Ontario’s registered nurses’ association is preparing to march into a big, brewing legal fight over two-tiered health care.

The Registered Nurses Association of Ontario (RNAO) is just one of several Canadian health-care groups keeping a close eye on a charter challenge launched in B.C. by Dr. Brian Day.

Day, who runs a private surgical clinic in Vancouver, is challenging the sections of B.C.’s Medicare Protection Act that prevent patients from paying for medically necessary care out of pocket or through insurance, arguing that it forces them onto wait lists, which infringes their right to life, liberty and security of the person under Section 7 of Canada's Charter of Rights and Freedoms.

Should he be successful, he would throw the door open for Ontario doctors to follow his lead, effectively ushering in two-tiered health care to Canada, said Dr. Doris Grinspun, CEO of the Ontario nurses association.

“There are many doctors in Ontario that oppose it, many, but there are many individual physicians who, yes, would love it,” she said.

When the case gets to the Supreme Court of Canada, which Grinspun says is all but inevitable, the RNAO will request intervenor status.

“The implications will be very, very broad-based on the core fabric of the health-care system in Canada,” said Grinspun. “If he succeeds with his claim that people have a right to pay, privately out-of-pocket, etc., to get ahead of the line, it is totally, totally antagonist to the principles of the Canada Health Act: that health care is based on need not the ability to pay, that it is a human right.”

Grinspun believes a two-tiered system would mean a decline in quality on the public side, something nurses do not want.

“This is about defending who we are as a people and the type of society we want to have, that cares for everybody in times of health and times of illness,” she said.

“It’s the benefit of one, versus the benefit of everybody, whether that one is Dr. Brian Day and his like, who want to profit from the vulnerabilities of people, or whether it is the patient who, out of need or desperation, has to pay out of pocket and sell his house or his car to pay,” she said.

“It’s not only about rich people,” she said. “When you go to other countries with two-tiered systems, people lose everything they have trying to pay for health care.”

But on Day's side, there are many patients who argue they should have the right to pay to expedite their care. His lawsuit includes affidavits from patients and their families about receiving timely care from his private clinic, faster than in the public system.

For example, Rita Chiavatti's affidavit speaks to the difficulty she had watching her son suffer while waiting for knee surgery.

“When Chris sought treatment in the public health-care system, Chris and I were advised that he would have to wait several months before he could have the surgery he required in the public-health care system,” she wrote.

“The physical pain Chris experienced at this time affected all aspects of his life. As a parent, it was very difficult to see my son experiencing such pain and discomfort. Ultimately, my husband and I arranged for Chris to have the required surgery at the Cambie Surgeries Clinic . . . Chris was able to have the required surgery several months earlier than he would have in the public health-care system.”

Day's Charter challenge is set to begin Tuesday in Vancouver.

Ontario nurses planning Supreme Court intervention in BC-based Charter case

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