Indexed as:

Re Ontario English Catholic Teachers Association et al. and

Essex County Roman Catholic School Board

[1987] O.J. No. 93

58 O.R. (2d) 545

36 D.L.R. (4th) 115

18 O.A.C. 271

28 Admin. L.R. 39

34 C.R.R. 146

3 A.C.W.S. (3d) 413

Ontario

High Court of Justice

Divisional Court

Craig, Anderson and

Mckinlay JJ.

February 3, 1987

Counsel:

P.J.J. Cavalluzzo and B. Hanson, for applicants.

R.G. Colautti and B.P. Nolan, for respondent.

1 CRAIG J. dissenting in part:-- I have had the benefit of reading the reasons for judgment of my brother Anderson J. and I agree with the result that he proposes.

2 I agree with his reasons except on one issue. I part company with him upon his conclusion that the board did not terminate the employment of Mordowanec by "law" within the meaning of s. 15(1) of the Charter and s. 52(1) of the Constitution Act, 1982.

3 The Education Act, R.S.O. 1980, c. 129 (the Act), is a complete and comprehensive statute setting out the duties and responsibilities of the Minister of Education, both public and secondary schools, Roman Catholic separate schools, Protestant separate schools, the boards, the teachers and the supervisory officers.

4 It seems to me that the complete structure of our educational system in Ontario is set out in this Act. It is helpful to set out some of the significant sections of the Act which relate to the powers of the boards.

150(1) A board may,

. . . . .

2. subject to Part X, appoint and remove such officers and servants and, subject to Part IX, appoint and remove such teachers, as it considers expedient, determine the terms on which such officers, servants and teachers are to be employed, prescribe their duties and fix their salaries, except that in the case of a secretary of a board who is a member of the board, the board may pay only such compensation for his services as is approved by the electors at a meeting of the electors;

. . . . .

234. Notwithstanding the other provisions of this Part and notwithstanding anything in the contract between the board and the teacher, where a permanent or probationary teacher is employed by a board and a matter arises that in the opinion of the Minister adversely affects the welfare of the school in which the teacher is employed,

(a) the board or the teacher may, with the consent of the Minister, give the other party thirty days written notice of termination, and the contract is terminated at the expiration of thirty days from the date the notice is given; or

(b) the board may, with the consent of the Minister, give the teacher written notice of immediate termination together with one-tenth of the teacher's yearly salary in addition to the amount to which he would otherwise be entitled, and the contract thereupon is terminated.

5 Anderson J. referred to Re Lavigne and Ontario Public Service Employees Union et al. (1986), 55 O.R. (2d) 449, 29 D.L.R. (4th) 321, 86 C.L.L.C. D7819981814,039, and Re McKinney and Board of Governors of University of Guelph et al. and seven other applications (unreported, released October 15, 1986 [since reported 57 O.R. (2d) 1, 32 D.L.R. (4th) 65, 14 C.C.E.L. 1]). In Lavigne, White J. referred to the quotation from the reasons of Dickson C.J.C. in Operation Dismantle Inc. et al. v. The Queen et al. (1985), 18 D.L.R. (4th) 481 at p. 494, [1985] 1 S.C.R. 441 at p. 459, where it was said:

I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to "laws" in s. 52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the Constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall with s. 52.

6 In Lavigne, White J. concluded at p. 479 O.R., p. 451 D.L.R.: "... I am prepared to hold that governmental action does include the entering into of a contract by a Crown agency pursuant to powers granted by statute in the context of the facts at bar."

7 In McKinney, the first issue before Gray J. related to mandatory retirement in certain universities. Unlike the conclusion of Anderson J. in relation to the board herein (with which conclusion I agree), on this first issue Gray J. concluded that universities are not "government" within the meaning of s. 32(1) of the Charter.

8 He concluded on p. 29 [at p. 18 O.R., p. 81 D.L.R.] by adopting the language of O'Brien J. in Bancroft et al. v. Governing Council of University of Toronto (1986), 53 O.R. (2d) 460 at p. 466, 24 D.L.R. (4th) 620 at p. 626, 21 C.R.R. 269: " 'I, therefore, reject the argument of the applicants that the University of Toronto is a government or within the authority of the Ontario Legislature, as those words are used in s. 32 of the Charter.' "

9 Having reached the above conclusion it was unnecessary for Gray J. to consider whether the mandatory retirement requirements of the universities were "law" within the meaning of s. 15(1) of the Charter and s. 52(1) of the Constitution Act, 1982.

10 In the instant case the policy of the board has not been incorporated into the collective agreement or referred to therein. It appears to be a unilateral declaration that has been complied with without question up until now, by all employees of the board. The specific section in the Act (s. 150(1), para. 2) which authorizes the board to hire teachers (and therefore to subsequently terminate their contracts at age 65) makes no reference to retirement. It would appear therefore that the board is free to adopt a policy of retirement at age 65 or 70 years of age.

11 Failure to incorporate into the collective agreement the policy or requirement as to mandatory retirement does not give rise to an inference that the policy or the implementation of it is not in contravention of the Charter as discriminatory. In my opinion the board could not opt out of the Constitution. In Ontario Human Rights Com'n et al. v. Borough of Etobicoke (1982), 132 D.L.R. (3d) 14, [1982] 1 S.C.R. 202, 3 C.H.R.R. 781 (S.C.C.), the Supreme Court of Canada held that a municipality cannot contract out of the provisions of the Ontario Human Rights Code with respect to age discrimination even when the contract arises out of statutorily required bargaining.

12 In Re Klein and Law Society of Upper Canada (1985), 50 O.R. (2d) 118, 16 D.L.R. (4th) 489, 13 C.R.R. 120, the court held that the fact the rules and commentaries in the lawyers' code of professional conduct have not been adopted as regulations under the Law Society Act does not prevent them from falling within the ambit of the Charter.

13 In Stoffman et al. v. Vancouver General Hospital et al. (B.S.S.C., released July 23, 1986 [reported 30 D.L.R. (4th) 700, [1986] 6 W.W.R. 23]), the court held that the regulations of the hospital's medical executive committee approved by the Minister of Health must conform with the Charter as well. At p. 7 of the reasons [p. 705 D.L.R.], Taylor J. comments:

It seems to me that since regulations made by the trustees are, as I have found, governmental in nature, and therefore subject to the Charter, it follows that the way in which those rules are applied must be subject to the same constraints. To say that the Charter applies to governmental rules but not to the manner in which such rules are applied by government would, again, open up a road by which its provisions could readily be bypassed.

14 In Operation Dismantle Inc. et al. v. The Queen, supra, it was held that Cabinet decisions fall under s. 32(1)(a) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution. Earlier I referred to the comment by Dickson C.J.C. that the Charter's reach might well extend beyond strict governmental enactments.

15 In the instant case the policy of the board as to mandatory retirement at age 65 is subject to extensions for "limited periods within the approval of the Board". Heretofore it was a policy that never was challenged. As to extensions, the applicant applied for and was granted an extension of one year. When he sought a further extension the policy of the board was implemented by its resolution referred to in the reasons of Anderson J. In all the circumstances it is my opinion that the policy is intended to be binding upon the teachers and is "law" within the meaning of s. 15(1) of the Charter and s. 52(1) of the Constitution Act, 1982.

16 Having held that the employment of Mordowanec was terminated by "law" it is necessary to ask the question -- is the mandatory retirement imposed upon Mordowanec discriminatory?

17 Section 15(1) of the Charter provides:

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.

18 This section of the Charter is the source of great difficulty for both scholars and jurists alike. The obvious intention of this section is to prevent a particular person or group from being subject to an unfair and unequal application of the law.

19 In Bregman et al. v. A.-G. Can. (1986), 55 O.R. (2d) 596, 29 D.L.R. (4th) 474, Saunders J. adopted and applied the approach enunciated by the Court of Appeal (per Morden J.A.) in R. v. R.L., released April 22, 1986 [reported 26 C.C.C. (3d) 417, 52 C.R. (3d) 209] and Re McDonald and The Queen (1985), 51 O.R. (2d) 745 at p. 765, 21 D.L.R. (4th) 397 at p. 417, 21 C.C.C. (3d) 330. Saunders J. referred to those decisions in these terms at p. 600 O.R., p. 478 D.L.R., as follows:

The foregoing references to decisions in the Court of Appeal indicate that the purpose of s. 15 is to ensure that those who are similarly situated in a sense relevant to the purpose of the law be treated similarly. The classification of persons who are regarded as similarly situated is important as different classifications can lead to different results..

(Emphasis added.)

20 This last comment highlights the particular difficulty in the application of the "similarly situated" test. In the situation of the case at Bar, is the class of persons school teachers who are competent and qualified to teach or is it all employees of the board who reach age 65? If the class is teachers, then it follows that there is discrimination since the only reason one teacher is forced to give up his employment is because of his or her age while an equally able member of the class may continue in his or her career. On the other hand, one could say that everyone over the age of 65 is similarly situated since they all must retire at that age and therefore they are not treated differently, hence, there is no discrimination.

21 As indicated in Bregman, the classification of the persons who are regarded as similarly situated is important. For example, obviously it would be discriminatory to legislate that all ethnics must retire at 65, or that all Christians must not work on Sunday, or that all young women cannot play on sports teams even though in one sense the persons in some groups might be said to be "similarly situated". Discrimination is not justifiable by claiming that the entire group is discriminated against in the same fashion. Here the board has distinguished between teachers aged 65 and over and those under age 65; only the former are subject to termination. In all other respects both categories of teachers are similarly situated; they perform the same duties and are subject to the same terms and conditions of employment. In my opinion those over and under age 65 are similarly situated; and that the policy of the board to require its teachers to retire at age 65 is unequal treatment that does constitute discrimination under s. 15(1) of the Charter: Re Blainey and Ontario Hockey Ass'n et al. (1986), 54 O.R. (2d) 513, 26 D.L.R. (4th) 728, 10 C.P.R. (3d) 450 (Ont. C.A.).

22 My conclusion is consistent with the conclusion of Gray J. in McKinney in dealing with the constitutional validity of s. 9(a) of the Ontario Human Rights Code, 1981 (Ont.), c. 53.

23 In argument counsel for the applicant did refer to s. 9(a) of the Code but he expressly stated that he was not asking for a declaration that it was inconsistent with s. 15(1) of the Charter. Rather he stated that he was relying on his submission that the mandatory requirements of the board were inconsistent with s. 15(1).

24 This leads me to the final issue; is mandatory retirement justifiable under s. 1 of the Charter?

25 Section 1 of the Charter provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Argument for mandatory retirement

26 The board has summarized its position in its factum at pp. 7-9:

a) It increases the number of job opportunities for younger men and women entering the labour market or those who have been with employers for several years;

b) It allows for equal treatment of all employees by eliminating individual managerial decisions as to who should or should not continue to work after age 65;

c) It allows employees to better plan for their future;

d) It allows employers to plan more effectively for their future;

e) It provides retirees with the freedom and income to pursue fulfilling goals in other areas which [sic] they are still young enough to do so;

f) It allows an individual to leave his job gracefully without admitting or having to be told he can no longer do the job;

g) It eases out those who have an adverse effect on productivity without Managers having to evaluate who should be retained or be forced to retire.

h) It does not adversely affect many persons since most retire prior to mandatory retirement age or prefer not to work beyond it.

i) Mandatory or compulsory retirement is usually a misnomer because there is usually an avenue through freely bargained collective agreements, employer policies, or pension plans to negotiate a fixed retirement with flexibility.

j) Retirement polices are part of the delicate balance of the Industrial Relations system. To require that in no case shall a person be compelled to retire at a specified age would upset this balance.

k) Retirement at a specified age only means that a specific employer's obligation to employ that worker ends at that age, and does not shut an employee out of the workforce as long as there is not government legislation mandating universal retirement at a certain age.

l) Mandatory retirement is not simply a constraint imposed upon workers by their employers, since it is most prevalent where workers have strong collective bargaining powers.

m) In the educational sphere, where the chief purpose is to further the public welfare through the education of the youth and the advancement of learning, the lack of certainty of a normal number of positions due to retirement may make the academic and teaching professions less attractive to men and women of ability, thereby having a negative effect on society and youth in particular.

n) Elimination of fixed age retirement tends to result in a concentration of employees salaries at the highest end of the scale resulting in financial hardship to the institution.

o) Much of the adjustment costs of banning mandatory retirement will be borne by those who are approaching the "break even age" at which their wage will begin to exceed their productivity.

27 In support of these propositions, the board relied on the following scholarly articles which form part of the record before this court and are listed as exs. A through J in the affidavit of Ms. Dietrich-Suzor:

Exhibit A -- McVeith, Dr. Frank J., "Mandatory v. Flexible Retirement and the Functions of Counselling", Canadian Counsellor (1980), Volume 14 at p. 102.

Exhibit B -- Gunderson, Morley; and Pesando, James E., "Eliminating Mandatory Retirement: Economics and Human Rights", Canada Public Policy (Spring, 1980), Volume 6 at p. 352.

Exhibit C -- Finn, Ed. "The Debate Over Mandatory Retirement", Labour Gazette (January, 1978), Volume 78 at p. 9.

Exhibit D -- Flanagan, Thomas, "Policy-Making by Exegesis: The Abolition of 'Mandatory Retirement' in Manitoba", Canada Public Policy (March, 1985) Volume II at p. 40.

Exhibit E -- Committee A Report, "Uncapping the Mandatory Retirement Age", Academe (September-October, 1982) Volume 68 at p. 14a.

Exhibit F -- Gunderson, Morley, "Mandatory Retirement and Personnel Policies", Columbia Journal of World Business (Summer, 1983) Volume 18 at p. 8.

Exhibit G -- Leigh, Duane E., "Why Is There Mandatory Retirement? An Emperical [sic] Re-examination", Journal of Human Resources (Fall, 1984) Volume 19 at p. 512.

Exhibit H -- Cantrell, R. Stephen, MS, and Clark, Robert L., PhD., "Retirement Policy and Promotional Prospects", Gerontologist (October, 1980) Volume 20 at p. 575.

Exhibit I -- Morrison, Malcom H., "Highlights of U.S. Department of Labour Interim Report on Raising The Mandatory Retirement Age", Aging and Work: A Journal on Age, Work and Retirement (Fall, 1981) Volume 4 at p. 258.

Exhibit J -- Barker, David T., and Clark, Robert L., "Mandatory Retirement and Labour-Force Participation of Respondents in the Retirement History Study", Social Security Bulletin (November, 1980) Volume 43 at p. 20.

28 At the outset of the hearing before us, counsel for the applicants made a preliminary motion to strike out the affidavit of Jennifer Dietrich-Suzor from the respondent's record. The above-mentioned "scholarly articles" were attached as exhibits to that affidavit; it was alleged that such evidence offended against rule 4.06(2).

29 In argument counsel for the applicants conceded that these "scholarly articles" were admissible as evidence that other free and democratic societies have considered the social utility for mandatory early retirement and have enacted laws to effect that purpose; but he submitted that these "scholarly articles" were not relevant to the facts of this case; and that no inference should be drawn from them. The respondent sought to adduce this evidence in relation to the application of s. 1 of the Charter in the event that this court found an infringement of a Charter right.

30 An order was made that the affidavit was admissible. I quote from the reasons given at that time:

Because counsel for the applicants conceded that those "scholarly articles" are admissible for the first purpose referred to above, we have decided to admit them. After hearing all the submissions and at the conclusion of the case we will decide the relevance of these articles; also the weight to be given to them and what, if any, inferences should be drawn from them. Having made that decision, we have decided that Mr. Cavalluzzo is entitled to an adjournment if he feels that he requires further time to prepare in the light of our ruling.

31 After that ruling was made, Mr. Cavalluzzo requested a short adjournment to permit him to consider this offer with his clients. At the conclusion of the adjournment he announced that he would not seek an adjournment and was prepared to proceed.

32 In my opinion these "scholarly articles" are relevant to the question of the social utility for mandatory early retirement; and to the application of s. 1 of the Charter to the facts of this case.

33 Many of the above arguments advanced on behalf of the board are identical to those urged on the court in Re McKinney and Board of Governors of University of Guelph et al. and seven other applications (1986), 57 O.R. (2d) 1, 32 D.L.R. (4th) 65, 14 C.C.E.L. 1, which held that mandatory retirement was justifiable under s. 1 of the Charter. The onus is on the board to justify its policy of mandatory retirement. In R. v. Oakes (1986), 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321, [1986] 1 S.C.R. 103, the Supreme Court of Canada laid down the test as to how that onus is to be met. Of course Gray J. was referring to s. 9(a) of the Ontario Human Rights Code, 1981. I agree with the conclusions expressed by Gray J. on this issue and apply his analysis of the application of the test in Oakes to the instant case.

34 We were referred to several American cases upholding mandatory retirement. These cases are important with respect to what other "free and democratic" societies regard as justifiable. In Palmer v. Ticcione (1978), 576 F. 2d 459, the United States Court of Appeals, Second Circuit, upheld mandatory retirement for a kindergarten teacher stating that the state might prescribe mandatory retirement for teachers in order to open up employment opportunities for young teachers, to open up more places for minorities, to bring young people with fresh ideas and techniques in contact with school children and to assure predictability and ease in establishing and administering pension plans; compulsory retirement is rationally related to fulfilment of any or all of these legitimate state objectives.

35 Similar results were found in Lewis v. Tucson School District No. 1, 531 P. 2d 199, and Lamb v. Scripps College (1980), 627 F. 2d 1015.

36 In Re Stevenson and Canadian Human Rights Com'n et al. (1983), 150 D.L.R. (3d) 385, 49 N.R. 161, the Federal Court of Appeal considered the question of mandatory retirement at age 60 for pilots employed by Air Canada. The court upheld mandatory retirement and while concurring with the majority but with separate reasons, McQuaid D.J. makes the following observation [at p. 411]:

I would be of the view that the grouping created by the establishment of a normal age of retirement, as it applies to the applicant, is both reasonable and relevant and is, within the contemporary social context, both necessary and reasonable to attain a desirable social objective, that is, the orderly retirement from the work force, with dignity and some degree of financial security, of those who have devoted the best of their working years to the establishment of the way of life of which we are all beneficiaries while, at the same time, providing the opportunity for those of that other group, who have not yet reached that normal age of retirement, to progress upward in their respective field of employment and to enable them to make their own contribution to the enhancement of that way of life.

37 There is some merit to the applicant's position that the general application of the policy of mandatory retirement at age 65 does not take into account the specific situation of each individual and that age is not always a certain measure of abilities. However, the objectives as set out above are of sufficient importance and the means chosen are both on the evidence before the court demonstrably justified under s. 1 of the Charter.

38 For the above reasons I hold the board's requirement of mandatory retirement at age 65 constitutes a reasonable limit that is demonstrably justified in a free and democratic society under s. 1 of the Charter.

39 ANDERSON J.:-- The applicants seek judicial review of the termination by the respondent board of the employment of the applicant Mordowanec as a teacher. The termination was in pursuance of a policy of the respondent board to retire all employees at age 65. The applicant association is bargaining agent under the collective agreement with the respondent board. Disposition of the application involves deciding whether the remedy sought is available in the circumstances disclosed by the material, and whether any constitutional right of the applicant Mordowanec under s. 15 of the Canadian Charter of Rights and Freedoms (the Charter) has been denied or violated. Resolution of these issues is of some consequence to the parties and of some general interest as well.

40 The respondent board is a body corporate and it is a "board" within the meaning of the Education Act, R.S.O. 1980, c. 129, as amended (the Education Act). It has responsibility for St. Anne's High School, Tecumseh. Since 1969 the board has had a policy of retiring all employees at age 65, subject only to exemptions for limited periods with the approval of the board. This policy is enunciated in the following terms:

THE ESSEX COUNTY ROMAN CATHOLIC SEPARATE SCHOOL BOARD

RETIREMENT OF EMPLOYEES POLICY STATEMENT

All employees of The Essex County Roman Catholic Separate School Board shall be retired at age 65. Extensions beyond this time may be granted for limited periods with the approval of the Board.

ADMINISTRATIVE REGULATIONS

1. Retirement for all personnel is to be the last day of the month in which the age of 65 is attained, except where a contract must be fulfilled, in which case retirement would coincide with the expiry date of the contract.

2. Upon written application by the employee to the Secretary of the Board, at least three months in advance of retirement age, an extension may be granted by the Board, beyond the retirement age, on a year to year to year basis, contingent upon:

a) the health of the candidate as indicated by a physician, and

b) the recommendation of the Director.

3. Retirement prior to age 65 is not precluded by this policy.

4. The Board will recognize retirement:

a) of personnel after ten continuous years of employment with this Board or a predecessor Board.

b) Trustees after one or more terms of service with this Board.

41 Mordowanec was employed by the board from 1970 until 1985. He was department head, business and commerce department, from about September, 1977 until the termination of his employment, effective August 31, 1985. He reached the age of 65 on July 7, 1984. In May of 1984 he petitioned the board's director of education for an extension of his employment beyond the retirement age for the duration of the school year 1984 to 1985, his application being in the following terms:

I am formally requesting that I be allowed to teach at St. Anne's High School for another year. As you are aware, I am due for retirement at the end of this current school year.

My reasons are two-fold. St. Anne's does not have anyone at this time fully qualified in Business Studies since Mrs. McGuinnes resigned. Secondly I would like to teach in order to groom someone for next year to take my place.

The principal of St. Anne's recommended to the board that the applicant's employment be extended. At a regular meeting of the trustees of the board in June of 1984 a motion was passed granting a one-year extension. The board minute states:

Moved by Messrs. Dupuis and Menard

THAT Mr. Ivan Mordowanec be granted a one year extension beyond retirement to continue teaching at St. Anne's High School -- without prejudice.

CARRIED.

In April of 1985 the applicant applied for a further extension putting his application as follows:

This letter is to inform you that I wish to continue teaching at St. Anne's in my same position for the 1985 to 1986 school year.

Since I started teaching later in my life, I would have to retire at a lower pension (25% less) if forced to leave teaching at this time.

I am in good health and feel that I am able to make a contribution to the school and its students and look forward to serving both.

At a regular meeting of the trustees of the board in May of 1985 a motion was passed denying the applicant. The minutes of that meeting state: "Moved by Mrs. Beneteau and Mr. Horan THAT the request from Mr. I. Mordowanec St. Anne's High School, for a one year extension not be approved. CARRIED." The applicant was advised of the board's decision by a letter in the following terms:

Please be advised that the Essex County Roman Catholic Separate School Board passed the following motion at its regular Board meeting on May 21, 1985.

Moved by Messrs. Trepanier and Menard THAT WHEREAS Ivan Mordowanec was due to retire last year in keeping with the Board's mandatory retirement policies for employees who have attained the age of 65 years;

AND WHEREAS Ivan Mordowanec petitioned the Board for a postponement of his retirement and an extension of his contract for one year;

AND WHEREAS the Board granted an extension for one year only and this was accepted by Mr. Mordowanec;

NOW THEREFORE be it resolved that the teaching contract and the employment of Mr. Ivan Mordowanec with the Essex County Roman Catholic Separate School Board be terminated effective August 31, 1985. CARRIED.

42 The duties and powers of a "board" under the Act are set out in some detail in Part VI of the Act. Of importance in the disposition of the application now before us is s. 150 which reads in part as follows:

150(1) A board may,

. . . . .

Also of importance among the provisions of the Act is s. 239 which reads in part as follows:

239(1) The dismissal of a teacher, or the termination of the contract of a teacher, by a board shall be by notice in writing, which shall state the reasons therefor, in accordance with the terms of the contract.

(2) Where a teacher is employed by a board, the termination of the contract by the teacher shall be by notice in writing in accordance with the terms of the contract.

(3) Where a teacher is dismissed or the contract of a teacher is terminated by the board or the teacher, the teacher or board if not in agreement with the dismissal or termination may at any time within twenty-one days after receiving the notice referred to in subsection (1) or (2), as the case may be, apply in writing by registered letter to the Minister for a Board of Reference, stating the disagreement.

43 Mordowanec was employed by a contract in writing which was in the form required by regulations passed under the Act. That contract provided in part as follows:

6. This agreement may be terminated

. . . . .

(b) on the 31st day of December in any year of the Teacher's employment by either party giving writen notice to the other on or before the last preceding 30th day of November, or

(c) on the 31st day of August in any year of the Teacher's employment by either party giving written notice to the other on or before the last preceding 31st day of May.

The collective agreement which was in force between the parties provided in part as follows:

2.01 Grievance Procedure

. . . . .

(g) Any matter in regard to which a teacher may have the right to a Board of Reference is not subject to the Grievance Procedure.

. . . . .

2.02 Arbitration

. . . . .

(n) Any matter in regard to which a teacher may have a right to a Board of Reference shall not be arbitrable.

44 While the topic is not dealt with in the material, it was common ground between counsel on the argument that as a matter of policy the Minister of Education will not grant a Board of Reference under s. 239 of the Act where the termination has been in pursuance of a policy of retirement at age 65.

45 The first issue to be resolved upon this application is whether the termination of the employment of Mordowanec is subject to judicial review. The following provisions of the Judicial Review Procedure Act, R.S.O. 1980, c. 224 (hereinafter referred to as the JRP Act), are significant.

1. In this Act,

. . . . .

(f) "statutory power of decision" means a right or power conferred by or under a statute to make a decision deciding or prescribing,

(i) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(ii) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether he is legally entitled thereto or not,

and includes the powers of an inferior court;

(g) "statutory power" means a power or right conferred by or under a statute,

(i) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(ii) to exercise a statutory power of decision...

Having regard for the provisions of s. 150(1), para. 2, and s. 239 of the Act it appears to me that when the board passed the resolution which in effect terminated the employment of Mordowanec it was exercising a "statutory power of decision" in that the resolution comprised a "decision deciding or prescribing ... the eligibility of [Mordowanec] ... to the continuation of, a benefit or licence", i.e., his employment.

46 The JRP Act provides in part as follows:

2(1) On an application by way of originating notice ... the court may ... grant any relief that the applicant would be entitled to in any one or more of the following:

. . . . .

2. Proceedings by way of an action for a declaration ... in relation to the exercise ... of a statutory power.

In my view, the applicants are entitled to have the impugned actions of the board judicially reviewed.

47 Having decided that the applicants are entitled to judicial review for the reasons I have enunciated it is unnecessary for me to consider the alternative argument made on their behalf that, whether a "statutory power of decision" was involved or not, the court had power under s. 2(1) of the JRP Act to grant relief by way of certiorari and that such relief should be granted.

48 I turn now to the next issue to be resolved upon the application. That is, the contention of the applicants that the retirement policy of the respondent board violates s. 15(1) of the Charter. This requires, initially, consideration of whether the Charter applies to the actions and decision of the Board which are central to the case before us. The relevant provisions of the Charter and Constitution Act, 1982 are the following:

. . . . .

32(1) 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.

. . . . .

52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

49 Jurisprudence developed under the Charter establishes the following general propositions. "It is intended to restrain governmental action ...": Hunter et al. v. Southam Inc. (1984), 11 D.L.R. (4th) 641 at p. 650, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1. It "is meant to curtail absolute parliamentary and legislative supremacy in Canada": Re McCutcheon and City of Toronto et al. (1983), 41 O.R. (2d) 652 at p. 663, 147 D.L.R. (3d) 193 at p. 204. It applies to delegated legislation and regulation: McCutcheon, supra, and Re Klein and Law Society of Upper Canada (1985), 50 O.R. (2d) 118, 16 D.L.R. (4th) 489, 13 C.R.R. 120. It "does not reach private activity within a province": Re Blainey and Ontario Hockey Ass'n et al. (1986), 54 O.R. (2d) 513 at p. 521, 26 D.L.R. (4th) 728 at p. 736, 10 C.P.R. (3d) 450. It may well be that "... all acts taken pursuant to powers granted by law will fall within s. 52": Operation Dismantle Inc. et al. v. The Queen et al. (1985), 18 D.L.R. (4th) 481 at p. 494, [1985] 1 S.C.R. 441, 13 C.R.R. 287 at p. 300. The latter question was left open by the Supreme Court of Canada. No case has been cited to us which goes that far.

50 In considering whether the Charter applies to an action or activity, attention must be directed, first, to the nature and quality of the actor, and second, to the nature and quality of the action or activity. The first area of inquiry is to determine whether the action or activity is that of government: for the purposes of this case, that of the "legislature" or "government" of Ontario. If it is, the second area of inquiry is to determine whether the action or activity is "law" within the meaning of that word as used in s. 15(1) of the Charter and s. 52(1) of the Constitution Act, 1982. One must examine both the actor and the act.

51 I turn now to the first area of inquiry, namely, the nature and quality of the actor. The respondent board is a body corporate. The Education Act is a comprehensive statute dealing with virtually all aspects of elementary and secondary education in the province, whether in public or separate schools. School boards have their existence under the Education Act, and their duties and powers are defined and provided by it. A board has power to expropriate (s. 171) and to levy rates (s. 224). It has, by virtue of s. 26 of the Interpretation Act, R.S.O. 1980, c. 219, power to sue and be sued, and to contract. In my view, it is fair to conclude that a school board is created under a comprehensive statute dealing with education and has a clearly defined role within the scheme of the statute, and to conclude in consequence that the actions of a board may properly be said to be, for the purposes of the Charter, the actions of the "legislature" or "government" of Ontario. By this I do not mean that a board is the agent of the Crown in the ordinary sense. In my view, it is not.

52 Attention is thus directed to the second area of inquiry: is the action or activity under review "law" within the meaning of s. 15(1) of the Charter and s. 52(1) of the Constitution Act, 1982. What is the nature and quality of the activity? (Hereafter when I use the term "law" I use it as so qualified.) Dealing for the moment with school boards, it is obvious that they engage in a wide spectrum of activities. If a board exercised its statutory power of expropriation, I think it possible that the activities incidental to that exercise could be said to be "law", notwithstanding the narrow ambit of such activities. On the other hand, if a school board exercised its ordinary corporate power to contract for the cleaning of a school building, I think it unlikely that activities incidental to the contract could be said to be law. Somewhere between these extremes is the activity of the respondent board upon which attention is focused in these proceedings.

53 For the purpose of considering the nature of that activity, I set out again, for convenience of reference, the salient portions of the retirement policy:

RETIREMENT OF EMPLOYEES

POLICY STATEMENT

All employees of The Essex County Roman Catholic Separate School Board shall be retired at age 65. Extensions beyond this time may be granted for limited periods with the approval of the Board.

Likewise for convenience of reference I set out again the excerpt from the minutes of the meeting of the board in May of 1985:

AND WHEREAS Ivan Mordowanec petitioned the Board for a postponement of his retirement and an extension of his contract for one year;

AND WHEREAS the Board granted an extension for one year only and this was accepted by Mr. Mordowanec;

54 It was the submission of counsel for the applicants that the policy statement was a "regulation" as that term is understood in common legal parlance, as, for example, subordinate legislation created by Order in Council pursuant to the provisions of an Act of the Legislature. In my view, there is no health in that argument. The policy statement is simply that: a statement of the board as to its policy with respect to retirement of its employees. Standing by itself it is of no force or effect and binds no one.

55 The basic, determinative question in this case is whether, either standing alone, or viewed in conjunction with the resolution which terminated the employment of Mordowanec, the policy of the board is "law". If it is not, the Charter has no application. By s. 32 the Charter applies to governments, i.e., law-making bodies. Section 52(1) strikes at "law" which is inconsistent with the Charter. Equality rights in s. 15(1) are rights with respect to "law".

56 The purpose of the Charter is to protect the individual against certain acts or activities which impinge upon the acts or activities of the individual, and which, because they have behind them the power of the State, leave the individual unable to resist. An obvious example is the use of the search warrant. The relationship involved is that of the subject to the State.

57 The relationship of the applicant Mordowanec to the respondent board is not that of the subject to the State; it is the relationship of an employee to his employer. I do not consider it material that the form of the contract is provided by the Act and the regulations thereunder, or that the respondent board is controlled in certain respects concerning termination of a teacher's employment by the provisions of the Act.

58 The real burden of Mordowanec's complaint is that his employment was terminated for what he says was an improper (discriminatory) cause. He has no contractual basis for this complaint, either under the collective agreement or under his individual employment contract. He has no tenable basis for complaint under the Ontario Human Rights Code, R.S.O. 1980, c. 340. These are the usual bases of such complaints. In my view, s. 15(1) of the Charter cannot be invoked instead. I see nothing in the language of the Charter, nor in its purpose as I understand it, which would call for intervention by the court in the incidents of a contractual relationship solely because one of the contracting parties has some nexus with government. While the Charter is to be given a broad and liberal interpretation, it should not be invoked in what are essentially private matters. This is clear on authority to which reference has already been made.

59 To designate as "law" the policy of the board, or the resolution by which the employment of Mordowanec was terminated, or both together, requires a forcing of that word such that I would be prepared to make that designation only if plainly constrained to do so by binding authority. I have seen none.

60 R. v. Lerke (1984), 11 D.L.R. (4th) 185, 13 C.C.C. (3d) 515, 55 A.R. 216, which held the Charter applicable to the acts of a tavern keeper, has been disapproved by the Court of Appeal in Blainey, supra.

61 Perhaps closest to the case at Bar is Stoffman et al. v. Vancouver General Hospital et al. (B.C.S.C., July 23, 1986 [reported 30 D.L.R. (4th) 700, [1986] 6 W.W.R. 23]). The plaintiffs in that case were doctors whose "admitting privileges" were to be terminated because they were over the age of 65 and lacked unique skills. This was pursuant to a medical staff regulation approved by the Minister of Health. The trial judge found as a fact that the provincial government effectively controlled the affairs of the hospital and found that the hospital was an agency of the government of the province. The judge held that the Charter applied; however, in the end he concluded that no Charter right had been denied by the regulation itself, though he found in its application a breach of the Charter. The case, of course, is not binding on us, and is distinguishable on the facts. There is no ministerial act involved in the case at Bar, and I would not be prepared to conclude that the respondent board is an agency of the provincial government, although it has some nexus to that government. Boards of education have a significant measure of autonomy which the Vancouver General Hospital did not have. Nor did the case have the simple contractual nature of the case at Bar.

62 In Re Maw et al. and Board of Education for Borough of Scarborough and two other applications (1983), 43 O.R. (2d) 694, this court apparently accepted without argument that the Charter could apply to a school board in respect of the rights of "hard to serve pupils". The impugned refusal of the Board to act concerned refusal to hold a hearing pursuant to an express statutory power and was quite a different matter than that with which we are concerned in the case at Bar. In any event, the applicability of the Charter does not seem to have been made the subject of argument.

63 Two recent decisions of judges of the High Court should be mentioned. First in point of time is that of White J. in Re Lavigne and Ontario Public Service Employees Union et al. (1986), 55 O.R. (2d) 449, 29 D.L.R. (4th) 321, 86 C.L.L.C. D7819981814,039. In that case, White J. concluded that a college's council of regents (appointed by the Lieutenant-Governor in Council) is a Crown agency and a governmental actor to which the Charter applies. In the result he determined that, in entering into a collective agreement with a union which included a compulsory dues check-off provision, a board of regents abridged a non-union employee's freedom of association under s. 2(d) of the Charter, by forcing the employee to associate himself with the union and causes which it supports. He quotes [at p. 479 O.R., p. 351 D.L.R.] from Operation Dismantle, supra:

"I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to "laws" in s. 52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the Constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s. 52."

and then says:

Although I realize that speaking through the Chief Justice, the Supreme Court did not make a ruling to this effect, I am prepared to hold that governmental action does include the entering into of a contract by a Crown agency pursuant to powers granted by statute in the context of the facts at bar. To hold otherwise would be to permit "government", as identified in s. 32(1) of the Charter, to impose terms in a contract that it could not impose by statute or regulation because they breach the Charter. Such an arrangement would defeat the purpose of the Charter.

64 There are obvious factual differences between Lavigne and the case at Bar (for example, the position of a board under the Act is not that of a board of regents), and in any event it is not binding on us. The language of White J. was carefully guarded: "... I am prepared to hold that governmental action does include the entering into of a contract by a Crown agency pursuant to powers granted by statute in the context of the facts at bar." I need not take issue with what he said, but I should be explicit that in my view the purpose of the Charter is to restrain the exercise of the power of government in matters other than contract. I should also say that I do not agree that such a conclusion would defeat the purpose of the Charter. I can see the force of some such argument in cases dealing with legislation or regulation called into existence by an agency of government, but not in cases dealing with contract.

65 Lavigne was distinguished by Gray J. in Re McKinney and Board of Governors of University of Guelph et al. and seven other applications (unreported, released October 15, 1986 [since reported 57 O.R. (2d) 1, 32 D.L.R. (4th) 65, 14 C.C.E.L. 1]). It had to do with mandatory retirement in the universities. In that case, retirement at 65 was provided in a collective agreement. (There is a collective agreement in the case at Bar, but it is silent as to mandatory retirement.) He commented (typescript p. 19 [p. 13 O.R., p. 77 D.L.R.]) on the private contractual nature of the employer-employee relationship. He concludes by finding that the Charter does not apply to the mandatory retirement policies and contractual terms of universities and that s. 9(a) of the Ontario Human Rights Code, 1981 (Ont.), c. 53 (which has the effect of denying to persons age 65 or over the right to complain that their rights to equal treatment have been infringed), although inconsistent with the Charter, was justified under s. 1 as a reasonable limit. That case is now under appeal and it is reasonable to conclude that further guidance as to s. 9(a) of the Code will be forthcoming.

66 These two, and cases dealing with the application of the Charter to the activities of other bodies, have given much consideration to the nexus of the body in question to some undeniable element of government, e.g., in Stoffman, the relationship of the hospital to the government of the province. Such consideration, of course, is essential; it is only the activities of government which are controlled by the Charter. But to conclude that there is a nexus does not, in my view, conclude the inquiry; it still remains to determine whether the activity is one which is controlled.

67 I have concluded that the fact that a statutory power of decision as defined in the JRP Act was exercised, is irrelevant in deciding whether the Charter applies. It is a definition contained in the JRP Act and is relevant only to deciding whether judicial review is available to the applicants.

68 In any event, I find it impossible to apply s. 15(1) to the facts of this case. It seems to me an inescapable conclusion that s. 15(1) addresses itself to the rights and liabilities of the individual in relation to law in the sense of a rule of conduct made binding upon a subject by the State. Two dictionary definitions of "law" are helpful. The following is found in the Shorter Oxford Dictionary (1973): "The body of rules ... which a state or community recognizes as binding on its members or subjects." See also Webster's New World Dictionary, Second College Edition (1978): "All the rules of conduct established and enforced by the authority, legislation, or custom of a given community, state, or other group." Of course the "law" might be a narrower kind; for example, an exercise of the right of eminent domain.

69 The individual is entitled to equality with others in the administration and enforcement of the law: to be equally protected and benefited by it and not to be subjected to undue and unequal liabilities and burdens. The individual is entitled to equality with others in the substance of the law and ought not to be singled out by the imposition of undue and unequal liabilities and burdens or the denial of benefits generally provided. Considering, as we must, that the "law" in the instant case is to be found in the policy or resolution of the board, or in both, no such entitlement as contemplated by s. 15(1) is sought. There is no complaint concerning administration or enforcement of the "law", nor concerning inequality in its substance. In this context protection of the law obviously has no place.

70 Since I have concluded that the Charter does not apply to the impugned activities of the board, it is not necessary that I consider whether the activities are discriminatory, and if they were, whether they are justified under s. 1 of the Charter. In view of the plethora of Charter decisions, emanating from many courts at various levels, I think that anything not necessary to be said should be left unsaid.

71 I would dismiss the application, with costs if demanded.

72 MCKINLAY J. concurs with ANDERSON J.

Application dismissed.