A lawyer for plaintiffs challenging the constitutionality of British Columbia’s public health-care system says he plans to seek an injunction against changes the province announced last week in a new crackdown on doctors who engage in extra billing.
The plaintiffs, which include two private clinics and four patients, have argued in the B.C. Supreme Court trial that the province does not provide timely medical services, but many of its residents are prohibited from accessing private health care. The province has said its Medicare Protection Act is necessary to protect universal health care and prevent extra billing. It has called the legal battle “a challenge to the very foundation of Canada’s public health-care system.”
Last week, just as the trial − which began in September, 2016, but has faced a series of delays − was set to resume, the province announced a new crackdown on extra billing, including stricter fines.
Robert Grant, one of the lawyers for the plaintiffs, told the court on Monday morning that the province’s recent announcement may have a profound impact on the case and the plaintiffs are still considering the implications.
Mr. Grant said the two plaintiff clinics, Cambie Surgery Centre and Specialist Referral Clinic, would have to shut down as a result of the amendments. He said the plaintiffs would seek an injunction against the changes, which are to take effect on Oct. 1.
He said the plaintiffs would need to amend their pleadings and consider revisions to evidence.
Mr. Grant proposed making the injunction application in May, a request a lawyer for the province deemed unnecessary.
Jonathan Penner, one of the B.C. government lawyers, said the amendments do not come into effect for several months, so there is no immediate need for an injunction. He said the trial should continue as planned.
Mr. Penner questioned why increasing penalties against clinics would have any effect on the plaintiff’s constitutional argument and denied private clinics would have to shut down.
He said the province has been preparing for the resumption of the trial and the plaintiffs have had ample time to plan their case. Further delay in the trial, he said, would be highly prejudicial to the province.
Mr. Grant took issue with that statement.
“It’s rather extraordinary for the defendant at this stage of this trial, after 39 witnesses have testified and more than 80 days of trial, to change the legislation on which this case is based and then tell this court that shouldn’t be a problem for the plaintiffs,” he said.
Justice John Steeves, who is hearing the case, said Mr. Grant would need to make a formal application to use the scheduled May court dates for an injunction request. Mr. Grant said that application would be filed.
A Globe and Mail investigation last year found significant, unlawful extra billing by Canadian doctors through private clinics, particularly in B.C., with patients paying out of pocket for access to everything from medical appointments to surgery.
A physician or clinic engages in extra billing when patients face additional charges for procedures that are otherwise paid for by the public system.
The B.C. case has reignited a debate that had its last major legal test in 2005, when the Supreme Court of Canada ruled a Quebec ban on private health care was unconstitutional. That ruling, however, only applied to Quebec.
The federal government is not a defendant in the B.C. case, but is a party since it involves a constitutional question.