McKinney v University of Guelph [1990] 3 S.C.R. 229 is the Supreme Court of Canada case that decided that, for the purpose of determining the application of the Charter of Rights and Freedoms, universities were not part of government. As such, that the mandatory retirement age for University teachers does not violate equality rights under section 15 of the Canadian Charter of Rights and Freedoms. In doing so the court refined the scope of the Charter as it applies to government bodies as well as the definition of "law" within the ambit of the Charter.
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Background
Three years earlier the case of RWDSU v. Dolphin Delivery defined that the Charter only applied to Government bodies. However, it did not give any detail on what counted as government.
Eight professors and a librarian from the University of Guelph applied for declarations that the university's policy for mandatory retirement at age 65 as well as the Ontario Human Rights Code, which allowed such policies, were unconstitutional because it violated their section 15 Charter rights to equality.
The issues before the court were:
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Reasoning of the Court
LaForest J. wrote the majority with Dickson J. and Gonthier J. concurring. In the similar fashion from RWDSU v. Dolphin Delivery, they looked at the meaning of section 32 to determine the purpose of the Charter, concluding that it is a tool for checking the powers of the government over the individual. They further justified this conclusion by stating that if the scope were so widely read as to include private actions it would impose too much of a burden on the courts and would result in too much overlap with common law rules and statutes.
LaForest's attention then moved to whether the University was a government body. The Public Purpose test alluded to in Dolphin Delivery is not determinative. The fact that the school was created by statute and received a significant portion of its funding from government was not enough. Nor was the fact that it is regulated by government and fulfilled a public service sufficient. LaForest noted that universities still function as autonomous bodies and the government had no direct power to control the school. Instead the school is governed by a Board of Governors who are not representatives of the government.
Despite the court ruling against the university's status as a government body, they nevertheless examined whether the retirement policy violated section 15. LaForest stated that all actions pursuant to powers granted by law, not merely statutes, would be subject to Charter scrutiny.
The majority finds that s. 15 was violated because a distinction based on age discriminated against those who were old but capable of working. However, the violation was justified under s.1 due to the public necessity to have new teachers hired.
In a strong dissent, Wilson J. (with Cory J. concurring) examined a broad range of sources and proposed several tests including a "control test", "government function test", and a "government entity test". However, Wilson did not regard any of them as a panacea, since they all missed some aspect of government.
Source of the article : Wikipedia
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