Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 R.C.S. 570: Granting of remedy by tribunals

Douglas College was one of the colleges in a system of post-secondary education operated by British Columbia through the College and Institute Act. A college once designated under the Act became a corporation and was for all purposes an agent of the Crown and could only exercise its powers as such. It was subject to direct and substantial control by the Minister. Its board was appointed by the Lieutenant Governor in Council at (page 571) pleasure and its annual budget was submitted to the Minister for approval. The Minister was empowered to establish policy or issue directives regarding post-secondary education and training, to provide services considered necessary, to approve all by-laws of the Board and to provide the necessary funding.

The collective agreement, which was governed by the Labour Code and came into effect after the commencement of the Canadian Charter of Rights and Freedoms, provided for mandatory retirement at age 65 (Article. 4.04). Two faculty members who were about to be retired filed a grievance challenging Article 4.04 as violating s. 15(1) of the Charter. The arbitrator appointed pursuant to the collective agreement held, in a preliminary award, that the college was a Crown agency subject to the Charter and that any action taken by it, including the collective agreement, constituted a "law" within the meaning of s. 15(1) of the Charter. This preliminary award did not deal with whether Article 4.04 of the collective agreement was justified under s. 1 or whether the association was estopped from claiming the benefits of the Charter. An appeal to the British Columbia Court of Appeal was dismissed.

The constitutional questions before this Court queried: (1) whether the Charter applied to the negotiation and administration of the retirement provision in the collective agreement; (2) whether that provision or its application was "law" as that term is used in s. 15(1) of the Charter; (3) whether the arbitration board appointed to resolve a grievance disputing the constitutionality of that provision was a court of competent jurisdiction under s. 24(1) of the Charter; (4) whether the arbitration board had jurisdiction to hear and determine such a grievance.

Held: The appeal should be dismissed.

At 594: Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the provisions of the Constitution of Canada – the supreme law of the land -- is, to the extent of its inconsistency, of no force or effect. A tribunal must respect the Constitution so that if it finds invalid a law it is called upon to apply, it is bound to treat it as having no force or effect.

Where, however, a tribunal is asked to determine whether Charter rights have been infringed or to grant a remedy under s. 24(1), the situation is different. A tribunal's power is that conferred by its statutory mandate.

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