The appellants were Deaf persons who wished to have the use of American Sign Language (ASL) interpreters with their doctors in hospitals covered by their health insurance. There had been a privately funded company that had supplied this in the past, but they had to discontinue service because of a lack of funding. The appellants claim that because of the communication barrier that exists between them and their doctors, they are receiving care of a lesser quality, and that this infringes on their right to equal benefit of the law without discrimination based on physical disability under s.15(1) of the Charter. The appellants were unsuccessful at the lower courts.
- Does the failure to provide sign language interpreters as an insured benefit under the Medical and Health Care Services Act violate s.15(1) of the Charter?
- Is it the relevant statutes themselves that are violating the Charter, or the actions of the hospitals that were relegated to them by the legislature?
- What is the purpose of s.15?
- What is the test to see if s.15 "discrimination" has occurred?
La Forest, writing for a unanimous court, holds that it is not the legislation itself that violates the Charter, as it merely says that all services must be provided equally and does not give specific examples of how the hospitals are to determine which services to provide to which patients. Therefore, the legislation does not violate s.15. However, the Charter definitely applies to action taken under statutory authority, which is exactly what is happening in this case. The governing statutes give the hospitals authority to determine what benefits to provide, however these decisions must be made in ways that are consistent with the Charter. There is nothing in the legislation that prevents the hospitals from providing the interpreters.
La Forest states that government should not be allowed to escape their Charter limitations simply through relegating authority. Thus, if a private entity is acting under statutorily granted authority, their action will be subject to Charter scrutiny. Thus, private entities acting under statutory authority will be deemed to be included in the definition of "government" in s.32. He makes an important distinction, stating that if a private entity is entirely controlled by the government then all of its actions will be subject to Charter scrutiny, whereas in cases like this where only specific parts of a private entity’s actions are granted under statute, only those actions will be subject to the scrutiny.
The court states that there are two main purposes of s.15:
- protecting human dignity, and
- expressing a desire to rectify discrimination against disadvantaged groups.
This does not imply that you must be a member of a disadvantaged group to get protection under s.15, but that helps.
La Forest then lays out the uniform s.15 test:
- there must be a distinction between others;
- the distinction has to be one that imposes burdens or withholds benefits;
- one must show that this discrimination is based on an enumerated or analogous ground.
He goes on to say that there are two main ways to discriminate: assuming things about people that are stereotypical, or failing to take into account how the characteristics of a person change the way that a law affects them. Both of these fall under the definition in s.15.
Applying the test to the case at bar, La Forest finds the behaviour falls under the definition of"discrimination" and is not saved by s.1 as this was not a minimal impairment.
- The Charter applies to actions of private entities that have been given the power to perform these actions under government (statutory) authority.
- If a private entity is completely controlled by the government, then all of their actions will be "government actions" and are subject to the Charter, however, in cases like this where only some of the entity’s actions are granted under government authority, then only those actions will fall under the definition of "government" in s.32 and be subject to the Charter.
- There are two main purposes of s.15:
- protecting human dignity; and
- expressing a desire to rectify discrimination against disadvantaged groups (it is not necessary that you are a member of a disadvantaged group).
- To establish "discrimination" as defined in s.15, you need to prove three things:
- an enumerated or analogous ground; and
- the distinction imposes burdens or withholds benefits.