Jonckeau v. British Columbia (Attorney General)

2025 BCSC 1342 Jonckeau v. British Columbia (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Jonckeau v. British Columbia (Attorney General), 2025 BCSC 1342 Date: 20250715 Docket: S242068 Registry: Vancouver Between: Vincent Maurice Pierre Jonckeau Plaintiff And His Majesty the King, the Attorney General for the Province of British Columbia, and the Minister of Health (collectively, His Majesty the King in Right of the Province of British Columbia), Providence Health Care Society operating a public hospital under the name St Paul's Hospital, Dr. Adrienne Melck, John Doe #1, Jane Roe #1, and Fraser Health Authority operating a public hospital under the name Royal Columbian Hospital, John Doe #2, Jane Roe #2 Defendants Before: The Honourable Justice Latimer Reasons for Judgment The plaintiff, appearing in person: V.M.P. Jonckeau Counsel for His Majesty the King, the Attorney General of British Columbia, and the Minister of Health: J.G. Penner D. Wong Counsel for Providence Health Care Society and Fraser Health Authority: L.J. Zivot S. Martiquet, Articled Student Counsel for Dr. Adrienne Melck: D.H. Liu E. Mo No other appearances Place and Date of Hearing: Vancouver, B.C. March 28, 2025 Written Submissions of the Plaintiff Received: April 4, 2025 Written Submissions of the Defendant Dr. Melck: April 8, 2025 Place and Date of Judgment: Vancouver, B.C. July 15, 2025 Table of Contents Introduction.. 4 The Facts Pleaded in

the Amended Notice of Civil Claim.. 5 Issues. 7 Analysis. 8 The test under Rule 9-5(1)(a) 8 The plaintiff's claims that the Impugned Provisions infringe the Charter 8 The legislative framework. 9 Hospital Insurance Act 9 Medicare Protection Act 11 Analysis. 12 The plaintiff's claims that actions and omissions of the Minister of Health, the Health Authorities, and Dr. Melck infringe the Charter 13 Alleged refusal to refund the plaintiff and request for a refund. 13 Alleged failure to provide high quality, appropriate, and timely health services to the plaintiff 13 Conclusion and Orders. 16 Introduction [1] Each of the named defendants in this action brings an application to strike and dismiss the plaintiff's claims against them pursuant to Rule 9-5(1)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [SCCR]. Briefly, the plaintiff's underlying claim arises from his attempts to secure funding for medical care that he received outside of British Columbia. He asserts that his rights to life, liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter] have been infringed by each of the defendants. [2] During the course of the applications, by consent, the claim against Vancouver Coastal Health Authority was dismissed, Providence Health

Care Society was added as a defendant, and the name of the defendant, New Westminster Royal Hospital, was changed to Royal Columbian Hospital. [3] There are three applications before the Court. [4] His Majesty the King, the Attorney General of British Columbia, and the Minister of Health (collectively, the "Province") apply for an order pursuant to Rule 9-5(1)(a), that the proceeding be dismissed against the Province and that the amended notice of civil claim ("ANOCC") be struck out, without leave to amend. The Province says that the fundamental problem with the claim is that it rests on an interpretation of s. 7 of the Charter, which seeks to impose positive obligations on government. It is argued that s. 7 imposes no such obligations. [5] Fraser Health Authority and Providence Health Care Society (collectively, the "Health Authorities") adopt the arguments advanced by the Province. The Health Authorities raise the additional argument that there is no connection between the Health Authorities and the statutory provisions which the plaintiff says infringe s. 7 of the Charter. As well, it is argued that the Health Authorities are not state actors and therefore are not subject to the Charter. [6] The defendant, Dr. Adrienne Melck, adopts the arguments advanced by the Province and adopts the Health Authorities' legal analysis, arguing that she is also not subject to the Charter.

Specifically, Dr. Melck argues that managing a wait list and making medical decisions are not governmental actions, and therefore, the Charter does not apply to her. The Facts Pleaded in the Amended Notice of Civil Claim [7] The claims advanced in this action arise out of the plaintiff's efforts to obtain health care for his primary aldosteronism, an endocrine condition also known as Conn's syndrome. He was diagnosed with Conn's syndrome in the summer of 2021 after roughly six months of symptoms including dizziness, vertigo, mental fog and fatigue. Dr. Melck is a surgeon with a fellowship in endocrine surgery and was the medical specialist providing care to the plaintiff for this condition. [8] In October 2021, Dr. Melck advised the plaintiff that before she performed any surgery to address his condition, a procedure called adrenal veinous sampling ("AVS") had to be performed by a radiologist. [9] Dr. Melck advised the plaintiff that there were wait lists for this procedure at both St. Paul's Hospital and Royal Columbian Hospital, which are operated by the defendants, Providence Health Care Society and Fraser Health Authority, respectively. Dr. Melck and the plaintiff selected the Royal Columbian Hospital even though the wait list was nine months long, which was three months longer than the wait list at St. Paul's Hospital. [10] Over the winter months of 2021, while the

plaintiff was waiting for the AVS procedure, his health deteriorated and his symptoms increased. [11] In January 2022, the plaintiff inquired at Royal Columbian Hospital to see if the wait was still expected to be nine months. He was advised that due to the COVID-19 pandemic and other delays, people registered in October 2021 would not be processed before December 2022. [12] In February 2022, the plaintiff contacted a physician in Tampa Bay, Florida and sent him his medical file. [13] In March 2022, the Tampa Bay physician advised the plaintiff that he did not need AVS and could go straight to surgery. [14] The plaintiff advised Dr. Melck of this second opinion and asked that she remove his left adrenal gland, as he was too sick to continue waiting for AVS. He offered to sign a waiver. Dr. Melck declined, stating that she would not do adrenal surgery without AVS. Dr. Melck stated she could not insist with Royal Columbian Hospital that his case was more urgent than others, but she offered to put in a request at St. Paul's Hospital to see if they could get him an earlier appointment. [15] The plaintiff paid to obtain an MRI and surgery at Tampa Bay Hospital in April 2022 (the "Florida Surgery"). He spent one night in the Tampa Bay Hospital. [16] In March 2023, the plaintiff learned that he had never been registered on the AVS wait list at Royal Columbian Hospital. [17] In August

2023, the plaintiff submitted the cost of the Florida Surgery for a refund to Medical Services Plan of BC, the province's public health insurance. [18] In a letter dated October 31, 2023, the plaintiff was informed that in order to get a potential refund, he needed the approval of an appropriate specialist, meaning "a medical practitioner actively involved in the beneficiary's care with expert knowledge in the proposed service and/or speciality that will deliver the out of country service". The letter attached a form. [19] In November 2023, the plaintiff sent Dr. Melck an e-mail requesting that she complete the form. Dr. Melck never replied. [20] The ANOCC advances causes of action against each of the defendants based only on alleged breaches of the Charter. It specifically disavows any claim in negligence. [21] The claim is for Charter relief for harms said to be caused by legislation which is said to have the objective and effect of preventing or severely limiting proper access to health care within a reasonable time and in a fiscally reasonable way. Specifically, this element of the claim impugns s. 24 of the Hospital Insurance Act, R.S.B.C. 1996, c. 204 [HIA]; s. 6 of the Hospital Insurance Act Regulations, B.C. Reg. 25/61 [HIAR]; s. 29 of the Medicare Protection Act, R.S.B.C. 1996, c. 286 [MPA]; s. 35 of the Medical and Health Care Services Regulation, B.C. Reg. 426/97

[MHCSR] and "all regulations arising from them" (the "Impugned Provisions"). The Charter harms are also said to be caused by the actions and omissions of the Minister of Health, the Health Authorities and Dr. Melck. Issues [22] For the reasons that follow, I find: a) it is plain and obvious that the ANOCC discloses no reasonable claim that the Impugned Provisions infringe s. 7 of the Charter because, the claim seeks to impose a positive obligation on the Province to provide a financial benefit in the realm of health care, a species of claim which has been repeatedly rejected by the courts; b) it is plain and obvious that the pleading discloses no reasonable claim that the named defendants infringed the plaintiff's Charter rights because: i. there are no pleaded facts that the plaintiff has been refused a refund under either statutory scheme; ii. there are no facts pleaded to support that the Province is responsible for the wait lists in question; iii. there are no facts pleaded that Providence Health Care Society took or omitted to take any actions in respect of the plaintiff; iv. there are no facts pleaded that Royal Columbian Hospital took or omitted to take any actions in respect of the plaintiff; and v. the Charter does not apply to Dr. Melck's actions and interactions with the plaintiff, all of which were taken as a physician in her private personal capacity. Analysis The

test under Rule 9-5(1)(a) [23] The relevant provision of Rule 9-5(1) is as follows: Rule 9-5 - Striking Pleadings Scandalous, frivolous or vexatious matters (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. [24] On an application under Rule 9-5(1)(a), the question is whether it is plain and obvious that the pleading discloses no reasonable claim. The approach on a motion to strike is generous; novel but arguable claims are permitted to proceed. The facts as pleaded are assumed to be true for the purpose of determining the existence of a reasonable claim: Krist v. British Columbia, 2017 BCCA 78 at paras. 22--23; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 [Imperial Tobacco] at para.

17. Rule 9-5(2) provides that no evidence is admissible on an application under Rule 9-5(1)(a). The plaintiff's claims that the Impugned Provisions infringe the Charter [25] The plaintiff seeks a declaration that the Impugned Provisions, to the extent that they are designed and have the effect of preventing or severely limiting proper access to health care within a reasonable time and in a fiscally reasonable way, are contrary to s. 7 of the Charter and not demonstrably justified under s. 1 of the Charter. [26] Section 7 of the Charter provides that everyone has "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." [27] In order to demonstrate a reasonable claim that the Impugned Provisions infringe s. 7 of the Charter, the plaintiff must plead facts that are capable of establishing that: a) the Impugned Provisions have caused a deprivation of one or more of his rights to life, liberty or security of the person; and b) the deprivation is not in accordance with the principles of fundamental justice. The legislative framework [28] In British Columbia, there are two primary mechanisms that fund medical care. The HIA creates a mechanism for funding health services provided by hospitals. The MPA creates a mechanism for funding medically necessary care provided by medical

practitioners outside of hospitals. The two mechanisms correspond to two separate funding sources, and the statutes are complementary and mutually exclusive. A service is insured under either the HIA or the MPA, but not both: Yu et al v. The Attorney General of British Columbia, 2003 BCSC 1869 at para. 15. [29] Both the HIA and the MPA contemplate funding for out-of-province care where certain requirements are met. It is these portions of the legislation that the plaintiff challenges. Hospital Insurance Act [30] Section 24 of the HIA requires the minister to pay for hospital services where the regulations are complied with. It provides: Hospital services outside British Columbia 24 Subject to this Act and the regulations, the minister must pay for hospital services rendered outside British Columbia to beneficiaries by (a) hospitals, and (b) other institutions approved by the minister. [31] The applicable regulation is the HIAR. [32] For beneficiaries who seek funding for out-of-province care pursuant to s. 24 of the HIA, the conditions at ss. 6.1 and 6.2 of the HIAR apply. Those sections read in relevant part: In-patients in hospitals outside Province 6.1 (1) Except as hereinafter provided in this Division, a beneficiary who receives any of the benefits prescribed in sections 5.1 [hospital services], 5.7 [rehabilitative treatment] and 5.8 [general hospital services in extended

care hospitals] as an in-patient in a hospital outside British Columbia shall be entitled to have payment made on the beneficiary's behalf pursuant to section 24 of the Act if ... (b) the minister determines that the care and treatment rendered is of the type that would be available as a benefit within the Province if it were provided to a beneficiary by a hospital in British Columbia. Benefits if person seeks treatment outside Province 6.2 (1) No person who leaves the Province to seek treatment elsewhere shall be entitled to benefits under these regulations unless the person has been granted prior written approval to do so by the minister, who shall not grant such approval until the minister is satisfied that (a) it is necessary and advisable for such a person to seek treatment outside the Province, and (b) the care and treatment is of a type that would be available as a benefit within the Province if it were provided to a beneficiary by a hospital in the Province. [33] As can be seen from the above excerpts, the legislative scheme surrounding s. 24 of the HIA does not prohibit beneficiaries from doing anything. Rather, it allows beneficiaries to obtain funding for out-of-province care where the requirements in ss. 6.1 and 6.2 are met. Medicare Protection Act [34] Section 29 of the MPA permits payment for healthcare services outside British Columbia where the regulations are

complied with. The Florida Surgery was a scheduled surgery, not an unexpected need. Therefore, it is s. 29(2) and (4)(b) that apply: Payment for services outside British Columbia 29 (1) In this section, "medical practitioner" includes a medical practitioner or dentist who is authorized to practise medicine or dentistry in the jurisdiction where the services were rendered. (2) If a beneficiary receives a service from a medical practitioner outside British Columbia that would be a benefit if rendered in British Columbia, the beneficiary may apply to the commission, in the manner required by the commission, to have payment made for the service in the amount the commission determines. (4) A beneficiary is entitled to have payments made under subsection (2) if the commission considers the service was medically required and (b) the regulations respecting out of British Columbia services have been complied with. [35] The plaintiff alleges that the service provided would have been a benefit if rendered in British Columbia. [36] The applicable regulation is s. 35 of the MHCSR. Again, because the Florida Surgery was scheduled, not an emergency service, it is s. 35(2)(b) that applies. It provides: Benefits rendered outside British Columbia 35 (1) In this section, "medical practitioner" has the same meaning as in section 29 of the Act. (2) If a medical practitioner renders to a beneficiary

outside British Columbia services that the commission determines are medically required, the beneficiary is entitled to payment for the cost of the services as follows: (b) with prior approval of the commission if the services are elective, non-emergency services and are rendered outside Canada. [37] As set out above, s. 29 of the MPA and s. 35 of the MHCSR do not prohibit beneficiaries from doing anything. Rather, they provide for payment by the Medical Services Plan of the costs of healthcare provided outside of the province when certain requirements are met. Analysis [38] The fundamental problem with the s. 7 claim as pleaded is that the Impugned Provisions do not deprive the plaintiff of his rights to life, liberty or security of the person. Instead, they impose limits on when the government will extend a benefit that may have enhanced his life, liberty or security of the person by providing funding for out-of-province care. Section 7 has been interpreted as a restriction on the state's ability to deprive people of life, liberty or security of the person, rather than an obligation on the state to ensure that each person enjoys life, liberty or security of the person: Gosselin v. Québec (Attorney General), 2002 SCC 84 at para. 81, emphasis in original. The majority of the Supreme Court of Canada in Gosselin, at para. 83, left open "the possibility that a positive obligation

to sustain life, liberty, or security of the person may be made out in special circumstances". [39] However, no such special circumstances are pleaded in this case. Instead, the facts pleaded by the plaintiff make his claim very similar to other cases that sought to impose a positive obligation on the government to provide a financial benefit in the realm of health care, all of which were rejected by the courts: see e.g. Chung v. British Columbia (Minister of Health), 2023 BCCA 294 at paras. 65--68; Black v. Alberta (Out-of-Country Health Services Appeal Panel), 2017 ABQB 80 at para. 55; Flora v. Ontario Health Insurance Plan, 2008 ONCA 538 at paras. 101, 106--107; Yashcheshen v. Saskatchewan (Ministry of Health), 2022 SKCA 68 at para. 60. [40] The jurisprudence referred to in those judgments forecloses the plaintiff's claim in this case from succeeding and makes it plain and obvious that the pleading discloses no reasonable claim. The plaintiff's claims that the actions and omissions of the Minister of Health, the Health Authorities, and Dr. Melck infringe his Charter rights Alleged refusal to refund the plaintiff and request for a refund [41] No facts are pleaded in respect of a request for repayment under the HIA scheme. [42] In respect of the MPA, on the pleadings, what happened in this case is that the plaintiff did not seek prior approval of the commission as contemplated

by the MHCSR. [43] He did, however, seek post-operative approval. He was advised that in order to get a potential refund, he needed the approval of an appropriate specialist, meaning "a medical practitioner actively involved in the beneficiary's care with expert knowledge in the proposed service and/or speciality that will deliver the out of country service". There was a form that needed to be completed. [44] There is no allegation that the plaintiff submitted the requested information. Instead, it is pleaded that he sent an e-mail to Dr. Melck requesting that she complete the form, but Dr. Melck never replied. [45] There are no pleaded facts that the plaintiff has been refused a refund under either statutory scheme. [46] In these circumstances, it is plain and obvious that the pleading discloses no reasonable claim. Alleged failure to provide high quality, appropriate, and timely health services to the plaintiff [47] The plaintiff claims the Province, the Health Authorities, and Dr. Melck infringed his Charter rights by failing to triage him appropriately in respect of the wait lists at the relevant hospitals. He further alleges that Dr. Melck infringed his Charter rights by denying the opinion of a US worldwide specialist with respect to his care. In argument on this application, the plaintiff further argued that Dr. Melck infringed his Charter rights by her lack of response

to his request that she fill in the form to be reimbursed for out-of-province surgery. [48] Dealing first with the wait list issue, in respect of the Province, there are no facts pleaded to support that the Province is responsible for the wait lists in question. [49] An additional reason to dismiss this claim with respect to the wait list issue as against Providence Health Care Society is that there are no facts pleaded that Providence Health Care Society took or omitted to take any actions in respect of the plaintiff. [50] Rather, it is pleaded that Dr. Melck gave the plaintiff the option of having the AVS procedure at either St. Paul's Hospital or Royal Columbian Hospital. Dr. Melck and the plaintiff together selected Royal Columbian Hospital. There is no suggestion that the plaintiff was ever on or that he ever asked to be on a wait list at St. Paul's Hospital. [51] In these circumstances, it is plain and obvious that the pleading discloses no reasonable claim against Providence Health Care Society. [52] Turning next to Dr. Melck and Royal Columbian Hospital, Dr. Melck and the plaintiff decided to have the AVS procedure at the Royal Columbian Hospital, even though the wait list was nine months long (three months longer than at St. Paul's Hospital). [53] While he was waiting for AVS, the plaintiff's health deteriorated, and his symptoms increased. [54] The plaintiff later

learned he was not on the wait list at Royal Columbian Hospital. [55] Given that the plaintiff was never on a wait list at Royal Columbian Hospital, there are no facts pleaded that Royal Columbian Hospital took or omitted to take any actions in respect of the plaintiff. Even if he had been on the wait list at Royal Columbian Hospital, the facts pleaded suggest that triaging patients on the wait list is within the discretion of the physician, not the Health Authority. In these circumstances, it is plain and obvious that the pleading discloses no reasonable claim against Fraser Health Authority. [56] While he believed he was on a wait list waiting for AVS, the plaintiff obtained the opinion from a physician in Tampa Bay, Florida, that he did not need the AVS procedure and could go straight to surgery. He asked Dr. Melck to perform the surgery without the benefit of the AVS procedure. [57] Dr. Melck: a) refused to act on the Tampa Bay physician's opinion; b) declined to offer the opinion that the plaintiff's condition was more urgent than other patients on the wait list at Royal Columbian Hospital; c) offered to put in a request at St. Paul's Hospital to see if they could get him an earlier appointment; and d) later, did not respond when the plaintiff sent her a form to complete so that he could be reimbursed for out-of-province surgery. [58] The Charter only applies to

governmental action: Charter, s. 32. [59] It is well-established that the Charter does not apply to physicians acting within a legislated, publicly funded framework in the regular course of providing medical care: Hobbs v. Robertson, 2004 BCSC 1508 at paras. 9-10; Lewis v. Alberta Health Services, 2022 ABCA 359 at paras. 30-31; Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 at paras. 87-90, 106. [60] All of Dr. Melck's actions and interactions with the plaintiff were taken as a physician in her private personal capacity. It is plain and obvious that the pleading discloses no reasonable claim against Dr. Melck. Conclusion and Orders [61] In summary, I make the following orders: a) The amended notice of civil claim is struck out, without leave to amend. b) The defendants are entitled to recover their costs of these applications from the plaintiff at Scale B. "Latimer J."