Douglas/Kwantlen Faculty Assn. v. Douglas College [1990] 3 S.C.R. 570

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.

Per Dickson C.J. and La Forest and Gonthier JJ.: The college was a Crown agency established by the government to implement government policy. It was simply in form and in fact part of the apparatus of government. The government may permit the college board to exercise a measure of discretion but it not only appoints and removes the board at pleasure but also may at all times by law direct its operation. The college was performing acts of government in carrying out its function. The actions of the college in the negotiation and administration of the collective agreement were those of the government for the purposes of s. 32 of the Charter. It was (page 572) quite unlike the universities which managed their own affairs.

For reasons discussed in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, the collective agreement is law. It was entered into by a government agency pursuant to powers granted by statute in furtherance of government policy. The fact that the faculty association agreed to it did not alter the fact that it had been entered into by government pursuant to statutory power and so constituted government action. To permit government to pursue policies violating Charter rights by means of contracts and agreements with other persons or bodies cannot be tolerated.

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