45 In the present case, the controversy over the Charter's application centres on the question
of hospitals. The respondents argue that if the failure to provide sign language interpreters does
not flow from the Act but rather from the discretion of individual hospitals, then s. 15(1) is not
engaged because the Charter does not apply to hospitals. Hospitals, they say, are not
"government" for the purposes of s. 32 of the Charter. In their view, this result flows from a
straightforward application of this Court's decision in Stoffman, supra.
46 The foregoing analysis, however, establishes that it is not enough for the respondents to
say that hospitals are not "government" for the purposes of s. 32 of the Charter. In Stoffman, the
Court found that the Vancouver General Hospital was not part of the apparatus of government
and that its adoption of a mandatory retirement policy did not implement a government policy.
Stoffman made it clear that, as presently constituted, hospitals in British Columbia are nongovernmental entities whose private activities are not subject to the Charter. It remains to be seen,
however, whether hospitals effectively implement governmental policy in providing medical
services under the Hospital Insurance Act.
47 There is language in Stoffman that could be read as precluding the application of the
Charter in the circumstances of the present case. There, I wrote, at p. 516, that "there can be no
question of the Vancouver General's being held subject to the Charter on the ground that it
performs a governmental function, for . . . the provision of a public service, even if it is one as
important as health care, is not the kind of function which qualifies as a governmental function
under s. 32". That statement, however, must be read in the context of the entire judgment. I
determined only that the fact that an entity performs a "public function" in the broad sense does
not render it "government" for the purposes of s. 32 and specifically left open the possibility that
the Charter could be applied to hospitals in different circumstances. Indeed, later in the same
paragraph I qualified my position in the following manner:
I would also add that this is not a case for the application of the Charter to a specific act of an
entity which is not generally bound by the Charter. The only specific connection between the
actions of the Vancouver General in adopting and applying Regulation 5.04 and the actions of the
Government of British Columbia was the requirement that Regulation 5.04 receive ministerial
approval. In light of what I have said above in regard to this requirement, a "more direct and a
more precisely-defined connection", to borrow McIntyre J.'s phrase used in Dolphin Delivery,
would have to be shown before I would conclude that the Charter applied on this ground.
48 As this passage alludes to, the hospital's mandatory retirement policy, which was embodied
in Medical Staff Regulation 5.04, was a matter of internal hospital management. Notwithstanding
the requirement of ministerial approval, the Regulation was developed, written and adopted by
hospital officials. It was not instigated by the government and did not reflect its mandatory
retirement policy. Hospitals in British Columbia, moreover, exhibited great variety in their
approaches to retirement. That each of these policies obtained ministerial approval reflected the
large measure of managerial autonomy accorded to hospitals in this area.
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
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents