A successful Charter challenge to medicare? Policy options for Canadian provincial governments


In Canada, every province must meet conditions set out in the federal Canada Health Act. In September 2016, a case went to trial in British Columbia that tests the constitutionality of provincial laws that:

  • Ban private health insurance for medically necessary hospital and physician services
  • Ban extra-billing (i.e., physicians charging patients more than the public tariff)
  • Require physicians to work solely for the public system or ‘opt-out’ and practice privately

In September of 2020, that running was struck down, in a major blow to proponents of two-tiered healthcare in Canada. This paper explains the legal and policy options available to Canadian lawmakers who might want to limit two-tier care if a court challenge to existing laws is ever successful. 

As its author adeptly explains, a provincial government could either allow privatization or create new legal and policy solutions to improve equity and access and tackle some long-standing problems in Canadian medicare.

Written before the court ruling was delivered, this paper is a clear-headed look at what might happen in the wake of a successful court challenge, which would surely have a significant impact on the future of ‘medicare’ in Canada. 



Read as published in Health Economics, Policy and Law Volume 13, Special Issue 3-4 (SPECIAL ISSUE: Canadian Medicare: Historical Reflections, Future Directions)