How an Ottawa hospital dictates Murphy’s health policy RHAs Minister feared legal battle like the one that enveloped Monfort hospital. But was he right?

The legal merits of Health Minister Mike Murphy’s decision to slash the province’s health authorities are open to debate.
Constitutional experts differ on whether Murphy rightly settled on two health authorities, or whether he should have kept going and
created just a single district. Yet there is agreement that Murphy’s decision must be measured by a significantOntario court case, one that was said, at the time, to have « incredible national implications. »

Back in 2001, the Ontario Court of Appeal ruled that as minorities, francophones inOntario have unwritten constitutional rights that
protect institutions that are crucial to their survival. Using that principle the court quashed an Ontario government plan to downsizeOttawa’s Montfort Hospital. The court said closing or downsizing the hospital, a key institution for francophones, would jeopardize their identity. Experts predicted the Montfort decision would reverberate around the country and become the standard for minority rights.

As one constitutional law professor said at the time: « This decision has incredible national implications »¦ This case will be used as the
standard throughout Canada. » Not surprisingly, the Montfort ruling is at the centre of the complex legal web behind Murphy’s reform, which as of September will create just two health authorities, down from eight. Health authority A will be located in Bathurst, while authority B will be run out of Miramichi.John McEvoy, a University of New Brunswick law professor, says Murphy’s move to two authorities – as opposed to just one – is consistent with the government’s legal obligations and may have prevented a constitutional challenge. « If there was only one health authority that (would) invite a Charter (challenge), » said the constitutional specialist.
« You’re not promoting the equality of the two linguistic communities if you collapse what have been French language and English
language-administered health regions »¦ into one. »

One of McEvoy’s colleagues, however, says the argument supporting a constitutional challenge may be « over-reaching » and « slightly
ambitious. » « You would need more than speculation to make an equality challenge, » said Carissima Mathen, also a constitutional expert. While Mathen applauded the government’s caution, she said there is no guarantee of a legal fight or erosion of services for
francophones under one district. « I think it’s perhaps a slight exaggeration to turn a potential risk « ¦ into a full-fledged Charter violation. « It’s certainly not 100 per cent. »

Murphy has defended his decision to create a pair of health districts, saying two are required to ensure Acadian rights are preserved.
« I can only imagine how catastrophic it would be for the Acadian community if we went to one, » he recently told the Telegraph-Journal’s editorial board. « I can’t imagine the outcry from the Acadians who fought for 40 or 50 years for a say in their own health. »
Murphy amalgamated the authorities to cut costs and boost cooperation. A shift to two authorities, he said, was the maximum cut
possible. McEvoy follows Murphy’s logic.

The Charter of Rights and Freedoms, as well as provincial legislation, requires the government to preserve and promote equality of the province’s two linguistic communities, McEvoy said. « But equality does not mean treating people exactly the same, it means recognizing their differences, » he said, noting a single, bilingual health authority could infringe on that standard for Acadian residents.
A bilingual district, he said, could still project « subtle pressure » for francophones to speak English. Essentially the government must recognize underlying differences and establish programs that give equal opportunity to all New Brunswickers, he said. That’s where the Montfort case emerges.

In it, francophones successfully argued that the hospital was an important cultural and educational institution vital to the province’s
linguistic minority. A similar argument might be made for the Dr. Georges-L. Dumont RegionalHospital in Moncton. « There is a real link between the survival of the community and health, » McEvoy concluded. Mathen, however, is unsure of the local impact the decision could have. « Why would the institutions necessarily be at risk if you moved to one (district)? » she said. « I wouldn’t go so far as to say that the Montfort decision would hamstring the government from making higher-level, regulatory decisions in the interest of fairness or efficiency – as long as on the ground services meet »¦ constitutional interests. « I can see the link, but I think it’s a bit tenuous without more information.  »

For his part, Murphy contends Montfort restricted his options. « To place what may be a cultural institution into a bilingual board does, according to that case, diminish the ability to control your own activities, » he said. « (If) we put that all into one authority, we’re unquestionably stripping away those rights, » continued the Moncton North MLA, noting a possible fight in the Supreme Court. « (Two authorities are) the safest route to go and the most courteous to both linguistic groups. »

2008 05 12 TJ pa1 How an Ottawa hospital dictates Murphy’s health policy