On September 6 the Supreme Court of British Columbia began to
hear a case that could fundamentally change the landscape of
The case involves a challenge to four sections of the
Medicare Protection Act, which the plaintiffs allege
violate and are contrary to sections 7 and 15 of the Charter in
that they are alleged to have the effect of preventing or severely
limiting the development and availability of private healthcare,
particularly when the public health system cannot guarantee
reasonable healthcare within a reasonable time. The plaintiffs are
also demanding that the court grant an order pursuant to Section 52
(1) of the Constitution Act 1982 under which these
sections are deemed to have no force and effect given the extent of
their violation of the Charter.
Alternatively, the plaintiffs are seeking a ruling that such
provisions are inconsistent with the Charter and therefore are of
no force and effect given such inconsistency and declare a
suspension declaration if the act is amended by the province.
Supreme Court of Canada divided
The first part of the debate concerning the ban on private
insurance for health services covered under the public healthcare
system was instigated in the decision rendered by the Supreme Court
of Canada in Chaoulli v Quebec (Attorney General) on June
The decision profoundly divided the Supreme Court of Canada, who
ruled that the Quebec's legislative ban did not violate the
Canadian Charter but violates the Quebec Charter of Human Rights
and Freedoms insofar as the public system is inadequate based on
the failure of Quebec's public healthcare system in the
mid-1990s to provide reasonably timely access to healthcare. As a
consequence of the profound division, the Chaoulli decision was
limited in strict legal terms to the application of the Quebec
Charter and to the province of Quebec. The second part of this
debate, which concerns the argument under which prohibitions on
user fees, extra-billing and selling private insurance for services
already covered by public health insurance may or may not violate
the Constitution, remains to be resolved.
Since its launch in 2009, this judicial saga1 has
caused extensive debate and attracted considerable attention. While
some stakeholders contend that Canada Health
Act2 and provincial legislation adopted in
furtherance of this act is literally killing Canadians, many other
stakeholders argue the legalization of a two-tier system would not
only undermine the values upon which the Canadian system is based,
but also Canadians' ability to obtain equitable access to
proper medical care at reasonable cost. More than 150 expert
witnesses are now expected to testify at trial.
Experts already predict the case will be appealed and make its
way to the Supreme Court of Canada. In any event, a win for the
plaintiffs may have significant implications for Canada's
healthcare and insurance systems, as it could also lead to the
undoing of Canada's single-payer system to create a multi-payer
system and thus allow Canadians to pay privately for medically
necessary services covered by the public system and doctors to
charge patients for such services.
More than 10 years after the Chaoulli decision and massive
reinvestments into public healthcare systems by each level of
government, it remains to be seen how experts and government
officials will argue before a judge over the Canadian public
healthcare system's performance. Recent OECD health statistics
rank Canada, as compared to its peers amongst the richest OECD
countries, among the worst performers on key metrics such as timely
access to healthcare and physicians, while generally ranking it
amongst the best performers for per capita spending in healthcare
by the government.
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