British Columbia Government and Service Employees' Union v. British Columbia (Minister of Health Services) et al., 2007 BCCA 379

• Judge: Rowles, Levine and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 06, 2006
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 379;(2007), 245 B.C.A.C. 39 (CA)

BCGSEU v. B.C. (2007), 245 B.C.A.C. 39 (CA);

    405 W.A.C. 39

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. JL.024

British Columbia Government and Service Employees' Union (appellant/petitioner) v. The Minister of Health Services and the Medical Services Commission (respondents/respondents) and Maximus BC Health Inc., Maximus BC Health Benefit Operations Inc., Maximus Canada, Inc. and Maximus Inc. (respondents/respondents)

(CA032886; 2007 BCCA 379)

Indexed As: British Columbia Government and Service Employees' Union v. British Columbia (Minister of Health Services) et al.

British Columbia Court of Appeal

Rowles, Levine and Smith, JJ.A.

July 16, 2007.

Summary:

The Minister of Health Services, on behalf of the Province of British Columbia, entered into a 10 year contract with the Maximus group of companies (Maximus) to operate and administer most aspects of the Medical Services Plan which provided health care insurance to residents of British Columbia. The British Columbia Government and Service Employees' Union brought proceedings under the Judicial Review Procedure Act, seeking, inter alia, a declaration that the Minister had acted beyond his powers and in contravention of the Medicare Protection Act. The union asserted that the contracting out of duties and powers listed in s. 5(1) of the Medicare Protection Act to a private contractor was contrary to the requirement for public administration set out in the Canada Health Act.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 446, held that, while the union had standing to bring its petition, the relief sought did not fall under the Judicial Review Procedure Act and, as a result, the petition failed. The court held that the principle of public administration found in the Canada Health Act was not incorporated by reference into the Medicare Protection Act and that British Columbia under s. 92 of the Constitution Act could exercise its powers, regardless of the imposition of terms imposed by the federal government with reference to payment. The court concluded that the Medicare Protection Act and the Canada Health Act had not been breached by the contract with Maximus and, consequently, the petition failed on that ground as well. The union appealed.

The British Columbia Court of Appeal held that Supreme Court erred in concluding that the principle of public administration found in the Canada Health Act had not been incorporated into the Medicare Protection Act. However, the Minister, by contracting with Maximus, did not breach the principle of public administration. Accordingly, the court dismissed the appeal.

Administrative Law - Topic 4567

Judicial review - Declaratory action - Bars - Lack of justiciable issue - The British Columbia Minister of Health Services contracted with the Maximus group of companies (Maximus) to operate and administer most aspects of the Medical Services Plan which provided health care insurance to residents of British Columbia - The British Columbia Government and Service Employees' Union brought proceedings under the Judicial Review Procedure Act, seeking, inter alia, a declaration that the Minister had acted beyond his powers and in contravention of the Medicare Protection Act (MPA) - The union asserted that the contracting out of duties and powers listed in s. 5(1) of the MPA to a private contractor was contrary to the requirement for public administration set out in s. 7 of the Canada Health Act - The Minister asserted that whether British Columbia had met the s. 7 criteria was not a justiciable issue, as the issue was inherently a political one involving on-going and complex relations between the federal and provincial governments - The British Columbia Court of Appeal stated that the union was seeking a declaration that the contract with Maximus was ultra vires - The question raised was whether a declaration could be granted under the Judicial Review Procedure Act in relation to the act of the Minister in entering into the contract in the face of the MPA - This was a justiciable issue - See paragraphs 48 and 49.

Courts - Topic 2006

Jurisdiction - General principles - Issues not suitable for judicial determination - General - [See Administrative Law - Topic 4567 ].

Health - Topic 1035

Services - By government - Public administration - Contracting out - The preamble to the British Columbia Medicare Protection Act (MPA) referred to the five principles contained in the Canada Health Act (CHA) and stated that "the people and the government of British Columbia wish to confirm and entrench 'those principles' as the guiding principles of the health care system of British Columbia" - Section 7 of the CHA set out the five principles in the context of a province qualifying for federal funding - Section 2 of the MPA provided that the MPA's purpose was "to preserve a publicly managed and fiscally sustainable health care system for British Columbia in which access to necessary medical care is based on need and not an individual's ability to pay." - Section 5(2) of the MPA constrained the Medical Services Commission in its powers and required that the Medical Services Plan be exercised so as to satisfy the principles in s. 7 of the CHA and, specifically, public administration along with elucidation in s. 8(1) of the manner in which the criterion of public administration could be met - The British Columbia Court of Appeal held that the MPA had incorporated by reference the five CHA's principles, including the public administration principle, as the guiding principles for administering health care in British Columbia and did not simply refer to them as a reminder that violations of the principles might put federal funding at risk - Further, s. 5(2) clearly prohibited the Commission from acting in a manner that was inconsistent with the principles listed in s. 7 of the CHA - See paragraphs 34 to 47.

Health - Topic 1035

General - By government - Public administration - The British Columbia Medicare Protection Act incorporated by reference the principle of public administration set out in s. 7 of the Canada Health Act - The British Columbia Court of Appeal examined the provisions of the Canada Health Act and the Medicare Protection Act and held that the principle of public administration required that the health insurance scheme be administered and operated on a non-profit basis by a public authority appointed or designated by British Columbia - It required a single-payer system as opposed to a multi-payer, private insurance scheme - A publicly administered health insurance scheme required that benefits and services be administered in accordance with publicly known policy, thus ensuring equitable access to the Medical Services Plan - See paragraphs 55 to 61.

Health - Topic 1035

General - By government - Public administration - Contracting out - The British Columbia Medicare Protection Act incorporated by reference the principle of public administration set out in s. 7 of the Canada Health Act - Section 8(1) of the Canada Health Act set out the requirements to satisfy the criterion for public administration - Section 8(2)(b) provided that it was not a contravention of the requirement for public administration if the public authority designated an agency to carry out "any responsibility in connection with the receipt or payment of accounts", provided that the public authority retained the power to assess and approve of the agency's actions - The British Columbia Court of Appeal concluded that adherence to the public administration principle did not necessarily require that all of the tasks required to operate the British Columbia Medical Services Plan had to be performed by a public, non-profit service provider - A province could contract out the delivery of certain services to private, for-profit providers provided that the province maintained control of policy and ensured that there was a mechanism or path to review any discretionary decisions of such a service provider - The court rejected the assertion that the Canada Health Act, and therefore the Medicare Protection Act, created a passive insurance scheme whereby the government (public, non-profit) funded the Medical Services Plan, but any private and for-profit entity could deliver the Plan - To agree with that submission would be to ignore the extent to which the operation of a health insurance plan required decisions of a discretionary nature, including decisions as to qualification for benefits and what medical services are to come within the plan's coverage - Discretionary decisions had to reflect publicly established policy and had to therefore be subject to scrutiny and correction by government - See paragraphs 62 to 65.

Health - Topic 1035

General - By government - Public administration - Contracting out - The British Columbia Minister of Health Services contracted with the Maximus group of companies (Maximus) to operate and administer most aspects of the Medical Services Plan which provided health care insurance to residents of British Columbia - The British Columbia Court of Appeal reviewed the contract and concluded that the services provided by Maximus did not contravene the public administration criterion because they could be construed as "any responsibility in connection with the receipt or payment of accounts rendered for insured health services" (Canada Services Health Act, s. 8(2)(b)) - The British Columbia Medicare Protection Act contemplated a wide range of decisions, studies and other planning in the operation and delivery of the medical services plan - The Commission was empowered to make those decisions and to see that the necessary planning and studies were undertaken - The Commission was also required to report to British Columbia - The Commission sanctioned the steps taken in contracting out services - While the administrative review processes and, particularly, the adjudication of disputed claims appeared to be close to the line, the contract did not violate the public administration principle - See paragraphs 66 to 90.

Words and Phrases

Public administration - The British Columbia Court of Appeal considered the meaning of "public administration" as used in ss. 7 and 8 of the Canada Health Act, R.S.C. 1985, c. C-6, and incorporated by reference into the Medical Protection Act, R.S.B.C. 1996, c. 286 - See paragraphs 55 to 61.

Cases Noticed:

R. v. St. Lawrence Cement Inc. (2002), 162 O.A.C. 363; 60 O.R.(3d) 712 (C.A.), refd to. [para. 34].

R. v. Collins (R.) et al. (2000), 140 B.C.A.C. 311; 229 W.A.C. 311; 148 C.C.C.(3d) 308; 2000 BCCA 437, refd to. [para. 35].

Ontario (Attorney General) v. Scott, [1956] S.C.R. 137; 1 D.L.R.(2d) 433, refd to. [para. 36].

Coughlin v. Highway Transport Board (Ont.), [1968] S.C.R. 569, refd to. [para. 36].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 55].

Statutes Noticed:

Canada Health Act, R.S.C. 1985, c. C-6, sect. 7(a) [para. 22]; sect. 8(1) [para. 23]; sect 8(2)(b) [para. 24];

Medicare Protection Act, R.S.B.C. 1996, c. 286, Preamble [para. 26]; sect. 5(2) [para. 30].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 55].

Counsel:

K.R. Curry, for the appellant;

J.M. Walters and S.I. Macdonald, for the respondents, the Minister of Health Services and the Medical Services Commission.

This appeal was heard at Victoria, British Columbia, on June 6, 2006, by Rowles, Levine and Smith, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered at Vancouver, British Columbia, on July 16, 2007, with the following opinions:

Rowles, J.A. (Levine, J.A., concurring) - see paragraphs 1 to 91;

Smith, J.A. - see paragraph 92.