10. (1) There shall be paid annually to every hospital from the hospital insurance fund a sum
determined by the minister to reimburse the hospital, in whole or in part, 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 admitted for treatment, excluding those sums payable to
the hospital under section 5 (4) and section 14.
As stated by the court below, at p. 168, "[t]he extent of the services to be provided by each
hospital is thus subject to the hospital's own decision as to how to spend the global grant they
receive for general hospital services. . . ."
33 Second, the Act gives individual hospitals considerable discretion as to the manner in which
the services they decide to provide are delivered. Nothing in the legislation precludes them from
supplying sign language interpreters. Hospitals have the authority, for example, to provide a sign
language interpreter for a diagnostic X ray procedure where one is required in order to ensure its
efficacy. Like the Medicare Protection Act, moreover, the Hospital Insurance Act (in s. 5(1)(d))
and Regulations (in s. 5.22) specifically list services, such as transportation to or from hospital, in
vitro fertilization and cosmetic procedures, that are not covered by the scheme. Sign language
interpretation is not included in these lists.
34 Consequently, the fact that the Hospital Insurance Act does not expressly mandate the
provision of sign language interpretation does not render it constitutionally vulnerable. The Act
does not, either expressly or by necessary implication, forbid hospitals from exercising their
discretion in favour of providing sign language interpreters. Assuming the correctness of the
appellants' s. 15(1) theory, the Hospital Insurance Act must thus be read so as to require that
sign language interpretation be provided as part of the services offered by hospitals whenever
necessary for effective communication. As in the case of the Medical and Health Care Services
Act, the potential violation of s. 15(1) inheres in the discretion wielded by a subordinate authority,
not the legislation itself.
The Application of the Charter to the Medical Services Commission and Hospitals
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