What is the case?
In January 2009, a group of for-profit medical clinics, led by Dr. Brian Day, launched a constitutional challenge against the BC provincial government to fundamentally change the way that public health care is delivered in the province. The clinics are fighting to have the court strike out provincial laws that restrict private billing for medical services in BC on the basis that those laws are unconstitutional. The clinics have launched a direct attack on the single most important feature of the Medicare model: that health care be provided according to a patient's need and not his or her ability to pay.
The case was supposed to go to trial in September 2014, but Dr. Day's lawyers asked that the trial be delayed so they could settle out of court with the government. If no resolution is reached the case will be back in trial on March 2nd 2015.
The BC Health Coalition and Canadian Doctors for Medicare have successfully applied for intervener status in the case. As interveners, we have the ability to present crucial evidence to the court and to give a voice to BC citizens. It is our goal to ensure that public health care in the province is protected.
Listed below is a selection of official court documents from the BC Supreme Court case: Cambie Surgical Centre et al. v. Medical Services Commission et al.. The documents follow an overview of the case from January 2009 onward.
Parties in the Court Case:
- Cambie Surgeries Corporation ("Cambie"), Specialist Referral Clinic ("SRC") and five individuals
- BC Ministry of Health Services ("MoH")
- Medical Services Commission ("MSC")
- Attorney General of BC ("AGBC")
- BC Health Coalition, Canadian Doctors for Medicare, Dr. D. Etches, Dr. R. Woollard, G. Townson and T. McGregor
- BC Anesthesiologists' Society
- Patients group: Mariel Schoof et al.
Development of the Case & Court Documents
The impetus for the case began in 2008 when a group of patients filed a legal petition seeking to have the MSC enforce provincial laws that restrict private billing for medical services against Cambie Surgical Centre ("Cambie") and the Specialist Referral Clinic ("SRC"). The Petitioners alleged that the clinics were charging patients for medically necessary services and therefore acting in contravention of the Medicare Protection Act. The following year, Cambie and the SRC, along with a corsortium of other for-profit clinics, launched a constitutional challenge against the BC government. The clinics alleged that the provisions of the Medicare Protection Act that the Petitioners wanted enforced are unconstitutional and should be declared of no force and effect.
The Province responded to the constitutional challenge with their Statement of Defense and Counterclaim against Cambie and SRC. These were later followed by an Amended Statement of Defense as well as greatly expanded Notices of Counterclaim. The Province sought to enforce an injunction against Cambie and SRC to prevent them from continuing to extra-bill patients as well as a declaration from the courts that the clinics were acting in contravention with the impugned laws. The court ultimately held that until the constitutional issues were resolved, the clinics could continue to operate.
MSC Statement of Defense and Counterclaim 2009.02.20
Reply of Plaintiffs and Defense to Counterclaim 2009.03.30
Reply of the MoH to the Statement of Defense of Plaintiffs and Defendants by Counterclaim 2009.04.06
Reply of the MSC to the Statement of Defense of Plaintiffs 2009.04.06
Statement of Defense to Counterclaim filed by Plaintiffs 2009.05.04
Reply on behalf of the MSC to the Statement of Defense of the Plaintiffs 2009.05.13
Affidavit #1 Bob de Faye 2009.07.23
Summary of expert submissions on behalf of the plantiffs
Notice of Discontinuance removing plaintiffs Canadian Independent Medical Clinics Association, Delbrook Surgical Centre, False Creek Surgical Centre Inc., Okanagan Health Surgical Centre Inc., and Ultimate Medical Services Inc. from proceedings 2010.06.30
Affidavits in support of the clinics' opposition to the Defendant's injunction application:
Affidavit #1 Debra Sutherland 2012.11.08
Affidavit #1 D. Smith 2012.10.11
Affidavit #1 Dr. Vertesi 2012.10.11
Affidavit #1 Regan 2012.10.10
Affidavit #1 A. Aadmi 2012.10.05
Affidavit #1 Dr. Mark Adrian 2012.10.05
Affidavit #1 Dr. Marcel Dvorak 2012.10.05
Affidavit #1 Dr. Ramesh Sahjpaul 2012.10.05
Affidavit #1 B. Collin 2012.10.04
Affidavit #1 A. Otto 2012.10.04
Affidavit #1 J. Walker 2012.10.04
Affidavit #1 Younger 2012.10.04
Affidavit #1 Denford 2012.10.03
Affidavit #1 Davidson 2012.10.02
Affidavit #4 Brian Day 2012.10.02
Affidavit #1 Dr. Richard Kramer 2012.10.02
Affidavit #1 Masri 2012.10.02
Affidavit #1 Z. Nagy 2012.09.12
Affidavit #1 of Rita Chiaveatti 2012.09.25
Affidavit #1 Mandy Martens 2012.09.26
Affidavit #1 Krystiana Corrado 2012.09.25
Affidavit #1 Erma Krahn 2012.09.24
Affidavit #1 D. Waitkus 2012.09.02
Further to the counterclaims of the MSC and MoH, the Commission applied for a warrant requiring Cambie and SRC to submit to an audit of their practices. Their request was approved and the Commission carried out audits of Cambie and SRC between January - November, 2011. The Commission found that, during a period of less than 30 days, almost half a million dollars in extra-billing had taken place at Cambie. The Province filed a Notice of Application seeking a declaration from the Court that Cambie and SRC had contravened provincial laws restricting private billing and an order that Cambie and SRC be prohibited from continuing to contravene these laws. The Court ultimately held that, despite the results of the audit, the Province's application for an injunction would be suspended until the constitutional issues in the case had been decided.
BCCA Ruling allowing MSC to audit CSC 2010.09.09
MSC Audit Report: SRC and CSC 2012.06.01
Notice of Application filed by MSC 2012.09.06
Application Response by CSC 2012.11.07
Application Response by SRC 2012.11.07
Notice of Application – Abuse of Process Collateral Attack etc 2012.11.18
With the case moving forward, the BCHC and Canadian Doctors for Medicare sought to get involved. Our organizations feared that, without the involvement of interveners, crucial arguments about the importance of Medicare would go unheard. The BCHC and Canadian Doctors for Medicare successfully applied for intervener status in 2009 and were later granted the right to present expert evidence in court.
Application for interveners to gain standing in case:
Notice of Motion for Etches-CDM to get standing as interveners 2009.08.14
Interveners Etches - CDM written arguments
Response to BCHC Motion by MSC 2009.08.20
Response to BCHC Motion by Petitioners 2009.08.31
Response to BCHC Motion by SRC 2009.09.14
Affidavit #1 Dr. Duncan Etches 2009.08.13
Affidavit #1 Joyce Jones 2009.08.13
Affidavit #1 Dr. Robert Woollard 2009.08.13
Affidavit #1 Glyn Townson 2009.08.14
Affidavit #1 Thomas McGregor 2009.08.14
BCSC decision granting intervener status to Etches - CDM 2010.07.28
BCSC decision granting intervener status to Schoof et al. 2010.07.02
BCSC decision granting intervener status to BC Anesthesiologists' Society 2012.10.15
Application for interveners to adduce evidence:
The BCHC and CDM Intervenor Group looked closely at the Defendant's list of expert witnesses before applying to have an additional expert witnesses to adduce evidence that may not otherwise be covered.
Summaries of Crown Expert Witnesses (Colleen Fuller)
The judge agreed for two of the experts be allowed to adduce evidence: Marie-Claude Premont who will present expert evidence illustrating how restraints on Medicare after Quebec's Chaoulli case undermined patient access to care; and, Dr. David Himmelstein who will present expert evidence on the US health care system, the costs that for-profit health care and health insurance could have for Canada, and the high likelihood that US-based insurance companies will seize the opportunity to invest in a more private health care sector in Canada.
Notice of Application for Interveners' Etches - CDM to adduce expert evidence 2014.04.24
Notice of Application for Patient Interveners to adduce evidence 2014.04.30
Response to Application by Defendants 2014.05.05
Response to Application by Defendants 2014.05.07
Response to Application by Plaintiffs 2014.05.07
Affidavit #1 Adam Lynes-Ford 2014.04.17
BCSC decision granting interveners right to adduce expert evidence 2014.06.09
In 2013, Cambie and SRC submitted a Notice of Civil Claim, which, among other things, outlined the material facts giving rise to their claim, the type of relief sought and the legal basis for that relief. The province responded with a Response to Further Amended Civil Claim and as well as three counterclaims by the MoH, AGBC and MSC. The MoH, in its counterclaim, alleged that there was a strong public interest in maintaining a fair, efficient, and cost-effective health care system and that the clinics’ unlawful billing practices both undermined this public interest and intentionally or recklessly caused economic loss to the province. The AGBC, in its counterclaim, alleged that the clinics’ practice of having patients sign “Acknowledgment Forms” is unconscionable, oppressive, unlawful, inconsistent with public policy and constitutes a public nuisance. In the final counterclaim, the MSC sought a declaration from the Court that Cambie and SRC have violated the Medicare Protection Act as well as interim and permanent injunctions to prevent Cambie and SRC from continuing to violate the Act.