McKinney v. University of Guelph, [1990] 3 S.C.R.
229
David Walter McKinney, Jr. Appellant
v.
Board of Governors of the University
of Guelph
and the Attorney
General for Ontario Respondents
and between
Horacio Roque-Nunez Appellant
v.
Board of Governors of Laurentian
University
and the Attorney
General for Ontario Respondents
and between
Syed Ziauddin Appellant
v.
Board of Governors of Laurentian
University
and the Attorney
General for Ontario Respondents
and between
John A. Buttrick Appellant
v.
Board of Governors of York University
and the Attorney
General for Ontario Respondents
and between
Bernard Blishen Appellant
v.
Board of Governors of York University
and the Attorney
General for Ontario Respondents
and between
Tillo E. Kuhn Appellant
v.
Board of Governors of York University
and the Attorney
General for Ontario Respondents
and between
Hollis Rinehart, on his own behalf and
on behalf of all other members of the
York University
Faculty Association
Appellants
v.
Board of Governors of York University
and the Attorney
General for Ontario Respondents
and between
Ritvars Bregzis Appellant
v.
Governing Council of the University of
Toronto
and the Attorney
General for Ontario Respondents
and between
Norman Zacour Appellant
v.
Governing Council of the University of
Toronto
and the Attorney
General for Ontario Respondents
and
The Attorney General of Canada,
the Attorney General of Nova Scotia
and
the Attorney General for SaskatchewanInterveners
indexed as: mckinney v. university of guelph
File No.: 20747.
1989: May 16, 17; 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
ontario
Constitutional
law ‑‑ Charter of Rights ‑‑ Applicability of Charter ‑‑
Government ‑‑ Whether or not university "government" so
as to attract Charter review of policies ‑‑ If so, whether or not
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 or not mandatory
retirement policy "law" ‑‑ If so, whether or not s. 15(1)
of the Charter infringed ‑‑ Canadian Charter of Rights and
Freedoms, ss. 15 , 32 .
Consitutional
law -- Civil rights -- Age discrimination -- Protection against age
discrimination in employment not extending to those over 65 -- Whether
provision infringing s. 15 of the Charter -- If so, whether justified under s.
1 -- Canadian Charter of Rights and Freedoms, ss. 1 , 15 -- Human Rights Code,
1981, S.O. 1981, c. 53, s. 9(a).
The appellants, eight professors
and a librarian at the respondent universities, applied for declarations that
the universities' policies of the mandatory retirement at age 65 violate
s. 15 of the Canadian Charter of Rights and Freedoms and that s. 9(a) of the Human Rights
Code, 1981, by not
treating persons who attain the age of 65 equally with others, also violates
s. 15 . They also requested an interlocutory and permanent injunction and
sought reinstatement and damages. The mandatory retirement policies had been
established through various combinations of resolutions of the board, by-laws,
pension plan provisions and collective agreements, depending on the university.
Several of the appellants filed
complaints with the Ontario Human Rights Commission but the Commission refused
to deal with the complaints because its jurisdiction was confined with respect
to employment to persons between eighteen and sixty-five. It advised the
appellants that it would review its position when their application concerning
the constitutional validity of s. 9(a) was decided.
The High Court dismissed
appellants' application and a majority of the Court of Appeal upheld that
decision. Five constitutional questions were stated for consideration by this
Court: (1) whether s. 9(a) of the Human Rights
Code, 1981 violated
the rights guaranteed by s. 15(1) of the Charter ; (2) if so, whether it was justified
by s. 1 of the Charter ; (3) whether the Charter applies to the mandatory retirement provisions of the respondent
universities; (4) if applicable, whether their respective mandatory retirement
provisions infringe s. 15(1) ; and finally, (5) if s. 15(1) is
infringed, whether the respective mandatory retirement provisions are
demonstrably justified by s. 1 .
The Attorneys General of Canada,
Nova Scotia and Saskatchewan intervened.
Held (Wilson and L'Heureux-Dubé JJ.
dissenting): The appeal should be dismissed.
Per Dickson C.J. and La Forest and
Gonthier JJ.: The wording of s. 32(1) of the Charter indicates that the
Charter is confined
to government action. It is essentially an instrument for checking the powers
of government over the individual. The exclusion of private activity from
Charter protection
was deliberate. To open up all private and public action to judicial review
could strangle the operation of society and impose an impossible burden on the
courts. Only government need be constitutionally shackled to preserve the
rights of the individual. Private activity, while it might offend individual
rights, can either be regulated by government or made subject to human rights
commissions and other bodies created to protect these rights. This Court, in
limiting the Charter 's application to Parliament and the legislatures and the executive and
administrative branches of government in RWDSU v.
Dolphin Delivery Ltd.,
[1986] 2 S.C.R. 573, relied not only on the general meaning of government but
also on the way in which the words were used in the Constitution
Act, 1867 .
The fact that an entity is a
creature of statute and has been given the legal attributes of a natural person
is not sufficient to make its actions subject to the Charter . The Charter was not intended to cover activities
by non-governmental entities created by government for legally facilitating
private individuals to do things of their own choosing.
While universities are statutory
bodies performing a public service and may be subjected to the judicial review
of certain decisions, this does not in itself make them part of government
within the meaning of s. 32 . The basis of the exercise of supervisory
jurisdiction by the courts is not that the universities are government, but
that they are public decision makers.
The fact that a university
performs a public service does not make it part of government. A public
purpose test is simply inadequate. It is fraught with difficulty and
uncertainty and is not mandated by s. 32 . Although the
Charter is not
limited to entities discharging inherently governmental functions, more would
have to be shown to make them subject to Charter review than that they engaged in
activities or the provision of services that are subject to the legislative
jurisdiction of either the federal or provincial governments.
The universities are legally
autonomous. They are not organs of government even though their scope of
action is limited either by regulation or because of their dependence on
government funds. Each has its own governing body, manages its own affairs,
allocates its funds and pursues its own goals within the legislated limitations
of its incorporation. Each is its own master with respect to the employment of
professors. The government has no legal power to control them. Their legal
autonomy is fully buttressed by their traditional position in society. Any
attempt by government to influence university decisions, especially decisions
regarding appointment, tenure and dismissal of academic staff, would be
strenuously resisted by the universities on the basis that this could lead to
breaches of academic freedom.
The actions of universities do not
fall within the ambit of the Charter because they do not form part of the government apparatus. The
universities were not implementing government policy in establishing mandatory
retirement. If, however, universities formed part of the
"government" apparatus within the meaning of s. 32(1) of the
Charter , their
policies on mandatory retirement would violate s. 15 of the
Charter .
For section 15 of the
Charter to come into
operation, the alleged inequality must be one made by "law". Had the
universities formed part of the fabric of government, their policies on
mandatory retirement would have amounted to a law for the purposes of
s. 15 of the Charter . Indeed, in most of the universities, these policies were adopted by
the universities in a formal manner. The fact that they were accepted by the
employees should not alter their characterization as law, although this would
be a factor to be considered in deciding whether under the circumstances the
infringement constituted a reasonable limit under s. 1 of the Charter .
Acceptance of a contractual
obligation might well, in some circumstances, constitute a waiver of a
Charter right
especially in a case like mandatory retirement, which not only imposes burdens
but also confers benefits on employees. On the whole, though, such an
arrangement would usually require justification as a reasonable limit under
s. 1 especially where a collective agreement may not really find favour
with individual employees subject to discrimination.
On the assumption that these
policies are law, they are discriminatory within the meaning of s. 15(1)
of the Charter , given Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, since the
distinction is based on the enumerated personal characteristic of age. The
Charter protects not
only from direct or intentional discrimination but also from adverse impact
discrimination. The similarly situated test has not survived
Andrews.
The distinction made in the
universities' policies, though based upon an enumerated ground to the
disadvantage of individuals aged 65 and over, constitutes a reasonable limit
under s. 1 of the Charter to the right to equality accorded under s. 15 .
The combined objectives of the
impugned provisions meet the "objectives test". Excellence in higher
education is an admirable aim and should be fostered. The preservation of
academic freedom too is an objective of pressing and substantial importance.
Mandatory retirement is rationally
connected to the objectives sought. It is intimately tied to the tenure system
which undergirds the specific and necessary ambience of university life and
ensures continuing faculty renewal, a necessary process in enabling universities
to be centres of excellence on the cutting edge of new discoveries and ideas.
It ensures a continuing, and necessary, infusion of new people. In a closed
system with limited resources, this can only be achieved by departures of
other people. Mandatory retirement achieves this in an orderly way that
permits long-term planning both by the university and the individual.
In assessing whether there has
been minimal impairment of a consitutional right, consideration must be given
not only to the reconciliation of claims of competing individuals or groups but
also to the proper distribution of scarce resources -- here access to the
valuable research and other facilities of universities. The universities had a
reasonable basis for concluding that mandatory retirement impaired the
relevant right as little as possible given their pressing and substantial
objectives. Against the detriment to those affected must be weighed the
benefit of the universities' policies to society. Academic freedom and excellence
is necessary to our continuance as a lively democracy. Staff renewal is vital
to that end. It ensures infusion of new people and new ideas, a better mix of
young and old that is a desirable feature of a teaching staff, and better
access to the universities' outstanding research facilities which are essential
to push forward the frontiers of knowledge. As well, while mandatory
retirement has serious detrimental effects on the group affected, it has many
compensatory features for them, notably an enriched working life comprising a
large measure of academic freedom with a minimum of supervision and demeaning
performance tests. These are part of the "bargain" involved in
taking a tenured position, a bargain long sought by faculty associations and
other groups in society.
The effects of the universities'
policies of mandatory retirement are not so severe as to outweigh the
government's pressing and substantial objectives. The same factors had to be
balanced in dealing with deleterious effects.
Following a long history,
mandatory retirement at age 65 became the norm and is now part of the very
fabric of the organization of the labour market in this country. It has
profound implications for the structuring of pension plans, for fairness and
security of tenure in the workplace, and for work opportunities for others.
This was the situation when s. 9(a) of the Human Rights
Code, 1981 was
enacted and when the Charter was proclaimed. There are factors that must be considered in a
Charter evaluation.
The section 1 analysis of s. 9(a) of the Human Rights
Code, 1981 cannot be
restricted to the university context as was done in the court below. The
appellants in this case were denied the protection of the Code, not because
they were university professors but because they were 65 years of age or over.
To restrict its application to the university context would be inconsistent
with the first component of the proportionality test enunciated in R.
v. Oakes.
The objective of ss. 9(a) and 4 of the
Human Rights Code, 1981
is to extend protection against discrimination to persons in a specified age
range, originally those between 45 and 65. Those over 65 benefited from
numerous other social programmes. In enacting the provision, the Legislature
balanced its concern for not according protection beyond 65 against the fear
that such a change might result in delayed retirement and delayed benefits for
older workers, as well as for the labour market and pension ramifications.
Assuming the test of proportionality can be met, these warranted overriding the
constitutional right of the equal protection of the law. The Legislature also
considered the effect on young workers, but the evidence on this is
conjectural, and should be accorded little weight.
The legislation is rationally
connected to its objectives as is evident from the considerations concerning
whether it impairs the right to equality "as little as possible."
But consideration of the propriety of the legislature's cautious conduct
involves recognition of the fact that it was motivated by concern for the
orderly transition of values. The United Nations Resolution aimed at
discouraging age discrimination justifies its recommendation by limiting it to
"wherever and whenever the overall situation allows".
Mandatory retirement impairs the
right to equality without discrimination on the basis of age as little as
possible. The historical origins of mandatory retirement at age 65 and its
evolution as one of the important structural elements in the organization of the
workplace was very relevant to making this assessment. The repercussions of
abolishing mandatory retirement would be felt in all dimensions of the
personnel function with which it is closely entwined: hiring, training,
dismissals, monitoring and evaluation, and compensation. The Legislature was
faced with competing socio-economic theories and was entitled to choose between
them and to proceed cautiously in effecting change. On issues of this kind,
where there is competing social science evidence, the Court should consider
whether the government had a reasonable basis for concluding that the
legislation impaired the relevant right as little as possible given the
government's pressing and substantial objectives.
The concern about mandatory
retirement is not about mere administrative convenience in dealing with a small
percentage of the population. Rather, it is with the impact that removing a
rule, which generally benefits workers, would have on the compelling objectives
the Legislature has sought to achieve. Mandatory retirement is not government
policy in respect of which the Charter may be directly invoked. It is an
arrangement negotiated in the private sector, and it can only be brought into
the ambit of the Charter tangentially because the Legislature has attempted to protect, not
attack, a Charter value. The provision in question had no discriminatory purpose.
The legislation simply reflects a
permissive policy which allows those in different parts of the private sector
to determine their work conditions for themselves, either personally or through
their representative organizations. Mandatory retirement was not government
policy and it was not a condition imposed on employees. It was favoured both
by the universities and labour organizations.
For the same considerations as
were discussed with the issue of minimum impairment, there was a
proportionality between the effects of s. 9(a) of the Code on the guaranteed right
and the objectives of the provision. The Legislature sought to provide
protection for a group which it perceived to be most in need and did not
include others for rational and serious considerations that, it had reasonable
grounds to believe, would seriously affect the rights of others. A Legislature
should not be obliged to deal with all aspects of a problem at once. It should
be permitted to take incremental measures to balance possible inequalities
under the law against other inequalities resulting from the adoption of a
course of action and to take account of the difficulties, whether social,
economic or budgetary, that would arise if it attempted to deal globally with
them.
The cut-off point was within a
reasonable range according to the evidence and was appropriately defined in
terms of age, notwithstanding the fact that age was a prohibited ground of
discrimination. The precise point was not an issue for the Court. The
Charter itself by its
authorization of affirmative action under s. 15(2) recognized that
legitimate measures for dealing with inequality might themselves create
inequalities. Section 1 therefore should allow for partial solutions to
discrimination where there are reasonable grounds for limiting a measure.
A measure of deference for
legislative choice is invited by the fact that the Charter left the task of regulating and
advancing the cause of human rights in the private sector to the legislative
branch. Generally, the courts should not lightly use the
Charter to
second-guess legislative judgment as to just how quickly it should proceed in
moving forward towards the ideal of equality. The courts should adopt a stance
that encourages legislative advances in the protection of human rights. Some
of the steps adopted may well fall short of perfection but the recognition of
human rights emerges slowly out of the human condition, and short or
incremental steps may at times be a harbinger of a developing right.
Per Sopinka J.: The reasons of La Forest
J. for concluding that a university is not a government entity for the purpose
of attracting the provisions of the Canadian Charter of Rights and
Freedoms were agreed
with. The core functions of a university are non-governmental and therefore
not directly subject to the Charter . This applies a fortiori to the university's relations with its staff which in the case of
those in these appeals are on a consensual basis. Some university activities,
however, may be governmental in nature.
The determination as to whether
the policies and practices of the universities relating to mandatory retirement
are law cannot be made on the assumption that the universities are governmental
bodies. In attempting to classify the conduct of an entity in a given case it
is important to know, first, that it is a governmental body and, second, that
it is acting in that capacity in respect of the conduct sought to be subjected
to Charter scrutiny. The role of the Charter is to protect the individual against
the coercive power of the state. This suggests that there must be an element
of coercion involved before the emanations of an institution can be classified
as law. In order to make the determination in this case that the policies and
practices relating to mandatory retirement are law, highly relevant factors
would have to be assumed as being present. Such a determination would have a
wholly artificial foundation and would simply distort the law. The conclusion
that mandatory retirement is justified under s. 1 is more in accord with the
democratic principles which the Charter is intended to uphold. The contrary
position would impose on the whole country a regime not forged through the
democratic process but by the heavy hand of the law.
Per Cory J.: The tests put forward by
Wilson J. for determining whether entities not self-evidently part of the
legislative, executive or administrative branches of government are nonetheless
a part of government to which the Charter applies were agreed with. So too
were her findings that universities form part of "government" for
purposes of s. 32 of the Charter , that their mandatory retirement
policies were subject to s. 15 scrutiny, and that they contravened
s. 15 because of discrimination on the basis of age. These policies, however,
survive Charter scrutiny under s. 1 . Although s. 9(a) of the Human Rights
Code, 1981
contravenes s. 15(1) of the Charter by discriminating on the basis of
age, it is a reasonable limit prescribed by law under s. 1 .
Per Wilson J. (dissenting): Under s. 32
the Charter applies to legislation broadly defined and to acts of the executive or
administrative branch of government. It does not apply to private litigation
divorced from any connection to government. The government/private action
distinction may be difficult to make in some circumstances but the text of the
Charter must be
respected. The Charter was not intended as an alternate route to human rights legislation for
the resolution of allegations of private discrimination.
The concept of government purely
restrictive of the people's freedom is not valid in Canada. Government has
also played a beneficent role. Freedom is not co‑extensive with the
absence of government; rather freedom has often required the intervention and
protection of government against private action.
A concept of minimal state
intervention should not be relied on to justify a restrictive interpretation of
"government" or "government action". Government today must
assume many different roles vis‑à‑vis its citizens and some of these cannot be best
effected directly by the apparatus of government itself. Form therefore should
not be placed ahead of substance: the Charter should not be circumvented by the
simple expedient of creating a separate entity and having it perform the role.
The nature of the relationship between that entity and government must be
examined in order to decide whether when it acts it truly is
"government" which is acting.
The following questions should be
asked about entities that are not self‑evidently part of the legislative,
executive or administrative branches of government in order to determine if
they are subject to the Charter : (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?
Each test identifies aspects of
government in its contemporary context. An affirmative answer to one or more
of these questions would be a strong indicator, but no more, that the entity
forms part of government. The parties can explain why the body in question is
not part of government, or in the case of a negative answer, why some other
feature of the entity not touched upon by the questions listed makes it part of
government.
Given the various connections
between the province and the universities, the state exercises a substantial
measure of control over universities in Canada. This control is exercised:
(1) through heavy provincial funding; (2) through the statutory basis of their
governing structure; (3) through some of their decision-making processes being
subject to judicial review; and, (4) through some of their policies and
programs requiring government approval.
The government had no direct
involvement in the policy of mandatory retirement instituted by the
universities. A specific connection between the impugned act and government,
however, is not required. The universities' internal policies and practices
should have to conform to the dictates of the Constitution. The principle of
academic freedom, which is narrow in focus and protects only against the
censorship of ideas, is not incompatible with administrative control being
exercised by government in other areas.
Education at every level has been
a traditional function of government in Canada as evidenced from the
legislation dealing with it both before and after Confederation. The
universities perform an important public function which government has decided
to have performed and, indeed, regards it as its responsibility to have
performed. The universities therefore form part of government for the purposes
of s. 32 of the Charter and their policies of mandatory retirement are subject to scrutiny
under s. 15 of the Charter .
Section 15 is declaratory of
the rights of all to equality under the justice system. If an individual's
guarantee of equality is not respected by those to whom the
Charter applies, the
courts must redress that inequality.
The term "law" in
s. 15 should be given a liberal interpretation encompassing both
legislative activity and policies and practices even if adopted consensually.
The guarantee of equality applies irrespective of the particular form the discrimination
takes. Discrimination, unwittingly or not, is often perpetuated through
informal practices. Section 15 therefore does not require a search for a
discriminatory "law" in the narrow context but merely a search for
discrimination which must be redressed by the law.
It was not strictly necessary for
the Court to come to a definitive conclusion on this aspect of s. 15 in
this case. Under the more liberal approach, the policies instituting mandatory
retirement constitute "law" within the meaning of s. 15 . But even
given the most restrictive interpretation of "law", the
discrimination took place under the universities' enabling statutes and,
accordingly, the denial of equality was effected in one of the prohibited ways.
All the methods used by the
universities to institute mandatory retirement constituted "binding
rules" in the broad sense. It made no difference that some of the rules
came about as a result of collective agreement negotiations. It was, in
effect, the "law of the workplace". Mandatory retirement
distinguished between different individuals or different classes of individuals
in purpose or effect and this distinction gave rise to discrimination.
The purpose of the equality
guarantee is to promote human dignity. This guarantee focuses on stereotype
and prejudice as the principal vehicles of discrimination and is meant to
protect against them. The similarly situated test has no place in equality
jurisprudence because of the centrality of the concept of
"prejudice".
The grounds enumerated in s. 15
represent some blatant examples of discrimination which society has at last
come to recognize as such. Their common characteristic is political, social
and legal disadvantage and vulnerability.
The mere fact that the distinction
at issue was drawn on the basis of age did not automatically lead to some kind
of irrebuttable presumption of prejudice. Rather it compelled a number of
questions. Was there prejudice? Did the mandatory retirement policy reflect
the stereotype of old age? Was an element of human dignity at issue? Were
academics being required to retire at age 65 on the unarticulated premise that
with age comes increasing incompetence and decreasing intellectual capacity?
The answer was clearly yes and s. 15 was therefore infringed.
The universities derived their
authority over employment relations with their faculty and staff through their
enabling statutes which in and of themselves do not infringe the
Charter . The action
taken pursuant to them, however, lead to the violation. It was not necessary
to determine specifically whether the actual policies compelling retirement at
age 65 were "law" within the meaning of s. 1 . The measures
instituting mandatory retirement, if not reasonable and demonstrably justified,
would fall outside the authority of the universities and be struck down.
The mandatory retirement policies
cannot meet the minimal impairment test. The test is only met where
alternative means of dealing with the stated objective of government are not clearly
better than the one which has been adopted by government. There are better
means in this case.
In a period of economic restraint
competition over scarce resources will almost always be a factor in the
government distribution of benefits. Moreover, recognition of the constitutional
rights and freedoms of some will in such circumstances almost inevitably carry
a price which must be borne by others. To treat such price as a justification
for denying the constitutional rights of the appellants would completely
vitiate the purpose of entrenching rights and freedoms. There may be
circumstances, however, in which other factors militate against interference by
the courts where the legislature has attempted a fair distribution of
resources. Even if fiscal restraint simpliciter were a sufficient reason to take a
more relaxed approach to the minimal impairment requirement, the facts here do
not support the application of this standard of review.
The Oakes standard presumptively applies and
only in exceptional circumstances should the full rigors of
Oakes be
ameliorated. The respondent universities did not meet the onus of showing that
the application of a more relaxed test under s. 1 was appropriate. And
even if that test were appropriate, that standard was not met. Clearly better
alternatives exist given the documented success of alternative techniques.
Young academics are not the kind
of "vulnerable" group contemplated in those cases applying a relaxed
standard of minimal impairment. Their exclusion flows solely from the
government's policy of fiscal restraint and not from their condition of being
young or from the nature of their relationship with the universities.
It is doubtful whether citizens
should be able to contract out of equality rights having regard to the nature
of the grounds on which discrimination is prohibited in s. 15 and the fact
that the equality rights lie at the very heart of the
Charter . It is not
necessary to decide this in this case.
Section 24(1) of the
Charter confers a
broad discretion upon the Court to award appropriate and just relief, including
the relief of the type sought by appellants. Ordinary principles of contract
should not necessarily dictate which remedies are appropriate and just within
the meaning of s. 24(1) . The courts should strive to preserve agreements
while ridding them of their unconstitutional elements.
Reinstatement was an appropriate
and just remedy for righting the wrong caused to the appellants, especially
given the paucity of academic positions available and difficulties in
relocating. An award of compensatory damages was also just and appropriate
because the loss of income and benefits sustained by the appellants arose
because of the breach of their s. 15 rights. Compensation for losses
which flow as a direct result of the infringement of constitutional rights
should generally be awarded unless compelling reasons dictate otherwise.
Impecuniosity and good faith are not a proper basis on which to deny an award
of compensatory damages.
An interlocutory and a permanent
injunction should not be awarded. Appellants were "made whole" by
virtue of their having been awarded the declaration, the order for reinstatement
and the order for damages.
Section 15 of the
Charter is infringed
by s. 9(a)
of the Human Rights Code, 1981 which strips all protection against employment
discrimination based upon age from those over the age of 65. Once government
decides to provide protection it must do so in a non‑discriminatory
manner and this the province failed to do. Indeed, in the field of human
rights legislation, the standard of Charter scrutiny should be more rigorous, not
less, than that applied to other types of legislation. By denying protection
to these workers the Code has the effect of reinforcing the stereotype that
older employees are no longer useful members of the labour force and their
services may therefore be freely and arbitrarily dispensed with.
Section 9(a) must be struck down in its
entirety. This section did not confine itself to the legislature's stated
objective enabling mandatory retirement but extended to permit all forms of age
discrimination in the employment context for those over the age of 65. The
rational connection branch of the Oakes test was accordingly not met. The Court, in
choosing the appropriate disposition of the constitutional challenge, must be
guided by the extent to which the provision is inconsistent with the
Charter .
Section 9(a) would not, in any event, pass the
minimal impairment test which is the second branch of the
Oakes proportionality
test. When the majority of individuals affected by a piece of legislation will
suffer disproportionately greater hardship by the infringement of their rights,
the impugned legislation does not impair the rights of those affected by it as
little as reasonably possible. Even if it is acceptable for citizens to
bargain away their fundamental human rights in exchange for economic gain, the
majority of working people in the province do not have access to such
arrangements.
Per L'Heureux-Dubé J. (dissenting):
Universities may not have all of the necessary governmental touchstones to be
considered public bodies and yet neither are they wholly private in nature.
Their internal decisions are subject to judicial review and their creation,
funding and conduct are governed by statute. Some public functions performed
by universities, therefore, may attract Charter review.
The fact that universities are
substantially publicly funded cannot be easily discounted. But the level of
government funding does not establish government control over the employment
contracts at issue so as to attract Charter review. Mandatory retirement was not
adopted because of legislative or executive mandate. Furthermore, the
universities' private contracts of employment, not their delegated public
functions, were alleged to conflict with the Charter .
Wilson J.'s broad test for
determining the scope of government and government action for the purposes of
s. 32(1) of the Charter was agreed with. The universities, however, do not qualify even under
that test for essentially the reasons outlined by La Forest J. An historical
analysis yields the same result as the functional approach: Canadian
universities have always fiercely defended their independence. The word
"government", as generally understood, never contemplated
universities as they were and are constituted. Therefore, questions four and
five did not need to be answered.
Section 9(a) of the Human Rights
Code, 1981
constitutes unreasonable and unfair discrimination on the basis of age against
persons over 65 contrary to s. 15(1) of the Charter . It constitutes an arbitrary and
artificial obstacle which prevents persons aged 65 and over from complaining
about employment discrimination.
The breach of s. 15(1) cannot be
justified under s. 1 . There is no convincing evidence that mandatory
retirement is the quid pro quo of the tenure system. The value of tenure is
threatened by incompetence, not by the aging process. The presumption of
academic incapacity at age 65 is not well founded. The discrepancies between
physical and intellectual abilities amongst different age groups may be more
than compensated for by increased experience, wisdom and skills acquired over
time. There is therefore no pressing and substantial objective addressed by
the mandatory retirement policy.
Even assuming a legitimate
objective exists, the means used are too intrusive. Persons over 65 are
excluded from the protection of the Code solely because of age and, regardless
of circumstances, are denied access to protective and remedial human rights
legislation covering employment. Since retirement was set at 65, advances in
medical science and living conditions have significantly extended life
expectancy and improved the quality of life. An "elite" group of
people can afford to retire, but the adverse effects of mandatory retirement
are most painfully felt by the poor. Women are particularly affected as they
are less likely to have adequate pensions. There is no reasonable
justification for a scheme which sets 65 as an age for compulsory retirement.
Section 9(a) of the Code is severable and
accordingly should be struck out in its entirety as unconstitutional.
Cases Cited
By La Forest J.
Considered: Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; distinguished: Re
Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513 (leave to appeal
denied, [1986] 1 S.C.R. xii); referred to: Harrison v.
University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General
Hospital, [1990] 3
S.C.R. 483; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; R.
v. Oakes, [1986] 1
S.C.R. 103; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295;
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Tremblay v. Daigle, [1989] 2 S.C.R. 530; Re
Bhindi and British Columbia Projectionists (1986), 29 D.L.R. (4th) 47;
Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602;
Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); Re
McCutcheon and City of Toronto (1983), 147 D.L.R. (3d) 193; Re Klein and
Law Society of Upper Canada (1985), 16 D.L.R. (4th) 489; Greenya v.
George Washington University, 512 F.2d 556 (D.C. Cir. 1975); Blum v.
Yaretsky, 457 U.S.
991 (1982); Bakke v. Regents of the University of California, 438 U.S. 265 (1978); Roth
v. United States, 354
U.S. 476 (1957); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143;
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; R.
v. Oakes, [1986] 1
S.C.R. 103; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R.
v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney
General), [1989] 1
S.C.R. 927; Lamb v. Scripps College, 627 F.2d 1015 (1980);
Palmer v. Ticcione,
576 F.2d 459 (1978); Beauregard v. Canada, [1986] 2 S.C.R. 56.
By Wilson J. (dissenting)
RWDSU
v. Dolphin Delivery Ltd.,
[1986] 2 S.C.R. 573; Reitman v. Mulkey, 387 U.S. 369 (1967);
Dubois v. The Queen,
[1985] 2 S.C.R. 350; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Ford
v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Oakes, [1986] 1 S.C.R. 103; Re
B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486; Hunter v. Southam Inc., [1984] 2 S.C.R. 145;
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295;
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1988] 2 W.W.R. 718; R. v. Eldorado
Nuclear Ltd., [1983]
2 S.C.R. 551; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143;
Stoffman v. Vancouver Gen. Hosp. (1988), 21 B.C.L.R. (2d) 165; Re Ontario
English Catholic Teachers Association and Essex County Roman Catholic School
Board (1987), 58 O.R.
(2d) 545; R. v. Therens, [1985] 1 S.C.R. 613; Reference Re
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v. Thomsen, [1988] 1
S.C.R. 640; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927;
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R.
v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Behram Khurshid v. State of Bombay, A.I.R. (42) 1955 Supreme Court 123;
Basheshar Nath v. Commissioner of Income-tax, A.I.R. (46) 1959 Supreme Court 149;
Johnson v. Zerbst,
304 U.S. 458 (1938); Bute v. Illinois, 333 U.S. 640 (1948); Brookhart v.
Janis, 384 U.S. 1
(1966); Escobedo v. Illinois, 378 U.S. 478 (1964); Haddad v. U.S., 349 F.2d 511 (1965); Zap
v. United States, 328
U.S. 624 (1946); Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513.
By L'Heureux-Dubé J. (dissenting)
Harelkin
v. University of Regina,
[1979] 2 S.C.R. 561; Harrison v. Univ. of B.C. (1988), 21 B.C.L.R. (2d) 145; Re
Southam Inc. and The Queen (No. 1) (1983), 41 O.R. (2d) 113; Re Blainey and Ontario Hockey
Association (1986),
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v. Oakes, [1986] 1
S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713;
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Act for the appropriation of the Revenues arising from
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Act for the better establishment and maintenance of
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Act for the encouragement of education, S.P.E.I. 1852, c. 13.
Act for the establishment of Free Schools and the
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Act respecting Public Schools, S.O. 1877, c. 204.
Act respecting the Education Department, S.O. 1877, c. 203.
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Council of Public Instruction, the Normal Schools, Collegiate Institutes and
High Schools, S.O.
1874, c. 27.
Act to amend and consolidate the Public School Law, S.O. 1874, c. 28.
Act to consolidate and amend the several laws relating
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S.P.E.I. 1861, c. 36.
Act to enable the Corporation of the Royal Institution
for the Advancement of Learning, to dispose of certain portions of Land, for
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Charter of human rights and freedoms, S.Q. 1975, c. 6.
Clean Air Act, R.S.C., 1985, c. C‑32.
Compensation Stabilization Act, S.B.C. 1982, c. 32.
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Manitoba School Act, R.S.M. 1880, c. 62.
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Natural Products Marketing Act, 1934, S.C. 1934, c. 57.
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Pay Equity Act, S.M. 1985‑86, c. 21.
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Public Instruction, R.S.Q. 1888, Title V, arts. 1860‑2288.
Public Schools' Act, 1877, S.P.E.I. 1877, c. 1.
Radiation Emitting Devices Act, R.S.C., 1985, c. R‑1 .
Retail Business Holidays Act, R.S.O. 1980, c. 453.
Saskatchewan Bill of Rights Act, 1947, S.S. 1947, c. 35.
School Ordinance, C.O.N.W.T. 1898, c. 75.
Schools Act, C.S.N.B. 1877, c. 65.
Social Security Act, 49 Stat. 620.
29
U.S.C. {SS}{SS} 621-634 (1976).
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc.
A/810, at 71 (1948).
University Expropriation Powers Act, R.S.O. 1980, c. 516.
University of Guelph Act, 1964, S.O. 1964, c. 120.
University of Toronto Act, 1971, S.O. 1971, c. 56, ss. 2(3), 2(14)(b), (c).
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York
University Act, 1965,
S.O. 1965, c. 143.
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APPEAL from a judgment of the
Ontario Court of Appeal (1987), 63 O.R. (2d) 1, 46 D.L.R. (4th) 193, 37 C.R.R.
44, dismissing an appeal from a decision of Gray J. (1986), 57 O.R. (2d) 1, 32
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jurisdiction. Appeal dismissed, Wilson and L'Heureux-Dubé JJ. dissenting.
Jeffrey
Sack, Q.C., James
K. McDonald,
Steven M. Barrett
and Ethan Poskanzer, for the appellants.
Christopher
G. Riggs and
Michael A. Hines, for
the respondent Board of Governors of the University of Guelph.
Mary
Eberts and
Michael A. Penny,
for the respondent Board of Governors of Laurentian University.
George
W. Adams and
Richard J. Charney,
for the respondent Board of Governors of York University.
John
C. Murray and
S. John Page,
for the respondent Governing Council of the University of Toronto.
Janet
E. Minor and
Robert E. Charney,
for the respondent the Attorney General for Ontario.
Duff
Friesen, Q.C., and Virginia McRae
Lajeunesse, for the
intervener the Attorney General of Canada.
Alison
W. Scott, for
the intervener the Attorney General of Nova Scotia.
Robert
G. Richards, for
the intervener the Attorney General for Saskatchewan.
//La Forest J.//
The judgment of Dickson C.J. and
La Forest and Gonthier JJ. was delivered by
LA FOREST J. -- This appeal is concerned with
the application of s. 15(1) of the Canadian Charter of Rights and
Freedoms to mandatory
retirement in universities. It raises a number of broad issues, namely,
(a)whether
s. 15 of the Charter applies to universities;
(b)assuming
it does, whether the universities' policies of mandatory retirement at age 65
violate s. 15(1) of the Charter ;
(c)whether
the limitation of the prohibition against discrimination in employment on
grounds of age in s. 9(a)
of the Human Rights Code, 1981, S.O. 1981, c. 53, to persons between the ages
of 18 and 65 violates s. 15(1) of the Charter ; and
(d)whether,
if such violation exists, it is justifiable under s. 1 of the
Charter .
The appeal was argued at the same
time as Harrison v. University of British Columbia, [1990] 3 S.C.R. 450**;
Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, and
Douglas/Kwantlen Faculty Assn v. Douglas College, [1990] 3 S.C.R. 570, all of which are issued
concurrently. The first of these also deals with retirement from universities,
while the second is concerned with retirement from association with a research
hospital and the third from employment in a community college. The cases raise
many of the same issues, most of which will be discussed in the present appeal.
Background
Facts
The appellants, eight professors
and a librarian at the respondent universities, applied for declarations that
the policies of the universities, which require the appellants to retire at age
65, violate s. 15 of the Charter , and that s. 9(a)
of the Human Rights Code, 1981, by not treating persons who attain the age of
65 equally with others, also violates s. 15 . The appellants also ask for
certain consequential relief. The appellants' competence has never been
seriously questioned; they are highly qualified academics. The sole ground for
their retirement is that they have reached the mandatory age of 65.
The respondent universities have
established mandatory retirement policies in somewhat different ways. At the
University of Toronto, it has been effected by a formal resolution of the
Board, and the university's pension plan provides for retirement at age 65 and
is funded on that basis; as well, the collective agreement between the
university and the faculty association refers to retirement at age 65 as basic
policy and stipulates that there will be no change in this policy during the
term of the agreement. At York University, both the university plan and the
collective agreement with the faculty association provide for retirement at age
65. At the University of Guelph, mandatory retirement is based on policy and
practice and a pension plan that provides for retirement at age 65. At
Laurentian University, retirement policy is established by the general by-laws,
the collective agreement between the university and the faculty, and the
retirement plan for the staff.
There can be little question that,
while the impact will vary from individual to individual, mandatory retirement
results in serious detriment to the appellants' working lives, including loss
of protection for job security and conditions, economic loss, loss of a working
environment and facilities necessary to support their work, diminished
opportunities for grants, and generally seriously diminished participation in
activities both within and outside the university.
Several of the appellants filed
complaints with the Ontario Human Rights Commission, but the Commission refused
to deal with the complaints because its jurisdiction was confined with respect
to employment to persons between eighteen and sixty-five. The applicable
provisions of the Human Rights Code, 1981 read:
4.-- (1) Every person has a right to
equal treatment with respect to employment without discrimination because of .
. . age ....
9.. . .
(a)"age" means an age that is eighteen
years or more, except in subsection 4 (1) where "age" means an age
that is eighteen years or more and less than sixty-five years;
23.
The right under
section 4 to equal treatment with respect to employment is not infringed where,
.
. .
(b)the discrimination in employment is
for reasons of age . . . if the age ... of the applicant is a reasonable and bona
fide qualification
because of the nature of the employment;
On further communication with the
Commission, the appellants were advised that when their application concerning
the constitutional validity of s. 9(a) was decided, the Commission would
review its position, noting that it had recommended the abolition of mandatory
retirement.
Judicial
History
Gray J. of the Ontario High Court
(1986), 57 O.R. (2d) 1, dismissed the appellants' application. The
Charter, he held, did
not apply to the mandatory retirement policies of the universities. There was
no statutory provision directing or authorizing mandatory retirement. Though
universities served public purposes, they were essentially private
institutions. The fact that they were incorporated and heavily funded by
government was insufficient to make them fall within the rubric of
"government" to which the application of the Charter is limited by s. 32(1)(b). They were essentially autonomous
bodies which ran their own affairs. As he put it, at pp. 21-22, "the
"governmental function", "governmental control",
"State action" or "nexus" which links the essentially
private universities with the province is insufficient to invoke s. 32(1)(b) of the Charter". In the
present context, he saw mandatory retirement as a "creature of contract,
negotiated in good faith for the parties' own economic and other benefits"
(p. 17).
Gray J., however, did conclude
that, in denying persons sixty-five years of age or older the right to complain
that their rights to equal treatment with respect to employment had been
infringed, s. 9(a)
of the Human Rights Code, 1981 offended s. 15(1) of the
Charter . In the
context of the contractual relationships, however, he saw s. 9(a) as constituting a reasonable limit
that is demonstrably justified in a free and democratic society in accordance
with s. 1 of the Charter . He noted, at p. 32, that "Ramifications relating to the
integrity of pension systems and the prospects for younger members of the
labour force were the predominant concerns" of the legislature in limiting
protection against age-based employment discrimination. These objectives and
concerns were, in his opinion, "of sufficient importance to warrant
overriding a constitutionally protected right".
On an appeal to the Ontario Court
of Appeal (1987), 63 O.R. (2d) 1, the majority (Howland C.J.O. and Houlden,
Thorson and Finlayson JJ.A.) found nothing in the enabling legislation creating
the respondent universities that conflicts with the Charter. There is, they observed at p. 16,
"no statutory restriction on the term of employment of faculty or
staff". In their opinion, the Charter has no direct application to the
universities or to their contracts of employment with the appellants.
So far as s. 9(a) of the Human Rights
Code, 1981 was
concerned, the majority agreed with the conclusion of Gray J. that the section
discriminates against staff over the age of 65 and denies them the equal
treatment to which they are entitled under s. 15(1) of the
Charter . The
majority also agreed, at p. 41, that Gray J. was correct in finding that s. 9(a) of the Code was inconsistent with
the Charter "without requiring the appellants to prove that the
discrimination it created was "unreasonable"".
Gray J., however, had applied a
lesser standard of scrutiny to legislation involving age-based discrimination
than to other types of discrimination. The majority disagreed with this
approach. The fact that the justification of discriminatory legislation will
be more difficult in some cases than in others did not, in their view, mean
that different standards of proof apply to different categories of cases. The
onus of establishing s. 1 limitations on s. 15 rights "requires careful
factual analysis in every case" (p. 47).
In the opinion of the majority,
the Court of Appeal was in a position only to deal with the effect of the
Charter on the
provisions of s. 9(a)
as they apply to mandatory retirement of the teaching staff and librarians of
the universities. They, therefore, considered only evidence pertinent to the
universities and found that, in the university context, the objectives of
making it possible for parties to negotiate a mandatory retirement date in
keeping with the tenure system, of preserving existing pension plans, and of
facilitating faculty renewal, were pressing and substantial and, therefore,
warrant overriding a constitutionally protected right.
The majority was further of the
view that there exists a clear rational connection between the measures adopted
by s. 9(a)
and the objectives of that section in the university context. They concluded,
as well, that the provisions of the impugned section impair "as little as
possible" the right to freedom from discrimination on the basis of age in
so far as they apply to the mandatory retirement policies of the universities.
Nor were they persuaded that the measures imposed by the policies are out of
proportion with the objectives of s. 9(a).
Blair J.A., dissenting, disagreed
with the view that the compulsory retirement of tenured university professors
and staff is justifiable under s. 1 of the Charter . In his opinion, the function of the
court was to review the Code in order to determine whether it complies with the
Charter. It was not
open to it (at p. 67) "to read qualifications or exceptions into the
statute which might under s. 1 justify a Charter infringement". It was
not free to restrict its examination of the provision to the university context
alone. To do so would have the effect of amending the Code, something only the
legislature is entitled to do. Furthermore (at p. 74), s. 9(a), "being facially invalid, is
not a provision that can be saved by allowing a "constitutional
exemption" to its operation where appropriate facts exist". In his
view, at p. 76, s. 9(a)
"falls clearly within the category of legislative provisions which are
inconsistent with the Charter" and is incapable of being applied to the
appellants.
Although Blair J.A. agreed that s.
9(a)
met the first two requirements of the test set out in R.
v. Oakes, [1986] 1
S.C.R. 103, he found, at p. 77, that it did not satisfy the third requirement
that the measure adopted "should impair `as little as possible' the right
or freedom in question". That section, rather than merely restricting the
right under s. 15(1) , eliminates it, since the Code provides no protection
against age discrimination in employment after the age of 65.
Blair J.A. further remarked that,
while his conclusion would be limited to a declaration that the appellants are
not subject to compulsory retirement, it would have "wider
ramifications" for the reason that it is based upon two findings applicable
to all employees in Ontario. Those findings are that the impugned section is
inconsistent with the Charter and that there are no standards within the Code upon which a
justification of the denial under s. 1 of the Charter could be based.
Leave to appeal to this Court was
granted and the following constitutional questions were stated:
1.Does
s. 9(a)
of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, violate the rights guaranteed
by s. 15(1) of the Canadian Charter of Rights and Freedoms ?
2.Is
s. 9(a)
of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, demonstrably justified by s.
1 of the Canadian Charter of Rights and Freedoms as a reasonable limit on the rights
guaranteed by s. 15(1) of the Charter ?
3.Does
the Canadian Charter of Rights and Freedoms apply to the mandatory retirement
provisions of the respondent universities?
4.If
the Canadian Charter of Rights and Freedoms does apply to the respondent
universities, do the mandatory retirement provisions enacted by each of them
infringe s. 15(1) of the Charter ?
5.If the
Canadian Charter of Rights and Freedoms does apply to the respondent universities, are
the mandatory retirement provisions enacted by each of them demonstrably
justified by s. 1 of the Charter as a reasonable limit on the rights guaranteed by s. 15(1) of the
Charter ?
The Attorneys General of Canada,
Nova Scotia and Saskatchewan intervened.
As the constitutional questions
indicate, the issues may be divided into two broad groups. The first concerns
the possible effect of the Charter on the universities' mandatory retirement policies, the second
concerns its possible effect on s. 9(a) of the Human Rights
Code, 1981. For
convenience, I shall deal with the universities' policies first, beginning with
the question whether the Charter applies to these policies at all.
The Application of the
Charter
The application of the
Charter is set forth
in s. 32(1), which reads:
32.-- (1) This Charter applies
(a)to the Parliament and government of
Canada in respect of all matters within the authority of Parliament including
all matters relating to the Yukon Territory and Northwest Territories; and
(b)to the legislature and government of
each province in respect of all matters within the authority of the legislature
of each province.
These words give a strong message
that the Charter is confined to government action. This Court has repeatedly drawn
attention to the fact that the Charter is essentially an instrument for
checking the powers of government over the individual. In
Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145, at p. 156, Dickson J. (as he then was) observed: "It
is intended to constrain governmental action inconsistent with those rights and
freedoms; it is not in itself an authorization for governmental action."
In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 490,
Wilson J. noted that "the central concern of [s. 7 of the
Charter ] is direct
impingement by government upon the life, liberty and personal security of
individual citizens" (emphasis added). See also R.
v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, at p. 347, per Dickson J.; RWDSU v.
Dolphin Delivery Ltd.,
[1986] 2 S.C.R. 573, especially at pp. 593-98; and Tremblay v. Daigle, [1989] 2 S.C.R. 530.
The exclusion of private activity
from the Charter was not a result of happenstance. It was a deliberate choice which
must be respected. We do not really know why this approach was taken, but
several reasons suggest themselves. Historically, bills of rights, of which
that of the Unites States is the great constitutional exemplar, have been
directed at government. Government is the body that can enact and enforce
rules and authoritatively impinge on individual freedom. Only government
requires to be constitutionally shackled to preserve the rights of the
individual. Others, it is true, may offend against the rights of individuals.
This is especially true in a world in which economic life is largely left to
the private sector where powerful private institutions are not directly
affected by democratic forces. But government can either regulate these or
create distinct bodies for the protection of human rights and the advancement
of human dignity.
To open up all private and public
action to judicial review could strangle the operation of society and, as put
by counsel for the universities, "diminish the area of freedom within
which individuals can act". In Re Bhindi and
British Columbia Projectionists (1986), 29 D.L.R. (4th) 47, Nemetz C.J., speaking for the majority of
the British Columbia Court of Appeal, made it clear that such an approach could
seriously interfere with freedom of contract. It would mean reopening whole
areas of settled law in several domains. For example, as has been stated:
"In cases involving arrests, detentions, searches and the like, to apply
the Charter to purely private action would be tantamount to setting up an
alternative tort system" (see McLellan and Elman, "To Whom Does the
Charter Apply? Some Recent Cases on Section 32 " (1986), 24
Alta. L. Rev. 361, at
p. 367, cited in RWDSU v. Dolphin Delivery Ltd., supra, at p. 597). And that is by no means
all.
Opening up private activities to
judicial review could impose an impossible burden on the courts. Both
government and the courts have recognized the need to limit judicial review by
means, for example, of privative clauses and deference to specialized
tribunals, techniques that would be unavailable in a Charter context. As well, as I noted
earlier, government may, in many cases, establish more flexible means to deal
with individual rights. Thus Human Rights Commissions have more flexible
techniques for dealing with discriminatory practices without unduly
constraining the exercise of other democratic rights that are extremely hard to
balance; see McLellan and Elman, ibid., and Tarnopolsky (now Mr. Justice Tarnopolsky),
"The Equality Rights in the Canadian Charter of Rights and Freedoms "
(1983), 61 Can. Bar Rev. 242, at p. 256.
The leading authority in this area
is, of course, this Court's decision in the Dolphin
Delivery case,
supra, which sets
forth many other considerations of this kind. In that case, McIntyre J. made
it clear that the Charter was by s. 32 limited in its application to Parliament and the
legislatures, and to the executive and administrative branches of government.
As he put it, at p. 598: ". . . it [s. 32 ] refers not to government in
its generic sense -‑ meaning the whole of the governmental apparatus of
the state -‑ but to a branch of government" (Emphasis added).
So far as a legislature was concerned, he stated, it was only by way of
legislation that it could infringe the Charter. Action by the executive and
administrative branches of government would generally depend upon the
legislation but there were also situations (which do not concern us here) where
it could depend on common law rules or the prerogative.
McIntyre J. thus carefully limited
the Charter's application to Parliament and the legislatures and the executive and
administrative branches of government. It is significant, too, that in
buttressing his view as to the meaning of government, he relied not only on its
general meaning, but also on the manner in which the words were used in the
Constitution Act, 1867 .
He thus put it, at p. 598:
The word `government', following as it
does the words `Parliament' and `Legislature', must then, it would seem, refer
to the executive or administrative branch of government. This is the sense in
which one generally speaks of the Government of Canada or of a province. I am
of the opinion that the word `government' is used in s. 32 of the
Charter in the sense
of the executive government of Canada and the Provinces. This is the sense in
which the words `Government of Canada' are ordinarily employed in other
sections of the Constitution Act, 1867 . Sections 12 , 16 , and 132 all refer to the
Parliament and the Government of Canada as separate entities. The words
`Government of Canada', particularly where they follow a reference to the word
`Parliament', almost always refer to the executive government.
The Court in
Dolphin Delivery did
not have to decide on the extent to which the Charter applies to the actions of subordinate
bodies that are created and supported by Parliament or the legislatures, but it
did leave open the possibility that such bodies could be governed by the
Charter. Thus,
McIntyre J. stated, at p. 602:
It would also seem that the
Charter would apply
to many forms of delegated legislation, regulations, orders in council,
possibly municipal by-laws, and by-laws and regulations of other creatures of
Parliament and the Legislatures.
It was not incumbent upon him to
define more closely the scope of government or to enter into the question of
what could constitute action by the government.
The appellants first argued that
"universities constitute part of the legislature or government of the
province within the meaning of s. 32 of the Charter, insofar as they are
creatures of statute which exercise powers pursuant to statute and carry out a
public function pursuant to statutory authority". Undoubtedly, as the
Court of Appeal recognized, a statute providing for mandatory retirement in the
universities would violate s. 15 of the Charter , and it is also true that the
government could not do so in the exercise of a statutory power. That is
because, as McIntyre J. pointed out, they -‑ the legislative, executive
and administrative branches of government ‑‑ are the actors to whom
the Charter applies under s. 32(1).
Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, affords a recent example of a situation where
action pursuant to statutory power was held to fall within the ambit of the
Charter. That case
dealt with an order of an adjudicator appointed by the Minister of Labour which
was alleged to infringe the employer's Charter right of freedom of expression. The
Canada Labour Code,
R.S.C. 1970, c. L-1, is, of course, a statute regulating labour relations
within federal competence. As part of the machinery for the settlement of
labour disputes, the Minister was authorized to appoint an arbitrator who,
under s. 61.5(9)(c),
was given a number of discretionary powers to effect that purpose. The
arbitrator was, therefore, part of the governmental administrative machinery
for effecting the specific purpose of the statute. It would be strange if the
legislature and the government could evade their Charter responsibility by appointing a person
to carry out the purposes of the statute. Section 61.5(9)(c) was, therefore, "interpreted as
conferring on the adjudicator a power to require the employer to do any other
thing that it is equitable to require the employer to do in order to remedy or
counteract any consequence of the dismissal" that is consistent with the
Charter. The close
nexus between the statute and the legislative scheme and governmental
administration is immediately obvious.
But the mere fact that an entity
is a creature of statute and has been given the legal attributes of a natural
person is in no way sufficient to make its actions subject to the
Charter. Such an
entity may be established to facilitate the performance of tasks that those
seeking incorporation wish to undertake and to control, not to facilitate the
performance of tasks assigned to government. It would significantly undermine
the obvious purpose of s. 32 to confine the application of the
Charter to legislative
and government action to apply it to private corporations, and it would fly in
the face of the justifications for so confining the Charter to which I have already referred. In Re
Bhindi and British Columbia Projectionists, supra, the British Columbia Court of Appeal refused to
apply the Charter to a collective agreement though such agreements are provided for by
statute (they were unenforceable at common law) and the legal status of the
union itself derived from statute. The employer, too, was a creature of
statute. The majority of the court had this to say, at p. 54:
In my opinion, Mr. Justice Gibbs
was right in rejecting the extension of the Charter to a private contract such
as this. It is a rare commercial contract which does not ex
facie infringe on
some freedom set out in s. 2 or some legal right under s. 7 . To include such
private commercial contracts under the scrutiny of the Charter could create
havoc in the commercial life of the country.
The appellants strongly relied on
a statement by Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 671, cited by
this Court in Slaight Communications Inc. v. Davidson, supra, at p. 1078, to the effect that
Parliament and the legislatures cannot authorize action by others that would be
in breach of the Charter. That statement would, no doubt, be true of a situation such as
occurred in Slaight Communications Inc. v. Davidson, supra, where a statute authorizes a person
to exercise a discretion in the course of performing a governmental objective.
But the Charter was not intended to cover activities by non-governmental entities
created by government for legally facilitating private individuals to do things
of their own choosing without engaging governmental responsibility. Professor
Hogg himself makes this clear, at n. 140 on p. 677:
There is perhaps a faint argument that
the Charter applies to the actions of all Canadian corporations, whether
publicly or privately owned, and even if they are engaged only in commercial
activity. The argument would start from the premise that the existence and
powers of a modern corporation depend upon the statute which authorized its
incorporation. In that sense, it could be argued, all modern corporations act
under statutory authority and should be held to be bound by the Charter. But
the better view is that a corporation, once it has been brought into existence
and empowered (admittedly under statutory authority), is thereafter exercising
the same proprietary and contractual powers as are available to any private person.
The situation just described is
entirely different from requiring a person to do something, and it is different
also from empowering someone within the government apparatus to do something.
It is true that Hogg, in the first of the passages referred to -‑ a
passage cited with approval by this Court in Slaight
Communications Inc. v. Davidson -‑ includes universities among a number of governmental
institutions exercising statutory power bound by the Charter. It should be underlined, however,
that the passage was cited in Slaight Communications Inc. v.
Davidson in support
of the proposition that the Charter covers a discretionary exercise of authority under a statute in
effecting the statutory scheme. The case did not more widely address the issue
of what entities may form part of the governmental apparatus, and cannot be
taken as accepting Professor Hogg's inclusion of universities among entities
like the Governor in Council and administrative tribunals (which was all that
was in question in that case) that are obviously part of government, a question
which, of course, is a central issue in the present case.
The appellants sought to draw a
distinction between commercial corporations and corporations serving a public
interest (or at least to confine their argument to the latter). In this
context, the appellants cited a number of cases holding that statutory bodies
exercising powers of decision may be subjected to judicial review by the courts
to ensure that they perform their duties and do so fairly; see
Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602, and especially
the reasons of Dickson J. (as he then was).
It was not disputed that the
universities are statutory bodies performing a public service. As such, they
may be subjected to the judicial review of certain decisions, but this does not
in itself make them part of government within the meaning of s. 32 of the
Charter.
Essentially, the prerogative writs were designed to ensure that administrative
decision-making was legally and procedurally correct. They did not deal with
substantive rights like those enshrined in the Charter and their scope extends beyond what
one would normally characterize as government. In a word, the basis of the
exercise of supervisory jurisdiction by the courts is not that the universities
are government, but that they are public decision-makers. As Beetz J. observed
in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 594, it
is only "in a sense" that a university may be regarded as a public
body. It is clear from that case that judicial review may be available in
certain circumstances even though a university may be an autonomous body. The
following passage from Beetz J.'s reasons, at pp. 594-95, is instructive:
The Act incorporates a university
and does not alter the traditional nature of such an institution as a community
of scholars and students enjoying substantial internal autonomy. While a
university incorporated by statute and subsidized by public funds may in a
sense be regarded as a public service entrusted with the responsibility of
insuring the higher education of a large number of citizens, as was held in
Polten [(1975), 59
D.L.R. (3d) 197], its immediate and direct responsibility extends primarily to
its present members and, in practice, its governing bodies function as domestic
tribunals when they act in a quasi-judicial capacity. The Act countenances the
domestic autonomy of the university by making provision for the solution of
conflicts within the university.
The Charter apart, there is no question of the
power of the universities to negotiate contracts and collective agreements with
their employees and to include within them provisions for mandatory
retirement. These actions are not taken under statutory compulsion, so a
Charter attack cannot
be sustained on that ground. There is nothing to indicate that in entering
into these arrangements, the universities were in any way following the
dictates of the government. They were acting purely on their own initiative.
Unless, then, it can be established that they form part of government, the
universities' action here cannot fall within the ambit of the
Charter. That cannot
be answered by the mere fact that they are incorporated and perform an
important public service. Many institutions in our society perform functions
that are undeniably of an important public nature, but are undoubtedly not part
of the government. These can include railroads and airlines, as well as
symphonies and institutions of learning. And this may be so even though they
are subjected to extensive governmental regulations and even assistance from
the public purse, as Beetz J.'s statement from Harelkin v.
University of Regina
indicates; see also Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), per Rehnquist J., for the court, at pp.
350-51. I would refer, in this respect, to McIntyre J.'s statement in
Dolphin Delivery,
supra, at p. 598,
that s. 32(1) does not refer "to government in its generic sense ‑-
meaning the whole of the governmental apparatus of the state". A public
purpose test is simply inadequate. It is fraught with difficulty and
uncertainty. It is simply not the test mandated by s. 32 . As Wellington,
"The Constitution, the Labor Union and "Governmental Action""
(1961), 70 Yale L.J. 345, has stated, at p. 374, in relation to the United States
Constitution:
The easy conclusion, shared by too
many "bold thinkers", that "whenever any organization or group
performs a function of a sufficiently important public nature, it can be said
to be performing a governmental function and thus should have its actions
considered against the broad provisions of the Constitution" is wrong.
Like most easy conclusions about most hard governmental problems it lacks the
institutional feel. Perhaps there are private groups in society to which the
Constitution should be applied. But one thing is clear: that conclusion
should depend on more than an awareness that the group commands great power or
performs a function of an important public nature.
In attempting to support the view
that government went beyond the administrative and executive branches of the
government of Canada and the provinces but included statutory bodies serving
the public interest, the appellants referred to Re McCutcheon
and City of Toronto
(1983), 147 D.L.R. (3d) 193 (Ont. H.C.), where Linden J. expressed the view
that municipalities are part of the government within the meaning of s. 32 of
the Charter. Assuming the correctness of Linden J.'s view, about which I express
no opinion, I agree with the Court of Appeal that, if the
Charter covers
municipalities, it is because "municipalities perform a quintessentially
governmental function. They enact coercive laws binding on the public
generally, for which offenders may be punished; see also Re
Klein and Law Society of Upper Canada (1985), 16 D.L.R. (4th) 489 (Ont. Div. Ct.), per Callaghan J., at p. 528. The same
can obviously not be said of universities. I hasten to add that I agree with
my colleague Wilson J. that the Charter is not limited to entities which
discharge functions that are inherently governmental in nature. As to what
other entities may be subject to the Charter by virtue of the functions they
perform, I would think that more would have to be shown than that they engaged
in activities or the provision of services that are subject to the legislative
jurisdiction of either the federal or provincial governments. It seems to me
that my colleague Wilson J. takes the contrary view. To the extent that she
does, I respectfully disagree.
The appellants also submit that
the universities constitute part of the government under s. 32 of the
Charter having regard
to the nature of their relationship to the provincial government. The entire
context must, they say, be looked at including the facts that they are
established by statute which determines their powers, objects and governmental
structures, that their historical development was as part of a public system of
post-secondary education, that their survival depends on public funding, and
that government structures largely coordinate and regulate their activities,
through operating and capital grants, special funds, control over tuition fees
and approval of new programs.
There is no question that the
relationship of government to Canadian universities has always been
significantly different from that existing in Europe when communities of
scholars first banded together to pursue learning. From the early days of this
country, several of the provinces acted to establish provincial universities,
one of which, of course, was the University of Toronto which was established by
the Ontario legislature in 1859. Its governing statute is now The
University of Toronto Act, 1971, S.O. 1971, c. 56. Other universities were created out of specialized
educational bodies under the direct control of the province, such as the
University of Guelph, which was created in its present form in 1964 by The
University of Guelph Act, 1964, S.O. 1964, c. 120. Others were founded by private groups for
religious and linguistic purposes such as Sacred Heart College in Sudbury,
which became Laurentian University with the passage of The
Laurentian University of Sudbury Act, 1960, S.O. 1960, c. 151, rep. & sub. 1961-62, c.
154, ss. 1-7. Others, like York University, were originally affiliates of older
universities but later became separate universities: The York
University Act, 1965,
S.O. 1965, c. 143. These statutes set out the universities' powers, functions,
privileges and governing structure. While these vary from university to
university, they are in general much the same. As well, the
University Expropriation Powers Act, R.S.O. 1980, c. 516, gives them expropriation
powers, a matter not in issue here. The Degree Granting
Act, 1983, S.O. 1983,
c. 36, restricts the entities that can operate a university and grant
university degrees.
There can be no doubt that the
reshaping in the 1950s and 1960s of the universities of Ontario (a process that
also occurred in other provinces) resulted from provincial policies aimed at
promoting higher education. Nor did the Legislature confine itself to
rationalizing the existing system. It heavily funds universities on an ongoing
basis. The operating grants alone range, according to the evidence, between a
low for York of 68.8% of its operating funds to a high for Guelph of 78.9%.
The Ontario Council on University Affairs makes annual global funding
recommendations to the government, but the latter assumes responsibility for
determining the amounts. It also effectively defines tuition fees within a
formula that limits the universities' discretion within a narrow scope. The
province also provides most of the funds for capital expenditures, and provides
special funds earmarked to meet specific policies. It exercises considerable
control over new programs by requiring that they be specifically approved to be
eligible for public funds.
It is evident from what has been
recounted that the universities' fate is largely in the hands of government and
that the universities are subjected to important limitations on what they can
do, either by regulation or because of their dependence on government funds.
It by no means follows, however, that the universities are organs of
government. There are many other entities that receive government funding to
accomplish policy objectives governments seek to promote. The fact is that
each of the universities has its own governing body. Only a minority of its
members (or in the case of York, none) are appointed by the Lieutenant-Governor
in Council, and their duty is not to act at the direction of the government but
in the interests of the university (see, for example, s. 2(3) of The
University of Toronto Act, 1971). The remaining members are officers of the Faculty, the students,
the administrative staff and the alumni.
The government thus has no legal
power to control the universities even if it wished to do so. Though the
universities, like other private organizations, are subject to government
regulations and in large measure depend on government funds, they manage their
own affairs and allocate these funds, as well as those from tuition, endowment
funds and other sources. What Beetz J. said of the University of Regina in
Harelkin v. University of Regina, supra, in the passage at pp. 594-95, quoted above, applies equally here. I
simply reiterate his general conclusion: "The Act incorporates a
university and does not alter the traditional nature of such an institution as
a community of scholars and students enjoying substantial internal
autonomy." In short, I fully share the following conclusion of the Court
of Appeal (1987), 63 O.R. (2d) 1, at pp. 24-25:
The fact is that the universities are
autonomous, they have boards of governors, or a governing council, the majority
of whose members are elected or appointed independent of government. They
pursue their own goals within the legislated limitations of their
incorporation. With respect to the employment of professors, they are masters
in their own houses.
The legal autonomy of the
universities is fully buttressed by their traditional position in society. Any
attempt by government to influence university decisions, especially decisions
regarding appointment, tenure and dismissal of academic staff, would be
strenuously resisted by the universities on the basis that this could lead to
breaches of academic freedom. In a word, these are not government decisions.
Though the legislature may determine much of the environment in which
universities operate, the reality is that they function as autonomous bodies
within that environment. There may be situations in respect of specific
activities where it can fairly be said that the decision is that of the
government, or that the government sufficiently partakes in the decision as to
make it an act of government, but there is nothing here to indicate any
participation in the decision by the government and, as noted, there is no
statutory requirement imposing mandatory retirement on the universities.
I should perhaps note that a
similar approach has been followed in the United States. For example, in
Greenya v. George Washington University, 512 F.2d 556 (D.C. Cir. 1975) , the court
refused to find the university to be a governmental entity, though it was
incorporated by the state, was given tax exemption and received federal capital
funding and funding for some of its programs. A similar approach has been
followed in respect of other entities rendering public services that are heavily
regulated by government (see Jackson v. Metropolitan Edison Co., supra -‑ there a public utility) or
that are heavily funded (see Blum v. Yaretsky, 457 U.S. 991 (1982) -‑ there a nursing
school where virtually all the school's funds were derived from government
funding).
It is true that there are some
cases where United States courts did hold that significant government funding
constitutes sufficient state involvement to trigger constitutional guarantees,
but these were largely confined to cases of racial discrimination which was the
prime target of the 14th Amendment (see Greenya v.
George Washington University, supra, at p. 560). As Professor (now Mr. Justice) Tarnopolsky has noted in
a passage quoted by the Court of Appeal (at pp. 21-22), these judicial
intrusions, devised to meet a problem particular to the United States, should
not be imported here; see "The Equality Rights in the Canadian Charter of
Rights and Freedoms " supra, at p. 256. Nor is there reason to consider the American authorities
on state universities; Canadian universities, as I have explained, are private
entities.
I, therefore, conclude that the
respondent universities do not form part of the government apparatus, so their
actions, as such, do not fall within the ambit of the
Charter. Nor in
establishing mandatory retirement for faculty and staff were they implementing
a governmental policy.
With deference to my colleague
Wilson J., I do not rest this conclusion on a belief that "the role of
government should be strictly confined" (at p. 000) and that "social
and economic ordering should be left to the private sector" (at p. 000).
My conclusion is not that universities cannot in any circumstances be found to
be part of government for the purposes of the Charter, but rather that the appellant
universities are not part of government given the manner in which they are
presently organized and governed. By way of parenthesis, I would note that it
seems to me that if one were indeed committed to the doctrine of
"constitutionalism" as my colleague describes it (at p. 000), one
would interpret government for the purposes of s. 32(1) as broadly as possible,
and not in "its narrowest sense".
The foregoing is sufficient to
dispose of the issues concerning the mandatory retirement policies of the
universities. However, I also propose to discuss the issue of whether, on the
assumption that the universities form part of the apparatus of government,
these policies violate s. 15 of the Charter . Not only was it fully argued. It
is of considerable assistance in considering other issues in this appeal by
throwing light on the repercussions of mandatory retirement on the organization
of the workplace generally which figures largely on other issues in this
appeal. It also is of relevance in considering a number of the issues in the
companion cases. The university setting is not, of course, a perfect microcosm
of the larger whole. I recognize that each sector of the workplace will have
different dynamics depending on the individual configuration of that sector,
whether it is managerial, professional, technical, skilled or unskilled,
whether or not it has a seniority or tenure system attached to it, and whatever
the physical and intellectual demands of the work may be. But there are many
common or related features.
Do the University Policies Violate s.
15?
I now propose to deal with the
question whether the universities' policies on mandatory retirement violate s.
15 of the Charter on the basis of the assumption that the universities form part of
"government" apparatus within the meaning of s. 32(1) of the
Charter.
"Law"
For section 15 of the
Charter to come into
operation, the alleged inequality must be one made by "law". The
most obvious form of law for this purpose is, of course, a statute or
regulation. It is clear, however, that it would be easy for government to
circumvent the Charter if the term law were to be restricted to these formal types of
law-making. It seems obvious from what McIntyre J. had to say in the
Dolphin Delivery case
that he intended that exercise by government of a statutory power or discretion
would, if exercised in a discriminatory manner prohibited by s. 15 , constitute
an infringement of that provision. At all events, this Court has now acted on
this basis in Slaight Communications Inc. v. Davidson, supra; see also the remarks of Linden J. in Re
McCutcheon and City of Toronto, supra, at p. 202. On the assumption that the universities form part of the
fabric of government, I would have thought their policies on mandatory
retirement would amount to a law for the purposes of s. 15 of the
Charter . Indeed, in
most of the universities, these policies were adopted by the universities in a
formal manner. That being so, the fact that they were accepted by the
employees should not alter their characterization as law, although this would
be a factor to be considered in deciding whether under the circumstances the
infringement constituted a reasonable limit under s. 1 of the
Charter .
In the case of some of the
universities, however, it may not be as clear that one is dealing with
university policy as simply an agreement entered into with a view to respond to
what is really desired by the employees. Here again, however, I am unwilling
to accept that a power by government to contract should include the power to
contract in violation of a Charter right. It would be easy for the legislatures and governments to evade
the restrictions of the Charter by simply voting money for the promotion of certain schemes. In
Operation Dismantle Inc. v. The Queen, supra, at p. 459, Dickson J. drew attention to the
possibility "that if the supremacy of the Constitution expressed in s. 52
is to be meaningful, then all acts taken pursuant to powers granted by law will
fall within s. 52 ". I have no doubt that this is true of s. 15 of the
Charter . One need
simply examine s. 15(2) which provides that s. 15(1) "does not preclude any
law, program or activity that has as its object the amelioration of
conditions of disadvantaged individuals or groups . . ." (emphasis
added). There would be no need to refer to programs and activities if s. 15(1)
were confined to legislative activity. This is supported by the experience in
the United States. In that country, no court ever appears to have suggested
that the equal protection of the law or due process is restricted to
legislative activity. Rather, the cases appear to afford protection against
discriminatory state action whether by way of legislation or conduct; see
Bakke v. Regents of the University of California, 438 U.S. 265 (1978); Roth v. United
States, 354 U.S. 476
(1957).
It may be that the acceptance of a
contractual obligation could, in some circumstances, constitute a waiver of a
Charter right
especially in a case like mandatory retirement, which not only imposes burdens,
but benefits on employees. On the whole, though, I think such an arrangement
would usually require justification as a reasonable limit under s. 1 . That is
especially true in the case of a collective agreement, which may or may not
really find favour with individual employees subject to discrimination. In the
present case, I am, therefore, of the view that the mandatory retirement
provisions are law even if they are as much desired by the unions as by the
universities.
Discrimination
Assuming the policies of the
universities are law, it seems difficult to argue in light of
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, that they are not
discriminatory within the meaning of s. 15(1) of the Charter since the distinction is based on the
enumerated personal characteristic of age. In Andrews v. Law
Society of British Columbia, this Court applied the following test for discrimination under s.
15(1) , at pp. 174‑75:
I would say then that discrimination
may be described as a distinction, whether intentional or not but based on
grounds relating to personal characteristics of the individual or group, which
has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members of
society. Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will rarely escape
the charge of discrimination, while those based on an individual's merits and
capacities will rarely be so classed.
There is no doubt that the policies,
agreements and regulations impose burdens on the employees. In
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 368,
employment was described as follows:
Work is one of the most
fundamental aspects in a person's life, providing the individual with a means
of financial support and, as importantly, a contributory role in society. A
person's employment is an essential component of his or her sense of identity,
self-worth and emotional well-being.
Mandatory retirement takes this away,
on the basis of a personal characteristic attributed to an individual solely
because of his association with a group.
Two arguments were put forward for
the proposition that even in light of Andrews v. Law
Society of British Columbia, the mandatory retirement provisions in issue here do not violate s.
15 . First, it was argued that the words "without discrimination" in
s. 15 require more than a mere finding of adverse distinction, but also require
proof of irrationality, stereotypical assumptions and prejudice, for if this
were not the case, universally accepted and manifestly desirable legal
distinctions would be viewed as violations of s. 15 and require justification
under s. 1 of the Charter . It was somewhat weakly argued that a mandatory retirement policy is
not based on irrelevant personal differences or stereotypical assumptions, but
rather is motivated by "administrative, institutional and
socio-economic" considerations. This is all irrelevant, since as
Andrews v. Law Society of British Columbia made clear in the above-cited passage, not only
does the Charter protect from direct or intentional discrimination; it also protects
from adverse impact discrimination, which is what is in issue here.
The second argument was that the
similarly situated test is still the governing test, provided it is not applied
mechanically. Simply put, I do not believe that the similarly situated test
can be applied other than mechanically, and I do not believe that it survived
Andrews v. Law Society of British Columbia.
I therefore have no hesitation in
concluding that the policies of the universities violate s. 15 of the
Charter , on the
assumption, of course, that they are "law" and that the Charter applies to the universities. They
make a distinction based upon an enumerated ground to the disadvantage of
individuals aged 65 and over. What requires examination then is whether this
distinction constitutes a reasonable limit under s. 1 of the Charter to the right accorded under s. 15 .
Section
1 of the Charter
General
The approach to be followed in
weighing whether a law constitutes a reasonable limit to a
Charter right has
been stated on many occasions beginning with R. v. Oakes, [1986] 1 S.C.R. 103, and I need
merely summarize it here. The onus of justifying a limitation to a
Charter right rests
on the parties seeking to uphold the limitation. The starting point of the
inquiry is an assessment of the objectives of the law to determine whether they
are sufficiently important to warrant the limitation of the constitutional
right. The challenged law is then subjected to a proportionality test in which
the objective of the impugned law is balanced against the nature of the right,
the extent of its infringement and the degree to which the limitation furthers
other rights or policies of importance in a free and democratic society.
This balancing task, as the Court
recently stated in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, at pp.
1489-90, should not be approached in a mechanistic fashion. For, as was there
said, "While the rights guaranteed by the Charter must be given priority in the
equation, the underlying values must be sensitively weighed in a particular
context against other values of a free and democratic society sought to be
promoted by the legislature." Indeed, early in the development of the
balancing test, Dickson C.J. underlined that "Both in articulating the
standard of proof and in describing the criteria comprising the proportionality
requirement the Court has been careful to avoid rigid and inflexible
standards"; see R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-69.
Speaking specifically on s. 15 in Andrews v. Law Society of British
Columbia, at p. 198,
I thus ventured to articulate the considerations to be borne in mind:
The degree to which a free and
democratic society such as Canada should tolerate differentiation based on
personal characteristics cannot be ascertained by an easy calculus. There will
rarely, if ever, be a perfect congruence between means and ends, save where
legislation has discriminatory purposes. The matter must, as earlier cases
have held, involve a test of proportionality. In cases of this kind, the test
must be approached in a flexible manner. The analysis should be functional,
focussing on the character of the classification in question, the
constitutional and societal importance of the interests adversely affected, the
relative importance to the individuals affected of the benefit of which they
are deprived, and the importance of the state interest.
I should add that by state interest,
here I include not only those where the state itself is, in the words of the
majority in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 994,
"the singular antagonist", typically prosecuting crime, but also
where the state interest involves "the reconciliation of claims of
competing individuals or groups or the distribution of scarce . . . resources".
I shall have more to say about this later.
I turn, then, to the objectives of
the "law".
Objectives
The universities advance a
combination of intertwined purposes to justify their policies of mandatory
retirement which have been put into place by collective and other agreements
and pension plans. The central objectives of these policies, they say, are intended:
(1) to enhance and maintain their capacity to seek and maintain excellence by
permitting flexibility in resource allocation and faculty renewal; and, (2) to
preserve academic freedom and the collegial form of association by minimizing
distinctive modes of performance evaluation. These combined objectives, I have
no doubt, meet the "objectives test". Certainly, excellence in
higher education is an admirable aim and should be fostered. The preservation
of academic freedom is also an objective of pressing and substantial
importance.
Proportionality
It then becomes necessary to
assess whether the measures adopted are appropriate and proportional to the
objectives sought. In carrying out this assessment, Dickson C.J., in R.
v. Edwards Books and Art Ltd., supra, at p. 768, has set out a three-step approach that must ordinarily be
taken in the following passage:
Second, the means chosen to attain
those objectives must be proportional or appropriate to the ends. The
proportionality requirement, in turn, normally has three aspects: the limiting
measures must be carefully designed, or rationally connected, to the objective;
they must impair the right as little as possible; and their effects must not so
severely trench on individual or group rights that the legislative objective,
albeit important, is nevertheless outweighed by the abridgement of rights.
Rationality
The next question then is whether
the policies of mandatory retirement are rationally connected to the objectives
sought by the universities by these policies.
To answer this question, it
becomes imperative to look briefly at the relationship between the needs of the
universities and the tenure of faculty members. By and large, members of a
faculty begin their careers in university in their late 20s to mid-30s and with
retirement age at 65 this means that they continue on staff for some thirty to
thirty-five years. During this period, they must have a great measure of
security of employment if they are to have the freedom necessary to the
maintenance of academic excellence which is or should be the hallmark of a
university. Tenure provides the necessary academic freedom to allow free and
fearless search for knowledge and the propagation of ideas. Rigourous initial
assessment is necessary as are further assessments in relation to merit
increases, promotion and the like. But apart from this, and excepting cases of
flagrant misconduct, incompetence or lack of performance, strict performance
appraisals are non-existent and, indeed, in many areas assessment is extremely
difficult. In a tenured system, then, there is always the possibility of
dismissal for cause but the level of interference with or evaluation of faculty
members' performance is quite low. The desire to avoid such evaluation does
not, as I see it, relate solely or even principally to administrative
convenience. Rather, the desire is to maximize academic freedom by minimizing
interference and evaluation. Elimination of mandatory retirement would
adversely affect this for there could well be an increase in evaluation and
attempts to dismiss for cause, though it must be said that evidence on this
point is unavoidably lacking. The general situation is well stated by the
Court of Appeal, at p. 54:
The policy of tenure in university
faculties is fundamental to the preservation of academic freedom. It involves
a vigorous assessment by one's peers of academic performance after a
probationary period of up to five years. Once tenure is granted, it provides a
truly free and innovative learning and research environment. Faculty members
can take unpopular positions without fear of loss of employment. It provides
stability of employment, because once an academic is found worthy of tenure by
his or her peers, he or she can be assured of keeping that position until
death, or the normal age of retirement, unless there is termination for cause
following a properly conducted hearing before one's peers. This is based
usually on gross misconduct, incompetence, or persistent failure to discharge
academic responsibilities. Collegial governance is also a safeguard of
academic freedom. In addition to tenure, peer review is involved in
promotions, merit increases, appointment to senior administrative posts in a
department or faculty, and eligibility for research grants. Without mandatory
retirement, the imposition of a stricter performance appraisal system might be
required. It would be fraught with many difficulties, and would probably
require an assessment by one's peers or by outside experts. It could not be
unilaterally imposed by university administration because of the role of the
faculty or faculty associations in the governance of the university.
Mandatory retirement is thus
intimately tied to the tenure system. It is true that many universities and
colleges in the United States do not have a mandatory retirement but have
maintained a tenure system. That does not affect the rationality of the
policies, however, because mandatory retirement clearly supports the tenure
system. Besides, such an approach, as the Court of Appeal observed, would
demand an alternative means of dismissal, likely requiring competency hearings
and dismissal for cause. Such an approach would be difficult and costly and
constitute a demeaning affront to individual dignity.
Mandatory retirement not only
supports the tenure system which undergirds the specific and necessary ambience
of university life. It ensures continuing faculty renewal, a necessary process
to enable universities to be centres of excellence. Universities need to be on
the cutting edge of new discoveries and ideas, and this requires a continuing
infusion of new people. In a closed system with limited resources, this
can only be achieved by departures of other people. Mandatory retirement
achieves this in an orderly way that permits long-term planning both by the
universities and the individual.
There are, it is true, conflicting
arguments and evidence about the effect of mandatory retirement on faculty
renewal. There is evidence that losing faculty to retirement does generate new
jobs for younger faculty. There is also evidence that this is not always the
case and that often the correlation is not on an even one-to-one basis, i.e.,
it does not necessarily follow that for every faculty member who retires, a new
one is hired. That there is some correlation, however, cannot, on my view of
the evidence, be denied in a closed system like a university. It is a question
of resource allocation and some resources are obviously freed when a teaching
member retires. A similar approach has been judicially approved in the United
States. In Lamb v. Scripps College, 627 F.2d 1015 (1980), the United States Court
of Appeals, Ninth Circuit, accepted the legitimacy of the following
justifications for mandatory retirement in the academic context, at p. 1022:
. . . the opening of positions for
younger professors and minorities; relieving the financial burden caused by the
retention of highly paid senior employees; and avoiding the difficulty of
assessing individual performances for purposes of good cause discharges.
See also Palmer v.
Ticcione, 576 F.2d
459 (1978), which adopts the same rationale for other sectors.
From the above considerations, I
have no difficulty in concluding that there is a rational connection between
the university policies on mandatory retirement and the objectives sought to be
achieved by those policies. I turn, then, to the question whether measures to
attain these objectives infringed the right as little as possible.
Minimal Impairment
In assessing proportionality and
particularly the issue whether there has been a minimal impairment to a
constitutionally guaranteed right, it must be remembered that we are concerned
here with measures that attempt to strike a balance between the claims of
legitimate but competing social values. In the case of broadly based social
measures like these, where government seeks to mediate between competing
groups, it is by no means easy to determine with precision where the balance is
to be struck. As the majority of this Court observed in
Irwin Toy Ltd. v. Quebec (Attorney General), supra, at p. 993:
Thus, in matching means to ends
and asking whether rights or freedoms are impaired as little as possible, a
legislature mediating between the claims of competing groups will be forced to
strike a balance without the benefit of absolute certainty concerning how that
balance is best struck.
The approach taken to these cases
has been marked by considerable flexibility having regard to the difficulty of
the choices, their impact on different sectors of society and the inherent
advantages in a democratic society of the legislature in assessing these
matters. Implicit in earlier cases, this was expressly adopted in
Irwin Toy Ltd. v. Quebec (Attorney General). There, the majority put it this way, at pp.
993-94:
When striking a balance between the
claims of competing groups, the choice of means, like the choice of ends,
frequently will require an assessment of conflicting scientific evidence and
differing justified demands on scarce resources. Democratic institutions are
meant to let us all share in the responsibility for these difficult choices.
Thus, as courts review the results of the legislature's deliberations,
particularly with respect to the protection of vulnerable groups, they must be
mindful of the legislature's representative function. For example, when
"regulating industry or business it is open to the legislature to restrict
its legislative reforms to sectors in which there appear to be particularly
urgent concerns or to constituencies that seem especially needy" (Edwards
Books and Art Ltd.,
supra, at p. 772).
In short, as the Court went on to say,
the question is whether the government had a reasonable basis for
concluding that it impaired the relevant right as little as possible given the
government's pressing and substantial objectives. Speaking specifically of the
right in question there, the Court had this to say, at p. 994:
In the instant case, the Court is
called upon to assess competing social science evidence respecting the
appropriate means for addressing the problem of children's advertising. The
question is whether the government had a reasonable basis, on the
evidence tendered, for concluding that the ban on all advertising directed at
children impaired freedom of expression as little as possible given the
government's pressing and substantial objective. [Emphasis added.]
It is worth repeating the
government's (or rather the universities') pressing and substantial objectives
in the present case. They are: (1) to enhance and maintain their capacity to
seek and maintain excellence by permitting flexibility in resource allocation
and faculty renewal; and (2) to preserve academic freedom and the collegial
form of association by minimizing distinctive modes of performance evaluation.
Excellence in our educational institutions, and specifically in our
universities, is vital to our society and has important implications for all of
us. Academic freedom and excellence is essential to our continuance as a
lively democracy. Faculty renewal is required if universities are to stay on
the cutting edge of research and knowledge. Far from being wholly detrimental
to the group affected, mandatory retirement contributes significantly to an
enriched working life for its members. It ensures that faculty members have a
large measure of academic freedom with a minimum of supervision and performance
review throughout their period at university. They need not be unduly
concerned with a "bad year" or a few bad years, or that their productive
capacity may decline with the passing years. Security of employment is well
protected for a substantial number of years and they are spared demeaning tests
that would otherwise have to be employed. That is not to say, and there can be
no doubt, that mandatory retirement can be a source of considerable anguish for
those who do not wish to retire. But the "bargain" involved in
taking a tenured position has clear compensatory features even for the
individual affected, and it is noteworthy that it is the bargain sought by
faculty associations and indeed by labour unions in many other sectors of our
society.
Against the detriment to those
affected must be weighed the benefit of the universities' policies to society
generally and the individuals who compose it. It must be remembered as well
that, in a closed system with limited resources like universities, there is a
significant correlation between those who retire and those who may be hired.
Thus the young must be deprived of the opportunities to contribute to society
through work in the universities as part of the cost of retaining those
currently employed on an indefinite basis. The right to work, as this Court
has stated, is important. But it is important for the young as well as the
old. By this I am not suggesting that discrimination against the old is as
such justifiable to alleviate the difficulties faced by the young. But from
the standpoint of the university, and in turn of society, staff renewal is
vital. Again, the fact that the young would suffer some measure of deprivation
were mandatory retirement abolished would mean that students in turn would, to
that extent, be deprived of younger faculty members and of the better mix of
young and old that is a desirable feature of a teaching staff. The evidence
indicates that there is at present a significant problem of an older teaching
staff in universities.
Another matter merits
consideration. Universities comprise some of the outstanding research
facilities that are essential to push forward the frontiers of knowledge.
These have been acquired over the years by the expenditure of significant
private and public funds and there is need not only to encourage the best use
that can be made of them but also to adopt policies to give access to as many
as can benefit from, and contribute to, society by their use. The majority in
Irwin Toy Ltd. v. Quebec (Attorney General), supra, made it clear that the reconciliation of claims
not only of competing individuals or groups but also the proper distribution of
scarce resources must be weighed in a s. 1 analysis. Having observed that the
courts can ascertain with "some certainty" whether the "least
drastic means" has been chosen to achieve a desired objective where the
government is the "singular antagonist", typically in the case of
criminal sanctions and prosecutions, the majority then noted that this was not
the case with polycentric situations. It added, at p. 994:
The same degree of certainty may not
be achievable in cases involving the reconciliation of claims of competing
individuals or groups or the distribution of scarce government resources.
Weighing all the above matters, I
conclude that, to paraphrase the remarks from Irwin Toy Ltd.
v. Quebec (Attorney General), supra, previously cited, on the evidence the universities had a reasonable
basis for concluding that their mandatory retirement policies impaired the
appellants' rights as little as possible given the pressing and substantial
objectives they sought to achieve.
One final point may be mentioned.
It may be argued that in these days, 65 is too young an age for mandatory
retirement. At best, however, this is an exercise in "line drawing",
and in R. v. Edwards Books and Art Ltd., supra, at pp. 781-82, 800-801, this Court
made it clear that this was an exercise in which courts should not lightly
attempt to second-guess the legislature. While the aging process varies from
person to person, the courts below found on the evidence that on average there
is a decline in intellectual ability from the age of 60 onwards; see the
reasons of Gray J., supra, at pp. 76-77, and of the Court of Appeal, supra, at pp. 145-46. To raise the
retirement age, then, might give rise to greater demands for demeaning tests
for those between the ages of 60 and 65 as well as other shifts and adjustments
to the organization of the workplace to which I have previously referred.
Effects
It is evident from what I have
said in relation to the "minimal impairment" that the effects of the
universities' policies on mandatory retirement are not so severe as to outweigh
the government's pressing and substantial objectives. In the present
circumstances, the same factors have to be balanced in dealing with deleterious
effects and I need not repeat them.
Section 9(a) of the
Human Rights Code, 1981
Does
s. 9(a) contravene s. 15(1) of the Charter ?
I come now to the question whether
s. 9(a)
of the Human Rights Code, 1981 contravenes s. 15(1) of the
Charter by reason of
the fact that it confines the Code's prohibition against discrimination in
employment on grounds of age to persons between the ages of 18 and 65. The
effect of the restriction in s. 9(a), the appellants say, is that they are denied
protection against age-based employment discrimination under the
Human Rights Code, 1981.
There is no question that, the Code being a law, the Charter applies to it. In Re
Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513 (leave to appeal
denied, [1986] 1 S.C.R. xii), the Ontario Court of Appeal held invalid s. 19(2)
of the Code which provided that the right to equality without discrimination
because of listed personal characteristics accorded under s. 1 of the Code is
not infringed where membership in athletic activity is restricted to persons of
the same sex.
Nor can there be any doubt since
the Andrews case, which I have already discussed, that the differential treatment
to which the appellants have been subjected constitutes discrimination for the
purposes of s. 15(1) of the Charter . It deprives them of a benefit under the Code on the basis of their
age, a ground specifically enumerated in the Charter. It must be underlined that s. 15(1)
expressly guarantees the right to equality before and under the law; it also
guarantees the right to equal protection of the law. The following remarks of
McIntyre J. in Andrews v. Law Society of British Columbia, supra, at p. 171, are apposite:
It
is clear that the purpose of s. 15 is to ensure equality in the formulation and
application of the law. The promotion of equality entails the promotion of a
society in which all are secure in the knowledge that they are recognized at
law as human beings equally deserving of concern, respect and consideration.
It has a large remedial component. Howland C.J. and Robins J.A. (dissenting in
the result but not with respect to this comment) in Reference re an
Act to Amend the Education Act (1986), 53 O.R. (2d) 513, attempt to articulate the broad range of
values embraced by s. 15 . They state at p. 554:
In our view, s. 15(1) read as a
whole constitutes a compendious expression of a positive right to equality in
both the substance and the administration of the law. It is an
all-encompassing right governing all legislative action. Like the ideals of
"equal justice" and "equal access to the law", the right to
equal protection and equal benefit of the law now enshrined in the Charter
rests on the moral and ethical principle fundamental to a truly free and
democratic society that all persons should be treated by the law on a footing
of equality with equal concern and respect.
It is right, however, to indicate
with some precision what the discrimination is, and what it is not. The Code
does not impose mandatory retirement at any age. Its general effect, in this
context, is to prevent the making of a contract providing for mandatory
retirement at a fixed age of less than 65 unless the employer is able, under s.
23(b)
of the Code, to establish on a balance of probabilities that age is a
reasonable and bona fide qualification because of the nature of the employment. Such
protection can, in the government sector, also be obtained under the
Charter, without
reference to age at all, subject to reasonable limitation under s. 1 . The
Code, however, extends protection within the age limits prescribed against age
discrimination in employment in the private sector which, we saw, is not
directly affected by the Charter.
Though not directly relevant
perhaps, I should mention that s. 9(a) is also discriminatory in that it
provides for a minimum age of 18 years for those seeking protection under the
Code in respect of employment. That distinction is, I would think, readily
explicable on human, social and economic grounds. More relevant, however, is
the fact that until 1982 the Code or its predecessor statutes limited
protection on the basis of age to persons "of forty years or more and less
than sixty-five years". The Age Discrimination Act, S.O. 1966, c. 3, the first statute
that provided protection against discrimination in respect of employment, was
limited to those ages as was the Ontario Human Rights
Code Amendment Act,
S.O. 1972, c. 119, which extended the protection to other types of
discrimination. Those statutes, in fact, provided for a number of
qualifications to the age protection: an exemption for bona
fide superannuation
funds or plans, or insurance plans which discriminated on grounds of age, for
"special employment programs", and for an exemption based on "bona
fide occupational
qualification and requirement". The present restriction between the ages
of 18 and 65 was only proclaimed on June 15, 1982, a change that, as one can
see from the companion case of Harrison v. University of British
Columbia,
supra, has not yet been
made in all the provinces.
What this reveals, of course, is
that there has been a growing recognition of the need for protection against
distinctions on the basis of age as society has more clearly perceived its
discriminatory effects. It also reveals that, for a variety of reasons, there
has long been a differentiation made between it and other rights, and that like
other rights, it is not absolute. Under the Charter, however, questions as to whether
these qualifications have been made must be measured against the requirements
of s. 1 of that instrument. As a preliminary to that task, however, it appears
useful to deal first with the history of mandatory retirement and the place it
occupies in our society and its interrelationship with legislation, notably the
Human Rights Code, 1981,
aimed at preventing discrimination on the ground of age. This is in keeping
with Dickson J.'s admonition in R. v. Big M Drug Mart Ltd., supra, at p. 344, that it is important to
recall that the Charter was not enacted in a vacuum and must, therefore, be placed in its
proper linguistic, philosophic and historical contexts; see also
United States of America v. Cotroni, supra, at pp. 1490-91.
History
and Place of Mandatory Retirement
Retirement as a social phenomenon
is relatively new. It is a by-product of industrialization which effected a
separation between family life and work. Bismark is generally credited with
establishing 65 as the age for retirement when, through his initiative, Germany
adopted a public pension plan for the aged. At that time, 65 would certainly
have been considered "old", the life expectancy in Germany then being
45. When Great Britain adopted similar legislation in 1908, it initially
applied from age 70 but was later reduced to 65. Other countries followed
Bismark's lead.
Of greater significance for this
country is that this was the age adopted as the age when social security would
be paid pursuant to the Social Security Act, 49 Stat. 620, enacted by the United States
Congress in 1935. This measure was undoubtedly aimed at providing some
security for the aged, but it was also designed to remove older people from the
labour force in the interests of maintaining employment for younger workers
with families during the Depression years. There appears to have been no
special reason for the adoption of 65 beyond the fact that it appears to have
been widely accepted at the time. The Act did not mandate retirement at age 65
as such, but since people who were regularly employed were not entitled to
social security payments, this became the "normal" age of retirement;
see Retirement Without Tears, the Report of the [Canadian] Special Senate
Committee on Retirement Age Policies (1979); Mandatory
Retirement: The Social and Human Cost of Enforced Idleness, U.S. Congress Report by the Select
Committee on Aging (1977); Kertzer, "Perspectives on Older Workers:
Maine's Prohibition of Mandatory Retirement" (1981), 33 Me.
L. Rev. 157;
Graebner, A History of Retirement: The Meaning and Function of
an American Institution 1885-1978 (1980).
In Canada, mandatory retirement
developed with the introduction of private and public pension plans. It is not
based on law. In 1927, public security plans began with The
Old Age Pensions Act, 1927, S.C. 1926-27, c. 35, which adopted 70 as the age of entitlement, but
this was lowered to 65 in the 1960s. Other programs, such as the Old Age
Security (O.A.S.), Guaranteed Income Supplement and the Canada and Quebec
Pension Plans also provided that retirement benefits were to be paid beginning
at age 65. By the 1970s, the orientation in respect of the treatment of age
had been set. Public social security and pension schemes as well as private
pension plans were put in place in order to provide income security to older
persons; see Atcheson and Sullivan, "Passage to Retirement: Age
Discrimination and the Charter" in Bayefsky and Eberts,
Equality Rights and the Canadian Charter of Rights and Freedoms (1985), at p. 231.
Private businesses developed or
adapted their plans to complement and integrate with government pensions.
About one half of the Canadian work force occupy jobs subject to mandatory
retirement, and about two-thirds of collective agreements in Canada contain
mandatory retirement provisions at the age of 65, which reflects that it is not
a condition imposed on the workers but one which they themselves bargain for
through their own organizations. Generally, it seems fair to say that 65 has
now become generally accepted as the "normal" age of retirement.
This has had profound implications for the organization of the workplace -‑
for the structuring of pension plans, for fairness and security of tenure in
the workplace, and for work opportunities for others. The Court of Appeal succinctly
put the matter this way in describing what it saw as the objectives of s. 9(a), at p. 53:
One
of the primary objectives of s. 9(a) was to arrive at a legislative compromise
between protecting individuals from age-based employment discrimination and
giving employers and employees the freedom to agree on a date for the
termination of the employment relationship. Freedom to agree on a termination
date is of considerable benefit to both employers and employees. It permits
employers to plan their financial obligations, particularly in the area of
pension plans and other benefits. It also permits a deferred compensation
system whereby employees are paid less in earlier years than their productivity
and more in later years, rather than have a wage system founded on current
productivity. In addition it facilitates the recruitment and training of new
staff. It avoids the stress of continuous reviews resulting from ability
declining with age, and the need for dismissal for cause. It permits a seniority
system and the willingness to tolerate its continuance having the knowledge
that the work relationship will be coming to an end at a finite date.
Employees can plan for their retirement well in advance and retire with
dignity.
Another important objective of s.
9(a)
was the opening up of the labour market for younger unemployed workers. The
problem of unemployment would be aggravated if employers were unable to retire
their long-term workers.
To put it in its simplest terms,
mandatory retirement has become part of the very fabric of the organization of
the labour market in this country. This was the situation when s. 9(a) of the Human Rights
Code, 1981 was
enacted. It was the situation when the Charter was proclaimed as well.
It must be said, however, that
there has been a profound alteration in society's view of age discrimination in
recent years and, in consequence, of mandatory retirement. Originally, social
services schemes and private arrangements, which encouraged and sometimes
required mandatory retirement coupled with pension benefits were viewed as a
reward for a lifetime of service, and there is no doubt that the beneficial
aspects of these plans do serve the important goal of ensuring financial
security for the aged, and many still so regard it. But as Jacques Maritain
has taught us, human rights continue to emerge from human experience: Man
and the State
(1951). For some, it became all too obvious that retirement was a curse rather
than a blessing and resulted in deprivations of former advantages that a number
of commentators have denounced in biting terms: see, for example, McDougal,
Lasswell and Chen, "The Protection of the Aged from Discrimination"
in Human Rights and World Public Order (1980), chapter 15, especially at pp.
779-82.
Age had not fully emerged as an
unacceptable ground of discrimination when the early international human rights
documents were adopted. These did not specifically refer to age among
impermissible grounds of discrimination although their specific enumerations
were never regarded as exhaustive. At all events, in the light of growing
concerns about the issue, the United Nations undertook a study on the aged (Question
of the Elderly and the Aged (report of the Secretary General) U.N. Doc. A9126 (1973)), which
culminated in a resolution of the General Assembly in which that body,
emphasizing the "respect for the dignity and worth of the human
person", urged member states to "discourage, whenever and wherever
the overall situation allows, discriminatory attitudes, policies and measures
in employment practices based exclusively on age" (G.A. Res. 3137, U.N.
Doc. A19030 (1973)).
The evolving right against
discrimination on the ground of age is gaining ground in this and other
countries. I have mentioned earlier its partial recognition in the Human
Rights Codes. In some provinces, as in the British Columbia statute dealt with
in Harrison, supra, it is still only recognized in the form in which it existed in
Ontario before 1982. Other provinces, Quebec, New Brunswick and Manitoba, have
now gone further and prohibited age discrimination in employment altogether.
Similarly in 1967, the United States enacted the Age
Discrimination in Employment Act, 29 U.S.C. {SS} {SS} 621-634 (1976), although it was limited to
persons between 40 to 65. In 1977, however, Maine abolished as of 1980 all
mandatory retirement in both the public and private sectors (the Act is
discussed by Kertzer, "Perspectives on Older Workers: Maine's Prohibition
of Mandatory Retirement" supra.
The
Nature of the Right
Section 15(1) of the
Charter specifically
mentions age as one of the grounds of discrimination sought to be protected by
that provision, and there is no doubt as I have already indicated that such
discrimination, like the other categories mentioned, can constitute a
significant abridgement to the dignity and self-worth of the human person. It
must not be overlooked, however, that there are important differences between
age discrimination and some of the other grounds mentioned in s. 15(1) . To
begin with there is nothing inherent in most of the specified grounds of
discrimination, e.g., race, colour, religion, national or ethnic origin, or sex
that supports any general correlation between those characteristics and
ability. But that is not the case with age. There is a general relationship
between advancing age and declining ability; see "The Age Discrimination
in Employment Act of 1967" (1976), 90 Harv. L. Rev. 380, at p. 384; Tarnopolsky and
Pentney, Discrimination and the Law (1985), at p. 7-5. This hardly means that
general impediments based on age should not be approached with suspicion, for
we age at differential rates, and what may be old for one person is not
necessarily so for another. In assessing the weight to be given to that
consideration, however, we should bear in mind that the other grounds mentioned
are generally motivated by different factors. Racial and religious
discrimination and the like are generally based on feelings of hostility or
intolerance. On the other hand, as Professor Ely has observed, "the facts
that all of us once were young, and most expect one day to be fairly old,
should neutralize whatever suspicion we might otherwise entertain respecting
the multitude of laws . . . that comparatively advantage those between, say, 21
and 65 vis-à-vis those who are younger or older",
Democracy and Distrust
(1980), at p. 160. The truth is that, while we must guard against laws having
an unnecessary deleterious impact on the aged based on inaccurate assumptions
about the effects of age on ability, there are often solid grounds for
importing benefits on one age group over another in the development of broad
social schemes and in allocating benefits. The careful manner in which the
General Assembly Resolution on the rights of the aged is framed is worth
noting. Its recommendation discouraging discriminatory practices in employment
based exclusively on age is prefaced by the words that this be done "wherever
and whenever the overall situation allows".
I turn then to the balancing of
the competing values mandated by s. 1 of the Charter .
Section
1
Preliminary Issue
I have already referred in a
general way to the approach taken by this Court in weighing competing values in
assessing whether a legislative scheme or other law constitutes a reasonable
exception to a right guaranteed under the Charter, and I shall not repeat it here.
Before making this assessment, however, it is necessary to dispose of a preliminary
issue that has arisen in this case. In the Court of Appeal, the majority
largely confined its examination of s. 1 to the specific situation before it,
i.e., it considered the specific import of s. 9(a) of the Human Rights
Code, 1981 to
mandatory retirement in the university setting. On an examination of the
evidence in that specific area, it concluded that s. 9(a) constituted a reasonable exception
to the right under s. 15 of the Charter not to be subjected to discrimination
on the ground of age. Blair J.A. (dissenting), however, was of the view that
s. 9(a)
had to be considered against the background of all the situations to which it
could apply and in considering the issue in this way he concluded that s. 9(a) did not meet the requirements of s. 1
of the Charter . The trial judge, Gray J., I should say, also considered the whole
context against which the provision operated but concluded that it was
justified under s. 1 of the Charter .
I agree, and this was conceded by
the Attorney General for Ontario, that the analysis under s. 1 should not be
restricted to the university context. The appellants in this case were denied
the protection of the Code, not because they were university professors but
because they were 65 years of age or over. To restrict examination of its
application to the university context would be inconsistent with the first
component of the proportionality test enunciated by this Court in R.
v. Oakes, at p. 139,
namely, that "the measures adopted must be carefully designed to achieve
the objective in question". Section 9(a) is not restricted to the university
context, and while evidence respecting the specific context in which the issue
arises may, as I indicated earlier, serve as an example to demonstrate the
reasonableness of the objectives, it must not be confused with those
objectives. To the objectives I now turn.
Objectives
The objective of ss. 9(a) and 4 of the
Human Rights Code, 1981
is to extend protection against discrimination to persons in a specified age
range. The protection as originally prescribed was limited, we saw, to persons
between the ages of 45 and 65, an age group considered with considerable
justification to be most in need of protection. Barring specific skills, it is
generally known that persons over 45 have more difficulty finding work than
others. They do not have the flexibility of the young, a disadvantage often
accentuated by the fact that the latter are frequently more recently trained in
the more modern skills. Their difficulty is also influenced by the fact that
many in that age range are paid more and will generally serve a shorter period
of employment than the young, a factor that is affected not only by the desire
of many older people to retire but by retirement policies both in the private
and public sectors. By 1982, youth employment had also become a more serious
factor and the protection was extended, we saw, to the ages of 18 to 65.
Those over 65 are by and large not
as seriously exposed to the adverse results of unemployment as those under that
age. As mentioned earlier, many social security schemes and private pensions
are geared to have effect on the attainment of 65. The respondents, however,
did not rely on this factor as constituting a sufficient justification for the
differentiation made in the Code between those under, and those over 65. And
there is no question that while social security and private pension schemes may
afford some financial redress, many older people have need of additional
income, a situation that is becoming more apparent as people live longer.
Besides, as I indicated earlier, work cannot be considered solely from a purely
economic standpoint. In a work-oriented society, work is inextricably tied to
the individual's self-identity and self-worth. I need not pursue this further,
however, for as the respondents argued, there are several intertwined
objectives of these provisions and it is in terms of these combined objectives
that the legislation must be assessed.
The general objectives of the
legislature in enacting ss. 9(a) and 4, Gray J. noted, are readily apparent from
a reading of the debates leading to their enactment. Throughout the debate,
great concern was expressed about the perplexing problem of not affording
protection in the employment sector for those over 65, but in the end other
considerations predominated. After voicing his concerns about mandatory
retirement, the Minister, the Honourable Mr. Elgie, in moving second reading of
the Bill, continued (Ontario Hansard, May 15, 1981, at p. 743):
On
the other hand, I can appreciate the views of those employees who fear that
such a change might result in their delayed retirement and delayed benefits, especially
for those older workers who wish to take advantage of what they have considered
for years to be the normal age of retirement.
We also have to look at the labour
market ramifications of extending the definition of age under the code and the
effect it might have on younger persons entering the labour force. The rates
of unemployment there are chronically the highest.
Later, on May 25, 1981 (ibid., at p. 959), he again noted that
. .
. emotionally, we all want to do that [raise the age of mandatory retirement],
but in doing so we must make sure we do not deprive people of certain rights
they expect, and rightfully expect, when they retire.
We should not rush headlong into
that; we should recognize that we must not deprive people of certain benefits
they have come to expect following retirement, and we must be sure that we do
not interfere with hiring and personnel practices, and with the problem of
youth unemployment, by acting very hastily over an issue that we have strong
emotional feelings about.
At the Committee stage, the Minister
again spoke of the reasons why the government was not ready to abandon the age
of 65 as the upward limit for protection of the Code in the field of
employment. On December 1, 1981 (ibid., at p. 4097), he stated:
One
cannot address this issue without thoughtful consideration of the real issues -‑
the demographic issues, youth unemployment issues, pension benefits and the
changes that may be suddenly thrown on people who had not planned it in that
way. Those are things that have to be considered.
. . . Let us not pretend that there is
any disagreement about the principle. We are talking about the problems that
may arise, and that is what we are going to address in the study.
What comes out clearly from the debates
is the anguish of the members in the face of a measure, which for reasons they
viewed as overriding, they felt could not be extended to the protection of the
elderly, and the government undertook to make further studies of the
ramifications of raising the age limit.
Assuming the test of
proportionality can be met, most of the reasons identified by the Legislature
for not extending the protection of the Code to those over 65 warrant
overriding the constitutional right of the equal protection of the law. That
was the view, as well, of Gray J. who, in a passage (at p. 32) with which I am
in complete agreement, thus put the matter:
The foregoing excerpts from
Hansard indicate the true objectives of the Legislature in limiting protection
against age-based employment discrimination. Ramifications relating to the
integrity of pension systems and the prospects for younger members of the
labour force were the predominant concerns. The object of the age ceiling is
intimately related to the desire for cautious legislative reform. On their
face, these objectives and concerns are of sufficient importance to warrant
overriding a constitutionally protected right. The motivating concerns can be
readily characterized as "pressing and substantial in a free and democratic
society".
What we are confronted with is a
complex socio-economic problem that involves the basic and interconnected rules
of the workplace throughout the whole of our society. As already mentioned,
the Legislature was not operating in a vacuum. Mandatory retirement has long
been with us; it is widespread throughout the labour market; it involves 50 per
cent of the workforce. The Legislature's concerns were with the ramifications
of changing what had for long been the rule on such important social issues as
its effect on pension plans, youth employment, the desirability of those in the
workplace to bargain for and organize their own terms of employment, the
advantages flowing from expectations and ongoing arrangements about terms of
employment, including not only retirement, but seniority and tenure and,
indeed, almost every aspect of the employer-employee relationship. These
issues are surely of "pressing and substantial [concern] in a free and
democratic society". And as Gray J. observed at p. 32, this conclusion is
generally reinforced by reference to other industrialized democracies. The
United States, the United Kingdom, Ireland, Australia, the Federal Republic of
Germany, Norway and Japan all recognize some form of pension-associated mandatory
retirement.
As for the objective of reducing
youth unemployment, it seems to me that such objective should not be accorded
much weight. If the values and principles essential to a free and democratic
society include, according to Oakes, "respect for the inherent dignity of the
human person" and "commitment to social justice and equality",
then the objective of forcibly retiring older workers in order to make way for
younger workers is in itself discriminatory since it assumes that the continued
employment of some individuals is less important to those individuals, and of
less value to society at large, than is the employment of other individuals,
solely on the basis of age.
Proportionality
The objectives of the legislation
being sufficient to warrant overriding a constitutional right, it remains to
consider whether the means employed to achieve them are proportional in terms
of the guidelines previously enunciated by this Court and set forth earlier in
these reasons. First of the matters to be considered is whether these means
are rationally connected to the objectives.
Rationality
I find little difficulty in
holding that the legislation is rationally connected to its objectives and I
shall only briefly deal with this issue since most of the same considerations
arise in discussing whether the legislation impinges on the guaranteed right as
little as possible.
In examining this question, the
history of mandatory retirement and its position as an integral part of the
organization of the workplace, which I have already discussed, must not be
overlooked. And, as Gray J. observed, supra, at pp. 35-36, the courts'
"consideration of the propriety of the Legislature's methods cannot be
divorced from the knowledge that the Legislature's cautious conduct is
motivated by the concern for an orderly transition of values". I noted
earlier that the resolution of the General Assembly of the United Nations
itself manifests a recognition of the need to have regard for the "overall
situation" in advancing the rights of the aged.
The legislation obviously achieves
its purpose of maintaining stability in pension arrangements, and is thus
rationally connected to that end. That is true, as well, of the impact of
having a set age of retirement on conditions of work. Mandatory retirement is
part of a complex web of rules which results in significant benefits as well as
burdens to the individuals affected. In consequence, there is nothing
irrational in a system that permits those in the private sector to determine
for themselves the age of retirement suitable to a particular area of activity.
Finally, there is the concern for
youth unemployment. As I noted earlier, mandatory retirement appears to have
some influence on youth employment in closed systems such as universities. As
a general proposition, however, the evidence, as Gray J. noted, is somewhat
conjectural and I attach little weight to it. As Professor Pesando has pointed
out in a passage cited by the British Columbia Court of Appeal in
Harrison v. Univ. of B.C. (at p. 159), the job opportunities made available through mandatory
retirement should not be accorded a central role in the debate on mandatory
retirement.
On the whole, however, as stated
earlier, I have no difficulty concluding that the legislation is rationally
connected to the various objectives sought to be accomplished.
Minimal
Impairment
I turn then to the question
whether mandatory retirement impairs the right to equality without
discrimination on the basis of age "as little as possible". In
undertaking this task, it is important again to remember that the ramifications
of mandatory retirement on the organization of the workplace and its impact on
society generally are not matters capable of precise measurement, and the effect
of its removal by judicial fiat is even less certain. Decisions on such
matters must inevitably be the product of a mix of conjecture, fragmentary
knowledge, general experience and knowledge of the needs, aspirations and
resources of society, and other components. They are decisions of a kind where
those engaged in the political and legislative activities of Canadian democracy
have evident advantages over members of the judicial branch, as
Irwin Toy,
supra, at pp. 993-94,
has reminded us. This does not absolve the judiciary of its constitutional
obligation to scrutinize legislative action to ensure reasonable compliance
with constitutional standards, but it does import greater circumspection than
in areas such as the criminal justice system where the courts' knowledge and
understanding affords it a much higher degree of certainty.
In performing their functions of
ensuring compliance with the constitutional norms in these amorphous areas,
courts must of necessity turn to such available knowledge as exists and, in
particular, to social science research, both of a particular and general
nature. The Court of Appeal in its judgment (at pp. 49-51) has helpfully
described the difficult problems of evaluating these works and the extent to
which the judiciary should defer to legislative judgment in determining issues
of minimal impairment of a constitutional right when evidence rationally
supports the legislative judgment. This Court has, however, recently dealt
with these issues in Irwin Toy, supra, which I have discussed earlier in these reasons and I rely on what I
have already said there. I simply reiterate here that the operative question
in these cases is whether the government had a reasonable basis, on the
evidence tendered, for concluding that the legislation interferes as little as
possible with a guaranteed right, given the government's pressing and
substantial objectives.
In examining this question, it is
relevant as it was in the examination of the issue of the rationality of the
legislative means employed in attaining the Legislature's objectives, to recall
the historical origins of mandatory retirement at age 65 and its evolution as
one of the important structural elements in the organization of the workplace.
As a result of this development, I repeat, 65 has come to be generally
considered the normal age of retirement and some 50 per cent of the work force
is organized on the basis of mandatory retirement at that age. There is thus no
stigma attached to being retired at 65. It conforms as well to what most
people would do voluntarily. Indeed, the evidence indicates that there is an
increasing trend towards earlier retirement. Many regard it as a reward for
long years of service and, for one reason or another, look forward to
retirement. The estimates of workers who would voluntarily elect to work
beyond the age of 65 vary from 0.1 to 0.4 per cent of the labour force, or
4,787 to 19,148 persons annually in 1985, rising to 5,347 to 21,388 in the year
2000 (Dr. Foot's affidavit). And the likelihood is that a disproportionate
number rank among the more advantaged in society.
As noted earlier, mandatory
retirement forms part of a web of interconnected rules mutually impacting on
each other. In dealing with university policies on mandatory retirement, I
noted its impact in the university context. In that context, we saw, mandatory
retirement forms part of a system of long-term employment up to age 65. The
system involves increased remuneration over the years without, on the whole,
reference to ongoing performance, and reduces demeaning competency hearings for
dismissal and the like. I refer again to that portion of the Court of Appeal's
judgment at p. 54 cited above. As I mentioned earlier, while s. 9(a) cannot be looked at in the discrete
setting of the university, it serves as a microcosm that throws important light
on what is a widespread labour market phenomenon involving 50 per cent of the
work force and undoubtedly affecting other areas by a kind of osmosis.
While there are significant
differences from sector to sector, the university system is in many respects a
reflection of many other parts of the work force where mandatory retirement is
part of a complex, interrelated, lifetime contractual arrangement involving
something like deferred compensation. Certainly it is true of union-organized
labour where seniority serves as something of a functional equivalent to
tenure. Seniority not only allocates the high paying jobs to senior people; it
protects them against layoffs which are first allocated to younger people. And
it takes no great stretch of the imagination to understand that reduction in
performance in the years before retirement will be met with more understanding
and tolerance than if the person were not close to retirement. As I indicated,
this type of arrangement is reflected by osmotic forces in many other areas of
the work force. Many organizations are so arranged that the individual is paid
increasingly higher remuneration with the years with the expectation or
understanding that he or she will depart at a certain stage.
As the study by Professors
Gunderson and Pesando submitted by the respondents indicates, mandatory
retirement cannot be looked at in isolation. In the view of these scholars,
the repercussions of abolishing mandatory retirement would be felt "in all
dimensions of the personnel function: hiring, training, dismissals, monitoring
and evaluation, and compensation". All these issues would require to be
addressed. In a passage cited with approval by Gray J., at p. 38 these authors
observed:
In short, a number of issues regarding
the design of occupational pension plans would have to be addressed if
mandatory retirement were not permitted. So, too, would the wage policy
followed by many employers, especially when the pension benefit is linked to
the employee's earnings. The use of the occupational pension plan as a
vehicle for deferring
a portion of the employee's total compensation to the employee's later work
years may be reduced. As before, not permitting mandatory retirement is likely
to require compensating adjustments elsewhere in the compensation package and
in the set of work rules that govern the workplace.
In tinkering with mandatory retirement,
we are affecting an institution closely intertwined with other organizing rules
of the workplace.
The parties presented competing
social science evidence on each of these issues. The appellants began by
underlining that mandatory retirement simply constituted arbitrary treatment of
individuals on the sole ground that they are members of an identifiable group,
citing the 1985 Federal Parliamentary Committee on Equality Rights,
Equality For All, at
p. 21. While there may be some jobs where mandatory retirement can be
justified on the basis of a reasonable and bona fide occupational qualification, they
said, s. 9(a)
does not differentiate between these jobs and those where it cannot be so
justified. It would, they added, be easy to design a scheme permitting
mandatory retirement only in workplaces where it was required, for example, to
preserve the integrity of existing pension plans or to implement a scheme to
hire younger persons. At all events, they argued, the evidence they submitted
disclosed: that the abolition of mandatory retirement would not increase youth
employment; that pension plans do not require mandatory retirement to provide
financial security for employees; and that it would not have a significant
effect on personnel policies, including deferred compensation, dismissals,
evaluation and monitoring, or planning considerations which were in any event
matters only of administrative convenience or costs. They drew attention to
the fact that in several Canadian jurisdictions, New Brunswick, Quebec and
Manitoba, mandatory retirement had been abolished without adverse effects, and
the same was true of Maine.
The respondents naturally
submitted evidence supporting the opposite conclusions. Their argument and
evidence in support was that a number of consequences would likely arise at all
stages of the employment relationship. At the hiring stage, it could reduce
youth employment opportunities. As well, employers might be reluctant to hire
middle-aged workers in the absence of a known age when the contract must end,
and this might restrict promotion opportunities for older workers. Deferred
compensation would not be as feasible. As to working conditions, the evidence
they presented was to the following effect: dismissals of older workers would
likely increase; monitoring and evaluation of all workers would also increase;
so too would continuous monitoring and evaluation; ultimately, compensation of
older workers would fall and that of younger workers would rise; the importance
of seniority would be affected. In addition, the design of occupational
pension plans would have to be reviewed. As now constituted, these plans form
part of deferred compensation schemes which generally benefit workers.
In the face of these competing
views, it should not be altogether surprising that the Legislature opted for a
cautious approach to the matter. The Legislature, like this Court, was faced
with competing socio-economic theories, about which respected academics not
unnaturally differ. In my view, the Legislature is entitled to choose between
them and surely to proceed cautiously in effecting change on such important
issues of social and economic concern. On issues of this kind, where there is
competing social science evidence, I have already discussed what
Irwin Toy,
supra, has told us
about the stance the Court should take. In a word, the question for this Court
is whether the government had a reasonable basis for concluding that the
legislation impaired the relevant right as little as possible given the
government's pressing and substantial objectives.
We are told that a number of
jurisdictions have removed mandatory retirement and the apprehended effects
have not resulted. I should say, first of all, that this step did not result
from judicial fiat, but out of a legislative choice. A study on the Maine
legislation to which I have already referred (see Kertzer,
supra, at p. 168)
reveals the incremental way in which a legislative process for the abolition of
mandatory retirement proceeded. More important, however, is that we do not
really know what the ramifications of these new schemes will be and the
evidence is that it will be some 15 to 20 years before a reliable analysis can
be made. The American data available is open to question because the "tax
back" features of the American social security legislation discourage
workers from continuing to work beyond the normal retirement age. We thus do
not really know how many workers will opt for a longer working life in a
climate where 65 is no longer the normal age and thus the nature and extent of
the impact the removal of mandatory retirement would have on the organization
of the workplace.
Take the issue of pensions. The
importance of this issue and its interrelationship with mandatory retirement is
set forth by Professors Gunderson and Pesando in the following passage (at p.
8):
Mandatory retirement, as part of a
collective agreement or a company personnel policy, is highly correlated with
the existence of occupational pension plans. For example, the Conference Board
report (page 7) indicates that ninety-six per cent of their respondents with a
pension plan have a mandatory retirement policy. A recent Labour Canada report
indicates that 95 per cent of the pension plans in Canadian collective
agreements of 500 or more employees contain mandatory retirement clauses, and
that approximately 70 per cent of these agreements contain pension provisions.
Therefore, about two-thirds of these major collective agreements have mandatory
retirement provisions.
The appellants nonetheless argue
that the removal of mandatory retirement has no demonstrated effect on
pensions, and that any dislocations resulting from such removal could easily be
adjusted. But there is strong evidence to support Dickson C.J.'s remark in
Beauregard v. Canada,
[1986] 2 S.C.R. 56, at p. 83, that "there is a close relationship between
salaries and pensions". Professors Gunderson and Pesando put it this way:
Especially if the employee's
pension is linked to the employee's earnings just prior to retirement, the
pension plan is likely to be an important vehicle through which the deferral of
total compensation takes place (James E. Pesando, "The Usefulness of the
Wind-Up Measure of Pension Liabilities," Journal of
Finance, July 1985,
entered as Exhibit "L"). The pension benefits earned each year tend
to rise with the employee's age and years of service. Pension benefits become more
valuable as the employee nears the age at which they become payable, and wage
increases granted the employee have a magnified impact through the benefit
formula. Without mandatory retirement, there would likely be a reduction in
the willingness of employers to defer compensation. This would require
adjustments in pay policy and/or the pension plan on this account.
There is concern that if the age of
retirement is lifted, social security benefits will be moved upwards.
It can be seen, therefore, that
the concern about mandatory retirement is not about mere administrative
convenience in dealing with a small percentage of the population. The concern
is with the impact the removal of a rule that is generally beneficial for
workers would have on the compelling objectives the Legislature has sought to
achieve.
It is argued that the Legislature
should tailor the legislation so as to permit mandatory retirement only in
those industries where age constitutes a reasonable and bona
fide employment
requirement. As we saw in discussing university policies, however, one is not
necessarily concerned with whether a particular individual is or is not
competent to do the job. We are concerned with whether a private organization
should or should not be organized in those terms; see also
Stoffman v. Vancouver General Hospital, supra. It seems difficult to see how the Legislature
could in the absence of an examination in context of factors such as were
analyzed in the university context and in the context of these companion cases
be able to divine this ahead of time. Nor is it by any means obvious that a
Human Rights Commission is necessarily the most appropriate body to make that
assessment.
Indeed, there are not only valid
economic reasons, but sound reasons of social policy, for the Legislature's not
imposing its will in the area. Mandatory retirement is not government policy
in respect of which the Charter may be directly invoked. It is an arrangement negotiated in the
private sector, and it can only be brought into the ambit of the
Charter tangentially
because the Legislature has attempted to protect, not attack, a
Charter value. This
is not a case like Blainey, supra, where the provision in question could only have a discriminatory
purpose.
It must be remembered that what we
are dealing with is not regulation of the government's employees; nor is it
government policy favouring mandatory retirement. It simply reflects a
permissive policy. It allows those in different parts of the private sector to
determine their work conditions for themselves, either personally or through
their representative organizations. It was not a condition imposed on
employees. Rather it derives in substantial measure from arrangements which
the union movement or individual employees have struggled to obtain. It
results from employment contracts that ensure stable, long-term employment, and
some security for retirement. Far from being an unmitigated evil, it forms, as
Professor Gunderson puts it, "an intricate part of the interrelated
employment relationship" that is generally beneficial to both employers
and employees. Expectations have built up on both sides.
As I stated, the labour movement,
which comprises the most protected group of employees, fought for it for many
years. University faculties and personnel, with which we are directly
concerned here, actively sought it. The labour movement is now worried about
its elimination. The Canadian Labour Congress adopted a resolution on the
subject (No. 377), passed in 1980 and confirmed in 1982, which reads as
follows:
WHEREAS
the organized labour movement has fought hard and long legislative battles to
establish the mandatory retirement age of sixty-five (65) years; and
WHEREAS
the labour movement has continued to press for a lowering of the retirement age
with adequate pensions in order that workers may enjoy a few years of leisure
in good health; and
WHEREAS
a mandatory retirement age provides employment for Canada's youth entering the
labour market for the first time; and
WHEREAS
there has been recent discussion and especially Senator David Croll's report
expressing some desire to end the mandatory retirement age and encourage a
system of voluntary retirement;
BE IT RESOLVED that the Canadian
Labour Congress oppose the erosion of the mandatory retirement system, and that
the current permissive legal framework with regard to mandatory retirement be
maintained, so that the unions that wish to accept mandatory retirement are
free to do so and those that wish to eliminate it can do so through collective
bargaining.
Involved here, as I indicated, are
important social as well as economic values. The present
situation allows the parties concerned, the employers and the employees, the
freedom to agree about an issue of central importance to their lives and
activities. The freedom of employers and employees to determine conditions of
the workplace for themselves through a process of bargaining is a very
desirable goal in a free society. Certainly, the parties involved desire it.
The employers are contesting this action. The labour movement, which
represents a significant portion of the labour force and whose efforts have
benefited other workers, both through legislation adopting standard conditions
in collective agreements and through private agreements that emulate them,
contests it as well.
Both employers and employees may
prefer a contractual relationship which includes a definite termination date
rather than an indefinite work term, because such an agreement provides a
number of benefits to both parties. I have already referred to these -‑
a type of deferred compensation scheme, periodic as opposed to continuous
monitoring that may prevail if an employee's compensation is tied to
productivity at all times, a "due process" scheme achieved through
seniority rules, consensual evaluation and promotion procedures, a known time
ending the work relationship which permits both employer and employee to engage
in long-term planning, and a desire for a termination date that allows the
individual to retire with dignity. These are looked upon by both sides as
characteristics of a lifetime contractual arrangement in which mandatory
retirement is an integral part. Though an individual may, quite
understandably, object to being mandatorily retired when he or she becomes 65,
it does not alter the fact that this was the arrangement that underlay the
expectations of both parties at the beginning and throughout the employee's
working life and for which they contracted.
I do not intend here to take sides
on the economic arguments, and it may well be that acceptable arrangements can
be worked out over time to take more sensitive account of the disadvantages
resulting to the aged from present arrangements. But I am not prepared to say
that the course adopted by the Legislature, in the social and historical
context through which we are now passing, is not one that reasonably balances
the competing social demands which our society must address. The fact that
other jurisdictions have taken a different view proves only that the
Legislatures there adopted a different balance to a complex set of competing
values. The latter choice may impinge on important rights of others,
especially those near retirement. The observations I made in R.
v. Edwards Books and Art Ltd., supra, at p. 795, have application here:
By the foregoing, I do not mean to
suggest that this Court should, as a general rule, defer to legislative
judgments when those judgments trench upon rights considered fundamental in a
free and democratic society. Quite the contrary, I would have thought the
Charter established
the opposite regime. On the other hand, having accepted the importance of the
legislative objective, one must in the present context recognize that if the
legislative goal is to be achieved, it will inevitably be achieved to the detriment
of some. Moreover, attempts to protect the rights of one group will also
inevitably impose burdens on the rights of other groups. There is no perfect
scenario in which the rights of all can be equally protected.
In such circumstances, as I there
stated, "a legislature must be given reasonable room to manoeuvre to meet
these conflicting pressures". What a court needs to consider is whether,
on the available evidence, the Legislature may reasonably conclude that the
protection it accords one group does not unreasonably interfere with a
guaranteed right. To repeat the formulation adopted in
Irwin Toys,
supra, the
Legislature had a reasonable basis for concluding that the rights of the aged
were impaired as little as possible given the government's pressing and
substantial objectives.
Overbreadth
I have dealt with s. 9(a) of the Human Rights
Code, 1981 solely in
terms of mandatory retirement. That, as I see it, is the real cause of concern
about the provision. It is right to say, however, that the appellants' attack
on the provision was more comprehensive. In their counsel's view, s. 9(a) denies them any protection against
any form of age-based employment discrimination under the Code. Even if it
could be justified if confined to mandatory retirement, he argued, it would
simply be overbroad.
Counsel did not press this
argument too strongly, and in my view rightly so. With respect, it seems to
me, the argument addresses concerns that are more fanciful than real. In R.
v. Edwards Books and Art Ltd., supra, at p. 795, I cautioned against a too abstract, too theoretical,
approach to constitutional interpretation. The Constitution, I there observed,
must be applied on a realistic basis taking account of the practical, living
facts to which legislation is addressed. Here counsel for the appellants was
hard-pressed to give an example of age-based discrimination that would not
otherwise be covered by the Code. The one example he did give, a highly
unlikely situation in the workplace, could be dealt with by the Code as
harassment. It would be wrong to let the constitutionality of the legislation
hang on the Legislature's failure to address situations that are, for all
practical purposes, hypothetical in the workplace. This fussy concern for
legislative perfection cannot realistically be expected. In fact, it may be,
as counsel for the universities suggested, that the Legislature may have wished
to allow some flexibility to make adjustments with respect to hours of work or
responsibilities on the basis of age. Nobody doubts that the effective impact
of the provision is in relation to mandatory retirement.
Effects
There remains the question whether
there is a proportionality between the effects of s. 9(a) of the Code on the guaranteed right
and the objectives of the provision. From the perspective from which the
arguments were, for the most part, advanced, I could say, as I did in respect
of the universities' policies, that this enquiry really involved the same
considerations as were discussed in dealing with the issue of whether the
legislation met the test of minimal impairment.
That is certainly true, but it
seems to me that the legislation may usefully be approached from a rather
different, and probably truer, perspective. It is important to keep in mind
that the Legislature did not purport to legislate about mandatory retirement at
all. What it genuinely sought to do was to protect individuals within a
particular age range. Given the macro-economic and social concerns of
extending this protection beyond 65, it did not accord the same protection
beyond that age. The effect, of course, was to deny equal protection of the
law for those over 65, just as, I suppose, government does not accord equal
benefit of the law by granting old age pensions at 65, rather than at 63 or 64
for those who need it.
It seems to me, however, that the
courts must exercise considerable caution in approaching this type of
Charter problem.
This is not a case like Blainey, supra, where there is no legitimate ground to support a provision. It is
quite obvious from looking at the situation there that the different treatment
accorded women was simply based on an irrelevant personal trait. In short, it
was sex discrimination. The situation is quite different here. The
Legislature sought to provide protection for a group which it perceived to be
most in need and did not include others for rational and serious considerations
that, it had reasonable grounds to believe, would seriously affect the rights
of others.
In looking at this type of issue,
it is important to remember that a Legislature should not be obliged to deal with
all aspects of a problem at once. It must surely be permitted to take
incremental measures. It must be given reasonable leeway to deal with problems
one step at a time, to balance possible inequalities under the law against
other inequalities resulting from the adoption of a course of action, and to
take account of the difficulties, whether social, economic or budgetary, that
would arise if it attempted to deal with social and economic problems in their
entirety, assuming such problems can ever be perceived in their entirety. This
Court has had occasion to advert to possibilities of this kind. In R.
v. Edwards Books and Art Ltd., Dickson C.J., there dealing with the regulation of business and
industry, had this to say, at p. 772:
I
might add that in regulating industry or business it is open to the legislature
to restrict its legislative reforms to sectors in which there appear to be
particularly urgent concerns or to constituencies that seem especially needy.
In this context, I agree with the opinion expressed by the United States
Supreme Court in Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955), at p. 489:
Evils in the same field may be of
different dimensions and proportions, requiring different remedies. Or so the
legislature may think . . . . Or the reform may take one step at a time,
addressing itself to the phase of the problem which seems most acute to the
legislative mind . . . . The legislature may select one phase of one field and
apply a remedy there, neglecting the others.
The question becomes whether the
cut-off point can be reasonably supported. In Blainey, it could not. Here I think it can
and I do not think (though this is a matter that always bears scrutiny) that
the cut-off point, which is not only reasonable but is appropriately defined in
terms of age, is necessarily invalid because this is a prohibited ground of
discrimination. The Charter itself by its authorization of affirmative action under s. 15(2)
recognized that legitimate measures for dealing with inequality might
themselves create inequalities. It should not, therefore, be cause for
surprise that s. 1 of the Charter should allow for partial solutions to
discrimination where there are reasonable grounds for limiting a measure.
This leads to a final
consideration. The Charter, we saw earlier, was expressly framed so as not to apply to private
conduct. It left the task of regulating and advancing the cause of human
rights in the private sector to the legislative branch. This invites a measure
of deference for legislative choice. As counsel for the Attorney General for
Saskatchewan colourfully put it, this "should lead us to ensure that the
Charter doesn't do through the back door what it clearly can't do through the
front door". Not, I repeat, that the courts should stand idly by in the
face of a breach of human rights in the Code itself, as occurred in
Blainey. But generally,
the courts should not lightly use the Charter to second-guess legislative judgment
as to just how quickly it should proceed in moving forward towards the ideal of
equality. The courts should adopt a stance that encourages legislative
advances in the protection of human rights. Some of the steps adopted may well
fall short of perfection, but as earlier mentioned, the recognition of human
rights emerges slowly out of the human condition, and short or incremental
steps may at times be a harbinger of a developing right, a further step in the
long journey towards full and ungrudging recognition of the dignity of the
human person.
Disposition
I would dismiss the appeal. I
would answer the constitutional questions as follows:
1.Does s. 9(a) of the Ontario
Human Rights Code, 1981,
S.O. 1981, c. 53, violate the rights guaranteed by s. 15(1) of the
Canadian Charter of Rights and Freedoms ?
Yes.
2.Is s. 9(a) of the Ontario
Human Rights Code, 1981,
S.O. 1981, c. 53, demonstrably justified by s. 1 of the
Canadian Charter of Rights and Freedoms as a reasonable limit on the rights guaranteed
by s. 15(1) of the Charter ?
Yes.
3.Does the
Canadian Charter of Rights and Freedoms apply to the mandatory retirement provisions of
the respondent universities?
No.
4.If the
Canadian Charter of Rights and Freedoms does apply to the respondent universities, do
the mandatory retirement provisions enacted by each of them infringe s. 15(1)
of the Charter ?
If
these provisions had been enacted by government, they would infringe s. 15(1)
of the Charter .
5.If the
Canadian Charter of Rights and Freedoms does apply to the respondent universities, are
the mandatory retirement provisions enacted by each of them demonstrably
justified by s. 1 of the Charter as a reasonable limit on the rights guaranteed by s. 15(1) of the
Charter ?
If
question 4 had been answered in the affirmative, these provisions would
nevertheless be justified under s. 1 of the Charter .
//Wilson J.//
The following are the reasons
delivered by
WILSON J. (dissenting) -- This appeal and
those heard along with it were grouped together in order that this Court review
the applicability of the Canadian Charter of Rights and Freedoms to a number of different entities
performing different kinds of public functions which the government has an
interest in having performed. It was hoped that through an examination of
these entities, their constitutions, their objects, how they were regulated or
controlled, how they were funded, and how they conducted their affairs, some
criteria could be developed for application in a principled way in determining
whether other entities performing such functions or comparable functions were
or were not covered by s. 32 of the Charter. If such criteria could be
developed, as opposed to having each entity brought before the Court and the
question addressed on a case by case basis, it would obviously be desirable in
that both government and such entities could at least make an informed
assessment as to whether or not their conduct would be subject to
Charter scrutiny. It
is with this objective in mind, therefore, that I approach the first question
addressed by my colleague Justice La Forest in this appeal, namely does
the Charter apply to universities?
I. To Whom Does the
Charter Apply?
Section 32(1) of the
Charter states:
32. (1) This Charter applies
(a)to the Parliament and government of
Canada in respect of all matters within the authority of Parliament including
all matters relating to the Yukon Territory and Northwest Territories; and
(b)to the legislature and government of
each province in respect of all matters within the authority of the legislature
of each province.
The appropriate approach to the
interpretation of this section received detailed treatment by this Court in
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. At issue was the question whether a court
injunction to restrain a union from engaging in secondary picketing infringed a
union's freedom of expression under s. 2 (b) of the Charter . This, in turn, raised the question
whether a court order obtained in the course of a dispute between a company and
a union was subject to review under the Charter.
Justice McIntyre, speaking for the
Court on this issue, began his analysis of the Charter's applicability by observing that s.
32(1) of the Charter made clear that the Charter applied to the Parliament and government of Canada and to the
legislatures and governments of the provinces. But because s. 32(1) made no
reference to private parties it was his view that the
Charter did not apply
to private litigation divorced from any connection to government. He then went
on to discuss what "government" as used in the section meant. He
said at p. 598:
Section 32(1) refers to the Parliament
and Government of Canada and to the legislatures and governments of the
Provinces in respect of all matters within their respective authorities. In
this, it may be seen that Parliament and the Legislatures are treated as
separate or specific branches of government, distinct from the executive branch
of government, and therefore where the word `government' is used in s. 32 it
refers not to government in its generic sense ‑- meaning the whole of the
governmental apparatus of the state ‑- but to a branch of government. The
word `government', following as it does the words `Parliament' and
`Legislature', must then, it would seem, refer to the executive or
administrative branch of government. This is the sense in which one
generally speaks of the Government of Canada or of a province. I am of the
opinion that the word `government' is used in s. 32 of the
Charter in the sense
of the executive government of Canada and the Provinces. [Emphasis added.]
Having concluded that
"government" meant the executive or administrative branch of
government, McIntyre J. then moved on to consider the ways in which the
executive or administrative branch could violate the Charter. He concluded that it could happen
in two different ways. The executive could act pursuant to legislation which
was itself in violation of the Charter. Or it could act on a common law
principle which resulted in a violation of the Charter. He said at p. 599:
It would seem that legislation is the
only way in which a legislature may infringe a guaranteed right or freedom.
Action by the executive or administrative branches of government will generally
depend upon legislation, that is, statutory authority. Such action may also
depend, however, on the common law, as in the case of the prerogative. To the
extent that it relies on statutory authority which constitutes or results in an
infringement of a guaranteed right or freedom, the Charter will apply and it will be
unconstitutional. The action will also be unconstitutional to the extent that
it relies for authority or justification on a rule of the common law which
constitutes or creates an infringement of a Charter right or freedom. In this way the
Charter will
apply to the common law, whether in public or private litigation. It will apply
to the common law, however, only in so far as the common law is the basis of
some governmental action which, it is alleged, infringes a guaranteed right or
freedom. [Emphasis
added.]
McIntyre J. then turned to the
question that lay at the heart of Dolphin Delivery, namely whether for the purposes of
Charter application a
court order should be viewed as government action. He concluded at pp. 600-601
that it should not:
While in political science terms it is
probably acceptable to treat the courts as one of the three fundamental
branches of Government, that is, legislative, executive, and judicial, I cannot
equate for the purposes of Charter application the order of a court with an element of governmental
action. This is not to say that the courts are not bound by the
Charter. The
courts are, of course, bound by the Charter as they are bound by all law. It is
their duty to apply the law, but in doing so they act as neutral arbiters, not
as contending parties involved in a dispute. To regard a court order as an
element of governmental intervention necessary to invoke the
Charter would,
it seems to me, widen the scope of Charter application to virtually all private
litigation. All cases
must end, if carried to completion, with an enforcement order and if the Charter precludes the making of the order,
where a Charter right would be infringed, it would seem that all private litigation
would be subject to the Charter. In my view, this approach will not provide the answer to the
question. A more direct and a more precisely-defined connection between the
element of government action and the claim advanced must be present before the
Charter applies.
[Emphasis added.]
McIntyre J. acknowledged the
difficulty in defining exactly what element of government involvement was
necessary in order to bring the Charter into play. He did, however, indicate
at p. 602 that the Charter applied to subordinate legislation such as "regulations, orders
in council, possibly municipal by‑laws, and by‑laws and regulations
of other creatures of Parliament and the Legislatures". Where government
action of this kind was relied on by a private litigant as giving rise to an
infringement of the Charter rights of another, the Charter would apply. But a court order alone
could not be relied on as constituting government action for
Charter purposes. He
said at p. 603:
Where, however, private party
"A" sues private party "B" relying on the common law and
where no act of government is relied upon to support the action, the
Charter will not
apply.
McIntyre J. concluded his analysis
by observing that in the case before him there was no offending statute. There
was simply a common law rule that rendered secondary picketing tortious and
subject to injunctive restraint on the basis that such picketing induced a
breach of contract. While the Charter applied to the common law when
government action was based upon it, McIntyre J. was of the view that in the
case before him there was no government action that would bring the
Charter into play.
What principles then are to be
drawn from Dolphin Delivery? It seems to me that there are three:
(i)
s. 32(1) of the Charter applies to legislation broadly defined and to acts of the executive or
administrative branch of government;
(ii)
s. 32(1) of the Charter does not apply to private litigation divorced from any connection to
government; and,
(iii)
a court order does not constitute government action for purposes of
Charter review.
These conclusions, particularly
the second and third, have been the subject of considerable criticism. Some
critics have found the Court's interpretation of the section ambiguous. Others
simply disagree with it. But it is clear that there are at least two divergent
lines of thought underlying the criticism and it might be helpful to address
them.
1. Academic
Opinion
(a)
The Common Law/Statute Distinction
A number of critics have
interpreted the Court's reasons in Dolphin Delivery as drawing a distinction between the
common law and legislation and then suggesting that the common law and private
litigation are linked and that legislation and litigation in which government
is involved are linked. Having interpreted the decision in this manner, the
critics then point out that, if this were correct, the
Civil Code of Lower Canada would be subject to Charter review but the bulk of the common law would not. Professor Otis puts
the point this way:
Amazingly, the Justices of the
Supreme Court of Canada do not appear to have realized that such a sharp
distinction between the common law and statute law in applying the
Charter could be of
significant consequence for the civil law system of Quebec. Virtually the whole
field of private legal relationships in Quebec is governed by the Civil Code or
statutes. If the Court's reasoning in Dolphin
Delivery is applied
to characterize the Code under subsection 32(1), the Charter seems likely to have a broader scope
in Quebec than in the common law provinces where judge-made law relating to
private dealings is immune from direct constitutional challenge. Quebecers
potentially enjoy more extensive constitutional protection than other Canadians
and, conversely, Quebec's private law is subjected to potentially greater
constitutional constraint than its common law counterparts. This arguably
amounts to little less than instituting a dual constitutional order in Canada
on the slim ground that "government" in subsection 32(1) must be
given an institutional connotation.
(Otis, "The Charter, Private
Action and the Supreme Court" (1987), 19 Ottawa L. Rev. 71, at p. 87.)
Others have made the same point: see
Slattery, "The Charter's Relevance to Private Litigation: Does Dolphin Deliver?" (1987), 32
McGill L.J. 905, at
p. 910; and Howse, "Dolphin Delivery: The Supreme Court and the Public/Private
Distinction in Canadian Constitutional Law" (1988), 46 U.T.
Fac. L. Rev. 248, at
p. 251. Moreover, Professor Slattery submits that given that in much of Canada
the application of the common law ultimately depends on explicit provisions in
various Reception Acts, it is difficult to see how one can justify excluding
that common law from Charter review: see Slattery, supra, at p. 910.
Having pointed to one of the ways
in which they feel the common law/statute distinction gives rise to
difficulties, a number of critics then proceed to attack the distinction at a
more general level. Professor Manwaring, for example, observes that it
"seems inconsistent to say that the rules governing secondary picketing in
British Columbia can be challenged to the extent that they infringe on freedoms
of expression solely because they are found in a statute whereas the more
restrictive rules in the other jurisdictions cannot be because the legislatures
chose consciously not to legislate": see Manwaring, "Bringing the
Common Law to the Bar of Justice: A Comment on the Decision in the Case of
Dolphin Delivery Ltd."
(1987), 19 Ottawa L. Rev. 413, at p. 444.
Professor Slattery accepts that
important distinctions exist between the common law and legislation but
emphasizes that "these differences are irrelevant to the question of the
Charter's application
to private relations": see Slattery, supra, at p. 917. He goes on to ask:
Does it make sense to hold that the
Charter applies to
relations between private parties where those relations are regulated by
legislation, but not when they are governed by the common law? Are there good
reasons in principle or policy, or in the clear wording of the Charter, for reaching this result? Or is the
distinction an arbitrary one, producing artificial and unprincipled results?
[Emphasis in original.]
And in a passage that captures the
essence of much of the criticism directed at the common law/statute distinction,
Howse suggests that "McIntyre J.'s identification of common law rules with
private ordering and his definition of government action in terms of statute
and government activity pursuant to statute represent a formalistic approach to
the constitutionally relevant meaning of government action": see Howse,
supra, at p. 251.
In my view, this criticism is
based on a misinterpretation of the judgment in Dolphin
Delivery. I cannot
find that McIntyre J. identified the common law with private litigation and legislation
with litigation in which government is involved. He in fact made it clear that
the crucial element was action by the executive or administrative branch of
government based on either legislation which violates the
Charter or a common
law principle which results in a violation of the Charter. He states very clearly, in my
opinion, in the passage I have underlined from p. 599 of his reasons that the
Charter applies to
the common law, whether in public or private litigation, provided the
government has acted upon it. Obviously, it follows from his analysis that
while legislation (the act of the legislature) can be subject to
Charter review
regardless of any executive or administrative action being based upon it, the
common law will not be subject to Charter review absent any government action
based upon it. This is a necessary conclusion from his view that s. 32(1)
requires either a legislative act (legislation broadly construed) or an act of
the executive or administrative branch of government based on a common law
principle which results in a violation of the Charter. This is the consequence, he states,
of the Charter's being made applicable in s. 32(1) to legislatures and
governments.
I agree with the commentators that
one of the consequences of Dolphin Delivery's refusal to apply the Charter to the common law absent government
action is that the Charter will have a broader application in Quebec than in the other
provinces. However, it seems inescapable that all legislation including the
Civil Code of Quebec
is subject to Charter review under s. 32(1). I see no basis on which the
Civil Code can be
distinguished for this purpose from other legislation. One might speculate as
to whether Parliament overlooked this problem when it enacted s. 32(1),
particularly if Professor Hogg is correct that the legislative history supports
the view that Parliament did not intend the Charter to apply to private action: see Hogg,
Constitutional Law of Canada (2nd ed. 1985), at pp. 23‑24. The necessary result of this, it
seems to me, is that government action of some sort is a pre‑requisite
for Charter review of common law principles.
The real issue, it seems to me, is
whether the Court was correct in concluding that on the wording of
s. 32(1) of the Charter government involvement of some kind was required in order to trigger
Charter scrutiny. I
propose to return to this later.
(b)
The Status of Court Orders
The second major criticism of
McIntyre J.'s judgment, i.e., that it is a mistake not to treat court orders as
government action, is particularly challenging because it raises complex
questions concerning the very nature of government action. In discussing this
aspect of the decision many of Dolphin Delivery's critics have been quick to point to
a seeming contradiction in McIntyre J.'s reasoning. For example, Professor
Manwaring, supra, states at p. 438:
His
reasoning on this point is confusing in spite of its importance to the result.
He said that the courts are bound by the Charter in the same way that they are bound
by all law but, at the same time, he argued that court orders are not
governmental action for the purposes of section 32 because the courts are not
part of the executive branch of government. They act as neutral arbiters. This
implies that courts have an independent constitutional status that exempts them
from the Charter. This reasoning is contradictory because it suggests that the courts
are at the same time bound and not bound without providing any clear criteria
which would permit us to decide when the Charter will apply.
If the courts are bound by the
Charter it makes no
sense to suggest that they do not have to respect it when making orders.
Other critics have gone on to make
at least three points concerning McIntyre J.'s observations about court orders
and the apparent tension in his reasoning. First, several writers have
stressed that various sections of the Charter make clear that there are
instances in which the Charter applies to courts. Professor Hogg, for example, states that ss. 11 ,
12 , 13, 14 and 19 of the Charter obviously apply to the courts: see Hogg, "The
Dolphin Delivery Case:
The Application of the Charter to Private Action" (1986-87), 51 Sask. L. Rev. 273, at p. 275; see also Howse,
supra, at p. 251.
Professor Hogg notes that courts in this country have been established or
continued by statute and that "their powers to grant injunctions and make
other orders are granted (or continued) by statute". Given that other
statutory tribunals will have to comply with the Charter, he asks, "Why not the
courts?": see Hogg, supra, at p. 275.
A second and more sweeping line of
attack suggests that McIntyre J.'s analysis of s. 32(1) is simply incompatible
with a robust understanding of s. 52 of the Constitution
Act, 1982 . Professor
Beatty puts the argument this way:
For those who read section 52
comprehensively, as elevating the Constitution and the rule of law above all
branches of our government, the result can be no different when the same or a
similar law is declared to be the deciding rule by the judicial branch of our
government. Regardless of which of the three branches of government exercises
the authority of the state to reconcile these competing freedoms, the force and
coercion of the law will be the same.
(Beatty, "Constitutional
Conceits: The Coercive Authority of Courts" (1987), 37
U.T.L.J. 183, at p.
187.)
Professor Slattery argues that
courts must be seen as a branch of government: courts "act in the
name of the community as a whole, as symbolized by the Crown, and derive their
authority from that fact. In this respect they represent the State, even if
they function differently than other branches of government" (Slattery,
supra, at p. 918).
Similarly, Professor Gibson states:
If one were to inquire why, in the
opinion of most constitutionalists, and now of the Supreme Court of Canada,
governmental actors should be subjected to a more stringent obligation to
respect rights and freedoms than private actors, the most frequent answer would
surely be: because government activities, backed by the overwhelming power of
the State, have much greater potential for oppression than do private
activities. Do judicial powers carry less potential for oppression than
executive powers? Clearly not. Judges wield at least as much power over
individual citizens as do most bureaucrats. Sometimes it includes the power of
life and death. At the highest level, the judiciary could be said to hold even
greater power than the executive, since decisions of the Supreme Court of
Canada, unlike those of the Cabinet, are immune from judicial review.
(Gibson, " What did Dolphin
Deliver?", in Gérald-A. Beaudoin, ed., Your Clients
and the Charter -‑ Liberty and Equality (1987), at p. 83.)
Finally, some critics have gone on
to articulate a third line of attack on the proposition that court orders are
not government action. They have emphasized that it is well accepted in the
United States both that court action may constitute government action and that
attempts to distinguish courts from government are likely to prove
unsuccessful: see, for example, Manwaring, supra, at p. 440. Furthermore, Professor
Etherington has observed that many of the academics whose work McIntyre J.
found persuasive in Dolphin Delivery conclude that the Charter should not apply to private action
and at no time suggest that the Charter does not apply to private litigation:
see Etherington, "Retail, Wholesale and Dept. Store Union, Local 580 v. Dolphin
Delivery Ltd."
(1987), 66 Can. Bar Rev. 818. At page 833, he notes:
But all treat the question, whether
the Charter should apply to private litigation where a court is asked to
enforce a common law rule which infringes a Charter right, as a separate issue
under the question of what constitutes governmental action. Swinton remains
noncommittal on the question of whether the Charter should apply to private
litigation in such circumstances. McLellan and Elman suggest that it is likely
that the Charter will have an indirect impact on private activity by this
route, while Hogg advocates the adoption of the Shelley v. Kraemer [334 U.S. 1 (1948)] and N.Y.
Times Co. v.
Sullivan [376 U.S.
254 (1964)] doctrine in such cases to preclude the judicial enforcement of
common law doctrines that would infringe Charter rights. Although Hogg's
position on the central question at issue in Dolphin
Delivery is revealed
with some clarity later in the judgment, McIntyre J.'s assertion that his
conclusion, that the Charter does not apply to private litigation, has been
adopted by most commentators who have dealt with this question is not convincing.
To summarize, critics of the
proposition that court orders are not government action stress: (i) that
various sections of the Charter are obviously applicable to the courts, (ii) that s. 52 of the
Constitution Act, 1982
requires that s. 32(1) of the Charter be interpreted in such a way as to
bind courts by its provisions, and (iii) that courts represent the state as
much as any other branch of government.
Let us return to McIntyre J.'s
analysis on this point. The nub of it appears in the passage which I have
underlined from p. 600 of his reasons. It states:
The courts are, of course, bound by
the Charter as they are bound by all law. It is their duty to apply the law, but
in doing so they act as neutral arbiters, not as contending parties involved in
a dispute. To regard a court order as an element of governmental intervention
necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private
litigation.
Two thoughts underlie this
passage, it seems to me. The first is the distinction made by McIntyre J.
between the role of the court in litigation as compared with the role of the
parties. One of the parties is alleging a Charter violation by the other. The court is
bound by the Charter in the sense that it must interpret and apply it to the dispute. But
it is, he says, a neutral arbiter in the decision‑making process. The
question it has to answer is: has there been a violation of the
Charter by either the
legislature or the executive or administrative branch of government? The
critics say: but it is itself "government" within the meaning of
s. 32(1) when it does this. McIntyre J. says no: it is acting in its
traditional adjudicative capacity in which it is totally independent of the
other branches of government. This must be so, he says, because it could not
otherwise perform the function it has been given under the
Charter. It cannot
be both judge and judged at the same time. How could it, for example, take an
unbiased approach to whether the government had violated human rights or
whether, if it had, its conduct was justified under s. 1 ?
This is not to say, as McIntyre J.
points out, that the courts are above the law and above the
Charter, but simply
that in exercising their adjudicative function under the
Charter in a dispute
between others, they cannot be viewed as "government" and the end
product of their decision‑making, the order of the court, as government
action for purposes of s. 32(1).
If, of course, a court as an
institution were in its own administration to violate a citizen's human rights,
e.g., its employees' freedom of religion or equality rights, it would be just
as guilty of a Charter violation as any other institution.
The second thought expressed by
McIntyre J. is that, if court orders constitute government action for purposes
of s. 32(1) then, since virtually all disputes before the court end in a
court order of some kind, all litigation would be subject to
Charter scrutiny. McIntyre
J. obviously thought that this would be a very convoluted way of making the
Charter applicable to
private action. Why would s. 32(1) restrict the application of the
Charter to
legislatures and governments if it was meant to apply to private action as
well? Why not simply say so? It is, I believe, also clear from the judgment
in Dolphin Delivery that McIntyre J. was concerned that the role of
the Human Rights Codes not be pre‑empted by the
Charter.
Assuming that my interpretation of
the Court's decision in Dolphin Delivery is correct and that the Court did draw a sharp
distinction between government and private action for purposes of
Charter application,
was it justified in so doing?
2. Is the
Private/Government Distinction Sustainable?
Professor Slattery has argued that
many of the difficulties encountered in Dolphin
Delivery flow from
the Court's distinction between government and private action. He shares
Professor Beatty's view that s. 52 of the Constitution
Act, 1982 which
states that any law inconsistent with the Constitution "is, to the extent
of the inconsistency, of no force or effect" is a clear indication that s.
32(1) was not meant to place limits on the Charter's application. Slattery states at p.
920:
Given that the law in most of
Canada today is a tightly woven mesh of mixed common law and statutory origins,
the search for the golden thread of State action is likely to prove both
frustrating and in the end pointless.
As a result, Professor Slattery
suggests that questions of applicability can really only be determined by
looking at the individual provisions of the Charter: see Slattery,
supra, at p. 922, and
Slattery, "Charter of Rights and Freedoms -‑ Does it Bind Private
Persons" (1985), 63 Can. Bar Rev. 157, at p. 158.
For his part, Professor Gibson has
consistently argued that the only sensible interpretation of s. 32(1) of the
Charter is one that
places no restrictions on the range of bodies to which it applies: see
"The Charter of Rights and the Private Sector" (1982), 12 Man.
L.J. 213;
"Distinguishing the Governors from the Governed: The Meaning of
"Government" Under Section 32(1) of the Charter" (1983), 13 Man
L.J. 505; The
Law of the Charter: General Principles (1986), at pp. 85‑118; and "What did
Dolphin Deliver?", in Your Clients and the Charter -‑ Liberty and
Equality,
supra, at pp. 75‑90.
He stresses that American jurisprudence and academic commentary has struggled
in vain to produce a workable distinction. He observes that in
Reitman v. Mulkey,
387 U.S. 369 (1967), at p. 378, the United States Supreme Court described
efforts to distinguish between private action and government action as an
"impossible task". He too is of the view that the wording of s.
32(1) does not require the Court to read limits into the scope of the
Charter's
application. Moreover, he submits that "If the Charter is to serve the
purpose of striking a satisfactory compromise between the claims of the
individual and the claims of the community, its norms must be applied to
everyone -‑ public or private -‑ whose actions affect the rights
and freedoms of others": see The Law of the Charter: General
Principles,
supra, at p. 118.
Professor Manwaring has also
explored some of the problems raised in American jurisprudence that addresses
the state action doctrine and notes that there are American writers who have
argued that the public/private distinction is conceptually incoherent: see, for
example, the Papers from the University of Pennsylvania Law Review Symposium on
The Public/Private Distinction (1982), 130 U. Pa. L. Rev. 1289 to 1608. While he observes that
in his view s. 32(1) of the Charter was meant to be a codification of the very state action
doctrine that has proven the source of so many intractable problems in the
United States, he concludes that "The extent of the doctrinal confusion
and the strength of the critique suggest that, in spite of the fact that the
reasons for including section 32 in the Charter seem obvious, it is going to prove
very difficult to apply the section in practice": see Manwaring,
supra, at p. 436.
Some commentators who take the
position that the Charter applies to private action as well as government action have suggested
that s. 32(1) may simply have been included to make it clear that the
Charter binds the
Crown. For example, Professor De Montigny notes that one might be tempted to
explain the presence of this clause by resorting "to the well‑known
and long‑established principle that the Crown, in absence of an express
indication to the contrary, is not subject to statutory law, and to thereby
contend that without express mention of government in section 32 , decisions
taken by the executive in the exercise of its prerogative powers could not be
reviewed": see "Section 32 and Equality Rights", in Bayefsky and
Eberts, eds., Equality Rights and the Canadian Charter of Rights and
Freedoms (1985), at
p. 568.
In similar vein Professor Gibson
notes in The Law of the Charter: General Principles, supra, at pp. 112-13:
First, there is a long‑established
principle of interpretation that although legislation normally applies to
everyone else without explicit reference, it does not apply to the Crown unless
the Crown is referred to explicitly or by necessary implication. Statutes which
state that they apply to the Crown, but make no explicit reference to others to
whom they apply are commonplace. Given the possibility that a similar approach
might be taken with respect to the interpretation of the Charter, there was
good reason to refer expressly to "government" in section 32(1).
While the term "government" rather than the more formal "Her
Majesty" is somewhat unusual, its use can be attributed to both a desire
to make the document intelligible to lay readers and the fact that certain non‑Crown
governmental entities, such as local governments, were intended to be covered.
In other words, this line of argument
suggests that had s. 32 not been included, this Court might well have concluded
that at least some of the Crown's activities were not subject to the
Charter.
I do not find this line of
reasoning persuasive since it seems to me obvious that one of the basic purposes
of a constitutional document like the Charter is to bind the Crown. I do not
believe therefore that in the absence of s. 32(1) it would have been open to
the Court to apply ordinary principles of statutory interpretation when
construing the Charter and thereby conclude that the Crown was not bound by its provisions.
Moreover, it seems to me that if
the purpose of s. 32(1) was simply to make clear that the
Charter applies to
activities undertaken by virtue of the Crown's common law powers, the provision
would have been drafted in much more precise language and that the term
"Crown" or "Her Majesty" would have been used. I do not
find convincing the suggestion that the term "government" was
employed as a more colloquial way of referring to the Crown.
There are, of course, also
commentators who agree that providing a clear outline of the limits on
Charter application
is a very difficult task, but who nonetheless argue that s. 32(1) of the
Charter does impose
such limits. The problem with Dolphin Delivery, they suggest, is not that the
distinction cannot be drawn, but that the Court did not draw it in a
satisfactory way. Howse, for example, puts the point this way (supra, at p. 253):
The Court was thus justified in
its view that some limits must be placed on the applicability of the Charter to private
activity. Yet, instead of developing a constitutional doctrine of the public/
private distinction to determine these limits, it employed a formal conception
of government action to restrict Charter application.
Professor Otis, for his part,
observes that it is "remarkable" that the Court did not elaborate on
the "jurisprudential and contextual assumptions" underlying its
stance. He suggests that when one puts s. 32(1) in its broader context, it
becomes clear that the document as a whole was meant to apply only to
government: "Many substantive provisions are textually restricted to
government, while others have been arguably construed as such by the Supreme
Court of Canada". See Otis, supra, at p. 78. In particular, he points to the
following provisions of the Charter: s. 19, which sets out linguistic rights that are clearly aimed at
delineating governments' obligations; s. 15 , which refers to equality rights
only with respect to "law" and which he feels thereby provides strong
textual evidence in support of the proposition that the
Charter is only
applicable to government; ss. 3 and 4 , which set out a citizen's democratic
rights and which impose corresponding obligations on government; ss. 11 and 13,
which, he submits, this Court has made clear are restricted to criminal and
penal proceedings (see Dubois v. The Queen, [1985] 2 S.C.R. 350); and s. 7 which he points
out has been interpreted in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 490, as
concerned with the protection of the individual from direct impingement by
government upon his or her life, liberty and security of the person. Professor
Otis concludes at p. 84:
When the whole picture of the
Charter is thus
revealed, its application to the private sector appears ruled out and the
conclusion reached by the Supreme Court of Canada is vindicated.
Professor Hogg also accepts that
one must draw a distinction between the acts of private actors and government
action. He observes, however, (supra, at p. 274) that:
McIntyre J. did not give his reasons
for reaching this important conclusion, but, in my view, there are good reasons
for reading the Charter in this way. I think that it is the best reading of the (admittedly
ambiguous) language of the Charter; it is supported by the legislative history of the
Charter; and it is
consistent with the "state action" limitation on the American Bill
of Rights.
Underlying these reasons, of course, is the assumption that there is a private
realm in which people are not obliged to subscribe to "state" virtues
and into which constitutional norms ought not to intrude.
Professor Hogg develops this
argument at greater length in his Constitutional Law of Canada (2nd ed. 1985), at pp. 670‑78.
In particular, he suggests, at pp. 675-76, that s. 32(2) of the
Charter, which
stipulates that, "notwithstanding" s. 32(1), s. 15 of the
Charter was only to
come into force three years after s. 32 came into force, "plainly assumes
that s. 15 is effective through s. 32(1)". This, in his view, is evidence
that s. 32(1) was meant to limit the application of the
Charter. Moreover,
he points out that the legislative history of s. 32 supports the view that the
Charter has no
applicability to private action. He places particular weight on testimony
given by Mr. Jordan in 1981 before the Special Joint Committee of the Senate
and of the House of Commons on the Constitution of Canada, who was at the time
senior counsel, Public Law, in the Department of Justice. Mr. Jordan [at p.
48:27] asserted that the Charter "addresses itself only to laws and relationships between the
state and individuals", not private relationships. Finally, Professor
Hogg expresses his conviction that the American state action doctrine captures
"the normal, expected role of a constitution: it establishes and regulates
the institutions of government, and it leaves to those institutions the task of
ordering the private affairs of the people" (supra, at p. 677).
As McIntyre J. pointed out in
Dolphin Delivery,
supra, at pp. 593‑97,
Professor Hogg is not the only one to argue that there are limits on the
Charter's
application. Professor Swinton has argued that the Charter is neither designed nor suited to
deal with private action: see "Application of the Canadian Charter of
Rights and Freedoms ", in Tarnopolsky and Beaudoin, eds., The
Canadian Charter of Rights and Freedoms ‑‑ Commentary (1982), at p. 41. She observes that
the Charter contemplates no positive obligation on governmental bodies to
eliminate private discrimination and suggests that the
Charter's purpose is
to restrain government action, not to generate legislative action (at pp. 46‑47).
And at p. 48, she puts forward yet another textually related argument in favour
of the proposition that the Charter is limited in its application:
One should also keep in mind the
concerns of the federal and provincial governments in drafting and agreeing to
the Charter. Their focus was its effect on their own governmental operations.
That is the reason for s. 1 , requiring the courts to interpret the guarantees
so as to allow reasonable limitations imposed by law. The override section (s.
33 ), allowing the legislatures to enact laws infringing the Charter, also
indicates that governments were concerned about bounds on legislative action.
The governments did not address the application of the Charter to private
action, and indeed it would have been strange for them to do so, for their
existing human rights codes address that matter.
Professor Swinton also suggests
that it is important to bear in mind that the Charter is a less effective way to regulate
private action than human rights legislation and was not intended to pre‑empt
such legislation. She says at p. 48:
In conclusion, while the language
of the Charter could be interpreted to extend to private relationships, it
should not be so interpreted. To apply the Charter to private activity will
lead to a great deal of litigation in a judicial forum unsuited to the problem.
It was not intended by the drafters nor accepting governments that it would so
extend, for the Charter, as part of the Constitution, is meant to restrict
governmental action.
And as McIntyre J. noted in
Dolphin Delivery,
supra, at p. 597,
further support for this view may be found in McLellan and Elman, "To Whom
Does the Charter Apply? Some Recent Cases on Section 32 " (1986), 24
Alta. L. Rev. 361.
These authors are also sympathetic to the argument that human rights
legislation provides a more efficient and less costly method by which an
individual may seek redress for acts of private discrimination (at p. 367).
Where does this leave us? It
seems to me that it leaves us where the Court began pre‑Dolphin
Delivery, asking
itself what the purpose of the Charter was. Was it aimed at government
action? Was the Charter perceived by the draftsmen as the intermediary between the citizen and
government only or was it also perceived as the intermediary between citizen
and citizen? I remain of the view that it was aimed at government action, both
legislative and administrative, and that the provincial and federal human
rights legislation was left to function within its proper sphere. I do not
doubt that the government/private action distinction will be difficult to make
in some circumstances but I also believe that the text of the
Charter must be
respected.
One particularly convincing
textual argument, it seems to me, is the proposition that s. 32(1) must be read
in light of s. 33 , the so‑called override provision. While I do not
propose to analyze the nature of the override provision in any detail,
particularly since this Court recently had occasion to consider the provision
in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 733‑45,
I believe that the presence of a provision designed to enable the legislature
to override certain sections of the Charter lends considerable weight to an
interpretation of s. 32(1) that concludes that the focus of the
Charter is
government. The presence of s. 33 suggests that those governments that
subscribed to the Charter were aware that the document was designed to place constraints on
their action and that they were concerned to provide themselves with a way to
avoid some of those constraints (i.e., ss. 2 and 7 to 15 ) should this prove
necessary.
It seems to me also that this
Court's approach to s. 1 of the Charter has emphasized that
Charter
interpretation is fundamentally about balancing the rights of the citizen
against the legitimate objectives of government. At no point has this Court
suggested that a s. 1 analysis, notably the proportionality test set out in R.
v. Oakes, [1986] 1
S.C.R. 103, is intended to assist in the resolution of disputes between
individuals. Indeed, given this Court's approach to s. 1 , I have difficulty in
seeing how one could engage in a s. 1 analysis absent government action.
No less revealing, in my view, is
the fact that provisions like ss. 3‑4 and 16‑20 of the
Charter are clearly
aimed at legislatures and governments. While no single section can be said to
provide conclusive proof that the Charter must be interpreted as concerned
solely with government action, I believe that a reading of the document that is
sensitive to the need to provide a coherent and consistent interpretation of
all of its provisions leads to the conclusion that the purpose of the
Charter was to
constrain government action.
It is, of course, true that in
limiting what government may do, particularly the legislative branch of
government, the Charter may place limits on what citizens are entitled to do. But I do not
think that this derivative form of constraint supports the proposition that the
Charter's focus is as
much on constraining the individual as it is on constraining government. On
the contrary, it seems to me that a careful analysis of the text as a whole
makes clear that, as far as the individual is concerned, the focus of the
document is protection and not constraint. It was designed to provide the
citizen with constitutionally protected rights and freedoms which he or she
could assert against government if the need arose.
While I am sensitive to the
observation of Lamer J. [as he then was] in Re B.C. Motor
Vehicle Act, [1985] 2
S.C.R. 486, at p. 508, that "the Minutes of the Proceedings of the Special
Joint Committee [on the Constitution], though admissible, and granted somewhat
more weight than speeches should not be given too much weight", it seems
to me that the testimony before that Committee lends support, however limited,
to the proposition that the document's focus is on government action. I note
that Mr. Jordan, Senior Counsel, Public Law, in the Department of Justice at
the time the Charter was before the Special Joint Committee on the Constitution, told the
Committee [at p. 48:28] that he thought "the whole of the Charter is
addressing itself to the protection for individuals against acts by the
state" and that he would be "very worried if we ended up with a
Charter that mixed into that the domain of private infringement of liberties
and freedoms". He expressed the view [at p. 48:28] that
"private" infringements of this kind were best "left to be dealt
with by human rights codes": see Minutes of
Proceedings and Evidence of the Special Joint Committee of the Senate and of
the House of Commons on the Constitution of Canada, First Session of the Thirty‑second
Parliament, 1980‑81, pp. 48:27, 48:28 (January 29, 1981); see also p.
49:47 (January 30, 1981).
The then Minister of Justice (Mr.
Chrétien) observed that the Charter was not intended to provide a solution to all social problems and that
room had to be left for both levels of government in this country to enact and
amend legislation designed to deal with social problems without constantly
having to resort to constitutional amendments: see p. 48:27. Although I do not
think that any more weight should be placed on testimony regarding the meaning
of the term "government" in s. 32(1) than testimony regarding
the meaning of the term "liberty" or "equal", we cannot
totally ignore the fact that much of the testimony before the Committee is
highly compatible with a textual analysis that concludes that the
Charter's purpose is
to constrain "government", however that term is best understood.
Finally, while it is my view that
the textual argument is in and of itself convincing and that ultimately this is
the proper basis on which to rest conclusions about the application of the
Charter, it seems to
me that Professors Swinton, McLellan and Elman have a point when they suggest
that the legislatures which enacted the Charter were of the view that the ordering of
relations between private individuals was best left to human rights
legislation. The thrust of such legislation was to get many disputes out of
the courts and into a setting more conducive to providing constructive
solutions to various forms of discrimination. I do not believe that the
Charter was intended
as an alternate route to human rights legislation for the resolution of
allegations of private discrimination.
In summary, I remain committed to
the view previously expressed by the Court that the Charter applies to government action. And
rather than attempt to define the boundary between government action and
private action, it seems to me that the focus of our analysis in the group of
appeals currently before us must be on the nature of government action.
Whether this process will shed light on the debate about the validity of the
government/private action distinction need not concern us. What must concern
us is: when is action properly attributed to government and what are the
criteria by which that determination is to be made? As Roger Tassé points out,
"If the Charter applies to everyone, there is no need to define the scope of the
government" but if it applies only to government action, then it is vital
to ask the question: "What is meant by the word `government' in this
context?" See Tassé, "Application of the Canadian Charter of Rights
and Freedoms ", in Beaudoin and Ratushny (eds.) The Canadian
Charter of Rights and Freedoms (2nd ed. 1989), at p. 97 and 77 respectively.
3. What is
"Government Action"?
My colleague La Forest J. has
concluded that the Charter applies only to government in its narrowest sense. He finds support
for this view in a particular doctrine of the role of constitutions known as
"constitutionalism". According to this doctrine states are a
necessary evil. Because of the potential for tyranny and abuse which large
states embody, the role of government should be strictly confined. Social and
economic ordering should be left to the private sector. The more the state
interferes with this private ordering, the more likely it is that the freedom
of the people will be curtailed. Thus, the minimal state is an unqualified
good. However, even with the minimal state there has to be some mechanism to
protect the citizen against the risk of government tyranny and that mechanism
is the constitution itself. Hence the concept of constitutional government as
protector of the citizens' liberty.
Drawing on this vision of the
classical role of states and constitutions my colleague has formulated what I
would view as a very narrow test of "government action" under
s. 32(1) of the Charter. In his view, only those entities which actually are
"government" will fall within the ambit of the
Charter. They must
be "part of the government apparatus", "part of
government", "part of the machinery of government".
I believe that the concept of
government as oppressor of the people and the function of government as the enactment
of "coercive laws" is no longer valid in Canada, if indeed it ever
was. To make my point it is necessary to consider the historical evolution of
the state in Canada as well as the evolution of its constitution culminating in
the document before us, the Canadian Charter of Rights and Freedoms .
(a)
Canada and the United States Compared
The doctrine of constitutionalism
was a driving force behind the creation of the American constitution. The
American Bill of Rights was in large measure the product of a revolution.
Unhappy with the injustices the Americans perceived were perpetrated against
them by the British, the American people were left with a deep distrust of
powerful states. The United States Constitution enshrines the belief of the
American people that unless the state is strictly controlled it poses a great
danger to individual liberty. Its primary focus, articulated in the bulk of
its provisions, is against "state action". Canada does not share
this history.
This Court has already recognized
that while the American jurisprudential record may provide assistance in the
adjudication of Charter claims, its utility is limited. In Re B.C. Motor
Vehicle Act,
supra, we were called
upon to determine the scope of s. 7 of the Charter . Naturally, at that early stage of
Canadian Charter jurisprudence, the American constitutional tradition was heavily
relied upon. Nevertheless, Lamer J., writing for the Court, made it eminently
clear that our Courts were not to be unduly influenced by the decisions in
United States cases. He said at p. 498:
The substantive/procedural
dichotomy narrows the issue almost to an all‑or‑nothing
proposition. Moreover, it is largely bound up in the American experience with
substantive and procedural due process. It imports into the Canadian context
American concepts, terminology and jurisprudence, all of which are inextricably
linked to problems concerning the nature and legitimacy of adjudication under
the U.S. Constitution. That Constitution, it must be remembered, has no s. 52
nor has it the internal checks and balances of ss. 1 and 33 . We would, in my
view, do our own Constitution a disservice to simply allow the American debate
to define the issue for us, all the while ignoring the truly fundamental
structural differences between the two constitutions.
Although in that case Lamer J.
was relying primarily on the structural differences that exist between the
Canadian and American constitutions, structural differences are not the sole
measure of differentiation. Social, political and historical differences
between our two nations also exist. The Charter has to be understood and respected as
a uniquely Canadian constitutional document. However, the fact that Canada did
not spring into being as a nation through the same process as the United States
does not necessarily mean that Canadians do not share the same perception as
our neighbours of the proper role of government. We can only discern how
Canadians perceive that role by examining how it has developed through our
history.
(b)
The Historical Development of the Canadian State
Professor Corry in his report The
Growth of Government Activities Since Confederation (Ottawa 1939) has emphasized the fact that
regulation has always played a role in the governance of Canadian society and
that, apart from a brief interlude during the first half of the nineteenth
century, the philosophy of laissez‑faire never enjoyed permanent or
widespread acceptance here. He commences his discussion of the growth of
government activity with the following observation at p. 1:
The period since Confederation has
seen a steadily accelerating increase in the activities of governments. We
tend to think of this as an increase in absolute terms, eclipsing in range and
intensity all previous state interference. This, of course, is quite
unhistorical. In all ages prior to the nineteenth century, strong governments
had interfered quite freely and generally, quite arbitrarily in every aspect of
human affairs. Regarded in proper perspective, the retreat of the state from
the overhead direction of human affairs was a brief interlude roughly
coincident with the first half of the nineteenth century.
Professor Risk in his article
"Lawyers, Courts, and the Rise of the Regulatory State" (1984), 9
Dalhousie L.J. 31,
makes the same point at pp. 32‑33:
Canada never had the liberal state in
the middle of the nineteenth century that England had and which some thinkers
thought it should have. The state encouraged the creation of the nation and
its economic expansion primarily by creating and financing railways, creating a
tariff barrier, and encouraging immigration.
While Canada was struggling to become
a self‑sufficient nation the popularity of laissez‑faire in England
and in the United States was on the wane. As Professor Corry points out, the
needs of a new country required the energies of government to be directed
towards development. The primary obligation resting on the state in the years
immediately following Confederation was the need to open up the country through
the establishment of transportation facilities and the provision of basic
services.
Indeed, one of the first
priorities of the new federation was to knit the country together by the
establishment of transportational connections between the various regions.
Dorman points out in A Statutory History of the Steam and Electric Railways
of Canada, 1836‑1937, (Ottawa 1938), at p. 7:
Confederation brought a new
impetus to railway construction. One of the articles of agreement between the
four provinces called for construction of an Intercolonial Railway, and the
Federal Government began the implementing of that agreement ...
While it is beyond the scope of
this review to detail the myriad ways in which the state has intervened in the
railway sector, suffice it to say that the Canadian government has always
played a large part in the creation and control of the railways. As Abbott
said in his A Treatise on the Railway Law of Canada (Montreal 1896), at p. 1:
Railways in this country exist
exclusively in virtue of legislative authority, and are invariably constructed
and operated by incorporated companies subject to statutory conditions and
limitations.
It was during those decades that
the Canadian economy greatly expanded. This period has been described by a
number of authors as the "wheat boom" since during that time, as
Mackintosh wrote in his report Economic Background of Dominion‑Provincial
Relations (Toronto
1964), at p. 39:
. . . the driving force behind the new
period was wheat and the wheat‑growing region. It gave an economic unity
to the country not hitherto experienced and built up a degree of
interdependence between its different regions which was in sharp contrast to
the isolation of the separate economic regions which had united in 1867.
Whether or not the wheat economy was
primarily responsible for the economic growth of the period, there is no
dispute about the soundness of the general observation that the time was one of
significant growth for Canada. The government of the day, headed by Prime
Minister Sir Wilfrid Laurier, believed that it was its duty to involve itself
in this process. In a speech delivered in 1903 he said:
We say to‑day it is the duty
of all those who have a mandate from the people to attend the needs and requirements
of this fast growing country.
As Baggaley noted in his review of the
role of the Canadian state (The Emergence of the Regulatory State in Canada, 1867‑1939 (Ottawa 1981)), Laurier's conception
of the appropriate role of the Canadian government was not novel. He said at
pp. 42-43:
...it was not surprising that
Laurier thought it was the duty of the Canadian government to assist in the
construction of a second transcontinental railway. (It was soon assisting the
construction of a third.) He was merely continuing a long Canadian tradition.
Public policy in Canada has always been explicitly developmental .... In
1903, at the same time Laurier was justifying public assistance to build a
transcontinental railway, his government was preparing to create the Board of
Railway Commissioners to regulate freight rates. In Canada public
regulation went hand in hand with public assistance. [Emphasis added.]
The increase in accessability to
all regions of the country was accompanied by increased crop production,
increased immigration and the growth of Canadian cities. Business also began
to grow, in part due to the creation of new enterprises and in part due to the
consolidation or merger of smaller businesses. In short, rapid socio‑economic
changes were taking place in the early part of this century and those changes
sparked a re‑evaluation of the appropriate role of the state. While
historians have not always agreed on the characterization of this era of
government interventionism most agree that the so-called "progressive
era" marked an increased role for and acceptance of government
regulation. A remarkable amount of government regulation both economic and
social was introduced in this period.
For instance, pure food laws
designed to afford basic protections to consumers were enacted during this
period. Sellers were compelled to ensure minimum standards of food purity on
pain of penalty. The Inland Revenue Act of 1875, S.C. 1874, c. 8, which made it an offence
to knowingly sell any adulterated food or drink, exemplifies this kind of
legislation. With the increase in industrialization came more sophisticated
laws dealing with the market. Under The Food and Drugs
Act, 1920, S.C. 1920,
c. 27, for example, officers appointed under the Act were given the power to
take samples and have them tested for quality by government analysts. Grading
and inspection of products was made compulsory and false or misleading labelling
was prohibited. Thus, the thrust of these laws shifted from being pure health
measures to a regime aimed at protecting the producer's status in the
marketplace by providing government guarantees of the quality of his products.
The provinces enacted measures of
a similar nature, particularly in the dairy industry. Initial attempts were
aimed at correcting the problem of the selling of tainted or diseased products
although, as in the case of the federal sphere, these attempts eventually led
to a more regulated regime with the added purpose of protecting markets. See
for example: The Milk, Cheese and Butter Act, S.O. 1908, c. 55; The
Dairy Association Act,
S.Q. 1921, c. 37; and Creameries and Dairies Regulation Act, S.B.C. 1920, c. 23.
Legislative forays were also
conducted into the employer/employee relationship. Factories Acts were passed
in most provinces dealing with the terms of employment of women and children
and with sanitation and safety in the work place. By the 1920s all provinces except
Prince Edward Island had workers' compensation legislation. Minimum wages and
maximum hours of work were established as well. Initially these protections
applied only to women and children. It was not until the depression years that
mandatory minimum employment standards were recognized as necessary for most
workers.
It was during the First World War,
however, that the real boom in government regulation during the first half of
this century occurred. A number of agencies were created to deal with the
problems that a war economy produces, including: a Food Controller, a Fuel
Controller, a Paper Controller, the War Trade Board, the Wheat Board, a Board
of Commerce, and a Cost of Living Commissioner. Many of the initiatives were
short lived, however, and at the end of the war only the Wheat Board remained.
The movement back to a more
moderate level of government intervention, one committed to fostering private
sector growth, gained sway in the years immediately following the war. It was
not to last long, however. The Canadian stock market crash in 1929 ushered in
the era of the Great Depression and a dramatic shift in favour of government
involvement in market processes and the maintenance of minimum living standards
for the population. Ominously, Prime Minister Bennett announced to the country
in 1935:
I am for reform .... And in my
mind reform means government intervention. It means the end of laissez‑faire
.... I nail the flag of progress to the masthead. I summon the power of the
state to its support.
Perhaps because of the great toll the
Depression took, a number of welfare oriented pieces of legislation were
enacted in the areas of agriculture, labour relations and unemployment. The
new measures were unlike the legislation passed in previous decades in that
they endorsed the objectives of redistribution and planning. Government began
to regulate both prices and output in the agricultural sector. Licensing was
introduced in gasoline sales. Restrictions were placed upon the common law remedies
of mortgagees and creditors. Some of the important legislative initiatives of
that era included: The Farmers' Creditors Arrangement Act, 1934, S.C. 1934, c. 53; The
Natural Products Marketing Act, 1934, S.C. 1934, c. 57; The Dominion
Trade and Industry Commission Act, 1935, S.C. 1935, c. 59; The Minimum
Wages Act, S.C. 1935,
c. 44; The Weekly Rest in Industrial Undertakings Act, S.C. 1935, c. 14; The
Limitation of Hours of Work Act, S.C. 1935, c. 63; and The Employment and Social
Insurance Act, S.C.
1935, c. 38. These statutes, their provisions and effects are thoroughly
explored by McConnell in his article, "The Judicial Review of Prime
Minister Bennett's `New Deal'" (1968), 6 Osgoode Hall
L.J. 39.
A number of commentators date the
birth of the Canadian welfare state to the period immediately following the New
Deal. Prior to this period there were few provisions aimed at protecting
working people and ensuring a minimum standard of living. Before the First
World War public education and public health services were virtually the only
measures of this kind in place. It was not until later, however, that other
forms of income security were introduced. The old age pension scheme was
introduced in 1951 and the Guaranteed Income Supplement in 1966. Two
employment related measures were also introduced during this period:
unemployment insurance in 1940 and the Canada Pension Plan in 1951. Families
also began to receive state support in the form of the family allowance and the
child tax credit. The provinces continued to provide social assistance to the
particularly needy, continuing a tradition that started with the ancient poor
laws. The financing of these programs, however, became a joint effort when the
federal government introduced the Canada Assistance Program under which a fifty
per cent cost sharing agreement was reached with all the provinces except
Quebec. In addition, tax deductions for individual pension plans were
introduced under the Income Tax Act, R.S.C. 1952, c. 148, as am.
The new wave of social welfare
provisions was not limited to income security measures. During the 1950s and
60s a new form of social protection was added: human rights legislation. The
first province to enact a statute dedicated solely to the protection of human
rights was Saskatchewan which in 1947 passed The
Saskatchewan Bill of Rights Act, 1947, S.S. 1947, c. 35. Other provinces, some of
which had enacted legislation dealing with specific forms of discrimination in
particular sets of circumstances (e.g., the Ontario The Fair
Accommodation Practices Act, 1954, S.O. 1954, c. 28), followed suit. Comprehensive codes providing
protection on a more global scale began next starting with Ontario in 1962 (The
Ontario Human Rights Code, 1961-62, S.O. 1961‑62, c. 93) and ending with Quebec in 1975 (Charter
of Human Rights and Freedoms, S.Q. 1975, c. 6). Three provinces have now enacted specific
legislation dealing with the problem of pay inequities based on gender: The Pay
Equity Act, 1987,
S.O. 1987, c. 34; Pay Equity Act, R.S.P.E.I. 1988, c. P‑2; and The
Pay Equity Act, S.M.
1985‑86, c. 21.
Nor was the growth of human rights
law the last phase in the increasing involvement of the state in the protection
of citizens' welfare. The 1970s in particular saw a period of rapid growth in
the number of regulatory statutes on such issues as environmental protection,
health and safety, and consumer protection. For instance, at the federal level
the Arctic Waters Pollution Prevention Act, R.S.C., 1985, c. A‑12 , the
Clean Air Act,
R.S.C., 1985, c. C‑32, the Environmental Contaminants Act, R.S.C., 1985, c. E‑12, and the
Ocean Dumping Control Act, R.S.C., 1985, c. O‑2, were virtually all passed during the
first half of that decade. Similarly, government in the 1970s enacted a number
of statutes directed at protecting consumers from dangerous or hazardous
products such as: the Hazardous Products Act, R.S.C., 1985, c. H‑3 ; the
Motor Vehicle Safety Act,
R.S.C., 1985, c. M‑10; and the Radiation
Emitting Devices Act,
R.S.C., 1985, c. R‑1 .
The increase in state activity has
naturally led to a large increase in the size of government. In 1962 The
Royal Commission on Government Organization (Ottawa) reported that the federal public
service had increased nine fold since the First World War and employed some
214,000 civil servants. No fewer than 89 government departments, crown
agencies and corporations are listed in the schedules to the
Financial Administration Act, R.S.C., 1985, c. F‑11 .
As well, the diversification of
state function has led to the creation of a complex conglomeration of entities
which together constitute "government". An examination of the range
of entities listed in the Financial Administration Act is instructive. For instance, the
long tradition of Crown ownership which began with the canals, the Canadian
National Railway and provincial public utilities has been continued and many
are listed in the schedules. So too are the subsidiaries which these Crown
corporations themselves own. Also included are what the
Royal Commission on Financial Management & Accountability ("The Lambert Commission")
(Ottawa 1980) called shared enterprises and independent deciding and advisory
bodies. The latter, which operate with a marked degree of autonomy from
government, are nonetheless still considered to be part of the state,
illustrating very well the diversity of bodies now considered by the state
itself to be part of its enterprise.
(c)
The Modern Canadian State
In approaching the question of the
scope of application of the Charter, I believe we must address the issue of how this very important
document became part of Canadian life. While Canada has existed as a nation
for over 100 years, it never seems to have been considered necessary or
especially desireable prior to 1982 that the Canadian people be protected by an
entrenched bill of rights. It is legitimate to ask: why in 1982?
Many commentators have suggested
that the increased power of private groups and institutions has resulted in the
violation of human freedoms on a massive scale (Tribe, "Refocusing the
"State Action" Inquiry: Separating State Acts From State
Actors", in Constitutional Choices (Cambridge 1985); Chemerinsky, "Rethinking
State Action" (1985), 80 Nw. U.L. Rev. 503; Bazelon, "Civil Liberties ‑‑
Protecting Old Values in the New Century" (1976), 51
N.Y.U. L. Rev. 505;
Nerken, "A New Deal for the Protection of Fourteenth Amendment Rights:
Challenging the Doctrinal Bases of the Civil Rights
Cases and State
Action Theory" (1977), 12 Harv. C.R.‑C.L. L. Rev. 297; and Berle, "Constitutional
Limitations on Corporate Activity -‑ Protection of Personal Rights from
Invasion Through Economic Power" (1952), 100 U. Pa. L. Rev. 933). They argue that private
discrimination is hardly trivial and is just as pernicious as discrimination
caused by government. As Professor Chemerinsky, supra, put it at pp. 510‑11:
... the concentration of wealth and
power in private hands, for example, in large corporations, makes the effect of
private actions in certain cases virtually indistinguishable from the impact of
governmental conduct. Just as people may need protection from government
because its power can inflict great injuries, so must there be some shield
against infringements of basic rights by private power. In fact, the need for
court protection from private actions arguably is greater because democratic
processes, no matter how imprecise a check, impose some accountability and
limits on the government. Ultimately, of course, the point is that private
parties can inflict great injuries upon constitutional values; how this
compares to other sources of injury is of secondary concern.
It is not simply that the
accumulation of social, political and legal power in private entities makes
possible the commission of human rights violations, it is also that recent
evidence tends to suggest that it is within the realm of the
"private" that the vast bulk of these injustices occur. As Tribe,
supra, has remarked
(at p. 246):
... particularly where ostensibly
"private" power is the primary source of the coercion and violence
that oppressed individuals and groups experience, it is hard to accept with
equanimity a rigid legal distinction between state and society. The pervasive system of racial apartheid which existed in
the South for a century after the Civil War, for example, thrived only because
of the "resonance of society and politics ... the close fit between
private terror, public discrimination, and political exclusion."
Clearly, one of the realities of
modern life is that "private" power when left unchecked can and does
lead to problems which are incompatible with the Canadian conception of a just
society. The increasing pressure for and ultimate enactment of human rights
legislation speaks eloquently to this fact. Canadian society has been prepared
to embrace and solicit the assistance of the state in respect of a number of
social, political and economic problems that have plagued our communities from
time to time. The Canadian government has thus not been regarded as a monolith
of oppression but rather as having a beneficent and protective role to play.
Indeed, as Professor Robson points out in his book The Governors
and the Governed
(London 1964), at pp. 12-13:
The vast majority of citizens nowadays
want their government to be continuously active. Few people still subscribe to
the doctrine that the less government does the better will be the result. The
main controversies are centred not on whether the government should act, but on
how and when it should act.
This is not to say, as Professor
Slattery has remarked in his article, "A Theory of the Charter"
(1987), 25 Osgoode Hall L.J. 701, at p. 729, that the Canadian state has
not at times been guilty of discriminatory, oppressive, and otherwise
inappropriate behaviour towards its citizens. It would be a gross distortion
of this nation's history to advance a purist vision of the Canadian way of
life. Accordingly, the federal government, recognizing that we are living in a
world which is becoming increasingly preoccupied with the problem of effective
safeguards for human freedom -‑ witness the Universal
Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), the
European Convention on Human Rights and Fundamental Freedoms, 213 UNTS 221 and the
International Covenant on Civil and Political Rights, 999 UNTS 171 to which Canada became
a signatory in 1976 -‑ enacted first the Canadian Bill
of Rights, R.S.C.,
1985, App. III, in 1960 and then the Canadian
Charter of Rights and Freedoms in 1982, the latter having constitutional status. The values
reflected in the Charter were to be the foundation of all laws, part of the "supreme law
of Canada" against which the constitutionality of all other laws was to be
measured.
Several observations may be made
with respect to the role of the Canadian state based on this brief historical
review.
First, government regulation and
intervention has long been part of the political, social and economic culture
of Canada though its extent has varied during different periods in our
history. The focus of intervention has also changed from time to time in
response to different needs. In spite, however, of these fluctuations, it
seems to be generally accepted by our historians that the political philosophy
of laissez‑faire has not been embraced to any substantial degree in
Canada.
Second, as some historians have
noted, the phenomenon of the interventionist state has traditionally been and
continues to be a feature of Canadian political life. Government participation
and control has persisted irrespective of the particular government in power.
Thus, as Professor McConnell concludes at p. 222 of his article "Some
Comparisons of the Roosevelt and Bennett `New Deals'" (1971), 9
Osgoode Hall L.J.
221:
There can hardly be any question,
however, that governments of all political hues will henceforward use all the
instruments of fiscal and economic policy to prevent a recurrence of the
depression and, in smaller or greater measure, to achieve the overall economic
planning that is associated with the further development of the "welfare
state".
Third, the interventionist
activities of the Canadian state have taken many forms. As noted by Priest,
Stanbury and Thompson, ("On the Definition of Economic Regulation",
in Stanbury (ed.), Government Regulation: Scope, Growth, Process (Montreal 1980)), policy instruments
may take the form of "Moral suasion, exhortation or negotiation",
direct expenditures, taxation, tax expenditures and public ownership. All of
these measures and probably others are available in order to further the
objectives of the state and the Canadian government has utilized many if not
all of them at some time or other. It has, for example, engaged in a government‑owned
industry in some sectors while merely imposing tariffs in others.
I believe that this historical
review demonstrates that Canadians have a somewhat different attitude towards
government and its role from our U.S. neighbours. Canadians recognize that
government has traditionally had and continues to have an important role to
play in the creation and preservation of a just Canadian society. The state
has been looked to and has responded to demands that Canadians be guaranteed
adequate health care, access to education and a minimum level of financial
security to name but a few examples. It is, in my view, untenable to suggest
that freedom is co‑extensive with the absence of government. Experience
shows the contrary, that freedom has often required the intervention and
protection of government against private action.
Finally, it is, I think, true to
say that while government intervention has traditionally been acceptable to
Canadians, the state has never assumed sole responsibility for economic and
social welfare matters. There has always been and continues to be a broad
sphere of purely private activity in Canada.
All of these observations lead, in
my opinion, to the conclusion that a concept of minimal state intervention
should not be relied on to justify a restrictive interpretation of
"government" or "government action". Governments act today
through many different instrumentalities depending upon their suitability for
attaining the objectives governments seek to attain. The realities of the
modern state place government in many different roles vis‑à‑vis its citizens, some of which cannot be
effected, or cannot be best and most efficiently effected, directly by the
apparatus of government itself. We should not place form ahead of substance
and permit the provisions of the Charter to be circumvented by the simple
expedient of creating a separate entity and having it perform the role. We
must, in my opinion, examine the nature of the relationship between that entity
and government in order to decide whether when it acts it truly is
"government" which is acting. We must, as I suggested at the outset,
identify those criteria which are relevant to that determination so that they
may be applied in a principled way.
4. The Relevant
Criteria
In Hunter v.
Southam Inc., [1984]
2 S.C.R. 145, Dickson J., as he then was, emphasized at p. 156, that it was
important to engage in a broad purposive analysis of the
Charter's
provisions. And in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, he stressed
that interpretations of the Charter's provisions should be generous rather than legalistic. In deciding
what kind of criteria are relevant in interpreting the term
"government" in s. 32 of the Charter, we should therefore adopt a
purposive approach. We should ask ourselves the question: why does the
Charter constrain the
activities of government?
It seems to me that a historical
review of the growth of the Canadian state makes clear that those who enacted
the Charter were concerned to provide some protection for individual freedom and
personal autonomy in the face of government's expanding role. I do not think
they intended to do this by carving out or preserving "private"
spheres of activity. I believe, however, that they considered it crucial to
establish norms by which government would be constrained in performing the many
roles it has assumed and will no doubt continue to assume. They sought to do
this by setting out basic constitutional norms rooted in a concern for
individual dignity and autonomy which government should be compelled to respect
when structuring important aspects of citizens' lives. The purpose of the
Charter then, it
seems to me, is to ensure that government action that affects the citizen
satisfies these basic constitutional norms. I think that Dickson J. put the
point well in Hunter, supra, at p. 155, when he made the following observation about the role of a
constitution:
Its function is to provide a
continuing framework for the legitimate exercise of governmental power and,
when joined by a Bill or a Charter of Rights , for the unremitting protection of individual
rights and liberties.
In my view, it follows from these
propositions that we must take a broad view of the meaning of the term
"government", one that is sensitive both to the variety of roles that
government has come to play in our society and to the need to ensure that in
all of these roles it abides by the constitutional norms set out in the
Charter. This means
that one must not be quick to assume that a body is not part of government. Consideration of
a wide range of factors may well be necessary before one can conclude definitively
that a particular entity is not part of government. If this Court is to
discharge its responsibility of ensuring that our constitution does provide
"unremitting protection of individual rights and liberties" against
government action, then it must not take a narrow view of what government
action is. To do so is to limit the impact of the Charter and minimize the protection it was
intended to provide.
What then are the criteria which
will help us to identify the kinds of bodies that the
Charter seeks to
constrain through the imposition of constitutional norms? At least three tests
have been suggested. While none is probably in and of itself determinative,
each has something important to say about the nature of government.
(a) The
"Control" Test
The control test poses the
question: is the body in question part of the legislative, executive or
administrative branches of government and, if not, is it subject to the control
of one of these branches of government? When faced with a body that is not
itself part of the legislative, executive or administrative branches of
government, the control test in turn asks: (a) general questions about the
nature and extent of government control over an entity, such as, "does
government exercise such significant control over the operation of the
institution that the activities of the latter may properly be seen as
activities of the former?"; and (b) more specific questions about the
entity's activities, such as, "is there a clear nexus between government
and the particular impugned activity?"
In my view, we see a very clear
application of this approach in the British Columbia Court of Appeal's decision
in the related appeal in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1988] 2 W.W.R. 718. In that case,
the Court of Appeal stated at p. 721 that "The control exercised by the
government over the affairs of the college generally, coupled with actual
governmental involvement in the finalization of the collective agreement,
permits no other conclusion [than that the college in question is subject to
the Charter]". In reaching this conclusion the Court of Appeal first
examined the question of general control. It noted that the College was an
agent of the Crown, was subject to ministerial control over many aspects of its
activities, and had to have its by‑laws approved by a College Board whose
members were appointed by the government.
The Court of Appeal then turned to
specific questions concerning the nexus between government and the College's
contractual relations with its employees. It noted that the executive branch
of government had the power to appoint a Commissioner whose task it was to
monitor compensation plans and to investigate arrangements by public sector
employers. The Compensation Stabilization Act, S.B.C. 1982, c. 32, gave this
Commissioner extensive power to approve or disapprove the terms of collective
agreements between the parties. The Court of Appeal was of the view that
"In these circumstances the collective agreement must be regarded as the
result of an action of the executive or administrative arm of government"
(at p. 723).
The general questions the control
test requires to be asked in the case of an entity not clearly part of the
legislative, executive or administrative branches of government are, in my
view, quite apposite. The approach seeks to ascertain whether there is a link
between that which one knows is government (i.e., the executive, legislative
and administrative branches) and that which one is not sure is government by
focussing on whether the former exercises general control over the latter. The
challenge under this part of the approach, of course, is to ascertain what are
relevant forms of control. While I do not think that one can come up with an
exhaustive list of relevant forms of control or that any one form of control
will necessarily prove determinative, it does seem to me that the Court of
Appeal in Douglas College focussed on the kind of considerations one
should bear in mind, viz. whether an actor that is clearly part of a branch of
government controls aspects of the entity's activity through input into its
policy formulation process, through the approval of the by‑laws or rules
that determine how that entity is to carry out its mandate, through the
allocation of funding used to implement its objectives, or through the
appointment of the personnel that run the entity. These forms of relatively
direct control will provide strong indicia that an entity is part of
government.
More problematic, in my view, is
the second limb of the control test: namely, the search for a specific nexus
between government and the impugned act. In many instances, it may be that the
relevant branch of government does not exercise control over the entity's
activities in as direct a way as in the Douglas College case, but that the entity is
nonetheless a governmental actor. One need only think of those bodies that are
created by statute, that depend heavily on government funding and that receive
broad policy directives concerning their overall mandate from one of the
branches of government, but that are deliberately placed at arm's length and
given the freedom to make a wide range of choices about how to implement
particular policies. This kind of arrangement is hardly novel, particularly in
areas where ministers and government departments do not wish to be involved in
complex and politically sensitive decisions concerning the allocation of
government funds or the specific application of particular policies. Decisions
of these kinds often require choosing between irreconcilable demands, and
governments have therefore frequently found it prudent to create agencies or
tribunals that can make these decisions free from political pressure. Thus,
even although such arm's length organizations have often been created with a
view to performing tasks that a government department had previously performed
or might otherwise have performed, one cannot necessarily point to a nexus
between the government and the arm's length organization's day‑to‑day
activities.
In my view, it is therefore far
from obvious that a body should automatically be deemed to be non‑governmental
simply because one cannot point to a specific nexus of the kind seen in
Douglas College. To
conclude that bodies that are in an arm's length relationship with the
executive or administrative branches of government are automatically non‑governmental
would mean that a wide range of entities that are created but not controlled by
the legislative branch of government would escape Charter review. This would hardly provide
the kind of "unremitting protection" of rights and liberties that the
Charter was meant to
secure.
In other words, the problem with a
restrictive application of the control test is that it risks leaving open to
government the option to delegate wide powers to arm's length agencies and then
to insulate those bodies from Charter review by limiting government
involvement in those bodies' day‑to‑day decision-making processes.
An unduly restrictive version of the control test would thereby leave it open
to government to exclude significant areas of activity from
Charter review.
I note that Mr. Roger Tassé has
observed, "There has been a tremendous increase in subordinate legislation
over the course of the past 25 years. Government by way of regulation is much
more commonplace today than is government by conventional legislation":
see "Application of the Canadian Charter of Rights and Freedoms ",
supra, at p. 73. Mr.
Tassé goes on to identify the very concern that I have just raised when he
states at p. 72:
The subordinate authority to which
legislative powers are delegated must be subject to the same obligations and
constraints as the enabling authority. If it were otherwise, Parliament and
the legislatures could avoid their constitutional obligations simply by
confiding to others the authority to exercise their powers. This means that
all regulation‑making authority conferred on Cabinet, individual
ministers, civil servants, commissions or administrative tribunals must be
exercised so as to comply with the Charter. It means still more, however. Not
only must the regulations themselves comply with the Charter, but actions taken
under the authority of those regulations must also comply. [Emphasis
added.]
In my view, these comments are equally
applicable to arm's length bodies that are subject to general governmental
control.
It seems to me therefore that the
control test has something valuable to say at a general level. The presence of
general government control will amount to an important indicium that one
is faced with government action although it will not necessarily be
conclusive. One can, of course, conceive of entities that are subject to
government regulation and that are therefore subject to control but that are in
no sense part of government, e.g., private corporations that are subject to
government regulation. The evidence that one is dealing with government
action will, of course, be even stronger if one can point to a direct nexus
between government and the activity in question. But I do not think that the
specific questions the control test poses about the presence of such a nexus
are in any sense necessary conditions for a finding that there is government
action. I am quite prepared to accept that, even in the absence of such a
nexus, there may be sufficient government control to enable one to conclude
that government action is in issue.
(b)
The "Government Function" Test
A second test that has been
proposed asks whether the performance of a given activity is a "government
function". It seems to me that this is the kind of test that the Ontario
Court of Appeal applied in this appeal when it asked itself whether a university
performs a government function. In the Ontario Court of Appeal's view
universities do not perform a government function even although they provide a
public service for which they receive significant government funding. But the
Court of Appeal felt that a body like a municipality would be subject to the
Charter because it
performs what the Court of Appeal viewed as quintessentially governmental
functions, including the enactment of laws of general application. The Court
of Appeal observed (see: McKinney v. University of Guelph (1987), 63 O.R. (2d) 1, at p. 24):
The fact that municipal corporations
are "creatures of the legislature" is not determinative. It is the
function that they were created to perform that is. "Creatures of the
legislature" do not automatically become accountable to the Charter: they
remain accountable to their "creator". Ordinarily, it is their
"creator" which would attract the reach of the Charter, but
municipal corporations differ from other statutory corporations in that they are
incorporated by government to perform a governmental function; a function that
the provincial government could and often does perform itself. As such, they
can be considered "a distinct level of government" to use Linden J.'s
phrase, or "a branch of government" to use that of McIntyre J. in
Dolphin Delivery,
supra. But it is the
function for which they are incorporated that gives them this status and not
the mere fact that they are incorporated and have their authority to act
bestowed upon them by their incorporating statute. [Emphasis added.]
In my view, there are at least
three problems with the Ontario Court of Appeal's "functional"
approach. First, it seems to me that the particular version of this approach
advocated by the Ontario Court of Appeal is based on a rather narrow view of
government as the maker and enforcer of laws. At best, this can be but part of
any complete picture of the modern Canadian state. I think it clear that over
time government has become involved in many areas through the creation of
bodies that do not simply enact laws (and may not enact laws at all) but that
provide a wide range of services and support (financial or otherwise) to the
citizen. There is therefore a real danger that the Ontario Court of Appeal has
narrowly circumscribed government's "function" in a way which does
not accord with twentieth century reality.
Second, even if one were to
operate with a somewhat more expansive concept of a government's
"function", this approach would risk excluding from
Charter review many
actions of the legislative, executive or administrative branches of government
that might not necessarily be seen as part of a government's
"function": for example, entering into employment agreements with
civil servants or entering into contracts for supplies with outside bodies.
This result would hardly be compatible with a purposive interpretation of s.
32(1) of the Charter, a provision which states that the Charter applies to "all matters within
the authority" of Parliament.
Third, and most importantly, it
seems to me that a functional approach risks assuming that government is
static, something which the historical review that I have presented reveals is
far from the case. If we have learned anything from the widespread criticism
of the private/ government distinction and the remarkable evolution of
government in the last century, it must surely be that government's functions
are not finite. Government has become involved in an ever‑widening range
of activities. Moreover, it is likely both to move into new areas and to move
out of areas in which it no longer feels it should be involved. Governments'
functions are constantly evolving even although there may be some core group of
activities that most governments have engaged in most of the time. Any test
that focusses solely on these core activities, or that limits itself to the
activities that a given government is engaged in at a particular point in time,
will be of little use in dealing with hard cases in which government has assumed
a new area of involvement.
In other words, it is a mistake to
think that one can identify the key function(s) that is (are)
determinative of what is government. In my view, it is hardly surprising that
in the course of conducting a thorough analysis of a variety of bodies that one
might consider part of government, Mr. Tassé concludes that "There are no
clear and generally accepted criteria for determining when a function is
properly judged to be governmental" (Tassé, supra, at p. 81). A function becomes
governmental because a government has decided that it should perform that
function, not because the function is inherently a government function. It
seems to me that in ignoring this point the functional approach risks putting
the cart before the horse. Moreover, it seems to me that one must recognize
that there may be circumstances in which both governmental and non‑governmental
bodies fulfil a given function at the same time. In such cases the functional
approach may tell us little about the status of any given entity that performs
that function.
That much having been said, it
does seem to me that the functional approach has something to offer, provided
that one does not assume that just because a body is not performing a
traditional government function it is not a government actor. The fact that an
entity is performing an activity that we have come to accept as being one of
the exclusive functions that a given level of government performs may well be a
strong indicium that one is faced with a government actor. Indeed, one may
conclude that even although there is no direct nexus between government and a
given body's activities and that even although there is minimal government
control over that body, the entity must nonetheless be viewed as part of government
because it performs a function that has traditionally been performed by
government.
Ultimately, much will turn on the
function with which one is concerned. While there are functions that
government has long fulfilled, e.g., the criminal law enforcement process,
there are others that may on some occasions be fulfilled by government and on
other occasions by other kinds of bodies, e.g., private corporations. There may
also be functions that government decides it should no longer perform. And, as
I have already suggested, there may be sectors of the economy where government
is competing directly with the private sector with respect to the provision of
particular services and where it is very difficult to apply a functional
approach in order to sort out which players are government actors and which are
not. At best, then, the functional approach can only provide tentative answers
to the question whether one is dealing with government. But the approach may
nonetheless point to important considerations that should be taken into account
in any analysis of the status of a given body.
(c)
The "Government Entity" Test
A third approach might centre on
the question of whether a given body is a "government entity". This
approach focusses on the question whether an entity performs a task pursuant to
statutory authority and whether it performs that task on behalf of government
in furtherance of a government purpose. In my view, this approach captures
considerations which neither the control test nor the government function test
address, considerations that may well enable us to ascertain whether government
is in fact taking on new roles or fulfilling old roles through the creation of
new institutional arrangements.
While I am not aware of a decision
based on this approach to the interpretation of s. 32(1) of the
Charter, it seems to
me that this Court has applied a variation of this test in cases in which it
has dealt with the doctrine of Crown immunity. I note, for example, that in R.
v. Eldorado Nuclear Ltd.,
[1983] 2 S.C.R. 551, at pp. 565-66, this Court stated:
Statutory bodies such as Uranium
Canada and Eldorado are created for limited purposes. When a Crown agent acts
within the scope of the public purposes it is statutorily empowered to pursue,
it is entitled to Crown immunity from the operation of statutes, because it is
acting on behalf of the Crown. When the agent steps outside the ambit of Crown
purposes, however, it acts personally, and not on behalf of the state, and
cannot claim to be immune as an agent of the Crown.
While this approach has traditionally
been used to determine when an entity's actions are not bound by statutes, it
seems to me that it may well be of assistance in identifying bodies whose acts
are subject to Charter review.
More precisely, this approach
looks at the nature of a body's statutory authority and addresses the
possibility that government has delegated power to a subordinate body. It
seems to me that this approach may therefore assist one to identify those
bodies that are neither subject to extensive government control and that cannot
be said to be carrying out a traditional government function, but that may
nonetheless be the product of government's decision to take on a new role. By
examining whether a body exists to serve a government's objectives in a
particular area or acts primarily in its own self‑interest, this approach
may also assist one in distinguishing between entities that are in some sense
creatures of statute but that cannot be said to form part of government (e.g.,
privately held corporations incorporated under a Business Corporations Act) and
entities that are creatures of statute that do form part of government (e.g.,
Crown agents).
Thus, this approach would assist
in identifying bodies like Eldorado Nuclear Limited as part of government even
although the body's "corporate objects clauses and the relevant statutes
leave it free to operate without government direction" (per Dickson J. in
Eldorado,
supra, at p. 573) and
even although the body operated within a relatively new area of government
activity, i.e., the nuclear industry. As a Crown agent created to address what
the government of the day clearly perceived to be a matter of public concern,
this body would therefore be required to abide by basic constitutional norms.
In my view, this result accords
with common sense. I note that in the course of its extensive study of
government management and accountability, the Lambert Commission,
supra, at p. 269,
observed:
The extensive resort to Crown
agencies is a legitimate response by government to the problem of developing
alternative instrumentalities to cope with the demands imposed by the
assumption of new roles that require independent sources of policy advice,
regulation of important sectors of the economy, objective determination of
rights, and outright government ownership and operation of numerous business‑like
undertakings. Crown agencies serve a necessary and useful purpose in lightening
the burdens on ministers caused by the growth of programs and added
responsibilities within conventional departments.
As I have already mentioned, it seems
to me self‑evident that the Charter was meant to bind the Crown. I can
see no reason why Crown agents should be labelled non‑governmental and
thereby exempted from the ambit of the Charter. If we are to ensure that the
Charter continues to
provide unremitting protection of individual rights and liberties, then it
seems to me that the "alternative instrumentalities" that the Lambert
Commission identified must be subject to the Charter. I note that Professor Hogg has
reached a similar conclusion in Constitutional Law of Canada (2nd ed.), supra, at p. 672, where he observes:
Also clearly included are those Crown
corporations and public agencies that are outside the formal departmental
structure, but which, by virtue of ministerial control or express statutory
stipulation, are deemed to be "agents" of the Crown.
Once again, I do not think that
this approach will necessarily produce definitive answers. There might well be
entities like charitable organizations that are creatures of statute and that
serve the public interest, but which would not be properly viewed as part of government.
Nevertheless, it does seem to me that this approach captures an important
perspective that must be borne in mind in any inquiry concerning government
action, a perspective that is absent from both the control test and the
government function test. This is a perspective that can help us to identify
some of the more unusual bodies that government creates or becomes intricately
involved with in the process of pursuing particular government objectives.
As this review of possible
approaches to the identification of government makes clear, I do not think that
any one test or approach is a panacea. All have something of value to offer
since each provides a somewhat different perspective from which to deal with
the question what is government. But each alone risks missing a range of
bodies that it seems to me must be viewed as part of government, particularly
if one is to ensure that the Charter does in fact provide unremitting protection for individual rights and
liberties. It would seem therefore that the only satisfactory approach under
s. 32(1) of the Charter is one that is sensitive to the strong points of each of the
approaches outlined above.
As a result, 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?
Each of these questions is meant
to identify aspects of government in its contemporary context. An affirmative
answer to one or more of these questions would, to my mind, be a strong
indicator that one is dealing with an entity that forms part of government. I
hasten to add, however, that an affirmative answer can never be more than an
indicator. It will always be open to the parties to explain why the body in
question is not part of government. Likewise a negative answer is not
conclusive that the entity is not part of government. It will always be open
to the parties to explain that there is some other feature of the entity that
the questions listed above do not touch upon but which makes it part of
government.
We must at all costs be sensitive
to the fact that government is a constantly evolving organism. It follows that
the kinds of questions we must ask when trying to identify government must also
be capable of evolving. It seems to me that the reason why fixed tests
designed to identify government inevitably fail is that they assume that
government is static, an assumption that is not borne out by an historical and
comparative review of governments in this and other countries. As a result, the
questions that I have listed above are not carved in stone. Other questions
may have to be added to the list as governments enter or withdraw from
different fields. The questions I have listed are intended only as practical
guidelines to those trying to decide whether a body that is not self‑evidently
part of the legislative, executive or administrative branches of government may
nonetheless be part of government for purposes of s. 32(1) of the
Charter.
5. Application of
the Criteria to the Universities
(a)
The "Control" Test
A review of the various
connections between the province and the universities leads me to conclude that
the state exercises a substantial measure of control over universities in
Canada.
As I noted earlier in these
reasons, control may be exercised in a variety of different ways. In this case
the government has exercised control over the universities in four broad areas:
(1) funding; (2) governing structure; (3) decision‑making processes; and
(4) policy. Dealing first with funding, it is clear that the province has
involved itself heavily in the financing of these institutions of higher
learning. As my colleague La Forest J. has noted, the province
contributes substantially to the existence of the universities. It finances
the bulk of the universities' capital expenditures and provides special funds
for special projects. The evidence reveals that approximately 80% of the
operating and capital costs of the universities is met by government. In
addition to those matters to which La Forest J. has referred, I point out
that the government also funds the universities' "clientele", i.e.,
the student population. It is the availability from government of student
grant and loan programs which makes it possible for a great many students to
obtain a university education. Finally, the government provides funding for
specific research projects.
It should also be noted that
government funding of universities is not unconditional. The universities
disburse operating grants in accordance with a ministerial Operating Formula
Manual which, while not designed to limit or control the expenditure of funds
granted to the universities, has as a practical matter that effect. Operating
grants are calculated on the basis of the costs of the university program and
the number of students involved in that program. The universities set their
own tuition fees which are then subtracted from the operating grants. The
universities may set tuition fees at 110% of the formula fee without a
reduction in operating grants. Control is also exercised over capital and
special grants. These grants must be spent on the purposes for which they were
received.
The broadly based nature of the
financial assistance offered by government to all members of the university
community including the administration, students, and academics indicates that
government exercises a substantial measure of control over the operation of
universities.
Second, the government exercises
what may be termed "structural" control over these institutions. All
of the universities in issue in this appeal have been incorporated through Acts
of the provincial legislature. The history of this feature of these
institutions was summarized by the Ontario Court of Appeal at pp. 14‑15:
The
University of Toronto (U. of T.) was created by the legislature as the
"provincial university" in 1849. Its enabling statute was changed
from time to time and is presently the University of
Toronto Act, 1971,
S.O. 1971, c. 56.
The
University of Guelph (Guelph) is an amalgam of the Ontario Agricultural
College, the Ontario Veterinary College and the McDonald Institute which
formerly operated under the direct control of the provincial Department of
Agriculture. The university in its present form was created in 1964 by the
University of Guelph Act, 1964, S.O. 1964, c. 120.
Laurentian
University (Laurentian) finds its origin in Sacred Heart College established as
a Roman Catholic and bilingual college in 1913. In 1957 it was changed by an
Act of the legislature into the University of Sudbury and subsequently became
Laurentian University by the passage of the Laurentian
University of Sudbury Act, 1960, S.O. 1960, c. 151, as amended by 1961‑62, c. 154, ss. 1 to 7.
York University (York) was
established in 1959 as an affiliate of the U. of T. This affiliation ended by
mutual agreement in 1965 when the legislature enacted the York
University Act, 1965,
S.O. 1965, c. 143.
These "enabling" statutes
set out in detail the powers, functions, privileges, and governing structure of
the universities. Each establishes a governing body known as the board of
governors in the case of Laurentian, York and Guelph and the governing council
in the case of the U. of T. These governing bodies are given the power to
"run" the institutions. They are the entities responsible for
exercising all the powers and authority granted to the universities under their
enabling legislation as well as under other Acts which touch upon their powers
(eg., the University Expropriation Powers Act, R.S.O. 1980, c. 516).
Third, the legislative branch of
government through the Judicial Review Procedure Act, R.S.O. 1980, c. 224, confers power
on the courts to supervise the universities' exercise of their authority in order
to ensure adherence to the principle of fairness. There is accordingly
governmental control over some university processes.
Finally, I believe that the
province indirectly controls a significant amount of university policy. For
example, in the area of undergraduate programs, prior approval must be obtained
from the Ontario Council on University Affairs ("OCUA"), an advisory
committee appointed by the Lieutenant Governor in Council pursuant to the
Ministry of Colleges and Universities Act, R.S.O. 1980, c. 272, for any new programs
outside core arts and science subjects. Further, an annual report must be
submitted by OCUA respecting regular programming. With respect to graduate
programs, they must first be accredited by the Ontario Council on Graduate
Studies ("OCGS"), a sub‑committee of the Council of Ontario
Universities ("COU"). If the program is approved by COU, COU
recommends to OCUA that the program be funded. OCUA reviews the program in
terms of academic considerations, societal need, student demand, economic
constraints, and duplication of existing programs and makes its recommendations
to the province which makes the final determination.
I believe also that government
exercises a measure of control over the universities' degree granting power
pursuant to the Degree Granting Act, 1983, S.O. 1983, c. 36. Under that Act, only
approved universities are given the power to grant degrees.
It is true that government has no
direct involvement in the policy of mandatory retirement instituted by the
universities. As I have indicated, however, a specific connection between the
impugned act and government need not necessarily be established. If the
relationship between the universities and government is sufficiently close to
warrant their being considered governmental for purposes of s. 32 , I see no
reason why their internal policies and practices should not have to conform to
the dictates of the Constitution.
I accept the submission of the
respondents that the principle of academic freedom accounts for the absence of
governmental intervention in some types of decisions universities must make.
In my opinion, however, this argument does not really advance the universities'
case for exemption from Charter review. Rather, it supports the view expressed earlier that
government must preserve an arm's length relationship with some types of bodies
in order that they can perform their function in the best possible way. The
essential function which the principle of academic freedom is intended to serve
is the protection and encouragement of the free flow of ideas. Accordingly,
government interference in this realm is impermissible.
Quoting from the Bissell Report of
the Commission on the Government of the University of Toronto (Toronto 1970),
at p. 27:
By
and large, devotion to his discipline in an atmosphere of freedom characterizes
the academic. As long as his discipline is respected and allowed to develop
according to its own requirements, and he is provided with books, libraries,
laboratories and technical services in keeping with the university's resources,
the academic is content to leave the overall administration of the university
to others and to encumber himself with as little administrative responsibility
in the faculty or department as is consistent with common decency.
Academic work and academic
decisions ‑ his teaching and research, curricular development in his
department, appointments to staff, and so forth ‑ are his primary
concern, and he is convinced that academics alone are possessed of the expertise
required to make such decisions. His dedication is to his discipline, and even
when he engages in writing, research and consultancy outside the university, he
usually sees such activities as contributing to his work in the discipline.
Quoting also from an essay by
Frank Underhill (Underhill, "The Scholar: Man Thinking", in Whalley
(ed.), A Place of Liberty (Toronto 1964)) at p. 68:
The claim of the university teacher is
that he and his fellows, whatever their legal position as employees, are in
fact members of a professional community and should be considered to enjoy the
rights of a learned profession. That is, they collectively should determine
what shall be taught, how it shall be taught, who shall be qualified to do the
teaching, and who shall be qualified to receive the teaching. In a word, they
should be self‑governing as are the members of other learned
professions. Academic freedom is the collective freedom of a profession and
the individual freedom of the members of that profession.
It should be noted that it is the
universities themselves which confer academic freedom through their tenure
arrangements for each faculty member. And this system is not without its
critics. Indeed, the Bissell Commission calls for a re‑thinking of
tenure as a means of protecting academic freedom, suggesting that it has more
to do with job security than academic freedom (at pp. 53‑54).
While I believe that the principle
of academic freedom serves an absolutely vital role in the life of the
university, I think its focus is quite narrow. It protects only against the
censorship of ideas. It is not incompatible with administrative control being
exercised by government in other areas. In this respect, it may be somewhat
analogous to the principle of judicial independence in relation to the
adjudicative function. I do not believe that the fact that the province has
not exercised control over the retirement policies of the universities is
decisive of their status although it is clearly relevant to it.
With regard to the general level
of control exercised by government over the universities, I believe that the
indicia of control which I have identified support the conclusion that the
province exercises quite substantial, although in some areas indirect, control
over these institutions. This is not, however, by itself enough to bring them
within s. 32 of the Charter. We have to apply the other tests outlined above.
(b)
The "Government Function" Test
In applying the "government
function" test the general principle is that a function becomes
governmental because a government has decided to perform it, not because the
function is inherently governmental.
Education has occupied an
important sphere of governmental activity in both pre‑ and post‑Confederation
Canada. For example, as early as 1766 the legislature of Nova Scotia enacted An
Act concerning Schools and Schoolmasters, S.N.S. 1766, c. 7, which provided for the
appointment of schoolmasters and the funding of local schools in the colony.
Other colonies of British North America had similar legislation. For example,
the Revised Acts and Ordinances of Lower-Canada 1845 contain four Acts relating
to education and educational establishment: An Act to
facilitate the establishment and the endowment of Elementary Schools in the
Parishes of this Province, R.S.L.C. 1845, Class I, c. 1; An Act for the
establishment of Free Schools and the advancement of Learning in this Province, R.S.L.C. 1845, Class I, c. 2; An
Act to provide for the establishment of Normal Schools, R.S.L.C. 1845, Class I, c. 3; and An
Act to incorporate the College of Chambly, R.S.L.C. 1845, Class I, c. 4. See also
Province of Canada Statutes, An Act for the better establishment and maintenance of
Public Schools in Upper Canada, and for repealing the present School Act, S. Prov. C. 1849, c. 83; Act
to repeal certain Acts therein mentioned, and to make further provision for the
establishment and maintenance of Common Schools throughout the Province [Common
Schools Act], S.
Prov. C. 1841, c. 18; An Act to enable the Corporation of the Royal
Institution for the Advancement of Learning, to dispose of certain portions of
Land, for the better support of the University of McGill College, S.L.C. 1844-45, c. 78; An
Act for the appropriation of the Revenues arising from the Jesuits' Estates,
for the year one thousand eight hundred and forty-six, S.L.C. 1846, c. 59; and An
Act to make better provision for promotion of superior Education and the
establishment and support of Normal Schools in Lower Canada and for other
purposes, S.L.C.
1856, c. 54. And in Prince Edward Island an educational regime had been
established under various Acts such as An Act for the
encouragement of education, S.P.E.I. 1852, c. 13, and An Act to consolidate and amend
the several laws relating to education, S.P.E.I. 1861, c. 36. All these educational
activities have been continued and expanded by the various levels of government
down to the present day.
In 1867 the Fathers of
Confederation recognized the role that provincial governments had come to play
in the area of education. Section 93 of the Constitution
Act, 1867 gives
exclusive jurisdiction over education to the provinces, limiting that
jurisdiction only to the extent necessary to protect denominational schools and
religious minorities.
Provincial government activity in
the education field subsequent to 1867 may be characterized as all‑inclusive.
For example, in 1871 the Ontario legislature passed An Act to
Improve the Common and Grammar Schools of the Province of Ontario, S.O. 1871, c. 33, which reorganized
the lower school system in the province creating a public system of free
schools. In 1874 the legislature again acted to reform the public education
department, together with the lower schools, collegiate institutes and high
schools of the province, and to amend and consolidate the Public School Law,
S.O. 1874, cc. 27 and 28 respectively. Finally the Revised Statutes of Ontario
for 1877 contains a consolidation of the various educational statutes in force
at the time. They provide for, inter alia, a Department of Education (c. 203), a
complete regime of public (grade) schools and high schools (cc. 204 and 205),
as well as the University of Toronto (cc. 209 and 210), a school of Practical
Science (c. 212), and Industrial Schools (c. 213). This governmental activity
is also mirrored in other provinces and territories: see Prince Edward Island, The
Public Schools' Act, 1877, S.P.E.I. 1877, c. 1; Nova Scotia, Of Public
Instruction, R.S.N.S.
1873, c. 32; Quebec, Public Instruction, R.S.Q. 1888, Title V, arts. 1860‑2288;
New Brunswick, Schools Act, C.S.N.B. 1877, c. 65; Manitoba, The
Manitoba School Act,
C.S.M. 1880, c. 62; British Columbia, Consolidated
Public School Act, 1876,
S.B.C. 1876, c. 142, and the North‑West Territories, The
School Ordinance, C.O.N.W.T.
1898, c. 75.
A brief review of the legislation
in place both before and after Confederation leads to the inescapable
conclusion that education at every level has been a traditional function of
governments in Canada.
(c)
Statutory Authority and the Public Interest Test
It has already been established
that the universities are broadly empowered to conduct their affairs through
their enabling statutes. Moreover, the grant of statutory authority clearly
encompasses the power to enter into employment contracts and collective
agreements with faculty and staff.
It is beyond dispute that the
universities perform an important public function which government has decided
to have performed and, indeed, regards it as its responsibility to have
performed. Counsel for the respondents conceded as much at trial. Moreover,
justification for state activity in this area is not hard to find. The state's
interest in education in today's society does not and cannot stop at the point
of ensuring basic literacy. The promotion of higher learning and the provision
of access to opportunities for study at this level is clearly in the public
interest. The state readily acknowledges the important role universities play
not only in the education of our young people but also more generally in the
advancement and free exchange of ideas in our society. On a more practical
level, the province recognizes that prospects for economic growth are linked to
the development and maintenance of a critical mass of scholars and researchers
and, more basically, an educated community. For this reason also the province
has a vital interest in a first class, comprehensive system of education.
As in the case of the control
test, I might not be prepared to conclude that satisfaction of the third test
was enough by itself to bring the respondents within s. 32 of the
Charter. However,
the fact that the universities are so heavily funded, the fact that government
regulation seems to have gone hand in hand with funding, together with the fact
that the governments are discharging through the universities a traditional
government function pursuant to statutory authority leads me to conclude that
the universities form part of "government" for purposes of s. 32 .
Their policies of mandatory retirement are therefore subject to scrutiny under
s. 15 of the Charter .
II.Does the Universities' Mandatory
Retirement Policy Infringe Section 15 of the Charter?
1. The Meaning of
"Law" in Section 15
Having found that the
Charter applies to
universities in Ontario, it must next be determined whether the policy of
mandating retirement at the age of sixty‑five infringes s. 15(1) of the
Charter . Section
15(1) provides:
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.
In Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143, McIntyre J. discussed the meaning of the word
"law" in s. 15 as follows at pp. 163‑164:
This is not a general guarantee of
equality; it does not provide for equality between individuals or groups within
society in a general or abstract sense, nor does it impose on individuals or
groups an obligation to accord equal treatment to others. It is concerned with
the application of the law. No problem regarding the scope of the word
"law", as employed in s. 15(1) , can arise in this case because it is
an Act of the Legislature which is under attack. Whether other governmental or
quasi‑governmental
regulations, rules, or requirements may be termed laws under s. 15(1) should be
left for cases in which the issue arises.
Because of its obvious application to
statute law McIntyre J. did not have to consider how much further the word
"law" in s. 15 might extend. This, however, has a direct bearing on
the reach of s. 15.
A number of lower courts have
attempted to grapple with this issue. In
Douglas/Kwantlen Faculty Assn. v. Douglas College, supra, the British Columbia 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
which provides that when a term appears more than once in the same piece of
legislation it should be given the same meaning, the court turned to the
jurisprudence of this Court dealing with "law" in s. 1 of the
Charter and s. 52 of
the Constitution Act, 1982 . The Court of Appeal offered the following
definition at pp. 726-27: "a rule or a system of rules formulated by
government and imposed upon the whole or a segment of society. In this
context, law may be made by government itself or by bodies or agencies
exercising governmental power."
At issue in
Douglas College was a
provision in a collective agreement mandating retirement at age 65. The court
noted that in general the provisions in a collective agreement would not be
considered "law" since they reflect the will of the parties and not
the government. The same could not be said of the agreement before the court,
however, since all its terms were subject to the approval of a commissioner
appointed by the government with the power to review and reject all
compensation practices. Similarly in Stoffman v.
Vancouver Gen. Hosp.
(1988), 21 B.C.L.R. (2d) 165, the same panel of the court (Hinkson, Macfarlane
and McLachlin (now of this Court) JJ.A.) found on the strength of
Douglas College that
a regulation passed by the hospital's management board terminating the hospital
privileges of doctors over the age of 65 was also "law". As in
Douglas College the
regulation did not become effective until approved by the Minister.
By way of contrast, in Re
Ontario English Catholic Teachers Association and Essex County Roman Catholic
School Board (1987),
58 O.R. (2d) 545, the Divisional Court of Ontario divided on the issue of
whether a policy formulated by the school board mandating retirement at age 65
could be considered "law" for the purposes of s. 15. Craig J. in
dissent expressed the opinion, at p. 550, that "the policy is intended to
be binding upon the teachers and is "law" within the meaning of s.
15(1) of the Charter and s. 52(1) of the Constitution
Act, 1982 ." The
majority (Anderson and McKinlay JJ.) felt otherwise, noting at p. 565,
that "law" meant "law in the sense of a rule of conduct made
binding upon a subject by the State." In their view, the policy of the
board and its resolution to apply it did not constitute law in this sense.
Despite the differences between
Douglas College and
Vancouver General Hospital on the one hand, and Essex County on the other, these decisions all
accept as a fundamental premise that the word "law" in s. 15 embraces
the notion of some discrete, explicit and identifiable rule. My colleague
La Forest J. also seems to accept this approach to the role the word
"law" is intended to play in the operation of the equality guarantee
although he would give it a liberal interpretation.
I do not regard it as self‑evident
that the term "law" in s. 15 was intended to play a limiting role. 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. Indeed, it would be my view that the guarantee of equality
applies irrespective of the particular form the discrimination takes.
As La Forest J. noted in
Andrews,
supra, at p. 193:
I am not prepared to accept at
this point that the only significance to be attached to the opening words that
refer more generally to equality is that the protection afforded by the section
is restricted to discrimination through the application of law. It is possible
to read s. 15 in this way and I have no doubt that on any view redress against
that kind of discrimination will constitute the bulk of the courts' work under
the provision. Moreover, from the manner in which it was drafted, I also have
no doubt that it was so intended. However, it can reasonably be argued that
the opening words, which take up half the section, seem somewhat excessive to
accomplish the modest role attributed to them, particularly having regard to
the fact that s. 32 already limits the application of the
Charter to
legislation and governmental activity. It may also be thought to be out of
keeping with the broad and generous approach given to other
Charter rights, not
the least of which s. 7 , which is like s. 15 is of a generalized character.
See also Eberts, "Sex‑based
Discrimination and the Charter," in Bayefsky and Eberts (eds.),
Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto 1985), at pp. 206‑07.
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. I say "by
those to whom the Charter applies" because of this Court's conclusion in
Dolphin Delivery that
it does not apply to private action absent a government connection.
However, accepting that
limitation, this approach to s. 15 seems to me to be completely consistent
with the finding that s. 32 of the Charter makes acts of the executive or
administrative branch of government subject to Charter scrutiny. I see no sound reason why
government conduct which violates an individual's equality rights under s. 15
is not subject to redress by the courts in order to restore that individual's
declared right to equality under the law. Section 15 , on this interpretation,
does not require a search for a "law" which discriminates but merely
a search for discrimination which must be redressed by the law.
Section 24 of the
Charter confers a
broad discretion on the courts to redress Charter violations. 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.
This section may be contrasted with s.
1 of the Charter and s. 52 of the Constitution Act, 1982 . Section 1 requires limits on
Charter rights to be
"prescribed by law", and if so prescribed, to be reasonable and
demonstrably justified in a free and democratic society. Section 52 provides
that the Constitution is the supreme law of Canada and that any law which is
inconsistent with it is of no force or effect. These provisions operate to
allow the courts to strike down existing laws which derogate from the values
enshrined in the Constitution. Section 24 of the Charter, on the other hand, seems to have
been included so as to give the courts jurisdiction to design appropriate
remedies for violations which do not necessarily have their origin in law as
such. It thus provides a means whereby the courts can remedy infringements
arising from conduct.
I believe also that the wording of
s. 15(2) supports the view that s. 15(1) was not meant to be restricted to
"law" even broadly construed. Section 15(2) provides:
15. . . .
(2) Subsection (1) does not
preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
"Activity" cannot, in my
view, be read narrowly in order to be equated with "law". Subsection
(2) must be read together with subs. (1). It would not have been necessary to
exempt programs and activities from the ambit of subs. (1) if they were not
included in subs. (1) in the first place. I believe that the inclusion of
these words in subs. (2) provides strong support for the proposition that s.
15(1) was not intended to apply only in the narrow context of discriminatory
legislation or "rules" analogous thereto.
Finally, and perhaps most
importantly, this broad interpretation of s. 15 best achieves the purpose of
the section, namely to protect against the evil of discrimination by the state
whatever form it takes. This Court has said on many occasions that the proper
approach to Charter interpretation is a purposive one: see Hunter v.
Southam Inc.,
supra. Moreover, in
interpreting "law" in s. 1 of the Charter and s. 52 of the
Constitution Act, 1982 ,
the decisions of this Court demonstrate that "law" may not have the
same meaning throughout the constitution. For instance, in
Operation Dismantle Inc. v. The Queen, supra, Dickson J. said of s. 52 at p. 459:
I would like to note that nothing
in these reasons should be taken as the adoption of the view that the reference
to "laws" in s. 52 of the Charter [sic] is confined to statutes, regulations
and the common law. It may well be that if the supremacy of the Constitution
expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers
granted by law will fall within s. 52 .
Contrariwise, in interpreting s.
1 , Lamer J. said in R. v. Therens, [1985] 1 S.C.R. 613, at p. 623:
As set out in the reasons of Estey J.,
the violation of the respondent's rights is not the result of the operation of
law but of the police action and there is no need, in my view, to consider in
this case whether under s. 1 of the Charter the "breathalyzer scheme"
set up through s. 235(1) and s. 237 of the Criminal Code is a reasonable limit to one's rights
under the Charter.
Le Dain J., dissenting on other
grounds, agreed saying at p. 645:
The requirement that the limit be
prescribed by law is chiefly concerned with the distinction between a limit
imposed by law and one that is arbitrary. The limit will be prescribed by law within
the meaning of s. 1 if it is expressly provided for by statute or
regulation, or results by necessary implication from the terms of a statute or
regulation or from its operating requirements. The limit may also result from
the application of a common law rule. [Emphasis added.]
These two definitions of
"law" are obviously quite different. Their difference springs from
the fact that s. 1 of the Charter and s. 52 of the Constitution Act, 1982 serve two very different purposes. 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. Just as the meaning of "law" in s. 1 of the
Charter and s. 52 of
the Constitution Act, 1982 , depends on the purpose those sections were
meant to achieve, so also does the meaning of "law" in s. 15(1) .
In Andrews it was acknowledged that the key to
s. 15 is the word "discrimination". At page 172 of his reasons
McIntyre J. said:
The right to equality before and
under the law, and the rights to the equal protection and benefit of the law
contained in s. 15, are granted with the direction contained in s. 15 itself
that they be without discrimination. Discrimination is unacceptable in a
democratic society because it epitomizes the worst effects of the denial of
equality, and discrimination reinforced by law is particularly repugnant. The
worst oppression will result from discriminatory measures having the force of
law. It is against this evil that s. 15 provides a guarantee.
In Reference Re
Workers' Compensation Act, 1983, [1989] 1 S.C.R. 922; R. v. Turpin, [1989] 1 S.C.R. 1296;
Rudolf Wolff & Co. v. Canada, [1990] 1 S.C.R. 695, and R. v. S. (S.), [1990] 2 S.C.R. 254, this Court
repeatedly affirmed that in order to establish a violation of s. 15(1) there
must be evidence of discrimination in the sense of stereotype and prejudice.
For example, quoting from Turpin at p. 1333:
Differentiating for mode of trial
purposes between those accused of s. 427 offences in Alberta and those accused
of the same offences elsewhere in Canada would not, in my view, advance the
purposes of s. 15 in remedying or preventing discrimination against groups
suffering social, political and legal disadvantage in our society. A search
for indicia of discrimination such as stereotyping, historical disadvantage or
vulnerability to political and social prejudice would be fruitless in this
case....
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. In Canadian National Railway Co. v. Canada (Canadian Human
Rights Commission),
[1987] 1 S.C.R. 1114, this Court quoted from Judge Abella's report
Equality in Employment
regarding the phenomenon of "systemic discrimination". At page 9 of
that report, Judge Abella explains:
The
impact of behaviour is the essence of "systemic discrimination". It
suggests that the inexorable, cumulative effect on individuals or groups of
behaviour that has an arbitrarily negative impact on them is more significant
than whether the behaviour flows from insensitivity or intentional
discrimination ....
Systemic discrimination requires
systemic remedies. Rather than approaching discrimination from the perspective
of the single perpetrator and the single victim, the systemic approach
acknowledges that by and large the systems and practices we customarily and
often unwittingly adopt may have an unjustifiably negative effect on certain
groups in society. The effect of the system on the individual or group,
rather than its attitudinal sources, governs whether or not a remedy is
justified. [Emphasis added.]
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.
For the reasons given above I
believe that the arguments in support of a liberal interpretation of s. 15 are
compelling. It is not strictly necessary, however, for the Court to come to a
definitive conclusion on this aspect of s. 15 in this case for two reasons.
First, even if the most restrictive interpretation of "law" is
adopted, the universities' enabling statutes all contain provisions conferring
power on the respondents to terminate their contracts of employment with the
appellants as they see fit. For example, The York University
Act, 1965, S.O. 1965,
c. 143, provides:
10.
Except as to such
matters by this Act specifically assigned to the Senate, the government,
conduct, management and control of the University and of its property,
revenues, expenditures, business and affairs are vested in the Board, and the
Board has all powers necessary or convenient to perform its duties and achieve
the objects and purposes of the University, including, without limiting the
generality of the foregoing, power,
...
(c)to appoint, promote and remove all
members of the teaching and administrative staffs of the University and all
such other officers and employees as the Board may deem necessary or advisable
for the purposes of the University, but no member of the teaching or administrative
staffs, except the President, shall be appointed, promoted or removed except on
the recommendation of the President, who shall be governed by the terms of the
University's commitments and practices;
(d)to fix the number, duties, salaries
and other emoluments of officers, agents and employees of the University;
See similarly: The
University of Toronto Act, 1971, S.O. 1971, c. 56, s. 2(14)(b) and (c); The University
of Guelph Act, 1964,
S.O. 1964, c. 120, s. 11(b)
and (c);
and The Laurentian University of Sudbury Act, 1960, S.O. 1960, c. 151, s. 13(1)(b) and (c). It was pursuant to these
legislative provisions that the discrimination complained of took place.
Secondly, even if a more liberal
approach to the interpretation of the word "law" is adopted, it would
lead to a finding that the policies instituting mandatory retirement constitute
"law" within the meaning of s. 15. At the University of Guelph
the mandatory retirement age is in the form of a university policy. At both York
University and Laurentian University mandatory retirement is imposed in
collective agreements entered into between faculty and administration. And at
the University of Toronto the age of retirement is incorporated into the
definition of academic tenure, which definition forms part of the faculty
members' contract of employment with the university. All of these methods of
instituting mandatory retirement, it seems to me, constitute "binding
rules" in the broad sense. I agree with La Forest J. that it makes no
difference that some of the rules came about as a result of a process of
negotiation culminating in their incorporation into collective agreements. Nor
does it make any difference, in my view, that those subject to these rules,
negotiated or not, have not previously pushed for their repeal. What we are
dealing with in these appeals is, broadly speaking, "the law of the
workplace" ‑‑ law which may be determined exclusively by the
employer in the case of unorganized establishments or by the joint efforts of
the union and the employer in the case of unionized establishments ‑‑
but binding law nonetheless.
For the above reasons, therefore,
I find that the mandatory retirement policies of the universities are subject
to s. 15 scrutiny.
2. Is the
Imposition of Mandatory Retirement Discriminatory?
Both La Forest J. and L'Heureux‑Dubé
J. have found that the imposition of mandatory retirement infringes s. 15(1) of
the Charter . I take no issue with that finding. Indeed, one would be hard
pressed to construe any rule prohibiting employment past a certain age as
anything other than a clear example of direct discrimination. I wish, however,
to add a few comments about the developing jurisprudence of this Court on the
application of s. 15 .
In Andrews, supra, McIntyre J. described the steps to
be taken in determining s. 15 claims. The first question to be asked is
whether the rule, in purpose or effect, distinguishes between different
individuals or different classes of individuals. A finding that "different
treatment" exists, however, does not end the inquiry. McIntyre J.
explicitly stated that not every difference in treatment would give rise to a
s. 15 violation. The sorts of differences in treatment caught by the section
are those that are discriminatory. Thus the second issue to be determined in
equality cases is whether the distinction once found gives rise to
discrimination.
What is discrimination? Before
this Court had an opportunity to review the purpose of s. 15, many of the lower
courts had equated "discrimination" with different treatment
simpliciter, thereby
rendering the presence of the word "discrimination" in the section
more or less superfluous. McIntyre J. quite rightly rejected this
interpretation. At pages 174‑75 he said that discrimination:
... may be described as a distinction,
whether intentional or not but based on grounds relating to personal
characteristics of the individual or group, which has the effect of
imposing burdens, obligations, or disadvantages on such individual or group not
imposed upon others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society. Distinctions
based on personal characteristics attributed to an individual solely on the
basis of association with a group will rarely escape the charge of
discrimination, while those based on an individual's merits and capacities will
rarely be so classed. [Emphasis added.]
Later in his reasons McIntyre J. set
out the various approaches to s. 15 that had been advanced by academics and
courts. In particular, he described what has become known as the
"enumerated or analogous grounds approach" which was ultimately
adopted by the Court as the proper approach to s. 15. At pages 180‑81 he
said:
The analysis of discrimination in this
approach must take place within the context of the enumerated grounds and those
analogous to them. The words "without discrimination" require more
than a mere finding of distinction between the treatment of groups or individuals.
Those words are a form of qualifier built into s. 15 itself and limit those
distinctions which are forbidden by the section to those which involve
prejudice or disadvantage.
These comments ought not to be
considered in isolation from one another. As Professor Gold remarked in his
article, "Comment: Andrews v. Law Society of British Columbia" (1988-89), 34
McGill L. J. 1063, at
p. 1079:
The equality provisions in the
Charter are like the
three‑dimensional image in a holographic plate. Although one may break
the plate into a thousand pieces, shining a laser beam through any one of the
shards will reproduce the image in its entirety. So too is it with the
concepts of "equality", "discrimination",
"reasonableness" and "justification". Out of any one of these
concepts can be generated all of the principles that we distribute amongst the
various clauses of sections 15 and 1 .
The view expressed by Professor Gold
has been implicitly endorsed by this Court in its decisions following
Andrews. As I noted
earlier in these reasons, the evil which s. 15 was meant to protect against is
stereotype and prejudice. The purpose of the equality guarantee is the
promotion of human dignity. This interest is particularly threatened when
stereotype and prejudice inform our interactions with one another, whether on
an individual or collective basis. It is for this reason that the central
focus of the equality guarantee rests upon those vehicles of discrimination,
stereotype and prejudice.
The centrality of the concept of
"prejudice" explains why the similarly situated test has no place in
equality jurisprudence. Unhappily, the parties involved in these appeals as
well as some of the academics who have commented upon the
Andrews decision have
continued to resort to that test. For instance, Professor Gold,
supra, remarked at p.
1065 of his comments:
A number of questions arise from
the Court's analysis of the principle of formal equality. First, the Court
does not say that the principle of formal equality has no role to play in any
case whatsoever, only that it would be wrong to attempt to resolve all issues
"within such a fixed and limited formula". Second, notwithstanding
the harshness of its criticisms, the Court does not reject the underlying
premise of this principle. For example, Justice McIntyre cites the following
in support of the proposition that equality does not necessarily demand
identical treatment: "It was a wise man who said that there is no greater
inequality than the equal treatment of unequals". If the "wise
man" was not Aristotle, it certainly could have been: this passage is a
pure expression of the principle of formal equality. [Citations omitted.]
See also Black and Smith,
"Note" (1989), 68 Can. Bar Rev. 591, at pp. 600‑601.
In my view, and with great respect
to those who think otherwise, this Court has clearly rejected similarity of
situation as the benchmark for the application of s. 15. I need not repeat the
criticisms of the test articulated by McIntyre J. in Andrews or, indeed, any of the other
criticisms of the test which have been identified by other commentators. The
focus of s. 15, in my view, is clearly prejudice and stereotype.
In the context of these appeals
the question then is whether the policy of mandatory retirement at age 65 gives
rise to discrimination within the meaning of s. 15. The respondent
universities contend that it does not. They argue that simply because
mandatory retirement draws an adverse distinction on the basis of the
enumerated ground of age does not mean that the policy discriminates. They say
that those who are subject to mandatory retirement suffer no prejudice and s.
15 is therefore not infringed. The appellants, on the other hand, submit that
it is unnecessary for them to establish anything other than the fact that an
adverse distinction has been drawn on the basis of a prohibited ground.
In my view, neither the
respondents nor the appellants have properly approached the question this Court
must address. The grounds enumerated in s. 15 represent some blatant examples
of discrimination which society has at last come to recognize as such. Their
common characteristic is political, social and legal disadvantage and
vulnerability. The listing of sex, age and race, for example, is not meant to
suggest that any distinction drawn on these grounds is per
se discriminatory.
Their enumeration is intended rather to assist in the recognition of prejudice
when it exists. At the same time, however, once a distinction on one of the
enumerated grounds has been drawn, one would be hard pressed to show that the
distinction was not in fact discriminatory.
It follows, in my opinion, that
the mere fact that the distinction drawn in this case has been drawn on the
basis of age does not automatically lead to some kind of irrebuttable
presumption of prejudice. Rather it compels one to ask the question: is there
prejudice? Is the mandatory retirement policy a reflection of the stereotype
of old age? Is there an element of human dignity at issue? Are academics
being required to retire at age 65 on the unarticulated premise that with age
comes increasing incompetence and decreasing intellectual capacity? I think
the answer to these questions is clearly yes and that s. 15 is accordingly
infringed.
III.Is the Universities' Mandatory
Retirement Policy Justifiable Under Section 1 of the
Charter?
I have found that the
Charter applies to
the universities and that their policy of mandatory retirement at age 65
violates s. 15 . The next question is whether the policy can be saved under s.
1 of the Charter which provides:
1. The Canadian
Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
1. The Meaning of
"Law" in Section 1
This section requires limits on
Charter rights and
freedoms to be "prescribed by law". As I have noted elsewhere, the
term "law" within s. 1 should be construed in accordance with the
purpose which the section was intended to serve. Part of that purpose, I
believe, is to make sure that only limits imposed pursuant to the rule of law
be examined to see whether they are reasonable and demonstrably justifiable
under s. 1 . Put more succinctly, as Le Dain J. noted in
Therens,
supra, the purpose
behind the "prescribed by law" requirement is to distinguish between
those limits which arise by law and those which result from arbitrary action.
Is, then, the imposition of mandatory retirement prescribed by law within the
meaning of s. 1 ?
This Court has had occasion to
consider the "prescribed by law" requirement on a number of
occasions. In R. v. Therens, supra, the respondent had lost control of his motor
vehicle and collided with a tree. When the police arrived at the scene of the
accident they suspected that the respondent had been drinking and consequently
demanded from him a breath sample pursuant to s. 235(1) of the
Criminal Code, R.S.C.
1970, c. C-34. The section provided that a person from whom a breath sample
has been demanded is to comply with the demand "as soon as
practicable" and, in any event, not later than two hours after the demand
is made. Therens accompanied the officer to the police station and willingly
provided the sample. He was subsequently charged and convicted under s. 236(1)
of the Code of driving with a blood alcohol level in excess of the legal limit.
Therens appealed his conviction on the basis that, since he was not informed of
his right to counsel upon detention, the breath sample had been obtained in
violation of his Charter rights and the evidence respecting his blood alcohol level was
therefore improperly admitted.
One of the questions posed to the
Court was whether the limit on the accused's right to counsel was prescribed by
law. As the section of the Code provided that breath samples were to be provided as soon as
practicable, the section did not expressly or by necessary implication compel
infringement of the Charter. The majority found therefore that the limitation on the rights of
the accused under the Charter arose from the action of the police officer involved and not from
Parliament and as such could not be saved under s. 1 .
The same analysis was applied in R.
v. Thomsen, [1988] 1
S.C.R. 640, where s. 234.1(1) of the Code was challenged. Unlike s. 235(1), s.
234.1(1) provided that a breath sample was to be provided "forthwith"
rather than as soon as practicable. Le Dain J., writing for a unanimous court,
held that the section by necessary implication infringed s. 10(b) of the Charter but could be justified under s. 1 .
In Irwin Toy Ltd.
v. Quebec (Attorney General), [1989] 1 S.C.R. 927, the Court was faced with the question of whether
a legislative prohibition on advertising directed against children was
justified under s. 1 . The legislation in question provided a mechanism by
which it could be determined whether advertisements were in fact aimed at that
segment of the community. Under s. 249 of the Consumer
Protection Act,
R.S.Q., c. P‑40.1, a judge was to determine whether advertisements were
directed towards children on the basis of three factors: (1) the nature and
intended purpose of the goods advertised; (2) the manner of presentation; and
(3) the time and place the advertisement was to be shown. The respondent
complained that these factors were too vague and did not provide the court with
sufficient guidance to make the determination whether or not advertising was
directed toward children. This lack of solid guidance, it was argued, meant
that the limit on the advertisers' freedom of expression was not
"prescribed by law" within the meaning of s. 1 . Dickson C.J., Lamer
J. and I disagreed. At page 983 we said:
Absolute precision in the law
exists rarely, if at all. The question is whether the legislature has provided
an intelligible standard according to which the judiciary must do its work.
The task of interpreting how that standard applies in particular instances
might always be characterized as having a discretionary element, because the
standard can never specify all the instances in which it applies. On the other
hand, where there is no intelligible standard and where the legislature has
given a plenary discretion to do whatever seems best in a wide set of
circumstances, there is no "limit prescribed by law".
Finally, in
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, it was decided that a
provision which conferred a discretion upon a labour arbitrator to grant relief
for infringements of the Canada Labour Code, R.S.C. 1970, c. L‑1, impliedly gave the
arbitrator jurisdiction to make orders placing limits on
Charter rights.
Lamer J. summarized the application of this aspect of s. 1 in such
circumstances at p. 1081:
To determine whether this
limitation is reasonable and can be demonstrably justified in a free and
democratic society, therefore, one must examine whether the use made of the
discretion has the effect of keeping the limitation within reasonable limits
that can be demonstrably justified in a free and democratic society. If the
answer is yes, we must conclude that the adjudicator had the power to make such
an order since he was authorized to make an order reasonably and justifiably
limiting a right or freedom mentioned in the Charter. If on the contrary the answer is
no, then one has to conclude that the adjudicator exceeded his jurisdiction
since Parliament had not delegated to him a power to infringe the
Charter. If he has
exceeded his jurisdiction, his decision is of no force or effect.
In my view, a similar approach
ought to be taken in these appeals. While the universities are not creatures
of statute in the same sense as the arbitrator in Slaight
Communications, they
do derive their authority over employment relations with their faculty and
staff through their enabling statutes. These provisions do not in and of
themselves infringe the Charter. Instead, it is the action that has been taken pursuant to them which
has led to the violation. It is not necessary, therefore, to determine specifically
whether the actual policies compelling retirement at age 65 are "law"
within the meaning of s. 1 . For reasons analogous to those expressed in
Slaight Communications,
if the measures instituting mandatory retirement are not reasonable and
demonstrably justified, they fall outside the authority of the universities and
must be struck down.
2.Is the
Universities' Mandatory Retirement Policy Reasonable and Demonstrably Justified?
The role of s. 1 within the
Charter was first
articulated in this Court in R. v. Oakes, supra. The Oakes "test" was succinctly
summarized in the later case of R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, by Dickson C.J.
at p. 768:
Two requirements must be satisfied
to establish that a limit is reasonable and demonstrably justified in a free
and democratic society. First, the legislative objective which the limitation
is designed to promote must be of sufficient importance to warrant overriding a
constitutional right. It must bear on a "pressing and substantial
concern". Second, the means chosen to attain those objectives must be
proportional or appropriate to the ends. The proportionality requirement, in
turn, normally has three aspects: the limiting measures must be carefully
designed, or rationally connected, to the objective; they must impair the right
as little as possible; and their effects must not so severely trench on
individual or group rights that the legislative objective, albeit important, is
nevertheless outweighed by the abridgment of rights.
It is this test that must be applied
in ascertaining whether the universities' mandatory retirement policy meets the
requirements of s. 1 of the Charter .
Despite the fact that my
colleagues La Forest and L'Heureux‑Dubé JJ. have not found, as I have,
that the Charter applies to the universities, they have both considered the
constitutionality of mandatory retirement in the university context. I find
myself in substantial agreement with L'Heureux‑Dubé J. that the
universities' mandatory retirement policy cannot be justified under s. 1 . In
my view, it does not meet the proportionality test.
The respondents argue that the
"minimal impairment" branch of the Oakes test has been less stringently
applied in some situations and give as examples the decisions of this Court in
Edwards Books and
Irwin Toy. They
argue that the factors which motivated the Court in those two cases are present
here and that therefore the requirement of minimal impairment should be relaxed
in this case also.
In Edwards Books, this Court considered the
constitutionality of the Ontario Retail Business Holidays Act, R.S.O. 1980, c. 453. The Act deemed
Sunday to be a common pause day in the retail sector but provided an exemption
for small retailers who did not conduct business on Saturday. The majority
upheld both the pause day provision and the exemption. After examining the
exemption in relation to the interests of consumers, retailers and employees,
Dickson C.J. remarked at pp. 781‑82:
A "reasonable limit" is one
which, having regard to the principles enunciated in Oakes, it was reasonable for the
legislature to impose. The courts are not called upon to substitute judicial
opinions for legislative ones as to the place at which to draw a precise line.
Later, at p. 782, he added:
In my view, the principles articulated
in Oakes make it incumbent on a legislature which enacts Sunday closing laws to
attempt very seriously to alleviate the effects of those laws on Saturday
observers. The exemption in s. 3(4) of the Act under review in these appeals
represents a satisfactory effort on the part of the Legislature of Ontario to
that end and is, accordingly, permissible.
In Irwin Toy, supra, a seemingly similar approach was
adopted by this Court in its determination of whether a legislative ban on
television advertising directed towards children was constitutionally sound as
not trenching too onerously on freedom of speech. In that case, the evidence
revealed that televised advertising was particularly detrimental to children
under the age of six because this group was the least able to differentiate
fact from fiction. They were thus the most credulous when presented with
advertising messages. The evidence was, however, less than conclusive with
respect to older children. The most that could be said was that the ability to
view critically advertised messages in an adult way occurred somewhere between
the ages of seven and thirteen. Cognizant of the body of opinion on these
matters, the Quebec legislature opted for a scheme which prohibited all
advertising directed at children under the age of 13.
Dickson C.J., Lamer J. and I held
the provision to be reasonable and demonstrably justified within the meaning of
s. 1 . At page 993 it was said:
When striking a balance between the
claims of competing groups, the choice of means, like the choice of ends,
frequently will require an assessment of conflicting scientific evidence and
differing justified demands on scarce resources. Democratic institutions are
meant to let us all share in the responsibility for these difficult choices.
Thus, as courts review the results of the legislature's deliberations,
particularly with respect to the protection of vulnerable groups, they must be
mindful of the legislature's representative function.
Applying this reasoning to the problem
before us, we cast the issue we were called upon to determine in
Irwin Toy as follows
at p. 994:
In the instant case, the Court is
called upon to assess competing social science evidence respecting the
appropriate means for addressing the problem of children's advertising. The
question is whether the government had a reasonable basis, on the evidence
tendered, for concluding that the ban on all advertising directed at children
impaired freedom of expression as little as possible given the government's
pressing and substantial objective. [Emphasis added.]
At page 999 we concluded:
While evidence exists that other less
intrusive options reflecting more modest objectives were available to the
government, there is evidence establishing the necessity of a ban to meet the
objectives the government had reasonably set. This Court will not, in the
name of minimal impairment, take a restrictive approach to social science
evidence and require legislatures to choose the least ambitious means to
protect vulnerable groups. There must nevertheless be a sound evidentiary
basis for the government's conclusions. [Emphasis added.]
Do the above quoted passages
evidence a willingness on the part of the Court to adopt a more flexible
approach to this aspect of the s. 1 test? I think it clear that they do. In
my opinion, a close examination of the facts in both cases reveals that there
were indeed good reasons for the Court's adopting such an approach.
In Edwards Books Dickson C.J. reviewed, as I have
said, the relationship between the exemption in s. 3(4) and the interests of
consumers, retailers and employees. In respect of the first two groups, he
found that the scheme adopted by the legislature was no better or worse than
any other proposed scheme. All of the suggested ways of dealing with
exceptions to the Sunday closing laws had their faults. With respect to the
interests of those who worked in the retail sector, other mechanisms for
dealing with a satisfactory day of rest would severely impinge upon their
interests. The Court took due notice of the fact that of all those affected in
some way by Sunday shopping laws, retail employees were the most vulnerable.
Largely unskilled and unrepresented, these workers would be in no position to
resist pressure from their employers to not press for their rights. Thus, even
although other acceptable schemes could have been adopted by the provincial
government, none were clearly better at both minimizing the effects of Sunday
closings on both consumers and retailers and especially at protecting the
interests of those who would otherwise not reap the benefit of a uniform day
off work.
In Irwin Toy the respondent advertisers submitted
that there were indeed alternative means of dealing with the problem of
children's advertising and that these means did not infringe so severely on the
free speech rights of the advertisers. It was nonetheless held that these
different means of dealing with the issue did not invalidate the legislature's
right to proceed as it did. None of the proposed alternatives adequately
accomplished the legislature's admittedly reasonable objective of protecting
children from manipulation through commercial media. In that context, the
Court refused to second guess the legislative wisdom of choosing to protect the
interests of vulnerable children at the limited expense of the commercial
speech rights of advertisers.
It seems to me that the central
message to be drawn from the foregoing cases is that, if there is to be
deference toward the legislative initiative in cases where different means
might impinge less severely upon a guaranteed right or freedom, the exercise of
such deference is particularly apposite in those cases where something less
than a straightforward denial of a right is involved. Where the legislature is
forced to strike a balance between the claims of competing groups for instance,
and particularly where the legislature has sought to promote or protect the
interests of the less advantaged, the Court should approach the application of
the minimal impairment test with a healthy measure of restraint. As was said
by Dickson C.J. in Edwards Books at p. 779:
In interpreting and applying the
Charter I believe
that the courts must be cautious to ensure that it does not simply become an
instrument of better situated individuals to roll back legislation which has as
its object the improvement of the condition of less advantaged persons. When
the interests of more than seven vulnerable employees in securing a Sunday
holiday are weighed against the interests of their employer in transacting
business on a Sunday, I cannot fault the Legislature for determining that the
protection of the employees ought to prevail.
In such a context, the requirement
of minimal impairment will be met where alternative ways of dealing with the
stated objective meant to be served by the provision in question are not clearly
better than the one which has been adopted by government. It is not a question
of the Court refusing to entertain other viable options. For example, in Ford
v. Quebec,
supra, other
mechanisms for promoting the French language in the Province of Quebec were
quite obviously considered by this Court and ultimately found preferable to the
exclusivity route opted for by the legislature of Quebec. Similarly, this
branch of the Oakes proportionality test will be met where the means chosen by government
are the most reasonable ones available in light of the objective sought to be
achieved.
The respondent universities seek
to reap the benefit of the "vulnerable group" standard of review
under Edwards Books and Irwin Toy on the basis that their mandatory
retirement policy was intended to make available positions for younger
academics. They argue that younger academics are "vulnerable" in the
sense that, if senior faculty members are not required to retire, they are
deprived of an opportunity to enter careers in academe having regard to the
financial exigencies which presently plague the universities. In my view,
young academics are not the kind of "vulnerable" group contemplated
in Edwards Books and Irwin Toy. There is no reason outside the
reality of fiscal restraints why this group cannot gain access to their chosen
profession. Their exclusion does not flow, in other words, from their
condition of being young as in Irwin Toy, or from the nature of their
relationship with the universities as in Edwards Books. It flows solely from the
government's policy of fiscal restraint. Absent the pressures to which this
policy gives rise, there is nothing to suggest that younger academics would be
denied meaningful career opportunities.
I think it fair, however, that
note be taken of the efforts of some universities to actively recruit for
faculty positions those who previously have been denied fair access to teaching
opportunities. To my mind, if one of the purposes of the mandatory retirement
policy had been to provide employment opportunities to visible minorities there
would arguably be a legitimate foundation for applying the deferential standard
of review advocated in Edwards Books and Irwin Toy. I give this as an illustration only
and express no conclusive opinion on it because it is not before us. But it
serves to underline that what is at issue in these appeals cannot be
characterized as an attempt to protect or promote the interests of the disadvantaged.
Thus far in my reasons I have
approached the issue of the standard of review under s. 1 solely on the basis
that younger academics do not constitute a "vulnerable" group within
the meaning of the case law. I have concluded that since younger academics are
not "vulnerable" in this sense, this basis for relaxing the standard
of minimal impairment does not apply. This finding, however, does not end the
matter. It is evident from the extracts I have quoted from the cases that a further
factor influenced this Court's decision not to apply the full rigours of
Oakes. As my
colleague La Forest J. has noted, this Court has also expressed its approval of
the idea that the Oakes requirement of minimal impairment may be less stringently applied in circumstances
where competition exists for scarce resources and the legislature is forced to
strike a compromise. Should legislative compromises directed at assuaging the
claims of competing groups attract the same measure of judicial deference as
legislative initiatives aimed at protecting vulnerable members of society? I
do not believe that the remarks of this Court in Irwin Toy dictate such a result.
It seems to me that in a period of
economic restraint competition over scarce resources will almost always be a
factor in the government distribution of benefits. Moreover, recognition of
the constitutional rights and freedoms of some will in such circumstances
almost inevitably carry a price which must be borne by others. Accordingly, to
treat such price (in this case the alleged consequent lack of job opportunities
for young academics) as a justification for denying the constitutional rights
of the appellants would completely vitiate the purpose of entrenching rights
and freedoms.
On the other hand, there may be
circumstances in which other factors militate against interference by the
courts where the legislature has attempted a fair distribution of resources.
For example, courts should probably not intervene where competing constitutional
claims to fixed resources are at stake. The allocation of resources ought not,
in other words, to be approached in an acontextual manner. It should always be
open to the Court to examine the government's reasons for making the particular
allocation and to measure those reasons against the values enshrined in the
constitution.
In this case, as I have noted, it
is solely because of the government's policy of economic restraint that
appointment opportunities for younger academics are limited. Younger academics
are not per se a vulnerable group and no other factor presents itself which would
justify the application of a deferential standard of review. The issue comes
down plainly and simply to whether some members of the academic community,
i.e., the younger ones, have to forego job opportunities in a period of
economic restraint in order to protect the constitutionally entrenched rights
of their senior colleagues. In my opinion, this is not the sort of situation
in which the requirements of Oakes should be relaxed.
In any event, even if the fact of
fiscal restraint simpliciter were a sufficient reason to take a more relaxed
approach to the minimal impairment requirement, it is my view that the facts of
this case do not support the application of this standard of review. As my
colleague L'Heureux‑Dubé J. has noted, there does not exist a one to one
ratio between the retirement of senior faculty and the hiring of junior
faculty. I agree with La Forest J., however, that the absence of this close
relationship does not render the fact of the relationship irrelevant for s. 1
purposes. But it is my view that because the correlation between retiring and
hiring is indirect, it is not appropriate to apply the relaxed standard of
minimal impairment. This Court has stressed that the standard which
presumptively applies is that of Oakes. It is only in exceptional circumstances that
the full rigours of Oakes should be ameliorated. The onus in this case was on the respondent
universities to show that the application of a more relaxed test under s. 1 was
appropriate. In my respectful view that onus has not been met.
I should add that even if I were
to find that the less stringent application of the minimal impairment test was
appropriate in this case, I would nonetheless hold that such a standard has not
been met. In assessing reasonableness pursuant to this standard two factors
remain relevant: (1) the objective; and (2) the availability of alternative
means. In Edwards Books it was held that the Court should not interfere
with legislative wisdom if there are no alternative means of achieving the
objective which are clearly better in terms of both minimizing the
impairment of Charter rights and meeting the objective. In the context of these appeals it
has not been established that clearly better means are not available. Indeed,
the appellants have pointed to the mechanism of voluntary retirement coupled
with strong incentives to retire as not only a viable but an equally effective
way of meeting the objective. The adoption of such a mechanism has the obvious
advantage of not impairing the rights of senior academics and not completely
sacrificing the admittedly important objective of achieving faculty renewal.
Particularly when the documented success of such alternative techniques is
taken into account, I find it difficult to accept that there do not exist clearly
better alternatives within the meaning of Edwards Books.
My colleague La Forest J., in
considering whether s. 9(a)
of the Human Rights Code, 1981, S.O. 1981, c. 53, can be justified under s. 1
of the Charter , advances the proposition that mandatory retirement may be accompanied
by an attractive "package deal" and that some categories of employees
may be prepared to sacrifice their right to continue in their employment beyond
age 65 in exchange for substantial pension and other benefits. I do not doubt
that this is so. The concern under the Human Rights
Code, 1981, however,
has to be for those to whom such attractive "package deals" are not
available and more will be said of this later in dealing with the
constitutionality of s. 9(a) of the Code.
The immediate question which the
"package deal" argument raises in relation to the
Charter is whether
citizens can contract out of their equality rights under s. 15 or whether
public policy would prevent this. This Court has already held that some of the
legal rights in the Charter may be waived but it has not yet been called upon to address the
question whether equality rights can be bargained away. Having regard to the
nature of the grounds on which discrimination is prohibited in s. 15 and
the fact that the equality rights lie at the very heart of the
Charter, I have
serious reservations that they can be contracted out of. I believe that each
right or freedom under the Charter must be considered separately in order to determine whether its
central focus is personal privilege or public policy. I note with interest
that the Supreme Court of India has held that if the right is in the nature of
a prohibition addressed to government and inserted in the constitution on
grounds of public policy, it cannot be waived by an individual even although he
or she may be primarily benefited by it: see Behram Khurshid
v. State of Bombay,
A.I.R. (42) 1955 Supreme Court 123, and Basheshar Nath
v. Commissioner of Income-tax, A.I.R. (46) 1959 Supreme Court 149. The adoption of such an analysis
would allow only those rights which can be classified as personal privileges to
be waived or contracted out of.
The American courts appear to have
adopted a similar approach, holding that legal rights such a the right to
counsel (Johnson v. Zerbst, 304 U.S. 458 (1938); Bute v.
Illinois, 333 U.S.
640 (1948)); the right to trial by jury (Brookhart v.
Janis, 384 U.S. 1
(1966)); the privilege against self‑incrimination (Escobedo
v. Illinois, 378 U.S.
478 (1964)); the protection against double jeopardy (Haddad
v. U.S., 349 F.2d 511
(1965)); the benefits of the prohibition against unreasonable search and
seizure (Zap v. United States, 328 U.S. 624 (1946)) can all be waived.
I have found no authority in any
jurisdiction to support the proposition that equality rights guaranteed in the
constitution may be waived or contracted out of and I prefer to leave this
important question for decision in a case in which it is essential to the
result. It is unnecessary to make that determination in this case because, in
my view, the alternative means suggested by the appellants (i.e., voluntary
retirement) is plainly a more constitutionally desirable way of achieving the
objective of faculty renewal than any contract which forces a person to leave
their employment against their will in return for economic gain.
For the reasons given by my
colleague L'Heureux‑Dubé J., as reinforced by the above, I conclude that
the universities' provisions mandating retirement at age 65 cannot be justified
under s. 1 .
IV. What Is the Appropriate Remedy?
I turn now to the issue of the
appropriate and just remedy under s. 24(1) .
The appellants have requested:
(1) a declaration that the universities have acted in a manner which infringes
ss. 7 and 15 of the Charter ; (2) a declaration that the appellants retain their status as full‑time
faculty and librarians and that they continue to be entitled to all the rights,
privileges, benefits and remuneration of regular full‑time appointments;
(3) a permanent injunction restraining the universities from mandatorily
retiring faculty and librarians contrary to their will; (4) an interlocutory
injunction restraining the universities from mandatorily retiring full‑time
faculty and librarians upon their attaining the age of 65 and from restraining
them from taking any steps toward depriving them of such status and such
rights; and (5) damages for loss of the rights, benefits, privileges and
remuneration attaching to regular full‑time appointments.
One of the unique aspects of the
Charter as a
constitutional document is the fact that it includes several express provisions
dealing with the authority of the Court to remedy Charter violations. In particular, s. 24(1)
confers a broad discretion upon the Court to award such relief as it considers
appropriate and just in the circumstances. It is s. 24(1) which gives this
Court jurisdiction to award, if appropriate and just, the types of relief
sought by the appellants in these appeals.
Dealing first with the suitability
of a declaration that the universities have acted in a manner contrary to the
Charter, the
University of Toronto argues that this declaration should not be awarded. Counsel
contends that the practical effect of the declaration will be the striking out
of the termination provisions in the employment contracts between the
University and the appellants. The University of Toronto maintains that this
remedy is not appropriate because the term governing termination is a
fundamental term of the contract and is therefore not severable. Consequently,
either the entire employment contract must be done away with or any declaration
which recognizes the continuation of the contract should provide that the
contract is one of indefinite duration subject to termination for cause or upon
due notice.
I do not agree with counsel for
the University of Toronto that ordinary principles of contract should
necessarily dictate which remedies are appropriate and just within the meaning
of s. 24(1) of the Charter . The history of the enactment of this provision has been usefully
canvassed by Dale & Scott Gibson in their article, "Enforcement of the
Canadian Charter of Rights and Freedoms ," in Beaudoin and Ratushny (eds.), The
Canadian Charter of Rights and Freedoms (2nd ed. 1989), at pp. 784‑86. This
history demonstrates that the remedial scope of s. 24(1) was not intended to be
limited to that available at common law.
Additionally, I believe that
different considerations respecting appropriate remedial relief should prevail
when constitutional rights and freedoms as opposed to common law rights are at
stake. Remedies in contract are guided by the principle of freedom of
contract. Because bargaining is seen as a wholly consensual activity, it is
regarded as inappropriate for courts to award remedies which result,
practically speaking, in the imposition of a new and different agreement.
Where constitutional interests are implicated, on the other hand, freedom of
contract must, in my opinion, necessarily play a lesser role. I believe that
in the Charter context the courts should strive to preserve agreements while ridding
them of their unconstitutional elements. To do otherwise, I think, would
render a plaintiff's victory rather hollow since, if the entire contract is
struck down, there would be no incentive for an unhappy defendant to enter into
a new one with its erstwhile adversary.
While I am prepared to acknowledge
that the preservation of the basic contract of employment would not in all
cases be appropriate, I do not agree that ridding the contract of employment of
its discriminatory terms in this case would be tantamount to re‑writing
the agreement. The universities will retain their common law and statutory
rights to terminate the employment of faculty. Those rights will be limited
only in so far as their exercise violates the Charter. I do not believe that the
imposition of this limitation fundamentally alters the nature of these agreements
or that the declaration will turn them into contracts of permanent employment.
I hasten to add that even if this
Court were to decide that the contract should be struck down in its entirety
the respondents would be left in largely the same position as if only the
termination clause were struck down. I do not believe that, if the contract
were struck down, the respondents would be perfectly free to refuse to enter
into another agreement with the appellants. Such a refusal, in my view, would
smack of unconstitutional animus and might well provide the appellants with
another cause of action under s. 15 .
I think therefore that the
appellants are entitled to a declaration that the policies adopted by the
universities mandating retirement at age 65 violate s. 15 of the
Charter and that the
provisions in their contracts implementing this policy are of no force or
effect.
With respect to the request for
the second affirmative declaration, it is my opinion that the awarding of this
remedy is also appropriate and just in the circumstances. The declaration
sought closely resembles what are known in the labour law context as "reinstatement
orders". While reinstatement has not generally been awarded in cases of
wrongful dismissal, it is quite frequently awarded by the more specialized
labour adjudicators, such as labour arbitrators, labour boards, and human
rights tribunals. In my opinion, the Court in exercising its discretion under
s. 24(1) should follow this more generous trend of the labour relations
specialists.
The circumstances in this case
strongly suggest that reinstatement is an appropriate and just remedy. The evidence
demonstrates the paucity of academic positions currently available in the
universities. For older academics improperly ousted from their positions the
probability of locating comparable work will be slight. The fact that the
appellants are older, coupled with the fact that they have all been granted
full tenure, militates against the likelihood of their finding suitable and
similar employment. Additionally, it should be noted that the rights of the
appellants which have been infringed pertain to their dignity and sense of self‑worth
and self‑esteem as valued members of the community, values which are at
the very centre of the Charter. It would be insufficient, in my view, to make any order which does
not seek to redress the harm which flows from the violations of this interest.
Reinstatement is clearly the most effective way of righting the wrong that has
been caused to the appellants. I would therefore order full reinstatement with
all the attendant benefits.
Similarly, I believe it is
appropriate and just in these circumstances to award compensatory damages for
the loss of income and benefits sustained by the appellants through the breach
of their s. 15 rights. Compensation for losses which flow as a direct result
of the infringement of constitutional rights should generally be awarded unless
compelling reasons dictate otherwise. Such compelling reasons have not been
advanced in this case. I recognize that the enforced retirement of the
appellants was not motivated by unconstitutional animus but rather by the
severe fiscal restraints under which the universities have been forced to
operate. I also appreciate that an award of damages in addition to
reinstatement will place an additional monetary burden on these already
financially strapped institutions. Impecuniosity and good faith are not,
however, a proper basis on which to deny an award of compensatory damages.
Such damages are clearly part of the web of remedies that go to make an injured
party whole. Accordingly, I would award compensation for losses suffered, the
matter to be remitted back to the trial judge for his determination.
Finally, with respect to the
request for both an interlocutory and a permanent injunction, I do not believe
that they should be awarded in this case. In my view the appellants are
"made whole" by virtue of their having been awarded the declaration,
the order for reinstatement and the order for damages. There is no apparent
need for additional relief and I would deny it on that basis.
V.Does Section 9(a) of the
Human Rights Code, 1981 Infringe Section 15 of the Charter?
In light of the conclusion I have
reached respecting the applicability of the Charter to the universities, it is not
strictly necessary for me to address the constitutional questions relating to
the Human Rights Code, 1981. However, as my colleagues have approached the
mandatory retirement issue through the Code, it might be helpful for me to
express an opinion on this as well. The relevant provisions of the
Human Rights Code, 1981,
are as follows:
4.--(1) Every person has a right to
equal treatment with respect to employment without discrimination because of
race, ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, age, record of offences, marital status, family
status or handicap.
9. In Part I and in this Part,
(a)"age" means an age that is
eighteen years or more, except in subsection 4 (1) where "age" means
an age that is eighteen years or more and less than sixty‑five years;
23. The right under section 4 to equal
treatment with respect to employment is not infringed where,
.
. .
(b)the discrimination in employment is
for reasons of age, sex, record of offences or marital status if the age, sex,
record of offences or marital status of the applicant is a reasonable and bona
fide qualification
because of the nature of the employment;
Section 9(a) does not impose mandatory
retirement. Rather, it limits the protections offered by the Code in the
employment context to those between the ages of 18 and 65. For those who fall
within this age spectrum the Code protects them from discrimination in employment
except in so far as the "discrimination" results from the operation
of a bona fide occupational qualification. As we are dealing in these appeals with
discrimination against those over 65, I express no comment on the legislated
threshold age of 18 in s. 9(a).
The question to be addressed by this Court, therefore, is whether the
Charter is infringed
when all protection against employment discrimination based upon age is denied
those over the age of 65.
It has been argued by the
respondents as well as by some of the interveners that this limit upon the
reach of the Code does not offend the Charter because the province was under no
obligation to provide any protection against discrimination in the first
place. They say that absent such an obligation there is no room for
constitutional scrutiny of the state's failure to go far enough in legislating
human rights protection. It is not self‑evident to me that government
could not be found to be in breach of the Charter for failing to act. Whether the Constitution
is implicated when the state fails to do something is a question which has
plagued the American courts for many years. Indeed, Tribe has commented that
it is precisely when the state has not acted that the court is called upon to
make the most difficult determinations regarding the scope of the Constitution:
see Constitutional Choices, supra, at pp. 246 et seq. Since this is not an instance where
the province has completely failed to act, we are happily relieved from
deciding such a difficult question on these appeals, and I refrain from doing
so. I do, however, consider it axiomatic that once government decides to
provide protection it must do so in a non‑discriminatory manner. It
seems clear to me that in this instance the province has failed to provide even‑handed
protection. The contention that the Charter has no application in this
circumstance must therefore be emphatically rejected: see Re
Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513 (C.A.).
As noted in the factum of the
appellants, s. 9(a)
discriminates because it does not distinguish between those who are and those
who are not able to work. In this way, the section operates to perpetuate the
stereotype of older persons as unproductive, inefficient, and lacking in
competence. By denying protection to these workers the Code has the effect of
reinforcing the stereotype that older employees are no longer useful members of
the labour force and their services may therefore be freely and arbitrarily
dispensed with. Thus, s. 9(a)
of the Code infringes s. 15 of the Charter .
VI.Can Section 9(a) of the
Human Rights Code, 1981 Be Justified Under Section 1 of the
Charter?
It is submitted on behalf of the
respondents that because the government was under no obligation to enact human
rights legislation in the first place, and because the overall thrust of such
legislation is to extend rather than limit rights, the Code should be subject
to less strict scrutiny than would otherwise be the case. For the reasons I
have already expressed, it is my view that this approach is not acceptable.
Indeed, I would have thought that, if anything, human rights legislation which
is intended to preserve, protect and promote human dignity and individual self‑worth
and self‑esteem should be subjected to more rigorous scrutiny than other
types of legislation. I therefore reject the submissions advanced in support
of a less stringent standard of review of s. 9(a) of the Code.
The joint operation of s. 9(a) and s. 4 of the Code results in
mandatory retirement's being permitted without limitation or restraint. Since
I have agreed with L'Heureux‑Dubé J. that mandatory retirement in the
universities is constitutionally invalid, it follows that s. 9(a) infringes the
Charter at least to
the extent that it allows this discriminatory practice. I believe, however,
that s. 9(a)
of the Code infringes the Charter on much broader grounds.
Section 9(a) not only implicitly permits
mandatory retirement; it also implicitly operates to permit all forms of age
discrimination in the employment context for those over the age of 65. For
instance, discriminatory discipline, remuneration and job classification are
also not prohibited by the Code. Thus, even although the Attorney General has
confined his submissions respecting the Code to the value of mandatory
retirement in furthering the objectives of the legislature, it is clear that s.
9(a)
is not so limited. In my view, because this provision of the Code does not
deal exclusively with mandatory retirement and confine itself to the stated
objectives of the legislature in enacting it, the rational connection branch of
the Oakes test is not met. This point is extremely important since in choosing
the appropriate disposition of the constitutional challenge, the Court must be
guided by the extent to which the provision is inconsistent with the
Charter. In my view,
the scope of the breach is so great in this instance there is little
alternative but to strike down s. 9(a) as a whole. I would therefore
concur with my colleague L'Heureux‑Dubé J. that the section in its
entirety is unconstitutional and of no force or effect.
Even although I would be prepared
to base my decision on this aspect of these appeals on this ground alone, I
join my colleague in finding that s. 9(a) would not, in any event, pass the
second branch of the Oakes proportionality test, i.e., minimal impairment.
The Attorney General has sought to
justify the section on the ground that it preserves freedom of contract. In particular,
the Attorney General asserts that mandatory retirement comes as a "package
deal" through which older employees get a number of benefits in return for
the forfeiture of their constitutional right to work past the age of 65. In my
view, even if this Court were to hold that citizens can contract out of their
s. 15 rights (which is an important question which I do not find it necessary
to decide in these appeals) attractive "package deals" are not
universally available to all employees. For instance, with respect to the
argument concerning pensions advanced by the Attorney General, it is clear that
a great many workers in the Province of Ontario are not fortunate enough to be
members of private pension schemes. The evidence has established that there is
a very high correlation between the existence of such pension plans and
unionization. But the statistics show that the vast proportion of the
workforce is unorganized. The preservation of pension schemes has therefore
very little relevance in the case of the majority of working people in
Ontario. This problem is exacerbated when the demographics of this portion of
the workforce is examined. Immigrant and female labour and the unskilled
comprise a disproportionately high percentage of unorganized workers. This
group represents the most vulnerable employees. They are the ones who, if
forced to retire at age 65, will be hardest hit by the lack of legislative
protection.
In addition, even in relation to
the organized sector of the work force, serious problems remain. The
statistics show that women workers generally are unable to amass adequate
pension earnings during their working years because of the high incidence of
interrupted work histories due to child bearing and child rearing. Thus, the imposition
of mandatory retirement raises not only issues of age discrimination but also
may implicate other s. 15 rights as well.
In my view, when the majority of
individuals affected by a piece of legislation will suffer disproportionately
greater hardship by the infringement of their rights, it cannot be said that
the impugned legislation impairs the rights of those affected by it as little
as reasonably possible. I conclude therefore that, even if it is acceptable
for citizens to bargain away their fundamental human rights in exchange for
economic gain (and I see some real dangers to the more vulnerable numbers of
our society in this), the fact of the matter is that the majority of working
people in the province do not have access to such arrangements. I do not
believe, therefore, that the minimal impairment requirement is met.
VII. Disposition
I would allow the appeal on the
basis that the Charter applies to the respondents, that the respondents' mandatory retirement
policy violates s. 15 of the Charter and that it is not saved by s. 1 .
I would issue a declaration that
the respondents have acted in a manner contrary to the
Charter, direct the
respondents to reinstate the appellants, and award the appellants damages in an
amount to be determined by the trial judge. I would deny the claim for a
permanent and interlocutory injunction.
I would answer the constitutional
questions posed by Chief Justice Dickson as follows:
1.Does s. 9(a) of the Ontario
Human Rights Code, 1981,
S.O. 1981, c. 53, violate the rights guaranteed by s. 15(1) of the
Canadian Charter of Rights and Freedoms ?
Yes.
2.Is s. 9(a) of the Ontario
Human Rights Code, 1981,
S.O. 1981, c. 53, demonstrably justified by s. 1 of the Canadian
Charter of Rights and Freedoms as a reasonable limit on the rights
guaranteed by s. 15(1) of the Charter ?
No.
3.Does
the Canadian Charter of Rights and Freedoms apply to the
mandatory retirement provisions of the respondent universities?
Yes.
4.If
the Canadian Charter of Rights and Freedoms does apply to the
respondent universities, do the mandatory retirement provisions enacted by each
of them infringe s. 15(1) of the Charter ?
Yes.
5.If
the Canadian Charter of Rights and Freedoms does apply to the
respondent universities, are the mandatory retirement provisions enacted by
each of them demonstrably justified by s. 1 of the Charter as a
reasonable limit on the rights guaranteed by s. 15(1) of the Charter ?
No.
I
would award the appellants their costs both here and in the courts below.
//L'Heureux-Dubé
J.//
The
following are the reasons delivered by
L'HEUREUX-DUBÉ J.
(dissenting) -- I have had the opportunity of reading the opinion of my
colleague Justice La Forest and, with respect, I must dissent. While I do not
entirely disagree with his contention that universities are not part of
government for the purposes of the Canadian Charter of Rights and Freedoms , I
cannot concur with my colleague's conclusions regarding s. 9(a) of the Human
Rights Code 1981, S.O. 1981, c. 53. The following constitutional
questions were stated by Chief Justice Dickson on August 30, 1988:
1.Does s. 9(a) of the Ontario Human
Rights Code, 1981, S.O. 1981, c. 53, violate the rights guaranteed by s.
15(1) of the Canadian Charter of Rights and Freedoms ?
2.Is s. 9(a) of the Ontario Human
Rights Code, 1981, S.O. 1981, c. 53, demonstrably justified by s. 1 of
the Canadian Charter of Rights and Freedoms as a reasonable
limit on the rights guaranteed by s. 15(1) of the Charter ?
3.Does the Canadian Charter of Rights and Freedoms apply
to the mandatory retirement provisions of the respondent universities?
4.If the Canadian Charter of Rights and Freedoms does
apply to the respondent universities, do the mandatory retirement provisions
enacted by each of them infringe s. 15(1) of the Charter ?
5.If the Canadian
Charter of Rights and Freedoms does apply to the respondent
universities, are the mandatory retirement provisions enacted by each of them
demonstrably justified by s. 1 of the Charter as a
reasonable limit on the rights guarantee by s. 15(1) of the Charter ?
My
colleague addresses questions 3, 4, and 5 first and while I agree that
universities may not have all of the necessary governmental touchstones so as
to be considered public bodies, neither can they be considered as wholly
private in nature. In addition to establishing that a university's internal
decisions are subject to judicial review, Harelkin v.
University of Regina, [1979] 2 S.C.R. 561, recognized that their creation,
funding, and conduct are governed by statute.
The
fact that universities are substantially publicly funded cannot, in my view, be
easily discounted. My colleague deals with this when he says at p. 000:
It
is true that there are some cases where United States courts did hold that
significant government funding constitutes sufficient state involvement to
trigger constitutional guarantees, but these were largely confined to cases of
racial discrimination which was the prime target of the 14th Amendment.
However,
it must be recalled that in Canada, unlike the U.S., age is on par with race,
sex, religion, etc., in terms of s. 15 equality protection. Furthermore, the
private versus state university distinction, so prevalent in the U.S., is
substantially diluted in Canada.
Nevertheless,
while universities may perform certain public functions that could attract Charter review,
I am able to accept that the hiring and firing of their employees are not
properly included within this category. In Harrison v. Univ. of
B.C. (1988), 21 B.C.L.R. (2d) 145, a companion case heard
and delivered concurrently with the present appeal, the British Columbia Court
of Appeal examined the relationship between the government and the university
by looking at the legislation under which the university operates, and the
legislation to which it is subject. The University of British Columbia is a
statutory body, whose mandate is functionally identical to those of the
respondent universities for the purposes of this case. Following a careful
analysis of the relationship between government and the university, the court
concluded, at pp. 152-53, that:
. . . the fact that the university is fiscally
accountable under these statutes does not establish government control or
influence upon the core functions of the university and, in particular, upon
the policy and contracts in issue in this case.
. . . Neither the legislature nor the executive ordered,
suggested or in any way caused the university to adopt its mandatory retirement
scheme. . . .
.
. .
[Furthermore],
[i]t is the university's private contracts of employment which are alleged to conflict
with the Charter, not its delegated public functions. Without wishing to
suggest that the conduct of the university might never be subject to the
Charter, it appears clear that the conduct represented by those contracts is
not. [Emphasis added.]
I
agree. In so saying, however, I do not mean to disagree with the test proposed
by my colleague, Justice Wilson, as to the scope of government and government
action for the purposes of s. 32(1) of the Charter. But,
even under that broad test, I remain of the view that the respondent
universities do not qualify for essentially the reasons outlined by my
colleague La Forest J. I would only add that an historical analysis yields the
same result as the functional approach: universities do not pass the test.
Canadian universities have always fiercely defended their independence. This
dates back to the founding of the French and British colonies. At
Confederation there were 17 degree-granting institutions in the founding
provinces. The University of King's College, now in Halifax, was founded in
1789. One of the original colleges of higher learning was the Séminaire de
Québec, founded by Monseigneur Laval in 1663, which later spawned Laval
University in 1852. The educational tradition at Laval has remained a
confessional and self-sufficient university for hundreds of years. Still
today, while funded to a great extent out of public money, it is autonomous:
it is governed by a body of its own choice and determines its policies without
government intervention. Similarly, McGill University has a Board of Governors
which acts independently, although it needs government funding to survive. The
same can be said of most, if not all, of Canada's universities. One can even
think of the survival of universities without government funding. Government
funding cannot per se imply "government",
otherwise even small business, which receives government subsidies, could be
labelled government for the purposes of s. 32 of the Charter. I
have no doubt that this meaning was never intended nor can s. 32 be reasonably
interpreted in that fashion. The word "government", as generally
understood and in my view, never contemplated universities as they were and are
currently constituted.
Hence,
given this conclusion with respect to the third constitutional question, that
the impugned contractual arrangement between the universities and their
employees is not "governmental" in character, questions four and five
need not be answered. The complex role of universities should nevertheless be
recognized when assessing proportionality and minimum impairment considerations
under the Human Rights Code, 1981 the various bodies
it attaches to, and its lack of protection against mandatory retirement of
university professors and other employees over the age of 65. I turn then to
the discussion of constitutional questions one and two, which address these
concerns.
Section
9(a) of the Human
Rights Code, 1981
The Human
Rights Code, 1981 was enacted in 1981, and therefore pre-dates the Canadian
Charter of Rights and Freedoms which was promulgated in April,
1982. As Blair J.A., dissenting at the Court of Appeal (1987), 63 O.R. (2d) 1,
stated at p. 66:
Thus,
when the Code was passed, the legislature had untrammelled authority to deprive
persons over the age of 65 of any protection with respect to employment. The
extracts from the debates of the legislature referred to by my brothers show
that the Code was adopted with the knowledge that employees in the province
could be compulsorily retired at the age of 65. It is idle to speculate
whether the Code would have been enacted in this form after s. 15(1) of the
Charter took effect in 1985. The Code must be accepted as it is.
Furthermore,
as MacKinnon A.C.J.O. maintained regarding pre-Charter
legislation in Re Southam Inc. and The Queen (No. 1) (1983),
41 O.R. (2d) 113 (C.A.), at p. 125:
This
supreme law was enacted long after the Juvenile Delinquents
Act and there can be no presumption that the legislators intended to act
constitutionally in light of legislation that was not, at that time, a gleam in
its progenitor's eye.
The
question then becomes: Does s. 9(a) of the Human
Rights Code, 1981 infringe upon s. 15 of the Charter ?
Section 15
of the Charter
Section
9(a) of the Human Rights Code, 1981
provides that:
9. -- (1) In Part I and in this Part,
(a)"age"
means an age that is eighteen years or more, except in subsection 4 (1) where
"age" means an age that is eighteen years or more and less that
sixty-five years;
Section
4(1) stipulates that:
4. --
(1) Every person has a right to equal treatment with respect to employment
without discrimination because of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual orientation, age, record of
offences, marital status, family status or handicap.
Section
15(1) of the Charter provides 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.
It
is by now firmly established that constitutionally guaranteed rights and
freedoms should be given a broad and liberal construction. The prohibition
against discrimination set out in s. 15 is intended to ensure that those
entities subject to the Charter treat every individual "on a
footing of equality, with equal concern and equal respect, to ensure each
individual the greatest opportunity for his or her enhancement": Re
Blainey and Ontario Hockey Association (1986), 54 O.R.
(2d) 513 (C.A.), at p. 529. Section 15 prescribes that individuals be treated
on the basis of his or her own worth, abilities and merit, and not on the basis
of external or arbitrary characteristics which artificially restrict individual
opportunity.
In Andrews v.
Law Society of British Columbia, [1989] 1 S.C.R. 143, McIntyre J.
defined discrimination in the following manner at pp. 174-75:
I would
say then that discrimination may be described as a distinction, whether
intentional or not but based on grounds relating to personal characteristics of
the individual or group, which has the effect of imposing burdens, obligations,
or disadvantages on such individual or group not imposed upon others, or which
withholds or limits access to opportunities, benefits, and advantages available
to other members of society. Distinctions based on personal characteristics
attributed to an individual solely on the basis of association with a group
will rarely escape the charge of discrimination, while those based on an
individual's merits and capacities will rarely be so classed. [Emphasis
added.]
As
Judge Abella explained in Limitations on the Right to Equality Before the Law, in de
Mestral et al., eds., The Limitation of Human Rights in Comparative Constitutional
Law, at p. 226:
Equality means that no one is denied opportunities
for reasons that have nothing to do with inherent ability. It means equal
access free from arbitrary obstructions. Discrimination means that an
arbitrary barrier stands between a person's ability and his or her opportunity
to demonstrate it. If the access is genuinely available in a way that permits
everyone who so wishes the opportunity fully to develop his or her potential,
we have achieved a kind of equality. This is what section 15 of the Charter
affirms: equality defined as equal freedom from discrimination.
Discrimination
in this context means practices or attitudes that have, whether by design or
impact, the effect of limiting an individual's or a group's right to the
opportunities generally available because of attributed rather than actual
characteristics. What is impeding the full development of the potential is not
the individual's capacity but an external barrier that artificially inhibits
growth. [Emphasis added.]
Section
9(a) is discriminatory on its face. It clearly excludes
designated segments of society from the ambit of protection otherwise provided
by the Code. Furthermore, the exclusion is predicated strictly on age, a
ground specifically enumerated in s. 15(1) . As MacGuigan J.A. held in Headly v.
Public Service Commission Appeal Board (Can.) (1987), 72 N.R.
185 (F.C.A.), at p. 190:
The Constitution
itself, I believe, compels this distinction between enumerated and
non-enumerated grounds. In particular, the fact that the drafters spelled out
as grounds the principal natural and unalterable facts about human beings ...
can only mean, I believe, that non-trivial pejorative distinctions based on
such categories are intended to be justified by governments under section 1
rather than to be proved as infringements by complainants under section 15 . In
sum, some grounds of distinction are so presumptively pejorative that they are
deemed to be inherently discriminatory.
The
inclusion of specific enumerated grounds in s. 15(1) of the Charter was
intended to avoid many of the difficulties which U.S. courts have faced in
attempting to determine the extent of protection afforded by the Fourteenth
Amendment, which has no such express delineation. As Finkelstein expressed in
"Sections 1 and 15 of the Canadian Charter of Rights and Freedoms and the
Relevance of the U.S. Experience" (1985-86), 6 Advocates' Q. 188, at
p. 192:
. . .
the Fourteenth Amendment does not give the courts any guidance about what kinds
of classifications should be most closely scrutinized. The provision is
textually absolute. This may be contrasted with s. 15(1) of the Charter which,
while prohibiting all discrimination, at least sets out a list of categories
for greater particularity. Canadian courts are put on notice that they
should make a careful inquiry into the reasons and purpose behind any law which
makes differentiations based upon any of the listed classifications.
[Emphasis added.]
Like
my colleague La Forest J., and for the reasons he expresses, I conclude that s.
9(a) overtly denies the equal protection and equal benefit
of the Code, and thereby discriminates against individuals solely on the basis
of age, a ground specifically enumerated in s. 15 of the Charter .
Section 9(a) constitutes an arbitrary and artificial obstacle which
prevents persons aged 65 and over from complaining where their right to equal
treatment with respect to employment has been infringed on the ground of age.
Hence the provision is inconsistent with the fundamental values enshrined
within s. 15(1) : the protection and enhancement of human dignity, the promotion
of equal opportunity, and the development of human potential based upon
individual ability. As the Ontario Court of Appeal stated in Blainey, at p.
530:
Indeed,
it is somewhat of an anomaly to find in a statute designed to prohibit
discrimination a provision which specifically permits it.
Section 1
of the Charter
Given
my conclusion regarding s. 15(1) , I now turn to the question of whether the
equality violation can be justified under s. 1 . As articulated by this Court
in R. v. Oakes, [1986] 1 S.C.R. 103, and R. v. Edwards Books
and Art Ltd., [1986] 2 S.C.R. 713, the government must first
discharge its burden of proving that the objective served by the challenged
measure relates to concerns which are of pressing and substantial importance,
sufficient to warrant overriding a constitutionally protected right. Second,
if it can establish such an objective, it must show that the means chosen are
proportional or appropriate. This latter criterion can only be fulfilled if
three elements are satisfied:
(a)the limiting measure must be carefully designed, or
rationally connected, to the objective, and cannot be arbitrary, unfair or
based on irrational considerations;
(b)the right in question must not be impaired by the
limiting measure any more than is reasonable having regard to the context and
surrounding circumstances; and
(c)the effects of the limiting measure must not so
severely trench on individual or group rights that the legislative objective,
albeit important, is nevertheless outweighed by the abridgement of rights.
1. The
Objective
I
agree with my colleague La Forest J.'s conclusion that the Ontario Court of
Appeal was too restrictive when evaluating the constitutionality of s. 9(a) of the Human
Rights Code, 1981 exclusively in the university context. However, this
setting does provide a welcome background in which the ramifications of the
provision can be appraised. In his "default" Charter
analysis, i.e., assuming that it does indeed apply to universities, La Forest
J.'s underlying theme seems to be that mandatory retirement is the quid pro
quo for a tenure system with minimal peer evaluation and necessary to
ensure that younger aspirants are provided with a meaningful opportunity to
pursue their livelihood. My colleague also regards the existing pension scheme
as a worthy objective, and one supportable only through the institution of
mandatory retirement.
In
my view, there is no convincing evidence that the mandatory retirement scheme
and the tenure system are as intimately related as my colleague suggests. Peer
evaluation does not, and should not, pose a threat to academic freedom, and
such assessments are quite common even in those universities which have chosen
to continue imposing mandatory retirement. Merit rather than age should be the
governing factor. The value and status of tenure may actually be enhanced
through the sustained endorsement of one's colleagues. In his reasons, La
Forest J. indicates at p. 000 that academic freedom will be undermined through
abolition of the existing mandatory retirement scheme:
Mandatory
retirement is thus intimately tied to the tenure system. It is true that many
universities and colleges in the United States do not have a mandatory
retirement but have maintained a tenure system. That does not affect the
rationality of the policies, however, because mandatory retirement clearly
supports the tenure system. Besides, such an approach, as the Court of Appeal
observed, would demand an alternative means of dismissal, likely requiring
competency hearings and dismissal for cause. Such an approach would be
difficult and costly and constitute a demeaning affront to individual dignity.
This
raises several points with which I beg to differ. The value of tenure is
threatened by incompetence, not by the aging process. Such incompetence can
manifest itself at any stage, and the presumption of academic incapacity at age
65 is not well founded. If the abolition of mandatory retirement results in a
more stringent meritocracy, tenure is not depreciated. Its significance may
actually be enhanced, as tenure status will reflect continued academic
excellence rather than a "certificate", irrevocable once granted.
The
fear that aging professors will rest on their laurels and wallow in a perpetual
and interminable quagmire of unproductivity and stagnation may be a real one.
Yet it applies with equal force to younger tenured faculty as well. Peer
review, so long as it is predicated on the premise of unbiased good faith,
provides a healthy injection of critical evaluation and will serve to promote
the scholastic standards indispensable to a flourishing university.
I
find it difficult to accept the proposition that abolition of mandatory
retirement of university faculty and librarians would threaten tenure as a
result of increased performance evaluations. In fact, performance evaluations
of faculty are an integral and ongoing part of university life, and it has
never been suggested that this process threatens tenure, collegiality or
academic freedom. Performance evaluations take place at the hiring stage, as
well as in the process of determining whether to grant tenure, whether to
promote tenured faculty, which tenured faculty to select for administrative
posts and research grants, and whether and in what amount merit increases are
to be awarded to tenured faculty.
Those
jurisdictions which have eliminated mandatory retirement of university faculty
or librarians have not experienced any increase in so-called destructive
performance evaluations, or any infringement of academic freedom or
collegiality. The tenure system remains firmly in place. In the United
States, for example, not a single university has abolished tenure,
notwithstanding that 15 per cent of universities have no mandatory retirement
age for tenured faculty. The 1986 amendments to the Age Discrimination in
Employment Act, which now preclude any university from forcibly
retiring a tenured faculty member until age 70, provide that the age cap will
be removed altogether when the transitional provisions expire in 1993: see 29
U.S.C. {SS} 631(d).
Moreover,
any "alternative means of dismissal" necessitated by the abolition of
mandatory retirement will be rather inconsequential. The number of those
choosing to maintain an active and productive academic life after age 65 is
relatively small. Furthermore, tenure will continue to exist, and tenured
faculty will enjoy a powerful presumption of job retention. However, this
presumption should not be irrebuttable, neither at 45 nor at 65. With respect
to La Forest J.'s description (at p. 000) of a "closed system with limited
resources" it is neither clear that we are dealing with a fixed pie nor
that allowing aging professors to enjoy their earned slices will result in
younger prospects' going hungry.
To
conclude that excellence in our educational institutions can only be maintained
through the replacement of aging faculty with younger professors is overbroad.
Professorial calibre should be gauged on a meritocratic rather than on a
chronological basis. Employment opportunities for the young cannot be
generated by using the elderly as exclusive sacrificial victims. The Charter
prohibits this type of isolation of a specific target group explicitly
protected by an enumerated constitutional provision.
Moreover,
this scheme cannot be supported by either scholarly justification or necessity.
There is no indication that the aged are less competent. The empirical track
record of esteemed and venerable universities across North America which are
progressively abolishing mandatory retirement reveals that the retention of
such a system is not necessary in order to remain effective and efficient.
This trend reflects what can be considered "reasonable" when
assessing the rationale of mandatory retirement and its proportionality to any
alleged objectives.
I do
not disagree with my colleague La Forest J.'s assertion, at p. 000, that
"[W]hile the aging process varies from person to person, the courts below
found on the evidence that on average there is a decline in intellectual
ability from the age of 60 onwards". But this simple assertion does not,
in my view, invariably lead to the conclusion that the cut-off age for any
occupation or profession must be 65. This is precisely what age discrimination
is all about. What then about federally appointed judges, whose retirement age
is set at 75? What of self-employed business people, or politicians and heads
of state, some of whom (including Sir Winston Churchill) serve their country
well beyond the age of 65? Declining intellectual ability is a coat of many
colours -- what abilities, and for which tasks? The discrepancies between
physical and intellectual abilities amongst different age groups may be more
than compensated for by increased experience, wisdom, and skills acquired over
time.
Mandatory
retirement would have to be justified on some basis other than mental decay.
Agility and nimbleness of mind are highly subjective -- they vary substantially
from person to person. While senility is far more common among the very old,
lucidity is the norm. Furthermore, people are generally sensitive to their own
degenerating faculties, in academe as well as in sport. Many an athlete is
"washed up" by the age of 35, and can no longer perform at the same
level. However, many can remain competitive well into their forties, while
some younger athletes continue to strive for, but never quite attain,
professional status.
The
difficulty and cost of the evaluation process cannot defeat the merits of such
a scheme, especially given that some sort of assessment procedure is already in
place. Empirically, the financial burden argument is specious. Some pension
programs now offer retiring professors up to 90 per cent of their average
annual salary of their last five working years. Economically it makes sense to
allow them to contribute fully at a marginal "cost" to the
universities of only 10 per cent of their salaries.
La
Forest J. reminds us of this Court's traditional deference to legislative
judgment. At page 000 my colleague states:
. . .
that the operative question in these cases is whether the government had a
reasonable basis, on the evidence tendered, for concluding that the legislation
interferes as little as possible with a guaranteed right, given the
government's pressing and substantial objectives. [Emphasis added.]
The
evidence refutes the emphasized conclusion. In the very next paragraph, my
colleague himself concedes at p. 000 "that there is an increasing trend
towards earlier retirement", and at p. 000 that "[t]he estimates of
workers who would voluntarily elect to work beyond the age of 65 vary from 0.1
to 0.4 per cent of the labour force". These figures hardly pose a
"pressing and substantial" quandary that the government must contend
with. According to my colleague, at p. 000, mandatory retirement:
. . . is
an arrangement negotiated in the private sector, and it can only be brought
into the ambit of the Charter tangentially because the Legislature
has attempted to protect, not attack, a Charter value.
Any
protection offered here is strictly illusory. The excluded ages are most in
need of sanctuary from arbitrary employment decisions.
The
threat that an evaluation scheme will "constitute a demeaning affront to
individual dignity" (at p. 000) is difficult to accept. Are objective
standards of job performance a demeaning affront to individual dignity?
Certainly not when measured against the prospect of getting
"turfed-out" automatically at a prescribed age, and witnessing your
younger ex-colleagues persevere in condoned relative incompetence on the strength
of a "dignifying" tenure system. The elderly are especially
susceptible to feelings of uselessness and obsolescence. If "[i]n a
work-oriented society, work is inextricably tied to the individual's
self-identity and self-worth" (at p. 000), does this mean that upon
reaching 65 a person's interest in self-identity and stake in self-worth
disappear? That is precisely when these values become most crucial, and when
individuals become particularly vulnerable to perceived diminutions in their
ability to contribute to society.
Forced
removal from the work force strictly on account of age can be extraordinarily
debilitating for those entering their senior years. Aging is not a reversible
process. Those yearning to carry on with their livelihood, career, and
ambitions cannot have this aspiration stultified or decimated by some arbitrary
scheme. The fact that we all experience the aging process is not a safeguard
which prevents discriminatory acts by the majority. The prospect that current
decision-makers may some day be 65 and older is no guarantee against their
acting in a discriminatory fashion against older individuals today, or against
their acting on the basis of negative stereotypes.
Moreover,
as stated in McDougal, Lasswell and Chen, "The Protection of the Aged from
Discrimination", in Human Rights and World Public Order (1980),
pp. 781-82:
The traumatic impact of the sudden loss of
accustomed roles, precipitated by involuntary retirement, is immense and
profound. As Rosow has sharply summarized:
[T]he loss of roles excludes the aged from significant
social participation and devalues them. It deprives them
of vital functions that underlie their sense of worth, their self-conceptions
and self-esteem. In a word, they are depreciated and become marginal,
alienated from the larger society. Whatever their ability, they are judged
invidiously, as if they have little of value to contribute to the world's work
and affairs.
.
. .
The
shock of compulsory retirement may be so overwhelming as to generate a lasting
state of anxiety and even depression. The ordinary process of aging aside, the
psychosomatic condition of the elderly may be brutally and unduly impaired and
exacerbated by the shock of involuntary retirement. Formerly useful skills are
consigned to the scrap heap overnight. [Emphasis in original.]
In
my view, such undesirable repercussions seriously undermine the alleged
objective in the instant case. The forced attrition of elderly participants in
the work force should not lightly be considered an objective "sufficient
to warrant overriding a constitutionally protected right". However, on
the assumption that a legitimate objective does in fact exist, I will now
assess whether the means chosen satisfy the second part of the "s. 1
test".
2. The
Means
In
its Report entitled Equality For All, at p. 21, the
1985 Federal Parliamentary Committee on Equality Rights described mandatory
retirement as follows:
In the
view of the Committee, mandatory retirement is a classic example of the denial
of equality on improper grounds. It involves the arbitrary treatment of
individuals simply because they are members of an identifiable group.
Mandatory retirement does not allow for consideration of individual
characteristics, even though those caught by the rule are likely to display a
wide variety of the capabilities relevant to employment. It is an easy way of
being selective that is based, in whole or in part, on stereotypical assumptions
about the performance of older workers. In the result, it denies
individuals equal opportunity to realize the economic benefits, dignity and
self-satisfaction that come from being part of the workforce. [Emphasis
added.]
The Human
Rights Code, 1981 limits the protection against discrimination on the
basis of age to those between the ages of 18 and 65. Persons over the age of
65 are excluded from protection solely because of their age; not for any reason
related to bona fide qualifications, or inability to
perform a required function. Thus, regardless of the circumstances, people
over 65 who encounter discrimination merely because of their age are denied
access to protective and remedial human rights legislation.
In
his detailed historical investigation, La Forest J. notes at p. 000 that
"Bismark is generally credited with establishing 65 as the age for
retirement". However, Bismark governed quite some time ago. Advances in
medical science and the living conditions achieved since have significantly
extended life expectancy and have improved the quality of life as well. On
average, today's 65-year-old is a healthier, more invigorated specimen than his
or her 45-year-old counterpart of the industrial revolution. Furthermore, the
physical exertion component of many vocations has been diminished through the
introduction of computers and employment differentiation. With all sorts of
developing specialties people can mature concordantly with their evolving job
descriptions.
The
fact that "mandatory retirement has become part of the very fabric of the
organization of the labour market in this country" (at p. 000) is
inapposite to the present analysis in so far as it ignores the promulgation of
both the Canadian Charter of Rights and Freedoms and the Human
Rights Code, 1981. Furthermore, I strongly disagree with the assertion,
at p. 000, that "[t]hose over 65 are by and large not as seriously exposed
to the adverse results of unemployment as those under that age". While
this may be true for an "elite" sub-group that can afford to retire,
it certainly does not apply to the majority of retirees, especially during
periods of high inflation. The adverse effects of mandatory retirement are
most painfully felt by the poor. The elderly often face staggering financial
difficulties; indexed pensions have not kept pace with inflation, and a dollar
saved at an earlier time in anticipation of retirement buys only pennies worth
of goods today. This is predominantly true when applied to non-unionized
employees, who presently constitute 50 per cent of the Canadian work force.
The
median income of those over 65 is less than half the median income of average
Canadians, and there is a wide disparity among these individuals many of whom
have no, or very small, private pension incomes. Moreover, women are
particularly affected by this deficiency. Upon attaining the age of 65, women
often have either lower or no pension income since a greater proportion of them
are in jobs where they are less likely to be offered pension plan coverage.
Women are more susceptible to interrupted work histories, partly as a result of
childcare responsibilities, thereby losing potential pension coverage.
Furthermore, women are prone to have lower lifetime earnings upon which pension
benefits are based.
Section
9(a) denies protection against employment discrimination to
those over 65 whether or not there is an adequate, or indeed any, pension plan
at the particular work place, whether or not the integrity of the existing
pension plan would be affected if employees did not retire at age 65, and
whether or not the employer intends to or actually does replace retired
employees with younger workers. In short, s. 9(a)
permits discrimination against older workers even where retired employees are
not replaced by younger employees, and where the pension plan is not affected
in any way. As was stated in Edwards Books, supra, at p.
770:
The
requirement of rational connection calls for an assessment of how well the
legislative garment has been tailored to suit its purpose.
When
assessing the material repercussions of the provision at issue the fabric comes
apart at the seams. Furthermore, it is not the function of the courts to mend
constitutional infirmities by patching those areas of the legislation which
violate the Charter with a more restrictive meaning.
The
internal age restrictions imposed on the application of the Human
Rights Code, 1981 emasculate its very purpose. The
"traditional" retirement age of 65 was chosen at a time wholly
different from today; medical science and job differentiation have changed the
world in which we live and work. The Code is designed as remedial legislation
-- it is paradoxical to exclude from its ambit a group desperately in need of its
protection.
The
argument of legislative necessity loses much of its force when assessed in
light of the ongoing adoption of voluntary retirement across the continent, and
the federal government's abolition of mandatory retirement for its employees. Moreover,
three Canadian provinces, Quebec, New Brunswick, and Manitoba, have eliminated
mandatory retirement, and have not suffered any of the adverse effects
allegedly associated with the eradication of such schemes. Universities have
not been required to abandon the tenure system, the existing pension programs
have remained intact, and there is no evidence of consequential rising
unemployment among younger aspirants seeking work.
In
response to the proportionality argument my colleague expresses the view, at p.
000, that "there is nothing irrational in a system that permits those in
the private sector to determine for themselves the age of retirement suitable
to a particular area of activity." But the Code provides no protection
for the elderly. Whatever impositions are placed on them cannot be redressed
by review under the Code because that group is specifically excluded from its
application. Hence, that justification becomes circular, and the scheme he
purports to rationalize actually encourages mandatory retirement. It allows
for the manipulation of the entitlements of a group whose rights and recourses
have been neutered by the legislation! An attempt to defend this procedure on
the basis of minimal impairment is especially disturbing.
On
the whole there seems to be no reasonable justification for a scheme which sets
65 as an age for compulsory retirement. It is discriminatory, in the most
prejudicial sense of the word, to make generalizations about diminished
competence or productivity purely on the basis of the attainment of a certain
age. Since the number of people who (a) attain that age, and (b) wish to
continue working after that age and are physically and intellectually capable
of doing so, is not overwhelming, it is difficult to conclude that the labour
force will be adversely affected.
The
definitions provided in the Human Rights Code, 1981 must be assessed
under s. 1 in a somewhat broader manner. While having an obvious effect on
mandatory retirement, these definitions also fail to protect those over 65 from
far more pervasive discrimination. For example, an employer who decided to pay
all workers over the age of 65 less than those under 65 could not be challenged
under human rights legislation because that legislation does not recognize
discrimination against persons over 65 as being discrimination on the basis of
age.
I
agree with the proposition that human rights legislation has a purpose
consistent with that of the Charter itself, the promotion of human
rights. It has been argued that since such legislation operates in an area
which otherwise would remain unaffected by the Charter
(private transactions), then the least rigid and most flexible standard of
review under the Charter should be applied. I admit that
there is in fact a delicate balance to be achieved. The Charter should
serve to prevent overt discrimination in human rights legislation, but it
should not be applied in such a manner as to discourage the use of such legislation
by the provinces, or to interfere with a legitimate provincial legislative
decision not to provide rights in a given area.
However,
there are limits within which this approach should apply. For example, in my
view, if the provinces chose to enact human rights legislation which only
prohibited discrimination on the basis of sex, and not age, this legislation
could not be held to violate the Charter. However where,
as in the present case, the legislation prohibits discrimination on the basis
of age, and then defines "age" in a manner that denies this
protection to a significant segment of the population, then the Charter should
apply. Thus, if the province chooses to grant a right, it must grant that
right in conformity with the Charter.
As
the impugned definition denies protection from age discrimination to a segment
of the population simply on the basis of age, I do not believe it can be
justified under s. 1 . I espouse here the reasons of Blair J.A., dissenting at
the Court of Appeal, at p. 77:
Section
9(a), in my opinion, does not satisfy the third requirement
of the Oakes test that the measure adopted "should impair `as
little as possible' the right or freedom in question".... Section 9(a) does
not merely limit or restrict the appellants' Charter right under s. 15(1) . It
eliminates it because, under the Code, no protection against age discrimination
in employment is provided after the age of 65. The absence of any
qualification to the complete denial of the Charter right ...
results in the failure of s. 9(a) to meet the Oakes test.
[Emphasis added.]
Consequently,
s. 9(a) of the Human Rights Code, 1981
constitutes unreasonable and unfair discrimination against persons over age 65
for the following reasons:
(a)the failure to afford individuals aged 65 or over the
protection of the Code against employment discrimination is unwarranted in the
absence of any evidence that such individuals cannot perform in employment;
(b)section 9(a) of the
Code prohibits employees from complaining about any form of employment
discrimination, including hiring, demotion, transfer or salary reduction, even
though its stated objective was solely to permit mandatory retirement;
(c)with respect to mandatory retirement itself, its
negative effects significantly outweigh any alleged benefit associated with its
continuation. Mandatory retirement arbitrarily removes an individual from his
or her active worklife, and source of revenue, regardless of his or her actual
mental or physical capacity, financial wherewithal, years of employment in the
work force, or individual preferences. The continued opportunity to work
provides many individuals with a sense of worth and achievement, as well as a
source of social status, prestige, and meaningful social contact; and
(d)on the evidence, there is no basis for denying to a
segment of the population, i.e., those aged 65 and over, the protection of
legislation which is of fundamental importance in the area of employment
discrimination, particularly since the objectives allegedly served by s. 9(a) of the
Code could be attained through alternative measures, which do not have such
severe effects on individuals.
The Charter breach
resulting from the application of the Code is not justified under s. 1 . There
is no evidence that the government is confronted with an urgent or compelling
dilemma with respect to a profusion of elderly persons seeking to linger on
beyond their prescribed term of productivity. Whatever legislative needs may
exist to anchor an age discrimination procedure regarding access to the Code,
they are not proportional to the blanket exclusion of all persons over the age
of 65. The exclusion of all those over age 65 is a substantial impairment of
the constitutional right to equal treatment of all ages, specifically
enumerated in s. 15 of the Charter .
Remedy
Even
if mandatory retirement programs were justified for all employees over
the age of 65, the repercussions of s. 9(a) extend
far beyond such a scheme. While the original motivation may have been to allow
employers and employees to set their own retirement ages, the effect is to deny
a wide range of benefits to people over 65. They will receive no protection
whatsoever from age discrimination. The protection they may require is in no
way limited to retirement. After the age of 65, employees would be prohibited
from making claims relating to age discrimination in the area of wages,
employment conditions, and other employment related benefits. Employees under
the age of 65 will have all of these protections merely as a function of their
age.
However,
even if we confined the application of s. 9(a) to
mandatory retirement, the provision does not differentiate between industries
or occupations in establishing age 65 as an appropriate age for retirement.
While there may be certain jobs for which mandatory retirement can be
justified, on the ground that it is a reasonable and bona fide
occupation qualification, s. 9(a) permits mandatory
retirement in many industries where age is clearly not a bona fide
occupational qualification.
Hence,
while limiting s. 9(a) to mandatory retirement would certainly remove some of
its objectionable elements, the indiscriminate application of mandatory
retirement would remain. In my view, a case-by-case application, secured by
proper occupational considerations, would be the preferable alternative. The Human
Rights Code, 1981 already allows for this and hence s. 9(a) can be
struck in its entirety. Any legitimate justification for distinguishing among
employees on the basis of age can be vindicated through other provisions of the
Code.
Section
10(a) of the Code provides:
10. A right of a person
under Part I is infringed where a requirement, qualification or consideration
is imposed that is not discrimination on a prohibited ground but that would
result in the exclusion, qualification or preference of a group of persons who
are identified by a prohibited ground of discrimination and of whom the person
is a member, except where,
(a)the
requirement, qualification or consideration is a reasonable and bona fide one in
the circumstances; ...
Section
23(b) provides that:
23. The right under section 4 to equal
treatment with respect to employment is not infringed where,
.
. .
(b)the
discrimination in employment is for reasons of age, sex, record of offences or
marital status if the age, sex, record of offences or marital status of the
applicant is a reasonable and bona fide qualification
because of the nature of the employment;
These
provisions can contain certain mandatory retirement schemes when justified by
the particular job description at issue. In Ontario Human Rights
Commission v. Etobicoke, [1982] 1 S.C.R. 202, this Court considered a policy
mandating retirement at age 60 for firefighters. McIntyre J., for the Court,
articulated the appropriate procedure for dealing with the bona fide
occupational qualification ("BFOQ") provisions of the Code, at p.
208:
Once
a complainant has established before a board of inquiry a prima
facie case of discrimination, in this case proof of a
mandatory retirement at age sixty as a condition of employment, he is entitled
to relief in the absence of justification by the employer.
On the
issue of what constitutes a bona fide occupational qualification, McIntyre
J. stated, at p. 208, that:
To be a bona fide
occupational qualification and requirement a limitation, such as a mandatory
retirement at a fixed age, must be imposed honestly, in good faith, and in the
sincerely held belief that such limitation is imposed in the interests of the
adequate performance of the work involved with all reasonable dispatch, safety
and economy, and not for ulterior or extraneous reasons aimed at objectives
which could defeat the purpose of the Code. [Emphasis added.]
At page
209, McIntyre J. distinguished mandatory retirement for purely economic reasons
from mandatory retirement motivated by public safety concerns:
In cases
where concern for the employee's capacity is largely economic, that is where
the employer's concern is one of productivity, and the circumstances of
employment require no special skills that may diminish significantly with
aging, or involve any unusual dangers to employees or the public that may be
compounded by aging, it may be difficult, if not impossible, to demonstrate
that a mandatory retirement at a fixed age, without regard to individual
capacity, may be validly imposed under the Code. In such employment, as
capacity fails, and as such failure becomes evident, individuals may be
discharged or retired for cause. [Emphasis added.]
In Alberta
(Human Rights Commission) v. Central Alberta Dairy Pool, [1990]
2 S.C.R. 489, Wilson J. sets out McIntyre J.'s tests in Etobicoke, as
well as their application to Ontario Human Rights Commission and O'Malley v.
Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, and Bhinder v. Canadian
National Railway Co., [1985] 2 S.C.R. 561, and concluded, at p. 514 that:
Where
a rule discriminates on its face on a prohibited ground of discrimination, it
follows that it must rely for its justification on the validity of its
application to all members of the group affected by it. There can be no duty
to accommodate individual members of that group within the justificatory test
because, as McIntyre J. pointed out, that would undermine the rationale of the
defence. Either it is valid to make a rule that generalizes about members of a
group or it is not. By their very nature rules that discriminate directly
impose a burden on all persons who fall within them. If they can be justified
at all, they must be justified in their general application. That is why the
rule must be struck down if the employer fails to establish a BFOQ.
Furthermore,
as Sopinka J. wrote for the Court in relation to ascertaining appropriate bona fide
occupational requirements in Saskatchewan (Human Rights Commission) v. Saskatoon
(City), [1989] 2 S.C.R. 1297, at pp. 1313-14:
While it
is not an absolute requirement that employees be individually tested, the
employer may not satisfy the burden of proof of establishing the reasonableness
of the requirement if he fails to deal satisfactorily with the question as to
why it was not possible to deal with employees on an individual basis by, inter alia,
individual testing. If there is a practical alternative to the adoption of
a discriminatory rule, this may lead to a determination that the employer did
not act reasonably in not adopting it. [Emphasis added.]
It
should be noted here that the effect of finding s. 9(a) of the
Code to be unconstitutional does not abolish mandatory retirement. Rather, it
simply allows individuals aged 65 or over to complain to the Human Rights
Commission that their mandatory retirement constituted age discrimination in
employment, contrary to s. 4 of the Code. It would still be open to an
employer to establish before the Commission, as it can presently attempt in the
case of mandatory retirement under age 65, that age is a "reasonable and bona fide
qualification" under s. 23(1)(b) of the Code.
The
structure of the Human Rights Code, 1981 easily permits the
striking down of the definition of "age" without removing the
protection against discrimination on the basis of age. As the British Columbia
Court of Appeal stated in Harrison, at p. 164:
In
our opinion, when that test [of severance] is applied to the provisions of the
Human Rights Act, the definition of age is not so inextricably bound up with
the balance of the Act that the balance cannot independently survive.
The
result would be similar to that achieved in Blainey, where
the exception to the general principle prohibiting sex discrimination was
removed, leaving the principle to stand unrestricted.
Conclusion
Labelling
universities "governmental bodies" is unnecessary, yet the indicia of
public functions elevate these institutions to a higher standard under the
Code. Furthermore, the Code must be read purposively. Excluding those
over the age of 65 virtually immunizes all mandatory retirement schemes from
the scope of Human Rights review. This should not be the purpose of remedial
legislation. Other provinces, notably Quebec, New Brunswick, and Manitoba,
have embraced voluntary retirement, and have endured none of the apprehended
repercussions. The Code provides the apparatus through which the benefits of
the Charter can flow to persons in the appellants' position.
Excluding such persons from the Code's application would leave them without
recourse against flagrant inequality. As it reads at present, Ontario's
anti-discrimination Act is blatantly discriminatory.
Therefore,
I would allow the appeal and answer the consitutional questions presented as
follows:
1.Does
s. 9(a) of the Ontario Human Rights Code,
1981, S.O. 1981, c. 53, violate the rights guaranteed by s.
15(1) of the Canadian Charter of Rights and Freedoms ?
Yes.
2.Is s.
9(a) of the Ontario Human Rights Code,
1981, S.O. 1981, c. 53, demonstrably justified by s. 1 of
the Canadian Charter of Rights and Freedoms as a reasonable
limit on the rights guaranteed by s. 15(1) of the Charter ?
No.
3.Does
the Canadian Charter of Rights and Freedoms apply to the
mandatory retirement provisions of the respondent universities?
No.
4.If the Canadian
Charter of Rights and Freedoms does apply to the respondent
universities, do the mandatory retirement provisions enacted by each of them
infringe s. 15(1) of the Charter ?
Need
not be answered.
5.If the Canadian
Charter of Rights and Freedoms does apply to the respondent
universities, are the mandatory retirement provisions enacted by each of them
demonstrably justified by s. 1 of the Charter as a
reasonable limit on the rights guarantee by s. 15(1) of the Charter ?
Need
not be answered.
//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, Wilson and L'Heureux-Dubé. They have arrived at different conclusions
in resolving the difficult legal and social problem which is the main subject
of these appeals. The issue of mandatory retirement is a most important one
for our country and will affect the lives of millions of Canadians. It is an
issue on which Canadians of good will are sharply divided. This division is
reflected in the opinions of my colleagues. They also reflect the powerful
arguments that can be marshalled on both sides of the question. In these
circumstances, I feel obliged to state my reasons, albeit briefly, as to why I
share the opinion of my colleague La Forest J. that mandatory retirement is not
unconstitutional.
I
agree with the reasons of La Forest J. for concluding that a university is not
a government entity for the purpose of attracting the provisions of the Canadian
Charter of Rights and Freedoms . I would not go so far as to say
that none of the activities of a university are governmental in nature. For
the reasons given by my colleague, I am of the opinion that the core functions
of a university are non-governmental and therefore not directly subject to the Charter. This
applies a fortiori to the university's relations with its staff which in
the case of those in these appeals are on a consensual basis.
With
regard to whether the policies and practices of the universities relating to
mandatory retirement are law, I would prefer not to express a final opinion on
that question in this appeal. I find it difficult to classify the activities
of an entity on the basis of an assumption that it is something which it is
not. Not all actions of a governmental body will qualify as law. Indeed not
all activities of an entity that is generally carrying on the functions of
government will be governmental in nature. In attempting to classify the
conduct of an entity in a given case it is important to know, first, that it is
a governmental body and, second, that it is acting in that capacity in respect
of the conduct sought to be subjected to Charter
scrutiny. After all, we must bear in mind that the role of the Charter is to
protect the individual against the coercive power of the state. Or, as one
counsel put it, "to enable the citizen to fight City Hall". This
suggests that there must be an element of coercion involved before the
emanations of an institution can be classified as law. Many of the factors
whose absence led La Forest J. to conclude that a university is not a
government entity are highly relevant to determine whether its policies and
practices are law. In order to make this determination I would have to assume
that these factors were present. Such a determination would have a wholly
artificial foundation and would simply distort the law. In these
circumstances, I would prefer not to decide this question and in order to reach
the key issue in this appeal I would assume not only that a university is a
governmental entity, as La Forest J. does, but as well that its
policies and practices are law.
A
key issue in this appeal is whether the policies and practices of the
University of Guelph in providing for mandatory retirement of its teaching
staff at age 65 contravene s. 15 of the Charter . A
favourable decision to the appellants on this issue would result in mandatory
retirement's being proscribed in respect of all government employees. In
addition, an equally important issue is whether human rights legislation, in
failing to protect persons against discrimination on the basis of age beyond
the age of 65, offends s. 15 of the Charter . A decision
favourable to the appellants on this issue would extend the prohibition of
mandatory retirement to the private sector.
In
respect of these two key issues, my colleague, Wilson J., with whom
L'Heureux-Dubé J. agrees, has determined that both the policies and
practices and the provisions of the Human Rights Code, 1981, S.O.
1981, c. 53, violate s. 15 and are not saved under s. 1 . On the other
hand, my colleague La Forest J., holds that both are justified under
s. 1 and therefore mandatory retirement does not contravene the Charter. With
all due respect to the opinions to the contrary, I find that I agree with the
conclusion reached by La Forest J. and with his reasons. In addition
to a preference for his reasoning, I am of the opinion that his solution to the
problem is more in accord with the democratic principles which the Charter is
intended to uphold.
The
current state of affairs in the country, absent a ruling from this court that
mandatory retirement is constitutionally impermissible, is the following. The
federal government and several provinces have legislated against it. Others
have declined to do so. These decisions have been made by means of the
customary democratic process and no doubt this process will continue unless
arrested by a decision of this Court. Furthermore, employers and employees
through the collective bargaining process can determine for themselves whether
there should be a mandatory retirement age and what it should be. They have
done so in the past, and the position taken by organized labour on this issue
indicates that they wish this process to continue. A ruling that mandatory
retirement is constitutionally invalid would impose on the whole country a
regime not forged through the democratic process but by the heavy hand of the
law. Ironically, the Charter would be used to restrict the freedom
of many in order to promote the interests of the few. While some limitation on
the rights of others is inherent in recognizing the rights and freedoms of
individuals the nature and extent of the limitation, in this case, would be
quite unwarranted. I would therefore dispose of the appeal 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 my colleague Justice Wilson with regard to
the tests she suggests for determining whether entities that are not
self-evidently part of the legislative, executive or administrative branches of
government are nonetheless a part of the government to which the Canadian
Charter of Rights and Freedoms applies.
As
well, I am in agreement with her findings that universities form part of
"government" for purposes of s. 32 of the Charter and, as
a result, that their policies of mandatory retirement are subject to scrutiny
under s. 15 and that those policies discriminate on the basis of age and thus
contravene s. 15 .
However,
I am in agreement with the conclusion reached by my colleague Justice La Forest
that the mandatory retirement policies of the universities come within the
scope of s. 1 and thus survive Charter scrutiny.
Further,
I am in agreement with La Forest J. that, although s. 9(a) of the Human
Rights Code, 1981, S.O. 1981, c. 53, contravenes s. 15(1) of the Charter by
discriminating on the basis of age, it is a reasonable limit prescribed by law
within the purview of s. 1 of the Charter .
My
colleague Wilson J. indicated that, although it was not necessary to her
decision, she was doubtful whether an individual could contract out of the
rights to equality provided by s. 15 . I do not wish to be taken as agreeing
entirely with that position. I am not certain that such a conclusion can be
correct in relation to matters pertaining to age. For example, in the course
of negotiating a collective bargaining agreement, it may become apparent that
the union membership is overwhelmingly in favour of an agreement that embraces
compulsory retirement as part of the consideration for obtaining higher wages
at an earlier age -- an age when houses must be bought and children raised and
educated. That is to say, at a time when the need for family funds is at the
highest.
It
is often the case that, before a collective bargaining agreement is ratified,
the union members will have received very careful advice concerning its terms
and their significance not only from union officials, but also from skilled
economists and lawyers. The collective agreement represents a total package
balancing many factors and interests. It represents the considered opinion of
its members that it would be in their best interests to accept the proposed
contract. Bargains struck whereby higher wages are paid at an earlier age in
exchange for mandatory retirement at a fixed and certain age, may well confer a
very real benefit upon the worker and not in any way affect his or her basic
dignity or sense of worth. If such contracts should be found to be invalid, it
would attack the very foundations of collective bargaining and might well put
in jeopardy some of the hard won rights of labour.
The
collective agreement reflects the decision of intelligent adults, based upon
sound advice, that it is in the best interest of themselves and their families
to accept a higher wage settlement for the present and near future in exchange
for agreeing to a fixed and certain date for retirement. In those
circumstances, it would be unseemly and unfortunate for a court to say to a
union worker that, although this carefully made decision is in the best
interest of you and your family, you are not going to be permitted to enter
into this contract. It is a position that I would find unacceptable.
Appeal
dismissed, WILSON and L'HEUREUX-DUBÉ JJ.
dissenting.
Solicitors
for the appellants: Sack, Charney, Goldblatt & Mitchell, Toronto.
Solicitors
for the respondent Board of Governors of the University of Guelph: Hicks,
Morley, Hamilton, Stewart, Storie, Toronto.
Solicitors
for the respondent Board of Governors of Laurentian University: Tory, Tory,
DesLauriers & Binnington, Toronto.
Solicitors
for Board of Governors of York University: Campbell, Godfrey & Lewtas,
Toronto.
Solicitors
for the respondent Governing Council of the University of Toronto: Cassels,
Brock & Blackwell, Toronto.
Solicitor
for the respondent the Attorney General for Ontario: The Attorney General for
Ontario, Toronto.
Solicitor
for the intervener the Attorney General of Canada: The Attorney General of
Canada, Ottawa.
Solicitor
for the intervener the Attorney General of Nova Scotia: The Attorney General
of Nova Scotia, Halifax.
Solicitor
for the intervener the Attorney General for Saskatchewan: Brian
Barrington-Foote, Regina.