Administrative law – Government – Contract to provide health services – Outsourcing – Validity – Judicial review application – Parties – Statutory powers – Compliance with legislation
British Columbia Government and Services Employees’ Union v. British Columbia (Minister of Health Services),  B.C.J. No. 650, British Columbia Supreme Court, March 23, 2005, Melvin J.
The Petitioner sought, amongst other things, a declaration that the contracting out of services as proposed by the Minister of Health (the “Master Services Agreement”) was ultra vires and an order quashing the Master Services Agreement.
In July 2003, the Minister of Health announced its intention to develop a new model for the delivery of medical services through a joint process commencing with the issuance of a request for proposals. In March 2004, M Co. was selected as the successful proponent of the joint process. The Master Services Agreement was a contract entered into by the Respondent with M Co. for the purposes of outsourcing certain functions previously performed by employees of the Province of British Columbia. The Petitioner submitted that such a contract was contrary to the requirements of the Health Insurance Plan that it be administered and operated by a public authority as stated in the Canada Health Act and referred to in the Medicare Protection Act.
The court noted that the Petitioner was a union but that it had standing since it had a genuine interest in the validity of the legislative scheme under consideration.
However, the court held that in order to fall within section 2(2)(b) of the Judicial Review Procedure Act (the “Act”), the Petitioner must show that there had been a failure with reference to a statutory power or a lack of jurisdiction of the Minister to enter into a contract pursuant to the legislation.
The court held that the language in the definition of “statutory power” in section 2(a) through (e) of the Act did not contemplate the quashing of a contract. Section 3 of the Ministry of Health Act authorized the Minister to enter into agreements with any person and in this case, the Minister acted pursuant to that power. Although it could be submitted that in exercising that authority into an agreement or contract pursuant to section 3 of the Ministry of Health Act was “the exercise of a statutory power”, that action did not meet the criteria in the definition of that expression in the Act. As such, the decision to negotiate and enter into a contract did not fall within the definition of statutory power. The decision involved consideration of government power regarding government services and government funds. Therefore, the Petitioner did not come within the provisions of the Act with reference to the relief which was sought, and the petition was dismissed.
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