The British Columbia government will seek a warrant so it can press ahead with an audit of private surgery clinics in Vancouver. But the head of those clinics says the audit is a smoke screen so the government can avoid going to court on what he considers the real issue.

After a September court ruling on whether or not it had the right to audit Brian Day's Cambie Surgeries Corp., the Medical Services Commission consulted with the Attorney General's ministry on how to proceed, a health ministry official said in an emailed statement.

"The commission has instructed legal counsel to seek a warrant under the Medicare Protection Act authorizing an inspector to enter Cambie Surgeries Corp. and Specialist Referral Clinic to conduct audits," the statement said. "It is the role of the Medical Services Commission to protect the integrity and sustainability of the health care system and uphold the Medicare Protection Act.

"We hope that the clinics will cooperate with the audits and allow both the audits and litigation to be resolved as quickly as possible," it said.

Health Services Minister Kevin Falcon was unavailable for an interview. A spokesperson for the ministry said the timing for seeking the warrant is so far undetermined and is likely a few weeks away.

Breaking a bad law: clinic owner Day

Brian Day, president and CEO of Cambie Surgeries Corp., said the government won't need a warrant to conduct an audit.

"Your source in the provincial health ministry is out of the loop, I'm afraid," he said. "Right now, we're in the process of negotiating a voluntary order to show we're not afraid of the audit."

The issue, however, is not about the audit, Day said.

There's no question his clinic is extra billing patients, and it's obvious what an audit will find, he said. You can phone the clinic and ask what it costs to have a knee operation done and they'll tell you, he said. A couple years ago the Vancouver Sun published the full details of what the clinic charges for various procedures.

Extra billing for services funded through medicare is illegal under the Canada Health Act, and the federal government has withheld portions of health transfer payments from B.C. and other provinces when they've allowed the practice.

"There's no need for them to seek an audit," Day said. "The truth is we're happy to submit to a voluntary audit... This is under negotiation right now. We have met with ministry officials, and discussions are going on about a voluntary audit."

Day said he and the clinics would like the courts to decide, in a case that's continuing, on whether British Columbians have the "right to avoid the pain and suffering" of being on a wait list for surgery. "We want the constitutional question put to the court. They want that delayed as long as possible."

He added, "It's very dishonest of them, I think."

Asked Day, "Does a B.C. resident have the same rights as a Quebec resident?"

He was referring to a Supreme Court of Canada ruling in 2005, that prohibiting people from buying private medical insurance while there are long wait times was a violation of the Quebec Charter of Rights and Freedoms.

He likened what his clinic is doing to having a car parked in a spot clearly marked no parking. He doesn't dispute that he's parked under a 'no parking' sign; what he disagrees with is the sign itself and the law that makes parking in that place illegal.

Government needs to enforce the law: NDP's Dix

It's disingenuous for Day to now say he welcomes being audited, said New Democratic Party health services critic Adrian Dix. "As I understand it, in the courts they've tried to avoid being audited."

In September, the B.C. Court of Appeal set aside an injunction that would have allowed Medical Services Commission auditors to enter clinics belonging to the Cambie Surgeries Corp. and examine records to see if they are billing patients for services that are also being billed to the government, The Tyee reported.

However, writing the reasons for judgment on behalf of the three judges who heard the case, Harvey Groberman said the MSC never needed an injunction in the first place. Instead he confirmed "the commission's right to apply for a warrant in properly constituted proceedings before a justice of the peace."

The clinics could also ask the Supreme Court to disallow the audits until the litigation is over, he said.

How Day feels about being audited is irrelevant, said Dix, who in the days following the court's September decision urged getting on with the audit. "It's like somebody saying they welcome any other law."

The law is clear that extra billing is illegal, Dix said. "The government's obligation is to see that the law is enforced," he said. "They've dragged reluctantly into following the law that they should have been following all along."

The audit needs to happen quickly, he said, adding he wonders why the government is waiting a few more weeks. "That will make it years and weeks of delay."

And while Day has been upfront that his clinics are extra billing, Dix said, the audit should discover the details and give a picture of how extensive it is at the clinic. "It will be interesting to see what's been going on with respect to facility fees and extra billing."

Cambie's Charter challenge against the government continues.