Constitutional Law | Constitutional Attorneys | Social Development Constitutional Law

Social Development Constitutional Law

PRO DD decision:
o    Don’t want Charter in private action for Efficiency purposes
o    Crts under obligation to develop CmL in way consistent w/ fundamental values of Charter so don’t need to rely strictly on mechanical use of Charter
o    Use of Charter does NOT encourage resolution of disputes
o    Intended purpose of Charter was for gov’t vs. individual, not ind. vs. ind.

CON DD decision:
o    Mandel and Hutchinson; laissez-faire economy is potential threat to private power and needs to be taken seriously
o    Private power threatens individual rights and Charter is able to protect individuals
o    Intent of Framers:  framers did not want it to apply to private actors; through Living Tree analysis, shd expect that to stay constant, need to change to meet current needs
o    Setting up this way would allow for inconsistent use of Charter

Post Dolphin Delivery: Finding Government Action

McKinney v. University of Guelph [1990] SCC
Facts:    Faculty members challenge mandatory retirement policy of four universities, arguing that universities’ policies violate s.15 (equality rights) for age discrimination
Issue 1:    Is Charter applicable to the actions of universities (are they gov’t actors under s.32)? NO
Does Charter apply to subordinate bodies that are created and supported by Parliament/Legislature? NO
Issue 2:    In the alternative, does the provincial human rights code violate s.15 by only protecting ppl b/w the ages of 18 and 65 (allowing for discrimination against ppl over 65)? YES (∴ subject to challenge)
LaForest (Majority): Charter was NOT directly applicable to retirement policy
Need to limit Charter application to disputes b/w individual and state (DD)
Very narrow definition of gov’t
NB: If universities are not under Charter scrutiny, very few entities will be viewed as part of gov’t
•    Just b/c universities are creatures of statute, and given legal attributes of natural person, is not sufficient to make it subject to Charter scrutiny
o    To hold otherwise wd undermine purpose of s.32 b/c many private entities exist be virtue of statute (ALL private corporations are also created by statutes!)
•    Just b/c universities perform an important public service/purpose is not enough to render them part of the gov’t
o    Public service test is too vague and wd capture too may institutions in our society thereby defeating purpose of s.32
•    Just b/c universities are regulated by and dependent upon (for funding) gov’t does not mean university is organ of government
o    Universities do not act at the direction of gov’t but in the interest of the university (academic freedom); they manage their own affairs and allocate gov’t funds; they have legal autonomy to make own policy decisions
•    Nothing to indicate that in entering collective agreements including the retirement provision that universities were in any way following the dictates of the government; they were acting purely on their own initiative.
•    Duty not to act at the discretion of gov’t, but in the interests of the university; the gov’t ∴has no legal power to control the university even if it wished to do so
•    No statutory requirement imposing mandatory retirement on the universities
*Distinction: What IS or ISN’T a “Quintessential gov’t function”

Charter may apply to non-governmental entities otherwise considered ‘private’ where:
•    specific activities can fairly be said to be the decision of the government, or that the government partakes in the decision so as to make it an act of the government
•    Private entity is implementing a specific government policy or program
•    Private actor implements the program, but gov’t retains responsibility for it
Wilson (Dissent):  Must take broad view of ‘gov’t’ b/c otherwise the impact of the Charter will be limited and the protection of the individual rights it is meant to offer will be minimized

Two Part Test for Determining Governmental Action:
(Since Charter may be invoked if found to be act of government)
1.    Is the entity in question part of ‘government’ (this wd include those bodies exercising statutorily delegated powers of law-making or decision making; legislative, executive, or administrative branches but also non-traditional gov’t bodies)?
2.    If act is not performed by ‘government’, is the action in question subject to such significant governmental control that it may be considered an act of gov’t for Charter purposes?

Eldridge v. BC (Attorney General) [1997]    Application of McKinney Test
Facts:    •    3 individuals who were born deaf sought a declaration that the failure to provide public funding for sign language interpreters when they received medical services violated s.15 of the Charter (inability to communicate increased risk of misdiagnosis and ineffective treatment)
•    Trial judge found NO Charter infringement – any disadvantage suffered was not the result of the gov’ts failure to provide services, but rather result of limitations that existed outside the legislation
•    C.A held that b/c hospitals are not “gov’t” within the meaning of s.32 and ∴Charter inapplicable; Absence of funding was not from legislation, but from each hospital’s budgetary discretion
Issue:    Does Provincial govt’s failure to provide funding for sign language interpreters to deaf persons when receiving medical services violate s.15 of the Charter? YES
Does the Charter actually apply to decision makers? (is entity part of gov’t within the meaning of s.32?)
Holding:    •    Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy, i.e., while a private actor actually implements the program, it is the gov’t that retains responsibility for it (McKinney)
Reasoning:
(LaForest)    1.Does Charter apply to decision not to provide interpreters as part of publicly funded scheme?
2.Does this decision violate s.15?
3.If so, can it be saved by s.1?
4.If not saved, what is appropriate remedy?

•    Source of alleged violation: The actions of the particular entities exercising decision-making authority pursuant to the legislation infringe Charter, and not the impugned legislation itself (neither statute, explicitly or implicitly, prohibits the provision of interpreters)
•    Nature of legislation such that government, not hospitals, is responsible for defining content
•    Hospital is carrying out specific governmental objective; is merely vehicle the legislature has chosen to deliver program
•    Acting in this capacity, hospital is an expression of government policy; is agent for government
•    While hospital may be autonomous in day-to-day operations, they act as agents for the gov’t in providing specific medical services set out in Act
•    Legislature cannot evade its obligations under s.15 by appointing hospitals (private entity) to carry out that objective
Remedy:    •    Legislation remains valid, but remedy sought under s.24(1)

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