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.

Just Posted

There were 255 babies born in Victoria in May 2021. (Black Press Media file photo)
Pandemic baby boom makes for a busier Vancouver Island Father’s Day

Victoria’s 255 babies born in May up almost 10 per cent over last year

Residents encouraged to fill out online survey to provide feedback on regional needs. (Pixabay)
In January 2019, Grade 5 students from Glenlyon Norfolk School, accompanied by Grade 11 student Anastasia Castro, gave a presentation to Oak Bay council seeking a ban on plastic bags in the district. (Black Press Media file photo)
Oak Bay set to survey businesses on single-use plastic products

Survey gathers information ahead of expected legislation on provincial, federal level

(Black Press Media file photo)
School parking problems plague Oak Bay residents

Need exceeds official requirements for parking at St. Michaels school

Wanted man Michael Bruce was arrested Wednesday in Langford. (Black Press Media file photo)
West Shore RCMP find wanted man hiding under mattress

Michael Bruce had multiple warrants out for his arrest in Sooke and the West Shore

People line up to get their COVID-19 vaccine at a vaccination centre, Thursday, June 10, 2021 in Montreal. THE CANADIAN PRESS/Ryan Remiorz
Vaccines, low COVID case counts increase Father’s Day hope, but risk is still there

Expert says people will have to do their own risk calculus before popping in on Papa

(Black Press Media file photo)
POLL: When was the last time you visited the mainland?

The films are again lighting the screens at local theatres, the wine… Continue reading

Anyone with information on any of these individuals is asked to call 1-800-222-TIPS (8477) or visit the website victoriacrimestoppers.ca for more information.
Greater Victoria Crime Stoppers wanted list for the week of June 15

Greater Victoria Crime Stoppers is seeking the public’s help in locating the… Continue reading

BC Ferries’ newest Island Class vessel is experiencing an issue with one of its thrusters off the Algerian coast. Photo courtesy patbaywebcam.com.
BC Ferries newest vessel having mechanical issues in Mediterranean

Island 4 will be repaired in Spain before crossing Atlantic

A vial containing the Moderna COVID-19 vaccine is shown at a vaccination site in Marcq en Baroeul, outside Lille, northern France, Saturday, March 20, 2021. THE CANADIAN PRESS/AP/Michel Spingler
mRNA vaccines ‘preferred’ for all Canadians, including as 2nd dose after AstraZeneca: NACI

New recommendations prioritizes Pfizer, Moderna in almost all cases

Surrey Mayor Doug McCallum speaks at a press conference in August 2019 about provincial government approval of the city’s change to a municipal force, joined by councillors (from left) Mandeep Nagra, Allison Patton and Doug Elford. Members of the National Police Federation claim there is still no transition plan in place although Surrey RCMP’s contract with the city is due to end March 31.(File photo)
Elections BC approves petition application for referendum on Surrey policing transition

Application was filed under Recall and Initiative Act by the widow of a Surrey murder victim

Queen’s counsel Paul Doroshenko, a Vancouver lawyer, has been suspended from practice for two months after admitting that his firm mismanaged $44,353.19 in client trust funds. (Acumen Law)
High-profile B.C. lawyer suspended over $44K in mismanaged client trust funds

Queen’s counsel Paul Doroshenko admits he failed to supervise his staff and find or report the shortages

House Majority Whip James Clyburn, D-S.C., center left, reaches over to Rep. Maxine Waters, D-Calif., joined by Speaker of the House Nancy Pelosi, D-Calif., center, and members of the Congressional Black Caucus as they celebrate the Juneteenth National Independence Day Act that creates a new federal holiday to commemorate June 19, 1865, when Union soldiers brought the news of freedom to enslaved Black people after the Civil War, at the Capitol in Washington, Thursday, June 17, 2021. It’s the first new federal holiday since Martin Luther King Jr. Day was created in 1983. (AP Photo/J. Scott Applewhite)
Biden to sign bill making Juneteenth a federal holiday

New American stat marks the nation’s end of slavery

Kimberly Bussiere and other laid-off employees of Casino Nanaimo have launched a class-action lawsuit against the Great Canadian Gaming Corporation. (Chris Bush/News Bulletin)
B.C. casino workers laid off during pandemic launch class-action lawsuit

Notice of civil claim filed in Supreme Court of B.C. in Nanaimo against Great Canadian Gaming

Most Read