Opening Statement of The Defendants

No.
S-090663
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, GLYN TOWNSON,
THOMAS McGREGOR, BRITISH COLUMBIA FRIENDS OF MEDICARE
SOCIETY, CANADIAN DOCTORS FOR MEDICARE, MARIL SCHOOFF,
DAPHNE LANG, JOYCE HAMER, MYRNA ALLISON,
and the BRITISH COLUMBIA ANESTHESIOLOGISTS SOCIETY
INTERVENORS
AND:
ATTORNEY GENERAL OF CANADA
PURSUANT TO THE CONSTITUTIONAL QUESTION ACT
Opening Statement
Of the Defendants
Contents
I.
Overview ........................................................................................................................................ 6
II. What Is In Issue? The Scheme and the Legislation ...................................................................... 9

A. Outline of Medicare................................................................................................................. 10
B. Canada Health Act .................................................................................................................... 11
1.
The Criteria and Conditions ............................................................................................................ 11
2.
Provincial Implementation ............................................................................................................... 13
C. Medicare Protection Act .............................................................................................................. 15

1.
The Purpose of the Act ..................................................................................................................... 16
2.
The Impugned Provisions ................................................................................................................. 17
3.
Enforcement Provisions .................................................................................................................... 18
4.
Terminology....................................................................................................................................... 18
III.
a)
Extra Billing ................................................................................................................................... 18
b)
Private Health Insurance............................................................................................................... 19
c)
Private Finance, not Private Delivery............................................................................................ 20
d)
Rationing ....................................................................................................................................... 21
What is the Applicable Law? ................................................................................................... 22
A. Section 7 ................................................................................................................................... 22
1.
Can Section 7 Apply to These Facts? ................................................................................................ 22
2.
Causation ........................................................................................................................................... 23
3.
The Principles of Fundamental Justice ............................................................................................. 24

a)
Interrelationship............................................................................................................................ 26
b)
Arbitrariness .................................................................................................................................. 27
c)
Overbreadth .................................................................................................................................. 28
d)
Gross Disproportionality .............................................................................................................. 30
e)
Vagueness ...................................................................................................................................... 31
B. Section 15................................................................................................................................. 32
C.
1.
Section 1 ............................................................................................................................... 36
The Test ............................................................................................................................................. 36
2
2.
The relationship between Section 7 and Section 1.......................................................................... 39
D.
General Principles of Constitutional Law........................................................................... 41
1.
Nature of constitutional adjudication .............................................................................................. 41
2.
Appropriate Remedy ......................................................................................................................... 42
3.
Implications for other legislation ...................................................................................................... 45
4.
Courts do not make health policy .................................................................................................... 46
IV.
Chaoulli ..................................................................................................................................... 47
A. What the decision actually was................................................................................................ 47

1.
The Quebec Charter ........................................................................................................................... 48
2.
The Canadian Charter ....................................................................................................................... 49

a)
Section 7 Violation ....................................................................................................................... 50
b)
No Section 7 Violation ................................................................................................................. 51
B. Why Chaoulli is not helpful to the Plaintiffs ........................................................................... 52

V.
What will the Evidence Show? ................................................................................................ 56

A. The Purposes of the Impugned Provisions ............................................................................. 56
B. History of Medicare ................................................................................................................. 57
1.
Professor Gregory Marchildon .......................................................................................................... 57
C.
Legislative History ................................................................................................................ 62
1.
1964 Hall Commission Report......................................................................................................... 63
2.
1980 Hall Report............................................................................................................................... 64
3.
Seaton Commission Report .............................................................................................................. 65
4.
The Kirby Report............................................................................................................................... 67
5.
The Romanow Commission ............................................................................................................. 68
D.
Operation of the British Columbia health care system ...................................................... 70
1.
Structure ............................................................................................................................................ 71
2.
Problems ............................................................................................................................................ 74
3.
The Evidence of Physicians ............................................................................................................... 75

a)
Dr. Andrew Hamilton ................................................................................................................... 75
b)
Dr. Margaret McGregor ................................................................................................................ 77
c)
Dr. Khati Hendry .......................................................................................................................... 78
d)
Dr. John Reid ................................................................................................................................ 80

3
e)
Dr. Cyril Frank .............................................................................................................................. 82
f)
Dr. Eric Bohm ............................................................................................................................... 86
g)
Dr. James Waddell ........................................................................................................................ 87
h)
Dr. Wayne Hildahl ........................................................................................................................ 87
i)
Dr. Danyaal Raza ........................................................................................................................... 88
4.
Efforts to Improve the System .......................................................................................................... 89

a)
5.
E.
Dr. Andrew Hamilton ................................................................................................................... 90

The Workers Compensation System ............................................................................................... 93
a)
Andrew Montgomerie ................................................................................................................... 93
b)
Professor Jeremiah Hurley ............................................................................................................ 94
The Expert Evidence ................................................................................................................ 95

1.
Dr. Cyril Frank .................................................................................................................................. 96
2.
Dr. Eric Bohm ................................................................................................................................... 97
3.
Professor Ivy Bourgeault.................................................................................................................... 97
4.
Professor P.J. Devereaux.................................................................................................................... 99
5.
Professor Jeremiah Hurley...............................................................................................................100
6.
Professor Eike-Henner Kluge ..........................................................................................................103
7.
Dr. Robert McMurtry ......................................................................................................................105
8.
Professor Jason Sutherland .............................................................................................................108
9.
Dr. Jeffrey Turnbull .........................................................................................................................110
F.
The International Evidence ...................................................................................................112

1.
Professor Theodore Marmor ...........................................................................................................112
2.
Professor Gregory Marchildon ........................................................................................................115
3.
Professor Charles Normand............................................................................................................121
4.
Professor Adam Oliver ....................................................................................................................122
5.
Dr. Allyson Pollock .........................................................................................................................125
6.
Professor James Gillespie ................................................................................................................127
7.
Professor Jacqueline Cumming.......................................................................................................128
8.
Professor Sara Kreindler..................................................................................................................130
9.
International Publications...............................................................................................................132
a)
Health System Performance Comparison ..................................................................................133
b)
Making Sense of Health Rankings..............................................................................................133

4
c)
Fiscal Sustainability of Health Systems.......................................................................................135
d)
Tackling Excessive Waiting Times for Elective Surgery .............................................................137
e)
Waiting Time Policies in the Health Sector...............................................................................137
f)
Health at a Glance 2015 .............................................................................................................138
g)
Health Care Systems: Efficiency and Institutions ......................................................................139
h)
Measuring and Comparing Health Care Waiting Times ..........................................................140
i)
Private Health Insurance in OECD Countries ..........................................................................140
j)
Germany: Health System Review................................................................................................141
k)
France: Health System Review ....................................................................................................141
l)
Financing Health Care in the European Union ........................................................................142
m)
10.
G.
Health Systems Financing.......................................................................................................143

Summary Tables ..........................................................................................................................143
Evidence relating to the Plaintiffs......................................................................................144
1.
The Individual Plaintiffs .................................................................................................................144
2.
The Corporate Plaintiffs .................................................................................................................145

a)
Stephen Abercrombie .................................................................................................................146
b)
Admissions ..................................................................................................................................148
c)
Evidence of Physicians ................................................................................................................150
d)
The Plaintiff Clinics documents ................................................................................................151
VI.
Implications of Granting the Relief Sought .........................................................................153
VII.
Conclusion .............................................................................................................................156
Authorities Referenced .....................................................................................................................158

Appendices ........................................................................................................................................159
I.
Overview
The Plaintiffs ask the Court to strike down important provisions of British Columbias Medicare
Protection Act under ss. 7 and 15 of the Charter so that (a) doctors in British Columbia can offer
patients with sufficient means expedited access to health care in return for fees paid partly by the
public health care system and partly by the patient (or else entirely by the patient), and (b) those
patients who are medically insurable and able to afford coverage will be able to recoup some of
their cost from private insurance.
The position of the Attorney General, on behalf of the Government of British Columbia and the
Medical Services Commission, is that granting the Plaintiffs the relief they seek would violate the
fundamental principles on which the Provinces universal health care system is founded, as
specifically set out in the Medicare Protection Act:
Purpose
The purpose of this Act is to preserve a publicly managed and fiscally sustainable health
care system for British Columbia in which access to necessary medical care is based on
need and not an individuals ability to pay.
Were the Plaintiffs granted the relief they seek, this would divert into a private system, available
only to some, the resources needed to continue the effort to provide timely care for all in British
Columbias public health care system. It would negate much of what has been accomplished over
many years creating and continually working to improve a public health care system supported by
all according to their means and providing needed care to all resident in the province without
regard either to means or to medical history.
The position of the Attorney General regarding s. 7 of the Charter is this:

a) The impugned provisions are clearly rationally connected to the central purpose of the
Medicare Protection Act.
b) While longer than desirable waiting lists persist for some elective or scheduled
procedures, and there have inevitably been failures by physicians in individual cases to
provide patients with appropriate priority on their waiting lists, the system continues
actively to seek solutions to the waitlist problem as part of its mission to provide protection
of life and the security of the person for the benefit of the population as a whole.
c) Because s. 7 invokes principles of fundamental justice, it cannot be applied to the
operation of a scheme of this sort, affording social benefits as opposed to legal rights, the
position supported by the weight of judicial authority in Chaoulli.
d) If, in the alternative, principles of fundamental justice can be invoked in this context, they
are not offended by the impugned provisions of the Medicare Protection Act. Those
provisions are necessary to protect universal health care and prevent extra-billing, which
would make access difficult for all residents of British Columbia, but particularly those in
greatest medical need. As well, those provisions are necessary to prevent the creation of a
competing private system, which would depend for its success on the existence of lengthy
waitlists in the public system, on attracting essential personnel doctors, nurses, and
technicians from the public system by increased rewards for reduced work, and on
support drawn from a public system paid for by all.
The position of the Province regarding s. 15 of the Charter is that the Medicare Protection Act does
not create any discriminatory distinctions among British Columbians. The only basis on which
some British Columbians are exempted from the prohibition of extra billing is the ability to access
alternative sources of public funding for necessary medical care.
If it were necessary for the Court to consider s. 1 of the Charter, the Attorney Generals position,
that the legislation is manifestly justifiable in a free and democratic society, would largely follow
her position in respect of s. 7.
The Attorney General will develop these points under five main headings: an outline of the British
Columbia public health care scheme and its supporting legislation; the principles of law relevant to
ss. 7 and 15; the decision in Chaoulli and its implications for this case; the evidence to be given by
the Defendants witnesses; and the implications of the relief that the Plaintiffs seek.
II.
What Is In Issue? The Scheme and the Legislation
British Columbians, like other Canadians, are rightfully proud of their public health care system,
and in particular, of the commitment by Parliament and all of the provincial Legislatures to the
principle that medically necessary services should be available on the basis of need, rather than
ability to pay. It is, in the words of the Romanow Commission in 2002, a worthy national
achievement, a defining aspect of our citizenship, and an expression of social cohesion. 1
Mr. Justice Emmett Hall, in his 1980 report A Commitment for Renewal, said: 2
Canadians understand the full meaning of the Hospital Insurance and Medical Care Acts.
They said, through these two acts, that we, as a society, are aware that the trauma of illness,
the pain of surgery, the slow decline to death, are burdens enough for the human being to
bear without the added burden of medical or hospital bills penalizing the patient at the
moment of vulnerability. The Canadian people determined that they should band together
to pay medical bills and hospital bills when they were well and income earning. Health
services were no longer items to be bought off the shelf and paid for at the checkout stand.
Nor was their price to be bargained for at the time they are sought. They were a
fundamental need, like education, which Canadians could meet collectively and pay for
through taxes.
I dont think it possible to overstate the significance of the declaration of the basic beliefs
of the Canadian people that were manifested in the Hospital and Medical Care Insurance
Acts.
This case represents a challenge to the very foundation of Canadas public health care system. The
Plaintiffs seek to prevent the Legislature, and implicitly Parliament, from enacting legislation to
prohibit physicians from charging British Columbians directly in exchange for providing medical
services to them. This practice is generally known as extra billing (a term that will be defined
more precisely below).
Commission on the Future of Health Care in Canada, Building on Values (Ottawa: Queens Printer, 2002) at xxi.
(Affidavit #1 of Gigi Mandy, sworn 4 August 2016, Exhibit V)
2
Hon. Emmett P. Hall, Canadas National-Provincial Health Program for the 1980s: A Commitment for Renewal (Ottawa:
Queens Printer, 1980), p. 27. (Mandy Affidavit, Ex. L)
Mr. Justice Hall said that if extra-billing is permitted as a right and practised by physicians in their
sole discretion, it will, over the years, destroy the program, creating in that downward path the twotier system incompatible with the societal level which Canadians have attained. 3 If this Court
finds that the Constitution of Canada requires the Legislature to permit extra-billing, it will
necessarily mean the end of a health care system in Canada in which medically necessary care is
equally available to all irrespective of their ability to pay.
While the Plaintiffs would have the Court believe that British Columbias health care system can
be reduced to a simple and straightforward schematic in which striking down the prohibitions on
extra billing will provide a solution for the problems of waitlists in the public system without any
negative repercussions, the Defendants evidence will demonstrate that the health care system is
highly complex, and the repercussions for various components of that system of striking down
those prohibitions are uncertain and problematic.
The Defendants evidence will further demonstrate that the solution to waitlists proposed by the
Plaintiffs is likely to actually worsen problems with waitlists in the public health care system, and
certainly will not improve them. In fact, granting the relief sought by the Plaintiffs would create
perverse incentives for physicians, and would introduce a private system that would depend on
abandonment of the present efforts to reduce wait times in the public system, a private system the
profitability of which would depend on the extent to which lengthy wait times in the public system
could be assured.
A.
Outline of Medicare
In every province and territory, Canadians have a statutory entitlement to receive medical (and
some dental) services and hospital services that are determined to be medically necessary without
charges at the point-of-service, but paid for instead by insurance premiums and tax revenues
derived from the whole population.
3
A Commitment for Renewal, supra.
10
This entitlement is designed to ensure that Canadians have access to these services on the basis of
relative need rather than on the basis of relative wealth. It therefore ensures a significant measure
of equality of access, particularly among the residents of each province or territory, to most
medical and hospital services. In a nutshell, this system is what is called Medicare.
B.
Canada Health Act
The existence of Medicare as a quasi-national program depends upon the Canada Health Act. The
function of the Canada Health Act is to establish the criteria and conditions of eligibility that each
province or territory must satisfy to receive their full share of the annual cash contributions to
health-care spending, called the Canada Health Transfer, that the federal government decides to
make to the provinces and territories. These eligibility criteria and conditions apply to the design
and functioning of the health-care insurance plan that the Act says each province and territory
must have.
1.
The Criteria and Conditions
Pursuant to the Canada Health Act, a provincial health-care insurance plan must meet the five
program criteria of:
(1) public administration;
(2) comprehensiveness;
(3) universality;
(4) portability; and
(5) accessibility (the Five Criteria).
In 2005, Deschamps J. described the Five Criteria as the hallmarks of Canadian identity. 4
4
Chaoulli v. Qubec (Procureur gnral), 2005 SCC 35 at para. 16.
11
In addition, in respect to the health services that the plan insures, extra-billing and user charges
(terms which will be defined later) must not be permitted under the plan.
The exceptions in the legislation occur where medically necessary services are provided to: (a)
injured workers entitled to the service under workers compensation legislation; (b) members of
the Canadian Forces, federal inmates, or certain other federal individuals; or (c) provincial or
territorial residents who have not met the residency requirement of three months or less set by the
province or territory. The result of the exceptions is that medical services are provided to these
individuals through a program other than the provincial health-care insurance plan (in the case of
(a) or (b)) or they pay for medical services themselves (in the case of (c)).
The requirement for public administration in the Canada Health Act ensures political
accountability for the administration and operation of health-care insurance plans. More to the
point, it requires the provinces and territories to be accountable for establishing and maintaining
plans that directly fund medical and hospital services instead of plans that subsidize the purchase
of private insurance, which could be insurance on differential terms reflecting factors such as age,
gender, occupation, and health status. In this respect, the public administration criterion works
with the universality and the accessibility criteria, both of which require insurance to be provided
on uniform terms and conditions.
In conjunction with the requirement of universal coverage under the universality criterion, the
public administration criterion ensures that each health-care insurance plan functions as a
centralized payer for all of the services that the plan is required to include under the criterion of
comprehensiveness. This avoids the cost of multiple administrative structures and contributes to
cost control by giving governments, as single payers, greater bargaining power with providers. It
also ensures that everyone in a province or territory, with certain limited exceptions, depends on
the same third-party funder to pay for most of the physician and hospital services they require.
12
The rationale of the universality criterion is to ensure general equality of access, to the extent that
it depends on ability to pay, to the services that a health-care plan is required to fund in order to
satisfy the comprehensiveness criteria. The standard of equal access implied is, however, a
provincial or territorial one, and not a national one: the requirement is entitlement on uniform
terms and conditions among one hundred percent of the insured persons of the province (or
territory).
Accessibility thus comes into play where universality leaves off: it repeats the requirement for
uniform terms and conditions of access but adds that the access must also be reasonable.
What reasonableness means in this context is not defined. Because medical necessity is the basis
on which a service becomes a service that must be insured, however, the reasonableness of access
to those services likely also depends on what is medically necessary. Guidance may also be taken
from section 3 of the Canada Health Act, which states that the primary objective of Canadian
health care policy is to protect, promote and restore the physical and mental well-being of residents
of Canada.
The overall effect of the Canada Health Act is that each province or territory that wants its full
share of the Canada Health Transfer has to establish a health-care insurance plan that is
administered by a public authority accountable to the provincial or territorial government and that
pays 100% (more or less) of the cost of a comprehensive range of medical and hospital services
whenever they are provided, with limited exceptions, to any resident of the province or territory.
2.
Provincial Implementation
Although the Canada Health Act imposes requirements on the provinces and territories if they wish
to receive federal funding for their health care systems, the primary constitutional responsibility for
health care rests with the provinces. 5
5
PHS Community Services Society v. Canada (Attorney General), 2011 SCC 44 at paras. 66-68.
13
To meet the federal criteria, provinces must implement additional and detailed regulations that, in
their view, ensure the feasibility of the system. That is why the organization and regulation of
public healthcare in Canada is largely determined by provincial legislation.
Provinces generally use three different measures of regulation to ensure the feasibility of the
system:
1. prohibition of duplicate private insurance;
2. prohibition of dual practice; and
3. capping of physicians private fees to the level of public fees.
These three provincial measures are not specifically mandated by the Canada Health Act. The
Canada Health Act sets general criteria, and provinces must find their own ways to reach the
objectives set by the federal statute. Based on their own constitutional powers, Canadian provinces
have each in their own way generally adopted the three measures discussed, although the details
and the number of measures used vary from one province to another. The most common
definition or characteristics of each of the three measures are described below.
The prohibition of duplicate private insurance forbids the insurance industry from offering
insurance that would duplicate coverage for services that are covered by the public healthcare
system package.
The prohibition of dual practice can be structured from one or both of two perspectives: the
physician, and the clinic. Under the first category, the physician cannot work at the same time
both in and out of the public system. Physicians who enrol in the public system must devote their
services entirely to the public system. A physician cannot offer services to private clients while also
being paid by the public system. A second layer to the prohibition of dual practice can be added,
focused on clinics, whereby the presence of enrolled and un-enrolled physicians in the same
medical clinic or surgical facility is prohibited. The prohibition of clinical dual practice means
14
that a clinic or surgical facility cannot function with both enrolled and un-enrolled physicians. In
other words, the clinic or facility can only be of one type or the other.
The capping of private fees at the level of public fees means that un-enrolled physicians cannot
charge private patients more than what is paid by the province for the equivalent service.
Provinces have enacted these regulatory measures in order to meet their obligations under the
Canada Health Act to ensure accessibility. At the end of the day it is the provinces, and not the
federal government, that must pay for healthcare services provided to all their residents and to
ensure access for all. The provinces have had to control extra-billing to ensure that services are not
priced beyond the reach of those who need health care and, further, to prevent the diversion of
public funds to a private healthcare system that can only provide services to a portion of the
population.
Versions of all three provincial measures described above are in issue in this litigation, as will be
described below.
C.
Medicare Protection Act
In British Columbia, the Five Criteria of the Canada Health Act have been adopted not simply as a
means to receive federal funding, but as the guiding principles for administering health care in the
Province. 6
The current incarnation of the legislative means by which British Columbia has implemented
Medicare as it relates to physician services is the Medicare Protection Act 7 (the Act). The Act was
enacted as the Medical and Health Care Services Act in 1992 8 and renamed in 1995. 9 The Medical
B.C.G.E.U. v. British Columbia (Minister of Health Services), 2007 BCCA 379 at para. 41.
R.S.B.C. 1996, c. 286.
8
S.B.C. 1992, c. 76.
9
By S.B.C. 1995, c. 52.
7
15
and Health Care Services Act repealed and replaced the 1967 Medical Services Act, 10 as well as the
Medical Service Plan Act, 1981 11 (the 1981 Act). This legislation represents the Legislatures
attempt, over the last 50 years, to balance the many interests that inhere in a complex, dynamic
public health care system, including the interests of patients, health care providers, and taxpayers.
The Act governs the provision of payment by the Medical Services Commission to physicians who
are enrolled in the Medical Services Plan, in return for their provision of medically necessary
services (known as benefits) to British Columbia residents who are enrolled in the Plan (known
as beneficiaries). In brief, when an enrolled physician provides a medically necessary service to a
beneficiary, the physician is entitled to submit a claim to the Plan for an amount set out in a fee
schedule that is negotiated among the Commission, the Government, and the Doctors of BC
(formerly the BC Medical Association).
The Legislature has expressly adopted the five Canada Health Act criteria in the Medicare Protection
Act, at sections 5.1 through 5.6, and requires the Medical Services Commission, in exercising its
powers under the Act, to have regard to those principles.
1.
The Purpose of the Act
Section 2 of the Act provides as follows:

Purpose
The purpose of this Act is to preserve a publicly managed and fiscally sustainable health care
system for British Columbia in which access to necessary medical care is based on need and
not an individuals ability to pay.
This purpose is central to the constitutional issues that are raised in this litigation, and will be
referred to frequently.
10
11
S.B.C. 1967, c. 24, re-enacted as the Medical Service Act: R.S.B.C. 1979, c. 255.
S.B.C. 1981, c. 18.
16
2.
The Impugned Provisions
The provisions of the Medicare Protection Act that the Plaintiffs challenge in this litigation are
sections 14, 17, 18, and 45. Those sections are referred to herein as the Impugned Provisions.
In summary, section 14 permits a physician who is enrolled with the Commission to opt out of
the billing process and bill beneficiaries directly. 12 The beneficiaries must then claim
reimbursement from the Commission for the amount billed.
Section 17 prohibits the charging of beneficiaries for benefits, or for matters relating to the
rendering of benefits, unless otherwise provided for in the Act, in the regulations, or by the
Commission. (Section 17(2)(d) stipulates that this prohibition does not apply to services provided
by physicians who have not enrolled with the Commission.)
Section 18 prohibits non-enrolled physicians from charging beneficiaries more than the amount
permitted by the fee schedule, for services provided in hospitals or community care facilities. It
also places the same limits on physicians who have opted out under s. 14, regardless of the location
where they have provided their services.
Section 45 prohibits contracts of insurance that would cover the cost of services that are benefits
when provided to beneficiaries.
The prohibitions on charging beneficiaries for benefits can be traced back to the 1981 Act, which
provided that no medical practitioner participating in the plan shall, for an insured service
rendered in respect of an insured person, seek compensation by means of balance billing, extra
billing or extra charging, or demand or receive any payment other than a payment under the plan
and the agreement [with the BCMA]. 13
12
This opted out status must be distinguished from the non-enrolled status of physicians who choose not to enroll
with the Commission at all. Different terminology is used in different jurisdictions.
13
Medical Service Plan Act, 1981, S.B.C. 1981, c. 18, s. 6(2).
17
The prohibition on insurance can be traced back to the enactment of the Medical and Health Care
Services Act in 1992.
3.
Enforcement Provisions
Section 15 of the Act provides that the Medical Services Commission may take action against a
practitioner for contraventions of either of sections 17 or 18. Actions that the Commission may
take include cancellation of the practitioners enrolment and an order that the practitioner not
apply for enrolment for a specified period. The Commission may also order that payments to the
practitioner will be made at a reduced rate for a specified period.
Section 45.1 of the Act provides that the Commission may apply to the Court for an injunction
restraining any person from contravening, inter alia, sections 17 or 18. This section was brought
into force on 1 December 2006; 14 prior to that date, the Act did not provide a means whereby the
Commission could sanction violations of sections 17 or 18 by persons other than physicians.
4.
Terminology
There is an unfortunate lack of consistency in the terminology used in the area of public health
care that the Court will be considering in this case. It will be helpful to set out some of the key
concepts, and the differences in the terminology that the court will hear.
a)
Extra Billing
Extra billing as used by the Medical Services Commission and the Ministry of Health refers to
any charge levied in breach of the prohibitions described above. The audit of Cambie Surgery
Centre and the Specialist Referral Clinic defined the term this way:
14
B.C. Reg 306/06.
18
Charges to a beneficiary for a benefit or for materials, consultations, procedures, use of an

office, clinic or other place, or for any matters that relate to the rendering of a benefit, as
defined under Section 17 of the Act.
This is the sense in which the Defendants will use the term extra billing.
Under the Canada Health Act, however, extra billing has a narrower meaning: it refers to charges
rendered to a beneficiary in addition to amounts payable by the MSP. In British Columbia, such
charges are usually referred to as double billing, and that is how the Defendants will refer to
such practices.
User charges are defined in the Canada Health Act to mean any charge to a beneficiary that is
not payable, directly or indirectly, by the MSP; it excludes extra billing as defined by that Act.
Thus in British Columbia extra billing includes both extra billing and user charges as
defined in the CHA.
Balance billing is a term that has been used from time to time to refer to the practice of billing a
patient an amount in addition to the amount paid by the MSP what British Columbia now
refers to as double billing and the CHA refers to as extra billing.
Overlapping billing is a term used by the Provinces auditors in the Billing Integrity Program. It
describes a situation where a physician has submitted a claim to the MSP for providing a service to
a beneficiary, and the beneficiary has also been charged in connection with that service, but it is
unclear whether the physician has personally received any of the money that the patient was
charged.
b)
Private Health Insurance
Private health insurance (PHI) is coverage of a defined set of health services financed through
private non-income-related payments (premiums) made to an insuring entity. The coverage
guarantee is usually set out in a contract between a private party and the insurance entity that
19
spells out the terms and conditions for payment or reimbursement of health services. The insuring
entity assumes much or all of the risk for paying for the contractually-specified services. There are
three primary types of private health insurance, which are not always labelled consistently:
Duplicate private insurance, also known as duplicative, supplementary, or parallel
private insurance, refers to private insurance that provides access to services that are already
available within the publicly-financed health care system. This is the kind of private
insurance that is prohibited by s. 45 of the Act, and it is the kind of insurance that is
meant when the Defendants refer to private insurance.
Complementary private insurance, also known as supplementary private insurance,
refers to insurance that provides access to services that are not covered by the publiclyfinanced health care system, or costs associated with publicly-financed services, such as copayments. Many Canadians have such insurance to cover costs for goods and services not
covered by Medicare, including prescription drugs and dental care.
Substitutive private insurance, also known as primary private insurance, refers to
insurance that provides coverage in lieu of a publicly-financed health care system. This type
of insurance does not exist in Canada, but is found in countries like Switzerland and the
Netherlands.
c)
Private Finance, not Private Delivery
It is important in this case to distinguish between private delivery of health care and private
financing of health care. Financing refers to the activity of raising the revenue required to fund
the provision (or delivery) of health care. Financing can be public (e.g., through the tax system) or
private (e.g., purchasing private insurance). The delivery system refers to the providers of health
care. The delivery system can be public (e.g., a provider is a public employee) or private (the
provider is a private not-for-profit or a for-profit organization). Further, publicly financed services
can be delivered by private providers and privately financed services can be delivered in public
facilities.
20
Neither the Medicare Protection Act nor the Canada Health Act limit the ability of physicians or
others to deliver health care privately. In fact, the evidence will show that the provision of health
care in British Columbia is largely in the hands of individual doctors operating in private
professional practices, on whom the public health care system relies to exercise their professional
judgment in allocating care among their patients according to need. What is proscribed in British
Columbia is private payment for services that are available through the Medical Services Plan,
whether the cost of that payment is borne by the individual patient directly or by a private insurer.
This distinction is fundamentally important, because it is only the possibility of private financing
that raises concerns regarding inequitable access to necessary medical care.
d)
Rationing
Rationing is a term used frequently used by the Plaintiffs, but one which can have a number of
different meanings. It is important in particular that the Court distinguish between rationing
and priority-setting: while many commentators use the terms synonymously, they are
conceptually distinct in a significant way. Priority-setting is a process whereby governments,
public authorities, or clinicians make decisions about the relative ranking to be attached to
different programs, services, or types of patients. Although this fulfils the same function as
rationing, in that it distributes scarce goods or services when there is no market to perform the
task, it does not include techniques such as deflection or deterrence that characterize the
rationing process. In a health care system in which treatment is made available on the basis of
ability to pay, for example, treatment is rationed on that basis: those who are unable to pay for
care do not receive it. In a health care system based on addressing need, as British Columbias is,
resources must be directed so as to seek to ensure that (a) treatment is offered only where there is
medically justifiable need, (b) all those with medically justifiable needs receive treatment within a
reasonable time, and (c) those with the greatest need receive priority over those whose need is less.
This is accomplished through the setting of priorities, partly on a systemic basis by the Ministry
and the health authorities, but more directly by individual physicians when exercising their
professional judgment in the context of particular patients.
21
III.
What is the Applicable Law?

A.
Section 7
The Plaintiffs primary claim in this case is based on section 7 of the Canadian Charter of Rights and
Freedoms, which provides as follows:
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.
1.
Can Section 7 Apply to These Facts?
Section 7 has a complex and challenging history. As the Alberta Court of Appeal recently noted
with respect to s. 7: This provision is notoriously open-ended, and its application to the
constitutional review of social and economic policies is controversial and unsettled. 15
The placement of s. 7 in a chapter of the Charter headed Legal Rights, however, has meant that it
has almost exclusively been analyzed and applied in the context of the justice system and its
administration. There is only one case in the 34 year history of the Charter at the Supreme Court
of Canada where it has come close to being applied outside of that context: Chaoulli v. Quebec
(Attorney General).16 That decision will be discussed in detail later.
In Blencoe, however, Mr. Justice Bastarache for the majority of the Supreme Court of Canada
stated that although the scope of s. 7 had been broadened beyond the criminal justice system, it still
only applies where state action directly implicates the justice system and its administration. 17
15
Allen v. Alberta, 2015 ABCA 277, at para. 31.

Supra.
17
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at paras. 45-46.
16
22
The Defendants position will be that s. 7 cannot apply in the context of this case, because the
provisions that are challenged by the Plaintiffs do not in any way engage the justice system and its
administration.
If the Court decides that section 7 is indeed engaged in this action, in order to establish that the
Legislature has breached their rights under that section the Plaintiffs must establish both that: 18
a. the Impugned Provisions have a sufficient causal connection to a deprivation of their
life, liberty, or security of the person; and
b. that deprivation is not consistent with the principles of fundamental justice.
2.
Causation
Normally, when a plaintiff is challenging the constitutionality of a legislative provision, they are
required to demonstrate that the legislative provision they are challenging has caused the harm
they seek to remedy. This claim is different.
The Plaintiffs do not attempt to argue that the Impugned Provisions have caused the problem that
they are attempting to remedy lengthy wait lists in the public health care system. The Defendants
say that the evidence would not permit such an argument. Rather, they assert that the problem
arises from the operation of the health care system, and that the Impugned Provisions prevent
them from paying a physician to provide them with a remedy. This is an unusual, almost unique,
approach to causation.
Nevertheless, the Defendants say that the Plaintiffs will be required to demonstrate, on the
evidence, that striking down the Impugned Provisions would provide actual relief connected to the
harm that they allege. Specifically, the Plaintiffs must demonstrate that granting the relief they seek
would reduce lengthy wait lists in the public system. If they cannot do that, the Defendants say
that they have not established the causation necessary to ground the remedy that they seek.
18
Bedford v. Canada (Attorney General), 2013 SCC 72, at paras. 74-78; Carter v. Canada, 2015 SCC 5, at para. 55.
23
3.
The Principles of Fundamental Justice
The importance of the onus on the Plaintiffs to establish a violation of a principle of fundamental
justice cannot be overstated. As the Supreme Court of Canada recently noted:
Section 7 does not promise that the state will never interfere with a persons life, liberty or
security of the person laws do this all the time but rather that the state will not do so in
a way that violates the principles of fundamental justice. 19
Even if the Plaintiffs were able to persuade the court that the Impugned Provisions have deprived
them of their life, liberty, or security of the person, they have not made out a breach of s. 7 unless
they are also able to establish on the evidence that such a deprivation was not in accordance with
the principles of fundamental justice.
The principles of fundamental justice are not enumerated in the Charter. Rather, they have been
identified and elaborated over time in the jurisprudence, and their content has been subject to
differing interpretations from time to time.
The Alberta Court of Appeal and the Ontario Court of Appeal have both recently warned of the
risks inherent in attempting to apply the principles of fundamental justice in the context of social
programs such as the MSP. The comments of the Alberta Court of Appeal included: 20
The text of s. 7 signals that the drafters of the Charter never intended it to be applied to the
review of social and economic policies. It certainly was not drafted with that in mind. In
addition to its wording being open-ended, there is no obvious link between 1) the concept of
a social or economic policy impinging on security of the person, and 2) the exception in
accordance with the principles of fundamental justice.
As Prof. Hogg points out, ... many of the Charter rights are expressed in exceedingly vague
terms, and all of the rights come into conflict with other values respected in Canadian
society: P. Hogg, Constitutional Law of Canada (5th ed) (Toronto: Carswell, looseleaf) at
19
20
Carter, supra, at para. 71.

Allen, supra, at paras. 33, 36.
24
para. 36.4(a). A social policy choice that reflects such other values, such as equality of
access to health care, is an important component in assessing whether the policy is justifiable
in a free and democratic society.
In 2014 the Ontario Court of Appeal dismissed an appeal involving s. 7 as not even being
justiciable, with the following comments: 21
Finally, there is no judicially discoverable and manageable standard for assessing in general
whether housing policy is adequate or whether insufficient priority has been given in general
to the needs of the homeless. This is not a question that can be resolved by application of
law, but rather it engages the accountability of the legislatures. Issues of broad economic
policy and priorities are unsuited to judicial review. Here the court is not asked to engage in
a court-like function but rather to embark on a course more resembling a public inquiry
into the adequacy of housing policy.
The Defendants say that in the context of a complex scheme providing social benefits, such as the
public health care system, the concept of fundamental justice has a profoundly different
meaning from the meaning it bears in the context of the administration of justice. In the context
of a social benefit scheme, fundamental justice means striving to alleviate the condition of the
less advantaged members of society at the expense of those more fortunate, understanding that
such ideals of social justice are often achieved only with difficulty, and can never be attained
completely in every individual case.
In such a context, the Defendants say that legislation ought not to be struck down as
unconstitutional because of occasional shortcomings of the system, particularly where the
successful achievement of the legislative objectives requires the co-operation of those both within
and outside government.
The Plaintiffs have identified four principles of fundamental justice that they allege apply to their
claim: arbitrariness; overbreadth; gross disproportionality; and vagueness. The Defendants will
describe each of these in turn.
21
Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 at para. 33; leave to appeal denied 22 June 2015.
25
It must first be noted, however, that the first three principles on which the Plaintiffs rely are not
entirely distinct and independent of each other.
a)
Interrelationship
The Supreme Court of Canada acknowledged in Bedford the interrelated nature of the principles
of arbitrariness, overbreadth, and gross disproportionality: 22
As these principles have developed in the jurisprudence, they have not always been applied
consistently. The Court of Appeal below pointed to the confusion that has been caused by
the commingling of arbitrariness, overbreadth, and gross disproportionality (at paras. 14351). This Court itself recently noted the conflation of the principles of overbreadth and gross
disproportionality (R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 (S.C.C.), at paras. 3840; see also R. v. C. (S.S.), 2008 BCCA 262, 257 B.C.A.C. 57 (B.C. C.A.), at para. 72). In
short, courts have explored different ways in which laws run afoul of our basic values, using
the same words arbitrariness, overbreadth, and gross disproportionality in slightly
different ways.
Although there is significant overlap between these three principles, and one law may
properly be characterized by more than one of them, arbitrariness, overbreadth, and gross
disproportionality remain three distinct principles that stem from what Hamish Stewart calls
failures of instrumental rationality the situation where the law is inadequately
connected to its objective or in some sense goes too far in seeking to attain it (Fundamental
Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 151). As Peter
Hogg has explained:
The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom
intended to address what Hamish Stewart calls failures of instrumental
rationality, by which he means that the Court accepts the legislative objective, but
scrutinizes the policy instrument enacted as the means to achieve the objective. If
the policy instrument is not a rational means to achieve the objective, then the law
is dysfunctional in terms of its own objective.
Thus there will be overlap in the treatment of the various principles identified by the Plaintiffs.
The ultimate question for the court will be whether the Plaintiffs have discharged the burden of
establishing that the Impugned Provisions deprive them of life, liberty, or security of the person in
a manner that violates a principle that is vital or fundamental to our societal notion of justice.
22
Bedford, supra, at paras. 106-107.
26
b)
Arbitrariness
The first principle of fundamental justice on which the Plaintiffs rely is arbitrariness. A law will
only be arbitrary in this sense if it has no connection to the objective that lies behind it. The
Supreme Court of Canada described it this way in Bedford:
Arbitrariness asks whether there is a direct connection between the purpose of the law and
the impugned effect on the individual, in the sense that the effect on the individual bears
some relation to the laws purpose. There must be a rational connection between the object
of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or
security of the person (Stewart, at p. 136). A law that imposes limits on these interests in a
way that bears no connection to its objective arbitrarily impinges on those interests. Thus, in
Chaoulli, the law was arbitrary because the prohibition of private health insurance was held
to be unrelated to the objective of protecting the public health system. 23
The Court later described arbitrariness, in Carter, as follows:
The principle of fundamental justice that forbids arbitrariness targets the situation where
there is no rational connection between the object of the law and the limit it imposes on life,
liberty or security of the person: Bedford, at para. 111. An arbitrary law is one that is not
capable of fulfilling its objectives. It exacts a constitutional price in terms of rights, without
furthering the public good that is said to be the object of the law. 24
The onus will thus be on the Plaintiffs to establish, on the basis of evidence, that there is no
connection between the Impugned Provisions and its purpose or purposes. As the Supreme Court
of Canada explained in Bedford: 25
An ancillary question, which applies to both arbitrariness and overbreadth, concerns how
significant the lack of correspondence between the objective of the infringing provision and
its effects must be. Questions have arisen as to whether a law is arbitrary or overbroad when
its effects are inconsistent with its objective, or whether, more broadly, a law is arbitrary or
overbroad whenever its effects are unnecessary for its objective (see, e.g., Chaoulli, at paras.
233-34).
23
Bedford, supra, at para. 111.

25
24
27
As noted above, the root question is whether the law is inherently bad because there is no
connection, in whole or in part, between its effects and its purpose. This standard is not easily
met. The evidence may, as in Morgentaler, show that the effect actually undermines the
objective and is therefore inconsistent with the objective. Or the evidence may, as in
Chaoulli, show that there is simply no connection on the facts between the effect and the
objective, and the effect is therefore unnecessary. Regardless of how the judge describes
this lack of connection, the ultimate question remains whether the evidence establishes that
the law violates basic norms because there is no connection between its effect and its purpose.
This is a matter to be determined on a case-by-case basis, in light of the evidence. [emphasis
added]
Professor Hamish Stewart has noted, with respect to arbitrariness, the following: 26
The defect of an arbitrary law is that it affects the section 7 interests for no reason. The lack
of connection that is the key to arbitrariness can be demonstrated by showing either that the
law undermines its own purpose or that the law does not connect with that purpose at all.
The Defendants position will be that the evidence does not establish the absence of a rational
connection between the Impugned Provisions and their purpose or purposes. In fact, the evidence
will establish a clear connection between them.
c)
Overbreadth
The second principle of fundamental justice on which the Plaintiffs rely is overbreadth. A law will
only be overbroad if it is clear that it infringes a right protected by section 7 in a manner that is
broader than necessary to accomplish the laws purpose. The Supreme Court of Canada described
it this way in Bedford:
Overbreadth deals with a law that is so broad in scope that it includes some conduct that
bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core,
overbreadth addresses the situation where there is no rational connection between the
purposes of the law and some, but not all, of its impacts. For instance, the law at issue in
Demers required unfit accused to attend repeated review board hearings. The law was only
disconnected from its purpose insofar as it applied to permanently unfit accused; for
temporarily unfit accused, the effects were related to the purpose.
26
Hamish Stewart, Bedford and the Structure of Section 7 (2015) 60 McGill L.J. 575 at 584.
28
Overbreadth allows courts to recognize that the law is rational in some cases, but that it
overreaches in its effect in others. Despite this recognition of the scope of the law as a whole,
the focus remains on the individual and whether the effect on the individual is rationally
connected to the laws purpose. For example, where a law is drawn broadly and targets some
conduct that bears no relation to its purpose in order to make enforcement more practical,
there is still no connection between the purpose of the law and its effect on the specific
individual. Enforcement practicality may be a justification for an overbroad law, to be
analyzed under s. 1 of the Charter. 27
The Courts subsequent description of overbreadth in Carter was as follows:
The overbreadth inquiry asks whether a law that takes away rights in a way that generally
supports the object of the law, goes too far by denying the rights of some individuals in a way
that bears no relation to the object: Bedford, at paras. 101 and 112-13. Like the other
principles of fundamental justice under s. 7, overbreadth is not concerned with competing
social interests or ancillary benefits to the general population. A law that is drawn broadly to
target conduct that bears no relation to its purpose in order to make enforcement more
practical may therefore be overbroad (see Bedford, at para. 113). The question is not whether
Parliament has chosen the least restrictive means, but whether the chosen means infringe
life, liberty or security of the person in a way that has no connection with the mischief
contemplated by the legislature. The focus is not on broad social impacts, but on the impact
of the measure on the individuals whose life, liberty or security of the person is
trammelled. 28
While related to arbitrariness, overbreadth is a distinct principle of fundamental justice. For both
overbreadth and arbitrariness, however, the question is whether there is no connection between the
effects of a law and its objective. Overbreadth is distinct from arbitrariness in that it allows a court
to recognize the lack of connection can arise in a law that goes too far: that some but not all of a
laws effects may have no connection to its objective. 29
As set out above in relation to arbitrariness, the Plaintiffs must establish, on the evidence, that
there is no connection between the Impugned Provisions and their purpose or purposes in particular
situations. This is again a difficult standard to meet and must be done based on the evidence on a
case-by-case basis. Whether a claimant attempts to show that a laws effects actually undermine its
27

29
28
29
purpose, or to show on the facts that a laws effects are not connected to its purpose, the ultimate
question remains whether there is no connection between a laws purpose and its effects. 30
The Defendants position will be that the evidence does not establish the absence of a connection
between the purpose or purposes of the Impugned Provisions and their effects on particular
individuals.
d)
Gross Disproportionality
The third principle of fundamental justice on which the Plaintiffs rely is gross disproportionality.
A law will only be grossly disproportionate if it is so extreme that it is per se disproportionate to any
legitimate governmental interest. The Supreme Court described it this way in Bedford:
Gross disproportionality asks a different question from arbitrariness and overbreadth. It
targets the second fundamental evil: the laws effects on life, liberty or security of the person
are so grossly disproportionate to its purposes that they cannot rationally be supported. The
rule against gross disproportionality only applies in extreme cases where the seriousness of the
deprivation is totally out of sync with the objective of the measure. This idea is captured by
the hypothetical of a law with the purpose of keeping the streets clean that imposes a
sentence of life imprisonment for spitting on the sidewalk. The connection between the
draconian impact of the law and its object must be entirely outside the norms accepted in
our free and democratic society. [emphasis added] 31
In Carter, the Court described it this way:
This principle is infringed if the impact of the restriction on the individuals life, liberty or
security of the person is grossly disproportionate to the object of the measure. As with
overbreadth, the focus is not on the impact of the measure on society or the public, which
are matters for s. 1, but on its impact on the rights of the claimant. The inquiry into gross
disproportionality compares the laws purpose, taken at face value, with its negative effects
on the rights of the claimant, and asks if this impact is completely out of sync with the object
of the law (Bedford, at para. 125). The standard is high: the laws object and its impact may be
incommensurate without reaching the standard for gross disproportionality (Bedford, at para. 120;
30
31

30
Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at
para. 47). [emphasis added] 32
The Defendants position will be that the evidence does not establish that the effect of the
Impugned Provisions is so extreme that it is per se disproportionate to any legitimate governmental
interest.
e)
Vagueness
The fourth and final principle of fundamental justice on which the Plaintiffs rely is vagueness. A
law will only be unconstitutionally vague, for the purposes of s. 7, if it does not provide an
adequate basis for legal debate and analysis, does not sufficiently delineate any area of risk, or is
not intelligible. The Supreme Court of Canada described vagueness in Canadian Foundation for
Children, Youth & The Law: 33
A law is unconstitutionally vague if it does not provide an adequate basis for legal debate
and analysis; does not sufficiently delineate any area of risk; or is not intelligible. The
law must offer a grasp to the judiciary: Canada v. Pharmaceutical Society (Nova Scotia), [1992]
2 S.C.R. 606 (S.C.C.), at pp. 639-40. Certainty is not required. As Gonthier J. pointed out
in Pharmaceutical Society (Nova Scotia), supra, at pp. 638-39,
...conduct is guided by approximation. The process of approximation sometimes
results in quite a narrow set of options, sometimes in a broader one. Legal
dispositions therefore delineate a risk zone, and cannot hope to do more, unless
they are directed at individual instances. [Emphasis added.]
The Court also described the nature of vagueness as a principle of fundamental justice more
recently, in Levkovic: 34
The rule against unconstitutional vagueness is primarily intended to assure the intelligibility
of the criminal law to those who are subject to its sanctions and to those who are charged
with its enforcement. As this Court stated in R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031
(S.C.C.), at para. 82:
32

Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4 at para. 15.
34
R. v. Levkovic, 2013 SCC 25 at paras. 37-39.
33
31
In the context of vagueness, proportionality plays no role in the analysis. There is

no need to compare the purpose of the law with its effects (as in overbreadth) . . . .
A court is required to perform its interpretive function, in order to determine
whether an impugned provision provides the basis for legal debate.
This does not mean that the impact of s. 243 on a womans privacy interests is irrelevant to
its constitutionality. However, it is important to maintain the analytical distinction between
true vagueness and the additional vagueness concern raised by the appellant. The latter, in
my view, is more appropriately considered an aspect of overbreadth and dealt with in that
context. As the respondent rightly points out, failing to do so would create a lopsided
analysis that takes account of individual interests . . . without equal regard to the laws
objectives: R.F., at para. 63.
As this Court held in Nova Scotia Pharmaceutical, once the minimal general standard has
been met, any further arguments as to the precision of the enactments should be considered
at the minimal impairment stage of s. 1 analysis (p. 643). Or, in this case, where no Charter
violation has yet been established and there is therefore no need to consider s. 1, additional
precision-based arguments relating to the scope of the provision should be considered in an
overbreadth analysis.
Thus, in order to succeed in their claim that the Impugned Provisions violate the principle of
fundamental justice that legislation must not be vague, the Plaintiffs are required to establish, on
the evidence, that the Impugned Provisions do not provide an adequate basis for legal debate. The
Defendants say that the Plaintiffs will be unable to do so.
B.
Section 15
The Plaintiffs also claim that the Impugned Provisions violate their rights under section 15(1) of
the Charter. Section 15(1) provides as follows:
Equality before and under law and equal protection and benefit of law
15(1)
Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.
32
A breach of section 15 of the Charter will only be made out where a claimant can show that the law
in question creates a distinction based on a ground that is listed in, or is analogous to a ground
listed in, section 15(1). The claimant must also show that the distinction in issue creates a
disadvantage by perpetuating prejudice or stereotyping. 35
[A] court analyzing the validity of a claim that s. 15(1) has been infringed must address the
following questions: (1) Does the law create a distinction based on an enumerated or
analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice
or stereotyping?
The claimant must therefore prove on a balance of probabilities (a) that the law creates an
adverse distinction based on an enumerated or analogous ground and (b) that the
disadvantage is discriminatory because (i) it perpetuates prejudice or (ii) it stereotypes.
The test was explained in detail most recently in Taypotat, as follows: 36
The approach to s. 15 was most recently set out in Quebec (Attorney General) v. A, [2013] 1
S.C.R. 61, at paras. 319-47. It clarifies that s. 15(1) of the Charter requires a flexible and
contextual inquiry into whether a distinction has the effect of perpetuating arbitrary
disadvantage on the claimant because of his or her membership in an enumerated or analogous
group: para. 331 (emphasis added).
This Court has repeatedly confirmed that s. 15 protects substantive equality: Quebec v. A, at
para. 325; Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, at para. 2; R. v.
Kapp, [2008] 2 S.C.R. 483, at para. 16; Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143. It is an approach which recognizes that persistent systemic disadvantages have
operated to limit the opportunities available to members of certain groups in society and
seeks to prevent conduct that perpetuates those disadvantages. As McIntyre J. observed
in Andrews, such an approach rests on the idea that not every difference in treatment will
necessarily result in inequality and that identical treatment may frequently produce serious
inequality: p. 164.
The focus of s. 15 is therefore on laws that draw discriminatory distinctions that is,
distinctions that have the effect of perpetuating arbitrary disadvantage based on an
individuals membership in an enumerated or analogous group: Andrews,at pp. 17475; Quebec v. A, at para. 331. The s. 15(1) analysis is accordingly concerned with the social
and economic context in which a claim of inequality arises, and with the effects of the
challenged law or action on the claimant group: Quebec v. A,at para. 331.
35
36
Droit de la famille 091768, 2013 SCC 5 at paras. 185-186.

Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 at paras. 16-21.
33
The first part of the s. 15 analysis therefore asks whether, on its face or in its impact, a law
creates a distinction on the basis of an enumerated or analogous ground. Limiting claims
to enumerated or analogous grounds, which stand as constant markers of suspect decision
making or potential discrimination, screens out those claims having nothing to do with
substantive equality and helps keep the focus on equality for groups that are disadvantaged
in the larger social and economic context: Corbiere v. Canada (Minister of Indian and
Northern Affairs), [1999] 2 S.C.R. 203, at para. 8; Lynn Smith and William Black, The
Equality Rights (2013), 62 S.C.L.R. (2d) 301, at p. 336. Claimants may frame their claim
in terms of one protected ground or several, depending on the conduct at issue and how it
interacts with the disadvantage imposed on members of the claimants group: Law v.
Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 37.
The second part of the analysis focuses on arbitrary or discriminatory disadvantage,
that is, whether the impugned law fails to respond to the actual capacities and needs of the
members of the group and instead imposes burdens or denies a benefit in a manner that
has the effect of reinforcing, perpetuating or exacerbating their disadvantage:
The root of s. 15 is our awareness that certain groups have been historically
discriminated against, and that the perpetuation of such discrimination should be
curtailed. If the state conduct widens the gap between the historically disadvantaged
group and the rest of society rather than narrowing it, then it is discriminatory.
[Quebec v. A, at para. 332]
To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate
that the law at issue has a disproportionate effect on the claimant based on his or her
membership in an enumerated or analogous group. At the second stage of the analysis, the
specific evidence required will vary depending on the context of the claim, but evidence
that goes to establishing a claimants historical position of disadvantage will be
relevant: Withler, at para. 38; Quebec v. A, at para. 327.
Section 15 protects substantive equality. The Supreme Court of Canadas approach to s. 15
recognizes that persistent systemic disadvantages have operated to limit the opportunities available
to members of certain groups in society and seeks to prevent conduct that perpetuates those
disadvantages. The approach rests on the idea that not every difference in treatment will
necessarily result in inequality, and that identical treatment may frequently produce serious
inequality.
The first part of the s. 15 analysis asks whether, on its face or in its impact, a law creates a
distinction on the basis of an enumerated or analogous ground. Limiting claims to enumerated or
34
analogous grounds screens out those claims having nothing to do with substantive equality and
helps keep the focus on equality for groups that are disadvantaged in the larger social and
economic context. The inquiry is whether the law has a disproportionate effect on the claimant
based on his or her membership in an enumerated or analogous group.
A distinction need not be a facial or intentional distinction in the law, and may be based on the
unintended effect of the law on the enumerated or analogous group. If so, however, the effect
must be disproportionate and must be based on the characteristics of being a member of the
enumerated or analogous group.
The second part of the analysis focuses on arbitrary or discriminatory disadvantage, that is,
whether the impugned law fails to respond to the actual capacities and needs of the members of
the group and instead imposes burdens or denies a benefit in a manner that has the effect of
reinforcing, perpetuating or exacerbating their disadvantage. This stage of the analysis can be called
the discrimination stage.
The discrimination inquiry is highly contextual. Factors relevant to this stage include the extent
and nature of pre-existing disadvantage, correspondence between the grounds on which the
government acted and the actual need, capacity or circumstances of the affected group, any
ameliorative purpose of the government action, and the nature of the interest affected.
At each stage in the inquiry, the evidentiary onus is on the claimant.
The Defendants say that the Plaintiffs will not be able to establish on the evidence either that the
Impugned Provisions create a distinction on the basis of an enumerated or analogous ground, or
that any distinction that is created is discriminatory.
35
C.
Section 1
Even if the Plaintiffs are able to establish a breach of either section 7 or section 15 of the Charter,
the law does not allow the Court to grant a remedy if the Court finds that the breach is a
reasonable limit prescribed by law that can be demonstrably justified in a free and democratic
society.
1.
The Test
Section 1 of the Charter provides as follows:

Rights and freedoms in Canada
1.
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.
Thus the question for the Court, if it finds that the Plaintiffs have established a breach of either or
both of sections 7 and 15, is whether the Impugned Provisions are demonstrably justified in a free
and democratic society.
The test that has been applied by the Supreme Court of Canada for answering this question was
laid down in R. v. Oakes more than 30 years ago, and has been summarized as follows: 37
First, the court must determine whether the objective of the legislation is pressing and
substantial. Next, it must determine whether the means chosen to attain this legislative end
are reasonable and demonstrably justifiable in a free and democratic society. For this
second part of the analysis, three tests must be met: (1) the existence of a rational
connection between the measure and the aim of the legislation; (2) minimal impairment of
the protected right by the measure; and (3) proportionality between the effect of the
measure and its objective.
At the first stage, the Court will be asked to decide whether the objective of the legislation is
pressing and substantial. That objective, again, is set out in s. 2 of the Act:
37
Chaoulli, supra, at para. 48 per Deschamps J.
36
The purpose of this Act is to preserve a publicly managed and fiscally sustainable health care
system for British Columbia in which access to necessary medical care is based on need and
not an individuals ability to pay.
The second stage asks whether the means chosen are reasonable and demonstrably justifiable. As
noted above, there are three components to this second stage of the Oakes test: (1) a rational
connection between the measure and the aim of the legislation; (2) minimum impairment of the
protected right; and (3) proportionality between the effect of the measure and its objective.
At this stage of the analysis, and particularly when dealing with complex social problems far
removed from the expertise of the judiciary (the justice system), the courts are to accord
considerable deference to the Legislature. The Supreme Court of Canada described this principle
in Whatcott:
It is next necessary to consider whether s. 14(1)(b) of the Code is proportionate to its
objective. Here perfection is not required. Rather the legislatures chosen approach must be
accorded considerable deference. As McLachlin C.J. explained in J.T.I. MacDonald Corp. c.
Canada (Procureure gnrale), 2007 SCC 30, [2007] 2 S.C.R. 610 (S.C.C.) (JTI), at para. 41,
[e]ffective answers to complex social problems ... may not be simple or evident. There may
be room for debate about what will work and what will not, and the outcome may not be
scientifically measurable. We must ask whether Parliament has chosen one of several
reasonable alternatives: R. v. Videoflicks Ltd., [1986] 2 S.C.R. 713 (S.C.C.), at pp. 781-83;
Irwin Toy Ltd., at p. 989; JTI, at para. 43. 38
The Court also made the point in Carter:
At this stage of the analysis, the courts must accord the legislature a measure of
deference. Proportionality does not require perfection: Saskatchewan (Human Rights
Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para. 78. Section 1 only
requires that the limits be reasonable. This Court has emphasized that there may be a
number of possible solutions to a particular social problem, and suggested that a complex
regulatory response to a social ill will garner a high degree of deference (Hutterian Brethren,
at para. 37). 39
38
39
Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11 at para. 78.

37
The Oakes test is not to be applied mechanically. The Court must bear in mind the principles
animating both section 1 and the Oakes test. The Supreme Court has made this clear: 40
[I]t is important not to lose sight of the underlying principles animating this general
approach. As Dickson C.J. so eloquently put it in Oakes, supra, at p. 136, the inclusion of
the words free and democratic as the standard of justification in s. 1 of the Charter
refers the Court to the very purpose for which the Charter was originally entrenched
in the Constitution: Canadian society is to be free and democratic. The Court must
be guided by the values and principles essential to a free and democratic society
which I believe embody, to name but a few, respect for the inherent dignity of the
human person, commitment to social justice and equality, accommodation of a
wide variety of beliefs, respect for cultural and group identity, and faith in social
and political institutions which enhance the participation of individuals and groups
in society. The underlying values and principles of a free and democratic society are
the genesis of the rights and freedoms guaranteed by the Charter and the ultimate
standard against which a limit on a right or freedom must be shown, despite its
effect, to be reasonable and demonstrably justified.
As noted by this Court in Vriend, supra, at para. 134, the introduction of the Charter
brought about a redefinition of our democracy. Central to this democratic vision is a
dialogue of mutual respect between the courts and the legislatures, which includes the idea
that:
In carrying out their duties, courts are not to second-guess legislatures and the
executives; they are not to make value judgments on what they regard as the proper
policy choice; this is for the other branches. Rather, the courts are to uphold the
Constitution and have been expressly invited to perform that role by the
Constitution itself. But respect by the courts for the legislature and executive role is
as important as ensuring that the other branches respect each others role and the
role of the courts.
The Defendants say that, fundamentally, the Plaintiffs in this case are asking the Court to make a
different policy choice than the choice that the Legislature and Parliament have made. The Court
ought to decline to accede to the Plaintiffs request.
40
M. v. H., [1999] 2 S.C.R. 3 at paras. 77-78 per Iacobucci J.
38
2.
The relationship between Section 7 and Section 1
Although it has been suggested from time to time that a breach of section 7 could never be saved
by section 1, the Supreme Court of Canada recently disagreed, and explained the relationship
between those two sections of the Charter. It first did this in Bedford:
Section 7 and s. 1 ask different questions. The question under s. 7 is whether the laws
negative effect on life, liberty, or security of the person is in accordance with the principles of
fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross
disproportionality, the specific questions are whether the laws purpose, taken at face value,
is connected to its effects and whether the negative effect is grossly disproportionate to the
laws purpose. Under s. 1, the question is different whether the negative impact of a law
on the rights of individuals is proportionate to the pressing and substantial goal of the law in
furthering the public interest. The question of justification on the basis of an overarching
public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis, which is concerned
with the narrower question of whether the impugned law infringes individual rights.
As a consequence of the different questions they address, s. 7 and s. 1 work in different ways.
Under s. 1, the government bears the burden of showing that a law that breaches an
individuals rights can be justified having regard to the governments goal. Because the
question is whether the broader public interest justifies the infringement of individual rights,
the laws goal must be pressing and substantial. The rational connection branch of the s. 1
analysis asks whether the law was a rational means for the legislature to pursue its objective.
Minimal impairment asks whether the legislature could have designed a law that infringes
rights to a lesser extent; it considers the legislatures reasonable alternatives. At the final stage
of the s. 1 analysis, the court is required to weigh the negative impact of the law on peoples
rights against the beneficial impact of the law in terms of achieving its goal for the greater
public good. The impacts are judged both qualitatively and quantitatively. Unlike individual
claimants, the Crown is well placed to call the social science and expert evidence required to
justify the laws impact in terms of society as a whole.
By contrast, under s. 7, the claimant bears the burden of establishing that the law deprives
her of life, liberty or security of the person, in a manner that is not connected to the laws
object or in a manner that is grossly disproportionate to the laws object. The inquiry into
the purpose of the law focuses on the nature of the object, not on its efficacy. The inquiry
into the impact on life, liberty or security of the person is not quantitative for example,
how many people are negatively impacted but qualitative. An arbitrary, overbroad, or
grossly disproportionate impact on one person suffices to establish a breach of s. 7. To
require s. 7 claimants to establish the efficacy of the law versus its deleterious consequences
on members of society as a whole, would impose the governments s. 1 burden on claimants
under s. 7. That cannot be right.
39
In brief, although the concepts under s. 7 and s. 1 are rooted in similar concerns, they are
analytically distinct.
It has been said that a law that violates s. 7 is unlikely to be justified under s. 1 of the Charter
(Motor Vehicle Reference, at p. 518). The significance of the fundamental rights protected by s.
7 supports this observation. Nevertheless, the jurisprudence has also recognized that there
may be some cases where s. 1 has a role to play (see, e.g., Malmo-Levine, at paras. 96-98).
Depending on the importance of the legislative goal and the nature of the s. 7 infringement
in a particular case, the possibility that the government could establish that a s. 7 violation is
justified under s. 1 of the Charter cannot be discounted. 41
The Court then revisited the point in Carter:
It is difficult to justify a s. 7 violation: see Motor Vehicle Reference, at p. 518; G. (J.), at para.
99. The rights protected by s. 7 are fundamental, and not easily overridden by competing
social interests (Charkaoui, at para. 66). And it is hard to justify a law that runs afoul of the
principles of fundamental justice and is thus inherently flawed (Bedford, at para.
96). However, in some situations the state may be able to show that the public good a
matter not considered under s. 7, which looks only at the impact on the rights claimants
justifies depriving an individual of life, liberty or security of the person under s. 1 of the
Charter. More particularly, in cases such as this where the competing societal interests are
themselves protected under the Charter, a restriction on s. 7 rights may in the end be found
to be proportionate to its objective. 42
The Courts most recent comment on the subject came in Safarzadeh-Markhali:
It is difficult, but not impossible, to justify a s. 7 violation under s. 1. Laws that deprive
individuals of liberty contrary to a principle of fundamental justice are not easily upheld.
However, a law may be saved under s. 1 if the state can point to public goods or competing
social interests that are themselves protected by the Charter: Carter v. Canada (Attorney
General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 95. Courts may accord deference to
legislatures under s. 1 for breaches of s. 7 where, for example, the law represents a complex
regulatory response to a social problem: Alberta v. Hutterian Brethren of Wilson Colony, 2009
SCC 37, [2009] 2 S.C.R. 567, at para. 37. 43
The Supreme Courts comments in these cases can best be understood as an attempt to distinguish
the respective considerations to be taken into account by the Court when conducting its analyses
41

43
R. v. Safarzadeh-Markhali, 2016 SCC 14 at para. 57.
42
40
under sections 7 and 1 respectively, and a suggestion that the type of considerations that ought
only to be taken into account in the s. 1 analysis are purely practical or utilitarian considerations.
[W]hile alluding to the rareness of the possibility, but without containing it to exceptional
circumstances, both the Bedford and Carter decisions imply that the Court may, in the
future, consider upholding some overbroad laws as minimal impairments under the Oakes
test, in the (societal) interests of [e]nforcement practicality or other practical reasons. In
that event, it may be the case that, in presuming to deny societal interests a role under s. 7,
the Court is really only excluding the most utilitarian of them, which may then weigh into
the proportionality stage of s. 1 analysis, and minimal impairment in particular. 44
D.
General Principles of Constitutional Law
There are some general principles of constitutional law that the Defendants suggest will be of
relevance to the Court in its consideration of the Plaintiffs claim.
1.
Nature of constitutional adjudication
The first thing to note is that an application to strike down legislation as unconstitutional is a
weighty matter. This fact is manifested in a number of different ways. One is the observation that
the process of interpreting a constitutional provision is qualitatively different from the ordinary
process of statutory interpretation. The Supreme Court of Canada made this clear in Hunter v.
Southam: 45
The task of expounding a constitution is crucially different from that of construing a statute.
A statute defines present rights and obligations. It is easily enacted and as easily repealed. A
constitution, by contrast, is drafted with an eye to the future. Its function is to provide a
continuing framework for the legitimate exercise of governmental power and, when joined
by a Bill or a Charter of Rights, for the unremitting protection of individual rights and
liberties. Once enacted, its provisions cannot easily be repealed or amended. It must,
therefore, be capable of growth and development over time to meet new social, political and
historical realities often unimagined by its framers. The judiciary is the guardian of the
constitution and must, in interpreting its provisions, bear these considerations in mind.
44
45
Mark Carter, Carter v. Canada: Societal Interests Under Sections 7 and 1 (2015) 78 Sask. L. Rev. 209 at 215.
Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145.
41
The unique nature of constitutional adjudication is also manifested in the principle that courts
ought not to decide constitutional issues unnecessarily. As the majority of the Supreme Court of
Canada stated in Philips v. Nova Scotia (Commissioner, Public Inquiries Act): 46
This court has said on numerous occasions that it should not decide issues of law that are
not necessary to a resolution of an appeal. This is particularly true with respect to
constitutional issues .
The policy which dictates restraint in constitutional cases is sound. It is based on the
realization that unnecessary constitutional pronouncements may prejudice future cases, the
implications of which have not been foreseen.
2.
Appropriate Remedy
Another relevant proposition is that even if the Plaintiffs establish that they are entitled to some
kind of a remedy, they are only entitled to a remedy that will specifically address the harm that
they can demonstrate results from the application of the Impugned Provisions.
This proposition is grounded in section 52(1) of the Constitution Act, 1982, the basis for the
remedy sought by the Plaintiffs:
52(1) The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no
force or effect. [emphasis added]
The basic principles for interpretation of section 52(1) were set out in R. v. Big M Drug Mart Ltd. 47
The application of s. 52(1) was clarified in 1992 in Schachter v. Canada. 48 In Schachter, the Court
made it clear that a court may only strike down a provision pursuant to section 52(1) to the extent
of the inconsistency: 49
46
Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), [1995] 2 S.C.R. 97 at paras. 6, 9.
[1985] 1 S.C.R. 295.
48
[1992] 2 S.C.R. 679.
49
Schachter at paras 25, 26, 31.
47
42
A court has flexibility in determining what course of action to take following a violation of
the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982
mandates the striking down of any law that is inconsistent with the provisions of the
Constitution, but only to the extent of the inconsistency. Depending upon the
circumstances, a court may simply strike down, it may strike down and temporarily suspend
the declaration of invalidity, or it may resort to the techniques of reading down or reading
in. In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power
to grant an appropriate and just remedy to [a]nyone whose [Charter] rights and freedoms
... have been infringed or denied. In choosing how to apply s. 52 or s. 24 a court will
determine its course of action with reference to the nature of the violation and the context
of the specific legislation under consideration.
The flexibility of the language of s. 52 is not a new development in Canadian constitutional
law. The courts have always struck down laws only to the extent of the inconsistency using of
the doctrine of severance or reading down. Severance is used by the courts so as to
interfere with the laws adopted by the legislature as little as possible. Generally speaking,
when only a part of a statute or provision violates the Constitution, it is common sense that
only the offending portion should be declared to be of no force or effect, and the rest should
be spared.
Therefore, the doctrine of severance requires that a court define carefully the extent of the
inconsistency between the statute in question and the requirements of the Constitution, and
then declare inoperative (a) the inconsistent portion, and (b) such part of the remainder of
which it cannot be safely assumed that the legislature would have enacted it without the
inconsistent portion.
As set out by the Supreme Court in Schachter, there are four options available to this Court, in the
event that it finds that any or all of the Impugned Provisions violate rights under the Charter:
a) Striking down some or all of the Impugned Provisions, but only to the extent that the
Court finds they violate the Charter;
b) Severing those specific portions of the Impugned Provisions that the Court finds violate
the Charter;
c) Reading in wording to the Impugned Provisions so as to make them consistent with the
Charter;
d) Reading the Impugned Provisions down by interpreting them in a manner consistent
with the Charter.
43
Whatever remedial option the Court selects, it is to be guided by respect for the role of the
Legislature. The Supreme Court made this clear in Schachter, when it quoted the following from
Professor Rogerson (at para. 35):
Courts should certainly go as far as required to protect rights, but no further. Interference
with legitimate legislative purposes should be minimized and laws serving such purposes
should be allowed to remain operative to the extent that rights are not violated. Legislation
which serves desirable social purposes may give rise to entitlements which themselves
deserve some protection.
Specifically with respect to the remedy of reading in, the Court stated (at para. 57):
These cases stand for the proposition that the court should not read in in cases where there
is no manner of extension which flows with sufficient precision from the requirements of
the Constitution. In such cases, to read in would amount to making ad hoc choices from a
variety of options, none of which was pointed to with sufficient precision by the
interaction between the statute in question and the requirements of the Constitution. This
is the task of the legislature, not the courts.
The remedy of a suspended declaration of invalidity has frequently been employed by the Supreme
Court of Canada since Schachter. Although Schachter limited the available of a suspended
declaration to exigent circumstances, the technique has essentially been employed without
reference to the need for such circumstances. Madam Justice LHeureux-Dub offered the
following explanation in her concurring reasons in Corbiere: 50
The principle of democracy underlies the Constitution and the Charter, and is one of the
important factors guiding the exercise of a courts remedial discretion. It encourages
remedies that allow the democratic process of consultation and dialogue to occur. In P.W.
Hogg and A.A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or
Perhaps the Charter of Rights Isnt Such A Bad Thing After All) (1997), 35 Osgoode Hall L.J.
75, the authors characterize judicial review under the Charter as a dialogue between
courts and legislatures. The remedies granted under the Charter should, in appropriate
cases, encourage and facilitate the inclusion in that dialogue of groups particularly affected
by legislation. In determining the appropriate remedy, a court should consider the effect of
50
Corbiere v. Canada (Minister of Indian & Northern Affairs), [1999] 2 S.C.R. 203 at para. 116.
44
its order on the democratic process, understood in a broad way, and encourage that
process.
3.
Implications for other legislation
Although the Plaintiffs only expressly challenge the constitutional validity of the Impugned
Provisions of the Medicare Protection Act, the implications of their challenge extend well beyond
that Act. Specifically, the provisions of the Canada Health Act that require the Province to enact
provisions similar to the Impugned Provisions in order to qualify for federal funding of the British
Columbia health care system are thrown into question by the Plaintiffs challenge, even though
their constitutional validity has not been directly impugned. The Plaintiffs have not addressed this
issue in any way.
In addition, a finding in favour of the Plaintiffs would also cast into doubt similar provisions in
the legislation of every other province and territory. This is problematic because the basis for their
claim that specific facts pertaining to the operation of the British Columbia health care system in
particular renders ultra vires the Legislatures prohibitions on extra billing and private insurance
means that the Legislatures and governments of the other provinces and territories cannot know
whether their analogous provisions are likewise unconstitutional. That uncertainty could only
encourage indeed, require further costly litigation to establish whether the preconditions
alleged by the Plaintiffs in this case exist in other Canadian jurisdictions. Again, the Plaintiffs have
not addressed in any way these implications for the legislation of other Canadian jurisdictions.
The Defendants say that the Court needs to be aware of the implications of its decision in this
case, which have the potential to be significant.
45
4.
Courts do not make health policy
The Supreme Court of Canada pointed out in PHS Services that: It is for the relevant
governments, not the Court, to make criminal and health policy. 51 While the courts absolutely
must and will decide questions of law that are properly before them, they must also recognize and
respect the different roles and institutional capacities of the legislative, executive, and judicial
branches of government. The Supreme Court addressed this in R. v. Imona-Russell: 52
All three branches have distinct institutional capacities and play critical and
complementary roles in our constitutional democracy. However, each branch will be
unable to fulfill its role if it is unduly interfered with by the others. In New Brunswick
Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319
(S.C.C.), McLachlin J. affirmed the importance of respecting the separate roles and
institutional capacities of Canada's branches of government for our constitutional order,
holding that [i]t is fundamental to the working of government as a whole that all these
parts play their proper role. It is equally fundamental that no one of them overstep its
bounds, that each show proper deference for the legitimate sphere of activity of the other
(p. 389).
Accordingly, the limits of the court's inherent jurisdiction must be responsive to the proper
function of the separate branches of government, lest it upset the balance of roles,
responsibilities and capacities that has evolved in our system of governance over the course
of centuries.
Indeed, even where courts have the jurisdiction to address matters that fall within the
constitutional role of the other branches of government, they must give sufficient weight to
the constitutional responsibilities of the legislative and executive branches, as in certain
cases the other branch will be better placed to make such decisions within a range of
constitutional options (Khadr v. Canada (Prime Minister), 2010 SCC 3, [2010] 1 S.C.R. 44
(S.C.C.), at para. 37).
The Plaintiffs have made it abundantly clear in their opening statement that they see this case as
an opportunity to enlist the Court in effecting a change to Canadian health care policy. The
Defendants say that the Court should decline that invitation.
51
52
PHS Services, supra, at para. 105.

R. v. Imona-Russell, 2013 SCC 43 at paras. 29-31.
46
IV.
Chaoulli
As noted earlier, the only case in the history of the Charter in which the Supreme Court of Canada
has come close to applying s. 7 of the Charter outside the context of the administration of justice
was the Chaoulli decision in 2005. Chaoulli is the sine qua non of the Plaintiffs claim in this case.
The Defendants say that the decision in Chaoulli provides the backdrop to the present case, but
that case involved a significantly different challenge to a different legislative scheme in the context
of a very different approach by government to the problems of wait times, and it was decided on
the basis of a different Charter.
A.
What the decision actually was
In Chaoulli, the plaintiffs challenged Quebecs prohibitions against private health insurance for
health care services available in the publicly funded system (the duplicative private health
insurance described above as one of the three means by which provinces protect their publicly
funded health care systems). 53 The plaintiffs sought coverage for health care services provided by
physicians who were not enrolled in Quebecs public health insurance plan.
The plaintiffs did not challenge the prohibition as it applied to enrolled physicians. 54 In addition,
there was no challenge in Chaoulli to a provision prohibiting extra-billing, such as the provisions
that the Plaintiffs challenge in this litigation.
A 4-3 majority of the Supreme Court held that Quebecs provisions were contrary to Article 1 of
the Quebec Charter, with the following reasons:
Deschamps, J. considered only the Quebec Charter and expressly confined her ruling to the
Quebec Charter; 55
53
54
Health Insurance Act, R.S.Q., c. A-29, s. 15 and the Hospital Insurance Act, R.S.Q., c. A-28, s. 11.
Chaoulli, supra, paras. 2,3 (Deschamps, J.); Chaoulli c. Quebec (Procureur general), [2000] R.J.Q. 786, para. 7 (C.S.).
47
McLachlin, C.J. and Major, J. (concurred in by Bastarache, J.) concurred with Deschamps,
J. that the provisions were contrary to the Quebec Charter. They also went on to consider
section 7 of the Canadian Charter, 56 finding that the legislation violated section 7 as well;
and
Binnie, J. and Lebel, J. (concurred in by Fish J.) dissented and held that the provision was
not contrary to either the Quebec Charter or section 7 of the Canadian Charter. 57
1.
The Quebec Charter
Deschamps, J. set out the differences between the Quebec Charter and the Canadian Charter.
Article 1 of the Quebec Charter provides:
1. Every human being has a right to life, and to personal security, inviolability and
freedom. He also possesses juridical personality.
Article 1 of the Quebec Charter does not refer to the principles of fundamental justice, as section 7
of the Canadian Charter does. It is thus unqualified. In contrast, section 7 is a conjunctive right, in
that it requires that a plaintiff prove both:
a) that he has been deprived of life, liberty, or security of the person; and
b) that the deprivation was not in accordance with principles of fundamental justice.
Because section 7 is a conjunctive right, a plaintiffs burden of proof is greater. Under Article 1 of
the Quebec Charter, a plaintiff need only prove the equivalent of a deprivation.
Article 1 is als broader than section 7. Article 1 protects not only fundamental rights and freedoms
but also certain civil, political, economic, and social rights. 58 In addition, Article 1 of the Quebec
55
Chaoulli, (SCC) supra, paras. 15, 36, 101.

Chaoulli, (SCC) supra, para. 102.
57
Chaoulli, (SCC) supra, paras. 265, 279.
56
48
Charter includes the right to inviolability and freedom and does not refer to liberty. Inviolability
is broader than security used in section 7 of the Canadian Charter. 59
Article 9.1 of the Quebec Charter has a functional analogy to section 1 of the Canadian Charter,
although it is not the same.
9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper
regard for democratic values, public order and the general well-being of the citizens of
Quebec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be
fixed by law. 60
Madam Justice Deschamps found that Quebecs ban on private insurance as it applied to nonparticipating physicians was not saved under Article 9.1.
2.
The Canadian Charter
The six Justices who considered whether the Quebec legislation violated the Canadian Charter
were evenly divided on whether Quebecs prohibition was arbitrary, so there is no legal principle
arising from their reasons that is binding on this Court on that point. As there is no ratio decidendi
of the Supreme Court of Canada on the application of s. 7 of the Canadian Charter to Quebecs
prohibition of duplicate private insurance, the ratio of the Quebec Court of Appeal decision stands
as the definitive statement of the law. That Court found that the prohibition did not violate a
principle of fundamental justice. 61 Of the judges at all levels in Chaoulli who addressed this point,
a point which is critical to the success of the present Plaintiffs claim under s. 7, seven of 10
rejected the argument on which the Plaintiffs now rely. The Plaintiffs position on this critical
point is therefore contrary to the weight of judicial authority as expressed in Chaoulli.
58

60
Chaoulli, (SCC) supra, para. 269 (per Binnie, LeBel, and Fish, JJ).
61
[2002] R.J.Q. 1205, paras. 24, 60, 65-68.
59
49
a)
Section 7 Violation
Chief Justice McLachlin, along with Justices Major and Bastarache, found that while[t]he Charter
does not confer a freestanding constitutional right to health care, section 7 applied because: 62
a) The Quebec government had created a virtual monopoly for the public health
scheme. 63
b) By imposing exclusivity and then failing to provide public health care of a reasonable
standard within a reasonable time, the government had created[ed] the circumstances
that trigger the application of s. 7 of the Charter. 64
The Justices then considered whether Quebecs legislation was arbitrary. The Justices defined
arbitrary as bearing no relation to, being inconsistent with, or unnecessary to assure the laws
objectives, as well as being manifestly unfair. 65 They found that Quebecs prohibition against
private health insurance was arbitrary because other developed countries with publicly-financed
health care systems allowed duplicate private insurance to varying degrees. 66 There was no real
connection between the prohibitions on private health insurance and the legislative goal of a
quality public health system. 67 The prohibitions were thus arbitrary and not in accordance with
the principles of fundamental justice. 68
In finding that the prohibitions were arbitrary, the Justices rejected the evidence of experts called
by the government at trial, which the trial judge had accepted. 69 Instead, the Justices relied heavily
on the report of a Standing Senate Committee, The Health of Canadiansthe Federal Role, vol. 3,
Health Care Systems in Other Countries, Interim Report (2002) (the Interim Kirby Report) for
their findings about health care in other jurisdictions.
62

64
65
Chaoulli, (SCC) supra, paras. 130, 132, 133.
66
Chaoulli, (SCC) supra, paras. 139-149.
67
68
69
Chaoulli, (SCC) supra, paras. 128, 136-38, 235.
63
50
b)
No Section 7 Violation
Justices Binnie, LeBel, and Fish said that they cannot find in the constitutional law of Canada a
principle of fundamental justice dispositive of the problems of waiting lists in the Quebec health
care system. 70 They found that [t]he aim of health care of a reasonable standard within a
reasonable time is not a legal principle. 71 They held that:
a) a principle of fundamental justice must be a legal principle;
b) the reasonable person must regard it as vital to our societal notion of justice, which
implies a significant societal consensus; and
c) it must be capable of being identified with precision and applied in a manner that yields
predictable results. 72
The plaintiffs in Chaoulli could not satisfy these requirements with respect to wait times. The aim
of health care to a reasonable standard within reasonable time is not a legal principle. There is no
societal consensus about what it means or how it can be achieved. It cannot be identified with
precision: there is no way to distinguish reasonable from unreasonable. 73
Justices Binnie, LeBel, and Fish agreed that while in theory an arbitrary law violates the principles
of fundamental justice, Quebecs legislation was not arbitrary. They agreed with the conclusion of
the trial judge and the Quebec Court of Appeal that in light of the legislative objectives of the
Canada Health Act, it was not arbitrary for Quebec to discourage the growth of the private sector
of health care. The prohibition on private health insurance was directly related to Quebecs
legislative objective of a health system where access is governed by need rather than wealth or
70

Chaoulli, (SCC) supra, para. 209, emphasis in original.
72
Chaoulli, (SCC) supra, para. 209 (applying R. v. Malmo-Levine, 2003 SCC 74, para. 113) (emphasis in original).
73
Chaoulli, (SCC) supra, para.209.
71
51
status. 74 Quebecs prohibition on private health insurance was not arbitrary because it was not
inconsistent with the state interest and not unrelated to it. 75
With respect to the evidence, Justices Binnie, LeBel, and Fish found that the Interim Kirby Report
did not displace the conclusion of the trial judge, let alone the conclusion of the [Final] Kirby
Report, which recommended the continuation of a single-tier health system. 76 The Justices
accepted the findings below disputed by the Chief Justice and Justice Major that a two-tier
system would likely have a negative impact on the integrity, functioning and viability of the public
system. 77 Justices Binnie, LeBel, and Fish found that the appellants argument was based largely
on generalizations about the public system drawn from fragmentary experience, an overly
optimistic view of the benefits offered by private health insurance, an oversimplified view of the
adverse effects on the public system of permitting private sector health services to flourish and an
overly interventionist view of the courts role to try to find a fix for failings, real or perceived,
of major social programs. 78
B.
Why Chaoulli is not helpful to the Plaintiffs
In addition to the points set out above, there are a number of reasons why the Supreme Court of
Canadas decision in Chaoulli will be of little assistance to the Plaintiffs in this case.
First, as discussed above, the Supreme Court of Canada has clarified since Chaoulli that in order
for legislation to be arbitrary it must bear no connection to its objective, 79 and in fact be incapable
of fulfilling its objective. 80 The test of unnecessary relied on by three judges in Chaoulli is not the
law.
74

Chaoulli, (SCC) supra, paras. 242, 256, 257, 263.
76
77
78
79
80
75
52
It is important as well to note that the majority decision to strike down the prohibition on private
insurance relied on a finding that the prohibition was not necessary because the government had
other measures available to it including precisely the kind of measures that are challenged in this
litigation to protect the integrity of the public health care system. 81 The majority noted: 82
The Quebec context is a singular one, not only because of the distinction between
participating physicians, non-participating physicians and physicians who have withdrawn (s.
1 HEIA), but also because the Minister may require non-participating physicians to provide
health services if he or she considers it likely that the services will not be provided under
uniform conditions throughout Quebec or in a particular region (s. 30 HEIA). A measure as
drastic as prohibiting private insurance contracts appears to be neither essential nor
determinative.
Under the Quebec plan, the government can control its human resources in various ways,
whether by using the time of professionals who have already reached the maximum for
payment by the state, by applying the provision that authorizes it to compel even nonparticipating physicians to provide services (s. 30 HEIA) or by implementing less restrictive
measures, like those adopted in the four Canadian provinces that do not prohibit private
insurance or in the other OECD countries.
Furthermore, the majority only decided that private insurance ought to be available to pay for
services provided by physicians who were not enrolled in the public system. The relief sought by the
plaintiffs in Chaoulli was described by the trial judge, Pich J., as follows: 83
The applicants asked the Court to be allowed to obtain a private insurance policy to cover
the costs inherent in private health services and hospital services when the latter are
furnished by physicians who are not participating in the Qubec public health system. [emphasis
added]
Deschamps J. (who wrote for the majority of the Supreme Court on this point) noted: 84
Finally, because of s. 1(e), non-participating physicians may not practise as participants; they
will not therefore be faced with the conflict of interest described by certain witnesses. As for
physicians who have withdrawn (s. 1(d) HEIA), the state controls their conditions of practice
81
Chaoulli, (SCC) supra, paras. 74-84, 98.

Chaoulli, (SCC) supra, para. 64. There is no comparable provision in the Medicare Protection Act.
83
Chaoulli (CS), supra, at para. 7 [TRANSLATION].
84
Chaoulli, (SCC) supra, at para. 66.
82
53
by way of the agreements (s. 1(f) HEIA) they are required to sign. Thus, the state can
establish a framework of practice for physicians who offer private services.
The Plaintiffs in this case, on the other hand, seek to strike down provisions that prevent
physicians from simultaneously billing the public health care system and billing patients for
providing health care privately. Both the statutory context and the implications for the public
system of granting the relief sought are very different.
Additionally, in reaching its conclusions regarding the operation of health care systems in other
jurisdictions, the majority in the Supreme Court of Canada did not have before it expert evidence
on the subject, but rather relied on various published reports. This Court will be provided with
substantive expert evidence directed specifically at the lessons that can be drawn for the British
Columbia health care system from the experiences of other jurisdictions.
The other evidence in this case will also be significantly different from what was before the Court
in Chaoulli. The Supreme Court of Canada confirmed in Bedford that a lower court is entitled to
ignore even that Courts binding precedents if there is a significant change in the circumstances or
evidence. 85 Chaoulli, as noted earlier, is not binding on this Court.
The record before the Supreme Court of Canada in Chaoulli related to Quebecs health care
system in 1999. The evidence that the Justices in the Supreme Court referred to included the
following:
Dr. Daniel Doyle, a cardiovascular surgeon, testified that when a person is diagnosed with
cardiovascular disease, he or she is [TRANSLATION] always sitting on a bomb and can
die at any moment. In such cases, it is inevitable that some patients will die if they have to
wait for an operation. 86
85
86

54
Dr. Eric Lenczner, an orthopaedic surgeon, testified that the usual waiting time of one year
for patients who require orthopaedic surgery increases the risk that their injuries will
become irreparable. 87
Delays in the public system are widespread and have serious, sometimes grave,
consequences. There was no dispute that there is a waiting list for cardiovascular surgery
for life-threatening problems. Dr. Daniel Doyle, a cardiovascular surgeon who teaches and
practises in Quebec City, testified that a person with coronary disease is [TRANSLATION]
sitting on a bomb and can die at any moment. He confirmed, without challenge, that
patients die while on waiting lists: A.R., vol. 3, p. 461. Inevitably, where patients have lifethreatening conditions, some will die because of undue delay in awaiting surgery. 88
Dr. Lenczner also testified that 95 per cent of patients in Canada wait well over a year, and
many two years, for knee replacements. 89
As we noted above, there is unchallenged evidence that in some serious cases, patients die
as a result of waiting lists for public health care. 90
The government had plenty of time to act. Given the tendency to focus the debate on a
sociopolitical philosophy, it seems that governments have lost sight of the urgency of taking
concrete action. For many years, the government has failed to act; the situation
continues to deteriorate. While the government has the power to decide what measures
to adopt, it cannot choose to do nothing in the face of the violation of Quebeckers right
to security. The government has not given reasons for its failure to act. Inertia cannot be
used as an argument to justify deference. 91
The evidence before this Court will not be the same, and will in fact tell a very different story.
87

89
90
91
Chaoulli, (SCC) supra, paras. 96-97.
88
55
V.
What will the Evidence Show?

A.
The Purposes of the Impugned Provisions
The Defendants will be providing the Court with evidence from a number of witnesses, including
expert witnesses. Much of this evidence will be directed at establishing the connection between the
Impugned Provisions and the purpose of the Act. This evidence relates to the question of whether
or not the Plaintiffs have been able to establish a violation of a principle of fundamental justice; it
also relates to the question of whether or not the Impugned Provisions are demonstrably justifiable
under section 1.
The Defendants position, as set out in the Response to the Fourth Amended Civil Claim, is that
in the absence of the Impugned Provisions the Province would be unable to ensure the continued
existence of a fiscally sustainable public health care system in British Columbia in which access to
medical care is based on need, and not on ability to pay. The evidence will establish that the
Impugned Provisions enable the Province to achieve this overarching purpose by helping to
accomplish, inter alia, the following specific purposes:
a. Ensuring a sufficient supply of physicians and other healthcare professionals to
enable the public system to provide necessary medical care to all on the basis of
need, and not ability to pay;
b. Ensuring that physicians working in the public system are motivated to improve the
functioning of the public system, and do not face perverse incentives;
c. Ensuring that the cost of health care for British Columbians is kept at an
appropriate and sustainable level;
d. Ensuring continued public support for the funding and operation of the public
health care system;
e. Ensuring that public funds spent on providing health care are used only to provide
health care on the basis of need, and not on the basis of ability to pay; and
56
f. Ensuring that British Columbians are not required to pay to receive access to
necessary medical care.
B.
History of Medicare
In order to assist the Court with an understanding of the context for the current legislative
scheme, the Defendants have provided an expert report that sets out the history of both the
relevant British Columbia legislation and the history of the federal Canada Health Act.
1.
Professor Gregory Marchildon
The Court will be provided with two expert reports from Professor Gregory Marchildon, B.A.,
J.D., M.A., Ph.D., the first of which sets out the history of the relevant legislation. Professor
Marchildon is currently Professor and Ontario Research Chair in Health Policy and System Design
at the University of Toronto. Before that appointment, he held academic appointments as Tier 1
Canada Research Chair in Public Policy and Economic History at the Johnson-Shoyama Graduate
School of Public Policy at the University of Regina (2003-15), Assistant Professor of Canadian
Studies and Economic History at Johns Hopkins Universitys School of Advanced International
Studies (1989-94) and lecturer in economic history at the London School of Economics (1988). In
addition, he served as Deputy Minister of Intergovernmental Affairs (1994-96) and Deputy
Minister to the Premier and Cabinet Secretary (1996-2000) in the Government of Saskatchewan.
He was also the Executive Director of the Commission on the Future of Health Care in Canada, a
federal Royal Commission chaired by the Hon. Roy J. Romanow, Q.C., P.C. during its tenure
from April 2001 to December 2002. He is currently a member of the editorial board of the
European Observatory on Health Systems and Policies and the sole author of two reviews of the
Canadian health system published by the World Health Organizations Regional Office for Europe
on behalf of the European Observatory on Health Systems and Policies and co-published in North
America by the University of Toronto Press. He is also a founding member of the Pan-Canadian
Health Reform Analysis Network (PHRAN) and the Associate Editor of PHRANs journal, the
57
Health Reform Observer Observatoire des Rformes de Sant. He is also the general editor for a new
McGill-Queens University Press series of provincial and territorial health system surveys. He has
also written a number of peer reviewed articles and one edited volume on the policy history of
Canadian Medicare.
In his first report, Professor Marchildon describes the history of Medicare in Canada generally,
and in British Columbia specifically. This report covers over a half-century of history, and is thus
not comprehensive as to every detail. Instead, it focuses on certain dimensions of the Canadian
model of Medicare, dimensions that underpin British Columbias Medical Services Plan and its
associated laws, regulations and policies. In particular, the report addresses the development of,
and the policy reasoning behind, the following features of Medicare:
The right of physicians to opt out of provincial medical care insurance plans and the
institutional arrangements that regulate that right, including policies that may prevent
physicians from working, simultaneously, in the public (Medicare) and private sectors;
The prohibition or discouragement of the issuance of private health insurance for services
covered under provincial and territorial medical care insurance plans;
First-dollar coverage for all beneficiaries and associated rules and arrangements that
discourage extra-billing by physicians for services covered under provincial and territorial
medical care insurance plans; and
Universal medical care coverage that is on the same terms and conditions for all
beneficiaries.
Professor Marchildon notes that from the beginning, historical analysis reveals the complexity of
the policy decisions, including the tradeoffs and fiscal limits faced by governments, to achieve
universal access to health care on the basis of need rather than ability to pay. The report begins
with universal hospital insurance because of the legal and policy legacy that was conveyed from
hospitalization to universal medical care insurance. Universal coverage for hospital and medical
care services has become known as Medicare in Canada. The policy objective underlying the
58
implementation of Medicare by governments in Canada was to ensure equitable access to health

care access based on need and not on ability to pay.
The second section of Professor Marchildons report describes the introduction of universal
medical care insurance in Saskatchewan, because this was the first province to introduce universal
Medicare and its experience and legacy were to have an enormous influence on the laws and
policies adopted in other provinces, including British Columbia. This was where organized
medicines opposition led to a showdown between the doctors and the provincial government that
culminated in a 23-day doctors strike. The compromise reached between physicians and the
provincial government the so-called Saskatoon Agreement shaped provincial Medicare laws
and policies throughout Canada. In the Saskatoon Agreement the physicians won significant
concessions from the government of Saskatchewan, including the right to opt out (and thereby
extra bill), and the right to maintain their independent private practices. Part of the compromise
also allowed private (non-profit) insurers to co-exist with the public plan. In the end, however, very
few patients chose either opted-out physicians or private insurers, and Saskatchewan physicians
came to broadly support Medicare, in part because their annual incomes increased by 35% in the
plans first three years.
The third section of Professor Marchildons report focuses on the federal governments role in
setting the basic ground rules for provincial medical care insurance schemes. The 1964
recommendations of the Royal Commission on Health Services (the Hall Commission) influenced
the content of the federal governments Medical Care Act (1966) and its subsequent negotiations
with the provinces concerning the interpretation of the four criteria to access federal transfer
funding. The Hall Commission rejected extra billing and user charges, as well as means-testing
all three conditions that had been heavily promoted by the Chambers of Commerce, the insurance
industry, and the medical profession, in particular the BC Medical Association, which became one
of the most outspoken critics of the Hall report. The BCMA said the philosophy of the
Commission was out of sync with that of the medical profession and was so far out of step with
Canadian thinking that only a small segment of the population [would] go along with report. The
59
Medical Care Insurance Act was, however, passed unanimously by the House of Commons in 1968,
with very high levels of public support.
Professor Marchildon notes that, due to an acceleration of extra-billing by physicians in the late
1970s, and the deleterious impact this had on access for low-income Canadians, the federal
government again appointed Justice Emmett Hall to report on the issue. In his 1981 report, Justice
Hall recommended that such charges be eliminated. Consequently, the federal government
replaced its separate hospital and medical care coverage legislation with the Canada Health Act
(CHA) in 1984, with new provisions penalizing provinces that continued to permit the practice of
extra-billing and user charges. Physicians argued that a ban on extra billing would have a
deleterious impact on their independence and power relative to provincial governments. As a
gesture of goodwill towards the profession, a clause was inserted in the CHA guaranteeing
reasonable compensation to physicians obtained, if necessary, through conciliation or binding
arbitration.
The fourth and final section of Professor Marchildons report focuses on the introduction of
universal medical care insurance in British Columbia and the changes that were made in order for
the provincial government to be eligible for full federal cost sharing. British Columbia was the
second province to introduce hospital insurance, and was also the second to introduce Medicare,
or at least a version that borrowed from both the Saskatchewan and Alberta plans. After the 1964
Hall report was published, the Bennett government was heavily lobbied by physicians and the
commercial insurance industry to introduce a health care insurance system that was voluntary and
allowed user charges. Premier Bennett signaled the commitment of the province to the principle
of a national health program and its willingness to take part in such a program, although in 1965
the government agreed to a provision in the five-year Master Agreement with the BCMA that
allowed physicians to extra bill. To ensure BCMA support for its proposed plan, the government
offered to subsidize high-risk patients so that they could obtain coverage from the non-profit,
physician-sponsored MSA medical plan (the predecessor to Pacific Blue Cross). But MSA rejected
the idea because the inclusion of such individuals through government subsidy would threaten its
60
independence. Nonetheless, the Province established the BC Medical Plan as a non-profit

corporation with a six-member board, including three members appointed by the BCMA.
Professor Marchildons report states that the federal government warned British Columbia that it
would not be eligible for federal funding because its proposed health insurance plan was not
universal, the plan was not publicly administered, and it lacked universality that is, it was not
offered on uniform terms and conditions. To meet the criteria set out in the federal legislation,
British Columbia would have to put its plan under a single public authority. In response, in 1968
the Legislature enacted the Medical Services Act, which established the Medical Services
Commission (MSC). The legislation did not explicitly ban extra billing. In 1980, the BCMA
demanded a 30% fee hike, threatening to extra bill patients 40% if they didnt get it. The
government offered 15.19%, an offer that was overwhelmingly rejected by BCMA members, who
also voted in favour of extra billing. In response the government introduced, and the Legislature
enacted, Bill 16, banning extra billing and providing that future governments would be unable to
include that right in agreements with the BCMA. However, this came at a significant price: the
government also ultimately agreed to a 40% fee hike.
Professor Marchildon notes that the right of physicians to opt out has been part of Medicare from
the time of the Saskatoon Agreement of 1962 until the present. Physicians who opt out of their
respective provincial Medicare plans treat non-Medicare patients, which is to say patients whose
bills are paid through non-Medicare sources of funding including workers compensation and outof-pocket payment. Physicians have an unlimited right to opt out but do not receive Medicare
billing numbers from their respective regulatory bodies and are therefore prevented from
practicing public (i.e., Medicare) medicine at the same time they are practicing private medicine.
The policy purpose of this long-held public-private separation is to ensure that opted out
physicians do not receive public subsidies or access to publicly funded infrastructure to support
their private practices.
61
Buttressing this policy is the provincial policy of prohibiting or discouraging the sale of private
health insurance for core Medicare services. Today, six provinces, including British Columbia
since 1992, have laws that prohibit duplicate private health insurance, although complementary
health insurance is generally available and even encouraged through government taxation policies.
Four other provinces, including Saskatchewan, discourage duplicate private insurance for
Medicare through other means.
Although it was questionable whether user fees infringed the principle of universality under the
1964 federal Medical Care Act, a modest amount of extra-billing was tolerated in practice during
the early years of Medicare. In British Columbia, the practice was restricted in 1974 and finally
banned in 1981, three years before the Canada Health Act discouraged provincial governments
from allowing opted-in physicians to extra-bill. In his report to the federal government in 1980,
Justice Hall pointed out that user fees and extra-billing undermined the ability of provincial
governments to provide universal medical care coverage on the same terms and conditions to all
residents. The fact that the two features are inextricably linked was underscored in the Canada
Health Act through the principle of accessibility and the compulsory transfer withdrawals for user
fees and extra-billing.
C.
Legislative History
The Court will be provided with a substantial amount of legislative history that will speak to the
bases on which the Impugned Provisions (and the relevant provisions of the Canada Health Act)
were enacted. This material will include Hansard extracts, Royal Commission reports, and similar
materials.
62
1.
1964 Hall Commission Report
The Royal Commission on Health Services, also known as the Hall Commission after the chair,
Mr. Justice Emmett Hall, was established by Order in Council on June 20, 1961, under Part I of
the federal Inquiries Act. Its purpose was to:
... inquire into and report upon the existing facilities and the future need for health
services for the people of Canada and the resources to provide such services, and to
recommend such measures, consistent with the constitutional division of legislative powers
in Canada, as the Commissioners believe will ensure that the best possible health care is
available to all Canadians ...
Twelve issues were identified, including:
Financing methods;
Present and future requirements for health services personnel and their training;
Present and projected costs of health care services in Canada; and,
Methods of improving health care services.
Seven commissioners were appointed, including Mr. Justice Hall. The Commission held 67 days of
public hearings in all provinces and in the Yukon Territory, visited and studied health care systems
in several other countries, received submissions, heard individuals and delegates from 406
organizations, and commissioned 26 research studies.
The Commission recommended a national health policy and a comprehensive health care
program for three main areas:
Health services;
Health personnel, facilities and research; and
Financing and priorities.
63
Two final reports were issued, the Royal Commission on Health Services: 1964: Volume I, tabled in the
House of Commons on June 19, 1964, and the Royal Commission on Health Services: 1965: Volume
II, issued on December 7, 1964. Among the observations and recommendations in the
Commissions first, 1300 page report were the following: 92
In recommending the use of the fee-for-service method in a health service for Canada, we
wish to stress that it must be based on a schedule of maximum fees agreed to with the
profession in each province and that medical services be paid for on such agreed schedules
and not on any arbitrary percentage of the schedules. Extra billing would not be permitted.
The following services should not be included as insured services:

(a)
services received by a beneficiary under provincial Workmens Compensation
legislation;
(b)
services received by a beneficiary under other provincial legislation;
(c)
services received by a beneficiary under other federal legislation;
That the schedule of maximum fees or other payments should be that negotiated between
the medical association and the respective provincial administrative agency without extra
billing.
Thus, the principle of prohibiting extra billing, and of exempting from the Medicare scheme
recipients of workers compensation and other statutory health benefits, has been present from the
very inception of Medicare.
2.
1980 Hall Report
The federal Minister of Health and Welfare appointed Justice Emmett Hall in 1979 to report on
the state of Medicare. Justice Hall was asked to:
1.
Consider the extent to which the goals of the [1964] Charter of Health for Canadians
have been met;
92
Royal Commission on Health Services: 1964: Volume I, pp. 29, 33-34.
64
2.
Examine the extent to which the principles of portability, reasonable access,
universal coverage, comprehensive coverage, public administration, reasonable
compensation and uniform terms and conditions are being met;
3.
Consider whether there should be other basic principles underlying health
insurance delivery;
4.
Consider the nature and extent of necessary revisions to the Hospital Insurance and
Diagnostic Services Act and the Medical Care Act and related legislation;
5.
Consider other means by which public authorities may best comply with the
principles referred to above.
Justice Hall held public hearings in every province and the North West Territory. He received 450
submissions, and commissioned a number of studies. His report, which was published in 1980,
recommended legislation discouraging extra billing. The report stated, with respect to physician
compensation: 93
These then are the two cornerstones upon which my conclusions on this issue are based:
(1)
That physicians are entitled as a right to adequate compensation for services
rendered.
(2)
That if extra-billing is permitted as a right and practised by physicians in their sole
discretion, it will, over the years destroy the program, creating in that downward path the
two-tier system incompatible with the societal level which Canadians have attained.
Justice Halls report was followed in 1984 by the enactment of the Canada Health Act.
3.
Seaton Commission Report
In March of 1990, the British Columbia Royal Commission on Health Care and Costs was
established by Order-In-Council. The Commission was chaired by Mr. Justice Peter Seaton, and
included five other members. Between June of 1990 and March of 1991, the Commission visited
51 communities around British Columbia. Over the 18 months of its mandate, it held 369 hours
of hearings and talked to 904 groups and individuals, resulting in approximately 10,000 pages of
transcripts. The Commission received 1503 written submissions. In addition, Commission staff
93
Hon. Emmett P. Hall, Canadas National-Provincial Health Program for the 1980s: A Commitment for Renewal (Ottawa:
Queens Printer, 1980), p. 27. (Mandy Affidavit, Ex. L)
65
drafted research documents, and the Commission contracted with external consultants for close to
$1,000,000 for various research reports.
The Commission issued its 3 volume report, entitled Closer to Home, on 5 November 1991.
Volume 1 began with the following statement:
In 1984, the Canada Health Act defined and reaffirmed the five principles of medicare as
expressed in The Royal Commission on Health Service, 1964, chaired by Justice Emmett
Hall. The British Columbia Royal Commission on Health Care and Costs fully endorses
these principles, which are:
comprehensiveness
universality
portability
accessibility
public administration.
To date, no Canadian province has confirmed the five principles of medicare by enacting
them in legislation. Every province has taken steps to discourage or prevent extra-billing
and has removed hospital user fees, but none has gone further. We believe that it is
important that the BC government take the first step and make these principles an
integral part of BC law. [emphasis in original]
The Commission also stated:
Charging patients does not limit overall costs, although it does have a powerful effect on
who is cared for, and how they are cared for. The deterrent effect is greatest for lower
income people. Private funding is a popular quack remedy with dangerous ingredients
which will defeat, not support, the objective of controlling costs. At one end of the
spectrum, privatization refers to private insurance or user-pay systems in which people can
buy the best physicians and hospitals with their own resources, or buy their way to the head
of a queue. People with great needs and small resources can have whatever is left over
eventually. We believe that the people of BC, and of Canada, have made it clear that this is
not acceptable, and it is not acceptable to this commission.
As noted above, the MPA was enacted as the Medical and Health Care Services Act in 1992, repealing
and replacing the 1967 Medical Services Act and the 1981 Act.
66
4.
The Kirby Report
In December of 1999, the Standing Senate Committee on Social Affairs, Science and Technology
received a mandate from the Senate to study the state of the Canadian health care system and to
examine the evolving role of the federal government in this area. The terms of reference adopted
by the Senate for the purpose of the study read as follows: 94
That the Standing Senate Committee on Social Affairs, Science and Technology be
authorized to examine and report upon the state of the health care system in Canada. In
particular, the Committee shall be authorized to examine:
a.
The fundamental principles on which Canada's publicly funded health care system
is based;
b.
The historical development of Canada's health care system;
c.
Publicly funded health care systems in foreign jurisdictions;
d.
The pressures on and constraints of Canada's health care system; and
a.
The role of the federal government in Canada's health care system.
The Committee comprised eleven members, including two doctors, two former provincial
ministers of health (one of whom was also a former provincial premier), two former Members of
Parliament (one of whom was also a nurse), a former federal Cabinet Minister and former
journalist, two community activists, and two former senior members of a Prime Ministers office.
Over the two years that it spent in studying the Canadian health care system, the Committee heard
the views of over 400 witnesses in 76 meetings.
The Committee issued five interim volumes of its report between March 2001 and April of 2002,
and a final volume entitled Recommendations for Reform in October of 2002. The report is
known as the Kirby Report, after the Chair of the Committee, Senator Michael Kirby. The
unanimous final volume of the Report expressed, among others, the following conclusion: 95
The Committee is keenly aware that shifting more of the cost to individual patients and
their families via private payments, the facile solution recommended by many, is really
94
The Standing Senate Committee on Social Affairs, Science and Technology , The Health of Canadians The Federal
Role, Interim Report, Volume One The Story So Far (Ottawa: Queens Printer, 2001), Introduction (the Kirby
Report).
95
Kirby Report, Volume Six: Recommendations for Reform, part 1.1.3. (Mandy Affidavit, Ex. U)
67
nothing more than an expensive way of relieving or, at the least, diminishing governments
problem. Regardless of how it is expressed (as a share of GDP, share of government
spending, etc.), there is only one source of funding for health care the Canadian public
and it has been shown conclusively that the most cost-effective way of funding health care
is by using a single (in our case, publicly administered or governmental) insurer/payer
model.
The Committee believes strongly that Canada should continue to adhere to this most
efficient and effective model of universal health care insurance, and it is clear to the
Committee that Canadians believe this too.
As noted earlier, several of the Justices in the Chaoulli decision relied on one of the Kirby Reports
interim volumes for evidence regarding the operation of health care systems in other jurisdictions.
The dissenting Justices relied on the Kirby Reports final volume.
5.
The Romanow Commission
In April of 2001 Roy Romanow was appointed by Order in Council under the federal Inquiries Act
to:
inquire into and undertake dialogue with Canadians on the future of Canadas public
health care system, and to recommend policies and measures respectful of the jurisdictions
and powers in Canada required to ensure over the long term the sustainability of a
universally accessible, publicly funded health care system, that offers quality services to
Canadians and strikes an appropriate balance between investments in prevention and
health maintenance and those directed to care and treatment.
The Romanow Commission commissioned 40 discussion papers from scholars, policy analysts,
and experts from across Canada and internationally. All were subject to a peer review process
undertaken by the Institute of Health Services and Policy Research of the Canadian Institutes of
Health Research. The Commission also commissioned three major research projects, each of
which resulted in a detailed Final Report. Four roundtables with noted experts were held, hosted
by institutions in London, Paris, Washington, DC, and Toronto. Extensive consultations were
carried out with Canadians across the country, comprising Citizens Dialogue sessions, public
hearings, Expert Workshops, Regional Forums, partnered dialogue sessions, televised forums, and
68
surveys. The Commission received almost formal 450 submissions from organizations, as well as
over 200 formal submissions from individuals and over 10,000 informal submissions received by
mail or email.
The Commission issued its final report, Building on Values: The Future of Health Care in Canada, in
November of 2002. Among other things, the report states: 96
Early in my mandate, I challenged those advocating radical solutions for reforming health
care user fees, medical savings accounts, de-listing services, greater privatization, a parallel
private system to come forward with evidence that these approaches would improve and
strengthen our health care system. The evidence has not been forthcoming. I have also carefully
explored the experiences of other jurisdictions with co-payment models and with publicprivate partnerships, and have found these lacking. There is no evidence these solutions
will deliver better or cheaper care, or improve access (except, perhaps, for those who can
afford to pay for care out of their own pockets). More to the point, the principles on which
these solutions rest cannot be reconciled with the values at the heart of medicare or with
the tenets of the Canada Health Act that Canadians overwhelmingly support. It would be
irresponsible of me to jeopardize what has been, and can remain, a world-class health care
system and a proud national symbol by accepting anecdote as fact or on the dubious basis
of making a leap of faith.
Based on evidence both in Canada and internationally, progressive taxation continues to

be the most effective way to fund health care in Canada. From what the Commission
heard from Canadians through the Citizens Dialogue and other consultations, the large
majority of Canadians do not want to see any change in the single-payer insurance
principle for core hospital and physician services. There also continues to be a strong
consensus among Canadians that ability to pay should not be the predominant factor in
how we fund key aspects of our health care system. Canadians want necessary hospital and
physician services to be fully funded through our taxes. This may be because our taxfunded, universal health care system provides a kind of double solidarity. It provides
equity of funding between the haves and the havenots in our society and it also
provides equity between the healthy and the sick.
The current debate [about wait lists] appears to be polarized between two extreme and
incompatible positions:
96
Mandy Affidavit, Ex. V.
69
Those who look at the way wait lists are managed across the country and conclude
either that it is impossible to say whether there is a problem or that the problem is
more perception than reality; and
Those who use incomplete information to conclude that the problems are so severe
that the only solution is to allow parallel private facilities in which individuals can
use their own funds to purchase some services and, in their view, take some
pressure off the public system.
The Commission rejects both of these positions.

In response to the first view, the problem is not just one of perception. There is evidence to
suggest that there are problems in waiting times for some services but not in others. A
comprehensive examination of the situation in Manitoba, for example, showed that the
provincial system was dealing well with life-saving surgeries such as bypass operations, but
not as well with non-life-threatening elective surgeries (DeCoster et al. 2000).
In response to the second view, those who argue that the public system is no longer able to
manage the situation fail to take into account the progress that is being made in some
jurisdictions. In addition, private facilities may improve waiting times for the select few
who can afford to jump the queue, but may actually make the situation worse for other
patients because much-needed resources are diverted from the public health care system to
private facilities. [emphasis in original]
As with the Kirby Report, all of the Justices who decided Chaoulli referred to the Romanow
Commissions report.
D.
Operation of the British Columbia health care system
The Court will hear a significant amount of evidence about the operation of the health care system
in British Columbia, evidence which is essential to understanding the context and purpose of not
only the provisions that are being challenged, but the whole of the Act. The evidence will
demonstrate, among other things, the complexity inherent in British Columbias health care
system and the interconnectedness of its various aspects.
One of the Plaintiffs expert witnesses, Dr. Stephen Tredwell, offers the following insight into this
complexity:
70
The first point to be made is that our health care system is exceedingly complex, so much
so that it may well be arrogance for any one group to suggest that they understand or even
know all the variables within it.
1.
Structure
The following is merely a thumbnail sketch of the structure of the British Columbia health care
system, which is elaborated on in the Prima Facie Facts documents and will be further fleshed out
in the evidence.
The British Columbia health care system is not a unified whole, conceived and executed at a
stroke. It has developed over time, layered onto pre-existing systems and structures. The Ministry
of Healths role is that of steward of the health care system, establishing high level expectations
and goals for seven health authorities, the Medical Services Commission, health care provider
organizations, and physicians and other health care providers. It directly manages only a very small
number of programs and services: the health authorities are the organizations primarily responsible
for health service delivery in British Columbia. One of the Plaintiffs expert witnesses, John
McGurran, describes the Ministrys role in his report:
In British Columbia, the Ministry of Health acts as the steward of publicly funded health
care on behalf of all residents. Consistent with a conventional interpretation of the Canada
Health Act , the Ministry serves as the payer for virtually all of the surgical and medical
care for which British Columbians wait. As described by the World Health Organization
(2013), health stewardship is a political process, balancing competing influences, through
which a government seeks to achieve its health policy objectives.
The Medical Services Commission is responsible for the administration of the Medical Services
Plan (the MSP) pursuant to the Medicare Protection Act, and to facilitate reasonable access
throughout British Columbia to quality medical care, health care, and diagnostic facility services.
The MSP was established in 1968 to pay for benefits on behalf of beneficiaries.
Five regional health authorities deliver a full continuum of health services to the population
within their geographical regions: the Vancouver Island, Vancouver Coastal, Fraser, Interior, and
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Northern health authorities. The Provincial Health Services Authority manages the quality,
coordination, and accessibility of certain province-wide health programs, including the BC Cancer
Agency, the BC Centre for Disease Control, and BC Emergency Health Services, in addition to
the BC Childrens Hospital and the BC Womens Hospital and Health Centre. A seventh health
authority, the First Nations Health Authority, is responsible for administering federal health
programs and services that were formerly delivered by Health Canada.
The direct delivery of health care to British Columbians is carried out by over 90,000 registered
professionals, including some 11,000 physicians, 1,000 resident physicians and post-graduate
fellows, 36,000 registered nurses, 12,000 licensed practical nurses, 5,000 pharmacists, and many,
many others. They provide their services in over 100 hospitals, more than 600 general medical care
clinics, over 1,000 community pharmacies, and countless other organizations, which among them
provide health care to tens of thousands of British Columbians every day.
The evidence will show that British Columbia has almost 5 million residents registered with the
Medical Services Plan. The evidence will show that every year, almost 4 million of those British
Columbians use the services of a physician, without having to worry about how they are going to
pay for those services. The evidence will show that every year, the physicians enrolled in the
Medical Services Plan provide those medical services without having to be concerned with whether
or not they are going to be paid for them. All they need to do is submit a claim electronically to
the MSP, and they know that as long as they have complied with the legislation they are going
to be paid promptly.
The evidence will also show that the vast majority of British Columbias physicians provide their
services as independent contractors but a unique kind of independent contractor. Physicians
decide for themselves where they will practise, set their own hours of practise, determine
themselves how many patients they will accept and who those patients will be, and determine how
best to address their patients medical needs. Surgeons maintain and control their own wait lists,
and determine which patients undergo surgery and in what priority relative to each other. There is
no central wait list for elective surgery administered or controlled by the Ministry. Health
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authorities do not control or directly administer the wait lists either, although they do attempt to
ensure that physicians are administering them appropriately.
The evidence will show that while the Health Authorities are responsible for ensuring the
coordination and continuity of health care, and are therefore in charge of organizing services, the
Ministry of Health and the Medical Services Commission are primarily responsible for paying the
physicians who deliver those services. The extent of this autonomy the fact that physicians are
typically highly independent of the organizations in which they conduct at least some of their work
creates major challenges for the alignment of incentives.
There are four fundamental characteristics of the British Columbia health care system that are
important to an understanding of the Defendants case:
(a)
First, the vast majority of physicians in British Columbia, including surgeons and
other specialists, are not employed by government, as is the case in many other
jurisdictions to whose health systems British Columbias will be compared.
(b)
Second, physicians who are paid by MSP for providing benefits are free to charge
patients, at whatever rates they see fit, to provide services that are not covered by the public
health care system.
(c)
Third, there is no overall waitlist for specialist consultations or surgery in British
Columbia: every physician (with certain very limited exceptions) maintains his or her own
wait list, and every physician must take the length of those wait lists into account when
referring, or accepting referrals of, patients.
(d)
Finally, there is no law in British Columbia prohibiting physicians from engaging
in private practice, offering any services they choose and billing patients whatever they
wish: the MPA requires only that physicians operate either within the public system or
outside of it.
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2.
Problems
Our health care system is profoundly important to all of us. Every British Columbian comes into
contact with some aspect of the health care system from time to time, and we expect that health
care system to provide the best possible care every time. The Ministry and the Commission, and
the tens of thousands of dedicated professionals who strive every day to provide the medical care
that British Columbians need, take their responsibilities seriously. No matter how robust a system
is, however, and no matter how many checks and balances are put in place, at the end of the day
health care is provided and health care systems are designed and run by human beings, and
human beings are fallible. Health care is not always provided in accordance with the applicable
standards. No one can guarantee that everything will always go right: the mere existence of the
Canadian Medical Protective Association, physicians collective insurer, speaks to that fact.
The Court will hear evidence from the Plaintiffs of problems in the operation of the health care
system, including the problem of some people waiting longer than they should for surgery. No one
denies that such problems exist; the fact of their existence is not disputed. The Government has
publicly acknowledged the existence of those problems, and the Ministry of Health has been
working to address them for years. What is in issue is, in part, the extent of the kinds of problems
identified by the Plaintiffs, and the extent to which they are indicative of problems with the public
health care system as a whole.
The evidence will indeed show, as the Plaintiffs allege, that some British Columbians wait longer
for their surgery than they would like, or than would be ideal. The evidence will show, however,
that overall the quality of care that British Columbians receive is among the best in the world, and
that when urgent or emergency care is needed, it is almost invariably provided without delay. The
evidence will show that British Columbians whose medical conditions are life-threatening receive
the care they require without delay. The evidence will show that the procedures for which patients
wait are certain types of scheduled surgeries, usually referred to in the literature as elective
surgeries. The evidence will show that, in terms of the overall provision of health care in British
Columbia, the patients who are waiting too long are the exception, and not the rule.
74
The Prima Facie Facts document relating to the operations of the Ministry includes a chart that
demonstrates this fact graphically. 97
It is also important to remember, as the review of the Ministrys Prima Facie Facts document will
make clear, that wait lists for scheduled surgery are only one aspect of the provision of health care
to the population of British Columbia in the context of a modern health care system.
In light of the fact that the existence of wait time problems is not in dispute, the Court may well
ask itself, when listening to the evidence of patients and physicians other than the plaintiffs and
their treating physicians, what the purpose of that evidence is, and why it is necessary for the
Plaintiffs to call it.
3.
The Evidence of Physicians
The Court will hear evidence from physicians who practise in the British Columbia health care
system, and in other Canadian health care systems, who will describe their own experiences with
those systems and the ways in which their experiences differ from the Plaintiffs description of the
health care system.
a)
Dr. Andrew Hamilton
Dr. Andrew Hamilton is a physician with a specialty in anaesthesiology who practises in

Penticton, British Columbia. He is also the Medical Director for Surgery of the Interior Health
Authority, the co-chair of the Interior Health Surgical Services Executive Committee, and the cochair of the Provincial Surgical Executive Committee. He is also the past co-chair of the former British
Columbia Ministry of Health Provincial Surgical Advisory Council.
97
Completed Surgeries in British Columbia (Appendix 5).
75
Dr. Hamilton will describe processes implemented within Interior Health to improve access for
surgical patients.
Accuracy of wait lists:
The Surgical Patient Registry is the provincial data base for surgical patients in B.C. When a
booking is received from a surgeon, it is entered into the hospital system and uploaded nightly to
the SPR. Once the patient receives the surgical procedure, the booking is closed in the hospital
system and transmitted to the SPR. However, wait lists are dynamic and change frequently.
Patients change their mind, become unavailable for social or medical reasons, move away, have
surgery elsewhere or for other reasons, or are not ready willing and able to have the procedure.
These changes are usually not communicated by the surgeons office and not entered by the
hospital clerks. Therefore, the weakness of the SPR is that it is not accurate for patients waiting for
surgery and is not used for scheduling patients and managing wait lists effectively. Some surgeons
offices and booking offices may still use their own lists, which may be paper. The SPR is only
accurate for completed cases.
Interior Health implemented comprehensive booking and scheduling guidelines in 2014. These
describe the responsibilities of all parties, with the goal of improving wait list management. It
requires regular quarterly audits by the Health Authority of patients waiting who have exceeded set
targets. This is a labour intensive process, which includes contacting surgeons offices and
individual patients to confirm that they still require a procedure and wish to remain on the list.
The first audit in 2013, of patients waiting more than one year for surgery, resulted in 41% of
patients being removed from the list.
Scheduling of Patients for Surgery:
Throughout the province, most scheduling of patients on an operating room slate is performed by
the surgeons offices. However, the Health Authority provides most of the physical and human
resources for the surgery and has a responsibility to help meet the needs of patients. Therefore,
some Health Authorities, including Interior Health, are moving to a more collaborative model to
help manage wait lists effectively and to improve efficiency and quality. As a result, a considerable
76
percentage of scheduling is now done by the Health Authority on behalf of the surgeon. Because
of the complex detailed relationship between the surgeon and the patient and the surgeons
knowledge of the clinical and social circumstances of the patient, the surgeon always has the
discretionary ability to schedule any patient on an OR slate. However, it is expected that most
patients will be scheduled in turn according to clinical priority.
Allocation of Operating Room Time:
In Interior Health, allocation of OR time is done by the Perioperative Management Committees at
each hospital. Under the fee for service system, it is necessary to allocate a base line of time to each
surgical specialty group that the Health Authority wishes to retain in the region. Communities rely
on a critical mass of surgeons in each specialty to provide not just elective care but also emergency
care. Thereafter, OR time is allotted based on the specific needs of patients waiting for surgery.
This is reviewed on a regular basis and flex time or time that becomes available through vacation
or other means is allocated on this basis. The principle applied is that the OR time is owned by the
patients in the Health Authority and is managed on their behalf by the hospital.
Wait list management:
Interior Health implemented comprehensive booking and scheduling guidelines in 2014. These
describe the responsibilities of all parties with the goal of improving wait list management.
Implementation of the policy together with the increased collaboration, audits, and wait list
analysis has revealed many opportunities to improve access for patients, reduce the size of wait lists
but more importantly, reduce the time that patients must wait. Dr. Hamilton will describe some of
these initiatives including wait list analysis, modelling of demand, process improvement, better
communication with patients, and other matters.
b)
Dr. Margaret McGregor
Dr. Margaret McGregor is a family physician who has practised in Vancouver for the past 26
years. She is also a Clinical Associate Professor and Director of Community Geriatrics with the
University of British Columbia Department of Family Practice, and a research associate with the
77
Vancouver Coastal Health Research lnstitutes Centre for Clinical Epidemiology & Evaluation
and the UBC Centre for Health Services & Policy Research.
Dr. McGregors evidence will be that the publicly-funded health care system works well for most of
her patients. Where situations have arisen where patients would be at medical risk because of a
delay in access, she is normally able to appropriately expedite access by speaking directly to the
appropriate specialist physician. It is her practice to ensure that when she refers a patient to a
specialist, an appointment is arranged in a timely way. Dr. McGregor will testify that
communication among the patient, the family physician, and the specialist is critical to ensure that
timely and appropriate care is provided to the patient. She has also obtained approval from MSP
to have care provided to patients in other jurisdictions where that care was not available in British
Columbia.
Dr. McGregor will testify that she has seen major improvements in access to procedures and
imaging tests over the past decade. She will describe some of those improvements, and will testify
that they are the result of initiatives from physicians and administrators working together to
address perceived gaps in system care. Dr. McGregor will also testify that most of her patients have
limited incomes, and would be unable to afford private insurance or pay privately for medical
services.
c)
Dr. Khati Hendry
Dr. Khati Hendry is a recently-retired family physician who practised in Summerland, British
Columbia between 2004 and 2015. Dr. Hendry obtained her MD from the University of
California in 1977, and before moving to British Columbia she practised as a family physician in
Oakland, California for 25 years.
Dr. Hendry will testify that her experience practising medicine in British Columbia was very
different from her experience practising in the United States. The fact that the MSP pays all fees
for all medically necessary services provided to British Columbia residents meant that she was not
78
required to spend time identifying what insurance coverage her patients were qualified for, and no
co-pays by the patients. There was no need to seek pre-authorization for treatment, which may be
denied by an insurance company. There was no agonizing over which services would be covered,
and where her patients could go for care. Instead, there was a single part-time clerk to manage
accounts for seven physicians in her clinic.
Dr. Hendry will testify that her patients in Summerland are unfamiliar with a phenomenon
common in the United States called job lock, whereby older employees are unable to leave their
jobs because it would mean loss of their health care coverage. Loss of health coverage was never an
issue for her patients in Summerland. Unlike her experience in the United States, patients are
never turned away when they require emergency care, or forced to pay large sums of money up
front for seeking care out of network. When they face illness, hospitalization, or death, they are
concerned about their health, their prognosis, their families, and their lives; unlike my U.S.
patients, they are not worried about pre-existing conditions, loss of coverage, destitution, or
medical bankruptcy.
Dr. Hendry will testify that in her experience, physicians in the United States face a great many
challenges unrelated to the practise of medicine that physicians in British Columbia simply do not,
including frustrations around getting paid for medical services, complying with government
mandates, and finding time for patients amid administrative tasks.
Dr. Hendry will testify that she has participated in many initiatives of the General Practices
Services Committee (GPSC), including chronic disease management improvement collaborative
and Divisions of Family Practice. She has also been the Chair of the South Okanagan
Similkameen Divisions of Family Practice Board, and sat on the GPSC committee as a
representative from the Doctors of B.C. In contrast to her experiences in the United States, she is
impressed by the ability of physicians, the Ministry of Health, and health authorities to collaborate
in British Columbia. Representatives from the Ministry of Health, the Doctors of B.C., and the
health authorities literally sit at the same table to make sure physicians are active and supported in
the quest to improve chronic disease management, residential care, inpatient coverage, outpatient
79
services, collaboration with specialists, and mental health. Because of the existence of the single
payer system, the agenda is not driven by private insurers, as it would be in the United States. It
focuses on quality aims first, not on how to game the system for one piece of the financial pie,
which inevitably happens in the United States.
d)
Dr. John Reid
Dr. John Reid is the Head of Surgery at St. Pauls Hospital. He is a member of the College of
Physician and Surgeons of BC and has been a member since 1981. He has Royal College of
Canada fellowships in General and Vascular surgery and is a fellow of the American
College of Surgeons. He is also the former Director of the Vascular Laboratory at St. Pauls, which
provides non-invasive vascular testing, and is also a Clinical Professor at the University of British
Columbia.
Dr. Reid will testify that, since he began working as a surgeon as St. Pauls in 1987, he has
witnessed changes in how the hospital allocates surgical time and how physicians manage their
wait lists. Historically, there was no consistent system of allocation of operating room resources.
The system was ad hoc and was based on the personal observations of the Chief of Surgery or, in
the remote past, from an OR booking clerk. This could lead to inequities through favouritism
towards some and not others. St. Pauls now uses a methodology to allocate the operating room
resources based on agreed-upon data. A calculation takes into account the time a patient has been
waiting for their procedure as well as the surgeons management of their waiting lists. This is called
the Resource Allocation Method or RAM. A key feature of this methodology is that each
procedure has been assigned a target wait-time based on consensus of each of the surgical groups
providing the care. As well as providing a consistent and transparent way to distribute the OR
resources, the information can provide a picture of the unmet capacity for the resources. RAM has
been an effective way to manage waiting times for surgical procedures.
Dr. Reid will testify that while surgeons are responsible for managing their waitlists, Providence
Health Care monitors how the surgeons manage their lists. One important principle is that of
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first in- first out. This means that the first patient on the waitlist, assuming the same relative
need, should be offered surgery before the next patient on the waitlist. While this information is
given back to the surgeons, Providence Health Authority has no authority to require or compel
surgeons to manage their waitlists in a particular way. Surgeons retain autonomy with respect to
the priority of their wait-list and therefore retain the clinical responsibility for their patients.
In Dr. Reids view, the system works very well for the acute surgical emergencies and urgent cases
that cannot wait for the usual OR booking procedure. He will testify that, for the most part, urgent
surgical problems are dealt with well and the system of wait-times developed thorough RAM
permits the system to see when urgent cases are reaching a critical delay in their wait-times to allow
for adjustments to be made. Dr. Reid will note that in his practice cases such as aneurysm repair or
symptomatic carotid disease are usually able to be performed within the target wait-times. Some
cases with longer target wait-times are problematic. In his practice (and he notes, in British
Columbia as a whole), varicose vein surgery tends to exceed the set target wait-times. In these cases
he is free to, and considers it essential to be able to, arrange the priority of cases based upon
patient factors. For example, a patient who has an inability to carry on their occupation, or has
more significant symptoms not captured in the wait-time diagnosis could be given a higher priority.
Dr. Reid will testify that it is his sense that the current fee-for-service arrangement for surgeon
reimbursement can be a dis-incentive for surgeons to attend to certain types of problems. In his
speciality, varicose veins are poorly reimbursed and there in an incentive by the surgeon to assign
these cases a much lower priority, exacerbating the problem of long-waiting cases. Furthermore,
having the ability to treat these less urgent cases in the private domain, where the surgeon would
be more handsomely reimbursed, could remove the availability of the surgeon to be available to
treat more urgent cases in the public domain.
Dr. Reid will testify that one aspect of his practice that aids in the control of waiting times is the
cooperative practise that he has with his two colleagues. Dr. Reid developed a system whereby
income is divided among the group. Cases are distributed among the group to the surgeon with
81
greatest availability. This has the effect of levelling the load and avoiding the situation of one
individual compiling a long waiting list in the face of a shorter waiting list of one of his colleagues.
Dr. Reid will testify that there have been innovations to reduce the impact of waiting for
consultative services to gain access to surgical services. In both the Foot and Ankle Clinic at St.
Pauls hospital and the Breast Clinic at Mt. St. Joseph, patients are seen upon the referral of a GP,
triaged, and in some cases treated with conservative means by specially trained general
practitioners. This has the impact of increasing the availability of surgeons to those patients who
require that specialized care.
e)
Dr. Cyril Frank
The Court will be provided with two expert reports from the late Dr. Cyril Frank, B.Sc., PDAD,
M.D., FRCSC. Although Dr. Frank died in February of 2015, after completing his reports, the
Plaintiffs have agreed that the Defendants may rely on his reports, although they have reserved the
right to make submissions with respect to the weight that the Court ought to accord to them.
Before his death, Dr. Frank was an orthopedic surgeon with 30 years of active practice experience
in Alberta. He had a special research interest in health service improvements, particularly in wait
times for hip and knee arthroplasty. He served as chief of the orthopedic surgery division in the
Department of Surgery at the University of Calgary for over 25 years, and was at various times the
President of the Canadian Orthopaedic Research Society, the Canadian Orthopaedic Foundation,
and the Canadian Orthopaedic Association. He served on many national and international
committees in research, education, and service delivery in the field of arthritis and joint injuries,
and served on the editorial boards and as a reviewer for many international journals in
orthopaedic surgery, biomechanics, and orthopaedic research. Dr. Frank was the co-founder of the
Alberta Bone and Joint Health Institute, a not-for-profit institute dedicated to improving access,
quality, and value for money in bone and joint care in Alberta. From 2011 to 2013 Dr. Frank was
the Vice-President of Research Strategy for Alberta Health Services, and at the time of his death he
was the Chief Executive Officer of Alberta Innovates Health Solutions, administering and
82
allocating over $100 million annually in funding for research and innovations in health and health
care in Alberta.
Dr. Franks evidence will be of assistance in understanding the complex issues around wait lists,
how they arise, what functions they serve, and why they are inevitable.
Dr. Franks evidence will be that wait lists occur in every health care system, regardless of the mix
of public or private financing or delivery. Access to surgical care, like access to all care, is only one
of six equally important dimensions of quality health care (accessibility, acceptability,
appropriateness, efficiency, effectiveness, and safety), and unless a condition is immediately life
threatening it is managed by having people wait their turn. While waiting, patients will often have
further investigations and try various safer, non-surgical, therapies. Safety and efficacy will trump
speedy access, so wait lists exist in virtually every health care service in every health care system.
Dr. Franks evidence will be that wait times are measured in different ways in different places,
and there is little consistency to their measurement, making it difficult to compare wait times
across jurisdictions. His experience and research has also shown that wait lists are frequently
inaccurate. As one example, a detailed analysis of the wait lists of 20 Alberta orthopaedic surgeons
showed that more than a quarter of the people who appeared on their waitlists as waiting for
surgery were not actually waiting for surgery, and a slightly higher proportion of the patients who
appeared to be waiting for a consultation with a surgeon actually werent. Significantly, these facts
were unknown to the surgeons and their staff.
Dr. Franks evidence will be that the very definition of a wait list is variable, and that different
types of lists are maintained by different providers and health services for different purposes. In
addition, patients can have different reasons for being on a wait list, and those reasons can affect
the apparent length of the wait list: for example, patients can be on multiple lists simultaneously,
being on a list can serve as a placeholder for a patient who may want surgery at some later point,
and so on. It is also important to note that reported wait times can be misleading, as in fact the
majority of people actually experience a wait time that is shorter than the reported wait time.
83
Dr. Franks evidence will be that there are two main reasons for wait times for surgery. One is the
kind of reason that the Plaintiffs assert: system-induced involuntary waiting that is the result of
the handling of referrals, waits for diagnostic testing, physician availability, hospital bed
availability, and the like. Such waits may be the result of resource shortages or, more importantly,
the way in which those resources are managed. The second main reason, however, is patientrelated wait time. Part of that is medically induced, in that the patient is not yet ready for
surgery, but there are also voluntary waits caused by patients that are surprisingly common. Such
waits result from such things as patients choosing a physician with a longer wait list than the next
available surgeon, or choosing to delay appointments or surgery for personal or social reasons,
including family events, vacations, or work-related reasons.
Dr. Franks evidence will show that his institute brought about reforms to the treatment of hip
and knee arthroplasties in Alberta between 2004 and 2013 that resulted in 73% more surgeries
being done annually, and annual reductions in wait times, with only 5% more surgical beds. The
work done on those reforms brought to light a number of reasons for the existence of long wait
lists beyond those described above. For one, patients and referring physicians will typically choose
surgeons based on their reputations, meaning that a number deliberately choose surgeons with the
longest waiting lists on the assumption that they must be better. Once physicians and their
patients were offered the option of a referral to the next available surgeon, increasing numbers
chose that option although an audit conducted in late 2013 demonstrated that at least 35% of
the wait times in Alberta (for those procedures) were still attributable to voluntary delays.
Dr. Franks evidence will be that, based on the factors described above, the average wait time
reported by Alberta Health for hip and knee replacement surgery would be at least 12-14 weeks
shorter if the reports excluded patients voluntarily waiting for specific surgeons and patients
voluntarily choosing to wait for personal reasons.
Dr. Franks evidence will be that the research literature does not establish (with the exception of
some known, life-threatening circumstances) that diseases progress predictably while patients wait
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for surgery. As a result, there are no scientifically defined, standard definitions of maximum wait
times or appropriate wait times for any given patient or even any given type of pathology,
particularly in the field of orthopaedics. Research has shown that while the majority of patients
with chronic conditions do not improve while waiting for surgery, some actually do experience an
improvement in their symptoms while waiting and others remain stable enough to defer having a
risky surgical procedure. Few medical conditions are understood well enough to prescribe a
threshold beyond which surgery must be done due to predictable progression. With respect to
joint injuries specifically, the evidence shows that 50-70% of such patients will progress to
osteoarthritis with or without state-of-the-art arthroscopic surgery and ligament reconstruction. All
surgery carries risks, and some percentage of patients experience complications from this type of
surgery, including infections, stiffness, and secondary weakness.
Dr. Franks evidence will be that faster access to surgery is not always better. It is always possible to
move too quickly toward an invasive intervention, which will not always cure the condition
being treated, and which certainly has more risk of adverse consequences than non-invasive
interventions. His research has shown that it is possible to move patients too quickly to surgery,
causing them stress and anxiety from not being prepared psychologically. Faster access to surgery
can also cut short non-surgical treatments that may, in fact, be working. In addition, with the
exception of trauma surgery, elective surgery rarely restores anything to normal, and there are
risks involved. Major adverse events occur after 1-5% of major joint surgery, with higher rates
among older people with multiple co-morbidities. Many people who experience adverse outcomes
wish, in retrospect, that they had never had surgery at all.
Dr. Franks evidence will be that health care systems must prioritize differently for elective
conditions than for urgent and emergent conditions, and that the ideal intent of prioritization is
for surgeons to perform each surgery in the order that will benefit each patient the most,
maximizing outcomes and minimizing harm for each patient. Emergent conditions, by definition,
always trump urgent ones, and urgent conditions always trump elective ones. In any health care
system, there is considerable complexity to getting this ordering right, within and across each
type of condition. It is complicated by the fact that the decisions are dynamic, updated hourly,
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daily, weekly, and monthly, and by the fact that patients can move from one type of condition to
another within hours or minutes.
Dr. Franks evidence will be that physicians, and the health care system, must work to get the
ordering as right as possible, and surgeons must be constantly vigilant for patients with
conditions that have a particularly poor prognosis for potential progression, and provide the best
possible (surgical or non-surgical) care to them based on the evidence. It is common for referrals to
specialists to contain insufficient information for the specialist to make an adequate decision
about relative urgency and severity.
f)
Dr. Eric Bohm
The Court will hear evidence from Dr. Eric Bohm, B.Eng., M.D., FRCSC, M.Sc., an orthopaedic
surgeon specializing in primary and revision hip and knee replacement surgeries, working in the
Concordia Joint Replacement Group in Winnipeg. Dr. Bohm has appointments as an associate
professor in the Departments of Surgery and Community Health Sciences in the Faculty of Health
Sciences at the University of Manitoba, and serves as the medical director of the Winnipeg
Regional Health Authoritys (WRHA) Central Intake Program for Hip and Knee Replacement
Surgery and as Medical Advisor to the WRHA and Manitoba Orthopedic Society Regional Joint
Replacement Registry. He chairs the advisory committee of the Canadian Joint Replacement
Registry and is the lead for the Health Systems Performance platform at the George and Fay Yee
Centre for Healthcare Innovation at the University of Manitoba and WRHA. Dr. Bohm served as
chair of the national standards committee of the Canadian Orthopaedic Association from 2009
through 2015, and his research interests include access, appropriateness, effectiveness and safety of
healthcare delivery.
After Dr. Franks death, Dr. Bohm reviewed Dr. Franks reports and concurred with them, and his
evidence will largely parallel Dr. Franks.
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g)
Dr. James Waddell
Dr. James Waddell is an orthopaedic surgeon practising at St. Michaels Hospital in Toronto. He is
also the Director of the Holland Orthopaedic & Arthritic Centre in Toronto. He has been, among
other things, the Surgeon-in-Chief and Medical Director of the Trauma Program at St. Michaels.
He recently completed 10 years as the Professor and Chairman of the Division of Orthopaedic
Surgery at the University of Toronto. He is the Past Chair of the Canadian Orthopaedic
Foundation, and Co-Chair of the National Hip & Knee Knowledge Knowledge Translation
Network. He has been the Coordinator for the Global Alliance of Musculoskeletal Health since
2000, and is a member of the Steering Committee for Bone & Joint Canada. He is the Chair of
the Expert Panel for Orthopaedic Surgery for the Province of Ontario. He has occupied a number
of positions in the Canadian Orthopaedic Association, including President, and is the co-editor of
the Canadian Journal of Surgery.
Dr. Waddell will describe for the Court initiatives that have been undertaken in his clinical work
that have dramatically improved the efficiency with which patients requiring orthopaedic surgery
have been treated, and subsequently reduced the length of time that patients have had to wait for
treatment. He will testify that these improvements have not been easy, and have only been possible
because of close co-operation between orthopaedic surgeons, other health care professionals, and
the hospitals and local health authorities.
h)
Dr. Wayne Hildahl
The Court will hear evidence from Dr. Wayne Hildahl. Dr. Hildahl is a primary care sport
medicine physician and the Chief Operating Officer of the Pan Am Clinic in Winnipeg,
Manitoba. Dr. Hildahl founded the Clinic in 1979 as a for-profit clinic focusing on athletes and
sports-related injuries. As a for-profit clinic, the Clinic performed private orthopedic surgeries and
charged patients facility fees.
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In 2001, the Clinic was purchased by the Province of Manitoba and converted into a non-profit
operating division of the Winnipeg Regional Health Authority (WRHA). The WRHA provides
capital investment and owns the Clinics assets. The Province of Manitoba funds the Clinics
programs through the WRHA. The Clinic has a built-in profit margin, with all profits ging
directly back into patient care at the Clinic. The Clinics focus is sustainable improvement of
health care provision, rather than corporate or individual profit.
Dr. Hildahls evidence will be that the current operations of the Clinic demonstrate that the
public health care system can be extremely efficient. Using some of the entrepreneurial techniques
and approaches of the private sector, but without the problematic issues created by having to
deliver a profit for owners or shareholders, has made the Clinic particularly successful.
Dr. Hildahl will testify that, in his experience, the financial bottom line is the most important
issue in a for-profit clinic. The quality of the care provided is not the priority. It is also his
experience that a for-profit private clinic will draw skilled human resources away from the public
system. This is particularly true for physicians, although it is also true for skilled nurses and other
health care professionals. There is only so much time in a day, and any time spent working in a
private system is time that cannot be spent working in the public system. Private clinics do not deal
with urgent or emergent health care issues, and one of the implications of having health care
workers spending time in a private system is having fewer health care workers available to deal with
those issues in the public system.
i)
Dr. Danyaal Raza
The Court will hear evidence from Dr. Danyaal Raza. Dr. Raza is a staff physician with the
Department of Family & Community Medicine of St. Michaels Hospital, and a physician-lead of
St. Michaels Sumac Creek Health Centre in Toronto, Ontario.
Dr. Raza will testify that in February of 2016 he was solicited to join a group of private health
clinics in Alberta and British Columbia. He was offered a guaranteed minimum annual income of
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$200,000, plus the amounts he would be paid by the public health care system on a fee-for-service
basis, with the expectation that his total net annual income would be approximately $400,000. He
was told that he would only be required to work Monday-Friday daytime hours, and would only be
required to be on-call 1 week in 10. He was told that his practice would consist of approximately
500 patients, as compared to the normal average practice size for a family physician of between 900
and 2,000 patients.
Dr. Raza will testify that he was told that patients who attend one of the clinics pay an annual
membership fee of $4,375 for the first year, and $9,650 for a family of four. There are additional
fees charged for other services, and for some diagnostic testing. Individuals who have not paid a
membership fee are also able to access the clinics services by paying for them on a fee-for-service
basis. He was told that most people cannot afford the clinics services. He was also told that if he
wanted to see a patient who could not or would not pay the clinics fee, he would have to do that
somewhere other than at the clinic.
4.
Efforts to Improve the System
The evidence called by the Defendants will also demonstrate the efforts that have been made by
the Ministry to address the problems of over-long wait times, and some of the challenges that the
Ministry faces. As noted above, one of the concerns expressed by Deschamps J. in Chaoulli was that
the government of Quebec did not appear to have been making any efforts to address the
problems of wait times. 98 This apparent lack of effort was cited by her as the basis on which the
Court was entitled in that case to refuse to grant the government the deference to which it would
otherwise be entitled.
The Court in this case will hear extensive evidence about the efforts that have been made by the
government of British Columbia, on its own and in conjunction with the federal government,
98
Chaoulli, supra, at paras. 95-97.
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health authorities, the medical profession, and others to address the very complex issue of wait
times.
Much of this evidence is set out in the Prima Facie Facts documents, and will be reviewed in more
detail. The Court will also, however, hear viva voce testimony on behalf of the Defendants on this
topic.
a)
Dr. Andrew Hamilton
Dr. Andrew Hamilton, whose evidence relating to the Interior Health Authority was referred to
earlier, will also testify with respect to initiatives of which he is aware in his role as the co-chair of
the Interior Health Surgical Services Executive Committee, past co-chair of the former British
Columbia Ministry of Health Provincial Surgical Advisory Council and current co-chair of the
Provincial Surgical Executive Committee.
The Provincial Surgical Strategy: Doctor Hamilton will provide evidence on the commitment of
the Ministry of Health, together with the health authorities and stakeholders in the health system,
to bring about change and improvement in the delivery of surgical services in British Columbia, as
part of a broader, integrated health system. He will address the ongoing development and
implementation of the provincial surgical strategy. He will describe the evolution in recent years of
the Ministry of Healths renewed focus on timely access to surgical services.
In February of 2014, the Ministry of Health published Setting Priorities for the BC Health System
(Setting Priorities). 99 This guiding document set out the broad strategy and future direction of the
British Columbia health care system. The strategy acknowledged that the B.C. health system can
and must build on its successes, but also make improvements to meet the short and long term
needs of British Columbians. The plan rests on a vision of achieving a sustainable health system
that supports people to stay healthy and provides high quality publicly funded health care services
99
[Common Book of Documents, p. 0620]
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that meet their needs when they are sick. This strategic priorities document reconfirmed timely
access to surgery as a key area of focus for the Province.
Arising from this strategy, the Ministry developed policy papers on key health priorities that are
designed to help government, health authorities, and health care providers bring necessary changes
to the health care system to meet the needs of patients. Key areas include primary and community
care, surgical services, and rural health services.
In July of 2014 the Provincial Surgical Executive Committee (PSEC) was formed, replacing the
previous Provincial Surgical Advisory Council. PSEC was given the mandate and authority to drive
a comprehensive policy framework for improvements in the area of surgical services through
discussion and collaboration with the various stakeholders in the health system. In February of
2015 the Ministry and the PSEC published a cross-sector policy discussion paper, Future Directions
for Surgical Services in British Columbia, 100 making recommendations regarding change to the delivery
of surgical services. Among other things, PSEC has the mandate to develop a new provincial
waitlist management policy.
In September of 2015, PSEC submitted a 3-Year Plan for Surgical Services to the Ministry, which
was updated in April 2016. Some of the goals identified in the 3-Year Plan are:
Improve timely access to appropriate surgical procedures;
Patient-centered accurate synchronized information solutions for enhanced surgical flow

(information technology);
BC has the right number and types of surgical health care providers to meet its needs
(human resources);
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Surgical waitlists are managed optimally and proactively;
Prima Facie Facts (Ministry of Health), Exhibit 14.
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Improve the patient experience of care, patient-centred choice, reduce unwarranted

variation;
Performance monitoring;
Reduce per capita costs for surgical services.
In May of 2016 Leadership Council recommended focused implementation of the 3-Year Plan at a
select number of hospitals across the province, in each of the health authorities, including the
Provincial Health Services Authority. Those early adopter sites were approved by the health
authorities in June of 2016. In July of 2016 a Provincial Steering Committee was formed to
oversee implementation and progress on the measures of success at the early adopter sites.
Doctor Hamilton will provide evidence on some of the key deliverables of the 3-Year Plan for the
improvement of timely access to surgical services in British Columbia. He will address
implementation of the 3-Year Plan at the early adopter sites and generally across the province.
Doctor Hamilton will address ongoing changes envisaged in the provincial surgical services
strategy. Among other changes, the Ministry has provided direction to the health authorities
regarding new wait time targets for scheduled surgery. The health authorities are being asked to
provide plans to meet ambitious targets. Further, there are ongoing efforts to implement a service
plan for the delivery of surgical services across the Lower Mainland to ensure quality patient- and
family-centred care and timely access to surgical services.
Prioritization Codes: The Ministry of Healths prioritization initiative was implemented by the
original Provincial Surgical Advisory Council and comprehensively reviewed by PSEC in 2015.
This was a province wide project that standardizes as much as possible the assessment of urgency
and the priority of patients waiting for surgery. Patients are assigned to one of five categories with
targets based on expert opinion of their clinical need. The Ministry of Health and PSEC reviewed
the codes to ensure they are accurate, standardized and are being used to schedule patients mostly
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in turn according to clinical need. Use of the codes is mandatory for all surgeons in British
Columbia.
Electronic Booking: The current system is labour intensive, uses old technology such as paper and
fax, is mostly manual, and is fraught with opportunities for errors and mistakes. This may lead to
patients being scheduled out of turn. The Ministry of Health, with the advice of PSEC, is working
towards implementing a new electronic system to automatically synchronize wait list information
between the surgeons offices, the hospital system, and the Surgical Patient Registry. This would
allow accurate information about how long the patient has been waiting, the urgency of the
required procedure, the target time frame, and other details such as availability and readiness for
surgery. It will become the source of truth for scheduling patients for surgery and will have built in
decision support tools to assist in doing so most effectively. Introduction of this system will
provide transparent information for all stakeholders, will be the foundation for better wait list
management, will allow analysis to predict current and future demand, and will provide better
information for patients through the public surgical web site and other means. It will provide
information that allows patients to make choices about to whom and where they are referred.
5.
The Workers Compensation System
The primary basis on which the Plaintiffs allege that the Impugned Provisions violate s. 15 of the
Charter is the exemption in the Act for beneficiaries who are entitled to receive treatment pursuant
to the Workers Compensation Act (the WCA). The Court will hear evidence regarding the
provision of health care benefits provided to injured workers pursuant to that Act, and the history
of, and rationale for, the exemption.
a)
Andrew Montgomerie
The Court will hear evidence from Andrew Montgomerie, the Director of Financial Services and
Healthcare Programs at WorkSafeBC (the Workers Compensation Board). Mr. Montgomerie will
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testify that WorkSafeBC is responsible for administering the workers compensation system in
British Columbia, covering 218,000 employers and 2.19 million workers. The purposes of
WorkSafeBC are to promote occupational health and safety, to adjudicate and pay claims, and to
classify and assess employers. All benefits, and all associated administrative costs, under the WCA
are funded by employers.
Mr. Montgomerie will testify that WorkSafeBC directs, supervises, and controls the health care
that injured workers receive pursuant to the WCA. He will testify that although WorkSafeBC
generally pays physicians according to the MSP fee schedule, it will pay enhanced fees to both
physicians and facilities for specified diagnostic imaging, consultations, and surgeries. He will
testify that this expedited care benefits both workers and employers, in part because it will reduce
the wage loss benefits paid to injured workers. He will testify that the enhanced fees are payable to
physicians whether the procedure is provided in a public or a private facility. He will also testify
that the enhanced fees paid for expedited care make up approximately 5% of the amount spent on
health care by WorkSafeBC on an annual basis.
b)
Professor Jeremiah Hurley
The Court will also hear evidence from Professor Jeremiah Hurley relating to the workers
compensation system. Professor Hurley, whose credentials are set out below, will testify that the
exclusion of workplace injuries and illnesses that are subject to workers compensation is not
arbitrary. Rather, it derives from rationales central to the design of the workers compensation
system and is consistent with longstanding principles governing the relationship between the
workers compensation system and broader social policy. Those principles include:
a) The principle that employers should bear responsibility for the costs of workplace injuries
and illnesses. This principle would be lost if workplace injuries were folded into the
provincial public health care system.
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b) Workers compensation health benefits are part of the overall system of public financing
for health care. Participation is mandatory for both employers and employees, unlike
private insurance.
c) The workers compensation system has been treated as distinct from broader social policy
arrangements across a number of policy spheres health care is not an exception in this
regard.
E.
The Expert Evidence
The Defendants will be providing the Court with evidence from a number of expert witnesses.
Their evidence will establish the following reasons for not striking down the Impugned Provisions:
a. Physicians would leave the public system to work in the private system;
b. Physicians operating in a private system would not be available in the public system
for consultations;
c. Physicians operating in both systems would face perverse incentives;
d. The care available in the private system would be focussed on profitable areas;
e. The neediest members of society would not be able to access private insurance, or
the private system;
f. The costs of the public health care system would rise;
g. Overall health care costs would rise;
h. Overall demand for health care would increase;
i. Ensuring an adequate supply of physicians for the public health care system would
become more difficult;
j.
Making improvements to the performance of the public health care system would
become more difficult;
k. The standard of the care provided in for-profit private facilities may be lower than
that of the public system;
l.
Public support for the public system would weaken;

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m. A parallel private health care system is unethical; and

n. The prohibition on parallel private insurance is necessary to ensure that the public
health care system does not subsidize, and therefore encourage, a parasitic private
health care system accessible only to some.
1.
Dr. Cyril Frank
The evidence of Dr. Cyril Frank, referred to in part earlier, will also be relevant to these issues.
Dr. Franks evidence will be that most specialist surgeons do not operate on the majority of
patients that they see, and that most patients are treated through non-surgical means, particularly
in the case of elective surgery. Time spent by a specialist operating in a private clinic is time that he
or she is not available to treat non-surgical patients in the public system. There is no minimum
amount of time that a specialist surgeon is expected to spend in the public health care system in
Canada, and there has been an increasing migration of orthopaedic surgeons to more lucrative
third-party funded work such as WCB triage, consultation, medical-legal work, and surgery. This
type of non-public work clearly could potentially interfere with the provision of appropriate and
timely care to patients in the public system.
Dr. Franks evidence will be that private clinics, almost by definition, attract patients who are
easier and safer to treat than patients in the public system. It is likely that physicians would be
attracted to such work, as surgeons would likely choose lower risk, higher income options if given
that option. The actual impact of this fact on the public system would depend on the numbers of
physicians involved and the ability of the public system to regulate their behaviour. A truly
parallel private system would employ physicians with no connection to the public system. If
physicians are allowed to work in both the private and the public systems, there are many reasons
why those who could not afford access to the private system could experience poorer access to care.
Physicians working in both systems would have an incentive, and a tendency, to encourage patients
to seek treatment from them privately by maintaining long wait lists in the public system. There is
also evidence that physicians with an ownership interest in a private clinic over-prescribe certain
types of diagnostic tests and therapies, particularly those in which the risks are relatively low.
96
Dr. Franks evidence will be that there are enough, or nearly enough, human resources available in
the field of orthopaedic surgery to provide all of the care required in a timely fashion. The focus
should be on getting better value for money rather than simply spending more money, and better
management of resources can achieve significant improvements. Permitting a private health care
system not only creates clear inequities, but involves opportunity costs by potentially taking away
some important specialty resources from the public system. In addition, such a system has the
potential to divide and distract physicians and provide an active disincentive for them to try to
improve care in the public system. Active physician participation in improving the efficiency of the
current system, and helping to inform and match supply and demand, is crucial to any
improvements in waiting times in the public system.
2.
Dr. Eric Bohm
Dr. Eric Bohm, referred to earlier, reviewed and concurred with the above evidence of Dr. Frank.
3.
Professor Ivy Bourgeault
The Court will hear evidence from Professor Ivy Bourgeault, B.Sc. (Hons), M.Sc., Ph.D., who is a
tenured full professor in the Interdisciplinary School of Health Sciences and the Telfer School of
Management at the University of Ottawa. Professor Bourgeault has also been the Applied Health
Research Chair in Health Human Resource Policy at the Canadian Institutes of Health Research
(CIHR), the Canada Research Chair in Comparative Health Labour Policy and Practices at
McMaster University, and the Scientific Director of the Ontario Health Human Resource
Research Network. Professor Bourgeault sits on the Institute Advisory Board of the CIHR Institute
of Health Services and Policy Research, the Canadian Collaborative Centre for Physician
resources, and the International Health Workforce Collaborative (which involves health workforce
researchers and policy decision makers from Canada, the United States, the United Kingdom, and
Australia). She has regularly consulted for various provincial Ministries of Health, Health Canada,
97
the Pan American Health Organization, and the World Health Organization on issues related to
health human resources.
The evidence of Professor Bourgeault will be that allowing under- and unemployed physicians to
work partially or exclusively in a private health care system will not only do very little to improve
access to patients in the public system, it will exacerbate the already problematic distribution of
medical human resources which significantly disadvantages rural and remote communities across
Canada. In part, this is due to the fact that the physicians would require public infrastructure in
the form of operating facilities and staff (of which Canada does not have a surplus), which would
reduce the capacity to deliver services in the public system. In addition, enabling options for
private practice will worsen the serious problem of the disparity between overserviced urban areas
and underserviced rural and remote communities.
Professor Bourgeaults evidence will be that medical and health human resources must be seen as a
complex adaptive system. As such, the best approaches to effective health human resource
management require a systemic approach that does not involve knee-jerk reactions to one of the
symptoms of poor planning. Extreme caution must be taken in wading into a complex, adaptive
system with actions that may make some sense from a narrow perspective but will have profound
and lasting unintended consequences for the continued management of medical and health
human resources in Canada.
Professor Bourgeaults evidence will be that overall, the number of physicians in Canada has been
increasing, and those physicians are in general earning more money, but they have not been
providing a higher volume of services. In addition, they are disproportionately concentrated in
urban areas. All Canadian jurisdictions have an ongoing challenge in recruiting and retaining
family physicians to rural and remote communities.
Professor Bourgeaults evidence will also be that Canada does not have excess human resource
capacity to permit a private health care system to operate without an impact on the public system.
Even if there are some newly certified specialists who are under- and unemployed, we do not have
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the accompanying allied health professionals needed to complement their services, which is part of
the reason why they are underemployed in the first place. When physicians and other health
workers are drawn into the private sector, they are drawn away from the public sector; they tend to
work at lower volumes because they can maintain the same level of income by charging more; and
as a result, there is an overall decrease in the total volume of services, which will be particularly
constrained in the public sector. There is no data to support the assertion that permitting a private
system would increase access to care and relieve pressure on the public system. The major effect of
permitting such a system would be a shift of energy and resources (particularly tightly controlled
human resources) away from the public system and into the private system, causing deterioration
of access to the public system.
4.
Professor P.J. Devereaux
The Court will hear evidence from Dr. P.J. Devereaux, B.Sc., M.D., Ph.D. Dr. Devereaux is an
Associate Professor in the Department of Clinical Epidemiology and Biostatistics and in the
Department of Medicine (Division of Cardiology) at McMaster University. He is the Cardiology
Site Leader and Leader of the Perioperative Cardiovascular Prevention Program at the Henderson
Hospital, the Scientific Leader of the Population Health Research Institutes Perioperative
Medicine and Surgical Research Unit at McMaster University and Hamilton Health Sciences, a
Staff Cardiologist in the Department of Medicine at Hamilton Health Sciences, a Clinical
Epidemiologist in the Department of Clinical Epidemiology and Biostatistics at McMaster
University, and a recipient of the Heart & Stroke Foundation of Ontario Career Investigator
Award.
Dr. Devereaux has conducted numerous systematic reviews and meta-analyses. His evidence will be
that between 2002 and 2009 he was an author of four systematic literature reviews/meta-analyses
comparing the outcomes of patients treated at for-profit facilities with those treated at not-forprofit facilities. All four of the papers offer evidence that for-profit delivery of health care services
significantly increases the risk of death, results in lower quality care, and results in higher payments
for health care services when compared with not-for-profit delivery of health care services.
99
5.
Professor Jeremiah Hurley
The Court will hear evidence from Professor Jeremiah Hurley, B.A., M.A., Ph.D. Professor
Hurley is a Professor in the Department of Economics at McMaster University, Dean of the
Faculty of Social Sciences at McMaster, a Member of the Centre for Health Economics and Policy
Analysis at McMaster, an Associate Member of the Department of Clinical Epidemiology and
Biostatistics at McMaster, a Member of the Scientific Advisory Board of Health Quality Ontario, a
Member of the Community Mental Health and Addictions Funding Reform Working Group of
the Ontario Ministry of Health and Long-term Care, a Member of the National Health
Expenditures Database Expert Group of the Canadian Institute for Health Information, and a
Member of the Editorial Board of Health Economics, Policy, and Law. His previous positions include
Chair of the Department of Economics at McMaster, Associate Director of the Centre for Health
Economics and Policy Analysis at McMaster, Director of the Health Economics Program at the
Centre for Health Economics and Policy Analysis at McMaster, a Member of the CIHR Reforms
Advisory Working Group at the Canadian Institutes of Health Research, a Consultant for the
Health Council of Canada, and a Member of the Working Group on Waste in the Ontario Health
Care System for the Ontario Ministry of Health and Long-term Care. He has served as a referee for
over 30 journals, including the Canadian Journal of Economics, the Canadian Medical Association
Journal, Canadian Public Policy, Healthcare Policy, Health Economics, Health Policy, and the Journal of
Health Services and Policy Research.
Professor Hurleys evidence will address a number of topics connected to duplicative private
insurance and extra billing. His evidence will be that the evidence is plentiful and consistent that
the demand for duplicative private insurance is strongly positively correlated with socio-economic
status, and income and education in particular. Individuals with high income and education levels
are much more likely than others to purchase, and benefit from, duplicative private insurance. The
fundamental motive for purchasing duplicative private insurance is to gain access to something
associated with covered services that the public system does not offer. In most developed-country
settings, demand for duplicative private insurance is not strongly driven by perceived differences in
100
the quality of clinical care between the public and private sectors. It is, however, very strongly
influenced by lower quality, or performance, in the public system as manifested by long wait times.
The predominant reason individuals demand private duplicative insurance is to avoid long waits in
the public system.
Professor Hurley will testify that in the absence of regulations prohibiting such exclusions,
duplicative private insurance policies exclude coverage for pre-existing conditions. Such insurance
also, in general, excludes coverage for chronic conditions, focusing on short-term, acute
conditions. Where policies do cover chronic conditions and regulations do not require
community-rated premiums, policies priced using risk-rated premiums can be prohibitively
expensive for many chronically ill persons. Duplicative private insurance concentrates coverage
primarily (and in most places, exclusively) on a small set of acute-care services used in the
treatment of relatively uncomplicated conditions on an elective basis, much like the services
offered by Cambie and SRC. Such insurance, in general, excludes coverage of chronic conditions
and complicated, catastrophic care.
Professor Hurleys evidence will be that the evidence is consistent and strong that individuals with
private duplicative insurance have better access to care than those without such insurance.
Providers give priority access to individuals with private insurance because private insurers
normally pay higher rates than do public insurers. A logical consequence of the fact that the
demand for private duplicative health insurance is strongly positively correlated with income and
that those with private insurance have quicker, better access to care, is that those with higher
income, or ability-to-pay, enjoy better access to care in systems with duplicative private insurance.
The direct empirical evidence on this is limited, but consistent with preferential access on the basis
of ability to pay in systems with large duplicative insurance sectors.
Professor Hurley will testify that there is little direct evidence of the impact of parallel private
finance on wait times in the public system, and much of the existing evidence that can inform such
an assessment is contestable and subject to alternative interpretations. However, his assessment is
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that, on balance, for a highly developed health care system such as Canada's, the international
evidence indicates that:
The introduction of a parallel private system with duplicative private insurance would
not reduce wait times or increase access to services for those who rely on the public system
There is a high probability that the introduction of a parallel system with duplicative
private insurance, especially one that allows physician dual practice, would increase wait
times and reduce access for those who rely on the public system.
Professor Hurleys report states that the introduction of duplicative private insurance would lead
to an increase in the overall demand for health care and it will change the composition of those
who receive health care services. The introduction of parallel private finance with duplicative
private insurance will increase competition for inputs, including health human resources, used in
the production of health care services, exerting upward pressure on the prices of those inputs. This
can be expected to increase the real cost of service provision for the public sector. In the absence of
duplicative private insurance, only a small parallel private system for a limited set of services is
financially viable.
With respect to extra billing, Professor Hurley will testify that user charges and extra-billing have
the following effects:
They reduce utilization of health care services, and the reductions are larger for lowincome individuals than for high-income individuals.
They do not selectively reduce unnecessary utilization. They reduce the utilization of
both necessary and unnecessary services. The reductions are larger for low-income
individuals than for high-income individuals.
The reductions in utilization, and necessary utilization in particular, lead to adverse
health effects. These adverse events occur at higher rates among low-income and vulnerable
populations.
They often end up generating small net fiscal gains and can even cause costs to increase
(due to costs incurred treating adverse health events that could have been avoided).
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6.
Professor Eike-Henner Kluge
The Court will be provided with the expert report of Professor Eike-Henner Kluge, B.A., A.M.,
Ph.D. Professor Kluge is a professor and departmental ombudsman in the Department of
Philosophy at the University of Victoria. In 1989 Professor Kluge was asked by the Canadian
Medical Association to establish the Department of Ethics and Legal Affairs, and was its first
Director. He has been a consultant to Health Canada, various provincial Ministries of Health and
Health Regions, and the Office of the B.C. Police Complaint Commissioner, and has presented
invited testimony to various Royal Commissions and Parliamentary Committees. From 2004 to
2010 he was the Canadian Bioethics Societys delegate to the Canadian Council on Animal Care.
He is a member of WG4 (Security in Health Information Systems) of the International Medical
Informatics Association, was the lead author of its Code of Ethics (translated into nine languages),
and wrote the accompanying Handbook of Ethics for Health Informatics Professionals. In 2005
Professor Kluge received the Award for Research Excellence of the University of Victoria Faculty of
Humanities, and in 2007 he was awarded the Abbyann Lynch Medal in Bioethics by the Royal
Society of Canada. In 2014, he wrote a book entitled Ethics in Health Care: A Canadian Focus. His
professional interests include biomedical and information ethics.
Professor Kluges evidence will describe for the Court the complex setting within which physicians
provide their services. He will testify that physicians, who are in a very real sense the gatekeepers to
the health care system, are subject to a number of competing imperatives, all of which must be
understood in order to understand their role within the healthcare system and make fully
informed decisions about the operation of that system. Three of those imperatives are:
The Hippocratic model of medicine, in which the physicians primary focus must be each
individual patient to whom s/he is providing a service. This model requires the physician
to determine what is in each patients best interest and then do everything reasonably
within their power to advance that patients wellbeing.
The social service model of medicine, which requires physicians to assist in the advancement
of the overall wellbeing of society, in exchange for which society has granted the members
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of the profession a monopoly on the prescription of drugs, performance of surgeries, and

other aspects of medicine that non-physicians are prohibited from performing. This model
requires physicians to engage in the balancing of competing claims to healthcare resources.
The business model of medicine, pursuant to which physicians are entrepreneurs who are
engaged in the business of providing healthcare services, having undergone the sociallyrequired regimen of education and training. Pursuant to this model, the physician is
entitled to make his/her services available on the basis of ability to pay, and not the needs
of any given patient.
The imperatives governing the activities of physicians are in many ways mutually incompatible, and
none are adequate on their own to serve as an appropriate guide for the allocation of healthcare
resources. The key context for interpreting and understanding these competing and contradictory
imperatives is the fact that the profession of medicine is a service-provider monopoly. As such,
physicians as a profession have an obligation to ensure that their services are provided in as
equitable a manner as possible.
In considering issues of allocation of resources within the healthcare system, it is necessary to
distinguish between macro-allocation (allocation at the policy level involving groups of individuals)
and micro-allocation (allocation at the hands-on level of individual patients). Because healthcare
resources are of necessity finite, macro-allocation decisions cannot avoid the need for subsequent
micro-allocation decisions, no matter how carefully they are made.
Professor Kluge will testify that in his opinion, adopting a two-track approach to health care (i.e.,
permitting a private tier to provide superior services to those who can afford to pay for them) to
prevent or mitigate micro-allocation decisions necessarily worsens the overall problem for the
public system. Such an approach is therefore ethically objectionable.
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7.
Dr. Robert McMurtry
The Court will be provided with the expert report of Dr. Robert McMurtry, B.Sc., M.D., F.R.C.S.
(C), F.A.C.S. Dr. McMurtry is presently Emeritus Professor of Surgery of the University of
Western Ontario and an orthopedic surgeon at the Visiting Specialist Clinic, Prince Edward
Family Health Team. During his residency in orthopedic surgery, he spent 2 years in Africa, first in
a mission hospital in Sekhukhuniland (South Africa) and then with the Canadian International
Development Agency in Uganda. Following his residency, he did a fellowship in hand surgery at
the University of Iowa. He started his practice at the former Sunnybrook Hospital (now
Sunnybrook and Womens Health Centre) in 1975, where he founded and directed Canadas first
Trauma Unit and the multi-disciplinary Hand Unit. In 1987, he was appointed Professor and
Chair of Surgery at the University of Calgary and Chief of Surgery at Foothills Hospital. In 1992,
he was appointed Dean of Medicine at the University of Western Ontario and subsequently Dean
of Medicine and Dentistry, a post he held until 1999. In 1999, he became the first Cameron
Visiting Chair at Health Canada, with responsibility for providing policy advice to the Deputy
Minister and Minister of Health for Canada. He was the founding Assistant Deputy Minister of
the Population and Public Health Branch of Health Canada (now the Public Health Agency of
Canada). He was appointed to the Romanow Commission in 2002 as a Special Advisor to
Commissioner Romanow. He was also Special Advisor to the Deputy Minister of Nunavut from
December 2002 to August 2003 for the purpose of reviewing the health care system of the
Territory. In June of 2003, he received the Presidential Award of Excellence from the Canadian
Orthopedic Association. In October of 2003, he was appointed to the Transition Advisory Board
of the incoming Provincial Government of Ontario. He was appointed to the Health Council of
Canada from 2003 to 2008, and chaired the Wait Times and Accessibility Work Group from
January 2004 to January 2006. He was named a member of The Order of Canada in 2011. His
present work involves an active clinical practice as well as teaching and research. He also maintains
active memberships in the Board of the Canadian Index of Wellbeing Project Management Team,
as well as the International Advisory Board of the Alberta Bone and Joint Health Institute. He is a
founding member of the Evidence Network, an initiative funded by the Canadian Institute for
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Health Research to provide non-partisan, unbiased research evidence regarding health care in
Canada.
Dr. McMurtrys evidence will be that not all waits are or should be equal. For example, studies
demonstrate that Canadians generally have rapid access to emergency and essential care, whereas
wait times for joint replacement could use improvement. Many issues contribute to wait times,
which means that improving wait times is not just about pouring money into the system. Many
long wait times are due to a failure to use appropriate management tools, rather than insufficient
resources. For instance, moving from having every surgeon manage their own list to a single
organized list across surgeons is an important first step in reducing wait times. Ensuring
appropriateness of care (e.g. is this MRI necessary?) and prioritizing patients according to their
relative urgency is another. As well, several approaches exist for minimizing wait times, some of
which are already working successfully across Canada. For example, the Ontario Wait Times
Strategy has had some success in reducing wait times for priority areas including cancer surgery,
cataract surgery, hip and knee replacement, and diagnostic imaging. This strategy has focused on
reducing waits between a specialists treatment recommendation and a medical procedure, such as
an operation. The irony of the shortfall in meeting wait time guidelines is that the issue is
remediable with refocused policy priorities, as has been established by the work of the Alberta
Bone and Joint Health Institute. Adoption of best practices is something the public system could
and should do better.
Dr. McMurtrys evidence will be that there is often a mismatch between the expertise provided and
the expertise required in virtually all settings, such as emergency departments, out-patient clinics
and private offices. This problem can be addressed through such approaches as screening clinics
utilizing alternate (substitute) providers such as physiotherapists, family physicians or nurse
practitioners, which are effective in pre-screening and providing non-surgical management for
people and/or patients referred for possible major joint arthroplasty.
Dr. McMurtry will testify that, based on his experience in Ontario, third party insurers such as
workers compensation boards or private insurance companies typically pay 310 times more than
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provincial fee schedules for orthopedic consultation and, thereby, provide an incentive for work
outside the public system. Private for-profit clinics typically charge more for the same services than
is paid by the public system. Such clinics also use other practices such as bundling non-covered
administrative fees with insured services. There is an incentive, and a tendency, for physicians who
practise in both the public and private health-care systems to encourage their patients to seek care
from them privately by maintaining long wait lists, failing to provide patients with accurate
information regarding wait times for treatment in the public system, and withholding from
beneficiaries information regarding options available to them in the public system. There is also an
incentive, and a tendency, for physicians who practise in both the public and private health care
systems, and who have an ownership interest in a private clinic, to refer patients to the private
clinic for care and treatment that is not appropriate. The core problem is the conflict between the
for-profit goals and the need to observe the tenets of the Canada Health Act, especially the
requirement for accessibility.
Dr. McMurtry will testify that a fundamental difference between private for-profit and publicly
funded health care is the belief that access to necessary health care should be based on need not
ability to pay. The other core difference is that publicly funded health care uses risk pooling
instead of risk adjustment. Virtually all claims by the private for-profit sector regarding higher
efficiency are based on risk adjusted high volume cases. Nonetheless, there is good evidence that
private for-profit care is not as safe, with demonstrated higher incidences of mortality, among
other compromised outcomes. Privatization of health care results in a large net loss to society in
terms of higher costs and lower quality, but some stand to gain. Privatization creates opportunities
for corporations, and also redistributes income among health workers. In effect, privatization takes
money from the pockets of low-wage, mostly female health workers and gives it to investors and
highly paid managers. Behind false claims of efficiency lies a much uglier truth. Investor-owned
care embodies a new value system that severs the community roots and Samaritan traditions of
hospitals, makes physicians and nurses into instruments of investors, and views patients as
commodities.
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It is Dr. McMurtrys opinion that Medicare is much more than a single-payer method of insurance.
It is also just and equitable, and it contributes in a fundamental way to social inclusion. It is
universal: every citizen is covered. It is characterized by inclusive risk pooling, not selective risk
adjustment. The latter is an essential feature of private, for-profit insurance coverage and by its
nature leaves the most vulnerable to fend for themselves. There are four guiding principles, one of
which is that the profit motive cannot have a role in the decision to provide or not to provide care.
8.
Professor Jason Sutherland
The Court will be provided with three reports from Professor Jason Sutherland, B.A., M.Sc.,
Ph.D. Professor Sutherland is an Associate Professor in the Centre for Health Services and Policy
Research in the School of Population and Public Health at the University of British Columbia. He
is also a Scholar of the Michael Smith Foundation for Health Research, an affiliated investigator of
the Vancouver Coastal Health Research Institute, and a Commonwealth Fund Harkness Fellow in
Health Policy and Clinical Practice. His prior academic experience includes having been an
Assistant Professor in The Dartmouth Institute for Health Policy and Clinical Practice at
Dartmouth College, New Hampshire. His program of research includes studying the effects of
different financial incentives for health care and their impacts on patient's outcomes. I am
currently leading a large prospective study on the effects of wait times on patient's outcomes in
B.C., funded by the Canadian Institutes for Health Research (CIHR). He conducts collaborative
research with the Office of the Assistant Secretary for Policy Evaluation in the U.S. Department of
Health and Human Services, the National Institute of Mental Health in Bethesda, Maryland, and
the Agency for Healthcare Research and Quality in Rockville, Maryland. He has authored
numerous peer-reviewed publications in premier health services research and health policy
journals. Professor Sutherland has provided policy research for provincial ministries of health in
British Columbia, Alberta, Ontario and Quebec. He has been a peer reviewer of research grants
for Veteran's Affairs (Washington, D.C.), the National Institutes of Health, and CIHR, and has
been an Associate Editor of the journal Health Policy. He has been the Primary Investigator on
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numerous peer-reviewed research projects funded by CIHR, some of which focused on patientreported outcomes, waits for surgery, and funding policy for health services.
Professor Sutherlands first report, and his update to that report, respond to several reports
tendered by the Plaintiffs that deal with the effects on patients of waiting for surgery. His reports
state that there are a number of studies that have examined the relationship between wait time and
changes in health while waiting, and the relationship between wait time and outcomes. There is
significant heterogeneity among the studies, which limits the ability to compare the effect of wait
times. Only for cataract surgery was there strong evidence of a deleterious effect of the wait time on
patients health during the pre-operative period. Even these findings come with qualifications,
however: while there is a loss of visual acuity during the waiting period for cataract surgery, the
impact on patients other domains of health during the waiting period, such as overall health or
pain interference, was unclear. For the balance of surgeries studied, the evidence of a decline in
health during the pre-operative waiting period was non-existent (CABG), low (hip or knee
replacement) or very low (back surgery). Given the nature of CABG and the non-negligible risk of
death during waiting, it is unlikely that randomized clinical trials (RCTs) will ever be used to
evaluate the impact of waiting; however, for conditions that are largely driven by patient
preferences, such as elective back surgery and hip or knee replacement, and where RCTs are
eminently feasible, there is a need for high quality evidence to test for the existence of a decline in
health during the pre-operative period. The quality of evidence relating wait for surgery and
outcomes was consistently low.
Professor Sutherland will also testify with respect to a multi-year prospective study currently
collecting and reporting on the longitudinal health of patients waiting for elective surgery in
Vancouver Coastal Health (VCH) authority, on which he is the Principal Investigator. In his
updated report, he states that the results of this study to date show, for a large prospective
longitudinal cohort of elective surgery patients, using validated instruments in a number of
domains, and for the four surgeries for which sample sizes were the largest, that there was no
association between the duration of the wait for surgery and either (a) a decline in health during
the wait, or (b) post-surgical outcomes. While Professor Sutherland identifies a number of
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qualifications to the ability to generalize more widely from the results of this research to date, these
results do provide very recent and authoritative evidence relevant to the issue of the effects of
waiting for surgery on patients health.
Professor Sutherlands third report investigated differences in wait times for day surgeries as
between surgeons who operated only in publicly funded facilities and surgeons who operated both
in publicly funded facilities and private facilities. 24 different types of surgery were analyzed.
Surgeons who operated in both publicly funded and private facilities were found to have had
longer public wait times for 15 types of surgeries. For three types of surgery, the differences in wait
times between surgeons practice type was not statistically significant, and four types of surgery had
longer wait times among surgeons that practiced only in public facilities. For two types, the results
were mixed: while practice type was statistically significantly associated with a difference in wait
time, the impact was different at short and long wait times.
9.
Dr. Jeffrey Turnbull
The Court will be provided with the expert report of Dr. Jeffrey Turnbull, B.Sc. (Hons.), M.D.,
Ph.D., M.E.D., F.R.C.P. (C). Dr. Turnbull is the Chief of Staff at the Ottawa Hospital, a full
Professor in the Department of Medicine at the University of Ottawa, the Chief of Clinical
Quality for Health Quality Ontario, and the founder and Medical Director of the Inner City
Health Project in Ottawa. He is a past President of the Canadian Medical Association, the College
of Physicians and Surgeons of Ontario, and the Medical Council of Canada, and was formerly the
Chair of the Department of Medicine at the University of Ottawa and the Senior Medical Officer
for Correction Services Canada. He is an external reviewer for the Canadian Medical Association
Journal, the Annals of the RCPSC, Academic Medicine, the Medical Research Council of Canada, and
the Journal of General Internal Medicine. Dr. Turnbull received the Order of Canada in 2007 and the
Order of Ontario in 2015, and is the recipient of numerous national and international grants and
awards. As well, he has been involved in education and health services initiatives to enhance
community and institutional capacity and sustainable development in Bangladesh, Africa and the
Balkans.
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Dr. Turnbulls report states that if patients are allowed to purchase care privately, healthcare
providers may gravitate to the higher incomes of the private system. Where this occurs, the public
system will either suffer from having fewer health care professionals or be required to increase
remuneration to compete. Higher costs and/or lower quality and longer wait times are a likely
consequence. This problem is likely to be more severe when physicians are able to work in both
systems; such physicians may be in an ethical conflict and may consciously or subconsciously
encourage patients to seek care in the private system where revenues are greater.
Dr. Turnbull also states that when clinics can charge patients fees, or where private health
insurance is permitted, the result is access to care based on wealth rather than need, which is
contrary to the primary purpose of the Canada Health Act.
Dr. Turnbulls report notes that several highquality systematic reviews have demonstrated that
nonprofit facilities provide better quality care than forprofits in several sectors. In addition, for
profit facilities, especially those that are owned by physicians, may be more likely to order
unnecessary tests, which can cause harm for a variety of reasons: increased exposure to cancer
causing ionizing radiation, increased cost, and the many consequences of false positive tests,
including anxiety, biopsies and even unnecessary surgery.
In addition, Dr. Turnbull states that complications that arise in private clinics are frequently
referred to the public health care system, which reduces access for those who rely exclusively on the
public system. Wider access to privately funded care is likely to divert public resources away from
those who rely exclusively on the public system. While in theory this problem could be addressed
by requiring private clinic operators to contribute to a public fund, developing such a mechanism
would increase regulatory complexity and divert intellectual resources away from improving the
public health care system. It would also likely increase the total cost i.e., both public and private
of health care in British Columbia. Other regulatory costs that would be required to address the
existence of a parallel private health care system would also drive up the total cost of the health
care system. Since the burden of both public and private spending on health care is ultimately
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borne by the citizens of British Columbia, the net effect of greater spending on health care is to
result in less resources being available for other needs and desires.
F.
The International Evidence
The Defendants will provide the Court with extensive evidence, from expert witnesses and
elsewhere, that will address the Plaintiffs contention that the experience of other jurisdictions
demonstrates that the Impugned Provisions are not necessary to accomplish the Acts purpose.
1.
Professor Theodore Marmor
The Court will hear evidence from Professor Theodore Marmor, B.A., Ph.D. Professor Marmor is
Professor Emeritus at Yale University, Visiting Professor in the International Health Program at
the School of Management at McGill University, Director of the Medicare Rights Center, Fellow
of the Institute of Medicine at the National Academy of Sciences, Fellow of the National Academy
of Social Insurance, Fellow of the British Academy, Member of the British Academic Policy Centre
Advisory Group, Chairman of the Scientific Advisory Board of the Institut Pasteur/CNAM School
of Public Health, member of the Advisory Board of the Canadian Journal of Healthcare Policy,
member of the Advisory Board of Canadian-American Public Policy, member of the Editorial Board
of the Journal of Comparative Policy Analysis, member of the Editorial Board of the International
Journal of Health Planning and Management, member of the Board of the Journal of Health Politics,
Policy and Law. Professor Marmor has been an academic commentator on international medical
care systems for over 50 years and he has been investigating Canadian medical care policy and
operation for over 40 years. He completed his B.A. at Harvard in 1960 and his PhD at Harvard in
1966; between his undergraduate and doctoral work at Harvard, he held a fellowship at Wadham
College, Oxford, where he followed the curriculum in politics, economics, and philosophy.
During the last 50 years, Professor Marmor has held tenured professorships at the Universities of
Wisconsin, Minnesota, Chicago, and Yale. He joined the Yale faculty as a tenured professor in
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1979, and was a Professor of Political Science in the graduate school and a Professor of Public
Policy in the School of Management there. Professor Marmor is presently a Professor Emeritus at
Yale University, but he continues to publish on comparative health policy and periodically teach.
In 1975 Professor Marmor published a book on the origins, character, and experience of Canadas
distinctive form of universal health insurance. His later body of writing dealt with the promise and
pitfalls generally of comparative policy research in health care, and in particular, it has emphasized
the relevance to North America of experience abroad and the converse. Professor Marmor has
addressed in some detail the comparative evidence on physician payment methods, explicit
planning models, and the sources of medical inflation. He has also attempted to assess Canadas
overall performance in universal health insurance in a number of papers.
Professor Marmor has written about welfare state politics and policy, using comparative analysis
throughout, and has published a number of articles and books about both the methodology of
comparative policy analysis and the risks and benefits of efforts to import policy lessons across
borders. He has also published on the conventions that, in his opinion, should be respected in
cross-national policy analysis.
Professor Marmor is a fellow emeritus of the Canadian Institute for Advanced Research (CIAR).
He has served as a member of the Scientific Advisory Committee of the McMaster University
Program in Health Evidence Application and Linkage Network, and has been an evaluator for
various research councils. He was a member of the steering committee of the annual Four-Country
Conference on Health Reforms and Health Care Policies in the United States, Canada, Germany
and the Netherlands, which was a 50 person expert group that met from 1994 to 2003 to discuss
issues in health policy.
In addition to his academic work, Professor Marmor has been actively involved in government
deliberations over health insurance. He was a personal assistant to the then Under Secretary of
Health, Education and Welfare Wilbur J. Cohen during the first summer of operation of the
American Medicare program in 1966. He has consulted with a variety of agencies and has served
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on a number of public advisory groups. He also testified about comparative policy developments
before the special Canadian commission on the future of Medicare. He is a Member of the US
Institute of Medicine, the National Academy of Social Insurance, and a Corresponding Member of
the British Academy.
Professor Marmors evidence will be that comparative studies of how other nations operate
medical finance, delivery, and regulation must be cautious, well researched, and principled. He is
critical of what he terms a small industry of cross-national commentary that purports to provide
rankings of performance and snapshots of how medical care is financed, delivered, and regulated
abroad. His opinion is that this industry lacks intellectual rigour, and has not established a clear
set of directions on how to do comparative policy analysis in health care. His evidence will be
similarly critical of the Plaintiffs allegations regarding cross-national analysis.
Professor Marmors evidence will be that parallel private health care systems are a threat to needbased access to health care. Countries that have hybrid public and private health care systems
regulate private financing in order to ameliorate this threat. By comparison, because it does not
have a hybrid public and private system, Canada has been able to allow physicians greater
autonomy and has had to regulate them less. Canadas administrative costs are among the lowest
of the OECD countries, and if extra billing were permitted here, then Professor Marmors opinion
is that it is highly likely that Canada would have to invest in costly and controversial regulation of
physicians hospital behaviour.
Professor Marmors evidence will be that opening up Canadian hospital and medical care to
private financing and provision can have inequitable consequences. If there is not excess capacity
in the current system that is to say, if there are not underused health facilities and
underemployed or unemployed health professionals then allowing private care would result in
resources shifting from the public system to privately funded health care. Furthermore, unless
private provision of health care can be organized separately outside of the public health care
system, then private health care will be subsidized by public investment in research, capital
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improvements, and well-equipped modern hospitals. The effect would be that those with the
greatest resources could (a) receive a public subsidy and (b) buy their way to the head of the queue.
Professor Marmors evidence will be that allowing extra-billing will create perverse incentives for
physicians. For example, allowing a parallel private tier means that physicians would have an
incentive to allow wait times to grow in the public system in order to fuel demand for their private
clinics. Additionally, allowing a parallel private tier would put physicians in a direct conflict of
interest with the goal of ensuring a high-quality and universal public health care system because the
private physicians would select to treat the healthier and wealthier patients, leaving the public
sector with an increasing load of sicker patients. Physicians that are no longer involved with the
public system will also have less of a financial and personal stake in the effective operation of the
public system, and support for the public system may therefore erode.
Professor Marmors evidence will be that allowing a parallel private insurance system would not be
a cost-reducing innovation, rather it would be a cost-shifting one, and overall Canadian health
expenditures would likely be inflated.
It is Professor Marmors opinion that the assumption that wait times will go down without
consequences to the Canadian system should extra billing be permitted is simply wrong as is the
assumption that European hybrid systems have been able to reduce wait times simply by means
of permitting parallel private and public systems.
2.
Professor Gregory Marchildon
Professor Marchildons second report responds to an expert report from ke Blomqvist that
compares Canadas mix of public and private spending on health care with that of a number of
other OECD countries. Professor Marchildons evidence will be that there is a very different
public-private mix in the health systems of all higher-income countries. The mix is invariably
unique to any one country and the result of a long history in which a complex variety of political,
sociological, institutional and other factors have produced a different mix. Every health system has
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evolved in a way that produces a unique public-private mix in terms of financing and delivery as
well as administration and regulation. The real question is whether the institutional and
professional arrangements are working to produce the desired objectives and outcomes as
periodically decided upon in the democratic process and then implemented through changes in
public policy and associated legal and regulatory regimes. There is no magic in any public-private
split in aggregate, or within particular health sectors, that alone will produce good or poor
outcomes.
Professor Marchildon will testify that it is useful analytically to separate the public-private mix into
three separate components: health spending; health service delivery; and health system
administration, including the governmental modes of financing and regulating. In terms of health
spending, Canada, with its roughly 70:30 ratio of public to private health expenditures, actually
has a lower public-private ratio compared to the majority of high-income OECD countries. When
compared to the overall OECD average as done in the Blomqvist report, the Canadian publicprivate ratio comes closer to the OECD average, but this can be achieved only by including
relatively lower-income countries such as Mexico and Poland with considerably higher proportions
of private funding. The relatively lower government expenditure per capita for Canada (and for
Australia) is a product of significant private expenditure on health care. The Netherlands and
Switzerland, countries in which public coverage is based on private health insurance, are among
the highest government spenders on health in the OECD. Since the introduction of Medicare in
Canada, the growth of non-Medicare health expenditures has been more rapid than Medicare
spending, indicating both the growing importance of services beyond hospitals and physicians and
the lack of effective cost control for those services outside the single-payer funding mechanism.
The Blomqvist report argues that Canadas public spending is overly weighted to Medicare whereas
in OECD countries public-private financing mix is typically more balanced, with government
plans paying for a larger share of drugs, dental and long-term care, but with more private financing
for hospital and physician services. Professor Marchildon will testify that this is a misleading
representation of the Canadian health system for two reasons. First, there is already significant
public investment in health sectors beyond Medicare, especially in continuing care (long-term care
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and home care) and prescription drug coverage, and provincial and territorial spending in these
areas has grown more rapidly than Medicare expenditures since 1975. Second, Canada is not an
outlier among OECD countries in offering full coverage for core hospital, diagnostic and physician
services so that they are free for patients at the point of access.
Professor Marchildon also addresses the assertion in the Blomqvist report that Canada is more
weighted to government ownership in health delivery compared to the higher-income OECD
countries. He will testify that there has been a long-term shift from private non-profit and local
government ownership to more provincial ownership of hospitals through the introduction of
regionalization in some provinces but governments have purposely delegated this managerial
function to administrative bodies at arms-length (to varying degrees) from themselves. At the same
time, there has been a shift to more private ownership of the facilities that conduct laboratory and
diagnostic testing to the point that the vast majority are owned and operated by private
corporations. The one constant has been the private and independent position of physicians.
Universal medical care coverage was established in Canada as a public payment but private practice
system in the 1960s, and it has remained the same ever since. Doctors are independent
contractors, and their position has changed little since Medicare was introduced despite major
changes in the structure of ownership at least in some provinces for hospitals since universal
hospital coverage was made a national program in the late 1950s. At the time, the majority of
hospitals in Canada were private not-for-profit institutions governed by independent boards. Since
that time a large number of hospitals have come to be owned by regional health authorities
(RHAs). Although operating at arms-length from government, often with a not-for-profit corporate
structure, RHAs are in fact public rather than private organizations. Despite this evolution, the
vast majority of physicians working in these public facilities remain private professionals. Even
more problematic is the fact while RHAs are responsible for ensuring the coordination and
continuity of health care and therefore in charge of organizing services, the provincial and
territorial ministries of health remain responsible for paying the physicians who deliver those
services, creating major challenges for the alignment of incentives. Indeed, the simple fact that the
remuneration physicians receive for diagnosing and treating patients in RHA or private hospital
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facilities comes from provincial ministries of health means that they remain highly independent of
the organizations in which they conduct at least some of their work. While this private
arrangement for hospital-based physicians is not unique to Canada, it is a rare arrangement. In the
United Kingdom, for example, almost all hospital-based consultants (i.e. specialists) are salaried
and work for the government-owned hospitals, called NHS trusts. In Switzerland, the majority of
hospital-based physicians are salaried employees.
There have been no major comparative studies of the governance and payment of specialists in
higher-income OECD countries, but one recent study of six European countries found
pronounced differences among the countries in terms of the percent of specialists exclusively selfemployed, the percent exclusively salaried and the percent working as both contractors and
employees.The spectrum ranged from 72% exclusively self-employed (Belgium) to 82% exclusively
salaried (Denmark) as of 2010. In England, where most specialists became salaried employees of a
national hospital system that was created with the introduction of the National Health Service
(NHS) in 1948, only 4% of specialists are exclusively self-employed. While there is no definitive
study on this subject in Canada, the limited evidence indicates that the vast majority of specialists
are exclusively self-employed, well above the 72% mark in Belgium. This means that Canadian
specialists are likely at the very extreme end of the spectrum in terms of managing their affairs as
private businesses. The one parallel may be Australia, where the majority of specialists are also selfemployed, but it is important to note that independent specialists in Australia and most European
countries contract with the hospital organizations with which they work, thereby establishing some
direct accountability that is missing in the Canadian case. These are critical differences among the
various health systems.
In Canada the vast majority of specialists receive remuneration directly from provincial ministries
through agreed-upon fee schedules or alternative payment contracts and have little direct
accountability relationship with the hospitals or RHAs within which they provide inpatient and
outpatient care. In fact, the way in which federal and provincial governments have defined
medical care has meant that primary care and specialist doctors have secured a virtual monopoly
over public sector payments for medical services and associated tests. This is not at all the
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government monopoly described by the Busby report, but in fact a duopoly between the provincial
governments as the sole payers of Medicare and doctors as privileged provider of Medicare services
in Canada. This duopoly has resulted in long-standing compromises between provincial policymakers and organized medicine on the rules of the game. On the one hand, in most provinces,
physicians have the right to opt out of Medicare; the quid pro quo is that opted-out physicians must
truly opt out and must rely exclusively on non-Medicare patients who are prepared to pay directly,
or those patients referred for treatment through a separate social insurance stream of workers
compensation board (WCB) clients. At the same time, it is not the provincial government but the
doctors themselves, through their own provincial self-regulatory organizations (the various
provincial colleges of physicians and surgeons), who administer this arrangement by providing
provincial Medicare billing numbers to those doctors working within the Medicare payment
system and denying them to opted-out doctors.
Professor Marchildon will testify that, holding everything else constant, any judicial decision
altering these long-standing arrangements by creating new forms of access to private services for
those who have the ability to pay or to access private insurance, is likely to have two results in the
short run. The first likely consequence would be to reduce access to Medicare services for those
less able to pay or to access private insurance (due to risk factors such as age or pre-existing
conditions) by providing an incentive to physicians to focus on privately funded patients, a
phenomenon common in countries such as Australia that permit dual practice. The second
probable result would be to increase physician remuneration without necessarily increasing the
volume of physician services received by Canadians through Medicare. Although a single-payer
mechanism does allow provincial and territorial governments to control Medicare spending in
general, the ability to control physician spending in particular has been spottier and more cyclical.
Physician average net income, whether measured in inflation-adjusted dollars or relative to all
Canadian workers, has grown substantially since the 1950s. While average physician income was
less than 2.5 times the average income of Canadian workers in the early 1950s, by 2010 it had
climbed to nearly 4.5 times the average income of Canadians. Based on history and recent trends,
changing current laws and regulations to allow physicians to have dual (public-private) practices or
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to extra-bill seems likely to increase physician remuneration without necessarily increasing

utilization and improving access to physician services for most Canadians.
In terms of the administration and regulation of the health care system, Professor Marchildons
evidence will be that there is no simple quantitative way to compare Canada with other highincome OECD countries. As well, there is no simple, correct solution. Although the Blomqvist
report argues that removing restrictions on private insurance and dual practice would produce
greater competition that would encourage the making of decisions that would create efficient
management, there is no evidence that duplicate private insurance would generate such
efficiencies. Indeed, there is considerable evidence that the administrative overhead from such
systems is considerably higher than single-payer financing systems. At the same time, mixed
insurance systems almost inevitably generate different tiers of service and access. The erroneous
assumption that competition among health insurers will generate efficiencies ignores the market
failures associated with private health insurance as well as the equity concerns that Canadians and
their governments wanted addressed when Medicare was first introduced.
Professor Marchildon will testify that the defining characteristic of Canadian Medicare is arguably
the commitment to universal access of all citizens to a defined set of services on uniform terms and
conditions. While Canada may have a stronger version of universality than that adopted in some
OECD countries, it must surely be the legitimate and democratic right of any polity to make such
a public policy decision. In no country has it been easy to implement universality due to the
natural self-interest of those providing the services, in particular physicians as the most powerful
providers and stakeholders in health systems. As a result, the overwhelming trend has been
towards great state involvement in an effort to achieve greater equity of access and, in recent years,
to deepen integration and improve performance. If this is not directly through regulation, it is
achieved through state contracts with physicians, sometimes accompanied by even greater
monitoring and enforcement than what Canadian physicians have experienced in a regulated
environment. Indeed, no high-income OECD country has moved to deregulate health care.
Instead, as can be seen in the United Kingdom and the Netherlands, they have tried to improve
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performance by implementing reforms that have required even more regulation and state
monitoring.
3.
Professor Charles Normand
The Court will hear evidence from Professor Charles Normand, B.A., M.A., Ph.D. Professor
Normand is the Edward Kennedy Professor of Health Policy and Management at the University of
Dublin, Trinity College, in Ireland. He was formerly a Professor of Health Economics at the
London School of Hygiene & Tropical Medicine, and has taught at the universities in Belfast,
York and Stirling. He has worked in hospital management, including a period as chairman of the
board at Central Middlesex Hospital in England, and is currently on the boards of St. Jamess
Hospital and Trinity Health Ireland. His BA and Ph.D. are in economics, and he is a Fellow of the
Faculty of Public Health (UK). Professor Normands research interests include health care finance,
organization and delivery of health care, health care human resources, and the effects of
population aging on health care systems. He has carried out research and policy work in a wide
range of countries, including the UK, Ireland, Canada, the USA, Australia, New Zealand, Spain,
Hungary, Slovenia, Czech Republic, Slovak Republic, Romania, Bulgaria, Azerbaijan, Kyrgyzstan,
Bangladesh, Singapore, countries in Central and Eastern Europe and the former Soviet Union,
South Africa, Malawi, Tanzania, and Ghana. He has published widely on health economics and
financing, and is co-author of a bestselling textbook on health economics and the World Health
Organization Guidebook on Social Health Insurance. Professor Normand is a former President of the
Association of Schools of Public Health in the European Region and chairs the steering committee
of the WHO European Observatory on Health Systems and Policy; he is also a founder member of
the International Health Economics Association. He has spent two spells of sabbatical leave in
Canada, and has been a regular reviewer for the Canadian Institutes of Health Research.
Professor Normands report describes the structure of the Irish health care system, which features a
parallel private health care system funded, in part, through duplicative private insurance (PMI),
and describes possible lessons for Canada of that system. He states that the system of funding
results in those with PMI using more health care resources than would be predicted based on need
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alone. He also says that because the Irish government provides tax relief for PMI premiums, there
is a subsidy from generally poorer people to generally richer ones. He says that it is clear on the
evidence that the existence of a system of parallel funding reduces the equity in the Irish health
care system, and is associated with some additional delay in access to care for people on low and
middle incomes.
The report notes that some providers of private care argue that the existence of a private system
can lead to efficiencies and innovation that lead to lower costs. The evidence from Ireland,
however, shows that not only is private care more costly than care in the public system, it is also
less efficient and leads to less appropriate care. The report notes that this corresponds with the
financial incentives provided by the private system.
Professor Normands report describes the complex rules and constraints on parallel private
practice in Ireland, and states that there is cheating observed, demonstrating the difficulty in
enforcing complex rules on public and private practice in the face of strong incentives to breach
them. The key point, the report notes, is that dual practice generates many unexpected and
unplanned incentives, some of which are associated with unexpected and unplanned patterns of
service. Transaction costs are also increased due to the larger number of transactions in the mixed
economy. A further concern is the loss of skilled personnel to the better-paying private system,
especially in highly marketable specialties such as surgery, anaesthetics, and specialized medical
services.
4.
Professor Adam Oliver
The Court will be provided with two reports from Professor Adam Oliver, B.A., M.Sc., Ph.D.
Professor Oliver is a Reader at the London School of Economics, Visiting Professor at Columbia
University, Co-Director of the LSE-Columbia Health Policy Group, Co-Chief Editor and
Founding Co-Editor of Health Economics, Policy and Law, and Founding Co-Editor in Chief of
Behavioural Public Policy. Among many other accomplishments, he has held positions as: Associate
of the Centre for Philosophy, Justice and Health at University College in London; Member of the
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Canadian Institutes of Health Researchs Financing, Sustainability, and Governance Working

Group; Co-ordinator and Co-founder of the European Health Policy Group; Co-ordinator and
Founder of the Anglo-American Health Policy Network; and Member of the European Conference
Committee within the International Health Economics Association.
Professor Olivers report describes the parallel private health care system in the United Kingdom,
and describes lessons that may be drawn from its experience for Canada and British Columbia.
The report notes that the UK has had a parallel private system operating since the establishment of
the National Health Service (NHS) in 1948. In the 1980s, despite the longstanding existence of
the parallel private tier, NHS waiting times performance was poor, with some patients having to
wait for more than two years for elective treatment. Waiting times have improved over the last two
decades, particularly in the first few years of this century. Waiting time targets have been a tool of
government policy, along with incentives and penalties, an approach nicknamed targets and
terror. In addition, annual public health care expenditure in the UK increased from 1997
through to 2011, going from 44 billion to 118.3 billion. Introduction of a policy of allowing
patient choice between (publicly funded) providers in 2006 also likely played a small part in the
decline in wait times. Professor Olivers reports say that no respectable scholar would attribute the
fall in NHS waiting times to any aspect of the private health care insurance market, except that
some of the extra capacity that was purchased (with public funds) was provided by hospitals that
had previously relied on private insurance for their income.
Professor Olivers report states that very few physicians in the UK work exclusively in the private
sector. Rather, most private services are provided by hospital physicians, who are essentially
employees of the NHS, pursuant to the terms of their statutorily-imposed contracts. Prior to 2003,
there were strong incentives for hospital physicians to prioritise privately covered patients in
financially lucrative NHS pay beds, and there was evidence showing that some physicians acted
upon these incentives excessively. In 2003 the government introduced a new consultant contract
that requires hospital physicians to commit themselves to a minimum of 40 hours per week to the
public system, and includes numerous specifications to ensure that private activities do not
interfere with the physicians commitment to NHS patients while working in the public system.
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Professor Oliver states that the evidence suggests that the purchase of private health care insurance
is significantly higher within some socioeconomic and demographic groups than others:
specifically, income, socioeconomic class, and better health are significantly correlated with the
demand for private health care insurance. The relatively wealthy and healthy, and those in
professional, managerial and technical occupations, are more likely to purchase private health
insurance than the relatively poor (in money and health terms) and those in unskilled jobs. If
privately financed health care were a larger and broadly competing service to the NHS, there
would be significant potential implications for social justice from this arrangement, not only in
terms of pure equity of access, but also in terms of declining support for the public system among
better off members of society, whose taxes the NHS relies upon.
Professor Olivers report notes that, despite allowing a parallel private health care insurance tier
since the creation of the NHS, public expenditure as a percentage of total health care expenditure
is far higher in the UK, at more than 80%, than Canadas approximate 70%, principally because
the NHS covers all aspects of health care. Since an extension of private insurance in the Canadian
context is likely to be inaccessible to those who are poor in health and/or money terms, and
because it may lead to a decline in middle class support for Canadian Medicare, such an extension
may result in Medicare becoming a poor service for the poor. Moreover, NHS hospital
physicians are salaried, tightly contracted to work (in excess of) a full working week for NHS
patients, and are essentially NHS employees. Thus, in terms of their public sector activities, they
are not as incentivised to maximise revenue as those, such as Canadian physicians, who work in
fee-for-service systems and are considered to be arms-length independent contractors. In the
current Canadian institutional health care context, it is far more likely that lucratively reimbursed
privately financed work will significantly crowd out public sector activities. The threat of possible
conflicts of interest, and to equity and social justice, of lifting the ban on extra-billing in the
Canadian context therefore seem much more stark than those presented by the parallel private tier
operating within the institutional structure of UK health care. If Canadians do not wish to
undermine equity and social justice within their health care system, they would be better served by
focusing on the management of Medicare itself than by extending the scope of the private
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financing tier. Allowing a parallel private tier in which people can gain preferential treatment on
the basis of ability and/or willingness to pay indisputably compromises the principle of providing
equal access to medical care for those in equal need. Allowing private insurance would directly
shorten waiting times only for those who can afford it (or are provided it as a benefit by their
employer).
5.
Dr. Allyson Pollock
The Court will hear evidence from Dr. Allyson Pollock, B.Sc. (Hons.), M.B. Ch.B., M.Sc., FFPH,
FRCGP. Dr. Pollock is a Professor of Public Health Research and Policy at Queen Mary,
University of London. She set up and directed the Centre for International Health Policy at the
University of Edinburgh from 2005 to 2011, and prior to that was Head of the Public Health
Policy Unit at University College London, and Director of Research and Development at UCL
Hospitals NHS Trust. She has more than thirty years of medical and public health experience,
having trained in medicine before training in public health medicine. She is a Fellow of the
Faculty of Public Health Medicine, Fellow of the Royal College of Physicians (Edinburgh), Fellow
of the Royal College of General Practitioners, and a member of the Council of the British Medical
Association. She has held major grants and researched and published widely on the NHS, markets,
and privatization, including three books and several hundred other publications.
Dr. Pollocks report responds to a report from Professor Alistair McGuire tendered by the
Plaintiffs. Dr. Pollocks evidence will be that the private health care sector in England has only
been sustained through major injections of public funding, with a negative impact on NHS
facilities. All of the evidence from England contradicts Professor McGuires assertion that British
Columbia could introduce a private sector sustained through duplicate private health insurance
without negative repercussions. She says that Professor McGuires claim that private health
insurance will alleviate a capacity-constrained system presupposes that there is surplus capacity in
Canada of doctors, nurses, OR theatres, hospitals, and ICUs, and also assumes that physicians,
nurses, and theatre staff are available to work in the private sector.
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Dr. Pollocks report points out that the term demand is not apt for the public health care system,
but rather is a term used by economists to describe a market situation. In public health, the
appropriate terms would be assessed need, met need, and unmet need. The use of the term excess
demand suggests over-medicalization, over-diagnosis, and overtreatment due to suppliers having
market incentives to do so. A 2012 report from the US Institute of Medicine has shown that in
2009 market incentives accounted for around $750 billion US in inefficiencies in the United
States, including overtreatment, undertreatment, and transaction costs, or around 30% of the total
health care expenditure.
Dr. Pollock will testify that international research into the causes of waiting lists and waiting times
shows that they are complex, and require an analysis by country of health system factors including
physician funding, service provision (private and public) and financial incentives, and conflicts of
interest. In the UK, research by John Yates in the 1970s and 1980s showed that waiting lists in the
public sector vary by area and are strongly associated with active clinical private practices. Such
market conflicts, where physicians have a perverse incentive to create waiting lists to foster their
private practice, are not uncommon. The causes of increases in waiting lists can include: (a) a lack
of resources and funds; (b) a lack of capacity staff, theatres, ICU beds; (c) commercial conflicts
(physicians and the private sector); (d) watchful waiting by physicians on the basis of need; and (e)
error and measurement issues.
Dr. Pollocks evidence will be that waiting lists fell in the United Kingdom as a result of the
injection of several billion pounds starting in around the year 2000. This was coupled with
stringent performance targets and performance related pay for managers, which sometimes
resulted in fraudulent behaviour and activity. The initiatives did not result in greater capacity
overall, or greater use of PHI or out of pocket payments, and nor did it result in greater
innovation. Waiting times have now increased again as a result of NHS bed closures and cuts in
funding. In Scotland, where there was little use of the private sector as compared to England, the
increase in public funding resulted in increased treatment rates and improvements in area-based
equity, mainly due to services being provided by and surgery conducted in the public sector.
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Dr. Pollock will testify that the evidence from the Royal Colleges shows that the creation and use
of ISTCs (private facilities providing services paid for by the NHS) did not result in safe, accessible,
high quality, affordable and innovative care. On the contrary, the diversion of public funds from
publicly owned facilities to the private sector destabilized public services financially, undermined
training and quality and safety, and is likely to have affected access.
6.
Professor James Gillespie
The Court will hear evidence from Professor James Gillespie, B.A. (Hons), Ph.D. Professor
Gillespie is an Associate Professor in Health Policy at the Sydney School of Public Health at
Sydney Medical School, at the University of Sydney, and the founding Deputy Director of the
Menzies Centre for Health Policy at the University of Sydney. He has worked as an academic
researcher in health policy at the Australian National University and Macquarie University as well
as at the University of Sydney. He has been researching the Australian health care system since
1985, and has published the two standard books on the development of health insurance in
Australia. Professor Gillespie has provided expert advice to private health insurance funds, to the
Catholic private hospital sector, and to the New South Wales Ministry of Health.
Professor Gillespies report responds to comments in the report of Professor Alistair McGuire
tendered by the Plaintiffs. He states that there is little evidence that the expansion of private health
insurance (PHI) in Australia since the mid-1990s has had any impact in reducing public hospital
waiting lists the stated object of public subsidy and encouragement of PHI. There is some
evidence that PHI encouraged a shift of resources to the private sector and rises in PHI coverage
were associated with longer public waiting lists. There is stronger evidence that the privately
insured within public hospitals have received privileged treatment (at least in New South Wales,
the largest hospital system) and that this has had an adverse effect on public patients.
Professor Gillespie states that evidence suggests that where there are specialist workforce shortages,
these will be felt more heavily in the public sector. There is strong evidence of a shift of large areas
of practice to the private sector, especially in elective surgery, where about two thirds of procedures
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are completed in private hospitals. This pattern is replicated in particular diagnoses, with most
muscular-skeletal surgery of adults and cancer chemo-treatments in the private sector. There is
some dispute whether this has resulted in efficiency gains, but it has raised questions about equity
of access.
In an update to his report, Professor Gillespie notes that the goal of relieving pressure on the
public system continues to be undermined from two directions. Rising premiums have led to
restricted benefits, designed to avoid covering expensive private hospital stays. At the same time,
private hospitals have strong incentives to cost shift more complex patients into the public
system. In addition, he notes recent research that there has been a proliferation of studies
documenting inequities of access to services that are more available in private hospitals.
7.
Professor Jacqueline Cumming
The Court will hear evidence from Professor Jacqueline Cumming, B.A., M.A., Diploma in
Health Economics, Ph.D. Professor Cumming is a Professor of Health Policy and Management,
and Director of the Health Services Research Centre, in the School of Government at Victoria
University of Wellington. She is an Affiliated Senior Scholar with the WHO/PAHO
Collaborating Centre on Health Workforce Planning and Research, and was previously the
President of the Health Services Research Association of Australia and New Zealand. She has
worked as a policy analyst in a number of New Zealand government agencies, including the
Department/Ministry of Health. She has worked as an academic health services researcher for 22
years, including on financing, priority setting and waiting lists and waiting times policies in New
Zealand.
Professor Cummings report responds to an expert report by Dr. Ross Davidson, tendered by the
Plaintiffs, which describes the health care system in New Zealand. Her report states that those who
hold private health insurance in New Zealand tend to be wealthier and healthier on average, and
they can use their insurance to i) improve their access to primary health care services; ii) access
private specialist care and get specialist care more quickly than through the publicly financed
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system; iii) receive elective operations more quickly and in private facilities, even where they are
eligible for publicly financed services; and iv) receive elective operations that the publicly financed
system has not prioritised. Those on higher incomes with insurance have a higher probability of
having at least one GP, nurse, and specialist visit, and the probability of filling at least one
prescription; and a higher number of GP visits, specialist visits and number of prescriptions filled.
Thus, having private health insurance leads to higher use of publicly financed services.
Professor Cumming notes that although from time to time private insurance companies in New
Zealand have lobbied for rebates from the government for people who purchase private health
insurance, on the grounds that their use of privately financed, privately owned hospital services
reduces demand on the publicly financed, publicly owned services. The government has reviewed
the case for a health insurance rebate and has consistently rejected it. Their rationale for this is
that an additional dollar spent for a rebate would not reduce the pressure on the public system by
an equivalent $1, as a result of: private insurers having higher overhead and administrative costs;
privately-financed health care being generally more expensive than publicly-financed care; and
health insurance buying different services than those offered in the public system, and hence not
directly reducing demand on the public system.
Professor Cummings evidence will be that one of the reasons for introducing a more rigorous
approach to managing waiting lists in New Zealand was to reduce the opportunities for specialists
working in the publicly financed, publicly owned system to divert patients to the privately financed
sector, in order to increase the numbers of people receiving privately financed care and enhancing
their own incomes. A recent review of the literature on dual practice notes that specialists working
in both sectors will likely have higher income earning potential in the private sector, and hence
concentrate their effort in the private sector, short-changing the public sector; favour long waiting
times and siphon profitable patients to their private practice. They might also over-provide services
in the public sector to get a good reputation, or use public sector resources for their private sector
work. Overall, the paper shows that the theories about the potential effects of dual practice are
complex, as is designing empirical studies to test the various theories, such that overall there is a
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lack of good evidence about the impact of dual practice, and about the impact of policies aimed at
managing any downsides from a public sector perspective.
8.
Professor Sara Kreindler
The Court will hear evidence from Professor Sara Kreindler, B.A. (Hons), Ph.D. Professor
Kreindler is the Manitoba Research Chair in Health System Innovation, and an Assistant
Professor in Community Health Sciences, at the University of Manitoba. She was previously a
Researcher with the Winnipeg Regional Health Authority Research & Evaluation Unit and a
Research Consultant for the Manitoba Institute for Patient Safety. Professor Kreindler has
conducted extensive research in the area of health services and policy. Her work includes literature
reviews on wait-time reduction (e.g., "Watching your wait: Evidence-informed strategies to reduce
health care wait times," Quality Management in Health Care, 2008) and studies of models to improve
access to emergency surgery (e.g., "The impact of a regional acute-care surgery model on patient
access and outcomes," Canadian Journal of Surgery, 2013). She has also conducted knowledge
syntheses on other system-level issues, such as chronic disease management and prevention
("Lifting the burden of chronic disease: What has worked? What hasn't? What's next?" Healthcare
Quarterly, 2009), patient involvement ("Patient involvement and the politics of methodology,"
Canadian Journal of Public Administration, 2009) and health-system integration ("Silos and social
identity: The social identity approach as a framework for understanding and overcoming divisions
in healthcare," Milbank Quarterly, 2012), and is currently leading a Cochrane Review on surgical
consolidation ("The effect of consolidating acute-care surgery on patient, staff, and resource
outcomes," protocol published in the Cochrane Database of Systematic Reviews, 2011).
Professor Kreindlers evidence is based on a peer-reviewed paper she published in 2010 entitled
"Policy strategies to reduce waits for elective care: a synthesis of international evidence". In her
paper she reported the findings of a literature review she conducted to assess and explain the
effectiveness of policy interventions to reduce elective wait times or lists. My research concluded,
among other things, that the existing international evidence on policies for reducing wait times
shows:
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Proactive, targeted investment in public-sector capacity is an effective long-term strategy

to control wait times;
There is little evidence that private for-profit delivery of health care is inherently more
efficient; rather, private providers tend to choose the type of services that can be run
most efficiently (and thus profitably).
There are genuine risks associated with the private for-profit delivery of health care,
especially when the owner is a large corporation that must deliver a profit to its
shareholders.
The market provides a strong temptation to skimp on quality in order to cut costs, and
to divert resources from patient care into profits. Such tendencies are hardest to prevent
where care delivery is complex and involves multiple, difficult-to-observe inputs (e.g. in
hospitals and long term care homes).
Cross-sectional studies suggest that duplicate private health insurance ("PHI") (or a high
level of local private activity or PHI), is associated with longer wait times in the public
system.
Private financing does not automatically translate into greater capacity, and when it does,
this capacity may not be deployed in ways that bring down the wait list. Moreover, any
new supply is distributed on the basis of ability to pay, not clinical need.
PHI promotion is an indirect, inequitable, and potentially very expensive way to increase
the supply of treatment-something that can be achieved much more efficiently through
other means.
Inefficiencies such as unduly complex booking processes, unnecessary steps, avoidable

delays, 'traffic jams,' and poor use of human or physical resources abound in health care,
and can create long queues even where capacity is sufficient to meet demand.
Past reviews have concluded that increased efficiency does contribute to reducing wait
times, but have found it difficult to pinpoint which interventions have had what degree
of impact.
At the policy level, it is not difficult to promote improvement projects (e.g. by funding
them), but it is difficult to promote projects that actually improve things. Perhaps most
difficult is to ensure that local organizations undertake the thorough, whole-system
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analysis that is necessary to correctly diagnose the problem and devise an appropriate
solution.
Professor Kreindler will testify that the available evidence suggests that more direct strategies are
more effective. Paying for treatment activity, buying capacity locally to support increased treatment
and providing strong incentives for organizations to meet wait-time targets are demonstrated
strategies for reducing wait times. There is also evidence that the use of existing capacity can often
be greatly improved, and further research is needed to determine how best to accomplish this. In
contrast, indirect strategies for instance, depending on an internal market to provide the right
incentives for wait reduction, or depending on increased private financing to generate an adequate
supply of needed care have a poor record. Governments may be tempted to try such approaches
in order to evade the costs of directly increasing the supply of treatment, or the difficulties of
enforcing targets and incentives. In the end, however, there are no shortcuts: successful wait
reduction entails ensuring that sufficient capacity exists, and applying sustained intervention to
ensure that this capacity is well used. Direct approaches to wait reduction are not easy; they may
require significant financial investment (e.g. paying for activity, developing local capacity), strong
regulation to prevent adverse effects (e.g. targets and incentives, buying capacity from the private
sector), and/or tireless efforts to disseminate and support best practices (e.g. promoting efficient
service design). However, indirect approaches, because of their limited effectiveness, often cost
more than they save.
9.
International Publications
As supplements to the expert evidence, the Court will be provided with a number of relatively
reliable publications from international quasi-governmental bodies such as the Organization for
Economic Cooperation and Development (OECD). The parties have agreed that the publications
in question may stand as prima facie evidence of the facts asserted therein. While the evidence of
expert witnesses is obviously the best evidence available to the Court, this evidence will provide
corroborative and supplementary evidence.
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a)
Health System Performance Comparison
A 2012 publication by the World Health Organization that will be provided to the Court 101
highlights the challenges involved in drawing conclusions on the basis of information about other
jurisdictions health care systems, underscoring the evidence of Professor Marmor on the point:
While existing health service measures offer some indicators of the performance of
individual organizations, international comparison is complicated by different
organizational settings and reporting conventions, even after suitable adjustment for casemix and other contextual circumstances.
Although comparative indicators on inequality of health and equity in access to health care
are available at both European and non-European level, equity indicators derived from
existing projects and datasets may be misleading for policy-makers due to limitations in the
availability and comparability of data.
However, notwithstanding major progress by organizations such as the European

Commission, the OECD, the Commonwealth Fund, the WHO and individual countries,
performance comparison efforts are in their early stages, and there are many challenges
involved in the design and implementation of comparison schemes.
In sum, properly conducted country comparisons of performance may constitute a rich

source of evidence and powerful influence on policy. However, caution is required as
initiatives that rely on poorly validated measures and biased policy interpretations may lead
to ineffective or even adverse policy choices.
b)
Making Sense of Health Rankings
The Court will be provided with a 2008 publication from the Canadian Institute for Health
Information 102 that discusses at some length the reasons why data comparing Canadian and other
jurisdictions health care performance need to be approached with caution:
101
Peter C. Smith & Irene Papanicolas, Health System Performance Comparison: An Agenda for Policy, Information and
Research (Copenhagen: World Health Organization Regional Office for Europe, 2012). [Common Book of
Documents, p. 6006]
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Efforts to rank the health status of the Canadian population and the performance of
Canadas health care systems will inevitably increase as standard health indicators become
well established and data become uniformly available across the country and
internationally. When report cards or other publications that include rankings of
jurisdictions according to their health or health care systems are published, the public
should be aware of any potential shortcomings in the methods that underlie these reports.
As a first step, the cautious reader should assess whether important aspects of health and
health care are integral to the ranking scheme. Measures of health status, although essential
to understand population health, do not always accurately reflect the success of a health
care system. To better understand population health, indicators are needed in the areas of
health behaviours, living and working conditions, personal resources such as social support
and environmental factors affecting health. To judge the effectiveness and/or quality of
health care systems, indicators are needed that embody quality aims central to an optimal
health care system, for example, health care that is accessible, appropriate, continuous,
effective, efficient and safe. Indicators that capture these dimensions of care and are at the
same time amenable to measurement and action on the part of health care decision-makers
are the kind that are most helpful.
Second, readers can carefully examine the meaningfulness and validity of the indicators
chosen to quantify the aspects of health and health care included in the ranking scheme.
The indicators should reflect important population health objectives or essential aspects of
the health system.
Third, consumers can assess whether the data used to support specific indicators are
accurate, reliable and comparable. Data that are old, incomplete or otherwise not
representative of the intended population or health care institutions should be viewed with
caution. Similarly, any potential biases should be examined and ruled out in the sources of
data.
Finally, readers of ranking reports can keep an eye out for adherence to sound
methodologic principles, including the following:
The distribution of the values of the indicators used as part of the ranking scheme
must be taken into account before cut points are established that distinguish
good from middling or bad performance.
In interpreting the meaning of ranking scores, it is important to keep in mind that
the rank scores are relative measures that can be misleading without examining the
absolute values of the indicators that underlie the ranking method.
When comparing jurisdictions using ranking, adjustments must be made to
account for underlying differences in the demographic profile of the respective
102
Canadian Institute for Health Information, Making Sense of Health Rankings (Ottawa: CIHI, 2008). [Common Book
of Documents p. 4697.]
134
populations. Adjustments may also be needed to account for underlying differences

in health status or other characteristics.
When combining the values of indicators as part of a ranking scheme, how each
factor is weighted to achieve an overall ranking score needs to be carefully
considered and made explicit. Ideally, there will be a set of principles underlying
the weights and aggregation formula; otherwise, aggregations of disparate and
incommensurable indicators should be avoided.
The uncertainty that underlies all measurement should be reflected in the results of
the ranking scheme.
Numerous statistical issues should be considered in the ranking scheme, including,
for example, taking into account any correlations among the set of indicators used
as part of the ranking methodology; handling of extreme indicator values; and
determining appropriate levels of precision in determining ties in rank order.
Confidence in any ranking scheme depends on the full exposition of analytic
methods used (that is, their transparency) and the extent to which steps have been
taken to ensure that the methodology is free from bias.
c)
Fiscal Sustainability of Health Systems
The Court will be referred to a recent OECD publication that synthesises discussions since 2011
among representatives of OECD Ministries of Health and Ministries of Finance, working together
with experts from the World Health Organization, World Bank and other international
organizations, universities and think tanks. This publication explains why the simplistic solution
proffered by the plaintiffs in this litigation is problematic: 103
1.5. Ensuring the fiscal sustainability of health systems: what are the main
policy options?
In addition to blanket spending cuts, policy makers have three broad ways to ensure fiscal
sustainability of health systems: raise more money for health, improve the efficiency of
government health spending, and reassess the boundaries between public and private
spending. Policy efforts to date have been rather different across these options, with less
policy attention given to reassessing public-private boundaries. Further, whilst improving
efficiency in principle offers cost-savings without adverse effects on quality or access,
policies often require a long time to implement. This is especially the case if such policies
require behaviour change.
103
OECD, Fiscal Sustainability of Health Systems: Bridging Health and Finance Perspectives (Paris: OECD, 2015) at 33, 3940, 42. [Common Book of Documents. p. 7932, 7938-9, 7941]
135
Reassess the boundaries between public and private spending

In OECD countries, private health expenditures have in recent years grown more rapidly
than government health expenditures. Private financing of health is particularly prominent
in Chile, Mexico, the United States and Korea, where it accounts for around half of all
spending, though it should be noted in most other OECD countries, the share of private
spending in total spending remains relatively small (Figure 1.10).
From a purely fiscal perspective, letting private spending on health replace some
government expenditures seems a relatively straightforward proposition. Covering fewer
people through government funds (population coverage), increasing cost-sharing (cost
coverage) or excluding certain health services (service coverage) can all reduce fiscal
pressures. The challenge is to reconcile fiscal constraints while limiting any adverse equity
or efficiency impacts from reduced coverage.
Do not reduce population coverage, avoid across-the-board increases in cost-sharing
Looking first at population coverage, leaving certain population groups to be voluntarily
covered by private health insurance appears to be a logical policy option from a fiscal
perspective. Indeed, the theoretical advantages of private health insurance are an expansion
of individual choice, greater innovation and flexibility, as well as reduced public cost
pressures. However, in practice the risks associated with private health insurance are
numerous, including higher administrative costs, less bargaining power for insurers,
pressure for tax incentives, and risk selection leading to inequitable coverage gaps (OECD,
2004; Pearson and Martin, 2005).
Given these issues, and coupled with strong social justice arguments, universality of
population coverage should be maintained. In terms of cost coverage, blanket increases in
cost-sharing and other forms of out-of-pocket payments is also undesirable, since they can
deter health-seeking behaviour and can lead to people facing financial hardship (WHO,
2010). Small, targeted co-payments that include exemptions could be considered, but are
unlikely to generate substantive revenues.
Finally, it is also important to remember that more health spending is not automatically a
problem. Good health remains a critical part of human development and an important
contributor to economic growth. Health care is also highly valued by society.
Accommodating greater health spending as a share of government budgets is therefore not
automatically a problem. The challenge is to ensure that any increase in spending respects
fiscal sustainability constraints, and that the money is effectively spent.
136
d)
Tackling Excessive Waiting Times for Elective Surgery
One of the publications that the Court will be referred to is a 2003 OECD publication entitled
Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD
Countries. 104 Notable evidence from that publication will include the following statements:
Waiting times for elective (non-urgent) surgery are a main health policy concern in
approximately half of OECD countries.
Various tentative conclusions may be drawn. First, there is surprisingly little evidence of
deterioration in health during waiting in most of the studies reviewed, which cover a
variety of procedures, a variety of waiting times, and a variety of countries. That may have
been because waiting times are typically shorter for the more acute conditions, such as
coronary artery disease. Also, surgeons may be quite good at triage that is at re-prioritising
patients whose conditions become unstable or deteriorate. Secondly, there is evidence of
considerable tolerance of short and moderate waiting, as reported above. Naturally, that is
less true in relation to coronary artery disease than it is in relation to cataracts. Third, a
couple of studies of patients willingness to pay for reductions in waiting, suggest that there
is relatively moderate willingness to pay perhaps around 65 (or $100) for a reduction in
waiting of one month, at current price levels. Fourth, however, there is some evidence of
differences across countries in tolerance of waiting. On the positive side, a few studies
suggest that some patients get better while waiting and no longer require surgery. More
important, the savings in terms of avoided excess surgical capacity from maintaining
waiting lists may be substantial (Feldman, 1994).
e)
Waiting Time Policies in the Health Sector
Another OECD publication that will be provided to the Court, Waiting Time Policies in the Health
Sector: What Works?, made the following relevant observations in 2013: 105
In many OECD countries, long waiting times for health care services is an important
health policy issue. A recent OECD survey revealed problems with waiting times in almost
all OECD countries including primary care, out-patient specialist care, emergency care,
104
J. Hurst & L. Siciliani, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD
Countries, OECD Health Working Papers No. 6 (7 July 2003: OECD). [Common Book of Documents, p. 4025]
105
L. Siciliani, M. Borowitz, & V. Moran, OECD Health Policy Studies, Waiting Time Policies in the Health Sector: What
Works? (Paris: OECD, 2013). [Common Book of Documents, p. 6501]
137
cancer care and elective (non-emergency) care. More than half of OECD countries have
long waiting times for elective treatments, and these waiting times are often a contentious
political issue.
A number of countries have incentivised private health insurance in the belief that it
would encourage patients to use the private sector and remove pressure from the public
sector. The evidence on increased use of the private sector is mixed: in Australia, increased
coverage of private health insurance had a negligible effect on the usage of public sector
services. In contrast, Denmark experienced a decrease in public sector usage following the
introduction of a tax exemption for private health insurance. However, as in Australia
incentivizing private health insurance did not necessarily reduce waiting times in Denmark.
A complementary approach to reducing waiting times is to implement demand-side policies

in order to curtail or shift the demand for elective treatments. One approach is to shift
demand to the private sector by using private insurance. This has, however, generally failed
to reduce demand for elective treatments in public hospitals and to reduce waiting times.
f)
Health at a Glance 2015
In 2015, the OECD published a report entitled Health at a Glance 2015, 106 comparing data from a
subset of OECD members with respect to various aspects of health care. That publication makes
the following observations:
Waiting times for different health services indicate the extent to which people have timely
access to care for specific interventions such as elective surgery. Denmark, Canada and
Israel have relatively low waiting times for interventions such as cataract surgery and knee
replacement among the limited group of countries that provide these data, while Poland,
Estonia and Norway have relatively long waiting times.
With respect to wait times for elective surgery, the OECD reported that, among the 14 OECD
countries compared (Canada, Hungary, Israel, Denmark, United Kingdom, Portugal, New
Zealand, Estonia, Finland, Spain, Norway, Chile, and Poland):
106
OECD, Health at a Glance 2015: OECD Indicators (Paris: OECD, 2015). [Common Book of Documents, p. 8163]
138
Canada had the second lowest median wait time for cataract surgery;
Canada had the sixth lowest median wait time for hip replacement surgery; and
Canada had the fourth lowest median wait time for knee replacement surgery.
The same publication compared rates of mortality within 30 days of acute myocardial infarction,
which it described as a good indicator of acute care quality, in 21 OECD countries. Canada had
the lowest (i.e., best) rate among all of those countries, which included the Netherlands, New
Zealand, Denmark, Sweden, Finland, Switzerland, and the United Kingdom.
The same publication points out that improvements in health care do not correlate to simple
measures of increases in resources:
Higher health spending and other human or technical resources are not always correlated
with greater access to care or higher quality of care, as shown by the lack of any consistent
correlation in countries relative position between health spending and various indicators
of access or quality of care. The performance of health systems in achieving the key
policy goals of universal access and quality depends not only on allocating more money on
health care, but also on making a more rational use of resources and providing the right
incentives to ensure the best value for money spent.
g)
Health Care Systems: Efficiency and Institutions
A 2010 OECD publication to which the Court will be referred, Health Care Systems: Efficiency and
Institutions, recommends against dramatic changes in health care systems in an attempt to improve
their efficiency or effectiveness: 107
The empirical analysis suggests that there is room in all countries surveyed to improve the
effectiveness of health care spending; there is no health care system that performs
systematically better in delivering cost-effective health care big-bang reforms are therefore
not warranted; increasing the coherence of policy settings, by adopting best policy practices
within a similar system and borrowing the most appropriate elements from other systems
will likely be more practical and effective to raise health care spending efficiency.
107
Joumard, I., C. Andr and C. Nicq (2010), Health Care Systems: Efficiency and Institutions, OECD Economics
Department Working Papers, No. 769, OECD Publishing. [Common Book of Documents, p. 5829]
139
h)
Measuring and Comparing Health Care Waiting Times
Another recent OECD publication that will be provided to the Court, Measuring and Comparing
Health Care Waiting Times in OECD Countries,108 reports similarly positive comparisons. Among the
7 OECD countries compared (Canada, Australia, New Zealand, Finland, England, Scotland, and
Portugal):
Canada had the fourth lowest median wait time for hip replacement surgery;
Canada had the fourth lowest median wait time for knee replacement surgery;
Canada had the lowest median wait time for cataract surgery; and
Canada had the second lowest median wait time for Coronary Artery Bypass Graft
(CABG) surgery.
i)
Private Health Insurance in OECD Countries
In a paper published by the OECD in 2004, Private Health Insurance in OECD Countries: The
Benefits and Costs for Individuals and Health Systems, the authors note that, whatever its benefits may
be, private health insurance poses a number of problems that require complex regulatory
responses: 109
Private health insurance presents both opportunities and risks for the attainment of health
system performance goals. For example, in countries where PHI plays a prominent role, it
can be credited with having injected resources into health systems, added to consumer
choice, and helped make the systems more responsive. However, it has also given rise to
considerable equity challenges in many cases and has added to health care expenditure
(total, and in some cases, public) in most of those same countries.
PHI also raises certain challenges that cut across its different roles. Policy-makers will need
to intervene to address market failures in order to assure PHI access for high-risk groups. In
doing so, they can choose from a range of tools. They need to balance the sometimes
108
L. Siciliani, V. Moran, & M. Borowitz (2013), Measuring and Comparing Health Care Waiting Times in OECD
Countries, OECD Health Working Papers, No. 67, p. 9. [Common Book of Documents, p. 7228]
109
F. Colombo & N. Tapay, OECD Health Working Papers No. 15: Private Health Insurance in OECD Countries: The
Benefits and Costs for Individuals and Health Systems (Paris: OECD, 2004) at 4. [Common Book of Documents, p. 4145]
140
competing goals of access and the maintenance of a broad and diverse pool of covered
lives, particularly in voluntary markets.
j)
Germany: Health System Review
The Court will be provided with a 2014 review of the German health care system by the European
Observatory on Health Systems and Policies. The publication describes that system as one in
which most of the population is covered by social health insurance (SHI) funded by the state,
while those with the highest incomes (and a very small group of others) are permitted to opt out of
the public system by purchasing private health insurance. The report noted the following: 110
The co-existence of SHI [social health insurance] and PHI [private health insurance] in the
German health insurance system creates substantial problems. People in above-average
health and those on above-average incomes switch to PHI, thereby jeopardizing the
financial viability of SHI. Empirical studies have shown that people insured privately have
a significantly higher average income than those with SHI and are also, on average,
healthier (Mielck & Helmert, 2006b).
k)
France: Health System Review
The Court will be provided with another report by the European Observatory on Health Systems
and Policies, a review of the French health care system from 2010. That report includes the
following observation: 111
The French population enjoys good health and a high level of choice of providers. It is
relatively satisfied with the health care system. However, as in many other countries, the
rising cost of health care is of concern with regards to the objectives of the health care
system. Many measures were or are being implemented in order to contain costs and
increase efficiency. These include, for example, developing pay-for-performance for both
hospitals and self-employed providers and increasing quality of professional practice;
refining patient pathways; raising additional revenue for statutory health insurance (SHI);
and increasing the role of voluntary health insurance (VHI).
110
R. Busse & M. Blmel, Germany: Health System Review 2014, Health Systems in Transition, vol. 16 No. 2
(Copenhagen: World Health Organization, 2014) at 265. [Common Book of Documents, p. 7606]
111
C. Hernndez-Quevedo, P. Mladovsky, E. Mossialos, France: Health System Review, Health Systems in Transition, vol.
12 No. 6 (Copenhagen: World Health Organization, 2010). [Common Book of Documents, p. 5471]
141
Meanwhile, socioeconomic disparities and geographic inequality in the density of health

care professionals remain considerable challenges to providing a good level of equity in
access to health care.
l)
Financing Health Care in the European Union
The Court will also be provided with a 2009 report from the European Observatory entitled
Financing Health Care in the European Union: Challenges and Policy Responses.112 That report makes the
following pertinent comments:
Health systems in the European Union (EU) perform a vital social security function. They
mitigate both health and financial risks and make a major contribution to social and
economic welfare. In light of various cost pressures, the Council of the European Union
has articulated the challenge facing the Member States as the need to secure the financial
sustainability of their health systems without undermining the values these share: universal
coverage, solidarity in financing, equity of access and the provision of high-quality health
care (Council of the European Union 2006).
Concern regarding the fiscal sustainability of a health system relates specifically to public
expenditure on health care. A health system may be economically sustainable and yet
fiscally unsustainable if public revenue is insufficient to meet public expenditure.
There are three broad approaches to addressing the problem of fiscal sustainability: (1)
increase public revenue to the point at which health system obligations can be met; (2)
lessen those obligations to the point at which they can be met from existing (or projected)
revenue; (3) improve the capacity of the health system to convert resources into value.
Efforts to increase public revenue face technical obstacles, such as institutional capacity
and concerns regarding the threat such efforts may present to labour markets, as well as
political obstacles, such as the unwillingness of part of the population to continue to
subsidize equal access to health care for others. Lessening health system obligations
through coverage reduction (de-listing benefits, expanding cost sharing, excluding
population groups) may help to secure fiscal sustainability, but will undermine the four
values listed by the Council of the European Union. Furthermore, encouraging private
financing of health care may exacerbate problems of economic sustainability due to the
lower value for money that private markets are able to achieve vis--vis public systems.
112
S. Thomson, C. Foubister, E. Mossialos, Financing Health Care in the European Union: Challenges and Policy Responses,
Observatory Studies Series No. 17 (Copenhagen: World Health Organization, 2009). [Common Book of Documents,
p. 4796]
142

The clear trend towards creating a national pool of publicly generated health care resources
witnessed in newer and older Member States is a welcome one. A single pool of health
risks is the basis for equity of access to health care. It also enhances efficiency by
counteracting uncertainty regarding the risk of ill health and its associated financial
burden. In addition, minimizing duplication of pooling may improve administrative
efficiency.
m)
Health Systems Financing
In 2010, in a report that will be provided to the Court, the Director-General of the World Health
Organization underlined the complexity of health care systems, and the risk of unanticipated
outcomes from changes in policy: 113
[N]o single mix of policy options will work well in every setting. As the report cautions, any
effective strategy for health financing needs to be home-grown. Health systems are complex
adaptive systems, and their different components can interact in unexpected ways.
10.
Summary Tables
The Defendants have compiled two sets of tables, based on the various international publications,
to provide the Court with a ready summary of relevant points of comparison between the health
care systems of Canada and 21 other OECD countries. 114 The first table presents summary
information regarding the financing of the health care systems in those countries, and the second
provides summary information regarding the manner in which health care is delivered in each.
Each table is followed by another table setting out the precise source(s) for all of the data in the
table.
113
Dr. Margaret Chan, Message from the Director-General in World Health Organization, Health Systems Financing:
The path to universal coverage (2010) at p. vii. [Common Book of Documents, p. 5404]
114
Appendices F and G.
143
G.
Evidence relating to the Plaintiffs
The Defendants will be calling evidence relating both to the experiences of the individual Plaintiffs
and to the corporate Plaintiffs.
1.
The Individual Plaintiffs
The evidence will show that the experiences of the individual Plaintiffs were not caused by the
Impugned Provisions of the Act. Rather, they were the result of decisions made, or not made, by
individual physicians involved in their care, and could have been avoided if different decisions had
been made.
The evidence will also show that, specifically with respect to the experience of the Plaintiff Walid
Khalfallah, steps have been taken by the Provincial Health Services Authority and the B.C.
Childrens Hospital that will prevent, to the extent possible, any repeat of such an experience. The
evidence will also show that the Childrens Hospital was alive to the need to hire an additional
surgeon who could perform the complex operations that Walids surgeon could do. Hiring a
surgeon with that level of skill is difficult and time consuming. In addition, the Hospital has
responded by becoming more involved with the surgeons in managing their waitlists.
Furthermore, the evidence will show that the complex surgery that Walid needed was not, and
would not have been, available in any private clinic. The Plaintiffs will also be unable to establish
that Walid would have been able to obtain PHI given his significant pre-existing conditions, or
that even if he had been able to obtain it, treatment for kyphosis would have been covered by PHI.
The individual experiences of the patient Plaintiffs, singly or cumulatively, are not a basis for
overriding the legislative choice of a single payer system.
144
2.
The Corporate Plaintiffs
Associate Chief Justice Cullen noted, at an earlier stage in these proceedings, that evidence of the
operations of the Plaintiff Clinics can assist in understanding how private and public health care
might interact in a parallel system and can furnish actual, as opposed to theoretical, examples of
some of the advantages and disadvantages of having physicians working in both systems. [T]hat
evidence could further an understanding of the potential problems that a dual health care system
could create, as the applicants contend, or of the problems it could resolve, as the plaintiffs
contend. 115
The Plaintiff Cambie Surgeries Corporation owns and operates the Cambie Surgery Centre
(Cambie) in Vancouver. Cambie is a surgical and diagnostic facility, where physicians provide
surgeries, as well as diagnoses and treatments. According to the evidence of Dr. Brian Day, some
10-15% of the surgeries performed at Cambie are performed in violation of the Act; 116 the
remainder are services that are provided lawfully.
The Plaintiff Specialist Referral Clinic (Vancouver) Inc. owns and operates the Specialist Referral
Clinic (SRC) in Vancouver. SRC is a medical clinic, where specialist physicians provide
expedited assessments and consultations. No surgeries are performed at SRC.
The Defendants will provide the Court with some evidence relating to the Plaintiff Clinics
operations obtained through an audit conducted by the Ministrys Billing Integrity Program in
2011, as well as with other evidence obtained through the discovery process, and evidence of
several physicians who have provided services at the Plaintiff Clinics. The Defendants will also rely
on certain formal admissions made by the Plaintiffs during the preparation for trial.
115
116
Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2014 BCSC 361 at para. 62.
Affidavit #3 of Dr. Brian Day, sworn 2 October 2012, paras. 19, 85.
145
a)
Stephen Abercrombie
Stephen Abercrombie is a senior auditor employed by the Ministry of Healths Billing Integrity
Program, who supervised and conducted an audit of Cambie and SRC in 2011. 117 The purpose of
the audit was to assist the Commission in determining:
whether extra billing occurred at SRC and Cambie;
whether any extra billing at SRC and Cambie included overlapping claims of the
Medical Services Plan (MSP);
whether any charges to beneficiaries for benefits rendered by an opted-out physician

exceeded the value the beneficiary could claim from MSP; and,
what business relationships existed between SRC, Cambie, and their physicians, in
relation to any extra billing, overlapping claims, or charges exceeding what a beneficiary
could claim from MSP.
The main approach of the audit was to examine patient records for a sample of services provided
at SRC and Cambie, respectively (including services flowing between SRC and Cambie), and
establish whether the service had been provided to a beneficiary by an enrolled physician and
constituted a benefit; and, if so, what charges or claims had been made in relation to the benefit.
The auditors reviewed beneficiary complaints ranging from August 2001 to June 2011, and
selected dates in August 2008, December 2010, and January 2011. A total of 468 services were
reviewed (252 provided at SRC and 216 at Cambie).
The initial audit visits occurred in January and February 2011. Following the initial audit visits in
early 2011, the auditors performed follow-up visits in November 2011, primarily to attempt to
overcome some significant limitations on the information made available during the initial audit
visits. The auditors received courteous but only limited cooperation from the President,
management, and staff of SRC and Cambie. Representatives were unwilling to provide access to
117
Audit Report and Addendum. [Common Book, pp. 90, 159]
146
either corporations financial statements, ledgers, and contractual arrangements with physicians.
Accordingly, the auditors were unable to determine:
whether the physicians providing benefits at SRC or Cambie were compensated by either
corporation, notably in the case of any extra billing to determine whether these
physicians had participated in such billing; and,
the full nature of the business relationships between SRC, CSC and their physicians.
Despite the limitations on the information made available to them, the auditors determined that
there was significant evidence to indicate that:
extra billing had occurred at both SRC and Cambie on a frequent and recurring basis,
contrary to the Act;
the extra billing would often overlap with physician claims of MSP;
charges to beneficiaries for benefits provided at SRC or Cambie by an opted out

physician exceeded the value of what the beneficiary could claim from MSP, where they
could determine such MSP values; and,
a high degree of business relationships existed between SRC, Cambie and their
physicians with respect to extra billings or charges exceeding what a beneficiary could
claim from MSP.
The auditors established that strong business relationships existed between SRC, Cambie, and
their physicians in terms of common directorship, presidency, ownership, advertising and medical
access privileges; flow-through of services between SRC and Cambie; and SRC collecting surgery
pre-payments on behalf of Cambie. Because they were not permitted access to the financial reports
and supporting ledgers of SRC and Cambie, however, the auditors were unable to determine
whether the physicians providing benefits at SRC or Cambie were compensated by either
corporation, notably in the case of any extra billing and overlapping claims of MSP. They were also
unable to determine the nature and extent of SRC, Cambie, and physician co-involvement and,
147
otherwise, the full nature and extent of the business relationships between SRC, Cambie and their
physicians.
The auditors reported that the President and management of Cambie asserted that with respect to
surgery benefits:
Cambie only charged a facility fee, covering facility overhead, nurses and medical
supplies and excluding the value of the physician services;
the physicians providing the surgery at Cambie claimed and received compensation only
from MSP; and,
Cambie did not compensate its physicians for the surgery benefit rendered.
b)
Admissions
At a case management conference held on 12 January 2015, counsel for the Plaintiffs advised the
Court that Cambie had changed its billing practices as of 1 September 2014. He advised that,
whereas previously physicians had billed MSP for the services they provided to beneficiaries at
Cambie, and Cambie charged the beneficiaries a facility fee, since 1 September beneficiaries were
being charged both a facility fee and a fee for the physicians services, and physicians were no
longer billing MSP. The Plaintiffs made a formal admission regarding this change in practice, on
which the Defendants will rely, to wit:
In the period since September 1, 2014, and in some cases:
a) the patients obtaining medical services at Cambie are BC residents who are
registered as beneficiaries under the Medicare Protection Act;
b) the physician performing the medical service is an enrolled physician under the
Act;
c) had the patient obtained the same medical service through the public health
care system, the physician performing the service would have been able to bill
MSP for the provision of the service;
d) Cambie (through the SRC) bills the patient for some or all of the cost of the
physicians services; and
148
e) the payment received from the patient for the physicians services is passed on
to the physician by Cambie.
In response to a request by the Defendants, the Plaintiffs subsequently produced a list of the fees
currently charged by Cambie for the surgical procedures offered there, including the amounts
payable to the physicians. The Defendants will be adducing evidence that the amounts payable to
the physicians for these procedures are, in almost every case, significantly higher than the amounts
payable for the same procedures by the MSP.
In June of 2015, the Plaintiffs made a formal admission with respect to the billing practices at
Cambie and SRC, both pre- and post-September 2014, on which the Defendants will rely. The
Plaintiffs admitted as follows:
Cambies Consulting Fees
(a)
Some of the Surgical Services provided by Physicians to Beneficiaries at Cambie are
Benefits under the Act.
(b)
SRC typically invoices Beneficiaries facility fees in connection with the provision
of Benefits to those Beneficiaries by Physicians at Cambie, and has done so since before 28
January 2009.
(c)
SRC retains an administrative fee for performing administrative functions
associated with the arrangements for surgeries at Cambie, including the invoicing function,
and transfers the majority of the amounts collected from the Beneficiaries to Cambie.
(d)
Cambie makes regular payments to the Physicians who provided the Benefits, and
has done so since before 28 January 2009.
a.
The payments are recorded by Cambie in its general ledger in a category
numbered 94069 and entitled Consulting Peadiatric.
b.
Since September 2009, the payments have been recorded on a monthly
basis; prior to that time, they were at least in some cases recorded more frequently
than monthly.
c.
The amounts paid to any particular Physician in any particular month are,
and always have been, based on the Physicians contribution to Cambie. The
Physicians contribution to Cambie depends primarily on the volume of surgical
services performed at Cambie by that Physician in that month, including surgical
services that are Benefits under the Act, and may include other services that the
Physician has provided as well.
149
(e)
Prior to 1 September 2014, Cambie assumed that the Physicians to whom the
payments were made would claim payment from the MSP for the Benefits they had
provided and for which a Beneficiary had typically paid a Facility Fee.
Specialist Referral Clinic
(a)
SRC charges Beneficiaries for the provision of independent medical assessments
(IMAs) by Physicians.
(b)
SRC pays the Physicians a portion of the fees charged to the Beneficiaries for the
IMAs.
(c)
The medical assessments provided to Beneficiaries by Physicians at SRC in some
cases include services that are Benefits, but are generally more comprehensive and detailed
than the assessments provided by the same Physicians when billing the MSP.
(d)
The amounts that SRC pays to Physicians for the provision of IMAs are typically
higher than the amounts that the Physicians would be entitled to claim from the MSP for a
consultation for a similar problem.
c)
Evidence of Physicians
On 5 March 2014, Associate Chief Justice Cullen granted the Defendants an Order pursuant to
Rule 7-5 permitting them to examine under oath several physicians who provide services at
Cambie and/or SRC. The Defendants intend to call several of those physicians at trial, and expect
that their testimony will be to the following effect:
An IMA at SRC is essentially the same as a consultation performed at their own office
for which they would bill MSP, although it may be a bit longer.
Many patients that they see at SRC whom they diagnose as requiring surgery choose to
have their surgery in the public system; others choose to pay for surgery at Cambie.
Prior to September 2014, when they operated on patients at Cambie, they billed MSP.
They receive a cheque from Cambie every month in which they perform surgery at
Cambie, and did prior to September 2014 as well. They do not know how the amount
on that cheque is calculated, and have never discussed with anyone at Cambie how it is
calculated.
150
They do not provide any services to Cambie other than performing surgery on patients.
d)
The Plaintiff Clinics documents
In the course of the discovery process, and in response to an Order made by Associate Chief
Justice Cullen on 21 October 2013, the Plaintiffs disclosed a small number of documents relating
to the operations of the Plaintiff Clinics. Among the documents produced were the general ledgers
of both Cambie and SRC. Those ledgers included information relating to the category numbered
94069 and entitled Consulting Peadiatric, disclosing the amounts paid to Physicians by
Cambie during the fiscal years 2008 through 2012. Those portions of those general ledgers were
the subject of a formal admission by the Plaintiffs, on which the Defendants will rely, and they
disclose that the following amounts were paid out to physicians in each of those fiscal years:
2008: $1,491,016
2009: $1,458,391
2010: $1,550,160
2011: $1,698,090
2012: $1,756,360
The Defendants had applied for an Order compelling disclosure of a number of other types of
documents, but the evidence of Dr. Brian Day, the President of both Cambie and SRC, was that
the following types of documents did not exist: 118
118
Any fee schedules that have existed over time and any internal financial accounting that
was carried out in order to determine the appropriate cost structure over time;
Any documentation of additional costing for surgery as well as any policy for the
administrative staff for determining the additional costing;
Any document evidencing the billing arrangements between the patient, Specialist
Referral Clinic (Vancouver) Inc. and the physician, including any document evidencing
that proportion of fee that goes to the physician and how it is calculated;
Affidavit #4 of Dr. Brian Day, sworn 9 October 2013.
151
Any document that show how physicians are compensated for post-surgical follow ups;
Any document used to determine the amount charged for an independent medical
assessment;
Any documents used in the past or currently between Cambie Surgery Centre and
Specialist Referral Clinic (Vancouver) Inc. and the specialists and surgeons providing
services at Cambie Surgery Centre which evidence any of the following: the nature of the
contractual relationship, if any; [ ... ]; any procedures or policies regarding the method of
payment to physicians where Medical Services Plan is not directly billed; any payments at
all to physicians where Medical Services Plan is billed;
Any documents constituting arrangements between Cambie Surgery Centre and
Special Referral Clinic (Vancouver) Inc. and the anesthesiologists and surgical assistants
which evidence the following: the nature of the contractual relationship, if any; [ ... ]; any
procedures or policies regarding the method of payment where Medical Services Plan is
directly or not directly billed;
Any documents that show how payments for independent medical assessments are split
between the Specialist Referral Clinic (Vancouver) Inc., and the physician.
Based on Dr. Days evidence, Associate Chief Justice Cullen did not order the Plaintiffs to produce
any of those types of documents.
152
VI.
Implications of Granting the Relief Sought
While there is much that we do not and cannot know with certainty about what would happen if
the Plaintiffs succeed in their challenge, given the inherent complexity of the health care system,
there is one result which is absolutely certain and inescapable: necessary medical care will no
longer be available to British Columbians solely on the basis of need; for those with the money to
pay for it, or able to obtain and pay for duplicate private insurance coverage, it will be more
available, and available more quickly, than for the rest.
Granting the relief sought by the Plaintiffs would not merely result in the legitimisation of a
private health care system that would be inaccessible to a large number of people, including the
most needy members of society: it would also result in intolerable barriers to accessing the public
health care system, because government would be constitutionally prohibited from preventing any
physician from charging any and every patient who walks through their door.
In fact, although the Plaintiffs use the terminology of a parallel private health care system, in
truth the evidence will show that what would be created if the Plaintiffs succeed would be a
parasitic private health care system, one in which those with the means to pay would be given
preferential treatment by physicians who were simultaneously deriving all of the benefits of
working in the public system and enhancing their income by charging whatever the market will
bear for expedited private care.
Although the Plaintiffs, the Defendants, and some of the intervenors will be calling evidence from
patients who will be telling their own personal stories, the Court will not be hearing from the
people who stand to lose the most if this claim succeeds: all of those ordinary British Columbians
who will end up waiting for care because the public health care system cant treat them promptly
and they cant afford to pay to be seen privately. The Court will not be hearing from them because
no one knows yet exactly who they are, but that doesnt mean they dont exist: they do, and their
right to have their fate weighed in the balance by the Court is not lessened merely because we
cannot put a name or a face to them.
153
This is a profound and fundamental difference between this case and any other Charter claim. In a
normal Charter claim, the legislation that is being challenged applies directly to the people whose
rights are said to be infringed by it, and striking it down does not negatively impact anyone outside
its scope.
In contrast, in this case as set out previously the court will hear an abundance of evidence that
if the Plaintiffs are successful there will be other people potentially a very large number of British
Columbians, and particularly those with the fewest resources available to them who will suffer
the exact same fate that the Plaintiffs complain of (or worse), except that they will be unable to
obtain relief by challenging any legislation or other government action.
The evidence described previously will show that government cannot act unilaterally to prevent the
harm of which the Plaintiffs complain. Solving problems with wait times requires sustained cooperative efforts by government, health authorities, physicians, and others. That, again,
differentiates this case from other Charter claims. The evidence will show that this kind of cooperative effort is happening, and that as a result real improvements to the health care system have
been made and are being made, but that striking down the prohibitions on extra-billing will make
that kind of co-operation more difficult, and less likely. Physicians who have a vested financial
interest in an inefficient public system would have a strong disincentive to collaborate to make the
public system better, and without their wholehearted cooperation real improvement will be
challenging.
The expert evidence of Scott Sinclair will also show that, if the Plaintiffs are successful in their
challenge to the Impugned Provisions, the Legislatures ability to regulate the behaviour of foreign
providers of health care and health care insurance may well be restricted by Canadas international
trade obligations, with significant implications for the possibility of mitigating the negative effects
of permitting extra billing.
154
The Plaintiffs have asserted that the Commission and/or the government have been less vigorous
in their enforcement of the Act than they could have been although it is more than a little
disingenuous of them to rely in any way on delay in enforcement of the Act during the period of
uncertainty created by the pendency of these proceedings. Certainly that delay can have no
relevance whatever to the proper disposition of the constitutional issues that the Plaintiffs raise.
In our health care system, the people in whom society has reposed the primary responsibility for
making decisions about who gets treated when are individual physicians. This important fact
distinguishes the Canadian system from many others, where physicians are employees of, or
contracted to work for, either the government or other public entities, or as in the United States
are largely controlled by private organizations whose motive is profit.
Permitting indeed, mandating a private health care system in which physicians are able to earn
more money for less work while simultaneously availing themselves of income opportunities in the
public system can only create perverse incentives for those physicians, and detract from their focus
on maintaining and improving the quality and timeliness of care in the public system.
155
VII. Conclusion
It cannot be emphasized strongly enough that success by the Plaintiffs in this litigation would
necessarily result in the creation of a private health care system which would depend for its viability
on the continued existence of lengthy wait lists in the public health care system. Without lengthy
wait lists, there would be no reason for patients to pay for necessary surgical services, or to pay for
insurance to cover those costs. If practice in the private system provides greater rewards than
practice in the public system as it must there can no longer be any incentive for physicians to
reduce wait times in the public system: in fact the incentive will be for them to do the reverse. The
private health care system that would be created would only be available to those who could afford
it, and it would offer no respite to many British Columbians who would be most in need of it.
Success by the Plaintiffs would also necessarily prevent the Province from providing a health care
system in which access to necessary medical care is based on need, and not on ability to pay.
The Alberta Court of Appeal made the following observation in 2015:
Canadas system of universal health care is perceived by many as the crowning achievement
of Canadian social policy. The majority of Canadians support the public funding of health
care and oppose attempts to shrink or compromise the system. 119
Professor Peter Hogg has said this:
A constitution has been described as a mirror reflecting the national soul: it must
recognize and protect the values of a nation. 120
The Defendants will ask the Court to reject the Plaintiffs contention that the legislative
foundation on which Medicare has been built offends the Constitution of Canada. We will ask
the Court to reject the argument that the means chosen by the Legislature to protect the crowning
119
120
Allen v. Alberta, 2015 ABCA 277 at para. 14.

P. Hogg, Constitutional Law of Canada, 5th ed. (Supp.), vol. 1, looseleaf (Toronto: Carswell, 2007), p. 1-1.
156
achievement of Canadian social policy is incompatible with that Constitution. We will ask the
Court to dismiss this action.
157
Authorities Referenced
1.
Allen v. Alberta, 2015 ABCA 277
2.
B.C.G.E.U. v. British Columbia (Minister of Health Services), 2007 BCCA 379
3.
Bedford v. Canada (Attorney General), 2013 SCC 72
4.
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44
5.
Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc.,
[1984] 2 S.C.R. 145
6.
Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4
7.
Carter v. Canada, 2015 SCC 5
8.
Chaoulli v. Qubec (Procureur gnral), 2005 SCC 35
9.
Chaoulli v. Qubec (Procureur gnral), [2002] R.J.Q. 1205 (C.A.)
10.
Chaoulli c. Quebec (Procureur gnral), [2000] R.J.Q. 786 (C.S.)
11.
Corbiere v. Canada (Minister of Indian & Northern Affairs), [1999] 2 S.C.R. 203
12.
Droit de la famille 091768, 2013 SCC 5
13.
Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30
14.
M. v. H., [1999] 2 S.C.R. 3
15.
PHS Community Services Society v. Canada (Attorney General), 2011 SCC 44
16.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295
17.
R. v. Demers, 2004 SCC 46
18.
R. v. Levkovic, 2013 SCC 25
19.
R. v. Malmo-Levine, 2003 SCC 74
20.
R. v. Safarzadeh-Markhali, 2016 SCC 14
21.
Schachter v. Canada, [1992] 2 S.C.R. 679
22.
Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11
158
Appendices
A.
Canada Health Act, R.S.C. 1985, c. C-6
B.
Medicare Protection Act, R.S.B.C. 1996, c. 286
C.
Constitution Act, 1982, being Schedule B to the Canada Act 1982, c. 11 (U.K.)
D.
Chart Cross-Referencing Expert Witness Reports
E.
Completed Surgeries in British Columbia
F.
Healthcare Financing Among 22 OECD Countries
G.
Healthcare Supply Delivery Among 22 OECD Countries
159
APPENDIX "A"
OFFICIAL STATUS
OF CONSOLIDATIONS
CARACTERE OFFICIEL
DES CODIFICATIONS
Subsections 31 (1) and (2) of the Legislation Revision and

Consolidation Act, in force on June 1, 2009, provide as
follows:
Les paragraphes 31 ( 1) et (2) de la Loi sur la revision et la

codification des textes /egislatifs, en vigueur le 1er ju in
2009, prevoient ce qui suit:
Published consolidation is evidence
Codifications comme element de preuve
31 (1) Every copy of a consolidated statute or consolidated
regulation published by the Minister under this Act in either

print or electronic form is evidence of that statute or regulation and of its contents and every copy purporting to be published by the Minister is deemed to be so published, unless
the contrary is shown.
31 (1) Tout exemplaire d'une loi codifiee OU d'un reglement

codifie, publie par le ministre en vertu de la presente loi sur
support papier OU SUf support electronique, fait foi de cette
loi ou de ce reglement et de son contenu. Tout exemplaire
donne comme publie par le ministre est repute avoir ete ainsi
publie, sauf preuve contraire.
Inconsistencies in Acts
lncompatibilite - lois
(2) In the event of an inconsistency between a consolidated

statute published by the Minister under this Act and the original statute or a subsequent amendment as certified by the
Clerk of the Parliaments under the Publication of Statutes
Act, the original statute or amendment prevails to the extent
of the inconsistency.
(2) Les dispositions de la loi d'origine avec ses modifications

subsequentes par le greffier des Parlements en vertu de la Loi
sur la publication des Zais l'emportent sur les dispositions incompatibles de la loi codifiee publiee par le ministre en vertu
de la presente loi.
NOTE
NOTE
This consolidation is current to August 15, 2016. The last

amendments came into force on June 29, 2012. Any
amendments that were not in force as of August 15, 2016
are set out at the end of this document under the heading
"Amendments Not in Force".
Cette codification est a Jour au 15 aout 2016. Les

dernieres modifications sont entrees en vigueur
le 29 juin 2012. Toutes modifications qui n'etaient pas en
vigueur au 15 aout 2016 sont enoncees la fin de ce document sous le titre Modifications non en vigueur .
Current to August 15, 2016

Last amended on June 29, 2012
A jour au
15 aoGt 2016
Derniere modification le 29 juin 2012
---------
------
TABLE OF PROVISIONS
TABLE ANALYTIQUE
An Act relating to cash contributions by Canada and

relating to criteria and conditions in respect of
insured health services and extended health care
services
Loi concernant les contributions pecuniaires du

Canada ainsi que les principes et conditions
applicables aux services de sante assures et aux
services complementaires de sante
Short Title
Titre a brege
Short title
Titre abrege
Interpretation
Definitions
2
Definitions
Canadian Health Care Policy

3
Politique canadienne de la sante

3
Primary objective of Canadian health care policy
Purpose of this Act
Cash Contribution
5
Objectif premier
Raison d'etre
Purpose
4
Definitions
Raison d'etre de la presente loi
Contribution pecuniaire
5
Cash contribution
Program Criteria
Conditions d'octroi
Program criteria
Regle generale
Public administration
Gestion publique
lntegralite
Comprehensiveness
10
Universality
10
Universalite
11
Portability
11
Transferabilite
12
Accessibility
12
Accessibilite
Conditions for Cash Contribution

13
Contribution pecuniaire assujettie

des conditions
13
Conditions
Defaults
Obligations de la province
Manquements
14
Referral to Governor in Council
14
Renvoi au gouverneur en conseil
15
Order reducing or withholding contribution
15
Decret de reduction
16
Reimposition of reductions or withholdings
16
Nouvelle application des reductions
17
When reduction or withholding imposed
17
Application aux exercices ulterieurs

Last am ended on June 29, 2012
iii
OU
de retenue
OU
retenues
Ajourau 15aoGt2016
Loi canadienne sur la sante

TABLE ANAL YTIQUE
Canada Health
TABLE OF PROVISIONS
- - - - - - - - - - - - - - - - -
Surfacturation et frais moderateurs
Extra-billing and User Charges

18
Extra-billing
18
Surfacturation
19
User charges
19
Frais moderateurs
20
Deduction for extra-billing
20
Deduction en cas de surfacturation
When deduction made
21
21
Reglements
Regulations
22
22
Regulations
Report to Parliament
23
Rapport au Parlement
23
Annual report by Minister

Reglements
iv
Rapport annuel du ministre
Ajour au 15 aout 2016

R.S.C., 1985, c. C-6
L.R.C., 1985, ch. C-6
An Act relating to cash contributions by

Canada and relating to criteria and
conditions in respect of insured health
services and extended health care services
Loi concernant les contributions pecuniaires

du Canada ainsi que les principes et
conditions applicables aux services de sante
assures et aux services complementaires de
sante
Preamble
Preambule
WHEREAS the Parliament of Canada recognizes:
Considerant que le Parlement du Canada reconnalt:
-that it is not the intention of the Government of

Canada that any of the powers, rights, privileges or
authorities vested in Canada or the provinces under
the provisions of the Constitution Act, 1867, or any
amendments thereto, or otherwise, be by reason of
this Act abrogated or derogated from or in any way
impaired;
que le gouvernement du Canada n'entend pas par la

presente loi abroger les pouvoirs, droits, privileges
au autorites devolus au Canada au aux provinces
sous le regime de la Loi constitutionnelle de 1867 et
de SeS modifications OU a tout autre titre, ni leur deroger au porter atteinte,
-that Canadians, through their system of insured

health services, have made outstanding progress in
treating sickness and alleviating the consequences of
disease and disability among all income groups;
que les Canadiens ant fa it des progres remarquables,

grace
leur systeme de services de sante assures,
dans le traitement des maladies et le soulagement
des affections et deficiences parmi toutes les categories socio-economiques,
-that Canadians can achieve further improvements

in their well-being through combining individual
lifestyles that emphasize fitness, prevention of disease and health promotion with collective action
against the social, environmental and occupational
causes of disease, and that they desire a system of
health services that will promote physical and mental
health and protection against disease;
que les Canadiens peuvent encore ameliorer leur

bien-etre en joignant a un mode de vie individuel axe
sur la condition physique, la prevention des maladies
et la promotion de la sante, une action collective
contre les causes sociales, environnementales ou industrielles des maladies et qu'ils desirent un systeme
de services de sante qui favorise la sante physique et
mentale et la protection contre les maladies,
-that future improvements in health will require the

cooperative partnership of governments, health professionals, voluntary organizations and individual
Canadians;
que les ameliorations futures dans le domaine de la

sante necessiteront la cooperation des gouvernements, des professionnels de la sante, des organismes benevoles et des citoyens canadiens,
-that continued access to quality health care without

financial or other barriers will be critical to maintaining and improving the health and well-being of Canadians;
que l'acces continu a des soins de sante de qualite,

sans obstacle financier ou autre, sera determinant
pour la conservation et !'amelioration de la sante et
du bien-etre des Canadiens;
AND WHEREAS the Parliament of Canada wishes to

encourage the development of health services
considerant en outre que le Parlement du Canada

souhaite favoriser le developpement des services de

La st am ended on June 29, 2012
Ajour au
15 aout 2016
Derni6re modification le 29 juin 2012
Canada Health
Sante
Short Title
Sections 1-2
Titre abrege
throughout Canada by assisting the provinces in

meeting the costs thereof;
sante dans tout le pays en aidant les provinces

supporter le cout,
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Sa Majeste, sur l'avis et avec le consentement du Senat et de la Chambre des communes du Canada,
edicte:
Short Title
Titre abrege
Short title
Titre abrege
Articles 1-2
1 This Act may be cited as the Canada Health Act.
1 Loi canadienne sur la sante.
1984, c. 6, s. 1.
1984, ch. 6, art. 1.
Interpretation
Definitions
Definitions
Definitions
2 In this Act,
2 Les definitions qui suivent s'appliquent

loi.
Act of 1977 [Repealed, 1995, c. 17, s. 34]
a en
a la presente
assure Habitant d'une province, aI' exception:
cash contribution means the cash contribution in re-
spect of the Canada Health Transfer that may be provided to a province under sections 24.2 and 24.21 of the Federal-Provincial Fiscal Arrangements Act; (contribution
pecuniaire)
contribution [Repealed, 1995, c. 17, s. 34]
dentist means a person lawfully entitled to practise dentistry in the place in which the practice is carried on by
that person; (dentiste)
extended health care services means the following services, as more particularly defined in the regulations,
provided for residents of a province, namely,
(a)
nursing home intermediate care service,
(b)
adult residential care service,
(c)
home care service, and
a)
des membres des Forces canadiennes;
b)
[Abroge, 2012, ch. 19, art. 377]
des personnes purgeant une peine d'emprisonnement dans un penitencier, au sens de la Partie I de la
Loi sur le systeme correctionnel et la mise en liberte
sous condition;
c)
d) des habitants de la province qui s'y trouvent depuis

une periode de temps inferieure au delai minimal de
residence ou de carence d'au plus trois mois impose
aux habitants par la province pour qu'ils soient admissibles ou aient droit aux services de sante assures. (insured person)
contribution [Abrogee, 1995, ch. 17, art. 34]
ambulatory health care service; (services complementaires de sante)
(d)
extra-billing means the billing for an insured health service rendered to an insured person by a medical practitioner or a dentist in an amount in addition to any
amount paid or to be paid for that service by the health
care insurance plan of a province; (surfacturation)
health care insurance plan means, in relation to a
province, a plan or plans established by the law of the
province to provide for insured health services; (regime
d'assurance-sante)
Curre nt to August 15, 2016

La st amended on June 29, 2012
contribution pecuniaire La contribution au titre du

Transfert canadien en matiere de sante qui peut etre versee a une province au titre des articles 24.2 et 24.21 de la
Loi sur les arrangements fiscaux entre le gouvernement
federal et les provinces. (cash contribution)
dentiste Personne legalement autorisee a exercer la medecine dentaire au lieu ou elle se livre a cet exercice.
(dentist)
frais moderateurs Frais d'un service de sante assure autorises OU permis par Un regime provincial d'assurancesante mais non payables, soit directement soit indirectement, au titre d'un regime provincial d'assurance-sante,
A iour au
15 aout 2016
Canada Health
Sante
Interpretation
Definitions
Section 2
Article 2
- - -- ------------- ----- -- ---
a l'exception des frais imposes par surfacturation. (user
health care practitioner means a person lawfully entitled under the law of a province to provide health services in the place in which the services are provided by
that person; (professionnel de la sante)
charge)
habitant Personne domiciliee et residant habituellement

dans une province et legalement autorisee a etre OU a rester au Canada, a !'exception d'une personne faisant du
tourisme, de passage ou en visite dans la province. (resi-
hospital includes any facility or portion thereof that provides hospital care, including acute, rehabilitative or
chronic care, but does not include
dent)
(a) a hospital or institution primarily for the mentally

disordered, or
hopital Sont compris parmi les hopitaux tout ou partie

des etablissements OU sont fournis des soins hospitaliers,
notamment aux personnes souffrant de maladie aigue ou
chronique ainsi qu'en matiere de readaptation, a !'exception:
(b) a facility or portion thereof that provides nursing

home intermediate care service or adult residential
care service, or comparable services for children; (h6-
pital)
des hopitaux ou institutions destines principalement aux personnes souffrant de troubles mentaux;
a)
hospital services means any of the following services

provided to in-patients or out-patients at a hospital, if
the services are medically necessary for the purpose of
maintaining health, preventing disease or diagnosing or
treating an injury, illness or disability, namely,
b) de tout OU partie des etablissements OU sont fournis des soins intermediaires en maison de repos ou
des soins en etablissement pour adultes OU des soins
comparables pour les enfants. (hospital)
(a) accommodation and meals at the standard or public ward level and preferred accommodation if medically required,
(b)
- - - - --
loi de 1977[Abrogee, 1995, ch. 17, art. 34]

medecin Personne legalement autorisee a exercer la medecine au lieu ou elle se livre a cet exercice. (medical
nursing service,
practitioner)
(c) laboratory, radiological and other diagnostic procedures, together with the necessary interpretations,
ministre Le ministre de la Sante. (Minister)
drugs, biologicals and related preparations when

administered in the hospital,
professionnel de la sante Personne legalement autorisee en vertu de la loi d'une province a fournir des services
de sante au lieu ou elle les fournit. (health care practi-
(d)
tioner)
use of operating room, case room and anaesthetic

facilities, including necessary equipment and supplies,
(e)
regime d'assurance-sante Le regime OU les regimes

constitues par la loi d'une province en vue de la prestation de services de sante assures. (health care insurance
(f)
medical and surgical equipment and supplies,
(g)
use of radiotherapy facilities,
plan)
(h)
use of physiotherapy facilities, and
services complementaires de sante Les services definis dans les reglements et offerts aux habitants d'une
province, a savoir :
(i) services provided by persons who receive remuneration therefor from the hospital,
but does not include services that are excluded by the

regulations; (services hospitaliers)
insured health services means hospital services, physician services and surgical-dental services provided to insured persons, but does not include any health services
that a person is entitled to and eligible for under any other Act of Parliament or under any Act of the legislature of
a province that relates to workers' or workmen's compensation; (services de sante assures)

a)
les soins intermediaires en maison de repos;
b)
les soins en etablissement pour adultes;
c)
les soins a domicile;
d)
les soins ambulatoires. (extended health care ser-
vices)
services de chirurgie dentaire Actes de chirurgie dentaire necessaires Sur le plan medical OU dentaire, accomplis par un dentiste dans un hopital, et qui ne peuvent
Ajour au
15 aoGt 2016
re
Interpretation
San
Definitions
Section 2
Article 2
insured person means, in relation to a province, a resident of the province other than
etre accomplis convenablement qu'en un tel etablissement. (surgical-dental services)
Canada Health
(a)
a member of the Canadian Forces,
(b)
[Repealed, 2012, c. 19, s. 377]
services de sante assures Services hospitaliers, medicaux OU de chirurgie dentaire fournis aux assures, a }'exception des services de sante auxquels une personne a
droit ou est admissible en vertu d'une autre loi federale
ou d'une loi provinciale relative aux accidents du travail.
(c) a person serving a term of imprisonment in a penitentiary as defined in the Penitentiary Act, or
(insured health services)
(d) a resident of the province who has not completed

such minimum period of residence or waiting period,
not exceeding three months, as may be required by the
province for eligibility for or entitlement to insured
health services; (assure)
services hospitaliers Services fournis dans un hopital

aux malades hospitalises ou externes, si ces services sont
medicalement necessaires pour le maintien de la sante, la
prevention des maladies ou le diagnostic ou le traitement
des blessures, maladies OU invalidites, asavoir :
medical practitioner means a person lawfully entitled to

practise medicine in the place in which the practice is
carried on by that person; (medecin)
a) l'hebergement et la fourniture des repas en salle

commune OU, si medicalement necessaire, en ch,ambre
privee ou semi-privee;
Minister means the Minister of Health; (ministre)
b)
physician services means any medically required services rendered by medical practitioners; (services medi-
c) les actes de laboratoires, de radiologie ou autres

actes de diagnostic, ainsi que les interpretations necessaires;
caux)
resident means, in relation to a province, a person lawfully entitled to be or to remain in Canada who makes his
home and is ordinarily present in the province, but does
not include a tourist, a transient or a visitor to the
province; (habitant)
les services infirmiers;
d) les produits pharmaceutiques, substances biologiques et preparations connexes administres a l'hopital;

e) l'usage des salles d'operation, des salles d'accouchement et des installations d'anesthesie, ainsi que le
materiel et les fournitures necessaires;
surgical-dental services means any medically or dentally required surgical-dental procedures performed by a
dentist in a hospital, where a hospital is required for the
proper performance of the procedures; (services de chi-
f) le materiel et les fournitures medicaux et chirurgicaux;
rurgie dentaire)
user charge means any charge for an insured health ser-
vice that is authorized or permitted by a provincial health

care insurance plan that is not payable, directly or indirectly, by a provincial health care insurance plan, but
does not include any charge imposed by extra-billing.
g)
l'usage des installations de radiotherapie;
h)
l'usage des installations de physiotherapie;
i) les services fournis par les personnes remunerees

cet effet par l'hOpitaL
(frais moderateurs)
Ne sont pas compris parmi les services hospitaliers les

services exclus par les reglements. (hospital services)
R.S., 1985, c. C-6, s. 2; 1992, c. 20, s. 216(F); 1995, c. 17, s. 34; 1996, c. 8, s. 32; 1999, c.
26, S. 11 ; 20 12, C. 19, SS. 377, 407.
services medicaux Services medicalement necessaires

fournis par un medecin. (physician services)
surfacturation Facturation de la prestation a un assure
par un medecin ou un dentiste d'un service de sante assure, en excedent par rapport au montant paye OU a
payer pour la prestation de ce service au titre du regime
provincial d'assurance-sante. (extra-billing)
L.R. (1985), ch. C-6, art. 2; 1992, ch. 20, a rt. 216(F); 1995, c h. 17, art. 34; 1996, ch. 8, art.
32; 1999, ch. 26, art. 11; 2012, ch . 19, art. 377 et 407.

Ajour a u
15 aout 2016
Canada Health
Sections 3-7
Sante
Articles 3-7
Politique canadienne de la sante
Politique ca nadienne de la sa nte
Primary objective of Canadian health care policy
Objectif premier
3 It is hereby declared that the primary objective of
3 La politique canadienne de la sante a pour premier ob-
Canadian health care policy is to protect, promote and

restore the physical and mental well-being of residents of
Canada and to facilitate reasonable access to health services without financial or other barriers.
jectif de proteger, de favoriser et d'ameliorer le bien-etre

physique et mental des habitants du Canada et de faciliter un acces satisfaisant aux services de sante, sans obstacles d'ordre financier ou autre.
1984, c. 6, s. 3.
1984, ch. 6, art. 3.
Purpose
Raison d'etre
Purpose of this Act
Raison d'etre de la presente loi
4 The purpose of this Act is to establish criteria and con-
4 La presente loi a pour raison d'etre d'etablir les condi-
ditions in respect of insured health services and extended

health care services provided under provincial law that
must be met before a full cash contribution may be made.
tions d'octroi et de versement d'une pleine contribution

pecuniaire pour les services de sante assures et les services complementaires de sante fournis en vertu de la loi
d'une province.
R.S., 1985, c. C-6, s. 4; 1995, c. 17, s. 35.
L.R . (1985). ch. C-6, art. 4; 1995, ch . 17, art. 35.
Cash Contribution
Cash contribution
5 Subject to this Act, as part of the Canada Health

Transfer, a full cash contribution is payable by Canada to
each province for each fiscal year.
5 Sous reserve des autres dispositions de la presente loi,

le Canada verse a chaque province, pour chaque exercice,
une pleine contribution pecuniaire a titre d'element du
Transfert canadien en matiere de sante (ci-apres,
Transfert ).
R.S ., 1985, c. C-6, s. 5; 1995, c. 17, s. 36; 2012, c. 19, s. 408.
L.R . (1985). ch. C-6, art. 5; 1995, ch. 17, art. 36; 2012, ch. 19, art. 408.
6 [Repealed, 1995, c. 17, s. 36]
6 [Abroge, 1995, ch. 17, art. 36]
Program Criteria
Conditions d' octroi
Program criteria
Regle generale
7 In order that a province may qualify for a full cash

contribution referred to in section 5 for a fiscal year, the
health care insurance plan of the province must,
throughout the fiscal year, satisfy the criteria described
in sections 8 to 12 respecting the following matters:
7 Le versement a une province, pour un exercice, de la
pleine contribution pecuniaire visee a !'article 5 est assujetti a !'obligation pour le regime d'assurance-sante de
satisfaire, pendant tout cet exercice, aux conditions d'octroi enumerees aux articles 8 a 12 quanta:
(a)
public administration;
a)
la gestion publique;
(b)
comprehensiveness;
b)
l'integralite;
(c)
universality;
c) l'universalite;
(d)
portability; and
d)
la transferabilite;
(e)
accessibility.
e)
l'accessibilite.
1984, ch. 6, art. 7.
1984, c. 6, s. 7.

Last am e nd ed on June 29, 2012
A jour au
15 aout 2016
Sante
Canada Health
Program Criteria
Conditions d'octroi
Sections 8-10
Articles 8-10
Gestion publique
8 (1) In order to satisfy the criterion respecting public

administration,
8 (1)
La condition de gestion publique suppose que :
a) le regime provincial d'assurance-sante soit gere

sans but lucratif par une autorite publique nommee ou
designee par le gouvernement de la province;
the health care insurance plan of a province must

be administered and operated on a non-profit basis by
a public authority appointed or designated by the government of the province;
(a)
b) l'autorite publique soit responsable devant le gouvernement provincial de cette gestion;
(b) the public authority must be responsible to the

provincial government for that administration and operation; and
c) l'autorite publique soit assujettie a la verification

de ses comptes et de ses operations financieres par
l'autorite chargee par la loi de la verification des
comptes de la province.
(c) the public authority must be subject to audit of its

accounts and financial transactions by such authority
as is charged by law with the audit of the accounts of
the province.
Designation of agency permitted
Designation d'un mandataire
The criterion respecting public administration is not

contravened by reason only that the public authority referred to in subsection (I) has the power to designate any
agency
(2) La
condition de gestion publique n'est pas enfreinte

du seul fait que l'autorite publique visee au paragraphe
(I) a le pouvoir de designer un mandataire charge :
(2)
a) soit de recevoir en son nom les montants payables

au titre du regime provincial d'assurance-sante;
to receive on its behalf any amounts payable under

the provincial health care insurance plan; or
(a)
b) soit d'exercer en son nom les attributions liees ala

reception OU au reglement des comptes remis pour
prestation de services de sante assures si la designation est assujettie a la verification et a !'approbation
par l'autorite publique des comptes ainsi remis et a la
determination par celle-ci des montants a payer a cet
egard.
to carry out on its behalf any responsibility in connection with the receipt or payment of accounts rendered for insured health services, if it is a condition of
the designation that all those accounts are subject to
assessment and approval by the public authority and
that the public authority shall determine the amounts
to be paid in respect thereof.
(b)
1984, ch. 6, art. 8.
1984, c. 6, s. 8.
Comprehensiveness
lntegralite
9 In order to satisfy the criterion respecting comprehensiveness, the health care insurance plan of a province
must insure all insured health services provided by hospitals, medical practitioners or dentists, and where the
law of the province so permits, similar or additional services rendered by other health care practitioners.
9 La condition d'integralite suppose qu'au titre du regime provincial d'assurance-sante, tous les services de
sante assures fournis par les hopitaux, les medecins OU
les dentistes soient assures, et lorsque la loi de la province le permet, les services semblables ou additionnels
fournis par les autres professionnels de la sante.
1984, c. 6, s. 9.
1984, ch. 6, art. 9.
Universality
Universalite
10 In order to satisfy the criterion respecting universali-
10 La condition d'universalite suppose qu'au titre du regime provincial d'assurance-sante, cent pour cent des assures de la province ait droit aux services de sante assures prevus par celui-ci, selon des modalites uniformes.
ty, the health care insurance plan of a province must entitle one hundred per cent of the insured persons of the
province to the insured health services provided for by
the plan on uniform terms and conditions.
1984, ch. 6, art. 10.
1984, c. 6, s . 10.

A jour au
15 aoGt 2016
Canada Health
Program Crite ria
Conditions d'octroi
Section 11
Article 11
Portability
Transferabilite
11 (1) In order to satisfy the criterion respecting portability, the health care insurance plan of a province
11 (1) La condition de transferabilite suppose que le regime provincial d'assurance-sante:
(a) must not impose any minimum period of residence in the province, or waiting period, in excess of
three months before residents of the province are eligible for or entitled to insured health services;
a) n'impose pas de delai minimal de residence OU de

carence superieur atrois mois aux habitants de la province pour qu'ils soient admissibles ou aient droit aux
services de sante assures;
must provide for and be administered and operated so as to provide for the payment of amounts for the
cost of insured health services provided to insured
persons while temporarily absent from the province
on the basis that
b) prevoie et que ses modalites d'application assurent

le paiement des montants pour le cofit des services de
sante assures fournis a des assures temporairement
absents de la province :
Sante
(b)
(i) si ces services sont fournis au Canada, selon le

taux approuve par le regime d'assurance-sante de la
province ou ils sont fournis, sauf accord de repartition differente du cofit entre les provinces concernees,
where the insured health services are provided

in Canada, payment for health services is at the rate
that is approved by the health care insurance plan
of the province in which the services are provided,
unless the provinces concerned agree to apportion
the cost between them in a different manner, or
(i)
(ii) s'il sont fournis a l'etranger, selon le montant

qu'aurait verse la province pour des services semblables fournis dans la province, compte tenu, s'il
s'agit de services hospitaliers, de !'importance de
l'hOpital, de la qualite des services et des autres facteurs utiles;
(ii) where the insured health services are provided

out of Canada, payment is made on the basis of the
amount that would have been paid by the province
for similar services rendered in the province, with
due regard, in the case of hospital services, to the
size of the hospital, standards of service and other
relevant factors; and
c) prevoie et que ses modalites d'application assurent

la prise en charge, pendant le delai minimal de residence OU de carence impose par le regime d'aSSUrance-sante d'une autre province, du cofit des services
de sante assures fournis aux personnes qui ne sont
plus assurees du fait qu'elles habitent cette province,
dans les memes conditions que si elles habitaient encore leur province d'origine.
must provide for and be administered and operated so as to provide for the payment, during any minimum period of residence, or any waiting period, imposed by the health care insurance plan of another
province, of the cost of insured health services provided to persons who have ceased to be insured persons
by reason of having become residents of that other
province, on the same basis as though they had not
ceased to be residents of the province.
(c)
Requirement for consent for elective insured health

services permitted
Consentement prealable a la prestation des services

de sante assures facultatifs
(2) The criterion respecting portability is not contravened by a requirement of a provincial health care insurance plan that the prior consent of the public authority
that administers and operates the plan must be obtained
for elective insured health services provided to a resident
of the province while temporarily absent from the
province if the services in question were available on a
substantially similar basis in the province.
(2) La condition de transferabilite n'est pas enfreinte du

fait qu'il faut, aux termes du regime d'assurance-sante
d'une province, le consentement prealable de l'autorite
publique qui le gere pour la prestation de services de sante assures facultatifs a un habitant temporairement absent de la province, si ces services y sont offerts selon des
modalites sensiblement comparables.
Definition of "elective insured health services"
Definition de services de sante assures facultatifs
For the purpose of subsection (2), elective insured

health services means insured health services other
than services that are provided in an emergency or in any
(3)
(3)
Pour !'application du paragraphe (2), services de

sante assures facultatifs s'entend des services de sante
assures,
a !'exception de ceux qui sont fournis d'urgence

---- - - - - -- -

A jour au 1s aout 2016
Canada Health
Sections 11-12
Sante
Conditions d'octroi
Articles 11-12
other circumstance in which medical care is required

without delay.
OU dans d'autres circonstances

sont requis sans delai.
1984, c. 6, s.11.
1984, ch. 6, art. 11.
Accessibility
Accessibilite
12 (1) In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province
12 (1) La condition d'accessibilite suppose que le regime provincial d'assurance-sante:
(a) must provide for insured health services on uniform terms and conditions and on a basis that does
not impede or preclude, either directly or indirectly
whether by charges made to insured persons or otherwise, reasonable access to those services by insured
persons;
offre les services de sante assures selon des modalites uniformes et ne fasse pas obstacle, directement ou
indirectement, et notamment par facturation aux assures, a un acces satisfaisant par eux a ces services;
Program Criteria
OU
des soins medicaux
a)
b) prevoie la prise en charge des services de sante assures selon un tarif ou autre mode de paiement autorise par la loi de la province;
(b) must provide for payment for insured health services in accordance with a tariff or system of payment
authorized by the law of the province;
c) prevoie une remuneration raisonnable de tous les

services de sante assures fournis par les medecins OU
les dentistes;
(c) must provide for reasonable compensation for all

insured health services rendered by medical practitioners or dentists; and
prevoie le versement de montants aux hopitaux, y

compris les hopitaux que possede OU gere le Canada, a
l'egard du cout des services de sante assures.
d)
(d) must provide for the payment of amounts to hospitals, including hospitals owned or operated by Canada, in respect of the cost of insured health services.
Reasonable compensation
Remuneration raisonnable
In respect of any province in which extra-billing is

not permitted, paragraph (l)(c) shall be deemed to be
complied with if the province has chosen to enter into,
and has entered into, an agreement with the medical
practitioners and dentists of the province that provides
(2) Pour toute province ou la surfacturation n'est pas

permise, il est repute etre satisfait a l'alinea (l)c) si la
province a choisi de conclure un accord et a effectivement conclu un accord avec ses medecins et dentistes
prevoyant:
(a) for negotiations relating to compensation for insured health services between the province and
provincial organizations that represent practising
medical practitioners or dentists in the province;
la tenue de negociations sur la remuneration des

services de sante assures entre la province et les organisations provinciales representant les medecins OU
dentistes qui exercent dans la province;
(b) for the settlement of disputes relating to compensation through, at the option of the appropriate
provincial organizations referred to in paragraph (a),
conciliation or binding arbitration by a panel that is
equally representative of the provincial organizations
and the province and that has an independent chairman; and
b) le reglement des differends concernant la remuneration par, au choix des organisations provinciales
competentes visees a l'alinea a), soit la conciliation
soit !'arbitrage obligatoire par un groupe representant
egalement les organisations provinciales et la province
et ayant un president independant;
(2)
a)
c) l'impossibilite de modifier la decision du groupe vise a l'alinea b), saufpar une loi de la province.
that a decision of a panel referred to in paragraph

(b) may not be altered except by an Act of the legislature of the province.
(c)
1984, ch. 6, art. 12.
1984, c. 6, s. 12.
- -- - - - - - - - --

--
Ajour au
15 aout 2016
DerniBre modification le 29 juin 2012
Canada Health
Sante
Conditions for Ca sh Contribution
Contribution pecuniaire assujettie a des cond ition s
Sections 13-14
Articles 13-14
Conditions for Cash

Contribution
assujettie des conditions
Conditions
Obligations de la province

contribution referred to in section 5, the government of
the province
13 Le versement a une province de la pleine contribution pecuniaire visee a !'article 5 est assujetti a !'obligation pour le gouvernement de la province :
(a) shall, at the times and in the manner prescribed by

the regulations, provide the Minister with such information, of a type prescribed by the regulations, as the
Minister may reasonably require for the purposes of
this Act; and
a) de communiquer au ministre, selon les modalites

de temps et autres prevues par les reglements, les renseignements du genre prevu aux reglements, dont celui-ci peut normalement avoir besoin pour !'application de la presente loi;
(b) shall give recognition to the Canada Health Transfer in any public documents, or in any advertising or
promotional material, relating to insured health services and extended health care services in the
province_
b) de faire etat du Transfert dans tout document public ou toute publicite sur les services de sante assures
et les services complementaires de sante dans la province.
L.R. (1985), ch. C-6, art. 13; 1995, ch. 17, art. 37; 2012, ch. 19, art. 409(A).
R.S., 1985, c. C-6, s. 13; 1995, c. 17, s. 37; 2012, c. 19, s. 409(E) .
Defaults
Manquements
Referral to Governor in Council
Renvoi au gouverneur en conseil
14 (1) Subject to subsection (3), where the Minister, after consultation in accordance with subsection (2) with
the minister responsible for health care in a province, is
of the opinion that
14 (1) Sous reserve du paragraphe (3), dans le cas ou il

estime, apres avoir consulte conformement au paragraphe (2) son homologue charge de la sante dans une
province:
(a) the health care insurance plan of the province does

not or has ceased to satisfy any one of the criteria described in sections 8 to 12, or
a) soit que le regime d'assurance-sante de la province

ne satisfait pas ou plus aux conditions visees aux articles 8 a 12;
(b) the province has failed to comply with any condition set out in section 13,
b) soit que la province ne s'est pas conformee aux

conditions visees a !'article 13,
and the province has not given an undertaking satisfacto-
et que celle-ci ne s'est pas engagee de fa~on satisfaisante

a remedier a la situation dans un delai suffisant, le ministre renvoie l'affaire au gouverneur en conseil.
ry to the Minister to remedy the default within a period
that the Minister considers reasonable, the Minister shall

refer the matter to the Governor in Council.
Consultation process
Etapes de la consultation
Before referring a matter to the Governor in Council

under subsection (1) in respect of a province, the Minister shall
(2) Avant de renvoyer une affaire au gouverneur en

conseil conformement au paragraphe (I) relativement a
une province, le ministre :
(a) send by registered mail to the minister responsible

for health care in the province a notice of concern with
respect to any problem foreseen;
a) envoie par courrier recommande a son homologue

charge de la sante dans la province un avis sur tout
probleme eventuel;
(b) seek any additional information available from the

province with respect to the problem through bilateral
discussions, and make a report to the province within
ninety days after sending the notice of concern; and
b) tente d'obtenir de la province, par discussions bilaterales, tout renseignement additionnel disponible sur
le probleme et fait rapport a la province dans Jes
quatre-vingt-dixjours suivant l'envoi de l'avis;
(2)

- -- -- - - - -- - - - -- - -- - - - Ajour au
15 aoGt 2016
Canada Health
Defa ults
Sections 14-15
- - - --
Santa
Manquements
Articles 14-15
(c) if requested by the province, meet within a reasonable period of time to discuss the report.
si la province le lui demande, tient une reunion

dans un delai acceptable afin de discuter du rapport.
c)
Where no consultation can be achieved
lmpossibilite de consultation
(3) The Minister may act without consultation under

subsection (l) if the Minister is of the opinion that a sufficient time has expired after reasonable efforts to
achieve consultation and that consultation will not be
achieved.
(3) Le ministre peut proceder au renvoi prevu au paragraphe (1) sans consultation prealable s'il conclut a l'impossibilite d'obtenir cette consultation malgre des efforts
serieux deployes a cette fin au cours d'un delai convenable_
1984, c. 6. s. 14.
1984, c h. 6, art. 14.
Order reducing or withholding contribution
Decret de reduction
Where, on the referral of a matter under section

14, the Governor in Council is of the opinion that the
health care insurance plan of a province does not or has
ceased to satisfy any one of the criteria described in sections 8 to 12 or that a province has failed to comply with
any condition set out in section 13, the Governor in
Council may, by order,
1 5 ( 1) Si l' affaire lui est renvoyee en vertu de I' article 14

et qu'il estime que le regime d'assurance-sante de la province ne satisfait pas ou plus aux conditions visees aux
articles 8 a 12 OU que la province ne s'est pas conformee
aux conditions visees a J'article 13, le gouverneur en
conseil peut, par decret :
15 (1)
OU
de retenue
a) soit ordonner, pour chaque manquement, que la

contribution pecuniaire d'un exercice a la province
soit reduite du montant qu'il estime indique, compte
tenu de la gravite du manquement;
direct that any cash contribution to that province

for a fiscal year be reduced, in respect of each default,
by an amount that the Governor in Council considers
to be appropriate, having regard to the gravity of the
default; or
(a)
b) soit, s'il l'estime indique, ordonner la retenue de la

totalite de la contribution pecuniaire d'un exercice ala
province.
(b) where the Governor in Council considers it appropriate, direct that the whole of any cash contribution
to that province for a fiscal year be withheld.
Amending orders
Modification des decrets
(2)
The Governor in Council may, by order, repeal or

amend any order made under subsection (1) where the
Governor in Council is of the opinion that the repeal or
amendment is warranted in the circumstances_
(2) Le gouverneur en conseil peut, par decret, annuler ou

modifier un decret pris en vertu du paragraphe (1) s'il
l'estime justifie dans les circonstances.
Notice of order
Avis
(3)
A copy of each order made under this section together with a statement of any findings on which the order
was based shall be sent forthwith by registered mail to
the government of the province concerned and the Minister shall cause the order and statement to be laid before
each House of Parliament on any of the first fifteen days
on which that House is sitting after the order is made.
(3) Le texte de chaque decret pris en vertu du present article de meme qu'un expose des motifs sur lesquels il est
fonde sont envoyes sans delai par courrier recommande
au gouvernement de la province concernee; le ministre
fait deposer le texte du decret et celui de !'expose devant
chaque chambre du Parlement dans les quinze premiers
jours de seance de celle-ci suivant la prise du decret.
Commencement of order
Entree en vigueur du decret
(4) An
order made under subsection (1) shall not come

into force earlier than thirty days after a copy of the order
has been sent to the government of the province concerned under subsection (3).
(4) Un decret pris en vertu du paragraphe (l) ne peut entrer en vigueur que trente jours apres l'envoi au gouvernement de la province concernee du texte du decret aux
termes du paragraphe (3) _
R.S .. 1985. c. C-6, s. 15; 1995, c. 17, s . 38.
L.A. (1985). ch. C-6, art. 15; 1995, ch . 17, art. 38.

10
Ajour au
15 a out 2016
Sante
Canada Health
Defaults
Sections 16-20
Articles 16-20
Reimposition of reductions or withholdings
Nouvelle application des reductions OU retenues
16 In the case of a continuing failure to satisfy any of the

criteria described in sections 8 to 12 or to comply with
any condition set out in section 13, any reduction or withholding under section 15 of a cash contribution to a
province for a fiscal year shall be reimposed for each succeeding fiscal year as long as the Minister is satisfied, after consultation with the minister responsible for health
care in the province, that the default is continuing.
16 En cas de manquement continu aux conditions visees

aux articles 8 a 12 OU a!'article 13, les reductions OU retenues de la contribution pecuniaire a une province deja
appliquees pour un exercice en vertu de !'article 15 lui
sont appliquees de nouveau pour chaque exercice ulterieur ou le ministre estime, apres consultation de son homologue charge de la sante dans la province, que le manquement se continue.
R.S., 1985, c. C-6, s . 16; 1995. c. 17, s. 39.
L.R. (1985), ch. C-6, art. 16; 1995, ch. 17, art. 39.
When reduction or withholding imposed
17 Any reduction or withholding under section 15 or 16

of a cash contribution may be imposed in the fiscal year
in which the default that gave rise to the reduction or
withholding occurred or in the following fiscal year_
17 Toute reduction OU retenue d'une contribution pecuniaire visee aux articles 15 OU 16 peut etre appliquee pour
l'exercice OU le manquement a son origine a eu lieu OU
pour l'exercice suivant_
R.S., 1985, c. C-6, s . 17; 1995, c. 17, s. 39.
L.R. (1985). ch. C-6, art. 17; 1995, ch. 17, a rt. 39.
Surfacturation et frais
moderateurs
Extra-billing
Surfacturation
18 Une province n'a droit, pour un exercice, a la pleine

contribution pecuniaire visee a l'article 5 que si, aux
termes de son regime d'assurance-sante, elle ne permet
pas pour cet exercice le versement de montants a l'egard
des services de sante assures qui ont fait l'objet de surfacturation par les medecins OU les dentistes.
Manquements
contribution referred to in section 5 for a fiscal year, no

payments may be permitted by the province for that fiscal year under the health care insurance plan of the
province in respect of insured health services that have
been subject to extra-billing by medical practitioners or
dentists.
1984, ch. 5, art. 18.
1984, c. 6, s. 18.
User charges
Frais moderateurs
19 (1) In order that a province may qualify for a full

cash contribution referred to in section 5 for a fiscal year,
user charges must not be permitted by the province for
that fiscal year under the health care insurance plan of
the province.
19 (1) Une province n'a droit, pour un exercice, a la

pleine contribution pecuniaire visee a !'article 5 que si,
aux termes de son regime d'assurance-sante, elle ne permet pour cet exercice !'imposition d'aucuns frais moderateurs.
Limitation
Reserve
Subsection (I) does not apply in respect of user

charges for accommodation or meals provided to an inpatient who, in the opinion of the attending physician,
requires chronic care and is more or less permanently
resident in a hospital or other institution_
(2) Le paragraphe (l) ne s'applique pas aux frais moderateurs imposes pour l'hebergement ou les repas fournis
a une personne hospitalisee qui, de l'avis du medecin
traitant, souffre d'une maladie chronique et sejourne de
fac;on plus OU moins permanente a l'hopital OU dans une
autre institution.
(2)
1984, c. 6, s. 19 .
1984, ch. 6, art. 19.
Deduction for extra-billing
Deduction en cas de surfacturation
Where a province fails to comply with the condition set out in section 18, there shall be deducted from
the cash contribution to the province for a fiscal year an
amount that the Minister, on the basis of information
Dans le cas ou une province ne se conforme pas a

la condition visee a !'article 18, il est deduit de la contribution pecuniaire a cette derniere pour un exercice un
montant, determine par le ministre d'apres les
20 (1)
20 (1)

11
Ajour au
15 aout 2016
Santti
Canada Health
Surtacturation et frais moderateurs
Sections 20-21
Articles 20-21
provided in accordance with the regulations, determines

to have been charged through extra-billing by medical
practitioners or dentists in the province in that fiscal year
or, where information is not provided in accordance with
the regulations, an amount that the Minister estimates to
have been so charged_
renseignements fournis conformement aux reglements,

egal au total de la surfacturation effectuee par les medecins ou les dentistes dans la province pendant l'exercice
ou, si les renseignements n'ont pas ete fournis conformement aux reglements, un montant estime par le ministre
egal a ce total.
Deduction for user charges
Deduction en cas de frais moderateurs
(2) Where a province fails to comply with the condition

set out in section 19, there shall be deducted from the
cash contribution to the province for a fiscal year an
amount that the Minister, on the basis of information
provided in accordance with the regulations, determines
to have been charged in the province in respect of user
charges to which section 19 applies in that fiscal year or,
where information is not provided in accordance with the
regulations, an amount that the Minister estimates to
have been so charged_
(2) Dans le cas ou une province ne se conforme pas a la

condition visee a l'article 19, ii est deduit de la contribution pecuniaire a cette derniere pour un exercice un montant, determine par le ministre d'apres les renseignements fournis conformement aux reglements, egal au
total des frais moderateurs assujettis a l'article 19 imposes dans la province pendant l'exercice OU, si les renseignements n'ont pas ete fournis conformement aux reglements, un montant estime par le ministre egal a ce totaL
Consultation with province
Consultation de la province
(3) The Minister shall not estimate an amount under

subsection (1) or (2) without first undertaking to consult
the minister responsible for health care in the province
concerned_
(3) Avant d'estimer un montant vise au paragraphe (I)

ou (2), le ministre se charge de consulter son homologue
responsable de la sante clans la province concernee_
Separate accounting in Public Accounts
Comptabilisation
(4) Any amount deducted under subsection (I) or (2)

from a cash contribution in any of the three consecutive
fiscal years the first of which commences on April 1, 1984
shall be accounted for separately in respect of each
province in the Public Accounts for each of those fiscal
years in and after which the amount is deducted_
(4) Les montants deduits d'une contribution pecuniaire

en vertu des paragraphes (1) ou (2) pendant les trois
exercices consecutifs dont le premier commence le l er
avril 1984 sont comptabilises separement pour chaque
province dans les comptes publics pour chacun de ces
exercices pendant et apres lequel le montant a ete deduit.
Refund to province
Remboursement
(5) Where, in any of the three fiscal years referred to in

subsection (4), extra-billing or user charges have, in the
opinion of the Minister, been eliminated in a province,
the total amount deducted in respect of extra-billing or
user charges, as the case may be, shall be paid to the
province.
(5) Si, de l'avis du ministre, la surfacturation ou les frais

moderateurs ont ete supprimes dans une province pendant l'un des trois exercices vises au paragraphe (4), il est
verse a cette derniere le montant total deduit a l'egard de
la surfacturation ou des frais moderateurs, selon le cas.
Saving
Reserve
(6) Nothing in this section restricts the power of the

Governor in Council to make any order under section 15.
(6) Le present article n'a pas pour effet de limiter le pouvoir du gouverneur en conseil de prendre le decret prevu
aI'article 15.
1984. c. 6, s. 20 .
a la province
1984, ch. 6, art. 20.
When deduction made
21 Any deduction from a cash contribution under section 20 may be made in the fiscal year in which the mat-
21 Toute deduction d'une contribution pecuniaire visee

a l'a1ticle 20 peut etre appliquee pour l'exercice OU le fait
ter that gave rise to the deduction occurred or in the following two fiscal years.
a son origine a eu lieu ou pour les deux exercices suivants.
1984, c. 6, s. 21.
1984, ch. 6, art. 21.

12
Ajour au
15 aout 2016
Canada Health
Sante
Regulations
Reglements
Sections 22-23
Articles 22-23
Regulations
Reglements
Regulations
Reglements
22 (1) Subject to this section, the Governor in Council

may make regulations for the administration of this Act
and for carrying its purposes and provisions into effect,
including, without restricting the generality of the foregoing, regulations
22 (1) Sous reserve des autres dispositions du present
article, le gouverneur en conseil peut, par reglement,

prendre toute mesure d'application de la presente loi et,
notamment:
a) definir les services vises aux alineas a) ad) de la definition de services complementaires de sante a
I' article 2;
defining the services referred to in paragraphs (a)

to (d) of the definition "extended health care services"
in section 2;
(a)
b) determiner les services exclus des services hospitaliers;
prescribing the services excluded from hospital

services;
(b)
determiner les genres de renseignements dont peut

avoir besoin le ministre en vertu de l'alinea 13a) et
fixer les modalites de temps et autres de leur communication;
c)
prescribing the types of information that the Minister may require under paragraph 13(a) and the times
at which and the manner in which that information
shall be provided; and
(c)
d) prevoir la fac;on dont il doit etre fait etat du Transfert en vertu de l'alinea 13b).
prescribing the manner in which recognition to

the Canada Health Transfer is required to be given under paragraph 13(b).
(d)
Agreement of provinces
Consentement des provinces
(2)
Subject to subsection (3), no regulation may be made

under paragraph (l)(a) or (b) except with the agreement
of each of the provinces.
(2) Sous reserve du paragraphe (3), il ne peut etre pris de

reglements en vertu des alineas (l)a) OU b) qu'avec }'accord de chaque province.
Exception
Exception
(3) Subsection (2) does not apply in respect of regulations made under paragraph (l)(a) if they are substantially the same as regulations made under the FederalProvincial Fiscal Arrangements Act, as it read
immediately before April I, 1984.
(3) Le paragraphe (2) ne s'applique pas aux reglements

pris en vertu de l'alinea (l)a) s'ils sont sensiblement comparables aux reglements pris en vertu de la Loi sur les arrangements fiscaux entre le gouvernement federal et les
provinces, dans sa version precedant immediatement le
I er avril 1984.
Consultation with provinces
Consultation des provinces
(4)
No regulation may be made under paragraph (l)(c)

or (d) unless the Minister has first consulted with the
ministers responsible for health care in the provinces.
II ne peut etre pris de reglements en vertu des alineas

(l)c) ou d) que si le ministre a au prealable consulte ses
homologues charges de la sante dans les provinces.
R.S., 1985, c. C-6, s. 22; 1995, c. 17, s. 40; 2012, c. 19, s. 410(E).
L.R. (1985). ch. C-6, art. 22; 1995, ch. 17, art. 40; 2012, ch. 19, art. 410(A).
Rapport au Parlement
(4)
Annual report by Minister
Rapport annuel du ministre
23 The Minister shall, as soon as possible after the ter-
23 Au plus tard pour le 31 decembre de chaque annee, le
mination of each fiscal year and in any event not later

than December 31 of the next fiscal year, make a report
respecting the administration and operation of this Act
for that fiscal year, including all relevant information on
the extent to which provincial health care insurance
ministre etablit dans les meilleurs delais un rapport sur

!'application de la presente loi au cours du precedent
exercice, en y incluant notamment tous les renseignements pertinents sur la mesure dans laquelle les regimes
provinciaux d'assurance-sante et les provinces ont

13
A jour au 15 aout 2016

Santti
Canada Health
Rapport au Pa rlement
Section 23
Article 23
plans have satisfied the criteria, and the extent to which

the provinces have satisfied the conditions, for payment
under this Act and shall cause the report to be laid before
each House of Parliament on any of the first fifteen days
on which that House is sitting after the report is completed.
satisfait aux conditions d'octroi et de versement prevues
a la presente loi; le ministre fait deposer le rapport de-
vant chaque chambre du Parlement clans les quinze premiers jours de seance de celle-ci suivant son achevement.
1984, ch. 6, art. 23.
1984, c. 6, s. 23.

La st amended on June 29, 2012
14
Ajour au
15 aout 2015
APPENDIX "B"
8/26/2016
Part 3 - Practitioners
13 Enrolment of practitioners
13.1 Repealed
14 Election
14.1 No referrals for laboratory services if no benefit rendered
15 Order in respect of practitioner
16 Referral of complaint
Part 4 - Limits on Billing
17 General limits on direct or extra billing
18 Limits on direct or extra billing by a medical practitioner
19 Notice requirement
20 Refunds required
20.1 Persons acting for beneficiaries
21 Civil action
22 Agreements
Part
s-
Payments
23 Definitions for Part 5

24 Limitations on payments
25 Available amount
26 Payment schedules and benefit plans
27 Submission, assessment and payment of claims
28 Non- res ident benefits
29 Payment fo r services outs ide British Columbia
30 Recovery of money
31 Critical care services
32 Obligation to remit
Part 6 - Diagnostic Facilities
33 Approval of diagnostic facility
34 Obligation of practitioner
35 Conflict of interest
Part 7 - Audit and Inspection
36 Audit and inspection -
practitioners and employers
37 Orders of the commission

38 Settlement of cla ims ascertained under section 37
39 Filing of order
40 Audit and inspection -
diagnostic facilities
Part 8 - Appeals
41 - Repealed
42
43 Appeals -
practitioners and diagnostic facilities
44 Repealed
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Part 9 - General Provisions

45 Private insurers
45 .1 Injunctions
46 Offences
47 Offence Act
47.1 Duty to report
48 Protection against action
49 Duty to keep information confidential
50 Delivery of documents
50 .1 Laboratory facilities
51 Power to make regulations
Preamble
WHEREAS the people and government of British Columbia believe that medicare is
one of the defining features of Canadian nationhood and are committed to its
preservation for future generations;
WHEREAS the people and government of British Columbia wish to confirm and
entrench universality, comprehensiveness, accessibility, portability, public
administration and sustainability as the guiding principles of the health care system
of British Columbia and are committed to the preservation of these principles in
perpetuity;
WHEREAS the people and government of British Columbia are committed to building
a public health care system that is founded on the values of individual choice,
personal responsibility, innovation, transparency and accountability;
WHEREAS the people and government of British Columbia are committed to
developing an efficient, effective and integrated health care system aimed at
promoting and improving the health of all citizens and providing high quality patient
care that is medically appropriate and that ensures reasonable access to medically
necessary services consistent with the Canada Health Act;
WHEREAS the people and government of British Columbia wish to ensure that all
publicly funded health care services are responsive to patients' needs and designed
to foster improvements in individual and public health outcomes and ongoing valuefor-money for all taxpayers;
WHEREAS the people and government of British Columbia recognize a responsibility
for the judicious use of medical services in order to maintain a fiscally sustainable
health care system for future generations;
AND WHEREAS the people and government of British Columbia believe it to be
fundamental that an individual's access to necessary medical care be solely based
on need and not on the individual's ability to pay.
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Definitions
1 In this Act:
"adult" means a person 19 years of age or older;

"appropriate disciplinary body" means the person or body that
may cancel or suspend the right to practise under
(a) an enactment, as a chiropractor, a dentist, a medical
practitioner, an optometrist or a podiatrist in British Columbia,
or
(b) the governing Act, bylaws or rules for a member of the
health care profession or occupation prescribed for the
purposes of paragraph (b) of the definition of "health care
practitioner";
"appropriate licensing body" means the person or body having

the power to grant the right to practise as a practitioner under
(a) an enactment, as a chiropractor, a dentist, a medical
practitioner, an optometrist or a podiatrist in British Columbia,
or
(b) the governing Act, bylaws or rules for a member of the
health care profession or occupation prescribed for the
purposes of paragraph (b) of the definition of "health care
practitioner";
"approved diagnostic facility" means a diagnostic facility

a pp roved under section 33;
"beneficiary" means a resident who is enrolled in accordance with
section 7.2, and includes the resident's child if the child is enrolled
under section 7 .2;
"benefits" means
(a) medically required services rendered by a medical
practitioner who is enrolled under section 13, unless the
services are determined under section 5 by the commission
not to be benefits,
(b) required services prescribed as benefits under section 51
and rendered by a health care practitioner who is enrolled
under section 13, or
( c) unless determined by the commission under section 5 not
to be benefits, medically required services performed
(i) in an approved diagnostic facility, and
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(ii) by or under the supervision of an enrolled medical

practitioner who is acting
(A) on request of a person in a prescribed category
of persons, or
(B) in accordance with protocols approved by the
commission;
"chair", other than with reference to a special committee, means

the individual who is appointed under section 3 to chair the
commission;
"child" means a person who
(a) is a child of a beneficiary or a person in respect of whom a
beneficiary stands in the place of a parent and who
(i) is a minor,
(ii) [Repealed 2011-13-lOS(c).]
(b) does not have a spouse, and
( c) is supported by the beneficiary;
"commission" means the Medical Services Commission continued

under section 3;
"diagnostic facility" means a facility, place or office principally
equipped for prescribed diagnostic services, studies or procedures,
and includes any branches of a diagnostic facility;
"enrol " means.
(.g_) in respect of a beneficiary. enrolment under section 7.2.
Ql1Q
(.Q) in respect of a practitioner. enrolment under section 13:
"former Act" means the Medical Service Act, R.S.B.C. 1979, c. 255;
"health care practitioner" means a person entitled to practise as
(a) a chiropractor, a dentist, an optometrist or a podiatrist in
British Columbia under an enactment, or
(b) a member of a health care profession or occupation that
may be prescribed;
"payment schedule" means a payment schedule established under

section 26;
"plan" means the Medical Services Plan continued under section 3;
"practitioner" means
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(a) a medical practitioner, or

(b) a health care practitioner
who is enrolled under section 13;
"premium" means an amount prescribed under section 8;
"render" means perform personally by or under the personal
supervision of the person to whom reference is being made and
"personal supervision" in this context means
(a) in the case of a practitioner, personal supervision
authorized by the commission in the circumstances, and
(b) in the case of a medical practitioner or health care
practitioner who is not enrolled, personal supervision
acceptable to the appropriate disciplinary body for the medical
practitioner or health care practitioner;
"resident" means a person who
(a) is a citizen of Canada or is lawfully admitted to Canada for
permanent residence,
(b) makes his or her home in British Columbia, and
( c) is physically present in British Columbia for
(i) at least 6 months in a calendar year, or
(ii) a shorter prescribed period,
and includes a person who is deemed under the regulations to be a
resident but does not include a tourist or visitor to British Columbia;
"special committee" means a special committee established under
section 4;
"spouse" means a resident who
(a) is married to another person, or
(b) is living with another person in a marriage-like
relationship.
Purpose
2 The purpose of this Act is to preserve a publicly managed and fiscally

sustainable health care system for British Columbia in which access to
necessary medical care is based on need and not an individual's ability
to pay.
Application to laboratory services
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2 . 1 This Act does not apply to laboratory services that are benefits within
the meaning of the Laboratory Services Act.
Part 1 - Medical Services Commission

Commission and Medical Services Plan
3 ( 1) The Medical Services Commission is continued consisting of 9

members appointed by the Lieutenant Governor in Council as follows:
(a) 3 members appointed from among 3 or more persons
nominated by the British Columbia Medical Association;
(b) 3 members appointed on the joint recommendation of the
minister and the British Columbia Medical Association to
represent beneficiaries;
( c) 3 members appointed to represent the government.
(2) The commission reports to the minister.
(3) The Medical Services Plan established under the former Act is
continued and the function of the commission is to facilitate, in the
manner provided for in this Act, reasonable access, throughout British
Columbia, to quality medical care, health care and prescribed diagnostic
services for residents of British Columbia under the Medical Services
Plan.
( 4) The Lieutenant Governor in Council must designate a member of the
commission appointed under subsection (1) (c) as its chair and may
designate another member of the commission as its deputy chair.
(5) The chair of the commission must call a meeting at least once every
2 months and, by giving written notice to the chair, 3 or more members
of the commission can require the chair to call a meeting.
(6) In the event that a member of the commission is absent for more
than 3 consecutive meetings of the commission, the member ceases to
be a member of the commission.
(7) Despite subsection (6) the commission may waive this requirement
with the agreement of a majority of the commission.
(8) Each member of the commission has one vote.
(9) Decisions of the commission are on the agreement of the majority of
members present at a meeting .
( 10) If the commission is not meeting, the chair may exercise a power,
duty and function that the commission may exercise unless the
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commission has directed that the chair is not to exercise the power, duty
or function.
(11) The commission may sue or be sued in its own name or in the name
of the government in any civil action respecting the commission or a
special committee, but any proceeding by or against the commission is
binding on the government, and the Crown Proceeding Act applies
accordingly.
(12) Members of the commission or a special committee who are not
public servants are entitled to receive reimbursement for expenses,
remuneration and benefits set by the Lieutenant Governor in Council.
( 13) The Lieutenant Governor in Council may appoint a public
administrator to discharge the powers, duties and functions of the
commission under this Act if the Lieutenant Governor in Council considers
this necessary in the public interest.
(14) On the appointment of a public administrator under subsection (13),
the members of the commission cease to hold office unless otherwise
ordered by the Lieutenant Governor in Council.
Special committees respecting health care practitioners

4 (1) After consultation with the appropriate licensing body, the
Lieutenant Governor in Council may establish one or more special
committees to exercise the powers, duties or functions of the
commission under this Act that are specified by t he Lieutenant Governor
in Council for a body of health care practitioners.
(2) A special committee established under subsection (1) is composed of
the persons the Lieutenant Governor in Council specifies and exercises
its powers, duties or functions on the terms and conditions the
Lieutenant Governor in Council specifies.
(3) A special committee established under subsection (1) may establish
a panel and the powers, duties and functions of the special committee
may be exercised, subject to the regulations, by the panel.
( 4) A power, duty or function given unde r subsection ( 1) to a special
committee may continue to be exercised by the commission unless the
Lieutenant Governor in Council directs that the commission not exercise
the power, duty or function.
(5) A power, duty or function given under subsection (1) to one special
committee may also be given under subsection ( 1) to another special
committee .
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(6) The Lieutenant Governor in Council must designate the chair of each
special committee and may designate a deputy chair of each special
committee.
Responsibilities and powers of the commission
5 ( 1) The commission may do one or more of the following:
(a) administer this Act on a non-profit basis;
(b) receive premiums that are payable by beneficiaries;
( c) determine the services rendered by an enrolled medical
practitioner, or performed in an approved diagnostic facility,
that are not benefits under this Act;
( d) determine the manner by which claims for payment of
benefits rendered in or outside British Columbia to
beneficiaries are made;
( e) determine the information required to be provided by
beneficiaries and practitioners for the purpose of assessing or
reassessing claims for payment of benefits rendered to
beneficiaries;
(f) investigate and determine whether a person is a resident
and, for this purpose, require the person to provide the
commission with evidence, satisfactory to the commission,
that residency has been established;
(g) determine whether a person is a spouse or a child;
(g.1) determine whether a person is a member of a prescribed
class;
(h) determine whether a person is a medical practitioner or a
health care practitioner;
(i) determine for the purposes of this Act whether a person
meets the requirements established in the regulations for
premium assistance;
(j) determine whether a service is a benefit or whether any
matter is related to the rendering of a benefit;
(k) determine before or after a service is rendered outside

British Columbia whether the service would be a benefit if it
were rendered in British Columbia;
(I) determine whether a diagnostic facility, or a benefit
performed in an approved diagnostic facility, meets the
requirements of the regulations;
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(m) monitor and assess the effectiveness and efficiency of

benefits;
(n) enter, with the prior approval of the Lieutenant Governor in
Council, into agreements on behalf of the government with
Canada, a province, another jurisdiction in or outside Canada
or a person in or outside British Columbia for the purposes of
this Act;
(o) establish advisory committees, including pattern of
practice committees, to advise and assist the commission in
exercising its powers, functions and duties under this Act, and
may remunerate members of a committee at a rate fixed by
the commission and pay reasonable and necessary travelling
and living expenses incurred by members of a committee in
the performance of their duties;
(p) authorize surveys and research programs to obtain
information for purposes related to the provision of benefits;
(q) enter into arrangements and make payment for the costs
of rendering benefits that will be provided on a fee for service
or other basis;
(q.1) establish, subject to this Act and the regulations, rules to
govern its own practices and procedures for the conduct of
hearings under section 15 or 37, including the following:
(i) the conduct of negotiations or a pre-hearing
conference for possible settlement of the issues before a
hearing is commenced;
(ii) the means by which particular facts may be proved
or the mode in which evidence may be given at a prehearing conference or a hearing;
(iii) the time limits for the exchange of documents,
reports and affidavits in preparation for a pre-hearing
conference or a hearing;
(iv) the requirements for the attendance of witnesses,
the conduct of witnesses or the compelling of witnesses
to give evidence under oath or in some other manner;
(q.2) require that a party to a hearing under section 15 or 37
submit a matter at issue in the hearing to non-binding
mediation;
(r) provide to a person or body prescribed by the Lieutenant
Governor in Council, for the purpose of an audit or
investigation of a practitioner's pattern of practice or billing,
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information concerning claims submitted by that practitioner

to the commission;
(s) apply section 26 for supply management and optimum
distribution of medical care, health care and prescribed
diagnostic services throughout British Columbia;
(t) establish guidelines setting the number of practitioners
that a beneficiary may consult respecting the same medical
condition within the period specified in the guidelines;
(u) exercise other powers or functions that are authorized by
the regulations or the minister.
(2) The commission must not act under subsection ( 1) in a manner that
does not satisfy the criteria described in section 7 of the Canada Health
Act.
(3) For the purposes of a hearing under this Act, sections 34 (3) and ( 4),
48 and 49 of the Administrative Tribunals Act apply to the commission .
( 4) The Financial Administration Act applies to the commission as though
the commission were a div ision of the ministry that is administered by
the minister.
(5) Without limiting subsection (1) (n) , the commission may, with the
prior approval of the Lieutenant Governor in Council, enter into an
information-sharing agreement with
(a) Canada, a province or another jurisdiction in or outside
Canada, or
(b) a public body as defined in the Freedom of Information and
Protection of Privacy Act.
(6) For the purpose of subsection (5), "information-sharing
agreement" means a data-matching or other agreement to exchange
personal or other information for the purpose of administering medical or
health care benefits provided unde r
(a) this Act,
(b) a prescribed enactment of British Columbia, or
( c) a prescribed enactment of Canada, a province or another
jurisdiction in Canada.
(6.1) If the commission enters into an information-sharing agreement
under subsection (5), the commission may, in accordance with the
agreement, collect and use personal information from, and disclose
personal information to, the party with whom the agreement was made.
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(7) The commission must prepare and file with the minister as soon as
practicable each year a report for the fiscal year ending March 31 in that
year respecting the work of the commission and its special committees,
and the minister must lay the report before the Legislative Assembly as
soon as is practicable.
Investigations by commission
5. 01 The commission may investigate for the purposes of this Act, including
for the purpose of determining whether there is cause within the
meaning of section 11 (1) (a), (a.1), (b), (c) or (c.1) .
Guiding principles
5 . 1 In performing its responsibilities and exercising its powers under

section 5 (1) and in performing its responsibilities under section 5 (2), in
addition to taking into account any broad policy issues and other
matters the commission considers relevant, the commission must have
regard to the following principles, as set out in sections 5.2 to 5.7 :
(a) the principles established under the Canada Health Act as
the criteria for a province to qualify for a full cash contribution
for a fiscal year, those principles being public administration,
comprehensiveness, universality, portability and accessibility;
(b) the principle of sustainability.
5. 2 The plan is publicly funded and operated on an accountable basis .

Comprehensiveness
5 . 3 The plan includes as benefits

(a) all medically required services provided by enrolled
medical practitioners,
(b) all required services provided by enrolled health care
practitioners and prescribed as benefits under section 51,
( c) benefits that are performed in approved diagnostic
facilities, and
(d) any benefits that are performed by practitioners in a
health facility that has entered into an agreement with one or
more regional health boards designated under the Health
Authorities Act or with the Provincial Health Services
Authority, in accordance with the agreement.
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Universality
5. 4 The plan applies to 100% of beneficiaries on uniform terms and

conditions.
Portability
5. 5 The plan applies to the following individuals:
(a) beneficiaries who are temporarily absent from British
Columbia or moving to another province;
(b) eligible individuals who are moving to British Columbia;
( c) eligible individuals visiting British Columbia from another
province that has entered into a reciprocal agreement with
British Columbia for medical and health care services, in
accordance with that agreement.
Access i bi I ity
5. 6 The plan provides benefits on uniform terms and conditions on a basis
that does not impede or preclude reasonable access to benefits by
beneficiaries.
Sustainability
5. 7 The plan is administered in a manner that is sustainable over the long
term , providing for the health needs of the residents of British Columbia
and assuring that annual health expenditures are within taxpayers'
ability to pay without compromising the ability of the government to
meet the health needs and other needs of current and future
generations.
Power to delegate
6 (1) In this section, "panel" means a panel of 3 or more persons who

are appointed by the commission and who represent each of the
following:
(a) the British Columbia Medical Association;
(b) beneficiaries;
( c) government.
(2) The commission may delegate any of the commission's or the chair's
powers or duties, except those under section 11 (2), 15 (2), 24, 25, 26,
33 ( 4) or 37 ( 1), to a person or panel.
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(3) The commission may delegate powers or duties under section 11 (2),
15 (2), 33 (4) or 37 (1) but only to a panel selected by the commission .
Part 2 - Beneficiaries
Application for enrolment of beneficiaries
7 ( 1) A resident must apply to the commission

(a) for enrolment as a beneficiary, if not already enrolled, and
(b) for enrolment of each of the resident's children as a
beneficiary if the child
(i) is a resident, and
(ii) is not already enrolled, or does not already have
someone applying for enrolment on the child's behalf.
(2) Unless exempted under this Act, an adult resident must apply to the
commission, within the prescribed period or at the prescribed time, to
renew the resident's enrolment as a beneficiary .
(3) Subsections (1) (a) and (2) do not apply to an adult resident who
submits, or has submitted, a statement to the commission in the manner
required by the commission stating that the resident does not want to be
enrolled as a beneficiary.
( 4) A statement under subsection (3) may not be submitted for the
purpose of requesting that a child described by subsection (1) (b) not be
enrolled.
(5) Applications under this section must
(a) be made in the prescribed manner, and
(b) be accompanied by proof of identity and residency in
accordance with the regulations.
Exemptions by commission
7 . 1 (1) Subject to subsection (2), the commission may exempt a person

from one or more of the following requirements:
(a) to renew enrolment under section 7 (2);
(b) to renew enrolment within the prescribed period or at the
prescribed time;
( c) to provide proof of identity or residency for the purposes of
enrolment or renewal of enrolment .
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(2) Before making an exemption, the commission must be satisfied that

(a) the person is, or is likely, a resident, and
(b) the exemption is necessary because compliance with a
requirement referred to in subsection ( 1) is impractical or
would cause undue hardship in the circumstances.
(3) The commission may, in making an exemption,
(a) make an alternative requirement, or

(b) attach limits or conditions to the exemption .
Enrolment of beneficiaries
7 . 2 ( 1) After confirming the identity and determining the residency of

(a) an applicant under section 7 (1) or (2), and
(b) each of the applicant's children named in the application,
the commission must enrol as beneficiaries those covered by the
application who are residents .
(2) After confirming the identity and determining the residency of a child,
the commission may, at any time, enrol as a beneficiary a child who is a

resident .
(3) Enrolment is effective on the date stated by the commission, that
date being
(a) on or before the date on which the application under

section 7 ( 1) or (2) was made, or
(b) not more than 3 months after receipt of the application .
( 4) The commission must not enrol a person as a beneficiary for a
prescribed period from the date that the commission
(a) receives a statement under section 7 (3) from the person,

or
(b) cancels the enrolment of the person under section 7.4 ( 1)
(a).
(5) The following persons must pay to the commission the applicable
premiums:
(a) a beneficiary;
(b) a person who is required to renew the person's enrolment
as a beneficiary under section 7 (2).
Change of enrolment information
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7. 3 A beneficiary must, within 10 days of the change, provide the

commission with the beneficiary's former and new
(a) addresses, if the beneficiary's address changes, or
(b) names, if the beneficiary's name changes.
Cancellation of beneficiary enrolment
7. 4 ( 1) The commission may cancel the enrolment of a beneficiary as

follows:
(a) on application by an adult beneficiary, effective on a date
subsequent to the date of the application as determined by
the commission;
(b) if the commission believes the beneficiary has ceased to
be a resident, effective on the date the commission
determines to have been the date that the beneficiary ceased
to be a resident;
( c) if the commission determines that the beneficiary was not
eligible for enrolment, effective on the date of enrolment as a
beneficiary.
(2) Subsection ( 1) (a) does not apply for the purpose of requesting that
the enrolment of a child described by section 7 (1) (b) be cancelled.
(3) If a beneficiary does not apply to renew enrolment in accordance
with section 7 (2), the beneficiary;s enrolment is cancelled effective on
the date by which the beneficiary was required by the regulations to
renew.
Premiums
8 ( 1) The Lieutenant Governor in Council may prescribe premium rates.

(2) The rates may be different for different categories of persons, as
defined in the regulations.
(3) The regulations may provide that, in respect of a category of persons
as defined in the regulations, no premiums are payable.
( 4) A premium that has not been paid during any period in which
(a) a beneficiary has been enrolled, or
(b) a person who was required to renew the person's
enrolment as a beneficiary under section 7 (2) was not
enrolled
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may be recovered by the commission as a debt owing to the

commission.
( 5) If a person paid premiums for a period after which cancellation under
section 7.4 ( 1) or (3) of that person's enrolment as a beneficiary took
effect, the commission may, if the commission believes it to be in the
public interest, refund all or part of the amount of those premiums to the
person who paid them.
Interest on late payments of premiums
8 .1 If payments under section 7.2 (5) are not made in the prescribed
manner and within the prescribed time, the person liable to make these
payments is also liable to pay the commission interest at the prescribed
rate on these payments.
Certificate of default
8. 2 ( 1) If a person defaults in the payment of part or all of the premiums,

including any interest on prem iums, payable under this Act, the
commission may issue a certificate in the prescribed form stating
(a) that payment is in default,
(b) the amount remaining unpaid, including interest, and
(c) the name of the person by whom it is payable .
(2) The commission may file the certificate with a court of competent
jurisdiction 30 days after the commission has served the person in
default with
(a) a copy of the certificate, and
(b) a notice stating the location of the court where the
certificate will be filed.
(3) The documents referred to in subsection (2) (a) and (b) sent by
registered mail to the last known address of the person in default are
conclusively deemed to be served on the person to whom they are
addressed on the earlier of
(a) the 14th day after these documents were deposited with
Canada Post, or
(b) the date on which these documents were actually received
by the person, whether by mail or otherwise .
(4) An appeal from a certificate filed under subsection (2) lies to the
court at the location where the certificate is filed and, if an appeal is
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commenced, the application of subsection (7) is not stayed unless the

court orders otherwise pending the outcome of the appeal.
(5) No appeal referred to in subsection (4) shall be instituted later than
45 days after the filing of the certificate under subsection (2).
(6) An appeal referred to in subsection (4) shall be a trial de nova and
the court may make any order it considers just, including an order that
the commission amend its certificate.
(7) On being filed, the certificate, including any amendment made under
subsection (6) and interest at the prescribed rate referred to in
section 8.1 that later accrues on the amount of the payment remaining
unpaid, has the same force and effect, and all proceedings may be taken
on it, as if it were a judgment of the court in favour of the government
for the recovering of a debt against the person named in the certificate.
(8) Section 32 (2) to (4) applies to the amount referred to in subsection
(1) (b) stated in a certificate as though
(a) that amount was the premiums referred to in section 32
(2) collected under an agreement referred to in section 32 (1),
and
(b) the person named in the certificate was the person
referred to in section 32 (2) who collected the premiums.
Payments for benefits
9 Subject to sections 10 (1), 11, 14 and 15, a beneficiary is entitled to

have payment made in accordance with amounts in a payment schedule
for a benefit that the beneficiary has received and this payment will be
(a) at a reduced rate, if applicable, as provided for under this
Act, and
(b) less any applicable patient visit charge.
Beneficiary requesting payment
10 (1) If a beneficiary receives benefits from a practitioner who has

(a) made an election under section 14 (1), or
(b) been the subject of an order made under section 15 (2)
(b),
or if a beneficiary is enrolled or reinstated retroactively after receipt of
benefits, the beneficiary may submit the claim form, completed as
required by section 14 (9), and any other prescribed or required
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information to the commission for payment of the amount that would

otherwise be payable to the practitioner.
(2) After assessing the claim under section 27 (2), the commission may
pay the beneficiary .
Order in respect of beneficiary
11 (1) In this section, "cause", in respect of a beneficiary, includes, but is

not limited to the following:
(a) knowingly requesting services that are not medically
required from a practitioner to be claimed as a benefit;
(a.1) knowingly requesting a practitioner to request a
laboratory service that
(i) is a benefit within the meaning of the Laboratory
Services Act, and
(ii) is not medically required ;
(b) submitting a claim under section 10 (1) to the commission
for payment knowing that
(i) a benefit had not been rendered, or
(ii) the nature or extent of the benefit that was rendered
had been misrepresented;
( c) contravening section 12;
( c.1) providing to another person the beneficiary's identity
number, issued by the commission to the beneficiary, knowing
that the other person would, or would likely, use the identity
number to contravene section 12;
(d) refusing to reply in good faith to a communication from the
commission.
(2) The commission may, for cause, after giving the beneficiary an
opportunity to be heard, make an order to restrict
(a) the number of practitioners who will be paid for benefits
rendered to that beneficiary, or
(b) the liability of the commission for payment for specified
benefits rendered to that beneficiary.
(3) Despite subsection ( 4), if the commission has reason to believe that
the beneficiary is not a resident, it may make an order described in
subsection (2) for a period of not longer than 30 days without hearing
the beneficiary.
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(4) Before making an order under subsection (2), or a cancellation under

section 7.4 (1) (b) or (c), the commission must notify the beneficiary in
a manner the beneficiary can understand
(a) of the commission's intention to proceed,
(b) of the circumstances giving rise to the commission's
intended action,
( c) that the beneficiary has the right to a hearing, to be
requested by the beneficiary within 21 days from the date that
the notice was delivered, and to appear in person or with legal
counsel at the hearing, and
(d) that if the beneficiary does not request a hearing or appear
at the hearing, an order may be made in his or her absence.
(5) If the commission makes an order under subsection (2), a
practitioner who renders a benefit to the beneficiary in a manner that
conflicts with the order is not entitled to payment by the commission for
the benefit, unless the commission otherwise orders .
(6) If the commission makes an order under subsection (2), the
commission must not pay for any benefit rendered in an approved
diagnostic facility if the benefit is rendered in a manner that conflicts
with the order, unless the commission otherwise orders.
(7) If the commission makes an order under subsection (2), the
commission must
(a) give written notice to the affected beneficiary stating the
nature of the order and the reasons why it was made, and
(b) give a written or electronically recorded message to all
appropriate practitioners advising that the order has been
made.
(8) If a beneficiary, in respect of whom an order has been made under
subsection (2), receives a benefit contrary to the terms of the order,
(a) the beneficiary is liable to pay the practitioner or approved
diagnostic facility for the benefit, or
(b) if the practitioner or approved diagnostic facility has been
paid by the commission for that benefit, the beneficiary must
reimburse the commission and until reimbursement has been
made, the amount that was paid for the benefit is a debt
owing to the commission .
Misuse of identity number
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12 A person must not knowingly, in order to obtain benefits,

(a) use an identity number other than the one issued to that
person by the commission, or
(b) use the identity number issued to that person if
(i) his or her enrolment is cancelled, or
(ii) he or she contravenes a restriction imposed under
section 11 (2) .
Sharing information if bel ief of contravention
12 . 1 If the commission has reason to believe that a person may have

contravened a provision of this Act, the Laboratory Services Act or the
regulations or an order made under either Act, the commission may do
one or both of the following:
(a) advise the minister of the commission 's belief;
(b) provide to the minister any relevant information, including
personal information.
Part 3 - Practitioners
Enrolment of practitioners
13 ( 1) A medical practitioner or health care practitioner who wishes to be

enrolled as a practitioner must apply to the commission in the manner
required by the commission.
(2) On receiving an application under subsection (1), the commission
must enrol the applicant if the commission is satisfied that the applicant
is in good standing with the appropriate licensing body and is not a
person in respect of whom enrolment has been cancelled under section
15 (2).
(3) A practitioner who renders benefits to a beneficiary is, if this Act and
the regulations made under it are complied with, eligible to be paid for
his or her services in accordance with the appropriate payment schedule,
less any applicable patient visit charge or reduction made under section
24(2).
( 4) Payments for benefits performed in an approved diagnostic facility
must be paid to the practitioner who was responsible for rendering the
benefit.
(5) If a practitioner renders a benefit, payment may be made to a
corporation so long as the practitioner may lawfully conduct business
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respecting that benefit through that corporation.

(6) A practitioner is not entitled to be paid if that practitioner provides a
service contrary to any directions or prohibitions that have been imposed
on that practitioner
(a) by the appropriate disciplinary body,
(b) under this Act, or
( c) by rules that regulate services provided by the
practitioner.
(7) A medical practitioner or health care practitioner who, on the date
this Act comes into force, holds a practitioner number granted under the
former Act is enrolled under subsection (1).
(8) A practitioner who is enrolled under this section may cancel this
enrolment by giving 30 days' written notice of the cancellation to the
commission.
(9) A medical practitioner whose enrolment is cancelled under subsection
(8) may not apply for enrolment under subsection ( 1) within 12 months
of the date of the cancellation unless the commission, because it
considers this to be in the public interest, allows the application.
Repealed
13 . 1 [Repealed 2002-16-9.]
Election
14 ( 1) A practitioner may elect to be paid for benefits directly from a

beneficiary.
(2) An election under subsection ( 1) may be made by giving written
notice to the commission in the manner required by the commission.
(3) The election under subsection ( 1) takes effect
(a) immediately on enrolment if the practitioner is not enrolled
under section 13 on receipt by the commission of the notice
under subsection (2), or
(b) on a date specified by the commission between 30 and
45 days after notice of the election is received by the
commission, if the practitioner is enrolled under section 13 on
that date.
( 4) An election under subsection ( 1) may be revoked
(a) before the date the election under subsection (1) takes
effect, if the commission and the practitioner agree to this, or
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(b) if the election under subsection (1) has taken effect, by

the giving notice of revocation in the same manner as giving
notice under subsection (2).
(5) The revocation takes effect on a date to be specified by the
commission between 60 and 75 days after receipt by the commission of
the request for revocation.
(6) If a practitioner revokes an election, the practitioner is not entitled to
be paid by the commission for benefits rendered during the period
referred to in subsection (5).
(7) If an election is in effect and the practitioner has complied with
subsection (9),
(a) the beneficiary must make a request for reimbursement
directly to the commission, and
(b) the beneficiary is only entitled to be reimbursed for the
lesser of
(i) the amount that is provided in the appropriate
payment schedule for the benefit, less any applicable
patient visit charge, and
(ii) the amount that was charged by the practitioner.
(8) If a practitioner makes an election under subsection (1), he or she
must not submit a claim on his or her own behalf under section 27 ( 1) for
services rendered to a beneficiary after the date the election becomes
effective.
(9) As soon as practicable after rendering a benefit, a practitioner who
has made an election under subsection ( 1) must give the beneficiary a
claim form that is completed by the practitioner in the manner required
by the commission.
No referrals for laboratory services if no benefit rendered
14 .1 Except with the prior written consent of the minister, a medical

practitioner or a prescribed health care practit ioner must not request, for
the purposes of or in relation to a service that is not a benefit under this
Act, a laboratory service that is a benefit within the meaning of either
this Act or the Laboratory Services Act.
Order in respect of practitioner
15 (1) In this section, "cause", in respect of a practitioner, includes, but is

not limited to ,
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(a) a determination by the commission that, as a result of a

finding by the appropriate disciplinary body that a practitioner
has inadequate skills or knowledge or has been guilty of
infamous conduct or repeated instances of serious misconduct,
the practitioner is no longer able to provide proper care or
treatment to beneficiaries,
(b) a determination by the commission that, as a result of
conduct giving rise to a conviction of a criminal offence, the
practitioner is no longer able to provide proper care or
treatment to beneficiaries,
( c) the submission of a claim by the practitioner to the
commission for payment knowing that
(i) the benefit had not been rendered, or
(ii) the nature or extent of the benefit that was rendered
had been misrepresented,
(d) contravention of section 14.1, 17, 18, 19 or 35,
(d.1) contravention of section 25 of the Laboratory Services
Act,
( e) failure to meet accreditation standards established by the
licensing body appropriate to the practitioner,
(f) failure to comply with a written order made under section
37 ( 1) ( e) to adopt an appropriate pattern of practice or
billing, or
(g) refusal to reply in good faith to a communication from the
commission.
(2) The commission may, for cause, after giving the practitioner an
opportunity to be heard,
(a) cancel a practitioner's enrolment and order that the
practitioner not apply under section 13 (1) for a period
specified by the commission,
(a .1) order that the practitioner, for a period fixed by the
commission, be paid for rendering benefits at a rate specified
by the commission that is less than the rate under the
applicable payment schedule, or
(b) order the practitioner, for a period fixed by the
commission, to make claims, including claims for services
provided by a diagnostic facility, as though an election had
been made under section 14, and section 14 (7) to (9) applies.
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(3) Before taking action under subsection (2), the commission must
notify the practitioner in writing
(a) of the commission's intention to proceed under this
section,
intended action,
( c) that the practitioner has the right to a hearing, to be
requested by the practitioner within 21 days from the date
that the notice is delivered, and to appear in person or with
legal counsel at the hearing, and
(d) that if the practitioner does not request a hearing or
attend at the hearing, an order may be made in his or her
absence.
(4) If the commission makes an order under subsection (2) , the
commission must notify the practitioner by written notice giving reasons
for the order.
(5) If the commission has cancelled the enrolment of a practitioner under
subsection (2), a beneficiary is not entitled to have payment made by
the commission for any service rendered by that practitioner.
Referral of complaint
16 If he or she has reasonable grounds to believe that there has been

misconduct or incompetence on the part of a practitioner, the chair must
report the grounds on which that belief is based to the appropriate
disciplinary body.
Part 4 - Limits on Billing

General limits on direct or extra billing
1 7 ( 1) Except as specified in this Act or the regulations or by the

commission under this Act, a person must not charge a beneficiary
(a) for a benefit, or
(b) for materials, consultations, procedures, use of an office,
clinic or other place or for any other matters that relate to the
rendering of a benefit.
(2) Subsection ( 1) does not apply:
(a) if, at the time a service was rendered, the person receiving
the service was not enrolled as a beneficiary;
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(b) if, at the time the service was rendered, the service was
not considered by the commission to be a benefit;
( c) if the service was rendered by a practitioner who
(i) has made an election under section 14 (1), or
(ii) is subject to an order under section 15 (2) (b);
( d) if the service was rendered by a medical practitioner who
is not enrolled.
Limits on direct or extra billing by a medical practitioner
18 (1) If a medical practitioner who is not enrolled renders a service to a

beneficiary and the service would be a benefit if rendered by an enrolled
medical practitioner, a person must not charge the beneficiary for, or in
relation to, the service an amount that, in total, is greater than
(a) the amount that would be payable under this Act, by the
commission, for the service if rendered by an enrolled medical
practitioner, or
(b) if a payment schedule or regulation permits or requires an
additional charge by an enrolled medical practitioner, the total
of the amount referred to in paragraph (a) and the additional
charge.
(2) Subsection (1) applies only to a service rendered in
(a) a hospitai as defined in section 1 of the Hospitai Act, or
(b) a community care facility as defined in section 1 of the
Community Care and Assisted Living Act.
(3) If a medical practitioner described in section 17 (2) (c) renders a
benefit to a beneficiary, a person must not charge the beneficiary for, or
in relation to, the service an amount that, in total, is greater than
commission, for the service, or
additional charge, the total of the amount referred to in
paragraph (a) and the additional charge.
Notice requirement
19 ( 1) Before a beneficiary is rendered a service that would be a benefit if

rendered by a practitioner, the person who intends to require the
beneficiary to pay all or a portion of the costs of the service must advise
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the beneficiary, in a manner the beneficiary can understand, of the

following:
(a) that the person proposes to collect the amount directly
from the beneficiary;
(b) how much the person will charge for the service;
( c) how much, if anything, the person reasonably expects that
the commission will reimburse the beneficiary for the
rendering of the service.
(2) Subsection ( 1) does not apply if the medical condition or incapacity
of the beneficiary makes compliance with that subsection impractical
but, if the service would be a benefit if rendered by a practitioner, the
beneficiary must not be charged for the service an amount that, in total,
is greater than
commission, for the service, or
additional charge, the total of the amount referred to in
paragraph (a) and the additional charge.
(3) If a beneficiary is not advised, as required by subsection (1), the
beneficiary is not liable to pay for the service unless the servi ce was
rendered in an emergency situation that made it impractical to comply
with that subsection.
Refunds required
20 (1) If a beneficiary pays for a service described in section 18, the

person who charged for, or in relation to, the service must refund to the
beneficiary any amount paid for the service that is in excess of the
amount allowed for that service by section 18.
(2) If a beneficiary pays for a service but was not liable to pay for it
because of section 19 (3), the person who charged for, or in relation to,
the service must refund to the beneficiary the amount paid for the
service.
Persons acting for beneficiaries
20 . 1 ( 1) A person requesting a benefit for a beneficiary must not be charged

for the benefit in place of the beneficiary if this Part requires that the
beneficiary not be charged for the benefit.
(2) A person requesting a benefit for a beneficiary must receive advice
concerning a requirement to pay for the benefit if this Part requires that
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the beneficiary receive advice concerning the requirement to pay for t he

benefit.
Civil action
21 An amount that is to be refunded under this Part is a debt due to the
person who paid the amount, recoverable by action in any court of
competent jurisdiction .
Agreements
22 The minister, or a person designated by the minister for the purpose,
may enter into an agreement to pay an amount to offset all or part of the
cost for materials, consultations, use of an office, clinic or other place or
for any other matter that relates to the rendering of a benefit.
Part 5 -
Payments
Definitions for Part 5

23 In this Part:
"appropriation" means an appropriation as defined in the Financial

Administration Act for the operation of
(a) the commission , or
(b) the plan;
"ava ilable amount" means, for a category, the available amount

set under section 25 ( 1) for that category for a fiscal year;
"category" means a category established under section 26;
"fiscal year" means, for an adjustment under this Part, the
12 month period ending March 31 in any given year during which the
benefits were rendered for which the adjustment in payments is
being calculated.
Limitations on payments
24 ( 1) All reasonable and practical measures must be taken by the
commission to ensure that the total of payments made under sections 26
and 27 for a fiscal year is not greater than the appropriations for the
fiscal year for those payments and these measures may include the
establishment of public or professional educational programs, the
establishment or limitation of benefits, the establishment of guidelines for
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the rendering of benefits or the making of adjustments under

subsection (2) .
(2) If the commission considers that payment for a fiscal year under all
payment schedules to practitioners in a category will be greater than or
less than the available amount for that category, the commission may
adjust its payments to the practitioners in the category under the
payment schedules to a level that the commission considers app ropriate
to remain within the available amount for the fiscal year.
(3) If the commission considers that the special circumstances of a
practitioner's patients warrant, the commission may order that a
reduction calculated under subsection (2) does not apply, or applies to a
limited extent, to payments to the practitioner.
Available amount
25 ( 1) The commission may set the available amount for a category that
may be paid under all payment schedules to practitioners in the category
for rendering benefits under this Act in the fiscal year specified by the
commission.
(2) The total amount that may be paid by the commission to all
practitioners in a category for rendering benefits under this Act in a fiscal
year must not be greater than the available amount for the fiscal year.
Payment schedules and benefit plans
26 (1) The commission

(a) must establish payment schedules that specify the
amounts that may be paid to or on behalf of practitioners for
rendering benefits under this Act, less applicable patient visit
charges, and
(b) may establish different categories of practitioners for the
purposes of those payment schedules.
(2) The payment schedules may
(a) be different for different categories of practitioners,
(b) treat professional and other aspects of services differently
for the purposes of payments under this Part,
( c) include, for specified benefits, extra payments that may be
made in special circumstances that the commission
establishes, or
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( d) in respect of a particular benefit or class of benefits, be

different for different geographical areas of British Columbia,
as specified by the commission.
(3) The commission may, at any time, amend the payment schedules
(a) in any manner that the commission considers necessary or
advisable, and
(b) without limiting paragraph (a), by increasing or decreasing
any amount in a payment schedule .
(4) An amendment referred to in subsection (3) (b) may apply
(a) to a specified geographical area,
(b) to a category of practitioners,
( c) to a category of practitioners within a specified
geographical area, or
( d) to a specified benefit or class of benefits within a specified
geographical area.
(5) The commission may act retroactively under this section to
(a) include or increase payment for a benefit in a payment
schedule, or
(b) determine that a service is a benefit and establish a
payment schedule item for this benefit.
(6) The commission may continue or estabiish a practitioner educationai
program, a disability insurance program or other practitioner benefit plan
for practitioners and the plans may be different for different categories of
practitioners.
(7) The commission may, out of an appropriation for that purpose, pay
money to fund practitioner benefit plans.
(8) No category may be established under this section on the basis of
age or gender of practitioners.
Submission, assessment and payment of claims
27 ( 1) A practitioner who renders a benefit to a beneficiary must, for the

purpose of assessing or reassessing the claim for payment, provide
particulars of services and accounts to the commission that are required
under this Act in the manner the commission specifies.
(2) The commission must assess and, if appropriate, reassess the
particulars of claims for payment and determine the amounts payable for
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them in accordance with this Act, the regulations and the appropriate
payment schedule.
(3) The Lieutenant Governor in Council may prescribe the period of time
within which
(a) a claim for payment must be submitted to the commission,
(b) a practitioner or beneficiary may request reassessment of
a previously submitted claim, or
( c) the commission can assess or reassess a claim.
( 4) The commission must, to the extent authorized by the appropriation,
pay for claims for benefits that the commission has assessed or
reassessed and that comply with this Act, the regulations and the
appropriate payment schedule.
(5) The commission is not liable for payment if a claim is submitted
outside the period prescribed under subsection (3) but, in its discretion,
may pay the claim.
(6) For the purposes of this section
(a) a practitioner must provide the commission with any
record that the commission considers relevant to substantiate
a claim, including any medical or clinical record, in the care or
control of the practitioner, and
(b) a practitioner must retain records, including medical or
clinical records, for a period specified by the appropriate
licensing body or, if the appropriate licensing body has not
specified a period, for a period the commission specifies.
Non-resident benefits
2 8 A person who is not a resident of British Columbia and who provides
evidence to a practitioner that he or she is enrolled under an Act, plan or
scheme in another jurisdiction of Canada with which British Columbia has
made reciprocal agreements related to the provision of medical or health
care services is, subject to the agreements, entitled to receive benefits
under this Act, and this Act applies in respect of those benefits as though
the person were a beneficiary under this Act.
Payment for services outside British Columbia

2 9 ( 1) In this section, "medical practitioner" includes a medical
practitioner or dentist who is authorized to practise medicine or dentistry
in the jurisdiction where the services were rendered.
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(2) If a beneficiary receives a service from a medical practitioner outside

British Columbia that would be a benefit if rendered in British Columbia,
the beneficiary may apply to the commission, in the manner required by
the commission, to have payment made for the service in the amount
the commission determines.
(3) If a beneficiary receives a service outside British Columbia from a
medical practitioner that would not be a benefit if rendered in British
Columbia, the beneficiary may apply to the commission to determine if
the cost of this service should be paid and, if so, the amount to be paid
for the service.
( 4) A beneficiary is entitled to have payments made under subsection
(2) or (3) if the commission considers the service was medically required
and
(a) the need for the service arose unexpectedly while the
beneficiary was outside British Columbia, or
(b) the regulations respecting out of British Columbia services
have been complied with.
(5) If the government has made, with the government of another
jurisdiction of Canada, an agreement that provides for arrangements to
pay for medically required services rendered in that other jurisdiction,
the agreement applies.
Recovery of money
30 (1) If the commission has paid an amount under this Act

(a) for a service that was not a benefit or that was provided in
contravention of section 14.1, or
(b) by mistake,
the person paid must repay the amount to the commission.
(1.1) If the commission has paid an amount under this Act for a benefit
provided to a person who was not a beneficiary, the person who received
the benefit must repay the amount to the commission.
(2) If the commission has paid an amount after relying on a
representation of fact that was untrue, the person who made the
misrepresentation must repay the amount to the commission.
(3) An amount that must be paid to the commission under this section or
section 37 may be recovered as a debt owing to the commission, or the
commission may deduct it from other money owed by the commission to
the person.
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Critical care services

31 (1) Despite any other section of this Act or the regulations, the
commission may pay a practitioner for benefits rendered to a resident for
a condition that the commission considers to be immediately life
threatening.
(2) Subsection ( 1) does not apply if the practitioner charges t he resident
any fee for the service other than an authorized patient visit charge.
Obligation to remit
32 ( 1) If a person makes an agreement

(a) to pay all or part of another person's premiums, or
(b) to collect premiums from another person for remission to
the commission,
that person must pay the premiums to the commission in the manner
and at the times specified by the commission .
(1.1) If the payment of another person's premiums referred to in
subsection (1) (a) is in arrears, including arrears arising before the
making of an agreement referred to in subsection (1) respecting the
other person, the person making the agreement, if requested by the
commission, must collect and remit the arrears, including applicable
interest on these arrears, by payment to the commission as specified by
the commission under subsection ( 1) .
(2) Subject to subsection (3), premiums collected under an agreement
referred to in subsection ( 1) and arrears collected under subsection ( 1.1)
constitute a lien in favour of the commission or its assignee payable in
priority over all liens, charges or mortgages of any person, whenever
created or to be created, with respect to property or proceeds of
property, real, personal or mixed of the person who collected the
premiums.
(3) Subsection (2) applies despite any other enactment but a lien under
section 52 of the Workers Compensation Act, or a lien for wages due to
workers by their employer other than a lien postponed to a mortgage or
debenture by section 87 (5) of the Employment Standards Act, is
payable in priority over a lien constituted under subsection (2) of this
section .
( 4) Without limiting subsection (2), the commission may enforce its lien
under subsection (2) by proceedings under the Court Order Enforcement
Act.
(5) If a person is convicted under section 46 (3), the court
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(a) must determine the amount of the premiums the person

failed to pay or to collect and remit,
(b) may assess a penalty, of not greater than 10 times the
amount that was not paid or collected and remitted, and
( c) must make an order requiring that person to pay to the
commission the total amount determined under paragraphs
(a) and (b), plus interest at a prescribed rate.
(6) Every director or officer of a corporation who concurs in a failure to
remit the premiums required to be paid or collected and remitted by the
corporation is liable, jointly and separately, with every other director and
officer of the corporation, to make a payment ordered to be made under
subsection ( 5).
Part 6 - Diagnostic Facilities

Approval of diagnostic facility
33 ( 1) On application, in the manner required by the commission, the

commission may, in accordance with the regulations,
(a) approve a diagnostic facility for purposes of permitting
benefits to be performed in it,
(b) grant a temporary approval for a diagnostic facility for
those purposes and for the period the commission specifies,
and
(c) impose conditions on an approval or a temporary approval
for a particular diagnostic facility or class of diagnostic
facilities, including conditions restricting the types of benefits
for which payment will be made.
(2) On application under subsection ( 1) or on its own initiative, the
commission may, in accordance with the regulations, attach new
conditions or amend existing conditions to an approval or temporary
approval previously given under subsection ( 1).
(3) If an approval is given under this section, the commission must give
the approval in the name of the owner of the diagnostic facility.
(4) If, in respect of an approved diagnostic facility, there is a
contravention of this Act, the regulations made under it or a condition
imposed on an approval under this section, the commission may, a~er
giving the owner of the diagnostic facility an opportunity to be heard,
amend, suspend or cancel an approval granted under this section and
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section 30 applies to the amount, if any, that was paid by the

commission for services on the basis of the approval applying.
(5) Before taking action under subsection (2) or (4), the commission
must notify in writing the person in whose name the approval was
granted,
section,
intended action,
( c) that the owner of the diagnostic facility has the right to a
hearing, to be requested by the owner of the diagnostic facility
within 21 days from the date that the notice is received, and
to appear in person or with legal counsel at the hearing, and
( d) that if the owner of the diagnostic facility does not request
a hearing or attend at the hearing, an order may be made in
his or her absence .
(6) If the commission takes action under subsection (2) or (4), the
commission must give the owner of the diagnostic facility written notice
stating the action taken and the reasons why this action was taken.
(7) Except if the commission gives leave, a person who applied under
subsection ( 1) in respect of a location may not apply again under
subsection ( 1) in respect of that location until 18 months from the date
of that application.
(8) An owner of a diagnostic facility who on July 24, 1992 has an
approval under the former Act to operate the diagnostic facility also has
an approval under this section to operate the diagnostic facility.
Obligation of practitioner
34 ( 1) A practitioner must not knowingly refer a beneficiary to a diagnostic

facility that is not approved under this Part un less he or she first notifies
the beneficiary that services performed in the diagnostic facility are not
benefits in respect of which payment will be made under this Act.
(2) If a beneficiary is referred by a practitioner to a diagnostic facility
that is not approved under this Part, the beneficiary is not liable for
payment of services performed in the diagnostic facility unless, before
the services are provided, he or she agrees to pay for them.
(3) Subsections (1) and (2) only apply if the service to be provided to
the beneficiary would be a benefit if it were rendered by an approved
diagnostic facility.
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Conflict of interest
35 ( 1) A practitioner must not refer beneficiaries to an approved diagnostic

facility in which he or she has a financial or other interest, without the
prior written approval of the commission.
(2) An approval under subsection ( 1) permits referrals for the period
specified in the a pprova I.
Part 7 - Audit and Inspection

Audit and inspection - practitioners and employers
36 (1) In this Part:

"former practitioner" means an individual who was formerly
enrolled under section 13 or under the former Act;
"practitioner" includes
(a) a former practitioner, and
(b) a medical practitioner who is not enrolled and to whom
section 18 ( 1) applies;
"prescribed agency" means a corporation or other body that is

prescribed for the purposes of this Part .
(2) The commission may appoint inspectors to audit
(a) claims for payment by practitioners and the patterns of
practice or billing followed by practitioners under this Act,
(b) the billing or business practices of persons who own,
manage, control or carry on a business for profit or gain and,
in the course of the business, direct, authorize, cause, allow,
assent to, assist in, acquiesce in or participate in the rendering
of a benefit to beneficiaries by practitioners, and
( c) the billing or business practices of persons who own,
manage, control or carry on a business for profit or gain and
who the commission on reasonable grounds believes
(i) in the course of the business, direct, authorize,
cause, allow, assent to, assist in, acquiesce in or
participate in the rendering of a benefit to beneficiaries
by practitioners , or
(ii) have contravened section 17, 18, 18.1or19.
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(2.1) If the commission, on behalf of a prescribed agency, pays a

practitioner, an owner of a diagnostic facility or a representative of a
professional corporation for services rendered, or claimed to have been
rendered, this Part applies to the services as though these services were
benefits.
(2.2) The claims and patterns of practice or billing concerning a
prescribed agency
(a) need not be under this Act, and
(b) can have arisen at any time since July 24, 1992.
(3) Medical records may be requested or inspected under this section or
section 40 only by an inspector who
(a) is a medical practitioner, or
(b) was formerly a medical practitioner, if the commission has,
at the time of appointing the person as an inspector, stated in
writing that the person may inspect medical records under this
section or section 40, or both.
(4) An audit under subsection (2) (a) may be made in respect of claims
and patterns of practice or billing followed by practitioners before this Act
came into force .
(4.1) An audit under subsection (2) (b) or (c) may be made in respect of
billing or business practices followed by persons before the coming into
force of this subsection .
(5) An inspector may, at any reasonable time and for reasonable
purposes of the audit, enter any premises and inspect
(a) records of a person described in subsection (2) (b) or (c)
or of a practitioner, and
(b) records maintained in hospitals, health facilities and
diagnostic facilities.
(6) The power to enter a place under subsection (5) or (12) must not be
used to enter a private dwelling without the consent of the occupier
except under the authority of a warrant under subsection (7) .
(7) On being satisfied on evidence on oath or affirmation that there are
in a place records or other things for which there are reasonable grounds
to believe that they are relevant to the matters referred to in subsection
(5) or (12), a justice may issue a warrant authorizing an inspector
named in the warrant to enter the place in accordance with the warrant
in order to exercise the powers referred to in subsection (5) or ( 12).
(8) A person must, on the request of an inspector,
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(a) produce and permit inspection of the records referred to in

subsection (5) or (12),
(b) supply copies of or extracts from the records at the
expense of the commission, and
(c) answer all questions of the inspector respecting any
matter relating to the records, or to the audit generally .
(9) If required by the inspector, a person must provide to the inspector
all books of account and other records that the inspector considers
necessary for the purposes of the audit.
( 10) A person must not hinder, molest or interfere with an inspector
doing anything that the inspector is authorized to do under this section
or prevent or attempt to prevent the inspector doing any such thing.
(11) An inspector must make a report to the chair of the results of an
audit made under subsection (2).
(12) An inspector may, at any reasonable time and for the purposes of
the audit, enter any premises and inspect the payroll, financial and
membership records of an employer or an association responsible for
collecting and remitting premiums under this Act.
Orders of the commission

37 (1) If the commission, after giving a practitioner, an owner of a
diagnostic facility or a representative of a professional corporation an
opportunity to be heard, determines that, because of
(a) an unjustifiable departure from the patterns of practice or
billing of practitioners in the practitioner's category,
(b) a claim for payment in respect of a benefit that was not
rendered, or
( c) a misrepresentation about the nature or extent of benefits
rendered,
the commission has paid an amount to the practitioner or any other
person, or both, the commission may, by written order,
(d) require the practitioner, owner of the diagnostic facility or
representative of the professional corporation to pay to the
commission money that the commission considers appropriate
as arising out of the departure, claim or misrepresentation
referred to in paragraphs (a) to (c), and
( e) require the practitioner, owner of the diagnostic facility or
representative of the professional corporation to adopt an
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appropriate pattern of practice or billing, as specified by the

commission in the order.
(1.1) If a practitioner, an owner of a diagnostic facility or a
representative of a professional corporation is ordered under subsection
(1) (d) to pay money to the commission, they must also pay a
prescribed surcharge.
(1.2) In subsection (1.3), "audit period" means, for a person, the
period during which an audit takes place, giving rise to an order under
subsection ( 1) ( d) respecting the person.
( 1.3) A person who must pay a prescribed surcharge under subsection
( 1.1) must also pay interest from the last day of the audit period,
compounded semi - annually, on the sum of
(a) the amount ordered under subsection (1) (d),
(b) the surcharge under subsection (1.1) on the amount
ordered under subsection (1) (d), and
( c) the compound interest accrued to date under this
subsection.
(1.4) Interest under subsection (1.3) is payable at an annual rate equal
to the prime lending rate of the banker to the government.
( 1.5) Interest payab le under subsection ( 1.3) for any of the first 6
months of a calendar year must be calculated at the annual rate
applicable on January 1 in the calendar year.
( 1.6) Interest payable under subsection ( 1.3) for any of the last 6
months of a calendar year must be calculated at the annual rate
applicable on July 1 in the calendar year.
(2) Before taking action under subsection (1), the commission must
notify in writing the practitioner, owner of a diagnostic facility or
representative of a professional corporation
section,
intended action,
( c) that the practitioner, owner of a diagnostic facility or
representative of a professional corporation has the right to a
hearing, to be requested by the practitioner, owner of a
diagnostic facility or representative of a professional
corporation within 21 days from the date that the notice is
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delivered, and to appear in person or with legal counsel at the

hearing, and
( d) that, if the practitioner does not request a hearing or
attend at the hearing, an order may be made in his or her
absence.
(3) Despite subsections (1) and (2), the commission may proceed to
make an order under subsection ( 1) without holding a hearing if the
practitioner, owner of the diagnostic facility or representative of the
professional corporation, having been given notice of the proceeding for
the order, agrees to waive the right to a hearing.
( 4) The commission must advise the appropriate licensing or disciplinary
body that an order under subsection ( 1) has been made respecting the
practitioner or the owner of the diagnostic facility, if the owner is a
practitioner.
(5) The commission may, for the purposes of this section and for the
guidance of practitioners, prepare guidelines and criteria that may be
appl ied to the patterns of practice of practitioners.
(6) In making an order under subsection ( 1), the commission may
consider, and base the order on, any relevant source of information,
including a source created on a statistical basis or by a comparison
between benefits provided by the practitioner or diagnostic facility and
corresponding benefits provided by other practitioners or diagnostic
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particular benefit that the practitioner or owner of the diagnostic facility

prov ided .
(7) The chair must give a copy of any order made under subsection (1)
to the practitioner or owner of the diagnostic facility affected by it.
(8) An order under subsection ( 1) may include a requirement to pay the
costs, or part of the costs, of the audit and hearing.
Settlement of claims ascertained under section 37
38 If the commission believes it to be in the public interest to accept less

than 100% payment in settlement of money required to be paid by a
practitioner, owner of the diagnostic facility or representative of the
professional corporation under section 37, the commission may accept
the greater of
(a) the percentage of the money required to be paid under
section 37 that the commission considers appropriate in
settlement, and
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(b) the percentage of the money required to be paid under

section 37 that Treasury Board sets for the purposes of
settlement under this section, if Treasury Board sets this
percentage.
Filing of orde r
39 (1) The chair may file an order made under section 37 in the Supreme
Court.
(2) On the order being filed in the court, it is enforceable in the same
manner as an order of the Supreme Court .
Aud it and inspection - diagnostic faci lities

4 0 (1) An inspector appointed under section 36 (2) may inspect records,
equipment and premises in a diagnostic facility for the purpose of
ensuring that this Act, the regulations and any conditions of approval
under section 33 are being complied with.
(2) An inspector may enter the premises of the approved diagnostic
facility during the normal business hours of that diagnostic facility, and
may inspect and examine
(a) those premises,
(b) records located on those premises that are relevant to the
rendering of approved diagnostic facility services or to the
submission of claims and the payment of appropriate amounts
for benefits rendered by the diagnostic facility, including
specimen collection stations,
( c) records that would aid the commission in determining
whether a hearing under section 33 is warranted, which
(i) relate to the conditions of the approval of the
diagnostic facility or the quality of services provided by
the diagnostic facility, or
(ii) indicate whether the diagnostic facility or any person
is not in compliance with protocols established by the
commission for the purposes of this Act, and
(d) records and equipment located on those premises that will

aid the commission in determining whether, in respect of the
diagnostic facility,
(i) the standards of testing and analysis,
(ii) the qualifications, number and skills of personnel who
work there, and
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(iii) the range and availability of services and equipment

are appropriate to the opera t ion and functions performed by
the diagnostic facility under the approval or whether there has
been a significant change in the circumstances from those that
applied when the diagnostic facility was approved under
section 33.
(3) A person who operates a diagnostic facility approved under this Act
must, on the request of an inspector, permit the inspector to enter the
diagnostic facility's premises to inspect, in accordance with subsection
(1), the diagnostic facility's premises and the records and equipment
located on those premises .
( 4) If records referred to in subsection ( 1) are not located on the
premises of an approved diagnostic facility, a person who has possession
of those records must, on the request of the inspector, produce and
permit inspection of those records by the inspector.
Part 8 - Appeals
Repealed
41-42 [Repealed 2003-96-47.]

Appeals - practitioners and diagnostic facilities
43 ( 1) A practitioner, an owner of a diagnostic facility or a representative of

a professional corporation in respect of whom an order was made under
section 15 (2) or 37 (1) may appeal the order to the Supreme Court not
more than 30 days after the date of the order or cancellation.
(2) An appeal from a decision of the Supreme Court on appeal under
subsection ( 1) lies to the Court of Appeal with leave of a justice of the
Court of Appeal.
(3) An appeal under this section does not operate to stay the order
appealed from unless the court to which the appeal is made otherwise
orders.
Repealed
44 [Repealed 2003-96-47 .]
Part 9 - General Provisions
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Private insurers
45 ( 1) A person must not provide, offer or enter into a contract of
insurance with a resident for the payment, reimbursement or
indemnification of all or part of the cost of services that would be benefits
if performed by a practitioner.
(2) Subsection (1) does not apply to
(a) all or part of the cost of a service
(i) for which a beneficiary cannot be reimbursed under
the plan, and
(ii) that is rendered by a health care practitioner who
has made an election under section 14 (1),
(b) insurance obtained to cover health care costs outside of
Canada, or
( c) insurance obtained by a person who is not eligible to be a
beneficiary.
(3) A contract that is prohibited under subsection (1) is void .
Injunctions
45. 1 ( 1) The commission may apply to the Supreme Court for an injunction
restraining a person from contravening section 17 (1), 18 (1) or (3), 18.1
(1) or (2) or 19 (1) or (2).
(2) The court may grant an injunction sought under subsection ( 1) if the
court is satisfied that there is reason to believe that there has been or
will be a contravention of this Act or the regulations.
(3) The court may grant an interim injunction until the outcome of an
action commenced under subsection ( 1).
Offences
4 6 ( 1) A beneficiary or practitioner who misrepresents the nature or extent

of the benefit in a claim for payment commits an offence .
(2) A person who knowingly obtains or attempts to obtain payment for a
benefit to which he or she is not entitled commits an offence .
(3) A person who fails to pay or to collect and remit premiums in
accordance with an agreement referred to in section 32 ( 1) commits an
offence.
( 4) A person who obstructs an inspector in the lawful performance of his
or her duties under this Act commits an offence.
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(5) A person who contravenes section 12 or 49 commits an offence.

(6) A person who knowingly assists another person to commit an offence
under this section commits an offence.
Offence Act
4 7 Section 5 of the Offence Act does not apply to this Act or the
regulations.
Duty to report
4 7. 1 A person prescribed for the purposes of this section must promptly

report to the commission, in the manner required by the commission, if
the prescribed person has reason to believe that another person
(a) has provided to the commission false or misleading
information about the other person's identity, residency or
children,
(b) has obtained, or has attempted to obtain, benefits or a
payment under section 9, 10 or 29 to which the other person is
not entitled, or
( c) has contravened section 12.
Protection against action
48 (1) No action for damages because of anything done or omitted to be

done in good faith under this Act,
(a) in the performance or intended performance of any duty,
or
(b) in the exercise or intended exercise of any power,
may be brought against a member of the commission, a member of a
special committee, an inspector appointed under Part 7, a member of an
advisory committee or any employee or other person who is subject to
the commission's direction or to whom a power has been delegated
under this Act.
(2) Subsection (1) does not absolve the government from vicarious
liability for an act or omission of an inspector or an employee referred to
in subsection ( 1) for which act or omission the government would be
vicariously liable if this section were not in force.
(3) If a practitioner provides information in good faith in the manner and
as required under this Act, no action for damages may be brought
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against the practitioner based solely on the fact that the information was
provided.
( 4) If a person makes a report in good faith, in the manner and as
required under this Act, no action for damages may be brought against
the person based solely on the fact that the report was made.
Duty to keep information confidential
4 9 ( 1) In this section, "person engaged in the administration of this

Act" includes the following persons :
(a) each member or former member of the commission;

(b) each former member of the Medical and Health Care
Services Appeal Board;
( c) each employee or former employee of the ministry
employed in the administration of this Act;
( d) each inspector or former inspector appointed under this
Act;
(e) each member or former member of an advisory
committee;
(f) any person engaged or previously engaged in the
administration of this Act.
(2) A person engaged in the administration of this Act must keep
confidential matters respecting an individual beneficiary or practitioner
that come to his or her knowledge in the course of his or her
employment or duties, and must not communicate any of those matters
except as follows:
(a) in the course of the administration of this Act or another
Act or program administered by the minister;
(b) to communicate prescribed information to a person who
(i) is a beneficiary and is, or whose personal information
is, identified in a hearing under section 15 or 37,
(ii) provides information to the commission that leads to
an audit or inspection under section 36, or to a
determination that no audit or inspection is required
under that section, or
(iii) provides information to the commission that leads to
an application for an injunction under section 45.1, or to
a determination that no injunction is required under that
section ;
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( c) to communicate prescribed information to one or more

persons if a person is the subject of
(i) a notice of hearing under section 15 or 37,
(ii) an audit or inspection under section 36, or
(iii) an application for an injunction under section 45.1,
and
if, in the opinion of the minister or the chair, there is a
compelling public interest in the disclosure of that information;
(c.l) to communicate information to the minister for the
purposes of section 61 of the Laboratory Services Act if a
person is the subject of
( i) a notice of hearing under section 15 or 37 of this Act,
or
(ii) an application for an injunction under section 45.1 of
this Act;
(d) for a purpose listed in section 5 or 18 of the E-Health
(Personal Health Information Access and Protection of Privacy)
Act.
Delivery of documents
50 ( 1) Unless otherwise provided under this Act, a document or notice

required to be given to a person under this Act must be given by
delivering it to that person or to the last known address of that person.
(2) If a document is deposited at the office of the commission during
normal business hours, the document is deemed to have been personally
delivered to the commission .
Laboratory facilities
50 . 1 Except as provided for under the Laboratory Services Act, nothing in

this Act authorizes the commission to act in relation to a grandparented
laboratory facility within the meaning of that Act.
Power to make regulations
51 ( 1) The Lieutenant Governor in Council may make regulations referred

to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council
may make regulations for the following purposes:
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(a) specifying the services rendered by an enrolled health care

practitioner that are benefits under this Act;
(b) prescribing additional benefits and services for different
categories of beneficiaries;
(b.1) prescribing for hearings under section 15 or under
section 37
(i) the practices and procedures for the conduct of
negotiations or a pre-hearing conference for possible
settlement before a hearing is commenced,
(ii) the practices and procedures to be used for a prehearing conference or a hearing,
(iii) the means by which particular facts may be proved
or the mode in which evidence may be given at a prehearing conference or a hearing,
(iv) the time limits for the exchange of documents,
reports and affidavits in preparation for a pre-hearing
conference or a hearing, or
(v) the requirements for the attendance of witnesses,
the conduct of witnesses or the compelling of witnesses
to give evidence under oath or in some other manner;
( c) imposing monetary limits on benefits rendered by an
enrolled health care practitioner available to different
categories of beneficiaries;
(c.01) for the purposes of section 7,
(i) respecting applications for, or renewal of, enrolment
as a beneficiary,
(ii) respecting records and other information that must
be provided to prove identity and residency,
(iii) making different requirements in relation to

applications for, or renewal of, enrolment as a
beneficiary,
(iv) making different requirements for the purposes of
investigations,
(v) respecting alternative means of establishing identity
and residency,
(vi) establishing classes of beneficiaries and making
different provisions for different classes,
(vii) exempting classes of beneficiaries from one or more
requirements under section 7 (2) or (5) (b), and
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(viii) prescribing periods and times for the purposes of

section 7 (2);
( c.02) respecting the issuing of cards or other records for the
purposes of identifying beneficiaries, and the use, return,
replacement or destruction of such cards or records;
(c.1) prescribing the period for the purposes of section 7.2
( 4);
( c.2) for the purposes of section 8,
(i) establishing different categories of persons who,
under section 7.2 (5), must pay premiums,
(ii) respecting premiums for family units and
dependents, and defining family units and dependents,
and
(iii) establishing the manner and time for the making of
payments of premiums;
( c .3) prescribing the rate for the purposes of section 8.1;
(c.4) prescribing the form of certificate under section 8.2;
( d) establishing a program of premium assistance to
beneficiaries or any designated categories of beneficiaries,
including prescribing conditions of eligibility, suspension and
termination of eligibility;
( e) estabiishing systems for submitting claims for payment of
benefits;
(e.l) respecting verification of the identity and enrolment of a
person requesting benefits;
(f) respecting the approval of diagnostic facilities under Part 6,
including the establishment of criteria and conditions for
approval of diagnostic facilities and including, but not limited
to, the establishment of different criteria and conditions
(i) for different categories of diagnostic facilities,
(ii) for different geographic locations of diagnostic
facilities,
(iii) for ownership of diagnostic facilities,
(iv) according to proximity to other approved diagnostic
facilities, and
(v) according to need for diagnostic facility services;
(g) establishing terms and conditions relating to the functions
and operations of specific approved diagnostic facilities and
48/50
8/26/2016
categories of approved diagnostic facilities and authorizing the

commission to establish those terms and conditions;
(h) respecting applications for approval of diagnostic facilities
and the information required to be disclosed;
(h.1) prescribing bodies for the purposes of the definition of
prescribed agencies in Part 7;
(h.2) prescribing a surcharge or a method of calculating a
surcharge for the purposes of section 37 ( 1.1);
(i) respecting the provision of dental care services and
benefits to beneficiaries or any designated categories of
beneficiaries, including specifying those provisions of this Act
and the regulations respecting the plan which apply or do not
apply to the provision of dental care services and benefits;
(j) respecting rights of subrogation in favour of the
commission;
(k) providing for transition arising from repeal of the former
Act and the Medical Service Plan Act, 1981;
(I) providing for sampling and confirmation of claims submitted
for payment under this Act;
(m) setting standards and conditions for the purposes of
services provided outside British Columbia;
(n) establishing fees for applications or renewals under this
Act and establishing different fees for different applications;
(o) respecting terms and conditions that are to be included in
information-sharing agreements under section 5 (5) and
prescribing enactments for the purposes of section 5 (6);
(p) respecting any other matter for which regulations are
required under this Act;
(q) permitting a health care practitioner to request that a
beneficiary pay a patient visit charge to cover all or part of the
cost of a visit;
(r) prescribing persons who must make a report under section
47.1;
(s) for the purposes of paragraph ( c) (ii) of the definition of
"resident" in section 1,
(i) prescribing periods,
(ii) establishing limits and conditions that must be met
for a shorter period to apply, and
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(iii) conferring on the commission a discretion to grant

approvals and to waive or modify limits and conditions
established under subparagraph (ii) of this paragraph.
(3) A regulation made under subsection (2) (c.01) in respect of proof of
identity may do one or more of the following:
(a) establish requirements;
(b) incorporate by reference, and as amended from time to
time, requirements established under another enactment;
( c) modify requirements incorporated by reference under
paragraph ( b) ;
( d) provide that proof of identity under another enactment or
for the purposes of a specified program or activity of a public
body, within the meaning of the Freedom of Information and
Protection of Privacy Act, is sufficient proof of identity for the
purposes of this Act.
Copyright (c) Queen's Printer, Victoria, British Columbia, Canada
50150
APPENDIX "C"
Constitution Act, 1982

DEMOCRATIC RIGHTS
Democratic rights of citizens
3. Every citizen of Canada has the right to vote in an election of members of the
House of Commons or of a legislative assembly and to be qualified for membership
therein.
Maximum duration of legislative bodies
4. (1) No House of Commons and no legislative assembly shall continue for

longer than five years from the date fixed for the return of the writs at a general
election of its members. <81 )
Continuation in special circumstances
(2) In time of real or apprehended war, invasion or insurrection, a House of

Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by
the votes of more than one-third of the members of the House of Commons or the
legislative assembly, as the case may be. <82 )
Annual sitting of legislative bodies
5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. <83 )
MOBILITY RIGHTS
Mobility of citizens
6. (1) Every citizen of Canada has the right to enter, remain m and leave
Canada.
Rights to move and gain livelihood
(2) Every citizen of Canada and every person who has the status of a permanent
resident of Canada has the right
(a) to move to and take up residence in any province; and
( b) to pursue the gaining of a livelihood in any province.
<81 )
See section 50, and footnotes (40) and (42) to sections 85 and 88, of the Constitution
Act, 1867.
<82 >
Replaces part of Class 1 of section 91 of the Constitution Act, 1867, which was repealed as set out in subitem 1(3) of the schedule to the Constitution Act, 1982.
83
< )
See footnotes (10), (41) and (42) to sections 20, 86 and 88 of the Constitution Act,
1867.
54

Limitation
(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than
those that discriminate among persons primarily on the basis of province of
present or previous residence; and
( b) any laws providing for reasonable residency requirements as a qualification
for the receipt of publicly provided social services.

Affirmative action programs
(4) Subsections (2) and (3) do not preclude any law, program or activity that has
as its object the amelioration in a province of conditions of individuals in that
province who are socially or economically disadvantaged if the rate of employment
in that province is below the rate of employment in Canada.
LEGAL RIGHTS
Life, liberty and security of person
7. 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.
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention
10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
( b) to retain and instruct counsel without delay and to be informed of that right;
and
(c) to have the validity of the detention determined by way of habeas corpus and
to be released if the detention is not lawful.
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
55

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(]) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of
the act or omission, it constituted an offence under Canadian or international law
or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally
found guilty and punished for the offence, not to be tried or punished for it again;
and
(i) if found guilty of the offence and if the punishment for the offence has been
varied between the time of commission and the time of sentencing, to the benefit
of the lesser punishment.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment
or punishment.
Self-crimination
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Interpreter
14. A party or witness in any proceedings who does not understand or speak the
language in which the proceedings are conducted or who is deaf has the right to the
assistance of an interpreter.
EQUALITY RIGHTS
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
56

Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability. <84l
OFFICIAL LANGUAGES OF CANADA
Official languages of Canada
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the
Parliament and government of Canada.
Official languages of New Brunswick
(2) English and French are the official languages of New Brunswick and have
equality of status and equal rights and privileges as to their use in all institutions of
the legislature and government of New Brunswick.
Advancement of status and use
(3) Nothing in this Charter limits the authority of Parliament or a legislature to

advance the equality of status or use of English and French.
English and French linguistic communities in New Brunswick
16.1 ( 1) The English linguistic community and the French linguistic community
in New Brunswick have equality of status and equal rights and privileges, including
the right to distinct educational institutions and such distinct cultural institutions as
are necessary for the preservation and promotion of those communities.
Role of the legislature and government of New Brunswick
(2) The role of the legislature and government of New Brunswick to preserve
and promote the status, rights and privileges referred to in subsection (1) is affirmed. <85l
<84l
Subsection 32(2) provides that section 15 shall not have effect until three years after section 32 comes into force. Section 32 came into force on April 17, 1982; therefore,
section 15 had effect on April 17, 1985.
(SS) Section 16.1 was added by the Constitution Amendment, 1993 (New Brunswick) (see
SI/93-54).
57

Proceedings of Parliament
17. (1) Everyone has the right to use English or French in any debates and other
proceedings of Parliament. <86l
Proceedings ofNew Brunswick legislature
(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick. <87l
Parliamentary statutes and records
18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
(88)
New Brunswick statutes and records
(2) The statutes, records and journals of the legislature of New Brunswick shall
be printed and published in English and French and both language versions are
equally authoritative. <89)
Proceedings in courts established by Parliament
19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament. <90>
Proceedings in New Brunswick courts
(2) Either English or French may be used by any person in, or in any pleading in
or process issuing from, any court of New Brunswick. <91 >
Communications by public vvith federal institutions
20. ( 1) Any member of the public in Canada has the right to communicate with,
and to receive available services from, any head or central office of an institution of
the Parliament or government of Canada in English or French, and has the same
right with respect to any other office of any such institution where
86
See section 133 of the Constitution Act, 1867 and footnote (67).
(87)
Ibid.
(88)
Ibid.
(89)
Ibid.
(90)
Ibid.
(91)
Ibid.
58

(a) there is a significant demand for communications with and services from that
office in such language; or
(b) due to the nature of the office, it is reasonable that communications with and
services from that office be available in both English and French.

Communications by public with New Brunswick institutions
(2) Any member of the public in New Brnnswick has the right to communicate
with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.
Continuation of existing constitutional provisions
21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege

or obligation with respect to the English and French languages, or either of them,
that exists or is continued by virtue of any other provision of the Constitution of
Canada. <92>
Rights and privileges preserved
22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into
force of this Charier with respect to any language that is not English or French.
MINORITY LANGUAGE EDUCATIONAL RIGHTS
Language of instruction
23. (I) Citizens of Canada

(a) whose first language learned and still understood is that of the English or
French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or
French and reside in a province where the language in which they received that
instruction is the language of the English or French linguistic minority population
of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province. <93>
Continuity of language instruction
(2) Citizens of Canada of whom any child has received or is receiving primary or
secondary school instruction in English or French in Canada, have the right to have
<92 >
See, for example, section 133 of the Constitution Act, 1867 and the reference to the
Manitoba Act, 1870 in footnote (67) to that section.
<93>
Paragraph 23(l)(a) is not in force in respect of Quebec. See section 59, below.
59

all their children receive primary and secondary school instruction in the same language.
Application where numbers warrant
(3) The right of citizens of Canada under subsections (1) and (2) to have their
children receive primary and secondary school instruction in the language of the
English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have
such a right is sufficient to warrant the provision to them out of public funds of
minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have
them receive that instruction in minority language educational facilities provided
out of public funds.
ENFORCEMENT
Enforcement of guaranteed rights and freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charier, have
been infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the comi considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a comi concludes that evidence
was obtained in a manner that infringed or denied any rights or freedoms guaranteed
by this Charter, the evidence shall be excluded if it is established that, having regard
to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
60

GENERAL
Aboriginal rights and freedoms not affected by Charter
25. The guarantee in this Chmier of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or
freedoms that pe1iain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation
of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or
may be so acquired. <94l
Other rights and freedoms not affected by Charter
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
Multicultural heritage
27. This Charter shall be interpreted in a manner consistent with the preservation
and enhancement of the multicultural heritage of Canadians.
Rights guaranteed equally to both sexes
28. Notwithstanding anything in this Charter, the rights and freedoms referred to
in it are guaranteed equally to male and female persons.
Rights respecting certain schools preserved
29. Nothing in this Charter abrogates or derogates from any rights or privileges
guaranteed by or under the Constitution of Canada in respect of denominational,
separate or dissentient schools. <95>
Application to territories and territorial authorities
30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Tenitory
and the Northwest Territories, or to the appropriate legislative authority thereof, as
the case may be.
<94l Paragraph 25(b) was repealed and re-enacted by the Constitution Amendment
Proclamation, 1983 (see Sl/84-102). Paragraph 25(b) originally read as follows:
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims
settlement.
<95l
See section 93 of the Constitution Act, 1867 and footnote (50).
61

Legislative powers not extended
31. Nothing in this Charter extends the legislative powers of any body or authori-
ty.
APPLICATION OF CHARTER
Application of Charter
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 Yukon Te1Titory
and Northwest 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.

Exception
(2) Notwithstanding subsection (1), section 15 shall not have effect until three
years after this section comes into force.
Exception where express declaration
33. (1) 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.
Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under

this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
Five year limitation
(3) A declaration made under subsection (1) shall cease to have effect five years
after it comes into force or on such earlier date as may be specified in the declaration.
Re-enactment
(4) Parliament or the legislature of a province may re-enact a declaration made

under subsection (1 ).
Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
62

CITATION
Citation
34. This Part may be cited as the Canadian Charter of Rights and Freedoms.
PART II
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
Recognition of existing aboriginal and treaty rights
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed.
Definition of "aboriginal peoples of Canada"
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and
Metis peoples of Canada.
Land claims agreements
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now
exist by way of land claims agreements or may be so acquired.
Aboriginal and treaty rights are guaranteed equally to both sexes
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty
rights referred to in subsection (1) are guaranteed equally to male and female persons. (96)
Commitment to participation in constitutional conference
35 . 1 The government of Canada and the pro,rincial governments are committed

to the principle that, before any amendment is made to Class 24 of section 91 of the
"Constitution Act, 1867'', to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the
proposed amendment, composed of the Prime Minister of Canada and the first
ministers of the provinces, will be convened by the Prime Minister of Canada;
and
( b) the Prime Minister of Canada will invite representatives of the aboriginal
peoples of Canada to participate in the discussions on that item. <97l
<96) Subsections 35(3) and (4) were added by the Constitution Amendment Proclama-
tion, 1983 (see Sl/84-102).

<97>
Section 35.1 was added by the Constitution Amendment Proclamation, 1983 (see SI/
84-102).
63

PART III
EQUALIZATION AND REGIONAL DISPARITIES
Commitment to promote equal opportunities
36. (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their
legislative authority, Parliament and the legislatures, together with the government
of Canada and the provincial governments, are committed to
(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering economic development to reduce disparity in opp01tunities; and
(c) providing essential public services ofreasonable quality to all Canadians.
Commitment respecting public services
(2) Parliament and the government of Canada are committed to the principle of
making equalization payments to ensure that provincial governments have sufficient
revenues to provide reasonably comparable levels of public services at reasonably
comparable levels of taxation. <98 )
PART IV
CONSTITUTIONAL CONFERENCE
37. Repealed. <99l
<98)
See footnotes (58) and (59) to sections 114 and 118 of the Constitution Act, 1867.
<99l Section 54 of the Constitution Act, 1982 provided for the repeal of Part IV (sec-
tion 37) one year after Part VII came into force. Part VU came into force on April 17,
1982 repealing Part IV on April 17, 1983. Section 37 read as follows:
37. (I) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the
provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force.
(2) The conference convened under subsection (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition
of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada
shall invite representatives of those peoples to participate in the discussions on that item.
(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of the conference
convened under subsection (1) that, in tl1e opinion of the Prime Minister, directly affects the Yukon Territory and
tl1e Northwest Territories.
64

PART IV.I
CONSTITUTIONAL CONFERENCES
37 .1 Repealed.
<100l
PARTV
PROCEDURE FOR AMENDING CONSTITUTION OF CANADA <101 l
General procedure for amending Constitution of Canada
38. (I) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
( b) resolutions of the legislative assemblies of at least two-thirds of the provinces
that have, in the aggregate, according to the then latest general census, at least
fifty per cent of the population of all the provinces.
Majority of members
(2) An amendment made under subsection (1) that derogates from the legislative
powers, the proprietary rights or any other rights or privileges of the legislature or
government of a province shall require a resolution supported by a majority of the
<100l Part IV. t (section 37.1 ), which was added by the Constitution Amendment Procla-
mation, 1983 (see SI/84-102), was repealed on April 18, 1987 by section 54.1 of the Constitution Act, 1982. Section 37.1 read as follows:
37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime
Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that
date.
(2) Each conference convened under subsection (I) shall have included in its agenda constitutional matters
that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters.
(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of a conference
convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and
the Northwest Territories.
(4) Nothing in this section shall be construed so as to derogate from subsection 35(1).
Prior to the enactment of Part V, certain provisions of the Constitution of Canada

and the provincial constitutions could be amended pursuant to the Constitution Act,
1867. See footnotes {44) and {48) to section 91, Class land section 92, Class 1 of that
Act, respectively. Other amendments to the Constitution could only be made by
enactment of the Parliament of the United Kingdom.
(lOl)
65

members of each of the Senate, the House of Commons and the legislative assemblies required under subsection ( 1).
Expression of dissent
(3) An amendment referred to in subsection (2) shall not have effect in a

province the legislative assembly of which has expressed its dissent thereto by resolution supp011ed by a majority of its members prior to the issue of the proclamation
to which the amendment relates unless that legislative assembly, subsequently, by
resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.
Revocation of dissent
(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.
Restriction on proclamation
39. (1) A proclamation shall not be issued under subsection 38(1) before the expiration of one year from the adoption of the resolution initiating the amendment
procedure thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.
Idem
(2) A proclamation shall not be issued under subsection 38(1) after the expiration
of three years from the adoption of the resolution initiating the amendment procedure thereunder.
Compensation
40. Where an amendment is made under subsection 3 8(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial
legislatures to Parliament, Canada shall provide reasonable compensation to any
province to which the amendment does not apply.
Amendment by unanimous consent
41. An amendment to the Constitution of Canada in relation to the following

matters may be made by proclamation issued by the Governor General under the
Great Seal of Canada only where authorized by resolutions of the Senate and House
of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor
of a province;
(b) the right of a province to a number of members in the House of Commons
not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
66
(c) subject to section 43, the use of the English or the French language;
(d) the composition of the Supreme Court of Canada; and
(e) an amendment to this Part.

Amendment by general procedure
42. (I) An amendment to the Constitution of Canada in relation to the following

matters may be made only in accordance with subsection 38(1):
(a) the principle of proportionate representation of the provinces in the House of
Commons prescribed by the Constitution of Canada;
( b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in
the Senate and the residence qualifications of Senators;
(d) subject to paragraph 4l(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(j) notwithstanding any other law or practice, the establishment of new

provinces.
Exception
(2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to

matters referred to in subsection (1 ).
Amendment of provisions relating to some but not all provinces
43. An amendment to the Constitution of Canada in relation to any provision that

applies to one or more, but not all, provinces, including
(a) any alteration to boundaries between provinces, and
(b) any amendment to any provision that relates to the use of the English or the
French language within a province,

may be made by proclamation issued by the Governor General under the Great Seal
of Canada only where so authorized by resolutions of the Senate and House of
Commons and of the legislative assembly of each province to which the amendment
applies.
Amendments by Parliament
44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or
the Senate and House of Commons.
67

Amendments by provincial legislatures
45. Subject to section 41, the legislature of each province may exclusively make
laws amending the constitution of the province.
Initiation of amendment procedures
46. (1) The procedures for amendment under sections 38, 41, 42 and 43 may be
initiated either by the Senate or the House of Commons or by the legislative assembly of a province.
Revocation of authorization
(2) A resolution of assent made for the purposes of this Part may be revoked at
any time before the issue of a proclamation authorized by it.
Amendments without Senate resolution
47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the
adoption by the House of Commons of a resolution authorizing its issue, the Senate
has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.
Computation of period
(2) Any period when Parliament is prorogued or dissolved shall not be counted
in computing the one hundred and eighty day period referred to in subsection (1 ).
Advice to issue proclamation
48. The Queen's Privy Council for Canada shall advise the Governor General to
issue a proclamation under this Part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this Part.
Constitutional conference
49. A constitutional conference composed of the Prime Minister of Canada and

the first ministers of the provinces shall be convened by the Prime Minister of
Canada within fifteen years after this Part comes into force to review the provisions
of this Part. <102>
<102> A First Ministers Meeting was held June 20-21, 1996.
68

PART VI
AMENDMENT TO THE CONSTITUTION ACT, 1867
50.
(103)
51.
(104)
PART VII
GENERAL
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Constitution of Canada
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;

( b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order refeiTed to in paragraph (a) or (b).
Amendments to Constitution of Canada
(3) Amendments to the Constitution of Canada shall be made only in accordance

with the authority contained in the Constitution of Canada.
Repeals and new names
53. (1) The enactments referred to in Column I of the schedule are hereby repealed or amended to the extent indicated in Column II thereof and, unless repealed,
shall continue as law in Canada under the names set out in Column III thereof.
Consequential amendments
(2) Every enactment, except the Canada Act 1982, that refers to an enactment referred to in the schedule by the name in Column I thereof is hereby amended by
substituting for that name the corresponding name in Column III thereof, and any
British North America Act not referred to in the schedule may be cited as the Constitution Act followed by the year and number, if any, of its enactment.
<103>
The text of this amendment is set out in the Constitution Act, 1867, as section 92A.
<104>
The text of this amendment is set out in the Constitution Act, 1867, as the Sixth
Schedule.
69

Repeal and consequential amendments
54. Part IV is repealed on the day that is one year after this Part comes into force
and this section may be repealed and this Act renumbered, consequentially upon the
repeal of Part IV and this section, by proclamation issued by the Governor General
under the Great Seal of Canada. <105>
54.1 Repealed.
106
<
>
French version of Constitution of Canada
55. A French version of the portions of the Constitution of Canada referred to in

the schedule shall be prepared by the Minister of Justice of Canada as expeditiously
as possible and, when any portion thereof sufficient to warrant action being taken
has been so prepared, it shall be put forward for enactment by proclamation issued
by the Governor General under the Great Seal of Canada pursuant to the procedure
then applicable to an amendment of the same provisions of the Constitution of
Canada. <107>
English and French versions of certain constitutional texts
56. Where any portion of the Constitution of Canada has been or is enacted in
English and French or where a French version of any portion of the Constitution is
enacted pursuant to section 55, the English and French versions of that portion of
the Constitution are equally authoritative.
English and French versions of this Act
57. The English and French versions of this Act are equally authoritative.
Commencement
58. Subject to section 59, this Act shall come into force on a day to be fixed by
proclamation issued by the Queen or the Governor General under the Great Seal of
Canada. <108>
<105>
Part VU came into force on April 17, 1982 (see Sl/82-97).
<106> Section 54.1, which was added by the Constitution Amendment Proclamation, 1983
(see Sl/84-102), provided for the repeal of Part IV.l and section 54.1 on April 18, 1987.
Section 54.1 read as follows:
54.1 Part IV. I and this section are repealed on April 18, 1987.
<107>
The French Constitutional Drafting Committee was established in 1984 with a

mandate to assist the Minister of Justice in that task. The Committee's Final Report
was tabled in Parliament in December 1990.
<108>
The Act, with the exception of paragraph 23(l)(a) in respect of Quebec, came into
force on April 17, 1982 by proclamation issued by the Queen (see Sl/82-97).
70

Commencement of paragraph
23(l)(a) in respect of Quebec
59. (1) Paragraph 23(1)(a) shall come into force in respect of Quebec on a day
to be fixed by proclamation issued by the Queen or the Governor General under the
Great Seal of Canada.
Authorization of Quebec
(2) A proclamation under subsection (1) shall be issued only where authorized
by the legislative assembly or government of Quebec. <109>
Repeal ofthis section
(3) This section may be repealed on the day paragraph 23(1)(a) comes into force
in respect of Quebec and this Act amended and renumbered, consequentially upon
the repeal of this section, by proclamation issued by the Queen or the Governor
General under the Great Seal of Canada.
Short title and citations
60. This Act may be cited as the Constitution Act, 1982, and the Constitution
Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution
Acts, 1867to1982.
References
61. A reference to the "Constitution Acts, 1867 to 1982" shall be deemed to include a reference to the "Constitution Amendment Proclamation, 1983". <110>
<109l
No proclamation has been issued under section 59.
Section 61 was added by the Constitution Amendment Proclamation, 1983 (see SI/
84-102). See also section 3 of the Constitution Act, 1985 (Representation), S.C. 1986, c. 8,
Part I and the Constitution Amendment, 1987 (Newfoundland Act) (see SI/88-11).
(UO)
71
APPENDIX "D"
Expert Responses to Expert Reports

Plaintiffs Expert Responded to Defendants (or Intervenors) Expert Report
Defendants Expert Responded to Plaintiffs Expert Report
Plaintiffs and Defendants Experts Each Responded to the Other
Dr. Robert McMurtry

Prof. Charles Normand
Prof. Adam Oliver
Dr. Les Vertesi
Prof. Theodore Marmor
Dr. Stephen Tredwell
Prof. Greg Marchildon
Dr. Albert Schumacher
Prof. Sara Kreindler
John McGurran
Prof. Eike-Henner Kluge
Prof. Alistair McGuire
Prof. Jeremiah Hurley
Prof. Yanick LaBrie
Prof. James Gillespie
Prof. Danieal Kessler
Dr. Cyril Frank
Dr. Robert Hollinshead
Prof. P.J. Devereaux
Peter Holle
Prof. Jacqueline Cummings
Nadeem Esmail
Dr. Edward Charleton
Dr. Ross Davidson
Prof. Ivy Bourgeault
Prof. Michael Bliss
Prof. ke Blomqvist
Dr. Eric Bohm
Dr. Les Vertesi

Dr. Stephen Tredwell
Dr. Albert Schumacher
John McGurran
Prof. Alistair McGuire
Prof. Yanick LaBrie
Prof. Danieal Kessler
Prof. Marie-Claude Prmont
Dr. Robert Hollinshead
Prof. David Himmelstein
Peter Holle
Dr. Jeffrey Turnbull
Nadeem Esmail
Prof. Jason Sutherland
Dr. Ross Davidson
Scott Sinclair
Prof. Michael Bliss

Prof. ke Blomqvist
Dr. Allyson Pollock
APPENDIX "E"
BRITISH
COLUMBIA
Ministry of
Health
Definition and Notes

Report:
Completed Surgeries in British Columbia
2009/10 to 2015/16
Project:
Definitions:
2016_0385
Unscheduled surgeries= total surgeries from the Discharge Abstract Database (DAD) minus scheduled surgeries from the Surgical Wait Times Production
Database (SWTP)
Scheduled surgeries= total surgeries in the Surgical Wait Times Production Database (SWTP) where the unscheduled surgery flag is NO
Inclusions:
Pediatric <17
Adult >=17
All patients receiving surgery in BC hospitals including non-BC residents
Exclusions:
SWTP: excludes the following Provincial Procedure Codes from the primary procedure field
Cardiac Surgeries
Corneal Transplants
Bronchoscopy
Colonoscopy
Gastroscopy
Proctoscopy
Sigmoidoscopy
Esophagoscopy
Laryngopharyngoscopy
Laryngoscopy
DAD: excludes the equivalent CCI codes as listed in SWTP appearing in any of the 20 DAD intervention fields
Explanatory Notes:
Discussion :
BC Children' s Hospital started reporting to the SPR in June 2011. Only years with complete data are provided in this graph .
Scheduled surgery wait times are calculated excluding patient unavailable dates.
After removing the procedures listed above, an analysis was done comparing the remaining elective surgeries in the DAD to the scheduled surgeries in SWTP,
there was still a substantial difference. SWTP has 13%-18% less scheduled cases than the elective cases in DAD for adults, and 10%-13% less for paediatrics.
Last Updated: July 29, 2016

Project: 2016_0385
Completed Surgeries in BC by weeks waiting Updated July 29 2016, Notes
Number of Scheduled Surgical Cases Completed

by Weeks Waiting -Adult (17+)
British Columbia, 2009/10 to 2015/16
100000
90000
80000
70000
2009/2010
2010/2011
"'
"'"'
u"'
.....
0
iii
.c
60000
2011/2012
2012/2013
50000
2013/2014
2014/2015
:I
40000
2015/2016
30000
20000
10000
0
eo
'\.
~
r/,'13
\)<
<o
'b
~<o
~"'
O'
"'"'
"'"'
'\.<o
"'"'
"'"'
Wait Time (Weeks)
"'"'
'?\)<
,,,ro
"'"'
\)<"'
\)<<o
0-'i
Sources: Surgical Wait Times Production Database (SWTP), site 130 , 146, and 149; Discharge Abstract Database (DAD), Health Sector Information, Analysis and Reporting, B.C. Ministry of Health
Notes:
- Data Includes all patients receiving surgery in BC hospitals including non-BC residents.
- Data excludes the following procedures: cardiac surgeries, cornea l transplants, bronchoscopy, colonoscopy, gastroscopy, proctoscopy, sigmoidoscopy, esophagoscopy, laryngopharyngoscopy, and laryngoscopy.
\)<'b
'?"'
'?'\.x
Number of Scheduled Surgical Cases Completed

by Weeks Waiting - Pediatric {<17)
British Columbia, 2012/13 to 2015/16
6000
Scheduled Surgeries
5000
2012/2013
~:::!Ill ~
MUMM
2013/2014
2014/2015
..0
2015/2016
z"
2000
1000
o..,-:,..eo
'\,
<o
'b
"'<:)
...,,<o
"''b
cs<?;
'\,<:)
"'"'
'\,'b
'?<:)
"'"'
Wait Time (Weeks)
">"-
,,,~
'?<o
'?'b
~<:)
~"'
.;:p-<;
Sources: Surgical Wait Times Prediction Database {SWTP}, site 130, 146, and 149; Discharge Abstract Database (DAD), Health Sector Information, Analysis and Reporting, B.C. Ministry of Health
Notes:
- Data Includes all patients receiving surgery in BC hospitals including non-BC residents.
-Data excl udes the following procedures: cardiac surgeries, corneal transplants, bronchoscopy, colonoscopy, gastroscopy, proctoscopy, sigmoldoscopy, esophagoscopy, laryngopharyngoscopy, and laryngoscopy.
- BC Chi ldren' s Hospital started reporting to the SPR in June 2011. Only years with complete data are provided in this graph.
'>-'b
'?<:)
<-,"-x
Healthcare Financing among 22 OECD Countries

Country
Pop.
(000,000)
Australia
23.8
Austria
Belgium
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
APPENDIX "F"
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)
Goods/services covered by public

health insurance plan
Co-pays in Public
System
Role for Private

Insurance
(Total Population
Coverage and Types2)
General tax
revenue;
Earmarked
income tax;
OOP (20%).
100.0
68
3,866 / #13 (2012)
Yes, when provider

charges above publicly
funded fee schemes
Duplicative (43.5%);
Supplementary
(46.3%)
8.8
Social insurance
(45%), General
government
(31%), OOP
(17%)
99.9
76
4,533 / #8
Yes, for most health

care services with
exemptions
Complementary
(33.3%);
Supplementary
(33.3%)
11.2
Social security
(66%), OOP
(18%)
99.0
77
4,256 / #11
Hospital services: Fully covered

Physician services: Covered at public fee
schedule rate
Pharmaceuticals: Subsidized
Dental and Vision: Subsidized
Community and Long-Term Care:
Subsidized
Hospital services: Subsidized
Physician services: Subsidized
Subsidized
Subsidized
Yes, user charges for

inpatient and
outpatient care and
pharmaceuticals
Complementary (77.4);
Supplementary (77.4)
OOP: Out-Of-Pocket Direct payments, cost-sharing or user charges. European Observatory on Health Systems and Policies, Financing Health Care in the European Union: Challenges and policy responses, at page 27 [See
Common Book of Documents, p. 4846]
2
Primary: Basic health coverage; Duplicative: Provides faster access or larger choice of provider for services covered by primary insurance; Complementary: Provides coverage of cost-sharing left after basic coverage;
Supplementary: Provides coverage for additional services uncovered by primary insurance, OECD, Health at a Glance 2015, at page 120 [See Common Book of Documents, p. 8284]

Country
Pop.
(000,000)
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
Canada
35.8
General
government
(69%);
Provincial/feder
al general tax
revenue
100.0
70
4,351 / #10
Yes, except for

physician and hospital
services/in-patient
prescriptions
67.0%; Supplementary
Denmark
5.7
Earmarked
income tax;
General
government
(84%)
100.0
84
4,553 / #7
Yes, mainly for

pharmaceuticals, dental
care and additional
provider choice
33.0%;
Complementary
Finland
5.5
General
government
(61%); OOP
(19%)
100.0
75
3,442 / #17

Physician services: Fully covered
Pharmaceuticals: In-patient prescriptions
fully covered; some out-patient subsidies
Dental and Vision: Not covered. Some
subsidies for minors and elderly
Community and Long-Term Care: Variable
subsidies among provinces
Dental and Vision: Dental fully covered for
minors; subsidized for adults. Vision care
subsidized
Community and Long-Term Care: Fully
covered
Subsidized

care services; those
under 18 exempt
Complementary
(11.5%);
Supplementary
(11.4%)

Country
Pop.
(000,000)
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
France
66.8
99.9
79
4,124 / #12

Dental and Vision: Minimally subsidized
Subsidized

care services
Complementary
(92.0%);
Supplementary
(92.0%)
Germany
81.4
88.8
77
4,819 / #6
33.0%; Primary (11%);

Complementary
(22.0%)
0.3
99.8
81 (inc.
capital
formation)
3,677 / #15

Subsidized
Subsidized
Yes, for outpatient

pharmaceuticals,
hospital stays and other
prescribed services
Iceland
Employer/empl
oyee earmarked
income and
payroll tax;
General tax
revenue;
Earmarked taxes
Employer/empl
oyee earmarked
income and
payroll tax;
General tax
revenue
General
government
(53%), Social
insurance (28%);
OOP (18.2%)
Yes, with exemptions

for vulnerable groups,
but not income-based.
37% of the population
is at least partially
exempt from copayments
0.2%; Primary

Country
Pop.
(000,000)
Ireland
4.6
Israel
8.4
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
General
government
revenue; OOP
(17%)
100.0
(30.22% of
residents
covered are
Category I3)
67 (inc.
capital
formation)
3,663 / #16 (2012)
Category I
Pharmaceuticals: Fully covered
Dental and Vision: Fully covered
Subsidized
No, for Category I

beneficiaries
44.6%; Duplicative
Earmarked
income-related
tax and general
government
revenues; OOP
(23%)
100.0
63
2,428 / #24
Category II
Subsidized
Hospital services: In-patient care fully
covered.
Physician services: Primary care fully
covered. Specialist care subsidized
Dental and Vision: Not covered
Subsidized
Yes, with exemptions

for vulnerable groups
except seniors. 30% of
the population is at
least partially exempt
from co-payments
Co-pays on covered
services except primary
care visits and hospital
admissions
The population is divided into two categories (I and II) depending on income and other eligibility criteria.

Country
Pop.
(000,000)
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
Italy
60.8
National
earmarked
corporate and
value-added
taxes; General
and regional tax
revenue; OOP
(22%)
100.0
77
3,077 / #20
Hospital services: Fully covered inpatients

Physician services: General practitioners
fully covered. Specialist care subsidized
vulnerable/disadvantaged populations
Subsidized
15.9%; Duplicative
Japan
127.0
100.0
83
3,713 / #14
Netherlands
16.9
General tax
revenue:
Mandatory
public health
insurance
contributions
Earmarked
payroll tax;
community-rated
insurance
premiums;
general tax
revenue
99.8
87 (Social
security
expenses
include
compulsory
out-ofpocket costsharing
payments)
5,131 / #4

Subsidized
Subsidized
Not for primary care

and hospital
admissions. Yes for
pharmaceuticals,
diagnostics and
outpatient specialist
visits. No exemptions
for disadvantaged
populations
Yes, 30% coinsurance
for all services or
goods, except for
children <3 years old
and low-income elderly
Yes, mandatory annual
deductible over all
health care expenses
except GPs, maternity
care. Additional copayments for select
goods and services like
pharmaceuticals,
transportation and
long-term care
Majority of population
has cash benefits in
case of illness. Limited
role for complementary
and supplementary
private insurance

Country
Pop.
(000,000)
New Zealand
4.6
Norway
Portugal
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
General tax
revenue
100.0
80
3,328 / #18
Yes, for general

practitioners (GPs),
nursing services at GP
clinics, pharmaceuticals
and long-term care
29.7%; Duplicative.
5.2
General tax
revenue,
national and
municipal taxes;
OOP (15%)
100.0
85
5,862 / #3
Yes, for GPs, specialist,

pharmaceuticals,
diagnostics and longterm care
8%; Duplicative.
10.3
General
government
taxation (65%),
OOP (27%)
100.0
66
2,514/#22

minors. Optometry not covered
Subsidized
Hospital services: Fully covered in-patients.
Outpatients subsidized.
Physician services: Subsidized.
Pharmaceuticals: Subsidized.
minors, nursing homes and medically predisposed inviduals. Optometry subsidized.
Subsidized.
Community and Long-Term Care: Info
Unavailable
Yes, for most services

but exemptions cover
55% of the population
21.1%; Duplicative

Country
Pop.
(000,000)
Spain
46.4
Sweden
Switzerland
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
General
government,
central and
regional taxes
(67%); OOP
(24%)
99.0
72
2,898 / #21
Yes, for
pharmaceuticals and
medical aids/devices
Primary (0.9%);
Duplicative (12.5%)
9.8
Mainly county
general tax
revenue, some
national tax
revenue; OOP
(15%)
100.0
84
4,904 / #5
Yes, small co-payments

for 20 year olds across
the public system
2.3%; Supplementary
8.3
Communityrated insurance
premiums;
General tax
revenue; OOP
(26%)
100.0
66
6,325 / #2

Pharmaceuticals: Subsidized. Fully covered
for >65 year olds
Dental and Vision: Dental care fully
covered; Eyeglasses and/or contact lenses
not covered
Community and Long-Term Care: Info
Unavailable
Hospital services: Subsidized. Fully covered
for <20 year olds
Physician services: Subsidized. Fully covered
for <20 year olds
Pharmaceuticals: Subsidized.
Dental and Vision: Subsidized. Fully covered
for <20 year olds
Subsidized
Dental and Vision: Adults not covered. Free
basic dental health care in schools and
vision aids for minors
Community and Long-Term Care: Limited
breadth of services subsidized
Annual Statutory
Health Insurance
premiums and
deductibles. 10%
coinsurance for all
services

Country
Pop.
(000,000)
United Kingdom
65.1
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
General tax
revenue.
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
100.0
83 (includes
capital
formation)
3,235 / #19

Pharmaceuticals: Subsidized. Hospital
inpatient fully covered
Dental and Vision: Dental subsidized.
Vision care generally not covered
Subsidized
Yes, for outpatient

pharmaceuticals, dental
care and residential
care
10.6%; Duplicative.

Country
Pop.
(000,000)
Primary
Sources of
Finance (Private
Insurance and
OOP1 payments
noted if 15%
of total).
% of pop.
covered by
Public Plan
% of health
care
publicly
financed
Health spending
per capita
(US$)/OECD
Ranking 2013 (or
nearest year)

Co-pays in Public
System
Role for Private

Insurance
(Total Population
United States
321.4
Medicare:
Payroll tax,
premiums,
federal tax
revenue;
Medicaid:
federal and state
tax revenue;
Private
insurance (35%)
34.5
48
8,713 / #1
Medicare:
Community and Long-Term Care: Not
covered
Medicare: Premiums,
annual deductibles and
coinsurance for
physician, hospital and
ambulatory care, copays for other services
including physician
visits.
Primary (52.5%);
Complementary (7.5%)
Medicaid:
Subsidized
Affordable Care Act:
Mandates coverage in 10 essential categories
but range of services and extent of coverage
varies by state. Essential categories include
ambulatory care, emergency services,
hospitalization, laboratory services,
maternity and newborn care and
prescription drugs.
Medicaid: No
premiums, variable
cost-sharing (nominal
co-pays, up to 20%
coinsurance).
Affordable Care Act:
Caps annual costsharing for most
private insurers

Glossary of sources
CB: Common Book of Documents
CF IP: The Commonwealth Fund, 2015 International Profiles of Health Care Systems
HAG: Health at a Glance 2015, OECD Indicators
HSIC: Health Systems Institutional Characteristics, OECD Health Working Papers No. 50
FHCEU: Sarah Thomson, Thomas Foubister & Elias Mossialos, Financing Health Care in the European Union, Challenges and Policy Responses
Sources:
Country
Population
(000,000)
(2015)
Primary
Sources of
Finance
% of pop.
covered by
Public Plan
(2013)
% of health
care
publicly
financed
Health
spending
per capita
(US$)/OEC
D Ranking
2013
Included in public
Co-pays in Public System
Role for Private

Insurance
Australia
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 13, 14 [CB, pp. 9249-50]
CF IP, pages 11, 13 [CB,

pp. 9247, 9249].
HAG, page 121, Figure

7.2[CB, p. 8285];
HSIC, page 26, Table
11 [CB, p. 9464].
Austria
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
CF IP, page 6
[CB, p.
9243]; HAG,
page 171,
Figure 9.8
[CB, p.
8334A].
HAG, page
171, Figure
9.8 [CB, p.
8334A].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
FHCEU, at p. 112 [CB, p. 4930]
FHCEU, at p. 112 [CB, p.

4930]

7.2 [CB, p. 828];
11 [CB, p. 9464].
HAG, page
171, Figure
9.8 [CB, p.
8334A].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
FHCEU, at p. 115 [CB, p. 4933]
FHCEU, at p. 112 [CB, p.

4930]

7.2 [CB, p. 8285];
11 [CB, p. 9464].
Belgium
10

Country
Population
(000,000)
(2015)
Primary
Sources of
Finance
Canada
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
Denmark
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
Finland
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
HAG, page
171, Figure
9.8 [CB, p.
8334A]; CF
IP, page 6
[CB, p. 9243]
HAG, page
171, Figure
9.8 [CB, p.
8334A]; CF
IP, page 6
[CB, p. 9243]
HAG, page
171, Figure
9.8 [p.
8334A].
France
CF IP, page 6
[CB, p. 9243]
% of pop.
covered by
Public Plan
(2013)
% of health
care
publicly
financed
Health
spending
per capita
(US$)/OEC
D Ranking
2013
Included in public
Role for Private

Insurance
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, page 22 [CB, p. 9258].
CF IP, page 22
[CB, p. 9258].

7.2 [CB, p. 8285];
11 [CB, p. 9464].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, page 40 [CB, p. 9276].
CF IP, pages 6, 39, 41

[CB, pp. 9243, 9275,
9277].

7.2 [CB, p. 8285].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
FHCEU, at p. 134 [CB, p. 4952]
FHCEU, at p. 134
[CB, p. 4952]

7.2 [CB, p. 8285];
11 [CB, p. 9464].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 60-63 [CB, pp. 9295-9298].
CF IP, pages 59, 60, 63

[CB, pp. 9294-5, 9298].

7.2 [CB, p. 8285].
11

Country
Population
(000,000)
(2015)
Primary
Sources of
Finance
Germany
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
CF IP, page 6
[CB, p. 9243]
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
171, Figure
9.8 [CB, p.
8334A].
HAG, page
121, Figure
7.1 [CB, p.
8285].
Iceland
Ireland
Israel
HAG, page
171, Figure
9.8 [CB, p.
8334A]
CF IP, page 6
[CB, p.
9243]; HAG,
page 171,
Figure 9.8
[CB, p.
8334A].
% of pop.
covered by
Public Plan
(2013)
HAG, page
121, Figure
7.1 [CB, p.
8285]
HAG, page
121, Figure
7.1 [CB, p.
8285].
% of health
care
publicly
financed
Health
spending
per capita
(US$)/OEC
D Ranking
2013
Included in public
Role for Private

Insurance
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 70-72 [CB, pp. 9305-7].
CF IP, pages 70-72

[CB, p. 9305-7].

7.2 [CB, p. 8285];
<http://dx.doi.org/10.
1787/888933281052>4
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
HSIC, page 20, Table 8 [CB, p. 9458].
HSIC, page 24, Table 10

[CB, p. 9462].

7.2 [CB, p. 8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
FHCEU, at p. 152, 153 [CB, p. 4970-1]
FHCEU, at p. 152, 153

[CB, p. 4970-1;
HSIC, page 24, Table 10
[CB, p. 9462].

7.2 [[CB, p. 8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 88-90 [CB, pp. 9322-4].
CF IP, pages 88
[CB, p. 9322].

7.2 [CB, p. 8285].
Information found in tab Data7.2
12

Country
Population
(000,000)
(2015)
Primary
Sources of
Finance
Italy
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
CF IP, page 6
[CB, p. 9243]
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
CF IP, page
6, 107 [CB,
p. 9243,
9340]
HAG, page
121, Figure
7.1 [CB, p.
8285].
CF IP, page 6
[CB, p. 9243]
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
Japan
Netherlands
New Zealand
Norway
% of pop.
covered by
Public Plan
(2013)
% of health
care
publicly
financed
Health
spending
per capita
(US$)/OEC
D Ranking
2013
Included in public
Role for Private

Insurance
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 98101 [CB, pp. 9331-4].
CF IP, page 100, 105

[CB, pp. 9333, 9338].

11 [CB, p. 9464].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 108-110 [CB, pp. 9341-3].
CF IP, pages 107, 109

[CB, pp. 9340, 9342].
CF IP, page 107 [CB,

p. 9340].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
Health Systems in Transition

Netherlands 2016, pages 72, 73
[CB, p. 9062-3].

7.2 [CB, p. 8285].
CF IP, page 6
[CB, p. 9243]
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 123-125. [CB, pp. 9356-8]
CF IP, pages 116 118

[CB, pp. 9349-51];
Health Systems in
Transition Netherlands
2016, page 87
[CB, p. 9077].
CF IP, pages 123-125
[CB, pp. 9356-8].
CF IP, page 6
[CB, p. 9243]
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 133, 134 [CB, pp. 9365-6]

[CB, pp. 9366, 9368].
CF IP, page 133 [CB,

p. 9365].

7.2 [CB, p. 8285].
13

Country
Population
(000,000)
(2015)
Primary
Sources of
Finance
Portugal
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
Spain
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
Sweden
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
Switzerland
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
FHCEU, at
p. 179 [CB,
p. 4997];
HAG, page
171, Figure
9.8 [CB, p.
8334A].
FHCEU, at
p. 192 [CB,
p. 5010];
HAG, page
171, Figure
9.8 [CB, p.
8334A].
CF IP, page 6
[CB, p.
9243]; HAG,
page 171,
Figure 9.8
[CB, p.
8334A].
CF IP, page 6
[CB, p.
9243]; HAG,
page 171,
Figure 9.8
[CB, p.
8334A].
% of pop.
covered by
Public Plan
(2013)
% of health
care
publicly
financed
Health
spending
per capita
(US$)/OEC
D Ranking
2013
Included in public
Role for Private

Insurance
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
HSIC, pages 19-20, Tables 8, 9

[CB, p. 9457-60].
FHCEU, at p. 178
[CB, p. 4996]

7.2 [CB, p. 8285].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
FHCEU, at p. 191 [CB, p. 5009]
FHCEU, at p. 191
[CB, p. 5009]

7.2 [CB, p. 8285];
1787/888933281052>
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 154 -156 [CB, pp. 9384-6]
CF IP, pages 154 156

[CB, pp. 9384-6]

11 [CB, p. 9464].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
HAG, page
165, Figure
9.1 [CB, p.
8329].
Health Systems in Transition

Switzerland 2015, pages 94, 95
[CB, p. 8460-1].

[CB, pp. 9391-2];
Health Systems in
Transition Switzerland
2015, pages 96, 97
[CB, p. 8462-3].

7.2 [CB, p. 8285].
14

Country
Population
(000,000)
(2015)
Primary
Sources of
Finance
United Kingdom
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
http://data.
worldbank.
org/indicat
or/SP.POP.
TOTL
CF IP, page 6
[CB, p. 9243]
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
CF IP, page 6
[CB, p.
9243]; HAG,
page 171,
Figure 9.8
[CB, p.
8334A].
HAG, page
121, Figure
7.1 [CB, p.
8285].
HAG, page
171, Figure 9.8
[CB, p.
8334A].
United States
% of pop.
covered by
Public Plan
(2013)
% of health
care
publicly
financed
Health
spending
per capita
(US$)/OEC
D Ranking
2013
Included in public
Role for Private

Insurance
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, pages 50, 52 [CB, pp. 9285,

9287];
Health Systems in Transition United
Kingdom (2012), page 54 [CB, p. 8735].
CF IP, pages 50, 52

[CB, pp. 9285, 9287].

7.2 [CB, p. 8285].
HAG, page
165, Figure
9.1 [CB, p.
8329].
CF IP, page 171, 172 [CB, pp. 9400-1]
CF IP, page 172

[CB, p. 9401]

7.2 [CB, p. 8285];
1787/888933281052>
15
Healthcare Supply Delivery among 22 OECD countries
Country
Payment
Model
Australia
Selfemployed
FFS3
General Practitioners
Dual
Extra Billing2
1
Practice
allowed?
allowed?
In some
circumsta
nces
Constitution
forbids govt
price controls.
Govt uses bulkbilling to
control price for
of GP services.
Payment
(in/out-patient)
Out: FFS
In: salary
Specialists
Dual
Practice
Allowed
(outpatient)?
Yes
Extra-Billing
When patients
pay at point-ofservice, extrabilling allowed
(majority of
outpatient
specialist
contacts).
When
Medicare pays,
prices fixed
under bulkbilling.
Beds
per
1k
3.8
APPENDIX "G"
Facilities
Two-Tier Care in Hospitals
No charge for public patients in public

hospitals.
Private practice allowed for salaried
doctors in public hospitals; not allowed
for self-employed doctors.
Unregulated fees for private patients in
public and private hospitals; Medicare
pays only 75% of the Medicare Fee
Schedule rate for private patients in
public or private hospitals. Private
Health Insurance (PHI) will contract
with hospitals to limit fees.
Private hospitals account for 21% of
total hospital spending; account for of
admissions.
Private hospitals treat 4 of every 10
admitted hospital patients.
Private-pay patients pay supplemental
fees to treating physician.
Dual Practice: The ability of physicians to practice in both public and private sectors. OECD, Health Systems Institutional Characteristics, at page 27 [See Common Book of Documents, p. 9465]
Extra Billing: The ability of physicians to charge patients higher fees than the prices billed to third-party payers (e.g. public or private insurer). OECD, Health Systems Institutional Characteristics, at
page 121 [See Common Book of Documents, p. 9559]
3
Fee-for-Service: Payment model by which providers are paid for each service provided at a predetermined fee schedule. Commonwealth Fund, 2015 International Profiles of Health Care Systems, at
page 23 [See Common Book of Documents, p. 9259]
2
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Payment
(in/out-patient)
Specialists
Dual
Practice
Allowed
(outpatient)?
Extra-Billing
Beds
per
1k
Austria
Allowances
/FFS/Cap4
Yes
Non-contracted
physicians can
extra-bill.
Contracted
physicians can
extra-bill only
private patients
Out:
Allowances/FF
S
In: Salary
Yes
Noncontracted
physicians can
extra-bill
Contracted
physicians can
extra-bill only
private patients
7.7
Belgium
FFS
Yes
Non-contracted
physicians can
extra-bill;
Contracted
physicians can
extra-bill only
private patients
Out: FFS
In: FFS
Yes
Noncontracted
physicians can
extra-bill;
Contracted
physicians can
extra-bill only
private patients
6.3
Facilities
Public hospitals paid based on activity

(DRG5 payment system); patients may
pay supplements for superior
accommodation
Private hospitals (8.7% of acute care
beds) are funded through contracts with
PHI companies.
Salaried doctors can treat private
patients in public hospitals
Activity-based funding for public
hospitals, with physicians billing FFS
No for-profit private hospitals
Private practice is allowed in public
hospitals, by both self-employed and
contracted/salaried doctors. Fees are
unregulated for private practice.
Cap: Capitation A fixed fee per patient enrolled with a particular provider or per inhabitant of a specific area. European Observatory on Health Systems and Policies, Financing Health Care in the
European Union: Challenges and policy responses, at page 41 [See Common Book of Documents, p. 4860]
5
DRG: Diagnostic Related Group a case-based payment system that groups patients by diagnosis and resources required. Madelon Kroneman et al, Health Systems in Transition Netherlands (2016), at page
94 [See Common Book of Documents, p. 9084]; OECD, Health System Institutional Characteristics, at page 35 para 105 [See Common Book of Documents, p. 9473]
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Canada
FFS
No
Denmark
FFS/Cap
Yes
Physicians can
only extra-bill if
they opt out of
medicare; very
few do
Many provinces
ban PHI for
publicly insured
care
Allowed for
Group 2
patients (2% of
pop.)
These patients
agree to extra
billing for
greater choice in
doctor.
Payment
(in/out-patient)
Specialists
Dual
Practice
Allowed
(outpatient)?
Extra-Billing
Beds
per
1k
Facilities
Out: FFS
In: FFS
In some
circumstance
s
Physicians can
only extra-bill
if they opt out
of medicare;
very few do
2.7
Predominantly public and private nonprofit. There are no data on the number
of private for-profit hospitals and clinics.
Generally funded under annual global
budgets.
Private payments in public hospitals
restricted to amenities (private rooms)
and uninsured services.
Out: salary
In: salary
Yes
Not allowed
3.1
Hospitals are predominantly publicly

owned (97%), funded by a combination
of fixed budget and activity-based
payments.
Hospital physicians are salaried and
private practice is not allowed
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Payment
(in/out-patient)
Specialists
Dual
Practice
Allowed
(outpatient)?
Extra-Billing
Beds
per
1k
Finland
Salary/Cap
/FFS
Yes
Allowed in
private sector.
11% of
physicians are
full-time private;
1/3 are dual
practice.
Out: salary
In: Salary
Yes
Allowed In:
private sector
4.9
France
FFS
Yes
Allowed for
Sector 2 (13% of
GPs)
Out: FFS,
Salary (hospital
out-patient)
In: Salary
Yes
Allowed for
Sector 2 (40%
of specialists)
6.3
Facilities
Hospitals are mostly public (89%),

funded by global budgets and activitybased funding.
Specialists in public hospitals require
permission of hospital board to work in
private hospital, and work must be
outside normal working hours.
Specialists in public hospitals not
allowed to see private out-patient; can
see limited number of private inpatients. Private patients pay on fee-forservice basis.
Public hospitals account for 67% of
beds, private for-profit make up 25%,
and private non-profit make up the
remainder. All are funded with activitybased payments (DRG).
Physician extra-billing (Sector 2) is
allowed in public and private hospitals,
but must be shared with hospital. It is
estimated that 10% of some hospital
specialists had treated private patients in
2013.
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Payment
(in/out-patient)
Specialists
Dual
Practice
Allowed
(outpatient)?
Extra-Billing
Beds
per
1k
Germany
FFS
No
No
Out: FFS
In: Salary
No
Not allowed
8.3
Iceland
Salary
In some
circumsta
nces
No
Out: FFS
In: Salary
In some
circumstance
s
Out: No
In: No
3.2
Ireland
FFS
In some
circumsta
nces
No, but GPs can

freely charge
private patients
(Category 2)
Out: FFS
In: Salary
In some
circumstance
s
No, but GPs

can freely
charge private
patients
(Category 2)
2.8
Israel
Varies by
health
plan:
Salary/Cap
/ FFS
Yes
No
Out: Cap/FFS
In: Salary
Limited
arrangements
for
supplemental
FFS work in
public and nonprofit hospitals
Yes
No
3.1
Facilities
Public hospitals account for half of

beds; private non-profit account for a
third. Private for-profit hospitals are only
a sixth of beds. Hospitals are paid
through DRG payments.
Only senior hospital doctors can serve
privately insured patients on a fee-forservice basis on top hospital salary
100% public hospitals, funded by global
budgets
No private practice allowed in public
hospitals
12% of acute-care beds held by for-profit
hospitals
Public hospitals can hold beds for
private patients paid for by the patient
or their insurance
Salaried physicians may practice
privately in public hospitals
For-profit organizations hold 5% of
acute-care bed capacity
Fee-for-service is the predominant
payment mode in private hospitals
NHI can offer a premium level of
hospital services (e.g. choice of surgeon,
wait time reduction) for Health Plan
VHI beneficiaries
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Payment
(in/out-patient)
Italy
Cap
In some
circumsta
nces
No
Out: Salary
In: Salary
Japan
FFS/Some
salaried
In some
circumsta
nces
No
Out: FFS
In: FFS
Specialists
Dual
Practice
Allowed
(outpatient)?
Yes (noncontract
specialists
allowed to
see private
patients;
specialists
employed by
hospitals
and local
health units
are not
allowed)
In some
circumstance
s
Extra-Billing
Beds
per
1k
Not allowed
(salaried)
3.4
Not allowed
13.3
Facilities
The private sector holds about 31% of

total hospital beds
Private hospitals can charge any price for
services not publicly covered
Public hospital physicians are prohibited
from treating patients in private
hospitals
Higher level of comfort and privacy
available for private payment in public
hospitals
Physician can serve private patients in
public hospitals but must pay the
hospital a portion of their earnings
Private, non-profit hospitals are the most
numerous type and hold the vast
majority of hospital beds
The entry of private, for-profit
companies into the hospital sector is
now prohibited, but private hospitals
established by companies for their
employees are allowed to continue
Private practice is allowed in public
hospitals
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Payment
(in/out-patient)
Specialists
Dual
Practice
Allowed
(outpatient)?
Extra-Billing
Beds
per
1k
Netherlands
Cap/FFS
Yes
No
Out:
FFS/Salary
In: Salary
Yes
Not allowed
13.9
New
Zealand
FFS/Salary
/Co-pays
Yes
Yes (GPs set copays)
Out:
FFS/Salary
In: FFS/Salary
Yes
FFS physicians
allowed to
extra-bill.
2.8
Norway
Cap/FFS/
Co-pays
No
No (except noncontracted
physicians)
Out:
FFS/Salary
In: Salary
Yes
No (except
non-contracted
physicians)
3.9
Facilities
Essentially all hospital and clinic

organizations are private non-profit
All hospital services are paid by insurers
through case-based funding
All hospital care is paid for by statutory
health insurance administrated by
private insurers, which must provide a
legally mandated standard benefits
package
Physicians working in private, nonprofit hospitals may serve private
patients
Mix of private and public hospitals, but
public constitutes the majority
Patients from private hospitals with
complications can be admitted to public
hospitals
Private practice is not allowed in public
hospitals
The private for-profit hospital market
sector is small, at less than 1% of
specialist services. They can provide
faster access to non-emergency
procedures, paid for out of
pocket/private insurance
Private practice is not allowed in public
hospitals
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Payment
(in/out-patient)
Specialists
Dual
Practice
Allowed
(outpatient)?
Extra-Billing
Beds
per
1k
Portugal
Salary
In some
circumsta
nces
No
Out: Salary
In: n/a
In some
circumstance
s
No
3.4
Spain
Salary/Cap
In some
circumsta
nces
No
Out: Salary
In: Salary
In some
circumstance
s; often
No
3.0
Sweden
Cap/FFS
No
No
Out: Salary
In: Salary
No
Not allowed
2.6
Facilities
Private for-profit sector holds 7.7% of

acute hospital care beds.
Salaried physicians are allowed to
practice privately in public hospitals
Approximately 8.8% of acute care beds
were in private, for-profit sector
Private for-profit and non-profit
hospitals are publicly funded only when
under contracted to supplement supply
in the National Health Service
Public hospitals predominate; private
physician practice not allowed in the
public hospitals
Predominantly public hospitals (60/70).
Private hospitals tend to specialized in
elective surgery and work under contract
with county councils
Hospitals are paid by a mix of global
budgets, DRG and performance based
funding
Private hospitals can charge any prices
unless they work under contract with
country councils
2% of total acute care beds held in forprofit hospitals
Self-employed physicians can practice
privately in public hospitals
Country
Payment
Model
Switzerland
FFS
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Yes
No (unless
physician opts
out of universal
scheme, LAMal)
Payment
(in/out-patient)
Out: FFS
In: Salary
Specialists
Dual
Practice
Allowed
(outpatient)?
Yes
Extra-Billing
No (unless
physician opts
out of
universal
scheme,
LAMal)
Beds
per
1k
4.7
Facilities
Private, for-profit hospitals out number

public and private, non-profit hospitals,
particularly specialized facilities
About 35% of all hospital beds are in
private, for-profit hospitals
Private hospitals listed in cantonal
hospital lists can be reimbursed by
statutory health insurance
The same payment system applies to
both public and private hospitals
All hospitals can receive payment from
private sources for additional services
Self-employed specialists can schedule
appointments in public hospitals with
private patients
Country
Payment
Model
Dual
Extra Billing2
1
Practice
allowed?
allowed?
Payment
(in/out-patient)
Specialists
Dual
Practice
Allowed
(outpatient)?
Extra-Billing
Beds
per
1k
UK
Cap/FFS/
Salary
Yes
Not allowed
Out: salary
In: salary
Yes, outside
contractual
commitment
s
No
2.8
United
States
(Medicare/
Medicaid/
ACAmandated
private
insurance)
FFS/Cap
Yes
No
Out:
FFS/Cap/Salar
y
In: FFS/Salary
Yes
Not for
outpatients
2.9
Facilities
Volumes of private sector services

provided remains small compared to
NHS providers
Private facilities can offer faster and
more convenient access to elective
hospital procedures
Public financing available to private
providers offering services at NHS
prices. However, payments to private
providers only accounted for 3.6% of
NHS hospital spending in 2013
Public hospitals can offer improved
accommodations for private payment
Private consultations/treatments by dual
practice physicians are allowed in public
hospitals
Approximately 70% of hospital beds are
in non-profit hospitals. The remaining
30% is split equally between public and
for-profit hospitals.
Public hospitals can serve private
patients.
10

Glossary of sources
CB: Common Book of Documents
CF IP: The Commonwealth Fund, 2015 International Profiles of Health Care Systems
FHCEU: Sarah Thomson, Thomas Foubister & Elias Mossialos, Financing Health Care in the European Union, Challenges and Policy Responses
HAG: Health at a Glance 2015, OECD Indicators
HSIC: Health Systems Institutional Characteristics, OECD Health Working Papers No. 50
PESTR: OECD Health Policies and Data, Physicians: employment status, training and regulation
WTPHS: Waiting Time Policies in the Health Sector, What Works? OECD Health Policy Studies
Sources:
Country
Payment
Model
Australia
Dual Practice
Extra Billing
allowed?
allowed?
CF IP at p.62
[CB, p. 9297]
HSIC, Table 15
[CB, p. 9472]
FHCEU, Table
2.4 [CB, p.
4861]
Specialists
Dual Practice Allowed
(outpatient)?
ExtraBilling
Beds per
100k
Facilities
Two-Tier Care in
Hospitals
PESTR [CB, p.
3910]
HSIC at
p.44, 120
[CB, pp.
9482, 9558]
HSIC, Table
15 [CB, p.
9472]
PESTR [CB, p. 3910]
HSIC, Table
A1, Table
14 [CB, pp.
9558, 9470]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HSIC, Table A2,

Table 14, p. 59 at
para 178 [CB, pp.
9562, 9470, 9497]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558]
HSIC, Table
15 [CB,
p.9472]
PESTD, [CB, p. 9558]
PESTD
[CB, p.
3910]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HSIC, Table A2,

Table 14, p. 59
[CB, p. 9562, 9470,
9497]
HSIC, Table 15
[CB, p. 9472]
Austria
Payment
(in/outpatient)
11

Country
Payment
Model
Dual Practice
Extra Billing
allowed?
allowed?
Payment
(in/outpatient)
Specialists
(outpatient)?
ExtraBilling
Belgium
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB, p.
9558]
HSIC, Table
15 [CB, p.
9472
PESTD [CB, p. 3910]
PESTD
[CB, p.
3910
Canada
HSIC, Table 15
[CB, p. 9472]
HSIC at p.27
[CB, p. 9465]
HSIC, Table
15 [CB, p.
9472]
HSIC, Table 15 [CB, p.

9472]
HSIC at
p.27 [CB, p.
9465]
Denmark
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
15 [CB, p.
9472]
PESTD, [CB, p.3910]
Finland
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB, p.
9558];
WTPHS at
103 [CB, p.
6605]
HSIC, Table
A1, p.41
para. 122
[CB, p. 9558,
9479]
HSIC, Table
A1 [CB,
p.9558]
HSIC, Table
15 [CB, p.
9472]
France
HSIC, Table 15
[CB, p. 9472];
CF IP at 61
[CB, p 9296]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558]
HSIC, Table
15 [CB, p.
9472];
CF IP at
p.62 [CB,
p. 9297];
FHCEU at
138 [CB p.
4956]
Beds per
100k
Facilities
Two-Tier Care in
Hospitals
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB,
p.8269]
CF IP at 23 [CB, p.
9259];
HSIC, Table A2
[CB, p. 9562]
HSIC, Table
A1 [CB,
p.9558]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HSIC, Table 14
[CB, p. 9470];
CF IP at 41 [CB, p.
9277]
PESTD [CB, p. 3910]
HSIC, Table
A1 [CB,
p.9558]
PESTD [CB, p. 3910]
HSIC, Table
A1 [CB,
p.9558]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HSIC, at p. 32 [CB,
p. 9470];
WTPHS at 135-136
[CB, p. 6637-8]
CF IP at p.62 [CB
p. 9297];
HSIC, Table 26,
Table A2 [CB, p.
9498, 9562];
FHCEU at 138
[CB, p. 4956]
HSIC, Table A2,

Table 14 [CB, p.
9562, 9470]
12

Country
Payment
Model
Dual Practice
Extra Billing
allowed?
allowed?
Payment
(in/outpatient)
Specialists
(outpatient)?
Beds per
100k
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
CF IP at p. 71, 72
[CB, pp. 9306-7]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
CF IP at p. 88, 90
[CB, p. 9322, 9324]
Germany
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558]
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910]
HSIC, Table
A1 [CB,
p.9558]
Iceland
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558]
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910]
HSIC, Table
25 [CB, p.
9496]
Ireland
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910]
HSIC, Table
A1 [CB,
p.9558]
Israel
CF IP at 89.
[CB, p. 9323]
PESTD [CB, p.
3910]
HSIC, at
p.57 para.
170, Table
A1 [CB,
p.9558]
N/A
CF IP at 8990 [CB, p.
9323-4]
PESTD [CB, p. 3910]
CF IP at 90
[CB, p.
9324]
Italy
HSIC, Table 15
[CB, p. 9472];
CF IP at 99
[CB, p. 9332]
PESTD [CB, p.
3910]
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910]
HSIC, Table
A1, 25 [CB,
p.9558,
9496]
HSIC, Table
25 [CB, p.
9496]
Facilities
Two-Tier Care in
Hospitals
ExtraBilling
HSIC, Table 14,

p35 para 103 [CB,
pp. 9470, 9473]
HSIC, at p. 32,
127, Table A2,
[CB, pp. 9470,
9565, 9562]
CF IP at p. 97, 100
[CB, pp. 9330,
9333]
HSIC ,at p. 127,
Table A2 [CB, pp.
9565. 9562]
13

Country
Payment
Model
Dual Practice
Extra Billing
allowed?
allowed?
Payment
(in/outpatient)
Specialists
(outpatient)?
Japan
HSIC, Table 15
[CB, p. 9472];
CF IP at p. 108
[CB, p. 9341]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558];
CF IP at 109
[CB, p. 9342]
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910]
Netherlands
CF IP at p. 117
[CB, p. 9350]
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558]
CF IP at
117 [CB, p.
9350];
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910]
New
Zealand
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
CF IP at p.
124 [CB, p.
9357]
HSIC, Table
15 [CB, p.
9472]
CF IP at p. 124 [CB, p.
9357]
Norway
CF IP at p. 134
[CB, p. 9366];
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558],
Table 25
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910];

CF IP at 135 [CB, p.
9367]
ExtraBilling
Beds per
100k
Facilities
Two-Tier Care in
Hospitals
HSIC, Table
A1, 25 [CB,
p.9558,
9496];
CF IP at
109 [CB, p.
9342]
HSIC, Table
A1 [CB,
p.9558]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
CF IP at p. 109
[CB, p. 9342]
HSIC ,at p. 32 [CB,
p. 9470]
Madelon
Kroneman
et al, Health
Systems in
Transition
Netherlands
(2016), at p.
110 [CB, p.
9100]
HSIC, Table
A1 [CB,
p.9558];
CF IP at p.
124 [CB, p.
9357]
HSIC, Table
A1 [CB,
p.9558]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
CF IP at p. 115-117
[CB, p. 9348-9350];
Madelon
Kroneman et al,
Health Systems in
Transition
Netherlands (2016),
at p. 94 [CB, p.
9084];
HSIC ,at p. 32 [CB,
p. 9470]
CF IP at p. 125
[CB, p. 9358];
HSIC, Table 14
[CB, p. 9470]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
CF IP at p. 135
[CB, p. 9367];
HSIC, Table 14
[CB, p. 9470]
14

Country
Payment
Model
Dual Practice
Extra Billing
allowed?
allowed?
Portugal
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
Spain
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
Sweden
CF IP at 155
[CB, p. 9385]
PESTD [CB, p.
3910]
Switzerland
HSIC, Table 15
[CB, p. 9472]
PESTD [CB, p.
3910]
Payment
(in/outpatient)
Specialists
(outpatient)?
HSIC, Table
A1 [CB,
p.9558],
Table 25
HSIC, Table
A1 [CB,
p.9558],
Table 25
HSIC, Table
A1 [CB,
p.9558]
HSIC, Table
15 [CB, p.
9472]
PESTD [CB, p. 3910]
Out: salary
In: salary
PESTD [CB, p. 3910]
CF IP at
155 [CB, p.
9385]
PESTD [CB, p. 3910]
HSIC, Table
A1 [CB,
p.9558]
CF IP at 163
[CB, p. 9393]
CF IP at
163, 164
[CB, p.
9393-4];
HSIC, Table
15 [CB, p.
9472]

HSIC, Table 26 [CB, p.
9498]
ExtraBilling
Beds per
100k
HSIC, Table
A1 [CB,
p.9558],
Table 25
HSIC, Table
A1 [CB,
p.9558],
Table 25
HSIC, Table
A1, Table
26 [CB,
p.9558,
9498];
CF IP at
155 [CB, p.
9385]
HSIC, Table
A1 [CB,
p.9558]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
Facilities
Two-Tier Care in
Hospitals
HSIC, at p. 32 [CB,
p. 9470]
HSIC, Table 14,

Table A2 [CB, pp.
9470, 9562]
FHCEU, at p. 195
[CB, p. 5013];
HSIC, at p. 32, 129
[CB, p. 9470,
9567];
CF IP at 156 [CB,
p. 9386]
Carlo De Pietro et
al, Health Systems in
Transition
Switzerland (2015),
at p. xxv, 125, 156,
210 [CB, pp. 8361,
8491, 8522, 8576];
CF IP at p. 163
[CB, p. 9393]
15

Country
Payment
Model
Dual Practice
Extra Billing
allowed?
allowed?
Payment
(in/outpatient)
Specialists
(outpatient)?
ExtraBilling
Beds per
100k
UK
HSIC, Table 15
[CB, p. 9472];
FHCEU, p. 199
[CB, p. 5017]
PESTD [CB, p.
3910]
HSIC, Table
A1 [CB,
p.9558]
HSIC, Table
15 [CB, p.
9472]

European Observatory on
Health Systems and
Policies: United
Kingdom: Health System
in Review (2015) at 117118 [CB, p. 8798-9]
HSIC, Table
A1 [CB,
p.9558]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
United
States
CF IP at p. 173
[CB, p. 9402]
CF IP at p. 173
[CB, p. 9402]
CF IP at p.
173 [CB, p.
9402]
CF IP at p.
173, 174
[CB, p.
9402-3]
CF IP at p. 173 [CB, p.
9402]
CF IP at p.
173 [CB, p.
9402]
HAG, at p.
105, Figure
6.7 [CB, p.
8269]
Facilities
Two-Tier Care in
Hospitals
CF IP at p. 49, 52
[CB, p. 9284,
9287];
European
Observatory on
Health Systems and
Policies: United
Kingdom: Health
System in Review
(2015), at p. 24, 84
[CB, p. 8705, 8765]
CF IP at p. 174
[CB, p. 9403]
16

Opening Statement of The Defendants

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No.

II. What Is In Issue? The Scheme and the Legislation ...................................................................... 9

The Criteria and Conditions ............................................................................................................ 11

Provincial Implementation ............................................................................................................... 13

C. Medicare Protection Act .............................................................................................................. 15

The Purpose of the Act ..................................................................................................................... 16

The Impugned Provisions ................................................................................................................. 17

Enforcement Provisions .................................................................................................................... 18

Extra Billing ................................................................................................................................... 18

Private Health Insurance............................................................................................................... 19

Private Finance, not Private Delivery............................................................................................ 20

What is the Applicable Law? ................................................................................................... 22

Can Section 7 Apply to These Facts? ................................................................................................ 22

The Principles of Fundamental Justice ............................................................................................. 24

Gross Disproportionality .............................................................................................................. 30

The relationship between Section 7 and Section 1.......................................................................... 39

General Principles of Constitutional Law........................................................................... 41

Nature of constitutional adjudication .............................................................................................. 41

Appropriate Remedy ......................................................................................................................... 42

Implications for other legislation ...................................................................................................... 45

Courts do not make health policy .................................................................................................... 46

A. What the decision actually was................................................................................................ 47

The Quebec Charter ........................................................................................................................... 48

The Canadian Charter ....................................................................................................................... 49

Section 7 Violation ....................................................................................................................... 50

No Section 7 Violation ................................................................................................................. 51

B. Why Chaoulli is not helpful to the Plaintiffs ........................................................................... 52

What will the Evidence Show? ................................................................................................ 56

Professor Gregory Marchildon .......................................................................................................... 57

Legislative History ................................................................................................................ 62

1964 Hall Commission Report......................................................................................................... 63

1980 Hall Report............................................................................................................................... 64

Seaton Commission Report .............................................................................................................. 65

The Kirby Report............................................................................................................................... 67

The Romanow Commission ............................................................................................................. 68

Operation of the British Columbia health care system ...................................................... 70

The Evidence of Physicians ............................................................................................................... 75

Dr. Andrew Hamilton ................................................................................................................... 75

Dr. Margaret McGregor ................................................................................................................ 77

Dr. Khati Hendry .......................................................................................................................... 78

Dr. John Reid ................................................................................................................................ 80

Dr. Cyril Frank .............................................................................................................................. 82

Dr. Eric Bohm ............................................................................................................................... 86

Dr. James Waddell ........................................................................................................................ 87

Dr. Wayne Hildahl ........................................................................................................................ 87

Dr. Danyaal Raza ........................................................................................................................... 88

Efforts to Improve the System .......................................................................................................... 89

Dr. Andrew Hamilton ................................................................................................................... 90

Andrew Montgomerie ................................................................................................................... 93

Professor Jeremiah Hurley ............................................................................................................ 94

The Expert Evidence ................................................................................................................ 95

Dr. Cyril Frank .................................................................................................................................. 96

Dr. Eric Bohm ................................................................................................................................... 97

Professor Ivy Bourgeault.................................................................................................................... 97

Professor P.J. Devereaux.................................................................................................................... 99

Professor Jeremiah Hurley...............................................................................................................100

Professor Eike-Henner Kluge ..........................................................................................................103

Dr. Robert McMurtry ......................................................................................................................105