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Page 8 September 29, 2014 • Law Times www.lawtimesnews.com Health-care litigation crawling along Few changes since Chaoulli as Ontario, B.C. cases drag on BY JudY van rhiJn For Law Times t has been almost five years since the argument over pri- vate health care took to the courts with a trial yet to take place. In British Columbia, the Sept. 8th trial date in Cambie Surgeries Corp. v. British Columbia (Medi- cal Services Commission) has come and gone, with yet another adjournment until March 2015, following a government initia- tive to explore settlement options. The Ontario case of McCreith & Holmes v. Ontario (Attorney Gen- eral) is on hold until the B.C. liti- gation is complete, which means the court won't get to weigh in on the debate any time soon. When the litigation first began in 2009, there was confidence that the precedent set in Cha- oulli v. Quebec (Attorney Gen- eral) could apply on a national level. In that case, the Supreme Court was unequivocal that Quebec held a "virtual mo- nopoly" that, through its wait- ing lists, inf licted physical and psychological suffering on patients. While the provincial governments reacted to the decision by addressing wait times, no legislative or regula- tory change has occurred out- side of Quebec. In the time it has taken the court cases to progress through the preliminary stag- es, not much has changed in the health-care system. "Noth- ing has really changed in B.C. in respect to government policy or the need for the services, and people still have strongly held positions on both sides," says Peter Gall of Gall Legge Grant & Mun- roe LLP. He's representing the Cambie clinic in the case. Karen Selick agrees there has been little change. "My suspicion is that the provinces' ability to provide health care has declined. Certainly in Ontario, the gov- ernment is strapped for funds," says Selick, litigation director of the Canadian Constitution Fed- eration that's helping fund the lawsuits on the issue. A report by the Fraser In- stitute put the national median wait time in 2013 at 18.2 weeks despite fast-growing public health-care spending. Although Ontario had the shortest median wait at 13.7 weeks, the report said that still compares unfavourably with other countries that spend less. It's also higher than histo- rical wait times of, for example, 9.3 weeks in 1993. Still, there's noticeable government inaction on changing the system. Gall has long been of the opinion that the politics of health care prevent governments from deal- ing appropriately with the prob- lem, making it necessary for the courts to unblock the paralysis. The potentially system-shak- ing case between Dr. Brian Day's private surgery clinic and the B.C. government will test whe- ther a public health-care system that prohibits doctors and other care providers from charging patients directly for services is constitutional. The claim argues long wait times and the inability to circumvent them violate the right to life, liberty, and security of the person guaranteed under s. 7 of the Charter of Rights and Freedoms. Selick confirms that the case was all set to go to trial on Sept. 8 with the parties still diametrically opposed but confirms the proposal to have settlement discussions originated with the B.C. gov- ernment. She doubts it will settle. "What will the govern- ment do? Give in and change the system? We don't know what they can offer." But Gall is of the opinion that the parties should spend some time talking a little more before litigating. "Who knows?" he asks. Selick believes the initia- tive from the government emanated from the discov- ery process. "Now the gov- ernment knows the evidence that will be led, and there is pretty strong evidence that a health-care monopoly is quite unnecessary and counterpro- ductive. Canada is almost the only place, apart from North Korea and Cuba, that has a monopoly on health care and ensures that people can't access private insurance." The court undertook a simi- lar evaluation of other health systems in Chaoulli. The Su- preme Court stated: "Here, the evidence on the experience of other western democracies with public health care systems that permit access to private health care refutes the government's theory that a prohibition on private health insurance is con- nected to maintaining quality public health care. . . . The physi- cal and psychological suffering and risk of death that may result from the prohibition on public health insurance outweigh the benefit — and none has been demonstrated here — there may be to the system as a whole." While negotiations continue in British Columbia, the On- tario case of McCreith & Holmes is in limbo. "Since Dr. Day is further ahead, we don't see the point in litigating the issue twice," says Selick. "If there is a decision favour- ing Cambie in B.C., Ontario will be strongly inf luenced to change. So we'd rather not incur the cost of an 18-week trial." McCreith & Holmes involves two people who believe the wait times under the monopoly could have killed them. "In the Day case, other things are at stake besides the principle of addressing the monopoly," says Selick. "The government is try- ing to get money back for what they call extra billing. Dr. Day is under the gun." 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Proud Member DAVID PAYNE | WENDY MOORE MANDEL | DAVID TENSZEN Untitled-2 1 2014-09-23 11:17 AM I