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British Columbia Court of Appeal Rules Against Expansion of Private Health Care | Knowledge

Recently, the British Columbia Court of Appeal (the “BCCA”) released its decision in the case of Change Surgeries Corporation v. British Columbia (Attorney General).[1] The case raised issues about the constitutionality of the Medicare Protection Act (British Columbia) (the ”MPA”), which restricts the ability of residents in British Columbia to pay privately for medically necessary health care services. At trial, the Plaintiffs argued that this restriction violates the Canadian Charter of Rights and Freedoms (the ”Charter”) as it prevents residents in British Columbia from accessing private medical treatment when the public system cannot provide timely care.

In 2020, the British Columbia Supreme Court dismissed the Plaintiffs’ claim. The Plaintiffs (Appellants) appealed this judgment to the BCCA.

In July 2022, the BCCA rendered its judgment, dismissing the appeal and upholding the contested provisions of the MPA.

Appellants’ Claim

As previously reported, the Appellants alleged that sections 14, 17, 18 and 45 of the MPA[2] are unconstitutional because they prevent patients in British Columbia from accessing private care when waiting periods in the public system are too long.

The Appellants argued that the contested provisions breach patients’ rights to life, liberty, and security of the person guaranteed under section 7 of the Charter and are not saved by section 1.[3] The Appellants alleged that the trial judge made multiple errors of fact and law in his section 7 and section 1 analyses. Furthermore, the appellants claimed that the judge erred in his application of the principles of fundamental justice.

Appeal Decision

The BCCA dismissed the appeal. The majority held that, although the contested provisions deprive some patients of their rights to life and security of the person, they do so in accordance with the principles of fundamental justice. In concurring reasons, Justice Fenlon also wrote that the appeal should be dismissed as, even though the provisions breach section 7 of the Charter, such a breach is justified under section 1.

The BCCA noted that the test to demonstrate a violation of section 7 of the Charter is a two-step process. First, there must be proof “that the law interferes with, or deprives [citizens] of, their life, liberty or security of the person.” Second it must also be proven that the deprivation is not in accordance with the principles of fundamental justice.

The majority concluded that the trial judge erred in his analyzes of the right to life and the right to security of the person, such that the first step of the test was met. However, the majority held that the Appellants failed to demonstrate that the deprivation was not in accordance with the principles of fundamental justice as they failed to prove the law is arbitrary, overbroad, or grossly disproportionate. The majority found that the MPA’s objective is to preserve the public universal health care system for medically necessary services and to ensure that access to medical care is based on patient need, not the ability to pay. The majority concluded that the MPA’s purpose is rationally connected to its object and was not arbitrary; that the challenged MPA provisions are not overbroad; and that the MPA’s impact on section 7 rights is not out of sync with the objective of the law. Accordingly, the majority concluded that the test to demonstrate a violation of section 7 of the Charter was not met.

In light of their conclusion, the majority did not believe it was necessary to conduct a section 1 analysis to determine the case.

In her concurring reasons, Madam Justice Fenlon disagreed with the majority’s analysis and found that the impugned provisions of the MPA were grossly disproportionate to their object such that a violation of section 7 of the Charter was established. However, Justice Fenlon concluded that the breach is justified under section 1 of the Charter.

Next steps

The battle regarding the future of private-pay healthcare services will likely continue. Privately-funded healthcare services remain at the forefront of the public consciousness in British Columbia, especially in light of the provincial government’s recent announcement of a review of private-pay programs operating in that province. The Appellants are almost certain to seek leave to appeal the decision to the Supreme Court of Canada. Developments in this seminal case will be important to follow as it has widespread implications for the future of Canada’s public health care system.


[1] See: Change Surgeries Corporation v. British Columbia (Attorney General)2022 BCCA 245.

[2] Section 14 of the MPA provides the mechanism for payment to physicians for services rendered to BC residents who are insured under the provincial health plan. Sections 17 and 18 set limits on the prices physicians can charge the provincial plan for providing those services. Section 45 prohibits the sale of private health insurance for medically necessary services covered under the provincial health plan.

[3] At trial, the Plaintiffs/Appellants also argued that the contested provisions breached s. 15 of the Charter. This claim was dismissed at trial and was not pursued on appeal.

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