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HOSPITALS AND HEALTH CARE FACILITIES - Funding - Constitutional issues

Friday, October 25, 2019 @ 8:33 AM  

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Appeal by the plaintiffs, the Elder Advocates of Alberta Society and a representative plaintiff, Darwish, from dismissal of their certified class action against the defendants, the Province, the Attorney General and Alberta Health Services. In Alberta, an individual who had chronic health care needs requiring long-term care could reside in government-funded long-term care facilities. Operators of such facilities were permitted to levy a daily accommodation charge. In 2003, the amount of the permissible charge was substantially increased. In 2005, the plaintiffs commenced a class action lawsuit alleging that the increased charge was invalid, as it was not authorized by statute, exceeded the cost of providing accommodation and meals, and effectively and impermissibly subsidized public health care services. The plaintiffs sought an accounting, damages and/or restitution based on unjust enrichment, and/or negligence, and/or breach of contract. The plaintiffs further alleged discrimination contrary to s. 15 of the Charter. The claims were dismissed in their entirety. The trial judge rejected the plaintiffs' assertion that the accommodation charge was restricted to the cost of providing accommodation and meals. The judge also rejected the argument that the charge was intended to be a user fee that required a reasonable nexus to the cost of the provision of the services. The judge found that, in any event, a reasonable nexus between the charges and costs existed. All the impugned charges were within the range set by regulation, precluding any liability in tort, contract or based on unjust enrichment. No substantive discrimination was established in support of the s. 15 Charter claim. The plaintiffs appealed.

HELD: Appeal dismissed. The trial judge correctly interpreted the meaning of an "accommodation charge" in the relevant legislation as a discretionary per diem amount charged to residents of long-term care facilities. The judge did not err in finding no statutory requirement that an accommodation charge be related to the cost of accommodation and meal services provided to residents. The interpretation appropriately considered federal legislation and the legislative purpose and history underlying the statutory scheme. That review demonstrated support for a cost-sharing approach to funding long-term care facilities in which publicly-funded services were delivered. The alternative finding of a reasonable nexus between the accommodation charge and the costs of the services was supported by expert evidence and entitled to deference. The dismissal of the common law claims based on the trial judge's interpretation of the statutory scheme did not disclose any reviewable error. Subsequent Supreme Court of Canada jurisprudence restated the test for a s. 15 breach. Application of the proper framework supported a conclusion that the accommodation charge prima facie breached s. 15 of the Charter due to discrimination based on disability but was justified under s. 1.

Elder Advocates of Alberta Society v. Alberta, [2019] A.J. No. 1243, Alberta Court of Appeal, P.T. Costigan, J. Strekaf and R. Khullar JJ.A., September 17, 2019. Digest No. TLD-October212019011