Douglas/kwantlen Faculty Assn. v. Douglas College, [1990] 3 SCR 570

Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570

 

Douglas College             Appellant

 

v.

 

Douglas/Kwantlen Faculty Association                                                                           Respondent

 

and

 

The Attorney General of Canada and

The Attorney General for Saskatchewan                                                                       Interveners

 

indexed as:  douglas/kwantlen faculty assn. v. douglas college

 

File No.:  20800.

 

1989:  May 18, 19; 1990:  December 6.

 

Present:  Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

 

on appeal from the court of appeal for british columbia

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Applicability of Charter  ‑‑ Government ‑‑ Whether community college "government" so as to attract Charter  review of policies ‑‑ If so, whether mandatory retirement policy "law" ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 32 .

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Equality rights ‑‑ Equality before the law ‑‑ Age discrimination ‑‑ Mandatory retirement at age 65 ‑‑ Whether mandatory retirement policy "law" ‑‑ If so, whether s. 15(1)  of the Charter  infringed ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 32 .

 

    Consitutional law ‑‑ Court of competent jurisdiction ‑‑ Labour grievance ‑‑ Arbitrator deciding constitutionality of provision as preliminary issue ‑‑ Whether a court of competent jurisdiction ‑‑ Whether jurisdiction to hear and determine grievance ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 24(1) .

 

    Douglas College was one of the colleges in a system of post‑secondary education operated by British Columbia through the College and Institute Act.  A college once designated under the Act became a corporation and was for all purposes an agent of the Crown and could only exercise its powers as such.  It was subject to direct and substantial control by the Minister.  Its board was appointed by the Lieutenant Governor in Council at pleasure and its annual budget was submitted to the Minister for approval.  The Minister was empowered to establish policy or issue directives regarding post‑secondary education and training, to provide services considered necessary, to approve all by‑laws of the Board and to provide the necessary funding.

 

    The collective agreement, which was governed by the Labour Code and came into effect after the commencement of the Canadian Charter of Rights and Freedoms , provided for mandatory retirement at age 65 (Article. 4.04).  Two faculty members who were about to be retired filed a grievance challenging Article 4.04  as violating s. 15(1)  of the Charter .  The arbitrator appointed pursuant to the collective agreement held, in a preliminary award, that the college was a Crown agency subject to the Charter  and that any action taken by it, including the collective agreement, constituted a "law" within the meaning of s. 15(1)  of the Charter .  This preliminary award did not deal with whether Article 4.04 of the collective agreement was justified under s. 1  or whether the association was estopped from claiming the benefits of the Charter .  An appeal to the British Columbia Court of Appeal was dismissed.

 

    The constitutional questions before this Court queried:  (1) whether the Charter  applied to the negotiation and administration of the retirement provision in the collective agreement; (2) whether that provision or its application was "law" as that term is used in s. 15(1)  of the Charter ; (3) whether the arbitration board appointed to resolve a grievance disputing the constitutionality of that provision was a court of competent jurisdiction under s. 24(1)  of the Charter ; (4) whether the arbitration board had jurisdiction to hear and determine such a grievance.

 

    Interventions were filed by the Attorneys General of Canada and Saskatchewan.

 

    Held:  The appeal should be dismissed.

 

    Per Dickson C.J. and La Forest and Gonthier JJ.:  The college was a Crown agency established by the government to implement government policy.  It was simply in form and in fact part of the apparatus of government.  The government may permit the college board to exercise a measure of discretion but it not only appoints and removes the board at pleasure but also may at all times by law direct its operation.  The college was performing acts of government in carrying out its function.  The actions of the college in the negotiation and administration of the collective agreement were those of the government for the purposes of s. 32  of the Charter .  It was quite unlike the universities which managed their own affairs.

 

    For reasons discussed in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, the collective agreement is law.  It was entered into by a government agency pursuant to powers granted by statute in furtherance of government policy.  The fact that the faculty association agreed to it did not alter the fact that it had been entered into by government pursuant to statutory power and so constituted government action.  To permit government to pursue policies violating Charter  rights by means of contracts and agreements with other persons or bodies cannot be tolerated.

 

    A tribunal's power is that conferred by its statutory mandate.  The jurisdiction of a statutory tribunal must be found in a statute and must extend not only to the subject matter of the application and the parties, but also to the remedy sought.  A tribunal, in the exercise of its statutory mandate, is empowered to examine and rule upon the constitutional validity of a statute it is called upon to apply.  Where a tribunal is engaged in performing what it was empowered to do by law, it is entitled not only to construe the relevant legislation but also to determine whether that legislation was validly enacted.  Any law that is inconsistent with the provisions of the Constitution of Canada is, to the extent of its inconsistency, of no force or effect.  A tribunal, if it finds a law it is applying to be constitutionally invalid, must treat it as having no force or effect under s. 52(1)  of the Constitution Act, 1982 . 

 

    The arbitrator had jurisdiction over the parties, the subject matter at issue and the remedy sought.  He was expressly granted the authority, under s. 98 of the Labour Code, to provide a final and conclusive settlement to a dispute arising under a collective agreement and was given a wide range of appropriate remedies including the power to interpret and apply any Act intended to regulate employment.  "Act" in s. 98 includes the Charter .  Here, the grievance was not based on the terms of the collective agreement alone but upon the application of s. 15(1)  of the Charter  as well.

 

    The present case was complicated by the fact that the arbitrator's decision was a "preliminary" one looking only at the question of his jurisdiction and whether the collective agreement or policy of mandatory retirement could be "law" for the purposes of the Charter .  The relief sought, however, was a remedy available under s. 98.  The mandatory retirement clause was invalid and an arbitrator, notwithstanding any provision in the collective agreement to the contrary, can hold an "offensive" term in a collective agreement inapplicable.

 

    The practice of placing a constitutional issue before a tribunal rather than seeking judicial review initially is natural enough in today's context and does not offend the concept of separation of powers.  While the informal practices of a tribunal may not be entirely suited to dealing with constitutional issues, clear advantages for the practice exist.   First, the Constitution must be respected and any citizen, when appearing before decision‑making bodies set up to determine his or her rights and duties should be entitled to assert the rights and freedoms guaranteed by the Constitution.  In addition, a specialized tribunal quickly and inexpensively sift the facts and compile a record for the benefit of a reviewing court.  This specialized competence can be of invaluable assistance in constitutional interpretation.

 

    Since the arbitrator did not, in his preliminary award, consider the issues whether the breach of s. 15(1)   was justified under s. 1  of the Charter , or whether the association was estopped or deemed to have waived its constitutional rights, the Court was not called upon to deal with these issues.

 

    It was unnecessary to consider whether the arbitrator was a court of competent jurisdiction with the meaning of s. 24(1)  of the Charter .

 

    Per Wilson and L'Heureux‑Dubé JJ.:  An arbitration board appointed by the parties under the Labour Code has jurisdiction pursuant to s. 52(1)  of the Constitution Act, 1982  to determine the constitutional issue raised by the grievance.  It was therefore unnecessary to determine whether the Board is a "court of competent jurisdiction" within the meaning of s. 24(1)  of the Charter .  The question whether a tribunal may have such jurisdiction even in the absence of specific provisions in the governing legislation and in the collective agreement, however, should be left open.  The Charter  applied to Douglas College and s. 15  applied to the impugned article in the collective agreement.

 

    The criteria relevant in determining whether an entity is subject to the Charter  include:  (1) whether the legislative, executive or administrative branch of government exercises general control over the entity in question; (2) whether the entity performs a traditional government function or one recognized in more modern times as being a state responsibility; and (3) whether the entity acts pursuant to statutory authority specifically granted to further an objective that government seeks to promote in the broader public interest.

 

    The college was part of government for the purposes of s. 32  of the Charter  given the fact that it was a Crown agent established, funded and heavily controlled by government, together with the fact that it was discharging a government function in the public interest.  The college was not an autonomous body but rather part of the "apparatus of government", and unlike universities, did not lose a historic independence when government decided to intervene.  Its actions were therefore subject to s. 15  of the Charter .  It was not necessary that the government exercise direct control over the implementation of Article 4.04 .

 

    A purposive approach to the various sections in the Charter  in which the word "law" appears may lead to different interpretations of the word "law" in the context of those provisions.  It is not necessary that a "law" be identified in order to bring s. 15(1)  into play.  If, however, there must be a "law" involved before s. 15  is triggered, that law is found in the collective agreement and in particular Article 4.04 .  Alternatively, another such "law" could be found in the College's enabling statute which contained a provision specifically conferring power on the Board to terminate contracts of employment.  Accordingly, the alleged denial of equality was effected by "law" or by conduct entitled to be redressed by law and the first requirement of s. 15(1)  is met.

 

    Per Sopinka J.:  The position of La Forest J. was agreed with except with respect to his finding that the collective agreement was "law" under s. 15  of the Canadian Charter of Rights and Freedoms .  The consensual nature of the policies in question should not be discarded in the examination as to whether they constitute "law".

 

    The Charter  was intended to protect the individual from the coercive power of the state and not against the individual's own voluntary conduct in dealing with state entities.  While "law" is not confined merely to legislative activity, an element of coercion present in government activity for such to be reasonably characterized as law.  This element of imposition or prescription by the state distinguishes law from voluntarily assumed rights and obligations. 

 

    Per Cory J.:  The reasons of Wilson J. were agreed with concerning the application of the McKinney test to the facts in this appeal.  That test provided a means for determining whether an entity was a part of government to which the Charter  applied.  In all other respects, the reasons of La Forest J. were agreed with.

 

Cases Cited

 

By La Forest J.

 

    Distinguished:  McKinney v. University of Guelph, [1990] 3 S.C.R. 000; Harrison v. University of British Columbia, [1990] 3 S.C.R. 000;  considered:  Canada v. Vincer, [1988] 1 F.C. 714; Re Shewchuk and Ricard; Attorney General of British Columbia (1986), 28 D.L.R. (4th) 429; Zwarich v. Canada (Attorney General), [1987] 3 F.C. 253; referred to:  Mills v. The Queen, [1986] 1 S.C.R. 863;  Terminaux portuaires du Québec Inc. v. Association des Employeurs maritimes (1988), 89 N.R. 278; Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513, leave to appeal denied, [1986] 1 S.C.R. xii; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1989), 62 D.L.R. (4th) 125; Re Nash and The Queen (1982), 70 C.C.C. (2d) 490; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; Tétreault‑Gadoury v. Canada (Canada Employment and Immigration Commission), [1989] 2 F.C. 245; Moore v. British Columbia (1988), 50 D.L.R. (4th) 29; Canada (Attorney General) v. Alli (1988), 51 D.L.R. (4th) 555; Gerrard v. Saskatoon (City) (1987), 44 D.L.R. (4th) 767;  Canada (Procureur général) v. Sirois (1988), 90 N.R. 39; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219; Taylor (David) & Son Ltd. v. Barnett, [1953] 1 All E.R. 843; Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 (1980), 117 D.L.R. (3d) 400; R. v. Ontario Labour Relations Board, Ex parte Dunn (1963), 39 D.L.R. (2d) 346; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Canada Labour Relations Board v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Southern Pacific Transportation Co. v. Public Utilities Commission, 18 Cal.3d 308 (1976).

 

By Wilson J.

 

    Distinguished:  McKinney v. University of Guelph, [1990] 3 S.C.R. 000; referred to:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145.

 

By Sopinka J.

 

    Applied:  McKinney v. University of Guelph, [1990] 3 S.C.R. 000; referred to:  Re Ontario English Catholic Teachers Association and Essex County Roman Catholic School Board (1987), 58 O.R. (2d) 545.

 

By Cory J.

    Applied:  McKinney v. University of Guelph, [1990] 3 S.C.R. 000.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) , 24(1) , 32 .

 

Canadian Human Rights Act, S.C. 1976‑77, c. 33.

 

Child's Paternity and Support Act, R.S.B.C. 1979, c. 49.

 

College and Institute Act, R.S.B.C. 1979, c. 53, ss. 2(1), (2), 3, 5(1), (2), 6, 7, 12, 12(1)(c), 17, 29(1), 53(1), 61.

 

Compensation Stabilization Act, S.B.C. 1982, c. 32, s. 2.1, 9, 14, 15, 16.

 

Constitution Act, 1867, s. 96 .

 

Constitution Act, 1982, s. 52(1) .

 

Family Allowances Act, 1973, S.C. 1973‑74, c. 44.

 

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

 

Financial Administration Act, S.B.C. 1981, c. 15.

 

Financial Information Act, R.S.B.C. 1979, c. 131 [rep. & sub. by S.B.C. 1985, c. 8].

 

Industrial Relations Act, R.S.B.C. 1979, c. 212.

 

Industrial Relations Reform Act, 1987, S.B.C. 1987, c. 24.

 

Labour Code, R.S.B.C. 1979, c. 212, s. 98.

 

Public Service Labour Relations Act, R.S.B.C. 1979, c. 346, s. 1(1).

 

Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48.

 

Authors Cited

 

Corpus Juris Secundum, vol. 73, 2nd ed.

 

Côté, Pierre‑André.  "La recevabilité des arguments fondés sur les chartes des droits devant les tribunaux administratifs" (1989), 49 R. du B. 455.

 

Davis, K. C.  Administrative Law Treatise, vol. 4, 2nd ed.  San Diego: K. C. Davis Pub. Co., University of San Diego, 1983.

 

Evans, J. M.  "Administrative Tribunals and Charter  Challenges" (1988), 2 C.J.A.L.P. 13.

 

Gibson, Dale.  "Enforcement of the Canadian Charter of Rights and Freedoms ," in W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms :  Commentary.  Toronto:  Carswells, 1982.

 

Gosselin, J. F. "L'alchimie des Chartes vue de l'intérieur du tribunal administratif:  le retour au Cheval de Troie?", dans Les Tribunaux administratifs à la lumière des chartes.  Barreau du Québec.

 

Harris, Robin S.  A History of Higher Education in Canada, 1663‑1960.  Toronto:  University of Toronto Press, 1976.

 

Hogg, Peter W.  Constitutional Law of Canada, 2nd ed.  Toronto:  Carswells, 1985.

 

Kuttner, Thomas S.  "Constitution as Covenant:  Labour Law, Labour Boards and the Courts from the Old to the New Dispensation" in Labour Law Under the Charter.  Kingston:  Queen's Law Journal and Industrial Relations Centre, 1988.

 

Murray, J. C.  "Labour Arbitration and the Charter ", in Labour Law, New Swords and New Shields:  The Year in Review in Labour Law.  Canadian Bar Association ‑‑ Annual Institute on Continuing Legal Education, 1987.

 

Note.  "The Authority of Administrative Agencies to Consider the Constitutionality of Statutes" (1976‑77), 90 Harv. L. Rev. 1682.

 

Pépin, G.  "La compétence des tribunaux administratifs de décider de la constitutionalité d'une loi, notamment de sa compatibilité avec la Charte canadienne des droits et libertés ".  In  Canadian Bar Association -‑ Continuing Legal Education Seminar on Administrative Law, "Canadian Administrative Law:  Past Present and Future".  Ottawa 1989.

 

Pinard, D.  "Le pouvoir des tribunaux administratifs québécois de refuser de donner effet à des textes qu'ils jugent inconstitutionnels", [1987] R.D. McGill 170.

 

Ontario.  Management Board of Cabinet.  Review of Ontario's Regulatory Agencies.  Macauley Report.  Toronto:  Queen's Printer for Ontario, 1989.

 

Québec.  Rapport du groupe de travail sur les tribunaux administratifs.  Les tribunaux administratifs.  Rapport Ouellette.  Québec:  Éditeur officiel du Québec, 1987.

 

    APPEAL from a judgment of the British Columbia Court of Appeal (1988), 21 B.C.L.R. (2d) 175, 49 D.L.R. (4th) 749, [1988] 2 W.W.R. 718, 40 C.R.R. 226, dismissing an appeal from an arbitration by B. H. McColl, Q.C., on a preliminary matter dealing with the constitutionality of a provision of a collective agreement.  Appeal dismissed.

 

    Thomas D. Schiller and Colin G. M. Gibson, for the appellant.

 

    Leo McGrady and John J. Steeves, for the respondent.

 

    Duff Friesen, Q.C., and Virginia McRae Lajeunesse, for the intervener the Attorney General of Canada.

 

    Robert G. Richards, for the intervener the Attorney General for Saskatchewan.

 

    The judgment of Dickson C.J. and La Forest and Gonthier JJ. was delivered by

 

//La Forest J.//

 

    LA FOREST J. -- These proceedings were initiated with a view to raising the issue whether a provision of a collective agreement entered into between an agent of the Crown and the respondent association, a trade union representing the College's employees, that requires the employees to retire at age 65 violates s. 15(1)  of the Canadian Charter of Rights and Freedoms  as constituting a deprivation of the employees' equality rights without discrimination based on age.  This broad issue has yet to be addressed.  This appeal is only concerned with a number of preliminary, though important, issues.  Among these are whether the Charter  applies to the college and whether the collective agreement constitutes a "law" for the purposes of s. 15(1) .  That provision reads as follows:

 

    15.  (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

    These issues have also been discussed in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, but the present case raises the further important issue regarding the jurisdiction of an arbitrator appointed to determine the foregoing questions in the course of hearing a grievance by two employees contesting the decision to retire them under the provision of the collective agreement above described.

 

Facts

 

    Douglas College, along with other colleges and institutes, was created pursuant to the College and Institute Act, R.S.B.C. 1979, c. 53, for the purpose of conducting post-secondary education and training in British Columbia.  The Act empowers the Lieutenant-Governor in Council to designate colleges and the regions they are to serve (s. 5(1)).  On designation, a college becomes a corporation (s. 5(2)) and is for all purposes an agent of the Crown and can only exercise its powers as such (s. 53(1)).

 

    The affairs of the college are managed and directed by a board of seven members, all of whom are appointed by the Lieutenant Governor in Council at pleasure (s. 6).  The Minister, however, exercises direct and substantial control over the college pursuant to ss. 2 and 3.  Thus the Minister may establish policy or issue directives regarding post-secondary education and training, may provide services considered necessary, approves all by-laws of the Board and provides the necessary funding ‑- in the 1985-86 calendar year, for example, 83 per cent of its operating funds.  The college submits an annual budget to the Minister.  Briefly put, the college is simply a delegate through which the government operates a system of post-secondary education in the province, as its status as a Crown agency makes immediately evident.  It is quite unlike universities like the University of British Columbia described in Harrison v. University of British Columbia, [1990] 3 S.C.R. 000, which, though largely dependent on government funding, manages its own affairs; see also McKinney v. University of Guelph, supra.

 

    Though the labour relations of Crown agencies are generally governed by the Public Service Labour Relations Act, R.S.B.C. 1979, c. 346, s. 1(1), that is not so of the college.  Its collective bargaining is by virtue of s. 53 of its constituent Act governed by the Industrial Relations Act, R.S.B.C. 1979, c. 212 (at the relevant times called the Labour Code).  The college is an employer and the respondent association a "trade union" for the purposes of that Act.  The association was certified as the exclusive agent for a bargaining unit of teaching and library employees of the college.  Pursuant to the Act, the college and the association have entered into a series of collective agreements, which, of course, are binding upon the employees as well.  The relevant agreement became effective in May 1985 with a contractual period running from April 1, 1983 to March 31, 1987.  The agreement, be it noted, came into effect after the commencement of the Charter .

 

    This collective agreement contained a clause (article 4.04) providing for mandatory retirement at age 65.  It reads as follows:

 

4.04A faculty member shall retire from continuous full-time employment at the College on August 31st next following the employee's 65th birthday.

 

The clause had in fact existed in the same form through five collective agreements, both before and after the commencement of the Charter .

 

    Finally, reference must be made to the Compensation Stabilization Act, S.B.C. 1982, c. 32, which applied to the appellant from 1982 through 1987.  As its name implies, that Act was designed to restrain and stabilize levels of compensation paid or provided by designated "public sector employers" to or for the benefit of their employees (s. 2.1).  A Commissioner appointed under the Act was empowered, inter alia, to review the "compensation plans", including terms and conditions of collective agreements to ensure that guidelines established pursuant to that Act were not exceeded.  If the Commissioner determined that a compensation plan was outside the guidelines, he could either remit it to the parties for renegotiation, or order that it be subject to the regulations (ss. 9, 14 , 15 , 16 ).

 

    Annually, from 1982 through 1985, the Commissioner reviewed the "compensation plans" contained in the collective agreements negotiated by the appellant and the respondent.  Article 4.04 of the collective agreement was never the subject of a specific and separate submission to the Commissioner for review.  However, the collective agreement as a whole, including article 4.04, was submitted to the Commissioner.  I should add that the Act is no longer in force.

 

    The proceedings arose out of a grievance by two faculty members who were about to be retired on August 31, 1986.  They challenged article 4.04 as violating s. 15(1)  of the Charter .  An arbitrator was appointed pursuant to art. 15.03 of the collective agreement to determine the issue.  His jurisdiction, as set forth in art. 15.03 (d)(i), is as follows:

 

15.03  . . .

 

(d) . . .

 

(i)Subject to the jurisdiction vested in an arbitrator or Arbitration Board under Part 6 of the Labour Code of British Columbia, the Arbitrator shall have jurisdiction and authority to interpret and apply the provisions of this Agreement insofar as it may be necessary to the determination of the grievance referred to him/her.  He/she shall not have the jurisdiction to alter, amend, add to or delete from any of the provisions of this Agreement, or make any decision which is inconsistent with the provisions of this Agreement.

 

This provision, as noted in art. 15.03(d)(i), must be read in conjunction with Part VI of the then Labour Code, s. 98 and, particularly, para. (g), which has special relevance.  Section 98 reads:

 

    98.  For the purposes set out in section 92, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limiting the generality of the foregoing, has authority to

 

(a)make an order fixing and determining the monetary value of an injury or loss suffered by an employer, trade union or other person as a result of a contravention of a collective agreement, and directing a person to pay a person all or part of the amount of that monetary value;

 

(b)order an employer to reinstate an employee dismissed in contravention of a collective agreement;

 

(c)order an employer or trade union to rescind and rectify a disciplinary action taken in respect of an employee that was imposed in contravention of a collective agreement;

 

(d)determine that a dismissal or discipline is excessive in [sic] all circumstances of the case and substitute other measures that appear just and equitable;

 

(e)relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement;

 

(f)dismiss or reject an application or grievance, or refuse to settle a difference, where in the arbitration board's opinion, there has been unreasonable delay by the person bringing the application or grievance, or requesting the settlement, and the delay has operated to the prejudice or detriment of the other party to the difference; and

 

(g)interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, notwithstanding that its provisions conflict with the terms of the collective agreement.  [Emphasis added.]

 

Judicial History

 

Arbitration Award

 

    In his preliminary award, the arbitrator held that the college, "being the child of provincial legislation under which it is not only created and operated, but regulated", is a Crown agency.  The Charter , therefore, applied to it, and any action taken by it in pursuance of its powers vested in it by the legislature constituted a "law" within the meaning of s. 15(1)  thereof.  The provisions of the agreement, in so far as they touched upon matters dealt with in the Charter , may be struck down if they offend the Charter .

 

    The arbitrator further found that the collective agreement between the parties is not a private agreement but amounted to a law or regulation of a government agency.  Accordingly, the Charter  applied.  He did not deal in this preliminary award with the two other principal issues involved in the dispute, i.e., whether or not article 4.04 of the collective agreement fell within "reasonable limits prescribed by law" under s. 1  of the Charter  or whether the association was estopped from claiming the benefits of the Charter .

 

Court of Appeal

 

    An appeal to the British Columbia Court of Appeal was dismissed.  The court found that the act of the appellant, in inserting a mandatory retirement provision into the collective agreement, is governmental in nature.  In this respect, the court observed that the control exercised by the government over the college's affairs generally, in addition to its approval of the collective agreement under the Compensation Stabilization Act, permitted no other conclusion.  The collective agreement could not be viewed as a private internal matter between the parties but was, rather, the result of the exercise of governmental power.  Consequently, the Charter  applied.

 

    Having observed that the meaning of "law" in s. 15  of the Charter  and s. 52(1)  of the Constitution Act, 1982  had not been considered by this Court, the Court of Appeal, in the circumstances of this case, found it unnecessary to go further than to define "law" as "comprehending a rule or a system of rules formulated by government and imposed upon the whole or a segment of society" (p. 184).  Law, it stated, may be made by a body exercising governmental power.  The fact that the collective agreement takes effect only upon the approval of the Commissioner under the Compensation Stabilization Act "takes it out of the realm of a privately negotiated agreement and places it in the realm of law, subjecting it to scrutiny under s. 15(1)  of the Charter " (p. 184).

 

    In the Court of Appeal's opinion, the arbitrator, upon concluding that the mandatory retirement provision of the collective agreement infringed s. 15(1) , had jurisdiction to declare the impugned article of the agreement of no force or effect pursuant to s. 52(1)  of the Constitution Act, 1982 .  It, therefore, found it unnecessary to consider s. 24(1)  of the Charter .

 

    Application was then made to appeal to this Court.  The application was granted and the following constitutional questions were stated:

 

1.Does the Canadian Charter of Rights and Freedoms  apply to the negotiation and administration of the retirement provision in the collective agreement between the appellant and the respondent?

 

2.Is such provision or its application "law" as that term is used in s. 15(1)  of the Charter ?

 

3.Is an arbitration board appointed by the parties under the collective agreement to resolve a grievance disputing the constitutionality of such provision a court of competent jurisdiction under s. 24(1)  of the Charter ?

 

4.Does an arbitration board have jurisdiction to hear and determine such a grievance?

 

Interventions were filed by the Attorneys General of Canada and Saskatchewan.

 

The Application of the Charter 

 

    The issue raised in the first constitutional question may be quickly disposed of.  As its constituent Act makes clear, the college is a Crown agency established by the government to implement government policy.  Though the government may choose to permit the college board to exercise a measure of discretion, the simple fact is that the board is not only appointed and removable at pleasure by the government; the government may at all times by law direct its operation.  Briefly stated, it is simply part of the apparatus of government both in form and in fact.  In carrying out its functions, therefore, the college is performing acts of government, and I see no reason why this should not include its actions in dealing with persons it employs in performing these functions.  Its status is wholly different from the universities in the companion cases of McKinney v. University of Guelph, supra, and Harrison v. University of British Columbia, supra, which, though extensively regulated and funded by government, are essentially autonomous bodies.  Accordingly, the actions of the college in the negotiation and administration of the collective agreement between the college and the association are those of the government for the purposes of s. 32  of the Charter .  The Charter , therefore, applies to these activities.

 

    I take this position quite independently of the application of other government Acts, notably the Compensation Stabilization Act, which regulate the "public sector" including bodies like universities which do not form part of government; see Harrison v. University of British Columbia.  I have described the Compensation Stabilization Act earlier.  With respect, I do not think a statute providing that certain bodies conform to compensation guidelines for the purposes of stabilizing and restraining compensation in organizations within and outside government makes the bodies subject to that regime part of government, or makes settlements negotiated in the shadow of such a statute acts of government.  As I mentioned in McKinney v. University of Guelph, the fact that a body is heavily regulated and funded by government does not, by that mere fact, become part of the apparatus of government.  However, the college in my view forms part of the apparatus for the reasons already given.

 

Is the Collective Agreement "Law"?

 

    For reasons discussed in McKinney v. University of Guelph, supra, I am of the view that the collective agreement is law.  It was entered into by a government agency pursuant to powers granted to that agency by statute in furtherance of government policy.  The fact that the collective agreement was agreed to by the appellant association does not alter the fact that the agreement was entered into by government pursuant to statutory power and so constituted government action.  To permit government to pursue policies violating Charter  rights by means of contracts and agreements with other persons or bodies cannot be tolerated.  The transparency of the device can be seen if one contemplates a government contract discriminating on the ground of race rather than age.  It may be that age can constitute a rational basis for a party to agree to contract out of certain rights and thus be open to the defences of waiver or estoppel or again that it may in certain circumstances constitute a reasonable limitation under s. 1 .  These are issues, however, which were not before the Board or the courts below and I refrain from commenting upon them further.

 

The Jurisdiction of the Arbitrator

 

Preliminary

 

    I now turn to the third and fourth constitutional questions.  For convenience, I repeat these.  They read:

 

3.Is an arbitration board appointed by the parties under the collective agreement to resolve a grievance disputing the constitutionality of such provision a court of competent jurisdiction under s. 24(1)  of the Charter ?

 

4.Does an arbitration board have jurisdiction to hear and determine such a grievance?

 

    Section 24(1)  of the Charter , mentioned in the third constitutional question, provides for application to a "court of competent jurisdiction" when a Charter  right has been infringed or denied.  It reads:

 

    24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

Though, it is not mentioned in the constitutional questions, s. 52(1)  of the Constitution Act, 1982 , which provides that any law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect, is also relevant.  It reads:

 

    52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

    The Court of Appeal declined to comment on whether the arbitrator was a court of competent jurisdiction under s. 24(1) .  It held that no relief was sought under that provision, thus removing the necessity of considering the issue.  It held, rather, that under s. 52, if the arbitrator found a violation of s. 15  of the Charter , he could declare the clause of the collective agreement of no force or effect.

 

The Position of the Parties

 

    In this Court, counsel for the college argued that s. 52(1)  is not a jurisdiction granting provision and that a body holding a law of no force or effect must still be a court of competent jurisdiction under s. 24(1)  which allocates authority to remedy Charter  infringements by striking down offending laws or by making other appropriate or just orders.  An arbitration board, he continued, is simply not a court within the meaning of s. 24(1) .  Alternatively, he argued, the arbitrator had no jurisdiction over the subject matter of the dispute or the remedy sought.  The arbitrator's jurisdiction derived from the parties' collective agreement and from the applicable labour relations legislation.  While s. 98(g) of the Labour Code gave an arbitrator jurisdiction to "interpret and apply any Act intended to regulate the employment relationship . . . notwithstanding that its provisions conflict with the terms of the collective agreement", the Charter , counsel maintained, did not fall within the type of Act contemplated by this section.  He also submitted that the rather informal arbitration process is not the proper forum for raising Charter  issues.

 

    Counsel for the respondent, however, argued that at common law a court of competent jurisdiction covered every possible court which is made competent to entertain the matter in dispute.  Mills v. The Queen, [1986] 1 S.C.R. 863, he noted, concluded that a court of competent jurisdiction is a body that has, independently of the Charter , jurisdiction over the parties, subject matter and remedy sought.  The arbitrator, counsel maintained, meets these criteria by virtue of the Labour Code provisions and the terms of the collective agreement.

 

    Counsel for the intervener, the Attorney General of Canada, argued that the third constitutional question should be answered in the negative but the fourth question should be answered in the affirmative.  He submitted that an arbitration board cannot be a court of competent jurisdiction within the meaning of s. 24(1)  of the Charter  because that provision merely recognizes that where a tribunal already has jurisdiction over the matter and remedy sought, an aggrieved person may apply to that body for such remedy for a Charter  violation as that body is empowered to grant.  A collective agreement, he added, cannot constitute a private person as a court, or authorize an arbitrator to determine the validity or effectiveness of a law of a province or of Canada.  An arbitrator has no greater powers than those given under the terms of the collective agreement.  However, in his view, an arbitrator, though not a court of competent jurisdiction for the purposes of s. 24(1) , does have the authority to determine what the applicable law is and to proceed to fulfill his mandate in a manner consistent with the Charter .  Thus, he could on that basis determine that a provision of a collective agreement is invalid or unenforceable as being inconsistent with the Charter .

 

    The second intervener, the Attorney General for Saskatchewan, sought to have both the third and fourth questions answered in the negative.  His position is that neither s. 24(1)  of the Charter  nor s. 52  of the Constitution Act, 1982  operate as an independent source of authority to decide Charter  questions.  A tribunal, in his view, must exercise its powers consistently with the Charter .  A tribunal may find legislation invalid or grant a formal Charter  remedy but only if so empowered by its governing legislation, which it was submitted, the arbitrator was not granted either under the collective agreement or the appropriate legislation.  The Attorney General also maintained that any allocation of jurisdiction over Charter  issues is subject to the limitations in s. 96  of the Constitution Act, 1867  and the general requirement in s. 24(1)  of the Charter  that individuals must be able to vindicate their rights in court.

 

The Cases

 

    In sum, the appellant ‑- and in this he was joined by the Attorney General for Saskatchewan ‑- argued that the arbitrator has no jurisdiction to apply the Charter .  This position receives support from a number of judgments by Marceau J. of the Federal Court of Appeal, who is a strong exponent of this view.  He first set forth this view in Canada v. Vincer, [1988] 1 F.C. 714.  In that case, the father of two dependent children who had separated from his wife under an agreement whereby the children would reside with each parent an equal amount of time, applied for half the amounts payable pursuant to the Family Allowances Act, 1973, S.C. 1973-74, c. 44, in respect of the two children.  His application was refused on the ground that family allowance was not divisible and was under the Act ordinarily payable to the mother except in exceptional situations provided in the regulations, in which the applicant did not fit.  A review committee set up under the Act, however, decided in favour of the applicant because, in its view, the provisions of the Act and the regulations appeared to be in violation of the Charter  and the Canadian Human Rights Act, S.C. 1976-77, c. 33.  It, therefore, recommended that these provisions be reviewed.  An application was then made under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, attacking this decision.  At issue was whether the review committee had jurisdiction to deal with the Charter  question.

 

    The Federal Court of Appeal held that it did not.  Pratte J.'s holding, however, was based on the view that the impugned provisions did not violate the Charter , and that of Stone J. on the fact that the statute, as written, did not endow the review committee with the mandate to apply the Charter .  Only Marceau J.'s reasons, therefore, support the broad proposition of the appellant and the Attorney General for Saskatchewan.

 

    Marceau J. first rejected the submission that the review committee could derive jurisdiction directly from s. 24(1)  of the Charter .  Citing Mills v. The Queen, supra, he stated that it was now firmly established that the Charter  did not itself confer jurisdiction on any court or tribunal.  Jurisdiction, he added, must be found in a statute and must extend not only to the subject matter of the application, but to the parties involved and the remedy sought.  In the statute before him, there was no authority to pay the amounts as claimed.  Besides, he added, the power conferred under the English version of s. 24(1)  was limited to a "court", and while the French version spoke of "tribunal", bilingual legislation should not normally be construed so as to give a meaning in one version that the corresponding expression in the other would not bear.

 

    Marceau J. then disposed of the submission that the position taken by the committee did not amount to a declaration of the law, but merely took a view of the law.  The difficulty he saw in this is that it applied that law and that, declaration or not, it would serve as a precedent like any other judgment.  In this context, he also saw difficulties arising out of the judicature sections of the Constitution Act, 1867  as is evident from later remarks in his reasons.

 

    Finally, and this is related to the last point, he was of the view that for a tribunal to be entitled to challenge the constitutional validity of an Act of Parliament, it must be part of the judicial branch of government.  As he saw it, each of the three branches of government -‑ legislative, executive and judicial ‑- has exclusive functions, and that of controlling the legal validity of enactments of Parliament or the legislatures fell exclusively to the judicial branch.

 

    Marceau J. has continued to maintain his position in strong reasons in the subsequent cases of Terminaux portuaires du Québec Inc. v. Association des Employeurs maritimes (1988), 89 N.R. 278 (F.C.A.), and Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233, in which he took the opportunity of refuting a number of arguments made against his position.  Here again, however, Marceau J. was unable to rally the other members of the panels, which decided the issues in those cases on narrower grounds.  Some support for his position may, however, be found in the majority decision of the Ontario Court of Appeal in Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513 (leave to appeal denied, [1986] 1 S.C.R. xii).  There a majority held that the Ontario Human Rights Commission was right in holding that it had no jurisdiction to consider Mrs. Blainey's claim that she could not complain of sexual discrimination against her daughter by an athletic organization because a provision of the Code expressly excepted that behaviour from the general prohibition against sexual discrimination.  This determination was later relied on by Finlayson J.A., dissenting, in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1989), 62 D.L.R. (4th) 125 (Ont. C.A.), at pp. 147-48, but the majority decided otherwise.

 

    The courts have been unanimous that for a court to be empowered to grant a remedy under s. 24(1)  of the Charter , it must have jurisdiction over the subject matter, the parties and the remedy sought as suggested by Marceau J., although other judges have taken the view (following Re Nash and The Queen (1982), 70 C.C.C. (2d) 490 (Nfld. Prov. Ct.)) that a "tribunal" may be a court of competent jurisdiction within the meaning of that section.  I need not go into the matter at this juncture, but will turn to a consideration of the decisions dealing with s. 52(1)  of the Constitution Act, 1982 .

 

    The predominant position among the courts is that in the exercise of its statutory mandate, a tribunal is empowered to examine and rule upon the constitutional validity of a statute it is called upon to apply.  One of the first of these cases is Re Shewchuk and Ricard; Attorney-General of British Columbia (1986), 28 D.L.R. (4th) 429, before the British Columbia Court of Appeal.  In that case, the complainant, who had given birth to a child out of wedlock, took proceedings before Judge Auxier of the Provincial Court under the province's Child Paternity and Support Act, R.S.B.C. 1979, c. 49, alleging that the respondent was the father.  If paternity was proven, he could be liable to maintain the child until it attained the age of 19.  On a preliminary motion, however, the respondent sought a declaration that the Act was of no force or effect because it infringed s. 15(1)  of the Charter  by discriminating on the basis of sex because a putative father does not have the same remedies available to him under the Act if the mother abandons the child and the father is required to support it.  Auxier, Prov. Ct. J., held that she had jurisdiction to entertain the issue, that the impugned provision violated s. 15(1)  and that it was not saved by s. 1  of the Charter .  The Attorney General then brought an appeal by way of stated case before Locke J. of the Supreme Court of British Columbia who affirmed the decision.  To the question of whether Auxier, Prov. Ct. J., had exceeded her jurisdiction, he replied:  "No, if limited to the particular case at bar, and not treated as a general declaration."  The British Columbia Court of Appeal affirmed the decision.  Dealing with the issue of jurisdiction, Macfarlane J.A., speaking for the court on this point, had this to say, at pp. 439-40:

 

    It is clear that the power to make general declarations that enactments of Parliament or of the Legislature are invalid is a high constitutional power which flows from the inherent jurisdiction of the superior courts.

 

    But it is equally clear that if a person is before a court upon a charge, complaint, or other proceeding properly within the jurisdiction of that court then the court is competent to decide that the law upon which the charge, complaint or proceeding is based is of no force and effect by reason of the provisions of the Canadian Charter of Rights and Freedoms , and to dismiss the charge, complaint or proceeding.  The making of a declaration that the law in question is of no force and effect, in that context, is nothing more than a decision of a legal question properly before the court.  It does not trench upon the exclusive right of the superior courts to grant prerogative relief, including general declarations.

 

    This passage was shortly afterwards cited with approval by Pratte J., speaking for a unanimous Federal Court of Appeal in Zwarich v. Canada (Attorney General), [1987] 3 F.C. 253.  There the applicant had been refused benefit under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, by reason that under s. 44(1) of that Act, a person who had lost his employment by reason of a stoppage of work attributable to a labour dispute was not entitled to receive benefit.  His appeals to a Board of Referees and then to an Umpire were dismissed.  Before the Umpire, his sole ground of appeal, which was also raised before the Board of Referees, was that s. 44(1) violated ss. 7  and 15(1)  of the Charter .  Both the Board and the Umpire refused to pronounce on this issue, the Umpire holding that neither had jurisdiction under s. 24(1)  of the Charter  to determine the issue.  The Court of Appeal, however, disagreed on the jurisdictional issue.  Pratte J. observed that while these bodies do not have the right to pronounce declarations, that being a power reserved to superior courts, like all tribunals they must apply the law.  In doing this, they must determine what the law is, and this implies that they must not only construe the relevant statutes, but consider whether they have been validly enacted.  If they reach the conclusion that the relevant statutory provision violates the Charter , he added, they must decide the case before them as if that provision had never been enacted.

 

    Zwarich v. Canada, supra, preceded Canada v. Vincer, supra, but there can be no doubt that the view adopted by Pratte J. has become accepted by most of the members of the Federal Court of Appeal.  This is evident from the subsequent cases of Canada (Attorney General) v. Druken, [1989] 2 F.C. 24, (Heald, Mahoney and Stone JJ.), and Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), [1989] 2 F.C. 245 (Hugessen, Lacombe and Desjardins JJ.), where differently constituted panels followed the approach in Zwarich v. Canada.  The same is true of provincial courts of appeal; see Moore v. British Columbia (1988), 50 D.L.R. (4th) 29 (B.C.C.A.); Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), supra.

 

    As Pratte J. has noted in Canada (Attorney General) v. Alli (1988), 51 D.L.R. (4th) 555 (F.C.A.), at p. 560, it is difficult to reconcile the remarks he made in Zwarich v. Canada, supra, with what Marceau J. said in Canada v. Vincer, supra.  The two cases, however, may well be reconcilable.  In Zwarich v. Canada, the tribunal was engaged in performing what it was by law empowered to do, i.e., determining the eligibility of the applicant for unemployment insurance benefit.  In doing that, it was entitled not only to construe the relevant legislation but to determine whether that legislation was validly enacted.  Section 52(1)  of the Constitution Act, 1982  provides that any law that is inconsistent with the provisions of the Constitution of Canada ‑- the supreme law of the land ‑- is, to the extent of its inconsistency, of no force or effect.  A tribunal must respect the Constitution so that if it finds invalid a law it is called upon to apply, it is bound to treat it as having no force or effect.

 

    Where, however, a tribunal is asked to determine whether Charter  rights have been infringed or to grant a remedy under s. 24(1) , the situation is different.  A tribunal's power is that conferred by its statutory mandate.  That was the approach taken by Stone J. in Canada v. Vincer, supra. The review committee's mandate, he said, was limited to reviewing the decision that no allowance was payable.  This approach has been followed in numerous other cases; see Gerrard v. Saskatoon (City) (1987), 44 D.L.R. (4th) 767 (Sask. C.A.); Canada (Procureur général) v. Alli, supra; Canada (Attorney General) v. Sirois (1988), 90 N.R. 39 (F.C.A.); Poirier v. Canada (Minister of Veterans Affairs), supra, per Pratte and Desjardins JJ.; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), supra.  In a word, an administrative tribunal is limited to exercising its statutory mandate.  As L'Heureux-Dubé J. put it in Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219, at p. 232:

 

    The Labour Court is an administrative tribunal created by statute.  Its powers are therefore restricted by its enabling Act.  Accordingly, the Court and a judge of that Court must comply strictly with the powers conferred on them by that Act, otherwise want or excess of jurisdiction will result.

 

It follows from this that as McIntyre J. in Mills v. The Queen, supra, stated of a court of competent jurisdiction under s. 24(1) , and as the appellant college argued, the jurisdiction of a statutory tribunal must be found in a statute and must extend not only to the subject matter of the application and the parties, but also to the remedy sought.  In the exercise of that jurisdiction, it can in the exercise of its mandate find a statute invalid under the Charter .

 

    The distinction I have attempted to make between the exercise of the power conferred by s. 24(1)  of the Charter  and the duty of a tribunal to apply the Constitution in the course of performing its statutory mandate has been well expressed in Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), supra.  There the issue was whether a woman who applied for ordinary benefits under the Unemployment Insurance Act, 1971 was entitled to receive them in view of the fact that s. 31 of the Act disentitled her from doing so on the ground that she was over 65.  This, of course, gave rise to whether s. 31 violated s. 15(1)  of the Charter .  Lacombe J., speaking for the court, had this to say, at pp. 254-55:

 

    In the case at bar it is subsection 52(1)  of the Constitution Act, 1982  that is relied on, not subsection 24(1)  of the Charter .  The applicant has not asked the Board of Referees or this Court to find that section 31 of the Unemployment Insurance Act, 1971 should be amended to make it consistent with section 15  of the Charter  or to order a remedy that would require the adoption of appropriate legislative adjustments.

 

    Rather, the only question is whether section 31 of the Act is of no force or effect as a whole because it is inconsistent with section 15  of the Charter .

 

    Similar views were expressed by all three judges of the Ontario Court of Appeal in the Cuddy Chicks case, supra.

 

Application to this Case

 

    I come then to the application of these principles to the present case.  The question here is whether an arbitrator in deciding a grievance under a collective agreement may apply the Charter  and grant the relief sought for its breach.  I have no doubt that he can.  The arbitrator is under s. 98 of the Labour Code, supra, expressly granted authority "to provide a final and conclusive settlement of a dispute arising under a collective agreement" (emphasis added), and it gives a wide range of appropriate remedies for that purpose.  In accomplishing his task, the arbitrator is empowered by s. 98(g) to interpret and apply any Act intended to regulate employment.

 

    It is clear that the arbitrator has jurisdiction over the parties.  The issue to be decided is whether he also has authority over the subject matter and the remedy sought.  Clearly the grievance raised by the association is based not on the terms of the collective agreement alone, but is premised upon the application of s. 15(1)  of the Charter .  In my view, s. 98(g) allows the arbitrator to apply the Charter .  "Act ", as referred to in s. 98(g), must include the Charter .  It is true that a qualifying element in s. 98(g) is that the act in question must be intended to regulate employment relationships, and that this is not the sole purpose of the Charter .  However, it is certainly one type of relationship intended to be covered by s. 15(1) .

 

    I recognize (and I shall have more to say about this later) that applying the Charter  will further complicate the tasks confronting an arbitrator.  Arguments of practicality and convenience, although not determinative of the question, must be taken into account.  The college makes a strong argument that the relatively informal arbitration process is not well suited to the volume or nature of evidence that would be led in Charter  claims.  While I agree that there is some merit to this argument, I cannot accept the college's contention that the interpretation and application of the Charter  is vastly different from the application of ordinary statutes for which arbitrators are responsible.  For example, there is little difference in certain provisions of the Human Rights Codes which arbitrators may hold to override provisions in collective agreements.

 

    This view can be supported by Taylor (David) & Son, Ltd. v. Barnett, [1953] 1 All E.R. 843 (C.A.), where Lord Denning stated, at p. 847:

 

There is not one law for arbitrators and another for the court, but one law for all.  If a contract is illegal, arbitrators must decline to award on it just as the court would do.

 

A fortiori, I think, there cannot be a Constitution for arbitrators and another for the courts.

 

    Early writings on the Charter  expressed a similar view.  Thus Gibson in "Enforcement of the Canadian Charter of Rights and Freedoms ", in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms :  Commentary (1982), at p. 501, states:

 

    It is possible that the Charter  could also be enforced in certain circumstances by arbiters other than "courts" and "tribunals".  Suppose, for example, that an arbitration were held in a dispute between the Government of Canada and one of its employees as to whether the employee should be dismissed for openly supporting a particular political party.  Since the Constitution of Canada, which includes the Charter , is declared by s. 52(1)  to be the "supreme law of Canada", and since arbitrators are normally required to function in accordance with law, it would seem that the hypothetical arbitrator would be obliged to take account of all relevant parts of the Charter  in her or his decision.

 

    Not every court, tribunal or other arbiter would have jurisdiction over every Charter  violation, of course.  It would always be necessary to establish that the situation is within the jurisdiction of the body approached.  At least three types of jurisdictional restrictions are possible, relating to:  (a) the subject matter, (b) the parties, and (c) the remedy.

 

See also Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 693.

 

    In the light of similar considerations, the British Columbia Court of Appeal in Moore v. British Columbia, supra, a case rather akin to the present, arrived at a similar conclusion.  Macfarlane J.A., speaking for the court, concluded at p. 40:

 

An arbitrator, acting pursuant to the terms of the collective agreement, has jurisdiction over the parties, the subject-matter (dismissal), and can provide all of the remedies which it would be appropriate for a court of competent jurisdiction to grant under s. 24(1)  of the Charter .

 

    I agree with that court that s. 98(g) gives an arbitrator the power to grant appropriate remedies in cases like the present.  I should say that I do not read him as necessarily meaning that the arbitrator is a court of competent jurisdiction under s. 24(1) .

 

    The question in the present case is complicated somewhat by the fact that the arbitrator's decision was a "preliminary" one looking only at the question of his jurisdiction and whether the collective agreement or policy of mandatory retirement could be "law" for the purposes of the Charter .  However, it appears that the relief really sought was a remedy under s. 98 for wrongly retiring the grievors, given that the mandatory retirement clause was invalid and could not be relied upon.

 

    It is true that art. 15.03 of the collective agreement provides that the arbitrator has no jurisdiction to amend, alter, add to or delete from any of its provisions.  However, this must be viewed in light of the fact that s. 98(g) allows a statutory provision to override a clause in the collective agreement.  Surely, the arbitrator when confronted with an "offensive" term in a collective agreement can hold it inapplicable.  Even if the association also wanted reinstatement of their instructors, this remedy is within the arbitrators' powers under s. 98(b).  If the retirement clause is held to be of no force or effect, then any dismissal would have been contrary to the collective agreement.

 

    I, therefore, conclude that the arbitrator has jurisdiction over the remedy or order sought in this case, as well as over the parties and the subject matter.

 

Practical Considerations

 

    I realize that the application of constitutional norms by administrative tribunals might until recent years have been considered rather unusual; see Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 (1980), 117 D.L.R. (3d) 400 (Ont. Div. Ct.), per Reid J., at p. 403.  But that case and others exemplify that it is not entirely new.  Tribunals, and in particular labour relations boards, have for some time now been held to be competent to consider constitutional questions; see R. v. Ontario Labour Relations Board, Ex parte Dunn (1963), 39 D.L.R. (2d) 346 (Ont. H.C.); Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Canada Labour Relations Board v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147.  These cases, as Finlayson J.A. noted in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), supra, at p. 142, were confined to determining the jurisdiction of the tribunals.  As regards other questions, as Desjardins J. observed in Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), supra, at p. 278, the parties would rely on prerogative writs or other similar remedies.  But if these tribunals may determine these issues for purposes of jurisdiction, I fail to see why it would be offensive to the judicature provisions of the Constitution Act, 1867 , and in particular s. 96 , for a tribunal to consider other constitutional questions arising in the course of exercising its mandate.  The issue before it in such a case is the relatively modest one assigned to it under its statutory mandate.  As Desjardins J. noted in Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), supra, at p. 279, it would be anomalous if tribunals responsible for interpreting the law on the issue were unable to deal with the issue in its entirety, subject to judicial review.  I agree with the view taken in the cases previously cited that this is a totally different function from a formal declaration of invalidity, a matter falling solely within the jurisdiction of a federal court.

 

    That the practice is now developing of placing before a tribunal a constitutional issue rather than seeking judicial review initially seems natural enough in today's context.  As Desjardins J. further observes (at p. 278), the Charter  adds a new dimension to the Canadian legal system by according rights to individuals against legislative enactments that did not exist before.  Under these circumstances, she notes, at p. 279:  "It should not be a matter for surprise that individuals claiming to have such rights assert them before agencies created to provide a speedy determination of their rights in relation to governmental authority."

 

    The decisions of this Court in Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, Canada Labour Relations Board v. Paul L'Anglais Inc., supra, and Northern Telecom Canada Ltd. v. Communication Workers of Canada, supra, have approved the exercise of constitutional decision-making by tribunals in the exercise of their mandate.  In the latter case, Estey J. wrote, at pp. 741-42:

 

    It is inherent in a federal system such as that established under the Constitution Act, that the courts will be the authority in the community to control the limits of the respective sovereignties of the two plenary governments, as well as to police agencies within each of these spheres to ensure their operations remain within their statutory boundaries.  Both duties of course fall upon the courts when acting within their own proper jurisdiction.  The Jabour case, supra, was concerned with the superior courts of general jurisdiction in the provinces, but the same principles apply to courts of subordinate jurisdiction when they are acting within their limited jurisdiction as described by their constituting statute.  Such courts must, in the application of the laws of the land whether they be federal or provincial statutes, determine, where the issue arises, the constitutional integrity of the measure in question.  Such a court of limited jurisdiction must, of course, be responding to a cause properly before it under its statute.

 

    Nor do I accept that there is anything in the separation of powers between legislative, executive and judicial functions to prevent a tribunal from exercising jurisdiction in this way.  While in broad terms, such a separation of powers does exist (see Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 469-70), it is not under our system of government rigidly defined.  Dickson J. (as he then was) thus put it in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728:

 

    As Professor Hogg has noted in his work on Constitutional Law of Canada (1977), p. 129, there is no general "separation of powers" in the British North America Act, 1867.  Our Constitution does not separate the legislative, executive, and judicial functions and insist that each branch of government exercise only its own function.  Thus it is clear that the Legislature of Ontario may confer non-judicial functions on the courts of Ontario and, subject to s. 96 of the B.N.A. Act, which lies at the heart of the present appeal, confer judicial functions on a body which is not a court.

 

On this matter, I agree with the following statement by Professor Pépin in "La compétence des tribunaux administratifs de décider de la constitutionnalité d'une loi, notamment de sa compatibilité avec la Charte canadienne des droits et libertés " (Ottawa 1989), Barreau canadien ‑- Programme national de F.J.P. 71:

 

[TRANSLATION]  At most, the theory of separation of powers reminds us that important judicial functions should not lightly be delegated to administrative agencies, especially where they are not adequately organized.

 

    I am aware that there are important practical considerations involved in allowing or not allowing administrative tribunals to determine constitutional questions.  The advantages and disadvantages of doing so have already given rise to a substantial academic debate; see Pépin, supra; Gosselin, "L'alchimie des Chartes vue de l'intérieur du tribunal administratif:  le retour au Cheval de Troie?" (1989), Les Tribunaux administratifs à la lumière des chartes, Barreau du Québec; Côté, "La recevabilité des arguments fondés sur les chartes des droits devant les tribunaux administratifs" (1989), 49 R. du B. 455; Pinard, "Le pouvoir des tribunaux administratifs québecois de refuser de donner effet à des textes qu'ils jugent inconstitutionnels" (1987), R.D. McGill 170; Evans, "Administrative Tribunals and Charter  Challenges" (1988), 2 C.J.A.L.P. 13; Murray, "Labour Arbitration and the Charter ", Labour Law, New Swords and New Shields:  The Year in Review in Labour Law (Canadian Bar Association ‑- Annual Institute on Continuing Legal Education) (1987); Kuttner, "Constitution as Covenant:  Labour Law, Labour Boards and the Courts from the Old to the New Dispensation", in Labour Law Under the Charter (1988);  Les tribunaux administratifs (Rapport Ouellette 1987); Review of Ontario's Regulatory Agencies (Macauley Report 1989).

 

    Among the disadvantages identified by these authors are that it would go against the raison d'être of administrative tribunals ‑- specialization, simple rules of evidence and procedure, speedy decisions.  Again, tribunals are not all of the same calibre.  They are not necessarily manned by lawyers, and do not have the guarantee of independence of courts.  Moreover, the type of evidence required for the resolution of Charter  issues may not be available to the parties, so the record will be deficient not only before the arbitrator or other tribunal but ultimately before a court on judicial review.  Before the courts, a provision exists to obtain the participation of the Attorney General of the province, a participation which, as Finlayson J.A. observed in Cuddy Chicks Ltd. v. Ontario (Laour Relations Board), supra, at p. 145, may be seen as inappropriate in the case of government tribunals.  Professor Pépin, supra, at pp. 15-16, sets forth many of these difficulties in the following passage:

 

    [TRANSLATION]  In my view, administrative tribunals were not created to rule on the constitutionality of legislation . . .  Giving such responsibility to these tribunals is contrary to their purpose, namely specialization of functions, simplicity and originality in rules of procedure and of evidence, speed in decision-making and  the presence of non-lawyers among decision-makers; doing so emphasizes their judicial "aspect"; it exacerbates problems relating to certain guarantees of independence which there is increasingly a tendency to require of their members; it multiplies the occasions for judicial review of the decisions of such agencies, at a time when the superior courts are beginning to allow them some measure of autonomy in their home territory.

 

    Administrative tribunals are not a suitable forum to debate what is reasonable in a free and democratic society or to decide on the constitutionality of the statutes to which they owe their existence and powers.

 

    Those who object to tribunals deciding constitutional issues also point to the American position where the supremacy clause of the United States Constitution, art. VI, bears considerable similarity to s. 52(1)  of the Constitution Act, 1982 .  In that country, the rule, at least at the federal level, is that administrative agencies may not determine constitutional questions; see Davis, Administrative Law Treatise, 2nd ed., vol. 4, pp. 434-35.  But that approach appears to be called for in the United States by reason of the rigid separation of powers; see Corpus Juris Secundum (1983), vol. 73, at pp. 535-36.  Such a doctrine, I noted earlier, finds no place in the Canadian constitutional structure.  What is more the decision of the Supreme Court of California in Southern Pacific Transportation Co. v. Public Utilities Commission, 18 Cal.3d 308 (1976), has invited a general reappraisal of the doctrine; see Note, "The Authority of Administrative Agencies to Consider the Constitutionality of Statutes" (1976-77), 90 Harv. L. Rev. 1682.  For these reasons, I think we should be wary of following the American approach in this area.

    Nor do I think the practical considerations mentioned above, though not without weight, should dissuade this Court from adopting what has now become the clearly dominant view in the courts of this country.  For if there are disadvantages to allowing arbitrators or other administrative tribunals to determine constitutional issues arising in the course of exercising their mandates, there are clear advantages as well.  First and foremost, of course, is that the Constitution must be respected.  The citizen, when appearing before decision-making bodies set up to determine his or her rights and duties, should be entitled to assert the rights and freedoms guaranteed by the Constitution.  Professor Côté, supra, thus puts the issue, at p. 462:

 

[TRANSLATION]  . . . despite the real disadvantages which this entails, the opportunity for the litigants to assert their constitutional rights before administrative tribunals must be recognized.

 

    If it were ultimately held that administrative tribunals must apply legislation inconsistent with the Charter , this would deal a heavy blow to the authority of the Constitution, since it would in practice mean that statutes would take precedence over the Charter  before such agencies of the executive.  The "government" would be subject to the Charter  except when it took the particular form of  an administrative tribunal.  The latter would thus, in the name of effectiveness and specialization  of function, enjoy a special status within the structure of government.

 

    There are clear advantages to presenting these issues to the tribunal.  The issue may be raised at an early stage in the context in which it arises without the citizen having first to resort to another body, a court which will often be more expensive and time-consuming.  And while as Marceau J. has pointed out in Poirier v. Canada (Minister of Veterans Affairs), supra, at p. 247, the citizen may in some cases find it necessary to follow that course, the truth is that the decisions taken at that level often go unchallenged; see Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), supra, at p. 132, per Grange J.A.  I do not think a person should be compelled to have such issues resolved on a more elevated plane.

 

    There are, as well, clear advantages for the decision-making process in allowing the simple speedy, and inexpensive processes of arbitration and administrative agencies to sift the facts and compile a record for the benefit of a reviewing court.  It is important, in this as in other issues, to have the advantage of the expertise of the arbitrator or agency.  That specialized competence can be of invaluable assistance in constitutional interpretation.  Professor Pinard, supra, at pp. 173-74, has drawn attention to this factor in the following passage:

 

[TRANSLATION]  . . . administrative tribunals have the skills, expertise and knowledge in a particular area which can with advantage be used to ensure the primacy of the Constitution.  Their privileged situation as regards the appreciation of the relevant facts enables them to develop a functional approach to rights and freedoms as well as to general constitutional precepts.

 

The Harvard Law Review Note previously referred to elaborates upon this (at pp. 1694-97).  The study notes, for example, that in the case of statutes capable of alternative interpretations, some of which raise and some which do not raise constitutional problems, it is extremely important that judicial appraisal of the various possibilities not be conducted in a vacuum.  The informed view of the tribunal is invaluable here.  And, from the standpoint of agency processes themselves, I think it important that those called upon to make governmental decisions focus on the values enshrined in the Charter .  I should add that constitutional determinations by arbitrators or other administrative tribunals or agencies should, of course, receive no curial deference; see Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), supra, at p. 31, per Grange J.A.  They are not there acting within the limits of their expertise.

 

    Since the arbitrator here could pursuant to its mandate enter into a consideration of the validity of article 4.04 of the collective agreement, I agree with the Court of Appeal that it becomes quite unnecessary to consider whether the arbitrator was a "court of competent jurisdiction" within the meaning of s. 24(1) , and I do not, therefore, propose to enter into the question further.

 

Disposition

 

    I note again that the tribunal did not deal with the issues whether the breach of s. 15  was justified under s. 1  of the Charter  or whether the association having agreed to the collective agreement, it or its members should be estopped or deemed to have waived its constitutional rights, and accordingly the Court of Appeal and this Court were not called upon to consider them either.  These matters were left to be dealt with in the second phase of the arbitral hearings.

 

    For the above reasons, I would dismiss the appeal with costs.  I would answer the constitutional questions as follows:

 

1.Does the Canadian Charter of Rights and Freedoms  apply to the negotiation and administration of the retirement provision in the collective agreement between the appellant and the respondent?

 

Yes.

 

2.Is such provision or its application "law" as that term is used in s. 15(1)  of the Charter ?

 

Yes.

 

3.Is an arbitration board appointed by the parties under the collective agreement to resolve a grievance disputing the constitutionality of such provision a court of competent jurisdiction under s. 24(1)  of the Charter ?

 

It is not necessary to answer this question.

 

4.Does an arbitration board have jurisdiction to hear and determine such a grievance?

 

Yes, in the course of exercising its mandate.

 

//Wilson J.//

 

    The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by

 

    WILSON J. -- I have had the benefit of the reasons of my colleague La Forest J. and I agree with him that an Arbitration Board appointed by the parties under the Labour Code, R.S.B.C. 1979, c. 212 (now the Industrial Relations Act) has jurisdiction pursuant to s. 52(1)  of the Constitution Act, 1982  to determine the constitutional issue raised by the grievance and that it is therefore unnecessary to determine whether the Board is a "court of competent jurisdiction" within the meaning of s. 24(1)  of the Canadian  Charter of Rights and Freedoms .  I would, however, prefer to leave open the question whether a tribunal may have such jurisdiction even in the absence of specific provisions in the governing legislation and in the collective agreement such as those heavily relied on by my colleague.  I also agree with my colleague that the Charter  applies to Douglas College and that s. 15  applies to the impugned article in the collective agreement.  However, since my resolution of these last two issues rests upon different considerations, I wish to comment briefly on them.

 

    Before doing so, I emphasize that although this appeal was heard along with several others involving the constitutionality of the practice of mandatory retirement, this case neither raises the issue of whether the impugned article of the collective agreement (Article 4.04) violates s. 15  of the Charter  nor whether that violation is reasonable and demonstrably justifiable under s. 1 .  As noted by my colleague La Forest J. this case has come on for hearing at the behest of the parties only with respect to a number of preliminary findings made by the arbitrator.  Accordingly, these reasons do not deal with the constitutionality of Article 4.04 of the collective agreement.

 

I.  Does the Charter  Apply to Douglas College?

 

    In McKinney v. University of Guelph, [1990] 3 S.C.R. 000,  I identified the criteria I thought were relevant in determining whether an entity is subject to the Charter  under s. 32 .  I indicated at p. 000 that:

 

. . . I would favour an approach that asks the following questions about entities that are not self‑evidently part of the legislative, executive or administrative branches of government:

 

1.Does the legislative, executive or administrative branch of government exercise general control over the entity in question?

 

2.Does the entity perform a traditional government function or a function which in more modern times is recognized as a responsibility of the state?

 

3.Is the entity one that acts pursuant to statutory authority specifically granted to it to enable it to further an objective that government seeks to promote in the broader public interest?

 

    In my opinion, application of this three part test leads to the conclusion that the Charter  applies to Douglas College.

 

1.  The Control Test

 

    A review of the various connections between the Province and Douglas College leads me to conclude that the provincial government exercises a substantial amount of control over the appellant.  The government exercises control over the College in three distinct areas:  (1) governing structure; (2) policy; and (3) funding.

 

    Dealing first with control over the governing structure of the appellant, the College was incorporated through an Act  of the British Columbia legislature, the College and Institute Act, R.S.B.C. 1979, c. 53.  Section 53 provides that the College is an agent of the Crown and that its powers may be exercised only as an agent of the Crown.  As such, the College enjoys special government‑like powers.  Section 17 provides that College property is protected from expropriation and s. 61 exempts the College from taxation.  This enabling statute also sets out in detail the powers, functions, privileges and governing structure of the College.

 

    Under Part 4 the Act  establishes a governing body known as the "Board" which effectively has the power to "run" the institution.  Under s. 12 it is vested with the authority to "manage, administer and direct the affairs of the institution" including its financial affairs.  To these ends the Board is empowered to pass by‑laws.

 

    The composition of the Board is dictated by the Lieutenant Governor in Council.  Section 6  of the Act  provides that the Board shall consist of five members, all of whom are appointed by the Lieutenant Governor.  Thus, unlike McKinney, in this case the governing body at issue is composed entirely of government appointees.

 

    With respect to College policy, I believe that the province exercises substantial control in this area.  Section 7  of the Act  provides:

 

7.  The objects of a college are to provide comprehensive

 

(a)courses of study equivalent to those given by a university at the first and second year post secondary level;

 

(b)post secondary education or training; and

 

(c)continuing education.

 

    Part 2 of the Act  sets out the powers and duties of the Minister.  Under s. 2(1) the Minister is obliged to establish in consultation with the Board policy or directives for post secondary education and training in the Province.  The Minister is also obliged to provide services he considers necessary to the College (and in fact may require the College to use these services), to file an annual report with the Legislature respecting the state of post secondary education in the Province, and to coordinate continuing education programs.  Under s. 2(2) the Minister may designate which functions, technical, vocational, artistic, educational or otherwise, a provincial institute shall perform.  In addition, under s. 3 the Minister has the discretion to establish educational, training, administrative and other standards for the Act , to require an institution to issue a diploma or certificate to a student, to monitor the provision of post secondary education by a college whether or not it is receiving financial support from government, and to establish accreditation methods.  The Minister may also require the College to provide information and proposals in satisfactory form, to develop or provide a service to another institution, to avoid duplication of programs, to establish articulation committees (and may require the college to participate in one) and to accept equivalent credits from other institutions.

 

    The evidence discloses that the Minister has in the past acted upon his authority to mold College policy.  Specifically, the respondent points to two incidents which it says demonstrate unequivocally the extraordinary powers of the Minister over the College.  In 1980 the Minister determined that the College be divided into two separate institutions, Douglas College and Kwantlen College.  There is no indication that the Board participated in this decision to split the College.  In 1985 the Minister informed the College by letter of his intention to transfer the Psychiatric Nursing Program to Douglas College from the British Columbia Institute of Technology, another post secondary institution in the province. Neither institution had any effective control over the transfer of this program and in the end 19 psychiatric nursing instructors were relocated.

 

    The Minister also effectively controls the activities of the Board.  Board bylaws must be accompanied by a statement of the Board specifying the measures it has taken to ascertain the opinion of students and professional employees of the College.  Under s. 12(1)(c) these bylaws passed by the Board for the orderly conduct of its affairs do not come into force until approved in writing by the Minister.

 

    Finally, with respect to the issue of funding, the evidence discloses that the government funds approximately 83 per cent of the operating costs of the College.  This economic assistance has gone hand in hand with government insistence upon financial accountability.  Several provisions of the College and Institute Act deal with financing, investing, budgeting, auditing and borrowing by the College.  The College is prohibited from expending funds beyond the amount granted by the government unless the Minister of Finance and the Minister of Education first approve the expenditure (s. 20).  As well, the College has been treated as a government body under the Financial Administration Act, S.B.C. 1981, c. 15, a government sponsored corporation under the Financial Information Act, R.S.B.C. 1979, c. 131 (rep. & sub. by S.B.C. 1985, c. 8), and a public sector employer under the Compensation Stabilization Act, S.B.C. 1982, c. 32 (rep. by s. 69 of the Industrial Relations Reform Act, 1987, S.B.C. 1987, c. 24).

 

    With respect to the level of control exercised by government over the College, I believe that the indicia of control which I have identified support the conclusion that the Province exercises substantial control over the appellant.  My colleague La Forest J. has also found that the College is not an autonomous body but rather is part of the "apparatus of government".  In light of this he did not consider it necessary that the Province exercise direct control over the implementation of Article 4.04 of the collective agreement in order that the Charter  apply.  I agree with his findings in that regard.

 

2.  The Government Function Test

 

    This appeal resembles McKinney in that it is very much concerned with the role of government in the provision of education.  In McKinney, I examined the history of government's involvement in the educational area broadly construed and concluded that the provision of education is a government function.  Those comments apply with equal force to this appeal.

 

    I wish to add, however, that community colleges unlike universities did not lose a historic independence when government decided to intervene.  Community colleges have always been creatures of government.  As Harris points out in A History of Higher Education in Canada 1663‑1960 (Toronto 1976), at pp. 371‑72, community colleges came into being in Canada at the impetus of government.  The historical origins of Canadian community colleges can be traced back to 1910.  In that year the federal government appointed a Royal Commission on Industrial Training and Technical Education which recommended that three million dollars be assigned annually to the provinces for the development of vocational education.  Implementation of this recommendation was delayed due to the outbreak of the First World War.  In 1919, however, the federal government passed The Technical Education Act, S.C. 1919, c. 73 giving effect to the proposals of the Royal Commission.  Most provinces established vocational programs within the secondary school system with the money they received.  It was not until later that separate institutions now known as community colleges came into being.

 

    I conclude that the provision of education, including education at the community college level, is a function of modern government.

 

3.  Statutory Authority and the Public Interest Test

 

    It has already been established that the College is an agent of the Crown and is empowered to conduct its affairs through its enabling statute.  It has also been shown that the provision of technical education at the community college level is a matter for which the government has assumed responsibility.  Government involvement in this area is easily justified.  In brief, the availability of adequately trained technical support staff is essential to the successful growth and expansion of the economy.  Technological advancement is thwarted without a sophisticated labour force ready to work in these fields.  It has thus been in the public interest that educational services be provided in technical areas.

 

    The fact that the College is a Crown agent established, funded and heavily controlled by government, together with the fact that the College is discharging a government function in the public interest, leads me to conclude that the College is part of government for the purposes of s. 32  of the Charter .

 

II.Is Article 4.04 of the Collective Agreement "Law" Within the Meaning of s. 15(1)  of the Charter ?

 

    Having found that acts of the College constitute government action for purposes of s. 32 , does s. 15(1)  apply to the collective agreement and in particular to Article 4.04?

 

    The Court of Appeal noted that the word "law" appears not only in s. 15  but also in s. 1  of the Charter  and s. 52  of the Constitution Act, 1982 .  Relying upon a rule of statutory construction, the court determined that the word "law" should be given the same meaning throughout the Charter  and therefore turned to the jurisprudence of this Court dealing with ss. 1  and 52 .  It concluded that "law" means a rule or system of rules formulated by government and imposed upon the whole or a segment of society.

 

    I must respectfully disagree with the approach of the Court of Appeal.  In McKinney, I noted that this Court is not bound by the ordinary rules of statutory construction in interpreting the provisions of the Charter .  This has been made clear by the judgment of this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, where it was held that the proper approach to interpretation of the Charter  is a purposive one.  I indicated that a purposive approach to the various sections in the Charter  in which the word "law" appears may lead to different interpretations of the word "law" in the context of those provisions.  With respect to ss. 52  and 1  I noted at p. 000 that:

 

Section 52  is animated by the doctrine of constitutional supremacy.  As such, a wide view of "law" under that provision is mandated so that all exercises of state power, whether legislative or administrative, are caught by the Charter .  Section 1 , on the other hand, serves the purpose of permitting limits to be imposed on constitutional rights when the demands of a free and democratic society require them.  These limits must, however, be expressed through the rule of law.  The definition of law for such purposes must necessarily be narrow.  Only those limits on guaranteed rights which have survived the rigours of the law‑making process are effective.

 

    Adopting the same purposive approach to the word "law" in s. 15(1) , I stated at p. 000 that:

 

    It is, I think, now clearly established that what lies at the heart of s. 15(1)  is the promise of equality in the sense of freedom from the burdens of stereotype and prejudice in all their subtle and ugly manifestations.  However, the nature of discrimination is such that attitudes rather than laws or rules may be the source of the discrimination . . . .

 

Given that discrimination is frequently perpetuated, unwittingly or not, through rather informal practices, it would be altogether inconceivable that they should be treated as insufficient to trigger the application of s. 15 .

 

    In my opinion, therefore, it is not necessary that a "law" be identified in order to bring s. 15(1)  into play.  In McKinney I said at p. 000:

 

    I believe, however, that on a purposive interpretation of s. 15  the guarantee of equality before and under the law and equal protection and benefit of the law also constitutes a directive to the courts to see that discrimination engaged in by anyone to whom the Charter  applies is redressed whether it takes the form of legislative activity, common law principles or simply conduct.  In other words, s. 15  is, in effect, declaratory of the rights of all to equality under the justice system so that, if an individual's guarantee of equality is not respected by those to whom the Charter  applies, the courts must redress that inequality.  [Emphasis added.]

 

Since I have found that the Charter  applies to Douglas College as a government entity, it follows that its actions are subject to review by the courts under s. 15 .

 

    It is not necessary, however, that a definitive conclusion be reached on this issue for two reasons.  As I stated in McKinney at p. 000:

 

I would agree with La Forest J. that if you have to find a "law" under s. 15  before the section is triggered, then "law" should be given a very liberal interpretation and should not be confined to legislative activity.  It should also cover policies and practices even if adopted consensually.

 

    In this case, La Forest J. has adopted such a generous interpretation of the word "law".  In his view, the collective agreement should be construed as "law" because to do otherwise would permit government to avoid its obligations under the Charter  through the use of contracts.  I agree with him that to sanction such practices by placing them beyond the purview of s. 15  would be intolerable and that therefore the fact that a Charter  violation is contained within a collective agreement cannot insulate it from review by this Court.  If there must be a "law" involved before s. 15  is triggered, that law is found in the collective agreement and in particular Article 4.04 .

 

    Alternatively, another such "law" may be found in the College's enabling statute which contains a provision specifically conferring power on the Board to terminate contracts of employment.  Section 29(1) of the College and Institute Act provides:

 

    29.  (1)  The board or, if authorized by it, the principal or a person he designates, may, under the bylaws of the institution, appoint employees it considers necessary to carry on the business and operations of the institution and may define their duties and tenure, determine their remuneration and provide an organization to carry out the purposes of the institution.

 

    Accordingly, the alleged denial of equality was effected by "law" or by conduct entitled to be redressed by law and the first requirement of s. 15(1)  is met.  I note that the question whether Article 4.04 (either standing alone, if severable, or in conjunction with other provisions of the collective agreement) is discriminatory within the meaning of s. 15(1)  has not been addressed by the parties, the arbitrator or the courts below.  Accordingly, like my colleague La Forest J., I express no opinion on that issue.

 

III.  Disposition

 

    I would dismiss the appeal with costs and answer the constitutional questions as follows:

 

1.Does the Canadian Charter of Rights and Freedoms  apply to the negotiation and administration of the retirement provision in the collective agreement between the appellant and the respondent?

 

Yes.

 

2.Is such a provision or its application "law" as that term is used in s. 15(1)  of the Charter ?

 

Yes, if it is necessary to find a "law" under s. 15(1) .

 

3.Is an arbitration board appointed by the parties under the collective agreement to resolve a grievance disputing the constitutionality of such provision a court of competent jurisdiction under s. 24(1)  of the Charter ?

 

It is not necessary to answer this question.

 

4.Does an arbitration board have the jurisdiction to hear and determine such a grievance?

 

Yes, in the course of exercising its mandate.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    SOPINKA J. -- I have had the advantage of reading the reasons of my colleagues Justices La Forest and Wilson and, for the reasons expressed in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, I am in agreement with the position taken by my colleague La Forest J. except with respect to his finding that the collective agreement in this case is "law" under s. 15  of the Canadian Charter of Rights and Freedoms .

 

    Both La Forest and Wilson JJ. are of the view that the mandatory retirement provisions in the collective agreement qualify as "law" under s. 15  of the Charter  notwithstanding that such "policies" may be the product of fair negotiations reflecting the desired objectives of both parties.  I respectfully disagree that the consensual nature of the policies in question may be so discarded in the examination as to whether they constitute "law".  In this regard, I share the misgivings of my colleague Justice Cory, as expressed in McKinney, with the proposition that an individual cannot, under any circumstances, contract out of the rights of equality in matters pertaining to age.

 

    While I do not dispute that "law" is not confined merely to legislative activity, I am of the view that an element of coercion must be present even in government "activity" or "program" for such to be reasonably characterized as law.  This element of imposition or prescription by the state distinguishes law from voluntarily-assumed rights and obligations.  In this respect, I would uphold the view expressed by the Divisional Court of Ontario in Re Ontario English Catholic Teachers Association and Essex County Roman Catholic School Board (1987), 58 O.R. (2d) 545, of "law" in the sense of a rule of conduct made binding upon a subject by the state.

 

    My colleague Wilson J. has pointed out that the nature of discrimination is such that attitudes rather than laws or rules may be the source of discrimination.  I agree with this general proposition, and it is for this reason that human rights legislation generally proscribes all conduct which is discriminatory on a prohibited ground.  With this example before them, the framers of the Charter  chose to limit the Charter 's application to conduct that qualifies as law.  While this term is to be given a large and generous construction, I do not think that it can be ignored.  In my opinion, it was not intended to apply to purely consensual conduct.  The Charter  was intended to protect the individual from the coercive power of the state and not against the individual's own voluntary conduct in dealing with state entities.

 

    Save as to the answer to the question numbered 2, I would dispose of the appeal and answer the constitutional questions as proposed by La Forest J.

 

//Cory J.//

 

    The following are the reasons delivered by

 

    CORY J. -- I am in agreement with the reasons of Justice Wilson with regard to the application of the test she formulated in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, to the situation presented in this appeal.  That test provides a means for determining whether an entity is a part of government to which the Charter  applies.

 

    In all other respects, I am in complete agreement with the reasons of Justice La Forest.

 

    Appeal dismissed with costs.

 

    Solicitors for the appellant:  Schiller, Coutts & Weiler, Vancouver.

 

    Solicitors for the respondent:  McGrady & Co., Vancouver.

 

    Solicitor for the intervener the Attorney General of Canada:  The Attorney General of Canada, Ottawa.

 

    Solicitor for the intervener the Attorney General for Saskatchewan:  Brian Barrington‑Foote, Regina.