Constitutional surgery gone awry or lessons in how to make the cut? Cambie Surgeries Corporation v. British Columbia (Medical Services Commission)

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For about nine years here on Canada’s West Coast, a constitutional battle has been fought over the future of public health care. The opening shots were fired in 2008 by some individual patients against a private surgery clinic, Cambie Surgeries Corporation (“Cambie”), claiming that Cambie was illegally extra-billing and that the Medical Services Commission (the “MSC”) was not properly enforcing the law. Cambie then responded by launching its own action in early 2009, challenging the constitutionality of provisions of the provincial Medicare Protection Act claiming that they caused undue delay in access to health care resulting in a violation of the patients’ rights to life, liberty and security of the person as guaranteed by s. 7 of the Charter (amongst other challenges). Since 2009, there have been over thirty reported decisions of the Supreme Court of British Columbia dealing with procedural issues. Over twenty of those reported decisions have been issued since the commencement of trial (I am sure that there are many more unreported decisions).

The trial of Cambie’s action commenced on September 6, 2016. While the plaintiffs’ case is not yet closed, to date, there have already been over 70 days of trial. The remainder of the trial will last at least another 70 days. It will likely last much more than that. The plaintiffs need to conclude their case. Then the defendants will put in their case. There may be reply evidence. And then there will be lengthy closing arguments by the plaintiffs, the defendants and a number of intervenors. The case has been fought so vociferously that, midway through this year, the plaintiffs had to adjourn the trial in order to raise more money to pay for the anticipated legal fees.
In short, this has been and will continue to be “take no prisoners” constitutional warfare. Millions of dollars are been spent by all parties in prosecuting and defending the case. Scores of expert witnesses are being called upon to present their expert opinions. There will likely be hundreds of days of court-time before a trial judgment is rendered.

Of course, the case will not end there. All parties expect that there will be an appeal to the British Columbia Court of Appeal and from there to the Supreme Court of Canada. Millions more will be spent on those appeals. Realistically, there will not be a final result for five years or more.
I have a number of comments regarding this case.

First, the growing collection of the 30 plus decisions (and the decisions that will be rendered in the years to come) constitutes a veritable primer for constitutional litigators on “how to conduct (or arguably, depending on your perspective, how not to conduct) constitutional rights litigation”. The decisions thus far cover the gamut including:

• A determination as to whether the case should proceed by way of petition or action, 2009 BCSC 1596;

• Applications to become intervenors, 2009 BCSC 1596, 2012 BCSC 1511;

• Applications of intervenors to file evidence in the proceedings, 2014 BCSC 1028;

• Application to strike some of the evidence of one of the intervenors on the basis of relevance, opinion evidence and hearsay, 2016 BCSC 1390;

• Applications of intervenors respecting the standing of a corporate plaintiff to make a constitutional rights claim, 2016 BCSC 1292;

• Applications for production of documents of the plaintiffs, 2013 BCSC 2066, 2017 BCSC 355 (during the trial itself);

• Application to compel the plaintiffs to produce documents in relation to adverse witnesses that they have called (employees of the Defendants), 2017 BCSC 444;

• Applications to examine representatives of the corporate plaintiffs, 2014 BCSC 361;

• Application for an injunction to suspend temporarily some provisions of the impugned legislation (audit procedures of the MSP billing) pending the outcome of the case, 2015 BCSC 2169;

• Application to allow a party to adduce into evidence an article or test put to and reviewed by an expert directly into evidence, 2016 BCSC 1739;

• Application to grant leave to the plaintiffs not to examine their expert on the expert’s reply or rebuttal report until after the defendants’ case and, therefore, the defendants’ expert evidence is adduced, 2016 BCSC 1822;

• Applications on whether expert evidence is appropriate expert evidence and the scope of hearsay evidence, 2016 BCSC 1896, 2017 BCSC 156;

• Applications for leave to submit expert reports during such a long trial albeit late and beyond the date fixed for the provision of such reports, 2016 BCSC 2376, 2017 BCSC 115, 2017 BCSC 445, 2017 BCSC 581;

• Application to permit admission of an addendum report by an expert witness, 2017 BCSC 559;

• Application to hold a party to the witnesses listed on its list of witnesses or whether additional witnesses can be called, 2016 BCSC 2038;

• Directions on will-say statements of witnesses, 2016 BCSC 2375;

• Applications to limit witnesses, witnesses’ evidence on the basis of improper opinion evidence, prior confidentiality agreements or respecting hearsay, 2016 BCSC 2346, 2016 BCSC 2375, 2017 BCSC 114;

• Applications on whether what can constitute a proper response expert opinion in a constitutional case, 2016 BCSC 2161, 2016 BCSC 2345 (after the defendants withdrew their expert report);

• Application for leave to adduce documentary evidence for the purposes of the proof of their contents without calling the authors as witnesses, 2016 BCSC 2377, 2017 BCSC 861;

• Application to strike a subpoena issued to a Minister to examine such Minister respecting the matters in issue, 2017 BCSC 258;

• Applications respecting the proper contents of a Brandeis brief, 2017 BCSC 860;
• Application of the press to video record and then publicly broadcast the proceedings, 2016 BCSC 1686

See also the decision of the British Columbia Court of Appeal on its jurisdiction (or more properly, its lack of jurisdiction) to determine an appeal of a ruling on the admissibility of expert witness evidence prior to the end of the trial: 2017 BCCA 287.

The above list is a summary only and many of the decisions contain rulings or directions on ancillary matters. They constitute a collective “must read” for constitutional litigators.

My second comment is that this case underscores just how expensive, difficult and time-consuming constitutional litigation can be. While one might argue that the manner in which the plaintiffs have prosecuted their case has prolonged the proceeding, one can just as well argue that the manner in which the defendants have defended has been equally or more contributory to the cost and delay. The unfortunate reality is that the vast majority of people cannot afford to prosecute a constitutional complaint. If a group of physicians, some of the most highly paid professionals in Canada, have to adjourn their trial in order to fund-raise, then quite clearly, constitutional rights litigation has become a luxury only for the richest members of Canadian society. That is a very unfortunate comment to make. The constitution and especially the Charter of Rights and Freedoms should not be the exclusive purview of the wealthy. It so happens in this case that physicians are paying for a constitutional challenge for some individuals who are alleging that the public health system is so rife with delays and unnecessary obstacles that they cannot access the health care they need when they need it. Of course, if Cambie has its way, then the path will be cleared for those who can afford it to pay directly for the required health care and then try to claim back some or all of the monies paid from the public health care system. Arguably, this statement shows how the Charter is being litigated in a manner that favours the well-off (the plaintiffs will argue that allowing for private health care will free up public resources for those who cannot afford stepping outside the public health care system).

My last comment is that this case will be most likely the most important case in relation to public health care and Charter rights that we will see in decades. The record will be extensive and exhaustive. While one might question the cost of the litigation, one will not be able to question the quality and scope of the evidentiary record. Because this case will no doubt climb its way to the highest court, the judicial analysis will be similarly comprehensive.

For now, stay tuned and watch for decisions emanating from the British Columbia courts entitled “Cambie Surgeries Corporation”….

I remain

Constitutionally yours,

Arthur Grant

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