Douglas/kwantlen Faculty Assn. v. Douglas College

Douglas/kwantlen Faculty Assn. v. Douglas College
Collection
Supreme Court Judgments
Date
1990-12-06
Report
[1990] 3 SCR 570
Case number
20800
Judges
Dickson, Robert George Brian; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 20800
Decision Content
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570
Douglas College Appellant
v.
Douglas/Kwantlen Faculty Association Respondent
and
The Attorney General of Canada and
The Attorney General for Saskatchewan Interveners
indexed as: douglas/kwantlen faculty assn. v. douglas college
File No.: 20800.
1989: May 18, 19; 1990: December 6.
Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Applicability of Charter ‑‑ Government ‑‑ Whether community college "government" so as to attract Charter review of policies ‑‑ If so, whether mandatory retirement policy "law" ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 32 .
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Equality before the law ‑‑ Age discrimination ‑‑ Mandatory retirement at age 65 ‑‑ Whether mandatory retirement policy "law" ‑‑ If so, whether s. 15(1) of the Charter infringed ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 32 .
Consitutional law ‑‑ Court of competent jurisdiction ‑‑ Labour grievance ‑‑ Arbitrator deciding constitutionality of provision as preliminary issue ‑‑ Whether a court of competent jurisdiction ‑‑ Whether jurisdiction to hear and determine grievance ‑‑ Canadian Charter of Rights and Freedoms, ss. 15 , 24(1) .
Douglas College was one of the colleges in a system of post‑secondary education operated by British Columbia through the College and Institute Act. A college once designated under the Act became a corporation and was for all purposes an agent of the Crown and could only exercise its powers as such. It was subject to direct and substantial control by the Minister. Its board was appointed by the Lieutenant Governor in Council at pleasure and its annual budget was submitted to the Minister for approval. The Minister was empowered to establish policy or issue directives regarding post‑secondary education and training, to provide services considered necessary, to approve all by‑laws of the Board and to provide the necessary funding.
The collective agreement, which was governed by the Labour Code and came into effect after the commencement of the Canadian Charter of Rights and Freedoms , provided for mandatory retirement at age 65 (Article. 4.04). Two faculty members who were about to be retired filed a grievance challenging Article 4.04 as violating s. 15(1) of the Charter . The arbitrator appointed pursuant to the collective agreement held, in a preliminary award, that the college was a Crown agency subject to the Charter and that any action taken by it, including the collective agreement, constituted a "law" within the meaning of s. 15(1) of the Charter . This preliminary award did not deal with whether Article 4.04 of the collective agreement was justified under s. 1 or whether the association was estopped from claiming the benefits of the Charter . An appeal to the British Columbia Court of Appeal was dismissed.
The constitutional questions before this Court queried: (1) whether the Charter applied to the negotiation and administration of the retirement provision in the collective agreement; (2) whether that provision or its application was "law" as that term is used in s. 15(1) of the Charter ; (3) whether the arbitration board appointed to resolve a grievance disputing the constitutionality of that provision was a court of competent jurisdiction under s. 24(1) of the Charter ; (4) whether the arbitration board had jurisdiction to hear and determine such a grievance.
Interventions were filed by the Attorneys General of Canada and Saskatchewan.
Held: The appeal should be dismissed.
Per Dickson C.J. and La Forest and Gonthier JJ.: The college was a Crown agency established by the government to implement government policy. It was simply in form and in fact part of the apparatus of government. The government may permit the college board to exercise a measure of discretion but it not only appoints and removes the board at pleasure but also may at all times by law direct its operation. The college was performing acts of government in carrying out its function. The actions of the college in the negotiation and administration of the collective agreement were those of the government for the purposes of s. 32 of the Charter . It was quite unlike the universities which managed their own affairs.
For reasons discussed in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, the collective agreement is law. It was entered into by a government agency pursuant to powers granted by statute in furtherance of government policy. The fact that the faculty association agreed to it did not alter the fact that it had been entered into by government pursuant to statutory power and so constituted government action. To permit government to pursue policies violating Charter rights by means of contracts and agreements with other persons or bodies cannot be tolerated.
A tribunal's power is that conferred by its statutory mandate. The jurisdiction of a statutory tribunal must be found in a statute and must extend not only to the subject matter of the application and the parties, but also to the remedy sought. A tribunal, in the exercise of its statutory mandate, is empowered to examine and rule upon the constitutional validity of a statute it is called upon to apply. Where a tribunal is engaged in performing what it was empowered to do by law, it is entitled not only to construe the relevant legislation but also to determine whether that legislation was validly enacted. Any law that is inconsistent with the provisions of the Constitution of Canada is, to the extent of its inconsistency, of no force or effect. A tribunal, if it finds a law it is applying to be constitutionally invalid, must treat it as having no force or effect under s. 52(1) of the Constitution Act, 1982 .
The arbitrator had jurisdiction over the parties, the subject matter at issue and the remedy sought. He was expressly granted the authority, under s. 98 of the Labour Code, to provide a final and conclusive settlement to a dispute arising under a collective agreement and was given a wide range of appropriate remedies including the power to interpret and apply any Act intended to regulate employment. "Act" in s. 98 includes the Charter . Here, the grievance was not based on the terms of the collective agreement alone but upon the application of s. 15(1) of the Charter as well.
The present case was complicated by the fact that the arbitrator's decision was a "preliminary" one looking only at the question of his jurisdiction and whether the collective agreement or policy of mandatory retirement could be "law" for the purposes of the Charter . The relief sought, however, was a remedy available under s. 98. The mandatory retirement clause was invalid and an arbitrator, notwithstanding any provision in the collective agreement to the contrary, can hold an "offensive" term in a collective agreement inapplicable.
The practice of placing a constitutional issue before a tribunal rather than seeking judicial review initially is natural enough in today's context and does not offend the concept of separation of powers. While the informal practices of a tribunal may not be entirely suited to dealing with constitutional issues, clear advantages for the practice exist. First, the Constitution must be respected and any citizen, when appearing before decision‑making bodies set up to determine his or her rights and duties should be entitled to assert the rights and freedoms guaranteed by the Constitution. In addition, a specialized tribunal quickly and inexpensively sift the facts and compile a record for the benefit of a reviewing court. This specialized competence can be of invaluable assistance in constitutional interpretation.
Since the arbitrator did not, in his preliminary award, consider the issues whether the breach of s. 15(1) was justified under s. 1 of the Charter , or whether the association was estopped or deemed to have waived its constitutional rights, the Court was not called upon to deal with these issues.
It was unnecessary to consider whether the arbitrator was a court of competent jurisdiction with the meaning of s. 24(1) of the Charter .
Per Wilson and L'Heureux‑Dubé JJ.: An arbitration board appointed by the parties under the Labour Code has jurisdiction pursuant to s. 52(1) of the Constitution Act, 1982 to determine the constitutional issue raised by the grievance. It was therefore unnecessary to determine whether the Board is a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter . The question whether a tribunal may have such jurisdiction even in the absence of specific provisions in the governing legislation and in the collective agreement, however, should be left open. The Charter applied to Douglas College and s. 15 applied to the impugned article in the collective agreement.
The criteria relevant in determining whether an entity is subject to the Charter include: (1) whether the legislative, executive or administrative branch of government exercises general control over the entity in question; (2) whether the entity performs a traditional government function or one recognized in more modern times as being a state responsibility; and (3) whether the entity acts pursuant to statutory authority specifically granted to further an objective that government seeks to promote in the broader public interest.
The college was part of government for the purposes of s. 32 of the Charter given the fact that it was a Crown agent established, funded and heavily controlled by government, together with the fact that it was discharging a government function in the public interest. The college was not an autonomous body but rather part of the "apparatus of government", and unlike universities, did not lose a historic independence when government decided to intervene. Its actions were therefore subject to s. 15 of the Charter . It was not necessary that the government exercise direct control over the implementation of Article 4.04 .
A purposive approach to the various sections in the Charter in which the word "law" appears may lead to different interpretations of the word "law" in the context of those provisions. It is not necessary that a "law" be identified in order to bring s. 15(1) into play. If, however, there must be a "law" involved before s. 15 is triggered, that law is found in the collective agreement and in particular Article 4.04 . Alternatively, another such "law" could be found in the College's enabling statute which contained a provision specifically conferring power on the Board to terminate contracts of employment. Accordingly, the alleged denial of equality was effected by "law" or by conduct entitled to be redressed by law and the first requirement of s. 15(1) is met.
Per Sopinka J.: The position of La Forest J. was agreed with except with respect to his finding that the collective agreement was "law" under s. 15 of the Canadian Charter of Rights and Freedoms . The consensual nature of the policies in question should not be discarded in the examination as to whether they constitute "law".
The Charter was intended to protect the individual from the coercive power of the state and not against the individual's own voluntary conduct in dealing with state entities. While "law" is not confined merely to legislative activity, an element of coercion present in government activity for such to be reasonably characterized as law. This element of imposition or prescription by the state distinguishes law from voluntarily assumed rights and obligations.
Per Cory J.: The reasons of Wilson J. were agreed with concerning the application of the McKinney test to the facts in this appeal. That test provided a means for determining whether an entity was a part of government to which the Charter applied. In all other respects, the reasons of La Forest J. were agreed with.
Cases Cited
By La Forest J.
Distinguished: McKinney v. University of Guelph, [1990] 3 S.C.R. 000; Harrison v. University of British Columbia, [1990] 3 S.C.R. 000; considered: Canada v. Vincer, [1988] 1 F.C. 714; Re Shewchuk and Ricard; Attorney General of British Columbia (1986), 28 D.L.R. (4th) 429; Zwarich v. Canada (Attorney General), [1987] 3 F.C. 253; referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; Terminaux portuaires du Québec Inc. v. Association des Employeurs maritimes (1988), 89 N.R. 278; Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513, leave to appeal denied, [1986] 1 S.C.R. xii; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1989), 62 D.L.R. (4th) 125; Re Nash and The Queen (1982), 70 C.C.C. (2d) 490; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; Tétreault‑Gadoury v. Canada (Canada Employment and Immigration Commission), [1989] 2 F.C. 245; Moore v. British Columbia (1988), 50 D.L.R. (4th) 29; Canada (Attorney General) v. Alli (1988), 51 D.L.R. (4th) 555; Gerrard v. Saskatoon (City) (1987), 44 D.L.R. (4th) 767; Canada (Procureur général) v. Sirois (1988), 90 N.R. 39; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219; Taylor (David) & Son Ltd. v. Barnett, [1953] 1 All E.R. 843; Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 (1980), 117 D.L.R. (3d) 400; R. v. Ontario Labour Relations Board, Ex parte Dunn (1963), 39 D.L.R. (2d) 346; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Canada Labour Relations Board v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Southern Pacific Transportation Co. v. Public Utilities Commission, 18 Cal.3d 308 (1976).
By Wilson J.
Distinguished: McKinney v. University of Guelph, [1990] 3 S.C.R. 000; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
By Sopinka J.
Applied: McKinney v. University of Guelph, [1990] 3 S.C.R. 000; referred to: Re Ontario English Catholic Teachers Association and Essex County Roman Catholic School Board (1987), 58 O.R. (2d) 545.
By Cory J.
Applied: McKinney v. University of Guelph, [1990] 3 S.C.R. 000.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) , 24(1) , 32 .
Canadian Human Rights Act, S.C. 1976‑77, c. 33.
Child's Paternity and Support Act, R.S.B.C. 1979, c. 49.
College and Institute Act, R.S.B.C. 1979, c. 53, ss. 2(1), (2), 3, 5(1), (2), 6, 7, 12, 12(1)(c), 17, 29(1), 53(1), 61.
Compensation Stabilization Act, S.B.C. 1982, c. 32, s. 2.1, 9, 14, 15, 16.
Constitution Act, 1867, s. 96 .
Constitution Act, 1982, s. 52(1) .
Family Allowances Act, 1973, S.C. 1973‑74, c. 44.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Financial Administration Act, S.B.C. 1981, c. 15.
Financial Information Act, R.S.B.C. 1979, c. 131 [rep. & sub. by S.B.C. 1985, c. 8].
Industrial Relations Act, R.S.B.C. 1979, c. 212.
Industrial Relations Reform Act, 1987, S.B.C. 1987, c. 24.
Labour Code, R.S.B.C. 1979, c. 212, s. 98.
Public Service Labour Relations Act, R.S.B.C. 1979, c. 346, s. 1(1).
Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48.
Authors Cited
Corpus Juris Secundum, vol. 73, 2nd ed.
Côté, Pierre‑André. "La recevabilité des arguments fondés sur les chartes des droits devant les tribunaux administratifs" (1989), 49 R. du B. 455.
Davis, K. C. Administrative Law Treatise, vol. 4, 2nd ed. San Diego: K. C. Davis Pub. Co., University of San Diego, 1983.
Evans, J. M. "Administrative Tribunals and Charter Challenges" (1988), 2 C.J.A.L.P. 13.
Gibson, Dale. "Enforcement of the Canadian Charter of Rights and Freedoms ," in W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms : Commentary. Toronto: Carswells, 1982.
Gosselin, J. F. "L'alchimie des Chartes vue de l'intérieur du tribunal administratif: le retour au Cheval de Troie?", dans Les Tribunaux administratifs à la lumière des chartes. Barreau du Québec.
Harris, Robin S. A History of Higher Education in Canada, 1663‑1960. Toronto: University of Toronto Press, 1976.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Kuttner, Thomas S. "Constitution as Covenant: Labour Law, Labour Boards and the Courts from the Old to the New Dispensation" in Labour Law Under the Charter. Kingston: Queen's Law Journal and Industrial Relations Centre, 1988.
Murray, J. C. "Labour Arbitration and the Charter ", in Labour Law, New Swords and New Shields: The Year in Review in Labour Law. Canadian Bar Association ‑‑ Annual Institute on Continuing Legal Education, 1987.
Note. "The Authority of Administrative Agencies to Consider the Constitutionality of Statutes" (1976‑77), 90 Harv. L. Rev. 1682.
Pépin, G. "La compétence des tribunaux administratifs de décider de la constitutionalité d'une loi, notamment de sa compatibilité avec la Charte canadienne des droits et libertés ". In Canadian Bar Association -‑ Continuing Legal Education Seminar on Administrative Law, "Canadian Administrative Law: Past Present and Future". Ottawa 1989.
Pinard, D. "Le pouvoir des tribunaux administratifs québécois de refuser de donner effet à des textes qu'ils jugent inconstitutionnels", [1987] R.D. McGill 170.
Ontario. Management Board of Cabinet. Review of Ontario's Regulatory Agencies. Macauley Report. Toronto: Queen's Printer for Ontario, 1989.
Québec. Rapport du groupe de travail sur les tribunaux administratifs. Les tribunaux administratifs. Rapport Ouellette. Québec: Éditeur officiel du Québec, 1987.
APPEAL from a judgment of the British Columbia Court of Appeal (1988), 21 B.C.L.R. (2d) 175, 49 D.L.R. (4th) 749, [1988] 2 W.W.R. 718, 40 C.R.R. 226, dismissing an appeal from an arbitration by B. H. McColl, Q.C., on a preliminary matter dealing with the constitutionality of a provision of a collective agreement. Appeal dismissed.
Thomas D. Schiller and Colin G. M. Gibson, for the appellant.
Leo McGrady and John J. Steeves, for the respondent.
Duff Friesen, Q.C., and Virginia McRae Lajeunesse, for the intervener the Attorney General of Canada.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
The judgment of Dickson C.J. and La Forest and Gonthier JJ. was delivered by
//La Forest J.//
LA FOREST J. -- These proceedings were initiated with a view to raising the issue whether a provision of a collective agreement entered into between an agent of the Crown and the respondent association, a trade union representing the College's employees, that requires the employees to retire at age 65 violates s. 15(1) of the Canadian Charter of Rights and Freedoms as constituting a deprivation of the employees' equality rights without discrimination based on age. This broad issue has yet to be addressed. This appeal is only concerned with a number of preliminary, though important, issues. Among these are whether the Charter applies to the college and whether the collective agreement constitutes a "law" for the purposes of s. 15(1) . That provision reads as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
These issues have also been discussed in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, but the present case raises the further important issue regarding the jurisdiction of an arbitrator appointed to determine the foregoing questions in the course of hearing a grievance by two employees contesting the decision to retire them under the provision of the collective agreement above described.
Facts
Douglas College, along with other colleges and institutes, was created pursuant to the College and Institute Act, R.S.B.C. 1979, c. 53, for the purpose of conducting post-secondary education and training in British Columbia. The Act empowers the Lieutenant-Governor in Council to designate colleges and the regions they are to serve (s. 5(1)). On designation, a college becomes a corporation (s. 5(2)) and is for all purposes an agent of the Crown and can only exercise its powers as such (s. 53(1)).
The affairs of the college are managed and directed by a board of seven members, all of whom are appointed by the Lieutenant Governor in Council at pleasure (s. 6). The Minister, however, exercises direct and substantial control over the college pursuant to ss. 2 and 3. Thus the Minister may establish policy or issue directives regarding post-secondary education and training, may provide services considered necessary, approves all by-laws of the Board and provides the necessary funding ‑- in the 1985-86 calendar year, for example, 83 per cent of its operating funds. The college submits an annual budget to the Minister. Briefly put, the college is simply a delegate through which the government operates a system of post-secondary education in the province, as its status as a Crown agency makes immediately evident. It is quite unlike universities like the University of British Columbia described in Harrison v. University of British Columbia, [1990] 3 S.C.R. 000, which, though largely dependent on government funding, manages its own affairs; see also McKinney v. University of Guelph, supra.
Though the labour relations of Crown agencies are generally governed by the Public Service Labour Relations Act, R.S.B.C. 1979, c. 346, s. 1(1), that is not so of the college. Its collective bargaining is by virtue of s. 53 of its constituent Act governed by the Industrial Relations Act, R.S.B.C. 1979, c. 212 (at the relevant times called the Labour Code). The college is an employer and the respondent association a "trade union" for the purposes of that Act. The association was certified as the exclusive agent for a bargaining unit of teaching and library employees of the college. Pursuant to the Act, the college and the association have entered into a series of collective agreements, which, of course, are binding upon the employees as well. The relevant agreement became effective in May 1985 with a contractual period running from April 1, 1983 to March 31, 1987. The agreement, be it noted, came into effect after the commencement of the Charter .
This collective agreement contained a clause (article 4.04) providing for mandatory retirement at age 65. It reads as follows:
4.04A faculty member shall retire from continuous full-time employment at the College on August 31st next following the employee's 65th birthday.
The clause had in fact existed in the same form through five collective agreements, both before and after the commencement of the Charter .
Finally, reference must be made to the Compensation Stabilization Act, S.B.C. 1982, c. 32, which applied to the appellant from 1982 through 1987. As its name implies, that Act was designed to restrain and stabilize levels of compensation paid or provided by designated "public sector employers" to or for the benefit of their employees (s. 2.1). A Commissioner appointed under the Act was empowered, inter alia, to review the "compensation plans", including terms and conditions of collective agreements to ensure that guidelines established pursuant to that Act were not exceeded. If the Commissioner determined that a compensation plan was outside the guidelines, he could either remit it to the parties for renegotiation, or order that it be subject to the regulations (ss. 9, 14 , 15 , 16 ).
Annually, from 1982 through 1985, the Commissioner reviewed the "compensation plans" contained in the collective agreements negotiated by the appellant and the respondent. Article 4.04 of the collective agreement was never the subject of a specific and separate submission to the Commissioner for review. However, the collective agreement as a whole, including article 4.04, was submitted to the Commissioner. I should add that the Act is no longer in force.
The proceedings arose out of a grievance by two faculty members who were about to be retired on August 31, 1986. They challenged article 4.04 as violating s. 15(1) of the Charter . An arbitrator was appointed pursuant to art. 15.03 of the collective agreement to determine the issue. His jurisdiction, as set forth in art. 15.03 (d)(i), is as follows:
15.03 . . .
(d) . . .
(i)Subject to the jurisdiction vested in an arbitrator or Arbitration Board under Part 6 of the Labour Code of British Columbia, the Arbitrator shall have jurisdiction and authority to interpret and apply the provisions of this Agreement insofar as it may be necessary to the determination of the grievance referred to him/her. He/she shall not have the jurisdiction to alter, amend, add to or delete from any of the provisions of this Agreement, or make any decision which is inconsistent with the provisions of this Agreement.
This provision, as noted in art. 15.03(d)(i), must be read in conjunction with Part VI of the then Labour Code, s. 98 and, particularly, para. (g), which has special relevance. Section 98 reads:
98. For the purposes set out in section 92, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limiting the generality of the foregoing, has authority to
(a)make an order fixing and determining the monetary value of an injury or loss suffered by an employer, trade union or other person as a result of a contravention of a collective agreement, and directing a person to pay a person all or part of the amount of that monetary value;
(b)order an employer to reinstate an employee dismissed in contravention of a collective agreement;
(c)order an employer or trade union to rescind and rectify a disciplinary action taken in respect of an employee that was imposed in contravention of a collective agreement;
(d)determine that a dismissal or discipline is excessive in [sic] all circumstances of the case and substitute other measures that appear just and equitable;
(e)relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement;
(f)dismiss or reject an application or grievance, or refuse to settle a difference, where in the arbitration board's opinion, there has been unreasonable delay by the person bringing the application or grievance, or requesting the settlement, and the delay has operated to the prejudice or detriment of the other party to the difference; and
(g)interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, notwithstanding that its provisions conflict with the terms of the collective agreement. [Emphasis added.]
Judicial History
Arbitration Award
In his preliminary award, the arbitrator held that the college, "being the child of provincial legislation under which it is not only created and operated, but regulated", is a Crown agency. The Charter , therefore, applied to it, and any action taken by it in pursuance of its powers vested in it by the legislature constituted a "law" within the meaning of s. 15(1) thereof. The provisions of the agreement, in so far as they touched upon matters dealt with in the Charter , may be struck down if they offend the Charter .
The arbitrator further found that the collective agreement between the parties is not a private agreement but amounted to a law or regulation of a government agency. Accordingly, the Charter applied. He did not deal in this preliminary award with the two other principal issues involved in the dispute, i.e., whether or not article 4.04 of the collective agreement fell within "reasonable limits prescribed by law" under s. 1 of the Charter or whether the association was estopped from claiming the benefits of the Charter .
Court of Appeal
An appeal to the British Columbia Court of Appeal was dismissed. The court found that the act of the appellant, in inserting a mandatory retirement provision into the collective agreement, is governmental in nature. In this respect, the court observed that the control exercised by the government over the college's affairs generally, in addition to its approval of the collective agreement under the Compensation Stabilization Act, permitted no other conclusion. The collective agreement could not be viewed as a private internal matter between the parties but was, rather, the result of the exercise of governmental power. Consequently, the Charter applied.
Having observed that the meaning of "law" in s. 15 of the Charter and s. 52(1) of the Constitution Act, 1982 had not been considered by this Court, the Court of Appeal, in the circumstances of this case, found it unnecessary to go further than to define "law" as "comprehending a rule or a system of rules formulated by government and imposed upon the whole or a segment of society" (p. 184). Law, it stated, may be made by a body exercising governmental power. The fact that the collective agreement takes effect only upon the approval of the Commissioner under the Compensation Stabilization Act "takes it out of the realm of a privately negotiated agreement and places it in the realm of law, subjecting it to scrutiny under s. 15(1) of the Charter " (p. 184).
In the Court of Appeal's opinion, the arbitrator, upon concluding that the mandatory retirement provision of the collective agreement infringed s. 15(1) , had jurisdiction to declare the impugned article of the agreement of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982 . It, therefore, found it unnecessary to consider s. 24(1) of the Charter .
Application was then made to appeal to this Court. The application was granted and the following constitutional questions were stated:
1.Does the Canadian Charter of Rights and Freedoms apply to the negotiation and administration of the retirement provision in the collective agreement between the appellant and the respondent?
2.Is such provision or its application "law" as that term is used in s. 15(1) of the Charter ?
3.Is an arbitration board appointed by the parties under the collective agreement to resolve a grievance disputing the constitutionality of such provision a court of competent jurisdiction under s. 24(1) of the Charter ?
4.Does an arbitration board have jurisdiction to hear and determine such a grievance?
Interventions were filed by the Attorneys General of Canada and Saskatchewan.
The Application of the Charter
The issue raised in the first constitutional question may be quickly disposed of. As its constituent Act makes clear, the college is a Crown agency established by the government to implement government policy. Though the government may choose to permit the college board to exercise a measure of discretion, the simple fact is that the board is not only appointed and removable at pleasure by the government; the government may at all times by law direct its operation. Briefly stated, it is simply part of the apparatus of government both in form and in fact. In carrying out its functions, therefore, the college is performing acts of government, and I see no reason why this should not include its actions in dealing with persons it employs in performing these functions. Its status is wholly different from the universities in the companion cases of McKinney v. University of Guelph, supra, and Harrison v. University of British Columbia, supra, which, though extensively regulated and funded by government, are essentially autonomous bodies. Accordingly, the actions of the college in the negotiation and administration of the collective agreement between the college and the association are those of the government for the purposes of s. 32 of the Charter . The Charter , therefore, applies to these activities.
I take this position quite independently of the application of other government Acts, notably the Compensation Stabilization Act, which regulate the "public sector" including bodies like universities which do not form part of government; see Harrison v. University of British Columbia. I have described the Compensation Stabilization Act earlier. With respect, I do not think a statute providing that certain bodies conform to compensation guidelines for the purposes of stabilizing and restraining compensation in organizations within and outside government makes the bodies subject to that regime part of government, or makes settlements negotiated in the shadow of such a statute acts of government. As I mentioned in McKinney v. University of Guelph, the fact that a body is heavily regulated and funded by government does not, by that mere fact, become part of the apparatus of government. However, the college in my view forms part of the apparatus for the reasons already given.
Is the Collective Agreement "Law"?
For reasons discussed in McKinney v. University of Guelph, supra, I am of the view that the collective agreement is law. It was entered into by a government agency pursuant to powers granted to that agency by statute in furtherance of government policy. The fact that the collective agreement was agreed to by the appellant association does not alter the fact that the agreement was entered into by government pursuant to statutory power and so constituted government action. To permit government to pursue policies violating Charter rights by means of contracts and agreements with other persons or bodies cannot be tolerated. The transparency of the device can be seen if one contemplates a government contract discriminating on the ground of race rather than age. It may be that age can constitute a rational basis for a party to agree to contract out of certain rights and thus be open to the defences of waiver or estoppel or again that it may in certain circumstances constitute a reasonable limitation under s. 1 . These are issues, however, which were not before the Board or the courts below and I refrain from commenting upon them further.
The Jurisdiction of the Arbitrator
Preliminary
I now turn to the third and fourth constitutional questions. For convenience, I repeat these. They read:
3.Is an arbitration board appointed by the parties under the collective agreement to resolve a grievance disputing the constitutionality of such provision a court of competent jurisdiction under s. 24(1) of the Charter ?
4.Does an arbitration board have jurisdiction to hear and determine such a grievance?
Section 24(1) of the Charter , mentioned in the third constitutional question, provides for application to a "court of competent jurisdiction" when a Charter right has been infringed or denied. It reads:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Though, it is not mentioned in the constitutional questions, s. 52(1) of the Constitution Act, 1982 , which provides that any law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect, is also relevant. It reads:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The Court of Appeal declined to comment on whether the arbitrator was a court of competent jurisdiction under s. 24(1) . It held that no relief was sought under that provision, thus removing the necessity of considering the issue. It held, rather, that under s. 52, if the arbitrator found a violation of s. 15 of the Charter , he could declare the clause of the collective agreement of no force or effect.
The Position of the Parties
In this Court, counsel for the college argued that s. 52(1) is not a jurisdiction granting provision and that a body holding a law of no force or effect must still be a court of competent jurisdiction under s. 24(1) which allocates authority to remedy Charter infringements by striking down offending laws or by making other appropriate or just orders. An arbitration board, he continued, is simply not a court within the meaning of s. 24(1) . Alternatively, he argued, the arbitrator had no jurisdiction over the subject matter of the dispute or the remedy sought. The arbitrator's jurisdiction derived from the parties' collective agreement and from the applicable labour relations legislation. While s. 98(g) of the Labour Code gave an arbitrator jurisdiction to "interpret and apply any Act intended to regulate the employment relationship . . . notwithstanding that its provisions conflict with the terms of the collective agreement", the Charter , counsel maintained, did not fall within the type of Act contemplated by this section. He also submitted that the rather informal arbitration process is not the proper forum for raising Charter issues.
Counsel for the respondent, however, argued that at common law a court of competent jurisdiction covered every possible court which is made competent to entertain the matter in dispute. Mills v. The Queen, [1986] 1 S.C.R. 863, he noted, concluded that a court of competent jurisdiction is a body that has, independently of the Charter , jurisdiction over the parties, subject matter and remedy sought. The arbitrator, counsel maintained, meets these criteria by virtue of the Labour Code provisions and the terms of the collective agreement.
Counsel for the intervener, the Attorney General of Canada, argued that the third constitutional question should be answered in the negative but the fourth question should be answered in the affirmative. He submitted that an arbitration board cannot be a court of competent jurisdiction within the meaning of s. 24(1) of the Charter because that provision merely recognizes that where a tribunal already has jurisdiction over the matter and remedy sought, an aggrieved person may apply to that body for such remedy for a Charter violation as that body is empowered to grant. A collective agreement, he added, cannot constitute a private person as a court, or authorize an arbitrator to determine the validity or effectiveness of a law of a province or of Canada. An arbitrator has no greater powers than those given under the terms of the collective agreement. However, in his view, an arbitrator, though not a court of competent jurisdiction for the purposes of s. 24(1) , does have the authority to determine what the applicable law is and to proceed to fulfill his mandate in a manner consistent with the Charter . Thus, he could on that basis determine that a provision of a collective agreement is invalid or unenforceable as being inconsistent with the Charter .
The second intervener, the Attorney General for Saskatchewan, sought to have both the third and fourth questions answered in the negative. His position is that neither s. 24(1) of the Charter nor s. 52 of the Constitution Act, 1982 operate as an independent source of authority to decide Charter questions. A tribunal, in his view, must exercise its powers consistently with the Charter . A tribunal may find legislation invalid or grant a formal Charter remedy but only if so empowered