Dr. Brian Day’s clinic to pay B.C.’s trial costs after failed private health lawsuit

A private medical clinic, Cambie Surgeries Corp., owned by Dr. Brian Day, a strong advocate for private health care, recently lost an important legal battle against Canada’s public health-care system. The clinic had filed a lawsuit back in 2009, arguing that the Medicare Protection Act in British Columbia was unconstitutional as it prevented individuals from accessing private health care when the public system was unable to provide timely services.

Despite the clinic’s efforts, the B.C. Supreme Court, the B.C. Court of Appeal, and the Supreme Court of Canada all rejected Cambie Surgeries’ case. The issue of trial costs, however, remained unresolved. Finally, B.C. Supreme Court Justice Jennifer Lynn Whately ruled that Cambie Surgeries must pay the B.C. government’s legal costs, describing the litigation as a “prodigiously lengthy and complex” battle.

The lawsuit by Cambie Surgeries was financially supported by the Canadian Constitution Foundation. Although the exact amount of the government’s costs was not disclosed in the ruling, the foundation confirmed that the B.C. government was seeking $1.7 million from the charitable organization and its partners.

The court ruling highlighted the government’s argument that Cambie Surgeries, as a well-resourced party with a financial stake in the case’s outcome, was not acting as a public-interest litigant. The government claimed that the private clinic was making substantial profits by violating public health-care protection laws.

Justice Whately emphasized the significance of the case for all British Columbians, stressing the impact on access to health care, funding of health-care services, and the principles underlying the public health-care system. The private clinic contended that the case raised novel legal issues regarding the government’s constitutional obligations to provide timely public health care.

Both sides blamed each other for the prolonged legal battle, with the attorney general of B.C. accusing Cambie Surgeries of egregious conduct regarding document disclosure, experts, and witnesses. On the other hand, the clinic and other plaintiffs accused the B.C. government of massive shortcomings in document disclosure, derailing the litigation process.

The case finally went to trial in 2016 and spanned four years before the B.C. Supreme Court ruled against Cambie Surgeries. The decision was upheld by the B.C. Court of Appeal, and the Supreme Court of Canada refused to hear a further appeal.

Neither the attorney general’s office nor Dr. Brian Day, the clinic owner, immediately responded to requests for comments on the ruling. The legal battle between Cambie Surgeries and the B.C. government underscores the ongoing debate over the balance between public and private health-care systems in Canada.