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: