Documents important
Lettre au premier ministre
21 octobre 2009
October 21st,
2009
Honourable Shawn Graham
Premier
Province of New Brunswick
P. O. Box 5000
Fredericton, N.B. E3B 5G4
Object:
Application for reference
under Section 23
of the Judicature Act
of New Brunswick
Notice of action by Égalité santé en français N.-B. Inc. et al. v.
Province of New Brunswick et al.
Premier Graham,
In 2008, the government of
New Brunswick adopted a new health care governance model that eliminated eight
regional health authorities and introduced a new structure of two bilingual
health authorities and a new quasi-public organization, FacilicorpNB. To
complete the health care picture, the New Brunswick Health Council was also
created.
What represented a comprehensive reform in public health service
management structures led to a fair number of interrogations. For the Acadian
community, the most important question was the constitutional validity of the
health reform with respect to the rights and freedoms enshrined in the Canadian
Constitution and with respect to the government’s obligations under the Act
Recognizing the Equality of the Two Official Linguistic Communities in New
Brunswick L.N.B., Chapter 0-1.1. Subsequently, a notice of action was served
upon the government by members of the Acadian community, represented by Égalité santé en français N.-B. Inc., Mr. Roger Doiron and Dr.
Louis-Marie Simard.
The notice of action and
the statement of claim bring to light fundamental constitutional questions
regarding the delivery and management of public health services in New
Brunswick. The fundamental nature of the issues at stake is so important that
the government did not hesitate in hiring lawyers from three experienced law
firms to defend the case.
Over the last 25 years, the
province of New Brunswick corrected the deficiencies in the constitutional
context created by the British North
America Act,
More recently, in 1993,
through a federal-provincial accord, substantive provisions of the Act Recognizing the Equality of the Two
Official Linguistic Communities in New Brunswick became constitutional
rights with the entrenchment of Section
It is precisely these constitutional
and quasi-constitutional rights and freedoms that are imperilled by the 2008
health reform. So, for the first time, a court will exercise its judgement in
determining the purport of these rights and freedoms in the health field.
Without a doubt, this is a matter of vital importance in future relationships
between the two linguistic communities of our province.
Section
23(1) of the Judicature Act of New
Brunswick, R.S.N.B., Chapter J-2, provides:
23.
(1) Important questions of law or fact touching
(a)
the interpretation of Constitution Acts,
(b)
the constitutionality or interpretation of any Canadian or Provincial
legislation,
(c)
the powers of the Legislature of the Province, or the Government thereof,
whether or not the particular power in question has been or is proposed to be
exercised, or
(d)
any other matter, whether or not in the opinion of the Court ejusdem generis with the foregoing
enumeration, with reference to which the Lieutenant-Governor in Council sees
fit to submit any such question,
may be
referred by the Lieutenant-Governor in Council to the Court of Appeal for
hearing and consideration, and any question touching any of the matters
aforesaid, so referred by the Lieutenant-Governor in Council, shall be
conclusively deemed to be an important question.
In our humble opinion, the
purpose of this provision is to address exactly the type of litigation that
involves the Province of New Brunswick and Égalité santé en français N.-B. Inc.
In our view, it would be difficult to identify more fundamental issues on the
constitutional front than those brought forward by your government’s health
reform.
An application for
reference under Section 23(1) of the Judicature
Act may be uncommon although we are aware that it has been used in the past
by the provincial government. However, applications for reference have been
used more often by other governments in Canada, specifically when either new or
fundamental constitutional questions arise. The procedure has several
advantages: it speeds up the final determination of the issues; it is far less
costly in legal fees for the parties; and, it offers a less antagonistic forum
for solving litigation.
For that reason, the
members of the SANB, in general assembly, voted unanimously:
WHEREAS:
-
A notice of action has been
filed by Égalité santé en français N.-B. Inc. et al. v. Province of New
Brunswick et al. concerning the constitutional
validity of the 2008 health reform by the Government of New Brunswick;
-
The litigation involves
fundamental constitutional issues regarding protection provided by Canadian
constitutional law to the Acadian community ;
-
Section 23 of the Judicature Act of New Brunswick provides
that the Lieutenant-Governor in Council (the Provincial Cabinet) may, upon
determining that litigation involves issues of constitutional importance,
proceed by reference directly to the New Brunswick Court of Appeal:
-
Costs incurred by
claimant-citizens of the Acadian community and New Brunswick taxpayers are
astronomical in these types of litigation;
-
It would be preferable that
the rights in question be clarified as soon as possible, at the least possible
cost and in a serene context;
BE IT RESOLVED THAT the SANB request that the government of New Brunswick file an
application for reference before the Court of Appeal regarding the
constitutional validity of the Regional
Health Authorities Act.
Mister Premier, I very
humbly transmit this resolution to you on behalf of our members and
sympathizers. Our reasoning behind a request for reference to the Court of
Appeal is that it will facilitate answers to the important constitutional
issues brought forward in this litigation, in a serene atmosphere of mutual
respect. We are convinced that a reference is appropriate in the circumstances
because the issues raised are of a judicial nature and the facts are not in
dispute. We are aware of the legislative and administrative changes and
appreciate how the new government institutions function. What needs to be
decided now is whether the linguistic rights involved are limited to the offer
of service in both official languages or whether the French-speaking community
has the right to homogeneous institutions managed by its own representatives.
We therefore request that
you agree to a judicial reference and direct your legal team to meet with the
legal advisors of Égalité santé en français N.-B. Inc. so both parties may
agree on the constitutional questions at stake and the contents of the file to
be submitted to the Court of Appeal.