Week 12 Medicare and the Courts

Question 1

Canadian Charter of Rights and Freedoms

Answer 1

*Entrenches individual rights
*Protects individuals from
infringement on their rights by
governments or their agents
*Places reasonable limitations on
rights in a free and democratic
society
*The Courts interpret and apply the
Constitution, including the Charter
and interpret and apply legislation,
and determine and apply
appropriate remedies

Question 2

Charter rights and freedoms

Answer 2

Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
*(a) freedom of conscience and religion;
*(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
*(c) freedom of peaceful assembly; and
*(d) freedom of association.
Democratic rights s. 3-5
Mobility rights s.6
Legal Rights s.7-14
Equality rights s.15
Language rights s. 16-23

Question 3

s.7. Life, liberty and security of the
person

Answer 3

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.
*Does not apply to corporations or foetuses
*Many health-related cases are argued under this section.

Question 4

Application of Charter Rights

Answer 4

Charter only applies to government
action
S. 32(1). This Charter applies (a) to the
Parliament and government of Canada in
respect of all matters within the authority
of Parliament including all matters (relating
to the Territories); and (b) to the legislature
and government of each province in
respect of all matters within the authority
of the legislature of each province

Charter may apply in favour of
corporations
Some provisions are limited to any
“individual” (real people only)
Some provisions are available to any
“person” or “everyone” (depends on
context)

Who does the charter protect?
Any person in Canada (newcomers,
permanent residents, or citizens), has the
rights and freedoms contained in the
charter with some exceptions. Citizens
only have the right to vote, and the right to
remain, enter, and leave Canada

Question 5

Limitations on Charter Rights (s.1)
o Charter rights subject to “reasonable limitations”

Answer 5

S1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.
o Balances individual rights and community interest
o Limits on a Charter right must be “reasonable” and “demonstrably justified.”

Question 6

Limitations on Charter Rights (s. 33)
o Charter subject to notwithstanding clause

Answer 6

o S. 33 - Parliament or the legislature of a province may expressly declare in
an Act of Parliament or of the legislature, as the case may be, that the Act
or a provision thereof shall operate notwithstanding a provision included
in section 2 or sections 7 to 15 of this Charter.
o Allows either a provincial or the federal government to declare that a law it makes does not
have to comply with certain Charter rights.
o Must be made expressly in the legislation (clear)
o Legislation must be reviewed and re-enacted every 5 years
o S. 33 only applies to Fundamental Freedoms (2), Legal Rights (7-14) and Equality Rights (15)
NOT Democratic, Mobility or Language Rights

Question 7

When someone claims that their Charter rights have been violated, courts undertake a two-stage analysis

Answer 7

1. Has the claimant demonstrated that their rights have been
   breached.
2. If yes, was the breach “reasonable” and demonstrably justified”
   ◦ Oakes test

Question 8

The Oakes Test (R. v. Oakes [1986] 1 S.C.R. 103)

Answer 8

Test to determine whether a charter infringement is justified, contains four
distinct steps
1. Sufficiently important objective: The law must pursue an objective that is
sufficiently important to justify limiting a Charter right.
2. Rational connection: The law must be rationally connected to the
objective.
3. Least drastic means: The law must impair the right no more than is
necessary to accomplish the objective.
4. Proportionate effect: The law must not have a disproportionately severe
effect on the personsto whom it applies.

Question 9

The Canada Health Act

Answer 9

sought to eliminate extra billing and user fees via the Accessibility criterion
◦ Extra billing: patient charged a fee for a service covered under provincial
health insurance
◦ User fees: any charge for an insured service other than extra billing
Provinces have considerable authority in determining what is “medically necessary” or “insured services” covered under the Act.

Question 10

The Canada Health Act strongly discourages extra billing and user charges
for hospital/physician services through financial penalties.

Answer 10

◦ Withhold equivalent portions of federal cash transfer
◦ BC had second highest rate of “claw backs” of all provinces every year for last 16-
years, but was passed by Quebec in 2021-22
◦ BC: $23 million in 2021-22
◦ Quebec: $42 million
◦ Most provinces: $0
The CHA is silent on whether health care can/should be delivered in
publicly-owned facilities, private not-for-profit or private for-profit

Question 11

Physician practice outside of the public
healthcare system

Answer 11

Recall from the Saskatoon Agreement (1962) that physicians retain the
right to opt-out of the public system
◦ 9 provinces (save Ontario) still allow physicians to opt-out
Opted-out physicians may:
◦ bill patients directly, and those patients may be reimbursed by the province, but
billing fees are limited to the fee schedule set out in the public system
◦ OR bill patients directly at fee levels not limited by the public tariff, but these costs
will not be reimbursed
But… very very few physicians have chosen to opt-out (except in Quebec)

Question 12

Can doctors in BC charge
patients for care?

Answer 12

BC Doctors can either:
* Work entirely within the public system and are
prohibited from charging patients
* Work entirely privately and can
* Charge patients $$$$ as long as they are not
working in a “hospital” or “community care facility”
Patients can either pay out of pocket but cannot
currently use “duplicative” private insurance (covering
the same services as public provincial health
insurance)

Question 13

Why don’t more physicians “opt-out”?

Answer 13

In short… it’s not profitable because there is no market for it
◦ Patients don’t want to pay when they don’t have to
◦ There is no private insurance option that covers services already covered in
the public insurance systems
◦ Legalities vary by province
◦ Prohibited in BC, Ontario
◦ Allowed in Newfoundland, Nova Scotia, New Brunswick, and Saskatchewan, but there are
companies offering the insurance because the market is too small
◦ Quebec is…. Messy

Question 14

Chaoulli v. Quebec (2005) - Who was involved?

Answer 14

George Zeliotis
◦ Waited a year for a hip
replacement
◦ Wanted to buy insurance to and
get the surgery privately and
sooner
◦ On learning it was against the
law, he took the case to court

Dr. Jacques Chaoulli
◦ Was unable to set up a private
hospital and offer his services
privately
◦ Argued that the public system is
not effective and that he should
be allowed to offer services
privately

Question 15

Chaoulli v. Quebec - Claim and reasoning

Answer 15

Claim: The Health Insurance Act and Hospital Insurance Act in
Quebec, which prohibited the purchase of private insurance for
services already covered in the public system, is a violation of section
7 of the charter.

Reasoning:
◦ Long waiting times in the public system resulting in delay in needed medical
treatment are a violation of security of the person
◦ Under both the Canadian Charter and the Quebec Charter.

Question 16

Chaoulli v. Quebec - Decision

Answer 16

Supreme Court of Canada (2005): Quebec laws violated rights to life and security of persons under the Quebec Charter (4-3 decision)
Three of the four majority judges concluded laws also violated the Canadian Charter of Rights and Freedoms.
Decision connects to several policy claims (and many other legal issues):
◦ Wait lists are too long
◦ Private insurance can reduce the wait (for some)
◦ Private insurance and services will not undermine quality of the public system

Question 17

Chaoulli v. Quebec - Implications

Answer 17

Decision widely criticized by policy and health care scholars
Number of physicians who ”opted-out” increased in Quebec,
alongside huge growth in the number of specialized private clinics
Ruling ONLY applies in Quebec, leaving the rest of Canada in a grey
area when it comes to private health care insurance
◦ Door option for future Chater challenges related to private insurance
provisions in other provinces… such as BC.

Question 18

Cambie Surgeries Corporation v. British Columbia - Background

Answer 18

Dr. Brian Day
Orthopaedic surgeon
Founder of Cambie Surgery
Clinic - private surgical clinical
Past-president of Canadian
Medical Association

Background
◦ Cambie clinic (and others like it) charge patients directly for services covered
under provincial public insurance. The physicians who work at the Cambie
clinic have not unenrolled. This violates the Medicare Protection Act.
◦ Engaging in extra billing and user charges for years, with BC Ministry of Health turning a blind eye
◦ 2018: $10,000 fines issued for doctors who charge patients for medically
necessary procedures
◦ Enforcement of existing legislation that to date had not been enforced

Question 19

Dr. Day’s Argument

Answer 19

Dr. Day and the Cambie Surgery Corporation are challenging the
prohibition on private billing by enrolled physicians
Claim under three sections of BC’s Medicare Protection Act
◦ Section 45: prohibition of insurance for services that are publicly insured (duplicate
private insurance)
◦ Section 17/18(3): prevent health facilities/physicians from charging fees and billing at
rates higher than the public insurance plan allows
Allege that these sections infringe “patients’ rights to life, liberty and
security of the person under Section 7 of the Canadian Charter of Rights
and Freedoms

Question 20

Justice Steeves’ Ruling

Answer 20

◦ Justice Steeves in 880-page ruling:
◦ Rejected contention BC’s laws infringe upon right to life
◦ Found that limits on private finance engaged the security of one’s person, given that some patients waited
beyond provincial benchmarks for surgery
◦ Under the Oakes test:
◦ Laws were not arbitrary given the evidence that private financing would reduce capacity and increase
waits in the public system, increase costs, exacerbate inequities, and incentivize physicians to prioritize
private paying patients
◦ Laws not overbroad given that private operating room time takes doctors away from other essential
activities within the public system
◦ Laws not grossly disproportionate given that there is no evidence of dying while awaiting elective surgery,
and than without these laws, “urgent medical needs would depend on a public system with reduced
capacity due to a parallel private system”
◦ Ultimately, the case preserved BC’s limits on private finance

Question 21

Appeals

Answer 21

Day and colleagues appealed to the BC Court of Appeal, who upheld
Justice Steeve’s ruling
Day and colleagues appealed to the supreme Court of Canada, who
declined to hear the case

Question 22

There is no single model of “private healthcare”

Answer 22

◦ Variability with respect to financing, delivery and regulation
Variability in scope/nature across provinces due to
◦ Distinct provincial regulations (Medicare protection legislation)
◦ Different levels of demand
◦ Nature of the health workforce

Question 23

Examples of privatization, profitization, and
corporatization

Answer 23

◦ Buyouts of primary care clinics by shareholder-owned corporations
◦ For-profit, corporate virtual care services
◦ Increased reliance on private, for-profit diagnostic and surgical centers
◦ Increased reliance on agency nurses
◦ Private-pay nurse-practitioner led clinics
◦ …. And others
The potential impacts of these changes differ dramatically, so it’s critical to be
clear about the nature of “private” healthcare care we are talking about
Corporate buyouts of primary care clinics e.g. Superstore clinics
Commercial virtual care services

Question 24

Commercial virtual care services (findings
from Spithoff et. al)

Answer 24

Key findings:
◦ Commercial virtual care companies engage in widespread sharing of patient data
◦ Consent processes are confusing and coercive
◦ Data are being used to influence patient care journey and are viewed as a propriety
asset
Implications for poor continuity, inequitable access and concerns around
quality of care
Risk of pulling physicians from elsewhere in the health care system

Question 25

Publicly-funded surgeries/diagnostic
procedures in for-profit facilities

Answer 25

Some provinces contract with private, for-profit surgical and
diagnostic facilities for the provision of publicly-insured services to
attempt to address long-waits
◦ Bill 60 in Ontario expands these contracts, covering cataracts, MRI, CT,
colonoscopy, endoscopy and others
Evidence from BC and internationally that these contracts contribute
to staffing shortages in public hospitals; lead to unlawful extra billing

Question 26

Reliance on Agency Nurses

Answer 26

Canada is dealing with a huge nursing shortage
◦ 43,000 vacancies at the end of 2023
Agency nurses: for-profit staffing companies providing
temporary nursing staff for healthcare facilities
◦ Agencies have been around for decades but reliance on them is
skyrocketing
The agency is paid by the healthcare facility that the nurses
are contracted to, and the agency pays the nurse
◦ Hourly costs are up to five times what a staff nurse would be paid
472 agencies and growing, most often filling gaps in
◦ Long-term care
◦ Critical care units
◦ Emergency departments

$1.5 billion public health dollars paid to forprofit nursing agencies in 2023/4
550,000+ hours (equivalent of 3,724 fulltime nurses)
Given the costs to the system, Quebec has
effectively banned their use (as of 2026),
except under emergency scenarios.

Question 27

Nurse-practitioner led clinics

Answer 27

NP-led clinics offering primary care
services in some provinces
◦ Private delivery
◦ Private payment
Services would be covered under the
Canada Health Act if delivered by a
physician
This may (hopefully) change soon via
a new Canada Health Act
Interpretation Letter