B.C. can't be punished by feds if private-care proponent wins case: lawyer

VANCOUVER — Government lawyers have made irrelevant arguments in British Columbia Supreme Court by saying the province would lose millions of dollars a year in federal funding if a lawsuit seeking an expansion of private health care is successful, a lawyer says.

Robert Grant said Ottawa would invite a legal case of its own by denying transfer payments to B.C. and going against any ruling in favour of his client, a surgeon who is challenging a provincial law aimed at maintaining single-tier health care.

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"It would almost be a dead obvious constitutional challenge if it (the federal government) attempted to penalize any province complying with the charter," Grant told Justice John Steeves in closing submissions Thursday.

Dr. Brian Day, who owns the Cambie Surgery Centre in Vancouver, maintains that patients who have waited too long for an operation or diagnostic tests in the public system are deprived of timely care and should have a right to private treatment under the Charter of Rights and Freedoms.

Lawyers for British Columbia's Attorney General Ministry and the federal Justice Department have said Ottawa could hold back health transfer payments from B.C. if Day wins.

Day opened the surgery centre in 1996 and wants parts of the Medicare Protection Act struck down because it prohibits doctors from billing the province for working in hospitals while also earning more money in the private system.

British Columbia's failure to enforce provisions of the law, introduced in 1995 and bolstered two years later, suggests provincial officials are "talking out of one corner of their mouth," Grant said.

He said private clinics have been allowed to function because the single-tier system does not have the capacity to handle patients who are seen in them. Grant also said the doctors aren't "greedy," as government lawyers have suggested.

More private clinics would actually shorten wait lists in the public system as patients leave it to get care they pay for out of pocket or through private insurance, he said, adding no one would be "queue jumping."

Earlier Thursday, a lawyer for patients and doctors fighting to preserve universal care said Day wants to benefit from provincial regulation of private medical insurance if B.C. is forced to dismantle the Medicare Protection Act.

Joe Arvay said private medical insurance would usher in a complicated and expensive administrative regime dependent on public funds for the sake of physicians wishing to expand private services that would not be regulated by the government.

"The plaintiffs are not seeking to opt out of the public system in its entirety," he said. "Even in the private market they wish to establish, they would continue to benefit from society's investment in health-care professionals and public funding of the entire health-care infrastructure."

Arvay said doctors employed in the public system are known to refer patients to themselves in private clinics where they also work in order to bypass wait times that apply to everyone who can't afford to pay out of pocket or through private insurance.

He represents an intervener group that includes two physicians, Canadian Doctors for Medicare, the BC Health Coalition and a pair of patients. One of the patients is disabled and the second was diagnosed with AIDS. Arvay said like most people, they rely on a public health-care system that ensures equitable access to care.

Arvay said Day has failed to establish a threshold for how long a wait is too long and never argued that the law should be changed to allow patients to get private care if current benchmarks for wait times set by the province are surpassed, adding that would be an "easy fix" for the government and the surgeon's primary aim is profit.

"It would be ironic indeed if this public system were to be dismantled as a result of the charter, when the charter itself is premised on the same fundamental values of human dignity and equal concern and respect for all," Arvay said.

"There should be no mistaking the effects of this challenge if successful. It will privilege the interests of certain, already wealthy physicians and allow queue jumping by our most financially well-off citizens, all to the disadvantage of relatively less well-off and poorer patients and all of those physicians who are committed to the public health-care system."

This report by The Canadian Press was first published Feb. 27, 2020.

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