Higgs's dissolution of Vitalité board violated francophone rights, court finds

The former New Brunswick government of Blaine Higgs failed to respect minority language rights when it dissolved the board of the Vitalité health authority in 2022, a court has ruled.

Justice Christa Bourque of the Court of King’s Bench says the replacement of the board with an appointed trustee went against values protected by the Charter of Rights and Freedoms.

“Vitalité plays an essential role in the life of the francophone minority language community,” Bourque wrote in a 78-page decision issued Dec. 30.

“The dissolution of the board took away the control that the community exercised through its elected members.”

Then-premier Blaine Higgs made the move in July 2022 after a patient died in the waiting area of the emergency department of the Dr. Everett Chalmers Hospital, which is run by the Horizon Health Network.

Higgs said the death showed the system was in crisis and needed change at the top, including a new health minister, a new Horizon CEO, and trustees to replace the boards of the two health authorities.

The majority of seats on the boards were filled by elections every four years.

The lobby group Égalité Santé en Français argued the elimination of the Vitalité board violated Section 16.1 of the Charter.

It guarantees the equality of the two language communities, “including the right to such distinct educational and cultural institutions as are necessary for the preservation and promotion of those communities.”

Whether health-care centres are covered by that section has been a legal and political debate for decades.

Bourque said they are not, but she found that the government violated other legal principles.

A 1981 law that was the precursor of the Charter section says the New Brunswick government “shall take positive actions to promote the cultural, economic, educational and social development of the official linguistic communities.”

She said she found no evidence the government had taken that into account when it got rid of the board.

“No element of the file shows that the minister even considered the possibility that protected Charter values were at issue,” she wrote.

The government, including the Vitalité trustee, Gérald Richard, argued that there were governance issues affecting the delivery of health care, including “slow and often inefficient decision-making,” according to the ruling.

Pointing out that the death that precipitated the changes didn’t even happen in a Vitalité hospital, Bourque said no link was established to show eliminating a partly elected board would address the crisis in the system.

“The government must take positive measures to promote the linguistic, education, cultural development of the well-being of communities, and the court here said this was the exact opposite,” said Bruno Gélinas-Faucher, a University of New Brunswick law professor who worked on the case.

“By revoking the board which was elected by the community, which was managing its institution, the government [took] completely the opposite route.”

Bourque stopped short of invalidating the decisions Richard made while he was the trustee.

The Higgs government eventually passed legislation re-establishing the two health authority boards but with all-appointed memberships.

As opposition leader, Susan Holt criticized that decision but has not made any move to restore elected positions now that she is premier.

The Liberal government did not immediately say whether it would appeal the ruling.

“The province is reviewing the decision and has no further comment at this time,” spokesperson Geoffrey Downey said.