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. . . ."
50 The structure of the Hospital Insurance Act reveals, therefore, that in providing medically
necessary services, hospitals carry out a specific governmental objective. The Act is not, as the
respondents contend, simply a mechanism to prevent hospitals from charging for their services.
Rather, it provides for the delivery of a comprehensive social program. Hospitals are merely the
vehicles the legislature has chosen to deliver this program. It is true that hospitals existed long
before the statute, and have historically provided a full range of medical services. In recent
decades, however, health care, including that generally provided by hospitals, has become a
keystone tenet of governmental policy. The interlocking federal-provincial medicare system I have
described entitles all Canadians to essential medical services without charge. Although this
system has retained some of the trappings of the private insurance model from which it derived, it
has come to resemble more closely a government service than an insurance scheme; see
Canadian Bar Association Task Force on Health Care, supra, at p. 9.
51 Unlike Stoffman, then, in the present case there is a "direct and . . . precisely-defined
connection" between a specific government policy and the hospital's impugned conduct. The
alleged discrimination -- the failure to provide sign language interpretation -- is intimately
connected to the medical service delivery system instituted by the legislation. The provision of
these services is not simply a matter of internal hospital management; it is an _expression of
government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they
act as agents for the government in providing the specific medical services set out in the Act. The
Legislature, upon defining its objective as guaranteeing access to a range of medical services,
cannot evade its obligations under s. 15(1) of the Charter to provide those services without
discrimination by appointing hospitals to carry out that objective. In so far as they do so, hospitals
must conform with the Charter.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents