Vriend and Notes

Vriend is an example of how government inaction may be the subject of Charter review.

Vriend v Alberta

Facts:

·         the case involved a challenge to Alberta's Individual Right's Protection Act (IRPA), the general scheme of which Act was to "prohibit discrimination in public life"

·         sexual orientation was not listed among the prohibited grounds of discrimination in the Act, leaving Vriend with no cause of action against his employer for wrongful dismissal

·         Vriend was dismissed by his employers at King's College when they learned he was gay

·         Vriend sought a declaration that the omission of sexual orientation in the Act violated his equality rights under the Charter

Issue:

Does the Charter, pursuant to s.32, apply to the subject of the challenge in this case? In other words, can government inaction be actionable under the Charter?

Holding:

The government, by failing to provide sexual orientation in the list of prohibited grounds, discriminated against Vriend; sexual orientation should be read into the provision of the Act in question. s.32 should not be interpreted as precluding the application of the Charter.

Reasoning:

If underinclusive legislation was immune to Charter challenge, it would allow the form rather than the substance of the legislation to determine whether it was open to challenge - an illogical and unfair result. The omission, being deliberate by the legislature, can be interpreted as an act of the legislature so as to provide actionable grounds under s.32 of the Charter.

                Several other cases seem to establish that the government, once having undertaken to do something, must do so in a non-discriminatory manner. Other cases, such as Dunmore, pose the idea that government may have positive obligations to protect some vulnerable minority groups in a broad sense. This entire group of cases seems to "chip away at Dolphin Delivery as a precedent."

- Canadian Constitutional Law, 4th ed., pg.821-825