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Charter - s.32 Application (2). Macciacchera (Smoothstreams.tv) v. Bell Media Inc.
In Macciacchera (Smoothstreams.tv) v. Bell Media Inc. (Fed CA, 2024) the Federal Court of Appeal explained that only state action attracts application of the Charter, here in an appeal of a review of an Anton Pillar orders:[5] First, the appellants cannot ground their appeal upon a Charter right. This is because the Charter does not apply between private parties, and Charter rights do not exist in the absence of state action: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130 at para. 95 [Hill]; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 SCR 573 at p. 599; Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 SCR 530 at p. 571.
The execution of an Anton Piller order does not involve state action; the order "“is not placed in the hands of a public authority for execution”": Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 at para. 1 [Celanese]. Rather, as in this case, an Anton Piller order "“authorizes a private party to insist on entrance to the premises of its opponent to conduct a surprise search, the purpose of which is to seize and preserve evidence to further its claim in a private dispute”": Celanese at para. 1 (emphasis added); see also Ontario Realty Corp. v. P. Gabriele & Sons Ltd., 2000 CanLII 22697 (ON SC) at para. 34; Viacom Ha! Holding Co. v. Jane Doe, [2000] F.C.J. No. 498 at paras. 80–81.
[6] Second, in the absence of an explanation as to how the execution of the Order was inconsistent with Charter values, this argument cannot be entertained: Hill at para. 95; Singh Brar v. Canada (Public Safety and Emergency Preparedness), 2024 FCA 114 at para. 66. . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court reviews principles of Charter application:[29] Section 32(1) of the Charter states that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament” and “to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”.
[30] Clearly, the federal and provincial legislatures are subject to Charter scrutiny. As this Court has explained, the words of s. 32(1) express that “the Charter is essentially an instrument for checking the powers of government over the individual” (McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 261). The Charter “is intended to constrain governmental action inconsistent with those rights and freedoms” (Hunter, at p. 156). As explained further below, ss. 32(1) and 24 of the Charter, along with s. 52(1) of the Constitution Act, 1982, entrench the court’s role in holding the government to account for Charter violations (M. L. Pilkington, “Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms” (1984), 62 Can. Bar Rev. 517, at pp. 535 and 552-67). . York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) the Supreme Court of Canada considers application of the Charter [s.32] to "Ontario public school boards", here in a employer (labour) privacy context:B. The Charter Applies to Ontario Public School Boards Under the First Branch of Eldridge
[72] Section 32 of the Constitution Act, 1982, sets out the scope of the Charter’s application:32(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. [73] In this regard, the landmark ruling is Eldridge, in which this Court established a two-branch framework:First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. [para. 44] [74] Until now, this Court has made no definitive statement as to whether the Charter applies to school boards. While this Court has assumed that the Charter applies to school boards (see Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256), it has done so without addressing the Eldridge framework, save as noted below.
[75] In Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, Gonthier J., dissenting (Bastarache J. concurring), examined this issue, which the majority found unnecessary to consider, at length. He held that there was “no doubt” that a school board was subject to the Charter under the first branch of Eldridge (para. 121). Subsequent to Chamberlain, this Court has accepted the Crown’s concession in cases before it that the Charter applies to the actions of school officials and proceeded on that basis (see Cole, at para. 38).
[76] Lower courts have analyzed whether the Charter applies to school boards, and have drawn different conclusions. Some have followed Gonthier J.’s reasons in Chamberlain and applied the Charter to school boards (see British Columbia Public School Employers’ Assn. v. B.C.T.F., 2005 BCCA 393, 257 D.L.R. (4th) 385; and Gillies (Litigation Guardian of) v. Toronto District School Board, 2015 ONSC 1038, 125 O.R. (3d) 17). Others have distinguished Gonthier J.’s reasons and held that the Charter does not apply to school boards (see Calgary Roman Catholic Separate School District No. 1 v. O’Malley, 2007 ABQB 574, 81 Alta. L.R. (4th) 261; and Hamilton v. Rocky View School Division No. 41, 2009 ABQB 225, 192 C.R.R. (2d) 22).
[77] The time has come to determine whether the Charter applies to Ontario public school boards and, if so, whether they come under the first or second branch of Eldridge. This is a constitutional question that requires a final and determinate answer from the courts, thus a standard of correctness applies, as per Vavilov (para. 55).
[78] Under the first branch of the Eldridge framework, “it may be determined that the entity is itself ‘government’ for the purposes of s. 32” (para. 44). This is so where, by (1) “its very nature” or (2) “the degree of governmental control exercised over it” (Eldridge, at para. 44), the entity is akin to a government. Under this branch, where the entity is found to be “government”, the Charter applies to all its actions. This includes those that would otherwise be described as “private”, were they carried out by a non-governmental actor.
[79] A review of the Education Act confirms that Ontario public school boards are government by nature. The section of the Act entitled “Purpose” highlights the role that school boards play in the education system; s. 8 of the Act provides for extensive powers of the Minister of Education with respect to boards. Ontario public school boards are, in effect, an arm of government, in that they “exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves” (Chamberlain, at para. 121, quoting Godbout, at para. 51).
[80] In Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at paras. 15-16, the Court further clarified that governmental action as part of a “public function” may be sufficient to bring that activity within the purview of government and attract Charter scrutiny (UAlberta Pro-Life v. Governors of the University of Alberta, 2020 ABCA 1, 98 Alta. L.R. (6th) 252, at para. 128). The Alberta Court of Appeal, for example, has described Greater Vancouver Transportation Authority as a starting point for applying Eldridge as follows: “. . . the test for s 32 resides in the analysis in Greater Vancouver Transportation Authority and rests on the ability to identify an area of government policy and objectives that the [entity] can be said to be implementing for the state more broadly and not just for internal . . . objectives” (UAlberta Pro-Life, at para. 139).
[81] Public education is inherently a governmental function. It has a unique constitutional quality, as exemplified by s. 93 of the Constitution Act, 1867 and by s. 23 of the Charter. Ontario public school boards are manifestations of government and, thus, they are subject to the Charter under Eldridge’s first branch.
[82] Ontario public school boards do not fit under the second branch of Eldridge. They are not private entities carrying out a governmental activity. All actions carried on by Ontario public school boards are subject to Charter scrutiny, including the principal’s actions, in this case, as he acted in his official capacity as an agent of the Board, a statutory delegate, “and not in his personal capacity” (Gillies, at para. 40).
[83] The purpose of the Eldridge framework is to interpret s. 32(1) so as to ensure that the federal and provincial governments do not evade their constitutional responsibilities under the Charter by delegating governmental functions to non-governmental entities, for example private enterprises (para. 40).
[84] The analysis above relates specifically to Ontario public school boards. I leave for another day the question of the applicability of the Charter to public schools in other provinces, or to the operation of private schools.
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