Private clinics say B.C. withheld information from judge
The province was accused Monday of withholding information from the B.C. Supreme Court that belied its justification for enforcing new Medicare Protection Act provisions clamping down on private care.
In a surprise hearing, lawyer Peter Gall slammed government lawyers for not drawing to Justice Janet Winteringham’s attention during a recent injunction application that this summer the relevant federal law was changed.
“The province did not bring this important statutory amendment to the attention of either the plaintiffs or the court, although the province clearly knew about the statutory amendment given that it involved the province’s fiscal relationship with the federal government, and the province was in the best position to bring the amendment to the court’s attention,” Gall said.
Victoria had “a legal obligation” to tell the court about the change to relevant law, he added.
“Unless you were an insider you would have no way of knowing this was happening,” Gall complained, explaining the amendment was “buried” in the Budget Implementation Act, “and has not been publicized in any way that would bring it to the attention of the plaintiffs.”
The judge has not ruled on whether to issue the injunction to suspend enforcement of the health-care provisions until their legality was determined in a separate continuing trial.
“The alarming thing is that by the province not bringing this statutory amendment to the attention of the court, the court would have issued its decision without having had the benefit of the statutory provision,” Gall said.
“Which is truly alarming. What is equally alarming to us, is that the province comes here today and still is trying to prevent you from considering a statutory provision that is directly on point. It would be an error in law and a miscarriage of justice if the court were prevented by the government from having before it the governing legislation when there is absolutely no good reason for that to occur.”
But government lawyer Jonathan Penner vigorously denied the stinging accusation that the court was misled saying it was “completely inappropriate and inaccurate.”
He argued the clinics shouldn’t be allowed to reopen the injunction proceedings to submit this “new evidence.”
Two clinics and a handful of patients launched a constitutional challenge to the MPA’s constraints on private care nearly a decade ago and that trial is now in its second year.
The previous Liberal government held the impugned provi- sions in abeyance until their validity could be established in the constitutional case before Justice John Steeves.
This spring, however, NDP Health Minister Adrian Dix reversed that stand and moved against the private clinics and diagnostic centres without waiting for the decision likely late next year. He insisted that Ottawa withheld nearly $16 million from transfer payments because of “extra billing ” and he blamed the private care providers that have operated across the province with impunity since 1996.
He said the new enforcement provisions that impose stiff fines and penalties on doctors for violating the MPA were essential for the province to recover the withheld money and prevent future loss to the public purse.
Gall said that explanation was fiction and the new federal law indicated that even if B.C. waited until the constitutional case was settled, it still could recoup the $16 million.
“Therefore, if the result in the Cambie trial is that the impugned prohibitions on access to private health care are upheld, the province can proclaim these new enforcement provisions at that time and receive the reimbursement of the March 2018 deduction,” he insisted.
“And if the prohibitions are struck down, then Canada will also have to reimburse the province because it cannot withhold deductions from transfer payments made during the trial for a failure to enforce prohibitions that are declared to be unconstitutional in the decision rendered in the trial.”
Penner said that “to my knowledge,” the province was not aware of Ottawa’s June legislative changes.
Since the statutory change involved the fundamental fiscal relationship between the two levels of government, an incredulous Gall said: “I would be shocked if the province was not aware . ... I would be shocked.”
He said the plaintiffs learned about the amendment to the Federal-Provincial Fiscal Arrangement Act, contained within the Budget Implementation Act, from an affidavit filed Oct. 5 by Ottawa in the underlying constitutional trial.
Gall said the “buried” change gives the province a two-year window to claim reimbursement — more than enough time for a decision to be rendered in the constitutional challenge.
He called the government’s conduct to be “disappointing to put it mildly. I’m perplexed the government of B.C. would do this.”
The provisions, which came into force Oct. 1, are currently in limbo by agreement while the judge deliberates on an injunction.
But there already has been chaos as surgeries were cancelled or shuffled by the roughly 60 private clinics that face continuing uncertainty and fear further repercussions from the health ministry.
Dr. Brian Day, a founder of the private Cambie Surgery Centre and the face of the litigation, said he thought it “strange” that neither the government nor its legal team was aware of the federal amendment.
Winteringham gave short shrift to the suggestion the government intentionally misled her, but said there was an issue and she would meet with the lawyers again today.
I would be shocked if the province was not aware ... shocked.