COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games,

COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games,

2009 BCCA 522
Date: 20091120
Docket: CA037306
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 2010Olympic and Paralympic Winter Games
Respondent
(Defendant)
Before:
The Honourable Madam Justice Rowles
The Honourable Mr. Justice Frankel
The Honourable Mr. Justice Groberman
On appeal from the Supreme Court of British Columbia, July 10, 2009,
(Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCSC 942, S083619)
Counsel for the Appellants:
D.R. Clark, Q.C.
J. D. Horswill
M. B. Gehlen
Counsel for the Respondent:
G. K. Macintosh, Q.C.
T. A. Dickson
Place and Date of Hearing:
Vancouver, British Columbia
November 12 &13, 2009
Place and Date of Judgment:
Vancouver, British Columbia
November 13, 2009
Date of Reasons:
November 20, 2009
Written Reasons of the Court
Reasons for Judgment of the Court:
I. Introduction
[1] The appellants, all highly-ranked women ski jumpers, brought an application against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“VANOC”) seeking the following declaratory order:
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.
[2] There were two central issues in the court below: (1) under s. 32 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, does the Charter apply to the claim of gender discrimination advanced by the appellants against VANOC? (2) if so, then is VANOC breaching section 15(1) of the Charter by staging men’s, but not women’s, ski jumping events at the 2010 Olympic Games?
[3] The trial judge found that hosting and staging the 2010 Olympic and Paralympic Winter Games was a governmental activity being performed by VANOC and that VANOC was, therefore, subject to the Charter. Nevertheless, the judge dismissed the appellants’ application on the ground 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” (at para. 123). The judge’s reasons are indexed at 2009 BCSC 942.
[4] The error in judgment put forward by the appellants takes as its starting point two of the trial judge’s conclusions: (1) that VANOC is carrying out a governmental activity in hosting and staging the 2010 Games, and (2) that the staging of ski jumping events for the 2010 Games is a benefit of the law. The appellants submit that these conclusions are grounded in findings of fact entitled to deference. The error in judgment, as stated in the appellants’ factum, is as follows:
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.
[5] While VANOC supports the trial judge’s order dismissing the appellants’ application, it departs from the judge’s legal analysis to arrive at the same result.
[6] After hearing oral argument, we dismissed the appeal with reasons to follow. We have concluded that the Charter does not apply to the selection of events for the 2010 Olympic Games and that, even if the Charter did apply, the failure to include the women’s ski jumping event would not constitute a breach of s. 15(1). Our reasons for so concluding follow.
II. Background
[7] The Olympic Movement, which was founded in 1894, is the descriptor used to denote the organizations and individuals involved in the Olympic Games. The ultimate governing authority of the Olympic Movement is the International Olympic Committee (“IOC”), a non-governmental, not-for-profit organization with headquarters in Switzerland.
[8] The Olympic Charter, which codifies the Movement’s fundamental principles and rules, states:
The Olympic Movement is the concerted, organised, universal and permanent action, carried out under the supreme authority of the IOC, of all individuals and entities who are inspired by the values of Olympism. It covers the five continents. It reaches its peak with the bringing together of the world’s athletes at the great sports festival, the Olympic Games. Its symbol is five interlaced rings.
[Emphasis added.]
[9] The Olympic Movement includes International Federations (“IFs”), which administer sports at the world level and which actually run the events at the Olympic Games; National Olympic Committees (“NOCs”), which are non-governmental ambassadors of the Olympic Movement in each country and which select and manage each national team at the Olympic Games; and Organizing Committees (“OCOGs”), such as VANOC, which plan, organize, finance and stage their respective editions of the Games. All of these organizations are under the supreme authority of the IOC and must abide by the Olympic Charter. As one of the “Fundamental Principles of Olympism” in the Olympic Charter states: “Belonging to the Olympic Movement requires compliance with the Olympic Charter and recognition by the IOC.”
[10] Rule 6(3) of the Olympic Charter states that “[t]he authority of last resort on any question concerning the Olympic Games rests with the IOC.” Rule 7(1) of the Olympic Charter makes clear that ownership of the Olympics lies exclusively and firmly with the IOC. Not only does the IOC govern the Olympic Games, it also owns all of the intellectual property associated with them. The marketing of that brand through exclusive sponsorships, ticketing and broadcast revenues funds the Games.
[11] While it owns and controls the Olympic Games, the IOC does not itself organize them. Instead, the IOC chooses a Host City, and that City, along with the relevant NOC, is required to incorporate an OCOG, which in turn organizes the Olympic Games under the IOC’s direction. The IOC permits the OCOG to use the Olympic brand for this purpose, pursuant to a standard agreement known as a Host City Contract, which it requires each OCOG to sign.
[12] On 14 November 2002, the federal, provincial and two local governments (Vancouver and Whistler), the Canadian Olympic Committee, the Canadian Paralympic Committee and the Vancouver 2010 Bid Corporation entered into an agreement, the goal of which was to have Vancouver chosen as the Host City for the 2010 Games. That agreement, styled the Multiparty Agreement for the 2010 Winter Olympic and Paralympic Games (“Multiparty Agreement”), reflects various requirements of the IOC, and recognizes the supreme authority of the IOC in relation to the Games. The Multiparty Agreement requires incorporation of an OCOG to host and stage the Games should the bid be successful.
[13] On 2 July 2003, the IOC selected Vancouver as the Host City for the 2010 Games. After the bid was accepted by the IOC, VANOC was incorporated federally as a non-profit corporation responsible for staging those Games. On 20 October 2003, the City of Vancouver, the Canadian Olympic Committee and VANOC entered into the Host City Contract for the XXI Olympic Winter Games in the Year 2010 (“Host City Contract”).
[14] It is the marketing of the IOC’s intellectual property rights that pays for VANOC’s $1.75 billion operating budget. Through the licence granted to it by the IOC, VANOC is able to earn substantial sums in corporate domestic sponsorships and in ticketing. The IOC directly contributes approximately $450 million to VANOC in broadcast revenues and about $200 million from its international sponsorship program.
[15] The IOC closely controls OCOGs, including VANOC. Given that the IOC is licensing its intellectual property to OCOGs, such extensive control is not surprising. In paragraphs 35 to 40 of her reasons, the judge detailed some of that control. She found that the IOC exercises “day-to-day control” over VANOC and has “control over the minute details of VANOC’s operations in planning and staging the 2010 Games”.
[16] The “Olympic Programme” refers to the slate of sports, disciplines and events that are held during the Olympic Games. In the Olympic context, skiing is a sport, ski jumping is a discipline, and women’s 90-metre ski jumping is the event the appellants want added to the Programme.
[17] Rule 47 of the 2004 Olympic Charter provides that the IOC determines which sports, disciplines, and events are included in the Games. It does so seven years before the Games in respect of sports, and three years before the Games in respect of disciplines and events. The IOC’s Executive Board makes the decisions as to disciplines and events and does so on the advice of an expert Olympic Programme Commission.
[18] Rule 47 of the 2004 Olympic Charter, which was in force in November of 2006 when the IOC decided not to include women’s ski jumping in the Programme, sets out a number of criteria for the admission of sports, disciplines and events, including “universality”, which is the number of countries and continents in which they are practised. As the judge observed at paragraph 99 of her reasons, “Rule 47(3.3) recognizes the historical disadvantage of women in sports and provides a lower ‘universality’ standard for the inclusion of new women’s events than it does for new men’s events.” The IOC lowered the universality requirement for women because it generally aims “to encourage and support the promotion of women in sport at all levels and in all structures with a view to implementing the principle of equality of men and women”. The IOC has also implemented a number of other initiatives aimed at increasing women’s participation in sports in general and the Olympics in particular, and these have had positive results: as the judge found at paragraph 102, “women now compete in approximately 48% of the events at the Winter Olympics and the percentage of female athletes has steadily increased to just over 40%.”
[19] For the 2010 Games, the Olympic Programme Commission considered applications to add seven new events, including women’s ski jumping. A member of the Commission deposed that the Commission considered the gender equity aspect of the women’s ski jumping application, which the members of the Commission considered to be “a strong factor in favour of adding the event”. However, the Commission recommended adding only the event of ski cross. The Commission stated the following in respect of women’s ski jumping in its report to the Executive Board:
The Commission also recommended that, at this point, the events of Curling Mixed Doubles and Women’s Ski Jumping should not be included in the Programme as their development is still in an early stage thus lacking the international spread of participation and technical standard required for an event to be included in the programme.
[20] The IOC Executive Board accepted the Commission’s recommendations, including the recommendation not to include women’s ski jumping for 2010. The Board expressly noted in its press release, however, that “it would be closely following the development of Women Ski Jumping with a view of its inclusion in future Olympic Games.”
[21] There is no dispute that the IOC determines the Olympic Programme in respect of each Olympic Games. The OCOG for each of the Olympic Games, such as VANOC in respect of the 2010 Games, has no authority whatsoever to determine or alter the Programme. The Host City Contract stipulates that it is the IOC that sets the Programme. As the judge found, OCOGs, such as VANOC, are “charged with staging the events included in the Programme by the IOC”. It is clear that an OCOG has no right to add or remove events from the Programme.
[22] Not only do OCOGs have no legal authority to alter the Programme, they also have no practical power to do so either. While at one time OCOGs had some informal influence over the Programme, the creation of the expert Olympic Programme Commission has entirely removed it. Furthermore, as the trial judge observed, OCOGs have no power to unilaterally stage Olympic events that are not on the Olympic Programme for at least two reasons. First, an event not on the Olympic Programme would not be considered by spectators and the sporting community to be “Olympic” and nor would it be in fact. Second, the staging of Olympic events requires the efforts not only of the OCOG, but also of the relevant IFs, which actually run the competitions, and the NOCs, which select and send the national teams for the Games. The IFs and NOCs take direction only from the IOC.
[23] The trial judge’s finding that VANOC did not make the decision to exclude women’s ski jumping from the Games and that VANOC does not have the power to remedy it entirely accords with the evidence. Her finding (at paragraph 127) that “VANOC has no power either to order the inclusion of women’s ski jumping in the Olympic Programme or to order the removal of men’s ski jumping from the 2010 Games” also accords with the evidence.
III. Section 32 of the Charter
[24] Section 32(1) reads:
This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
[25] Section 32 has the effect of limiting the scope of the applicability of the Charter: R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 598; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 44.
[26] In Dolphin Delivery, the Supreme Court of Canada was called upon to consider whether the Charter applies in litigation as between private parties. Mr. Justice McIntyre, giving the majority judgment, considered the question under the heading “Does the Charter apply to private litigation?” commencing at 593:
... One view of the matter rests on the proposition that the Charter, like most written constitutions, was set up to regulate the relationship between the individual and the Government. It was intended to restrain government action and to protect the individual. It was not intended in the absence of some governmental action to be applied in private litigation.
Support for this view is found in Peter W. Hogg, [Constitutional Law of Canada, 2d ed. (Toronto: Carswell, 1985)] at pp. 670-78, and in an article by Katherine Swinton, “Application of the Canadian Charter of Rights and Freedoms”, in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms – Commentary.
At pages 674-75 in his text, Professor Hogg says:
The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the Charter. Such actions as an employer restricting an employee’s freedom of speech or assembly, a parent restricting the mobility of a child, or a landlord discriminating on the basis of race in his selection of tenants, cannot be breaches of the Charter, because in no case is there any action by the Parliament or government of Canada or by the Legislature or government of a province. In cases where private action results in a restriction of a civil liberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract law or property law, or under some other branch of the law governing relations between private persons; but there will be no breach of the Charter.
[27] Mr. Justice McIntyre referred, at 594, to the article by Professor Katherine Swinton in which she elaborates on the reasons for excluding the Charter from private litigation:
... Professor Swinton ... has pointed out that the Charter is not designed to be employed in private litigation and by its very nature it is not suited for that purpose. At pages 47-48, she says:
Moreover, in considering whether the Charter should be directly applicable, the courts should bear in mind its drawbacks as a method of dealing with private action and the advantages of leaving the regulation of such conduct to human rights legislation or other legal controls. Legislation can be tailored to deal with the tension between privacy rights and equality or that between freedom of expression and prohibition of hate literature. It can expressly limit the applicability of equality guarantees to services or to areas open to the public, or specify the right to set bona fide job qualifications. The Charter is not so refined, and provides no guidelines for its application. These would have to be judicially determined.
As well, statutes such as particular human rights and equal pay laws contain an administrative structure designed to promote mediated settlements of disputes, rather than resort to litigation. There is an elaborate structure of conciliation preceding adjudications by an administrative tribunal, which can have an educative effect between the parties. The Charter will be interpreted for the most part in the courts, where there is no built-in mechanism to encourage settlement.
and later, she said, at p. 48:
One should also keep in mind the concerns of the federal and provincial governments in drafting and agreeing to the Charter. Their focus was its effect on their own governmental operations. That is the reason for s. 1, requiring the courts to interpret the guarantees so as to allow reasonable limitations imposed by law. The override section (s. 33), allowing the legislatures to enact laws infringing the Charter, also indicates that governments were concerned about bounds on legislative action. The governments did not address the application of the Charter to private action, and indeed it would have been strange for them to do so, for their existing human rights codes address that matter.
[28] Mr. Justice McIntyre, after expressing agreement with the view of Professor Swinton that the Charter does not apply to private litigation, referred to the text of s. 32 and found, at 598-99, that s. 32 is conclusive in limiting the scope of the application of the Charter to government. In Dolphin Delivery, the Court did not have to decide on the extent to which the Charter applies to the actions of subordinate bodies that are created and supported by Parliament or the legislatures, but left open the possibility that such bodies could be governed by the Charter. Thus, McIntyre J. stated, at 602:
It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures. It is not suggested that this list is exhaustive.
[29] In four appeals heard at the same time, McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, and Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, the Supreme Court considered whether certain entities could be found to have infringed s. 15(1) of the Charter on the basis of age discrimination. McKinney contains the main judgment of the quartet, given by La Forest J. who wrote for the majority on all issues. In McKinney, the possible effect of the Charter on four universities’ mandatory retirement policies was at issue. In that case, La Forest J. elaborated on the rationalization for limiting the scope of the application of the Charter. Under the heading “The Application of the Charter”, La Forest J., after setting out s. 32(1), said at 261-62:
These words give a strong message that the Charter is confined to government action. This Court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156, Dickson J. (as he then was) observed: “It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 490, Wilson J. noted that “the central concern of [s. 7 of the Charter] is direct impingement by government upon the life, liberty and personal security of individual citizens” (emphasis added). See also R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 347, per Dickson J.; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, especially at pp. 593-98; and Tremblay v. Daigle, [1989] 2 S.C.R. 530.
The exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice which must be respected. We do not really know why this approach was taken, but several reasons suggest themselves. Historically, bills of rights, of which that of the United States is the great constitutional exemplar, have been directed at government. Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom. Only government requires to be constitutionally shackled to preserve the rights of the individual. Others, it is true, may offend against the rights of individuals. This is especially true in a world in which economic life is largely left to the private sector where powerful private institutions are not directly affected by democratic forces. But government can either regulate these or create distinct bodies for the protection of human rights and the advancement of human dignity.
[Emphasis in original.]
[30] If a Charter breach is alleged against an entity specifically referred to in s. 32, that is, Parliament, the legislatures and government, then it is clear that the Charter applies with respect to that entity: Dolphin Delivery at 598-599; Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, 309 D.L.R. (4th) 277 at para. 14.
[31] Section 32 also refers to “all matters within the authority of” Parliament, the legislatures and government, thus extending the reach of the Charter to other entities. The reasons of La Forest J. in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, explain the rationale for the additional reach of the Charter under s. 32:
[48] ... Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are – as a simple matter of fact – governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies. In other words, Parliament, the provincial legislatures and the federal and provincial executives could simply create bodies distinct from themselves, vest those bodies with the power to perform governmental functions and, thereby, avoid the constraints imposed upon their activities through the operation of the Charter. Clearly, this course of action would indirectly narrow the ambit of protection afforded by the Charter in a manner that could hardly have been intended and with consequences that are, to say the least, undesirable. Indeed, in view of their fundamental importance, Charter rights must be safeguarded from possible attempts to narrow their scope unduly or to circumvent altogether the obligations they engender.
[32] In Eldridge at paras. 37-42, La Forest J. reviewed the position the Supreme Court had taken in relation to s. 32 in McKinney, Harrison, Stoffman, Douglas/Kwantlen Faculty Assn., and Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211. He then provided the following summary of when the Charter may be found to apply:
[44] ... the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature – for example, the implementation of a specific statutory scheme or a government program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.
[Emphasis added.]
[33] In Greater Vancouver Transportation Authority, Deschamps J., giving judgment for the Court, referred to what La Forest J. had said in Godbout and Eldridge, set out above, and then suggested two ways for determining whether the Charter applies to an entity’s activities:
[16] Thus, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be “government”, either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter. If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.
[34] In the case before us, no one suggests that VANOC is, by its very nature, a government entity. The judge concluded that government does not exercise substantial control over VANOC and the appellants do not take issue with that finding.
(a) The trial judge’s reasons on the s. 32 issue
[35] The question the judge posed in relation to s. 32 was whether staging the Games was a truly governmental activity. In that regard, she said, in part:
[53] I agree with VANOC that the celebration of any Olympic Games, including the 2010 Games, is a key component of the Olympic movement. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.
[54] In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature. In Stoffman, a hospital was found to be providing the public service of health care, but that did not qualify as a government function under s. 32. In [McKinney], La Forest J. described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.
...
[56] I am not aware of any case that has moved beyond the threshold of the two examples given by La Forest J. in Eldridge, but that does not mean that other truly governmental actions do not exist. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”....
[57] In my view, the governmental nature of staging the 2010 Games is evident from a review of the bid process ... and the contracts under which the 2010 Games are being staged.
...
[59] Vancouver, in conjunction with Canada, British Columbia, and the COC, made the decision to bid for and host the 2010 Games. That decision required financial commitments and commitments of effort and collective will. In British Columbia’s and Vancouver’s case, it also included a guarantee and indemnification with respect to any shortfall from the 2010 Games. The real cost to the provincial government of staging the 2010 Games has been estimated by the British Columbia Auditor General at $2.5 billion.
[60] The Host City Contract (Clause 1) says clearly that the 2010 Games were awarded to Vancouver. It states:
1. Entrustment of Organization of the Games
The IOC hereby entrusts the organization of the Games to the City and the NOC which undertake to fulfil their obligation in full compliance with the provisions of the Olympic Charter and of this Contract, including, without limitation, all matters referred to in the Appendices to this Contract, which, for greater certainty, are deemed to form part of this Contract.
[61] Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.
[62] In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.
[63] The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act, R S.C. 1985, c. 31 (4th Supp.), which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.
...
[65] In summary on this issue, VANOC is subject to the Charter when it carries out the activity of planning, organizing, financing, and staging the 2010 Games.
[Emphasis added.]
(b) The parties’ submissions on the ascribed activity test
[36] In argument before us, the legal question of whether “VANOC is subject to the Charter when it carries out the activity of planning, organizing, financing, and staging the 2010 Games” was highly contentious.
[37] The appellants recognize that VANOC is a private entity and that in hosting and staging the Games, VANOC is not engaged in the implementation of a statutory scheme on behalf of government. Instead, the appellants rely on the Multiparty Agreement in asserting that various commitments made by the three levels of government at the time the bid to host the Games was made demonstrate, as the judge found, that hosting and staging the Games is a governmental activity.
[38] There is a serious question, however, as to whether a contract entered into by government to provide infrastructure and to make up any shortfall in paying for liabilities of the Games falls within the “ascribed activity” test posited by La Forest J. in Eldridge. As noted earlier, the wording of s. 32 limits the application of the Charter. In this case, the relevant phrase to consider is “in respect of all matters within the authority of Parliament”.
[39] VANOC’s submissions on whether the particular activity in issue is an activity that can be ascribed to government focus directly on what drives the appellants’ complaint, that is, the selection of events to be staged at the Games.
[40] VANOC’s primary submission in the court below was that the activity relevant to the s. 32 determination is the selection of the events to be staged at the Games. While the judge acknowledged that VANOC’s argument is “an important issue”, she found that it “is better addressed as part of the s. 15 analysis in considering whether, within its delivery of the 2010 Games, VANOC has exercised its decision-making power so as to breach s. 15” (at paras. 49-51).
[41] As noted above, the trial judge held that VANOC’s hosting and staging of the Games is a governmental activity and, on that footing, held that VANOC is subject to the Charter. The judge went on to hold that the IOC decision to include only men’s ski jumping events is discriminatory but nevertheless concluded that “VANOC is not in breach of s. 15 of the Charter by staging the Programme of Olympic events determined by the IOC.” The judge dismissed the appellants’ application for the reasons she expressed in paragraphs 121 and 123 of her judgment:
[121] 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. VANOC did not support that decision. VANOC does not have the power to remedy it.
...
[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.
[42] Before us, VANOC argues that the trial judge correctly identified why the appellants’ case must be dismissed; that is, VANOC does not determine which events are to be part of the 2010 Games. However, it is VANOC’s submission that the point can best be expressed legally in either of two ways:
(1) The Charter does not apply to the discrimination alleged in this case because the determination of the Olympic Programme is not an activity that can be ascribed to government. To the contrary, the Olympic Programme is wholly the IOC’s domain. Even if VANOC’s staging of events is properly held to be a governmental activity, which VANOC disputes, the decision whether or not certain events will be staged during the Games is not a governmental activity; it is simply not a decision any government or any OCOG (such as VANOC) may make. The decision not to include women’s ski jumping, therefore, is not a decision to which the Charter applies.
(2) The benefit of having an event included in the Olympic Programme is not a “benefit of the law” for the purposes of section 15. That benefit is bestowed by the IOC, not by or pursuant to any Canadian law. While the appellants have been denied a benefit, it is not a benefit that the law provides such that section 15 applies.
[43] As may be seen from the foregoing, VANOC’s submissions support the result reached by the trial judge but depart from her legal analysis.
(c) The application of s. 32 of the Charter
[44] Three levels of government entered into the Multiparty Agreement for the purpose of securing the 2010 Games with Vancouver as the Host City and did so in the absence of any statutory authority to support that purpose. In the circumstances, it is a nice question as to whether obligations in the Host City contract, which came into being after the IOC chose Vancouver as the host city and to which VANOC, but not government, is a party, can correctly be viewed as being a matter within the authority of government under s. 32 of the Charter.
[45] There is no dispute that both the IOC and VANOC are private entities as that term is understood in the jurisprudence. Nor can there be any dispute that under the terms of the Host City Contract (a standard contract required to be signed by an OCOG, here VANOC, if the bid were successful) VANOC is obliged to host and stage the Games under the direction and control of the IOC, the governing body of the Olympic Movement. Under the contract, no government has legal power to control VANOC even if government wished to do so. Like other private organizations, VANOC is subject to government regulation and it may depend in large measure on government funds to provide services and infrastructure, but VANOC must manage its affairs under the direction and control of the IOC. That the IOC controls VANOC is undisputed.
[46] Assuming, without deciding, that the trial judge was correct in concluding that the obligations contained in the Multiparty Agreement, aimed at securing the 2010 Games, and to which governments were parties, can be construed as a matter coming within the authority of government under s. 32 of the Charter, we are still left with the question of whether the selection of the events to be staged at those Games, which is the nub of the appellants’ complaint, could come under that umbrella.
[47] Nothing in the Multiparty Agreement suggests that it was a governmental obligation or function to determine, or to participate in determining, what events were to be selected for the Games. Nothing in the terms of the contract suggests that such a decision rests with a body other than the IOC, which must make the decision pursuant to the terms of the Olympic Charter.
[48] Under the Host City Contract, the IOC is recognized as having the exclusive authority to determine what events will be staged at an Olympic Games. Further, when the bid to host the Games was put forward though the Multiparty Agreement in 2003, the IOC had not yet selected the events for the 2010 Games. Given that all levels of government agreed to put forward a bid to host the Games in Vancouver before the slate of events was set, it is clear that the specific events to be staged were not important to the goals of government.
[49] The case authorities support the view that, in determining the scope of the application of the Charter to an entity such as VANOC, it is necessary to look not only to the activities or function of the entity itself but also to the nature or function of the specific act or decision of the entity that is said to infringe a Charter right. Regardless of whether VANOC’s hosting of the Games can properly be considered to be a governmental activity because of the substantial commitments made by the several levels of government to secure and hold the Games in Vancouver, it is clear on the facts that neither government nor VANOC had any authority either to make or to alter the decision of the IOC not to include a women’s ski jumping event in the 2010 Games. The decision of the IOC not to add women’s ski jumping as an event in the 2010 Games is not a “policy” choice that could be or was made by any Canadian government and the staging by VANOC of only those events authorized by the IOC cannot reasonably be viewed as furthering any Canadian government policy or program.
[50] As deciding which events to include in the 2010 Games is not an activity to which the Charter applies, the appellants’ claim of discrimination based on s. 15(1) of the Charter fails. However, as the matter was fully argued, we will address the appellants’ contention that denying them but not men the opportunity to compete in ski jumping denies them a “benefit of the law” guaranteed by s. 15(1).
IV. Section 15(1) of the Charter
[51] Section 15(1) reads:
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 race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[52] The Supreme Court of Canada has described the analysis that is required to determine whether a s. 15(1) violation is made out in various ways. In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88, the Court described a three-part analysis:
[A] court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
and
(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
[53] More recently, in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, the Court suggested a two-stage approach:
[17] The template in Andrews [Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143], as further developed in a series of cases culminating in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s. 15(1): (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, in substance, the same.
[54] Significantly, both of these analyses require, as a first step, the identification of a law that creates a distinction on an enumerated or analogous ground. The necessity of identifying such a law stems from the language of s. 15(1). Section 15(1) sets out constitutional guarantees of equality that are broad in scope, but it does not constitute a general guarantee of equality. Rather, the section guarantees equality only in the way that the law affects individuals. Where the law is not implicated in discrimination or inequality, s. 15(1) is not engaged. This point was emphasized by McLachlin C.J., speaking for a unanimous court in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657:
[27] … The primary and oft-stated goal of s. 15(1) is to combat discrimination and ameliorate the position of disadvantaged groups within society. Its specific promise, however, is confined to benefits and burdens “of the law”. Combatting discrimination and ameliorating the position of members of disadvantaged groups is a formidable task and demands a multi-pronged response. Section 15(1) is part of that response. Section 15(2)’s exemption for affirmative action programs is another prong of the response. Beyond these lie a host of initiatives that governments, organizations and individuals can undertake to ameliorate the position of members of disadvantaged groups.
[28] The specific role of s. 15(1) in achieving this objective is to ensure that when governments choose to enact benefits or burdens, they do so on a non-discriminatory basis. This confines s. 15(1) claims to benefits and burdens imposed by law. As stated in R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1329:
The guarantee of equality before the law is designed to advance the value that all persons be subject to the equal demands and burdens of the law and not suffer any greater disability in the substance and application of the law than others.
[29] Most s. 15(1) claims relate to a clear statutory benefit or burden. Consequently, the need for the benefit claimed or burden imposed to emanate from law has not been much discussed. Nevertheless, the language of s. 15(1) as well as the jurisprudence demand that it be met before a s. 15(1) claim can succeed.
[Emphasis by McLachlin C.J.]
[55] In Auton itself, while the impugned programs were operated by government, they did not provide the sorts of benefits that the plaintiffs in that case were seeking. There was, therefore, no inequality with respect to any “benefit of the law”. In short, there was nothing to which a claim under s. 15(1) could attach.
[56] In the case before us, the appellants’ greatest challenge is to demonstrate that the unequal benefit (the availability of men’s, but not women’s, ski jumping events) is in some way a product of “law”. On the face of it, the right to compete in a ski jumping event at the Olympics Games does not appear to be a “benefit of the law”. It is not a right deriving from legislation, nor is it conferred by a governmental entity. Instead, it derives from a decision by the IOC to hold an event. It is not suggested that the IOC is a law-making body. Further, the IOC’s decision not to hold a women’s ski jumping event at the 2010 Games is a decision that has not been endorsed by VANOC, or by any Canadian government body.
[57] The trial judge found that the contractual arrangements set out in the Multiparty Agreement and the Host City Contract were “law” for the purposes of s. 15(1). That was sufficient, in her view, to make the provision of ski jumping events at the 2010 Games a benefit of the law. She then analysed the case using the two-stage test set out in Kapp, and found both parts of the test to be satisfied in respect of the IOC’s decision to exclude women’s ski-jumping from the Games. She nonetheless found that there was no violation of s. 15(1), on the basis that VANOC did not have control over the decision.
[58] We agree with the trial judge’s conclusion that there is no violation of s. 15(1) of the Charter in this case. We also agree with her conclusion that VANOC’s lack of discretion over what events are included in the Games is a critical factor in the analysis. In our view, however, the nature of VANOC’s powers and the limits of its authority are best considered as components of the threshold analysis of whether the impugned distinctions can properly be categorized as failures to provide equal benefit of the law.
[59] In considering whether the contracts under which VANOC is staging the 2010 Games furnish the required nexus between the alleged discrimination and the law of Canada, the trial judge said this:
[69] ... I will address the threshold question of whether a contract entered into by a private entity that is not controlled by government can be the source of a “benefit of the law” within the meaning of s. 15.
[70] The benefit the plaintiffs say they are being denied is being delivered by VANOC under the Multiparty Agreement and the Host City Contract. It is clear that benefits delivered under a contract entered into by a government-controlled entity must be delivered in a manner consistent with s. 15 of the Charter: In Douglas College [Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570] at 585-86, La Forest J. said the following regarding the issue of whether the collective agreement was “law within the meaning of s. 15(1) of the Charter”:
For reasons discussed in McKinney v. University of Guelph [[1990] 3 S.C.R. 229], I am of the view that the collective agreement is law. It was entered into by a government agency pursuant to powers granted to that agency by statute in furtherance of government policy. The fact that the collective agreement was agreed to by the appellant association does not alter the fact that the agreement was 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. The transparency of the device can be seen if one contemplates a government contract discriminating on the ground of race rather than age. It may be that age can constitute a rational basis for a party to agree to contract out of certain rights and thus be open to the defences of waiver or estoppel or again that it may in certain circumstances constitute a reasonable limitation under s. 1. These are issues, however, which were not before the Board or the courts below and I refrain from commenting upon them further.
[71] In McKinney at 276, La Forest J. said:
For section 15 of the Charter to come into operation, the alleged inequality must be one made by “law”. The most obvious form of law for this purpose is, of course, a statute or regulation. It is clear, however, that it would be easy for government to circumvent the Charter if the term law were to be restricted to these formal types of law-making. It seems obvious from what McIntyre J. had to say in the Dolphin Delivery case that he intended that exercise by government of a statutory power or discretion would, if exercised in a discriminatory manner prohibited by s. 15, constitute an infringement of that provision. At all events, this Court has now acted on this basis in Slaight Communications Inc. v. Davidson, [[1989] 1 S.C.R. 1038]; see also the remarks of Linden J. in Re McCutcheon and City of Toronto, [(1983), 147 D.L.R. (3d) 193], at p. 202. On the assumption that the universities form part of the fabric of government, I would have thought their policies on mandatory retirement would amount to a law for the purposes of s. 15 of the Charter. Indeed, in most of the universities, these policies were adopted by the universities in a formal manner. That being so, the fact that they were accepted by the employees should not alter their characterization as law, although this would be a factor to be considered in deciding whether under the circumstances the infringement constituted a reasonable limit under s. 1 of the Charter.
[72] The plaintiffs argue that s. 15 of the Charter should also apply to an entity that is not subject to government control but is delivering services that are truly governmental in nature under a contract. In my view, this is an incremental and principled extension of the Supreme Court of Canada’s purposive interpretation of the Charter. A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.
[Emphasis by trial judge.]
[60] In our view, the trial judge fell into error in treating the issue as one involving an “incremental and principled extension” to existing Charter jurisprudence. Neither Douglas/Kwantlen Faculty Assn. nor McKinney stands for the proposition that all obligations and entitlements under government contracts constitute “law” for the purposes of s. 15(1) of the Charter. Rather, they stand for the proposition that deliberately and formally adopted policies of government may constitute “law” notwithstanding that they are embodied in contractual documents rather than in legislative acts or statutory instruments.
[61] The rationale for extending the meaning of “law” in s. 15(1) to particular governmental actions taken by the executive was discussed in Eldridge:
21 The s. 32 jurisprudence of this Court has for the most part focused on the [legislation found to be unconstitutional on its face]. There is no doubt, however, that the Charter also applies to action taken under statutory authority. The rationale for this rule flows inexorably from the logical structure of s. 32. As Professor Hogg explains in his Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)), vol. 1, at pp. 34-8.3 and 34-9:
Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.
The sentiment of Lord Atkin in speaking of a constitutional prohibition addressed solely at the legislative branch is also apposite: “The Constitution”, he wrote, “is not to be mocked by substituting executive for legislative interference with freedom”; see James v. Cowan, [1932] A.C. 542 (P.C. Australia), at p. 558.
22 The question in the present case, then, is whether the alleged breach of s. 15(1) arises from the impugned legislation itself or from the actions of entities exercising decision-making authority pursuant to that legislation.
[62] 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. We say “typically” to leave open the possibility that actions or provisions that derive their authority from the royal prerogative or from the “ordinary” powers of the Crown might, in some circumstances, be considered “law”; that issue does not arise in this case. The case we are dealing with does not involve the exercise of any power flowing from the Crown.
[63] This case is, in our view, unlike the situations discussed in Douglas/Kwantlen Faculty Assn. and McKinney. In those cases, the Supreme Court was considering acts of agents of the Crown whose powers were wholly derived from statute. The defendant in this case, in contrast, is a private corporation with the powers of an ordinary person. It is not an agent of the Crown. It has authority to undertake its duties under the Host City Contract without the need for additional powers delegated by the Crown.
[64] There are other difficulties with the appellants’ argument that the decision to hold men’s, but not women’s, ski jumping events constitutes “law” for the purposes of s. 15(1) of the Charter. Even if the Multiparty Agreement or the Host City Contract qualified as “law” for the purposes of s. 15(1), the appellants would have to demonstrate that the policy that is the root of their complaint is embodied in those contracts. They are unable to do so. Indeed, as the appellants concede, the decision at issue in this case is within the exclusive authority of the IOC; VANOC has attempted to convince the IOC to include a women’s event in the 2010 Games, but has been unsuccessful.
[65] This is not a case, then, of a governmental body attempting to circumvent the Charter by exercising power through contract instead of through legislation. Rather, it 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 has the power to change.
[66] The appellants contend that the fact the discrimination they face is not VANOC’s fault is irrelevant. They argue that a party may be guilty of discrimination even where it has no intent to discriminate. We agree that the appellants need not show that discrimination against them is motivated by malice, or is otherwise deliberate. The issue in this case, however, is not intention, but rather control. VANOC simply does not have the power to determine what events are included in the 2010 Olympic programme. The word “law” in s. 15(1) of the Charter cannot be so broadly construed as to include policies or practices that no Canadian government has jurisdiction to enact or change.
[67] Accordingly, even if the Charter applied to VANOC in respect of the impugned conduct in this case, the appellants’ claims under s. 15(1) could not succeed. The availability of ski jumping events at the 2010 Games is simply not a “benefit of the law” for the purposes of s. 15(1).
V. Conclusion
[68] The appeal is dismissed. VANOC is entitled to costs, if costs are sought.
“The Honourable Madam Justice Rowles”
“The Honourable Mr. Justice Frankel”
“The Honourable Mr. Justice Groberman”