Two Albertans who paid thousands of dollars for surgery in the United States after facing long waits for care back home are set to argue their constitutional challenge of the province’s ban on private medical insurance before a Calgary judge on Thursday.

The lawyer for Darcy Allen and Richard Cross says Alberta’s “monopoly” on health care and inability to manage long wait lists leaves patients little choice but to suffer for months and years or to shell out big dollars for private health care outside Canada.

“What the court action seeks to achieve is rather than people like Darcy Allen and Richard Cross needing to go to the US because their only other choice is to suffer in pain for years on a waiting list, we want those people to be able to obtain health care here in Canada,” said John Carpay of the Justice Centre for Constitutional Freedoms.

“The government’s monopoly of the health-care system is failing the objective of providing reasonable access to health services.”

Allen, at the time an Okotoks dentist, said the pain from a hockey injury forced him to stop work in 2009. Facing a wait list longer than a year in Alberta for surgery, he spent more than $77,000 to travel to Montana for surgery.

Cross paid $24,000 for surgery in Arizona in 2010 after the Calgary businessman lived with severe back pain but was told he’d need to wait years for surgery.

The two men are arguing the ban on private insurance infringes their Charter section 7 right to life, liberty and security of person.

“Our public system, the way it’s being run, is definitely not working for us. The status quo isn’t working,” said Allen, now an assistant professor at the University of Saskatchewan.

“I’m not here to destroy public health care, but we’ve got to find other ways of getting health care out there to people.”

The case hinges on the landmark Chaoulli ruling of the Supreme Court of Canada in 2005, which said Quebec’s ban on private medical insurance as the province struggled with long wait lists wasn’t constitutional.

According to a brief submitted on behalf of Alberta Justice in the Allen and Cross case, the situations in the two provinces aren’t entirely similar. The document also noted that it’s not clear whether the delays and pain the two men experienced were caused by the ban on private insurance.

“Alberta wants a health systems where access is governed by need, not wealth,” the brief stated.

“Alberta does not want people who are uninsurable to be left behind. To accomplish this objective endorsed by the Canada Health Act, Alberta seeks to discourage the growth of private-sector delivery of ‘insured’ services based on wealth and insurability.”

Carpay said Alberta’s medical system is inherently unfair because it makes it illegal for patients to access essential health-care services such as cancer treatments and orthopedic surgery outside of the “government’s monopoly.” He contended that a mix of public and private health-care would make for a healthier system.

“It’s fine for the government to have a health-care program, and we’re not disputing that. We’re saying people should have the freedom to access health care outside of it.”