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 of age within the meaning of s. 15(1) of the Charter. He also found that the application of the Regulation constituted a deprivation of liberty within the meaning of s. 7 of the Charter that was not in accordance with "the principles of fundamental justice".
With respect to s. 1 of the Charter, Taylor J. held, at p. 718, that the qualification the Board placed on Regulation 5.04 was not a "limit prescribed by law", as was required by s. 1, but rather "a limit which they placed on law". He added that even if he had found the policy of the Board to be a "limit prescribed by law", it had not been shown to meet the requirements of s. 1 as a "reasonable limit" on the respondents' rights under ss. 15 and 7.
The Court of Appeal (1988), 21 B.C.L.R. (2d) 165
On appeal, the British Columbia Court of Appeal held that the Charter applied to the hospital both in respect of its passage of Regulation 5.04 and of its application of that Regulation. It was of the opinion, at p. 168, that the "control exercised by the government over the operation of the hospital generally, and the formulation of its retirement policy in particular, put the question beyond doubt". Citing this Court's decision in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, the Court of Appeal stated that the question to be answered was whether the alleged infringement was an act of the legislative, executive or administrative branches of government or was connected to an act of one of these branches of government in a direct and precisely-defined way. It answered this question in the affirmative, stating, at p. 169:
The regulation at issue in these proceedings, Reg. 5:04, was approved by the minister in October 1984. That approval suffices, in our opinion, to establish the direct and precisely defined connection with government referred to in Dolphin Delivery as bringing the act of a non-governmental body under the Charter. The impugned regulation was initiated by an act of the hospital, but it came into force only upon the approval of the executive arm of the provincial government.
The court concluded its consideration of the application issue by stating, at p. 169, that "If Reg. 5:04 falls under the Charter, so does the conduct of those bodies charged with administering it". In its view, this brought the policy of the Board of only renewing the admitting privileges of those doctors who were over 65 who "had something unique to offer the hospital" within the purview of the Charter.
Turning to s. 15(1) of the Charter, the Court of Appeal found that Regulation 5.04 came within the right to equality "before and under the law" guaranteed by that section. This was because Regulation 5.04 was "a rule or system of rules formulated by government and imposed upon the whole or a segment of society" (at p. 169), with the result that it was a law for the purposes of s. 15. As to whether a violation of s. 15(1) had been shown, the Court of Appeal stated, at p. 170, that the question "is whether Reg. 5:04 makes a distinction adverse to the plaintiffs, which can be said to be unreasonable and unfair having due regard to their interests and the interests of others affected by the regulations". Citing evidence showing that the failure of the hospital to renew the admitting privileges of the respondents had meant the curtailment or end of their professional practices, the court found that Regulation 5.04 clearly made a distinction based on age which was adverse to those to whom it applied. It then found that this distinction could not be said to be reasonable and fair. After noting that there was no evidence that any of the respondents were incompetent or had prevented other physicians from obtaining admitting privileges or that physicians over 65 were, as a general rule, unable to perform to the high standards of the hospital, the court held, at pp. 171-72, that:
A regulation terminating admitting privileges at age 65 cannot logically be justified merely because it will prevent the possibility of an incompetent physician being associated with the hospital at some point thereafter. To justify such a provision, a correlation must be shown between the age of 65 and incompetence or other detriment to the operation of the hospital. In the absence of such a correlation, we cannot say that the distinction entailed in requiring retirement at age 65 is reasonable and fair.
The court then considered and rejected the argument that Regulation 5.04 did not lay down a mandatory retirement policy, but simply provided a method for determining whether those over 65 remained fit to practise. In this respect, it observed that although Regulation 5.04 stipulated that "health and continuing performance" were to be considered in determining whether a particular doctor was to be allowed to defer retirement, it did not confine its consideration to those factors. It also observed that Regulation 5.04 was interpreted and applied by the Board as a mandatory retirement provision, since only those doctors with "unique skills" were in fact allowed to defer retirement.
Turning to s. 1 of the Charter, the court held that the objective of Regulation 5.04 -‑ the maintenance of the highest standards of medical care and instruction -‑ was sufficiently important to warrant overriding a constitutionally-protected right. But it found that it had not been shown that the means chosen to achieve this objective were demonstrably justified, having regard to the guidelines set out in this Court's decision in R. v. Oakes, [1986] 1 S.C.R. 103. This was because Regulation 5.04 "must be viewed as unfair and arbitrary in the absence of evidence or other clear indication that there is a correlation between the age of 65 and the inability to practise medicine properly or other detriment to the hospital's operations" (at p. 173). It was also because the failure to show the above-mentioned correlation meant that it "cannot be said that denial of admitting privileges to all physicians who reach that age impairs the rights of those physicians as little as possible having regard to the aim of maintaining high medical standards at the hospital" (at p. 173). Finally, there was a lack of overall proportionality between the object Regulation 5.04 sought to achieve and the means it employed, in which respect the court again returned to the "lack of a convincing link between the age of 65 and the ability of the hospital to deliver the high level of care, teaching and research to which it aspires" (at p. 174).
Having found in favour of the respondents on the s. 15 argument, the Court of Appeal found it unnecessary to consider whether an infringement of s. 7 of the Charter could also be established.
Leave to appeal to this Court was granted and the following constitutional questions were stated by Chief Justice Dickson on August 30, 1988:
1.Do the provisions of the Canadian Charter of Rights and Freedoms apply to the actions of the Vancouver General Hospital in establishing and administering Regulation 5.04 of the Medical Staff Regulations?
2.If the answer to question 1 is yes, is Regulation 5.04 of the Medical Staff Regulations contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
3.If the answer to question 1 is yes, was the administration of Regulation 5.04 of the Medical Staff Regulations by the Vancouver General Hospital contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
4.If the answer to either questions 2 or 3 is yes, is Regulation 5.04 of the Medical Staff Regulations or the manner of its administration by the Vancouver General Hospital nevertheless justified under s. 1 of the Canadian Charter of Rights and Freedoms?
The Attorneys General of Canada, Ontario and of British Columbia intervened.
The Application of the Charter
The question of whether or not the Charter applies in a particular case is to be answered in light of s. 32(1), which reads:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
As I commented in McKinney, these words give a strong message that only government is to be bound by the Charter. Various explanations can be advanced as to why the decision to so limit the Charter was taken, some of which I outlined in McKinney. These include the historical association of bills of rights with the struggle to constrain the exceptional power of government to impose its will upon the individual or minority groups; the belief that the values which a bill of rights seeks to promote and protect can be better and more flexibly achieved in the private sphere if left to the various specialized administrative or quasi-judicial bodies which are mandated and equipped to deal with discrimination in specific social and economic contexts; the concomitant apprehension that a generally applicable bill of rights would have an unduly chilling effect on the confidence which is essential to the meaningful enjoyment of the individual freedom a bill of rights seeks to protect; and the heavy if not impossible burden which application of the Charter to private conduct would impose on the courts.
Other considerations of this sort could and have been suggested. The challenge for the courts is to find a principled basis on which to give effect to the deliberate choice that has been made in favour of a Charter of Rights and Freedoms that applies only to government and its emanations. The leading authority in this respect is, of course, this Court's decision in RWDSU v. Dolphin Delivery Ltd., supra. There McIntyre J., speaking for the Court, observed, at p. 598, that s. 32(1) treated Parliament and the legislatures "as separate or specific branches of government, distinct from the executive branch of government", from which it followed that "where the word `government' is used in s. 32 it refers not to government in its generic sense -‑ meaning the whole of the governmental apparatus of the state -‑ but to a branch of government". On this basis he concluded that "The word `government', following as it does the words `Parliament' and `Legislature', must . . . refer to the executive or administrative branch of government", a conclusion he buttressed by referring to the manner in which the word "government" was used in the Constitution Act, 1867.
In short, McIntyre J. was of the view that the references in s. 32(1) to the "government of Canada" and the "government of each province" could not be interpreted as bringing within the ambit of the Charter the whole of that amorphous entity which in contemporary political theory might be thought of as "the state". Instead, they were to be interpreted as references to what has traditionally been thought of as the institutions of government ‑- those bodies and offices upon which the Constitution confers power to make and enforce laws generally applicable across the body politic. This did not mean that the Charter was only to apply to Parliament, Legislatures and Ministers of the Crown. For although this Court was not called upon in Dolphin Delivery to delineate the circumstances in which the Charter applies to the actions of subordinate bodies that are created, supported or supervised by government, McIntyre J. clearly countenanced the application of the Charter to such bodies by including the "administrative branch" within his definition of the word "government". More specifically, he said, at p. 602:
It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures.
Nor did the Court in Dolphin Delivery preclude the possibility of a successful reliance on the Charter by a party to a dispute between private individuals, provided it could be shown that the party against whom the Charter was invoked relied upon some form of governmental action. As to the question of what would amount to a sufficient element of governmental intervention, McIntyre J. was not called upon to give a determinative answer. However, in the course of a consideration of the circumstances in which the Charter would apply to court orders in private litigation, he did note, at p. 601, that a "more direct and a more precisely-defined connection between the element of government action and the claim advanced" than was shown by the appellant in Dolphin Delivery was required.
The respondents argued that it is unnecessary in this appeal to consider whether the Vancouver General is one of the subordinate bodies to which the Charter applies. They argue that because Regulation 5.04 could only take effect upon the approval of the Minister of Health, its adoption and subsequent administration must be characterized as actions of the executive branch of government, to which the Charter obviously applies. In support of this argument, they cite this Court's decision in Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2).
I do not think that the question of the applicability of the Charter to the facts of this case can be so easily disposed of. To my mind, the fact that Regulation 5.04 only came into effect when approved by the Minister of Health does not alter its character as a regulation for the internal management of the hospital and its staff, which was developed, written and adopted by the authorities entrusted with the ongoing management of the hospital's internal affairs by the terms of the Vancouver General Hospital Act. The evidence does not show that Regulation 5.04 was instigated by the Minister of Health, or that it in any way represents ministerial policy with respect to the renewal of admitting privileges. Instead, it shows that Regulation 5.04 was the end result of an internal review of policies relating to the retirement of medical staff which the hospital undertook at the initiative of its Board of Trustees in 1979. Leaving aside for the moment the question whether the Board should itself be regarded as part of government by virtue of the fact that the vast majority of its members are appointed by the Lieutenant Governor in Council, Regulation 5.04 can, in these circumstances, be interpreted as a recognition that the hospital is accorded a large degree of autonomy with respect to matters relating to its internal management. To put it somewhat differently, there is no reason to assign greater weight to the fact that Regulation 5.04 took effect after being approved by the Minister of Health than is assigned to the fact that it emerged from an internal policy review undertaken independently of the ministry or overall government policy. I agree with the appellants that this view is supported by the evidence that there is considerable variety between the hospital by-laws dealing with retirement that have obtained ministerial approval in British Columbia. This evidence suggests that retirement policy is left to the judgment of those entrusted with the responsibility of managing individual hospitals.
It is particularly difficult to see how the need for ministerial approval can be said to lead to the conclusion that the administration of Regulation 5.04 must be regarded as an action of the executive branch of government. There is absolutely no evidence that the policy of the Board to only renew the admitting privileges of those who came within Regulation 5.04 if they "had something unique to offer the hospital" even came to the attention of the Minister or his staff. The only sense in which the adoption and application of that policy could be said to be the action of the Minister is that it was not precluded by the wording of the by-law approved by the Minister, assuming for the moment that such approval could by itself have made Regulation 5.04 a governmental act. On that reasoning, however, the organs of government would be responsible, and the Charter would apply, to all actions which in any way turned on the interpretation of the Regulation.
I do not think the respondents' argument in this respect is assisted by Blaikie No. 2, supra. The question in that case was as to the scope of s. 133 of the Constitution Act, 1867. This Court held that s. 133 applied not only to statutes enacted by the Legislature of the Province of Quebec, but also to the regulations and orders of statutory bodies, provided there was some connection between those regulations or orders, apart from the delegation of the power to enact them, and the Quebec Legislature to which s. 133 is by its terms limited. Citing the principle that "in our constitutional system the enactments of the Government should be assimilated with the enactments of the Legislature", the Court concluded, at p. 329, that subsidiary regulations and orders fell within s. 133 whenever "these other regulations are made subject to the approval of the Government". It stated, at p. 329:
The particular form of words used in this respect by various statutes matters little. Whether it be provided that some regulations "shall have no force and effect until approved and sanctioned by the Lieutenant-Governor in Council" or "shall not be carried into execution until approved by the Lieutenant-Governor in Council" or "shall not have force and effect until confirmed by the Lieutenant-Governor in Council", they can be assimilated with the enactments of the Government and therefore of the Legislature as long as positive action of the Government is required to breathe life into them. Without such approval or confirmation, they are a nullity . . . or at least inoperative.
Relying on this statement, the respondents argue that the fact that the by-laws of the Vancouver General only come into force on receiving the approval of the Minister of Health should bring them within the compass of s. 32(1) of the Charter in the same way that the need for executive approval brings the regulations and orders of subsidiary bodies of the Government of Quebec within the compass of s. 133. It must be remembered however, that whereas s. 133 relates to the scope of a specific, albeit important, interest or right, s. 32(1) relates to the scope of a comprehensive bill of rights encompassing many different types of rights and freedoms and, thus, many different aspects of government activity. I do not think that what the Court has said with regard to the scope of the former is neatly transferable to the task of delimiting the scope of the latter. It should also be noted that the following statement appears in the introduction to this Court's decision in Blaikie No. 2, at p. 319:
It must be emphasized that regulations or orders in issue in the case at bar are regulations or orders which constitute delegated legislation properly so called and not rules or directives of internal management.
Pursuant to what I have said above, I would think it clear that Regulation 5.04, concerned as it is with the retirement of medical staff, is not delegated legislation, but is quintessentially a "rule or directive of internal management". It follows that it is not the type of regulation the Court had in mind when setting out the boundaries of s. 133. The requirement of approval by the government is nothing more than a mechanism to ensure that the hospital's actions do not run counter to the powers conferred on the government by the legislature to prescribe standards in respect of hospital administration. It is a mere supervisory power to that end. It does not displace the ongoing responsibility of its Board to manage the affairs of the hospital for the benefit of the community.
In light of the foregoing, I would conclude that neither Regulation 5.04 or its administration can properly be said to be acts of the executive branch of government. I take it to be self-evident that they cannot be regarded as acts of the legislative branch of government, as there does not appear to be any provision in either of the statutes under which the Vancouver General operates that requires it to adopt a special policy respecting the renewal of admitting privileges of doctors who have reached the age of 65. There is certainly nothing in the relevant statute law that requires the adoption of the particular policy which the hospital has in fact adopted. The question therefore becomes whether the Vancouver General is part of what McIntyre J. designated the "administrative branch" of government.
This question cannot be answered by simply pointing out that the provision of health care and hospital services is an important part of the legislative mandate of provincial governments, and that the Vancouver General was incorporated for the express purpose of providing such care and services. If that was by itself sufficient to bring the hospital and all other bodies and individuals concerned with the provision of health care or hospital services within the reach of the Charter, a wide range of institutions and organizations commonly regarded as part of the private sector, from airlines, railways, and banks, to trade unions, symphonies and other cultural organizations, would also come under the Charter. For each of these entities, along with many others, are concerned with the provision of a service which is an important part of the legislative mandate of one or the other level of government.
In short, as in McKinney, we must look beyond the fact that the Vancouver General is an incorporated body which performs an important public service. In this regard the respondents adopt the findings of the Court of Appeal as to the degree and significance of government involvement in the operation of the Vancouver General. In concluding that the hospital was controlled by the Government of British Columbia and therefore subject to the Charter, the Court of Appeal summarized, at pp. 168-69, what it took to be the relevant provisions of the Hospital Act in the following terms:
Section 2(1) requires the hospital to make room for government representation on its management board in whatever manner the government thinks necessary; to have a board and by-laws thought necessary by the minister and any constitution, by-laws or rules are ineffective without ministerial approval; and to comply with the conditions prescribed by the Lieutenant Governor in Council ‑- a provision which leaves it open for the Lieutenant Governor to set virtually any requirement deemed appropriate.
Section 2(3) gives government an unassailable right to appoint persons to the hospital management board. Section 32 states that the minister may require that by-laws be revised to his satisfaction and s. 36(1) permits the Lieutenant Governor to make any additional regulations he thinks necessary ‑ regulations which under s. 36(3) may include virtually all aspects of running the hospital. Section 41(1) provides for additional ministerial control where hospitals receive money for building, and s. 44(4) and (6) allows the government to appoint a public administrator to manage the hospital and displace the board. That administrator can be given total control of the hospital (s. 44(5)), governed by conditions set by the Lieutenant Governor in Council.
The effective control of the hospital by the government is affirmed by the Vancouver General Hospital Act, which states that by-laws passed by the hospital's board come into force only when approved by the minister: s. 6.
While I accept this summary as substantially accurate, I respectfully disagree with the view of the Court of Appeal that it reveals governmental control of a character and quality that would justify application of the Charter. I have already given my opinion as to the limited significance of the requirement that the hospital's by-laws be approved by the Minister of Health. I also think that it is not very significant that the Hospital Act provides for ministerial control in respect of the use which the hospital makes of any grant received from the Province toward, in the words of s. 41(1), "the planning, constructing, reconstructing, purchasing and equipping of a hospital . . . or the acquiring of land or buildings for hospital purposes". The fact that the Vancouver General is not autonomous when it comes to the use of money given to it by the government for specific capital investments says little regarding the degree of autonomy it enjoys overall. If anything, it suggests that direct government involvement in hospital decision-making is the exception rather than the rule.
This point can be made with even greater force with respect to s. 36(1), which permits the Lieutenant Governor in Council to make such additional regulations as he thinks necessary, and s. 44, which provides for the appointment of a public administrator and the displacement of the Board. When it is considered that the power of the Minister under s. 36(1) is to make "any regulations deemed necessary for the carrying out of the provisions of this Act to meet any contingency not expressly provided for in it" (emphasis added), it becomes clear that both provisions have nothing to do with the day-to-day operation of the hospitals to which they apply. Instead, they make allowance for those exceptional circumstances where a high degree of direct government involvement in the management of a hospital is deemed to have become necessary. Again, the fact that the Act makes special allowance for ministerial intervention in these situations indicates that it assumes that the management of a hospital would ordinarily be a matter for the judgment of its own Board of Trustees.
In sum, it is crucial in assessing the statutory framework summarized by the Court of Appeal to bear in mind the difference between ultimate or extraordinary, and routine or regular control. While it is indisputable that the fate of the Vancouver General is ultimately in the hands of the Government of British Columbia, I do not think it can be said that the Hospital Act makes the daily or routine aspects of the hospital's operation, such as the adoption of policy with respect to the renewal of the admitting privileges of medical staff, subject to government control. On the contrary, it implies that the responsibility for such matters will, barring some extraordinary development, rest with the Vancouver General's Board of Trustees. It could in fact be said to contain an explicit recognition to this effect, in that it defines "board of management" as "the directors, managers, trustees or other body of persons having the control and management of a hospital" (s. 1). To similar effect is s. 5 of the Vancouver General Hospital Act, which provides that the "property and affairs of the corporation shall be managed by a Board of Trustees". These two provisions would be meaningless unless the Hospital Act is interpreted in accordance with the distinction between ultimate or extraordinary, and routine or regular control which I have described above.
To this, it may be objected that the Board of Trustees is itself an extension of the Minister of Health and an instrument of government policy. Such an objection could draw support from s. 2(1) of the Hospital Act, which imposes a duty on all hospitals to have the "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". It could also draw support from s. 32, which empowers the Minister to "require that the bylaws or rules 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". Finally, it could be said that the subservient status of the Board of Trustees is plainly indicated by s. 2(3), which gives the government what the Court of Appeal called an "unassailable right to appoint persons to the hospital management board". As the respondents point out, the government appoints 14 of the 16 members of the Vancouver General's Board of Trustees.
To this argument I would make the following rejoinders. First, I do not think the fact that the Board of Trustees can be required to adopt by-laws that are thought necessary by the Minister of Health can undermine its responsibility for by-laws or rules, such as Regulation 5.04, which it adopts on its own initiative and pursuant to its own sense of what is in the best interests of the Vancouver General. The same can be said with respect to the Minister's power to order a revision of a hospital's by-laws, at least until such revision has actually been ordered.
As to the Lieutenant Governor's power to appoint members of the Board, while it is true, as noted, that the hospital's by-laws provide for the appointment of fourteen members of the Board of Trustees by the Lieutenant Governor in Council, it then specifies that two are to be appointed from each of the lists of nominees submitted by the President of The University of British Columbia, the British Columbia Health Association and the Board of the Vancouver General itself. One is to be appointed from nominees submitted by the British Columbia Institute of Technology, while seven members are to be appointed "from the Community at large". What this shows, I think, is that the Lieutenant Governor's power of appointment is far less discretionary than the respondents contend. It also shows, especially when it is remembered that the two remaining members of the Board are the hospital's President and the Chairman of the hospital's Medical Advisory Committee, that no member of the Board sits as the representative of the Minister of Health or the government generally. Instead, each sits as a representative of one of the groups or organizations that have a direct interest in the Vancouver General and the service it provides. It is not going too far to say that the Lieutenant Governor's power of appointment is, in light of Article 2, simply a mechanism to ensure the balanced representation of these groups and organizations on the hospital's principal decision-making body. It is not a means for the exercise of regular government control over the day-to-day operations of the hospital. This conclusion is supported by the fact that under s. 2 of Article 2, appointments to the Board are for fixed terms.
On the basis of the foregoing, I would conclude that the appellant hospital does not form part of government within the meaning of s. 32 of the Charter. It follows that its actions in adopting and administering Regulation 5.04 do not fall within the ambit of the Charter. I would add 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 it follows from what I have said above that 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. The case differs in this respect from the cases of Re McCutcheon and City of Toronto (1983), 147 D.L.R. (3d) 193 (Ont. H.C.), and Re Klein and Law Society of Upper Canada (1985), 16 D.L.R. (4th) 489 (Ont. Div. Ct.), assuming those cases to have been correctly decided. 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.
These conclusions are sufficient to dispose of this appeal in favour of the appellant hospital. However, as in McKinney, I shall also deal with the case on the assumption that the Vancouver General is a part of government and discuss the issue of whether Regulation 5.04 and the actions taken in its application violate s. 15 of the Charter.
Section 15 of the Charter
On the assumption that the Vancouver General is part of government within the meaning of s. 32, I now propose to deal with the question whether its policy of not renewing the admitting privileges of doctors who have reached the age of 65 unless they have "something unique to offer the hospital" violates s. 15 of the Charter.
In the first instance, the answer to this question depends on whether the alleged inequality is one made by "law". I think it obvious that Regulation 5.04, if made by government, would qualify as a law, and that it is unnecessary to explain its characterization as such at any great length. This is in this respect a much clearer case than McKinney, as there is no question in this case of the challenged conduct's being the outcome of negotiations with the representatives of those who claim a violation of their s. 15 rights. It is also clear that the "law" in question comprehends not just Regulation 5.04 alone, but the policy which is followed in its application to those who come within its terms as well. It would be incongruous if our entitlement to equality "before and under the law" and to the "equal protection and equal benefit of the law" did not reach the manner in which a law was interpreted and enforced by those charged with its operation. It will often be this process of interpretation and enforcement that determines the impact that a law has on the lives of those who come within its scope. These views accord with this Court's decision in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, as well as with the remarks of Linden J. in Re McCutcheon and City of Toronto, supra, at p. 202. They also accord with the jurisprudence of the Supreme Court of the United States, in which it is clear that constitutional protection against discriminatory state action is not limited to the legislative context; see Regents of University of California v. Bakke, 438 U.S. 265 (1978); Roth v. United States, 354 U.S. 476 (1957).
Having determined that Regulation 5.04 and the policy that the Board of Trustees adopted as a guide to its application come within the sphere of constitutional protection afforded by s. 15, the question becomes whether they are discriminatory in light of this Court's decision in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. As in the case of the university policies of mandatory retirement considered in McKinney, I think it would be difficult to argue that they are not. They make a distinction based on age, one of the personal characteristics enumerated in s. 15(1). It is a distinction which is clearly discriminatory within the test set out by this Court in Andrews. In this regard, the following statement, taken from the reasons of McIntyre J., at pp. 174-75, is representative of the Court's reasoning:
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
There is no doubt that Regulation 5.04 and the associated policy of the Vancouver General's Board of Trustees impose a burden on doctors who practise at the hospital and who have turned 65 which is not imposed on their colleagues of a younger age. The evidence shows that for most of the respondents, the hospital's refusal to renew their admitting privileges will mean that they will have to drastically curtail their practices. For some, it will mean the end of their practices. In short, Regulation 5.04 as applied by the Board of Trustees will mean that the respondents are being forced either into partial or full retirement. The loss this can entail for a person's physical and psychological well-being is serious. In Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, employment was described in the following terms, at p. 368:
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
McDougal, Lasswell and Chen, Human Rights and World Public Order (1980), have described the "traumatic impact of the sudden loss of accustomed roles, precipitated by involuntary retirement" (at p. 781). The effect of Regulation 5.04 and the associated policy of the Board of Trustees is to impose these deprivations on the basis of a personal characteristic attributed to individuals solely because of his association with a group, that is, those over 65. They are for that reason discriminatory within the meaning of s. 15(1) of the Charter.
The argument of the appellants respecting this branch of the case was essentially that there was no discrimination because Regulation 5.04 and the policy decision under which it was implemented were reasonable having regard to the purposes they were designed to serve. In this regard, counsel drew our attention to the testimony of various expert witnesses who appeared at trial regarding the effect of age on a doctor's capabilities. He also drew attention to what he described as the "institutional concerns" of the Vancouver General, which he argued Regulation 5.04 addressed. These were: the need to control the size of the medical staff in order to foster the staff cohesiveness that was essential to the hospital's team approach to the provision of medical treatment, the role which a regular turnover in staff played in keeping the hospital at the leading edge of research and acute care technique, and the need to ensure that the hospital's limited resources were made available to those who could make most efficient and productive use of them. These various concerns, he maintained, were especially important in the case of the Vancouver General given its role and responsibilities as a research, teaching and acute care institution. Together with the evidence as to the effects of aging, he added, they showed that the actions of the hospital in adopting and applying Regulation 5.04 were entirely reasonable. From this it followed that the respondents had not been discriminated against.
The problem with this argument can be quickly stated; it confuses the question of whether discrimination has taken place with that of whether the discrimination is "demonstrably justified in a free and democratic society". The evidence and "institutional concerns" referred to address the latter question and, as such, fall to be considered under s. 1 of the Charter. They do not go to the question of whether or not there has been a violation of s. 15(1). Accordingly, I now turn to s. 1.
General
As noted in McKinney, this Court first set out a detailed approach for the application of s. 1 in R. v. Oakes, supra. The onus of justifying a limitation to a Charter right rests on the parties seeking to uphold the limitation. The starting point of the inquiry is an assessment of the objectives of the law to determine whether they are sufficiently important to warrant the limitation of a constitutional right. The challenged law is then subjected to a proportionality test in which the objective of the impugned law is balanced against the nature of the right it violates, the extent of the infringement and the degree to which the limitation furthers other rights or policies of importance in a free and democratic society.
As this Court recently pointed out in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, and as I reiterated in McKinney, this balancing task should not be approached in a mechanistic fashion. At pages 1489-90 of Cotroni, it was said that "While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature". Early in the development of the balancing test, Dickson C.J. underlined this point by stating: "Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards". See R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-69. I elaborated on this in the specific context of s. 15(1) in the following passage from Andrews v. Law Society of British Columbia, supra, at p. 198:
The degree to which a free and democratic society such as Canada should tolerate differentiation based on personal characteristics cannot be ascertained by an easy calculus. There will rarely, if ever, be a perfect congruence between means and ends, save where legislation has discriminatory purposes. The matter must, as earlier cases have held, involve a test of proportionality. In cases of this kind, the test must be approached in a flexible manner. The analysis should be functional, focussing on the character of the classification in question, the constitutional and societal importance of the interests adversely affected, the relative importance to the individuals affected of the benefit of which they are deprived, and the importance of the state interest.
As in McKinney, it is important in considering the issues raised by a case like the present to note that judicial evaluation of the state's interest will differ depending on whether the state is the "singular antagonist" of the person whose rights have been violated, as it usually will be where the violation occurs in the context of the criminal law, or whether it is instead defending legislation or other conduct concerned with "the reconciliation of claims of competing individuals or groups or the distribution of scarce government resources". See Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 994. In the former situation, the courts will be able to determine whether the impugned law or other government conduct is the "least drastic means" for the achievement of the state interest with a considerable measure of certainty, given their familiarity with the values and operation of the criminal justice system and the judicial system generally. As this Court has noted in Irwin Toy, however, the same degree of certainty may not be achievable in the latter situation.
I now turn to the objectives of the "law" at hand.
Objectives
Given that counsel for the appellants addressed his arguments as to the reasonableness of Regulation 5.04 and the policy under which it was applied to the question of whether there was discrimination within the meaning of s. 15 of the Charter, he did not specifically define their underlying objectives for the purposes of a s. 1 analysis. He did, however, enumerate the "institutional concerns" which he said the Board of Trustees hoped to address through the adoption of Regulation 5.04. These consisted of the need to limit the growth of the hospital's staff to take account of budgetary and resource limitations under which the Vancouver General must operate, the desire to limit the size of staff so as to encourage and preserve a cohesive staff capable of taking a team approach to the practice of medicine, and the need to make some of the hospital's staff positions and resources available to younger doctors recently trained in the latest approaches to medical practice.
It is this final "institutional concern" which points towards what I regard to be the fundamental objective of Regulation 5.04 and the policy that was adopted with respect to its application. In this respect, Regulation 5.04 is akin to the policies of mandatory retirement considered in McKinney. Just as those policies were directed toward the achievement of excellence in the universities' pursuit of higher learning, Regulation 5.04 and its attendant policy were intended to maintain and enhance the quality of medical care the Vancouver General is capable of providing. They were, in a word, intended to promote excellence in the hospital's pursuit of its mandate as a centre of medical research and teaching and as the major acute care hospital in the Province of British Columbia.
I have little doubt that this objective meets the "objectives test" as it has been developed in the jurisprudence; it is an objective that warrants the overriding of constitutional guarantees, provided it can satisfy the other requirements of the s. 1 test. Excellence in the practice of medicine and the provision of hospital services is certainly a highly important goal, one that produces obvious social benefits. It is crucial in this regard to emphasize the special responsibilities that devolve upon the Vancouver General by virtue of its mandate as the major acute care hospital in the Province with its extensive involvement in teaching and research. From this it is fair to assume that the specialized care it provides is beyond the capabilities of most, if not all, the other hospitals in the Province. Consequently, the ability of people in all parts of the Province to obtain high quality medical care when they most seriously require it may be said to depend on the quality of treatment available at the Vancouver General. Just as importantly, the teaching and research function carried out at the hospital is crucial to the future availability of competent and well-trained doctors in every part of the Province.
Accordingly, having determined that a pressing and substantial government objective lies behind Regulation 5.04 and its attendant policy, I turn to the question whether the Regulation and policy are appropriate or proportionate to the objective they seek to promote.
Proportionality
As Dickson C.J. stated in R. v. Edwards Books and Art Ltd., supra, a three-step approach to the question of proportionality as between objectives and means is ordinarily to be followed. He set out this approach, at p. 768 of his judgment, where he stated:
Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.
I will now consider the case at bar in light of each of these "aspects" of the proportionality requirement: rationality, minimal impairment and deleterious effects, or as it has sometimes been referred to, overall proportionality.
Rationality
Regulation 5.04 and the policy under which it was applied have much the same relation to the Vancouver General's pursuit of excellence in the provision of medical treatment and medical teaching and research as was found to exist in McKinney, supra, between a policy of mandatory retirement and the pursuit of academic excellence in universities. It allows for regular staff renewal and the intellectual invigoration that flows from it. What I had to say in McKinney, at p. 284, with respect to the case of universities seems, with slight modification, applicable here:
Mandatory retirement not only supports the tenure system which undergirds the specific and necessary ambience of university life. It ensures continuing faculty renewal, a necessary process to enable universities to be centres of excellence. Universities need to be on the cutting edge of new discoveries and ideas, and this requires a continuing infusion of new people. In a closed system with limited resources, this can only be achieved by departures of other people. Mandatory retirement achieves this in an orderly way that permits long-term planning both by the universities and the individual. [Emphasis in original.]
Leaving aside the reference to the system of academic tenure for the moment, I think a similar analysis can be made of Regulation 5.04 and its associated policy of implementation. For obvious reasons, hospitals as much as universities, "need to be on the cutting edge of new discoveries and ideas". If anything, it is even more important that hospitals remain fully apprised of the latest developments, given that human life and health may depend upon it, and that developments in medical knowledge and method occur at such a rapid pace. These rather trite observations, which apply to hospitals generally, are especially pertinent in the case of a hospital concerned with the provision of the kind of sophisticated and specialized treatment that is the responsibility of the Vancouver General. They also apply with special force to a hospital which, like the Vancouver General, carries out an important research and teaching function.
It is equally obvious that hospitals are like universities in that their ability to remain abreast of new discoveries and ideas "requires a continuing infusion of new people". More particularly, and as was recognized by the courts below, it depends on their ability to regularly make room on their staffs for younger doctors who, by virtue of their recent training, are fully conversant with the latest theories, discoveries and techniques. And since hospitals are, as much as universities, a "closed system with limited resources", this regular infusion with the vitality and perspective of the young can only be achieved by the corresponding departure of some of those already on staff. I note in this respect the submission of counsel for the appellants to the effect that the resource limitations under which the Vancouver General must operate was one of the "institutional concerns" motivating the adoption of Regulation 5.04 and the actions taken in respect of its implementation.
So viewed, I think it clear that Regulation 5.04 and the policy under which it was applied are "rationally connected" to the objective that lies behind them. Together they ensure that staff positions for younger doctors will regularly become available as members of the existing staff reach the age of 65. It is valuable in this respect to think of a staff position at the Vancouver General or any other hospital as a resource which is allocated through decisions as to the granting, renewal or non-renewal of admitting privileges. The resource is "scarce" in that it does not expand at a rate proportionate with the growth in the medical profession. It follows that it will not be allocated to those younger doctors who are needed on staff if a hospital is to remain "on the cutting edge of new discoveries and ideas", unless it is regularly and predictably relinquished by some of those who already have possession of it. Regulation 5.04 ensures that this will occur.
To the above I would add that Regulation 5.04 and its attendant policy are "rationally connected" to their underlying objective in an even more direct fashion. For they ensure not only that room is made on staff for younger and recently trained doctors, but also that it is made by the departure from staff of those who, by reason of advancing age, will be increasingly unable to function at the high level the Vancouver General must demand of its doctors. Common experience teaches that there will be considerable variety between individuals as to the rate at which the skills and aptitudes essential to the practice of medicine deteriorate. But it also teaches, and the evidence broadly confirms, that as a general rule such deterioration will accelerate as a person enters the later stages of life. It follows that a rule, which provides for the retirement of doctors before such deterioration will normally undermine their ability to function as full and competent members of medical staff, is "rationally connected" to the determination of the Vancouver General to provide hospital care and medical instruction conforming to the highest standards of professional competence and expertise.
Minimal Impairment
In approaching the question whether Regulation 5.04 and the policy by which it was implemented violated the respondents' s. 15 rights "as little as possible", I would reiterate what I have said above regarding the special considerations that 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. As the majority of this Court observed in Irwin Toy Ltd. v. Quebec (Attorney General), supra, at p. 993:
. . . in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck.
Accordingly, it is only appropriate that the courts have exhibited considerable flexibility in assessing legislation of this sort through the lens of s. 1 of the Charter. That is so not only out of recognition of the difficulty of the choice that has to be made but also because such legislation impacts on many different and interrelated aspects of society and government policy. It is also because there are inherent advantages in a democratic society of having representative institutions deal with matters such as the division of scarce social resources between competing groups. This was expressly recognized in Irwin Toy Ltd. v. Quebec (Attorney General), supra. There the majority put it this way, at pp. 993-94:
When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources. Democratic institutions are meant to let us all share in the responsibility for these difficult choices. Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function. For example, when "regulating industry or business it is open to the legislature to restrict its legislative reforms to sectors in which there appear to be particularly urgent concerns or to constituencies that seem especially needy" (Edwards Books and Art Ltd., supra, at p. 772).
In short, as the Court went on to say, the question is whether the hospital authorities had a reasonable basis for concluding that it impaired the relevant right as little as possible in its attempts to achieve its pressing and substantial objectives. The following statement from Irwin Toy Ltd. v. Quebec (Attorney General), supra, at p. 994, regarding the limitation of freedom of expression that was there in question is of general application:
In the instant case, the Court is called upon to assess competing social science evidence respecting the appropriate means for addressing the problem of children's advertising. The question is whether the government had a reasonable basis, on the evidence tendered, for concluding that the ban on all advertising directed at children impaired freedom of expression as little as possible given the government's pressing and substantial objective. [Emphasis added.]
Returning to the case at bar, it follows from what I have said that Regulation 5.04 and its attendant policy attempt to strike a balance between young doctors seeking to commence a practice and doctors who have been engaged in practice for some time. It seeks to strike a balance with respect to their mutual demand for access to the resource that is the sine qua non of a full medical practice, a position on a hospital medical staff. Remembering that the courts are not to attempt an artificial precision in assessing whether "the correct balance" has been struck, I would nevertheless suggest that the Board of Trustees of the Vancouver General 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.
In my view, the Board was amply justified, given the current climate of budgetary restraint pervasive in the public sector, in concluding that its ability to bring new doctors on staff depended on the timely retirement of some of those already there. Moreover, it cannot be said to have acted unreasonably in concluding that the retirement, as a matter of course, of those who had reached the age of 65 would ensure the departure from staff of those who would generally be less able to contribute to the hospital's sophisticated practice. It must be stressed that the policy of applying Regulation 5.04 without exception, save in those "special cases where the physician had something unique to offer the hospital", was an attempt by the Board to recognize that the assumption of declining capabilities in those 65 and over would not always hold true. Although it operated with regard to the hospital's requirements rather than with regard to each individual doctor's health and capabilities, this was probably necessary given the overriding objective of making staff positions available to doctors recently trained in the latest theories and methods.
It cannot be denied that Regulation 5.04 and the associated policy of implementation imposes a heavy loss on those who reach the age of 65 and who wish to continue in practice. The evidence clearly shows that those who are denied a renewal of their admitting privileges pursuant to Regulation 5.04 will be unable to continue their practices in the manner and to the extent that they have become accustomed. In some cases, failure to obtain a renewal will mean the complete cessation of long-standing practices and the end of professional careers. But the anguish and sense of loss this entails cannot be considered in isolation from the frustration and anger younger doctors would experience if they were prevented from entering into a full practice upon completion of long years of arduous study and preparation.
The dynamics of the equation are not significantly altered by throwing the fate of the patients of those forced to retire into the balance, as counsel for the respondents does. Given the deterioration which is an undeniable characteristic of increasing age, the only hardships Regulation 5.04 can be said to impose on these patients is to force them to change their doctors sooner than they might otherwise have done. More importantly, any loss thereby incurred must surely be more than compensated for by the benefit that they and all other clients of the British Columbia health system derive from the regular infusion of new talent and new ideas into the Province's major acute care and research hospital.
This view of Regulation 5.04 and the associated policy is confirmed when the question of whether they strike a reasonable balance between competing resource users is viewed from the point of view of alternative measures. The only alternative that appears to have been mooted was the suggestion that the Vancouver General could have instituted a program of skills testing or performance evaluation. The evidence suggests that such a program would be costly both to implement and operate, a not unimportant consideration given the financially straitened circumstances in which most hospitals and the health care system generally must now operate. But more important is the invidious and disruptive effect such a program would have on the environment in which all members of the hospital's medical staff must work. As I explained in McKinney, skills testing and performance evaluation can be demeaning, especially when applied to highly trained and senior members of a professional community. As a trigger for the application of a rule of mandatory retirement, they would be the very antithesis of the kind of dignified departure that should be the crowning moment of a professional career. Just as detrimental is the added pressure which performance-based retirement would introduce into what must already be a very high pressure work environment. Nor is it difficult to imagine how such a scheme could sow suspicion and dissension among a hospital staff.
It is important in this regard to note that the development of a cohesive staff whose members are comfortable working as members of a team was one of the "institutional concerns" the Vancouver General had in mind in passing Regulation 5.04. While counsel seemed to relate this concern exclusively to a desire to limit the number of doctors on staff, I think it is also clearly relevant to the desire to avoid the disruptive effects of performance-related retirement. What I have said in McKinney regarding the role that mandatory retirement plays in the preservation of the "necessary ambience of university life" is also applicable to the present case, notwithstanding that the institution of tenure, and the animosity toward regular performance evaluation it engenders, is not per se part of the hospital setting.
As a final comment on this branch of the appeal, I would simply say that it is not appropriate for this Court to "second-guess" the government's determination that 65 is the appropriate age at which to implement its policy of de facto mandatory retirement. On this issue, I refer to the comments made in R. v. Edwards Books and Art Ltd., supra, at pp. 781-82, 800-801, to the effect that the exercise of "line-drawing" was one that should generally be left to the legislature.
Deleterious Effects
It is evident from what I have said in relation to "minimal impairment" that the effects of Regulation 5.04 and its attendant policy are not so severe as to outweigh the government's pressing and substantial objectives. In the circumstances, and given that a full explanation would cover the ground already covered under the previous heading, I find it unnecessary to say anything further regarding deleterious effects.
Conclusion and Disposition
I would dispose of this appeal on the ground that the appellant hospital is not a part of government within the meaning of s. 32 of the Charter. It is therefore not bound by the Charter. Even if the hospital were a part of government, I would hold that although Regulation 5.04 and the policy the Board of Trustees of the Vancouver General followed in applying it are discriminatory under s. 15 of the Charter, they are saved under s. 1 as a "reasonable [limit] prescribed by law" which is "demonstrably justified in a free and democratic society".
I would, therefore, allow the appeal, reverse the decisions of the trial judge and the Court of Appeal, and dismiss the plaintiffs' action with costs. I would answer the constitutional questions as follows:
1.Do the provisions of the Canadian Charter of Rights and Freedoms apply to the actions of the Vancouver General Hospital in establishing and administering Regulation 5.04 of the Medical Staff Regulations?
No.
2.If the answer to question 1 is yes, is Regulation 5.04 of the Medical Staff Regulations contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
If the Regulation had been enacted by government, it would be contrary to s. 15(1) of the Charter.
3.If the answer to question 1 is yes, was the administration of Regulation 5.04 of the Medical Staff Regulations by the Vancouver General Hospital contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
If the policy had been adopted by government, it would be contrary to s. 15(1).
4.If the answer to either questions 2 or 3 is yes, is Regulation 5.04 of the Medical Staff Regulations or the manner of its administration by the Vancouver General Hospital nevertheless justified under s. 1 of the Canadian Charter of Rights and Freedoms?
If questions 2 and 3 had been answered in the affirmative, the Regulation and policy would nevertheless be justified under s. 1 of the Charter.
//Wilson J.//
The following are the reasons delivered by
WILSON J. (dissenting) -- I have had the benefit of the reasons of my colleague La Forest J. and, for the reasons I gave in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, I must respectfully disagree with him that the Canadian Charter of Rights and Freedoms has no application to the Vancouver General Hospital. In my view, the Charter does apply and as a consequence the appellant's policy of mandatory retirement is unconstitutional. While the questions raised by these appeals are generally similar to those this Court addressed in McKinney, there are some important differences and I wish to deal with those.
I.Application of the Charter to the Vancouver General Hospital
The scope of application of the Charter is governed by s. 32(1) which provides:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
In McKinney, I discussed s. 32(1) at some length. I found that the purpose of the section was to extend the reach of the Charter to all those entities and activities that could be construed as "governmental". I identified the criteria I thought were relevant in determining whether an entity is subject to the Charter under s. 32. I indicated at p. 370 that:
. . . I would favour an approach that asks the following questions about entities that are not self‑evidently part of the legislative, executive or administrative branches of government:
1. Does the legislative, executive or administrative branch of government exercise general control over the entity in question?
2. Does the entity perform a traditional government function or a function which in more modern times is recognized as a responsibility of the state?
3. Is the entity one that acts pursuant to statutory authority specifically granted to it to enable it to further an objective that government seeks to promote in the broader public interest?
In my respectful view, the application of these three tests leads inexorably to a finding that the Charter applies to the Vancouver General Hospital.
1. Application of the Criteria to the Vancouver General Hospital
(a)The "Control" Test
A review of the various connections between the Province and the Hospital leads me to conclude that the provincial government exercises a substantial amount of control over the appellant. In particular, the government has exercised control over the Vancouver General Hospital in three areas: (1) governing structure; (2) policy; and (3) funding.
Dealing first with control over the governing structure of the Hospital, the Hospital Act, R.S.B.C. 1979, c. 176, sets out the function and powers of the Hospital and its constituent elements. Section 30 provides that the Lieutenant Governor may appoint inspectors whose function it is to inspect the accounts, books, equipment and any other thing on or about the hospital. Section 37 provides that the Lieutenant Governor may, by regulation, establish one or more medical appeal boards. These boards are vested with the jurisdiction to review management decisions regarding permits to practise medicine or dentistry in the Hospital. Under s. 2(1)(c) of the Act every hospital is required to have a properly constituted board of management. It is in this Board that the governance of hospital affairs is largely reposed.
The composition of the Board is dealt with under both the Hospital Act and the Vancouver General Hospital Act, S.B.C. 1970, c. 55. Under s. 2(1)(a) of the former Act, the Hospital is obliged to make provision for, inter alia, representation of the provincial government on the Board. This directive has been carried out under s. 5 of the Vancouver General Hospital Act which provides that the Board shall consist of those persons appointed under the Hospital Act. The actual composition of the Board is dealt with in Article 4, s. 2, of the Vancouver General Hospital by‑laws. Section 2 (in combination with Article 2, s. 1) provides that the Lieutenant Governor shall appoint 14 of the Board's 16 members, the appointees to be chosen from several specified communities. If, however, any of the specified organizations fail to submit candidates, the Lieutenant Governor may appoint whomever he or she wishes (s. 3).
The authority of the Board of Trustees is broad and diverse. Section 2(1)(b) provides that the Board is to have full control over the revenue and expenditure of the Hospital. The Hospital is also to have by-laws or rules thought necessary by the Minister for carrying out the administration and management of the Hospital's affairs and providing a high standard of care (s. 2(1)(c)). Under s. 6 of the Vancouver General Hospital Act, the power to pass such by‑laws has been reposed in the Hospital's Board of Trustees. The Hospital enjoys special government‑like powers in a number of respects and the exercise of these would presumably fall under the jurisdiction of the Board. For example, the property of the Hospital is protected from expropriation under s. 45 of the Hospital Act and s. 11 of the Vancouver General Hospital Act.
The powers of the Board of Trustees are subject to the authority of the Lieutenant Governor and the Minister of Health. Both the Lieutenant Governor and the Minister have the power to intervene in significant ways in the operations of the Board. The Lieutenant Governor may order the Hospital to comply with any conditions in addition to those enumerated in the Hospital Act as he or she may prescribe (s. 2(1)(d)). He may also make any additional regulations he thinks necessary (s. 36(1)). As well, under s. 2(1)(c) of that Act by‑laws or rules et cetera passed by hospital boards are ineffective without ministerial approval and this requirement is repeated in s. 6 of the Vancouver General Hospital Act. The Minister may require that any by‑law be revised to his satisfaction (s. 32). As well, the composition of the governing bodies of the Hospital may be radically altered by the Minister and the Lieutenant governor. Section 2(3) of the Hospital Act provides that the Lieutenant Governor may appoint to the Board any number of persons to represent the provincial government notwithstanding any other Act or the constitution, by-laws or rules of any hospital. Finally, and perhaps most tellingly, the Province may simply "take over" the running of the Hospital. The Minister may under s. 44(1) appoint an examining board to examine any aspect of the Hospital's operations. Upon receipt of the examining board's report the Minister may make recommendations to the Lieutenant Governor who in turn under s. 44 may appoint a public administrator and completely usurp the Board of Trustees.
With respect to Hospital policy, I believe that the Province exercises a significant amount of control in this area as well. For instance, under the Hospital Act the Hospital is prohibited from refusing to admit any person on account of their indigent circumstances (s. 4). Hospitals are precluded from admitting any person with a communicable disease unless the Minister is satisfied that the hospital has sufficient facilities for the handling of such a person (s. 3). All persons being treated in hospital for tuberculosis of the respiratory tract are subject to supervision by a medical health officer appointed by the Lieutenant Governor. Every hospital is under a statutory obligation to keep detailed patient records (s. 18). Further, certain hospitals including the appellant must provide reasonable facilities for giving clinical instruction to medical students. If the hospital and the university are unable to agree as to the nature and extent of the facilities to be granted the dispute is determined by the Lieutenant Governor. Under the regulations passed pursuant to the Hospital Act (Hospital Act Regulations, B.C. Reg. 289/73 as am.), a number of provisions were passed by the Lieutenant Governor dealing with procedures for admission and discharge of patients (ss. 2 and 3) and the substantive requirements that must be met before hospitals can treat patients (s. 4). Further, the regulations make provision for the organization of medical staff and delineate the duties which such staff organizations must perform (s. 5).
As I demonstrated above, even although the Board of Trustees is vested with a large amount of authority respecting the operations of the hospital, the Minister and the Lieutenant Governor have each been granted broad powers to impose their will upon the Board and thus to enforce government policy. The following provisions illustrate how extensive these powers are. Section 32 provides:
32. The minister may require that the bylaws or rules of a hospital or 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.
Section 36 indicates the scope of the Lieutenant Governor's regulation-making power:
36. (1) The Lieutenant Governor in Council may make any regulations deemed necessary for the carrying out of the provisions of this Act to meet any contingency not expressly provided for in it, and providing for the returns to be rendered by the secretary or other executive officer of a hospital.
(2) All regulations under this section shall be presented to the Legislative Assembly.
(3) The power to make regulations under this section extends to prescribing, for any hospital as defined under any of the provisions of this Act, the
(a) proportion of the accommodation which shall be used as public or standard ward accommodation;
(b) number or proportion of persons who, being persons in receipt of social services as defined in the Guaranteed Available Income for Need Act, are to be provided with the necessary care and accommodation at the rates payable under that Act;
(c) rules or standards for the ownership, capital debt, maintenance, operation and management of hospitals or licensed hospitals;
(d) issue, by the board of management, of permits authorizing the treatment of patients by physicians, dentists or paramedical personnel;
(e) establishment of medical staff organizations and other bodies comprised of persons to whom permits are issued under paragraph (d) and the promulgation, by a board of management, of bylaws or rules governing those organizations or other bodies;
(f) requirements governing the admission to and discharge from hospitals of patients;
(g) rules or standards regarding the care and treatment of patients;
(h) records and documents respecting patients kept by a hospital or supplied by a medical practitioner or dentist to a hospital, and the minimum period for the retention of the records and documents by a hospital;
(i) powers, duties and responsibilities of a public administrator appointed under section 44, and any matter respecting a hospital corporation for which the appointment is made; and
(j) terms and conditions of the planning and operation of a hospital following public administration under section 44.
(4) Where regulations are made,
(a) each hospital to which the regulations are applicable shall observe them, and
(b) the person having charge of admissions to a hospital to which regulations made under subsection (3)(b) are applicable shall, if the number or proportion of the persons to whom that paragraph refers accommodated in that hospital is less than the number or proportion prescribed, give preference of admission to those persons.
Apart from the extraordinary powers of the Lieutenant Governor, the routine discharge of the Board's function involves the articulation and implementation of hospital policy by a body dominated by government representatives. With respect to its managerial responsibilities, the Board is obliged under s. 8 of B.C. Reg. 289/73 to appoint an administrator who shall be the representative of the Board and shall execute all orders of the Board concerning the administration of the Hospital. With respect to policies concerning the provision of medical services, the Board is obliged under s. 6 of the regulations to make provision for medical staff procedures in the by‑laws. Under Article 6 of the Vancouver General Hospital By‑Laws, the Board of Trustees has delegated this function to a number of specialized committees who report back to the Board.
With respect to the issue of funding, the evidence discloses that the operating costs of the Hospital are borne almost entirely by the Province. The provision of these funds has gone hand in hand with the Regulation. Under the Hospital Act provisions exist for the supervision of hospital expenditures. Section 40 provides that the Lieutenant Governor may withhold amounts payable to the Hospital where the board of management refuses or neglects to comply with the Act or the regulations or fails to administer the Hospital in a manner satisfactory to the Minister. Section 41 prescribes the conditions applicable upon the Hospital's receiving financial assistance toward the planning, constructing, reconstructing, purchasing and equipping of the hospital.
Finally, the Province also subsidizes the Hospital's clientele, the patients. As has been mentioned by my colleague La Forest J., the physicians who initiated this action are not, strictly speaking, employees of the Hospital. Instead, they are paid by the Province on a fee for service basis. That is, they are paid by the government for the treatments they administer to their patients. Thus, the Province directly finances the provision of health care at the Vancouver General Hospital.
In my view, the extensive supervisory power which the Province exercises over the Hospital supports the conclusion that the appellant is a government entity for the purposes of s. 32(1) of the Charter. Before leaving this branch of the s. 32(1) inquiry, however, I would like to address the question whether, regardless of the Hospital's status as a governmental entity, the particular action complained of here is or is not government action.
The respondents submit that because Regulation 5.04 could only take effect upon the approval of the Minister, its enactment and subsequent application must be characterized as an act of government. They rely on the decision of this Court in Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2) in support of this submission.
In Blaikie No. 2 the Court was asked to decide whether regulations and orders issued by statutory bodies are Acts of the Legislature within the meaning of s. 133 of the Constitution Act, 1867 which reads:
133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
The Court concluded that delegated legislation fell within the compass of s. 133. It stated at p. 329:
The particular form of words used in this respect by various statutes matters little. Whether it be provided that some regulations "shall have no force and effect until approved and sanctioned by the Lieutenant‑Governor in Council" or "shall not be carried into execution until approved by the Lieutenant‑Governor in Council" or "shall not have force and effect until confirmed by the Lieutenant-Governor in Council", they can be assimilated with the enactments of the Government and therefore of the Legislature as long as positive action of the Government is required to breathe life into them. Without such approval or confirmation, they are a nullity ... or at least inoperative.
My colleague La Forest J. has distinguished Blaikie No. 2 on the basis that it was decided in the context of a constitutional provision protecting certain defined and restricted rights (ie., the right to use either the French or the English language in certain defined circumstances) whereas the present appeals are to be decided in the context of s. 32(1) which affects the scope of every guarantee in the Charter. I agree with La Forest J. that because Blaikie No. 2 was decided in a different constitutional context and in relation to a different constitutional guarantee its usefulness in construing s. 32(1) is limited.
In McKinney I noted that it was not necessary that there be a clear nexus between government and the particular impugned activity in order that the control test be met. On the other hand, I observed at p. 363:
The evidence that one is dealing with government action will, of course, be even stronger if one can point to a direct nexus between government and the activity in question. But I do not think that the specific questions the control test poses about the presence of such a nexus are in any sense necessary conditions for a finding that there is government action. I am quite prepared to accept that, even in the absence of such a nexus, there may be sufficient government control to enable one to conclude that government action is in issue.
In my respectful view, the conclusion I have reached respecting the general relationship of control which the Province has with the Hospital is strengthened when it is recognized that the government also has specific control over the particular action in issue in these appeals. Regulation 5.04 would be totally ineffectual without the prior written approval of the Minister. Indeed, had the Minister not been prepared to approve the Regulation, he had the power to forestall its enactment and compel the Board of Trustees to enact a by‑law more to his liking. In such circumstances I fail to see how the Regulation could be characterized as beyond government control or as anything other than a simple reflection of government policy. To my mind, the fact that the Province through the Minister had the power to treat the by‑law in this way provides an exceedingly strong indication that what is at issue in these appeals is government action. Indeed, in this case I might be prepared to find that the requirements of s. 32(1) are met on the basis of the control test alone. It is not necessary to do so, however, since in my view the government function test and the government entity test provide further support for my conclusion that the Charter applies to the Vancouver General Hospital.
(b) The "Government Function" Test
As I indicated in McKinney, in applying the "government function" test, the general principle is that a function becomes governmental because a government has decided to perform it, not because the function is inherently governmental.
Public health in general and hospitals in particular have been supported by local and provincial governments in Canada since pre‑Confederation times. In 1830, for example, the legislature of Upper Canada provided funding for the hospital at York established by the Lieutenant Governor, Sir John Colborne: see An Act to grant a sum of Money to His Majesty in aid of the York Hospital, S.U.C. 1830, c. 31. In British Columbia the legislature enacted in 1869 a statute conferring on the Governor‑in‑Council power to establish local health boards and to regulate sanitary and other conditions in hospitals: see An Ordinance for promoting the Public Health in the Colony of British Columbia, C.S.B.C. 1877, c. 83. The legislature of British Columbia also passed the Insane Asylums Act, C.S.B.C. 1888, c. 61, providing for the establishment of mental hospitals in the Province. Finally, in 1888 it instituted a complete regime of public health under the Health Act, R.S.B.C. 1897, c. 91. In 1832 the legislature of Lower Canada passed an Act to support certain hospitals: see An 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. And in New Brunswick the legislature established a Board of Health in the City and County of St. John and conferred on the Board authority to "purchase, build or hire" hospitals and power to regulate them: see An Act to establish a Board of Health in the City and County of Saint John, S.N.B. 1855, c. 40, s. 11.
Section 92(7) of the Constitution Act, 1867, gives the provinces exclusive jurisdiction over
92. . . .
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
Pursuant to this grant of authority provincial legislatures have become increasingly involved over the years in the public health and hospital area. For example, in Manitoba the legislature enacted The General Hospital Act, C.S.M. 1880, c. 26, which established the Winnipeg General Hospital. The Nova Scotia legislature, through Title VI of the R.S.N.S. 1900, set up a regime of hospitals and public health regulation. Chapter 47 [Of Local Hospitals] Title IV provides that municipal and town councils shall be authorized to establish and support local public hospitals. In Ontario, the legislature provided financial aid to a number of hospitals through The Charity Aid Act, R.S.O. 1877, c. 223. They also ensured the government's right to inspect such facilities through The Prison and Asylum Inspection Act, R.S.O. 1877, c. 224, s. 14.
Finally, the administration of hospitals in the provinces is under the general authority of provincial Ministers of Health: see, for example, Public Hospitals Act, R.S.O. 1980, c. 410; Hospitals Act, R.S.A. 1980, c. H‑11; The Hospital Standards Act, R.S.S. 1978, c. H‑10; and An Act Respecting the Ministère de la santé et des services sociaux, R.S.Q., c. M‑19.2.
This brief overview of the legislation in place both before and after Confederation leads me to conclude that the establishment and maintenance of hospitals is a traditional function of government.
(c) The "Statutory Authority and the Public Interest" Test
It has already been established that the Hospital is broadly empowered to conduct its affairs through its "enabling" statutes. It has also been established that government has traditionally assumed a responsibility for the provision of basic medical services to its citizens. Justification for state involvement in the public health field is not hard to find. Simply put, government has recognized for some time that access to basic health care is something no sophisticated society can legitimately deny to any of its members. Less philosophically, government has also recognized that the promotion and protection of health is crucial to the maintenance of a viable and productive society.
I believe that 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. Regulation 5.04 is therefore subject to review under s. 15 of the Charter.
II.Does the Hospital's Mandatory Retirement Policy Infringe Section 15 of the Charter?
The Hospital's power to retire the physicians who practise at the Hospital is found in ss. 5 and 6 of the Vancouver General Hospital Act which empowers the Board of Trustees to pass by‑laws for the purposes of managing the property and affairs of the Hospital. The Board approved of Medical Staff Regulation 5.04 which was further approved by the Minister. Regulation 5.04 provides:
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.
As was the case in McKinney, it is unnecessary for me to determine whether s. 15(1) would apply in the absence of a legislative provision mandating or permitting the discriminatory action complained of. In the context of these appeals it is evident that the power to retire flows from the Vancouver General Hospital Act and the Regulation passed pursuant to it.
Turning now to the question whether Regulation 5.04 infringes s. 15(1), it is to be noted that the constitutional questions posed by Chief Justice Dickson regarding the application of s. 15(1) of the Charter embrace two possibilities: whether Regulation 5.04 is on its face contrary to s. 15(1); and whether the way in which the Regulation is administered violates the equality guarantee. The constitutional questions are posed in this way because of the unique structure of the Regulation. The Regulation differs from the provisions at issue in McKinney in that it contemplates by its terms exceptions to the general rule that members of the medical staff are required to retire at age 65. Specifically, the Regulation stipulates that members of the staff who wish to retain their admitting privileges may make special application to the Medical Advisory Committee to permit them to stay on at the Hospital. The Regulation provides that the Committee shall conduct a personal interview which shall include a review of the health and continuing performance of the applicant. Based on this interview the Committee makes a recommendation to the Board.
Is the Regulation, apart from the manner in which it has been administered, contrary to s. 15(1)? In McKinney the provisions at issue were found to infringe s. 15(1) because they reinforced the stereotype of older workers as incompetent and were therefore discriminatory within the meaning of s. 15(1): see Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, and R. v. Turpin, [1989] 1 S.C.R. 1296. Senior academics were compelled to retire irrespective of their individual capabilities and solely upon the basis of their having advanced in years. The interests which the guarantee of equality embodied in s. 15 were meant to protect, i.e., human dignity and the sense of self-worth and self-esteem, were thus violated. In this case, on the other hand, provision has in fact been made to permit senior physicians to retain their hospital privileges and thus continue the practice of their profession so long as they are capable of performing satisfactorily. The question therefore becomes whether Regulation 5.04 is discriminatory in spite of the fact that it provides an exception for those who can demonstrate individual capacity to perform. Put another way, can it be said that the Regulation discriminates even although it invokes the concept of individual merit and ability rather than the stereotype of older physicians as incompetent? In my view, the answer to this question is "yes".
It seems to me that in considering whether a provision violates s. 15(1) the Court should be wary of underestimating the discriminatory effect of any given measure. Here, for instance, even although the Regulation provides on its face for non‑discriminatory exceptions, the principle behind the measure remains constitutionally unsound. By its terms Regulation 5.04 stipulates that staff are expected to retire at age 65. In this way the unarticulated premise remains that with increasing age comes increasing incompetence and decreasing ability. That the Regulation provides for exceptions does not, in my view, detract from the fact that the central concept animating the provision falls foul of s. 15(1).
This difficulty with the Regulation is compounded by the fact that it goes on to direct those who wish to continue to work to demonstrate that the stereotype does not apply to them. It seems to me clearly discriminatory to impose this burden upon those who already suffer the burden of stereotype and prejudice (and who thereby have suffered a blow to their sense of self- worth and self-esteem as useful and productive citizens.)
The Court of Appeal also found that Regulation 5.04 was on its face in violation of s. 15(1) although for different reasons. The Court of Appeal noted that the operation of the exemption contained in the Regulation was not confined to issues of competence alone and therefore permitted consideration of irrelevant factors by the Board. In other words, health and continuing performance were factors to be included in the determination of whether a particular individual would be allowed to retain his or her admitting privileges, but they were not the sole basis upon which these reviews were to be conducted. I agree with this analysis and find that it provides further support for my conclusion that Regulation 5.04 is discriminatory on its face.
I should add, however, that I do not consider schemes such as that embodied in this Regulation to be on the same footing as "blanket rules" like those at issue in McKinney. In my opinion, any mechanism which seeks to take account of individual differences is preferable to one that flatly denies opportunities on the basis of stereotypical and prejudicial notions of ability. It should be emphasized, however, that the merits of exemption schemes are irrelevant to whether or not there has been a violation of s. 15(1). Exemption schemes such as that contemplated by Regulation 5.04 are properly a matter for consideration under s. 1 of the Charter.
Turning now to the question whether Regulation 5.04 was administered in a manner contrary to the Charter, I think the answer to this question is also "yes". The evidence is clear that the Regulation has been applied by the Board in a discriminatory fashion. The Court of Appeal found that the Board interpreted the provision as a mandatory retirement policy. Its practice was to terminate admitting privileges at age 65 subject to a finding not only that the applicant was of good health and performing satisfactorily, but also that the applicant possessed "unique" skills. Clearly the manner of application of Regulation 5.04 adopted by the Board is discriminatory because it perpetuates and reinforces the stereotype identified earlier of older workers as incompetent.
I find that Regulation 5.04 violates s. 15(1) both in terms and in the manner in which those terms have been interpreted and applied.
III.Is the Hospital's Mandatory Retirement Policy Reasonable and Demonstrably Justifiable Under Section 1 of the Charter?
Section 1 of the Charter provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The factors to be considered by the Court in applying s. 1 were first set out in R. v. Oakes, [1986] 1 S.C.R. 103. The Oakes "test" was succinctly summarized by Dickson C.J. in R. v. Edwards Books and Art Ltd, [1986] 2 S.C.R. 713, at p. 768, as follows:
Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.
It is this test that must be applied in ascertaining whether the Hospital's mandatory retirement policy meets the requirements of s. 1 of the Charter.
1. Objectives
The Hospital cites two objectives which its policy of retiring physicians at age 65 is meant to serve. First, it maintains that it is crucial that the Hospital, as an acute care and teaching hospital, provide the highest standard of modern medical care, education and research. The evidence establishes that the Vancouver General Hospital has developed as a highly specialized institution providing unique treatment services which other hospitals in the Province are unable to offer. It is a hospital of last resort, so to speak, for patients with specialized medical problems. I do not think it can be seriously questioned that this objective is of sufficient importance to override Charter rights and freedoms. It is an objective of "pressing and substantial" proportions and therefore meets the first branch of the Oakes test.
The Hospital also suggests that another objective of Regulation 5.04 is the promotion of opportunities for other (younger) physicians to practise medicine. The appellant argues that the Hospital can only accommodate a fixed number of medical personnel. Accordingly, if senior physicians are permitted to retain their admitting privileges, opportunities will as a necessary consequence be denied to younger physicians. In McKinney a similar argument was raised respecting the reduction of employment opportunities for younger academics. As in that case, my colleague La Forest J. has accepted that the Hospital is a "closed system" and therefore that permitting senior physicians to continue their relationship with the Hospital will necessarily result in junior physicians being denied opportunities. The evidence in this case, however, does not support this. It was accepted by both the trial judge and the Court of Appeal that permitting the respondents to retain their hospital privileges would not prevent other physicians from gaining admitting privileges.
This Court has recognized that in some situations evidence need not be led to prove government's assertion that there exists a pressing and substantial concern that must be addressed. Indeed, the gravity of a problem may be self‑evident and the Court may simply take judicial notice of it. Where, however, a serious question is raised as to whether a pressing concern as alleged in fact exists, it is incumbent on the party bearing the burden of proof under s. 1 to establish the pressing and substantial concern. In my view, where there is no evidence to support the allegation that a significant problem exists, the first branch of the Oakes test will not be met. The purpose behind this branch of the Oakes test is to ensure that constitutional rights and freedoms will only be sacrificed where it is reasonable and justifiable to do so. The concept of constitutional entrenchment requires that rights and freedoms be curtailed only in response to real and not illusory problems. In my view, therefore, this Court cannot, absent some form of proof, give effect to the Hospital's claim that its system is "closed". Consequently, it remains to be determined whether the infringement of the respondent physician's equality rights is proportional to the Hospital's aim of providing high quality health care.
2. Means
(a) Rational Connection
Is there a rational connection between the imposition of mandatory retirement and ensuring a high standard of medical care, education and research? The appellant Hospital argues that the infusion of young physicians carries with it the infusion of new discoveries and new ideas. It maintains that retiring senior physicians from and introducing junior physicians to the hospital system will upgrade the quality of medical service. I accept that there is a rational connection in this case between the objective sought to be achieved and the means adopted to achieve it. However, I wish to deal briefly with the implications of this conclusion.
First, it should be emphasized that the question whether a basis exists for treating groups in a discriminatory manner is not a concern of s. 15 but of s. 1. Section 15 deals with prejudice, disadvantage and stereotype regardless of its origin and s. 1 deals with its justification.
I believe also that the question whether the foundations of prejudice are based upon observable, reliable facts is one which this Court should approach in the most cautious manner. Throughout these appeals the parties have grappled with the question of the extent to which age and ability correlate. It is, in my view, a matter of common knowledge that with the aging process comes some measure of change in ability, although, of course, the nature and extent of that change varies from individual to individual. Even although I am prepared to accept that the rational connection branch of the Oakes test has been met in this case, I would not wish to be understood as suggesting that all infringements of equality have some basis in fact and that a rational connection between various objectives and stereotypes will in all cases be established. Indeed, this Court will doubtless be obliged in future to address whether other forms of discrimination based on different grounds have any foundation in biology or whether they are premised instead on misplaced notions about the nature and abilities of various groups. This is a most delicate determination. History unfortunately demonstrates how easily such misperceptions can be accepted with untold costs. It cannot be overemphasized, in my opinion, that this matter is fraught with difficulty and that the utmost care has to be taken in dealing with such questions.
For example, close scrutiny of the rational connection being advanced may take place in at least two ways. Vigilance should be exercised in examining the nature of the correlation advanced. It seems to me that in this case the deleterious effects of age have been painted with too broad a brush. The Hospital argues that with increasing age comes a decrease in all skills associated with the practice of medicine. This cannot be so. Diagnostic ability, for example, may actually increase with years in practice. Similarly, the Court should carefully scrutinize assertions regarding the extent of the relationship between the grounds of the infringement and its justification. For example, in this case a line has been drawn by the appellant Hospital at age 65. It seems to me that different considerations might prevail had the retirement age been set at 80.
All of this is merely to say that the role the rational connection branch of the proportionality test is meant to serve should not be forgotten. Its purpose is to engage the Court in an examination of whether government is proceeding logically in the pursuit of its aims. Technically, all the rational connection branch of s. 1 requires is a demonstration that there is some logical connection, however slight, between the objective and the means by which it is sought to be achieved. When, however, the inquiry turns to other elements of the Oakes test, the quality and extent of the connection becomes crucial.
In this case, as I have indicated, I am prepared to conclude that there does exist a rational connection 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. The real issue, in my view, is whether reliance upon these generalized notions of ability is justifiable. I turn then to consider whether the means chosen by the Hospital impairs the rights of the respondent doctors as little as possible.
(b) Minimal Impairment
In Edwards Books, supra and Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, this Court recognized that a strict application of the minimal impairment branch of the Oakes test is not always appropriate. My colleague La Forest J. has characterized the issue at stake in this appeal as falling within the class of exceptional cases envisioned in Edwards Books and Irwin Toy and concluded therefore that the more generous standard of review contemplated by those decisions should apply. In effect, he sees the question which this Court must address as the efficacy of the policy of mandatory retirement in a closed system with limited resources. For the reasons I gave in McKinney I must respectfully disagree with him that this is an appropriate case for the relaxation of the minimal impairment test.
As I have already noted, it has not been established that the Hospital is in fact a "closed system". On the contrary, the evidence demonstrated that permitting the respondent physicians to retain their admitting privileges would have absolutely no effect on the availability of practice opportunities for doctors embarking upon their careers. That being the case, I see no reason in fact or in law for applying a deferential standard of review. For the same reasons as I expressed in McKinney, I hasten to add that, even if it were accepted in principle that the Irwin Toy standard should apply, the record simply does not reveal any evidentiary basis for deviating from Oakes. No suggestion has been made that positions freed up through retirement have been filled by younger physicians who would otherwise have experienced limited employment opportunities due to senior physicians being permitted to practise their profession beyond age 65. In my opinion, therefore, the minimal impairment test as articulated in Oakes should apply.
The issue therefore comes down to this: Even accepting that there is some correlation between age and ability (a correlation which has, in my view, been overstated by the Hospital), is there not some other way of achieving the objective of high quality medical care which recognizes and takes account of the abilities of individual doctors aged 65 and over? I think the answer to this question is plainly "yes".
In McKinney the appellant professors suggested alternative ways of dealing with the objective of faculty renewal. The situation in these appeals is somewhat different in that the doctors are not suggesting that the Hospital attempt some new, untried mechanism for ensuring that the Hospital meet its goal of providing high quality medical care. Instead, they are merely asking that the Hospital revert back to its former way of implementing its objectives. Before Regulation 5.04 was enacted the Hospital dealt with the issue of physician competency in the following manner. Admitting privileges, once granted, were renewed on an annual basis. Renewal was assured so long as the Board was satisfied that the staff member was in good health and had the ability to continue performing safely and competently. In addition, internal auditing procedures were in place under which Department Heads had responsibility for ensuring the competency of the staff. This practice, which applied to physicians of all ages, was changed in 1984 when the Minister approved Regulation 5.04.
Why did the Hospital change this practice of treating the competency of all doctors on the same footing? It would appear that the primary reason for the change was that it was administratively convenient to remove incompetent physicians through the mechanism of mandatory retirement rather than staging annual performance reviews as had previously been done. There is no evidence that the former practice had been unsatisfactory in terms of "weeding out" incompetent doctors.
This Court has established that administrative convenience is not an adequate reason for sacrificing Charter rights and freedoms. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, the federal government had adopted a procedure respecting immigration claims which violated s. 7 of the Charter and cited administrative convenience as the reason. At pages 218‑19 of my reasons I stated:
Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles.
In my opinion, these comments apply with equal force to the guarantee of equality embodied in s. 15(1). It seems to me that it will always be more convenient from an administrative point of view to treat disadvantaged groups in society as an indistinguishable mass rather than to determine individual merit. But s. 15(1) demands otherwise. In discrimination claims of the kind involved here, if the guarantee of equality is to mean anything, it must at least mean this: that wherever possible an attempt be made to break free of the apathy of stereotyping and that we make a sincere effort 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.
The comments made in Singh also have an important bearing on the issue of minimal impairment. Under this branch of the Oakes test the question is whether other means are available to achieve the objective which impinge upon Charter rights less severely. Here, the past practice of the appellant Hospital both served its objective and respected the Constitution. The high calibre of the medical staff was ensured by subjecting all physicians to regular review of their performance. And the equality rights of the respondents were ensured by not subjecting them to the arbitrary forces of prejudice. It seems to me indisputable that where the sole reason for a change from a constitutionally sound to a constitutionally unsound system is administrative convenience, the minimal impairment branch of the proportionality test cannot be satisfied.
I should note that these comments are in no way meant to suggest that the only constitutionally permissible method of dealing with the issue of incompetency is by way of annual reviews of performance. It must be emphasized that had Regulation 5.04 been phrased and interpreted as establishing 65 as the presumptive age of retirement but allowing those aged 65 and over to retain their hospital privileges so long as they were found to be healthy and capable, I would think that an arguable case could be made that the minimal impairment test was met. The protection afforded by s. 15(1) is not a guarantee of the right to continue in employment during the later years of life irrespective of ability. What s. 15(1) guarantees is the right not to be ousted from employment on the basis of stereotypical assumptions about one's capabilities to perform in a satisfactory way. In other words, in a context such as this, s. 15(1) does not guarantee the right to work but the right to work absent discrimination. Accordingly, had Regulation 5.04 in word and in effect provided for a bona fide exemption scheme contemplating the continued employment of those able and willing to work, one would be hard pressed to say that the provision was not reasonable and demonstrably justifiable.
In conclusion I find that the Regulation by its terms does not meet the requirement that it impair the rights of those adversely affected by it as little as possible. I find also that the Regulation has been administered in a manner which violates s. 15(1) of the Charter. It is not saved by s. 1.
IV. Disposition
I would dismiss the Hospital's appeal with costs.
Addressing the relief sought by the respondents in their statement of claim, I would grant the respondents a declaration that Regulation 5.04, by its terms and in the manner of its application, is contrary to s. 15(1) of the Charter and is accordingly of no force or effect. I would also grant them a declaration that the decisions of the appellants made pursuant to the Regulation terminating the admitting privileges of the respondents are null and void. I would direct the Vancouver General Hospital to reinstate the hospital admitting privileges of the respondents.
I would answer the constitutional questions posed by the Chief Justice Dickson as follows:
1.Do the provisions of the Canadian Charter of Rights and Freedoms apply to the actions of the Vancouver General Hospital in establishing and administering Regulation 5.04 of the Medical Staff Regulations?
Yes.
2.If the answer to question 1 is yes, is Regulation 5.04 of the Medical Staff Regulations contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
Yes.
3.If the answer to question 1 is yes, was the administration of Regulation 5.04 of the Medical Staff Regulations by the Vancouver General Hospital contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
Yes.
4.If the answer to either questions 2 or 3 is yes, is Regulation 5.04 of the Medical Staff Regulations or the manner of its administration by the Vancouver General Hospital nevertheless justified under s. 1 of the Canadian Charter of Rights and Freedoms?
No.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'HEUREUX‑DUBÉ J. (dissenting) -- There is one principal issue in this case. That is whether Regulation 5.04, which was passed by the Trustees of the Hospital and approved by the Minister of Health according to the Vancouver General Hospital Act, S.B.C. 1970, c. 55, s. 6, is constitutional. The Regulation reads:
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.
Three questions need to be answered. First, does Vancouver General Hospital fall under "government" for the purposes of s. 32 of the Canadian Charter of Rights and Freedoms and is Regulation 5.04 "law" as understood in s. 52 of the Constitution Act, 1982? Second, if so, does Regulation 5.04 violate s. 15(1) of the Charter? Third, in the affirmative, can the Regulation be saved by s. 1 of the Charter?
I agree with my colleague Madame Justice Wilson that under the broad test she has developed in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Vancouver General Hospital is acting in this case as "government" for s. 32 of the Charter. Both historically and (even more so today) in functional terms, hospitals in Canada are an "arm of government" and perform a government function. My only hesitation perhaps stems from the fact that the Hospital's Board of Governors enjoys a certain independence in formulating policies, including the policy which presided over Regulation 5.04. However, even though members of the Board are appointed by the government, I see no difference between this situation and that of government departments setting up their own agenda and policies, subject only to general guidelines established by the legislature. This situation is, in my view, totally different from that of universities. In the case of the universities, as demonstrated in McKinney, supra, government involvement is primarily limited to funding. I do not wish to suggest, however, that all actions of every hospital would attract review of the Charter under s. 32. There may be some instances where a hospital would not constitute "government". Nevertheless, in this case the Hospital is "government" for the purposes of s. 32.
Notwithstanding his conclusion that the appellants are not "government" for the purposes of s. 32 of the Charter, my colleague Justice La Forest goes on to discuss the constitutionality of Regulation 5.04 under s. 15(1) of the Charter. For the purposes of my discussion of these topics, I agree with him, for the reasons that he gives, that Regulation 5.04 is "law" for the purposes of s. 15 of the Charter. I also agree with my colleague that Regulation 5.04 clearly infringes s. 15(1) of the Charter because it discriminates by reason of age, a prohibited ground of discrimination enumerated in s. 15(1).
Where I disagree with my colleague La Forest J., however, and agree in the result with my colleague Wilson J., is on the question of whether this Regulation is a reasonable limit in a free and democratic society as provided in s. 1 of the Charter and under the analysis enunciated in R. v. Oakes, [1986] 1 S.C.R. 103. In my opinion (and I differ in part from Wilson J.'s reasoning), Regulation 5.04 does not satisfy the requirements of Oakes, mainly because the objectives sought by the Regulation are not rationally connected to the means chosen to achieve those ends and, in addition, the minimal impairment test has not been respected.
The approach recognized by this Court under s. 1 is well known and need not be repeated in detail here. It should be clear that the balancing which is undertaken under this section of the Charter involves the particular law in question, and the severity of the violation of the right or freedom under the application of that law. We look to whether the objective of the law is sufficiently important to warrant overriding a protected right, and whether the means used in the violation are appropriate in view of the right breached.
My colleague La Forest J. undertakes an analysis comparable to that in McKinney in assessing whether the hospital's Regulation and policy are reasonable limits for the purposes of s. 1. One proposed objective of Regulation 5.04 and its attendant policy is competence. La Forest J. states at p. 000:
Just as those policies [in McKinney] were directed toward the achievement of excellence in the universities' pursuit of higher learning, Regulation 5.04 and its attendant policy were intended to maintain and enhance the quality of medical care the Vancouver General is capable of providing.
In addition to this concern over "quality", there is mention of the teaching and research functions carried out at the hospital. My colleague Wilson J. has found another possible objective, that of promoting opportunities for younger physicians to practise medicine. I agree with her that there is no evidence to suggest that the Hospital is a "closed system", and therefore this objective is not sufficiently pressing to warrant overriding a constitutionally protected right. Unlike Wilson J. however, I also question the attempt to justify the violation of the respondents' rights on the principal objective of competence.
One cannot oppose a hospital's efforts to maintain high levels of competence among its staff, and in few areas can this objective be seen as so important. When knowledge and skill are fundamental in some cases to the survival of a patient, we applaud high standards of competence in our hospitals. The question is, however, whether this is what is addressed by Regulation 5.04.
In McKinney, I expressed the view that forcing the end of a career based on age alone does not pass muster under the Charter, as age is surely not determinative of capacity or competence. One is no less competent the day after one's 65th birthday, than the day before. Fundamentally it is a question of personal dignity and fairness. I concluded also that the potential negative consequences of stopping the mandatory retirement practice were outweighed by the clear positive aspects of allowing perfectly competent persons who happen to be over 65, to continue in their positions. The same concerns can be raised in this case. Medical practitioners do not become incompetent at a given age. One falls below acceptable levels of proficiency through inattention to medical advances and, inter alia, inadequate physical stamina and health. But a forced retirement policy is arbitrary and simply sets a date for all this to occur. It confounds logic to suggest that these concerns simply occur on the passing of a given day in all cases.
In this particular case we are faced with a Regulation and policy which contain an element of ongoing testing for proficiency and competence. The health of the practitioner is considered. And a personal interview is held. At first glance, it seems that this is a more humane and rather effective way to manage the retirement of older medical employees. But on further examination and reflection, it becomes apparent that the treatment remains unfair and cannot justify the violations of the equality rights in question.
The Regulation and its attached policy serve to implement the Board of Trustees' retirement policy at an administrative level. No one will question efforts of the Board to maintain an efficient hospital. But the Regulation and its policy must be rationally connected to the objectives they seek to attain. In my view they are not so rationally connected. In his analysis my colleague La Forest J. applies his reasoning on this point in McKinney, at p. 000, to the effect that the policies allow for "regular staff renewal and the intellectual invigoration that flows from it". To keep on the "cutting edge" and to maintain research and teaching standards, the mandatory retirement of older workers attempts to infuse the hospitals with new people. My colleague states, at p. 000, that the ability of the hospital to remain up to date
. . . depends on their ability to regularly make room on their staffs for younger doctors who, by virtue of their recent training, are fully conversant with the latest theories, discoveries and techniques. And since hospitals are, as much as universities, a "closed system with limited resources", this regular infusion with the vitality and perspective of the young can only be achieved by the corresponding departure of some of those already on staff.
Even accepting the "closed system" argument, I cannot see why "new people" must be infused into the hospital's system to keep it relevant. Like many professionals, medical practitioners are faced every day with the need for ongoing training and must make continual efforts to remain abreast of new developments in the technology and the research. Basic university education provides only the groundwork for a successful and competent career. Medical practitioners must always be sensitive to new theories and discoveries. The fact that a practitioner has a 40th, 50th or 60th birthday alters this no more than the 65th birthday. Competence is threatened by many things, but age is not necessarily one of them.
My colleague La Forest J. also maintains that the hospital as an institution is forced to choose between "competing social groups" and, as a result, special considerations apply in considering the "minimal impairment" aspect of the Oakes formula. I agree that the Trustees do make a choice between groups in this situation. However, I cannot agree that in the present case the allocation of resources is a fundamental issue. That is not the kind of choice being made pursuant to this policy. The choice as I see it is made between competent medical practitioners who happen to be over 65, and competent doctors under 65, usually entering the medical practice. I do not see these circumstances warranting special considerations. I would add that the Board, even if it were a lawmaking body for the purposes of the Charter, does not have all the requisite characteristics of a legislative body considering resource allocation, to warrant these special considerations being applied.
The Regulation, the policy and the evidence should be considered together. The Regulation mandates retirement on reaching one's 65th birthday. The policy puts a further onus on the practitioner to show he or she has something unique to offer the Hospital. One must make special application to the Board to ask that retirement be deferred. The Medical Advisory Committee considers the report of the Department Head who has arranged a personal interview and an assessment of the health and performance of the individual practitioner. The Committee recommends to the Board.
Some of the evidence on examination for discovery of Mr. James B. Flett was admitted and read in at the trial. Mr. Flett is President of the Vancouver General Hospital. This evidence reveals that, even prior to the Regulation's being passed, the heads of the clinical departments of the Hospital were responsible for ensuring that each practitioner past "a certain age" continued to have the ability to perform safely and efficiently, prior to recommending to the Medical Advisory Board that the practitioner be reappointed. Practitioners are reappointed annually. This was one aspect of the Hospital's existing internal audits of competence, along with the health of the applicant. There was no suggestion that the standards were inadequate. The respondents, for their part, take no issue with the general standards applied by the Hospital and accepted at the hearing before this Court that closer scrutiny may be necessary of those practitioners in their later years of practice. Respondents argue however, and I agree, that 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.
Another factor considered in the process under Regulation 5.04 is health. My colleague La Forest J. suggests (p. 000) that "deterioration" is an "undeniable characteristic of increasing age". There is no evidence before us to suggest that age 65 is a threshold age for physical deterioration, nor that this would necessarily affect the competence of the practitioner. The health of the practitioner may be a factor in the review of a practitioner's abilities. But surely ongoing health problems of a practitioner would be a factor in any review of any individual's performance. Inability to perform one's duties for health reasons is not limited to those over 65.
What is evident then, is that the system for "special application" does not really allow the practitioner any leeway beyond showing that something "unique" may be offered to the Hospital. In my view, the violation of the rights thus cannot be justified by the appellants. The requirement of showing extra competence or other special qualities is too great. This higher standard is applied solely because the individual has reached 65. This Court has already admonished the use of convenience in administrative procedures as a possible justification for the breach of rights: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 218‑19, per Wilson J. It seems self‑evident that the retirement Regulation and policy set an arbitrary and easy mark for the end of a career ‑‑ one's 65th birthday. The combination of these factors leads me to the conclusion that the mark is set too high for the practitioners affected: the rights have not been impaired "as little as possible", in my view.
There are acceptable alternatives to the procedures developed by the Board of Trustees, to encourage retirement. A recommended age for retirement could be established, and could be made at the point where it becomes clear that physical difficulties are prevalent, with exceptions made in the appropriate case. Reviews of competence could be semi‑annual for those over, for example, 70 years of age. These measures among others can be implemented discretely and using a process upholding the dignity of the individual.
I would only add that the number of persons wishing to work beyond 70 or 75 will not be staggering. But there are people who can (and do) make significant contributions well beyond their 65th birthday, whether it be in conducting an orchestra, running a private business or leading a country. These people should be afforded the opportunity to continue in their chosen fields. They should not suddenly be presumed to be no longer fit to perform. Finally, persons reaching these ages are usually well aware of their decreased physical capacities if they exist. Handled in a mature and respectful fashion, the retirement process can be a smooth and dignified transition both for the individual and for the institution in question.
I recognize the able submissions of counsel for the Hospital and the Board of Trustees, to the effect that there is an increasing number of practitioners and that the admitting privileges available to the hospital are not unlimited. The Hospital must be efficient and cohesive. But I cannot accept that this can justify the imposition of the measures in question. The bottom line is competence. I doubt anyone would argue that experienced practitioners have expertise which cannot be found in a textbook. And any practitioner who has not kept up with recent developments should and will be screened out in annual reviews. Younger practitioners have greater physical stamina in some cases, but the health of all practitioners is relevant to their ongoing competence. We are left with the bare imposition of a different and higher standard on those over 65. This method of impairing rights is too severe. In this case, the means used should have been more carefully tailored to impair the rights in a more appropriate manner.
I conclude then that Regulation 5.04 and the policy attached to it cannot be saved by s. 1 of the Charter and therefore is unconstitutional. Accordingly, I would dismiss the appeal with costs, and answer the constitutional questions as follows:
1.Do the provisions of the Canadian Charter of Rights and Freedoms apply to the actions of the Vancouver General Hospital in establishing and administering Regulation 5.04 of the Medical Staff Regulations?
Yes.
2.If the answer to question 1 is yes, is Regulation 5.04 of the Medical Staff Regulations contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
Yes.
3.If the answer to question 1 is yes, was the administration of Regulation 5.04 of the Medical Staff Regulations by the Vancouver General Hospital contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms?
Yes.
4.If the answer to either question 2 or 3 is yes, is Regulation 5.04 of the Medical Staff Regulations or the manner of its administration by the Vancouver General Hospital nevertheless justified under s.1 of the Canadian Charter of Rights and Freedoms?
No.
//Sopinka J.//
The following are the reasons delivered by
SOPINKA J. -- For the reasons which I gave in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, I agree with the conclusions and reasons of Justice La Forest in respect of all issues except whether Regulation 5.04 is law within the meaning of s. 15(1) of the Canadian Charter of Rights and Freedoms which I would prefer not to decide on the basis of an assumption that the Hospital is part of government.
//Cory J.//
The following are the reasons delivered by
CORY J. (dissenting) -- On this appeal I am in agreement with the reasons of Justice Wilson and her proposed disposition of the case. However, I must briefly explain the basis for my conclusion that s. 1 of the Charter could not save the Hospital's mandatory retirement regulations while it could quite properly be employed to maintain the universities' compulsory retirement regulations.
I agree with Justice La Forest that, for the reasons he expressed, the balancing exercise which the Court must undertake in a consideration of the application of s. 1 to the universities' regulations should be sensitive and not mechanistic.
Certainly there are substantial differences between universities and hospitals. The universities justified their policies of mandatory retirement on the basis that they were intended to enhance their capacity to seek and maintain excellence by permitting flexibility in resource allocation and faculty renewal and to preserve academic freedom and the collegial form of association by minimizing distinctive modes of performance evaluation.
The importance of these objects was recognized by La Forest J. in this way, at pp. 286-87 [McKinney v University of Guelph, [1990] 3 S.C.R. 229]:
Academic freedom and excellence is essential to our continuance as a lively democracy. Faculty renewal is required if universities are to stay on the cutting edge of research and knowledge. Far from being wholly detrimental to the group affected, mandatory retirement contributes significantly to an enriched working life for its members. It ensures that faculty members have a large measure of academic freedom with a minimum of supervision and performance review throughout their period at university. They need not be unduly concerned with a "bad year" or a few bad years, or that their productive capacity may decline with the passing years. Security of employment is well protected for a substantial number of years and they are spared demeaning tests that would otherwise have to be employed. That is not to say, and there can be no doubt, that mandatory retirement can be a source of considerable anguish for those who do not wish to retire. But the "bargain" involved in taking a tenured position has clear compensatory features even for the individual affected, and it is noteworthy that it is the bargain sought by faculty associations and indeed by labour unions in many other sectors of our society.
Against the detriment to those affected must be weighed the benefit of the universities' policies to society generally and the individuals who compose it. It must be remembered as well that, in a closed system with limited resources like universities, there is a significant correlation between those who retire and those who may be hired. Thus the young must be deprived of the opportunities to contribute to society through work in the universities as part of the cost of retaining those currently employed on an indefinite basis.
These factors were in large part responsible for determining that the compulsory retirement regulations of the universities met all the requirements of s. 1 of the Charter. They do not have the same significance in the case of hospitals. Doctors with admitting or operating privileges have no security of tenure. It follows that tenure can hardly be said to be the essential part or indeed any part of the bargain struck between the doctor and the hospital. It is not without significance that in the university setting the Faculty Association supported the mandatory retirement policy, whereas there was no such support by the Medical Association for the Hospital's policy.
At the Hospital the doctor's level of skill is tested at least annually. There was a system in place for testing doctors before the mandatory retirement policy came into effect. There is still a testing procedure in effect whereby doctors are reviewed or tested once a year. That review system is sufficient in itself to demonstrate that the s. 1 requirements cannot be met by the Hospital. A continuous testing of the skills of doctors throughout their years of association with a hospital is essential for the successful operation of the Hospital. The testing takes place without regard to age. In the hospital setting the essential testing of doctors cannot adversely affect any collegiality that may exist. Indeed, collegiality does not appear to be an essential factor in the operation of a hospital as it is for a university. Nor can the testing be said to impair in any way security of tenure at the hospital. Clearly, tenure must be dependent upon the doctor's demonstrating a satisfactory level of skill in order to continue to work at the Hospital.
It can thus be seen that the factors which operated to bring the university retirement policy within the scope of s. 1 of the Charter are not applicable to the Hospital. There would seem to be no valid reason why continued testing could not serve to ensure that the doctors over 65 years of age possessed a satisfactory degree of skill.
Appeal allowed and the plaintiffs' action dismissed with costs, WILSON, L'HEUREUX-DUBÉ and CORY JJ. dissenting.
Solicitors for the appellants: Davis & Company, Vancouver.
Solicitors for the respondents: Jordan & Gall, Vancouver.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of British Columbia: Ministry of Attorney General, Victoria.