Same-Sex Care (Resident Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	2442
Page Categories:	[Care Homes (LTB)], [Human Rights]
Citation:	Same-Sex Care (Resident Rights), CLNP 2442, <>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2024/11/19

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McKale v. Lamont Auxilliary Hospital & Nursing Home District No.23, 1987 CanLII 3341 (AB KB)

Summary: The Court rejects an appeal by Anne McKale from a decision by a Board of Inquiry (1986 CanLII 6545 (AB HRC), 8 C.H.R.R. D/3659) which found that she was not discriminated against because of her sex when she was refused a position as a temporary nursing assistant.

Ms. McKale applied for the position of temporary nursing assistant with Lamont Auxiliary Hospital and was refused in May 1985. The position was given to a less experienced male because the Hospital wished to replace a male attendant who had resigned with another male. The Board of Inquiry accepted the Hospital's argument that being of the male sex was a bona fide occupational qualification for the position because some of the male residents specifically requested that they be given intimate care by a person of the same sex. Since the staff ratio was ten females to three males, the Board considered that the Hospital was not violating the Individual's Rights Protection Act by maintaining this female/male ratio.

The Court confirms the Board of Inquiry decision, and the appeal is dismissed.

...

[45] My conclusion upon applying the objective test to the evidence is the same as that of Mr. Stewart, but it is more broadly based. I conclude on all of the evidence that the claim by a patient in an auxiliary hospital for intimate, personal care to be given by a nursing attendant of the same sex has a basis in his contract with the institution, in public expectations and is reasonable in the opinion of experts based on their research and experience in the area. The claim must, so far as possible, be met by the respondent not only to assure the efficient and economical performance of its job but to fulfill its obligations to the patient to treat him with respect and dignity.

[46] I find that the respondent's selection of a male for the position of nursing attendant was based on a bona fide occupational requirement pursuant to section 7(3) of the Individual's Rights Protection Act. Unlike the Chairman, I find that in this case the occupational group is composed of all nursing attendants. All that I have said supports the need to allow for adaptability of an institution to reflect the nature of its patient population and their needs.

[47] I find there is no necessity to interpret section 11.1 of the Act.

Commission des droits de la personne et des droits de la jeunesse c. Hôpital général juif Sir Mortimer B. Davis, 2007 QCTDP 29 (CanLII)

3.1 The rights of patients

[138] The scope of the right of patients to receive intimate care from a beneficiary attendant of their own sex is based first and foremost on the fundamental rights guaranteed by the Charter, such as inviolability, the right to respect for one's private life and the right to freedom of religion. In addition, rules are set forth in the Act respecting health services and social services.[10] I will come back to them later.

...

3.1.1 The right to inviolability

[139] In the 1982 legislative amendments, the term "physique", which had modified the word "intégrité" in the French version of section 1 of the Charter, was deleted.

[140] In Dufour, reiterating the reasons of Wilson J. in Morgentaler, the Tribunal analysed the concept of inviolability, as amended:

[TRANSLATION]

… the right to inviolability more specifically concerns respect for personal autonomy in decision-making regarding matters closely tied to a person's fundamental values and convictions. It is therefore a patient's right to receive personal care from someone of the same sex.

[141] In Hôpital St-Ferdinand, the Supreme Court clarified the meaning to be ascribed to "inviolability", as set forth in the Charter:

… s. 1 [of the Charter] refers inclusively to physical, psychological, moral and social inviolability.

The common meaning of the word "inviolability" suggests that the interference with that right must leave some marks, some sequelae which, while not necessarily physical or permanent, exceed a certain threshold.

[142] It is also interesting to note that, when called on to interpret the meaning of the right to security under section 7 of the Canadian Charter, the Supreme Court ruled that the principle of security of the person encompassed the concept of inviolability and, more specifically, respect for autonomy in decision-making. In Rodriguez, Sopinka J. wrote:

… personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.

[143] Accordingly, it may be concluded that section 1 of the Charter does not protect only the physical aspect of inviolability, but also its psychological, moral and social aspects.