A male patient is prepped to have a cyst removed from his right knee at the Cambie Surgery Centre, in Vancouver on Wednesday, August 31, 2016. Dr. Brian Day, a self-styled champion of privatized health care, is bringing his fight to British Columbia Supreme Court on Tuesday for the start of a months-long trial he says is about patients’ access to affordable treatment, while his opponents accuse him of trying to gut the core of Canada’s medical system. THE CANADIAN PRESS/Darryl Dyck

A male patient is prepped to have a cyst removed from his right knee at the Cambie Surgery Centre, in Vancouver on Wednesday, August 31, 2016. Dr. Brian Day, a self-styled champion of privatized health care, is bringing his fight to British Columbia Supreme Court on Tuesday for the start of a months-long trial he says is about patients’ access to affordable treatment, while his opponents accuse him of trying to gut the core of Canada’s medical system. THE CANADIAN PRESS/Darryl Dyck

Closing arguments begin in B.C. case launched in 2009 over private health care

Dr. Day said he illegally opened the Cambie Surgery Centre in 1996 in order to create more operating-room time

A framed iconic photo in Dr. Brian Day’s office shows Muhammad Ali raising a triumphant gloved hand as he stares down at his opponent splayed on the mat after a first-round boxing knockout less than two minutes into the fight.

Day, 72, will step into a courtroom on Monday as final arguments begin in the culmination of a battle he launched a decade ago against the British Columbia government based on a constitutional challenge saying patients have a right to pay for private care if the public system leaves them waiting too long.

“I stayed up to listen to the fight on the radio,” Day said of the legendary spectacle between Ali and Sonny Liston in 1965, adding he stopped boxing in his native Liverpool, England, at age 11 as his peers began outgrowing him.

He took on the provincial government, and in effect the “myth” of Canada’s single-tier universal health-care system, in 2009 and the case landed in B.C. Supreme Court in 2016 with support from four patients.

Other countries, including Switzerland, Germany and England, that offer a parallel public-private system of care have managed to shorten wait lists, he said.

“We’re the only jurisdiction on Earth where private health insurance for medically necessary care is unlawful, unless you’re an injured worker,” Day said after doing knee surgery on a 61-year-old patient from Alberta, the first of his eight procedures that day, some involving people whose costs would be covered by B.C.’s workers’ compensation agency.

That’s unfair to children and others needing surgery because they must choose to either pay for private clinics or suffer through delays in public hospitals, he said.

“One of the witnesses in our trial was a welder who had previously undergone surgery for a knee ligament injury on one knee and came back a few years later with the same injury in the other knee but he hurt it in sports on one knee and got an MRI quickly and on the other side was told it was going to be 18 months.”

However, government lawyers say in written closing arguments that Day’s claims of the plaintiff patients having been deprived of life, liberty and security of the person under Section 7 of the charter are problematic because those protections apply to issues of justice, not health care.

Rather than a constitutional challenge, the government alleges Day’s case amounts to ”political theatre” and an attempt to force change on the health-care system for the financial benefit of doctors who earn more money from wealthy patients going to private clinics.

The province also says Day’s lawyers have failed to establish that patients any suffer harm by waiting for services.

READ MORE: B.C. health ministry moves to bar extra billing

Day said he illegally opened the Cambie Surgery Centre in 1996 in order to create more operating-room time for surgeons who couldn’t get it in public hospitals and profit was never a motive.

In 2018, Health Minister Adrian Dix announced the government would begin to fine doctors $10,000 for a first offence and $20,000 for a second violation of its Medicare Protection Act if they charged patients for publicly available services. He said the ’Don’t ask, don’t tell’ approach, which allowed private-clinic surgeries and diagnostic tests to continue because provisions of the law had not been enforced, would come to an end.

However, Day successfully sought an injunction that prompted B.C. Supreme Court Justice Janet Winteringham to order the government not to enforce sections of the act until their validity could be established at trial, which is expected to conclude Dec. 6 with the trial judge.

Days before the start of closing arguments, the surgeon said the injunction order was a positive sign he would prevail in his court battle because Winteringham recognized patients would “suffer serious physical and/or psychological harm while waiting for health services” if they couldn’t turn to private clinics.

READ MORE: B.C. is using taxpayer money to outlast plaintiffs in health-care trial: critic

Winteringham’s words apply generally to the “nonsense” of an inadequate universal health-care system that doesn’t meet patients’ needs, said Day, a former president of the Canadian Medical Association.

“It’s unconstitutional. You cannot have it both ways. You cannot promise health care, then not deliver it in a timely way, then outlaw the patients’ ability to access it independently,” he said.

“I’m confident that the evidence is in that major harm is being done to patients by the health system as it operates.”

The federal government is an intervener in his trial, along with Canadian Doctors for Medicare, the B.C. Nurses’ Union and the B.C. Health Coalition.

Dr. Danyaal Raza, board chair of Canadian Doctors for Medicare, said the delivery of health care is being reorganized around the country and some changes are based on a model in Richmond, B.C., where a hospital reduced wait times for hip and knee surgeries through efficiencies such as booking surgeries centrally.

“It’s a model that Alberta has also pursued and now in Ontario we’re learning from the experience of B.C. and Alberta and we’re learning from that experience how to approach back pain,” the family doctor said from Toronto.

READ MORE: Private clinics win injunction against B.C. law that banned them

“I think the pace of change needs to speed up,” he said. “If we go down the road that Dr. Day wants to take us, wait lists are not going to get better, they’re going to get worse. So, we really have to decide when we make changes to the health-care system, do we want changes that are going to benefit everyone or do we want to make changes that prioritize those who can pay?”

He said a parallel public-private system has not worked in some countries, including Australia and Scotland.

Day said his case has so far cost $6 million, with much of the money raised by the Canadian Constitution Foundation, but the province has refused to divulge how much it has paid in taxpayers’ dollars since 2009.

Derek From, a lawyer with the foundation, said the Office of the Information and Privacy Commissioner ordered the government to release the amount at the foundation’s request but the government won an appeal of the decision in court though his group is in the process of filing an appeal of that ruling.

Camille Bains, The Canadian Press


Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Ladysmith's Royal Canadian Marine Search and Rescue Station 29 responded to the fire. (Gerry Beltgens photo)
Boat catches fire in Ladysmith Harbour

A large boat caught fire on the morning of Saturday, Feb. 27

Wayne Allen's graduation photo from Chemainus Secondary School. (Photo submitted)
Brother charged with murder in Chemainus teenager’s Ontario death

Jesse James Allen stands accused in the death of Wayne Allen, a 2020 Chemainus Secondary grad

Pamela Anderson was given a Ladysmith Heritage Award for the restoration work on the Arcady Auto Court property that she purchased from her grandparents. (Pamela Anderson photo)
PHOTOS: Star-studded Ladysmith Heritage Awards honour local commitments to heritage

Barrie McDonald, Pamela Anderson, John & Luke Marston, and the Ladysmith Maritime Society recognized

Kim McGregor died in the Feb. 14 hit-and-run accident in Chemainus. (Photo submitted)
Victim identified in Valentine’s Day Chemainus hit-and-run

Kim McGregor grew up in Chemainus and had recently returned to be close to his parents

Ella Donovan with mom Tina outside Fuller Lake Arena before heading onto the ice for practice. (Photo by Don Bodger)
Young Ladysmith skater watches and waits in battle against cancer

Ella Donovan’s tumour began a tumultuous time, but community support eased the burden

Abbotsford’s Kris Collins turned to TikTok out of boredom when the provincial COVID-19 lockdown began in March 2020. She now has over 23 million followers on the video app. Photo: Submitted
Internet famous: Abbotsford’s Kris Collins is a TikTok comedy queen

Collins has found surprise stardom alone with a phone

A Vancouver restaurant owner was found guilty of violating B.C.’s Human Rights Code by discriminating against customers on the basis of their race. (Pixabay)
Vancouver restaurant owner ordered to pay $4,000 to customers after racist remark

Referring to patrons as ‘you Arabs’ constitutes discrimination under B.C.’s Human Rights Code, ruling deems

BC Ferries experienced heavy traffic on Feb. 27 following cancellations the day before due to strong winds and adverse weather. (Black Press Media file photo)
BC Ferries sailings fill up quickly after Friday cancellations due to high winds

Waits expected on Swartz Bay-Tsawwassen route, Horseshoe Bay-Departure Bay route

1957 photo shows Six Mile House-sponsored #4 1932 Ford stock car with Frank Morris (from left), Ted Mackenzie, Bill Sim and driver Gerry Sylvester. (Bud Glover/Victoria Auto Racing Hall of Fame)
Memories race as Western Speedway approaches its finish line

‘It was life to us:’ Vancouver Island racers, crew will never forget what the track gave them

Nanaimo children’s author and illustrator Lindsay Ford’s latest book is ‘Science Girl.’ (Photo courtesy Lindsay Ford)
B.C. children’s writer encourages girls to pursue the sciences in new book

Lindsay Ford is holding a virtual launch for latest book, ‘Science Girl’

Pig races at the 145th annual Chilliwack Fair on Aug. 12, 2017. Monday, March 1, 2021 is Pig Day. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of Feb. 28 to March 6

Pig Day, Canadian Bacon Day and Grammar Day are all coming up this week

Staff from the Marine Mammal Rescue Centre, passersby, RCMP and Nanaimo Fire Rescue carried a sick 300-kilogram steller sea lion up the steep bluff at Invermere Beach in north Nanaimo in an attempt to save the animal’s life Thursday. (Photo courtesy Marine Mammal Rescue Centre)
300-kilogram sea lion muscled up from B.C. beach in rescue attempt

Animal dies despite efforts of Nanaimo marine mammal rescue team, emergency personnel and bystanders

A crossover utility vehicle smashed through the front of a business on Bowen Road on Friday evening. (Chris Bush/News Bulletin)
Vehicle smashes all the way inside business in Nanaimo

No serious injuries reported after incident at Venue Financial Centres on Friday

Doctors and counsellors warn of an increase in panic attacks, anxiety, depression and suicide ideas between ages 10 to 14, in Campbell River. ( Black Press file photo)
Extended pandemic feeding the anxieties of B.C.’s youth

Parents not sure what to do, urged to reach out for help

Most Read