British Columbia

Private health-care proponents lose bid for court fee exemption in landmark trial

The plaintiffs challenging Canada's public health-care system had argued paying daily court fees for the drawn-out trial would cause undue financial hardship.

Private clinics, 4 patients challenging B.C.'s ban on private insurance for medically necessary services

Dr. Brian Day, the medical director of the Cambie Surgery Centre and one of the plaintiffs in the trial, says it is about patients' access to affordable treatment. His opponents, however, accuse him of compromising Canada's system of universal health care. (Darryl Dyck/The Canadian Press)

The plaintiffs in a landmark trial challenging B.C.'s public health-care system have lost their bid to be exempt from daily court fees, according to a B.C. Supreme Court ruling.

The Cambie Surgery Centre, a private clinic in Vancouver, along with another private clinic and four patients, launched a lawsuit to challenge B.C.'s ban on the purchase of private insurance for medically necessary services that are already covered by the public system.

It argues the restriction — and the resulting hospital wait times — violates a constitutional right to life, liberty and security of the person.

Its opponents, however, argue the trial could compromise Canada's equal access health-care model. The trial has been watched closely as any ruling could set a precedent for the rest of the country.

Months-long trial

The trial started last September and was expected to take six months. Instead, it has taken close to eight months and is nowhere near completion.

In the meantime, a number of other disputes — like the dispute over daily court fees — have arisen. The main trial was put on hold in April to deal with these issues.

 Dr. Brian Day, the medical director of the Cambie Surgery Centre, says the growing length of the trial has created significant financial issues for himself and the other plaintiffs.

"The government is stalling and essentially trying to bankrupt our corporation," he said.

The daily fee issue

Like every province, British Columbia charges administrative court fees for civil cases. Daily court fees are set on a sliding scale: for the first three days, it is $0. It moves up to $500 per day for days four to 10 and then $800 per day for trials longer than 10 days.

This case has taken 80 court days so far and the court noted the plaintiffs had paid at least $52,300 in court fees already.

Day and the other plaintiffs argued that while they don't expect to be exempted from court fees already paid, they would like to be exempt from future fees or have the provincial government (the defendant) pay for them.

No evidence of hardship

One of the plaintiffs' key arguments for an exemption was fee payment would cause undue financial hardship and it is a barrier for constitutional challenges.

In his judgment Justice John J. Steeves noted while "undue hardship" is a genuine criteria for exempting payment of court fees, he said the individual plaintiffs in this case had presented no evidence about their financial affairs and ability to pay. He noted the corporate plaintiffs conceded they were able to pay fees in earlier testimony.

"There remains a strong financial aspect to [undue hardship] requiring at least some evidence about financial hardship," he wrote.

The plaintiffs' argument that they should be exempt from court fees on constitutional grounds was also dismissed.

'This is not a big, massive corporation'

Day said the court fees decision was "very disappointing."

The orthopedic surgeon said Cambie Surgery is "not a big, massive corporation" and said he was worried whether the plaintiffs' financial resources would run low by the time the long drawn-out trial was complete.

"In Canada, we have constitutional rights in theory. In practice, what that means is you need to take on a government as a defendant, that you have to actually pay to challenge for your rights," he said.

"We are facing governments with unlimited tax dollars ... Only wealthy people can fight for their constitutional rights in this country."

For now, Day said he and the other plaintiffs will fundraise for their trial through the national charity, the Canadian Constitution Foundation.

The trial is set to resume at the end of October.