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B.C. plays the legal long game in private health-care fight

Earlier this week, one of the most important trials in recent Canadian history was forced to adjourn when the plaintiffs said they had run out of funds.

This is what happens when you go up against an entity that has virtually unlimited resources: the government.

At issue is nothing less than the future of medicare in this country. The lead plaintiff is Dr. Brian Day, founder of the Cambie Surgery Centre, a private medical clinic that has operated for more than 20 years in Vancouver and performs a wide range of services. Patients pay a premium for treatment by clinic doctors, over and above what is covered under medicare.

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The Canada Health Act states that people should have reasonable access to care that is universal and unencumbered by user fees or extra billing. After years of turning a blind eye to the practices of Dr. Day's operation, the B.C. government decided to get tough and effectively shut the place down.

We have been reading a lot lately about the problems in our justice system with backlogs and procedural wrangling that is creating unjust delays. Well, here is a prime example of everything that is wrong with the legal structure in this country.

Dr. Day began his fight seven years ago. In the intervening time, two of the six individuals (former patients) who were co-plaintiffs in the case died. To this point, it has cost Dr. Day more than $2-million in various legal fees. (In this regard, he has been assisted greatly by the Canadian Constitution Foundation, which believes deeply in his cause.) The trial in the B.C. Supreme Court was originally slated to last six months; it's already been seven, and it's anticipated it will take that many months again before it is over – assuming Dr. Day is able to raise the additional $2-million he figures he'll need to continue the fight.

While on many days in the courtroom the plaintiffs have been represented by one lonely lawyer, those fighting him – including the B.C. and federal governments, have separate and at times multiple representation. Needless to say, with that many lawyers involved, almost every word uttered by Dr. Day's side has been objected to. These people have to demonstrate their worth, after all.

In the process, however, the plaintiffs' legal fund has been bled dry. Perhaps that was the point all along. Regardless, it is wholly pathetic and an affront to everything we know a fair and just legal system should be. Worse, it is a massive waste of money because the government(s) is trying to defend a position that is indefensible.

What Dr. Day is fighting for is the right to help patients who want to use their own money to get access to quicker treatment than they would get in the general system. In many cases, these are people who are suffering on wait lists. As we speak, there are 85,000 such individuals in B.C. waiting for some form of medical treatment.

A trial very similar to this one took place in 2005 involving the government of Quebec, which wanted to impose the same restrictions on private clinics as its counterpart in British Columbia. It went to the Supreme Court of Canada, which was persuaded by the arguments of those who insisted that under the Quebec charter, people had the right to access medical treatment from private clinics if the same care couldn't be provided to them by the public system in a timely manner. (That trial, by the way, lasted only four months.)

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The case in British Columbia is ultimately headed to the same place, and, I would argue, the same conclusion.

It is absolutely absurd that we allow the state to determine how we can take care of our bodies; no other country in the world does this. It is absurd governments here are trying to defend a system that is already two-tiered, allowing employers to buy private insurance for their employees, and yet we prevent individuals from doing the same. It is absurd that we say it's okay to buy private education in Canada but not private health care.

While we may never know how much taxpayer money has been used so far to fight Dr. Day, a conservative estimate would be $20-million. This is money that should be going to treat sick people in this country.

Instead, it's being used to fight them.

Clarification: An earlier version of this article said those fighting Dr. Day have been represented by 20 or more. While there are many lawyers working on the case, they are not all in the courtroom at the same time.

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About the Author
National affairs columnist

Gary Mason began his journalism career in British Columbia in 1981, working as a summer intern for Canadian Press. More

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