Clinic ordered to pay B.C.'s costs after failure of 'marathon' private health lawsuit

The exterior of the Cambie Surgery Centre is pictured in Vancouver., Monday, November, 18, 2019. (THE CANADIAN PRESS/Jonathan Hayward)

A private medical clinic that launched an unsuccessful constitutional challenge of Canada’s public health care system must pay the B.C. government’s legal costs, after what a judge calls a “gruelling marathon” of a case.

Cambie Surgeries Corp. launched a lawsuit back in 2009, claiming B.C.‘s Medicare Protection Act was unconstitutionally preventing people from getting private health care when the public system was unable to provide it.

The B.C. Supreme Court, the B.C. Court of Appeal and the Supreme Court of Canada all shot down the private surgery clinic’s case, but the issue of trial costs was left in the air.

B.C. Supreme Court Justice Jennifer Lynn Whately ruled Monday that Cambie Surgeries should pay the Attorney General of British Columbia’s trial costs, calling the long-running litigation “prodigiously lengthy and complex.”

The ruling says the lawsuit by Cambie Surgeries was being funded by the Canadian Constitution Foundation.

The ruling doesn’t specify the province’s costs, but the foundation said last year the B.C. government was seeking $1.7 million from the charitable foundation and “its partners.”

The court ruling says the government argued that Cambie Surgeries was a “well-resourced” party that had a financial stake in the outcome of the case, rather than a public-interest litigant going to bat for patients let down by the public health care system.

It says the B.C. government claimed the private clinic was making “tens of millions” in profit by violating the public health care protection law.

The judge found that Cambie Surgeries' financial interest in winning the case “likely preclude them from being considered true public interest litigants.”

Whately found that the case “involved matters of great importance to all British Columbians, not only in a legal sense, but in terms of the practical, day-to-day impact on access to health care, the funding of health care services, and the principles that uphold our public health care system.”

The private clinic said the case involved “novel” legal issues and assessing the “government’s constitutional obligations to provide public health care within a reasonable time, and the ‘practical consequences’ that must be associated to the failure to do so.”

Both sides tried to blame one another for the case dragging on, with the Attorney General of B.C. citing “egregious” conduct around document disclosure, experts and witnesses while pursuing a meritless claim under the Charter.

Cambie Surgeries and the other plaintiffs, on the other hand, said the B.C. government had its “own ‘massive’ shortcomings in document disclosure and production, and that it derailed the litigation process.

The case eventually went to trial in 2016 and spanned four years before the B.C. Supreme Court ruled against Cambie Surgeries. That decision was upheld by the B.C. Court of Appeal, before the Supreme Court of Canada denied leave for a further appeal.

Neither the Attorney General’s office nor clinic owner Dr. Brian Day immediately responded to a request for comment on the ruling.

This report by The Canadian Press was first published Jan. 28, 2025

Darryl Greer, The Canadian Press