B.C. APPEAL COURT SEIZED WITH MEDICARE CHALLENGE
While trial is adjourned, plaintiffs ask to reconsider rejection of ministry documents
The constitutional litigation over B.C.’s medicare law has moved into the province’s highest court with an appeal that Victoria fears could create havoc in the trial courts.
While the civil trial is adjourned in B.C. Supreme Court until at least Sept. 5 to resolve procedural issues, the B.C. Court of Appeal has been asked to reconsider its normal practice and overturn some of the judge’s rulings within the proceedings.
B.C. government lawyer Jonathan Penner vehemently opposed the move, saying such rulings can form grounds of appeal after a verdict, but it would be completely impractical to consider them standalone judicial orders that can be appealed.
He scoffed that trials would never end if every decision by a judge in the course of proceedings could be independently questioned in a higher court.
“Who really cares about the trial we’re in?” Penner facetiously quipped.
In the medicare trial — launched nearly a decade ago by two private clinics and a handful of patients over restrictions on private care and insurance — Justice John Steeves has already made roughly two-dozen rulings since it began in September. Attempts to appeal two were rejected under the normal court rules and a third application was expected to be rebuffed, so the plaintiffs appeared before a five-justice division asking it to reconsider.
The trouble is while the traditional practice makes sense in an ICBC personal injury trial, it may not in a constitutional case with broad scope and big societal stakes.
The medicare plaintiffs’ efforts to buttress their argument with government documents and expert reports have been met with a barrage of objections and adverse rulings keeping out of evidence a large body of data and commentary.
For example, government lawyers objected to the introduction of a ministry document stating 18,000 people were waiting nine months for ultrasounds because it was not necessarily “true.”
“This was written by a ministry official and intended to be relied on by ministry officials,” fumed Dr. Brian Day, the face of the litigation that mirrors a successful Quebec case decided by the Supreme Court of Canada in 2005.
“We cannot use the government’s own statements as to the scope of the problem — with respect to how many people are on waiting lists and for how long — because these statements are hearsay, unless we call all of the employees who compiled the data, and even then, it might be hearsay if they did not personally observe the circumstances in the data they were collecting. And we can’t put in, other than through an expert witness, any broader reports or studies about wait times in B.C., and even then, (Steeves) has severely restricted what our experts can say.”
One of the lead plaintiff lawyers, Robert Grant, urged the bench to weigh the effect of rulings rejecting reports and evidence, which could be key in a case of this ilk, in considering whether appeals should be allowed.
“It has a profound implication for the rest of the trial,” he added, especially when the plaintiffs are footing the exorbitant bill and must use the current recess to raise more money.
The 80-day marathon proceedings may be only half-over — with appeals, a final decision from the Supreme Court of Canada could take until 2020 — so the plaintiffs would be forced to begin all over again.
“If only this trial had been televised,” Dr. Day complained, “the public could have judged for themselves. But transparency is not what is happening here.”
The five justices were alive to the concerns, but skeptical they should interfere and begin telling judges how to do their job in the midst of a trial.
After all, any ruling a judge makes during a trial can be revisited before the final verdict or subsumed in a subsequent appeal: why would an appellate bench meddle? Penner emphasized anything other than a bright-line policy prohibiting such appeals invites a waste of scarce judicial resources.
The panel reserved its decision.