at Peace Arch Hospital might be extended, as there had been a

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commitment to additional operating time, with the possible result of shorter wait lists for surgery. He told her to call him in September, by which time he expected he would be able to give her a date for her surgery. When Ms. Krahn called as directed, she was advised that her wait time for surgery would be at least another year and possibly as long as three years. In cross-examination, Dr. Smit agreed that his patients in this time period were waiting for about 10 to 15 months and not as long as three years.

[552]At the time, Peach Arch Hospital had three full-time orthopedic surgeons, each with one day of surgery per week. Dr. Smit testified that although two additional orthopedic surgeons were hired in the fall of 2009, additional operating room time was not made available and thus the five surgeons shared the same amount of operating time previously shared by the three. As a consequence, there was no reduction in Dr. Smit’s wait list.

[553]Dr. Smit testified that although he gave consideration to moving Ms. Krahn up on his wait list knowing that she had a terminal illness, he ultimately declined to do so because her presenting knee problem was the same as many of his other patients. He said that he had a responsibility to be fair to all of his patients, and the way to do that was to treat them in the order they were booked. He testified:

And the problem is that taking it beyond that, how do I -- take the 35-year-old man who is a truck driver who is sitting at home with his young family and who can’t drive his truck, how do I judge that against a 94-year-old woman who likes to travel a little bit more who is waiting for things, or in a situation like this? It’s not really feasible. There is no methodology for that. And I think once the condition is similar at some point one cannot further prioritize.

[554]Dr. Smit said there are some situations in which he might move a patient up a wait list, including patients presenting with acute injuries for which treatment is time sensitive (for example, a fracture) or those who undergo a collapse of the condition or significant deterioration while waiting.

[555]Dr. Smit did not recall having any further communication with Ms. Krahn after the May 2009 appointment, though his secretary spoke with her over the phone

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about the possibility of looking at a more expedited route to surgery through a non-hospital facility or by a referral to another surgeon. At that time it was Dr. Smit’s impression that Ms. Krahn did not wish to pursue another route.

[556]Ms. Krahn was very unhappy with the wait she faced, and wrote to the Minister of Health in September 2009 to both complain and request financial assistance for the cost of having the surgery done privately in the United States. The Ministry of Health responded by suggesting that she see if her family physician could refer her to a specialist with a shorter wait list in another geographic area or that she request that her name be put on the cancellation list at her surgeon’s office. At an examination for discovery in August 2013, Ms. Krahn did not recall whether she went back to her family physician.

[557]Through research online Ms. Krahn learned that Cambie Surgeries offered orthopedic surgery privately. Ms. Krahn attended a consultation with Dr. Brian Day on October 20, 2009. At the consultation, she paid $700 as prepayment for arthroscopic knee surgery and signed the surgical consent form for surgery. Following an anesthesia consultation on October 26, 2009, Ms. Krahn had arthroscopic knee surgery at Cambie Surgeries on October 29, 2009. She saw Dr. O’Brien twice for standard follow-up care, and he noted that her recovery was very good. Ms. Krahn also saw Dr. Day for a follow-up appointment in January 2010.

[558]MSP was billed $280 on behalf of Dr. Day for Ms. Krahn’s surgery; $203.78 for the surgical assistant (a nurse); $147.95 for the anesthesiologist; and $55 for the follow-up visit on January 5, 2010.

[559]Turning to Ms. Krahn’s right knee problems, she saw her new family physician, Dr. Benjamin Tyrell, for pain on two occasions in October 2011. During a consultation on May 12, 2011, she asked him for a referral to an orthopedic surgeon but he suggested she first get an x-ray. An x-ray taken that same day revealed moderate narrowing of the medial compartment of the joint space with mild osteoarthritis in the patellofemoral compartment.

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[560]On May 26, 2011, Dr. Tyrell observed on examination that Ms. Krahn’s knee joint looked arthritic with reduced flexibility. His recommended course of treatment was that she take analgesia for the pain but, at Ms. Krahn’s request, he agreed to refer her to Dr. Day instead. It is not entirely what came of this referral, whether

Dr. Day was seen or what steps Ms. Krahn took between late May and August 2011.

[561]In any event, in August 2011, Ms. Krahn had another x-ray of her right knee, which indicated advanced degenerative joint disease, joint space narrowing, osteophytosis, and sclerosis. On September 26, 2011, Ms. Krahn had a consultation with Dr. Bassam Masri, an orthopedic surgeon. He found that her knee pain likely originated from her osteoarthritis and advised that, as the pain was under reasonable control, she should continue to treat it conservatively with acetaminophen, non-steroidal anti-inflammatory medications, and activity modifications. Dr. Masri advised Ms. Krahn to come back if the pain worsened.

[562]In April 2012, Ms. Krahn discovered that her lung cancer had reoccurred, and was advised that her life expectancy was between two months and two years. She immediately began palliative chemotherapy at the British Columbia Cancer Agency. Palliative chemotherapy is intended to prolong survival and ease symptoms but not cure the disease.

[563]About one month later, Ms. Krahn awoke during the night with pain in her right knee similar to what she had earlier experienced in her left knee. At a physiotherapy treatment for her right knee, her physiotherapist suggested that she obtain an MRI, which she had performed privately within two weeks on June 14, 2012. At a June 28, 2012 consultation with her family physician, Dr. Tyrell advised her that the MRI showed a meniscal tear in her right knee. Ms. Krahn asked him to provide her with a private referral to Dr. Day for examination of her knee, which he did. At her examination for discovery, Ms. Krahn testified that she went straight to Cambie Surgeries rather than try to secure treatment in the public system because of her earlier experience with the left knee.

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[564]Ms. Krahn had a consultation with Dr. Day on July 25, 2012, an appointment with her family physician to fill out a pre-operative report on July 30, 2012, an anesthesia consultation at the Cambie Surgery Centre on August 10, 2012, and arthroscopic surgery on her right knee on August 16, 2012. Dr. Tyrell noted in a follow-up appointment that she was recovering well from the procedure.

[565]MSP was billed $282.08 for the meniscectomy on behalf of Dr. Day and

$180.93 on behalf of the anesthesiologist. Ms. Krahn prepaid $300 for her surgery.

[566]According to the plaintiffs’, based on Ms. Krahn’s symptoms of moderate to severe pain with significant or severe functional limitation her maximum acceptable wait time was 12 weeks. However, throughout 2009 and 2010, the Wait Two 90th percentile time from BFRD for knee arthroscopy across British Columbia was 61.3 weeks. For her left knee, Ms. Krahn waited over nine months from the time Dr. Smit’s office received her referral to the time she obtained private surgery.

(e)Summaries of evidence of patient witnesses

[567]The following six witnesses were called by the plaintiffs and they testified about their experiences in the public and private health systems in British Columbia. They are not parties to this litigation.

[568]Similar to the patient plaintiffs above, my conclusions about the circumstances of these patients is below in the analysis section of this judgment. In this section, I only summarize the evidence relating to the experience of the patient witnesses.

(i)Monique Forster

[569]Monique Forster’s evidence was tendered by the plaintiffs in the form of her affidavit. She was not cross-examined. She was 52 years old at the time she swore her affidavit.

[570]On May 11, 2015, Ms. Forster visited her family doctor, Dr. David Thomson, with complaints of abdominal bloating, abdominal pain, and a hard stomach.

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Dr. Thomson subsequently determined Ms. Forster should have an abdominal ultrasound, which was performed on May 25, 2015. The ultrasound confirmed she had multiple gallstones and would likely need surgery to have her gallbladder removed.

[571]On June 1, 2015, Dr. Thomson referred Ms. Forster to Dr. Adam Meneghetti, a general surgeon at the Vancouver General Hospital for a specialist consultation.

While awaiting her appointment, Ms. Forster followed a “gall bladder protocol” to reduce her gallstones including supplements three times a day for three months. On September 23, 2015 Ms. Forster attended a consultation with Dr. Meneghetti regarding her gallstones. He noted that Ms. Forster had, for years, experienced

“bloating and epigastric discomfort” and had “discomfort on the right side of her abdomen” which “can be associated with nausea.” Dr. Meneghetti ordered a second ultrasound, which was performed on October 6, 2015.

[572]On October 19, 2015, Ms. Forster saw Dr. Meneghetti again. He reviewed the second ultrasound and advised her that it continued to show gallstones.

Dr. Meneghetti recommended laparoscopic surgery to remove Ms. Forster’s gallbladder. Dr. Meneghetti advised Ms. Forster that he would put her on his wait list for surgery, however the wait would be lengthy due to his limited operating room time and the fact that urgent cases would always come first. Ms. Forster stated in her affidavit that Dr. Meneghetti’s office staff told her the wait list for this surgery was about one year, and the staff would call her closer to the time about a surgery date.

Ms. Forster was told by Dr. Meneghetti’s office staff that if she experienced more pain or other symptoms she should attend the emergency room.

[573]While waiting for surgery, Ms. Forster’s symptoms persisted, but did not worsen. Each time she experienced these symptoms she “would feel anxious about [her] health and the length of time [she] was waiting for surgery.”

[574]On October 19, 2016, Dr. Meneghetti’s office called and offered Ms. Forster a surgery date for November 7, 2016, due to a cancellation. She declined this date because of a prior family commitment. That same day she received an email from

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Dr. Meneghetti’s administrative assistant explaining a high volume of urgent cancer patients and a lack of operating time in the public system as the reason for the delay in her case. She was also told she would need to have her pre-operative questionnaire and lab tests redone as they were only valid for one year.

[575]Ms. Forster deposed that, because her surgery was not considered urgent, she thought she did not really need the surgery and she could live with her periodic symptoms. She emailed her surgeon’s office to advise them that she did not wish to proceed with the surgery at that time.

[576]On October 29, 2016, Ms. Forster attended Dr. Thomson’s office complaining of a sore throat and cough and tested positive for strep throat. On the morning of October 31, 2016, Ms. Forster felt unwell and had a fever. Later in the day she felt a drowning sensation, was unable to breathe, felt dizzy and unable to stand up. She was taken by ambulance to Burnaby Hospital, where she was advised she had a distended and septic gallbladder.

[577]On November 1, 2016, Ms. Forster underwent a procedure to drain her gallbladder and remove multiple gallstones. However, an infection had entered her bloodstream causing her kidneys to fail and, as described in her affidavit, nearly resulted in her death. She spent 15 days in hospital including six days on life support and 11 days in the Intensive Care Unit. Ms. Forster characterized her time in the hospital as a blur as she was unconscious or sedated for much of it.

[578]Ms. Forster could not have her gallbladder removed until her kidney function improved. While she waited for her kidney function to improve she experienced anxiety, stress, extreme fatigue, and overall pain throughout her body. She stated she “now knew that [she] could potentially die from a gallbladder infection if another one was to occur” and that she was told her “kidneys would likely never fully recover.”

[579]On November 24, 2016 Ms. Forster saw Dr. Sui Lam at the New Westminster Kidney Care Centre. He advised her that she was unable to have gallbladder

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surgery until her kidney function improved and that could take some time. Over the next few weeks Ms. Forster continued to experience intermittent gallbladder pain and discomfort.

[580]On December 14, 2016, Ms. Forster attended the emergency room at Surrey Memorial Hospital due to worsening gallbladder pain. She was advised by doctors that her kidney function had improved enough to proceed with an emergency gallbladder removal. Her surgery was performed on December 15, 2016 and she was discharged on December 16, 2016. She attended a follow-up appointment on January 26, 2017 and was advised her kidney function had improved considerably.

[581]The plaintiffs submit that based on Ms. Forster’s likely diagnosis (priority code 4, gallbladder removal for biliary colic with infrequent symptoms), she should not have waited more than 12 weeks for her surgery but she waited more than one year. No expert medical evidence was tendered to support this conclusion. Nor have the plaintiffs admitted any direct evidence from Dr. Meneghetti to substantiate this claim or determine what Ms. Forster’s acceptable wait time ought to have been. The

90th percentile wait time for priority code 4 biliary colic patients in 2015 was 33 weeks from the date the surgeon’s booking form was received by the hospital.

(ii)Barbara Collin

[582]Ms. Collin testified at trial and no affidavit or agreed statements of fact on her experience was tendered. At the time of testifying before the court, Ms. Collin was 56 years old.

[583]Ms. Collin had a routine mammogram performed in early July 2008. She subsequently had a biopsy performed and was diagnosed with breast cancer in August 2008. She underwent a bilateral mastectomy at Mount St. Joseph Hospital on July 7, 2009. During this procedure her breast tissue was removed and her surgeon, Dr. Nancy Van Laeken, inserted tissue expanders. Ms. Collin understood that the expanders would be removed in about six months and permanent implants would be put in their place.

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[584]Ms. Collin had no complaints with respect to her cancer treatment in the public system and testified that she was very satisfied with the care she was provided throughout. Ms. Collin’s complaint relates specifically to the wait for the final surgery to replace the expanders with permanent implants.

[585]At trial Dr. Van Laeken explained in her evidence that the tissue expanders are temporary implants that are placed at the time of the mastectomy in order to stretch the muscle and allow for placement of permanent implants in the future. Because the expanders are meant to stretch the muscle and skin they can cause discomfort, pain and difficulty sleeping at night.

[586]At a follow-up appointment, Dr. Van Laeken advised Ms. Collin that the expanders would be ready to be removed in December 2009 or January 2010, but because of the Olympic Games taking place in February 2010, the removal surgery would have to wait until at least February 2010. It is unclear why the 2010 Olympics caused this delay and no explanation was offered.

[587]In any event, Ms. Collin expected to have her surgery scheduled some time after the Olympics and she contacted Dr. Van Laeken’s office to ask whether she would be scheduled for her final surgery in late February or early March 2010.

Dr. Van Laeken’s office advised that they did not yet have a surgery date and asked Ms. Collin to call back in three months to find out when her surgery date might be. There is no evidence regarding the applicable wait time benchmark for Ms. Collin’s surgery. However, Dr. Van Laeken did testify that, generally, the wait time target for non-urgent reconstructive procedures is three to six months.

[588]Ms. Collin was distressed when she learned the earliest she could have her final surgery would be June 2010 and thought she “[couldn’t] do this anymore”. She testified that the tissue expanders made her aware of the physical abnormality of her chest and that she was embarrassed by their size and location. She experienced constant chest pressure and what she characterized as “chronic pain” and she found it “uncomfortable” to hug people. She stated that she experienced anxiety and depression “around what was happening”.

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[589]Ms. Collin testified that she experienced financial hardship because she had been off work since August 2008, following her initial diagnosis, and felt she was psychologically unable to return until the tissue expanders were removed. The plaintiffs claim that the reason Ms. Collin had not returned to work was because she had not yet been medically cleared to return to work. However, there is no evidence that any of Ms. Collin’s treating physicians told her that she was either physically or psychologically unfit or unable to return to work.

(iii)Grant Pearson

[590]Mr. Pearson testified at trial and no affidavit or agreed statement of facts was tendered on his experience. At the time of testifying at trial Mr. Pearson was 47. He moved from the Yukon to British Columbia in 2002.

[591]Mr. Pearson has battled with weight issues his entire life. He was a compulsive eater and has a long history of obesity. He has seen his weight fluctuate up to 377 pounds and he felt pain in his knees when he weighed that much. He had genetic issues in his family such as heart issues, diabetes, glaucoma, stroke, and

Crohn’s disease. Mr. Pearson was diagnosed with Crohn’s disease when he was a teenager, developed the onset of Type 2 Diabetes as a young adult and developed extreme sleep apnea as a result of the weight around his throat.

[592]Mr. Pearson traveled from the Yukon to Vancouver for a sleep study. He was given a sleep apnea machine which helped but did not cure the problem.

Mr. Pearson has had four surgeries relating to his Crohn’s disease. He had nine inches of his intestinal tract removed and also had gout which he characterized as being very painful.

[593]Mr. Pearson was diagnosed with diabetes when he was in the hospital for

Crohn’s disease. His blood count was high, and accordingly he was put on medication. He tried several different types of medication, and was eventually put on insulin. Mr. Pearson experienced “recurrent gallstone colic,” which resulted in him having his gall bladder removed.

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[594]Over the years, Mr. Pearson had attempted various different diets and weight loss regimes, but was never able to lose much weight or to maintain his weight.

[595]Around 2007, he talked to his family doctor, Dr. Peter Methven, about the possibility of weight loss surgery. Dr. Methven explained that Dr. Bradley Amson, located in Victoria, was performing weight loss surgeries and that he was very vigorous about putting his patients “through a gauntlet” to ensure they were good candidates for the surgery, as Mr. Pearson put in his evidence.

[596]Dr. Methven referred Mr. Pearson to Dr. Amson in Victoria for a consultation in June 2008. Mr. Pearson waited one year, until June 4, 2009, for his first appointment with Dr. Amson. Mr. Pearson testified that the wait for consultation was disheartening and depressing. He explained that he had prepared himself emotionally to commit to surgery and then had to wait for one year after that decision.

[597]When Mr. Pearson had his appointment, Dr. Amson explained to him that in order to be a candidate for the surgery he would have to make significant lifestyle changes, lose weight, modify his diet, and commit to a long-term behavioral modification plan to demonstrate he is committed to lifelong weight loss even after surgery.

[598]Most importantly, Dr. Amson informed Mr. Pearson that in order to be eligible for the surgery he would have to lose weight and maintain his weight below a certain threshold. In June 2009, Mr. Pearson was above the weight threshold and was therefore not eligible for surgery. Moreover, in the months following the initial consultation with Dr. Amson, Mr. Pearson admittedly failed to comply with his prescribed diet and regiment of exercise. On multiple occasions during his follow-up appointments every six months, especially between July 2009 and March 2012, Dr. Amson recorded in his clinical notes that Mr. Pearson was not exercising regularly and more importantly that his weight had continued to fluctuate. In fact, between December 2009 and September 2011 Mr. Pearson’s weight increased a number of times and exceeded the weight threshold for the surgery.

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[599]Overall, based on the clinical records it seems Mr. Pearson was not eligible for surgery between June 2009 and at least the summer of 2012 and therefore his wait time is not over four years as the plaintiffs contend. In this regard, the plaintiffs did not tender any direct evidence from Dr. Amson and there is no evidence as to when Mr. Pearson was in fact eligible for surgery. This poses a significant challenge in terms of determining Mr. Pearson’s actual wait times. However, in light of the above, Mr. Pearson was certainly not eligible for the surgery before the summer of 2012 at the earliest.

[600]Mr. Pearson had to travel from Victoria to the mainland every six months for his follow-up appointments with Dr. Amson. He had to take time off work and his work did not reimburse him. Mr. Pearson testified that the process of being told the wait time would be six to 12 months at each six-month checkup while he waited for surgery was emotionally draining, and taxing on his family and job. He was frustrated that there was a tool that could improve his condition, which was being held off because of the long wait times.

[601]Mr. Pearson tried to mitigate his health issues during his wait for surgery, including trying to exercise (including martial arts), he saw a respirologist, he saw a dietitian, he went to Overeaters Anonymous meetings, and he had an upper GI endoscopy to make sure he had no issues such as ulcers or other problems which could impede the healing process.

[602]Because of the long wait, Mr. Pearson looked into obtaining the surgery privately but ultimately decided that it was too expensive ($15,000), and that the gastric band surgery available privately was not suitable for him. Mr. Pearson wrote an email to his MLA about “budget cutbacks and the lack of surgical time for the surgery” that were affecting his wait time. He asked his MLA to “[h]elp get the funding back so we do not end up dead before we can get the surgery.”

[603]A Ministry of Health representative ultimately responded to Mr. Pearson’s email, and stated that while the Ministry considers morbid obesity a serious health issue, if Mr. Pearson had concerns with the wait time, he should discuss them with

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his surgeon because surgeons are in charge of prioritizing their patients.

Mr. Pearson testified that he understood the Ministry of Health to be telling him to “get in line”.

[604]Eventually, on July 22, 2013, Mr. Pearson had bariatric surgery and he testified that as a result of the surgery his “whole life just changed”. Following the surgery he lost weight; he was able to go off of all his diabetic medication; his sleep apnea improved; his Crohn’s disease went into remission; and he no longer had to do a yearly assessment with the eye doctor.

[605]He testified that he is now better able to do his job; he is a better husband and father; he can fit into cars, he has more stamina and can walk farther, and he feels “awesome” and his “overall life has improved”. He testified that the surgery saved his life and got him more healthy and active with a better and more positive mindset.

[606]The plaintiffs claim that Mr. Pearson’s total Wait Two time was 216 weeks.

Further, they assert that his Wait Two time was consistent with the 90th percentile Wait Two time for most bariatric surgery patients at the time, which was 208.9 weeks from BFRD. This is longer than the 26-week maximum acceptable wait time for this treatment. However, as above, the evidence does not support the plaintiffs’ assertions regarding Mr. Pearson’s wait time because it is unclear when he was in fact eligible to undergo surgery. At the earliest this would have been some time in the summer of 2012 and not in 2009 as the plaintiffs assert.

(iv)Michelle Graham

[607]Michelle Graham provided evidence via affidavit and she was not

cross-examined on it. At the time of swearing her affidavit Ms. Graham was 47 years old.

[608]Ms. Graham has suffered from serious sinus problems since about 2008. These problems cause discomfort, sinus congestion, and difficulty with breathing. These symptoms led to sinus headaches, illness, poor sleep, fatigue, a loss of taste

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and smell. She testified that her sinus problems continued to worsen between 2009 and 2012 and ultimately became “unbearable.”

[609]Ms. Graham learned about Dr. Amin Javer through a friend who described Dr. Javer as “the ‘best’ ear, nose and throat surgeon in British Columbia.” The friend advised Ms. Graham that Dr. Javer’s wait list was very long in the public system. Ms. Graham’s friend advised her that Dr. Javer also did private surgeries.

Ms. Graham subsequently learned that he performed private surgeries at False Creek Health Care Centre.

[610]Ms. Graham paid $498.75 for a private consultation with Dr. Javer at False Creek Health Centre on August 17, 2013. Dr. Javer testified that his consultation wait time in the public system is approximately four to six months.

[611]At the consultation, Dr. Javer recommended endoscopic sinus surgery. He advised Ms. Graham that he had a very long wait list in the public system, which would likely be around three or four years. However, Dr. Javer’s own evidence at trial was that his wait times for this procedure in the public system were between four and six months when Ms. Graham saw him.

[612]In any event, given the extremely long wait time estimate she was given by

Dr. Javer, Ms. Graham decided to “have the surgery as soon as possible” and elected to have the surgery done privately. Dr. Javer performed the surgery on October 29, 2013 at False Creek Health Care Centre. Ms. Graham paid $10,150.00 for the surgery. She testified that “[w]hile this is a large sum of money for me to pay, when I weighed my options of either having to continue to suffer while waiting a very long time for the surgery in the public healthcare system, versus paying a fee with the possibility of obtaining significant relief, it was a simple decision to go ahead with private surgery”.

[613]Ms. Graham noted a “profound difference” in her condition after the surgery and she testified that the surgery drastically improved her quality of life. She was able to breathe without difficulty, no longer had sleeping problems, regained her

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sense of taste and smell, and could speak without losing her breath. She attended follow-up appointments with Dr. Javer every six to twelve weeks at St. Paul’s Hospital Sinus Clinic, all through the public system and covered by MSP.

(v)Marshal Van de Kamp

[614]Marshal Van de Kamp testified in chief through his affidavit and he was cross-examined on it. He was 28 years old at the time of swearing his affidavit. He had two separate injuries with each knee.

[615]On September 13, 2014, Mr. Van de Kamp injured his right knee while at work. Prior to his claim being accepted by WorkSafeBC, Mr. Van de Kamp continued working with modified duties. He testified that he did this, “despite the severe pain in [his] knee” as no medical professional had told him that he should not be working at that time, he needed the income, and did not want to lose his position at work. He also testified that, “My right knee would occasionally dislocate when I was walking, or even when I was sleeping, which caused severe and shooting pain” and

“I experienced pain every day from my knee injury, which impacted almost every aspect of my life, and made it very difficult to work or do any other daily activities”.

[616]For almost two months, he took approximately two Tylenol and ibuprofen every four to six hours each day, which still did not fully relieve his pain. He testified that he developed problems with his liver, which he understood was a result of his prolonged Tylenol use for knee pain. I note here that there is no medical evidence substantiating his claim of liver problems. Nor is there any expert evidence that would suggest a causal link between his prolonged use of Tylenol and liver issues.

[617]WorkSafeBC ultimately accepted his work injury claim on October 28, 2014, and referred him for an expedited MRI, which occurred on November 17, 2014. The MRI was reviewed by Dr. Deneen Baron, WorkSafeBC Medical Advisor, Clinical

Services. Dr. Baron determined the MRI indicated disruption in Mr. Van de Kamp’s

ACL and a tear in his meniscus.

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[618]WorkSafeBC expedited an orthopedic surgery consultation with Dr. Day on January 21, 2015, who confirmed that Mr. Van de Kamp had an ACL rupture.

Dr. Day was concerned that Mr. Van de Kamp had continued to work with that injury, and wrote him a note to remain off work.

[619]WorkSafeBC paid for Mr. Van de Kamp’s ACL surgery, which was performed by Dr. Day on February 12, 2015, less than four months after his claim was accepted by WorkSafeBC and about five months after the date of injury. WorkSafeBC also funded physiotherapy for Mr. Van de Kamp pre- and post-surgery, which Mr. Van de Kamp found to be “very helpful in facilitating [his] recovery”.

[620]WorkSafeBC also provided vocational rehabilitation for Mr. Van de Kamp to train for alternate work as a heavy machine operator, as WorkSafeBC had determined that returning to his job as a welder was no longer appropriate given his knee injury. WorkSafeBC paid for medications such as prescription drugs, and also provided wage loss benefits. Mr. Van de Kamp explained, “As I went through my rehabilitation and retraining, I began to feel more optimistic. My pain subsided, and my knee function gradually improved. I looked forward to beginning my new career”.

[621]While still off work due to the right knee injury, Mr. Van de Kamp subsequently suffered an ACL rupture and meniscal tear in his left knee while playing recreational football on August 6, 2016. This left knee injury was not covered by WorkSafeBC, and in fact caused WorkSafeBC to end his vocational rehabilitation training and benefits for his right knee as of August 7, 2016.

[622]On August 8, 2016 Mr. Van de Kamp attended Mission Hills Medical Clinic for his left knee. He understood from this visit that there would be a six to eight month wait for a diagnostic MRI, which would prolong his surgical wait. Mr. Van de Kamp testified “This news was very upsetting to me. I knew there were significant wait times for surgeries, and had been prepared to pay for the privately [sic] surgery to access timely care. However, I had not known that there would also be a six to eight month wait just for the diagnostic MRI,” and stated “I did not feel I could wait that long for an MRI. The longer I waited, the longer I would be in pain, and the longer it

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would take before I could get back to work”. Therefore, he paid to have a private MRI on August 10, 2016. No attempts were made to schedule the MRI through the public system.

[623]Due to Mr. Van de Kamp’s experience with private surgery at Cambie Surgeries through WorkSafeBC, his stress “about the prospect of having to wait a long time for surgery” in the public system, and not wanting his “life to be put on hold” while waiting, Mr. Van de Kamp chose to have private surgery at Cambie

Surgeries for his left knee. On September 29, 2016, Dr. Day performed an arthroscopy and repair of ligaments on Mr. Van de Kamp’s left knee at Cambie Surgeries.

[624]Mr. Van de Kamp affirmed that his experience recovering for his left knee surgery was much different than for his right knee when he had the support of

WorkSafeBC. He explained, “I had WorkSafeBC support after my Right Knee Surgery, which assisted me in organizing my treatment and paying for my physiotherapy. In addition, I had income support during that period, which reduced the stress caused by being off-work due to my injury.”

[625]He explained that after his left knee surgery, he attended physiotherapy, but because he was unemployed and without benefits, he had to pay for it and could not afford to attend very often. He tried to do the exercises at home, but this was not as useful or productive as the supervised rehabilitation program provided through WorkSafeBC.

[626]The plaintiffs present Mr. Van de Kamp as a stark example of how the public healthcare system delays medical care. They also use the different treatment he received for each knee to support their claim under s. 15 of the Charter. The differences between workers’ compensation injuries and diseases and those treated in the public system is discussed below, as is the s. 15 claim.

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(vi)Denise Tessier

[627]Denise Tessier testified by affidavit and was not cross-examined. At the time of swearing her affidavit, Ms. Tessier was 71 years old.

[628]When Ms. Tessier was 25, as a result of a sports injury, she had cartilage removed from her left knee. Since then she had pain in her left knee to varying degrees, and by early 2013 it became significant and interfered with her life activities. She tried to address her pain through stretching and modifying her activities, but the pain did not improve. The pain interfered with her ability to walk any significant distance, garden, or do housework.

[629]On April 15, 2013, she went to see her family physician, Dr. Dorothy Craig. At this time she complained that her knee was hurting when she walked or sat down and that it was aching every night. Ms. Tessier had also suffered from mild depression from time to time in her life. She stated in her affidavit that in the spring of 2013 the pain in her left knee and leg began to impact her mood. There is no medical evidence to establish that Ms. Tessier was ever diagnosed or treated for depression and there are no references to this condition in her clinical records.

[630]After additional physician appointments, Ms. Tessier had a knee x-ray on September 9, 2013, which confirmed she had osteoarthritis. Ms. Tessier saw

Dr. Craig again on February 24, 2014. Dr. Craig advised Ms. Tessier that she would likely need a knee replacement or another form of knee surgery. Ms. Tessier requested a referral to Dr. Denise MacKey, an orthopedic surgeon, who

Ms. Tessier’s friend had seen previously. The next day Dr. Craig referred

Ms. Tessier to Dr. MacKey.

[631]According to Ms. Tessier, at the time of the referral she could not walk more than a block or so and standing for any length of time was very painful. She gave up gardening almost entirely and declined social events because moving around was painful. She also had to give up tutoring an autistic student due to her knee pain, a decision she called “disappointing and disheartening.”

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[632]In March 2014, Ms. Tessier began to receive cortisone injections in her left knee. She was unable to take other medications due to a prior stroke. While awaiting her surgical consultation to see Dr. MacKey, Ms. Tessier began to develop pain and stiffness in her right knee, in addition to the problems she was having with her left knee. She found it very difficult to do any housework, prepare meals, or care for her husband, who has advanced multiple sclerosis.

[633]On two occasions in December 2014 Ms. Tessier attended the emergency room, due to intense pain in both of her knees. Ms. Tessier continued to visit her new family physician, Dr. Dietrich Furstenburg, on a number of occasions seeking relief from the pain in her knees. Her left knee deteriorated and in May 2015, an x-ray of her knee showed “chondrocalcinosis and loose bodies and varus deformity.”

[634]On July 7, 2015, Ms. Tessier had a surgical consultation with Dr. Anthony Costa as Dr. MacKey was on maternity leave. Dr. Costa observed that Ms. Tessier was in significant pain and already had advanced stiffness, restricted movement in her left knee and her right knee was also affected. Dr. Costa and Ms. Tessier agreed that she would have a knee replacement of her left knee, followed by her right knee if required. Dr. Costa told her she would likely not get surgery for another one and a half years. Ms. Tessier was very upset by this.

[635]Ms. Tessier testified that it was “very stressful and frustrating to wait without knowing when [she] would receive [her] surgery.” She also worried that she was damaging her knee further by walking on it when it needed to be repaired.

[636]However, Dr. Costa sent a letter to Ms. Tessier’s family physician in response to the latter’s efforts to expedite Ms. Tessier’s surgery. Among other things, he wrote that Ms. Tessier’s case was “far less urgent than the other semiurgent patients waiting and even less urgent than many of those patients waiting for other elective procedures.”

[637]On January 6, 2016, Ms. Tessier saw Dr. Furstenburg again and asked him if he could do anything to get her surgery more quickly. Dr. Furstenburg sent a letter to

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Dr. Costa requesting an expedited surgery. As a result, she had a follow-up appointment with Dr. Costa on April 11, 2016. Dr. Costa advised her that he was still not able to give her a surgery date and that based on his wait list and his limited operating room time, her surgery may still be another year or so away. Ms. Tessier was very upset by this news. Dr. Costa also told her that he had many other patients waiting a long time and who were in a similar situation to her.

[638]Out of desperation, Ms. Tessier protested at the University Hospital of Northern British Columbia on April 25 and 26, 2016, by holding a sit-in. She advised hospital administrators she would not leave the hospital until she received a surgery date. She got media attention, and hospital administration offered her a surgery spot six months later, in October 2016. As this seemed the best she could do,

Ms. Tessier ceased her sit-in.

[639]Between April 2016 and September 2016, Ms. Tessier’s knee pain continued to progress and she was now almost entirely disabled from walking or standing and from sitting for any period of time.

[640]In September 2016, Ms. Tessier called the operating room booking clerk at the university to see if her surgery had been booked. The clerk informed her that it had not been booked and there was still no surgery date for her. Ms. Tessier was shocked and very upset by this. She called a hospital administrator and said she would resume her sit-in if no surgery date was immediately forthcoming. A few days later, the administrator told her they could do her surgery on October 12, 2016 and that her surgery would be booked for that day.

[641]On October 12, 2016, Dr. Costa performed a full left knee replacement surgery for Ms. Tessier. Following her surgery, Ms. Tessier regained the ability to walk and stand and sit without pain from her left knee. She has been able to resume many of her activities, including gardening. She testified that she has become re-engaged in her life again, and is making the most of each day. She feels her life has finally regained some semblance of normalcy after over three years of severe pain and significant restriction. She has been able to delay her surgery on her right

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knee indefinitely, because her right knee pain improved significantly after the surgery on her left knee.

[642]Ms. Tessier’s Wait One time was 16-18 months. This was similar to many of

Dr. Costa’s patients, as his Wait One time was approximately 14-16 months at that time. Her Wait Two time from when the booking form was received was approximately 15 months. At that time, Dr. Costa’s Wait Two for surgeries that could only be performed at the University Hospital was approximately 14-18 months.

Ms. Tessier’s total wait time was approximately 32 months, well beyond the 26-week benchmark associated with the priority code 5 assigned to her knee replacement.

[643]The defendant contends on the other hand that the long wait Ms. Tessier experienced was the result of “self-interested decisions made by her treating orthopedic surgeons: Dr. Costa and his wife, Dr. MacKey”. Over the time that

Ms. Tessier was waiting to see Dr. MacKey in consultation, Drs. MacKey and Costa did not have a regularly scheduled operating room day yet were in the process of building the longest wait lists at the university. The defendant says this ended up being a successful effort to persuade the University Hospital to give them regularly scheduled operating room time, which they received in October 2017.

[644]Further, during that time period Dr. MacKey went on maternity leave and failed to ensure a specialist who was willing and capable of caring for her patients, had sufficient operating room time, and would follow her patients in her absence. Dr. Costa in fact conceded during cross-examination that had it not been for

Dr. MacKey’s maternity leave, Ms. Tessier would have been seen much sooner. Instead, Dr. Costa essentially doubled his already very long wait list by taking Dr. MacKey’s patients in her absence, all while being fully aware he did not have operating time. Thus, the defendant argues, if her treating physicians had been guided by Ms. Tessier’s best interests, they would have referred her to another orthopedic surgeon who could have consulted and operated on Ms. Tessier sooner.

[645]There is no question that Ms. Tessier’s overall wait time was extremely long.

However, I find that multiple factors contributed to her long wait. The most significant

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is poor case management by treating physicians. It is unclear whether Ms. Tessier would have been offered a surgery date within the 26-week benchmark had she been referred to a specialist with sufficient operating room time and a shorter wait list. I do note that according to the SPR data in 2016 the average wait for

Ms. Tessier’s surgery was 30 weeks from the booking form received date for the 50th percentile and 56.7 weeks from BFRD for the 90th percentile. While the reasons for these wait times in any given case are unknown, it is clear that many patients, in fact the majority, did not undergo knee surgery within the 26-week wait time benchmark associated with a priority code 5 knee replacement due to arthritis or joint degeneration, where the patient has mild pain and a tolerable loss of function.

(f)Summaries of evidence of Patient Intervenors

[646]There are four individual Patient Intervenors in this case, Mariël Schooff, Daphne Lang, Joyce Hamer, and Myrna Allison. Mariël Schooff and Myrna Allison also gave evidence at trial. In addition, the Patient Intervenors tendered lay evidence of four witnesses who received medical care in the public and private systems.

[647]These witnesses oppose the plaintiffs’ claim.

(i)Kyle Doyle

[648]Kyle Doyle was born on June 19, 1984. He was 32 at the time of the commencement of the trial. He gave his evidence in chief by affidavit and he was not cross-examined.

[649]In early July 2011, Mr. Doyle experienced stomach pain. He attended a

walk-in medical clinic and was seen by a doctor who advised him to attend the emergency department if the pain intensified. The pain intensified and he attended the Vancouver General Hospital emergency department on the evening of July 9, 2011. His symptoms included high fever, vomiting, and dizziness. He was triaged, put in an emergency room bed and monitored within 15 minutes of his arrival. He received an emergency CT scan that night.

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[650]Following the CT scan, doctors diagnosed Mr. Doyle with an intra-abdominal abscess, secondary to a retained appendix stump following an appendectomy that was performed in 2003. He was moved into a longer-term treatment bed and treated with intravenous antibiotics.

[651]On July 15, 2011, Mr. Doyle had a second CT scan which showed his abscess had grown. Doctors determined he would require surgery, which was subsequently performed by surgeon Dr. Robert Meloche on July 16, 2011.

Dr. Meloche performed arthroscopic surgery and placed a laparoscopic drain in the abscess. Mr. Doyle recovered in hospital and was subsequently discharged on antibiotic therapy.

[652]Less than one week later, on July 22, 2011, Mr. Doyle again experienced stomach pain. He immediately returned to the hospital and was readmitted. He was given a third CT scan on July 23, 2011, which showed a residual abscess and dislodgment of the surgically placed drain.

[653]Dr. Andrzej Buczkowski, a hepatic surgeon, performed a second arthroscopic surgery on July 26, 2011. Another CT scan was subsequently performed, which showed Mr. Doyle had a persistent abscess in the right iliac fossa, and a fecalith in the appendix stump. Mr. Doyle recovered in the hospital over the following days. On July 30, 2011, he had a procedure performed by interventional radiology staff to insert a pigtail catheter into his abdomen.

[654]On August 2, 2011, he had a repeat CT scan which showed the abscess had significantly decreased in size. The drains were no longer effective and were subsequently removed. Mr. Doyle was released from hospital on August 6, 2011. After his release, he experienced symptoms consistent with his earlier symptoms, returned to hospital, and was admitted on August 10, 2011. He was observed for two nights and released after it was determined a small bowel obstruction appeared to have resolved itself.

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[655]Mr. Doyle received a follow-up CT scan on August 29, 2011 and had a follow-up appointment with Dr. Buczkowski on September 14, 2011. Mr. Doyle had had no further physical symptoms associated with the conditions that gave rise to his abdominal surgeries, although he has experienced stress associated with a fear that he will experience a recurrence of the conditions.

[656]All of the care received by Mr. Doyle relating to his stomach pain was provided in the public system, without fee or charge to him.

(ii)Larry Cross

[657]Larry Cross was born on July 25, 1941. He was 75 at the time of the commencement of the trial. Mr. Cross’ evidence was tendered by affidavit and he was not cross-examined on it.

[658]On September 20, 2012, Mr. Cross felt unwell so he went to see his family physician, Dr. Christopher James. Dr. James sent Mr. Cross to the emergency room, because he told Mr. Cross he suspected a sepsis attack.

[659]Mr. Cross attended at the Saanich Peninsula Hospital and was admitted on September 21, 2012. He had a high fever and was shaking. He was triaged and assessed, and put on intravenous antibiotics to treat sepsis. Mr. Cross also had a CT scan, which identified a blockage in his upper colon, specifically a mass at the hepatic flexure.

[660]On September 23, 2012, a gastroenterologist, Dr. Kathie Koziol, examined Mr. Cross. Her clinical impression was sepsis caused by diverticulitis and a mass that had been seen on the CT scan. Dr. Koziol prescribed a stronger antibiotic and concluded that Mr. Cross would require a colonoscopy once the diverticulitis had settled down. A second CT scan was performed on September 24, 2012. Dr. Koziol noted there was no evidence of diverticulitis on the second scan.

[661]On or around September 25, 2012, the sepsis had fully cleared and most of the associated symptoms had resolved. However, from September 25 to 28, 2012,

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Mr. Cross remained in hospital and stayed in a private hospital room for isolation as his white blood cell count was low and the doctors were concerned with reinfection.

[662]On September 27, 2012, Mr. Cross had a colonoscopy. There was a mass in his colon that the scope could not get past, and a biopsy of the tissue was taken. On September 28, 2012, the Cancer Clinic confirmed that Mr. Cross had a malignant tumour of the upper colon and he was diagnosed with Stage 3 colon cancer.

Mr. Cross was assigned to an oncologist. Dr. Koziol arranged for Mr. Cross to meet with a surgeon, Dr. Allen Hayashi, to remove the tumour. The surgery was set for October 15, 2012 at Victoria General Hospital.

[663]On September 28, 2012, Mr. Cross was released from the hospital. On October 2, 2012 he met with Dr. Hayashi for a consultation. Dr. Hayashi did a pre-operative assessment and confirmed that Mr. Cross’s surgery would take place October 15, 2012.

[664]On or around October 2, 2012, Mr. Cross started experiencing progressive problems with eating and was having abdominal pain. On October 5, 2012, as a result of increasing pain, he attended the emergency room at Victoria General Hospital. He was stabilized and advised by the emergency room physician that he should be admitted and given emergency surgery. He declined the doctor's recommendation as he wanted to wait until his October 15, 2012 appointment so he could have the surgery performed by Dr. Hayashi instead of someone he had not met.

[665]On October 7, 2012 Mr. Cross returned to the emergency room at Victoria General Hospital as he was again experiencing increasing pain. He was examined by a doctor and a CT scan was ordered. Mr. Cross was admitted into the hospital and told he could either have surgery immediately, or the following day. He chose to proceed the following day. On the morning of October 8, 2012 he met with the surgeon, Dr. Alison Ross, and discussed the upcoming procedure with her. He was provided with pain medication, and another CT scan was performed. On or around

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7:00 pm on October 8, 2012, Dr. Ross performed the surgery and the tumour was removed.

[666]Mr. Cross was released from hospital on or about October 21 to 23, 2012. A community nurse was sent to his home to assist with post-operative issues.

[667]On the evening of October 26, 2012 Mr. Cross was in significant pain while breathing. He went to see his family doctor who advised him to attend the emergency room for a full diagnosis of a possible pulmonary embolism. Upon arrival at Saanich Peninsula Hospital, he was triaged and sent for a CT scan which confirmed the diagnosis. Mr. Cross received treatment, a prescription for anti-coagulant injections and was released from the emergency room. He received follow-up care from a community care nurse and the Community Health Clinic.

[668]On or about January 12, 2013, he began oral chemotherapy treatment, which continued until the end of June. His anti-coagulation injections continued daily to the end of his chemotherapy. As of July 1, 2013, he was switched from injection anticoagulation therapy to warfarin oral tablets. He was followed by an oncologist and his family physician.

[669]He saw Dr. Koziol for a follow-up appointment on April 10, 2013, and had a follow-up CT scan on July 15, 2013. Dr. Koziol saw Mr. Cross for a further follow-up appointment on October 15, 2013. She performed a colonoscopy and biopsy on him on December 20, 2013.

[670]Dr. Koziol saw Mr. Cross again on February 25, 2014. She concluded that he would need to have a follow-up colonoscopy in one year. On March 25, 2015,

Dr. Koziol performed another colonoscopy. Aside from diverticula, she did not observe any abnormalities.

[671]All of the above care Mr. Cross received was provided in the public system, without fee or charge to him.

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(iii)Mariël Schooff

[672]Mariël Schooff was born on April 25, 1946. She was 70 at the time of the commencement of the trial. She and her surgeon, Dr. Amin Javer, testified and were cross-examined. An agreed statement of facts was also tendered on her experience.

[673]As a result of a childhood injury, Ms. Schooff suffered constant sinus infections resulting in excruciating pain. She had two operations in the public system to address her condition, one in 1985 and one in 1998. Neither operation completely relieved the pain.

[674]Ms. Schooff’s family doctor, Dr. McCarthy, referred her to an ear, nose and throat specialist (“ENT”), Dr. Smyth, who saw her on or about May 30, 2002.

Dr. Smyth opined that Ms. Schooff required revision surgery and referred her to Dr. Javer for a possible third operation to address her unresolved sinus condition.

[675]Ms. Schooff had an appointment with Dr. Javer on August 9, 2002 at

St. Paul’s Hospital. Dr. Javer diagnosed her with “significant bilateral disease with the right side much worse than the left with inadequate surgical drainage”. He stated that he would book Ms. Schooff for endoscopic sinus surgery at St. Paul’s Hospital and in the meantime see her for follow-ups to clean and irrigate her right maxillary sinus with antibiotic steroid solution.

[676]Ms. Schooff had a follow-up appointment with Dr. Javer on October 3, 2002. He noted that she was on the wait list for the surgery. Dr. Javer advised Ms. Schooff that he was the only one performing that particular procedure in British Columbia at that time, he only had two days of operating time at St. Paul’s Hospital per week, and it might be up to five years before he could perform surgery on her through the public system. He told Ms. Schooff he could perform her surgery more quickly at the

False Creek Surgical Centre, which had the same equipment as St. Paul’s Hospital, but that there would be a fee of $5,000. Dr. Javer advised Ms. Schooff that he would be paid the same amount regardless of whether she proceeded with public or private surgery. At trial Dr. Javer admitted he had not advised Ms. Schooff of his 4% ownership of False Creek.

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[677]Ms. Schooff initially declined the surgery due to the cost. However, two days later she agreed to pay for the surgery privately. Upon contacting Dr. Javer’s office and advising the office staff she intended to proceed privately, Ms. Schooff was advised that the cost had increased to $6,000.

[678]On November 13, 2002, Ms. Schooff had a CT scan of her sinuses at

St. Paul’s Hospital, in the public system, without charge to her. She also had a follow-up appointment with Dr. Javer at St. Paul’s Hospital on that date.

[679]Ms. Schooff was required to pre-pay for her surgery. She did so on

January 15, 2003, where she was advised the amount had increased again. She ultimately paid $6,125.75 for the surgery at False Creek Surgical Centre.

[680]On January 28, 2003, Dr. Javer performed Ms. Schooff’s sinus surgery at False Creek Surgical Centre.

[681]On March 27, 2003, Ms. Schooff had a follow-up appointment with Dr. Javer at St. Paul’s Hospital, paid for by MSP. He wrote in his consult note that the surgery had an excellent result.

[682]Ms. Schooff wrote to the Vancouver Sun about her circumstances, prompting a news article about her situation. After some follow-up, on August 28, 2003, through legal counsel, Ms. Schooff received a letter from Cathy Stigant, Executive Director, Policy and Program Management, Ministry of Health Services. The letter confirmed that Dr. Javer was an enrolled practitioner with MSP, that Ms. Schooff had received insured services, and Dr. Javer had billed MSP $882.47 for the surgery performed at False Creek Surgical Centre.

[683]On September 5, 2003, Ms. Schooff’s legal counsel wrote to Dr. Javer requesting repayment of $6,125.75. To date, Ms. Schooff has not received any reimbursement of the funds she paid for her sinus surgery, either from Dr. Javer or from the False Creek Surgical Centre.

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[684]While the surgery by Dr. Javer relieved some of her symptoms, Ms. Schooff continues to have sinus problems to date, particularly during allergy season. She uses a regimen of antihistamines, a prescription medication called Ragwitek, nasal sprays, puffers and sinus rinses to help prevent infections. Nevertheless,

Ms. Schooff testified at trial that the surgery was very successful and relieved her of her pain.

[685]I discuss the legal and ethical issues arising from the circumstances of

Ms. Schooff below as part of the discussion of the principle against arbitrariness, being one of the principles of fundamental justice.

(iv)Carol Welch

[686]Carol Welch passed away in September of 2012, prior to the commencement of this trial. An agreed statement of facts was tendered on Ms. Welch’s experience.

[687]In or about June 2006, Ms. Welch developed bursitis down her right leg. She consulted her family doctor, Dr. Dale Magnuson. She tried various treatments, such as ice packs, rest, and one physiotherapy session. Unfortunately, Ms. Welch’s condition did not improve with these treatments. The physiotherapy aggravated her condition and she complained of severe pain.

[688]Ms. Welch was also prescribed prescription painkillers. The pain gradually subsided, although her condition remained unresolved. Dr. Magnuson followed up with Ms. Welch’s appointment by scheduling a CT scan. On October 24, 2006, she had a CT scan at Richmond General Hospital in the public system without charge to her.

[689]In early November 2006, Ms. Welch returned to Dr. Magnuson's office to discuss the results of her CT scan. Dr. Magnuson reviewed the report accompanying the CT scan and told Ms. Welch that she had nerve damage and various other issues, including a herniated disc in her back. He said she required a consultation with a surgeon.

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[690]Ms. Welch was referred to Dr. Richard Chan. Dr. Magnuson's assistant

telephoned Ms. Welch and told her the first available appointment she could get with Dr. Chan was July 4, 2007. She also told Ms. Welch that there was no one else to refer her to for an earlier appointment. No attempts were made by her physicians to inquire if a neurosurgeon was available at an earlier date.

[691]In or about mid-December, 2006, Ms. Welch phoned the False Creek Surgical Centre and told them she had an appointment on July 4, 2007, with Dr. Chan in the public system. She said she did not feel she could wait that long and would like to see him sooner. The staff at False Creek Surgical Centre told Ms. Welch that

Dr. Chan could see her sooner at the False Creek location for a consultation, but it would cost $450. Ms. Welch agreed and was booked an appointment time one week later. This appointment, and the fee for same, are recorded in Dr. Magnuson’s chart notes.

[692]On December 20, 2006, Ms. Welch went to False Creek Surgical Centre for her appointment with Dr. Chan. She paid the $450 charge for the appointment. During the appointment, Dr. Chan told Ms. Welch that she had a herniated disc and recommended surgery; he also discussed the private alternative to the public system. He advised Ms. Welch that she could have the surgery performed within two weeks at False Creek Surgical Centre for a fee of $5,000 and that his fee as the surgeon would in any event be paid by MSP. However, he advised her that if she waited to have her surgery performed in the public system, it would take four to six months to get an appointment date.

[693]Ms. Welch declined an appointment at False Creek Surgical Centre and waited for surgery in the public system. While she waited for surgery, she was in a great deal of pain and could only work half days at her job. Her condition required her to see Dr. Magnuson approximately every 10 days to assess her condition and continue the pain medications.

[694]Ms. Welch’s surgery, a bilateral L4-5 discectomy and L5 foraminotomies, was performed by Dr. Chan in the public system, without payment of a fee, on May 3,

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2007, four and a half months after the consultation with Dr. Chan. Ms. Welch had post-surgical consultations with Dr. Chan on May 15, June 4, July 4, and August 16, 2007.

[695]Self-referrals generally are discussed below as an ethical issue under the principle against arbitrariness, one of the principles of fundamental justice.

(v)Myrna Allison

[696]Myrna Allison was born on February 16, 1954. She was 62 at the time of the commencement of the trial. In addition to an agreed statement of facts, Ms. Allison gave her evidence in chief by affidavit. She was not cross-examined.

[697]On December 18, 2006, Ms. Allison visited her prosthodontist, Dr. Ronald Shupe, regarding a spot on her palate. Dr. Shupe tested the spot using Toludine Blue staining and advised Ms. Allison that the test indicated a biopsy was required. Dr. Shupe told Ms. Allison he would refer her to Dr. Russell Naito, a dentist certified to perform oral and maxillofacial surgery. He directed Ms. Allison to speak to his assistant about booking the appointment with Dr. Naito, which she did.

[698]The assistant advised Ms. Allison that although Dr. Naito could perform the biopsy in early January, MSP would not cover the visit and Ms. Allison would have to pay privately to see him. Dr. Shupe’s assistant advised Ms. Allison that if she did not see him and had a biopsy done in the public system, she would need to wait longer. The assistant advised Ms. Allison she would need to pay $80 for a consultation and between $175 and $600 for the biopsy, with an additional $375 if she wanted

IV sedation during the procedure. Ms. Allison advised she wished to see another physician who would perform the biopsy and bill MSP.

[699]Ms. Allison saw her family doctor, Dr. Robertson, who referred her to an ENT named Dr. Vilas Prahbu on an urgent referral. On January 22, 2007, Ms. Allison was seen by Dr. Holly Stevens, another ENT in the same office as Dr. Prahbu.

Dr. Stevens agreed a biopsy was warranted and made the arrangements for it. Dr. Prahbu performed the biopsy on January 29, 2007. On February 6, 2007

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Ms. Allison had a subsequent visit with Dr. Stevens and received the results of the biopsy.

[700]All of the care received by Ms. Allison relating to the spot on her palate was provided in the public system, without fee or charge to her.

(vi)Peggy Eburne

[701]Peggy Eburne was born on May 22, 1944. She was 72 at the time of the commencement of the trial. An agreed statement of facts was tendered on Ms. Eburne’s experience. Ms. Eburne also testified at trial.

[702]On May 28, 2012, Ms. Eburne saw her optometrist, Dr. Jennie Chi, as her vision was poor. Dr. Chi diagnosed bilateral cataracts and macular degeneration. Ms. Eburne was also found to have high intraocular pressure (ocular hypertension). Dr. Chi subsequently referred Ms. Eburne to Dr. Kevin Parkinson, an ophthalmologist, for potential cataract extraction.

[703]Ms. Eburne had a consultation appointment with Dr. Parkinson on July 24,

2012. Dr. Parkinson conducted an examination of Ms. Eburne’s eyes and recommended that she have surgery on both eyes to remove her cataracts. He also said that the surgeries might help lessen the pressure in her eyes. He also advised Dr. Chi that Ms. Eburne would need monitoring for the development of glaucoma.

[704]Ms. Eburne was anxious to have the surgery performed in a timely fashion. Upon asking Dr. Parkinson if he could give Ms. Eburne an approximate date for her surgery he advised her he could not, but that he could perform the surgery that weekend at a private clinic for a fee. Dr. Parkinson's staff then gave Ms. Eburne information with respect to the cost of surgery if she chose to have it performed privately. Ms. Eburne testified that there were also signs in Dr. Parkinson’s office advertising of the private option. Ms. Eburne advised Dr. Parkinson’s staff that she was not interested in having the surgery performed privately and asked to be put on

Dr. Parkinson’s public wait list.

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[705]On October 20, 2012, Ms. Eburne went back to her optometrist, Dr. Chi, as she was concerned about her wait time for surgery and worsening vision. From

Dr. Chi she first learned that it could take 10 months to be booked for her surgery. In

Dr. Chi’s October 20, 2012 letter to Dr. Parkinson, Dr. Chi stated that she had advised Ms. Eburne that with respect to the waiting list for cataract extraction, “it does take up to 10 months for the surgical date to be booked”. Dr. Chi followed up with Dr. Parkinson’s office and was advised that Ms. Eburne was on the wait list. Dr. Chi’s office relayed this information to Ms. Eburne.

[706]Ms. Eburne decided to remain on Dr. Parkinson's public wait list rather than risk a longer wait time by being referred to another surgeon. Dr. Chi then referred Ms. Eburne to a clinic at the University of British Columbia, then run by Dr. Robert Schertzer, that monitors patients at risk of developing glaucoma. Ms. Eburne attended this clinic from time to time while awaiting surgery.

[707]Ms. Eburne continued to call Dr. Parkinson's office to inquire as to an

approximate date for her cataract surgery. Each time she called she was told there was no date set and that she could have the surgery performed right away if she chose to pay for it privately.

[708]On April 15, 2013, Dr. Parkinson subsequently performed cataract surgery on

Ms. Eburne’s right eye in the public system, less than 9 months after the initial consultation. On August 13, 2013, Dr. Parkinson performed cataract surgery on Ms. Eburne’s left eye in the public system. Dr. Parkinson confirmed that the standard practice in North America is not to operate on both eyes simultaneously.

[709]Dr. Parkinson had previously advised Ms. Eburne of the availability of premium diagnostic procedures, which he told her were measurements she could have of her eyes that, in his view, would improve surgical outcomes, but were not covered by MSP. Ms. Eburne paid for these premium diagnostic procedures for each eye, at a cost of $250 per eye.

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[710]Ms. Eburne’s bilateral cataract surgery was successful, and she has had no further indication that her suspected glaucoma is progressing. She routinely sees doctors at the Westwood Eye Clinic for follow-up.

[711]Ms. Eburne deposed that she was unhappy about the length of time she had to wait to have the first cataract surgery performed and the offers from Dr. Parkinson and his staff to have the surgery performed immediately if she was willing to pay.

[712]As with the experiences of other patients, the issues of self-referrals are discussed below as an ethical issue under the broader issue of arbitrariness, one of the principles of fundamental justice under s. 7 of the Charter.

(g)Summaries of the lay evidence of physicians

[713]Thirty-six physicians gave evidence in this case. Nearly all of them were called by the plaintiffs.

[714]In the following section I discuss the lay evidence of the physicians, some of whom were also treating physicians of individual patient plaintiffs and patient witnesses discussed above. I have organized this section according to practice areas of the physicians. The evidence of physicians who were tendered by the parties as experts and who were certified by me as experts in court are discussed in another section below.

[715]For convenience I have grouped the physicians in this section by their specialties.

(i)Orthopedic Surgery: Dr. Brian Day

[716]Dr. Brian Day is an orthopedic surgeon and one of the founders of Cambie Surgeries and the SRC. He is currently the president, CEO and medical director of both organizations.

[717]The defendant submits that Dr. Day’s evidence should be given no weight.

I address the defendant’s submission below but will first provide an overview of Dr. Day’s evidence. As noted above, Dr. Day was a treating physician for

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Ms. Corrado, Mr. Chiavatti, Ms. Krahn and Mr. Van de Kamp. His evidence on these parties is summarized above as part of the individual experiences of these patients.

[718]Dr. Day’s evidence in chief was given through a very lengthy affidavit and then he appeared for three days of cross-examination. The defendant’s objections were the subject of a lengthy hearing on their own and I issued a detailed ruling allowing a number of the defendant’s objections (2018 BCSC 514). The issues there included relevance, opinion evidence (Dr. Day was not tendered by the plaintiffs as an expert under the Rules of Court), hearsay and argument. As noted in the procedural history of this case, I ordered that a revised version of Dr. Day’s affidavit be tendered into evidence, after the removal of the paragraphs I ruled were inadmissible.

[719]In his revised affidavit, Dr. Day sets out his motivation for founding Cambie

Surgeries. Since Dr. Day’s impetus for founding Cambie Surgeries is not central to the constitutional questions in this case, I will briefly note his evidence on this point. In general, he believed that “the only way to ensure better quality and more timely patient care was through supplementing and enhancing the public system with private care options.” He also believed that increasing the availability of timely private surgeries was consistent with his ethical obligations to his patients as a surgeon. The original purpose of the SRC was “to provide more timely specialist assessments for British Columbians”.

[720]Dr. Day also provided evidence on the range of services Cambie Surgeries offers. These include orthopedic surgery, general surgery, neurosurgery, plastic surgery, urology, gynaecology, eye surgery and children's dentistry, as well as colonoscopies and other diagnostic procedures. In addition to serving exempt patients, Cambie Surgeries has provided privately paid, medically necessary surgeries to non-exempt British Columbia residents (beneficiaries under the MPA) since its inception. It has admitted this is illegal, being contrary to the MPA.

[721]During cross-examination, Dr. Day testified that between 15 to 20% of

Cambie Surgeries’ patients are MSP beneficiaries. However, counsel for the

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defendant put to Dr. Day his evidence during his examination for discovery, as well as in an earlier affidavit, where he estimated that 10% of Cambie Surgeries’ patients were MSP beneficiaries. Dr. Day attempted to qualify these earlier statements, noting that the percentage varies year to year, and up to 20% are “pure” non-exempt patients in some years. By “pure” MSP patients, Dr. Day meant patients who were not receiving a non-medically necessary procedure at the same time.

[722]In any event, the vast majority of Cambie Surgeries’ patients (between

80-90%) are exempt from the MPA and as such are not subject to the impugned provisions of the MPA. That is, Cambie Surgeries provides medically necessary services (contrary to the MPA) to 10 to 20% of its patients. I add that these are only the estimates of Dr. Day on this point and there is no documentary record in evidence on this point.

[723]Dr. Day stated that 100 surgeons are affiliated with the clinic and all are enrolled in MSP. In the event of complications at the clinic (or any clinic), the treating physician is to follow the patient to a public hospital. The clinic also has a staff of approximately 95 employees, which includes nurses, cleaners, sterile supply staff and front office staff. He stated the major costs of operating Cambie Surgeries include its employees’ salaries and benefits, facility costs like electricity, the cost of procuring and maintaining medical equipment and taxes. The College regulates the professional activities of physicians and they have put limits on what procedures can be performed at Cambie Surgeries and other private clinics. For example, complex procedures and urgent/emergent services cannot be provided in private clinics. In addition, patients with co-morbidities must be treated in the large public hospitals (for example, a patient with cardiovascular complications).

[724]To cover the costs of operating Cambie Surgeries, the clinic charges patients a facility fee. The facility fee funds “employee salaries, payments for the facility, updating equipment, capital replacement costs, and all of the other overhead and operating costs necessary to run a modern surgical facility, such as implants, devices, and disposables used during procedures.” During cross-examination,

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Dr. Day acknowledged that a portion of the revenue from facility fees is also paid to surgeons in proportion to the volume of surgeries and “other services” they perform. I discuss Dr. Day’s evidence on this point in greater detail below.

[725]Dr. Day also stated that Cambie Surgeries has never had difficulty recruiting nurses. He attributed this to Cambie Surgeries’ flexible working hours and good working conditions. On cross-examination, he acknowledged that when Cambie Surgeries opened, the clinic paid its nurses a higher wage than they would receive in the public sector. He stated, however, that he was not sure whether that was the case now.

[726]Dr. Day also provided evidence about his experiences in the public system during the 1980s and 1990s. Dr. Day spoke to his observations of growing wait lists following the introduction of global health budgets. He explained that wait lists increased after global budgets led to caps on operating room time. He also attested to his more recent experiences, including using the SPR.

[727]Dr. Day stated that he ceased performing regular surgeries in the public system in 2006 as a result of his leadership commitments (in particular, his presidency of Arthroscopy Association of North America (“AANA”) and the Canadian Medical Association). Dr. Day’s MSP billings in recent years reflect his minimal practice in the public system. For instance, the last time his MSP billings exceeded $25,000 was in 2015 which is the threshold for a surgeon’s name to show up in the province’s “Blue Book” recording physician billings under MSP. Where there is a difference in the evidence between Dr. Day and physicians who have current and more extensive experience in the public healthcare system, I place more weight on the testimony of the latter.

[728]My summary of Dr. Day’s affidavit omits his evidence on the following topics, since they have no bearing on the constitutional questions in this action:

a)Cambie Surgeries’ involvement in legal proceedings brought by the

BC Nurses Union;

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b)His involvement in the province’s consultations on healthcare between 2006 and 2007, including the province’s enforcement of the MPA at the time;

c)His motivation in bringing the constitutional challenge in this case; and

d)Cambie Surgeries’ charitable activity and his continuing support for public healthcare.

[729]The above is primarily based on Dr. Day’s evidence in chief as contained in his affidavit. I turn now to Dr. Day’s evidence on cross-examination. One of the principal issues canvassed on cross-examination concerned Cambie Surgeries’ billing practices and the manner in which surgeons are remunerated for their work at the clinic.

[730]Dr. Day testified that MSP beneficiaries are currently billed a facility fee, a surgical fee and fees for other services like anesthesiology. The surgical fee covers the surgeon’s services. Dr. Day testified to the approximate amounts that an MSP beneficiary would be charged at Cambie Surgeries. He stated that when a patient is considering a procedure at Cambie Surgeries, the patient receives an estimate for the cost of their procedure. The clinic maintains fee guides for this purpose, which set out estimates for various procedures. The ultimate cost varies depending on the exact procedure the surgeon decides to perform to meet the particular patient’s specific needs. However, the guide provides patients with a rough estimate of their surgical costs. The guide from June 2015 was in evidence and illustrates some of the per procedure costs to patients at Cambie Surgeries.

[731]In his testimony, Dr. Day went over the cost for a certain type of arthroscopic knee surgery in his fee guide. He noted that fees were calculated differently whether the patient was “friendly” or “corporate/totally private.” The former category includes

RCMP officers, Canadian Armed Forces members and British Columbia residents, like non-exempt MSP patients. The latter category encompasses Cambie Surgeries’ corporate clients. While facility fees remain the same for both categories, there is an

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80% discount for “friendly” patients for the cost of the surgeon and other services. He noted that for this particular surgery, the total cost for “friendly” patients was $4,510, which included a facility fee of $2,550. He described the cost of this surgery as fairly typical for patients at Cambie Surgeries.

[732]Consistent with his affidavit, Dr. Day testified that the facility fee recoups the amount necessary to cover Cambie Surgeries’ operating costs for staffing, equipment, devices and disposables that are needed to perform surgical procedures. The facility fee, he added, ensures Cambie Surgeries remains “in the black.” However, during cross-examination, Dr. Day also explained that a portion of the revenue from the facility fee went to surgeons.

[733]Before 2014, Dr. Day testified that surgeons would bill MSP for surgical services provided to MSP beneficiaries at Cambie Surgeries. During this period, these patients were not charged a separate physician’s fee from the facility fee.

Rather, patients were charged a facility fee in addition to any other cost that could not be recouped through MSP.

[734]During cross-examination, Dr. Day testified that a portion of the facility fee went into Cambie Surgeries’ general revenue. He also acknowledged that, in addition to what the surgeons claimed through MSP, the clinic’s surgeons were paid an amount out of this general revenue proportional to the volume of surgeries that they performed at the clinic over a given period. These amounts were paid out of

Cambie Surgeries’ “consulting-pediatric” account. He denied, however, that these payments were direct compensation for performing surgeries at Cambie Surgeries. It is not clear why this is called a “pediatric” account since it appears to include revenue for all patients regardless of age.

[735]In any event, Dr. Day stated that payments to surgeons out of the clinic’s “consulting-pediatric” account had a different function. The payments were intended to compensate surgeons for administrative services or other functions that MSP would not ordinarily cover. He noted, for instance, that surgeons at Cambie

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Surgeries are involved in deciding which surgical equipment to order and also act as orderlies, given the small size of the clinic.

[736]Dr. Day, however, testified that there is no documentation describing the basis for these payments. Rather, a cheque is simply sent to surgeons for a given amount. Dr. Day testified that the surgeon receiving the cheque would know what it was for, given they would know what operations or services they had provided to Cambie Surgeries during that period. Dr. Day said that surgeons do not know how they are paid, unless they are a member of Cambie Surgeries’ staff and privy to the method used for calculating the payments. He also said there are no financial records from Cambie Surgeries given to surgeons.

[737]It was also unclear how Cambie Surgeries calculates the amount it owes physicians in the absence of documentation. Dr. Day explained that the payments would be made when there were funds available, like dividends to shareholders. He also stated that the clinic tracked what the doctors or physicians are doing. Yet it is unclear how such tracking and calculation could occur in the absence of documentation supporting the payments.

[738]Dr. Day testified that payments out of the general revenue to surgeons for this purpose were upwards of $3 million annually. Yet, as Dr. Day acknowledged, Cambie Surgeries had no written agreements on how surgeons would be compensated. Instead, he explained there is a “large element of trust” with the clinic’s surgeons in how these payments are made. It is for someone else to decide on the appropriateness of this record keeping. However, it strikes me that the accounting procedures (or lack of them) described by Dr. Day do not reflect well on the private administration of healthcare in British Columbia and are not a model for the future of private care.

[739]Dr. Day was adamant that payments out of the “consulting-pediatric” account before 2014 did not constitute double billing. He said double billing arises where a physician receives an amount from a patient in addition to what they are owed under

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a public health plan. Dr. Day stated that he believed double billing was a fraudulent activity.

[740]However, Dr. Day maintained that Cambie Surgeries’ payments to surgeons above and beyond what they had billed MSP were not double billing, since they came out of the clinic’s general revenue and were also intended to cover non-surgical services. In any event, surgeons at Cambie Surgeries no longer bill MSP for surgical services as of September 2014. Instead, MSP beneficiaries are charged directly for the physician’s fee.

[741]Dr. Day was also asked about “independent medical assessments” (“IMAs”) at the SRC. The clinic uses this term to refer to the medical assessments that patients, including non-exempt MSP patients, receive when they refer themselves to the clinic. Dr. Day denied that the assessments were equivalent to a consultation with a surgeon in the public system, which may constitute a benefit under MSP. He maintained the IMAs at the SRC were different since they were more comprehensive, taking an hour as opposed to a 15-minute consult in the public system. His evidence on this point is plainly contradicted by Cambie Surgeries’

Notice to Admit from 2015, where it was acknowledged that IMAs may include services that are benefits under MSP.

[742]Dr. Day was also cross-examined on his personal activity in the public system. During the late 1980s, Dr. Day acknowledged that he was billing MSP around $300,000 annually. He also acknowledged that his MSP billings dropped to approximately $60,000 in 2003/2004, and continued at that level until 2010/2011, when they dropped again to $40,000. He also agreed the last time his billings exceeded $25,000 was in 2015, when he earned $27,000. He also acknowledged that in 2016/2017, he earned $260,000 in fees paid out of the “consulting-pediatric” account. He also received $545,000 out of the same account in 2011/2012.

[743]Dr. Day explained that his earnings dropped off in the public system after he assumed the presidency of AANA and the Canadian Medical Association. He agreed that his hours in the public system did not bounce back after his presidencies with

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those organizations ended. He noted, however, that since these activities, he has worked as a visiting professor and lecturer around the world and lost time in his practice as a result. Evidently, however, Dr. Day continues to earn significant amounts through the provision of surgical services at Cambie Surgeries and his management responsibilities there.

[744]I turn now to consider the defendant’s submission on Dr. Day’s evidence. The defendant says that given Dr. Day’s direct pecuniary interest in the outcome of this litigation as well as his lack of credibility, his evidence should be afforded little or no weight. The defendant also asks the court to draw an adverse inference with respect to Dr. Day’s credibility from Cambie Surgeries’ failure to comply with its disclosure obligations in this matter.

[745]I am in agreement with the defendant that the plaintiffs made insufficient efforts to comply with their disclosure obligations. I note, in particular, the absence of documents showing the basis on which payments were made to physicians at

Cambie Surgeries. Despite Dr. Day’s evidence to the contrary, I find it surprising that no documentation exists for payments out of the clinic’s general revenue. Likewise, I find the plaintiffs’ disclosure regarding the information that was provided to Cambie Surgeries’ early investors was similarly inadequate.

[746]I am also in agreement with the defendant that Dr. Day’s affidavit before the

Supreme Court of Canada in Chaoulli was less than forthright about Cambie Surgeries’ practices. This was put to Dr. Day as a general issue of his credibility.

[747]In that affidavit, Dr. Day fails to mention that the clinic has always treated MSP beneficiaries who are non-exempt British Columbia residents, although he lists the categories of exempt patients treated at the clinic. Dr. Day testified in this trial that the omission was because Chaoulli concerned a patient waiting for a hip replacement and Cambie Surgeries was prohibited from performing such operations on non-exempt patients. However, there is no indication in the affidavit that he intended to restrict his comments to hip replacements. Thus, while I am not prepared to find that the affidavit included false statements, it was nevertheless a selective

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presentation of Cambie Surgeries’ operations, which left the false and misleading impression that the clinic was in compliance with the MPA.

[748]Overall, I accept the defendant’s submission that Dr. Day was evasive at times during his cross-examination, and he was certainly argumentative at many other points. For instance, Dr. Day’s testimony on Cambie Surgeries’ payments to physicians out of its general revenue is implausible. His repeated reliance on his motivations for starting Cambie Surgeries and the SRC instead of directly answering questions are another example. When asked simply to confirm the address of Cambie Surgeries he answered by talking about his view of its importance. Another example is his testimony that IMAs at the SRC do not constitute a benefit under MSP which is directly contradicted by Cambie Surgeries’ Notice to Admit mentioned above. For these reasons I give less weight to these and other parts of Dr. Day’s evidence.

[749]As well, I have already addressed the relevance of the pecuniary interests of physicians affiliated with Cambie Surgeries, including Dr. Day, above. In accordance with my findings there, it is not an a priori reason to reject Dr. Day’s evidence, but only one factor to consider in weighing his evidence.

[750]Notwithstanding these problems I am required to consider the totality of

Dr. Day’s evidence. I can accept all of it, accept none of it or accept some of it. I do not conclude that all of Dr. Day’s evidence is to be given little or no weight, as urged by the defendant. Rather, I accept his evidence where it is otherwise corroborated with documentary evidence or testimony from other credible witnesses. However, where Dr. Day’s evidence is inconsistent with the evidence of other witnesses or documentary evidence I generally prefer the evidence of the other witnesses and documents.

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(ii)Other orthopedic surgeons: Drs. Costa, Douglas, Dvorak, Hollinshead, Masri, Nacht, Outerbridge, Penner, Regan, Reilly, Smit, Tarazi, Wing, Younger

[751]In addition to Dr. Day, 14 other orthopedic surgeons testified on behalf of the plaintiffs. Four of the surgeons also provided expert evidence: Dr. Bassam Masri, Dr. Alistair Younger, Dr. Kevin Wing and Dr. Robert Hollinshead. The expert evidence of these four surgeons is summarized elsewhere in this judgment. As well, the lay evidence of Dr. Hollinshead, who provided both expert and lay evidence, is not summarized here, since it concerned his practice in Alberta, a fact which makes it of minimal relevance to this litigation.

[752]Several of the surgeons were also treating physicians of either the patient plaintiffs or patient witnesses. Their evidence on the treatment of these individuals is summarized above.

[753]As mentioned elsewhere in this judgment, there is an increasing specialization and even sub-specialization of expertise among surgeons. This is especially evident in the backgrounds of the orthopedic surgeons who testified at trial. Areas of specialization that were represented included spines, hips and knees, shoulders, and feet and ankles. While the orthopedic surgeons predominantly practised in Vancouver and the Lower Mainland, Drs. Costa and Outerbridge practised, respectively, in Prince George and Kamloops.

[754]The following table summarizes the backgrounds of the orthopedic surgeons:

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