C. Indirect Application of the Charter

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The Charter may also apply to non-governmental actors indirectly, where the courts find that a law fails to go far enough in protecting Charter rights. In Vriend v Alberta,24the issue was whether a private school could refuse to hire teachers because of their sexual orientation. The school was not subject to the Charter but did have to comply with Alberta’s Individual’s Rights Protection Act, a statute created to combat discrimination in the private sector. The Individual’s Rights Protection Act dealt with various forms of discrimination but did not prohibit discrimination on grounds of sexual orientation. The Supreme Court held that the Act violated the gay teacher’s Charter right to equality by failing to protect him from discrimination. The Court added sexual orientation as a prohibited ground of discrimination under the Act. The practical effect of this ruling was to extend the application of the Charter’s equality guarantee to the private sector. Similarly, in Dunmore v Ontario (Attorney General),25the Court held that the freedom of association right of agricultural workers was denied by a law that excluded them from the reach of provincial labour laws. The law did nothing to prohibit agricultural workers from forming an association, but without the protection of the law, agricultural workers were impeded from organizing by the economic power of their private-sector employers. The Supreme Court held that this failure...

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