Eldridge v. British Columbia (Attorney General)

Robin Eldridge, John Warren, and Linda Warren were each born deaf. They alleged that the provincial government of British Columbia’s failure to provide funding for sign language interpreters for deaf persons when they received medical services violated the right to equality contained in s. 15(1) of the Canadian Charter of Rights and Freedoms.

Medical care in British Columbia was delivered through two primary mechanisms, the Hospital Insurance Act, which reimbursed hospitals for medically required services provided to the public, and the province’s Medical Services Plan, which was established and regulated by the Medical and Health Care Services Act. These were lump sum payments to hospitals, to be allocated as the hospitals saw fit. They were not allocated to sign language interpreters, and deaf persons in the province communicated to doctors primarily through written notes.

The Appellants asserted that, because of the communication barrier that existed between deaf persons and health care providers, they received a lesser quality of medical services than hearing persons. They contended that the failure of the state to pay for interpreters infringed their right to equal benefit of the law without discrimination based on physical disability. In assessing whether to allow the appeal for a declaratory judgment, the Court primarily considered whether the appellants had been afforded “equal benefit of the law without discrimination” within the meaning of s. 15(1) of the Charter.

The Court held that the legislative regime itself did not constitute an infringement of s. 15(1), but that the decision made under it not to fund sign language interpreters could. It considered that the legislation was to be given a rights-consistent interpretation with the Charter, and needed to therefore be interpreted to include funding for sign language interpreters, at least where effective communication would require such an interpreter. As such, any violation of the Charter lay in the exercise of discretion given to hospitals and the Medical Services Commission, not in the legislation itself.

The Court also held that although hospitals were non-governmental organizations, they were regulated by the Act when they performed public functions. These public functions included general hospital services, because in providing these services, the hospitals carried out a specific governmental objective and delivered a comprehensive social program.

Having established these preliminary matters, the Court held that the failure of the Medical Services Commission and hospitals to provide sign language interpretation where it was necessary for effective communication constituted a prima facie violation of the s. 15(1) rights of deaf persons and was not a reasonable limitation under s. 1. Section 15(1) was prima facie violated because the failure to provide sign language interpreters meant that the quality of “an indispensable component of the delivery of medical services” provided to the deaf was adversely affected compared to that of the hearing, and this difference in services was based on a “personal characteristic” that was “irrelevant to the functional values underlying the health care system” (para. 59).

This violation could not be justified by limitations on the fiscal resources of the state. Although the Respondents argued that if they provided sign language interpreters, they would also need to provide translators for other languages, and to spend significant resources accommodating numerous other disadvantaged groups’ needs, the Court considered that such arguments were not applicable here. The needs of deaf persons could be meaningfully distinguished from those of speakers of other languages, both in terms of the Charter provisions applicable and the experience of being deaf. Furthermore, the Appellants were seeking only equal access to a service available to all, not a special benefit that would reduce their general disadvantage. As such, the failure to fund sign language interpreters failed the minimum impairment test in s. 1.

The appropriate and just remedy was to grant a declaration that the failure to provide interpreters was unconstitutional. The declaration was suspended for six months, and the Court directed the government of British Columbia to in the meantime find a way to administer the Medical and Health Care Services Act (which became the Medicare Protection Act) and the Hospital Insurance Act consistently with the described requirements of s. 15(1).

“Unlike Stoffman, then, in the present case there is a ‘direct and . . . precisely-defined connection’ between a specific government policy and the hospital’s  impugned conduct. The alleged discrimination -- the failure to provide sign language interpretation -- is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is not simply a matter of internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act.  The Legislature, upon defining its objective as guaranteeing access to a range of medical services, cannot evade its obligations under s. 15(1) of the Charter to provide those services without discrimination by appointing hospitals to carry out that objective. In so far as they do so, hospitals must conform with the Charter.” Para. 51.

“The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex.  In the case of disability, this is one of the objectives.  The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits and to accommodate them.  Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which disabled persons will never be able to gain access.  Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual.  The blind person cannot see and the person in a wheelchair needs a ramp.  Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.  The discrimination inquiry which uses “the attribution of stereotypical characteristics” reasoning as commonly understood is simply inappropriate here.  It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment.  It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.” Para. 65.

“The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field. … It is also a cornerstone of human rights jurisprudence that the duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation. In s. 15(1) cases this principle is best addressed as a component of the s. 1 analysis. … Reasonable accommodation, in this context, is generally equivalent to the concept of "reasonable limits". It should not be employed to restrict the ambit of s. 15(1).” Paras. 78-79.

“The appellants do not demand that the government provide them with a discrete service or product, such as hearing aids, that will help alleviate their general disadvantage.  Their claim is not for a benefit that the government, in the exercise of its discretion to allocate resources to address various social problems, has chosen not to provide.  On the contrary, they ask only for equal access to services that are available to all.  The respondents have presented no evidence that this type of accommodation, if extended to other government services, will unduly strain the fiscal resources of the state.  To deny the appellants’ claim on such conjectural grounds, in my view, would denude s. 15(1) of its egalitarian promise and render the disabled’s goal of a barrier-free society distressingly remote.” Para. 92.