Notes following McKinney

Of the three cases that occurred at the same time as McKinney, the theme seemed to be routine control of day to day operations and internal autonomy (Note 1):

Harrison v. University of BC [1990]

 Involved a challenge to a University’s mandatory retirement policy; a majority of the court followed McKinney.

Stoffman v. Vancouver General Hospital [1990]

-          Involved a challenge by doctors at the Vancouver General Hospital to a hospital board regulation for mandatory retirement at 65. 

-          Although 14 of the 16 members of the Board were appointed by the gov and all regulations had to be approved by the Ministers, the majority emphasized that routine control of the hospital was in the hands of the hospital’s board of trustees rather than the provincial government.  L’Heureaux-Dube who formed part of the majority in McKinney, dissented concluding that the hospital was acting as government as there was more governmental involvement other than simply funding.  

Douglas/Kwantlen Faculty Association v. Douglas College [1990]

-          The case involved a challenge to a mandatory retirement provision in a collective agreement between a college and a union. 

-          The court was unanimous in its decision that the college was part of the apparatus of government. 

-          The court differentiated the case from McKinney and Harrison stating that the universities in those cases were autonomous bodies while the government at all times directs the college and its operation.

-          This decision was followed in Lavigne v. Ontario Public Service Employment Union [1991] (Note 6) where the court ruled that the Ontario Council of Regents who had the authority to negotiate collective agreements on behalf of the colleges was bound by the Charter even though the union was not because the Minister of Education had “routine or regular control” and “full control over all council activities”.

Greater Vancouver Transport Authority v. Canadian Federation of Students – BC Component [2009] (Note 2):

-          The issue was whether the TransLink and BC Transit, corporations that operated public transportation systems in BC, had violated the Charter’s guarantee of freedom of expression by refusing to accept political advertising to be placed on the sides of their buses. 

-          The Court found that BC Transit was bound by the Charter as they are designated by legislation as an “agent of the government” and the provincial government had substantial control over its day to day activities.

-          TransLink was also found to be subject to the Charter even though it was not part of the apparatus of government; it was substantially controlled by the municipality which was part of the apparatus of government. The court supported their decision with the principle enunciated in Eldridge and Godbout cannot create a “Charter-free zone” by giving powers to another entity. 

State Action Doctrine in the US (Note 5)

-          Initially the US State action doctrine was applied broadly such that private entities that performed a public function or had connections to the state through funding or lease arrangements were bound by the Bill of Rights.

-          In criticism of this broad application, Swinton said that neither funding nor lease arrangements should be sufficient to convert a private activity into a public activity.  Swinton also noted that the reason for this broad application was due in part because of the absence of anti-discrimination legislation in many states.

-          The state action doctrine was applied on a case by case basis and has since been applied more strictly, requiring more state involvement in private activities.

The SC has yet to decide on the Charter’s applicability to...

1.       Crown Corporations - although two decisions have found that the CBC is not subject to the Charter, in general, the courts have not decided whether Crown corporations are subject to the Charter.  With regards to the CBC, it was found that although it is a Crown agency, it has independence in its programming and its policy decisions.  (Note 7)

2.       Public Schools