Privately Funded Health Care Prohibition: Supreme Court Of Canada Dismisses Appeal

• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Food, Drugs, Healthcare, Life Sciences
• Author: Dana Siddle, Jennifer K. Choi and Milica Pavlovic
• Published date: 02 May 2023

Supreme Court of Canada Dismisses Leave to Appeal

In a previous article, we discussed developments in Canada's health care sector, including the BC Court of Appeal's decision in Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245 [Cambie], which upheld the prohibition on privately funded health care in BC. In a final attempt to overturn this prohibition, Cambie Surgeries Corporation ("Cambie") applied for permission to appeal this decision to the Supreme Court of Canada (the "SCC").

On April 6, 2023, the SCC ruled, without giving reasons, that it would not hear the appeal, effectively upholding the BC Court of Appeal's decision. The SCC's ruling is a decisive conclusion to this decade-long battle between the proponents of a parallel privately funded health care system and the defenders of Canada's fully publicly funded health care model.

The last time the SCC had the opportunity to make a ruling on the constitutionality of privately funded health care in Canada was in Chaoulli v. Quebec (AG), 2005 SCC 25. In Chaoulli, four of the seven Justices held that, in light of the long hospital wait times in Quebec, Quebec's prohibition on private medical insurance was unconstitutional under Quebec's Charter of Human Rights and Freedoms. However, Deschamps J., who was the fourth member of the majority, declined to making a finding with respect to whether the prohibition also violated the Canadian Charter of Rights and Freedoms (the "Canadian Charter"),¹which would have had implications for health care systems in other provinces and territories. The Court's split decision on the constitutionality with respect to the Canadian Charter left the question of how to deal with privately funded health care in the hands of the legislatures.

Accordingly, the SCC's dismissal of the Cambie appeal appears to further signal that Canada's apex court is deferring the issue of medical wait times to the...