SUING AND DEFENDING THE GOVERNMENT—2010 UPDATE
PAPER 1.1
When Are Private Entities “Government” Under
the Charter?
These materials were prepared by Timothy A. Dickson of Farris, Vaughan, Wills & Murphy LLP, Vancouver, BC,
for the Continuing Legal Education Society of British Columbia, April 2010.
© Timothy A. Dickson
1.1.1
WHEN ARE PRIVATE ENTITIES “GOVERNMENT” UNDER THE
CHARTER?∗
I.
Introduction ....................................................................................................................... 1
II.
Section 32............................................................................................................................ 2
III.
The Nature of the Entity .................................................................................................... 3
A. Controlled by Government ................................................................................................... 4
B. Government by Its Very Nature ........................................................................................... 8
IV.
Nature of the Activity ...................................................................................................... 10
V.
Last Words ........................................................................................................................ 14
I.
Introduction
The topic of this paper is the reach of the Charter of Rights and Freedoms by virtue of its application to
government. This might be thought to be a relatively easy topic (indeed, I wish it were), as every
Canadian lawyer knows that the Charter applies to government. Indeed, one of the Supreme Court of
Canada’s earliest Charter decisions, RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, confirmed
that the Charter applies only to government. As with any other area of law, however, the question
becomes more complicated the more it is examined.
The question is complicated because in a series of cases courts have found that the Charter applies to
entities that are not obviously part of the federal or provincial governments. Reconciling the results of
these cases is a daunting task. The Supreme Court of Canada has found that the Charter applies to
technical colleges,1 but not to universities,2 and that it applies to hospitals when they deliver medical
services,3 but not when they make internal management decisions, such as with respect to mandatory
retirement.4
This paper attempts to provide an overview of the state of the law in respect of the application of the
Charter to entities that are not at first glance part of “government,” focusing in particular on two 2009
cases that have dealt with this law, Greater Vancouver Transportation Authority v. Canadian Federation
∗
My thanks to Eli Walker, of Farris, for his research and editorial contributions.
1
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570.
2
McKinney v. University of Guelph, [1990] 3 S.C.R. 229 and Harrison v. University of British Columbia, [1990]
3 S.C.R. 451.
3
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
4
Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483. Douglas/Kwantlen, McKinney, Harrison and
Stoffman were heard by the SCC concurrently. The majority judgments in each of these cases were written
by La Forest J.
1.1.2
of Students – British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295 (“TransLink”), and Sagen
v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCSC
942, aff’d 2009 BCCA 552, leave to appeal denied (“Sagen”).5
The TransLink case concerned attempts by the BC Teachers Federation and the Canadian Federation
of Students to place political advertising on the sides of buses owned and operated by TransLink and
BC Transit. Each bus company sells advertising space on the sides of its buses for a fee, and each
company had a policy of not accepting political advertising. When the companies rejected the political
advertising, the two federations sued, alleging a breach of s. 2(b) of the Charter (freedom of expression).
Most of the arguments in the Supreme Court of Canada centred on whether s. 2(b) had been breached,
but for s. 2(b) to be relevant, the Charter first had to be shown to apply, and the decision is relevant to
our topic in that respect.
Sagen concerned a s. 15 (equality) challenge to the absence of a women’s ski jumping event in the 2010
Winter Olympics. It was the International Olympic Committee (“IOC”) that had decided not to add
the event to the programme of events, but the IOC obviously was not subject to the Charter. The
plaintiffs, therefore, sued the Organizing Committee (VANOC) for “implementing” the IOC’s
discriminatory decision. A central issue in the case was whether an Olympic event constitutes a
“benefit of the law” such that s. 15 was engaged, but first, the court again had to determine whether
the Charter applied to VANOC.
II.
Section 32
The critical provision on the application of the Charter is s. 32, which reads as follows:
Application of Charter
32(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters
within the authority of Parliament including all matters relating to the
Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all
matters within the authority of the legislature of each province.
[Emphasis added]
From a quick scan of the text of s. 32, it is obvious that the Charter applies not only to legislative
bodies⎯Parliament and the provincial (and territorial) legislatures⎯but also to the federal and
provincial governments. The provision does not end there, however, because it states that the Charter
applies to the federal and provincial governments “in respect of all matters within the authority of”
Parliament or the provincial legislatures, as the case may be.
The usual rationale given for this extension of the Charter is essentially one of anti-avoidance:
government ought not to be able to sidestep the bounds of the Charter by shifting its functions onto
private entities. In Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, La Forest J. stated the concern this
way:
[48] … Were the Charter to apply only to those bodies that are institutionally part of
government but not to those that are⎯as a simple matter of fact⎯governmental in
nature (or performing a governmental act), the federal government and the provinces
could easily shirk their Charter obligations by conferring certain of their powers on
other entities and having those entities carry out what are, in reality, governmental
5
With George Macintosh, QC, I was counsel for BC Transit (one of the appellants) at the Supreme Court of
Canada in TransLink , and was counsel for the Vancouver Organizing Committee for the 2010 Olympic
and Paralympic Winter Games (“VANOC”) throughout the proceedings in Sagen.
1.1.3
activities or policies. In other words, Parliament, the provincial legislatures and the
federal and provincial executives could simply create bodies distinct from themselves, vest
those bodies with the power to perform governmental functions and, thereby, avoid the
constraints imposed upon their activities through the operation of the Charter. Clearly,
this course of action would indirectly narrow the ambit of protection afforded by the
Charter in a manner that could hardly have been intended and with consequences that
are, to say the least, undesirable. Indeed, in view of their fundamental importance,
Charter rights must be safeguarded from possible attempts to narrow their scope
unduly or to circumvent altogether the obligations they engender. [Emphasis added]
In light of s. 32’s reference to “all matters within the authority of” Parliament or the provincial
legislatures, courts have extended the reach of the Charter to entities that are “governmental in nature”
or performing a “governmental activity.”6 La Forest J. summarized the tests this way in Eldridge:
[44] … the Charter may be found to apply to an entity on one of two bases. First, it
may be determined that the entity is itself “government” for the purposes of s. 32.
This involves an inquiry into whether the entity whose actions have given rise to the
alleged Charter breach can, either by its very nature or in virtue of the degree of
governmental control exercised over it, properly be characterized as “government” within
the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to
the Charter, regardless of whether the activity in which it is engaged could, if
performed by a non-governmental actor, correctly be described as “private.” Second,
an entity may be found to attract Charter scrutiny with respect to a particular activity
that can be ascribed to government. This demands an investigation not into the nature of
the entity whose activity is impugned but rather into the nature of the activity itself. In
such cases, in other words, one must scrutinize the quality of the act at issue, rather
than the quality of the actor. If the act is truly “governmental” in nature⎯for example,
the implementation of a specific statutory scheme or a government program⎯the
entity performing it will be subject to review under the Charter only in respect of
that act, and not its other, private activities. [Emphasis added.]
These tests were further distilled by Deschamps J. in the TransLink decision:
[16] Thus, there are two ways to determine whether the Charter applies to an
entity’s activities: by enquiring into the nature of the entity or by enquiring into the
nature of its activities. If the entity is found to be “government,” either because of its
very nature or because the government exercises substantial control over it, all its
activities will be subject to the Charter. If an entity is not itself a government entity
but nevertheless performs governmental activities, only those activities which can be
said to be governmental in nature will be subject to the Charter.
Following Deschamps J.’s schema, this paper will discuss the “nature of the entity” test first, followed
by the test going to the nature of the activity.
III. The Nature of the Entity
The first inquiry under s. 32 is to examine the nature of the entity. There are, in fact, two
independent tests under this broad inquiry: first, whether the entity is, “by its very nature,”
governmental; and second, whether the entity is substantially controlled by government. If either of
these tests is met, then the entity is deemed to be government and the Charter applies to everything it
does.
The second of these two tests⎯the “control test”⎯is the better established and less controversial test
and will therefore be discussed first.
6
See TransLink at paras. 14-16 and Sagen at paras. 31-33.
1.1.4
Before examining the tests, however, it needs to be emphasized that, if the nature of the entity is found
to be governmental, then all of that entity’s activities are subject to the Charter. That includes all of
that entity’s “private” or “commercial” activities. Again, the rationale for the principle, as La Forest J.
stated in Eldridge, is that “governments should not be permitted to evade their Charter responsibilities
by implementing policy through the vehicle of private arrangements.”7 In Lavigne v. OPSEU, [1991] 2
S.C.R. 211 at 314, La Forest J. made the point at greater length:
It was also argued that the Charter does not apply to government when it engages in
activities that are … “private, commercial, contractual or non-public (in) nature.” In my
view, this argument must be rejected. In today’s world it is unrealistic to think of the
relationship between those who govern and those who are governed solely in terms of
the traditional law maker and law subject model. We no longer expect government to
be simply a law maker in the traditional sense; we expect government to stimulate and
preserve the community’s economic and social welfare. In such circumstances,
government activities which are in form “commercial” or “private” transactions are in
reality expressions of government policy, be it the support of a particular region or
industry, or the enhancement of Canada’s overall international competitiveness. In this
context, one has to ask: why should our concern that government conform to the
principles set out in the Charter not extend to these aspects of its contemporary
mandate? To say that the Charter is only concerned with government as law maker is
to interpret our Constitution in light of an understanding of government that was long
outdated even before the Charter was enacted.
This principle can be an important one. In the TransLink case, at issue was the sale of advertising space
on the side of buses, and particularly whether a ban on political advertising breached s. 2(b). The sale
of advertising space would certainly seem to be a private, commercial activity, and it was engaged in by
an entity that is not self-evidently an arm of government. However, if BC Transit and TransLink were
found to be themselves governmental (as opposed to carrying out a government statutory scheme or
government program), then the Charter would apply even to that commercial activity. Ultimately in
that case, the transit authorities were indeed found to be governmental entities, and consequently had
to fall back to an argument that s. 2(b) was not infringed because a demand to access a commercial
advertising service is a “positive rights” claim that s. 2(b) does not provide. That argument also failed.
A.
Controlled by Government
The “control test” is an inquiry into the degree of regular or routine control that the government
exercises over the entity in question. Under this test, an entity will be found to be part of government
if it is subject to “routine or regular control” by government. Exceptional powers of control are not
enough to meet the test; rather, the control must be over its day-to-day operations.
In the four 1990 Supreme Court of Canada decisions noted above⎯Douglas, McKinney, Harrison, and
Stoffman⎯La Forest J. based his decisions on the type and degree of control available to the executive
over the entity in question. All the cases were challenges to mandatory retirement provisions.
In McKinney, in which university faculty argued for the application of the Charter to Ontario
universities, La Forest J. concluded that the Charter did not apply because, despite the facts that the
universities were subject to regulation by statute and the majority of their funding came from
government, the universities had autonomous decision-making power (at 272-73):
The fact is that each of the universities has its own governing body. Only a minority
of its members (or in the case of York, none) are appointed by the LieutenantGovernor in Council, and their duty is not to act at the direction of the government
but in the interests of the university …
7
Para. 40.
1.1.5
The government thus has no legal power to control the universities even if it wished
to do so. Though the universities, like other private organizations, are subject to
government regulations and in large measure depend on government funds, they
manage their own affairs and allocate these funds, as well as those from tuition,
endowment funds and other sources.
…
There may be situations in respect of specific activities where it can fairly be said that
the decision is that of the government, or that the government sufficiently partakes
in the decision as to make it an act of government, but there is nothing here to
indicate any participation in the decision by the government and, as noted, there is
no statutory requirement imposing mandatory retirement on the universities.
In Harrison, La Forest J. held that the Charter also did not apply to the University of British
Columbia, despite the fact that, in addition to a similar statutory regime and similarly heavy
government funding as in Ontario, the executive in BC could also appoint a majority of the
University’s directors (at 463):
The fact that in the present case the Lieutenant Governor appoints a majority of the
members of the university’s Board of Governors or that the Minister of Education
may require the university to submit reports or other forms of information does not
lead to the conclusion that the impugned policies of mandatory retirement constitute
government action. While I would acknowledge that these facts suggest a higher
degree of governmental control than was present in McKinney, I do not think they
suggest the quality of control that would justify the application of the Charter. I
would in this respect refer to the distinction that I have drawn in the companion
appeal of Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 000, between ultimate
or extraordinary control and routine or regular control …
The central issue in Stoffman was the application of the Charter to the Vancouver General Hospital.
La Forest J. acknowledged that the BC government had considerable statutory power to interfere with
the hospital’s operation, particularly by directed funding, by veto over the hospital’s bylaws and a
power of appointment of 14 of 16 hospital board members. Nonetheless, he concluded that the
hospital was not subject to the Charter because the government exercised only “ultimate or
extraordinary control”, as opposed to “routine or regular control.” He answered the plaintiffs’
arguments with respect to directed funding at 513:
The fact that the Vancouver General is not autonomous when it comes to the use of
money given to it by the government for specific capital investments says little
regarding the degree of autonomy it enjoys overall. If anything, it suggests that direct
government involvement in hospital decision-making is the exception rather than the
rule.
La Forest J. appears to be saying here that the power reserved to the government to direct funding if it
so chose was an indication that it regularly did not. With respect to bylaws, he stated, at 515:
I do not think the fact that the Board of Trustees can be required to adopt by-laws
that are thought necessary by the Minister of Health can undermine its responsibility
for by-laws or rules, such as Regulation 5.04, which it adopts on its own initiative
and pursuant to its own sense of what is in the best interests of the Vancouver
General. The same can be said with respect to the Minister’s power to order a
revision of a hospital’s by-laws, at least until such revision has actually been ordered.
And with respect to the power of appointment, La Forest J. focused on the fact that the 14
appointments available to the government were required by statute to be drawn from certain
legitimately interested groups (such as the Faculty of Medicine at UBC) (at 515):
It is not going too far to say that the Lieutenant Governor’s power of appointment
is, in light of Article 2, simply a mechanism to ensure the balanced representation of
1.1.6
these groups and organizations on the hospital’s principal decision-making body. It is
not a means for the exercise of regular government control over the day-to-day
operations of the hospital.
La Forest J. summarized his reasoning this way (at 513):
In sum, it is crucial in assessing the statutory framework summarized by the Court
of Appeal to bear in mind the difference between ultimate or extraordinary, and routine
or regular control. While it is indisputable that the fate of the Vancouver General is
ultimately in the hands of the Government of British Columbia, I do not think it can
be said that the Hospital Act makes the daily or routine aspects of the hospital’s
operation, such as the adoption of policy with respect to the renewal of the admitting
privileges of medical staff, subject to government control. On the contrary, it implies
that the responsibility for such matters will, barring some extraordinary
development, rest with the Vancouver General’s Board of Trustees.
[Emphasis added]
In Douglas, BC community colleges challenged the application of the Charter to their operations. La
Forest J. concluded that the Charter applied because the colleges were creatures of statute, all their
directors were appointed by the BC government and served at the government’s pleasure, the colleges
were required to submit bylaws and annual budgets for approval, they received heavy funding, and
they operated with an explicit statutory provision declaring that they were agents of the government
(at 579). He distinguished the colleges from the universities at issue in McKinney and Harrison on the
basis of the latter’s relative autonomy from government (at 584):
[The community colleges’] status is wholly different from the universities in
[McKinney and Harrison], which, though extensively regulated and funded by
government, are essentially autonomous bodies.
The next year, following his reasons in Douglas, La Forest J. concluded in Lavigne that the Charter
similarly applied to the governing body of the Ontario community college at issue in that case.
The indicators referenced by La Forest J. in these foundational cases are:
(1)
Government funding (present in every case);
(2)
Control over budget allocation (Stoffman, Douglas, and Lavigne);
(3)
Power of appointment (present to varying degree in every case, from a minority of
board members to all board members in McKinney to Harrison to Stoffman to Douglas);
(4)
Terms of appointment (serving at pleasure in Douglas, and for set length terms in every
other case);
(5)
Approval, or other control, over bylaws or other guiding documents of the entity
(veto in Stoffman, directly set by the government in Douglas and Lavigne);
(6)
Whether it is a creature of statute (Douglas and Lavigne); and
(7)
Statutory provisions declaring government control (Douglas).
The control test was applied in both TransLink and Sagen. In TransLink, there were two
defendants⎯TransLink and BC Transit. It was fairly obvious that government controlled the latter
entity,8 in light of the facts that the statute expressly stated BC Transit to be an agent of government and
Cabinet appointed all of its board members and could manage BC Transit’s day-to-day operations by
means of regulations.9 TransLink, on the other hand, presented a more difficult issue, because it had
8
Indeed, the point was not contested at the Supreme Court of Canada.
9
See TransLink (SCC), para. 17.
1.1.7
been formed in order to devolve transit decisions down to a more local level, and was consequently more
independent of the Province. However, the Court of Appeal held (and was upheld by the SCC) that
TransLink was controlled by the Greater Vancouver Regional District (now Metro Vancouver), which it
found to be itself government by nature (a finding returned to in the next section). Both courts based the
finding of control on the facts that the GVRD appointed a majority of TransLink’s directors; that it
must ratify TransLink’s strategic transportation plan, which then guide’s all of TransLink’s capital and
service plans and policies; and that the GVRD must ratify bylaws relating to a variety of taxes and
levies.10
The control test was only relevant in Sagen at the trial level, where the trial judge found that VANOC
was not controlled by government. The plaintiffs argued that VANOC was controlled by government
on three broad grounds⎯governance, funding and operations⎯which the trial judge addressed in turn.
With respect to governance, four governments appointed a majority of VANOC’s directors; the
governments appointed 10 of the 19 directors (three by Canada, three by BC, two by Vancouver and
two by Whistler), who then collectively appointed the Chair. VANOC argued that the 10
“government” directors were not indicative of government control, because they were appointed by four
different governments and there was no evidence that the four governments operated with one mind.
The trial judge rejected this argument, finding it would be inconsistent with the anti-avoidance principle
discussed above to allow entities to escape Charter scrutiny just because control was shared among
different governments. However, she observed that government appointing a bare majority of directors
was not enough to indicate control; where courts had found government control, the government had
appointed all of the directors. Further, VANOC introduced evidence that the directors acted solely to
advance VANOC’s best interests (which their fiduciary duties mandated them to do), as opposed to
taking instructions from the government which appointed them.
On funding, the four governments⎯and particularly Canada and BC⎯obviously contributed a huge
amount of funding to VANOC, but the trial judge observed that the amounts contributed by the
governments paled in comparison to the funding from the private sector (particularly from the
International Olympic Committee (“IOC”)), which constituted most of the operations budget. While
the funding contributions gave the governments certain financial disclosure and approval rights, these
were at a high level, and were generally confined to decisions affecting their investment. VANOC had
argued that these disclosure and approval rights were similar to rights given to a bank or large investor.
The trial judge did not expressly accept that point, but she did find that the governments do not have
routine control over VANOC’s finances.
Last, on VANOC’s operations, the plaintiffs pointed to VANOC’s business plan, which had to be
approved by Canada and BC and which addressed and guided VANOC’s operations in a number of
areas. VANOC argued that the governments’ influence over VANOC did not extend to its day-to-day
operations, as Stoffman requires for the Charter to apply. VANOC contrasted the governments’ highlevel influence with the IOC’s routine control over the minutiae of VANOC’s operations. In particular,
VANOC pointed to the Master Schedule, which detailed a huge number of activities VANOC had to
complete in organizing the Games. The Master Schedule had to be approved by the IOC, but not by the
governments, which the trial judge accepted as compelling evidence that it was the IOC, not the
governments, which truly controlled VANOC.
There are a number of important points to draw from the TransLink and Sagen decisions with respect to
the control test.
The first is that it is not a defence to the application of the Charter that appointments to the board of
directors are shared among different levels of government. The argument here is that, the fact that all or
a majority of directors are appointed by governments does not show control if no one government
10
TransLink (SCC), para. 21.
1.1.8
appoints a majority. TransLink and Sagen appear to have shut the door on this argument. In
TransLink, both the Court of Appeal and the SCC found the fact that some directors were appointed
by the GVRD and some by the Province to be irrelevant in terms of government control. The trial
judge came to the same conclusion in Sagen (where the most directors any one government appointed
was three of 19), finding that it would be inconsistent with the anti-avoidance principle. My own
view, respectfully, is that the fact that board appointments are split between governments may well be
relevant to the control test. “Control” suggests to me that a government exercises its will over the
entity and directs its decisions. Where no one government appoints a majority of directors and where
there is no evidence that the appointing governments act with one mind, it is difficult to see how the
fact that the governments collectively appoint a majority or all of the directors indicates that the entity
is controlled by government. The fact that governments appoint all or many of the directors may be
indicative that the entity is governmental in nature or that it is performing a government activity, but
those are quite different tests.
Second, although the fact that control is shared between governments may not shield an entity from
the Charter, the existence of control by a private party may be determinative. The trial judge in Sagen
did not state categorically that government control for the purposes of s. 32 cannot coexist with
control by a private entity, but she came close: “While it is not necessary for government to have total
control over the operations of an entity in order for it to be subject to the Charter, in my view, the
kind of day-to-day control exercised by the IOC is inconsistent with government control of that
kind.”11 Control, particularly of the routine, operational kind, strikes me as having to be exclusive.
Last, the Sagen trial decision reveals the importance of detailed evidence on the government control
test. VANOC introduced a lot of evidence to demonstrate that it was the IOC, not the governments,
that controlled VANOC. Whether you act for the plaintiff or the defendant, contrasts of that kind
can be a powerful tool by which to illustrate how the government does or does not control the entity
in question.
B.
Government by Its Very Nature
The second test that focuses on the nature of the entity in question looks to whether the entity is
governmental by its very nature. In her summary of the s. 32 tests in the TransLink case, Deschamps
J. said this about the “nature of the entity” tests: “If the entity is found to be “government,” either
because of its very nature or because the government exercises substantial control over it, all its
activities will be subject to the Charter” (emphasis added). This alternative ground for finding an
entity is part of government has been the subject of some controversy.
The government-by-nature test arose in order to deal with the case of municipalities. In Ramsden v.
Peterborough (City), [1993] 2 S.C.R. 1084⎯a case involving a municipality’s prohibition of postering on
city-owned utility poles⎯the SCC appears to have simply assumed without any analysis that the
municipality was subject to the Charter.12 But on what basis? Given the frequent warring back and
forth between provincial governments and municipalities it would be nonsensical to subject the latter
to the Charter on the basis that they are controlled by government.
One basis for applying the Charter to cities is pretty straightforward as a matter of constitutional law,
however: municipalities derive their powers from provincial legislation; the provincial legislatures
cannot pass laws that unjustifiably breach the Charter; hence, the provincial legislatures cannot
11
Sagen (BCSC), para. 39.
12
La Forest J. essentially comes to that conclusion in Godbout at para. 50. La Forest J. also expressed at 270 of
McKinney that, “if the Charter covers municipalities, it is because municipalities perform a quintessentially
governmental function. They enact coercive laws binding on the public generally, for which offenders may
be punished.”
1.1.9
authorize another body⎯such as municipalities⎯to unjustifiably breach the Charter. Professor Hogg
has long articulated this principle in his well-known text13:
Action taken under statutory authority is valid only if it is within the scope of that
authority. Since neither Parliament nor a Legislature can itself pass a law in breach of
the Charter, neither body can authorize action which would be in breach of the
Charter. Thus, the limitations on statutory authority which are imposed by the
Charter will flow down the chain of statutory authority and apply to regulations, bylaws, orders, decisions and all other action (whether legislative, administrative or
judicial) which depends for its validity on statutory authority.
This rationale is consistent with the SCC’s extension of the Charter to the statutorily-appointed
adjudicator in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, where Lamer J. (as he
then was) stated for the Court at 1077-78:
The fact that the Charter applies to the order made by the adjudicator in the case at
bar is not, in my opinion, open to question. The adjudicator is a statutory creature:
he is appointed pursuant to a legislative provision and derives all his powers from the
statute. As the Constitution is the supreme law of Canada and any law that is
inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it
is impossible to interpret legislation conferring discretion as conferring a power to infringe
the Charter, unless, of course, that power is expressly conferred or necessarily implied. …
Legislation conferring an imprecise discretion must therefore be interpreted as not
allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising
delegated powers does not have the power to make an order that would result in an
infringement of the Charter. [Emphasis added]
This rationale was cited by La Forest J. when he did seek to provide a basis for extending the Charter
to municipalities, in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 51, writing for himself
and L’Heureux-Dubé and McLachlin JJ. (as she then was). However, La Forest J. also held the Charter
to apply the city because of what have later been called “hallmarks” of government:
First, municipal councils are democratically elected by members of the general public
and are accountable to their constituents in a manner analogous to that in which
Parliament and the provincial legislatures are accountable to the electorates they
represent. To my mind, this itself is a highly significant (although perhaps not a
decisive) indicium of “government” in the requisite sense. Secondly, municipalities
possess a general taxing power that, for the purposes of determining whether they
can rightfully be described as “government,” is indistinguishable from the taxing
powers of Parliament or the provinces. Thirdly, and importantly, municipalities are
empowered to make laws, to administer them and to enforce them within a defined
territorial jurisdiction.
Unlike the foundational s. 32 cases, La Forest J. did not write for a majority in Godbout, because the
majority of the Court decided the appeal on other grounds and did not address the s. 32 issue. The test
La Forest J. set out in Godbout, however, has now been affirmed by each level of court in TransLink to
be a valid, standalone test under s. 32.
At trial in the TransLink case, Halfyard J. concluded that Translink was not sufficiently under
government control to attract the application of the Charter, but did conclude that the Charter applied
on a “government function” test (see para. 58), based on La Forest J.’s minority decision in Godbout.
On appeal, Translink and the BC Attorney General contested Halfyard J.’s decision in this respect
because it expanded the application of the Charter beyond the control test on the basis of a minority
13
Hogg, Constitutional Law of Canada, looseleaf (Toronto: Thomson, 2009-Rel.1) at 37-13; quoted with
approval by La Forest J. in Eldridge at para. 21.
1.1.10
decision in Godbout that has not been subsequently adopted by the SCC. They also argued that this
“hallmarks” test appeared to revive the “government function” test Wilson J. had advanced in the
McKinney line of cases, which the majority of the Court (La Forest J. writing) had rejected.
Prowse J.A., writing for the majority in the Court of Appeal, reviewed Godbout and concluded that La
Forest J. had indeed expanded the application of the Charter beyond the control test to a hallmarks
test, wherein an entity will be subject to the Charter if it is quintessentially government. She also
concluded that this hallmarks test had not been disavowed by the majority in Godbout, and held that
the majority in that case had implicitly approved of the hallmarks test, and that such a test had also
already been adopted and applied by the Court of Appeal to find school boards subject to the
Charter.14 She stated at para. 62:
In my view, Mr. Justice La Forest’s analysis of government in relation to
municipalities in Godbout can be said to represent the views of the majority of the
Supreme Court and it is has been applied in this Court (in the context of school
boards). It is apparent that the hallmarks test is different from the control test which
was applied in the earlier cases, and that it provides an additional set of factors which
the court may consider in determining whether an entity should be regarded as
government for the purposes of s. 32.
Justice Prowse applied the hallmarks test in an indirect way in the TransLink case. She found that
TransLink is substantially controlled by the GVRD, and so if the GVRD is government, then so is
TransLink. The Local Government Act, from which the GVRD derives its powers, defines regional
districts as “an independent, responsible and accountable order of government within their
jurisdiction” and includes regional districts within the definition of “local government.” Relying on
these statutory provisions, Prowse J. concluded at para. 85: “Like the municipality in Godbout, the
GVRD cannot but be described as a governmental entity, or as quintessentially government.” In the
SCC, Deschamps J. agreed, adding at para. 18 that “not only is the GVRD designated as ‘government’
in the [Local Government Act], but the legislature has granted it powers consistent with that status.”
From its uncertain beginnings in La Forest J.’s minority reasons in Godbout, the hallmarks test now
has a firm place in the s. 32 jurisprudence.
IV. Nature of the Activity
The second broad test under s. 32 examines the nature of the activity being performed by the entity in
question. If the activity is one that can in some way be ascribed to government, then the entity will be
subject to the Charter when performing that activity. This “government activity” test was applied by
the SCC in Eldridge, with La Forest J. writing for the Court. His summary of the test was quoted
above, but is worth repeating here15:
Second, an entity may be found to attract Charter scrutiny with respect to a
particular activity that can be ascribed to government. This demands an investigation
not into the nature of the entity whose activity is impugned but rather into the
nature of the activity itself. In such cases, in other words, one must scrutinize the
quality of the act at issue, rather than the quality of the actor. If the act is truly
“governmental” in nature⎯for example, the implementation of a specific statutory
scheme or a government program⎯the entity performing it will be subject to review
under the Charter only in respect of that act, and not its other, private activities.
14
In BC Public School Employer’s Association v. British Columbia Teacher’s Federation, 2005 BCCA 393, relying
on Gonthier J.’s dissent in Chamberlain v. Surrey School District No. 36, 2002 SCC 86, at para. 121.
15
Eldridge, para. 44 (emphasis added).
1.1.11
Eldridge concerned a Charter challenge brought against the Vancouver General Hospital’s failure to
provide sign language interpretation to its deaf patients. The SCC found that the Charter applied in
that case and that the lack of sign language interpretation unjustifiably breached s. 15. Interestingly,
the VGH was also at issue in Stoffman, where the Court found it not to be subject to the Charter.
Indeed, in Stoffman, La Forest J. not only found that the hospital was not controlled by government,
he also commented that “there can be no question of the Vancouver General’s being held subject to
the Charter on the ground that it performs a governmental function, for … the provision of a public
service, even if it is one as important as health care, is not the kind of function which qualifies as a
governmental function under s. 32.” That comment caused some significant backpedalling in Eldridge.
La Forest J. distinguished the Eldridge circumstances from those in Stoffman because of the degree of
government connection to the delivery of health care services in Eldridge, and the hospital’s
mandatory retirement policy in Stoffman. In Eldridge, La Forest J. described the Stoffman mandatory
retirement policy this way, at para. 48:
the hospital’s mandatory retirement policy, which was embodied in Medical Staff
Regulation 5.04, was a matter of internal hospital management. Notwithstanding the
requirement of ministerial approval, the Regulation was developed, written and adopted
by hospital officials. It was not instigated by the government and did not reflect its
mandatory retirement policy. Hospitals in British Columbia, moreover, exhibited
great variety in their approaches to retirement. That each of these policies obtained
ministerial approval reflected the large measure of managerial autonomy accorded to
hospitals in this area. [Emphasis added]
By contrast, La Forest J. found the delivery of health care services (at issue in Eldridge) to have a direct
and precise connection to government, which therefore imported Charter limits onto the activity:
[49] … The purpose of the Hospital Insurance Act is to provide particular services to
the public. Although the benefits of that service are delivered and administered
through private institutions⎯hospitals⎯it is the government, and not hospitals, that
is responsible for defining both the content of the service to be delivered and the
persons entitled to receive it. …
[50] The structure of the Hospital Insurance Act reveals, therefore, that in providing
medically necessary services, hospitals carry out a specific governmental objective.
The Act is not, as the respondents contend, simply a mechanism to prevent hospitals
from charging for their services. Rather, it provides for the delivery of a
comprehensive social program. Hospitals are merely the vehicles the legislature has
chosen to deliver this program. …
[51] Unlike Stoffman, then, in the present case there is a “direct and … preciselydefined connection” between a specific government policy and the hospital’s
impugned conduct. The alleged discrimination⎯the failure to provide sign language
interpretation⎯is intimately connected to the medical service delivery system
instituted by the legislation. The provision of these services is not simply a matter of
internal hospital management; it is an expression of government policy. Thus, while
hospitals may be autonomous in their day-to-day operations, they act as agents for
the government in providing the specific medical services set out in the Act. The
Legislature, upon defining its objective as guaranteeing access to a range of medical
services, cannot evade its obligations under s. 15(1) of the Charter to provide those
services without discrimination by appointing hospitals to carry out that objective.
In so far as they do so, hospitals must conform with the Charter. [Emphasis added]
Three broad points should be made about the government activity test as set out in Eldridge.
First, it is not a public purpose test. That is, the question is not whether the activity provides a public
benefit or is aimed at providing a benefit of some kind to society. As La Forest J. stated at para. 43:
1.1.12
the mere fact that an entity performs what may loosely be termed a “public
function,” or the fact that a particular activity may be described as “public” in nature,
will not be sufficient to bring it within the purview of “government” for the
purposes of s. 32 of the Charter.
Indeed, in McKinney La Forest J. expressly acknowledged that many non-governmental organizations
perform functions that could be said to be in the public interest:
Many institutions in our society perform functions that are undeniably of an
important public nature, but are undoubtedly not part of the government. These can
include railroads and airlines, as well as symphonies and institutions of learning.
The second central point on the Eldridge test is that the critical analysis goes to whether there is a
sufficient connection between government and the defendant entity’s impugned action. Quoting
Stoffman and McKinney, the key phrase used in Eldridge to describe the threshold is that there must be
a “direct and precisely-defined connection” between government and the impugned action. La Forest
J., however, also used various other terms to describe the requisite connection, including:
•
government defines the activity;
•
the entity is carrying out a governmental objective;
•
the entity is the vehicle by which government achieves its objective;
•
the impugned conduct is intimately connected to a government policy;
•
the activity is an expression of government policy;
•
in carrying out the activity, the entity is the agent of the government.
Perhaps most importantly, La Forest J. cited two examples of what will amount to a government
activity: “the implementation of a specific statutory scheme or a government program.”16
The last broad point is that the government activity test examines whether a specific activity conducted
by the defendant entity can be ascribed to government. That is, the connection that must exist
between the government and the defendant entity must incorporate the entity’s impugned conduct in
order for the Charter to apply to the case. Under the government activity test, only an entity’s specific
activities that can be ascribed to government are subject to Charter scrutiny; any other activities the
entity engages in need not be Charter-compliant.
All three of these points were relevant in Sagen. In that case, the plaintiffs asserted that planning,
organizing, financing and staging (or “hosting”, for short) the Winter Olympics is a government
activity. For its part, VANOC asserted that hosting the Olympics can only be ascribed to the IOC,
not to government, but in any event, the activity the plaintiffs were impugning⎯not including
women’s ski jumping in the Winter Games⎯was conducted solely by the IOC and was one in which
VANOC played no part.
While the trial judge ultimately agreed with VANOC that it had no responsibility for, or power to
remedy, the decision not to include women’s ski jumping in the Games, the trial judge did conclude
that hosting the Games is a government activity. The trial judge acknowledged that hosting the
Games did not amount to implementation of a specific statutory scheme or government program or
policy (La Forest J.’s two examples from Eldridge), but she held that hosting the Games “is uniquely
governmental in nature.”17 She noted that the Games bring together the nations of the world as the
guests of one nation and one city; that the Games are awarded to a host city and are known as the
Vancouver 2010 Olympics; that in the past the Olympic Games were hosted by governments directly;
16
Eldridge, para. 44.
17
Sagen (BCSC), para. 56.
1.1.13
and that the IOC would not have awarded the Games to Vancouver without the backing of the
governments of Canada, BC, Vancouver and Whistler.18 Ultimately, the trial judge found that
“VANOC is subject to the Charter when it carries out the activity of planning, organizing, financing,
and staging the 2010 Games,”19 which essentially amounted to a finding that the Charter applies to
everything VANOC does.
As noted above, the trial judge did, however, find that only the IOC was responsible for the decision
not to add women’s ski jumping, and she dismissed the plaintiffs’ case on that basis. On appeal,
VANOC defended the dismissal of the plaintiff’s case in part by disputing the trial judge’s finding that
hosting the Winter Games is a government activity. VANOC pointed out that, while the Games are
certainly an enormous international event that engages national pride and is aimed at the nation as a
whole, Eldridge is not a public purpose test. Rather, the question is whether there is a direct and
precisely-defined connection between hosting the Games and the government; that is, whether
VANOC is carrying out the government’s program. VANOC argued that, while the governments
certainly support the Games, the Games cannot be said to be a government program; they are, rather,
an IOC program. VANOC based this argument on the following four points:
1.
The IOC is the exclusive owner of the Games. VANOC was only permitted to host
the Games because it was licensed to do so by the IOC. No other entity in the world
could give VANOC that right.
2.
The IOC defines and controls the Olympic Games.
3.
The IOC effects the hosting of the Olympic Games through Organizing Committees,
such as VANOC. That is, it was the IOC that determined that the 2010 Games would
be organized by VANOC.
4.
The IOC controlled the minute details of VANOC’s hosting of the Games.
The difficult point put against VANOC’s argument was that the Games were awarded to Vancouver as
Host City, which, under the Host City Contract, expressly remained jointly liable for VANOC’s
obligations in hosting the Games. While VANOC could point out that the right to host the Games
was given to VANOC by the IOC, the plaintiffs had ground to argue that hosting the Games is
necessarily a government activity since the City remained jointly liable for it. It is a difficult question
as to which of these arguments is supported by the anti-avoidance principle the SCC has said is at the
heart of the s. 32 tests.
That question remains unanswered. The Court of Appeal noted the debate on this “nice question,”
but properly put it aside, deciding the case instead on VANOC’s primary argument that,
notwithstanding whether anything VANOC does is a government activity, VANOC did not actually
commit the act impugned by the plaintiffs (that is, the IOC’s decision not to include women’s ski
jumping), and so the Charter was not engaged in the case. The Court of Appeal held:
[49] The case authorities support the view that, in determining the scope of the
application of the Charter to an entity such as VANOC, it is necessary to look not only
to the activities or function of the entity itself but also to the nature or function of the
specific act or decision of the entity that is said to infringe a Charter right. Regardless of
whether VANOC’s hosting of the Games can properly be considered to be a
governmental activity because of the substantial commitments made by the several
levels of government to secure and hold the Games in Vancouver, it is clear on the
facts that neither government nor VANOC had any authority either to make or to alter
the decision of the IOC not to include a women’s ski jumping event in the 2010 Games.
The decision of the IOC not to add women’s ski jumping as an event in the 2010
18
See Sagen (BCSC), paras. 56 and 62.
19
Para. 65.
1.1.14
Games is not a “policy” choice that could be or was made by any Canadian
government and the staging by VANOC of only those events authorized by the IOC
cannot reasonably be viewed as furthering any Canadian government policy or
program. [Emphasis added]
The Court of Appeal also went on to decide that, since only the IOC can include events into the
Olympics, an Olympic event is not a “benefit of the law,” as it must be for s. 15 of the Charter to be
engaged.
The one certainty that emerges from Sagen with respect to the government activity test is just the
flipside of a principle that was already certain: under the government activity test, the private entity is
subject to the Charter only when carrying out a specific activity that can be ascribed by government.
What Sagen made clear is that, if the private entity actually does not engage in the impugned activity,
then the Charter cannot provide a remedy as against that entity for the impugned activity.
V.
Last Words
While it is clear that the Charter can apply to entities beyond the legislative bodies and what is selfevidently “government,” the law relating to what entities are included, and when, is complex to say
the least. Certainly the law has not yet been fully rationalized, and it can be expected to develop
further.
Given the state of the law, it is not easy to predict which way the courts will go in any given case. In
light of this, counsel involved in, or considering, a Charter case against a “private” entity should
probably be conscious of two points. First, it is very important to gather and shape the evidence to
animate the inert phrases used in the case law. That is obviously important in any case, but it may be
particularly crucial here, because the s. 32 tests are so amorphous and there is so little case law from
which to analogize. Use your evidence to show in a very detailed way how the entity does or does not
fit the test. Second, if you are plaintiff’s counsel, consider not bringing a Charter challenge; consider
bringing a complaint under the Human Rights Code instead. The Code applies to government and
private entities alike and contains some of the same human rights protections as the Charter⎯most
importantly, protection of equality.20 Legal battles over whether the Charter applies can be long,
distracting and costly. It may be to your client’s advantage to avoid the battle by suing under the
Code.
20
A difference, however, is that the equality protections are limited to accommodations, services and facilities
that are “customarily available to the public.”