B.C. Court Of Appeal Affirms Constitutionality Of Ban On Private Insurance For Provincially Covered Healthcare

• Published date: 24 August 2022
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Insurance Laws and Products, Trials & Appeals & Compensation
• Law Firm: Langlois Lawyers, LLP
• Author: Mr Sean Griffin and Véronique Roy

On July 15 of this year, in Cambie Surgeries Corporation v. British Columbia (Attorney General), the British Columbia Court of Appeal affirmed a decision of the British Columbia Supreme Court recognizing the constitutionality of legislation banning private insurance for healthcare covered by the public plan under section 7 of the Canadian Charter of Rights and Freedoms.

Background

The plaintiffs, who are patients in British Columbia and medical clinic operators, challenged the constitutional validity of three provisions of British Columbia's Medicare Protection Act. Those provisions prohibit physicians enrolled in the Medical Services Plan from charging their patients more than is paid by the public plan. They also prevent the sale of private insurance for services covered by the public plan.

The Supreme Court of British Columbia who heard the case found that the impugned statutory provisions did not infringe the right of the individual to life and liberty protected by the Canadian Charter of Rights and Freedoms. However, he accepted that those provisions infringed some patients' right to security "by preventing patients from accessing private medical treatment that would otherwise be available to them when the public healthcare system cannot provide timely care."¹ Nonetheless, the trial judge found that the plaintiffs had not succeeded in showing that the infringement did not accord with the principles of fundamental justice. Having so found, the judge dismissed the plaintiffs' claim.

Judgment of the British Columbia Court of Appeal

The Court of Appeal began its analysis of the alleged violation of section 7 of the Charter, the right to life, liberty and security of the person, by pointing out that this challenge was inspired by the 2005 Supreme Court of Canada decision in Chaoulli. For two reasons, the Court of Appeal was of the opinion that that decision did not have binding effect with respect to this case: (1) there is no consensus in Chaoulli regarding the violation of section 7 and (2) the section 7 test has evolved since 2005.

The right to life

In the opinion of the Court of Appeal, in order for there to be a violation of the right to life, the appellants had to prove that the impugned statute imposed death or an increased risk of death on the person, either directly or indirectly.²

Quoting the approach taken by the judge of the Supreme Court of British Columbia with approval, the judges of the Court of Appeal were of the opinion that the plaintiffs could prove such a violation by two methods: (1) the effect of the government action or the law was to impose death or an increased risk of death on...