Right of Participating and Non-Participating Physicians to Associate
In a unanimous decision rendered on June 1, 2017, the Quebec Court of Appeal dismissed the appeal of the Fédération des médecins spécialistes du Québec (the “FMSQ”) of a decision of the Quebec Superior Court rendered on June 16, 2015 denying the FMSQ’s motion for a declaratory judgment to the effect that section 333.3 of Quebec’s Act Respecting Health Services and Social Services (the “HSSSA”) and certain related provisions are null and of no force or effect. The impugned provisions prevent physicians participating in the provincial health insurance plan and non-participating physicians from practising medicine together in a specialized medical centre (“SMC”)1.
The FMSQ argued that the impugned provisions infringe the right to freedom of association protected by section 3 of Quebec’s Charter of Human Rights and Freedoms (the “Quebec Charter”) and subsection 2(d) of the Canadian Charter of Rights and Freedoms (the “Canadian Charter”).
The contested provisions of the HSSSA were adopted following the Supreme Court of Canada’s decision in Chaoulli2, in which the Court struck down certain provisions of Quebec’s Health Insurance Act that prohibited taking out private insurance for certain medical services, on the grounds that the provisions infringed the right to life and personal inviolability protected by section 1 of the Quebec Charter, as they applied to services that could not be provided within a reasonable time under the public health plan.
The Quebec government consequently made it legal to take out private insurance for some specialized medical treatments, but sought to ensure that there was no mixing of private and public financing for all of the services necessary for providing the treatments for which private insurance was authorized. Whence the adoption of section 333.3 of the HSSSA, which provides as follows:
333.3. A specialized medical centre may be operated only in the form of:
(1) a specialized medical centre where only physicians subject to the application of an agreement under section 19 of the Health Insurance Act (chapter A-29) practise; or
(2) a specialized medical centre where only non-participating physicians within the meaning of that Act practise.
Depending on the form in which a specialized medical centre operates, its operator must ensure that the requirement of subparagraph 1 or 2 of the first paragraph is met.
The effect of this provision is thus to prevent participating physicians from providing services in an SMC where non-participating physicians also practice and vice versa.
The courts in this case had to determine whether associating for the purpose of freely exercising certain medical activities is protected by the right of association under the Quebec and Canadian Charters.
At first instance, after examining the question using the three approaches to the right of association canvassed by the Supreme Court of Canada in its decision in Mounted Police Association of Ontario v. Canada (Attorney General)3, namely the constitutive, derivative and purposive approaches, the Superior Court concluded that the impugned provisions did not infringe the physicians’ right to freedom of association. The reasons of the first-instance judge can be summarized as follows:
- The constitutive approach protects the freedom to belong to or form an association. The Court found that neither the purpose nor the effect of the impugned provisions is to prevent the formation of an association, or prevent an activity because of its associational nature, or to discourage the pursuit of a common goal. The government has the power to regulate certain activities, including those of an SMC.
- The derivative approach, on the other hand, protects the right to associate with others to exercise other constitutional freedoms. The Court indicated in this regard, citing the Court of Appeal’s decision in Atalla4, that the right to freely practise a profession is not protected by the Charters, which do not recognize the right of physicians to practice their profession in any location and on any terms they wish.
- The purposive approach to freedom of association protects the right to associate with others in order to meet, on more equal terms, the power and strength of other groups or entities. But in the Court’s view, the association of participating and non-participating physicians within an SMC is not essential to allow those physicians to meet the power of the State on more equal terms.
The Court of Appeal unreservedly confirmed the reasons of the judge below, and added the following [TRANSLATION]:
 In this instance the appellants are challenging government regulation of how SMCs operate and the type of medical services the doctors practising there can provide, depending on whether they are participating or non-participating physicians. While this regulation applies to a certain type of activity (specialized medical services offered in an SMC) it does not prevent those same physicians from practicing together in a private clinic and offering services other than those provided in an SMC.
 It is not the associational nature of the activities that is targeted by the regulation, and it cannot be concluded that the contested provisions are aimed at discouraging the pursuit of a common goal.
 The appellants cannot, under the aegis of the right to freedom of association, claim that they have the absolute and unconditional freedom to associate as they see fit and practise medicine under conditions convenient for them, on the grounds that they wish to practise medicine with others. Working together under the same roof in an SMC is not an essential association for allowing these participating and non-participating physicians to meet on more equal terms the power of the State.
This decision deals with the scope and limits of the right to freedom of association.
In this case the FMSQ invoked the right to freedom of association in order to challenge regulatory provisions prohibiting an SMC from being operated jointly by physicians participating in Quebec’s health insurance plan and non-participating physicians.
The Court of Appeal confirmed that pursuant to the three approaches to the right to freedom of association canvassed by the Supreme Court of Canada in its Mounted Police decision, namely the constitutive, derivative and purposive approaches, the impugned provisions did not infringe upon the right to freedom of association of the physicians concerned.
The takeaway from this decision is that in order for there to be an infringement of the right to freedom of association protected by the Charters, a statutory or regulatory provision must:
- have the purpose or effect of preventing the formation of an association or prohibiting an activity because of its associational nature;
- prevent a person from associating with others to exercise other constitutional freedoms; or
- prevent a person from associating with others to meet on more equal terms the power and strength of other entities, such as the State.
1 Fédération des médecins spécialistes du Québec v. Bolduc, 2017 QCCA 860
2 Chaoulli v. Quebec (Attorney General), 2005 SCC 35
3  1 SCR 3 (“Mounted Police”)
4 Atalla v. Québec (Procureur général), J.E. 97-1679 (C.A.)