The ruling is the latest in a 13-year legal battle over access to private health care that is now expected to be headed to the Supreme Court
The B.C. Court of Appeal has upheld the decision of a trial judge who ruled that access to private health care is not a constitutionally protected right despite long wait times in the public system.that is now expected to be headed to the Supreme Court of Canada.
Justice Lauri Ann Fenlon found the deprivations to be “grossly disproportionate” and not in accordance with the principles of fundamental justice. However, she found that breach of Section 7 to be justified under Section 1 – that freedoms set out in the Charter can be subject to reasonable limits if government can show it to be demonstrably justified in a free and democratic society.
Dr. Day launched the legal action in 2009, and it landed in B.C. Supreme Court in 2016 with support from four of his patients. The court heard from more than 100 witnesses. In September, 2020, B.C. Supreme Court Justice John Steeves released an 880-page judgment upholding the provisions of the act. They sought to overturn provisions of B.C.’s Medicare Protection Act that prohibit physicians from accepting pay from both public and private purses, limit extra billing and ban health insurance for services that are already covered under the public plan.
At the B.C. Supreme Court, Justice Steeves had found that the impugned provisions did not violate the plaintiffs’ rights to life or liberty, as there was no evidence anyone died from long waits and the provisions do not interfere with a patient’s ability to make fundamental personal choices, respectively.
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