Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 (20 November 2009) The British Columbian Court of Appeal has confirmed that the Canadian Charter of Human Rights and Freedoms does not apply to non-governmental entities or activities. The Court also held that the Charter right to equal benefit of the law does not apply in respect of benefits that are created by a private entity that is not acting as an agent of the Crown.
A group of highly ranked female ski jumpers ('Applicants') sought to challenge the failure of the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games ('VANOC') to include women's ski jumping in the 2010 Winter Olympics.
The program for the Winter Olympics is set by the International Olympic Committee ('IOC'). Women's ski jumping was not included in the 2010 games by the IOC on the recommendation of the Olympic Programme Committee, which found that the development of the sport is still in an early stage and is 'thus lacking the international spread of participation and technical standard required for an event to be included in the programme'.
The Applicants sought a declaration that if VANOC organises, finances and stages ski jump events for men in the 2010 Winter Olympics, a failure to plan, organise, finance and stage a ski jump event for women violates their equality rights as guaranteed by s15(1) of the Charter. Section 15(1) provides that:
Every individual is equal before and under the law and has the right to 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.
The key issue in the appeal was whether the Charter applies to VANOC in respect of the selection of events to be staged at the Winter Olympics. Section 32(1) of the Charter provides that the Charter applies to Parliament and the government of Canada and to the legislature and government of each province in respect of all matters within the authority of those bodies. The Court of Appeal followed the test for determining the applicability of the Charter to an entity's activities as set out in Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31. This test provides that the Charter applies where the entity is 'government' by its very nature or because the government exercises substantial control over it, or where the entity performs 'governmental activities', being activities that are governmental in nature.
The parties agreed that VANOC is not a government entity, so the key question was whether the activities undertaken by VANOC are 'governmental activities' that are subject to the Charter. The Court of Appeal held that, when determining this question, it is necessary to consider the 'nature or function of the specific act or decision of the entity that is said to infringe a Charter right', as well as the general activities or functions of the entity. As a result, the Court went further than considering the function of hosting and staging the games, and considered specifically whether selecting events for the games was a governmental function or obligation. The Court held that this function was not a 'policy' choice or governmental activity. In arriving at this decision, the Court placed much weight on VANOC's lack of authority to set the program for the Winter Olympics within the IOC framework, implicitly accepting that VANOC also lacked responsibility for setting the Games program.
The Court of Appeal rejected the Appellants' claim of discrimination on the basis that the Charter did not apply to the decision not to include a women's ski jumping event in the 2010 Games. Nonetheless, the Court continued to consider and dismiss the Appellants' contention that this decision denied them the equal benefit of the law, as guaranteed by s 15(1).
The Appellants' greatest challenge was to demonstrate that the unequal benefit (the availability of men's jumping, but not women's) was a product in some way of the 'law'. The Court held that for the purposes of s 15(1) of the Charter, an action or provision will typically be considered 'law' only if its validity derives from statutory authority or in some instances from the ordinary powers of the Crown. The Court held that in this instance, VANOC
…is a private corporation with the powers of an ordinary person. It is not an agent of the Crown. It has no authority to undertake its duties under the Host City Contract without the need for additional powers delegated by the Crown.
The Court further commented that this was not the case of a governmental body attempting to circumvent the Charter by exercising its power through contract instead of legislation. Rather this is a case in which a non governmental body is brought before the court as a result of policies which neither it nor any Canadian authority had the power to change. As a result the Court held that even if the Charter applied to VANOC in respect of the impugned conduct, the Appellants' claims under s 15(1) could not succeed because the availability of ski jumping events at the 2010 Games is simply not a 'benefit of the law' for purposes of s 15(1).
Relevance to the Victorian Charter
Section 6 of the Victorian Charter provides that the Charter applies to certain functions of Parliament, courts and tribunals and to public authorities, including entities that have functions of a public nature when exercising those functions on behalf of the State or a public authority. The scope of the Charter's application could be significantly curtailed by adopting the approach of the Court of Appeal in this case, particularly the deference shown to the rules of international organisations such as the IOC.
In similar terms to s 15(1) of the Canadian Charter, s 8(3) of the Victorian Charter protects the right to equality before the law and equal protection of the law without discrimination. Section 8(2) of the Victorian Charter further protects the right to enjoyment of human rights without discrimination. It is therefore possible that the decision not to include a women's ski jumping event would be considered discriminatory under s 8(3) of the Victorian Charter.
The decision is available at http://www.canlii.org/en/bc/bcca/doc/2009/2009bcca522/2009bcca522.html.
Melanie Schleiger is a lawyer with Lander & Rogers. Jack Haldane is a law student at Deakin University.