



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Cambie Surgeries Corporation v. British Columbia
  (Attorney General),









2019 BCCA 29




Date: 20190124

Docket: CA45748

Between:

Cambie Surgeries
Corporation, Chris Chiavatti, Mandy Martens,

Krystiana Corrado,
Walid Khalfallah by his litigation guardian

Debbie Waitkus,
and Specialist Referral Clinic (Vancouver) Inc.

Respondents

(Plaintiffs)

And

Attorney General
of British Columbia

Appellant

(Defendant)

And

Dr. Duncan
Etches, Dr. Robert Woollard, Glyn Townson, Thomas McGregor, British
Columbia Friends of Medicare Society, Canadian Doctors for Medicare, Mari
ë
l Schooff, Daphne Lang, Joyce
Hamer, Myrna Allison,

and the British
Columbia Anesthesiologists Society

(Intervenors)

And

Attorney General
of Canada

Pursuant to the
Constitutional
Question Act




Before:



The Honourable Madam Justice Newbury

(In Chambers)




On appeal from:  An
order of the Supreme Court of British Columbia, dated November 23, 2018 (
Cambie
Surgeries Corporation v. British Columbia (Attorney General)
, 2018 BCSC
2084, Vancouver Docket S090663).




Counsel for the Appellant:



J.G. Penner

J.D. Hughes





Counsel for the Respondents:



P.A. Gall, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

December 21, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 24, 2019









Written Reasons by:





The Honourable Madam Justice Newbury








Summary:

The Attorney General of
British Columbias application for leave to appeal the interim order of a
Supreme Court judge in chambers enjoining enforcement of sections 17-8 and 45
of the Medicare Protection Act is dismissed.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The defendant Attorney General of British Columbia seeks leave to appeal
the order made in chambers by Madam Justice Winteringham in this matter on
November 23, 2018. Her reasons for judgment are indexed as 2018 BCSC 2084. The
order, which I am advised was entered on January 10, 2019, enjoined the
enforcement of ss. 17, 18 and 45 of the
Medicare Protection Act
, R.S.B.C.
1996, c. 286 (
MPA
) until June 1, 2019 or further order of the
court. The order also dismissed applications for narrower orders staying or
suspending the coming into force of certain provisions of the
MPA
and of
the
Medicare Protection Amendment Act,
S.B.C. 2003, c. 95, pending final
determination of the constitutional issues raised in this action.

[2]

The injunction was sought and granted mid-trial, near the closing of the
plaintiffs case. The trial began in September 2016 (after an adjournment
necessitated by the Provinces disclosure of many thousands of pages of
documents to the plaintiffs on the eve of trial) and has occupied about 150
days of court time thus far. It is clear that the case is being hard-fought: there
have already been at least five other appeals to this court, and according to
the chambers judge, the trial judge has delivered at least 45 formal rulings. Half
of the trial courts time has been spent on evidentiary objections. (See para. 31.)
Similar objections were raised in the hearing of the injunction application.

The Legislation

[3]

Sections 17, 18 and 45 of the
MPA
are reproduced on Schedule A
attached to these reasons. These sections are the target of the constitutional
challenge brought by the plaintiffs on the basis of s. 7 of the
Canadian
Charter of Rights and Freedoms,
which provides:

Everyone has the
right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.

The plaintiffs also rely on the decision

of the
Supreme Court of Canada in
Chaoulli v. Quebec (Attorney General)
2005
SCC 35.

Canada Health Act

[4]

The impugned provisions of the
MPA
are meant to dovetail with the
scheme established by the
Canada Health Act
,
R.S.C., 1985,
c. C-6
, which establishes conditions a province must meet in order
to obtain federal funding for the operation of a public health-care system.
Under ss. 18
‒
19
of the
Canada Health Act
, a province is required to ensure that extra
billing and user charges are not levied by physicians or private clinics under
the provincial health insurance plan. Sections 18 and 19(1) of the federal
statute provide as follows:

Extra-billing

18
In order that a
province may qualify for a full cash contribution referred to in section 5 for
a fiscal year, no payments may be permitted by the province for that fiscal
year under the health care insurance plan of the province in respect of insured
health services that have been subject to extra-billing by medical practitioners
or dentists.

User charges

19 (1) In order
that a province may qualify for a full cash contribution referred to in section
5 for a fiscal year, user charges must not be permitted by the province for
that fiscal year under the health care insurance plan of the province.

Section 2 of the
Canada Health Act
defines user charge
to mean any charge for an insured health service that is authorized or
permitted by a provincial health-care insurance plan that is not payable,
directly or indirectly, by a provincial plan, other than extra-billing. The
latter phrase means billing for an insured health service rendered to an
insured person by a medical practitioner in an amount in addition to any amount
paid or to be paid for that service by a provincial plan.

[5]

The
Canada Health Act
contemplates that where, because of the
existence of extra-billing, the federal government has withheld or made
deductions from the amount (the CHT) payable to a province for the
reimbursement of health-care costs, such deductions may nevertheless be
reimbursed if the province makes efforts to come into compliance. The Attorney
filed evidence at the injunction hearing that such compliance had to be shown
by the end of the calendar year in respect of which the deduction was made: see
the passage quoted by the chambers judge from the Provinces argument at para. 87
of her reasons.

[6]

However, in a hearing before the chambers judge on October 22, 2018
(i.e., one month before her main reasons were issued) the parties brought to
her attention certain provisions of the
Budget Implementation Act
,
2018,
No.1
, S.C. 2018, c. 12 which amended s. 25.01 of the
Federal-Provincial
Fiscal Arrangements Act
, R.S.C. 1985, c. F-8 to read:

A cash
contribution provided to a province under section 24.21 may be increased by
reimbursing, in whole or in part, a deduction referred to in paragraph 25(b).

Certificate
for reimbursement of deduction

(2)         If
the Minister of Health is of the opinion that the circumstances giving rise to
a deduction made under section 20 of the
Canada Health Act
no longer
exist,
he or she may issue a reimbursement certificate
that sets out

(a)      the
details of the deduction, including the amount of extra-billing or user
charges, the province to which it applies and the fiscal year in which the
deduction was made; and

(b)      the
amount to be reimbursed.

Time period

(3)        The Minister of Health
may issue a reimbursement certificate under subsection (2)
in the fiscal
year in which the deduction was made or in the following two fiscal years
and he or she must provide it to the Minister of Finance no later than March 6
of the final fiscal year in which the reimbursement may be made.

Reimbursement

(4)        A reimbursement under
this section must be made by the Minister of Finance upon receipt of a
reimbursement certificate within the time period set out in subsection (3).

Application

(5)        This section only applies to deductions made
after March 31, 2017. [Emphasis added.]

It appears that ss. (3) allows a longer period than the
one-year period which the Attorney had previously asserted. The parties were
given the opportunity to make submissions on the reimbursement policy in
addition to those they had already made in the three-day hearing in chambers in
September 2018.

The Challenged MPA Provisions

[7]

British Columbia's health-care insurance plan, the Medical Services Plan
(MSP or the Plan), is governed by the
MPA
, under which physicians
enrolled in the Plan are paid by the Medical Services Commission in return for
providing medically necessary services (benefits") to residents of the Province
who are enrolled in the Plan.

[8]

Sections 17 and 18 of the
MPA
(which were enacted in 1995) and
s. 45 (enacted in 1992) have been amended in minor ways over the years. In
general terms, however, s. 17 prohibits a medical practitioner from
charging for a benefit or related service (including the use of a clinic or
other place) other than as provided for in the
MPA
or regulations thereto,
or permitted by the Commission; and s. 17(1.2) makes unenforceable any
contract to pay such a charge. Section 17(2) provides that s. 17(1) does
not apply if the person receiving the medical service is not enrolled as a beneficiary
under the MSP; if the Commission does not consider the medical services to be a
benefit", if the practitioner elects or is deemed to have elected to be
paid for the service directly by the beneficiary under the
MPA
; or if the
practitioner is not enrolled in the Plan.

[9]

Section 18 of the
MPA
prohibits extra billing for benefits
rendered by medical practitioners who are not enrolled in the Plan. Subs. (2)
clarifies that subs. (1) applies only to benefits rendered in certain
provincially-regulated medical care facilities. Subs. (3) prohibits extra
billing by practitioners who elect, or are deemed to have elected, to be paid
for benefits directly by a beneficiary. Subs. (4) makes contracts to pay extra
billing charges to practitioners who are not enrolled in the Plan,
unenforceable.

[10]

A new s. 18.1 is due to come into force on April 1, 2019,
prohibiting direct and extra billing for benefits rendered by enrolled medical
practitioners in diagnostic facilities that are not approved by the Commission.
Section 18.1 is not the subject of the plaintiffs constitutional challenge in
this proceeding.

[11]

Section 45 prohibits and renders void all private contracts of insurance
covering the costs of benefits under the
MPA
. It does not apply to those
classes of costs or insurance described in s. 45(2).

[12]

Section 45.1 came into force on December 1, 2006. It enabled the Commission
to apply to the Supreme Court of British Columbia for orders restraining
contraventions of ss. 17, 18, 18.1 or 19 of the
MPA
. Under s. 45.1(3),
the Court may grant an interim injunction until the outcome of an action commenced
under subsection (1).

[13]

Section 46 of the
MPA
first came into force in 1992. Subsections
(1) to (6) thereof created offences as follows:

(1) A
beneficiary or practitioner who misrepresents the nature or extent of the
benefit in a claim for payment commits an offence.

(2) A person who knowingly obtains
or attempts to obtain payment for a benefit to which he or she is not entitled
commits an offence.

(3) A person who fails to pay or to
collect and remit premiums in accordance with an agreement referred to in
section 32 (1) commits an offence.

(4) A person who obstructs an
inspector in the lawful performance of his or her duties under this Act commits
an offence.

(5) A person who contravenes
section 12 or 49 commits an offence.

(6) A person who knowingly assists another person to commit
an offence under this section commits an offence.

[14]

By virtue of amendments made to the
MPA
in 2003, the following
subsections (5.1) and (5.2) were added to s. 46,
but were not
proclaimed into force
:

...

(5.1) A person who contravenes
section 17 (1), 18 (1) or 3 [words not in force] or 19(1) commits an offence.

(5.2) A person who is convicted of an offence under
subsection (5.1) is liable to a fine of not more than $10,000, and for a second
or subsequent offence to a fine of not more than $20,000.

It is worth re-emphasizing that the plaintiffs
Charter
challenge in this proceeding targets only ss. 14, 17, 18 and 45 of the
MPA
and does not extend to s. 46 before or after amendment. At the same time,
since s. 46(5.1) refers to contraventions of ss. 17 and 18, it would
lose much of its effect if s. 17 or 18 were ruled unconstitutional.

[15]

Since at least 2009 when this action was commenced, the Province has taken
various steps to enforce and restrain the corporate plaintiffs operations in
contravention of ss. 17 and 18 of the
MPA.
These steps were
described by Associate Chief Justice Cullen (as he then was) in reasons indexed
as 2015 BCSC 2169 at paras. 14
‒
27,
reproduced at para. 16 of the chambers judge's reasons. They included inspections,
targeted audits and searches of the premises of the corporate plaintiffs. In
November 2015, Cullen A.C.J. granted a limited order which was in effect until
the commencement of the trial, precluding the Commission from taking further future
enforcement action against the plaintiff clinics on the narrow ground that its
role in the litigation should not be permitted to influence, guide, or focus
its enforcement role. (See para. 138.)

[16]

It was not until September 7, 2018 that the Province proclaimed in force
(effective October 1) what became subsections 5.1 and 5.2 of s. 46. There
was in evidence before the chambers judge an affidavit of the Hon. Gordon
Campbell, who was Premier of British Columbia between June 2001 and March 2011.
Mr. Campbell deposes that when he first took office, he was aware that the
MPA
effectively prohibited enrolled specialists from providing medical
services to patients in private clinics, subject to some exceptions such as
services related to workplace injuries. He was also aware that the previous
government had permitted private surgical clinics in the Province to provide
surgeries to non-exempt British Columbians in contravention of the
MPA
. His
affidavit continues:

7.         Because
of the information we had about long wait times for surgeries in the public
health care system and the increasing costs of the health care system, the
Government decided to carry on the practice of allowing enrolled surgeons to
provide some private surgical services to non-exempt British Columbians in
private medical clinics in the Province to allow them to deal with their
personal health care needs outside of the public system.

8.         The
Government had no credible evidence that permitting enrolled specialists to
perform additional surgeries privately would harm the public system, or the
delivery of medical service through the public system.

9.         While
the government considered formally eliminating the restrictions on access to
private health care in the
MPA
, we did not take steps to do so because
of the possible loss of health transfer payments from the Federal Government.

...

13.       Following
the enactment of the amendments, the government decided that, given the wait
times in the public system, the amendments would be harmful to the health of
British Columbians.

14.       Therefore,
the Government did not to proclaim the amendments, and took no further steps to
enforce the restrictions on dual practice in the
Act
.

...

16.       The
Governments conclusions about access to private health care can be summarized
as follows:

a)         The
large and consistent growth of provincial health care costs over the previous
decade was unsustainable when taken in conjunction with other essential public
services financial requirements since there was no equivalent growth in the
provincial economy and therefore provincial revenues.

b)         To
contain costs, it would be necessary to continue to ration surgeries and
diagnostic services in the public system.

c)         Delays
in receiving what had been considered medically necessary surgeries  and the
inability for the province to meet the established wait time guidelines 
caused suffering and the risk of permanent harm to many British Columbians.
Many patients were already waiting too long for needed diagnostic services and
surgeries.

d)         The
delays in the public system could not be shortened given the constraints on
funding, even if additional efficiencies could be found.

e)         Surgeons
and other specialists had excess capacity due to the limited operating time and
use of other facilities and equipment made available to them in the public
system.

f)          Allowing
these specialists to use their excess capacity to provide private diagnostic
services and surgeries would cause no harm to the public system. It would also
result in more medical treatments being provided to British Columbians,
benefiting the overall health and wellbeing of British Columbians, while
conserving capital and operational costs in the public system. It would also
increase patient choice.

g)         Enforcing
the prohibitions against private medical services would therefore only harm and
not benefit British Columbias patients.

...

18.       After
the
Chaoulli
decision, I stated publicly that the Government did not
want a two-tier health care system in Canada  one in Quebec after
Chaoulli
and
a second, lower tier in the rest of Canada, including British Columbia. British
Columbians should have the same right as the residents of Quebec to access
private health care to avoid lengthy waits in the public system, and patients,
not the Government, should be free to make that choice for themselves.

...

21.       In 2006, in an effort to satisfy
the concerns of the Federal Government, even though the concerns were not
supported by credible evidence or arguments, the Government proclaimed certain
of the amendments. In particular, it proclaimed amendments which empowered the
[Medical Service Commission] to audit private clinics and to obtain an
injunction. The amendments proclaimed in 2006 did not include the financial
penalties or the new prohibition on private diagnostic testing, because the
Government was of the view that those amendments would have prevented British
Columbians from accessing these private medical services to protect their
personal health care.

The Chambers Judges Reasons

[17]

Winteringham J.s reasons are lengthy and detailed, and reflect a
careful weighing of the complex considerations of law, fact and policy raised
by the parties below. I do not intend to attempt to rehearse those reasons here
except to the extent necessary to address the parties arguments on this leave application.
The reasons, to which I refer the reader, described the parties respective
positions at paras. 9
‒
11;
and the background circumstances of the case relevant to interlocutory
injunctive relief at paras. 12
‒
26.
At paras. 27
‒
93,
the judge reviewed the evidence before her, noting that she had been guided by
the evidentiary rulings of [the trial judge] as I assess the affidavit evidence
of several doctors including the weight, if any, to be attributed to that
evidence. She then briefly reviewed
Chaoulli
at paras. 94
‒
103 and considered the law
concerning the granting of interlocutory relief in constitutional cases at paras. 104
‒
44.

[18]

The judges analysis began at para. 145 and employed the well-known
framework affirmed by the Supreme Court of Canada in
RJR-MacDonald Inc. v.
Canada (Attorney General)
[1994] 1 S.C.R. 311 for the granting of
injunctive relief (including stays.) At p. 334 of
RJR
, the Court
stated:

Metropolitan Stores
adopted a three-stage test for courts to apply when considering an application
for either a stay or an interrogatory injunction. First, a preliminary
assessment must be made of the merits of the case to ensure that there is a
serious question to be tried. Secondly, it must be determined whether the
applicant would suffer irreparable harm if the application were refused.
Finally, an assessment must be made as to which of the parties would suffer
greater harm from the granting or refusal of the remedy pending a decision on the
merits. [At 334.]

[19]

It is trite law that the three factors do not form a checklist of items
each of which must be satisfied before injunctive relief may be granted. As
stated by McLachlin J.A. (as she then was) for this court in
British
Columbia (Atty-General) v. Wale
(1986) 9 B.C.L.R. (2d) 333,
affd
.
[1991] 1 S.C.R. 62, the three parts of the test are not intended to be separate
watertight compartments, but factors that relate to each other, such that
strength on one part of the test ought to be permitted to compensate for
weakness on another. (At 346
‒
7.)
Further, she observed:

The
checklist of factors which the courts have developed  relative strength of the
case, irreparable harm, and balance of convenience  should not be employed as a
series of independent hurdles. They should be seen in the nature of evidence   relative
to the central issue of assessing the relative risks of harm to the parties
from granting or withholding interlocutory relief. [At 347.]

Serious Question to be Tried

[20]

With respect to whether there was a serious question to be tried, the chambers
judge began with the Attorney Generals argument that this low hurdle had not
been met because the
enforcement provisions
of the
MPA
were not being
challenged in the underlying case. Indeed, the trial judge had dismissed an
application by the plaintiffs to amend their notice of claim to plead facts
relating to enforcement. (At para. 148.) However, the chambers judge did not
agree with the Provinces position. In her analysis:

In
Charter
litigation,
it is often the case that
the penalty attracts a
Charter
challenge because the risk of the
deprivation of liberty engages s. 7.
In
Bedford
, McLachlin
C.J.C., writing for the Court, specifically recognized that s. 7 was
engaged not because of the risk of deprivation of liberty due to enforcement of
prostitution-related offences. Rather, she wrote, it was
compliance with
the laws [that] infringes the applicants security of the person.
In the
context of explaining why it was that security of the person rights were engaged,
she wrote at paras. 59-60:

Here, the applicants argue that the prohibitions on
bawdy-houses, living on the avails of prostitution, and communicating in public
for the purposes of prostitution, heighten the risks they face in prostitution
 itself a legal activity. The application judge found that the evidence
supported this proposition and the Court of Appeal agreed.

For reasons set out below, I am of the same view. The
prohibitions at issue do not merely impose conditions on how prostitutes
operate. They go a critical step further, by imposing dangerous conditions on
prostitution;
they prevent people engaged in a risky  but legal  activity
from taking steps to protect themselves from the risks.


I am not satisfied, based on the
circumstances presented, that a direct challenge to the enforcement provisions
is required. The Plaintiffs challenge is as it was before the
MPA
Amendments  the
prohibitions on private-pay medically necessary health
services increase wait times in a way that is harmful and thus engages
patients life and security of the person rights.
[At paras. 150-151; emphasis
added.]

At para. 152, she adopted the plaintiffs contention
that it was not the risk of a fine
per se
that engaged s. 7 of the
Charter
,
and that the enforcement provisions of the
MPA
did not change the nature
of the plaintiffs constitutional challenge to the prohibitions on private-pay
medically necessary health services.

[21]

Returning to the existence of a serious question to be tried, the chambers
judge noted that this determination was to be made on the basis of common
sense and on a very limited review of the case on the merits, citing
RJR
at 348. She continued:

The Plaintiffs must show that the
impugned provisions are sufficiently connected to the harm suffered before
s. 7 is engaged. In addition, the Plaintiffs must show that the
deprivation of life and/or security of the person is not in accordance with the
principles of fundamental justice. Should a violation be found, the AGBC may
seek to justify the infringement under s. 1 of the
Charter
. [At para. 154.]

She found that the plaintiffs
had established the following on the evidence before her that:

a)         Some
patients will suffer serious physical and/or psychological harm while waiting
for health services;

b)         Some
physicians will not provide private-pay medically necessary health services
after the
MPA
Amendments take effect;

c)         Some
private-pay medically necessary health services would have been available to
some patients but for the impugned provisions;

d)         Some
patients will have to wait longer for those medically necessary health services
that could have been available but for the new enforcement provisions; and

e)         If
those patients lose access to private-pay medically necessary health services,
awaiting those health services in the public system can be significant and some
of those patients are in pain, discomfort and have limited mobility.

I am satisfied, based on the evidentiary
record before me, that there are some patients who would have accessed
private-pay medically necessary health services but now cannot due to the new
enforcement provisions.
I am satisfied, with respect to those patients, that
their s. 7 security of the person rights are engaged.

I am also satisfied that there is
evidence on the Injunction Application that establishes (in a way that is not
frivolous or vexatious) that the prohibitions are sufficiently connected to the
harm suffered by some patients.
I have concluded
that there is sufficient evidence showing that some patients will experience
delayed access to health treatment because they are denied access to
private-pay medically necessary health services. This delay prolongs the
physical and psychological harms to this group of patients. In this regard, I
rely on McLachlin C.J.C. and Major J.s statement in
Chaoulli
at para. 118,
relying on
R. v. Morgentaler,
[1988] 1 S.C.R. 30 where they write:

The jurisprudence
of this Court holds that delays in obtaining medical treatment which affect
patients physically and psychologically
trigger the protection of s. 7
of the Charter.


In
Chaoulli
, McLachlin C.J.C. and
Major J. write at para. 119:

In
Morgentaler
,
as here, people in urgent need of care face the same prospect: unless they fall
within the wealthy few who can pay for private care, typically outside the
country, they have no choice but to accept the delays imposed by the
legislative scheme and the adverse physical and psychological consequences this
entails. As in
Morgentaler
, the result is interference with security of
the person under s. 7 of the
Charter
.

I agree with the
Plaintiffs that delays in treatment giving rise to psychological and physical
suffering
engage the security of the person
Charter
protections just
as they did in
Morgentaler
.
[At paras. 155-159; emphasis added.]

[22]

On the basis of her preliminary assessment of the evidence demonstrating
that waiting for certain health care services may cause some patients serious
physical or psychological harm and that, but for the prohibitions, those
patients could have accessed private-pay medical services, the chambers judge
was satisfied there was a serious question to be tried. (At para. 162.)

Irreparable Harm

[23]

The judge then turned to the second factor  whether the plaintiffs had
demonstrated irreparable harm. This subject was also contentious. The Province
argued that the plaintiffs were required to establish irreparable harm
to
themselves
and not to unidentified third parties because (again in the
Attorneys submission) the claim was not pleaded as a systemic one and the
plaintiffs did not have public interest standing. (At para. 165.)

[24]

The standing issue was problematic. The trial judge had in 2016
received written submissions on the question of whether the plaintiffs Cambie
Surgeries Corporation and Specialist Referral Clinic (Vancouver) Inc. had
standing to bring the constitutional challenge in this case. For reasons
indexed as 2016 BCSC 1292, he had ruled that the corporate plaintiffs had
private
interest standing. (See paras. 57
‒
8.)
At para. 59, he said he did not find it necessary to decide whether they
had public interest standing for purposes of the application before him; but he
noted that they nevertheless met the purposive and flexible test for
public
i
nterest standing enunciated in
Canada (Attorney General) v. Downtown
Eastside Sex Workers United Against Violence Society
2012 SCC 45.

[25]

Then, in later reasons indexed as 2018 BCSC 1141, in ruling on the
plaintiffs application to amend their pleading in light of the enactment of
s. 18.1 of the
MPA
, the trial judge appears to have found that the
plaintiffs did not meet the second part of the test for public interest
standing and did not have a real stake or genuine interest in
s. 18.1
of the
MPA
. (As earlier noted, s. 18.1, which deals with diagnostic
services, is not yet in effect and was not a subject of the plaintiffs
Charter
argument.) Yet at the same time, he said at para. 60 of his ruling that
the corporate plaintiffs had been previously granted public interest standing
after being granted private interest standing. (Quoted by the chambers judge
at her para. 14.)

[26]

Winteringham J. stated at para. 168 that given the authorities and
the trial judges ruling on standing, she was in a position to analyse the
impact of the impugned legislation on the s. 7
Charter
rights of patients
generally
, as opposed to its impact on the rights of the named plaintiffs
specifically, in assessing the issue of irreparable harm.

[27]

The chambers judge was understandably wary of trying to determine on
the record whether adequate compensation could ever be obtained at trial should
the plaintiffs succeed in their constitutional challenge. Conducting such an
inquiry at this stage, she observed, would ignore cautions given by the Supreme
Court of Canada in
RJR
and in
Manitoba
(A.G.) v. Metropolitan Stores Ltd
.
[1987] 1 S.C.R. 110
. Thus cautioned, she concluded that irreparable harm
had been demonstrated, based on the following:

...

a)         Evidence
from Dr. Day (and other physicians) deposing that Cambie (physicians) will
not perform private-pay medically necessary surgical services once the
MPA
Amendments are brought into force;

b)         Evidence
about Kristiana Corrados experience accessing private surgical services. In
particular, I have relied on the excerpted portions of her trial testimony and
her description about the physical and psychological impact on her of waiting
for knee surgery. I have considered Ms. Corrados evidence that access to
private medically necessary surgical services reduced her wait time by
approximately six months;

c)         Ms. Corrados
experience occurred some six years ago. However, her experience as a teenage
athlete is said to be representative of other young athletes awaiting knee
surgery and the physical and psychological effects of waiting;

d)         Dr. Days
specific observations regarding Ms. Corrado. In particular, his
observations that she had a knee that was not functioning well; it was
unstable and painful when it shifted out of position and she was distraught
about not being able to participate in physical activities because of the
delay in getting the knee fixed. In addition to his physical observations, he
noted in her report that she was depressed, had trouble sleeping and concentrating
on her school work because of her knee injury;

e)         The
general observations to which Dr. Day deposed of patients suffering from
terrible pain that greatly affects their daily lives, the negative effects on
their psychological state, their inability to return to work after being off
work for a lengthy period, the serious financial consequences for these and
their families and the long-term effects on their physical well-being and lives
generally;

f)          Excerpted
trial testimony of Professor Alistair McGuire explaining his opinion that the
empirical evidence supports a conclusion that waiting time for surgery can have
harmful consequences and that the wait, in and of itself, causes harm. In his
explanation, he testified:

And on the basis of my experience
and knowledge of econometrics, statistics and health policy thats how I came
to my opinion, and the opinion relates largely in these documents to elective
surgery, and it relates to whether or not there was a deterioration in quality
of life, which is a measure which is used, as Ive said, by regulatory bodies
across the world to try to succinctly define health benefit.

g)         Excerpted
trial testimony of Nadeem Esmail (qualified as an expert in health care
systems, policies and economics of Canada and other developed countries that
maintain universal access to health care, including assessing the success of
these systems in providing timely, high quality health care to patients) about
delayed access to healthcare. Mr. Esmail testified, in part, on the impact
of delay:

Theres a
number of different measures that are used to measure the function, pain and
disability of the patients. And based on these various different measures  and
they dont always align between studies, but each of the studies that Ive
cited there did show that there was a relationship between delay and potential
deteriorations in status, and in some cases to the extent that initial status
at the time of surgery is related to the outcome these deteriorations can then
affect the outcome from the surgery. So a delay might not only affect your pain
and your function while youre waiting and it might get worse; the outcome
post-surgery might now be worse because you werent treated early enough in the
degenerative process.

[At para. 167.]

(I note that Ms. Corrado is a plaintiff in this case.
Both she and Ms. Martens had been successfully treated by one or both
corporate plaintiffs and their avoidance of the waiting lists they would
otherwise have had to endure in the public system is alleged to have saved much
pain and suffering and perhaps, in Ms. Martens case, her life.)

[28]

The chambers judge emphasized that she did not intend to suggest that
the evidence before her proved that the Province had failed to meet optimal
waiting times for any particular health care service. That, she said, was to be
determined by the trial judge on all the evidence. For purposes of the
injunction application, however, she was satisfied that prospective private
health-care patients would be precluded from accessing health services in a
manner that might alleviate their wait times, and that there was a sufficient
causal connection between denying access to private-pay health services and
ongoing harm that might be caused by such delay. (At para. 169.) Thus she ruled:

I am satisfied that the
Plaintiffs have established that some patients will suffer irreparable harm in
this sense
. But for the prohibitions, patients could obtain health care
services much sooner at a private clinic (such as Cambie).
The prohibitions
infringe the s. 7
Charter
rights of the patients by forcing them
onto public health care waiting lists
and the subsequent delay in receiving
treatment causes some patients to endure physical and psychological suffering.
[At para. 170; emphasis added.]

Balance of Convenience

[29]

Turning finally to the balance of convenience, Winteringham J. noted
that where, as in this case, the purpose of the challenged legislation was to
promote the public interest, it was not for her to determine whether it
actually had such effect. Rather, she was required to assume that the
legislation promoted the public interest. The onus was then on the plaintiffs
to demonstrate that its suspension would:

...itself provide a public
benefit in order to overcome the assumed benefit to the public interest arising
from the continued application of the legislation or that no harm is done to
the public interest if the injunctive relief is granted. Put another way, it is
the Plaintiffs who must prove a more compelling public interest. [At para. 171.]

The judge also acknowledged that applicants usually fail in
efforts to obtain interim injunctive relief when they challenge the
constitutionality of legislation, and for good reason. It was only in
exceptional cases, she stated, that democratically-enacted legislation should
be suspended before an actual finding of unconstitutionality or invalidity at
trial.

[30]

The Attorney General argued below that this was not one of the clear
cases in which a court should order duly enacted laws to be inoperable in
advance of complete constitutional review and that the Province would suffer
immediate harm should the injunction be granted. The federal health minister
had already deducted the sum of $15.9 million from its transfer payments to B.C.
in March 2018. This money could be reclaimed if the Province established that
it was taking steps to end the practice of extra-billing in B.C. (At para. 175.)

[31]

The chambers judge characterized this point as speculative:

During the hearing of the
Injunction Application, considerable time was spent on the CHT [Canada Health
Transfer] deduction. The Plaintiffs invite the Court to speculate about whether
the federal government will reimburse the province for the $15.9 million
deduction in light of the enforcement steps the province has taken. The AGBC
also invites the Court to speculate about whether, by the time a decision is
rendered in the constitutional case, the federal government would presumably
have made further, and larger, deductions, thereby depriving B.C.s public
health care system of millions more dollars that could be used to provide
publicly-funded services to all British Columbians... [At para. 176.]

She noted at para. 177 that there was evidence that
suggested the Province could seek to recover the $15.9 million because it had
already taken steps to enforce the prohibitions in the
MPA
. The
potential transfer of those funds would, she said, be generally beneficial.

[32]

She found, however, that this
was
an exceptional case. She reached
this conclusion on the basis of the findings set out above and additional
factors that, in her analysis, tipped the balance of convenience in the
plaintiffs favour. First,
Chaoulli
had opened
the door to
Charter
scrutiny of health care decision-making. (At para. 181.)
In particular, Chief Justice
McLachlin
and Major and
Bastarache JJ., as well as Deschamps J. in her separate reasons, had agreed
that health-care legislation similar to the
MPA
was subject to constitutional
review and that a court could not avoid reviewing legislation for
Charter
compliance when citizens challenge it. The chambers judge commented:

It is an understatement to say
that this is a complex constitutional case brought in the context of public
health care legislation. The proceedings constitute a direct affront to the
public health care system and, importantly, Canadas pledge to a universal
public health care system. In
Chaoulli
, the much divided court revealed
the tension between the laudable goal of providing universal (equal) access to
health care and interfering with citizens autonomy and dignity by prohibiting
access to private health care options for medically necessary health services.
The tension is all the more evident when access to health care is redefined as
access to a wait list for health care. However,
the determination of these
complicated issues is for the trial judge, on a full record, with the benefit
of legal submissions from the parties.
[At para. 182; emphasis added.]

and further:

... For the purpose of the
Injunction Application only, I am satisfied that the Plaintiffs have
demonstrated, to the extent necessary, that the s. 7
Charter
rights
of some patients are engaged. I make that finding based on the evidence of the
doctors who depose that they will refrain from providing private-pay medically
necessary health services that are subject to significant financial penalties.
Further, those doctors deposed that their own waiting lists for the same health
services in the public system will increase. Any delay is thus twofold. First,
for a patient such as Ms. Corrado, the
MPA
Amendments will remove
access to private-pay medically necessary health services. Second, patients
such as Ms. Corrado will be added to a waiting list that may be longer
than what is in place today because the public health care system will need to
accommodate those who (but for the
MPA
Amendments) would have otherwise
utilized private health care services. [At para. 183.]

The chambers judge was satisfied on the evidence before her
that at least some patients are at increased risk of suffering physical and
psychological harm by reason of having to wait for public health-care services.
It was such waiting, with no option to pursue an alternative, that in her
analysis engaged the rights of such persons under s. 7 of the
Charter
and tipped the balance of convenience in the plaintiffs favour.

[33]

The judges second reason for finding that the case was exceptional in
the context of the balance of convenience was that the parties were in the
middle of a trial that had been underway for over two years. This was not a
case in which the law had been brought into force prior to a trial on the
merits. In fact, the plaintiffs case was almost concluded and the Attorney General
was to open its case in the near future. There had already been some 150 days
of trial and 48,000 pages of evidence had been presented at trial.

[34]

Perhaps more significantly, the new additions to s. 46 of the
MPA
had in fact been enacted in 2003 but had not been proclaimed into force until September
2018  some 15 years later. Both parties attempted to rely on a 
status quo
argument, but the chambers judge found that the plaintiffs would be affected
in a far greater manner than the Attorney General should injunctive relief not
be granted. In her words:

... I say that because I am
satisfied that there are doctors who will not provide private-pay medically
necessary health services with the new enforcement provisions, thereby
potentially impacting the s. 7 rights of some patients. I also wish to
address the AGBCs submission regarding the availability of equitable relief in
the circumstances presented here. I am not satisfied based on the evidence
before me that it has been established that the Plaintiffs are disentitled to
equitable relief because they do not have clean hands.  The parties have
a complicated history and one that has evolved since the litigation began. I
therefore decline to make such a finding on the Injunction Application. [At para. 188.]

[35]

In the result, Winteringham J. was satisfied that the special
considerations raised by the application could be addressed by a time-limited
order. Having been advised that the case at trial should be concluded by April
1, 2019, she was prepared to grant the
injunction
(the alternative to
the
stays
sought by the plaintiffs) enjoining the Province from
enforcing ss. 17, 18 and 45 of the
MPA
until June 1, 2019 or
further order of the Court.

[36]

The judge ended by summarizing her conclusions at para. 190:

...

a)         Taking
into account the circumstances of this constitutional litigation and a
preliminary assessment of the evidence, the Plaintiffs have established that
injunctive relief is appropriate in this case. I make that determination based
on a preliminary assessment of the evidence and finding that the Plaintiffs
have established that there is a serious question to be tried in that:

i.          Some
patients will suffer serious physical and/or psychological harm while waiting
for health services;

ii.         Some
physicians will not provide private-pay medically necessary health services
after the
MPA
Amendments take effect;

iii.         Some
patients would have accessed private-pay medically necessary health services
but for the
MPA
Amendments;

iv.        Some
patients will have to wait longer for those medically necessary health services
that could have been available but for the
MPA
Amendments and impugned
provisions;

v.         A
sufficient causal connection between increased waiting times for private-pay
medically necessary health services and physical and/or psychological harm
caused to some patients.

b)         The
Plaintiffs have established irreparable harm in the context of a constitutional
case that has proceeded in a manner that is consistent with public interest
litigation in that some patients, but for the prohibitions, could have obtained
private-pay medically necessary health services much sooner at a private clinic
(such as Cambie) and the subsequent delay in receiving treatment causes some
patients to endure serious physical and psychological suffering. The nature of
this constitutional case complicates the assessment of damages at the
interlocutory stage.

c)         The Plaintiffs have established
that the balance of convenience tips in their favour. This is so despite the
Courts conclusion that the
MPA
Amendments are directed to the public
good and serve a valid public purpose. The Plaintiffs have tilted the balance
by establishing that restraint of the enforcement provisions will also serve
the public interest in that private-pay medically necessary health services
will be accessible in circumstances where the parties are in the midst of a
lengthy trial to determine the complicated constitutional issues at play. Enjoining
the province from enforcing the prohibitions for a relatively short period of
time serves that important public purpose. [At para. 190.]

Application for Leave

[37]

In support of his application for leave to appeal, the Attorney General
asserts that the chambers judge:

a. exercised her discretion on a
wrong principle by:

i. enjoining
the enforcement of validly-enacted legislation despite failing to find that the
Plaintiffs had established a clear case of the legislations unconstitutionality;
and

ii. finding that
the Plaintiffs had satisfied the irreparable harm branch of the test of an
interlocutory injunction by establishing the possibility of harm to unnamed
third parties, rather than harm to themselves;

b. failed to exercise her
discretion judicially by granting the broadest possible remedy, sought by the
Plaintiffs only in the alternative, without any explanation of why that was
necessary;

c. erred in law by making critical
findings of fact based on inadmissible expert opinion evidence; and

d. erred in fact and law by finding that the Plaintiffs had
established irreparable harm on the evidence before her.

I propose to address subpara. (a)(ii) and para. (d)
together since the arguments advanced by the Province on those issues are essentially
the same.

[38]

At paras.18 and 19 of his written argument, the Attorney General cited
the well-known tests for the granting of leave to appeal in this court,
namely:

a. whether the appeal is prima
facie meritorious, or on the other hand, whether it is frivolous;

b. whether the points on appeal are
of significance to the practice;

c. whether the points raised are of
significance to the action itself;

and

d. whether the appeal will unduly hinder the progress of the
action.

The Attorney acknowledges that the overarching consideration
is whether it is in the interests of justice to grant leave.

[39]

The plaintiffs agree with the four factors as stated, but join issue on
the application of each in the circumstances of this case. They submit that:

In this case, the application for
leave to appeal should be dismissed because the proposed grounds of appeal are
not meritorious, the proposed appeal raises no legal questions of significance
to the practice, it will unnecessarily delay the underlying trial, and there is
no public interest in granting leave to appeal of this time-limited and
discretionary decision.

As well, they emphasize the discretionary nature of the
chambers judges decision and the deferential standard of review that this
court would be bound to apply in any appeal. Counsel appear to agree that the
standard is whether the chambers judge erred in principle or made an order not
supported by the evidence, or whether the order appealed from will result in an
injustice: see the authorities cited by Mr. Justice Fitch in
Independent
Contractors and Businesses Association v. British Columbia,
2018 BCCA 429
at paras. 35
‒
6.

Merits of the Appeal: A Wrong Principle?

[40]

Although the Attorney agrees that an arguable case must be shown in
all cases by an applicant for injunctive relief, he also contends (or at least
so I infer) that a higher or different standard must be met where the applicant
is seeking a suspension of the operation of duly enacted legislation. The
Attorney says that the chambers judge had to find that the impugned legislation
was unconstitutional or, put in slightly different terms, that she had to find
a clear case of unconstitutionality before she could, in law, grant the
injunction. It is said that such proof would have to extend beyond the
engagement of s. 7 rights, to include a
finding
that any
violation of s. 7 rights  is not in accordance with the principles of
fundamental justice. In support, the Attorney cited
Metropolitan Stores
at 130-3
;
RJR
at 343-7; and
Harper v.
Canada (Attorney General)
2000 SCC 57 at paras. 5
‒
9.

[41]

In
Metropolitan Stores
, Beetz J. for the Court addressed the
arguable case test as follows:

In the case at bar, it is neither
necessary nor advisable to choose, for all purposes, between the traditional
formulation and the [
American
Cyanamid Co. v. Ethicon Ltd.
[1975] A.C. 396 (H.L.)]

description of the first test: the British case law illustrates
that the formulation of a rigid test for all types of cases, without
considering their nature, is not to be favoured (see Hanbury and Maudsley,
Modern
Equity
. (12
th
ed., 1960) pp. 736-43).
In my view,
however, the
American

Cyanamid
serious question formulation is
sufficient in a constitutional case where, as indicated below in these reasons,
the public interest is taken into consideration in the balance of convenience
.
[At 128; emphasis added.]

He also approved the
dictum
of Lord Diplock in

American
Cyanamid
that
:

It is no part of the court's
function at this stage of the litigation to try to resolve conflicts of evidence
on affidavit as to facts on which the claims of either party may ultimately
depend nor to decide difficult questions of law which call for detailed argument
and mature consideration.
These are matters to be dealt with at the trial.
[At 130; emphasis added.]

The Supreme Court acknowledged that interlocutory procedures
rarely allow a chambers judge to decide questions of constitutionality prior to
trial. In the words of Beetz J., the court is generally much too uncertain as
to the facts and the law to be in a position to decide the merits. (At 133.)

[42]

The Court in
RJR
took a similar view. In its analysis:

The
Charter
protects fundamental rights and freedoms.
The importance of the interests which, the applicants allege, have been
adversely affected require every court faced with an alleged
Charter
violation to review the matter carefully. This is so even when other courts
have concluded that no
Charter
breach has occurred. Furthermore,
the
complex nature of most constitutional rights means that a motions court will
rarely have the time to engage in the requisite extensive analysis of the
merits of the applicant's claim.
This is true of any application for
interlocutory relief whether or not a trial has been conducted. It follows that
we are in complete agreement with the conclusion of Beetz J. in
Metropolitan
Stores
, at p. 128, that the
American Cyanamid
serious question
formulation is sufficient in a constitutional case where, as indicated below in
these reasons, the public interest is taken into consideration in the balance
of convenience.

What then are the indicators of a serious question to be
tried? There are no specific requirements which must be met in order to
satisfy this test. The threshold is a low one.

Once
satisfied that the application is neither vexatious nor frivolous, the motions
judge should proceed to consider the second and third tests, even if of the
opinion that the plaintiff is unlikely to succeed at trial.
A prolonged examination
of the merits is generally neither necessary nor desirable
. [At 337
‒
8; emphasis added.]

[43]

In
Harper
, the majority of the Supreme Court observed at para. 4
that the first factor is whether there is a serious issue to be tried. The
majority found this had been shown without prejudging the appeal.

[44]

Each of the foregoing decisions involved a
Charter
challenge to
existing legislation, and there is no doubt that such a challenge imports
special considerations where an injunction is sought pending trial. In
Metropolitan
Stores
, Beetz J. considered how the usual tests for injunctive relief are applied
in these circumstances. (See 129.) None of the parties in that case, he observed,
had disputed the existence of a discretionary power to grant a stay in such
cases, and he agreed with their assumption. (See 126.) He noted that the courts
consider that they should not be restricted to the application of the
traditional criteria and that unless the public interest is also taken into
consideration
in evaluating the balance of convenience
, courts often
express their disinclination to grant injunctive relief before constitutional
invalidity has been finally decided on the merits. (At 129; my emphasis.) Following
a review of the relevant cases and various practical consequences of granting
injunctive relief in the form of the suspension of legislation, Beetz J.
stated:

I respectfully take the view that Linden J. has
set the
test too high in writing in
Morgentaler
that it is only in exceptional
or rare circumstances that the courts will grant interlocutory injunctive
relief. It seems to me that the test is too high at least in exemption cases
when the impugned provisions are in the nature of regulations applicable to a
relatively limited number of individuals and where no significant harm would be
suffered by the public
: it does not seem to me, for instance, that the
cases of [
Law Soc. of Alta. v. Black
and
Vancouver Gen. Hosps. v.

Stoffman,
]  can be considered as exceptional or rare. Even the
Rio
Hotel
case,
supra
, where the impugned provisions were broader,
cannot, in my view, be labelled as an exceptional or rare case.

On the other hand, the public
interest normally carries greater weight in favour of compliance with existing
legislation
in suspension cases when the impugned provisions are broad and
general and such as to affect a great many persons.
And it may well be that
the above mentioned test set by Linden J. in
Morgentaler
is closer to
the mark with respect to this type of case. In fact, I am aware of only two instances
where interlocutory relief was granted to suspend the operation of legislation
and, in my view, those two instances present little precedent value. [At 147
‒
8; emphasis added.]

[45]

In
RJR,
the Supreme Court again emphasized that the public
interest is a special factor" to be considered in assessing the balance
of convenience in constitutional cases and that it must be given the weight it
should carry. The Court suggested it should be open to both parties in an
interlocutory
Charter
proceeding to rely on considerations of the public
interest. In the words of Sopinka and Cory JJ. for the Court:

Each party is entitled to make
the court aware of the damage it might suffer prior to a decision on the
merits. In addition,
either the applicant or the respondent may tip the
scales of convenience in its favour by demonstrating to the court a compelling
public interest in the granting or refusal of the relief
sought. Public
interest includes both the concerns of society generally and the particular
interests of identifiable groups. [At 344; emphasis added.]

[46]

Sopinka and Cory JJ. stated that a motions court should in most instances
assume that irreparable harm to the public interest would result from the
restraint of the action sought to be enjoined. They recognized at pp. 346
‒
7 that public interest
considerations will weigh more heavily" in a suspension case than in an
exemption case, in which a discrete and limited number of applicants are
exempted from the application of the legislation; and that even in suspension
cases some relief might be provided if the court is able to limit the scope of
the applicant's request for relief. All things being equal, the court said, it
is, in Lord Diplocks words, a counsel of prudence to preserve the
status
quo
.

[47]

In
Harper
, the Court re-affirmed that in injunction applications
based on constitutional challenges, the motions judge must presume that the
impugned law will produce a public good." In the words of the majority:

The assumption of the public
interest in enforcing the law
weighs heavily in the balance. Courts will not
lightly order that laws that Parliament or legislature has duly enacted for the
public good are inoperable
in advance of complete constitutional review,
which is always a complex and difficult matter.
It follows that only in
clear cases will interlocutory injunctions against the enforcement of a law on
grounds of alleged unconstitutionality succeed
. [At para. 9; emphasis
added.]

[48]

This is presumably the source of the clear case" requirement
asserted by the Attorney General in the case at bar. The same phrase was
employed in a lengthy passage quoted by Winteringham J. from a more recent case
involving interlocutory relief,
Manitoba Federation of Labour et al. v. The
Government of Manitoba
2018 MBQB 125. The quoted passage includes the
conclusion of Edmond J. that  only in clear cases will interlocutory
injunctions against the enforcement of the law on grounds of alleged
unconstitutionality or a violation of the
Charter
succeed." In his analysis:

Although the facts of these cases are different, they make it
clear that interlocutory injunctions or stays are rarely granted in
constitutional cases because it is assumed that laws enacted by democratically
enacted legislatures are directed to the common good and serve a valid public
purpose.

That does not mean that
injunctions are never granted. In order to overcome the assumed benefit to the
public interest arising from the continued application of the legislation,
the
moving plaintiffs who rely on the public interest must demonstrate that the
suspension or exemption of the legislation would provide a public benefit.
[At paras. 154
‒
5;
emphasis added.]

[49]

As I have already suggested, the clear case requirement in cases where
the constitutionality of legislation is challenged does not in my view affect
the first
RJR
factor

by imposing a higher standard in
the
sense of a strong or highly meritorious argument.
Instead, it informs the
courts task in assessing the
second
factor of the analysis,
irreparable
harm
. Given that a court is required to assume the existence of a public
good underlying challenged legislation, it could hardly be otherwise: the
applicant for an injunction must, as the chambers judge said, prove a more
compelling public interest if it is to offset the presumption of public good. (See
paras. 171, 177.) The chambers judge clearly accepted these propositions
of law, but found that the balance in this case had been tipped in the
plaintiffs favour.

[50]

As far as the Attorneys first ground of appeal  that the chambers
judge proceeded on a wrong principle in granting an injunction in the absence
of finding that a clear case of unconstitutionality had been established  is
concerned, none of the authorities supports the assertion that a motions judge
should find facts or reach conclusions on the outcome of the issues that stand
to be decided at trial. I see no merit in the Attorneys first proposed ground
of appeal, which rests on a misconception of the nature of an interlocutory
injunction. Indeed it would have been erroneous for the chambers judge to have attempted
to reach any final conclusion on the constitutionality of the impugned
provisions of the
MPA.

Harm to Unnamed Third Parties

[51]

I turn next to the Provinces argument that the chambers judge exercised
her discretion on a wrong principle in finding that the test of irreparable
harm had been met by the demonstration of harm to 
unnamed third parties
.

It will be recalled that Winteringham J. concluded (based on her review of
the pleadings, the trial judges ruling on private and public interest standing,
and the case authorities regarding
Charter
litigation and public
interest standing) that it was open to her to consider the impact of the
MPA
prohibitions more generally
‒
presumably as a systemic challenge. In the Attorneys submission, this was erroneous:
the judge had to find harm to
the plaintiffs themselves
before she could
be satisfied on the second
RJR
factor.

[52]

Although I would describe the Attorney Generals argument on this point
as a weak one, I cannot say it is frivolous or vexatious. Part of the
difficulty stems from the fact that the trial judge declined to reach a
conclusion in his 2016 reasons on the question of the public interest standing
of the corporate defendants  despite also finding the plaintiffs had met the applicable
criteria for that status. Regardless of the public/private interest standing of
the corporate plaintiffs, however, the plaintiffs claims here, like those
advanced in
Chaoulli
, are systemic in nature. In the words of Binnie, LeBel
and Fish JJ. in
Chaoulli
at para. 189, their argument is not
limited to a case-by-case consideration and they do not limit themselves to the
circumstances of any particular patient. (Binnie, LeBel and Fish JJ. were not
in dissent on this point; Deschamps J. agreed on this point at para. 35;
and Chief Justice McLachlin and Major and Bastarache JJ. agreed with her conclusions:
see para. 102.) In addition in the case at bar, one or more of the individual plaintiffs
has or had at some point (and I see no meaningful difference on that point) a direct
interest in the outcome of the litigation. The corporate plaintiffs have been
found to have (at the least) a direct interest as well. In these circumstances,
the question of law advanced by the Attorney seems to be of theoretical
interest at best.

Inadmissible Evidence?

[53]

Setting aside subparagraph (b) of the Attorneys grounds of appeal for
the moment, we come to his third ground  that the chambers judge erred in law
by making critical findings of fact and law based on inadmissible expert
opinion evidence. As noted earlier, Winteringham J. stated she was guided in
her analysis by the evidentiary rulings of the trial judge in assessing
affidavit evidence of several doctors that was filed in chambers by the
plaintiffs. Yet the Attorney contends that she relied on evidence the
trial
judge
had ruled inadmissible. (When questioned at the hearing in this
court, counsel for the Province said that in using the word inadmissible he
meant the trial judge had given the evidence no weight. On this point, see para. 6
of the trial judges reasons at 2017 BCSC 156.) The evidence objected to by the
Province included parts of the lay evidence (as opposed to expert opinion
evidence) of Dr. Brian Day, the president and medical director of the
plaintiff Cambie Surgeries Corporation (see 2018 BCSC 514); opinion evidence of
Professor Alistair McGuire on the issue of medical harm to individuals waiting
for medical care; and opinion evidence of Mr. Nadeem Esmail, an economist.
The Attorney says that because Mr. Esmail had no
medical
training
or expertise, he was not qualified to opine on the medical effects of waiting
or harm caused by waiting.

[54]

The plaintiffs respond that, just as it was not for the chambers judge
to rule on the constitutionality of the impugned legislation, it was not for
her to resolve the many evidentiary disputes that have confronted and will
continue to confront the trial judge. They contend that only
portions
of
the disputed evidence were ruled inadmissible by the trial judge and that the
chambers judge was entitled to consider the rest. (Neither party before me
cited any case-law as to whether the chambers judge was bound by the trial
judges evidentiary rulings; as Mr. Penner observed, the trial judge is
usually the judge who rules on injunctive relief.) As well the plaintiffs say
that even if the expert evidence relied on expressly by the chambers judge was inadmissible
(which they deny), the conclusions reached by Professor McGuire and Mr. Esmail
were also supported by various other experts whose reports
were
admitted, including those of Drs. Masri, Matheson, Chambers and Younger. Last,
they emphasize that evidence that may have been excluded as unhelpful on issues
at trial may well have been found to be relevant to issues on the injunction application;
and that the expert opinions given at trial were similar to those admitted in
Chaoulli
.

[55]

Even if one assumes the Attorney is correct in his assertion that the
chambers judge relied on evidence the trial judge had found to be truly
inadmissible, it is in my view very unlikely a division of this court would,
prior to the conclusion of the trial and issuance of the trial judges reasons,
express views on his evidentiary rulings. As this court (with a division of
five judges) observed recently in another appeal in this litigation indexed as
2017 BCCA 287:

This Court has repeatedly held it does not have jurisdiction
to hear free-standing appeals from evidentiary and other rulings made during
the course of a trial. The modern genesis of that line of authority is
Rahmatian
v. HFH Video Biz, Inc.
(1991), 55 B.C.L.R. (2d) 270 (C.A., Chambers),
wherein Chief Justice McEachern declined to entertain an application by a
defendant in an on-going trial for leave to appeal the dismissal of a
no-evidence motion. In his view, the dismissal was not an order but rather, a
ruling, or a ruling on evidence which is part of the trial process, and is not
appealable until after the trial has been completed: at 272. This reasoning is
in accord with older authorities to which I will refer later in these reasons.

To hold that an evidentiary
ruling made during a trial juridically constitutes an appealable order would be
inconsistent with the long-accepted principle that it is always open to a trial
judge to revisit such rulings:  see
R. v. Adams
, [1995] 4 S.C.R.
707 at paras. 2930;
R. v. Cole
, 2012 SCC 53 at para. 100,
[2012] 3 S.C.R. 34. If such rulings gave rise to orders and those orders were
formally entered, then the doctrine of
functus officio
would preclude
reconsideration even in the face of a material change in circumstances. [At paras. 40,
63.]

Overly Broad Terms?

[56]

The Attorneys final ground of appeal is that Winteringham J. failed to
exercise her discretion judicially by granting a broad injunctive order,
rather than a stay restricted to the enforcement provisions of ss. 46(5.1)
and (5.2) of the
MPA
, without any explanation of why that was
necessary. This assertion tests the limits of the courts discretion in such
cases, and more particularly the extent to which a decision reached by a judge
in chambers must be explained in reasons for judgment. Again, given the nature
of the motions judges task on an application such as the one before Winteringham
J., the broad similarity of injunctions and stays, and the deferential standard
of review that would have to be applied by this court, I conclude that this ground
is a weak one, but not one that could be said to be frivolous or vexatious.

Summary on Merits of the Appeal

[57]

To summarize my conclusions regarding the merits of the issues proposed
to be advanced on appeal by the Province, I find that:

(i)       There is no merit to an appeal based on the
proposition that the chambers judge exercised her discretion on a wrong
principle in granting injunctive relief in the absence of a finding of a clear
case of unconstitutionality. The law is clear that an arguable or serious
case is sufficient at this point, and there is no doubt that low hurdle was
met;

(ii)      The argument that the chambers judge
proceeded on a wrong principle in finding harm to unnamed third parties
rather than to the plaintiffs themselves is highly problematic and overlooks
the evidence of the individual plaintiffs in this case, the trial judges
rulings on public interest standing and the fact that as in
Chaoulli
,
the
Charter
challenge here is a systemic one. Nevertheless, the point
is not frivolous or vexatious;

(iii)      The argument that the chambers judge
considered inadmissible opinion evidence is also problematic given that this
court will not rule in an appeal at this stage on whether the trial judges
evidentiary rulings are correct or not. Nevertheless, the point cannot be said
to be frivolous or vexatious; and

(iv)     The argument that the chambers judge was
required to explain in her reasons why she granted an injunction on the terms
she did rather than a stay in the narrower terms sought by the plaintiffs (the
injunction being their second alternative) is also arguable, although highly
theoretical.

Significance to the Practice

[58]

For the reasons given above, I am of the view that those questions
raised by the Attorney which I have found to be arguable, are not of
significance to the practice generally.

Significance to the Action / Will Appeal Unduly Hinder the Action?

[59]

It is the final two branches of the test for granting leave to appeal (see
para. 38 above) that in my view are decisive of this application. First,
an appeal that answered the questions described above would be of very little
significance to the action itself. As held in the previous appeal in 2017, this
court would in all likelihood decline to rule on the evidentiary issue(s)
raised by the Province. Nothing would change at trial if this court were to
rule that the chambers judge should not have considered harm in a general
way, given that direct harm to at least Ms. Corrado and the corporate
plaintiffs was shown to the trial judges satisfaction. If this court were to
rule that the chambers judge should have explained at length why she chose to
grant an injunction as opposed to a stay, the practical effect is unclear: the
court might still grant an injunction or a stay of some kind. At bottom, the
issues are at best theoretical distractions from the constitutional issues that
are the subject of the underlying case. Given the amount of time and resources,
including judicial resources, that have been devoted to this proceeding thus
far, an appeal on these issues simply cannot, in my respectful view, be
justified  even if it were the case that both parties have unlimited funds and
time, which they do not.

[60]

This brings me to the fourth factor  the effect that an appeal would
have on the trial. The Attorney submitted that two previous appeals in this
proceeding were mounted and completed without apparent difficulty on the part
of the plaintiffs, suggesting that the same could occur with respect to this
appeal. Again with respect, I am doubtful that no real difficulties were
encountered by the parties and their counsel by reason of the two appeals. Obviously,
judicial
time and resources are taken up by appeals, and have been taken
up in this case by five of them. More to the point, I reiterate that the appeal
of the issues described above would be virtually irrelevant to the resolution
of the
Charter
challenge that has been underway in the Supreme Court of
British Columbia since 2016. It is now 2019. The parties and their counsel should
be encouraged to complete their cases in the court below, not to pursue
distractions in the form of appeals to this court.

[61]

The ultimate question on this leave application is of course whether the
proposed appeal would be in the interests of justice. It will be apparent that
in my opinion, the proposed appeal is not in the interests of justice. The
authorities are clear than a motions judge is not expected to rule on the
issues of fact and law before the trial court, nor to carefully weigh and make
rulings on admissibility or findings of harm. The injunction is merely an
interim measure, and generally the preservation of the
status quo
pending
the trial courts decision will be the appropriate course.

[62]

Here we have three highly theoretical questions that are irrelevant to
the important
Charter
issues in the case; a discretionary decision
reached after careful consideration and explained in lengthy reasons; and the
granting of relief that effectively preserves the
status quo
that was in
place from 2003 until mid-trial when the Province suddenly decided to attach
penalties to contraventions of ss. 17 and 18 of the
MPA
. Granting leave
would only add another layer of expense and complexity to a proceeding that has
already occupied 150 days of court time over two years, and presumably many
more months of counsels time. It is time for counsel and the parties to focus
on the completion of the trial process.

[63]

In all the circumstances, I would dismiss the application.

The Honourable Madam Justice Newbury

SCHEDULE A

General limits on direct or extra
billing

17

(1)

Except as specified in this Act or
the regulations or by the commission under this Act, a person must not charge
another person

(a)

for or in relation to a benefit, or

(b)

for materials, consultations,
procedures, use of an office, clinic or other place or for any other matters
that relate to the rendering of a benefit.



(1.1)

The commission may determine that a person charges in
relation to a benefit for the purposes of subsection (1) (a) if the charge is
for anything done, provided, offered, made available, used, consumed or
rendered

(a)

at any time in relation to the rendering
or refusal to render the benefit, and

(b) in
circumstances that a reasonable person would consider would result in

(i)

a refusal to render the benefit if the
thing were not done, provided, offered, made available, used, consumed or rendered,
or

(ii)

the beneficiary being rendered the
benefit in priority over other persons or being given preferential treatment in
the scheduling or rendering of the benefit if the thing were done, provided,
offered, made available, used, consumed or rendered.



(1.2)

If a person charges or attempts to charge another person
contrary to subsection (1), another person is not liable to pay the amount
charged.



(2)Subsection (1) does not apply:

(a)

if, at the time a service was rendered,
the person receiving the service was not enrolled as a beneficiary;

(b)

if, at the time the service was
rendered, the service was not considered by the commission to be a benefit;

(c)

if the service was rendered by a
practitioner who

(i)

has made an election under section
14 (1), or

(ii)

is subject to an order under
section 15 (2) (b);

(d)

if the service was rendered by a medical
practitioner who is not enrolled.



Limits on direct or extra billing by a
medical practitioner

18

(1)

If a medical practitioner who is
not enrolled renders a service to a beneficiary and the service would be a
benefit under this Act or the
Hospital Insurance Act
if
rendered by an enrolled medical practitioner, a person must not charge another
person for, or in relation to, the service, or for materials, consultations,
procedures, use of an office, clinic or other place or for any other matters
that relate to the rendering of the service, an amount that, in total, is greater
than

(a)

the amount that would be payable under
this Act, by the commission, for the service if rendered by an enrolled medical
practitioner,

(b)

if a payment schedule or regulation
permits or requires an additional charge by an enrolled medical practitioner,
the total of the amount referred to in paragraph (a) and the additional charge,
or

(c)

the amount that would be payable under
the
Hospital Insurance Act
,
for the service if rendered by an enrolled medical practitioner.



(2)

Subsection (1) applies only to a service rendered in

(a)

a hospital as defined in section 1 of
the
Hospital Act
,

(b)

a facility as defined in section 1 of
the
Continuing Care Act
,

(c)

a community care facility or assisted
living residence as defined in section 1 of the
Community Care and Assisted
Living Act
that receives funding for the service through a
regional health board, the Nisga'a Nation or the Provincial Health Services
Authority, or

(d)

a medical facility or diagnostic
facility if

(i)

a regional health board as designated
under section 4 of the
Health Authorities Act
,
or

(ii)

the Provincial Health Services
Authority

has contracted
to have the service rendered.



(3)

If a medical practitioner described in section 17 (2) (c)
renders a benefit to a beneficiary, a person must not charge another person
for, or in relation to, the benefit, or for materials, consultations, procedures,
use of an office, clinic or other place or for any other matters that relate to
the rendering of the benefit, an amount that, in total, is greater than

(a)

the amount that would be payable under
this Act, by the commission, for the benefit, or

(b)

if a payment schedule or regulation
permits or requires an additional charge, the total of the amount referred to
in paragraph (a) and the additional charge.



(4)

If a medical practitioner who is not enrolled charges
another person contrary to subsection (1) or (3), another person is not liable
to pay the amount charged.



Private
insurers

45

(1)
A person must not provide, offer or enter into a contract of insurance with a
resident for the payment, reimbursement or indemnification of all or part of
the cost of services that would be benefits if performed by a practitioner.



(2) Subsection (1) does not apply to

(a) all or part
of the cost of a service

(i)
for which a beneficiary cannot be reimbursed under the plan, and

(ii) that is
rendered by a health care practitioner who has made an election under section
14 (1),

(b) insurance
obtained to cover health care costs outside of Canada, or

(c) insurance
obtained by a person who is not eligible to be a beneficiary.



(3) A contract that is
prohibited under subsection (1) is void.


