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No. S090663 Vancouver Registry in the SUPREME COURT of BRITISH COLUMBIA Between: CAMBIE SURGERIES CORPORATION, CHRIS CHIAVATTI

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No. S090663 Vancouver Registry in the SUPREME COURT of BRITISH COLUMBIA Between: CAMBIE SURGERIES CORPORATION, CHRIS CHIAVATTI No. S090663 Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA Between: CAMBIE SURGERIES CORPORATION, CHRIS CHIAVATTI, MANDY MARTENS, KRYSTIANA CORRADO, WALID KHALFALLAH by his litigation guardian DEBBIE WAITKUS, and SPECIALIST REFERRAL CLINIC (VANCOUVER) INC. Plaintiffs And: MEDICAL SERVICES COMMISSION OF BRITISH COLUMBIA, MINISTER OF HEALTH OF BRITISH COLUMBIA, and ATTORNEY GENERAL OF BRITISH COLUMBIA Defendants And: DR. DUNCAN ETCHES, DR. ROBERT WOOLLARD, GYLN TOWNSON, THOMAS McGREGOR, BRITISH COLUMBIA FRIENDS OF MEDICARE SOCIETY, CANADIAN DOCTORS FOR MEDICARE, MARIEL SCHOOFF, JOYCE HAMER, MYRNA ALLICON, And the BRITISH COLUMBIA ANESTHESIOLOGISTS’ SOCIETY Intervenors And: THE ATTORNEY GENERAL OF CANADA Pursuant to the Constitutional Question Act FINAL WRITTEN ARGUMENT OF THE ATTORNEY GENERAL OF CANADA Solicitor for the Attorney General of Attorney General of Canada Canada, Pursuant to the Constitutional Department of Justice Question Act BC Regional Office 900-840 Howe Street Vancouver, BC V6Z 2S9 Per: BJ Wray Solicitor for the Plaintiffs, Gall Legge Grant Zwack LLP Cambie Surgeries Corporation et al. 1000 – 1199 West Hastings Street Vancouver, BC V6E 3T5 Canada Per : Robert Grant, Q.C. Solicitor for the Defendant, Ministry of Attorney General Attorney General of British Columbia Legal Services Branch 1301-865 Horny Street Vancouver, BC V6Z 2G3 Per: Jonathan Penner Solicitor for the Intervenors, Arvay Finlay LLP Dr. Duncan Etches, Dr. Robert Woollard, 1512-808 Nelson Street Glyn Townson, Thomas Macgregor, The Vancouver, BC British Columbia Friends of Medicare V6Z 2H2 Society, Canadian Doctors for Medicare Per: Joe Arvay, Q.C. Solicitor for the Intervenors, Hamilton Howell Bain and Gould Mariel Schooff, Joyce Hamer & Myrna 1918-1030 West Georgia Street Allison Vancouver, BC V6E 2Y3 Per: Jim Gould The Intervenor, British Columbia Anesthesiologists’ Society The British Columbia Anesthesiologists’ #326 – 555 Sixth Street Society New Westminster, BC V3L 5H1 Per: Dr. Roland Orfaly Cambie Surgeries Corporation et al v. AGBC et al. AGC Final Written Argument TABLE OF CONTENTS OVERVIEW ................................................................................................................................... 4 FACTS ............................................................................................................................................ 5 1. The Federal Legislative Scheme .......................................................................................... 6 a. Overview of the Legislative Scheme ............................................................................... 6 b. History of the Federal Legislative Framework ................................................................ 9 c. The Canada Health Act .................................................................................................. 24 Extra-billing and User Charges ...................................................................................... 30 Private Insurance ............................................................................................................ 34 Dual Practice .................................................................................................................. 35 Summary of concerns with extra-billing, user charges, dual practice ........................... 41 2. Provincial and Territorial Health Care Insurance Plans .................................................... 49 a. Provision of insured services and limits on extra-billing and user charges ................... 52 b. Dual Practice .................................................................................................................. 56 c. Private insurance ............................................................................................................ 56 d. Conclusion on Provincial Plans...................................................................................... 59 3. Ongoing Support for Canada’s Health Care Insurance System ......................................... 59 a. The problem of focusing solely on wait times in a highly complex system .................. 64 Page 1 of 119 Cambie Surgeries Corporation et al v. AGBC et al. AGC Final Written Argument b. Conclusion on Ongoing Support .................................................................................... 66 4. Canada’s Expert Evidence ................................................................................................. 67 a. Dr. Michael Law: Private Health Insurance in Canada .................................................. 67 Individual PHI ................................................................................................................ 69 Employer-based Group PHI ........................................................................................... 70 b. Dr. John Frank – Healthcare and Socio-Economic Inequality ....................................... 74 LEGAL ANALYSIS ..................................................................................................................... 79 1. The Section 7 Claim .......................................................................................................... 80 a. Deprivation of Life, Liberty, or Security of the Person ................................................. 82 b. Principles of Fundamental Justice .................................................................................. 85 2. Section 1 ............................................................................................................................ 94 a. Pressing and Substantial Objective ................................................................................ 98 b. Proportionality Analysis ................................................................................................. 98 3. The Section 15 Claim ...................................................................................................... 110 a. No Distinction on the Basis of an Enumerated or Analogous Ground ........................ 112 b. No Discrimination ........................................................................................................ 117 c. Any section 15 infringement is justified under section 1 of the Charter ..................... 118 Page 2 of 119 Cambie Surgeries Corporation et al v. AGBC et al. AGC Final Written Argument CONCLUSION ........................................................................................................................... 118 REMEDY .................................................................................................................................... 118 COSTS ........................................................................................................................................ 118 ORDER SOUGHT ...................................................................................................................... 119 Page 3 of 119 Cambie Surgeries Corporation et al v. AGBC et al. AGC Final Written Argument OVERVIEW In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.1 __________________________________________________ In their discussions with me, Canadians have been clear that they still strongly support the core values on which our health care system is premised – equity, fairness and solidarity. … Building from these values, Canadians have come to view their health care system as a national program, delivered locally but structured on intergovernmental collaboration and a mutual understanding of values. They want and expect their governments to work together to ensure that the policies and programs that define medicare remain true to these values.2 1. The Attorney General of Canada (“Canada”) decided to participate in these proceedings because of the significant consequences that striking down the Medicare Protection Act, RSBC 1996, c 286 (“Medicare Protection Act”)’s prohibition on private insurance, as well as the legislative provisions that inhibit the ability of enrolled physicians in British Columbia to charge for insured services (the “Impugned Provisions”), would have on the health care insurance system in this country. It is not hyperbolic to say that the plaintiffs’ requested relief has the potential to undermine the very foundation of Canada’s health care insurance system. 2. Removing the Impugned Provisions will result in inequitable and unfair access to insured health care services, contrary to the principles of the Canada Health Act, RSC 1985, c C-6 (“Canada Health Act”). Some individuals would be permitted to jump the queue, while the rest of British Columbia residents would continue to rely on a publicly funded health care system that would be eroded as resources are siphoned off by privately funded care. The real beneficiaries of the plaintiffs’ challenge would be the wealthy and the doctors who treat them, including the 1 R v Edwards Books and Art Ltd, [1986] 2 SCR 713 at para 141; 2 Exhibit 435G, Affidavit of Gigi Mandy made August 2, 2016 [Mandy Affidavit # 1], Vol. VII, Exhibit V: Report of the Commission on the Future of Health Care in Canada: Building on Values: The Future of Heath Care in Canada (Saskatchewan: Privy Council, 2002) [Romanow Report] at 2955 (xvi) [CBE, Tab 28]. Page 4 of 119 Cambie Surgeries Corporation
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