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This is one of Canada's most momentous legal victories as it has preserved our cherished public health care system against this attack. Governments must now act to directly address the unchecked proliferation of extra-billing and queue-jimping in for-profit clinics that undermine our public system. This fight is not over. You can be sure those who seek profit from health care will try to take this all the way to the Supreme Court of Canada. We must be ready to continue the fight. — Larry Brown, NUPGE President
Ottawa (11 Sept. 2020) — After a lengthy trial, the Supreme Court of British Columbia ruled strongly against the case brought forward by Dr. Brian Day in his attempt to claim that restricting private for-profit health care violates the Canadian Charter of Rights and Freedoms. Justice Steeves of the BC Supreme Court ruled that the laws limiting 2-tier health care do not contravene the Canadian Charter of Rights and Freedoms. The National Union of Public and General Employees (NUPGE) has been supporting the public health care advocates who are intervenors in this BC case and who have been working on this case for years. NUPGE Components — Health Sciences Association of British Columbia and the British Columbia Government and Service Employees’ Union — are among those who have been working hard on this case.
"This Charter challenge had the potential to destroy public health care in Canada by unleashing a profit virus that would have been impossible to contain. A well-funded campaign by Dr. Day and those who stood to profit from a decision allowing 2-tier health care was not successful," said Larry Brown, NUPGE President. "We stand with all who support public health care and the principles of the Canada Health Act that are based on providing care based on need, not ability to pay. We must remain vigilant and demand governments that see this ruling as a call to renew investment in public health care and to also act against extra-billing an queue-jumping in private clinics and any ongoing violations of the Canada Health Act."
Case ends with a bang
After months of delays and years of political and legal wrangling, including a change in government at both the federal and provincial levels, Justice Steeves delivered a verdict that should shake governments and promoters of for-profit, 2-tier health care in Canada, and those governments that are supportive of this weakening of Medicare. It is no secret that governments have turned a blind eye to the proliferation of for-profit clinics and their ongoing violations of the Canada Health Act. This ruling has clearly stated that these private clinics have no legal argument to promote queue-jumping based on ability to pay rather than medical need.
The case for fundamental justice means governments must act for public health care
Justice Steeves found that there was no violation of the Charter in legislation that prevents the wealthy from buying their way to the front of the line. Principles of fundamental justice did not allow individuals to use arguments of security of person to allow them to pay their way to the front of the line. The message from the ruling is both that the Charter does not support 2-tier health care and that we must continue to ensure our single-payer system functions in the best interests of all Canadians.
800 pages, over 100 witnesses, and over 10 years later... victory
Justice Steeves' has written a well-thought-out decision that encompasses the wide-breadth of arguments made by the plaintiffs. This means that an appeal will be difficult for those who wish to challenge this ruling. The Justice addressed the arguments and clearly stated he did not believe that 2-tier health care would provide better care. Arguments made in favour of 2-tier health care were systematically dismantled and over ruled in favour of broader principles of fundamental justice. This means that the justice understood that some individuals would get faster treatment if the plaintiffs won, but that this would undermine the whole system and therefore could not be justified. This does, however, mean that section 7 arguments in favour of life, liberty and security of the person are not irrelevant, they just do not take precedence over the broader collective principles of public health care. This is a ruling that affirms collective rights over individual rights and sets a fundamental precedent for future litigation on Charter rights. The caution is that governments must invest in public health care to maintain this positive balance in terms of weighing rights.
Next steps
With massive profits in the balance, it is highly likely that this ruling will be appealed. There is a vast network of conservative forces who have been trying to use the Charter and provisions on individual rights to undermine public institutions. Public health care has long come under attack in Canada. This ruling provides a strong buffer against these attacks but will not end the attacks. In fact, governments have been capitulating to for-profit health care for many years as they defund and delist procedures in public health care. The privatization is by stealth and is bolstered by every cut and every new attack on health care. Bill 30 in Alberta is an example of the attacks. The Kenney government is attempting to create a health care system where corporations brings together doctors and patients and are allowed to collect funding directly from governments. This is another step towards 2-tier health care and is a very sophisticated attack on our public health care system. Justice Steeves has blown up many of the arguments that some governments and 2-tier health care advocates have made in favour of private health care.