Charter Application to Care Homes

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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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38 In Douglas, however, the same majority found that the Charter did apply to the mandatory retirement policy at issue, on the ground that Douglas College was, in light of its constituent Act, simply an emanation of government. I described the differences between McKinney and Harrison, on the one hand, and Douglas, on the other, at pp. 584-85 of the latter case:

As its constituent Act makes clear, the college is a Crown agency established by the government to implement government policy. Though the government may choose to permit the college board to exercise a measure of discretion, the simple fact is that the board is not only appointed and removable at pleasure by the government; the government may at all times by law direct its operation. Briefly stated, it is simply part of the apparatus of government both in form and in fact. In carrying out its functions, therefore, the college is performing acts of government, and I see no reason why this should not include its actions in dealing with persons it employs in performing these functions. Its status is wholly different from the universities in the companion cases of McKinney . . . and Harrison . . . which, though extensively regulated and funded by government, are essentially autonomous bodies. Accordingly, the actions of the college in the negotiation and administration of the collective agreement between the college and the association are those of the government for the purposes of s. 32 of the Charter. The Charter, therefore, applies to these activities.

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41 While it is well established that the Charter applies to all the activities of government, whether or not those activities may be otherwise characterized as “private”, this Court has also recognized that the Charter may apply to non-governmental entities in certain circumstances; see generally Robin Elliot, “Scope of the Charter’s Application” (1993), 15 Advocates’ Q. 204, at pp. 208-9. It has been suggested, for example, that the Charter will apply to a private entity when engaged in activities that can in some way be attributed to government. This possibility was contemplated in McKinney, where I stated the following, at pp. 273-74:

Though the legislature may determine much of the environment in which universities operate, the reality is that they function as autonomous bodies within that environment. There may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government and . . . there is no statutory requirement imposing mandatory retirement on the universities. [Emphasis added.]

I commented further on as follows, at p. 275:

I, therefore, conclude that the respondent universities do not form part of the government apparatus, so their actions, as such, do not fall within the ambit of the Charter. Nor in establishing mandatory retirement for faculty and staff were they implementing a governmental policy. [Emphasis added.]

The idea that certain activities of non-governmental entities may be viewed as the responsibility of government was further elucidated in my reasons in Lavigne where, after discussing McKinney, Harrison, Douglas and Stoffman, I stated as follows, at p. 312:

The majority in the above cases relied solely on the element of control in determining what fell within the apparatus of government, although it made clear that government may, in some circumstances, be subject to Charter scrutiny in respect of activities in the private sector where the government could be said to have some responsibility for that activity. [Emphasis added.]

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43 Two important points must be made with respect to this principle. First, the mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may be described as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of the Charter. Thus, with specific reference to the distinction between the applicability of the Charter, on the one hand, and the susceptibility of public bodies to judicial review, on the other, I stated as follows, at p. 268 of McKinney:

It was not disputed that the universities are statutory bodies performing a public service. As such, they may be subjected to the judicial review of certain decisions, but this does not in itself make them part of government within the meaning of s. 32 of the Charter. . . . In a word, the basis of the exercise of supervisory jurisdiction by the courts is not that the universities are government, but that they are public decision-makers. [Emphasis added.]

In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. As I stated further on in McKinney, at p. 269, “[a] public purpose test is simply inadequate” and “is simply not the test mandated by s. 32”.

44 The second important point concerns the precise manner in which the Charter may be held to apply to a private entity. As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.

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49 The situation in the present appeal is very different. The purpose of the Hospital Insurance Act is to provide particular services to the public. Although the benefits of that service are delivered and administered through private institutions -- hospitals -- it is the government, and not hospitals, that is responsible for defining both the content of the service to be delivered and the persons entitled to receive it. As previously noted, s. 3(1) states that every person eligible to receive benefits is “entitled to receive the general hospital services provided under this Act”. Section 5(1) defines “general hospital services” to include various services normally available in hospitals. As the definition of “hospital” in s. 1 makes clear, moreover, hospitals are required to furnish the general hospital services specified in the Act. While no single hospital makes all of these services available, the net effect of the Act is to entitle every qualified person to receive, and to require hospitals to supply, a complete range of medically required hospital services. Indeed, if the legislation did not assure this, it would run afoul of the Canada Health Act. It is also apparent that while hospitals are funded on a “lump sum” and not a “fee-for-service” basis, they are not entirely free to spend this money as they choose. This is apparent from s. 10(1) of the Act, which mandates the annual payment of a sum “determined by the minister to reimburse the hospital . . . for the cost of rendering to beneficiaries those general hospital services authorized by this Act the hospital is required by the minister to provide for beneficiaries”, as well as from s. 15(3)(c), which authorizes the minister to make “payments to hospitals for the service provided for under this Act” and s. 13(1), which provides that payments to a hospital “for services rendered by it . . . shall be deemed to be payment in full for the services. . . .”

Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 SCR 483

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In my respectful view, the application of these three tests leads inexorably to a finding that the Charter applies to the Vancouver General Hospital.

1. Application of the Criteria to the Vancouver General Hospital

(a)The "Control" Test

A review of the various connections between the Province and the Hospital leads me to conclude that the provincial government exercises a substantial amount of control over the appellant. In particular, the government has exercised control over the Vancouver General Hospital in three areas: (1) governing structure; (2) policy; and (3) funding.

Dealing first with control over the governing structure of the Hospital, the Hospital Act, R.S.B.C. 1979, c. 176, sets out the function and powers of the Hospital and its constituent elements. Section 30 provides that the Lieutenant Governor may appoint inspectors whose function it is to inspect the accounts, books, equipment and any other thing on or about the hospital. Section 37 provides that the Lieutenant Governor may, by regulation, establish one or more medical appeal boards. These boards are vested with the jurisdiction to review management decisions regarding permits to practise medicine or dentistry in the Hospital. Under s. 2(1)(c) of the Act every hospital is required to have a properly constituted board of management. It is in this Board that the governance of hospital affairs is largely reposed.

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In my respectful view, the conclusion I have reached respecting the general relationship of control which the Province has with the Hospital is strengthened when it is recognized that the government also has specific control over the particular action in issue in these appeals. Regulation 5.04 would be totally ineffectual without the prior written approval of the Minister. Indeed, had the Minister not been prepared to approve the Regulation, he had the power to forestall its enactment and compel the Board of Trustees to enact a by‑law more to his liking. In such circumstances I fail to see how the Regulation could be characterized as beyond government control or as anything other than a simple reflection of government policy. To my mind, the fact that the Province through the Minister had the power to treat the by‑law in this way provides an exceedingly strong indication that what is at issue in these appeals is government action. Indeed, in this case I might be prepared to find that the requirements of s. 32(1) are met on the basis of the control test alone. It is not necessary to do so, however, since in my view the government function test and the government entity test provide further support for my conclusion that the Charter applies to the Vancouver General Hospital.

(b) The "Government Function" Test

As I indicated in McKinney, in applying the "government function" test, the general principle is that a function becomes governmental because a government has decided to perform it, not because the function is inherently governmental.

Public health in general and hospitals in particular have been supported by local and provincial governments in Canada since pre‑Confederation times. In 1830, for example, the legislature of Upper Canada provided funding for the hospital at York established by the Lieutenant Governor, Sir John Colborne: see An Act to grant a sum of Money to His Majesty in aid of the York Hospital, S.U.C. 1830, c. 31. In British Columbia the legislature enacted in 1869 a statute conferring on the Governor‑in‑Council power to establish local health boards and to regulate sanitary and other conditions in hospitals: see An Ordinance for promoting the Public Health in the Colony of British Columbia, C.S.B.C. 1877, c. 83. The legislature of British Columbia also passed the Insane Asylums Act, C.S.B.C. 1888, c. 61, providing for the establishment of mental hospitals in the Province. Finally, in 1888 it instituted a complete regime of public health under the Health Act, R.S.B.C. 1897, c. 91. In 1832 the legislature of Lower Canada passed an Act to support certain hospitals: see An Act to appropriate certain sums of money for the support of the Emigrant Hospital at Quebec and of the Fever Hospital at Point Levi and for other purposes therein mentioned, S.L.C. 1832, c. 15. And in New Brunswick the legislature established a Board of Health in the City and County of St. John and conferred on the Board authority to "purchase, build or hire" hospitals and power to regulate them: see An Act to establish a Board of Health in the City and County of Saint John, S.N.B. 1855, c. 40, s. 11.

Section 92(7) of the Constitution Act, 1867, gives the provinces exclusive jurisdiction over

92. . . .

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

Pursuant to this grant of authority provincial legislatures have become increasingly involved over the years in the public health and hospital area. For example, in Manitoba the legislature enacted The General Hospital Act, C.S.M. 1880, c. 26, which established the Winnipeg General Hospital. The Nova Scotia legislature, through Title VI of the R.S.N.S. 1900, set up a regime of hospitals and public health regulation. Chapter 47 [Of Local Hospitals] Title IV provides that municipal and town councils shall be authorized to establish and support local public hospitals. In Ontario, the legislature provided financial aid to a number of hospitals through The Charity Aid Act, R.S.O. 1877, c. 223. They also ensured the government's right to inspect such facilities through The Prison and Asylum Inspection Act, R.S.O. 1877, c. 224, s. 14.

Finally, the administration of hospitals in the provinces is under the general authority of provincial Ministers of Health: see, for example, Public Hospitals Act, R.S.O. 1980, c. 410; Hospitals Act, R.S.A. 1980, c. H‑11; The Hospital Standards Act, R.S.S. 1978, c. H‑10; and An Act Respecting the Ministère de la santé et des services sociaux, R.S.Q., c. M‑19.2.

This brief overview of the legislation in place both before and after Confederation leads me to conclude that the establishment and maintenance of hospitals is a traditional function of government.

(c) The "Statutory Authority and the Public Interest" Test

It has already been established that the Hospital is broadly empowered to conduct its affairs through its "enabling" statutes. It has also been established that government has traditionally assumed a responsibility for the provision of basic medical services to its citizens. Justification for state involvement in the public health field is not hard to find. Simply put, government has recognized for some time that access to basic health care is something no sophisticated society can legitimately deny to any of its members. Less philosophically, government has also recognized that the promotion and protection of health is crucial to the maintenance of a viable and productive society.

I believe that the fact that the Hospital is established and operates pursuant to statutory authority, is heavily regulated by government and discharges a traditional government function in the public interest brings it within the concept of "government" for purposes of s. 32. Regulation 5.04 is therefore subject to review under s. 15 of the Charter.

Dunmore v. Ontario (Attorney General), 2001 SCC 94 (CanLII), [2001] 3 SCR 1016

24 In my view, the cases of Haig, NWAC and Delisle function to circumscribe, but not to foreclose, the possibility of challenging underinclusion under s. 2 of the Charter. One limit imposed by these cases is that claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime. Thus, in Haig, the majority of this Court held that “[a] government is under no constitutional obligation to extend [a referendum] to anyone, let alone to everyone”*, and further that “[a] referendum as a platform of expression is . . . a matter of legislative policy and not of constitutional law” (p. 1041 (emphasis in original)). Similarly, in NWAC, the majority of this Court held that “[i]t cannot be claimed that NWAC has a constitutional right to receive government funding aimed at promoting participation in the constitutional conferences” (p. 654). In my view, the appellants in this case do not claim a constitutional right to general inclusion in the LRA, but simply a constitutional freedom to organize a trade association. This freedom to organize exists independently of any statutory enactment, even though the so-called “modern rights to bargain collectively and to strike” have been characterized otherwise in the Alberta Reference, supra, per Le Dain J., at p. 391. While it may be that the effective exercise of this freedom requires legislative protection in some cases, this ought not change the fundamentally non-statutory character of the freedom itself. As long as the appellants can plausibly ground their action in a fundamental Charter freedom, Haig and NWAC ought simply to be distinguished.

25 Second, the underinclusion cases demonstrate that a proper evidentiary foundation must be provided before creating a positive obligation under the Charter. This requirement proved fatal in Haig, NWAC and Delisle because the claimants in all three cases were unable to prove that the fundamental freedom at issue, as opposed to merely their requested statutory entitlement, was impossible to exercise. On the contrary, it was concluded in Haig that “the referendum itself, far from stifling expression, provided a particular forum for such expression” (p. 1040). Similarly, it was concluded in NWAC that “[e]ven assuming that in certain extreme circumstances, the provision of a platform of expression to one group may infringe the expression of another and thereby require the Government to provide an equal opportunity for the expression of that group, there was no evidence in this case to suggest that the funding or consultation of the four Aboriginal groups infringed the respondents’ equal right of freedom of expression” (p. 664). Finally, it was concluded in Delisle that “it is difficult to argue that the exclusion of RCMP members from the statutory regime of the PSSRA prevents the establishment of an independent employee association because RCMP members have in fact formed such an association in several provinces, including Quebec, where ‘C’ Division was created by Mr. Delisle himself” (para. 31). In my view, the evidentiary burden in these cases is to demonstrate that exclusion from a statutory regime permits a substantial interference with the exercise of protected s. 2(d) activity. Such a burden was implied by Dickson C.J. in the Alberta Reference, supra, where he stated that positive obligations may be required “where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms” (p. 361 (emphasis added)). It was also implied by this Court in NWAC, where Sopinka J. stated that “[i]t will be rare indeed that the provision of a platform or funding to one or several organizations will have the effect of suppressing another’s freedom of speech” (p. 657 (emphasis added)). These dicta do not require that the exercise of a fundamental freedom be impossible, but they do require that the claimant seek more than a particular channel for exercising his or her fundamental freedoms.

26 Assuming an evidentiary foundation can be provided, a third concern is whether the state can truly be held accountable for any inability to exercise a fundamental freedom. In this case, it is said that the inability to form an association is the result of private action and that mandating inclusion in a statutory regime would run counter to this Court’s decision in Dolphin Delivery, supra. However, it should be noted that this Court’s understanding of “state action” has matured since the Dolphin Delivery case and may mature further in light of evolving Charter values. For example, this Court has repeatedly held that the contribution of private actors to a violation of fundamental freedoms does not immunize the state from Charter review; rather, such contributions should be considered part of the factual context in which legislation is reviewed (see Lavigne, per La Forest J., at p. 309; see, similarly, R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, per Dickson C.J., at p. 766). Moreover, this Court has repeatedly held in the s. 15(1) context that the Charter may oblige the state to extend underinclusive statutes to the extent underinclusion licenses private actors to violate basic rights and freedoms (see Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493). Finally, there has been some suggestion that the Charter should apply to legislation which “permits” private actors to interfere with protected s. 2 activity, as in some contexts mere permission may function to encourage or support the act which is called into question (see Lavigne, per Wilson J., at p. 248). If we apply these general principles to s. 2(d), it is not a quantum leap to suggest that a failure to include someone in a protective regime may affirmatively permit restraints on the activity the regime is designed to protect. The rationale behind this is that underinclusive state action falls into suspicion not simply to the extent it discriminates against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental freedoms.

27 The notion that underinclusion can infringe freedom of association is not only implied by Canadian Charter jurisprudence, but is also consistent with international human rights law. Article 2 of Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 17, provides that “[w]orkers and employers, without distinction whatsoever, shall have the right to establish and . . . to join organisations of their own choosing” (emphasis added), and that only members of the armed forces and the police may be excluded (Article 9). In addition, Article 10 of Convention No. 87 defines an “organisation” as “any organisation of workers or of employers for furthering and defending the interests of workers or of employers” (emphasis added). Canada ratified Convention No. 87 in 1972. The Convention’s broadly worded provisions confirm precisely what I have discussed above, which is that discriminatory treatment implicates not only an excluded group’s dignity interest, but also its basic freedom of association. This is further confirmed by the fact that Article 2 operates not only on the basis of sex, race, nationality and other traditional grounds of discrimination, but on the basis of any distinction, including occupational status (see L. Swepston, “Human rights law and freedom of association: Development through ILO supervision” (1998), 137 Int’l Lab. Rev. 169, at pp. 179-180). Nowhere is this clearer than in Article 1 of Convention (No. 11) concerning the Rights of Association and Combination of Agricultural Workers, 38 U.N.T.S. 153, which obliges ratifying member states to secure to “all those engaged in agriculture” the same rights of association as to industrial workers; the convention makes no distinction as to the type of agricultural work performed. Although provincial jurisdiction has prevented Canada from ratifying Convention No. 11, together these conventions provide a normative foundation for prohibiting any form of discrimination in the protection of trade union freedoms (see J. Hodges-Aeberhard, “The right to organise in Article 2 of Convention No. 87: What is meant by workers ‘without distinction whatsoever’?” (1989), 128 Int’l Lab. Rev. 177). This foundation is fortified by Convention (No. 141) concerning Organisations of Rural Workers and Their Role in Economic and Social Development (I.L.O. Official Bulletin, vol. LVIII, 1975, Series A, No. 1, p. 28) which extends, under Article 2, the freedom to organize to “any person engaged in agriculture, handicrafts or a related occupation in a rural area, whether as a wage earner or, . . . as a tenant, sharecropper or small owner-occupier”.

28 In sum, while it is generally desirable to confine claims of underinclusion to s. 15(1), it will not be appropriate to do so where the underinclusion results in the effective denial of a fundamental freedom such as the right of association itself. This is not to say that such claims will be common: they are constrained by both s. 32 of the Charter, which demands a minimum of state action before the Charter can be invoked, as well as by the factors discussed above. However, a claim for inclusion should not, in my view, automatically fail a s. 2(d) analysis: depending on the circumstances, freedom of association may, for example, prohibit the selective exclusion of a group from whatever protections are necessary to form and maintain an association, even though there is no constitutional right to such statutory protection per se. In this sense, the burden imposed by s. 2(d) of the Charter differs from that imposed by s. 15(1): while the latter focuses on the effects of underinclusion on human dignity (Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497), the former focuses on the effects of underinclusion on the ability to exercise a fundamental freedom. This distinction is contemplated by the wording of the Charter itself and is supported by subsequent jurisprudence of this Court (see, e.g., Delisle, supra, at para. 25).