Retired Supreme Court justice Michel Bastarache says it's not too late for the New Brunswick government to back away from controversial health reforms. (Supreme Court of Canada)

A retired Supreme Court justice says it's not too late for New Brunswick to back away from its merger of eight regional health boards into two, and if it doesn't, courts could impose a costly dual health care system on the province.

Michel Bastarache is giving legal advice to a group of activists challenging the merger in court, and the recently retired justice is aware the case could inflame public opinion.

"Yes, that is always a concern," Bastarache told CBC Radio.

Bastarache said he knows that anytime anyone raises the idea of duality in the New Brunswick health-care system, it can provoke a backlash.

"What we need is for the courts to define what is the extent of the rights to duality in services," he said.

Duality means that any service would be offered in both official languages, which critics argue would lead to expensive duplication in the health system — possibly requiring, for example, separate French- and English-language cardiac centres or pediatric facilities.

The people fighting the merger of regional health authorities say that by eliminating the Beauséjour RHA in Moncton, the Health Department is taking away the only authority that had a mandate to operate in French and that was governed by francophones. They also say some specialized services won't be available in French anymore.

If the merger's opponents win, Bastarache said, it won't necessarily mean duality of services throughout the health system, an expensive and controversial idea. But the ruling could have broader implications that would cause the government some headaches.

"You can't say the rights apply only to health services," Bastarache said. "They'll give a broader definition of the word 'duality' of the obligations of the government."

Bastarache said it's not too late for the government to modify its health plan.

Health Minister Michael Murphy would not comment because the case is before the courts, a spokeswoman said.

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The Committee for Equality of Health in French filed their suit against the New Brunswick government in October at the Court of Queen's Bench in Moncton, seven months after the province released its plan to restructure the eight regional health authorities into two.

The organization recruited Bastarache and Michel Doucet, a law professor at the Université de Moncton, to assist on its lawsuit.

Doucet said in October the lawsuit doesn't aim to impose duality in health care. Instead, the objective is to restore a health authority that has a clear mandate to operate in French.

The Beauséjour Regional Health Authority was the only one of eight in New Brunswick that designated itself francophone and made French the working language in its hospitals before the Sept. 1 merger. It melded with other authorities, including some that worked in both French and English.

According to the committee, French-language speakers, at least in southeastern New Brunswick, are no longer served by a francophone-run health authority.