Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Pacific Centre for Reproductive Medicine v. Medical Services Commission, 2019 BCCA 315

AREAS OF LAW:  Constitutional; Public; Human Rights

~The Medical Services Commission decision to deny a private medical clinic approval as a diagnostic facility was reasonable and the clinic provided an insufficient evidentiary foundation to establish its claim that the denial breached rights under s. 7 of the Canadian Charter of Rights and Freedoms for the clinic’s patients.~


The Appellant, the Pacific Centre for Reproductive Medicine, was a private medical clinic that primarily provided reproductive endocrinology and fertility services. For about four years, it operated a unit that provided specialized ultrasounds performed by a qualified physician for women experiencing high-risk pregnancies. Pacific made a number of applications to the Medical Services Commission for approval as a diagnostic facility, so it could bill the Medical Services Plan for those ultrasounds.

Under s. 40(1) of the Medical and Health Care Services Regulation, B.C. Reg. 426/97, the Commission must not approve a diagnostic facility application unless it is satisfied that, among other things: there is sufficient medical need to warrant the proposed services; the quality of diagnostic services would be maintained at a sufficiently high level; there is reasonable utilization of existing approved diagnostic facilities which render the services for which approval is sought and which are located within the catchment area under consideration; and the person applying for the certificate of approval does not have a potential conflict of interest.

The Commission denied Pacific’s applications because it had concerns about various statutory considerations in s. 40(1). Pacific applied to the BC Supreme Court for judicial review of the Commission’s final decision, but a chambers judge dismissed its petition for judicial review. The chambers judge reviewed the Commission’s decision on a reasonableness standard of review, the applicability of which the parties did not dispute. The Commission, the chambers judge held, had a statutory duty to refuse a certificate of approval unless satisfied that the conditions in s. 40(1) of the Health Care Services Regulation had been met. The chambers judge held that because the Commission was not satisfied the statutory criteria were met, and gave extensive reasons for its decision, its decision was owed deference. In the result, citing the “complex and multi-faceted task” the Commission faced when it made the decision, and the deference afforded to an expert body making its own assessment of the evidence, the chambers judge held that the decision was reasonable. The chambers judge also held that Pacific’s Charter argument could not succeed. Pacific had failed to establish an adequate record to determine the Charter issue. No person whose s. 7 rights were engaged by the decision had applied for a declaration that they suffered a deprivation described in that section, and Pacific, as an artificial person, did not have standing to assert an infringement of s. 7. Finally, citing the absence of authority to conclude that a party may invoke the Charter to assert a constitutional right to healthcare, the chambers judge dismissed Pacific’s Charter argument. Pacific appealed.

The appeal was dismissed. The issues on appeal were whether the Commission acted reasonably in denying Pacific’s application: 1)on the basis of the evidence before it; or 2) without proportionately balancing Charter values against its statutory objectives. On the first issue, the Court of Appeal held that there was evidence upon which the Commission could conclude there was no medical need for the Appellant’s services. The Commission’s reasons were poorly expressed when they suggested that a report by a doctor at BC Women’s Hospital would support the conclusion that all patients who needed maternal-fetal medicine services had their needs adequately met in the public system. All the physicians the Commission had contacted for their opinions, including the doctor at BC Women’s Hospital, stated that the need was being met by an effort to stretch resources and to the possible disadvantage of less-urgent patients. Many of the physicians expressed the view that any additional maternal-fetal medicine services should be funded within the public system. Part of the Commission’s mandate was to determine the allocation of its finite resources in the context of a complex health care scheme, even if the outcome was not optimal for all patients or service providers.

The Commission did not make an unreasonable decision in administering the Medical Services Plan and balancing needs and resources. On the second issue, the Commission’s decision was one that potentially engaged the framework for a violation of s. 7 of the Canadian Charter of Rights and Freedoms, but Pacific did not provide a sufficient evidentiary basis to establish an infringement of its patients’ rights. Even if s. 7 of the Charter protected the right to receive reasonable and necessary healthcare within a reasonable time as Pacific claimed, and even if it had standing to raise rights of its prospective patients, Pacific did not meet its onus of establishing that anyone’s rights were limited. Its evidence showed, generally, that timely access to maternal-fetal medicine services could be critical to the health of high-risk pregnant women and that public facilities might struggle to meet the demand for such services.

However, there was no evidence that any person had to wait specific period of time for maternal-fetal medicine ultrasound, that having to wait limited that person’s right to life, liberty, or security of person, or how any such limitation was not in accordance with principles of fundamental justice. Pacific did not satisfy the preliminary step of showing that the Charter was engaged, as it was insufficient to simply assert in a general manner that s. 7 rights of unknown individuals were affected.

Counsel Comments provided by Peter Gall, Q.C., Counsel for the Appellant

“The PCRM case arose in the context of a decision of the Medical Services Commission, which had the effect of preventing a clinic from continuing to supply medically necessary specialized material ultrasound services to women with high risk pregnancies. The case raises the question of whether and to what extent a discretionary decision of the government in relation to access to health care can be effectively challenged on the basis that the decision maker failed to adequately take into account the impact of the decision on the health and wellbeing of members of the population. In my view, the decision of the BC courts in this case are of legal significance for a number of reasons.

First, the case deals with the important question of how the section 7 rights to life and security of the person apply in the context of discretionary decisions of administrative decision makers, particularly in the health care context. Most BC residents depend exclusively on the public health care system to protect their health and wellbeing, and there are many discretionary decisions that governments make which can impact, sometimes significantly, the timeliness and quality of health care to which British Columbians have access. The jurisprudence on how to apply section 7 rights in this context, involving a challenge to an administrative decision, is not well developed, and this case provided an opportunity to further develop that case law.

Second, the case deals with the difficult question of what evidence will be sufficient to demonstrate the relevance of section 7 rights in relation to the health and wellbeing of members of the population in the context of an administrative decision. Creating a robust evidentiary record is particularly difficult in the context of a judicial review application challenging an administrative decision, given the fact that parties are generally not entitled to lead evidence in court that was not before the decision maker – in this case, the Medical Services Commission.

As such, one potential implication of this decision may be that in order to demonstrate a breach of the Charter on a judicial review application, applicants must be prepared to file extensive evidentiary records before administrative decision makers at first instance, in anticipation of the risk that their application will be denied. This can create a situation in which parties must either expend the time and resources to create a full court ‘record’ prior to an application to the decision maker, or must effectively give up their right to challenge government decision making on the basis that it fails to properly or adequately weigh the impact on the rights to life, liberty and security of the person.

Needless to say, our client was disappointed with the BC Court of Appeal’s decision in this case, and is currently considering whether to seek leave to appeal the decision to the Supreme Court of Canada. If the case does eventually arrive at the Supreme Court, the country’s top court will have an opportunity to address these and other important issues relating to the obligations of government decision makers where their decisions may have an impact on the access to timely and medically necessary health care services provided by the public health care system.”

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