An Action Against “Swine Flu” – Is It Subject to Charter Review?

2003: Severe Acute Respiratory Syndrome outbreak (SARS)
2004: Avian Influenza in poultry (H5N1)
2007: Equine Flu
2009: Human Swine Flu (H1N1)

Throughout the years, we have had a number of health concerns that have come out in the open ranging from SARS to Avian Influenza and now “Swine Flu”. Considering this increase in public health concerns, a quick look at the application of the Canadian Charter in the health care context might be appropriate in the circumstances.

Health concerns are paramount in a world where infectious diseases have becomes the norm, rather than an exception. Face-masks have made their way into most households. A mere cough gets the most unexpected reaction of horror, disgust and fear as bystanders inch their way away from the offender. The world is slowly transforming into a germophobe’s ultimate nightmare where proximity to any surface without the protection of latex gloves may lead to severe, negative health repercussions.

In this horror-laden world, it may be useful to consider the impact of Charter and common law decisions in the health care context. It might be advantageous to understand how the Charter applies to health care – and more specifically, whether a claim for health care can be brought under section 7 of the Charter that guarantees life, liberty or security of the person or whether access to health care is guaranteed under section 15(1) of the Charter.

We will begin this analysis by considering the extent to which the Charter applies to the decisions and actions of the various health care organizations in the health care system. The Supreme Court addressed this issue in Eldridge v. B.C. (Attorney General), [1997] 3 S.C.R. 624 and set out the limits and requirements for cases dealing with health care.

Prior to Eldridge
The application of the Charter is defined in section 32(1). Before Eldridge, the application of the Charter was interpreted in two defining cases – R.W.D.S.U. v Dolphin Delivery, [1986] 2 S.C.R. 573, in 1986 and Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 in 1990.

The SCC in Dolphin Delivery determined that the Charter applied to “government” only and not private entities. The Court concluded that the Charter did not apply to common law rules unless government was relying upon them. In 1990, Stoffman addressed the application of the Charter specifically for cases relating to the health care system. Stoffman considered whether the Charter applied to the Vancouver General Hospital’s mandatory retirement policy. Justice LaForest, for the majority,  held that even though the government of B.C. retained control over the hospital, it did not regulate routine administrative policies. As such, the hospital did not fall within the definition of “government” as specified in section 32(1).

Eldridge as precedent
This decision was further reiterated and clarified in the 1997 decision of Eldridge. Justice LaForest followed his previous reasoning in Stoffman and concluded that hospitals were private entities and not government. Because of this private status, the Charter did not generally apply to them because of  section 32(1).  That said, the Court clarified this interpretation by stating that hospitals would be subject to the Charter to the extent that they implemented a specific government program, for example by providing publicly funded health care services.

Implications for plaintiffs today
The Eldridge decision was an extremely significant one as it clearly defined the applicability of the Charter to Canadian hospitals.  The Stoffman decision left hospitals impervious to any Charter claims as private entities instead of government. However, the Eldridge decision resolved this anomaly and expanded section 32(1) to include private entities that were engaged in planning and delivery of government funded health care services. Additionally, the SCC concluded that the Charter is applicable to physicians and other health care providers whose services are subsidized through health insurance legislation as they are acting as “agents” for the government.

Canada had a mixed health system where the line between private and public has blurred. However, the publicly funded health care system has become a central part of the government program and a crucial characteristic of Canadian society. Because of its central nature, it is essential that such a system should be subject to the Charter. The SCC recognizes this in Eldridge by expanding the scope of “government” as defined in section 32(1) of the Charter.

Obstacles for those contemplating an action after contracting the “Swine Flu”
Although Eldridge can be used as precedent to start an action against Ontario and the hospitals for violating section 7 of the Charter, such an action will most likely not succeed based on previous claims.

The Ontario Court of Appeal recently dismissed the claim by the nurses and individuals who contracted SARS, stating that there were no legal grounds to proceed. The court concluded that even though Ontario is obliged to protect the public from the spread of communicable diseases, they cannot be held financial responsible to those people, both nurses and the general public, for contracting the disease.

Notwithstanding any previous decision, potential lawsuits remain an open question and as always we adopt a “wait-and-see” approach.

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