Medicare trial gets past issue of evidence
Rulings on evidence can’t be appealed until end of trial
The B.C. Court of Appeal has washed its hands of concerns that the medicare constitutional challenge has gone off the rails and may be a waste of money.
In a unanimous decision by a five-justice division, the high court said “rulings” about the admissibility of evidence in the lower court were not appealable until the trial ends.
As a practical matter, the appellate bench said, trials would become disjointed and prolonged if parties could appeal any of the wide-ranging rulings made during proceedings.
Trial judges might also feel compelled to grant adjournments if such rulings were appealable, it added.
“In the event one of those rulings has an impact on the trial judge’s disposition of the action, it can be raised as a ground of appeal on an appeal taken from the order entered at the conclusion of the trial,” Justice David Frankel wrote.
He said two previous decisions by the court involving such rulings were not precedential.
“Those cases are, however, distinguishable,” Frankel argued.
He dismissed as wrong an appeal justice who ruled on a third.
The legislature did not intend to confer jurisdiction on the appeal court to entertain mid-trial reviews of evidentiary rulings, Frankel insisted.
In other words, no matter how significant the evidentiary or procedural ruling by a trial judge, if it was wrong, no appellate remedy was available until the proceedings ended.
This raises the serious risk that matters of significance incorrectly adjudicated will undermine a final judgment and result in wasteful duplication of expenditures in the event a new trial is ordered.
Nevertheless, the panel pointed out that “rulings” within a trial were not cast in stone and that judges could revisit and amend them before the end of proceedings.
The court ignored submissions that jurisdiction over “rulings” could be exercised sparingly as in other jurisdictions and there should be no bar to hearing such an appeal under exceptional circumstances.
The province argued that such an interpretation would “wreak havoc with trial courts.”
In this challenge of the provincial Medicare Protection Act, years of pre-trial preparation and millions of dollars spent so far on proceedings are feared at risk because of the judge’s restrictive rulings.
The trial, which began last Sept. 6, was adjourned until autumn so the two private clinics and the patients who launched the litigation could raise more money.
Dr. Brian Day, leader of the fight, claims the provincial government has tried to bankrupt them with delaying tactics, and decisions by the judge have further hampered their case.
“We are supposed to have a constitution that protects us, but no average citizen has a hope of ever fighting for his or her constitutional rights because of the costs of litigation,” he complained.
“Added to that — and I think this is bizarre — beyond legal costs and the costs of witnesses, etc., anyone challenging the government for their constitutional rights is forced to pay $800 a day in court fees to the very government that is responsible for the deprivation of rights.”
The trial involves a battle of experts, and B.C. Supreme Court Justice John Steeves has adjudicated numerous applications and objections relating to their reports and evidence.
Frankel, supported by colleagues Peter Willcock and Richard Goepel, refused to entertain appeals involving three of those rulings. Justices Mary Saunders and Elizabeth Bennett agreed in concurring reasons.
“Interfering mid-trial, on the issues raised here, in my view, is contrary to good trial management,” Saunders wrote.
In spite of the appeal outcome and the money woes, Day remained optimistic about the case that is expected to resume in early October.
“The recent election results add an element of interest,” he quipped.
“We have a new attorney general (David Eby) who has a history of supporting civil liberties. I wonder how he can rationalize B.C. residents being deprived of rights that were granted by the Supreme Court of Canada to Quebecers?”