Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., (2009) 272 B.C.A.C. 29 (SCC)

• Judge: McLachlin, C.J.C., Bastarache*, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 25, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 272 B.C.A.C. 29 (SCC);2009 SCC 31;389 NR 98;JE 2009-1320;[2009] SCJ No 31 (QL);93 BCLR (4th) 1;272 BCAC 29;192 CRR (2d) 336;[2009] 8 WWR 385;309 DLR (4th) 277;[2009] 2 SCR 295;EYB 2009-161351;179 ACWS (3d) 98

Students Federation v. Transportation Authority (2009), 272 B.C.A.C. 29 (SCC);

    459 W.A.C. 29

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] B.C.A.C. TBEd. JL.035

Greater Vancouver Transportation Authority (appellant) v. Canadian Federation of Students - British Columbia Component and British Columbia Teachers' Federation (respondents) and Attorney General of New Brunswick, Attorney General of British Columbia, Adbusters Media Foundation and British Columbia Civil Liberties Association (intervenors)

British Columbia Transit (appellant) v. Canadian Federation of Students - British Columbia Component and British Columbia Teachers' Federation (respondents) and Attorney General of New Brunswick, Attorney General of British Columbia, Adbusters Media Foundation and British Columbia Civil Liberties Association (intervenors)

(31845; 2009 SCC 31; 2009 CSC 31)

Indexed As: Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache*, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

July 10, 2009.

Summary:

The Canadian Federation of Students - British Columbia Component (CFS) and the British Columbia Teachers' Federation (BCTF), sought to purchase space for advertisements of a political nature on the outside of British Columbia Transit (BC Transit) and Greater Vancouver Transportation Authority (TransLink) buses. Their requests were denied because the advertisements contravened the advertising policies of Transit and Translink. CFS and BCTF sought a declaration that certain aspects of the policies infringed their right to freedom of expression under s. 2(b) of the Charter and that the infringement could not be justified under s. 1.

The British Columbia Supreme Court, in a decision reported [2006] B.C.T.C. 455, held that BC Transit and TransLink constituted "government" within the meaning of s. 32 of the Charter, but rejected the claim by the CFS and BCTF that the policies infringed their right to freedom of expression under s. 2(b). In the result, the application for declaratory relief was dismissed. The CFS and BCTF (the appellants) appealed.

The British Columbia Court of Appeal, Southin, J.A., dissenting, in a decision reported 233 B.C.A.C. 81; 386 W.A.C. 81, allowed the appeal, set aside the order of the trial judge and granted the declarations sought. The court held that the trial judge was correct in finding that BC Transit and TransLink constituted "government" within the meaning of s. 32 of the Charter; however, the judge erred in finding that the policies did not breach the appellants' right to freedom of expression under s. 2(b) of the Charter. The court also found that because BC Transit and Translink did not challenge the trial judge's finding that the policies did not constitute "law" within the meaning of s. 1 of the Charter, they could not justify the breach of the appellants' s. 2(b) rights under s. 1. TransLink and BC Transit (i.e., the transit authorities) appealed.

The Supreme Court of Canada dismissed the appeal. The court held that the Charter applied, pursuant to s. 32, to the transit authorities' advertising policies and the impugned policies infringed s. 2(b) of the Charter. The infringement could not be justified under s. 1 of the Charter. As to remedy, the court held that the transit authorities' advertising policies were "law" within the meaning of s. 52(1) of the Constitution Act, and could, therefore, be declared of no force and effect to the extent of their inconsistency.

Editor's note: *Bastarache, J., took no part in the judgment.

Civil Rights - Topic 1847

Freedom of speech or expression - Limitations on - Regulation of advertising and commercial use of language - The Canadian Federation of Students - British Columbia Component (CFS) and the British Columbia Teachers' Federation (BCTF) (collectively, the advertisers) sought to purchase space for political advertisements on buses operated by British Columbia Transit and the Greater Vancouver Transportation Authority (transit authorities) - The CFS advertisements were aimed at encouraging young people to vote in provincial elections - The BCTF advertisements concerned the issue of fewer teachers and school closures - The requests were denied because the advertisements contravened the transit authorities' policies - The advertisers challenged the policies under s. 2(b) of the Charter - The Supreme Court of Canada held that the Charter applied to the transit authorities' advertising policies because the authorities were "government" within the meaning of s. 32 of the Charter - The court found that side of a bus was a location where expressive activity was protected by s. 2(b) of the Charter and that the policies limited (infringed) the advertisers' freedom of expression - While the limits resulting from the policies were legislative in nature and were "limits prescribed by law" within the meaning of s. 1 of the Charter, the limits could not be justified under s. 1 because they were not rationally connected to the transit authorities' objective which was to create a safe and welcoming public transit system - The transit authorities failed to minimize the impairment of political speech which was at the core of s. 2(b) protection - As to remedy the court held that the transit authorities' advertising policies were "law" within the meaning of s. 52(1) of the Constitution Act, and, therefore, could be and were declared to be of no force and effect to the extent of their inconsistency - See paragraphs 1 to 92.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - Section 32 of the Charter identified the entities to which the Charter applied - The Supreme Court of Canada discussed the principles applicable to determining whether an entity was subject to the Charter - The court stated, inter alia, that "... there are two ways to determine whether the Charter applies to an entity's activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be 'government', either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter. If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter" - See paragraphs 13 to 16.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - [See Civil Rights - Topic 1847 and Civil Rights - Topic 8304 ].

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative law - Boards, tribunals and Crown corporations (incl. transit authorities) - [See Civil Rights - Topic 1847 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Supreme Court of Canada reviewed the case law respecting the "prescribed by law" requirement in s. 1 of the Charter - The court concluded that "These cases show that the Court has chosen to take a flexible approach to the 'prescribed by law' requirement as regards both the form (e.g., statute, regulation, municipal bylaw, rule of a regulatory body or collective agreement provision) and articulation of a limit on a Charter right (i.e., a standard intelligible to the public and to those who apply the law). In the end, the Court has emphasized, as in Therens [SCC 1985], the need to distinguish between limits which arise by law and limits which result from arbitrary state action; those resulting from arbitrary state action continue to fail the 'prescribed by law' requirement" - See paragraphs 50 to 57 - The court also discussed the application of the "prescribed by law" requirement to government policies - The court stated that "... where a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is 'prescribed by law'" - See paragraphs 58 to 66.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1847 ].

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - The Supreme Court of Canada discussed the choice of remedies between s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982 - In particular the court discussed whether binding policies of general application adopted by a government entity could be characterized as "law" for the purposes of s. 52(1) - The court stated that "While the broad wording of s. 24(1) would appear to permit a declaration with an effect similar to that of one made under s. 52(1), it is more appropriate to deal with rules made by government entities under s. 52(1)" - See paragraphs 83 to 90.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - [See Civil Rights - Topic 1847 ].

Constitutional Law - Topic 2507.2

Determination of validity of statutes or Acts - Declaration of invalidity - [See Civil Rights - Topic 8367 ].

Cases Noticed:

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [paras. 6, 101].

Lehman v. Shaker Heights (City) (1974), 418 U.S. 298, refd to. [para. 6].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 14].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 15].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 15].

Harrison v. University of British Columbia; Connell v. University of British Columbia, [1990] 3 S.C.R. 451; 120 N.R. 1, refd to. [para. 15].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 15].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 15].

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 15].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [paras. 26, 101].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 27].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [paras. 27, 103].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580 et al., [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 27].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 27].

Ford v. Quebec (Attorney General) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [paras. 27, 95].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [paras. 27, 136].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [paras. 27, 129].

Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; 156 N.R. 2; 66 O.A.C. 10, refd to. [paras. 27, 129].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [paras. 29, 103].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [paras. 32, 104].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 50].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 51].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 52].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 52].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 52].

Black & Co. v. Law Society of Alberta, [1989] 1 S.C.R. 591; 93 N.R. 266; 96 A.R. 352, refd to. [para. 53].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 54].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 56].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 74].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89; 2007 SCC 30, refd to. [para. 78].

R. v. Labaye (J.-P.), [2005] 3 S.C.R. 728; 342 N.R. 304; 2005 SCC 80, refd to. [para. 78].

R. v. Tremblay et autres, [1993] 2 S.C.R. 932; 156 N.R. 30; 57 Q.A.C. 161, refd to. [para. 78].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 82].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [para. 103].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 103].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 112].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 136].

R.A.V. v. St. Paul (City) (1992), 505 U.S. 377, refd to. [para. 137].

Statutes Noticed:

British Columbia Transit Act, R.S.B.C. 1996, c. 38, sect. 4(4)(e) [para. 68].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 48]; sect. 2(b) [para. 25]; sect. 24(1) [para. 83]; sect. 32 [para. 13].

Constitution Act, 1982, sect. 52(1) [para. 83].

Greater Vancouver Transportation Authority Act, S.B.C. 1998, c. 30, sect. 2(4) [para. 69].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), vol. 2, p. 122 [para. 50]; s. 38.3 [para. 132].

Holland, Denys C., and McGowan, John P., Delegated Legislation in Canada (1989), p. 103 [para. 64].

Counsel:

David F. Sutherland and Clark Roberts, for the appellant, the Greater Vancouver Transportation Authority;

George K. Macintosh, Q.C., and Timothy Dickson, for the appellant, the British Columbia Transit;

Mark G. Underhill and Catherine J. Boies Parker, for the respondents;

Gaétan Migneault, for the intervenor, the Attorney General of New Brunswick;

Neena Sharma and Jennifer J. Stewart, for the intervenor, the Attorney General of British Columbia;

Ryan D.W. Dalziel and Audrey Boctor, for the intervenor, the Adbusters Media Foundation;

Chris W. Sanderson, Q.C., and Chelsea D. Wilson, for the intervenor, the British Columbia Civil Liberties Association.

Solicitors of Record:

David F. Sutherland & Associates, Vancouver, B.C., for the appellant, the Greater Vancouver Transportation Authority;

Farris, Vaughan, Wills & Murphy, Vancouver, B.C., for the appellant, the British Columbia Transit;

Underhill, Faulkner, Boies Parker Law Corporation, Vancouver, B.C., for the respondents;

Attorney General of New Brunswick, Fredericton, N.B., for the intervenor, the Attorney General of New Brunswick;

Ministry of the Attorney General of British Columbia, Vancouver, B.C., for the intervenor, the Attorney General of British Columbia;

Bull, Housser & Tupper, Vancouver, B.C., for the intervenor, the Adbusters Media Foundation;

Lawson Lundell, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association.

This appeal was heard on March 25, 2008, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on July 10, 2009, and included the following opinions:

Deschamps, J. (McLachlin, C.J.C., Binnie, LeBel, Abella, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 91;

Fish, J., concurring reasons - see paragraphs 92 to 139;

Bastarache, J., took no part in the judgment.