Charter Application to Care Homes

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Date Retrieved:	2025-08-03
CLNP Page ID:	2518
Page Categories:	[Care Homes (LTB)]
Citation:	Charter Application to Care Homes, CLNP 2518, <>, retrieved on 2025-08-03
Editor:	Sharvey
Last Updated:	2025/07/29

Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624

18 There are four principal issues to be considered in this appeal. First, it must be determined whether, and in what manner, the Charter applies to the decision not to provide sign language interpreters for the deaf as part of the publicly funded scheme for the provision of medical care. Second, the Court must decide whether this decision constitutes a prima facie violation of s. 15(1) of the Charter. Having found such a violation, it must be determined whether it is saved by s. 1. After concluding that it is not, an appropriate remedy must be crafted.

Application of the Charter

19 There are two distinct Charter “application” issues in this case. The first is to identify the precise source of the alleged s. 15(1) violations. As I will develop later, in my view it is not the impugned legislation that potentially infringes the Charter. Rather, it is the actions of particular entities -- hospitals and the Medical Services Commission -- exercising discretion conferred by that legislation that does so. The second question is whether the Charter applies to those entities. In my view, the Charter applies to both in so far as they act pursuant to the powers granted to them by the statutes. I deal with each of these questions in turn.

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35 Having identified the sources of the alleged s. 15(1) violations, it remains to be considered whether the Charter actually applies to them. At first blush, this may seem to be a curious question. As I have discussed, it is a basic principle of constitutional theory that since legislatures may not enact laws that infringe the Charter, they cannot authorize or empower another person or entity to do so; Slaight, supra. It is possible, however, for a legislature to give authority to a body that is not subject to the Charter. Perhaps the clearest example of this is the power of incorporation. Private corporations are entirely creatures of statute; they have no power or authority that does not derive from the legislation that created them. The Charter does not apply to them, however, because legislatures have not entrusted them to implement specific governmental policies. Of course, governments may desire corporations to serve certain social and economic purposes, and may adjust the terms of their existence to accord with those goals. Once brought into being, however, they are completely autonomous from government; they are empowered to exercise only the same contractual and proprietary powers as are possessed by natural persons. As a result, while the legislation creating corporations is subject to the Charter, corporations themselves are not part of “government” for the purposes of s. 32 of the Charter.

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