JRSB205 (summer 2010)
Topic 1, Lesson 4, Activity 2: Charter Challenge
Group C
Table of Contents
2. Position 1 – Not possibility of trail based on the Charter
3. Position 2 – Le Petit as an individual – Arguments based on the Charter
3.4. Equalization and Regional Disparities
The Charter protects an individual’s civil rights and freedom from any interference by the government. In one side of the trial must be represented any government instance. In the other side, the references of the Charter[1], Law books [3] and articles [1] do mention to individuals, not private parties. According to Barbara Billingsley [1], “Section 32 indicates that the Charter is designed to protect individual rights in the face of actions by the state which would infringe upon these rights. So, it is only the state’s actions which are subject to Charter scrutiny. The Charter does not apply to protect basic human rights and freedoms in relationships between private parties. However, the courts have been generous in interpreting this section so that the Charter applies to all branches of government plus any body created by government and under ordinary control by the government (Lavigne v. OPSEU, 1991 and McKinney v. University of Guelph, 1990), and any private body (even if not controlled by the government) which is administering a specific government policy or program (Eldridge v. British Columbia, 1997).”
This potential trial is between BC and Le Petit. Charter applies for limiting government actions against individual rights and freedoms. Le Petit is a private party. In conclusion, the Charter should not apply as support in the trial process of Le Petit.
So, under this idea we could help people in their retirement decision at 65 years. This is not logic because people could do it without any trial process.
Nevertheless, we can find different cases that they have cited the Charter in a trial between a government and a company (e.g.: Vann Niagara Ltd. v. Oakville (Town)).
So, in the assumption that we could proceed, the following sections in the Charter could support the Le Petit position in a trial v. BC government.
Section 6(2)(b): Every citizen and permanent resident of Canada has the right to pursue the gaining of livelihood in any province.
Together with s. 6(3) the rights specified in subsection (2) are subject to:
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
And s. 6(4): Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
Arguments: The way to present this as support in the court is the right of Le Petit to establish business in the Canadian territory with the characteristics that they allow Le Petit to be established in the market and grow share. These characteristics constituent the essence of Le Petit and any change could strongly damage the core of its business.
Section 15(1): 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.
Section 15(2): Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Arguments: If we assume Le Petit is an individual, to change any characteristic means to change the identity of Le Petit; this is interpreted as intent of discrimination because BC tries that every business operate under the same conditions. It is similar to pretend that every people should belong to a race or religion to develop business in BC. Le Petit is not breaking any law or ethics conduct with the followed retirement approach; so the BC regulation is imposing that all business should be equal, which seems discriminatory.
Section 26: The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
Arguments: Clearly, BC is denying and obstructing the free development of business of Le Petit. In addition, if someone is considered a non-civil servant within the government, the Government can authorize a mandatory retirement. This represents a clear antecedent in what Le Petit based part of its arguments. According to Leah Fitzgerald and James Casey [4], “Civil servants who work for the federal government cannot be forced to retire. However, for non-civil servants who work for an employer within the federally regulated industry, an exception is permitted at the normal age of retirement for employees working in similar positions, therefore allowing mandatory retirement.”
Also with double standards within the government we could say that we are discriminating our youth based on age as well. If we cannot set a mandatory age requirements we are saying that are youth are not important as. Now a day with baby boomers staying on with their companies longer we are missing out on our young adults. With not hiring these young adults companies are missing out on new ideas, fresh faces and at times the speed that companies need. In everyday conversations you hear people complaining that it is hard to get a job because you have the 65+ taking these jobs away.
Leah Fitzgerald and James Casey add “However, the majority of the court then held, largely based socio-economic justifications such as the need for employment opportunities for younger workers, a renewed workforce, and the protection of retirement with dignity, that such age discrimination was justified as a reasonable limit prescribed by law within s. 1 of the Charter.”
Section 36(1): Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to:
(a) promote equal opportunities for the well-being of Canadians;
(b) further economic development to reduce disparity in opportunities; and
(c) provide essential public services of reasonable quality to all Canadians.
Arguments: BC is not promoting the equal opportunities for the well-being of people restringing the opportunity of developing business such as is developed in other provinces. BC reduces the economic development of Le Petit and cut opportunities of business development.
[1] Billingsley, B. (1999). The Charter: Changing Canadian Law for the New Century, LawNow, Legal Resource Centre, Faculty of Extension, University of Alberta, 6p
[2] Mckay-Panos, L. (2009). Human–Rights Law: Recent Developments in the Interpretation of Charter, LawNow, Alberta Civil Liberties Research Center, Calgary
[3] Yates, R., Bereznicki-Korol, T. and Clarke, T. (2008). Business Law in Canada (8th edition.) Ontario, Canada: Person Education Canada.
[4] Fitzgerald, L. and Casey, J. (2007). Working Overtime: Mandatory Retirement In Canada, LawNow, Alberta Civil Liberties Research Center, Calgary
[1] In the Charter, each section starts with “anyone” or “every citizen”, “every individual”, “every person”, and so on, but it never mentions company, private party, etc.
