13 On appeal to the British Columbia Court of Appeal (1995), 7 B.C.L.R. (3d) 156, the majority
(Hollinrake and Cumming JJ.A.) held that the lack of interpreting services in hospitals is not
discriminatory because the Hospital Insurance Act does not provide any "benefit of the law" within
the meaning of s. 15(1) of the Charter. Writing for the majority, Hollinrake J.A. noted that the
extent of the services provided by each hospital is subject to its own decision as to how to spend
the global grant received from government. The absence of interpreters, he thus found, results
not from the legislation but rather from each hospital's budgetary discretion. Because hospitals
are not "government" within the meaning of s. 32 of the Charter, he concluded, their failure to
provide interpretation does not engage s. 15(1).
14 He next determined that the Medical and Health Care Services Act did not violate s. 15(1) of
the Charter because it did not create a distinction between the deaf and hearing populations. The
proper approach to the application of adverse effects analysis to benefit-conferring legislation, he
held, was to focus on the impact of the legislation on the disadvantaged group. In considering this
impact, he opined, a distinction must be drawn between effects attributable to the legislation and
those that exist independently of it. In the absence of legislation, deaf people would be required to
pay their doctors in addition to translators in order to receive equivalent medical services to
hearing persons. The legislation removes the responsibility of both hearing and deaf persons to
pay their physicians. The inequality resulting from the fact that the deaf remain responsible for the
payment of translators, in his view, exists independently of the legislation. Thus, he concluded
that the legislation provided the benefit of free medical services equally to the hearing and deaf
populations.
15 Lambert J.A., in contrast, held that the legislation violated s. 15(1). He noted that many deaf
patients, including the appellants, have difficulty communicating by writing. As a result, cases will
arise where doctors will be unable to discharge their professional obligations without the aid of an
interpreter. Because effective communication is an integral part of medical care, he concluded,
sign language interpretation should not be considered a merely ancillary service. In his view, it is
no answer to say that before the benefit was enacted, deaf persons were at a disadvantage and
that this burden has not been increased by the provision of the benefit. The proper question is
whether the law confers a benefit to which the disadvantaged group does not have the same
access as others. He thus concluded that the Medical and Health Care Services Act
discriminated against the appellants where they seek to obtain medical services that require, for
the discharge of the practitioner's professional obligations, effective communication between the
practitioner and the patient, and where effective communication can only be achieved through the
provision of translation services.
16 Lambert J.A. found, however, that this infringment was justified under s. 1 of the Charter.
He noted the Medical and Health Care Services Act does not ensure comprehensive health care
coverage. It does not provide for a number of products and services that are required by disabled
persons, such as artificial limbs, hearing aids and wheelchairs. In the allocation of scarce financial
resources, he stated, governments must make choices about spending priorities. In these
circumstances, he held, courts should defer to legislative policy and administrative expertise.