Russell v. Health Services Restructuring Commission

Russell v. Health Services Restructuring Commission Collection Decisions of the Court of Appeal Date 1999-06-11 Docket numbers C31173 Judges Finlayson, George Duncan; Weiler, Karen Merle Magnuson; MacPherson, James C. Subject Civil Decision Content DATE: 19990611 DOCKET: C31173 COURT OF APPEAL FOR ONTARIO FINLAYSON and WEILER JJ.A and MacPHERSON J. (ad hoc) BETWEEN: ) Bryan Finlay, Q.C., ) J. Gregory Richards and PROVINCIAL SUPERIOR ANNE RUSSELL, ) Frank Walwyn SISTER DOLORES DEMULLING, SISTER ) for the appellants MARILYN LAROCQUE, SISTER THERESA ) SHANNON, SISTER ROSEMARIE KUGEL, ) SISTER JOAN KALCHBRENNER, SISTER ) EVELYN LEONARD and RELIGIOUS ) HOSPITALLERS OF SAINT JOSEPH OF ) THE HOTEL DIEU OF KINGSTON ) Applicants ) (Appellants) ) ) and ) Andrew E. Bernstein, ) John B. Laskin and HEALTH SERVICES RESTRUCTURING ) Linda M. Plumpton COMMISSION and THE MINISTER OF ) for the respondent HEALTH ) Respondents ) (Respondent in appeal) ) ) Heard: June 7 and 8, 1999 ) On appeal from the judgment of the Divisional Court (MacFarland, Salhany and Sedgwick JJ.), dated October 19, 1998. BY THE COURT: [1] The appellants appeal, pursuant to leave granted by this court, from the judgment of the Divisional Court dismissing the appellants’ application for judicial review. Facts [2] The individual appellants are those Sisters of the Religious Hospitallers of St. Joseph who are directors of the Hotel Dieu of Kingston, a public hospital under the Public Hospitals Act, R.S.O. 1990, c.P.40. The Religious Hospitallers of St. Joseph are the successors to the Daughters Hospitallers of St. Joseph. The order was originally founded in 1636 with a mission for the care of the “sick poor”. The first Hotel Dieu was founded at La Flèche in France and subsequently the Religious Hospitallers of St. Joseph would take their health care mission to Montreal and later into different provinces in Canada and elsewhere in North and South America. In 1845 this religious order was canonically established as the Sisters of l’Hôtel-Dieu for the Diocese of Kingston. [3] The respondent, the Health Services Restructuring Commission (“HSRC”), was established under s. 8(1) of the Ministry of Health Act, R.S.O. 1990, c.M.26. For the purposes of this appeal, it derives its authority under ss.7 and 8 of that statute and O. Reg. 87/96 passed under the authority of the Public Hospitals Act. [4] The above two statutes assigned broad powers to the HSRC to develop, establish and maintain an effective and adequate health care system and to restructure the health care services provided in Ontario communities. These powers included the authority to require a health care facility to cease operating a public hospital or to amalgamate with another public hospital. The HSRC began its restructuring work in Kingston in 1997. [5] On June 23, 1998, the HSRC issued directions to the Board of Directors of the Hotel Dieu Hospital to cease to operate as a public hospital effective October 31, 1998. Further to that objective, a specific direction was given to develop and implement a plan to relinquish to the Kingston General Hospital the operation and management of the programs and services of the Hotel Dieu Hospital by October 31, 1998. Issues [6] The appellants raise four grounds of appeal: 1. The Divisional Court erred in failing to find that the HSRC exercised an authority exercisable by a commission under s. 3(5) of the Planning Act, R.S.O. 1990, c.P.13; 2. The Divisional Court erred in failing to find that the review of planning matters by the HSRC fell below the standard required of a commission acting under s. 3(5) of the Planning Act; 3. The Divisional Court erred in not finding that it is patently unreasonable to “destroy” the Hotel Dieu Hospital before it is known whether or not the restructuring plan of the HSRC can ever be implemented; and 4. The Divisional Court erred in not finding that the direction by the HSRC to restructure the means of providing health care services in the Kingston area interfered with the exercise by the Sisters of the Religious Hospitallers of St. Joseph of their religious beliefs contrary to s.2(a) of the Canadian Charter or Rights and Freedoms. Analysis [7] Grounds one and two can be dealt with together. They are related to the third ground of appeal that the directions of the HSRC requiring the Hotel Dieu Hospital to cease operating as a public hospital were patently unreasonable. [8] The HSRC has a broad mandate to restructure public hospital services across Ontario in the public interest. In carrying out its public interest mandate, the HRSC is obliged to consider the health care role played by the Religious Hospitallers of Saint Joseph. Its directions specifically contemplate a future role for the Sisters in providing acute hospital care. [9] The empowering statute of the HSRC is the Ministry of Health Act. Section 8(8) specifies that its duties and powers “shall be duties and powers with respect to the development, establishment and maintenance of an effective and adequate health care system and the restructuring of health care services provided in Ontario communities”. The authority exercised by the HSRC does not extend to planning matters such as official plans, zoning by-laws or other tools employed by municipalities for land use planning. [10] The term “planning matters”, as used in the Planning Act, comprises official plan, zoning, and other land-use decisions that are ordinarily made by municipalities and, if required, approved by provincial authorities. This is clear from both the purpose and the language of the Planning Act. Sections 1.1(b) and (c) include among the purposes of the Act “to provide for a land use planning system led by provincial policy” and “to integrate matters of provincial interest in provincial and municipal planning decisions” [emphasis added]. Similarly, s. 1.1(d) refers to fair, open, accessible, timely and efficient “planning processes” and s. 1.1(f) speaks of “the decision-making authority and accountability of municipal councils in planning”. The entire focus of the Planning Act is land use planning. Section 3(1), which provides for the issuance of policy statements, expressly states that these statements are to be “on matters relating to municipal planning”. [11] The Divisional Court held that the HSRC does not exercise any authority to affect planning matters in this sense. It recognized that the planning process would not be engaged until the implementation of the directions, a process in which the HSRC does not participate. In our opinion, this holding was correct. The HSRC has no authority to make or approve municipal plans or any land use planning instrument, or to require that these instruments conform to its directions. Its decisions may lead to requests by public hospitals and other entities involved in the implementation of the directions that other authorities, including municipalities and the Ontario Municipal Board, exercise their authority affecting planning matters. It is also conceivable that the HSRC may have to exercise its authority to revise its directions in light of decisions made by planning authorities, or the time required to complete planning processes. But this does not bring the HSRC itself within s. 3(5) of the Planning Act. [12] It follows that if the provisions of the Planning Act are beyond the purview of the HSRC, then it was not necessary for the Divisional Court or this court to concern itself as to the extent to which the HSRC considered planning and zoning matters. While the HSRC can embrace considerations beyond its specified mandate, we are of the opinion that it is neither obliged to nor should it attempt to consider and resolve any and all problems that the implementation of its directions could cause with respect to the Planning Act or any municipal zoning by-law. Section 3(5) of the Planning Act only applies to a “commission … of the government” that is “exercising any authority that affects any planning matter”. Since the authority of the HSRC relates to health care and not planning, we agree with the Divisional Court that the HSRC does not come within s. 3(5). [13] This takes us to the third ground of appeal, that the direction to “destroy” the Hotel Dieu Hospital is patently unreasonable. The appellants note the uncontradicted planning evidence that the directions as to the transfer of certain functions to a new hospital site may be impossible to implement because of difficulties in obtaining the necessary planning approvals, at least within the time contemplated by the present directions. This, they say, makes the direction patently unreasonable. However, given our view that planning considerations are not a concern of the HSRC, problems of implementation cannot render patently absurd the direction to proceed with the restructuring that the HSRC considers necessary to maintain an effective health care system. [14] As to the problems inherent in the time restraints, they are in large measure a reflection of the response by the courts to this application. To the extent that problems of timing and the obtaining of planning approvals are or become a concern, they will have to be addressed as they arise. To suggest that the directions are patently absurd because every conceivable contingency has not been considered and provided for is itself absurd. No project could proceed if it was a requirement of its implementation that it must proceed without variation or adjustment. [15] The appellants’ fourth ground of appeal is that the effect of the HSRC’s directions is to turn the Hotel Dieu Hospital into a secular hospital and that this result violates s.2(a) of the Charter, which guarantees freedom of religion. [16] In making this submission the appellants’ starting point is their long ministry, through the provision of health care, to the “sick poor” in the Kingston area. They contend that this ministry is central to their religious beliefs and practices and that the restructuring of hospitals in Kingston flowing from the HSRC’s directions will diminish, or perhaps even destroy, that ministry. [17] The appellants assert that their 125-plus year health care mission is a sincere expression of their religious beliefs and is, therefore, worthy of constitutional protection. They rely especially on the decision of the Supreme Court of Canada in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, wherein La Forest J., speaking for a unanimous court, said at p. 868: [A]ssuming the sincerity of an asserted religious belief, it was not open to the Court to question its validity. It was sufficient to trigger constitutional scrutiny if the effect of the impugned act or provision interfered with an individual’s religious activities or convictions. [18] The problem with the Sisters’ argument is that the real effect of the HSRC’s directions is to terminate public funding of their hospital. Paragraph 3 of the directions provides that the hospital must “Cease to operate as a public hospital effective October 31, 1998.” The crucial word here is “public”. The HSRC has decided that public funding of the hospital is no longer desirable.1 Accordingly, the Sisters’ argument becomes, in a practical sense, that the long-standing public financial support for their hospital must continue because of the religious foundation of the hospital. [19] In our view, this argument simply cannot withstand scrutiny. The great principle of freedom of religion does not guarantee public funding for denominational public hospitals. The decision of the Supreme Court of Canada in Adler v. Ontario, [1996] 3 S.C.R. 609, affirming the decision of this court (1994), 19 O.R. (3d) 1, is a complete answer to the appellants’ position. [20] In Adler, the courts held that freedom of religion confers no right to public funding for religious schools. Sopinka J. said, at pp. 702-03: [F]ailure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion. The fact that no funding is provided for private religious education cannot be considered to infringe the appellants’ freedom to educate their children in accordance with their religious beliefs where there is no restriction on religious schooling. As submitted by the intervener, the Canadian Civil Liberties Association, there are many spheres of government action which hold religious significance for religious believers. It does not follow that the government must pay for the religious dimensions of spheres in which it takes a role. If this flowed from s.2(a), then religious marriages, religious corporations, and other religious community institutions such as churches and hospitals would all have a Charter claim to public funding. The same could also be said of the existing judicial system which is necessarily secular. The appellants’ argument would lead to an obligation by the state to fund parallel religious justice systems founded on canon law or Talmudic law, for example. These are clearly untenable suggestions. In conclusion, for the reasons given above, I am of the view that the failure to fund cannot constitute state interference with freedom of religion equivalent to a violation of s.2(a) of the Charter. [Emphasis added.] [21] This reasoning, articulated in the context of public funding for religious schools, applies equally in the context of public funding for a religious hospital. Indeed, the appellants do not assert that the factual difference between schools and hospitals has any constitutional significance. [22] However, the appellants attempt to distinguish Adler on a different basis. In Adler, the parents of religious school students sought to invoke s.2(a) of the Charter to compel public funding of their schools for the first time. In the present case, there has been public funding of the appellants’ hospital for more than a century. The appellants assert that the termination of this funding violates an essential component of their long-standing religious beliefs and practices. As expressed in paragraph 65 of their factum: The Divisional Court’s reliance on Adler was misplaced. The Sisters’ case is quite different. The issue here is in what circumstances can the State, a partner for over a century with the Sisters in delivering health care through a denominational hospital, unilaterally force that denominational hospital to become a secular hospital devoid of its religious mission. [23] This submission amounts to an assertion that public funding given to a religious institution cannot be terminated or even diminished unless the government justifies its policy change under s.1 of the Charter. We do not agree with this submission. We think that the case law supports the respondents’ succinct proposition in paragraph 78 of its factum: “if there is no constitutional imperative for a policy in the first place, reversing it cannot be unconstitutional.” See Ferrel v. Ontario (Attorney General) (1998), 42 O.R. (3d) 97 (C.A.), especially at 109-11, and Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287 (Gen. Div.), especially at 301, aff’d [1999] O.J. No. 1104 (C.A.). Result [24] The appeal is dismissed for the reasons set out above. This is not an appropriate case for costs. Released: JUN 11 1999 “G.D. Finlayson J.A.” GDF “K.M. Weiler J.A.” “J.C. MacPherson J. (ad hoc)” _______________________________ 1 Date format is yyyymmdd 2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS 1 There is no suggestion that the HSRC has reached this decision because of any perceived failure on the part of the Sisters to operate a highly successful hospital. Indeed, it is common ground that both the Sisters’ mission, and their activities pursuant to that mission, are entirely laudable.