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Court Upholds Medicare

Updated: Sep 20, 2022

Today, the BC Court of Appeal unanimously dismissed the appeal in Cambie Surgeries Corporation v. British Columbia (Attorney General), upholding the outcome of the trial judgment and finding that the extra-billing ban and the private-insurance ban do not violate the Charter.

Chief Justice Bauman and Justice Harris found that the laws engaged the rights to life and security of the person of some patients. But they concluded that the laws engagement of those rights was in accordance with the principles of fundamental justice. The fundamental purpose of the Medicare Protection Act is to ensure that access to necessary medical care for all insured beneficiaries is based on need and not an individual’s ability to pay. The purpose is realized through the preservation of a publicly managed and fiscally sustainable healthcare system.

The laws are not arbitrary because duplicative private healthcare in British Columbia would harm the public system. With duplicative private healthcare, wait times in the public system would increase. Costs would also increase and this would lead to service cuts in the public system. A duplicative system would also create a risk of perverse incentives, unethical conduct, and erode popular support for public health care.

The laws were not overbroad for similar reasons and also because any private care undermines the objective of ensuring that medical care is available based on need and not ability to pay.

The laws were not grossly disproportionate because although the laws increase risk of harm for an unknown number of individuals, by an unquantifiable degree, the reality is there are finite public resources which must be allocated among competing priorities and the system protects against the risk for everyone, including the most vulnerable. It is in keeping with society's foundational norms to prioritize a needs-based model.

Justice Fenlon found that the laws engaged the rights to life and security of the person of some patients in a manner that was grossly disproportionate. She nevertheless, upheld that infringement under s. 1 of the Charter.

The full judgment is available here.

Alison M. Latimer, QC, acted for Dr. Duncan Etches, Dr. Robert Woollard, Glyn Townson, Thomas McGregor, British Columbia Friends of Medicare Society, and Canadian Doctors for Medicare.


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