Charter Application to Care Homes

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Date Retrieved:	2025-08-01
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Citation:	Charter Application to Care Homes, CLNP 2518, <https://rvt.link/g4>, retrieved on 2025-08-01
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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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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.