Waldman v. The Medical Services Commission of British Columbia, et al.

Three doctors challenged the Medical Services Commission of British Columbia’s (“the Commission’s”) variable fee-for-service rates, which were based on province of residence and physician seniority.

In 1994, the Commission enacted interim measures under which new billers (medical practitioners who applied to the Commission after February 11, 1994) were issued restricted billing numbers. New billers were entitled to bill the province 50% of the fees for services provided to patients. Exemptions were made for specific groups, such as practitioners practicing as locums and those who could demonstrate a medical need for their services in a particular community.

In 1996, the Commission enacted permanent measures under which new billers were assigned to a category and the payment schedule was 100%, 75%, or 50% of the fee-for-service depending on whether they practiced in an under-, adequately-, or over-serviced region. Exemptions were made for specific groups, such as all established physicians, practitioners practicing as locums, and those who can demonstrate a medical need for their services in a particular community. The measures established a point system whereby new billers earned points for each full year of active service in British Columbia (B.C.), and became entitled to a 100% billing number without geographic restrictions upon earning 100 points.

The three petitioners – Dr. Deborah Waldman, Dr. Anita Kafai Wong, and Dr. Andrew Biro – were all “new billers” and medical doctors trained outside of B.C. They challenged the interim and permanent measures on the following grounds:

1. Administrative law grounds (the Commission exceeded its jurisdiction in enacting the measures)
2. Violation of section 6 of the Charter of Rights and Freedoms (mobility rights)
3. Violation of section 7 of the Charter (right to life, liberty and security of the person)
4. Violation of section 15 of the Charter (equality rights)

The Supreme Court of British Columbia (“the Court”) held that the interim and permanent measures were invalid on both administrative law grounds and under the Charter.

1. Administrative law grounds:
The Court found that the measures were enacted with a valid purpose and the Commission had statutory authority to establish categories of medical practitioners in order to develop payment schedules. However, the measures impermissibly discriminated between resident and non-resident physicians. The Court held that the interim measures were invalid because the Commission did not, at the time they were enacted, have the statutory authority to enact discriminatory rules. The Commission also did not have the power to retroactively enact the permanent measures.

Additionally, the Court found that the permanent measures did not satisfy section 12 of the Canada Health Act because restricted billing numbers did not provide reasonable compensation for the health services rendered by the practitioners.

2. Violation of section 6 of the Charter (mobility rights)

The Court held that the measures violated the petitioners’ section 6(2)(b) Charter right “to pursue the gaining of a livelihood in any province,” which protects inter-provincial mobility in finding employment. The measures payment schedule system exempted physicians trained in British Columbia. Physicians trained elsewhere would have to work in communities with particular medical needs to be able to bill 100% of the fee. Yet, the Court noted that there were no regions that allowed a general practitioner to obtain a 100% billing number and only 5 out of 20 that allowed a 75% billing number. This unavailability of positions  rendered “practically ineffective” the petitioner’s ability to pursue their livelihood of choice.

3. Violation of section 7 of the Charter (right to life, liberty and security of the person)
The Court found that section 7 had no application in this case because it does not protect one’s right to practice a profession.

4. Violation of 15 of the Charter (equality rights)

The court found that the measures did not discriminate against Dr. Waldman on the basis of age, sex, or religion. However, the petitioners’ rights under section 15 were violated because the measures discriminatorily denied them the benefit of an unrestricted 100% billing number as compared to other equally qualified physicians. The measures discriminated on the grounds of the petitioners’ previous province of residence, which the court found as an “irrelevant stereotypical group classification.”

Finally, the Court held that the violation of the petitioners’ mobility and equality rights was neither reasonable nor justifiable under section 1 of the Charter.

“Although each of the petitioners is practising medicine in a financially viable way, they are clearly disadvantaged in their choice of the manner in which they earn that livelihood relative to physicians who have trained in B.C. None of the petitioners can earn a viable livelihood under a 50% billing number…. Their equally-qualified but trained-in-B.C. colleagues can do what the petitioners are doing and can also choose to practise independently anywhere in the province.” Para. 240.

“I find that the petitioners are discriminated against on the basis of an "irrelevant stereotypical group classification" that has nothing to do with their worth, ability or circumstances. Their previous province of residence is a personal characteristic attributed to each of them solely on the basis of their association with that group of persons, not on the basis of their merits and capacities. In the context of the measures, they may be considered a "discrete and insular minority": out-of-province physicians are not represented by the B.C.M.A. and have no voice in the determination of the policies and rules that govern their ability to practise medicine in B.C. Their previous province of residence is more immutable than religion and citizenship: they cannot change where they previously lived.” Para. 338.

“I am satisfied that, though stated broadly, the objectives of the interim and permanent measures are quality health care and cost control and those objectives are pressing and substantial.  The background to the enactment of the measures demonstrates the budgetary problems experienced by the province; the increase year-over-year in the number of physicians practicing in B.C.; and the contribution by physicians, over and above their fees, to the costs of health care.  That background also provides, in the various studies and reports, evidence of physician oversupply in some areas of the province and undersupply in others and the implications of those conditions to the quality of medical care.  Oversupply is shown to lead to increased competition for patients, over-servicing of patient needs, less time for each patient.  Undersupply results in lack of access to needed care.” Para. 356.