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The decision in a BC case seeking to strike down laws limiting private health care (including private insurance and extra billing) comes out tomorrow (apparently at 1pm). The decision is a rumoured 800 pages, but I will summarize and dissect it on twitter starting at 1.
For those not familiar with the case, Brian Day, a doctor who founded a private surgical facility in BC, is arguing that the combination of 1) wait times, and 2) limits on private care (similar to those in Alberta) violate the Charter rights to life and security of the person.
The court is likely to agree that waiting for care can, in some cases, threaten a patient's life and, due to the physical/psychological effects of waiting, violate security of the person. The SCC agreed with these arguments in a 2005 Quebec case (Chaoulli).
However, rights to life and security of the person aren't absolute. Dr Day also has to show that those deprivations are not in accordance with the principles of fundamental justice, which will be challenging. These principles include things like arbitrariness and overbreadth.
In determining whether BC laws limiting private $ are arbitrary, overbroad, etc., the court will look at international experiences with two-tier care.
In a previous Quebec case (Chaoulli), the Supreme Court was divided on this international evidence. 3 felt that the gov was acting to protect the public health care system, while 3 judges felt that countries with 2-tier care have successful health care systems.
One of the main critiques of Chaoulli was that the role of the court is not to assess different health system models and pick which one they think is best. Also, you can't simply take the manner in which another country finances health care and import it into Canada.
The Alberta gov will, no doubt, be watching this case closely. Kenney discussed the Quebec case in the middle-of-the-night Bill 30 debates, suggesting that it supported his argument for private delivery.
The gov has also shown hints of receptiveness to private finance. The Fair Deal Panel was critical of the Canada Health Act, which helps limit private $. The UCP also voted at its annual meeting not to reject policy proposals merely because they violate the Canada Health Act.
A few people asked about the principles of fundamental justice (POFJ) that I mentioned earlier. Day has to show that limits on privatization engage the rights to life/security of the person and that these limits are not in accordance with the POFJ. I put together a brief summary:
