SUPREME
COURT OF CANADA
Between:
Attorney
General of Quebec
Appellant
and
Her
Majesty The Queen in Right of Canada
Respondent
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 49)
|
LeBel J. (McLachlin C.J. and Binnie,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
|
Quebec (Attorney General) v.
Canada, 2011
SCC 11, [2011] 1 S.C.R. 368
Attorney
General of Quebec Appellant
v.
Her
Majesty The Queen in Right of Canada Respondent
Indexed as: Quebec (Attorney
General) v. Canada
2011 SCC 11
File No.: 33524.
2010: October 14;
2011: March 3.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the
federal court of appeal
Social
law — Canada Assistance Plan — Cost sharing — Federal‑provincial
agreement entered into under Canada Assistance Plan for purpose of sharing
costs of welfare services — Federal government refusing to share in costs
incurred by Quebec for two types of services — Whether social services provided
in schools were “welfare services” within meaning of Canada Assistance Plan —
Whether federal government already sharing in costs of support services
provided to persons with disabilities living in residential resources for
clients who required continuous assistance on basis that these services
constituted “adult residential care services” under Federal‑Provincial
Fiscal Arrangements and Established Programs Financing Act, 1977 — Canada
Assistance Plan, R.S.C. 1985, c. C‑1, ss. 2, 4(b), 5(2)(c) —
Canada Assistance Plan Regulations, C.R.C. 1978, c. 382, s. 8 —
Federal‑Provincial Fiscal Arrangements and Established Programs Financing
Act, 1977, S.C. 1976‑77, c. 10, s. 27(8) — Federal‑Provincial
Fiscal Arrangements and Established Programs Financing Regulations, 1977,
SOR/78‑587, ss. 24(1), 24(2)(b).
The Canada Assistance Plan
(“CAP”), which has been repealed, was enacted in 1966 in the context of
the federal government’s anti‑poverty plan. The CAP made it
possible for provincial governments to enter into agreements with the federal
government on sharing the costs of certain assistance programs and welfare
services provided in their territory. Quebec signed such an agreement with the
federal government in 1967. It subsequently commenced an action for a
declaration that the federal government had to share under the CAP in
costs paid in respect of two types of services: social services provided in
schools (“SSS”) between 1973 and 1996 and support services provided to persons
with disabilities living in residential resources (“SSPD”) between 1986 and
1996. The federal government refused to share in these costs, arguing that SSS
were not covered by the CAP and that the costs of SSPD had been shared
since 1977 under another Act of Parliament. The Federal Court and the Federal
Court of Appeal decided in the federal government’s favour and dismissed
Quebec’s claim.
Held:
The appeal should be dismissed.
SSS
are not eligible for cost sharing under the CAP. In light of the
definitions of “welfare services” and “welfare services provided in the
province” in s. 2 of the CAP, the federal government had to share
in the costs of a service only if the service had an anti‑poverty object
and was provided to persons in need or persons who would become persons in need
in the absence of such a service. A service would not be considered a “welfare
service” unless it had been established for the specific purpose of alleviating,
eliminating or preventing poverty. This would require the existence of a close
connection between the nature of the service and the eradication of the causes
or effects of poverty. In the instant case, a close connection did not exist
between SSS and even the preventive aspect of the fight against poverty.
Rather, the evidence shows that the true object of SSS was to contribute to the
educational mission of schools and to support educational activities, not to
fight poverty. The makeup of the school population altered nothing in the
nature of SSS.
Nor can cost sharing be ordered in
the case of SSPD provided to clients requiring continuous assistance, because
in accordance with the residual exception set out in s. 5(2)(c) of
the CAP, the costs that could be shared under the CAP did not
include the costs of services shared pursuant to another Act of Parliament.
The federal government was already sharing in the costs of the SSPD in question
under s. 27(8) of the Federal‑Provincial Fiscal Arrangements and
Established Programs Financing Act, 1977 on the basis that they
constituted an “adult residential care service”.
Section 24 of the Federal‑Provincial
Fiscal Arrangements and Established Programs Financing Regulations, 1977 defined
the term “institution” for the purposes of the federal program as including a
facility qualifying as a “home for special care” under s. 8 of the Canada
Assistance Plan Regulations. Although the s. 8 in question refers to
provincial standards, provincial legislation cannot be applied in interpreting
the meaning of the term “institution” in the federal legislation. The
reference to provincial legislation concerned the quality of the services
provided in a residential facility for persons with disabilities and was not
intended to establish criteria for characterizing such a facility as an
“institution”.
The intensiveness of the services
provided by residential resources was a key factor in characterizing such
resources as “homes for special care” that provided “adult residential care
services”. A residential resource that provided all the services referred to
in s. 24(2)(b) of the Federal‑Provincial Fiscal
Arrangements and Established Programs Financing Regulations, 1977 would
legitimately have been considered to be providing an “adult residential care
service”. In the instant case, the trial judge’s findings of fact show that
residential resources in which SSPD were provided and whose clients required
continuous assistance were institutions to which s. 24(2)(b)
applied. The services provided in residential resources covered all aspects of
daily living, including room and board.
Cases Cited
Referred
to: Confédération des syndicats nationaux v. Canada (Attorney General),
2008 SCC 68, [2008] 3 S.C.R. 511; Reference re Employment
Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R.
669; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Finlay
v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080.
Statutes and Regulations Cited
Act respecting health services and social services and amending
various legislation, S.Q. 1991, c. 42.
Blind Persons Act, R.S.C. 1952, c. 17.
British North America
Act, 1951 (U.K.), 14 & 15 Geo. VI,
c. 32, s. 1.
Budget Implementation
Act, 1995, S.C. 1995, c. 17, ss. 31 ,
32 .
Canada Assistance Plan, R.S.C. 1985,
c. C‑1, preamble, ss. 2 “home for special care”, “welfare
services”, “welfare services provided in the province”, 4, 5(2)(c).
Canada Assistance Plan Regulations, C.R.C. 1978, c. 382, s. 8.
Canada Health Act, R.S.C. 1985, c. C‑6 .
Constitution Act, 1867, ss. 91 (2A), 94A .
Constitution Act, 1940 (U.K.), 3 & 4 Geo. VI, c. 36, s. 1.
Constitution Act, 1964 (U.K.), 12 & 13 Eliz. II, c. 73, s. 1.
Disabled Persons Act, S.C. 1953‑54, c. 55.
Federal‑Provincial Fiscal Arrangements and Established
Programs Financing Act, 1977, S.C. 1976‑77,
c. 10, s. 27(8).
Federal‑Provincial Fiscal Arrangements and Established
Programs Financing Regulations, 1977, SOR/78‑587,
s. 24(1) “institution”, (2)(b) “adult residential care service”.
Supreme Court Act, R.S.C. 1985,
c. S‑26, s. 35.1 .
APPEAL
from a judgment of the Federal Court of Appeal (Létourneau, Nadon and Pelletier JJ.A.), 2009 FCA 361, 400 N.R. 323,
[2009] F.C.J. No. 1580 (QL), 2009 CarswellNat 5376, affirming a decision of de Montigny J.,
2008 FC 713, 359 F.T.R. 1, [2008] F.C.J.
No. 896 (QL), 2008
CarswellNat 5959. Appeal dismissed.
Dominique
Rousseau and Mélanie Paradis, for
the appellant.
René LeBlanc and Bernard
Letarte, for the respondent.
English version of the judgment of the Court
delivered by
LeBel J.
—
I. Introduction
[1]
In this appeal as of right by the Attorney
General of Quebec under s. 35.1 of the Supreme Court Act,
R.S.C. 1985, c. S‑26 , the Court must determine whether, under
the Canada Assistance Plan, R.S.C. 1985, c. C‑1 (“CAP”),
which was repealed by the Budget Implementation Act, 1995, S.C. 1995,
c. 17, ss. 31 ‑32, the federal government was obliged to share
in the costs of certain social services provided in Quebec between 1973 and
1996. The case relates to two specific types of services: social services
provided in schools (“SSS”) between 1973 and 1996 and support services provided
to persons with disabilities living in residential resources (“SSPD”) between
1986 and 1996. A third aspect of the case relating to the costs of
correctional services for juvenile delinquents was abandoned by the appellant
following the trial judgment.
[2]
The Attorney General of Quebec is challenging
the federal government’s refusal to share in the costs of the two types of
services in issue under the CAP. In reply, the federal government
argues that SSS were not covered by the CAP and that the costs of SSPD
had been shared since 1977 under another Act of Parliament. The Federal Court
and the Federal Court of Appeal decided in the federal government’s favour and
dismissed the Attorney General of Quebec’s claim.
[3]
For the reasons that follow, I would dismiss the
appeal with costs.
II. Origin of the Case
[4]
The origin of this case can best be understood
by considering the role played by the federal government in social policy
development in Canada during the 20th century. Traditionally, and for a long
time, that role remained quite limited. Indeed, federal and provincial social
security programs developed slowly up to the time of the Great Depression of
1929 and World War II. Until then, the federal government generally took
refuge behind the constitutional division of powers and left it up to the
provinces to provide and, above all, finance social services for the public.
[5]
However, things changed starting in the 1930s.
In response to persistent pressure from various sectors of Canadian society for
government intervention in the social arena and because of its fiscal situation
following World War II, the federal government agreed to play a greater
role in financing social programs for the Canadian public. Its increased
participation in social policy development involved two types of initiatives.
[6]
First, the federal government played a key role
in creating a number of income security programs for specific clienteles. For
that purpose, it had to enter into agreements with the provinces to amend the
Constitution so that Parliament would have the authority to make laws in
relation to unemployment insurance and old age pensions (Constitution Act, 1940
(U.K.), 3 & 4 Geo. VI, c. 36, s. 1, adding s. 91 (2A); British
North America Act, 1951 (U.K.), 14 & 15 Geo. VI, c. 32,
s. 1, adding s. 94A , subsequently amended by the Constitution
Act, 1964 (U.K.), 12 & 13 Eliz. II, c. 73, s. 1;
see Confédération des syndicats nationaux v. Canada (Attorney General),
2008 SCC 68, [2008] 3 S.C.R. 511; Reference re Employment Insurance Act
(Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669). Those
constitutional amendments gave effect to one of the recommendations of the
Royal Commission on Dominion‑Provincial Relations, better known as the
Rowell‑Sirois Commission. The universal income security programs
established by the federal government included unemployment insurance, family
allowances and old age security. A guaranteed income supplement program under
which additional allowances were paid to seniors with incomes below a set
minimum was later added to the old age security program.
[7]
Second, the federal government intervened, with
an equally specific focus, in the area of social assistance. Since it
continued to recognize that the provinces were primarily responsible for
establishing social programs, and since it believed that the need for social
assistance measures would decrease as income security programs expanded, it
chose to focus its initiatives in this area on some of the most vulnerable
groups in society. It then decided to help establish programs for specific
clienteles rather than creating a nationwide universal social security system.
With this in mind, the federal government enacted, inter alia, the Blind
Persons Act, R.S.C. 1952, c. 17, and the Disabled Persons Act,
S.C. 1953‑54, c. 55.
[8]
Thus, the federal government’s role in social
policy development in Canada during the postwar period was characterized by the
adoption of specific objectives for its initiatives. Each initiative focussed
on a particular clientele, such as seniors, unemployed persons, families, blind
persons or disabled persons. The CAP was enacted as part of this
process.
[9]
The CAP (short title of the Act to
authorize the making of contributions by Canada toward the cost of programs for
the provision of assistance and welfare services to and in respect of persons
in need) was enacted in 1966, and payments under it ceased, beginning in
1996, pursuant to the Budget Implementation Act, 1995 , which also
introduced the Canada Health and Social Transfer. Since this last change took
place, the federal government has been contributing to the costs of social
programs established by the provinces through per capita grants.
[10]
From the beginning, the CAP formed part
of the federal government’s anti‑poverty plan. It operated in the same
way as the federal selective assistance programs that already existed for
specific clienteles. The CAP was not modelled on the universal social
programs that had begun to appear in the 1960s, such as the nationwide scheme
that had been established in 1966 by enacting the federal legislation now known
as the Canada Health Act, R.S.C. 1985, c. C‑6 . It was
instead designed to fulfil the federal government’s promises to the most
vulnerable groups in Canadian society.
[11]
The CAP was essentially a plan for
sharing the costs of services that were intended to serve as a social safety
net. It was a selective, residual anti‑poverty tool created to protect
categories of individuals in especially precarious financial situations.
According to the terms of the CAP itself, its purpose was solely to share
the costs of provincial services for “persons in need” and persons who were
likely to become persons in need if such social services did not exist. The
wording of the preamble to the CAP confirmed the specific nature of the
anti‑poverty mechanism chosen by Parliament:
Whereas the Parliament of Canada, recognizing that the provision of
adequate assistance to and in respect of persons in need and the prevention and
removal of the causes of poverty and dependence on public assistance are the
concern of all Canadians, is desirous of encouraging the further development
and extension of assistance and welfare services programs throughout Canada by
sharing more fully with the provinces in the cost thereof . . . .
[12]
Under s. 4 of the CAP, the federal
and provincial governments could enter into cost‑sharing agreements for
certain “assistance” programs and for “welfare services provided in the
province”:
4. Subject to this Act, the Minister may, with the
approval of the Governor in Council, enter into an agreement with any province
to provide for the payment by Canada to the province of contributions in
respect of the cost to the province and to municipalities in the province of
(a) assistance
provided by or at the request of provincially approved agencies pursuant to the
provincial law; and
(b) welfare services
provided in the province by provincially approved agencies pursuant to the
provincial law.
Like the other
Canadian provinces, Quebec signed such an agreement with the federal government
in 1967.
[13]
During the period when the CAP applied,
the federal government paid about $98 billion to the provinces, including
nearly $34 billion to Quebec, as financial contributions to services of
the types mentioned in s. 4 of the CAP. The dispute in this case
arose out of a decision by the federal government that SSS and SSPD were not
eligible for cost sharing under the CAP. Quebec estimates that it was
deprived of at least $285 million in contributions because of the way the
federal government interpreted the scope of the CAP.
[14]
First, the federal government refused to share
in the costs of SSS — services provided by social workers in Quebec schools —
arguing that they were universal services intended for a clientele much broader
than the one covered by the CAP. Although the CAP did apply to
minors who could be characterized as “young persons in need of protection”, the
federal government argued that SSS were intended for all students, regardless
of their socio‑economic background. It also based its justification for
refusing to share in the costs of SSS on the fact that the main purpose of such
services was to support the educational mission of schools. In its view, therefore,
the role of SSS was unrelated to the CAP’s anti‑poverty objective,
and SSS were also expressly excluded from cost sharing under the CAP by
the exception for services relating to education set out in s. 2 of the CAP.
[15]
The Attorney General of Quebec disputed this
interpretation. In his view, SSS were “welfare services” within the meaning of
s. 2 of the CAP. Since such services were intended primarily for a
disadvantaged clientele, Quebec argued that their purpose was to prevent
poverty. Thus, their main object was not to support the educational mission of
schools. On this point, the Attorney General of Quebec stressed the impact of
the administrative reorganization that had begun in Quebec in the early 1970s,
at which time the responsibility for managing SSS was conferred on the
Ministère des Affaires sociales (now the Ministère de la Santé et des Services
sociaux). Until then, they had been managed through the education system. In
the appellant’s view, this reorganization had profoundly changed the nature of
services provided in schools: from that time on, social workers focussed their
attention on the child rather than on the student. In this new operating
framework, schools served merely as a meeting point at which students could be
found together, thus facilitating the work of social workers.
[16]
Second, starting on April 1, 1977, the
federal government refused to share in the costs of SSPD, arguing that it was
already doing so under the Federal‑Provincial Fiscal Arrangements and
Established Programs Financing Act, 1977, S.C. 1976‑77, c. 10 (“Fiscal
Arrangements Act, 1977”). Unlike services provided in residential
resources whose clients received support on an as‑needed basis, SSPD
provided in residential resources whose clients required continuous assistance
were considered to constitute an “adult residential care service” within the
meaning of s. 27(8) of the Fiscal Arrangements Act, 1977 and
s. 24(2)(b) of the Federal‑Provincial Fiscal Arrangements
and Established Programs Financing Regulations, 1977, SOR/78‑587 (“Fiscal
Arrangements Regulations, 1977”). The federal government argued that SSPD
therefore fell under the residual exception set out in s. 5(2)(c)
of the CAP, which excluded from cost sharing under the CAP the
costs of services the federal government was required to share with the
provinces pursuant to any other Act of Parliament. However, I note that the
costs of services provided in residential resources whose clients did not
require continuous assistance were shared under the CAP until payments
under it gradually ceased between 1996 and 2000.
[17]
The Attorney General of Quebec disagreed that
services provided in residential resources whose clients required continuous
assistance constituted an “adult residential care service”. In light of the
process of deinstitutionalization that had taken place in Quebec starting in
the 1960s, the Attorney General of Quebec argued that SSPD had to be considered
care provided in the user’s “home” rather than in an “institution in respect of
adults”. He also noted that this reality was reflected in the fact that users
paid their own lodging and food expenses and sometimes signed their own leases.
[18]
A political solution was never found to the
dispute between the Quebec government and the federal government over cost
sharing for these programs. To resolve the impasse, the Attorney General of
Quebec commenced an action in the Federal Court on December 23, 1996, for
a declaration that the federal government must reimburse to Quebec half the
costs of SSS for the period from 1973 to 1996 and of SSPD for the period from
1986 to 1996. Initially, Quebec’s claim also included an aspect relating to
services provided to juvenile delinquents for the period from 1979 to 1984, but
as I mentioned above, that aspect was abandoned.
III. Judicial History
A. Federal Court, 2008 FC
713, 359 F.T.R 1 (de Montigny J.)
[19]
The Federal Court dismissed Quebec’s claim in
its entirety. De Montigny J. first found that the costs of SSS could
not be shared under the CAP. In his opinion, SSS were not “welfare
services” within the meaning of s. 2 of the CAP, because they “had
nothing to do with CAP’s anti-poverty objectives” (para. 323).
Rather, they were social services that were intended for a universal clientele,
namely Quebec school students, and that contributed to the educational mission
of schools by ensuring that the work of social workers was focussed on problems
related to school attendance and academic success.
[20]
Even if SSS could have been considered “welfare
services”, de Montigny J. would have denied the cost sharing sought
by Quebec under the CAP, because those services fell under the exception
for “any service relating wholly or mainly to education” set out in s. 2
of the CAP. The trial judge rejected the interpretation of the Attorney
General of Quebec to the effect that the meaning of “enseignement” (the
word used in the French version of the section as the equivalent for
“education”) should be limited to the transmission of knowledge. Following a
comparative analysis of the English and French versions of the CAP, he
instead concluded that Parliament had opted for an open concept of education
encompassing both traditional academic learning and the complete development of
the child (para. 328).
[21]
Next, de Montigny J. found that SSPD
constituted an “adult residential care service” within the meaning of the Fiscal
Arrangements Act, 1977 and the Fiscal Arrangements Regulations, 1977,
and that they were already subsidized under that Act. While he acknowledged
that the process of deinstitutionalization had changed the nature of care
provided to persons with disabilities, he expressed the opinion that the
intensiveness of the services provided to users of residential resources with
continuous assistance had remained more or less the same as it had been when
patients were being placed in institutions. In his view, the intensiveness of
services was inherent and implicit in the “institution” concept. Accordingly,
relying on the CAP’s residual nature as provided for in s. 5(2)(c),
he refused to require the federal government to share in the costs of SSPD for
clients requiring continuous assistance.
B. Federal Court of
Appeal, 2009 FCA 361, 400 N.R. 323 (Létourneau, Nadon and Pelletier JJ.A.)
[22]
The Federal Court of Appeal dismissed the appeal
of the Attorney General of Quebec. Létourneau J.A. first concluded that
the trial judge’s analysis with respect to SSS was not open to criticism. He
agreed with the finding that the object of SSS was not to fight poverty.
Although he acknowledged that the CAP provided financing for social
programs designed to prevent poverty, he concluded that the creation of such
programs had to be justified by a “real rather than hypothetical imminence of
need” (para. 24). In his view, therefore, the trial judge had been right
to find that SSS were not eligible for cost sharing under the CAP as
“welfare services”.
[23]
Létourneau J.A. then dealt quickly with the
eligibility of SSPD for cost sharing under the CAP, saying only that the
trial judge had made no error that would justify the intervention of the
Federal Court of Appeal on this point.
IV. Analysis
[24]
This appeal raises issues of statutory
interpretation that are complex owing to the number and the technical nature of
the statutory provisions governing federal transfers to the provinces for
social services. In essence, the Court must determine whether SSS and SSPD
were eligible for cost sharing under the CAP. In the case of SSS, the
fundamental issue is whether they were “welfare services provided in the
province” within the meaning of s. 2 of the CAP. If so, it must
then be determined whether they were nonetheless excluded from cost sharing
under the CAP as a result of the exception for “any service relating
wholly or mainly to education” set out in that same section. Where SSPD are
concerned, it must be determined whether the federal government was already
sharing in the costs of these services as “adult residential care service[s]”
within the meaning of the Fiscal Arrangements Act, 1977. The relevant
statutory provisions are reproduced in the Appendix.
[25]
In Housen v. Nikolaisen, 2002 SCC 33,
[2002] 2 S.C.R. 235, the importance of which it has often emphasized, this
Court held that unless the trial judge made palpable and overriding errors in
assessing the evidence, an appellate court’s proceedings should be conducted on
the basis of that judge’s findings of fact. In the case at bar, the errors
identified by the Attorney General of Quebec were not palpable and overriding
errors. My analysis of the questions of law at issue in this appeal will
therefore be based on the trial judge’s findings of fact.
A. SSS and the Definition
of “Welfare Services Provided in the Province”
[26]
In this Court, the Attorney General of Quebec
argues that SSS were “welfare services” within the meaning of s. 2 of the CAP.
Although the services provided were universal in nature, he submits that SSS
were intended to prevent poverty, since they were provided primarily to
children from disadvantaged socio‑economic backgrounds. The Attorney
General of Quebec therefore contends that the trial judge erred in concluding
that the concept of “welfare services” extended only to social services intended
exclusively for persons in need (A.F., at para. 28). He submits that
universal social programs were eligible, but that cost sharing was limited to
services provided to the clientele covered by the CAP (A.F., at
para. 41).
[27]
In principle, the Attorney General of Quebec is
correct that the definition of “welfare services” was not dependent on the
target clientele of the social programs established by the provinces. It is
indeed possible that not every recipient of a “welfare service” belonged to the
clientele covered by the CAP. However, the Attorney General of Quebec’s
criticism of the trial judge in this respect is groundless. The trial judge
found that in such cases, the federal government and the province concerned had
established the proportion of costs eligible for cost sharing by means of a
complex mechanism for dividing up the clientele (para. 56).
[28]
However, in addition to this division of the
clientele, the universal services in question had to be consistent with the
provisions of the CAP on which cost sharing was based. In this regard,
the relevant portions of the definitions of “welfare services” and “welfare
services provided in the province” in s. 2 of the CAP read as
follows:
2. . . .
“welfare
services” means services having as their object the lessening, removal or
prevention of the causes and effects of poverty, child neglect or
dependence on public assistance . . . ;
“welfare services provided in the province”
means welfare services provided in the province pursuant to the provincial law to . . .
persons in need or persons who are likely to become persons in need unless
those services are provided;
[29]
Although the argument in the courts below
concerned mainly the concept of “welfare services”, both these definitions are
essential to an interpretation of the scope of s. 4(b) of the CAP.
They seem to say that the federal government had to share in the costs of a
service only if the service had an anti-poverty object and was provided
to persons in need or persons who would become persons in need in the absence
of such a service (Finlay v. Canada (Minister of Finance), [1993]
1 S.C.R. 1080, at p. 1123, per Sopinka J.). Thus, what must
be determined in the instant case is whether the trial judge erred in
concluding that SSS were not eligible for cost sharing under the CAP.
[30]
To do this, it must first be determined what was
meant by the words “services having as their object the lessening, removal or
prevention of the causes and effects of poverty”. In my opinion, these words
suggest that a “welfare service” had to have an anti-poverty purpose.
Therefore, a service would not be considered a “welfare service” unless it had
been established for the specific purpose of alleviating, eliminating or
preventing poverty. In practice, this would require the existence of a close
connection between the nature of the service and the eradication of the
causes or effects of poverty. From this standpoint, if an established service
contributed to the fight against poverty only incidentally, indirectly or by
extension, it could not be considered a “welfare service” for the purposes of
cost sharing under the CAP, since the close connection requirement would
not be met.
[31]
In the instant case, the trial judge rejected
the argument that there was a close connection between SSS and even the
preventive aspect of the fight against poverty. Instead, he found that the
true object of SSS was to contribute to the educational mission of schools.
His finding was based on a careful examination of the testimonial and
documentary evidence. He reviewed all the testimony and commented on the
principal documentary evidence, which provided ample support for his finding.
As a result, in my opinion, the Court has no reason to interfere with it. This
finding is sufficient in itself for us to dismiss the appeal on this first
aspect of the claim of the Attorney General of Quebec.
[32]
However, the Attorney General of Quebec also
argues that SSS were eligible for cost sharing under the CAP insofar as
they were provided to a [translation] “disadvantaged
clientele” (A.F., at para. 64). With respect, this argument is
erroneous. It is of course true that many students in Quebec’s school system
were persons “in need” within the meaning of the CAP. It may also be
true that many of the interventions by social workers in schools concerned such
students. Nonetheless, the makeup of the school population did not alter the
nature of SSS. Their purpose was to support educational activities, not to
fight poverty, and this purpose did not qualify them for the cost-sharing
mechanism in respect of social services. This is in fact what the trial judge
concluded in stressing the actual purpose of SSS (para. 323).
[33]
As a result of this conclusion, I do not have to
rule on the interpretation issue raised by the appellant concerning the exclusion of “any service relating wholly or
mainly to education” under s. 2 of the CAP. I will therefore turn
now to the issue of cost sharing for SSPD.
B. Meaning of the Word
“Institution” in the Fiscal Arrangements Act, 1977 and Cost Sharing for SSPD
[34]
Until April 1, 1977, the CAP was the
source of federal funding for the costs of social services provided to persons
with disabilities living in residential resources insofar as those services
were provided in a “home for special care” within the meaning of s. 2 of
the CAP. But the coming into force of the Fiscal Arrangements Act, 1977
fundamentally changed the rules for sharing the costs of SSPD. Because of the
creation of a program to finance extended health care services, some of the
services formerly funded under the CAP as “homes for special care” then
began to be funded as “adult residential care services” under the Fiscal
Arrangements Act, 1977. And s. 5(2)(c) of the CAP
continued to confirm the CAP’s residual nature by providing that the
costs that could be shared under the CAP did not include the costs of
services shared by the federal government and the provinces pursuant to another
Act of Parliament. It was the application of this principle that led to the
differences between the Quebec government and the federal authorities.
[35]
After the Fiscal Arrangements Act, 1977
came into force, the CAP continued to be the source of federal funding
for the costs of SSPD for clients who did not require continuous assistance.
But on the basis of s. 5(2)(c) of the CAP, the federal
government refused to share in the costs of SSPD for clients who required
continuous assistance. In its view, such services basically constituted an
“adult residential care service” within the meaning of the Fiscal
Arrangements Act, 1977.
[36]
To determine whether SSPD were eligible for cost
sharing under the CAP, the only question this Court must answer concerns
the meaning of the “adult residential care service” concept referred to in
s. 27(8) of the Fiscal Arrangements Act, 1977. As I mentioned
above, the appellant argues that SSPD could not be characterized as adult
residential care services because they were provided in the recipient’s
“home”. This argument has two aspects, which I will discuss in turn: the first
concerns the very nature of residential resources, while the second relates to
the range of services offered in such resources.
[37]
Section 24 of the Fiscal Arrangements
Regulations, 1977 must be considered in analysing the Attorney General of
Quebec’s argument. I believe it will be helpful here to reproduce, in part,
this provision, which defined the term “institution” for the purposes of the
federal program:
24. (1) For
the purposes of this section,
. . .
“institution” means
(a) in
the case of a service other than converted mental hospitals, a facility or
portion of a facility that qualifies as a home for special care under
section 8 of the Canada Assistance Plan Regulations . . . .
(2) . . .
(b) “adult
residential care service” means a service provided in an institution in respect
of adults consisting of
(i) personal
and supervisory care according to the individual requirements of residents of
the institution,
(ii) assistance
with the activities of daily living and social, recreational and other related
services to meet the psycho‑social needs of the residents of the
institution,
(iii) services
required in the operation of the institution, and
(iv) the provision of room and
board . . . .
[38]
The Attorney General of Quebec contends, first,
that residential resources were not “institutions” within the meaning of
s. 8(f) of the Canada Assistance Plan Regulations, C.R.C. 1978,
c. 382 (“CAP Regulations”), which read as follows:
8. For the purposes of
the definition “home for special care” in section 2 of the Act, the
following kinds of residential welfare institutions are prescribed for the
purposes of the Act as homes for special care:
. . .
(f) any
residential welfare institution the primary purpose of which is to provide residents
thereof with supervisory, personal or nursing care or to rehabilitate them
socially,
the standards of which . . . are, in the opinion of the provincial authority,
in accordance with the standards generally accepted in the province for
residential welfare institutions of that kind.
[39]
Relying on the last part of this provision, the
Attorney General of Quebec submits that the criteria provided for in a Quebec
statute, the Act respecting health services and
social services and amending various legislation,
S.Q. 1991, c. 42 (“AHSSS”), had to be applied to determine whether
a residential resource could be characterized as an “institution” within the
meaning of the CAP Regulations. I disagree. In my opinion, the
Attorney General of Quebec is wrong in law to state that s. 8(f) of
the CAP Regulations incorporated provincial legislation to establish the
criteria for characterizing a residential facility for persons with
disabilities as an “institution”. I believe that the reference to provincial
legislation instead concerned the quality of the services provided in
such facilities.
[40]
The concluding words of s. 8 of the CAP
Regulations must therefore be understood to state a condition that costs
were to be shared only if “standards generally accepted in the province” were
met. Thus, the obligation assumed by the federal government under the CAP
was to share in the costs of services provided in “homes for special care” only
if the services met quality standards set out in the provincial legislation
applicable to that type of institution. It is reasonable to conclude that the
federal government was simply ensuring that it would not share in the costs of
services that did not meet provincial quality standards. From this
perspective, the concluding words of s. 8 represented neither more nor
less than a guarantee for the federal government that the CAP
would not be a blank cheque given to the provinces without regard for the
quality of the services provided. I agree with the respondent that setting out
in Schedule A to the agreement entered into with Quebec under s. 4 of
the CAP a list of the “homes for special care” approved in accordance
with provincial standards was the best way to secure that guarantee (R.F., at
para. 169).
[41]
Moreover, it must not be forgotten that the CAP
was established by a spending statute whose purpose was to remedy an imbalance
that had been observed between the federal government’s tax revenues and the
expenses incurred by the provinces. The Attorney General of Quebec’s argument
would therefore mean that the Parliament of Canada left it up to the provinces
to determine the scope of a federal spending statute. I cannot believe that
this was Parliament’s intention at the time the CAP was drafted.
[42]
If this were the interpretation to be given to
s. 8(f) of the CAP Regulations, it would have to be
concluded that, before the CAP was repealed, it would have been open to
each province to amend its legislation to change the criteria for what it
considered to be “institutions” in order to avoid the application of the
residual exception of s. 5(2)(c) of the CAP. As the
respondent states in her factum, the effect of the interpretation suggested by
the Attorney General of Quebec would have been [translation] “to deprive the Government of Canada of any
power to assess the provinces’ claims under the legislation it was responsible
for administering” (para. 168). For these reasons, the argument that the AHSSS
had to be applied in interpreting the meaning of the term “institution” in the
federal statute and regulations must be rejected.
[43]
The Attorney General of Quebec also insists that
the range of services offered in residential resources did not meet the
cumulative conditions set out in s. 24(2)(b) of the Fiscal
Arrangements Regulations, 1977, which defined “adult residential care
service”. He argues that residential resources could not be considered
“institutions” within the meaning of that provision because they did not
provide recipients with room and board. The essence of the Attorney General of
Quebec’s interpretation is that residential resources did not “provide”
services relating to room and board, because the recipients paid for those
services themselves.
[44]
This argument must also be rejected. The fact
that most recipients of SSPD paid the costs of their own room and board — using
social security benefits — does not mean that residential resources did not
provide them with those services. The evidence at trial showed that the recipients
did not do their own grocery shopping or cook their own meals (para. 405)
and that, although some recipients signed leases, reception and rehabilitation
centres (“CAR”) or rehabilitation centres for mentally impaired persons
(“CRDI”) always co‑ordinated and supervised, from an administrative
standpoint, the activities of residential resources, which were responsible for
placing and moving recipients (para. 395). The recipients had no choice
in this respect.
[45]
Accordingly, even assuming that the amount of
social assistance benefits covered all costs of the recipients’ room and board
— although this seems doubtful — it is impossible to conclude that those
services were not provided by an institution for adults within the meaning of
s. 24(2)(b) of the Fiscal Arrangements Regulations, 1977.
In fact, without the support of CAR or of CRDI, recipients of SSPD who required
continuous assistance would have been unable to feed themselves and would not
have been lodged in this type of residential resource. In the final analysis,
I cannot conclude, as the Attorney General of Quebec suggests, that residential
resources provided home care rather than an “adult residential care service”.
Deinstitutionalization was a valid social objective, but it did not change the
legal framework established under the relevant federal legislation for cost
sharing under the CAP.
[46]
I agree with the trial judge that the
intensiveness of the services provided by residential resources was a key
factor in characterizing such resources as “homes for special care” that
provided “adult residential care services”. Although intensiveness was not, per se,
a classification criterion under s. 24(2)(b) of the Fiscal
Arrangements Regulations, 1977, it seems obvious to me that it was implicit
in all the cumulative factors set out in that section. It was even explicit in
s. 24(2)(b)(ii), which referred to services provided to recipients
to assist with the activities of daily living as well as social and
recreational services.
[47]
Therefore, a residential resource that did not
provide all these services would not have had the “intensiveness” needed to
qualify under s. 24(2)(b)(ii). Conversely, a residential resource
that provided all the services referred to in s. 24(2)(b) of the Fiscal
Arrangements Regulations, 1977 would legitimately have been considered to
be providing an “adult residential care service”. It could be concluded that
such a resource was an institution “the primary purpose of which is to provide
residents thereof with supervisory, personal or nursing care or to rehabilitate
them socially” within the meaning of s. 8(f) of the CAP
Regulations.
[48]
In the instant case, the trial judge’s findings
of fact show that residential resources in which SSPD were provided and whose
clients required continuous assistance were institutions to which
s. 24(2)(b) of the Fiscal Arrangements Regulations, 1977
applied. De Montigny J. was correct in concluding that the services
provided in residential resources covered “all aspects of daily living”
(para. 405). Since the Attorney General of Quebec has failed to identify
any error warranting the Court’s intervention, the residual exception in s. 5(2)(c)
of the CAP must apply, as the federal government shared in the costs of
the services provided by the institutions in question pursuant to another Act,
the Fiscal Arrangements Act, 1977. As a result, cost sharing for SSPD
under the CAP could not be ordered.
V. Disposition
[49]
For these reasons, the appeal is dismissed with
costs.
APPENDIX
Canada
Assistance Plan, R.S.C. 1985, c. C‑1
[Preamble] Whereas the Parliament of Canada, recognizing that the
provision of adequate assistance to and in respect of persons in need and the
prevention and removal of the causes of poverty and dependence on public
assistance are the concern of all Canadians, is desirous of encouraging the
further development and extension of assistance and welfare services programs
throughout Canada by sharing more fully with the provinces in the cost thereof;
. . .
interpretation
2. In
this Act,
“assistance”
means aid in any form to or in respect of persons in need for the purpose of
providing or providing for all or any of the following:
(a) food,
shelter, clothing, fuel, utilities, household supplies and personal
requirements (hereinafter referred to as “basic requirements”),
(b) prescribed
items incidental to carrying on a trade or other employment and other
prescribed special needs of any kind,
(c) care
in a home for special care,
(d) travel
and transportation,
(e) funerals
and burials,
(f) health
care services,
(g) prescribed
welfare services purchased by or at the request of a provincially approved
agency, and
(h) comfort
allowances and other prescribed needs of residents or patients in hospitals or
other prescribed institutions;
. . .
“home
for special care” means a residential welfare institution that is of a kind
prescribed for the purposes of this Act as a home for special care and that is
listed in a schedule to an agreement under section 4, but does not include a
hospital, correctional institution or institution whose primary purpose is
education, other than that part of a hospital that is used as a residential
welfare institution and that is listed in a schedule to an agreement under
section 4;
. . .
“person
in need” means
(a) a
person who,
by reason of inability to obtain employment, loss of the principal family provider,
illness, disability, age or other cause of any kind acceptable to the
provincial authority, is found to be unable, on the basis of a test established
by the provincial authority that takes into account the budgetary requirements
of that person and the income and resources available to that person to meet
those requirements, to provide adequately for himself, or for himself and his
dependants or any of them, or
(b) a
person under the age of twenty-one years who is in the
care or custody or under the control or supervision of a child welfare authority,
or a person who is a foster‑child as defined by regulation,
and
for the purposes of paragraph (e) of the definition “assistance”
includes a deceased person who was a person described in paragraph (a)
or (b) of this definition at the time of his death or who, although not
such a person at the time of his death, would have been found to be such a
person if an application for assistance to or in respect of him had been made
immediately before his death;
. . .
“welfare
services” means services having as their object the lessening, removal or
prevention of the causes and effects of poverty, child neglect or dependence on
public assistance, and, without limiting the generality of the foregoing,
includes
(a) rehabilitation services,
(b) casework,
counselling, assessment and referral services,
(c) adoption
services,
(d) homemaker,
day-care and similar services,
(e) community
development services,
(f) consulting,
research and evaluation services with respect to welfare programs, and
(g) administrative,
secretarial and clerical services, including staff training, relating to the
provision of any of the foregoing services or to the provision of assistance,
but
does not include any service relating wholly or mainly to education, correction
or any other matter prescribed by regulation or, except for the purposes of the
definition “assistance”, any service provided by way of assistance;
“welfare
services provided in the province” means welfare services provided in the
province pursuant to the provincial law to or in respect of persons in need or
persons who are likely to become persons in need unless those services are
provided;
. . .
Agreement Authorized
4. Subject
to this Act, the Minister may, with the approval of the Governor in Council,
enter into an agreement with any province to provide
for the payment by Canada to the province of contributions in respect of the
cost to the province and to municipalities in the province of
(a) assistance provided
by or at the request of provincially approved agencies pursuant to the
provincial law; and
(b) welfare services
provided in the province by provincially approved agencies pursuant to the
provincial law.
Contributions
5. . . .
(2) In this
section, “cost” does not include,
. . .
(c) any cost that Canada has shared or is required to share in any manner
with the province, or that Canada has borne or is required to bear, pursuant to
any other Part or pursuant to any Act of Parliament . . . .
Canada
Assistance Plan Regulations, C.R.C. 1978, c. 382
8. For the purposes of the
definition “home for special care” in section 2 of the Act, the following
kinds of residential welfare institutions are prescribed for the purposes of
the Act as homes for special care:
(a) homes
for the aged,
(b) nursing
homes,
(c) hostels
for transients,
(d) child
care institutions,
(e) homes
for unmarried mothers, and
(f) any
residential welfare institution the primary purpose of which is to provide
residents thereof with supervisory, personal or nursing care or to rehabilitate
them socially,
the
standards of which (except for the purposes of clause 5(1)(b)(i)(B)
of the Act) are, in the opinion of the provincial authority, in accordance with
the standards generally accepted in the province for residential welfare
institutions of that kind.
Federal-Provincial
Fiscal Arrangements and Established Programs Financing Act, 1977,
S.C. 1976‑77, c. 10
27. . . .
(8) In this Part, the “extended
health care services program” with respect to a province is a program that
consists of the following services, as more particularly defined in the
regulations, provided for residents of the province, namely,
(a) nursing
home intermediate care service;
(b) adult
residential care service;
(c) converted
mental hospitals;
(d) home
care service; and
(e) ambulatory
health care service.
Federal‑Provincial
Fiscal Arrangements and Established Programs Financing Regulations, 1977,
SOR/78-587
24. (1) For the
purposes of this section,
. . .
“institution”
means
(a) in
the case of a service other than converted mental hospitals, a facility or
portion of a facility that qualifies as a home for special care under section 8
of the Canada Assistance Plan Regulations . . . .
(2) . . .
(b) “adult
residential care service” means a service provided in an institution in respect
of adults consisting of
(i) personal
and supervisory care according to the individual requirements of residents of
the institution,
(ii) assistance
with the activities of daily living and social, recreational and other related
services to meet the psycho-social needs of the residents of the institution,
(iii) services
required in the operation of the institution, and
(iv) the
provision of room and board to the extent of the total monthly cost or part
thereof except for an amount calculated by subtracting, for each recipient of
the service,
(A) the
total monthly amount or part thereof that is payable to the recipient of the
service under any Acts of the province for comforts allowances, clothing, drugs
and biologicals, services required in the provision of drugs and biologicals and
medical and surgical goods and services and that is shareable under the Canada
Assistance Plan,
from
(B) an
amount equal to the total monthly amount or part thereof of the old age
security pension and maximum supplement payable to a beneficiary under the Old
Age Security Act , who is not a married person;
Appeal dismissed with costs.
Solicitors for the
appellant: Chamberland, Gagnon, Québec.
Solicitor for the
respondent: Attorney General of Canada, Ottawa.