July 18 2022

The courts have again confirmed that private for-profit health care and the 2-tier system it creates would harm our public health care system and not improve patient access. They have ruled in favour of protecting public health care as constitutional and necessary to protect health care that is delivered based on need and not on the ability to pay.

Ottawa (18 July 2022) — A ruling by the B.C. Court of Appeal has affirmed and strengthened a lower court ruling that protected public health care in Canada from a constitutional challenge launched by private, for-profit, clinics and their allies. The National Union of Public and General Employees (NUPGE) believes that this latest ruling by the BC Court of Appeal is a legal rebuke of 2-tier health care and all governments, political parties and organizations who advocate for private for-profit health care. NUPGE members work on the front lines of health care and are strong supporters of public health care.

2 levels of courts have reviewed the arguments made by both sides and stand firmly with public health care. Governments have to heed these rulings and stop the expansion of two-tier health care in Canada.  NUPGE is calling on all governments to reject private health care and invest in strengthening public health care for all Canadians.

“This legal ruling is historic and governments should be on notice” said Bert Blundon, NUPGE President. “The expansion of private, for-profit, health care in Canada must end. The courts have weighed the evidence and exposed the lies told by the proponents of 2-tier health care. We realize that facts and legal rulings are not enough to discourage the greed which motivates the attacks on public health care so we are putting governments on notice, follow the law and don’t use the pandemic as an excuse to expand private health care and further undermine our public health care system.”

Decade-long constitutional attack on public health care

In a case that began over a decade ago, provisions of B.C.’s Medicare Protection Act were challenged by Cambie Surgeries as being unconstitutional. In a strong rebuke of private health care, 2 court rulings have now stated that it is necessary to preserve a publicly funded system delivering necessary services based on need and not ability to pay.”

The court further found that “suppressing all private care is necessary to meet that objective.” Cambie had argued against the provisions limiting private care “because they effectively prevent patients in British Columbia from accessing private medical treatment that would otherwise be available to them when the public system cannot provide timely necessary care.”  After a thorough review of the evidence, the original judge upheld that the law was constitutional and that a 2-tier health care system would not reduce wait times. Justice Steeves, did have concerns about the length of wait times in the public system, but did not see 2-tier health care as the solution.

Historic rulings highlight dangers of private health care

These 2 rulings, the original September 2020 decision by the BC Supreme Court and this recent ruling by the B.C. Court of Appeal, provide an unequivocal and comprehensive rebuttal against proponents of private for-profit health care. The original trial in the B.C. Supreme Court lasted 194 days and heard evidence from 17 patients, 36 doctors and 17 representatives of health authorities and the province. A total of 590 exhibits were admitted on the record, including 40 expert reports. The original decision was over 800 pages long and is a comprehensive refutation of the arguments for 2-tier health care and a strong missive for the importance of a strong public health care system.

The B.C. Court of Appeal ruling to dismiss was unanimous among the 3 justices, with 2 of them claiming the current law was protected by Section 7 of the Charter in accordance with the principles of fundamental justice. The final justice claimed that there was a Section 7 breach but it was justified under Section 1 of the Charter.

Case will likely be appealed to the Supreme Court of Canada

The private for-profit clinics are well funded and backed by organizations that are fundamentally opposed to public health care. Health care is the country’s largest social program and private health care has long been trying to expand in Canada. While these court rulings are clear set-backs for those who are intent upon dismantling public health care in Canada, advocates of for-profit care will not be deterred. There will likely be an appeal to the Supreme Court of Canada and even other cases attempting to undermine public health care. Right-wing governments have long aided the expansion of private health care in Canada, but these rulings clearly show that what is needed is an expansion of our public health care system.

Action needed to protect and strengthen public health care 

The courts clearly said that “suppressing all private care is…necessary to preserve a publicly funded system delivering necessary services based on need and not ability to pay.” Unfortunately, the pandemic and the ongoing stress on our public health care system have provided the opportunity for private health care clinics to claim to be a solution to the surgical backlogs. What these court rulings show is that expanding private health care harms our public system and will not reduce wait times. Public solutions and investment in public health care are the only effective and sound ways to decrease wait times and expand access to health care. 2-tier health care drains resources and health care professionals from the public system, thereby undermining our public system.

“This is the clearest statement the courts could have made, they did not dance around the issue”, said Blundon. “Not only did the justices reject the arguments that for-profit health care would improve access to health care for Canadians, they clearly called for the suppression of all private care to preserve the fundamental principles of our public health care system. Tthis is an unequivocal call for governments to stop funding and supporting private health care in Canada, something that advocates have been saying for decades.”

Expand and enforce the Canada Health Act

NUPGE is calling on all governments to take action to “suppress all private care” as called for by the courts. This begins with enforcing the Canada Health Act (CHA) and proceeds to include areas like dental care and long-term care under the CHA. Beyond this affirmation of the constitutionality of public health care and of limiting private care, these rulings clearly show the inherent importance of public health care as a human right and as a pillar of equity in our society. Investment in public health care is critical as an aging population, an aging workforce, and the impact of the pandemic continue to put our public health care system at risk. Governments must act quickly to ensure the integrity of our public system and reverse the destructive trend towards expanding private health care.