Application under Canadian Charter of Rights and Freedom section 15 (equality rights) by deaf patients challenging failure to provide sign language interpretation in the provision of healthcare. Positive obligations to allocate resources reasonably. Substantive equality and right to healthcare. Discretionary decision-making.
In 1990 the non-profit agency that had provided sign language interpreter services in the lower mainland of British Columbia began experiencing serious financial difficulties and sought funding through officials at the Ministry of Health. It was turned down.
The appellants, Robin Eldridge and Linda Warren were born deaf. They alleged that the absence of interpreters subjected them to increased the risk of misdiagnosis and ineffective treatment and argued that the government’s failure to specifically include such services in the relevant legislation violated their right to equality under s.15 of the Charter on the ground of disability.
A unanimous Supreme Court of Canada upheld the appeal, but found that the violation of the Charter was not in the legislation but in the exercise of discretionary decision-making. The Charter applies to these private decision-makers where they have been delegated a governmental function. The Court held that the right to equality places obligations on governmental actors to allocate resources to ensure that disadvantaged groups have full advantage of public benefits. The government had failed to demonstrate that it had a reasonable basis for denying medical interpretation services in light of their cost. The Court found that a declaration suspended for six months was the appropriate remedy, as there were a myriad of options available to the government.
Keywords: Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624, Health, Rights, Legal, Remedies
In response to the Court’s decision, a new program was established with consultation with the Deaf, Deaf/Blind and Hard of Hearing communities in the program design. There were initially concerns about delays in implementing the program, and other provinces in Canada have been slow to ensure compliance. The decision has been used in support of a number of advocacy initiatives for improved programs and services for people with disabilities.
This decision provides a basis for embracing many social and economic rights of vulnerable groups under the framework of equality rights. The Court recognized positive obligations to allocate resources, to maintain or implement the necessary service and applied a reasonableness test to resource allocation decisions. Unfortunately, more recent jurisprudence from the Supreme Court of Canada has put this substantive equality framework into question.
Women’s Legal Education and Action Fund, www.leaf.ca
Disabled Women’s Network Canada, www.dawncanada.net
The Charter Committee on Poverty Issues, www.povertyissues.org
The Canadian Association of the Deaf, www.cad.ca
The Canadian Hearing Society, www.chs.ca
The Council of Canadians with Disabilities, www.ccdonline.ca
