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“In-Camera” Meetings Violate Health Authorities Act
March 27, 2003

In a decision this week the B.C. Supreme Court determined that in-camera meetings held by regional health boards failed to comply with the “public access” provisions of the Health Authorities Act (“HAA”). However, the Court declined to make a declaration that decisions made during the in-camera meetings were therefore invalid.

In December, 2001, the Government of British Columbia amalgamated existing regional health boards and community health councils into five regional health authorities. Following the amalgamation, the new health boards held their first meetings in–camera. The Hospital Employees’ Union (the “HEU”) objected to the in–camera meetings, claiming they violated the “public access” provisions of the HAA. The HEU consequently brought an action for judicial review to the Supreme Court of British Columbia.

The HAA requires that meetings of regional health boards be held in public, except in certain limited circumstances set out under the Act. Section 8(3) of the Act states:

8(3) Meetings of a board are open to the public, but the board may exclude the public from a meeting if the board considers that, in order to protect the interests of a person or the public interest, the desirability of avoiding disclosure of information to be presented outweighs the desirability of public disclosure of the information.

The Court held that the regional boards erred by failing to hold their first meetings in public. The Court determined that the boards misunderstood or ignored their obligations to provide access to the public pursuant to s. 8(3) of the HA Act:

On balance, the evidence indicates that the boards viewed public meetings as an opportunity for public submissions and consultation. Section 8, however, is directed only towards public presence, something very different from public consultation. I am satisfied that, even if the boards tacitly approved the decision to hold the first meeting in-camera, they failed completely to address the statutory requirement that the public be present except in the limited circumstances set out in s. 8.

Significantly, the Court did state that that the regional health boards could have excluded the public from the meetings in question, had they assessed the issue of public exclusion properly. However, the boards’ procedural failure rendered them in violation of the Act. Mr. Justice Macaulay stated:

I am not prepared to go so far as to say that the boards could not have properly decided to exclude the public from the first meeting, having regard to the matters to be discussed and the requirements of s. 8. I have found that they failed to make the necessary decision. If the boards had decided to exclude the public, their decision would have been entitled to considerable deference.

The HEU also argued that the Minister of Health Services improperly delegated authority to the Provincial Health Services Authority (“PHSA”) to plan and coordinate the delivery of health care services. The Court rejected this argument, determining that the authority and responsibilities of the PHSA did not conflict with those of the regional health boards. Accordingly, the HAA did not preclude the creation of the PHSA.

The Court declined to make any declaration that might call into question the validity of decisions made at the in-camera meetings. The Court stated that the reasons provided in its decision should be sufficient to direct the regional health boards to adapt their practices appropriately in order to comply with the HAA.

In the result, the HEU succeeded in demonstrating that the boards did not meet the requirements for the exclusion of the public from the meetings in question. However, the HEU failed on its application for a declaration that the regional health boards violated the HAA and on its challenge to the creation of the PHSA.

(click here for full text of the judgment)