Cambie Surgeries Corporation v. British Columbia

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Cambie Surgeries Corporation v. British

Columbia (Attorney General),

2022 BCCA 245

Date: 20220715

Docket: CA47004

Between:

Cambie Surgeries Corporation, Chris Chiavatti, Mandy Martens,

Krystiana Corrado, Walid Khalfallah by his litigation guardian Debbie Waitkus,

and Specialist Referral Clinic (Vancouver) Inc.

Appellants

(Plaintiffs)

And

Attorney General of British Columbia

Respondent

(Defendant)

And

The Attorney General of Canada

Respondent

Pursuant to the Constitution Question Act

And

Dr. Duncan Etches, Dr. Robert Woollard, Glyn Townson, Thomas McGregor,

British Columbia Friends of Medicare Society,

and Canadian Doctors for Medicare

Intervenors

And

Mariël Schooff, Joyce Hamer, Myrna Allison,

and British Columbia Nurses’ Union

Intervenors

And

Constandina Bezic, William Currie, Barry Goss, Joan Hama,

Debby Harris, Jaspinder Johal, and Earl Vance

Intervenors

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 2

And

British Columbia Anesthesiologists’ Society

Intervenor

FILE SEALED IN PART

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Harris

The Honourable Madam Justice Fenlon

On appeal from: An order of the Supreme Court of British Columbia, dated

September 10, 2020 (Cambie Surgeries Corporation v. British Columbia

(Attorney General), 2020 BCSC 1310, Vancouver Registry Docket S090663).

Counsel for the Appellants,

(via videoconference):

D.G. Cowper, Q.C.

J.L. Francis

J.M. Kindrachuk

L. Abrioux, Articled Student

Counsel for the Respondent,

Attorney General of British Columbia,

(via videoconference):

J.G. Penner

J.D. Hughes, Q.C.

T.C. Boyar

Counsel for the Respondent,

Attorney General of Canada,

(via videoconference):

B. Wray

H.L. Davis

Counsel for the Intervenors,

A.M. Latimer, Q.C.

Dr. Duncan Etches, Dr. Robert Woollard,

Glyn Townson, Thomas McGregor,

British Columbia Friends of Medicare

Society, and Canadian Doctors for Medicare

(via videoconference):

Counsel for the Intervenors,

D.G. Knoechel

M. Freedman

Mariël Schooff, Joyce Hamer, Myrna Allison

and British Columbia Nurses’ Union,

(via videoconference):

Counsel for the Intervenors,

C. Dennis, Q.C.

R.L. Power

Constandina Bezic, William Currie,

Barry Goss, Joan Hama, Debby Harris,

Jaspinder Johal, and Earl Vance,

(via videoconference):

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 3

Representative for the Intervenor,

British Columbia Anesthesiologists’ Society,

appearing in person

R. Orfaly

(via videoconference):

Place and Date of Hearing:

Place and Date of Judgment:

Vancouver, British Columbia

June 14–18, 2021

Vancouver, British Columbia

July 15, 2022

Written Reasons by:

The Honourable Chief Justice Bauman and the Honourable Mr. Justice Harris

Concurring reasons by: (p.125, para. 371)

The Honourable Madam Justice Fenlon

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 4

Summary:

The appellants contend that certain provisions of the Medicare Protection Act,

R.S.B.C. 1996, c. 286 [MPA] are unconstitutional because they effectively prevent

patients in British Columbia from accessing private medical treatment that would

otherwise be available to them when the public system cannot provide timely

necessary care. They say the impugned provisions breach patients’ rights to life,

liberty, and security of the person under s. 7 of the Charter and are not saved by

s. 1. The appellants allege multiple errors of fact and law in relation to both the s. 7

and s. 1 analysis.

Held: Appeal dismissed. Chief Justice Bauman and Justice Harris would do so on

the basis that although the impugned provisions deprive some patients of their rights

to life and security of the person, they do so in accordance with principles of

fundamental justice. Although unnecessary to decide the case under s. 1, they agree

with Justice Fenlon that, even if the provisions breach s. 7, they are saved by s. 1.

Justice Fenlon, in concurring reasons, would also dismiss the appeal. She would

find that the provisions do deprive some patients of their rights to life and security of

the person in a manner that is not in accordance with the principles of fundamental

justice: the deprivations are grossly disproportionate. However, in her opinion, that

s. 7 breach is justified under s. 1 of the Charter.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 5

Table of Contents

Paragraph

Range

REASONS FOR JUDGMENT OF THE HONOURABLE

CHIEF JUSTICE BAUMAN AND THE HONOURABLE

MR. JUSTICE HARRIS:

[1] - [370]

INTRODUCTION

BACKGROUND

The Parties

[1] - [17]

[18] - [43]

[18] - [22]

[23] - [34]

The Statutory Scheme for Public Healthcare in British

Columbia

Wait Times and Priority Codes

THE TRIAL JUDGMENT

Deprivation of Section 7 Rights

The Right to Life

[35] - [43]

[44] - [94]

[46] - [59]

[52] - [53]

[54] - [54]

[55] - [57]

[58] - [59]

[60] - [79]

[70] - [76]

[77] - [78]

[79] - [79]

[80] - [93]

[82] - [82]

[83] - [85]

[86] - [90]

[91] - [93]

[94] - [94]

[95] - [98]

[99] - [154]

[99] - [106]

[107] - [118]

[119] - [154]

[127] - [144]

[145] - [153]

The Right to Liberty

The Right to Security of the Person

Causation

The Principles of Fundamental Justice

Arbitrariness

Overbreadth

Gross Disproportionality

Section 1

Pressing and Substantial Objective

Rational Connection

Minimal Impairment

Proportionality

Conclusion

ISSUES ON APPEAL

THRESHOLD ISSUES

The Scope of the Claim

The Standard of Review

Appellate Interference with the Judge’s Findings of Fact

Effects of a Duplicative Private System on Public Healthcare

Effects of a Duplicative Private System on Meeting Medical

Need

Pent-Up Demand

[148] - [151]

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 6

Complementary Services

Summary

[152] - [153]

[154] - [154]

[155] - [368]

SECTION 7: LIFE, LIBERTY, AND SECURITY OF THE

PERSON

Introduction

[155] - [161]

[162] - [232]

[204] - [205]

[206] - [210]

[211] - [222]

[223] - [224]

[225] - [229]

[230] - [232]

[233] - [243]

[244] - [260]

[261] - [265]

[266] - [368]

[270] - [304]

[305] - [309]

[310] - [319]

[312] - [314]

The Right to Life

Scope of the Claim

Clinical Significance

Urgent and Emergent Care

Triaging

Unavailability of Private Alternatives

Summary

The Right to Liberty

The Right to Security of the Person

Causation

The Principles of Fundamental Justice

Legislative Objective(s)

Arbitrariness

Overbreadth

Limiting Access to Private Care for Patients Waiting Past

Benchmarks

Limiting Delivery of Private Care by Physicians with

Excess Capacity

[315] - [319]

Gross Disproportionality

SECTION 1

[320] - [368]

[369] - [369]

[370] - [370]

[371] - [392]

DISPOSITION

REASONS FOR JUDGMENT OF THE HONOURABLE

MADAM JUSTICE FENLON

SECTION 1

[393] - [421]

[399] - [411]

[412] - [421]

[422] - [422]

Minimum Impairment

Proportionate Effect

DISPOSITION

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 7

Reasons for Judgment of the Honourable Chief Justice Bauman and the

Honourable Mr. Justice Harris:

INTRODUCTION

[1]

The appellants contend that certain provisions of the Medicare Protection Act,

R.S.B.C. 1996, c. 286 [MPA] are unconstitutional because they effectively prevent

patients in British Columbia from accessing private medical treatment that would

otherwise be available to them when the public system cannot provide timely

necessary care. They say the impugned provisions breach patients’ rights to life,

liberty, and security of the person under s. 7 of the Charter.

[2]

Two of the impugned provisions, ss. 17 and 18, prevent medical practitioners

enrolled in the Medical Services Plan (“MSP”) from billing patients any amounts for

their services beyond the rate paid by MSP (the ban on extra billing). The other

impugned provision, s. 45, effectively prevents the sale of private insurance covering

the same medical services as provided through MSP. The combined effect of these

provisions is to suppress the development of a parallel private medical system that is

duplicative of the public system for some surgeries and diagnostic tests.

[3]

The trial judge dismissed the claim, rejecting arguments advanced under both

ss. 7 and 15 of the Charter. The s. 15 claim is not at issue on this appeal.

[4]

In brief, the judge accepted that the impugned provisions deprived some

patients’ right to security of the person by preventing them from accessing private

care when the public system had failed to provide timely medical treatment. He

concluded, however, that this deprivation accorded with the principles of

fundamental justice. In his view, the impugned provisions were not arbitrary,

overbroad, or grossly disproportionate when measured against their purpose. His

articulation of the purpose of the MPA was important to his analysis. The judge

defined that purpose as twofold: to preserve a publicly managed and fiscally

sustainable healthcare system for British Columbia and to ensure that access to

necessary medical care is based on need and not an individual’s ability to pay. The

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 8

judge went on to find that, in any event, the impugned provisions were saved by s. 1

of the Charter.

[5]

The appellants’ position revolves around several principal themes. First, they

say the judge erred in his s. 7 analysis in a number of critical respects: He failed to

recognize that the rights to life and liberty of the person are engaged; he adopted too

high a threshold for the constitutional engagement of s. 7 rights; and he

misinterpreted and underestimated the data demonstrating the extent to which

patients were waiting beyond the benchmark for treatment. As a result, the

appellants say the judge operated with a diminished understanding of the nature and

scope of the harm suffered by patients, as well as the numbers of people affected by

lengthy wait times. This error fed into errors in his analysis of both the principles of

fundamental justice and s. 1.

[6]

Second, the appellants argue the judge inflated the true purpose of the

statutory scheme so as to predetermine his analysis of the principles of fundamental

justice. His articulation of the purpose of the MPA included an equitable principle

that the delivery of all medically necessary care in the province be based solely on

need and not the ability to pay. The appellants submit that when the proper purpose

is correctly identified as the preservation of a publicly managed and fiscally

sustainable healthcare system, the impugned provisions are not in accordance with

the principles of fundamental justice. The prohibition on private insurance is arbitrary

and does not advance the true purpose of the law; the provisions are overbroad; and

the impugned provisions’ effect on patients’ constitutional rights is disproportionate

to the proper purpose of the MPA.

[7]

Third, the appellants contend that once the correct s. 7 analysis is

undertaken, the impugned provisions are not demonstrably justifiable in a free and

democratic society. The appellants rely on the proposition that once a s. 7 breach

has been demonstrated, it will be only in exceptional circumstances that the law can

be saved by s. 1. They contend that the provisions cannot be saved under s. 1

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 9

because they are not minimally impairing and their harmful effects on patients are

not proportional to their salutary effects.

[8]

The core of the appellants’ argument is that the effective prevention of a

duplicative private system, when the public system is broken and has failed to

deliver on its promise of timely quality care, unjustly prevents individuals from using

their own resources to meet their healthcare needs. Individual rights are being

sacrificed on the altar of collective aspiration. This is fundamentally at odds with the

Charter, which has privileged individual rights over public imperatives. They contend,

in any event, that permitting parallel private care would act as a safety valve,

relieving the pressure on the public system without harming it.

[9]

The respondents say the judge did not fall into any of the errors alleged.

Importantly, they say the judge made a series of unassailable findings of fact that

have not been properly challenged on appeal. They contend that this Court should

defer to those findings. Principally, those findings concern the harmful

consequences of permitting duplicative private healthcare both to the equitable

principle of ensuring that necessary medical care is provided on the basis of need

and not ability to pay, and also to the provision of necessary medical treatment

within the public system. Both Canada and British Columbia argue that, even on the

narrow statement of purpose adopted by the appellants, the judge’s findings of fact

compel the dismissal of the appeal.

[10] Before turning to address these questions, a few preliminary comments are in

order. First, it is common ground that there is no freestanding constitutional right to

healthcare. It follows that the engagement of constitutional rights in the delivery of

healthcare flows from government action involving the public provision of healthcare.

[11] Second, we approach this case on the basis that it involves the constitutional

rights of patients. The respondents advanced the view that the case was really about

the financial interests and preferred business model of some physicians and private

clinics. We found this submission unhelpful. We see no reason to doubt the sincerity

of any of the appellants who believe that a parallel private healthcare system is

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 10

compatible with, and perhaps even beneficial to, a high-quality public system while

at the same time avoiding the breach of Charter rights.

[12] Third, we found the description of a possible duplicative private medical care

system functionally reserved for the “healthy and wealthy” at the expense of ordinary

British Columbians to be unhelpful. It is by no means clear that such a system would

be inaccessible to a significant proportion of British Columbians given the costs of

the types of procedures involved and the possibility of purchasing private insurance

to pay for them.

[13] Fourth, it is important to say something about what this judgment is and what

it is not. This is a review of a trial judgment to determine whether the judge made

reversible errors in reaching his conclusions. Those errors may relate to findings of

fact or questions of law. The question for us is not whether we agree with the facts

found by the judge. It is whether those findings depend on a legal error. We defer to

findings of fact if they were open to the judge on the evidence. In short, this

judgment is a review of the trial judgment for error. This appeal is not a second trial.

[14] Due to the limited nature of our review, this judgment cannot be read as if it is

the report of a royal commission into the merits of different ways to deliver

healthcare. Nor was the trial judgment a royal commission. We are not examining

what objectively would be the best, most efficient, or socially just means of delivering

healthcare to British Columbians. That is beyond our mandate and our expertise and

jurisdiction. What we say in this judgment does not address those questions. At

most, we examine the findings of the judge and test those findings against the

Charter. It is quite possible that public policy may be constitutionally compliant, yet

also be flawed when analysed from other perspectives.

[15] It is also important to remember that we are reviewing a trial record that

includes evidence relating to some aspects of healthcare policy and the workings of

the medical system at a particular period of time. Even since the trial completed,

much has changed. The facts as they stood at trial may well be significantly different

now. We take judicial notice of the crisis caused by the COVID-19 pandemic,

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 11

resulting in cancellation or postponement of elective surgeries and other procedures.

We are also aware of the current shortage of family doctors, which limits readily

accessible primary care. We point these issues out to highlight the continuously

evolving challenges facing our medical system, although they do not factor into our

analysis, which is limited to the record and issues before us.

[16] We turn now to the issues on appeal. We shall start by providing sufficient

background to set the issues in context beginning with an outline of the statutory

framework and the operation of the impugned provisions. We will then turn to an

analysis of the trial judgment to provide focus to the errors the appellants allege. We

cannot omit recognizing that the trial judge was faced with developing an immense

record over an extraordinarily lengthy trial including innumerable evidentiary rulings.

We are indebted to him for the diligence with which he developed a record capable

of being reviewed. This was an enormous judicial task that he undertook with

dispatch and care.

[17] For the reasons that follow, we would dismiss the appeal. We conclude that

the judge’s broad findings of fact about the harmful consequences of a parallel

private medical system to the public system were open to him. Those findings go a

long way to dispose of the constitutional issues raised at trial and on appeal. In our

view, the judge erred in finding the impugned provisions did not deprive some

patients of the right to life, and by underestimating the extent of the deprivation of

the right to security of the person. However, we do not think he erred in concluding

that any deprivations were in accordance with the principles of fundamental justice.

Accordingly, we conclude that the judge did not err in finding that s. 7 of the Charter

had not been breached. Even so, we approach the analysis of the principles of

fundamental justice somewhat differently from that of the judge and our colleague,

Justice Fenlon. In our view, it is not necessary to consider s. 1 of the Charter, but if it

were, we agree with the reasoning of our colleague.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 12

BACKGROUND

The Parties

[18] Cambie Surgeries Corporation (“Cambie Surgeries”) owns and operates

Cambie Surgery Centre (“CSC”), a private surgical clinic located in Vancouver,

British Columbia. Diagnoses and treatments (including operations) at CSC are

performed by independent physicians, who are not employees of Cambie Surgeries.

CSC’s patients pay Cambie Surgeries, which then compensates the physicians.

[19] Special Referral Clinic (Vancouver) Inc. (“SRC”) owns and operates a medical

clinic in Vancouver that provides expedited medical assessments and consultations

and arranges for diagnostic testing. SRC also refers patients to Cambie Surgeries

for surgical procedures.

[20] Chris Chiavatti, Mandy Martens, Krystiana Corrado, and Walid Khalfallah (the

“patient plaintiffs”) are British Columbia residents who gave evidence at trial

regarding their personal experiences in the public healthcare system.

[21] Throughout these reasons, Cambie Surgeries, CSC, SRC, and the patient

plaintiffs are referred to collectively as “the appellants”.

[22] The Attorney General of British Columbia (“AGBC”) stands in place of the

Medical Services Commission and the Minister of Health Services of British

Columbia. The Attorney General of Canada (“AGC”) was a party to the proceedings

pursuant to s. 8 of the Constitutional Question Act, R.S.B.C. 1996, c. 68.

The Statutory Scheme for Public Healthcare in British Columbia

[23] The focus underlying the action was the provision of certain types of

medically necessary care within the public system. The scope of the claim is a point

of contention between the parties. The judge found the claim was limited to elective

surgical and diagnostic procedures that are typically performed on a day-patient

basis (the type of services provided by private clinics). The appellants say the claim

was broader. We shall return to this issue later in the judgment.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 13

[24] For current purposes, it is sufficient to note that healthcare services are

delivered through various institutions, both public and private. These include public

hospitals and private facilities. Private facilities include doctors’ offices and private

clinics, such as Cambie Surgeries, which also provide publicly funded services in

some contexts. Public funding is a mix of fee-for-service paid to physicians through

MSP and grants to fund operating costs. Medical care in public hospitals is provided

by a mix of physicians and salaried staff, such as nurses and other professionals.

Almost all physicians are private actors who are reimbursed for providing necessary

medical services. Many procedures, especially more complex procedures, are

provided in publicly funded hospitals, even though physicians and surgeons are paid

on a fee-for-service basis through MSP.

[25] It is important to appreciate that medically necessary care refers to

procedures that are deemed to be medically necessary within the statutory

insurance scheme (MSP), which classifies these services as “benefits”. We may

from time to time describe them as “insured services”.

[26] The set of medical procedures covered by MSP as benefits is not universal,

and does not purport to be. There are many procedures that might colloquially be

thought of as medically necessary that are not covered. Indeed, much healthcare

(including most pharmaceuticals, physiotherapy, certain diagnostic procedures, and

dentistry) is not covered by MSP and must be privately funded, although some may

be available through other government programs. Further, not all medical

procedures classified by MSP as medically necessary are funded through MSP. For

example, WorkSafe BC funds many such procedures, often through contracts with

private clinics. Although this challenge was focused on some medically necessary

procedures, it did not capture all of them. As mentioned, the judge found that the

claim is limited to surgical and diagnostic services that are otherwise available in

private clinics: at para. 89.

[27] It is also important to recognize that the services that can be provided in

private facilities are influenced by professional regulatory bodies, including the

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 14

College of Physicians and Surgeons of British Columbia (the “College”). The College

maintains a list of all procedures that can be performed at each private surgical

clinic. As a result of the College’s rules, many medically necessary services can only

be provided in public hospitals. Private clinics generally only perform routine,

elective surgeries on a day-patient basis.

[28] The point of these comments is to show that the claim focuses only on certain

aspects of healthcare delivery in British Columbia. The healthcare system is

extraordinarily complex, consisting of an interrelated web of public and private

provision and funding. The judge’s reasons contain a detailed account of this

complexity, which figured importantly in his evaluation of the evidence.

[29] With that background in mind, the most important piece of provincial

legislation engaged in this appeal is the MPA, under which MSP is administered.

The purpose of the MPA, as set out in s. 2, is to “preserve a publicly managed and

fiscally sustainable health care system for British Columbia in which access to

necessary medical care is based on need and not an individual’s ability to pay”. The

proper interpretation of this purpose clause figures prominently in this appeal.

[30] As noted, MSP identifies medically required services (or benefits) and the

MPA regulates payment for these services, the status of physicians, and the

entitlement of British Columbia residents to enroll as beneficiaries under MSP.

Physicians may enroll in MSP. Enrollment of beneficiaries and physicians in MSP is

voluntary. Enrolled physicians are eligible to be paid by MSP for benefits provided to

beneficiaries based on the rates set out in a schedule approved by the Medical

Services Commission. In short, the scheme provides that beneficiaries may receive

defined medically necessary services from enrolled medical practitioners without

charge.

[31] Enrolled physicians are not permitted to engage in extra billing of any kind,

pursuant to ss. 17 and 18 of the MPA. The prohibition against extra billing captures

billing an amount greater than the schedule amount for a benefit and billing

additional amounts associated with the provision of the service, such as a facility fee

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 15

or charges for supplies. Services provided to non-beneficiaries, such as

non-residents, are not subject to the schedule, and physicians can charge any

amount for their provision, even if those services would be benefits if provided to a

beneficiary.

[32] Although enrolled physicians can “opt-out” of being paid directly by MSP and

instead receive payment from their patients, who are then reimbursed by MSP, very

few do so. In addition, physicians are not required to enroll in MSP. However,

beneficiaries cannot seek reimbursement from MSP for services provided by

unenrolled physicians, even if those services would otherwise be covered by MSP.

As a result, the vast majority of physicians in British Columbia are enrolled under the

MPA. Subsections 18(1) and (2) of the MPA bar unenrolled physicians from billing

beneficiaries more than the schedule amount for the provision of covered services if

those services are provided at a publicly-funded facility. Unenrolled physicians are

able to charge any amount for covered services provided at private facilities, unless

the service was contracted for by the PHSA or a regional health authority.

[33] Sections 17 and 18 of the MPA control the amount enrolled physicians may

charge for providing benefits under MSP. These are the means by which physician

billing practices are regulated. This limits the supply of private services by making

the delivery of medically necessary services in private facilities economically

nonviable for enrolled physicians. Regulation also extends to the demand side.

Section 45, effectively, prohibits the sale of private insurance for services that are

benefits under MSP.

[34] These provisions, the ban on extra billing and the prohibition on the sale of

private insurance, are the provisions the appellants say are unconstitutional. They

do not explicitly prohibit private healthcare but effectively prevent the emergence of

a duplicative private healthcare system in British Columbia by (1) making a private

parallel market economically nonviable; (2) discouraging the emergence of a private

market; and (3) making it more difficult to obtain necessary services privately: at

paras. 2028, 2043.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 16

Wait Times and Priority Codes

[35] A key factual issue at the heart of this case is the extent to which patients are

required to wait for certain scheduled surgeries and diagnostic procedures. This

matters because it is the consequences (or risk thereof) of lengthy waits for

medically necessary care that may engage the s. 7 interests.

[36] A key tool in British Columbia for recording wait times for scheduled surgeries

is the Surgical Patient Registry (the “SPR”).

[37] The Ministry of Health established the Provincial Surgical Advisory Council,

which implemented the Patient Prioritization System for scheduled surgeries in

2010. The system involves the use of priority codes to provide timely care based on

the severity of a patient’s condition. In 2015, the system was reviewed. The judge

described the objective of the review as follows:

[1298] Participants were reminded that the purpose of this review was to

establish the priority level and associated wait time target that is appropriate

for each patient diagnosis/condition from the point of view of the patient. The

target was described as the time beyond which patients presenting with

particular diagnosis/condition could suffer negative consequences. The time

frame associated with a diagnosis was described as the time within which

most patients in that diagnosis group should have their surgery.

[Emphasis added.]

[38] For non-emergent conditions, patients are typically referred to a specialist for

consultation. The time from referral to consultation is known as “Wait One”. Wait

One times are only recorded for those patients who proceed to surgery. As only a

minority of patients will proceed to surgery after consultation, the Wait One data is

not an accurate measure of the actual Wait One times. Because of this limitation, the

Wait One times in the SPR are not used to assess wait times in British Columbia.

[39] Decisions about whether to proceed to surgery are made by a surgeon in

consultation with their patient. If a patient proceeds to surgery, they will also have a

Wait Two time. Wait Two refers to the time between booking surgery and when

surgery occurs. For each patient, the surgeon selects a diagnosis from a

standardized list and assigns a priority code from 1–5. Each priority code has a

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 17

maximum acceptable Wait Two time, which is referred to as the “wait time

benchmark”. However, wait time benchmarks are not an absolute indicator of when

a particular patient will suffer harm. Rather, benchmarks represent an estimate of

when a patient presenting with that diagnosis may suffer negative consequences.

[40] It is helpful to outline the adult priority codes in British Columbia:

a) priority code 1 requires treatment within two weeks, and is used for

conditions that are acute or involve severe pain, have a risk of permanent

functional impairment, feature cancer/high risk of malignancy, or are time

sensitive;

b) priority code 2 requires treatment within four weeks, and is for conditions

that involve severe pain or are severe/progressive, or feature

cancer/suspected malignancy, or ‘moderate symptoms’;

c) priority code 3 requires treatment within six weeks, and is for conditions

that are benign or include moderate pain, functional compromise, cancers

that are slow growing or that are not malignant, or ‘stable symptoms’;

d) priority code 4 requires treatment within twelve weeks, and is for

conditions with moderate pain or moderate/benign/stable conditions, and

where malignancy/cancer is ruled out; and

e) priority code 5 requires treatment within 26 weeks, and is for

non-time-sensitive conditions and conditions that are mild/stable, have a

‘moderate’ impact on lifestyle, or feature benign tumours/masses.

[41] Actual wait times can be compared to wait time benchmarks to assess the

state of surgical wait times in British Columbia. In measuring compliance with the

benchmark times, the Ministry of Health compares the 50th and 90th percentile wait

times of completed surgeries against the benchmark for each priority code. For

example, in 2017, the 50th percentile wait time for priority code 1 (a two-week

benchmark) was 2.7 weeks and the 90th percentile was 10.1 weeks. However, it is

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 18

important to note that only limited inferences can be drawn from these statistics, as it

does not capture the full distribution and raw SPR data is not in the record.

[42] There is no dispute that many patients in most surgical categories are waiting

beyond the assigned benchmark. Some of those patients experience increased risk

of deterioration and reduced surgical outcomes.

[43] This SPR data does not capture unscheduled surgeries including emergent

procedures, but the evidence is clear that unscheduled urgent and emergent care is

provided in a timely manner.

THE TRIAL JUDGMENT

[44] At the outset, it is important to recognize the length and complexity of the trial.

The trial lasted 194 days. The evidentiary record consists of tens of thousands of

pages. The judge heard from multiple witnesses, including 17 patients, 36

physicians, 17 health authorities/ministerial agents, and 75 lay witnesses. The

evidence of witnesses was both expert and lay. There are 590 exhibits and 40

expert reports. The evidence canvassed a wide variety of issues including the

history of healthcare in British Columbia and Canada, the experience of other

jurisdictions in dealing with public and private provision of healthcare, the existence,

causes, and consequences of surgical wait times, the purpose and effects of the

impugned provisions, the experiences of patients and professionals in British

Columbia, and the potential consequences to the public healthcare system if the

impugned provisions were struck down and a duplicative private system were

permitted to exist. The judge had to make multiple evidentiary rulings dealing with,

among other matters, the admissibility of expert evidence. This had a significant

effect on shaping the evidentiary record. The judge had to evaluate and weigh the

evidence, including determining the weight to attach to the opinions of different

experts. He had to make findings of fact on myriad contentious issues. He had to

grapple with a plaintiffs’ case that shifted during trial. He distilled all of his analysis

into 880 pages of reasoning.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 19

[45] Given that the appellants have not alleged error in relation to s. 15, our

discussion is limited to the judge’s ss. 7 and 1 analyses.

Deprivation of Section 7 Rights

[46] The judge applied the two-step analysis, asking whether the appellants had

established a deprivation of s. 7 rights that was not in accordance with the principles

of fundamental justice.

[47] The judge addressed whether the appellants had established the impugned

provisions caused harm or risk of harm engaging the rights to life, liberty, or security

of the person: at para. 1573. Life is engaged where waiting for care leads to death or

increases the risk thereof; liberty is engaged by interference with patients’ rights to

make fundamental choices about their care; security of the person is engaged where

waiting leads to serious physical or psychological harm (or increases the risk

thereof): at para. 1633.

[48] The judge identified two evidentiary routes to showing a s. 7 deprivation: the

impugned provisions caused harm or the risk thereof either to an individual claimant

or to a class of persons that need not be before the court: at paras. 1636–1637. In

either case, expert evidence is required to demonstrate that the provisions caused

constitutionally significant harm. The judge found the threshold for engaging s. 7

rights was when the consequences of waiting become objectively serious or

“clinically significant”: at para. 1735, citing Chaoulli v. Quebec (Attorney General),

2005 SCC 35. The appellants provided general evidence as to when wait times may

become clinically significant: at para. 1639. There was no serious dispute that in

most surgical categories some patients wait beyond the benchmarks: at para. 1654.

[49] It is important to keep in mind the potential deprivation of a s. 7 right is

“caused by” the effect of depriving an individual of the opportunity to avoid the

consequences of waiting for treatment by accessing private care. That deprivation is

a consequence of the effects of the impugned provisions in inhibiting the

development of a private option to those who could afford to take it. Waiting per se is

not the deprivation. Rather, it is waiting beyond a certain point while being deprived

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 20

of a private option as a result of the effects of the impugned provisions. Often in this

judgment we will refer simply to wait times as a form of shorthand.

[50] In his assessment of whether the appellants established a s. 7 deprivation,

the judge made findings of fact about the causes of wait times and the significance

of wait time benchmarks, as summarized above. Numerous experts testified as to

the effects of increased wait times on clinical outcomes. It is important to stress that

the judge made findings of fact on the basis of what he had accepted as the

admissible evidence before him, as well as in the face of contested evidence.

[51] One point of contention between the parties is about the scope of the claim.

As this informs certain issues on appeal, particularly the s. 7 analysis in relation to

the right to life, it is useful to note the judge concluded that:

[89]

… 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.

The Right to Life

[52] While there was general evidence that waiting too long can lead to death, the

judge found no evidence that waiting for care had led to the death of anyone, or had

increased anyone’s risk of death (some patients had died, but their deaths were

unrelated to the wait time): at para. 1749. There was a consensus among the

experts that urgent and emergency care was provided in a timely manner: at

para. 1750.

[53] The judge concluded the evidence did not establish wait times increased

patients’ risk of dying: at para. 1760. He further reasoned that the right to life was not

engaged because private clinics were not equipped or certified by the College to

treat urgent patients: at para. 1761. The appellants challenge the finding that wait

times do not increase the risk of death and, on appeal, contend that the judge erred

in his conclusion that urgent cases are dealt with in a timely fashion.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 21

The Right to Liberty

[54] The judge found there was no evidence, nor allegation, that the impugned

provisions interfered with patients’ abilities to make fundamental choices about their

health: at para. 1765. The MPA does not restrict a patient’s choice of physician or

treatment and enrollment in MSP is optional. Further, the impugned provisions do

not prevent patients from purchasing private healthcare from unenrolled physicians

or outside Canada. Accordingly, the impugned provisions did not engage liberty

interests. The judge reiterated there was no freestanding constitutional right to

healthcare (let alone private healthcare) or economic advantage: at para. 1766.

The Right to Security of the Person

[55] The appellants focused on elective and scheduled surgeries, alleging that

lengthy wait times: (1) prolonged pain and suffering and the diminished quality of life

associated with the underlying condition; (2) caused permanent harm that could

have been avoided with timely care; and (3) caused psychological harm: at

para. 1770. The judge found the appellants could establish deprivation if they proved

the harm or increased risk thereof was caused by the wait or that the suffering

caused by the underlying condition was prolonged or exacerbated by the wait: at

para. 1779.

[56] The judge discussed several evidentiary issues regarding security of the

person. He found he could not presume harm from SPR data alone, as it does not

indicate the reason for delay or whether harm was suffered: at para. 1787. The

judge found medical expert evidence, demonstrating that the wait times were

clinically significant, was required to demonstrate harm or risk of harm (excluding

psychological harm): at para. 1788. For psychological harm, he found the harm must

be serious and not an ordinary annoyance, but that expert evidence was not

required given its subjective nature: at para. 1804. The judge found there was no

expert evidence to support claims that delayed treatment can lead to depression,

addiction, violence, or self-harm: at para. 1677. However, he found that waiting

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 22

beyond a certain period of time for certain patients would put them at increased risk

of physical harm: at para. 1707.

[57] The judge accepted that lengthy wait times engage the right to security of the

person for some patients. He accepted that some patients suffering from non-urgent,

deteriorating conditions waiting for elective surgeries do not receive care in a timely

manner. Based on expert evidence and lay evidence he accepted that some patients

waiting beyond their assigned benchmark for elective surgery faced increased risk of

deterioration and reduced surgical outcomes: at paras. 1881–1884. He found this

wait was clinically significant to their health and well-being.

Causation

[58] The judge then turned to whether the impugned provisions denied those

patients whose security interests were engaged the ability to access alternative

measures in order to alleviate or avoid the risk associated with waiting beyond their

wait time benchmarks in the public system. The judge found the provisions only

implicitly denied patients access, distinguishing Canada (Attorney General) v. PHS

Community Services Society, 2011 SCC 44 [Insite], Canada (Attorney General) v.

Bedford, 2013 SCC 72, and Carter v. Canada (Attorney General), 2015 SCC 5,

where the provisions explicitly prohibited certain activities: at para. 1903. The judge

concluded ss. 17 and 18(3) limited access to private care by making it less lucrative

for private clinics to provide services to MSP beneficiaries: at para. 1930. Section 45

likewise limited patients’ access to timely care to which they would have had access

if private insurance were available: at para. 1909. He concluded that the impugned

provisions were sufficiently connected to the harmful consequences of waiting.

[59] In conclusion, the judge accepted that the impugned provisions deprived

some patients of their right to security of the person by denying them the ability to

access timely private medical services where the public system cannot meet the wait

time benchmarks associated with the individual diagnoses assigned to them by their

treating physicians: at para. 1943.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 23

The Principles of Fundamental Justice

[60] The judge then turned to whether this deprivation was contrary to the

principles of fundamental justice because the impugned provisions are arbitrary,

overbroad, and grossly disproportionate to their purpose.

[61] The judge emphasized the importance of properly articulating the purpose of

the impugned provisions when assessing whether they accord with the principles of

fundamental justice: at para. 1946. The major point of contention was the scope of

s. 2 of the MPA, which reads:

2 The purpose of this Act is to preserve a publicly managed and fiscally

sustainable health care system for British Columbia in which access to

necessary medical care is based on need and not an individual's ability to

pay.

[62] The judge found the MPA generally, and impugned provisions specifically,

had two related purposes: (1) to preserve the public healthcare system for medically

necessary care; and (2) to ensure that access to necessary care is based on need

and not ability to pay: at para. 1972. He rejected the appellants’ interpretation of s. 2

as only referring to services within the public system: at para. 1979. He found their

proposed interpretation illogical, as it would mean that necessary medical care

would only be delivered without regard to ability to pay for patients who could not

afford private care: at para. 1996.

[63] The judge focused on ss. 17, 18(3), and 45, finding they served to restrict the

ability of enrolled physicians to render benefits privately: at para. 2028. The judge

found they were not blanket restrictions but rather suppression measures aimed at

discouraging the emergence of a parallel private market: at para. 2038. They had

the effect of: (1) making a private parallel market economically nonviable;

(2) discouraging the emergence of a private market; and (3) making it significantly

more difficult to obtain necessary services privately: at paras. 2042–2043.

[64] The bedrock of the judge’s principles of fundamental justice analysis was his

assessment of expert evidence about how the public system would be affected by

the emergence of a duplicative private system.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 24

[65] The judge noted the evidentiary challenges in assessing the likely effects of

permitting a duplicative private system. He also acknowledged the difficulty in

comparing healthcare systems in different jurisdictions. He noted that healthcare

systems are extremely complicated, organized on different principles, and often

reflect historical and institutional evolution within particular societies: at paras. 2091–

2170.

[66] The judge’s analysis rested on an exacting examination of the expert opinions

presented to him and the weight he placed on them. As to the connections between

the public and the private systems, the judge made findings of fact based on the

AGBC’s submissions:

[2277] The defendant’s rationales include the broad categories and sub-

categories below, as summarized by me:

a) The impugned provisions facilitate equity in terms of access to

necessary medical services, by preventing the following effects of

duplicative private healthcare:

• Diversion of resources, especially healthcare personnel,

from the public to the duplicative private system which

reduces capacity in the public system;

• Unavailability of physicians operating in the duplicative

private system to consult and provide other necessary care

in the public system;

• Enhanced difficulty with ensuring an adequate supply of

physicians in the public system;

• Increased difficulty with improving quality of care, including

timeliness, in the public system;

• Increased inequity where persons with the greatest medical

needs and from lower socioeconomic backgrounds would

not be able to access private healthcare or private health

insurance (due to lack of means or pre-existing conditions)

while wealthier and healthier individuals will be able to

purchase preferential treatment; and

• A lack of reduction in wait lists and wait times in the public

system and a potential increase in wait lists and wait times

due to a reduction in supply of healthcare providers in the

public system.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 25

b) The impugned provisions avoid the reduction in capacity in the

public system, which would occur with the introduction of a

duplicative system due to:

• Overall demand for healthcare in both the private and public

systems increasing; and

• Overall healthcare costs rising across the board in both

systems.

c) The impugned provisions prevent the rise of costs for maintaining

the same level of services in the public system, which would rise

with the introduction of a duplicative system due to:

• Competition between the public and duplicative private

systems over healthcare professionals;

• The need for regulation of the duplicative private system

and the fact that enforcement entails significant increases in

administration costs;

• Loss of federal funding under the CHA due to mandatory

and likely discretionary deductions for failure to comply with

the CHA criteria; and

• The effects of duplicative private healthcare on the entire

healthcare system, including its capacity to respond to

urgent and emergent cases as well as administer

preventative healthcare programs.

d) The impugned provisions prevent the introduction of perverse

incentives for physicians to prefer private pay patients and

manipulate wait lists in the public system.

e) The impugned provisions prevent the weakening in public support

for the public system due to uptake of duplicative private health

insurance by the wealthier and healthier segments of the

population.

f) The impugned provisions prevent the lower quality of care that

occurs in private for-profit medical facilities.

g) The impugned provisions prevent the emergence of a parallel

duplicative private healthcare system, which is unethical.

[67] The judge made several key findings related to matters on which there was

agreement between the experts:

a) all healthcare systems are complicated and not easily explained (at

para. 2282);

b) introducing duplicative private healthcare increases the overall demand for

health services (at para. 2283);

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 26

c) introducing duplicative private healthcare increases the overall costs for

health services (at para. 2287);

d) private healthcare has higher administrative costs than public healthcare

(at para. 2293);

e) private healthcare is predominately purchased by wealthier, healthier, and

better educated people (at para. 2295); and

f) people largely purchase private health insurance to get faster access to

healthcare services (at para. 2302).

[68] The judge also made several findings on issues where there was significant

disagreement between the experts regarding the hypothetical introduction of

duplicative private healthcare in British Columbia:

a) wait times would increase in the public system (at para. 2348);

b) physicians would prioritize patients in the private system over those in the

public system (at para. 2385);

c) regulation would likely be difficult given the fee-for-service model (at

para. 2386);

d) resources would be diverted from the public system to the private system

(at para. 2389);

e) demand for all healthcare services would increase, worsening access in

the public system (at para. 2398);

f) significant additional costs would be incurred (at para. 2449);

g) there would be a real risk of losing transfer funding (at para. 2462);

h) there would be a real risk of perverse incentives and unethical conduct (at

para. 2506);

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 27

i) popular support for public healthcare could be eroded, including the

willingness to fund the public system through taxation (at para. 2530);

j) there would be no change in the quality of medical services (at

para. 2552); and

k) price effects and increased wages for physicians would increase the price

of necessary medical services (at para. 2558).

[69] These findings were made in the context of his arbitrariness analysis but they

apply to a variety of issues.

Arbitrariness

[70] The judge found multiple rational connections between the provisions’ effects

and the MPA’s purposes and, accordingly, concluded the provisions were not

arbitrary: at para. 2662.

[71] The appellants argued there was no rational connection because a parallel

private system was compatible with a public system: at para. 2088. The judge

rejected much of their expert evidence on this point: at paras. 2019–2116.

[72] The judge also summarized the expert evidence about other jurisdictions

(United Kingdom, New Zealand, Ireland, Australia, and Québec) and their

experience with wait times and parallel private provision of healthcare. The point of

the analysis was to determine if the experiences of other jurisdictions could illustrate

that there was no rational connection between the purposes and effects of the

provisions: at para. 2258. The appellants placed great weight on the experience in

the United Kingdom. The judge concluded the United Kingdom experience was of

limited comparative value:

[2267] The plaintiffs in this case rely primarily on the example of the United

Kingdom. Indeed, the plaintiffs have emphasized that the system they

envision in British Columbia is more along the United Kingdom approach

where the private health insurance market is not subject to community rating

regulations but is also not heavily subsidized by the public system.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 28

[2268] In my view the plaintiffs fail to fully appreciate the differences between

the healthcare systems in the United Kingdom and Canada. In the United

Kingdom, the public NHS plan is comprehensive and covers most healthcare

services, including pharmaceuticals and dental care which are not covered

under MSP in British Columbia. For this reason, and others, very few NHS

beneficiaries have either supplementary or duplicative private health

insurance and, therefore, competition between the private healthcare system

and the NHS is limited. In contrast, supplementary private insurance in

Canada is significantly more prevalent given the narrow coverage under the

public plan to only medically required services. Therefore, as explained by

Professor Oliver, in Canada there is a greater risk of competition between the

private and public systems and the potential scope of the private insurance

market is greater.

[2269] Further, in the United Kingdom both financing and delivery of

healthcare are public. Physicians are either NHS employees or subject to

government controls over their practices through the capitation system. The

capitation payment system for family doctors requires the physicians to serve

a certain number of patients in their designated geographic area. Moreover,

specialists are NHS employees who are subject to contractual requirements,

including how much time they must devote to the public system before

serving private pay patients. As discussed previously, in British Columbia and

the rest of Canada, necessary medical services are publicly funded but

privately delivered. Physicians are not subject to any constraints in terms of

how they manage their practices. In British Columbia it is significantly

challenging to regulate how physicians spend their time including how they

allocate their time between the public and private systems to address

problems like wait lists in the public system. And, as will [be] seen below,

there is some history of doctors challenging government regulation of their

activities.

[73] The judge concluded a parallel private system in the United Kingdom had a

limited effect in reducing wait times: at para. 2263. He found that physicians in

Ireland had preferred their private patients to the point of breaching their obligations

to public patients: at para. 2265. From the judge’s perspective, the introduction of

parallel private insurance in Australia illustrated the risk of public practitioners

migrating from the public to the private system; thereby increasing wait times: at

para. 2265. Overall, the judge concluded the appellants had not demonstrated there

was no rational connection between the MPA’s purposes and its effect:

[2272] Overall, I conclude that the plaintiffs have not demonstrated that the

experiences in the five jurisdictions presented here demonstrate that there is

no connection or no rational connection between the purposes of the MPA

and its effects. In fact, I find that there is evidence here that supports the

defendant’s position that the introduction of private healthcare would

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 29

detrimentally affect the public system in British Columbia as discussed in

some detail below.

[74] Throughout much of his analysis, the judge grappled with the appellants’

contention that there was no evidentiary foundation for concerns about duplicative

private healthcare.

[75] We have already summarized the principal findings of fact above, but we

highlight some key findings here. Specifically, with respect to equitable delivery,

most of the experts agreed that private care primarily benefits the affluent and

healthy and that duplicative systems would likely exacerbate health and wealth

inequality: at paras. 2615, 2626. He accepted the evidence that socioeconomic

status was a significant determinant of health and that poor health status

disproportionately affects low-income individuals: at para. 2655. Further, even

assuming those needing the most care could afford private care, the private system

deprioritizes or refuses to treat the most complex cases, creating inequity by

excluding those with the greatest need: at para. 2632. The judge also found the

increased demand and costs of a duplicative system would undermine equitable

financing of care: at para. 2639.

[76] In summary, the judge found multiple rational connections between the

effects of the impugned provisions and the objective of ensuring medically

necessary care was delivered, accessed, and financed based on need and not

ability to pay: at para. 2661. Consequently, he concluded the deprivation of s. 7

rights was not arbitrary:

[2662] As can be seen above, there are multiple rational connections

between the effects of the impugned provisions and the interrelated purposes

of the MPA. Those purposes are to preserve and ensure the sustainability of

a universal publicly funded and managed healthcare system where access to

medically necessary services is determined on the basis of need and not the

ability to pay. As above, the combined effect of the impugned provisions is,

as described by the defendant, 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.

Therefore, I conclude that the plaintiffs have not established that the effects

of the impugned provisions bear no connection to their legislative purposes.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 30

[2663] In terms of equity, the evidence suggests that duplicative private

healthcare would create or exacerbate inequity in terms of access, utilization

and financing of necessary medical care. This is because duplicative private

healthcare would create a second tier of preferential healthcare services on

the basis of the ability to pay.

[2664] Further, the evidence also demonstrates that there are valid concerns

that duplicative private healthcare would have the effect of increasing

demand for healthcare as well as overall healthcare costs while reducing

capacity in the public system (among other things, due to diversion of human

resources to the private system). This in turn is likely to increase wait times in

the public system. In this regard, patients with lower incomes and with greater

healthcare needs who would depend on the public system would be worse off

as a result.

[2665] I also find that the evidence supports the defendant’s contention that

there are real concerns that duplicative private healthcare would create

perverse incentives for physicians to prioritize private pay patients to the

detriment of patients in the public system. This is amply demonstrated by the

experiences in other countries. Further, the evidence from British Columbia

suggests that duplicative private healthcare raises the likelihood of unethical

behavior by healthcare providers as well as situations of conflict between the

best interests of patients and the economic interests of their treating

physicians.

[2666] With respect to the rationale of preventing the erosion of public

support in the public system, I have found that the evidence is less

conclusive. However, there is some evidence to suggest that a potential long-

term effect of duplicative private healthcare is to undermine the willingness of

individuals who would benefit most from the private system to fund the public

system through taxation. While the likelihood of this result is less certain,

nonetheless, it cannot be said that there is no rational basis for the

defendant’s concern in this regard.

[2667] On the other hand, I have found that the evidence does not support

the defendant’s assertions regarding the risk of diminished quality of care if

duplicative private healthcare is allowed in British Columbia. The evidence

from the United States certainly demonstrates there is a concern with private

care and quality of care. But the evidence from British Columbia

demonstrates this concern has not arisen in this province.

[2668] For completeness, I point out that I doubt Professor Kessler’s

proposed “main effect” of private duplicative healthcare will free up resources

in the public system because I have found support for all four of his

hypotheses.

[2669] The result is that the deprivation of the right to security of the person

of some patients waiting for elective surgical care in the public system

beyond their priority code wait time benchmarks is not arbitrary. The plaintiffs

have not been successful on this principle of fundamental justice under s. 7 of

the Charter.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 31

Overbreadth

[77] The judge found the provisions were not overbroad, as it was rational to

restrict private insurance and extra billing to preserve a public system based on

need. The appellants had argued the impugned provisions were overbroad because

they prohibited physician activities that bore no connection to preserving the public

system: at para. 2673. Based on other jurisdictions’ experiences, the judge rejected

the argument that a private system can exist without interfering with the public

system and found it was rational to suppress a private system: at para. 2680.

[78] The appellants had also argued the limitations on surgeon activities after they

had fulfilled all of their allotted operating room time in the public system were

overbroad: at para. 2681. The judge rejected this argument, finding it ignored the

MPA’s objective of preserving a system based on need: at para. 2687. The

provisions had evolved over decades in response to physician billing practices and

were not a blanket prohibition against speculative harms: at paras. 2689–2693. The

judge found that there were issues in terms of operating room availability, but that

performing surgery in public operating rooms was a minority of the services provided

by surgeons (the most significant service being consultations): at para. 2703. The

judge also found that restricting surgeon activities beyond their allotted operating

room times was rationally connected to the preservation of the public system based

on need: at para. 2708.

Gross Disproportionality

[79] The judge found the provisions were not grossly disproportionate to the

objective of preserving a healthcare system based on need. There was no evidence

the provisions had lethal outcomes or affected patients in need of urgent care. The

evidence showed that urgent patients received timely care and that the wait time

issues primarily concerned patients with non-life-threatening conditions: at

para. 2757. The judge found that, while some private patients experienced

symptoms that were causally connected to their excess wait times, the appellants

had not established that those symptoms exceeded the ordinary pain, stress, and

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 32

inconvenience experienced by all people waiting for care: at para. 2772. He

concluded the wait times were not disproportionate to the purpose of the impugned

provisions.

Section 1

[80] The judge concluded that, even had there been a breach of s. 7, the

impugned provisions are justified under s. 1 of the Charter: at para. 2877.

[81] The judge rejected the argument that the analyses under s. 7 and s. 1 were

effectively the same, noting two important distinctions. First, the onus is on the

claimant to establish a breach of s. 7 and on the government to establish that any

breach is justified under s. 1. Second, the court weighs the societal benefits and

broader effects of the law on society at large against the deprivation of the claimant’s

rights in the s. 1 analysis and does not do so under s. 7: at para: 2887–2888.

Pressing and Substantial Objective

[82] The judge found the MPA’s objectives were pressing and substantial:

para. 2902. He noted that preserving and ensuring the sustainability of the universal

public healthcare system, as well as ensuring that all necessary medical care is

funded and delivered based on need and not the ability to pay, were legitimate

government interests as well as expressions of the foundational principles

underlying universal healthcare in Canada: at para. 2902.

Rational Connection

[83] The judge found there was a rational connection between the impugned

provisions and their legislative objectives. He found a real risk that a duplicative

private system would result in reduced capacity and increased wait times in the

public system, undermining the legislative objectives of sustaining the universal

public system: at para. 2904.

[84] The judge found the impugned provisions furthered the objective of ensuring

that access to necessary medical services is based on need and not ability to pay by

discouraging the emergence of private healthcare where access to necessary

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 33

services is based on the ability to pay (including the possibility of “queue jumping”).

He also found there was a real risk that healthcare providers would prioritize private

patients at the expense of public patients if the impugned provisions were struck

down: at para. 2905.

[85] Bearing in mind the high degree of deference owed to government, the judge

found it rational for the government to implement policies that sought to minimize the

risk of diminishing public support for the public healthcare system in order to

preserve the universal public system and ensure its sustainability. He found the

impugned provisions were inherently prospective and based on a risk assessment

that is the prerogative of government, not the courts: at para. 2907. The judge

supported his conclusion on the virtually unanimous opinions of the experts

(including those of the appellants’ experts) that the introduction of duplicative private

healthcare would not decrease—but might actually increase—wait times in the

public system: at para. 2908.

Minimal Impairment

[86] Bearing in mind the high degree of deference owed to government in

regulating healthcare, the judge found the impugned provision interfered with s. 7

rights as little as possible: at para. 2922.

[87] The appellants had argued the impugned provisions were not the

least-impairing means of maintaining a viable public healthcare system in which

access to care is based on need and not ability to pay. The judge found the

concerns of equitable access and perverse incentives with duplicative private

healthcare were supported by the evidence: at para. 2913. He, therefore, rejected

the appellants’ argument, due to the fact that the impugned provisions discouraged a

private system, but did not act as a blanket ban on private healthcare: at para. 2911.

The impugned provisions do not prohibit enrolled physicians from providing care in

private facilities, as long as they do not charge more than the MSP tariffs. Nor do

they prohibit unenrolled physicians from providing private care in private facilities

and charging however much they see fit.

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 34

[88] He rejected the appellants’ alternative approach as being feasible in British

Columbia—an approach akin to the United Kingdom’s that requires doctors to

provide a minimum number of hours in the public system before being able to

provide private care—as British Columbia physicians are overwhelming not

employed by the health authorities or Ministry of Health: at para. 2916. Further, the

judge found the evidence from other jurisdictions (including Québec with

post-Chaoulli reforms) showed a minimum-hours regulation has been ineffective and

extremely challenging to enforce: at para. 2917.

[89] The judge also noted that, even if perfectly implemented, such a regulation

would not address the impact on equitable access through the creation of a private

healthcare system based on ability to pay or the impact on increased wait times in

the public system: at para. 2918.

[90] The judge found the respondents had shown the Legislature chose a

reasonable option to address a complex social issue: at para. 2919.

Proportionality

[91] The judge found the effects of the impugned provisions to be proportional to

their societal benefits of preserving the universal public system and ensuring that

access to care is based on need and not the ability to pay.

[92] The appellants had argued the physical and psychological suffering and risk

of death outweighed whatever benefit the impugned provisions had for the

healthcare system as whole. The judge rejected this argument, finding no evidence

the impugned provisions caused serious psychological suffering: at para. 2924.

While there was evidence of lengthy wait times, the judge found there was no

evidence that a duplicative private healthcare system would shorten wait times: at

para. 2927.

[93] The judge concluded the benefits were substantial and the provisions were

essential to preserving the public healthcare system and ensuring that access to

necessary care is based on need and not ability to pay. He found the Legislature

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 35

was entitled to best determine how to balance the life and security interests of all

patients who have competing need for limited healthcare resources: at para. 2931.

Conclusion

[94] As a result of the foregoing, the judge dismissed the claim.

ISSUES ON APPEAL

[95] The appellants allege multiple errors of fact and law in the judge’s analysis.

For the most part, they accept that the judge stated the tests and principles correctly,

but say he erred in the application of those tests and principles. They contend:

1.

The judge erred in his analysis of s. 7 deprivations concerning:

(a) the right to life because he:

(i) required evidence that delay caused the death of specific

patients; and

(ii) failed to appreciate that SPR data included procedures

involving risk to life that could be performed in private clinics;

(b) the right to liberty by finding that accessing timely necessary care

did not engage this right;

(c) the right to security of the person:

(i) by determining that harm had to be clinically significant; and

(ii) by failing to find that any wait beyond a benchmark caused

harm.

2.

The judge erred in his application of the principles of fundamental

justice because he:

(a) misinterpreted the legislative objective of the MPA;

Cambie Surgeries Corporation v. British Columbia (Attorney General) Page 36

(b) considered irrelevant factors in relation to arbitrariness (ethical

concerns, political factors, theoretical concerns);

(c) misdirected himself on overbreadth by:

(i) focusing on broad societal impacts rather than the patients

who were deprived of their rights; and

(ii) failing to recognize that prohibiting patients from accessing

surplus surgical capacity is not connected to protecting the

public system;

(d) failed to find gross disproportionality by:

(i) understating the scope and scale of harms patients suffered

while waiting;

(ii) assuming suffering is an inevitable feature of a public

system; and

(iii) considering the societal interest in public healthcare, which

is properly addressed as part of the s. 1 analysis;

3.

The judge erred concluding the impugned provisions would have been

justified under s. 1. Specifically, he erred:

(a) in law by deferring to prohibitory legislation that supresses

otherwise lawful conduct (the MPA);

(b) in fact and law by finding that the impugned provisions minimally

impaired patients’ s. 7 rights;

(c) in fact by finding that private healthcare threatens the

sustainability of public healthcare; and

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(d) in mixed fact and law by failing to find that the government’s

funding priorities deprive patients of their s. 7 rights without

promoting an offsetting constitutional right or providing a benefit,

other than the equal imposition of suffering on all patients.

[96] Although we have listed the alleged errors, we have not found it convenient to

analyse them seriatim. Rather, we have addressed the broad themes in issue in a

manner that encompasses the specific points raised. We begin with a discussion of

the scope of the claim and the standard of review. At the outset, we address the

judge’s findings of fact about the systemic consequences to the public system of

allowing the emergence of a parallel private system. We have addressed the

deference owed to those findings early in the analysis because they inform many of

the more specific issues related to the principles of fundamental justice and s. 1.

[97] We then turn to deal with issues arising in connection with s. 7, beginning with

the alleged errors in the judge’s conclusions about the infringements of the rights to

life, liberty, and security of the person. In this context, we address the errors alleged

relating to the threshold for infringement and the evidence necessary to support an

infringement. We conclude by addressing the errors alleged in relation to the

principles of fundamental justice, in particular the errors alleged in relation to the

definition of legislative objective, arbitrariness, overbreadth, and gross

disproportionality.

[98] Having concluded the judge did not err in finding no breach of s. 7 of the

Charter, we do not separately analyse s. 1, but adopt the reasoning of our colleague,

Justice Fenlon.

THRESHOLD ISSUES

The Scope of the Claim

[99] The judge treated the appellants’ claim as confined in scope to those

procedures which the College had authorized to be performed in private clinics.

Those procedures principally consist of routine elective and scheduled day

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surgeries, including orthopedic procedures such as hip and knee replacements,

cataract surgery, and certain diagnostic procedures, such as colonoscopies.

Accordingly, the judge’s assessment of the constitutional issues focused primarily on

those types of procedures. He did not focus on more complicated, emergency, or

urgent procedures that cannot currently be provided in the private system: at

paras. 72–90.

[100] The judge’s understanding was that over the course of trial, the scope of the

claim was clarified and the factual foundation was reframed. The judge described

this shift as follows:

[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.”

He observed that on the face of the pleadings the claim appeared to be directed at

the provision of all medically necessary services covered under MSP.

[101] The judge then said:

[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.

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[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 services with a

diagnostic function, like colonoscopies, are captured in the impugned

provisions but diagnostic imaging is not (2018 BCSC 1141 at para. 50).

…

[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.

[Emphasis added.]

[102] With respect to the judge, we conclude that he narrowed the scope of the

claim more than was justified in the circumstances. It is certainly true that the

framing of the claim appears to have shifted throughout the trial. It is also true that

the primary focus of the case and the bulk of the evidence was about the kinds of

surgical and diagnostic services currently available at private clinics.

[103] On day 169 of trial, a discussion of the scope of relief sought arose because

the AGBC contended that the line of questioning of a witness suggested a narrower

claim than was pleaded. The point turned on whether the relief sought involved

striking down the impugned provisions in their entirety or declaring them

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unconstitutional only to the extent that they interfered with the relevant Charter

rights. The appellants asserted that the case was exclusively focused on scheduled

surgeries across all priority codes, but did not relate to medically necessary services

provided by general practitioners. They did not limit the case further. There is no

limitation to certain procedures or the types of procedures currently able to be

performed in private clinics.

[104] In this exchange, counsel did not clarify whether diagnostic services falling

within the priority codes were within the scope of the claim. This issue resurfaced in

final argument on day 183, when the scope of the claim was discussed in passing.

The appellants made it clear that the claim involved diagnostic procedures falling

within the scope of surgical services. We can see nothing in that discussion to

suggest that the diagnostic services referred to were only those otherwise available

in private surgical clinics.

[105] In our opinion, the judge erred in concluding that the appellants’ claim was

limited to surgical and diagnostic services that are otherwise available in private

surgical clinics. While that may have been a primary focus of the claim, it was not so

limited. The list of procedures that can be performed at private clinics as a practical

matter is not static; it depends on many factors including College approval, financial

viability, and operational capacity. Presumably, the list could expand if the impugned

provisions are struck down.

[106] Accordingly, we conclude the claim relates to diagnostic services and

scheduled surgeries across all priority codes. As a matter of scope, it is not

restricted to only those procedures currently approved by the College to be

performed in a private clinic. Having said that, we recognize that whether a

procedure is of a type that could in principle be performed privately is a relevant

evidentiary matter in proving deprivation and causation because the case turns on

the proposition that the breach arises from the denial of the opportunity for some

individuals to avail themselves of treatment that would otherwise be available, but for

the effects of the impugned provisions.

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The Standard of Review

[107] Another threshold issue raised by the parties in this appeal is the applicable

standard of review. The appellants submit the scope and application of the Charter

provisions are questions of law, reviewable on the correctness standard. They also

say many critical findings of fact stemmed from legal error and, accordingly, are not

owed deference.

[108] It is well established that errors of law are reviewed on a standard of

correctness, while errors of mixed fact and law or pure fact are subject to a standard

of palpable and overriding error. Moreover, a judge’s assessment and weighing of

the evidence, including social science evidence, is a finding of fact entitled to

deference on appeal: Housen v. Nikolaisen, 2002 SCC 33 at paras. 22–23; Bedford

at paras. 48–49.

[109] The primary disagreements between the parties are, first, what is the proper

standard of review for factual findings that can be “traced to a legal error” and,

second, what is the standard of review to be applied to the “scope and application”

of a Charter provision?

[110] The appellants say alleged factual errors can be traced to the judge’s legal

error in adopting “clinically significant” as the threshold for the deprivation of life and

security of the person, and that error led the judge to overlook relevant evidence. As

a result, they ask this Court to review that evidence and reach different conclusions

to those of the judge.

[111] The appellants also say the judge misdirected himself in the application of the

law, by misconstruing which findings of fact pertained to which legal issues.

Specifically, they take issue with the judge’s determination that detrimental effects to

the public healthcare system only needed to be established as a theoretical concern

to healthcare systems generally, rather than to British Columbia’s public healthcare

system specifically. Accordingly, they ask this Court to review those finding to

determine whether the misapprehension caused the judge to ignore material

evidence or rely on irrelevant evidence.

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[112] Apart from the above explanation, the appellants do not specifically identify

how each of their grounds of appeal should be characterized for review purposes.

[113] The respondents submit that the appellants attempt to greatly oversimplify the

standard of review analysis by advocating for correctness review of all alleged

errors. The respondents contend that only two of the alleged errors of statutory

interpretation are errors of law reviewable for their correctness: whether the judge

(1) misinterpreted the legislative purpose of the MPA and; (2) erroneously read an

objective of equitable access to all healthcare into the statutory scheme. The

respondents submit that the remainder of the alleged errors are questions of mixed

fact and law attracting a deferential standard of review, as the appellants allege that

the application of a legal test should have resulted in a different outcome.

[114] The respondents also submit that it is not the case that findings of fact

“stemming” from legal error are reviewed on the correctness standard. They say the

appellants’ position relies on a misinterpretation of Housen, which finds no support in

the jurisprudence. The appellants seek to employ a subtle principle recognized in

Housen as a sword to strike down factual findings without first having established

palpable and overriding error. The respondents argue that Housen is clear that the

application of a legal standard to a set of facts is a question of mixed fact and law

warranting deference. Accordingly, the appellants’ contention that both the scope

and application of a Charter provision attract correctness review is unfounded.

[115] We acknowledge that in Housen, the majority stated that less deference is

required where an erroneous factual finding of a trial judge may be traced to an error

in the judge’s characterization of the legal standard: at para. 33. But the scope of

this principle is narrow. It applies where a factual conclusion is drawn on the basis of

a mischaracterization of the proper legal test to be satisfied. In that case, the factual

conclusion (that the individual in question was part of the “directing mind” of a

company) was readily traceable to an error of law (what was required for an

individual to be properly identified as a “directing mind”), which was distinct from the

mixed question of law and fact (whether the facts satisfied the legal standard). The

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applicable standard of review with respect to the conclusion about being a directing

mind was correctness because that ultimate factual conclusion was clearly tainted

by the mischaracterization of the legal standard to be applied: Housen at paras. 34–

36.

[116] Thus, correctness review applies where an error of fact can be clearly

attributed to the application of an incorrect legal standard, the failure to consider a

required element of a legal test, or some other error in principle. However, appellate

courts must be careful in applying this principle, as it is often difficult to extricate the

legal principle from the facts in evaluating the application of a legal standard:

Housen at para. 36.

[117] Accordingly, if the trial judge is found to have mischaracterized the legal

standard to be applied, failed to consider a required element of that standard, or

committed some other clear error in principle, factual conclusions which can be

clearly traced to that error may be reviewed on a correctness standard, if the legal

error can readily be extricated from the application of the law to the facts. Otherwise,

conclusions of mixed fact and law are subject to the more deferential standard of

review. We approach our task with this framework in mind.

[118] During the course of his analysis, the judge made many findings of fact about

the operation of the public healthcare system, the effects on patients of waiting for

procedures, the causes of wait times, and, importantly, the likely effects of allowing a

duplicative private system on the public healthcare system and the delivery of

medically necessary care on the basis of need and not the ability to pay. In our view,

for the most part, the judge’s findings are free standing and not contaminated by

legal error. They are reviewable on a palpable and overriding standard.

Appellate Interference with the Judge’s Findings of Fact

[119] The judge made multiple findings of fact about the connections between the

public provision of necessary medical care and the consequences of allowing a

private healthcare option for elective day surgeries. Those findings are of critical

importance to the judge’s analysis of the principles of fundamental justice and

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whether the impugned provisions can be justified under s. 1. We have summarized

those findings above.

[120] Consequently, we think it useful, before turning to the analysis of the

remaining issues on appeal, to address whether these findings are vulnerable to

appellate interference. In approaching this question, we must be mindful of the

deference owed a trial judge’s findings of fact.

[121] In this case, the appellants attempt to avoid many of the findings of fact about

the connections between a public and private system. In some instances, they

suggest the facts are contaminated by an underlying legal error. In others, they

suggest that the findings are irrelevant to the true legal question. In yet other cases,

they argue that the findings are plainly wrong and contrary to the evidence or that

there was no proper evidentiary foundation for the conclusions reached.

[122] It is impossible to detail the specifics of these allegations here. To do so

would be to lose the forest for the trees. But, in broad response to these arguments,

we are persuaded that the judge’s findings of fact were open to him on the record.

This is particularly so in relation to the deleterious consequences for the public

system and the objective of providing necessary medical care on the basis of need

and not the ability to pay of permitting the development of a parallel duplicative

private system. In general terms, we are not persuaded that the judge made the

systematic errors alleged. In this sense, we are of the view that much of the thrust of

the appellants’ case amounted to rearguing the case at trial.

[123] We must not lose sight of the context in which the judge had to reach his

conclusions of fact. He was faced with an extraordinary amount of expert and lay

evidence. He had to determine the admissibility of expert opinion. He had to weigh,

evaluate, and assess the opinions before him. He was invited to engage in a

comparative analysis of a significant number of other healthcare systems in order to

draw conclusions about the likely effects on the healthcare system in British

Columbia of allowing a private option.

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[124] The judge’s analysis is canvassed over hundreds of pages and displays

meticulous attention to detail. Most importantly in our view, the judge made findings

about the weight he could place on certain experts’ opinions and made findings in

relation to contested issues that were responsive to the issues presented by the

parties. In particular, the judge broadly accepted expert evidence that the

development of private healthcare would be detrimental to the provision of the same

procedures within the public system, as well as on the provision of necessary

medical care on the basis of need and not the ability to pay.

[125] The judge’s conclusions also rested on the rejection of the opinion evidence

provided by the appellants’ principal expert (Professor Kessler) on these issues. The

appellants argue that the judge erred in his rejection of that evidence. But the fact is

that the judge gave detailed reasons for his rejection. The appellants have not made

a concerted effort to demonstrate that those conclusions rest in some way on legal

error. Rather, they suggest that the judge was wrong to exclude certain expert and

other evidence or to give it little weight. This amounts to rearguing the case at trial. It

is not our task to reweigh the evidence or revisit the judge’s rulings on the

admissibility of certain evidence in the absence of a clear allegation of error.

[126] Moreover, in our view, as a general proposition, the findings of fact about the

connections between a public and private system and the possible effects of

permitting a duplicative private system are not dependent on, or contaminated by,

legal principle. They are freestanding findings about purely factual questions that

can be applied to resolve the legal issues. As a result, the question to be addressed

in this section is whether the critical findings rest on palpable and overriding error.

We shall address the question whether the findings were properly applied to the

relevant legal question later.

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Effects of a Duplicative Private System on Public Healthcare

[127] A useful summary of the judge’s critical findings regarding the potential

effects of a parallel private system is found in his discussion of arbitrariness: