by Written on behalf of Wise Health Law November 22, 2019 3 min read

Dr. Brian Day is an orthopedic surgeon living and practicing in Vancouver, British Columbia. He built his medical practice in 1995. The goal was to provide private medical care on a fee for service basis. These same patients/residents could, of course, have their care provided in the normal course but that would mean waiting in line. Dr. Day and his clinic, on the other hand, would treat you much faster.

Dr. Day opened his center and proceeded with his business plan in 1996. He promoted the practice to out-of-province patients and visitors from other countries. In addition, he accepted provincial patients despite the law and proceeded to treat and charge them privately.

Prohibition Under British Columbia Legislation

The provincial Medicare Protection Act prohibits doctors from registering in both the private and public streams at the same time. It prohibits publicly-enrolled doctors from charging for services that are publicly funded. It also prohibits the issuance of private insurance for medically necessary care that is a part of the public system.

Challenging the Constitutionality of the Legislation

For the next twenty years, the clinic operated in accordance with the business model and treated all comers for a fee. The provincial government took no action and left things as they were despite the infringement of the law.

Dr. Day decided that he had had enough of politics and undertook to challenge the provincial legislation under the Charter of Human Rights and Freedoms (Charter). The battle has been waged for a decade now. The matter is now before the trial judge who is about to hear the parties’ final submissions before making a decision.


Other parties have intervened, including the federal government, the BC Health Coalition and the BC Nurses Union. One such party was “Canadian Doctors for Medicare” whose concern is expressed as follows:

I think all Canadians should be very concerned because it’s in the very fabric of who we are as a nation that we provide care for one another when we need it.

The concern is that if successful, the result will be a further deterioration of the current healthcare system. Health care professionals will be drawn to such clinics where they can choose their cases and make more money. The harder cases will be left for the public system.

Dr. Day: Adding Private Options Doesn't Detract From the Current System

Dr. Day, on the other hand, sees it differently. He is not interested in dismantling the medicare system, he just feels that there should be more private options for care in conjunction with the public system. He reminds us that the system has worked just as he has always said it would over the last twenty years when he was left alone, and the law was not enforced. Why would we want a system that delays treatment, and potentially causes further harm, all for the sake of an ideological commitment to equal access? After all, the reality of many people's experience is that the system does not provide that care on a timely basis.

Legal Costs

What the year-long trial, with over one-hundred witnesses, has cost both sides is unknown. The government has not and will not release its numbers. Dr. Day, on the other hand, has been supported by the Canadian Constitution Foundation which has raised money to help him prosecute the matter.

A Long Road Ahead

Dr. Day’s interest in the case is obvious. There were however patients of his who testified on behalf of both sides to the dispute. Those opposed wanted faster service within the current system at no cost to them. Those in support had had their conditions deteriorate while waiting for care. The government and the intervenors appear solely interested in preserving the system and have not put forward a solution that would better serve the patients of British Columbia. Politics aside, the journey is expected to be a long one that will eventually be resolved by the Supreme Court of Canada. We will keep a close watch on this case and update it as necessary.

At Wise Health Law, we provide exceptional guidance on health law matters to public hospitals, long-term care homes, and other health-care organizations across the province. Our lawyers monitor trends and developments in health so that we can provide forward-thinking legal and risk management advice to all our clients. Contact us online, or at 416-915-4234 for a consultation.

Also in Blog

Bill 218: Supporting Ontario’s Recovery Act, 2020

by Valerie Wise October 23, 2020 3 min read

On October 20, 2020, the Ontario government introduced legislation to provide protection from liability for workers, volunteers and organizations who make “good faith efforts” to comply with federal, provincial or municipal law and public health guidance relating to COVID-19.   
Cases to Watch: Marchi v. Nelson

by Mina Karabit September 22, 2020 3 min read

In August 2020, the Supreme Court heard and granted leave to appeal in Marchi v. Nelson, a case from the British Columbia Court of Appeal. The decision is one to watch as it will likely result in a renewed discussion of the distinction of policy versus operational decisions and their impacts on liability in tort law. The discussion will likely impact many of the anticipated post-COVID-19 lawsuits against public and government institutions.
Judicial Review: New Time Limits and a Helpful Primer

by Mina Karabit September 17, 2020 4 min read

In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.

Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.

Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.