Court of Appeal File No.CA037306
Supreme Court File No. S083619 Supreme Court Registry Vancouver COURT OF APPEAL ON APPEAL FROM: the Order of Madam Justice Fenlon of the Supreme Court of British Columbia pronounced the 10th day of July, 2009, at Vancouver, British Columbia BETWEEN: ANETTE SAGEN, JENNA MOHR, LINDSEY VAN, JESSICA JEROME, ULRIKE GRASSLER, MONIKA PLANINC, MARIE-PIERRE MORIN, KARLA KECK NATHALIE DE LEEUW, KATHERINE WILLIS by her Litigation Guardian JAN WILLIS, JADE EDWARDS, ZOYA LYNCH by her Litigation Guardian SARAH LYNCH, CHARLOTTE MITCHELL by her Litigation Guardian MIRIAM MITCHELL and MEAGHAN REID by her Litigation Guardian NINA HOOPER-REID APPELLANTS (PLAINTIFFS) AND: VANCOUVER ORGANIZING COMMITTEE FOR THE 2010 OLYMPIC AND PARALYMPIC WINTER GAMES RESPONDENT (DEFENDANT)
APPELLANTS’ FACTUM
APPELLANTS
RESPONDENT
D. Ross Clark, Q.C. Jeffrey D. Horswill
Davis LLP Barristers & Solicitors 2800 Park Place 666 Burrard Street Vancouver, BC V6C 2Z7 Tel.: 604.687.9444 Fax: 604.687.1612
G. K. Macintosh, Q.C. Tim A. Dickson
Farris Vaughan Wills & Murphy 2500 - 700 West Georgia Vancouver, BC V7Y 1B3 Tel: 604.684.9151 Fax: 604.661.9349
INDEX
CHRONOLOGY ............................................................................................................... i OPENING STATEMENT ................................................................................................ iii PART 1 STATEMENT OF FACTS .................................................................................. 1 PART 2 ERRORS IN JUDGMENT……………………………………………………………5 PART 3 ARGUMENT ...................................................................................................... 6 PART 4 NATURE OF ORDER SOUGHT...................................................................... 17 APPENDIX A - Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 ............................................................................................................................... 18 APPENDIX B - The Constitution Act, 1982, s. 52 ...................................................... 35 LIST OF AUTHORITIES ............................................................................................... 42
ii
CHRONOLOGY
1924 1925 1998
Men’s ski jumping included in the Olympics. First men’s ski jumping world championships. The International Ski Federation (“FIS”) first recognizes women’s ski jumping with sanctioned junior world championships and the establishment of a Gran Prix series of competitions. Vancouver 2010 Bid Corporation (“BidCorp”) is incorporated by the Mayor of Vancouver, British Columbia’s Minister of Small Business, Tourism and Culture, and a local businessman and given the mandate of preparing Vancouver’s bid for the 2010 Games. BidCorp members include Vancouver, Whistler and British Columbia. Canada becomes a member of BidCorp. Multiparty Agreement signed by BidCorp, Canada, British Columbia, Vancouver, Whistler, the COC and the Canadian Paralympic Committee (the “CPC”), providing for the establishment of Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“VANOC”) and setting out the roles and responsibilities of each of the parties in relation to the 2010 Games. Vancouver’s bid book and guarantee file for the 2010 Games is submitted to the IOC. Vancouver is selected as the Host City for the 2010 Games by the IOC. The City of Vancouver and the COC sign the Host City Contract with the IOC. VANOC is incorporated by Vancouver and the COC. VANOC enters the Host City Contract Joinder Agreement with the IOC. VANOC becomes bound by the Multiparty Agreement and Bid City
June 11, 1999
November 2001 November 14, 2002
January 2003
July 2, 2003
September 2003 October 30, 2003 December 23,
i
2003
Agreement by signing assignment and assumption agreements with BidCorp to assume is obligations. FIS establishes Continental Cup circuit for women’s ski jumping. FIS votes 114-1 to approve a request to the IOC that women’s jumping be added to the program for the 2010 Games. Olympic Program Commission recommended to the IOC executive board that women’s ski jumping not be staged as an event in the 2010 Games. Walter Sieber, a member of VANOC’s board of directors is on this Program Commission. Members of the Women’s Canadian Ski Jumping Team wrote to VANOC asking it to support the inclusion of women’s ski jumping as an Olympic event. VANOC sends a letter to the IOC in support of including women’s ski jumping. IOC Executive Board decides not to include women’s ski jumping in the 2010 Olympic program. The IOC does not make any adjustments with respect to its directions to VANOC regarding the men’s events and VANOC provides no response in this regard. The Canadian National Championships for ski jumping are held at Whistler Olympic Park. American Lindsay Van sets what remains the current record by either men or women for both distance and overall points on the Normal Hill. She is also the best American finisher in the men’s competition on the Large Hill. VANOC completes construction of Whistler Olympic Park, the ski jumping venue for the 2010 Games at a cost of approximately $122 million, paid for jointly by the Governments of Canada and British Columbia. Writ and Statement of Claim are filed. Notice of Appeal is filed. 2010 Games staged by VANOC in Vancouver and Whistler, British Columbia.
2004 May 2006
November 2006
November 20, 2006
November 24, 2006 November 28, 2006
January 2007
November 2008
May 21, 2008 July 21, 2009 February 12 -28 2010
ii
OPENING STATEMENT
The Appellants appeal from a decision of the Honourable Madam Justice Fenlon denying them a declaration that the Respondent VANOC’s planning, organizing, financing and staging of ski jumping events only for men, and not for women, during the 2010 Games violates the Appellants’ equality rights as guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms.
The Judge accepted: that the planning, organizing, financing and staging of the 2010 Olympic Games is, by its nature, a uniquely governmental activity; that VANOC is subject to the Charter with respect to that activity; that the planning, organizing, financing and staging of a ski jumping event is a “benefit of law” for the purposes of s. 15; and, that the exclusion of women’s ski jumping from the 2010 Games discriminates against the Appellants for the purposes of s. 15. Nonetheless, she concluded that VANOC’s planning, organizing, financing and staging of men’s events alone is not in breach of the Appellants’ s. 15 rights – because the decision to exclude or include women’s jumping is, contractually, that of the IOC.
The Judge hinged her conclusion on the fact that VANOC cannot, by itself, stage an Olympic women’s event that would remedy the discrimination. But that was not the issue, nor was it the remedy sought by the Appellants. discrimination initiated by the IOC. constitutional rights. By planning, organizing, financing and staging only men’s ski jumping events, VANOC puts into effect the It is that effect that violates the Appellants’
The result of the trial decision is to remove a governmental activity from the protection of the Charter, simply by an arrangement that the activity be carried out by a private entity and made subject to direction from a non-governmental third party. But the Charter cannot be avoided by contract.
iii
1
PART 1 STATEMENT OF FACTS Introduction
1.
The Appellants are elite women ski jumpers. The Respondent Vancouver
Organizing Committee for the 2010 Olympic and Paralympic Winter Games ("VANOC") is the legal entity responsible for planning, organizing, financing and staging (collectively, “hosting”) the 2010 Winter Olympic and Paralympic Games (the “2010 Games” or “Games”). VANOC is working towards hosting three ski jumping events for men during the 2010 Games, but none for women.
Appeal Record (“AR”), pp. 31-32 (Reasons for Judgment (“RFJ”), paras. 1 and 2)
2.
VANOC itself is a not for profit corporation created by the Governments of
British Columbia, Canada, Vancouver and Whistler (collectively, the “Governments”), along with the Canadian Olympic Committee (the “COC”) under the Canada Corporations Act.
Appellant’s Condensed Appeal Book (“ACB”), p. 110 (Furlong Affidavit, para. 20) ACB, Chambers Record, Vol. 6, Tab 18, pp. 1760-61 (Furlong Affidavit, Ex. 18 (Multiparty Agreement, ss. 2-3))
3.
VANOC’s mandate is to host the 2010 Games this mandate was given to
VANOC in an agreement between the Governments and COC prior to the City of Vancouver being selected as the host of the 2010 Games and VANOC’s incorporation.
AR, pp. 31-33, 43, 46-47, 50 (RFJ, paras. 2, 9, 35, 44 and 58) ACB, pp. 121-22 (Furlong Affidavit, paras. 46-49) ACB, Chambers Record, Vol. 6, Tab 16, p. 1690 (Furlong Affidavit, Ex.16 (Host City Contract, ss. 1-3)) ACB, Chambers Record, Vol. 5, Tab 3, pp. 1419-20, 1435-36 (Furlong Affidavit, Ex. 9(3) (Assignment and Assumption Agreement, Multiparty Agreement, s. 11. 4(a)))
1
2
ACB, Chambers Record, Vol. 5, Tab 9, p. 1558 (Furlong Affidavit, Ex. 9(9) (Host City Contract Joinder Agreement)
4. Games.
It is VANOC that is hosting the men’s ski jumping events in the 2010
ACB, Chambers Record, Vol. 6, Tab 16, pp. 1694, 1696-97, 1699-1703 (Furlong Affidavit, Ex.16 (Host City Contract, ss. 14,18, 22, 27-29, 32-33))
5.
The Appellants compete against each other, and numerous other elite
female ski jumpers in ski jumping events sanctioned by the International Ski Federation (“FIS”) which governs the various disciplines of skiing. The FIS only sanctions top level women’s events on what is called the “Normal Hill”. There are elite male ski jumpers who compete against each other in ski jumping events sanctioned by FIS on both the Normal Hill and Large Hill, which are included in the Olympics and on “ski flying hills”, which are not.
ACB, pp. 141-42 (Sieber Affidavit #1, paras. 19-20) AR, p. 61 (RFJ, para. 94)
6.
Male ski jumpers have competed in the Winter Olympics since they began
in 1924. Female ski jumpers have never competed in the Olympics.
AR, p. 61 (RFJ, para. 94)
7.
In the proceedings below, the Appellants sought the following declaration:
If VANOC plans, organizes, finances and stages ski jumping events for men in the 2010 Winter Olympic Games, then a failure to plan, organize, finance and stage a ski jumping event for women violates their equality rights, as guaranteed in section 15(1) of the Canadian Charter of Rights and Freedoms, and is not saved under s. 1.
AR, p. 32 (RFJ, para. 3)
8.
Only the International Olympic Committee (“IOC”) has the authority to add
women’s ski jumping events to the Games. The Appellants acknowledge that in order
3 to comply with the declaration sought, VANOC will have to refuse to host the men’s events, unless and until the IOC decides to add women’s events.
AR, Tab pp. 32, 66 (RFJ, paras. 5 and 110-112)
Points accepted by the Judge
9.
The Judge held that hosting the 2010 Games is a uniquely governmental
activity for purposes of s. 32 of the Charter. Accordingly, the Charter applies to VANOC in respect of its hosting of the 2010 Games.
AR, pp. 48-52 (RFJ, paras. 51-53, 56-65)
10.
The Judge found that a benefit under a contract for the delivery of
services in respect of a governmental activity is a “benefit of the law” for the purposes of s. 15 of the Charter. Thus, having an event hosted by VANOC as part of the 2010 Games is a “benefit of the law”.
AR, pp. 33-34, 53-54 (RFJ, paras. 9, 69-72)
11.
The Judge found that the Appellants are subject to differential treatment
because there are Olympic ski jumping events for men but not for women. The Appellants’ exclusion is due to their sex. She concluded that “the differential treatment of the plaintiffs . . . discriminates against the plaintiffs in a substantive sense.”
AR, pp. 53, 55, 59, 64 (RFJ, paras. 67, 75, 89, 90 and 103)
12.
Finally, the Judge concluded that even though the Charter applied to
VANOC, and even though the Appellants were substantively discriminated against, there was no breach of s. 15: VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women’s ski jumping from the 2010 Games. …
4 In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.
AR, pp. 68-69 (RFJ, paras. 121 and 123)
5 PART 2
ERRORS IN JUDGMENT
13.
Having found that:
(a)
VANOC is carrying out a government activity in hosting the Games,
(b)
the hosting of ski jumping events for the Games is a benefit of the law,
(c)
VANOC is hosting ski jumping events for men but not for women, and
(d)
this differential treatment of the Appellants discriminates against them in a substantive sense,
the Trial Judge erred in law when she further concluded that the Appellants’ rights under s. 15(1) of the Charter are not violated by VANOC’s hosting of only men’s ski jumping events, and that they are not entitled to a declaration to that effect.
6
PART 3 ARGUMENT
Introduction: overview of argument
14.
Section 15(1) of the Charter guarantees the equality rights of every Here, the Judge found that the Appellants are being
individual without discrimination. The violation of such rights through a governmental activity is unconstitutional. discriminated against within the meaning of s. 15(1) by the governmental activity carried out by VANOC. All the elements of a s. 15(1) violation had thus been made out, and the Appellants were entitled to a declaration that their Charter rights are being violated.
15.
The Judge fell into error by holding that the Appellants had failed to show But that additional requirement was not
that VANOC was “in breach of s. 15(1)”. 15(1).
necessitated by the declaration sought by the Appellants, nor was it required by s.
16.
The Trial Judge’s error was based on her fundamental misunderstanding
of the Appellants’ position and the relief sought. She considered whether the Court could order VANOC to host an Olympic ski jumping event for women, and her analysis proceeded on that basis. This, however, was critically wrong. The Appellants have acknowledged that VANOC does not have the authority to host an Olympic event unless the IOC directs it to do so. The Appellant’s position was, and still is, that since the Charter prohibits VANOC from hosting an unconstitutional ski jumping event as part of the 2010 Games, VANOC must therefore refuse to do so.
7 The violation of the Appellants’ equality rights is unconstitutional
17.
The Charter is the supreme law of Canada. To be legally valid, any state
activity must be consistent with the Constitution, including the Charter. This must apply equally to a private entity that is subject to the Charter by virtue of carrying out a government activity.
Constitution Act, s. 52
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 at 585, para. 18 McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 277, para. 50 citing Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 459
18.
VANOC is the Canadian corporation that is hosting the 2010 Games. As
the Judge found, this is a rare but uniquely governmental activity. The fact that the Governments created VANOC as a private entity to deliver the Games does not change that. Neither does the fact that they were directed to do so by the IOC. AR, pp. 50-51 (RFJ, paras. 56-58, 63) 19. VANOC has a contract with the IOC, a Swiss corporation beyond the
reach of the Charter, which reserves to the IOC the right to choose the Olympic events for the 2010 Games. The IOC has directed VANOC to stage three men’s ski jumping events, but none for women. Consequently, VANOC is preparing ski jumping events for men but not for women.
20.
Section 15(1) of the Charter guarantees equality rights on these terms:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on . . . sex . . .
8 21. A violation of s. 15(1) is made out once the claimant proves the following:
…first, whether there is unequal treatment under the law: and second, whether the treatment is discriminatory. The legal analysis is complete once these requirements are met.
Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at paras. 20-21
22.
In the present case, the Trial Judge found all the elements necessary to
establish that the Appellants’ s. 15 rights are being violated. She found that:
(a)
the Appellants are being deprived of a “benefit of the law”, namely, the opportunity to participate in the 2010 Games (AR, p. 55 (RJF, paras. 73, 75));
(b)
the Appellants are being treated unequally when compared to male ski jumpers, and this unequal treatment is based on their sex (AR, p. 55 (RJF, para. 75)); and
(c)
this unequal treatment discriminates against the Appellants in a substantive sense (AR, pp. 32, 59, 64 (RJF, paras. 7, 90, 103)).
23.
It is submitted that nothing further is required by s. 15(1) to show
unconstitutionality: in law, VANOC’s hosting of ski jumping events for men and not for women is a breach of the Charter.
9 VANOC is prohibited from staging unconstitutional ski jumping events
24.
No precedent or principle supports the Judge’s conclusion that even
though VANOC is carrying out a governmental activity that discriminates against the Appellants within the meaning of s. 15(1), that activity is “not in breach of the Charter”.
25.
The Judge appears to have based her analysis of this issue on her
understanding of the remedy she thought the Appellants were seeking. Insofar as this confuses right and remedy, it will be addressed below. More importantly, however, the Judge’s understanding of the Appellants’ position was fatally flawed.
26.
The Appellants’ position is, and always has been as follows. Hosting ski
jumping events by VANOC during the 2010 Games is a governmental activity that must comply with the Charter. By hosting ski jumping events for men, but not for women, VANOC is providing a benefit of the law that discriminates on the basis of sex. This is unconstitutional.
27.
The Appellants appreciate that VANOC does not have authority to cure
that unconstitutionality by adding a women’s event without the consent of the IOC. However, VANOC has the option – and indeed the constitutional duty as a corporate entity carrying out a state activity – to avoid violating the Charter by refusing to stage the men’s ski jumping events.
28.
The Appellants would, of course, prefer that the IOC authorize a women’s
ski jumping event as a result of a declaration that their equality rights are being violated. Should that not happen, however, the Appellants insist on their right to equal treatment under s. 15. Accordingly, they take the position that VANOC must refrain from violating the Charter by refusing to put on the discriminatory men’s events.
10 29. The Judge initially appreciated that this was the Appellants’ fundamental
position. She said at para. 5 of her reasons: The plaintiffs acknowledge that VANOC does not have the authority to add Olympic ski jumping events for women to the Olympic Programme. They agree that if the declaration is granted, the only way that VANOC could comply with the Court’s decision would be to refuse to host the men’s ski jumping events. 30. It was for this reason that the Appellants sought the following declaration:
If VANOC plans, organizes, finances and stages ski jumping events for men in the 2010 Winter Olympic Games, then a failure to plan, organize, finance and stage a ski jumping event for women violates their equality rights as guaranteed in s. 15(1) of the Canadian Charter of Rights and Freedoms, and is not saved under s. 1. AR, p. 32 (RJF, para. 3) 31. The Judge’s misunderstanding of the Appellants’ position becomes
evident after para. 103 of her reasons. The concept of VANOC having an obligation to refuse to stage the men’s events is not found in her reasoning. Instead, her analysis reflects a misconception that the Appellants were contending that VANOC is under an obligation to put on a women’s ski jumping event, as evident in the following paragraphs of her decision (emphases added): [106]. . . the plaintiffs must show that they are being denied the benefit of VANOC’s organizing, planning, and staging of the Games under the Multiparty Agreement and Host City Contract because VANOC has not organized, planned, and staged a ski jumping event for women. [108]. . . They say that VANOC must hold an Olympic ski jumping event for women in order to provide the plaintiffs with equal benefit of the Multiparty Agreement. [113] . . . The plaintiffs say that VANOC cannot do this and, in order to comply with s. 15 of the Charter, must disregard the direction of the IOC and plan, organize, finance, and stage a ski jumping event for women. . . [114] The plaintiffs say that in order to protect their human dignity interest (“their interest in not having their accomplishments, perseverance, efforts
11 and athleticism demeaned and ignored”), VANOC is required to extend the scope of the benefit it offers by “organizing, and planning” the 2010 Games to include a ski jumping event for women. [123] In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control. 32. The Judge thus addressed the wrong issue, and she failed to address the
real issue, which is whether VANOC is prohibited by the Charter from hosting the discriminatory men’s ski jumping events. Therefore, her conclusion that VANOC is not “in breach of the Charter” cannot, with respect, be sustained.
33.
VANOC’s discrimination against the Appellants is both significant and
extensive. Hosting the men’s ski jumping events involves a myriad of activities that VANOC has undertaken to ensure that male jumpers are able to compete at the 2010 Games. Examples include the following: constructing the ski jumps at Whistler Olympic Park for use during the 2010 Games; making Whistler Olympic Park available; putting the three men’s events on the schedule for the 2010 Games; transporting athletes and their teams from their home countries to Vancouver and back again; transporting the officials that make ski jumping events possible from their home countries to Vancouver and back again; providing room and board to the jumpers and officials during the Games; providing seats to male ski jumpers at the opening ceremonies so they may be recognized as Olympians; conducting medal ceremonies for the top three finishers of the men’s events and providing them with medals so they may be recognized as champions; providing the athletes’ transportation to and from the men’s ski jumping events; distributing tickets for the men’s ski jumping events to provide an audience for the male athletes to perform for; providing an opportunity for male ski jumpers to take part in the 2010 Games more broadly by providing them tickets to other events; and ensuring that male ski jumpers are provided medical and
12 security services so they may attend at and compete in the Games safely. None of these activities are being undertaken for women ski jumpers.
ACB, Chambers Record, Vol. 6, Tab 16, pp. 1694, 1696-97, 1699-1703 (Furlong Affidavit, Ex.16 (Host City Contract, ss. 14,18, 21-23, 27-29, 32-33)) ACB, Chambers Record, Vol. 6, Tab 18, p. 1763 (Furlong Affidavit, Ex. 18 (Multiparty Agreement s. 11))
34.
VANOC does not engage in any of the above noted activities to the
benefit of women. VANOC thus discriminates against the Appellants each time it does or makes plans to do any one of these things instead of refusing to do so (unless of course it is also authorized by the IOC to undertake them for the benefit of women).
35.
It is only as a result of VANOC’s activities listed above (among others)
that male jumpers will be provided the opportunity to prove themselves on the world stage in the 2010 Games. Unless VANOC also undertakes each of these activities to the benefit of women, the Appellants will be denied this opportunity. VANOC’s actions thus lead directly to the discriminatory differential treatment of which the Appellants complain, and VANOC has the ability to remedy that discrimination by refusing to undertake them only for men.
The IOC’s decision is irrelevant
36.
Apart from her misconception of the Appellants’ position, the Judge erred
also in basing her conclusion on a “general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend . . .” (AR, p. 69 (RJF, para. 124)). Canadian law recognizes no such principle.
37.
The Judge acknowledged that there is “something distasteful” about the
principle she had formulated. It is that and more: it is contrary to the well-settled
13 principle applied by the unanimous Supreme Court of Canada Eldridge that all government actions are subject to Charter scrutiny: . . . the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that actually implements the program, it is government that retains responsibility for it. The rationale for this principle is readily apparent. Just as governments are not permitted to escape Charter scrutiny by entering into commercial contracts or other "private" arrangements, they should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities. …
Eldridge, supra Lavigne v. Ontario Public Service Employees Union, [1991] 2 SCR 211 (paras 312-314, 324, 329-330 and 332-333 and see 232-249, 304-316, 341, 342)
38.
The notion that a Canadian corporate entity should be able to carry out a The fact that discriminatory conduct is
government activity in violation of constitutional rights, simply because a contractual partner tells it to do so, is remarkable. undertaken pursuant to a decision made by another is not a defence for that conduct; the conduct still amounts to discrimination. To offer a stark example: if X instructs Y not to serve aboriginals, and Y refuses service to aboriginals pursuant to that instruction, the existence of the instruction does not render Y’s conduct nondiscriminatory; discriminatory. rather, the instruction and carrying out the instruction are both
39.
In this case, it is not that VANOC is unable to avoid violating the it has the option to refuse to give life to the IOC’s
Appellant’s equality rights:
discriminatory decision. More importantly, though, it has the obligation to do so. All citizens, whether corporate or individual, are obliged to refrain from activities that violate the law.
14 40. If this puts VANOC at risk of breaching its contract with the IOC, so be it.
The supreme law of Canada necessarily trumps VANOC’s contractual commitments with respect to directing the delivery of a government activity in Canada.
41.
The Judge relied on Auton for the “general principle” that “a party should
only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend.” But Auton articulates no such principle.
Auton, supra
42.
The petitioners in Auton were autistic children. They claimed that the
government had violated their s. 15 rights by failing to fund a particular form of treatment. The decision of the Supreme Court of Canada focused on whether the claim advanced involved a “benefit of the law” for the purposes of s. 15 and whether differential treatment had been established through the identification of a comparator group receiving the benefit claimed – issues that the Trial Judge in the present case had already resolved in favour of the Appellants.
43.
Because the treatment sought re was not a “benefit of law”, and no
comparator group could be identified, differential treatment was not established. The Court’s analysis thus never proceeded to whether there was discrimination and hence a violation of the petitioners’ Charter rights. Auton was thus irrelevant to the question that faced the Judge here, namely, whether VANOC could hide behind the IOC to excuse its own discrimination against the Appellants.
Auton, supra at para. 63
44.
The Medical Services Commission in Auton could not order funding for
the treatments demanded by the claimants, because “British Columbia’s law governing non-core benefits did not provide the benefit that the petitioners were seeking.” As McLachlin J., for the Court, concluded, “the benefit claimed, no matter how it is viewed, is not a benefit provided by the law.” This is nothing like the situation of VANOC here. VANOC is providing a benefit of the law by hosting events.
15
Auton, supra at paras. 37, 47
45.
Furthermore, the claim in Auton failed because neither the claimants nor
the Court were able to find an appropriate comparator group that was provided the benefit claimed. Because of this flaw in the claim, “differential treatment either directly or by effect [was] not established,” and the claim failed. This again is nothing like the present case, where differential treatment of an appropriate comparator - the hosting of ski jumping events for males - is established.
AR, p. 55 (RFJ, para. 75) Auton, supra at paras. 55-58
The remedy sought by the Appellants
46.
The declaration sought by the Appellants gives full effect to the “purposive
approach to remedies in a Charter context” that has been mandated by the Supreme Court of Canada. As the Court has said, this gives “modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy.”
Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 25
47.
The Appellants did not seek an injunction ordering VANOC to either stage
women’s ski jumping events or cancel the men’s events. They seek only a declaration that VANOC’s staging of men’s ski jumping events violates the Appellants’ equality rights. Declaratory relief is by its nature flexible, as it allows the court to make a declaration regarding the litigants’ rights, while affording the breaching party the flexibility to fashion a response suited to the circumstances.
Mahe v. Alberta, [1990] 1 S.C.R. 342 at 392-93
48.
The across-the-board discontinuance of a benefit (here, the staging of the
men’s ski jumping events) is in any event an unremarkable remedy in a Charter case involving the under-inclusive provision of a benefit. Courts faced with under-inclusive
16 legislation do not generally order the inclusion of the excluded group because it is not the court’s function to determine how the government spends its money. Rather, the court will declare the legislation unconstitutional and leave it to government to enact new legislation that complies with the Charter.
Schachter v. Canada, [1992] 2 S.C.R. 679 at 721-25; paras. 92-99
49.
The remedy sought here is a non-legislative analogue to that situation.
The declaration sought in this case will oblige VANOC to discontinue its discriminatory activity. The Appellants do not ask the Court to determine which sports are to be included in the Olympics – that is not its role, nor is it VANOC’s. But it is for the Court to see that the Hosting of the Games, and in particular the ski jumping events complies with the Charter, and to declare it invalid if it does not.
Hoogbruin v. A.G. B.C., [1986] 2 W.W.R. 700 (B.C.C.A) at 704-05
17
PART 4 NATURE OF ORDER SOUGHT 50. The Appellants ask this Court to allow their appeal with costs throughout,
and to grant the declaration requested.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
D. ROSS CLARK, Q.C. JEFFREY D. HORSWILL COUNSEL FOR THE APPELLANTS
August 24, 2009 Vancouver, BC
18
APPENDIX A
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35 APPENDIX B
36
37
38
39
40
41
42
PART 2 LIST OF AUTHORITIES CASES PARA
21, 41, 42, Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 43, 44, 45 SCC 78, [2004] 3 S.C.R. 657 Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 S.C.C. 62 46 [2003] 3 S.C.R.3........................................................................................... Douglas/Kwantlen Faculty Assn. v. Douglas College [1990] A.C.J. No. 17 124 ............................................................................................................... Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 37
Hoogbruin v. A.G.B.C. [1986] 2 W.W.R. 700 ............................................... 49 Lavigne v. Ontario Public Service Employees Union [1991] 2 SCR 211...... 37 Mahe v. Alberta [1990] 1 S.C.R. 342 ........................................................... 47 McKinney v. University of Guelph, [1990] 3 S.C.R. 299............................... 17 Schachter v. Canada, [1992] 2 S.C.R. 679 .................................................. 48
Davis:5369307.1