Re Lalonde et al. and Commission de restructuration des services de santé

[Indexed as: Lalonde v. Ontario (Commission de restructuration des services de santé)]

48 O.R. (3d) 50

[1999] O.J. No. 4488

Court File No. 98-DV-244

Ontario Superior Court of Justice Divisional Court

Carnwath R.S.J., Blair and Charbonneau JJ.

November 29, 1999*

*Note: This judgment recently came to the attention of the editors.

Administrative law -- Judicial review -- Health Services Restructuring Commission issuing directions which would destroy ability of Ontario's sole francophone hospital to provide truly francophone medical services and medical training -- Directions not patently unreasonable or clearly irrational -- Commission not taking irrelevant considerations into account -- Directions could not be struck down on purely administrative law grounds.

Charter of Rights and Freedoms -- Equality rights -- Health Services Restructuring Commission issuing directions which would destroy ability of Ontario's sole francophone hospital to provide truly francophone medical services and medical training -- Directions not violating s. 15 of Charter -- Canadian Charter of Rights and Freedoms, s. 15.

Constitutional law -- Fundamental principles -- Protection of minorities -- Health Services Restructuring Commission issuing directions which would destroy ability of Ontario's sole francophone hospital to provide truly francophone medical services and medical training -- Protection of minorities constituting one of fundamental organizing principles underlying Canadian Constitution -- Commission failing to comply with that fundamental organizing principle by failing to take into account importance of francophone institutions as opposed to bilingual institutions for preservation of language and culture of Franco-Ontarians -- Directions struck down.

The Ontario Government established the Health Services Restructuring Commission, with a broad mandate to restructure health services throughout Ontario. The Commission was clothed with the power to issue directions in the place of the Minister of Health. Hpital Montfort ("Montfort") is Ontario's only francophone (as opposed to bilingual) hospital, providing a wide range of medical services and training. The Commission initially proposed that Montfort be closed. That proposal met with intense opposition and the Commission ultimately issued directions ("the directions") which, if implemented, would reduce the range of medical services provided by Montfort and would greatly undermine its effectiveness as a teaching hospital. The applicants brought an application to strike down the directions on the grounds that the directions violate s. 15 of the Canadian Charter of Rights and Freedoms; the directions are invalid on normal administrative law principles because they are patently unreasonable and because the Commission exceeded its jurisdiction by taking into account irrelevant considerations; and the directions violate one of the fundamental organizing principles underlying the Canadian Constitution, namely, the principle of protection of minorities.

Held, the application should be granted.

The applicants' s. 15 Charter argument failed. Montfort, as a corporation, was not an "individual" within s. 15 of the Charter and, accordingly, did not have standing to invoke its provisions. Hence, it was the individual applicants alone who had standing to make the argument. Even assuming the decisions of the Commission affecting Montfort reflect differential treatment between Franco-Ontarians and Anglo-Ontarians as comparable groups, the different treatment is not based upon analogous grounds to those enumerated in s. 15(1) of the Charter. To the extent that the applicants relied upon differential treatment based upon analogous grounds, they really purported to rely on the status of French as an official language to make their case. The Supreme Court of Canada has made it clear, however, that s. 15 of the Charter may not be used as a back door to enhance language rights beyond what is specifically provided for elsewhere in the Charter.

Given the limited scope for judicial review of the Commission's directions, the applicants' argument based on administrative law principles also failed. The Government of Ontario assigned a very broad public policy mandate to the Commission for the purpose of restructuring the system of health care in Ontario. The court can interfere only when the Commission has not acted according to law in arriving at its decision. The constitutional issue aside, the directions are not patently unreasonable or clearly irrational. Nor did the evidence establish that the Commission based its decisions upon irrelevant considerations.

The applicants succeeded on the constitutional ground. One of the fundamental organizing principles underlying the Canadian Constitution is the protection of minorities. The Commission is a vehicle for government action. Accordingly, its conduct must be measured against the "minority protection" benchmark. Given that the principle of minority protection -- particularly francophone minority protection -- is an independent principle underlying the Constitution, and one which has a powerful normative force which is binding upon governments, the court must intervene, when necessary, to protect against government action which fails to recognize that principle. In spite of the Commission's recognition of the importance of ensuring the continuation of French language medical services to the francophone population in the Region of Ottawa-Carleton, it saw that need only in terms of the provision of bilingual services; it did not take into account the broader issue of the protection of and respect for francophone cultural minority rights. By failing to take into account the importance of francophone institutions, as opposed to bilingual institutions, for the preservation of the language and culture of Franco- Ontarians, the Commission failed to comply with one of the fundamental organizing principles underlying the Constitution, namely, that of the protection of minorities. Accordingly, the directions could not stand.

APPLICATION for an order striking down certain directions of the Health Services Restructuring Commission.

Reference re Secession of Quebec, [1998] 2 S.C.R. 217, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385, 228 N.R. 203, 55 C.R.R. (2d) 1, folld Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) (1997), 36 O.R. (3d) 41, 36 O.R. (3d) 41 (Div. Ct.); R. v. Beaulac, [1999] 1 S.C.R. 768, [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193, 238 N.R. 131, 62 C.R.R. (2d) 133, 134 C.C.C. (3d) 481 (sub nom. Beaulac v. Canada (Attorney General)); Singh v. Canada (Attorney General), [1999] 4 F.C. 583, 67 C.R.R. (2d) 81, [1999] 4 F.C. 583, [1999] F.C.J. No. 1056 (T.D.), consd Other cases referred to Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, [1989] 1 S.C.R. 143, 34 B.C.L.R. (2d) 273, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, 36 C.R.R. 193, 25 C.C.E.L. 255; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673, 150 N.R. 161, 93 C.L.L.C. 14,022; Canadian National Railway Co. v. Fraser-Fort George (Regional District) (1996), 140 D.L.R. (4th) 23, 140 D.L.R. (4th) 23, 35 M.P.L.R. (2d) 177, 26 B.C.L.R. (3d) 81 (C.A.); Commission des droits de la personne v. Canada (Attorney General), [1982] 1 S.C.R. 215, [1982] 1 S.C.R. 215; Council of Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 375 (H.L.); Dunmore v. Ontario (Attorney General), 182 D.L.R. (4th) 471, 182 D.L.R. (4th) 471, [1999] O.J. No. 1104 (C.A.), affg (1997), 37 O.R. (3d) 287, 37 O.R. (3d) 287, 155 D.L.R. (4th) 193, 48 C.R.R. (2d) 211, 98 C.L.L.C. 220-012, 41 C.L.R.B.R. (2d) 29, 41 C.L.R.B.R. (2d) 29 (Gen. Div.); Egan v. Canada, [1995] 2 S.C.R. 513, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609, 182 N.R. 161, 29 C.R.R. (2d) 79, 95 C.L.L.C. 210-025, 12 R.F.L. (4th) 201 (sub nom. Egan and Nesbit v. Canada); Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, [1997] 3 S.C.R. 624, 38 B.C.L.R. (3d) 1, 151 D.L.R. (4th) 577, 218 N.R. 161, [1998] 1 W.W.R. 50, 46 C.R.R. (2d) 189; Eurig Estate (Re), [1998] 2 S.C.R. 565, [1998] 2 S.C.R. 565, 40 O.R. (3d) 160n, 165 D.L.R. (4th) 1, 231 N.R. 55, 23 E.T.R. (2d) 1 (sub nom. Eurig Estate v. Ontario Court (General Division), Registrar); Ferrell v. Ontario (Attorney General) (1998), 42 O.R. (3d) 97, 42 O.R. (3d) 97, 168 D.L.R. (4th) 1, 58 C.R.R. (2d) 21, 99 C.L.L.C. ô230-005 (C.A.); Hotel Dieu of Kingston v. Ontario (Health Services Restructuring Commission) (1999), 175 D.L.R. (4th) 185, 175 D.L.R. (4th) 185 (Ont. C.A.); Lachine General Hospital Corp. v. Quebec (Attorney General) (1996), 142 D.L.R. (4th) 659, 142 D.L.R. (4th) 659 (Que. C.A.); Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49; Ma he v. Alberta, [1990] 1 S.C.R. 342, [1990] 1 S.C.R. 342, 72 Alta. L.R. (2d) 257, 68 D.L.R. (4th) 69, 105 N.R. 321, [1990] 3 W.W.R. 97, 46 C.R.R. 193; Miron v. Trudel, [1995] 2 S.C.R. 418, [1995] 2 S.C.R. 418, 23 O.R. (3d) 160n, 124 D.L.R. (4th) 693, 181 N.R. 253, 29 C.R.R. (2d) 189, [1995] I.L.R. 1-3185, 10 M.V.R. (3d) 151, 13 R.F.L. (4th) 1; R. v. Paul Magder Furs Ltd. (1989), 69 O.R. (2d) 172, 69 O.R. (2d) 172, 33 O.A.C. 81, 49 C.C.C. (3d) 267, 45 C.R.R. 344 (C.A.), leave to appeal to S.C.C. refused (1989), 105 N.R. 153n, 45 C.R.R. 344n; R. v. Swain, [1991] 1 S.C.R. 933, [1991] 1 S.C.R. 933, 47 O.A.C. 81, 125 N.R. 1, 3 C.R.R. (2d) 1, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, [1985] 1 S.C.R. 721, 35 Man. R. (2d) 83, 19 D.L.R. (4th) 1, 59 N.R. 321, [1985] 4 W.W.R. 385, 3 C.R.R. D-1 (sub nom. Language Rights Under Manitoba Act, 1870); Reference re Manitoba Public Schools Act s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, [1993] 1 S.C.R. 839, 83 Man. R. (2d) 241, 100 D.L.R. (4th) 723, he149 N.R. 241, 36 W.A.C. 241, [1993] 3 W.W.R. 113, 14 C.R.R. (2d) 74 (sub nom. Public Schools Act (Man.) (Re)); Société des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents (Minority School Board No. 50), [1986] 1 S.C.R. 549, [1986] 1 S.C.R. 549, 69 N.B.R. (2d) 271, 27 D.L.R. (4th) 406, 66 N.R. 173, 177 A.P.R. 271, 23 C.R.R. 119; Thibaudeau v. Canada, [1995] 2 S.C.R. 627, [1995] 2 S.C.R. 627, 124 D.L.R. (4th) 449, 182 N.R. 1, 29 C.R.R. (2d) 1, 95 D.T.C. 5273, 12 R.F.L. (4th) 1 (sub nom. Thibaudeau v. M.N.R., Thibaudeau v. R.); Vriend v. Alberta, [1998] 1 S.C.R. 493, [1998] 1 S.C.R. 493, 67 Alta. L.R. (3d) 1, 156 D.L.R. (4th) 385, 224 N.R. 1, [1999] 5 W.W.R. 451, 50 C.R.R. (2d) 1, 98 C.L.L.C. ô230-021; Wellcome Foundation Ltd. v. Secretary of State for Social Services, [1987] 2 All E.R. 1025 (C.A.), affd on other grounds [1988] 2 All E.R. 684, [1988] 1 W.L.R. 635, [1987] 1 W.L.R. 1728 (H.L.) Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 38(6), 39 Canadian Charter of Rights and Freedoms, ss. 8, 15, 16-23 Constitution Act, 1867, s. 133 Criminal Code, R.S.C. 1985, c. C-46, s. 530 French Language Services Act, R.S.O. 1990, c. F.32, ss. 5, 6, 7 Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) Public Hospitals Act, R.S.O. 1990, c. P.40, s. 6 Rules and regulations referred to Authorization To Issue Directions Under Section 6 and Subsection 9(10) of the Act Regulation, O. Reg. 87/96 (rep. O. Reg. 273/99, s. 2) Health Services Restructuring Commission Regulation, O. Reg. 88/96 (rep. O. Reg. 272/99, s. 2) Authorities referred to Ottawa Health Services Restructuring Report (Health Services Restructuring Commission Report, February 1997) Saul, John Ralston, Reflections of a Siamese Twin: Canada at the End of the Twentieth Century (Penguin Books, 1997)

Ronald F. Caza and Pascale Giguère, for applicants. John B. Laskin and Julia E. Holland, for respondents.

BY THE COURT: --

I. BACKGROUND

Overview

In April 1996, the Ontario Government established the Health Services Restructuring Commission, with a broad mandate to restructure health services throughout Ontario. The Commission was clothed with the power to issue directions in the place of the Minister of Health, and was given a relatively short time period of four years to complete its task.

The Commission examined the situation in the Region of Ottawa-Carleton. It first announced its intentions with regard to the directions which it proposed to issue respecting the provision of health care services in the Region, in February 1997. Those intentions included -- at the time -- the closing of Hôpital Montfort no later than March 1999. Since then the Commission has modified its views, and the directions which have ultimately been issued (the "directions") do not contemplate the closure of the hospital. However, the applicants firmly believe the directions, if implemented, will lead to the destruction of Montfort's [^1] ability to provide truly francophone -- as opposed to "bilingual" -- medical services and (what is equally important) medical training.

The Commission's initial notice of intention, and its subsequent directions, sparked a firestorm of opposition from the Franco-Ontarian community and others. That opposition was succinctly summarized in the phrase: "Fermer Montfort, jamais!". The Commission has attempted to respond to some of the widespread criticism which it has faced by modifying its directions; nevertheless, the applicants argue that to proceed with the transformation of Montfort, in the manner prescribed by the directions, will cause irreparable harm to the Franco- Ontarian community in that:

-- it will be impossible in the future for Montfort to continue to offer health care services and medical training in a francophone milieu;

-- as a result, Montfort will not be able to continue to play its role as an institution essential to the survival of the Franco-Ontarian community; and

-- the direct result of putting the directions in place will be to increase the already critically high rate of assimilation of the minority Franco-Ontarian community into the English majority.

Thus, the Hospital and the individual applicants argue that the directions of the Commission must be set aside. They base their argument on the following grounds.

Issues

Counsel for the applicants submit that:

1. the Canadian Charter of Rights and Freedoms (the "Charter") applies to the Commission, and the directions issued respecting Hôpital Montfort violate s. 15 of the Charter;

2. the directions should be invalidated on normal administrative law principles because they are patently unreasonable and because the Commission exceeded its jurisdiction by taking into account irrelevant considerations in the form of a potential English backlash; and

3. the directions should be set aside on purely constitutional grounds because they violate one of the fundamental organizing principles underlying the Canadian Constitution, namely, the principle of protection of minorities -- in this case, a minority which is an official language minority in Canada and one of the country's founding cultures.

We conclude the applicants are entitled to succeed on the constitutional ground but fail on issues 1 and 2. Our reasons for this conclusion follow. Because of the importance of the constitutional argument, we shall deal with it first in the analysis. Before making that analysis, however, a more detailed outline of the facts is required.

II. FACTS

The Hospital Restructuring Commission

The Commission was established in April 1996 to restructure the provision of health care to Ontario communities by public hospitals. It was given four years to complete this task.

Among the powers assigned to the Commission is the power, in the place of the Minister, to issue directions to the board of a public hospital under s. 6 of the Public Hospitals Act, R.S.O. 1990, c. P.40. The directions that it may give include directions to stop operating as a public hospital or to amalgamate with another public hospital. As well, the Commission may give any other direction relating to a public hospital it considers to be in the public interest. In that regard, the Commission has a broad authority to consider and determine the public interest when it gives directions to public hospitals in the exercise of its powers. The Public Hospitals Act specifies the Commission may consider any matter it regards as relevant in making directions in the public interest. The Commission is also expressly authorized to amend or revoke a direction where it considers it in the public interest to do so.

There are approximately 192 public hospitals currently operating in Ontario. These hospitals are subject to extensive regulation by the provincial government through the Public Hospitals Act, as part of the overall regulatory regime governing the provision of health care in the province. The regulatory scheme extends to such matters as incorporation of public hospitals, the use and disposition of hospital buildings and facilities, the development and submission of plans, hospital management and administration, medical staff and admissions. All public hospitals receive public funding from the Ministry of Health (the "Ministry").

Hôpital Montfort is one of these hospitals. It provides both services to the public and training to medical professionals affecting a significant portion of the Franco-Ontarian community in the Region of Ottawa-Carleton and beyond, and it plays an important role in the Franco-Ontarian community across the entire Province. The nature of that community is important for an understanding of the issues in this case.

The Franco-Ontarian Community

There has been a significant francophone presence in what is now Ontario since the beginning of the 17th century. Francophones founded communities and built them upon their French language and culture. Within those communities they lived, worked, sang, studied, loved, quarrelled, suffered and died in French. Like other minorities, however, the Franco- Ontarian community has suffered from the forces of assimilation by the dominant English language and culture. One need only reflect, for example, upon the effects of Regulation 17 enacted by the Ontario Government in June 1912, to recognize the magnitude of such influences. The effect of Regulation l7 -- over a period of approximately 40 years -- was to drive Franco-Ontarian children into English language school settings and to eliminate their ability to be schooled in a francophone linguistic and cultural milieu. Unlike other minorities, however, the francophone language and culture in Canada -- like the English majority language and culture -- are entitled to special status under the Canadian Constitution.

In the early part of the 20th century, the francophone population was 10 per cent of the total population of Ontario. According to the 1991 census, that proportion has shrunk to 5.4 per cent. The increase in the rate of assimilation into the anglophone majority is recognized by all experts as being substantial. In Ottawa-Carleton, the net rate was 15.9 per cent in 1971, 19.1 per cent in 1981, 26.4 per cent in 1991 and 28.7 per cent in 1996. Although there are various factors contributing to this phenomenon, historically it coincides with the shattering of homogeneous francophone enclaves where the population lived, learned, worked and prayed exclusively in French.

In 1927 the francophone community in Ontario succeeded in wresting modifications of Regulation 17 from the Government and in altering the policy on which it was based, namely the Anglicization of francophone children. The modifications permitted the establishment of bilingual schools, which functioned reasonably well for the rest of the first half of the century because, for the most part, Franco-Ontarians continued to live in homogeneous francophone communities. English was not a threat to the French language and culture in those communities. This changed, however, in the last half of the century. The rise of immigration, the impact of television and the modern mass media, the effects of urbanization and the general mixing of population groups -- all these factors have contributed to the fracturing of the homogeneous francophone communities of years gone by. Franco-Ontarians could no longer simply count on the milieu of their daily lives to preserve their culture. The francophone nature of their institut ions has thus become increasingly important in fulfilling the role of preserving and protecting that culture.

The Role of Institutions in Maintaining the Viability of Minority Communities

Dr. Raymond Breton and Dr. Roger Bernard, two well-qualified experts in the field of sociology -- particularly regarding social trends affecting the existence and viability of minority communities -- gave evidence that institutions are vital to the survival of cultural communities. They are much more than providers of services. They are linguistic and cultural milieus which provide individuals with the means of affirming and expressing their cultural identity, and which by extension permit them to reaffirm their cultural adherence to a community. The individual and the family alone are incapable of maintaining the linguistic and cultural identity of a community. Thus, these institutions must exist in as wide a range of spheres of social activities as possible in order to permit the minority community to develop and maintain its vitality.

Institutions are also important symbols for the Franco- Ontarian community. They reflect the identity of the group, the French presence in Ontario and in Canada, the French reality in public life, and the strength and vitality of the community. Any reduction in an institution's sphere of activity will negatively impact the community and increase the probabilities of assimilation. While Dr. Breton and Dr. Bernard acknowledged that hospitals may not be amongst those institutions at the high end of the scale in this regard, they maintained nonetheless that hospitals such as Montfort are "all the same, very important in the network of institutions" of a minority culture.

In the early 1960s, Franco-Ontarians began to recognize that bilingual institutions were a threat to the preservation of their French language and culture. The evidence of Dr. Bernard establishes that French is doomed to become a second language for the Franco-Ontarian in a bilingual setting, because in that setting the language used will inevitably, be the language of the one unilingual anglophone in the group. In a minority setting, bilingualism risks becoming the first stage of assimilation for the minority bilingual group. The recognition of this phenomenon gave birth in the 1970s to the fight for a homogeneous francophone school system which finally came to fruition a few years ago. During the same period, the Franco- Ontarians also developed and strengthened francophone institutions in other areas such as the media, finance and the legal community.

Language is not only a tool of communication but also an essential ingredient in the existence, the development, and the human dignity of any individual. The French language is the key cultural component of the Franco-Ontarian community.

Hôpital Montfort

Hôpital Montfort was founded in 1953 through the efforts of leaders of the Franco-Ontarian community under the direction of a religious order of nuns, the Daughters of Wisdom. Unlike other hospitals in the Ottawa area which were English or designated bilingual, Montfort was a homogeneous francophone hospital. Although today it also provides bilingual services in English, its medical services and training are essentially francophone. Moreover, the hospital plays an important role in the Franco-Ontarian community as a whole. It is the only hospital in Ontario to provide a wide range of medical services and training in a truly francophone setting. In 1975 Montfort adopted an official policy regarding its francophone nature, based upon the following premises:

(a) that its francophone character was its raison d'être;

(b) that it was necessary to offer all hospital services in French; and

(c) that it was necessary to offer a complete range of medical care, except for certain highly specialized services already available elsewhere in the region.

When the Commission began its work in Ottawa-Carleton in July 1996, there were nine public hospitals providing services on 11 main sites. These included seven acute care hospitals, six of which maintained emergency departments. Hôpital Montfort was one of these six acute care hospitals.

Montfort has a total bed capacity of 252 beds. However, as of 1995-96, 56 of these beds had been taken out of use. Montfort provides services mainly at the primary and secondary level but also provides some tertiary care services. Some of its principal programs include cardiology, surgery, pulmonary medicine, orthopaedics and obstetrics. It offers emergency care. The impressive extent and variety of services provided by Montfort are well documented in exhibit "H" to the affidavit of Michelle de Courville Nicol. Although it does not provide services in certain specific highly specialized areas, Hpital Montfort truly qualifies as a full service "general hospital" and is perceived as such by the community at large.

Montfort is a unique health care institution in Ontario for a variety of reasons. First, it has a different history than other hospitals established in the eastern part of Ontario by various orders of nuns. Although all were originally francophone institutions, the others have since become either English hospitals (e.g., Hotel Dieu in Kingston) or bilingual hospitals (e.g., Ottawa General). Only Montfort continues as a francophone institution in Ottawa-Carleton.

Although Montfort lost its paediatrics department in 1974, following the creation of the Children's Hospital of Eastern Ontario ("CHEO"), it continued to grow in size and to expand its range of services. It is significant -- both from the perspective of the Hospital's own view of its mandate, and in relation to the community's sense of that mandate -- that following the loss of its paediatrics specialty, Montfort re- emphasized its commitment to continue as a francophone institution, offering all levels of health care services in French and, as noted above, declaring its francophone character to be its very "raison d'être".

In 1984, Montfort began offering bilingual services. Today 20 per cent of its patients are anglophone. However, the working language of Montfort was at all times and remains French. Over 95 per cent of its employees are capable of providing services in French. Thus, doctors, nurses, cafeteria employees, caretakers and others touching all aspects and areas of Montfort's services work in French. A person walking in the halls of Montfort hears the French language spoken as the language of choice. All internal communications -- verbal or written -- are in French. With rare exceptions all administrative and medical meetings take place in the French language and the minutes of such meetings are written in that language. Consultations, diagnoses, and communications with patients are in French.

This is unique in Ottawa-Carleton and, indeed, in the province of Ontario.

On the other hand, the bilingual hospitals in the area have not fared so well. The Ottawa General was the only other general hospital in Ottawa-Carleton considered capable of offering French services. As indicated, this institution was originally established by a French order of nuns from the province of Quebec. By the end of the 1950s, however, the Ottawa General found it more and more difficult to ensure a francophone working environment and to provide all services in French. Although fully designated under the French Language Services Act, R.S.O. 1990, c. F.32, in 1992, the General is not yet in a position -- even in 1999 -- to offer a complete range of services in French at all times.

There is anecdotal evidence attesting to the difficulty which francophone patients have in obtaining services in their language at such institutions. The most compelling evidence, however, is that of Jacques Labelle, who was the General Manager of the Ottawa-General Hospital from 1981 to 1996. Mr. Labelle testified that although the General was committed to the importance of providing health care services in French, and notwithstanding it made substantial efforts to do so, the hospital failed to provide adequate services in French to the Franco-Ontarian community.

Second, what makes Montfort unique is the truly francophone nature of its medical training. For many years now, Montfort has educated health care professionals in many different fields. An M.D. program was established in association with the University of Ottawa. More recently, a specialist program in family medicine was put in place. Montfort now offers the only French language family medicine residency outside the province of Quebec. The program has received high praise from the Accreditation Team Residency Program in Family Medicine. Its report declares that the Montfort program provides a "relatively new and unique teaching site . . . [and that it is] an excellent training program offering strong clinical and academic teaching." We find that such a totally French program, which is invaluable in assuring that the francophone population is adequately served in the French language, will face insurmountable obstacles in a bilingual institution.

The Commission's Directions to Montfort

In February 1997, the Commission released its initial Ottawa Health Services Restructuring Report and its notices of intention to issue directions to the public hospitals in the Ottawa area. [^2] The Commission concluded that Hôpital Montfort should close as a public hospital and amalgamate with three other public hospitals to form a single hospital corporation providing services at the Civic and General sites.

These initial directions caused a furore in the Franco- Ontarian community. The daily newspaper Le Droit obtained a petition of some 130,000 names. On March 22, 1997, more than 10,000 individuals attended at a pro-Montfort rally at the Civic Centre. In response, the Commission received some 442 written submissions from hospitals, health agencies and organizations, municipalities, labour and other groups and individuals, providing perspectives and information for consideration. These included representations from Hôpital Montfort, the University of Ottawa, the Ottawa-Carleton Regional District Health Council and the District Health Council of Eastern Ontario.

In August 1997, the Commission issued its second report, which contained revised directions for Montfort. In the report, the Commission recognized that to meet the University's objective of training health professionals to serve predominantly francophone communities, a good portion of their education and training should take place in a francophone clinical setting. The Commission concluded that Hpital Montfort should not close, but should remain open and retain its own governance. However, the role of Montfort as part of the Ottawa-Carleton hospital system was significantly changed. It was to become primarily a centre for ambulatory care -- a developing concept in medicine and one that would offer positive new opportunities for Montfort. In addition to ambulatory services, Montfort was to provide day surgery and to operate a total of 66 beds comprising 15 low risk obstetrical beds, 30 acute mental health beds and 21 longer term mental health beds. Montfort would also operate a 24-hour urgent care centre (but not an acute care or emergency centre) -- Mr. Caza called this "a walk-in clinic". The Commission directed that cardiology, Montfort's second largest inpatient program, be moved to the Ottawa Heart Institute and all other programs, including Montfort's emergency and intensive care ward, be transferred to the General campus of the newly restructured Ottawa Hospital. In July 1998, following further submissions, the Commission directed that an additional 22 sub-acute beds be allocated to Montfort. In the end, then, Hôpital Montfort would have a total of 88 beds providing the above noted care, instead of the active 196 beds which it operated prior to the Commission's restructuring initiatives.

Perhaps not surprisingly, the Commission's second report of August 1997 also ordered the General campus, the Heart Institute and CHEO to seek full designation under the French Language Services Act and the establishment of a French Language Services Health Network.

In its report of August 1997, the Commission declared its commitment not only to preserving the availability of medical services in French, but to enhancing them as well. It acknowledged that to meet the University's objectives of training health professionals to serve predominantly francophone communities, a good portion of their education and training should be provided in a francophone clinical setting. It applied its criteria of quality, accessibility and affordability in arriving at its modified directions.

The mandate of the French Language Services Health Network (the "Network") is stated to be to facilitate access to French language health services across all levels of care and to ensure that, in the restructured system, francophones will have access to a full range of quality French language services. The Commission states that the Network is proceeding towards the goals the Commission has set for it. An interim committee submitted a proposal with a proposed budget for the Network to the Ministry in April 1998. The Ministry responded in December. In its response the Ministry provided funding to the Network for only one year, although it indicated that funding would be made available "for specific activities". The Commission is apparently pleased with this progress.

The Adequacy of Hôpital Montfort as a Francophone Teaching Milieu Under the Directions

The applicants led evidence from five Ottawa teaching physicians and several other experts who believe that under the directions, Hôpital Montfort can no longer carry out its teaching mission by providing all of the necessary elements for francophone medical training. First, Montfort will no longer be able to provide the broad-based clinical education programs in the compulsory disciplines. In most cases these programs will have to be carried out in bilingual institutions where a francophone working environment is simply unattainable, whether or not the institution is fully designated under the French Language Services Act. Second, without a minimum number of acute care beds and a full emergency department it will be impossible for the Hospital to recruit and keep the required specialists to make the centre an attractive training centre for students. Third, in its restructured state, Montfort will not have a large enough caseload to provide a critical range of educational and training opportunit ies.

In its initial response to the February 1997 directions, the University of Ottawa set out the following essentials of a viable French training program:

The professional education of students and Family Medicine residents in the francophone medical program requires a critical mass of devoted clinician educators who work closely with them within francophone multidisciplinary teams and in a francophone working milieu. The clinical environment which is essential for training students and Family Medicine residents in French includes the following:

• francophone patients with a broad range of diseases
• in-patient and out-patient exposure
• a francophone community hospital setting
• francophone multidisciplinary health care teams consisting of a staff physician, resident, nurse, social worker, physiotherapist, etc.
• a francophone working milieu including all charting/ communications
• francophone laboratory and diagnostic services that provide consultation, reports and teaching in French
• administrative services in French -- admission services -- communication services -- medical records -- computer services
• meeting rooms, dictating facilities, computer terminals, medical software
• medical textbooks in French

(Affidavit of Courville-Nicol, ex. N App. 1, pp. 3-4)

The foregoing themes are reflected in the evidence of the applicants' expert witnesses. Significantly, their position is supported by Dr. Nick Busing, the Chair of the Department of Family Medicine at the University of Ottawa, and by Dr. Jacques Frenette, the Chair of the Accreditation Committee of the College of Family Medicine of Canada.

The Commission responded with evidence from Dr. Ruth Wilson, Professor and Head of the Department of Family Medicine at Queen's University. Dr. Wilson is also a member of the above- mentioned Accreditation Committee. She deposed that if Hpital Montfort were reconfigured in accordance with the directions, it would continue to provide an appropriate setting for family medicine residents to complete six of their seven rotations as is presently the case. However, she was concerned about the removal of services and conceded that whether there would be a sufficient variety of conditions and of patients was a matter that would have to be monitored.

On December 18, 1998, the Restructuring Co-ordination Task Force forwarded a proposal to the Commission regarding the academic service requirements of Hôpital Montfort. The proposal included a recommendation for, among other things, the siting of 50 acute care beds at the hospital. It is apparent that finding the right answer to this particular issue was very troublesome for the Commission. The proposal caused the Commission to review additional information before determining what further directions might be required. The Commission agreed to assist the process by paying for additional planning resources. Both sides agreed to retain two planners to assist in the process and Dr. Frenette was also asked to report on the proposal.

When the matter came before this court on April 12 the Commission sought and obtained an adjournment to consider the reports of the planners and of Dr. Frenette. The Commission undertook to deliver its findings before the resumption of the hearing set for June 14. On April 29, 1999, O. Reg. 272/99 was passed under the Ministry of Health Act. This regulation revoked O. Reg. 88/96, which had set out the duties and powers of the Commission, and specified the duties of the Commission are now only to advise the Minister. On the same date, O. Reg. 273/99 was made under the Public Hospitals Act. This regulation revoked O. Reg. 87/96, under which the Commission had been authorized to issue directions in the place of the Minister of Health under s. 6 of the Act. The court was not provided with the Commission's views on the additional planning reports nor were the reports submitted for the court's consideration.

III. LAW AND ANALYSIS

"To be a francophone is to make an effort every day."

John Ralston Saul [^3]

Protection of Minorities: The Constitution and its Fundamental Organizing Principles

The decision of the Supreme Court of Canada in the Quebec Secession Reference declares that the Canadian Constitution -- and therefore Canada itself -- is founded upon four fundamental organizing principles. These principles are not simply "descriptive" of rights. They "infuse our constitution and breathe life into it". Albeit they are unwritten, these underlying principles of the Constitution may nonetheless give rise to substantive legal rights "which constitute substantive limitations upon government action"; moreover, they are "invested with a powerful normative force, and are binding upon both courts and governments": see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, [1998] 2 S.C.R. 217 at pp. 248-49, 161 D.L.R. (4th) 385. [^4]

One of those fundamental organizing principles is the protection of minority rights. [^5]

This case turns on whether the fundamental underlying principle relating to the protection of and respect for minority rights governs the conduct of the Hospital Restructuring Commission in such a way as to render its directions unconstitutional and, therefore, of no force and effect.

We start with two observations. First, the "minority protection" argument in this case is strengthened and fed by the reality that the minority in question is a francophone minority, whose culture and language hold a special place in the Canadian fabric as one of the founding cultural communities of Canada and as one of the two official language groups whose rights are entrenched in the Constitution.

Section 27 of the Constitution Act, 1982 states:

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Thus, multiculturalism is in itself a value recognized and nurtured in the Constitution generally, as well as in the Charter which forms part of that Constitution. With its official language and founding culture status, the minority francophone culture occupies an enhanced multicultural status. English and French are accorded special status in comparison to other linguistic groups in Canada: see Mahe v. Alberta, [1990] 1 S.C.R. 342, [1990] 1 S.C.R. 342 at p. 369, 68 D.L.R. (4th) 69.

Second, Canada is a constitutional democracy, and as the court noted in the Quebec Secession Reference (at p. 258):

Simply put, the constitutionalism principle requires that all government action comply with the Constitution.

(Emphasis added)

The Commission is a vehicle for government action. At the relevant times it had the authority to give directions respecting the closure and restructuring of hospitals in Ontario which would otherwise have resided solely in the Minister of Health. That being the case, we conclude that the conduct of the Commission must be measured against the "minority protection" benchmark, one of the fundamental organizing principles of the Constitution. If the conduct is found wanting and in violation of that principle, the reviewing court must intervene.

We reject the submission that the unwritten constitutional principles, such as protection of the minority, are of little legal significance in terms of remedies and that the failure to comply with such principles cannot, in itself, invalidate government conduct which is at odds with them. Such an interpretation is not consistent with the clear, strong language of the court in the Quebec Secession Reference.

To be sure, the Supreme Court cautioned that these unwritten constitutional principles could not be taken as "an invitation to dispense with the written text of the Constitution" (p. 249), but it is erroneous to read that caution as if it were the operative statement of the decision. It is not. It is a caution. As the court notes, the unwritten principles are incorporated into the Constitution by reference. The thrust of its opinion on this issue is to be found at pp. 248-50:

The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.

The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, [1993] 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words,", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada."

(Emphasis added)

The court was even more direct, in dealing specifically with the "fourth underlying constitutional principle" -- i.e., the protection of minorities. After noting the "number of specific constitutional provisions protecting minority languages, religion and education rights" in the Constitution, including the Charter, the Supreme Court stated (pp. 261-62):

However, we highlight that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order.

(Emphasis added)

Finally, as a reminder that the protection of minorities is not a principle which was invented with the enactment of the Charter in 1982, but rather a prominent theme in Canadian history, the court observed (p. 262):

However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.

(Emphasis added)

Given that the principle of minority protection -- particularly, francophone minority protection -- is an independent principle underlying the Constitution, and one which has a powerful normative force which is binding upon governments, the court must intervene, where necessary, to protect against government action which fails to recognize that principle.

We do not read the recent decision of the Federal Court of Canada, in Singh v. Canada (Attorney General), [1999] 4 F.C. 583, [1999] F.C.J. No. 1056, [1999] 4 F.C. 583, as compelling a contrary conclusion. There, McKeown J. was dealing with the constitutional validity of legislative provisions (ss. 38(6) and 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5). He concluded (at para. 40 [p. 605 F.C.]), after careful analysis, that "these largely unwritten constitutional norms are not sufficient, in and of themselves, to invalidate otherwise properly enacted legislation". In the context of the Commission's directions concerning Hôpital Montfort, however, the constitutional validity or invalidity of a piece of legislation is not at issue. What is at issue is whether certain conduct of a government agency falls within the parameters of what is permitted by the Constitution. As Chouinard J. noted in Commission des droits de la personne v. Canada (Attorney General), [1982] 1 S.C.R. 215, [1982] 1 S.C.R. 215 at pp. 227-28, th ere is a difference between the validity of legislation and the possibility of unconstitutional behaviour under the legislation.

Although -- as we shall explain shortly -- we are not persuaded the applicants' case is adequately analyzed on the narrower grounds of extending minority language or minority language educational rights only, our view of the underlying principle of the protection of minority rights is bolstered by,

(a) the objectives of the French Language Services Act;

(b) the full designation of Hpital Montfort as a government agency in accordance with the provisions of that Act; and

(c) the principles recently enunciated by the Supreme Court of Canada in R. v. Beaulac, [1999] 1 S.C.R. 768, [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193.

Mr. Laskin argues that the provisions respecting official language and minority language educational rights which are contained in s. 133 of the Constitution Act, 1867 and in ss. 16-22 and 23 of the Charter form a complete constitutional framework for the protection and enhancement of those rights; apart from the specific rights enumerated therein, the framers of the Constitution determined to leave it to Parliament and to the provinces through the division of powers and through the provisions of s. 16(3) of the Charter to provide for the advancement of the status and use of English and French. In Ontario, he submits, the vehicle chosen by the legislature for that purpose is the French Language Services Act; no one in Ontario is entitled to any French language minority benefits in addition to those specified in the Charter or s. 133 unless they are provided through that Act. However, we find the existence of the French Language Services Act[ cf1], and Montfort's full designation as a government agency under it help, rather than hinder, the applicants' case.

The French Language Services Act provides that a person has the right to receive services in French from any publicly funded agency that provides services to the public and is designated as a public service agency. Public hospitals are among the agencies that may be designated under the Act, and Hôpital Montfort is one such designated agency.

The purpose of the French Language Services Act, and its underlying premises, are expressed in its preamble, which states as follows:

Whereas the French language is an historic and honoured language in Ontario and recognized by the Constitution as an official language in Canada; and whereas in Ontario the French language is recognized as an official language in the courts and in education; and whereas the Legislative Assembly recognizes the contribution of the cultural heritage of the French speaking population and wishes to preserve it for future generations; and whereas it is desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario as provided in this Act;

(Emphasis added)

Thus the historic contribution of the francophone cultural heritage in Ontario is recognized. That recognition, and the preservation of the culture of the French speaking population -- one of the official languages groups of Canada -- is exemplified in the legislative framework of the province. By virtue of s. 5 of the Act, a person is entitled to communicate with a government institution or a designated agency in French with respect to available services, and has the corresponding right to receive those services in French.

The language rights advanced by the French Language Services Act, including those in question regarding Hôpital Montfort, although not absolute, are limited only by the provisions of s. 7 of the Act, which states:

7. The obligations of government agencies and institutions of the Legislature under this Act are subject to such limits as circumstances make reasonable and necessary, if all reasonable measures and plans for compliance with this Act have been taken or made.

Prior to the establishment of the Commission in 1996, Montfort was the only hospital of its kind in Ontario, in the sense that it provided a wide variety of primary, secondary, and tertiary care in a homogeneous French setting together with a training centre for medical professionals in a French milieu. Although the Ottawa General Hospital was also fully designated under the French Language Services Act, the level of French services actually available there was considerably less than at l'Hôpital Montfort. This fact was recognized by the Commission when it modified its original directions calling simply for the closing of Montfort and the transfer of all French language health services to the General. Therefore, as of 1996, the individual applicants and the francophone community of Ontario had acquired a legislatively recognized entitlement to receive health services in a truly francophone environment at Hôpital Montfort, and an expectation that those services would be provided in at least the q uality and extent offered by Montfort, including the existence of a training centre that guaranteed the instruction of medical professionals in French. We find the existence of such a hospital centre is crucial to the preservation of the minority Franco-Ontarian culture as well as to the continued provision of adequate francophone medical services and medical training.

A language right somewhat similar to the rights given by the French Language Services Act to communicate with and receive French language services from government institutions and designated agencies, even when only conferred by a federal statute and a provincial regulation, has been elevated to the status of a substantive and fundamental right by the Supreme Court of Canada, in another context. In R. v. Beaulac, supra, the court dealt with the right of an accused to a trial in the official language of his or her choice. This statutory language right was derived from the combined legislative acts of the Parliament and the B.C. legislature. Speaking for seven of the nine judges on the court, Bastarache J. noted (at para. 25 [p. 791 S.C.R.]) that:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. . . . To the extent that Société des Acadiens du Nouveau- Brunswick . . . stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply.

(Emphasis added)

In Beaulac the court also rejected the notion -- found in such earlier cases as Société des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents (Minority School Board No. 50), [1986] 1 S.C.R. 549, [1986] 1 S.C.R. 549, 27 D.L.R. (4th) 406 -- that language rights resulted from political compromise and therefore should be more restrictively interpreted than other constitutional guarantees. Bastarache J. dismissed this argument with the statement (at para. 24 [p. 791 S.C.R.]) that "the existence of a political compromise is without consequence with regard to the scope of language rights". He also reflected upon "the importance of language rights as supporting official language communities and their culture" (para. 17 [p. 786 S.C.R.]) and noted that "language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided" (para. 20 [p. 788 S.C.R.]). Finally, he cited the following comment from Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, [1985] 1 S.C.R 721 at p. 744, 19 D.L.R. (4th) 1:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

(Emphasis added)

In Beaulac the court viewed the relevant provisions of the federal Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) and the Criminal Code, R.S.C. 1985, c. C-46 as constituting examples of the advancement of language rights through legislative means provided for in s. 16(3) of the Charter. It noted that when s. 530 of the Code -- which is the section providing for a trial in the official language of the accused -- was promulgated in British Columbia, the scope of the language rights of the accused were not intended to be determined restrictively. The amendments, Bastarache J. said. "were remedial . . . and meant to form part of the unfinished edifice of fundamental language rights" (para. 23 [p. 790 S.C.R.])

Paraphrasing the Beaulac decision, then, it can be said that when the French Language Services Act was promulgated in Ontario, and Hpital Montfort was fully designated as a government agency in respect of the services it provided, the scope of the language rights of the applicants arising in that regard was not meant thereafter to be determined restrictively. The law was remedial and meant to form part of the unfinished edifice of fundamental language rights pertaining to the francophone minority in the field of health care in Ontario.

However, while the gloss added by Beaulac to the importance of language rights and their preservation, and the implications of the French Language Services Act regime for Montfort in light of that gloss, are helpful, the applicants' case calls for a determination on broader grounds.

Recently, in Re Eurig Estate, [1998] 2 S.C.R. 565, [1998] 2 S.C.R. 565, 165 D.L.R. (4th) 1, Binnie J. noted the court's view, as expressed in the Quebec Secession Reference, that the "implicit principles can and should be used to expound the Constitution, but they cannot alter the thrust of its explicit text" (para. 66 [p. 594 S.C.R.]). Here, we are asked to "expound" the application or operation of constitutional principles in the context of government conduct, rather than to "alter the thrust" of an explicit text in the Constitution or Charter. Because of the particular position of Hôpital Montfort in relation to the Franco-Ontarian community and its role, not just in the delivery of francophone medical services and the provision of francophone medical training, but also as a symbol of francophone minority culture, there is more involved in the impact of the Commission's directions than the discrete issue of whether the Charter guarantees minority language health care services or minority language medical education.

What is at stake in these proceedings is not simply a minority language issue or a minority education issue. What is at stake is a minority culture issue. The Commission's directions bring into play considerations bearing upon the preservation and protection of not just language and not just education and, indeed, not just health services. They bring into play a combination of all of these concepts plus the factor of linguistic and cultural symbolism which, according to Dr. Bernard, makes Hôpital Montfort "une institution qui incarne et évoque la culture franaise en Ontario". If Montfort were simply one of a number of francophone hospitals offering similar services and playing the same role -- as was the case, in an anglophone context, with Lachine General Hospital in Montreal [^6] -- the situation might be different. However, it is not. Before the establishment of the Commission in 1996, Hôpital Montfort was the sole community hospital of its kind in Ontario in the sense that it provided a wide variety of primary and secondary care in a homogeneous French setting and at the same time offered a training centre for medical professionals in a French milieu.

Thus, this is not a minority language rights case. This is not a minority language education rights case. This is a case about whether the rights of the Franco-Ontarian minority have been undermined by the directions of the Commission in a fashion which violates the "protection of minorities" principle, one of the fundamental organizing principles underlying the Canadian Constitution. In a way this is not even a case about the fate of a hospital, but rather a case about the place of that hospital in the cultural/linguistic milieu of francophone minority rights in Ontario. In that sense the issues to be determined on this application touch on broader concepts than the more discrete notions of minority language rights or minority language education rights, as contemplated in the Charter. They touch on the preservation of the multicultural francophone heritage of Canadians.

This is an important distinction because of the argument which Mr. Laskin forcefully and skilfully advances on behalf of the Commission. What the applicants are seeking to do, he submits, is to extend the constitutionalization of minority language and minority language education rights into new areas -- to French language health services and to French language post-secondary medical education -- which are not already provided for in what he labels as an "exhaustive" code of minority language rights established in ss. 16 to 23 of the Charter. He contends that s. 15 cannot be used for these purposes and neither can the unwritten fundamental organizing principles of the Constitution. In terms of the latter, he suggests that they do not provide an independent basis for striking down government conduct or legislation in themselves; rather, that they are to be used to "fill in the gaps" but not to "add to" the Constitution. It is the Commission's position that what the applicants are seeking to do here is to persuade the court to add to the Constitution these new minority language and minority language education rights in the field of health services, when the makers of the Constitution have declined to do so.

As we have indicated, however, the issues raised on this application go beyond the simple extension of minority language or minority language education rights. They relate to a broader principle -- of which the minority language and education questions are certainly an integral part -- namely, that of the protection of minority rights generally. That this is so is apparent from a reading of the initial passages in the portion of the decision of the Supreme Court in the Quebec Secession Reference dealing with the principle "Protection of Minorities" (supra, para. 80 [p. 261 S.C.R.]). Even the Charter's provisions for the protection of minority rights are said to be simply "reflective" of the "independent" protection of minority principle "underlying our constitutional order".

Given the foregoing constitutional imperatives respecting the protection of minorities, Mr. Caza argues vigorously on behalf of the applicants that the directions of the Commission are constitutionally impermissible because their effect is to render the francophone minority in Ontario -- which has in Hôpital Montfort not only a unique resource for francophone medical services and training, but also a reflection of their cultural and linguistic being -- more vulnerable. He does not submit there can be no structural changes at Montfort, but rather that any changes must protect, preserve, and respect the role of Hôpital Montfort "au sein de la communauté franco- ontarienne".

To this end, the applicants point to the cumulative and substantive impact of the following aspects of the Commission's directions as key elements demonstrating the failure of the directions to comply with the fundamental "protection of minority" principle underlying the Constitution:

-- the requirement that Montfort's emergency unit be closed and that the majority of its acute care services be shifted to other local hospitals;

-- the decision to eliminate programs which permit Montfort to continue as a university hospital offering an adequate range of medical training completely in French;

-- the loss, as a result,

(a) of the kind of "critical mass" comprised of patients, emergency and acute care beds, variety of illnesses of a sufficiently serious and urgent nature, and of training programs, and

(b) of the ability to attract and maintain highly qualified medical professionals and personnel,

both of which are necessary to enable the Hospital to continue as a francophone medical and training institution;

-- the likelihood of the English dominated bilingual medical institutions which remain becoming, for practical purposes, engines of assimilation in relation to the minority francophone community;

We agree, for a number of reasons.

The survival of the Franco-Ontarian community is threatened by an alarming rate of assimilation. It is not alone amongst minorities in this respect, of course, but the francophone community -- as one of the founding constitutional groups in Canada -- enjoys a special constitutional status which other minorities do not. Like other minority communities, Franco- Ontarians rely heavily on the strong presence of institutions in a wide variety of social activities for its preservation. These institutions have been built gradually over a long period of time. They are not only providers of vital French language services but are symbols reflecting the vitality and relevance of the Franco-Ontarian community in public life in Ontario and Canada. The disappearance or substantial decrease of such an institution has a negative impact on the ability of the community to survive. Montfort is such an institution. Indeed, it is the only institution of its kind in Ontario.

Moreover, the directions have the effect of reducing the availability of French health services to the francophone population. Outside of Montfort, the level of French services is lacking. This was so even at the former Ottawa General Hospital, notwithstanding its designation under the French Language Services Act. This was not the result of a lack of good faith or effort on the part of hospital administrators, as the evidence of Mr. Labelle, its former general manager, indicates. The reality is that designation under the French Language Services Act is not, in itself, a guarantee of adequate services in French. There is no reason to believe that this will change in the foreseeable future.

Finally, in spite of its genuine efforts to accommodate the provision of French language medical services to the community in the Region, the Commission's directions taken as a whole demonstrate that its efforts were in substance directed towards the accomplishment of that goal in the context of bilingual institutions. It did not evaluate the importance and need for a truly francophone institution. It ignored the broader institutional role played by Hôpital Montfort.

This was made clear in a letter forwarded by Dr. Sinclair, the president of the Commission, to Madam de Courville Nichol, the president of the board of directors of Montfort, on February 22, 1999. In that letter, Dr. Sinclair admitted the Commission had not addressed the question of the necessity for homogeneous institutions for a linguistic minority. He took the position that such a question fell outside the mandate of the Commission, saying:

First, I should make clear an important matter not discussed at our meeting. Mr. Caza spoke eloquently to the belief that francophone, as opposed to bilingual, institutions (including hospitals) are essential to preserve the language and culture of franco-Ontarians. Debate of this belief is not within the purview of the Health Services Restructuring Commission. Current provincial policy is specified in the French Languages Service Act, which provides for hospitals offering services in the French language to be designated bilingual."

(Emphasis added)

It seems clear, then, that in spite of the Commission's recognition of the importance of ensuring the continuation of French language medical services to the francophone population in the Region of Ottawa-Carleton, it saw that need only in terms of the provision of bilingual services; it did not take into account the broader issue of the protection of and respect for francophone cultural minority rights. It is no answer to say that such considerations were "not within the purview of the [Commission]". The Commission stood in the shoes of the Minister of Health and was empowered to give directions to hospitals in the place of the Minister and binding upon the hospitals without the input of the Minister. The Minister, however, is not absolved from the constitutional imperatives of this country. Nor, in the Minister's stead, is the Commission.

Other bilingual medical institutions -- such as the general campus of the Ottawa Hospital -- will not have the capacity to offer the totality of their services in French. They cannot offer complete medical training in French, given that their working language is English. Past experience of the Franco- Ontarian community demonstrates that bilingual institutions are not able to service the community effectively. In addition, the directions impose on the members of the francophone community the burden of utilizing a language other than their maternal language in order to obtain medical services and a medical education -- a burden not imposed upon anglophones. In this sense the directions undo gains acquired by that community over a period of more than 40 years.

The pursuit of a restructuring of the health care system in Ontario is an urgent and commendable object. However, the transformation imposed upon Montfort, and the fact that adequate health services and medical training in a truly francophone environment which are already in existence will be taken away from the Franco-Ontarian community, can only have a significant negative impact on the continuing vitality of that community, its language and its culture.

The Supreme Court of Canada has held, in the context of s. 15 of the Charter, that while there may not be a positive obligation upon government to take legislative action to remedy inequalities in society, once government does act to create a benefit it is obliged to do so in a non-discriminatory manner and should not be the source of further inequality in doing so: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577, per La Forest J. on behalf of the court, citing L'Heureux-Dubé J. (dissenting) in Thibaudeau v. Canada, [1995] 2 S.C.R. 627, [1995] 2 S.C.R. 627 at p. 655, 124 D.L.R. (4th) 449. The same reasoning may be applied to a consideration of the underlying constitutional principle of protection of the minority as expressed in the Quebec Secession Reference case, and as reinforced in R. v. Beaulac.

The respondent relies upon the proposition that if there is no constitutional imperative for a policy of government in the first place, reversing that policy cannot be unconstitutional: Hotel Dieu of Kingston v. Ontario (Health Services Restructuring Commission) (1999), 175 D.L.R. (4th) 185, 175 D.L.R (4th) 185 (Ont. C.A.); see also, Ferrell v. Ontario (Attorney General) (1998), 42 O.R. (3d) 97, 42 O.R. (3d) 97 at pp. 109-11, 168 D.L.R. (4th) 1 (C.A.); Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287, 37 O.R. (3d) 287 at p. 301, 155 D.L.R. (4th) 193 (Gen. Div.), affirmed 182 D.L.R. (4th) 471, [1999] O.J. No. 1104, 182 D.L.R. (4th) 471 (C.A.). Those cases are distinguishable from the present circumstances, however. This is not a case of government action eliminating a policy or benefit for which there was no prior constitutional imperative. There is, and always has been since Confederation, a constitutional imperative for the protection and preservation of francophone minority rights -- including, in our view, the right to have at least min imal institutions necessary to feed and nurture the continued existence and vitality of their language and culture. While there may be debate about the full extent of the particular services to be provided, a fundamentally francophone hospital in Ontario of the nature of Montfort is included in the package of such protection and preservation, in our view.

The potential loss of Hôpital Montfort as a general hospital is much more than just the loss of a service, as we have noted. In effect, the Franco-Ontarian community would lose an institution which, as Dr. Bernard stated, incarnates and evokes the francophone presence in Ontario. Hôpital Montfort is a standard bearer for the minority francophone community in Ontario, a symbol of the force and vitality of that community. According to Dr. Bernard, it will henceforward become a symbol of the defeat of the community if unable to keep intact its place as a cultural institution in the Franco-Ontarian Community.

The Section 15 Argument

The applicants submit the Commission's directions to Hôpital Montfort violate s. 15 of the Charter. They argue,

(a) that the directions create a distinction between the French language community in Ontario and a comparable group, namely anglophones of Ontario;

(b) that this distinction is discriminatory; and

(c) that the French language community in Ontario forms an analogous group to those enumerated in the text of s. 15.

The foregoing criteria are extracted from the authorities dealing with the exercise to be followed by a court in addressing a s. 15(1) equality claim. In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, Iacobucci J. summarized what he referred to as the "proper approach" towards analyzing such a claim, in the following passage (para. 39 [pp. 523-24 S.C.R.]):

In my view, the proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter involves a synthesis of these various articulations. Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra, and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively different treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does th e differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

See also, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1; R. v. Swain, [1991] 1 S.C.R. 933, [1991] 1 S.C.R. 933 at p. 992, 63 C.C.C. (3d) 481; Miron v. Trudel, [1995] 2 S.C.R. 418, [1995] 2 S.C.R. 418 at p. 485, 124 D.L.R. (4th) 693; Egan v. Canada, [1995] 2 S.C.R. 513, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609; Eldridge v. British Columbia (Attorney General), supra, at pp. 669-70; Vriend v. A1berta, [1998] 1 S.C.R. 493, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385.

Section 15(1) of the Charter states:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Commission is an agency of government established to give effect to government policy, and therefore subject to the provisions of the Charter. However, we conclude that s. 15 is of no assistance to the applicants in this case.

Hôpital Montfort itself, as a corporation, is not an "individual" within s. 15 and accordingly has no standing to invoke its provisions: R. v. Paul Magder Furs Ltd (1989), 69 O.R. (2d) 172, 69 O.R. (2d) 172 (C.A.), leave to appeal refused (1989), 105 N.R. 153n (S.C.C.). Hence, it is the individual applicants alone who have standing to make the argument. Michelle de Courville Nicol is a member of the Board of Hôpital Montfort and has been its president since 1995. Gisèle Lalonde is a well-known and long- time active member of the Franco-Ontarian community in the Ottawa-Carleton Region and throughout Ontario.

Even assuming the decisions of the Commission affecting Montfort reflect differential treatment between Franco- Ontarians and Anglo-Ontarians as comparable groups, we do not think it can be said the different treatment is based upon analogous grounds to those enumerated in s. 15; accordingly, we conclude that s. 15 does not apply in the circumstances of this case. Given our conclusion, it is unnecessary to engage in the third "inquiry" relative to a s. 15 analysis, namely, whether or not the differential treatment constitutes "discrimination" as that term is understood for constitutional and Charter purposes.

To the extent the applicants rely upon differential treatment based upon analogous grounds, they purport really to rely on the status of French as an official language to make their case. The Supreme Court of Canada has made it clear, however, that s. 15 of the Charter may not be used as a back door to enhance language rights beyond what is specifically provided for elsewhere in the Charter (particularly in s. 23, which provides for minority language educational rights): see Mahe v. Alberta, supra; and Reference re Manitoba Public Schools Act s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, [1993] 1 S.C.R. 839, 100 D.L.R. (4th) 723. Dickson C.J.C. stated, in Mahe, at p. 369:

While I agree that it is often useful to consider the relationship between different sections of the Charter, in the interpretation of s. 23 I do not think it helpful in the present context to refer to either s. 15 or s. 27. Section 23 provides a comprehensive code for minority language educational rights; it has its own internal qualifications and its own method of internal balancing. A notion of equality between Canada's official language groups is obviously present in s. 23. Beyond this, however, the section is, if anything, an exception to the provision of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada. As the Attorney General for Ontario observes, it would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to "every individual".

This position was reiterated by the Supreme Court in the Manitoba Reference case, supra, at 857. Section 15 itself, therefore, cannot be invoked to supplement language rights which the Charter has not expressly conferred. Even in the broader sense the francophone community, along with the anglophone community, enjoys a special status under Canada's constitutional and Charter regime, and thus is not in need of the protections afforded to the enumerated and analogous groups by s. 15.

Administrative Law Principles

This court has repeatedly emphasized the limited scope for judicial review of directions given by the Commission. Archie Campbell J. set the tone, which has since been followed, in Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) (1997), 36 O.R. (3d) 41, 36 O.R. (3d) 41 (Div. Ct.). At p. 44 he summarized the role of the court in the following way, highlighting at the same time the contentious context in which the exercise of hospital restructuring takes place:

Hospitals are vital community institutions. They attract strong loyalties and the prospect of hospital closure engages strong feelings within the community. These deeply held views and convictions are reflected in the evidence in this case.

The complex process of restructuring the health care system is difficult not only for the Health Services Restructuring Commission but also for each community affected by its work.

The court's role is very limited in these cases. The court has no power to inquire into the rights and wrongs of hospital restructuring laws or policies, the wisdom or folly of decisions to close particular hospitals, or decisions to direct particular hospital governance structures. It is not for the court to agree or disagree with the decision of the Commission. The law provides no right of appeal from the Commission to the court. The court has no power to review the merits of the Commission's decisions. The only role of the court is to decide whether the Commission acted according to law in arriving at its decision.

(Emphasis added)

This role reflects the very broad public policy mandate assigned to the Commission by the Government for the purpose of restructuring the system of health care in Ontario. The court can interfere only when the Commission has not acted according to law in arriving at its decision.

The constitutional issue aside, we reject the submission that the directions of the Commission to Montfort are "patently unreasonable" or "clearly irrational" -- the test the parties acknowledge is applicable in the circumstances.

The Commission received, reviewed, and analyzed over 400 submissions regarding the restructuring exercise in Ottawa- Carleton, including many in relation to Montfort itself. It met with and consulted concerned individuals and organizations. It acted on evidence and materials provided to it and applied its policy criteria regarding the quality, accessibility and affordability of health care services in the Region. The Commission's decisions are fundamentally matters of judgment. Moreover, as the Pembroke Hospital case reminds us, they are made in a context which "engages strong feelings with the community". Reasonable people can differ on the solutions to be applied. As the parties have noted, "personne n'a le monopole de la verité".

Each side has cited the "Wednesbury principle", which provides that the decision of a tribunal, such as the Commission, cannot be interfered with unless it can be shown to be "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it": see Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 375 (H.L.), per Lord Diplock at p. 410; Lachine General Hospital v. Quebec, supra, at pp. 2830-31; Canadian National Railway Co. v. Fraser-Fort George (Regional District) (1996), 140 D.L.R. (4th) 23, 26 B.C.L.R. (3d) 81, 140 D.L.R. (4th) 23 (C.A.); Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, [1993] 1 S.C.R. 941 at pp. 963-64, 101 D.L.R. (4th) 673. On normal administrative law principles, the directions of the Commission do not run aground on the Wednesbury shoal.

Nor does the evidence establish the Commission based its decisions upon irrelevant considerations. Mr. Caza argued the Commission had reacted to, and based its directions upon, the fear of an English "backlash" towards the way in which the Commission approached the restructuring of l'Hôpital Montfort. While the possibility of such a backlash was brought to the attention of the members of the Commission by staff, we are not satisfied the evidence establishes the Commission's decisions were based upon any such notion. As the Master of the Rolls noted at p. 1032 of the report of Wellcome Foundation Ltd. v. Secretary of State for Social Services, [1987] 2 All E.R. 1025 (C.A.); affirmed on other grounds [1988] 2 All E.R. 684, [1998] 1 W.L.R. 635 (H.L.):

The jurisdiction of the courts to entertain applications for judicial review is a supervisory jurisdiction of an essentially practical nature designed to protect the citizen from breaches by decision makers of their public law duties. That there will be such a breach if the decision maker takes account of irrelevant matters or fails to take account of relevant matters, in the sense that his discretion is affected thereby, is not in doubt. But, if his decision is not affected thereby, there is no reason why the jurisdiction should be exercised and every reason why it should not.

(Emphasis added)

Accordingly, we reject the argument that the directions of the Commission should be set aside on ordinary administrative law grounds because they are patently unreasonable or based upon irrelevant considerations.

Those principles cannot save the directions, however, if -- as Archie Campbell J. remarked in the Pembroke Hospital case cited above -- the Commission did not act according to law in arriving at its decision. In the circumstances of this case, by failing to take into account the importance of francophone institutions (including hospitals), as opposed to bilingual institutions, for the preservation of the language and culture of Franco-Ontarians, as not being "within the purview of the [Commission]", the Commission failed to comply with one of the fundamental organizing principles underlying the Constitution, namely that of the "protection of minorities". It failed to act "according to the law". On that basis its directions must be set aside.

The respondent argued that much of the evidence in the court record for this judicial review was not before the Commission when it made its decision and issued its directions or amended directions; accordingly, the court should not consider such evidence. We note, however, it is the Commission which describes its decision-making process as an ongoing one and states it continues to be open to changes in its recommendations. We agree that, in most cases, the evidence for consideration on an application for judicial review is that which was before the tribunal at the time of the impugned decision; however, that premise has less application where what is at issue on the judicial review is the constitutionality of the tribunal's decision. Where a constitutional challenge is at issue on the review, it is not surprising a good deal of the evidence at the review level will relate to the basis for the constitutional challenge, rather than simply to what was before the tribunal in relation to its initial decision. Moreover, where the Commission has failed "[to act] according to law in arriving at its decision", the court is entitled to scrutinize the evidence and to apply its own assessment of the facts. The premise that there was some evidence before the tribunal on which it could act and the court should not attempt to substitute its own conclusions for that of the tribunal, does not apply in this case.

IV. CONCLUSION

In para. 1 of its factum, the Commission states:

The necessary process of health services restructuring is a complex and difficult one for any community. It is particularly so where it intersects with the highly-charged issue of the appropriate provision of French language services.

That statement is reflective of the Commission's view of its mandate in matching the considerations regarding health services restructuring at Montfort with considerations about the Franco-Ontarian minority factor. But that is not all the Canadian Constitution and its fundamental organizing principles required the Government -- and hence the Commission -- to balance in the circumstances.

There is more at issue here than merely "the provision of French language services" in the health sector, however. It is not simply a question of the community's ability, through Montfort or some other hospitals, to provide treatment and training in the French language. At issue, as well, is the impact of the proposed changes on the rights of the members of the minority francophone community in Ontario to have their cultural/linguistic heritage respected and protected. This obliged the Commission to consider and give effect to the institutional role of Montfort as a truly francophone centre -- as opposed to a bilingual centre -- for medical treatment and training of francophones in Ontario.

Directions which replace a wide variety of truly francophone medical services and training at Montfort with services and training elsewhere in a bilingual setting -- however well those bilingual facilities may appear to work in any given case -- fail to conform to the principle underlying our Constitution which calls for the protection of francophone minority rights. This is the flaw in the Commission's deliberations and in the directions emanating from them. They proceeded on the premise that bilingual medical services and training were an adequate substitute to comply with the need to provide "French language services" in a restructured setting.

Given the constitutional mandate for the protection and respect of minority rights -- an "independent principle underlying our constitution", a "powerful normative force" -- it was not open to the Commission to proceed on a "restructured health services" mandate only, and to ignore the broader institutional role played by Hôpital Montfort as a truly francophone centre, necessary to promote and enhance the Franco-Ontarian identity as a cultural/linguistic minority in Ontario, and to protect that culture from assimilation. We find this is what the Commission did. Accordingly, its directions cannot stand.

We would not simply strike down the directions and leave it at that, however. It is not for the court to determine what the ultimate balance is, but for the Commission and (now) the Minister of Health. We conclude the appropriate remedy is to quash the directions and remit the question of the restructuring of health services at Hôpital Montfort to the Commission for reconsideration and recommendation to the Minister, having regard to the foregoing.

Order accordingly.

Application granted.

Notes

[^1]: We shall refer to the hospital applicant interchangeably, from time to time, as "Hôpital Montfort" or "Montfort".

[^2]: The process established by the Commission was to conduct its initial review, issue a notice of its intention regarding its proposed directions, call for public input and consultation, and thereafter issue its directions.

[^3]: John Ralston Saul, Reflections of a Siamese Twin: Canada at the End of the Twentieth Century (Penguin Books, 1997), at p. 53: "And the difficulty of being a francophone in Canada and in North America is very real; as is the dominant sound of English on the continent. To be a francophone is to make an effort every day."

[^4]: Hereinafter referred to as "the Quebec Secession Reference".

[^5]: The court identified four fundamental organizing principles of the Constitution. The other three were federalism, democracy, and constitutionalism and the rule of law.

[^6]: See, Lachine General Hospital Corp. v. Quebec (Attorney General) (1996), 1996 5944 (QC CA), 142 D.L.R. (4th) 659 (Que. C.A.).