SPECIAL REPORT:Vancouver clinic loses constitutional challenge

QUOTABLE:

I have found that the impugned provisions do not deprive the right to life or liberty of the patient plaintiffs or similarly situated individuals.

Justice John Steeves

The ruling emphasizes the strength and the importance of public heath care, which is a cornerstone of our identity in British Columbia,

B.C. Health Minister Adrian Dix

Cambie Trial: Supreme Court Decision a Victory for all Patients

BC Nurses’ Union
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SUPREME COURT OF BRITISH COLUMBIA

Plaintiffs

Cambie Surgeries Corporation, Chris Chiavatti, Mandy Martens,
Krystiana Corrado, Walid Khalfallah by his litigation guardian
Debbie Waitkus, and Specialist Referral Clinic (Vancouver) Inc.

And:

Defendant

Attorney General of British Columbia

EXCERPT

[1087]  I also find that Mr. Nadeem Esmail strayed beyond his scope of expertise when he opined on the likely effects a duplicative private healthcare market would have on the public system. As I discuss in detail later in these reasons, Mr. Esmail’s qualifications are quite limited and narrow. He has no academic affiliation, no peer reviewed publications and no training or experience in medical issues. His research has been limited to the development and use of problematic surveys of physicians regarding wait times for the Fraser Institute. It is true that his unchallenged qualifications include healthcare economics but his education and experience in that area are limited.

[1259]  Mr. Esmail works as a senior fellow for the Fraser Institute, an organization he described as a “free market think tank”. Except for four papers, he has published reports and commentaries for the Fraser Institute only. He has no peer reviewed academic publications. Most of his research articles were published in the Fraser Forum which is now a blog for the Fraser Institute. He also currently owns and operates a manufacturing business and his economic research has primarily been with the Fraser Institute.

[1260]  In general his publications have not been exposed to the rigour of independent and established peer review procedures (including the reports he relies on for his opinions in court) and his research has to be considered within the context of the free-market advocacy perspective of the Fraser Institute.

[1261]  Mr. Esmail’s curriculum vitae describes previous expert testimony before the Alberta Health Services Preferential Access Inquiry in 2012 and the Pennsylvania House Policy Committee in 2009. In cross-examination he agreed that the latter was before the Republican Policy Committee in Pennsylvania. The Alberta inquiry work involved submitting written responses to questions. There was no oral testimony under oath, there was no cross-examination and Mr. Esmail’s contribution was not credited in the final report. He has no academic training in health policy and no affiliation with any university.

[1262]  While Mr. Esmail’s qualifications were not disputed by the defendant, the defendant urges me to give no or very little weight to his report given his lack of expertise. More importantly, the court retains a general superintending responsibility for assessing expert evidence and as the trial judge I also have an important gatekeeper role to ensure that only truly necessary and reliable expert opinion is relied upon (R v. Abbey, 2009 ONCA 624 at paras. 62, 63, 71, 76, 79; also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 16, 22, 54).

[1263]  I conclude that Mr. Esmail is minimally qualified as an expert in the area of health policy. His research and publications suggest a very narrow philosophical interest. He has made the most of his qualifications but this has, unfortunately, included embellishments of his experience. For example, despite the reference in his curriculum vitae that he has previously been an expert witness, his evidence demonstrates that he has not worked in that role in any sense comparable to being an expert in court. In addition, his work in Pennsylvania is presented in his qualifications as independent and non-partisan work for the legislature there, apparently involving all political parties. However, in cross-examination it became clear that his work in Pennsylvania was in fact partisan and internal to one political party.

Full Decision

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