Stoffman v. Vancouver General Hospital

Stoffman v. Vancouver General Hospital
Collection
Supreme Court Judgments
Date
1990-12-06
Report
[1990] 3 SCR 483
Case number
20795
Judges
Dickson, Robert George Brian; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 20795
Decision Content
Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483
The Vancouver General Hospital and
The Board of Trustees of the
Vancouver General Hospital Appellants
v.
Isaac Wilfred Stoffman, William Philip Goldman,
Victor Hertzman, Leslie George Cohen,
Charles Sutherland Rennie, Clayton Robinson,
Thomas William Acheson, Sidney Evans,
Jermaine Vincent White, Murray Edgar,
Jocoba Van Norden, Charles Schom, Elmer Jones
and John Jacob Zack Respondents
‑ and ‑
Attorney General of Canada,
Attorney General for Ontario and
Attorney General of British Columbia Interveners
indexed as: stoffman v. vancouver general hospital
File No.: 20795.
1989: May 19; 1990: December 6.
Present: Chief Justice Dickson* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Applicability of Charter ‑‑ Government ‑‑ Whether or not hospital "government" so as to attract Charter review of policies ‑‑ If so, whether or not mandatory retirement policy "law" ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 32 .
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Equality before the law ‑‑ Age discrimination ‑‑ Mandatory loss of hospital privileges at age 65 unless competence proven ‑‑ Whether or not mandatory retirement policy "law" ‑‑ If so, whether or not s. 15(1) of the Charter infringed ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 32 .
Respondents held admitting privileges at the Vancouver General Hospital. Medical Staff Regulation 5.04 at the Hospital required all physicians to retire at age 65 unless it could be shown that they had something unique to offer the Hospital. The Regulation was approved by the hospital's Board in May of 1984 and was subsequently approved by the Minister of Health as required by statute. The Board decided not to renew the admitting privileges of most of the respondents in May 1985.
Respondents were not employees of the Vancouver General but rather were retained by their patients and paid through the provincial medicare plan. They accordingly did not come within the protection against age‑based discrimination found in the Human Rights Act because that protection is limited to employment situations. In Vancouver, doctors have privileges at only one hospital.
The hospital is run by a Board. The government had power to appoint 14 of the 16 members of the Board. The Minister's power with respect to the by‑laws of the Vancouver General extended beyond the negative power of veto set out in the Vancouver General Hospital Act to the positive power under the Hospital Act to require the Board of Trustees to adopt new by‑laws or change existing by‑laws.
The respondents commenced these proceedings to set aside the Board's decision and to obtain a declaration that Regulation 5.04, either by its terms or by the manner of its application, violated ss. 7 and 15 of the Charter and the Human Rights Act. The British Columbia Supreme Court issued an interim injunction restraining the Board from removing respondents' admitting privileges pending the outcome of their application under the Charter and the Human Rights Act. The Court of Appeal upheld the issuance of the interim injunction. The British Columbia Supreme Court then granted respondents' application and the Court of Appeal also upheld that decision.
The constitutional questions before this Court queried: (1) whether the Charter applied to Vancouver General's establishing and administering Regulation 5.04; if so (2) whether the Regulation or (3) its administration contravened s. 15(1) of the Charter ; and (4) given an affirmative answer to either questions 2 or 3, whether the Regulation or the manner of its administration was nevertheless justified under s. 1 of the Charter .
The Attorneys General of Canada, Ontario and British Columbia intervened.
Held (Wilson, L'Heureux‑Dubé and Cory JJ. dissenting): The appeal should be allowed and the plaintiffs' action dismissed.
Per Dickson C.J. and La Forest and Gonthier JJ.: The wording of s. 32 of the Charter clearly indicates that the Charter binds only government. The Vancouver General does not form part of government within the meaning of this section and accordingly its actions in adopting and administering Regulation 5.04 do not fall within the Charter 's ambit. It is an autonomous body. The provision of a public service, even one as important as health care, does not per se qualify as a governmental function under s. 32 .
Regulation 5.04 did not arise because of executive or legislative action and accordingly did not attract Charter review. The requirement for ministerial approval was only supervisory in nature to ensure that the hospital's actions do not run counter to the government's powers to prescribe standards in respect of hospital administration. The Regulation was initiated by the Board and in no way represented ministerial policy with respect to the renewal of admitting privileges. The statutes under which the hospital operated did not require that it adopt a special policy respecting the renewal of privileges of doctors at age 65.
The Vancouver General did not form part of the "administrative branch" of government merely because it was incorporated to provide services mandated under the Province's responsibility for health care. A difference between ultimate or extraordinary and routine or regular control must be drawn. While the fate of the hospital is ultimately in the provincial government's hands, the responsibility for routine matters such as the policy on the renewal of admitting privileges lies with the Board and is not subject to government control, barring extraordinary circumstances. The Minister's power to require the hospital to adopt by‑laws or to revise them does not undermine the hospital's responsibility for rules adopted on its own initiative. The Lieutenant Governor's power of appointment was simply a mechanism to ensure the balanced representation of these groups and organizations on the hospital's principal decision‑making body. It was not a means to exercise regular government control over the hospital's day‑to‑day operations.
Had the Charter been applicable, Regulation 5.04 would qualify as a law and the alleged inequality would therefore be one made by "law". The deprivations which arose because of the Board's policy were based on personal characteristics attributed to persons 65 and over and accordingly were discriminatory within the meaning of s. 15(1) of the Charter .
It was thus necessary to consider whether the Regulation and its associated practice constituted a reasonable limit under s. 1 of the Charter . Judicial evaluation of this issue will differ depending on whether the rights of a person have been infringed by the state as "singular antagonist" (as in the criminal law context) or by the state acting to reconcile the claims of competing individuals or groups or to allocate scarce government resources. The courts, in the former situation, will be able to determine with a considerable degree of certainty if the impugned law or other government conduct is the "least drastic means" for achieving the state interest. The same degree of certainty may not be achievable in the latter situation.
The fundamental objective of Regulation 5.04 was sufficiently important to warrant overriding a constitutionally protected guarantee: the promotion of excellence at the Vancouver General as a medical research and teaching centre and as the major acute care hospital in British Columbia.
Regulation 5.04 was rationally connected to the hospital's objective. Staff positions at any hospital are a scarce resource that does not expand at a rate proportionate with the growth in the medical profession. Regulation 5.04 ensured that staff positions would regularly become available for younger doctors recently trained in the latest medical procedures and that this turnover would occur before the decline of ability which usually accompanies advancing age.
Special considerations apply in cases concerned with measures that relate directly to the allocation of resources or that attempt to strike a balance between competing social groups. In such cases, neither the experience of judges nor the institutional limitations of judicial decision‑making prepares a court to make a precise determination as to where the balance between legislative objective and the protection of individual or group rights and freedoms is to be drawn.
The Board had a "reasonable basis" for concluding that Regulation 5.04 and the policy by which it was applied impaired respondents' rights of equality "as little as possible" given its pressing and substantial objective. Regulation 5.04 attempts to strike a balance between young doctors seeking to commence a practice and doctors who have been engaged in practice for some time with respect to their mutual demand for privileges. The Board was amply justified, given the climate of budgetary restraint, in concluding that its ability to bring new doctors on staff depended on the timely retirement of some of those already there. Moreover, it acted reasonably in concluding that retirement policy would ensure the departure from staff of those who would generally be less able to contribute to the hospital's sophisticated practice. The Board recognized, however, that the assumption of declining ability with age would not hold true in all circumstances and provided for an exception where the physician had something unique to offer the hospital. This exemption necessarily operated with regard to the hospital's requirements, rather than with regard to each individual doctor's health and capabilities, because of the overriding objective of making staff positions available to doctors recently trained in the latest theories and methods.
The only alternative to Regulation 5.04 was a program of skills testing or performance evaluation. Such a program would be costly both to implement and operate and, more importantly, would have an invidious and disruptive effect on the medical staff's working environment.
Per Sopinka J.: The reasons of La Forest J. were agreed with except on the issue of whether Regulation 5.04 was law within the meaning of s. 15(1) of the Charter . That issue should not be decided on the basis of an assumption that the hospital is part of government.
Per Wilson J. (dissenting): Section 32 of the Charter extends the reach of the Charter to all those entities and activities that could be construed as "governmental". The criteria relevant in determining whether an entity is subject to the Charter include: (1) whether the legislative, executive or administrative branch of government exercises general control over the entity in question; (2) whether the entity performs a traditional government function or one recognized in more modern times as being a state responsibility; and (3) whether the entity acts pursuant to statutory authority specifically granted to further an objective that government seeks to promote in the broader public interest.
The fact that the Hospital is established and operates pursuant to statutory authority, is heavily regulated by government and discharges a traditional government function in the public interest brings it within the concept of "government" for purposes of s. 32 . The power to retire flowed from the Vancouver General Hospital Act and Regulation 5.04 which was passed pursuant to it. Regulation 5.04 was therefore subject to review under s. 15 of the Charter . It was not necessary to determine whether s. 15(1) would apply absent a legislative provision mandating the discriminatory action.
The Court should be wary of underestimating the discriminatory effect of any given measure when considering whether a provision violates s. 15(1) . Here, the Regulation provided for non‑discriminatory exceptions on its face and yet the principle behind the measure remained constitutionally unsound. By its terms Regulation 5.04 stipulated that staff were expected to retire at age 65. In this way the unarticulated premise remained that with increasing age comes increasing incompetence and decreasing ability. It was clearly discriminatory to impose the burden of disproving this stereotype upon those who already suffer the burden of stereotype and prejudice. That the Regulation provided for exceptions did not detract from the fact that the central concept animating the provision fell foul of s. 15(1) . Exemption schemes are properly a matter for consideration under s. 1 of the Charter .
The objective of maintaining the Vancouver General as an acute care and teaching hospital with the highest standard of modern medical care, education and research was sufficiently important to override a Charter right and so meets the first branch of the Oakes test. The objective of promoting opportunities for other (younger) physicians to practise medicine, however, did not meet the first branch of the test. The Hospital's claim that its system was "closed" was not proven: constitutional rights will be curtailed only in response to real and not illusory problems.
Whether the foundations of prejudice are based upon observable, reliable facts must be approached in the most cautious manner. It is a matter of common knowledge that with the aging process comes some measure of change in ability, although the nature and extent of that change vary from individual to individual. A rational connection exists between the desire to provide top quality medical care and the decision to have such care provided substantially by younger members of the medical profession.
This was not an appropriate case for relaxing the minimal impairment test articulated in Oakes for the reasons given in McKinney. The Hospital was not a closed system and permitting physicians to retain their privileges would have no effect on the availability of practice opportunities for doctors embarking upon their careers. There was accordingly no reason in fact or in law for applying a deferential standard of review.
Other ways of achieving the objective of high quality medical care which recognizes the abilities of individual doctors aged 65 and over exist. Annual performance reviews were not shown to be unsatisfactory in "weeding out" incompetent doctors. Indeed, the primary reason for changing the practice was that it was administratively more convenient to remove incompetent physicians through the mechanism of mandatory retirement. Administrative convenience is not an adequate reason for sacrificing Charter rights.
In discrimination claims of the kind involved here, the guarantee of equality in s. 15(1) must at least mean that, wherever possible, an attempt be made to break free of the apathy of stereotyping and that a sincere effort be made to treat all individuals, whatever their colour, race, sex or age, as individuals deserving of recognition on the basis of their unique talents and abilities. Respect for the dignity of every member of society demands no less. Section 15(1) does not guarantee the right to work but the right to work absent discrimination. Accordingly, Regulation 5.04 would have been reasonable and demonstrably justifiable if it had provided in word and in effect for a bona fide exemption scheme contemplating the continued employment of those able and willing to work.
Per L'Heureux‑Dubé J. (dissenting): Under the broad test developed by Wilson J. in McKinney v. University of Guelph, Vancouver General Hospital is acting as "government" for the purposes of s. 32 of the Charter . In Canada, both historically and even more so today in terms of function, hospitals are an "arm of government" and perform a government function. An appointed hospital board may enjoy a certain independence in formulating policies, as in Regulation 5.04, but the situation is similar to that of government departments setting up their own agenda and policies, subject only to general guidelines established by the legislature. This situation is totally different from that of universities where government involvement is primarily limited to funding. There may be some instances, however, where a hospital would not constitute "government" and so not attract Charter review.
For the reasons given by La Forest J., Regulation 5.04 is "law" for the purposes of s. 15 of the Charter and clearly infringes s. 15(1) because it discriminates by reason of age. The Regulation was not saved by s. 1 .
Regulation 5.04 was not rationally connected to its objectives. Forcing the end of a career based on age alone does not pass muster under the Charter for age is not determinative of capacity or competence. "New people" do not need to be infused into the Hospital's system to keep it relevant. Competence is threatened by many things, but age is not necessarily one of them.
Special considerations can apply when the courts are forced to choose between two competing social groups in applying the "minimum impairment" aspect of the Oakes formula. The choice to be made here was between competent medical practitioners who happen to be over 65 and competent doctors under 65 usually entering the medical practice. These circumstances did not warrant special considerations. The same standards should be applied to all practitioners in assessing competence. Different and more onerous standards for measuring competence for those over 65 are a grave intrusion into the right to be treated equally. In addition, the Board, did not have all the requisite characteristics of a legislative body considering resource allocation to warrant the application of these special considerations.
The health of the practitioner may be a factor in the review of a practitioner's abilities. Physical deterioration neither occurs at the "threshold" age of 65 nor is necessarily a factor affecting a practitioner's competence. A practitioner's ongoing health problems are a factor in any review of any individual's performance. The requirement that those practitioners over age 65 show they can make a "unique" contribution to the hospital is too onerous and is applied solely because the individual has reached 65. This method of impairing rights is too severe. Convenience in administrative procedures cannot be used as a possible justification for the breach of rights. Retirement can be encouraged while upholding the dignity of the individual by means more carefully tailored to impairing rights as little as possible.
Per Cory J. (dissenting): The reasons and proposed disposition of Wilson J. were agreed with. For the reasons expressed by La Forest J., the balancing exercise which the Court must undertake in applying s. 1 must be sensitive and not mechanistic.
Substantial differences exist between universities and hospitals and those considerations which applied to universities did not have the same import in the case of hospitals. There was no employment contract struck between the doctors and the hospital and the mandatory retirement policy was not supported by the Medical Association.
Regulation 5.04 could not be justified under the Oakes test. The testing procedure in effect, whereby doctors are reviewed or tested once a year, was sufficient in itself to demonstrate that the s. 1 requirements could not be met. A continuous testing of the skills of all doctors regardless of age during the time of their association with a hospital is essential for the successful operation of the hospital. In the hospital setting this essential testing does not adversely affect any collegiality that may exist.
Cases Cited
By La Forest J.
Applied: McKinney v. University of Guelph, [1990] 3 S.C.R. 229; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; considered: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; distinguished: Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Re McCutcheon and City of Toronto (1983), 147 D.L.R. (3d) 193; Re Klein and Law Society of Upper Canada (1985), 16 D.L.R. (4th) 489; referred to: R. v. Oakes, [1986] 1 S.C.R. 103; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Roth v. United States, 354 U.S. 476 (1957); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
By Sopinka J.
Applied: McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
By Wilson J. (dissenting)
McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
By L'Heureux‑Dubé J. (dissenting)
McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Oakes, [1986] 1 S.C.R. 103; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
Statutes and Regulations Cited
Act Respecting the Ministère de la santé et des services sociaux, R.S.Q., c. M‑19.2.
Act to appropriate certain sums of money for the support of the Emigrant Hospital at Quebec and of the Fever Hospital at Point Levi, and for other purposes therein mentioned, S.L.C. 1832, c. 15.
Act to establish a Board of Health in the City and County of Saint John, S.N.B. 1855, c. 40, s. 11.
Act to grant a sum of Money to His Majesty in aid of the York Hospital, S.U.C. 1830, c. 31.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15(1) , 32(1) (a),(b).
Charity Aid Act, R.S.O. 1877, c. 223.
Constitution Act, 1867, ss. 92(7) , 133 .
Constitution Act, 1982, s. 52 .
General Hospital Act, C.S.M. 1880, c. 26.
Health Act, R.S.B.C. 1897, c. 91.
Hospital Act, R.S.B.C. 1979, c. 176, ss. 1, 2(1)(a), (c), (d), (3), 4, 18, 30, 32, 36(1), (2), (3), (4), 37, 40, 41, 41(1), 44, 45.
Hospital Act Regulations, B.C. Reg. 289/73, ss. 2, 3, 4, 5, 6, 8.
Hospitals Act, R.S.A. 1980, c. H‑11.
Hospital Standards Act, R.S.S. 1978, c. H‑10.
Human Rights Act, S.B.C. 1984, c. 22, s. 15.
Insane Asylums Act, C.S.B.C. 1888, c. 61.
Regulations Governing the Medical and Allied Professional Staff and Practice Within the Hospital, Medical Staff Regulation 5.04.
Of Local Hospitals, R.S.N.S. 1900, Title VI, c. 47.
Ordinance for promoting the Public Health in the Colony of British Columbia, C.S.B.C. 1877, c. 83.
Prison and Asylum Inspection Act, R.S.O. 1877, c. 224, s. 14.
Public Hospitals Act, R.S.O. 1980, c. 410.
Vancouver General Hospital Act, S.B.C. 1970, c. 55, ss. 2(1)(a), (b), (c), (d), 5, 6, 6(b), 11, 32.
Vancouver General Hospital By‑laws, Art. 2, s. 1, Art. 4, s. 2, Art. 6.
Authors Cited
McDougal, Myres S., Harold D. Lasswell and Lung-chu Chen. Human Rights and World Public Order. New Haven: Yale University Press, 1980.
APPEAL from a judgment of the British Columbia Court of Appeal (1988), 21 B.C.L.R. (2d) 165, 49 D.L.R. (4th) 727, [1988] 2 W.W.R. 708, 40 C.R.R. 236, dismissing an appeal from a judgment of Taylor J. (1986), 30 D.L.R. (4th) 700, [1986] 6 W.W.R. 23, 25 C.R.R. 16. Appeal allowed and the plaintiffs' action dismissed, Wilson, L'Heureux‑Dubé and Cory JJ. dissenting.
Brian A. Crane, Q.C., and Adam Whitcombe, for the appellants.
Peter A. Gall, Donald J. Jordan, Q.C., Robin Elliot and Susan P. Arnold, for the respondents.
Duff Friesen, Q.C., and Virginia McRae Lajeunesse, for the intervener the Attorney General of Canada.
Janet E. Minor and Robert E. Charney, for the intervener the Attorney General for Ontario.
E. R. A. Edwards, Q.C., and George H. Copley, for the intervener the Attorney General of British Columbia.
//La Forest J.//
The judgment of Dickson C.J. and La Forest and Gonthier JJ. was delivered by
LA FOREST J. -- This appeal raises many of the same questions addressed in this Court's decision in McKinney v. University of Guelph, [1990] 3 S.C.R. 229. The application of s. 15(1) of the Canadian Charter of Rights and Freedoms to mandatory retirement is again in issue, although it arises in this appeal in the context of a decision by the Vancouver General Hospital not to renew the admitting privileges of doctors who reach the age of 65. Like McKinney, this appeal raises the following broad issues:
(a)whether s. 15 of the Charter applies to the Vancouver General;
(b)assuming it does, whether the hospital's policy of not renewing the admitting privileges of doctors who reach the age of 65 violates s. 15(1) of the Charter ;
(c)whether, if such violation exists, it is justifiable under s. 1 of the Charter .
It should be noted that, unlike McKinney, no reference is made to the application of s. 15 to the British Columbia Human Rights Act, S.B.C. 1984, c. 22. That is because the respondents were not employees of the Vancouver General in the way that the appellants in McKinney were employees of the respondent universities. This was conceded in argument before us. Independently of that concession, it is clear that the respondents did not receive or perform work at the direction of the hospital; nor were they paid by it. Their relationship to the hospital consisted solely of their admitting privileges. Of course, these privileges allowed for access to facilities which in turn assisted respondents in treating their patients, but this did not make them employees of the hospital. It follows that they do not come within the protection against age-based discrimination found in the Act, since that protection is limited to those who experience age-based discrimination in the context of employment. No issue, therefore, arises as to whether the limitation of the prohibition in the Act against discrimination in employment on grounds of age to persons between the ages of 40 and 65 violates s. 15(1) of the Charter .
I should also add that s. 7 of the Charter was originally relied on, but during the argument counsel for the respondents conceded that reliance on this provision was unnecessary and that it was not at issue in this appeal.
Facts
The appellant is the major acute care hospital for the Province of British Columbia and handles about 18,000 high risk patients per year. It is also one of the principal teaching hospitals in the Province. In 1985-86, it had an operating budget of $175 million and employed about 6,000 people. Nearly 1,000 doctors practise at the hospital, about three quarters of whom are specialists. With the exception of those who are general practitioners, all the doctors who practise there are required to hold a teaching appointment at the University of British Columbia.
As already mentioned, it would be incorrect to say that the Vancouver General employs doctors. Doctors are retained by their patients and are paid through the provincial medicare plan. Those who practise at the Vancouver General do so by virtue of admitting privileges granted to them on an annual basis. These privileges carry the right to book patients into the hospital, to assume primary responsibility for a patient's treatment and, in the case of a surgeon, to book operating rooms. They also allow doctors to have a voice in the affairs of the hospital. While it was at one time customary for doctors to have admitting privileges at more than one hospital, this is no longer the case, at least in Vancouver.
Decisions as to the granting and renewal of admitting privileges are made by the hospital's Board of Trustees which, by ss. 5 and 6 of the Vancouver General Hospital Act, S.B.C. 1970, c. 55, is empowered to manage the property and affairs of the hospital and to pass by-laws for the purpose. Under that Act, the Vancouver General, originally incorporated in 1902, is continued as a corporation endowed with the power to operate a hospital, acquire and dispose of land and personal property, and, subject to the approval of the Minister of Health, carry on a teaching function.
The composition of the Board of Trustees is laid down in the by-laws of the hospital. By the combined operation of Articles 2(1) and 4(2), it is comprised of the following members:
(a)Fourteen persons appointed for a term of three years by the Lieutenant-Governor in Council as follows:
(i) Two persons appointed from nominees submitted by the President of The University of British Columbia;
(ii)Two persons appointed from nominees submitted by the British Columbia Health Association;
(iii)Two persons appointed from nominees submitted by the Board of Vancouver General Hospital;
(iv)One person appointed from nominees submitted by the British Columbia Institute of Technology;
(v) Seven persons appointed from the Community at large;
(b)The Chairman of the Medical Advisory Board; and
(c)The President appointed under these By-Laws.
As can be seen, the government has power to appoint 14 of the 16 members of the Board. It must be underlined, however, that half of these are really nominees of specific groups, including the hospital, and the remaining are intended to represent "the Community at large". The government appointees serve for rotating, but renewable, terms of three years; see Article 4(2). The other two members, the President and the Chairman of the hospital's Medical Advisory Board, are not government appointees, but are selected by the hospital.
The Act provides for a means for governmental supervision by requiring that the by-laws be approved by the Minister of Health before coming into effect (s. 6(b)). This is reinforced by the provisions of the general statute regulating hospitals in the Province, the Hospital Act, R.S.B.C. 1979, c. 176, to which the Vancouver General is also subject. For present purposes the relevant provisions of the latter Act are ss. 2 and 32. Section 2 provides, in part, as follows:
2. (1) Every hospital as defined under section 1 , except hospitals owned by the Province or by Canada, shall
(a)make provision for the representation of the Provincial government and the board of the regional hospital district on the board of management of the hospital to the extent and in the manner provided;
. . .
(c)have a properly constituted board of management and bylaws or rules thought necessary by the minister for the administration and management of the hospital's affairs and the provision of a high standard of care and treatment for patients, and the constitution and bylaws or rules of a hospital are not effective until approved by the minister;
(d)comply with further conditions prescribed by the Lieutenant Governor in Council.
. . .
(3) Notwithstanding any other Act, or the constitution, bylaws or rules of a hospital, for this section, the Lieutenant Governor in Council may appoint a person or persons to represent the Provincial government on the board of management of a hospital for a term not exceeding 2 years or until his successor is appointed.
Section 32 provides:
32. The minister may require that the bylaws or rules of a hospital or a society or corporation having among its objects the provision of hospital facilities or the operation of a hospital be revised in a manner satisfactory to him in order to meet changing conditions and policies, and to provide for greater uniformity and efficiency in all matters concerning the administration and operation of hospitals.
The effect of these provisions may thus be summarized. Section 2(1)(c) and s. 32 extend the Minister's power in respect to the by-laws of the Vancouver General beyond the negative power of veto set out in s. 6 of the Vancouver General Hospital Act. Together, they confer on the Minister the positive power to require the Board of Trustees to adopt new by-laws or change existing by-laws. Sections 2(1)(a) and (3) provide for the direct representation of the provincial government on the Board, the former imposing an obligation on the hospital to allow for such representation, the latter conferring a power of appointment on the Lieutenant Governor in Council.
In this legislative context, the Board approved Medical Staff Regulation 5.04 in May of 1984, which was then approved by the Minister of Health. Regulation 5.04 provides as follows:
5.04 Retirement: Members of the Staff shall be expected to retire at the end of the appointment year in which they pass their 65th birthday. Members of the Staff who wish to defer their retirement may make special application to the Board. The Board shall request the Medical Advisory Committee for a recommendation in each such case. The Medical Advisory Committee shall, in making its recommendation, consider the report of a personal interview which shall take place between the applicant and the Department Head concerned which shall include a review of the health and continuing performance of the applicant.
In implementing this Regulation, the Board seems to have operated on the view that all physicians were expected to retire on their 65th birthday unless it could be shown that they "had something unique to offer the hospital". On this basis the Board, on May 31, 1985, decided not to renew the admitting privileges of most of the respondents to this appeal, all of whom had turned 65 and most of whom were general practitioners.
The respondents commenced these proceedings to set aside the decision of the Board and to obtain a declaration that Regulation 5.04, either by its terms or by the manner of its application, violated ss. 7 and 15 of the Charter . The respondents also argued that the Regulation or the manner of its application was contrary to the Human Rights Act. An interim injunction restraining the Board from limiting or removing the admitting privileges of the respondents pending the outcome of respondents' application under the Charter and the Human Rights Act was issued by McKenzie J. of the British Columbia Supreme Court on June 27, 1985. His decision was upheld by the British Columbia Court of Appeal. Judgment in favour of the respondents' application was later given by Taylor J. of the same court on July 23, 1986, and the British Columbia Court of Appeal dismissed the appellants' appeal in a decision rendered on January 6, 1988. In doing so, it found it unnecessary to reach any conclusion as to the effect or application of the Human Rights Act. Leave to appeal to this Court was granted on April 21, 1988.
Judicial History
British Columbia Supreme Court (1986), 30 D.L.R. (4th) 700
Taylor J., we saw, found in favour of the respondents' application. He held that the Charter applied both to the enactment of Regulation 5.04 and the manner in which it was applied by the Board. In respect to the former conclusion, he pointed to the facts that 14 of the 16 trustees who adopted the Regulation were appointed directly by the Lieutenant Governor in Council, and that under the Vancouver General Hospital Act, by-laws of the Board only came into effect if approved by the Minister of Health. From this he concluded, at p. 704, that "the provincial government effectively controls the affairs of the hospital". Taylor J. amplified this conclusion, at p. 704, by pointing to the "broad ministerial supervision" to which the Vancouver General was subject by virtue of the terms of the Hospital Act. After noting that s. 2(1)(c) of the latter Act required the Board to "have such by-laws and other rules as the Minister deems necessary", he concluded, at pp. 704-705, that the phrase "government of each province" in s. 32(1) (b) of the Charter
. . . extends not only to actual provincial ministries and to entities created by a provincial government which exercise governmental authority, but also to agencies set up by a provincial government which carry out government functions under government control without exercising governmental powers, that is to say those vested only with organizational powers which provide government services to the public, provided at least that the conduct in question relates to the provision of government services.
Applying this conclusion to the case, Taylor J. found, at p. 705, that the "management of the Vancouver General Hospital is for practical purposes as fully under provincial government direction and control as would have been the case had it been operated within a ministry".
As to the question of whether the Charter applied to the conduct of the Board in implementing Regulation 5.04, Taylor J. was of the opinion, at p. 705, that "since regulations made by the trustees are, as I have found, governmental in nature, and therefore subject to the Charter , it follows that the way in which those rules are applied must be subject to the same constraints". He added that the "enactment, approval and application of the regulation involved the creation and administration of `law' as that word is used in s. 15(1) " of the Charter .
Turning to s. 15(1) and the argument of the respondents that they had been discriminated against on the basis of age, Taylor J. held that Regulation 5.04 did not by itself constitute a contravention of s. 15(1) . After holding that age-based distinctions were to be found discriminatory if it were shown that "age is entirely irrelevant in the context" or that the consequences for those affected by the distinction "are clearly beyond anything which can reasonably and fairly be justified by any legitimate purpose served" (at p. 708), Taylor J. found nothing discriminatory in the Vancouver General's use of the concept of an "expected retirement age" in the making of decisions as to the renewal of admitting privileges. This was because it was obvious that age was relevant to one's ability to practise medicine. As well, the burden it placed on older doctors was consistent with their duty, as professionals, to ensure that others were trained in their calling and to pass on their own practices while they were themselves still able to practise efficiently. With respect to the question of whether 65 was the appropriate "expected retirement age", Taylor J. concluded, at p. 708, that it was within "a range which reasonable, fair-minded people would accept". As a result, he thought, it would be inappropriate for the court to substitute its opinion as to an appropriate "expected age of retirement" for that of the hospital's Board of Trustees.
Taylor J. came to a different conclusion respecting the respondents' argument that s. 15(1) had been contravened by the manner in which the Board applied Regulation 5.04. With respect to the Board's policy decision not to renew the admitting privileges of any doctor who came within the Regulation unless it was shown that they "had something unique to offer the hospital", he stated, at pp. 716-17:
By deciding to reject the applications of all doctors over 65 who lack unique skills, the trustees added a requirement which effectively denied those over 65 the right to be judged on the basis of "health and continuing performance", the criteria which the regulation indicated would be considered in deciding whether their privileges would be continued. The plaintiffs were plainly denied the benefit of Reg. 5:04, and equal benefit of the hospital regulations generally, solely on the basis of age, and with no concomitant benefit to others. The policy was adopted essentially for administrative convenience. I find that this was neither reasonable nor, in the relevant sense, "fair".
On these grounds Taylor J. concluded that the application of Regulation 5.04 amounted to discrimination on the basis o