McKinney et al. v University of Guelph et al.

McKinney et al. v University of Guelph et al.
Citation	McKinney et al. v University of Guelph et al., [1990] 3 SCR 229
Appellants	David Walter McKinney, Jr., Horacio Roque-Nunez, Syed Ziauddin, John A. Buttrick, Bernard Blishen, Tillo E. Kuhn, Ritvars Bregzis, and Norman Zacour
Respondent	The Board of Governors of the University of Guelph and the Attorney General for Ontario
Year	1990
Court	Supreme Court of Canada
Judges	Dickson CJ and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, and Cory JJ
Country	Canada
Area of law	Application of the Charter
Issue	Are universities "government"?

Facts

The appellants were teachers at the University of Guelph who were forced to retire at the age of 65. They claimed that this was a violation of s.15 of the Charter, and that because universities are a part of the "government", the Charter applies. They also claimed that s.9(a) of the Ontario Human Rights Code (now s.10(a), as amended), which defines "age" as between 18 and 65 years old, violates s.15.

Issue

1. What constitutes a government actor pursuant to section 32 of the Charter?

Decision

Appeal dismissed.

Reasons

La Forest, writing for the majority, decides that universities do not fall under the definition of "government", and therefore that they are not subject to Charter scrutiny. They argue that although the universities receive large amounts of government funding, they are meant to operate autonomously. Further, this specific action – negotiating with employees, is in no way a government action. Although the universities are founded by governing statutes, these pieces of legislation say nothing about the agreements struck between the universities and their employees. Although it is possible that some university actions could fall under the Charter, these actions do not. The majority also decides that although s.9(a) of the Code violates s.15 of the Charter, it is saved by s.1.

L'Heureux-Dube agrees that universities are not government, however she does not believe that s.9(a) of the Code is saved by s.1 of the Charter, and that it should be deemed unconstitutional.

Wilson, in a separate dissenting judgment, says that enough is enough and that a test must be outlined for determining if something falls under the definition of "government". She reviews the three tests that have been used for this purposes, and develops her own three-part test for determining if an entity falls under the definition of "government":

1. Does the legislative, executive or administrative branch of government exercise general control over the entity in question? (control test)
2. Does the entity perform a traditional government function, or a function which in more modern times is recognized as a responsibility of the state? (government function test)
3. Is the entity one that acts pursuant to statutory authority specifically granted to it to enable it to further an objective that government seeks to promote in the broader public interest? (statutory authority and public interest test)

When she applies this test to the case at bar she determines that universities pass all three of the tests. She says that pass the first part because they could not operate without the funding that they are given, and that they only exist through enabling statutes. They pass the second step because it has always been a function of the Canadian government to promote education and freethinking in the country. They pass the third part because, by giving the universities these powers, the government is asking them to make decisions that are in promotion of the public interest. However, she makes it clear that simply passing one part of the test will not always lead to something being deemed as "government".

Ratio

• Universities are not "government", at least in their negotiations with their employees, and therefore the Charter does not apply to these actions.
• Some university actions that are directly related to the powers given to them in their governing statutes might be considered "government" actions and subject to the Charter.
• To be deemed to be "government", the government must control you.