B. What Is Government?

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

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In the cases following Dolphin Delivery, the task for the courts has been to determine what constitutes governmental action for the purposes of the Charter. The Supreme Court has held that the Charter applies to Cabinet decisions11but not to actions of legislative assemblies protect-

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ed by parliamentary privilege.12The Court has found that professional bodies exercising regulatory power delegated by the government, such as law societies, are subject to the Charter.13An adjudicator, appointed under the federal labour code to determine whether an employee was unjustly dismissed, was held to have issued a remedial order contrary to the Charter when he ordered the former employer to issue a specific letter of reference. The fact that the statute was the source of the authority for the order made the exercise of the adjudicator’s discretion subject to Charter principles.14Similarly, a provincial human rights commission derives its powers from statute and is subject to the Charter, despite the fact that it is not subject to direct government control but exercises independent judicial powers when dealing with particular cases.15Cases have also considered, with varying results, the application of the Charter to a number of institutions in the broader public sector. In MCKINNEY and Harrison, the Supreme Court of Canada held that the Charter does not apply to universities, even though they receive government funding, are created by statute, and may have government appointees on their governing bodies.16Despite these close links to government, the Court focused on the independence of universities from government control in their day-to-day operations and academic decision making, and it concluded that the Charter did not apply to the mandatory-retirement policies of these institutions. Similarly, in Stoffman, a hospital was held not to be subject to the Charter, despite government funding and some degree of oversight, since here, as well, there was a sufficient element of day-to-day independence.17In contrast, school boards18and community colleges19have been held to be part of government for purposes of the Charter. In a British Columbia case involving a community college, the Supreme Court

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found that the college was an agent of the Crown. In both cases it was noted that there was greater control of college operations and programs by governmental officials than with universities. The result in an Ontario case was to...

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