The Charters Relevance to Private Litigation:
Does Dolphin Deliver?
Brian Slattery*
The author critically examines the recent de-
cision of the Supreme Court of Canada in
Retail, Wholesale and Department Store
Union, Local 580 v. Dolphin Delivery Ltd.
This case holds that the Canadian Charter of
Rights and Freedoms only applies to the re-
lations between government and private per-
sons and not to relations between private
persons alone, with two exceptions. The au-
thor argues that the first exception – when
a private person invokes a statute, rather
than the common law, against another pri-
vate person –
is untenable because both the
common law and the droit civil are grounded
in legislative instruments, respectively Re-
ception Acts and the Civil Code of Lower
Canada. He also argues that the second ex-
ception –
that the courts ought to develop
the common law in a manner consistent with
the Charter in general –
is incongruous, for
it directs them to do on the one hand what
they have been disqualified from doing on
the other. The author suggests that the dis-
tinction between legislation and the common
law (or droit civil) is not helpful in determin-
ing when the Charter should apply. This de-
termination should be made, not on a
wholesale basis, but in light of individual
Charter provisions.
Introduction
Uauteurjette un regard critique sur Ia rgcente
decision de la Cour supreme dans ‘affaire
Retail, Wholesale and Department Store
Union, Local 580 c. Dolphin Delivery Ltd.
Cette decision est i l’effet que la Charte ca-
nadienne des droits et libertes ne vise que les
relations entre le gouvernement et les indi-
vidus, et non les relations des individus entre
eux, sauf deux exceptions. Selon ‘auteur, la
premiere exception –
soit le cas oii un in-
dividu allfgue une loi plut~t que ]a common
law contre un autre individu – n’est pas utile
car Ia common law et le droit civil sont tous
deux fondfs sur des textes lfislatifs, soit les
Reception Acts et le Code civil du Bas-
Canada. Uauteur soutient de plus que la se-
conde exception –
soit que les tribunaux
doivent d6velopper Ia common law confor-
moment aux principes de la Charte –
est
inapproprie, car elle exige des tribunaux
qu’ils fassent d’un c6t8 ce qui de ‘autre leur
est interdit. Uauteur sugg~re que Ia distinc-
tion entre Ifgislation et common law (ou droit
civil) ne constitue pas un crit~re utile pour
determiner d’avance les cas ofx la Charte de-
vrait s’appliquer. Plut8t, cette determination
depend exclusivement, dans chaque cas,
d’une analyse des dispositions de la Charte.
In Retail, Wholesale and Department Store Union, Local 580 v. Dolphin
Delivery Ltd,’ the Supreme Court of Canada holds that the Canadian
Charter ofRights and Freedoms2 does not apply to relations between private
*Associate Professor, Osgoode Hall Law School, York University. A version of this paper
was first delivered to the Constitutional Law Group at Osgoode Hall Law School. I am indebted
to the members of the group for their stimulating comments and criticisms, in particular
Professors John Evans and Sidney Peck. I would also like to thank Mr John Devlin ofOsgoode
Hall Law School and the editors of the McGill Law Journal for their helpful suggestions.
1(1986), [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174 [hereinafter Dolphin cited to S.C.R.].
2Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
REVUE DE DROIT DE McGILL
[Vol. 32
persons, but only to relations between the government and private persons.3
Nevertheless, the Court qualifies this holding in two ways. It says that the
Charter will apply to private relations where one party invokes a govern-
mental act in the form of a statute or delegated legislation to justify the
infringement of the rights of another private party.4 Second, the Court says
that even where this is not the case, the courts ought to apply and develop
the common law rules governing private relations in a manner consistent
with the fundamental values embodied in the Constitution.5
I will argue here that these qualifications have the remarkable (and
apparently unforeseen) effect of exposing all private conduct to possible
scrutiny under the Charter in most parts of Canada. The fact that this result
directly contradicts the Supreme Court’s major holding makes Dolphin a
decision at war with itself. The matter will have to be reconsidered by the
Court on some future occasion. Hopefully, by that time it will have had the
opportunity to take fuller account of the difficult structural problems in-
herent in the Charter.
The issue in Dolphin is whether or not a court injunction to restrain a
union from picketing at the premises of a company infringes the union’s
freedom of expression under section 2b) of the Charter. The injunction was
originally granted on the basis that the company was a third party to an
industrial dispute between the union members and their employer, and that
picketing of third parties is tortious at common law and lacks statutory
protection.
In a majority judgment written by Justice McIntyre, the Supreme Court
agrees with the contention that the anticipated picketing involves an exercise
of freedom of expression under the Charter, but goes on to find that the
tort of inducing a breach of contract is a reasonable limit on that freedom
under section 1 of the Charter. In any case, the Court holds, these rulings
are strictly unnecessary, for the case can be disposed of on a separate basis.
The party allegedly in breach of the Charter is a private company with no
governmental connections. Moreover, the injunction restraining the pick-
eting is based on the common law, not a statutory provision or other gov-
ernmental act. In short, neither is the company itself a state agent nor does
it invoke state authority for its claim. But under section 32(1), argues the
Court, the Charter applies only to the Parliament and government of Canada
3The majority judgment was delivered by McIntyre J., with Dickson C.J., Estey, Chouinard
and Le Dain JJ. concurring. Beetz J. and Wilson J. each wrote separate opinions that concur
with the majority judgment on this point. All references in this paper are to the majority
judgment of Justice McIntyre.
4Supra, note I at 602-3.
51bid. at 603.
1987]
CHRONIQUE DE JURISPRUDENCE
and to the legislatures and governments of the provinces. 6 The section does
not refer to private parties. Therefore, the company is not bound by the
Charter and the union can not use the Charter as a shield.
In reaching this conclusion, the Supreme Court deals with two impor-
tant counter-arguments. According to the first, under section 52(1) of the
Constitution Act, 1982, the Charter takes precedence over all ordinary laws,
including the common law.7 On this basis the common law rules invoked
to prevent the picketing must be subject to scrutiny under the Charter like
any other legal rules, regardless of the private or governmental character of
the parties.
The Court accepts the premise of this argument, but denies the inference
drawn from it. There can be no doubt that the Charter does apply to the
common law: “To adopt a construction of s. 52(1) which would exclude
from Charter application the whole body of the common law which in great
part governs the rights and obligations of the individuals in society, would
be wholly unrealistic and contrary to the clear language employed in s. 52(1)
of the Act.’ 8 However, maintains the Court, the common law is not subject
to the Charter in all instances, but only when invoked to support the action
of a governmental agent covered by section 32(1). Such action usually de-
pends on statutory authority, but occasionally it may rest on the common
law, as in the case of prerogative acts. In such instances, where the common
law rule constitutes or creates an infringement of a Charter right, the gov-
ernmental action taken pursuant to it will be unconstitutional. “In this way”,
comments Justice McIntyre, “the Charter will apply to the common law,
whether in public or private litigation. It will apply to the common law,
however, only in so far as the common law is the basis of some governmental
action which, it is alleged, infringes a guaranteed right or freedom.”9
The second counter-argument enters the scene at this point. If it is
necessary to identify a governmental agent acting in reliance on the common
law, such an agent can be found in the court applying the common law rule
6S. 32(1) provides:
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.
7S. 52(1) provides:
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 incon-
sistency, of no force or effect.
gDolphin, supra, note 1 at 593.
9Ibid. at 599.
McGILL LAW JOURNAL
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to the private dispute before it. The courts are clearly bound by the Charter
in the sense that they are required to apply its terms whenever appropriate.
But, it is argued, this proposition necessarily entails that, where a private
party urges a court to use a common law rule in a manner that would infringe
the Charter right of another, the court must decline to take the action sought
unless it can be justified under section 1.
The Supreme Court agrees that judges have the duty to apply the
Charter to the matters that come before them. However, it rejects the con-
clusion drawn from this proposition:
The courts are, of course, bound by the Charter as they are bound by all law.
It is their duty to apply the law, but in doing so they act as neutral arbiters,
not as contending parties involved in a dispute. To regard a court order as an
element of governmental intervention necessary to invoke the Charter would,
it seems to me, widen the scope of Charter application to virtually all private
litigation. All cases must end, if carried to completion, with an enforcement
order and if the Charter precludes the making of the order, where a Charter
right would be infringed, it would seem that all private litigation would be
subject to the Charter.’0
This passage p6ints to the main concern animating the Court’s decision: the
fear that if the Charter is held applicable to private relations, there will be
virtually no private dispute that will not raise a Charter argument. The
desire to prevent the Charter from intruding into every area of human
activity is a valid one. But the Court’s concern is misplaced. As I will argue
later, holding the Charter applicable to private relations will not inevitably
draw it into most private disputes. The extent of the Charter’s application
to private relations will depend on the interpretation given to its individual
provisions, some of which may have little or no application to private
matters.
In fact, the Court itself does not fully endorse the conclusion that the
Charter is irrelevant to private relations, for it notes two significant excep-
tions. The first is this: the Charter will apply to disputes between private
parties where the party interfering with the rights of another invokes or
relies on a governmental act. The act may take the form of a statute or
delegated legislation such as regulations, orders-in-council and by-laws.”
Where, however, the private party allegedly infringing the Charter rights of
another invokes the common law and not a governmental act, the Charter
will not apply.
IIbid. at 600-I.
“Ibid. at 602. In a puzzling aside, the Court suggests that this is only “possibly” true of
municipal by-laws.
1987]
COMMENTS
The Court’s views on this matter emerge in the course of its discussion
of the judgment of the Ontario Court of Appeal in Re Blainey and Ontario
Hockey Association.12 Justice McIntyre writes:
In the Blainey case, a law suit between private parties, the Charter was applied
because one of the parties acted on the authority of a statute … which infringed
the Charter rights of another. Blainey then affords an illustration of the manner
in which Charter rights of private individuals may be enforced and protected
by the courts, that is, by measuring legislation – government action – against
the Charter.
The lesson drawn by the Court is clear “Where such exercise of, or reliance
upon, governmental action is present and where one private party invokes
or relies upon it to produce an infringement of the Charter rights of another,
the Charter will be applicable. >13
Lest there be any doubt as to the meaning of these observations, the
Court goes on to apply them to the facts in Dolphin:
Can it be said in the case at bar that the required element of government
intervention or intrusion may be found? … If in our case one could point to
a statutory provision specifically outlawing secondary picketing of the nature
contemplated by the appellants, the case –
assuming for the moment an in-
fringement of the Charter – would be on all fours with Blainey and, subject
to s. 1 of the Charter, the statutory provision could be struck down.
But the parallel does not exist: “In the case at bar, however, we have no
offending statute. We have a rule of the common law which renders sec-
ondary picketing tortious and subject to injunctive restraint, on the basis
that it induces a breach of contract. 14
So the application of the Charter to private disputes depends on whether
they are governed by legislation or the common law. Where no legislative
element is present, the Charter will not affect purely private relations. But
even this conclusion the Court hastens to qualify. Although the Charter will
not protect a private person from the acts of another individual under the
common law, this does not mean that the Charter has no relevance to the
common law at all. Rather, the Court asserts, the judiciary ought to apply
and develop the common law in a manner consistent with the fundamental
values of the Constitution, including the Charter.
My aim here is not to give a detailed analysis of the Court’s reasoning,
although much of it is controversial. I propose instead to take the decision
at its word and see where it leads. My point is that the Court ushers us over
the edge of the very abyss that it conjures up, all the while reminding us to
12(1986), 54 O.R. (2d) 513, 26 D.L.R. (4th) 728.
O3Dolphin, supra, note I at 602-3.
141bid. at 603.
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keep our footing. I will concentrate on the two areas in which the Court
holds that the Charter is relevant to private litigation: where a statute or
other enactment is invoked by a private party to justify the infringement
of the rights of another; and where the common law governing the relations
between private parties conflicts with basic constitutional values.
I. Statutory Authority for the Infringement of Charter Rights
As we have seen, the Court argues that the Charter applies to private
relations where an alleged infringement of Charter rights is justified by
reference to legislation, but not where the common law is invoked. The
distinction between legislation and the common law is, of course, a time-
honoured one in English law. But it is doubtful whether it can play a useful
role in Canada in defining the scope of the Charter There are two essential
reasons. First, in parts of Canada other than Quebec, the application of
English common law usually depends on explicit provisions in Reception
Acts. And in Quebec, the sphere of private law is governed by the Civil
Code of Lower Canada, which was given the force of law by a pre-
Confederation statute. Thus, the distinction between reliance on the com-
mon law (or droit civil) and reliance on legislation ultimately dissolves.
Second, even assuming that the distinction can somehow be salvaged, it is
irrelevant for the purpose of determining when the Charter should apply. I
will deal with these points separately.
A. The Legislative Basis of Private Law in Canada
In the common law areas of Canada, the private law is grounded in
legislation. The explanation for this is simple: English common law, which
governs private relations in the absence of specific legislation, itself applies
by virtue of provisions found in various enactments.
The point can best be appreciated if we return to the facts of the Dolphin
case. There, the Supreme Court argues that the Charter did not apply because
the dispute between the parties was governed by the common law. That is,
the company sought to prevent the union’s picketing by invoking the com-
mon law tort of inducing a breach of contract. If the same tort were em-
bodied in a statute, observes the Court, the Charter would have applied.
However, no such statutory tort was available.
What the Court fails to consider is the fact that the tort in question
forms part of British Columbia law by virtue of a series of legislative acts. 15
‘For a fuller account of the introduction of English law into British Columbia, see R.G.
Herbert, “A Brief History of the Introduction of English Law into British Columbia” 2 U.B.C.
Legal Notes 93; J.E. Cote, “The Reception of English Law” 15 Alta L. Rev. 29 at 91-92.
1987]
CHRONIQUE DE JURISPRUDENCE
A Proclamation issued on 19 November 1858 by the Governor of British
Columbia, under legislative authority conferred by imperial statute, pro-
vided that English law as it existed on that date applied in the colony, which
comprised the southern mainland of modern British Columbia.’ 6 Later, after
the province was expanded to its modem borders, a local enactment, the
English Law Ordinance, 1867, extended English law as of 19 November
1858 to the entire territory. 17 The relevant provisions are now found in the
Law and Equity Act.18 These Acts provide the ultimate basis for the tort of
inducing a breach of contract in British Columbia, and arguably, on the
Court’s reasoning, supply a sufficient governmental connection to make the
Charter applicable.19
Several objections may be made to this conclusion. The first is that the
Reception Acts are not specific enough to supply the needed governmental
link. That is, they do not state in so many words that the tort of inducing
a breach of contract is part of the law of British Columbia. They simply
introduce an amorphous mass of English law comprised of common law
and statutes. Thus, it is argued, the Reception Acts cannot be taken as direct
governmental approval of the tort in question, since it would be straining-
the imagination to think that the legislature specifically considered and ap-
proved each common law rule and statutory provision covered. This ar-
gument is supported by a passage from the Dolphin judgment quoted above.
The Court states: “If in our case one could point to a statutory provision
specifically outlawing secondary picketing of the nature contemplated by
the appellants, the case … would be on all fours with Blainey and, subject
to s. 1 of the Charter, the statutory provision could be struck down. ‘ 20
‘6The Proclamation is quoted in Herbert, ibid. at 96. The Governor’s authority derived from
an Order-in-Council issued by the Queen under s. 2 of An Act to Provide for the Government
of British Columbia (U.K.), 21 & 22 Vict., c. 99.
“TRev. Laws B.C. 1871, 30 Vict., No. 70. The original Ordinance is No. 7 of 1867: see Herberi,
ibid. at 97 n. 16.
18R.S.B.C. 1979, c. 224, s. 2:
Subject to section 3, the Civil and Criminal Laws of England, as they existed on
November 19, 1858, so far as they are not from local circumstances inapplicable,
are in force in the Province; but those laws shall be held to be modified and altered
by all legislation having the force of law in the Province or in any former Colony
comprised within its geographical limits.
S. 3 specifies that certain provisions in designated English statutes are not in force in the
Province.
19ft may be noted that the tort in question may be traced back to 14th-century English law,
and finds its modern basis in the 1853 case of Lumley v. Gye (1853), 2 El. & BI. 216, 118 E.R.
749, [1843-60] All E.R. Reprint 208, 95 R.R. 501 (Q.B.). See the brief historical review in J.G.
Fleming, The Law of Torts, 6th ed. (Sydney: Law Book, 1983) at 649-50. So, the tort predates
the 1858 reception date for British Columbia and was received at that time.
20Supra, note 1 at 603 [emphasis added].
McGILL LAW JOURNAL
[Vol. 32
Of course, the English Law Ordinance, 1867does not specifically outlaw
secondary picketing. But it does make the tort of inducing a breach of
contract part of the law of British Columbia. Where a statute referentially
adopts a body of law without itemizing the particular rules adopted, do
those rules escape scrutiny under the Charter?
The question has broader ramifications than is first apparent. The Re-
ception Acts introduce not only English common law but also all ordinary
English statutes in force on the reception date, except those inapplicable in
the local circumstances of the colony. The statutes are not, however, intro-
duced by name; much less are their specific provisions itemized. So, if the
Reception Acts do not make English common law subject to the Charter,
the same must hold for English statutes that have not been specifically
received.
It might be thought that English statutes stand in a different position
from the common law because they are enactments of the British Parliament,
which formerly held supreme power over Canada. But the statutes in ques-
tion were not enacted for Canada and would not have applied here in the
absence of a reception of English law, which in British Columbia is governed
by the Reception Acts. In this respect, there is no difference between received
English statutes and the common law: both owe their authority in British
Columbia to the Reception Acts. If the Charter does not apply to the com-
mon law through the medium of the Reception Acts, it cannot apply to
these statutes.
Section 32(l) does not help us to escape from this difficulty. The British
Parliament is not one of the bodies named in this section, which only lists
modern Canadian legislatures and governments. 2’ Yet it is inconceivable
that old English enactments should be immune to the Charter when legis-
lation passed in a democratic fashion by a modern Canadian legislature is
subject to review. Such a proposition, which would grant a privileged status
to a decaying residue of our colonial past, is incompatible with section 52
of the Charter, which says that the Constitution of Canada is the supreme
law of Canada, and that any law inconsistent with its provisions is, to the
extent of the inconsistency, of no force or effect. There seems to be no good
reason to exempt received English statutes. But if English statutes received
en masse into British Columbia under the Reception Acts are subject to the
Charter, including those governing private relations, it follows that received
common law rules governing such relations are in the same position.
This conclusion is supported by another consideration. It would be
startling to maintain that, whenever a statute referentially incorporates a
21See supra, note 6.
1987]
COMMENTS
body of rules (whether statutory or common law) by a general phrase, the
rules in question escape scrutiny under the Charter. On this view, for ex-
ample, provincial statutes that are made applicable to Indians by the general
terms of setion 88 of the Indian Act would be exempt from the Charter in
so far as their application to Indians depends on their referential incorpo-
ration in federal law.22 Moreover, a legislature could evade Charter scrutiny
by referentially adopting the statutes of other jurisdictions or, more drast-
ically, repealing all its current laws and re-enacting them by reference. 23
A second objection could be made to the argument that the Reception
Acts bring the common law governing private relations under the Charter.
The Charter, it could be said, does not cover legislation passed for British
Columbia before the province entered Confederation in 1871. Section 32(1)
refers only to the government and Parliament of Canada and the govern-
ments and legislatures of the provinces. It does not refer to the governments
and legislatures of British colonies in America prior to their entry into
Confederation. Therefore, the Reception Acts passed for British Columbia
before 1871 are not the Acts of a government or legislature covered by the
Charter.
This objection may be met by two observations. First, the continuing
force of the common law in British Columbia rests on the Law and Equity
Act. 24 That Act is the work of a legislature covered by the terms of section
32(1). More generally, it seems wrong to say that provincial legislation en-
acted before Confederation escapes the Charter’s reach.2 5 In principle, why
should a statute passed in Nova Scotia in late 1866 be exempt while another
22R.S.C. 1970, c. 1-6, s. 88 states:
Subject to the terms of any treaty and any other Act of the Parliament of Canada,
all laws of general application from time to time in force in any province are
applicable to and in respect of Indians in the province….
In Dick v. R. (1985), [1985] 2 S.C.R. 309, 23 D.L.R. (4th) 33, it was held that this section gives
force to provincial laws of general application that would otherwise be invalid in their appli-
cation to Indians by reason of the constitutional division of powers and the exclusive federal
responsibility for Indians under s. 91(24) of the Constitution Act, 1867.
23A parallel is provided by An Act Respecting the Constitution Act, 1982, S.Q. 1982, c. 21,
s. 1 which stipulates that each of the Acts adopted in Quebec before 17 April 1982 is replaced
by the text of each of them as they existed at the date, with the addition of a notwithstanding
clause enacted under s. 33 of the Constitution Act, 1982. Nevertheless, the effects of this whole-
sale repeal and re-enactment are strictly limited by the section’s terms. The validity of the
notwithstanding clauses enacted in this manner is considered in Alliance des Professeurs de
Montreal v. A.G. Quebec (1985), [1985] C.A. 376, 21 D.L.R. (4th) 354.
24Supra, note 18.
2sSee Re Dixon and Attorney-General of British Columbia (1986), 31 D.L.R. (4th) 546, 7
B.C.L.R. (2d) 174 (S.C.), where it was held that the Charter applied to the current version of
the British Columbia Constitution Act, which originally came into force one day prior to British
Columbia’s entry into Confederation on 20 July 1871.
REVUE DE DROIT DE McGILL
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passed one year later would be covered? There is nothing in the wording
of section 52(1) to suggest such a strange result. Indeed, older statutes may
merit particular scrutiny for possible violations of Charter rights and
freedoms.
These reflections indicate that section 32(1) does not list the complete
range of governments and legislatures whose acts are subject to the Charter.
This section simply enumerates the main governments and legislatures in
existence when the Charter took effect, and indicates that laws passed by
those bodies after that date will be subject to review. However, laws already
in force in Canada on that date are subject to the Charter under section
52(1), regardless of their origin. Otherwise all pre-Confederation legislation
would be excluded. The same proposition, of course, seems applicable to
the common law governing relations between private parties.
A different objection could be made to the argument advanced here.
This holds that the common law was initially received in British Columbia,
not by virtue of statute, but under an unwritten principle of imperial con-
stitutional law whereby a colony acquired by settlement rather than conquest
or cession automatically receives an infusion of English law. 26 The British
Columbia Reception Acts merely confirm this position and provide an exact
date of reception. So, a governmental act is not responsible for bringing
English law to British Columbia, and the Charter does not apply to such
law except in cases where some other governmental involvement can be
shown.
This argument encounters several difficulties. First, it proves too much,
for it results in the strange proposition already considered that not only the
common law, but also received English statutes, escape Charter scrutiny.
But a more fundamental misconception lies at the root of the argument. It
urges us to ignore the Reception Acts on the ground that they simply confirm
the position flowing from an unwritten rule of imperial law. In short, it
implicitly suggests that statutory provisions that merely codify or confirm
the existing position at common law are not covered by the Charter. Such
a view would require a court to discriminate between statutory provisions
enacting new law and those merely confirming the common law and to
261 have traced the complex genesis of this rule in The Land Rights of Indigenous Canadian
Peoples (Saskatoon: University of Saskatchewan Native Law Centre, 1979) at 10-44; a briefer
account is given in “The Independence of Canada” (1983) 5 Sup. Ct L. Rev. 369 at 375-78.
Useful discussions of the subject may be found in: Sir K. Roberts-Wray, Commonwealth and
Colonial Law (London: Stevens & Sons, 1966) at 98-116, 539-57; Cote, supra, note 15; P.W.
Hogg, Constitutional Law of Canada, 2d ed. (Toronto: Carswell, 1985) at 21-36; A.H. Oosterhoff
& W.B. Rayner, eds, Anger and Honsberger Law ofReal Property, vol. 1, 2d ed. (Aurora, Ont.:
Canada Law Book, 1985) at 52-76.
1987]
CHRONIQUE DE JURISPRUDENCE
determine the Charter’s application accordingly. A more artificial process
can hardly be imagined.
For good reason, then, the Supreme Court specifically rejects this ap-
proach in Dolphin, holding that if the common law tort of inducing a breach
of contract were embodied in a statute it would require justification under
the Charter.27 Moreover, the view is inconsistent with the result in Re Blai-
ney and Ontario Hockey Association,28 which the Court in Dolphin treats
as correct. In that case, the Ontario Court of Appeal held that a provision
in the Ontario Human Rights Code, 1981 effectively preserving the common
law freedom of athletic organizations to determine membership on the basis
of sex was subject to the Charter in a case involving two private parties.
Let us suppose, however, that the opposite position is correct, and that
the British Columbia Reception Acts fail to provide the needed govern-
mental connection because they merely confirm unwritten imperial consti-
tutional law. This solution is inapplicable to parts of common law Canada
that were initially settled by the French, areas that include the current Mar-
itime Provinces, southern Ontario and portions of the Prairie Provinces. In
those areas, French law applied among the settlers at the time of British
conquest and cession. Under imperial constitutional law, the local law of a
conquered territory generally remains in force until altered by competent
authority. There is no automatic reception of English law. 29 In principle at
least, the application of English law in a former French area generally owes
its origins to some definite Act. 30 A clear example is furnished by the colony
of Upper Canada, where the first Act passed by the newly-summoned leg-
islative assembly of the province ousted the prevailing French law in favour
of English law in all matters of property and civil rights.31 Thus, the op-
eration of English law in Ontario (the successor to Upper Canada) has a
legislative base. Yet it hardly seems appropriate to differentiate between the
27See passage above, quoted in text accompanying note 14.
28Supra, note 12.
29S.ee references supra, note 26.
30Nevertheless, the source of English law in the Maritime Provinces is in doubt. The strongest
candidate is the Royal Commission issued to Governor Cornwallis of Nova Scotia in 1749,
which authorizes the establishment of courts to hear all matters both criminal and civil “ac-
cording to Law and Equity”, and provides that laws passed by the colonial assembly “are not
to be repugnant but as near as may be agreeable to the Laws and Statutes of this our Kingdom
of Great Britain”; see text in T.B. Akins, ed., Selections from the Public Documents of the
ProvinceofNova Scotia (Halifax: Charles Annand, 1869) 497 at 500-1, and discussion in Slattery,
The Land Rights of Indigenous Canadian Peoples, supra, note 26, at 126-32, 141-42. In view
of the fact that the colony of Nova Scotia, after 1763, came to include the present-day provinces
of New Brunswick and Prince Edward Island, this Commission may provide the basis for the
reception of English law in all three Maritime Provinces.
31S.U.C. 1792, 32 Geo. 3, c. 1, ss 1 and 3. The current provision is found in R.S.O. 1980,
c. 395.
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application of the Charter in Ontario and British Columbia on this ground
alone.
We may conclude, then, that if the Charter applies to the common law
governing private relations wherever Reception Acts exist, most and perhaps
all of common law Canada is covered.
This conclusion, contrary as it is to the Court’s expressed intentions,
also extends to the province of Quebec. Following the cession of French
Canada to the British Crown, the Royal Proclamation, 1763 introduced
English law into the newly formed province of Quebec. 32 The position was
reversed in the following decade by the Quebec Act, 177433 which restored
the former law of New France in all matters of property and civil rights,
virtually the whole of private law. This heterogeneous mass of custom and
legislation was codified shortly before Confederation, and the resulting Civil
Code of Lower Canada was given the force of law by an Act of the legislature
of the Province of Canada.34
The Civil Code lays down the basic law governing relations between
private individuals in Quebec. Generally speaking, all rights asserted by
private persons against other persons or groups find their origins in the Civil
Code, in the absence of legislation supplementing or overriding its provi-
sions. In Quebec, then, whenever a private party seeks to justify the alleged
infringement of the Charter rights of another individual, that justification
is normally found in the provisions of the Civil Code itself or some other
legislative instrument. It follows that in principle most private relations in
Quebec are open to scrutiny under the Charter.
B. The Relevance of the Distinction between the Common Law and Statutes
I have argued that the suggested distinction between the common law
and legislation cannot be sustained in most parts of Canada. This argument
may, however, leave some readers with a faint sense of unease, as having
been coerced by “technical” considerations to a counter-intuitive conclu-
sion. Such a reader might respond: “Yes, it may be true that the application
of the common law in many areas depends on legislation. But that is merely
32Reprinted in R.S.C. 1970, App. II. It has been argued, nevertheless, that this was not the
true effect of the Proclamation’s wording, and that there was no intention to totally supplant
the existing system of French law.
33(U.K.), 14 Geo. 3, c. 83, s. 8.
34An Act Respecting the Civil Code of Lower Canada, S. Prov. C. 1865, 29 Vict., c. 41. For
historical background, see J.-G. Castel, The Civil Law System of the Province of Quebec (To-
ronto: Butterworths, 1962) at 5-35. The Code has been the subject of revision: see An Act to
Establish a New Civil Code and to Reform Family Law, S.Q. 1980, c. 39; see also Quebec,
Civil Code Revision Office, Report on the Qu~bec Civil Code: Draft Civil Code, vols 1, 2
(Qudbec: Fditeur officiel, 1978).
1987]
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a matter ofform. In practice, the common law has basically the same status
in Canada as it has in England, and is treated by courts as a body of unwritten
law falling within their particular jurisdiction. The distinction drawn in the
Dolphin case may have to be patched up to solve the technical problem
posed by the existence of Reception Acts. But it has a firm grounding in
the ordinary sensibilities of Canadian judges and lawyers. And that, in the
end, is what matters.”
The short answer to this objection is that it misses the point. Of course,
important differences exist between the common law and legislation, as our
ordinary sensibilities testify. The point is that these differences are irrelevant
to the question of the Charters application to private relations. On the
supposition that State activity is required to attract Charter review, it is
clear, for example, that the decision of the legislature of Upper Canada to
replace French law with English law was a State act, and a supremely im-
portant one at that. To hold that the body of common law and statutes
introduced by a Reception Act escapes Charter scrutiny, where a local
Ditches and Drains Act might qualify, is itself an argument employing tech-
nical and counter-intuitive distinctions.
Assuming, however, that the significance of the Reception Acts can
somehow be downplayed or ignored, the following question arises. Does it
make sense to hold that the Charter applies to relations between private
parties where those relations are regulated by legislation, but not when they
are governed by the common law? Are there good reasons in principle or
policy, or in the clear wording of the Charter, for reaching this result? Or
is the distinction an arbitrary one, producing artificial and unprincipled
results?
The rationale often given for the distinction is that the Charter applies
only in instances where the State, through its agents, seeks to violate some-
one’s Charter rights, or where a private person tries to do this on the basis
of State authority. The Charter, then, stands as a shield between the indi-
vidual and the State. It is not intended, in principle, to protect individuals
from the acts of other private individuals. It only does this, by way of
exception, where a private person is acting as a surrogate for the State, or
on State authority.
On this view, then, the Charter will apply where a private individual
invokes a State act, in the form of legislation, to justify the violation of
another’s rights. But this rationale (so the argument runs) is not available
where the justification lies in the common law. The common law cannot
be seen as an emanation of the State in the same way that legislation ob-
viously is. The common law is the law of the community as a whole. So
far as it affects relations between the State and the individual, it often op-
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[Vol. 32
erates to limit the power of the State. In this respect, it is now reinforced
by the Charter. But when the common law merely governs the relations of
private individuals in the community, it does not present the face of State
action. In this context, it should be exempt from Charter scrutiny.
This, I take it, is the argument that underlies the reasoning of the
Supreme Court in Dolphin. How well does it stand up? The argument in-
volves several debatable propositions. ‘First, it is not obvious that the
Charter is directed exclusively at shielding people from State interference;
it can plausibly be argued that the Charter sets out certain basic values that
are paramount to all forms of law, whether public or private.35 The reso-
lution of this question (which cannot be pursued here) depends in part on
the relative weights to be assigned to sections 52(1) and 32(1).
Second, even on the “anti-State” view of the Charter, it is far from
clear that the common law regulating private relations can correctly be
characterized as a body of law that does not present the face of State action.
The common law was originally articulated by the courts, and its continuing
application and development rests in their hands. Yet the courts are a branch
of government. They act in the name of the community as a whole, as
symbolized by the Crown, and derive their authority from that fact. In this
respect they represent the State, even if they function differently than other
branches of government.
The Supreme Court in Dolphin is at pains to repudiate this argument:
While in political science terms it is probably acceptable to treat the courts as
one of the three fundamental branches of Government, that is, legislative,
executive, and judicial, I cannot equate for the purposes of Charter application
the order of a court with an element of governmental action. This is not to
say that the courts are not bound by the Charter. The courts are, of course,
bound by the Charter as they are bound by all law. It is their duty to apply
the law, but in doing so they act as neutral arbiters, not as contending parties
involved in a dispute.36
This passage implicitly portrays the common law as a system of law that
is external to modern courts –
a body of rules embedded in old precedents
that the courts do their best to apply “as neutral arbiters” to the disputes
that come before them. On this view, the courts’ diligent application of the
law hardly converts them into governmental actors.
But this portrayal of the judicial function is not persuasive. No Ca-
nadian court, least of all the Supreme Court of Canada, would want to deny
the active role that courts have always played in developing and re-
351 have developed this argument more fully in “Charter of Rights and Freedoms – Does
It Bind Private Persons” (1985) 63 Can. Bar Rev. 148 at 158-61.
36Supra, note 1 at 600.
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CHRONIQUE DE JURISPRUDENCE
forming the common law, even if in doing so they do not act as legislatures
but look beyond themselves to an ideal pattern suggested by elements of
the existing social order. In cases where a court adapts or reforms the com-
mon law, can it be argued convincingly that this action is not a species of
State activity covered by the Charter? And if we admit the relevance of the
Charter in such instances, can any workable distinction be maintained be-
tween cases where a court “develops” the common law, and those where it
merely “applies” it?
On these points, even the Supreme Court does not seem persuaded by
its own arguments, for it goes on to contend, in a passage discussed later,
that in fact courts ought both to apply and develop the common law in light
of basic constitutional values. But why should they do so, unless they are
obligated in their role as representatives of the community at large?
Nevertheless, assuming that there is a fundamental difference between
the common law and legislation in this respect, it may be doubted how well
the distinction enables us to determine the Charter’s scope in practice. Con-
sider the following questions. Where a statute partially modifies the common
law governing a particular subject, silently leaving other parts intact, is it
sensible to hold that the statutory portions of the resulting legal regime are
governed by the Charter while the common law portions are exempt? By
the same token, where a statute merely replicates a portion of the common
law rules governing a subject, making no mention of the remaining portion,
should we hold that the replicated rules are subject to Charter scrutiny while
the others are not?
Suppose that the common law holds that a private person should not
do act A to another person in situation X and probably also situation Y,
although in the latter case the judicial precedents are unclear. However, the
common law clearly permits a person to do act A in situation Z (among
other situations). The legislature, in its wisdom, judges this result undesir-
able and passes a statute providing that no person shall do act A to others
in situations Y and Z, on pain of the normal civil remedies. The statute
does not mention situation X. It assumes the existence of the basic common
law rule, and effectively extends it to contexts where its application was
hitherto doubtful or nonexistent. Does it make sense to hold that the rule
barring act A is subject to Charter review in contexts Y and Z but not in
context X?
One way of approaching this problem is to argue that the legislature
has tacitly affirmed the original common law rule in its entirety and thus
brought it within the Charter’s scope. For if the statute had stated that the
common law rule in situation X was not affected, that would have been
McGILL LAW JOURNAL
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sufficient to subject the rule to Charter scrutiny. Where a statute does the
same thing sub silentio, is there any real difference?
It may be noted that this argument takes for granted the necessity of
discovering some definite connection between the rule in question and the
State. It suggests that when a legislature acts in a manner that leaves little
doubt that it is affirming or approving a common law rule, if only by tacitly
assuming the existence of that rule, there*is a sufficient State connection to
justify Charter review.
The argument may be persuasive, given these premises. But it has a
certain artificiality arising from the fact that the legislature is manifestly not
the author of the rule in question. If we hold that any common law rule
that a legislature has declined to repeal is subject to the Charter, where does
this leave us with the general run of common law rules? There can be few
areas of the common law that have not been significantly modified by leg-
islative action. Such action is often founded on an understanding and ac-
ceptance of the general position at common law. To the extent that any
legislation makes some changes in the common law, can it not be understood
as a decision to leave the common law in that area otherwise undisturbed?
Given that the law in most of Canada today is a tightly woven mesh
of mixed common law and statutory origins, the search for the golden thread
of State action is likely to prove both frustrating and in the end pointless.
II. The Common Law and Basic Constitutional Values
We saw earlier that the Court attaches a second qualification to its
holding that the Charter does not directly govern the common law relations
between private parties. According to McIntyre J.:
Where … private party “A” sues private party “B” relying on the common law
and where no act ofgovernment is relied upon to support the action, the Charter
will not apply. I should make it clear, however, that this is a distinct issue from
the question whether the judiciary ought to apply and develop the principles
of the common law in a manner consistent with the fundamental values en-
shrined in the Constitution. The answer to this question must be in the af-
firmative. In this sense, then, the Charter is far from irrelevant to private
litigants whose disputes fall to be decided at common law. But this is different
from the proposition that one private party owes a constitutional duty to an-
other, which proposition underlies the purported assertion of Charter causes
of action or Charter defences between individuals. 37
The Court holds, then, that in applying and developing the common law
the courts ought to act in a manner consistent with fundamental consti-
tutional values, including those embodied in the Charter. The problem is
37Ibid. at 603.
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COMMENTS
that any such judicial role seems inconsistent with the premise that the
Charter does not extend to private disputes governed by the common law.
If the courts “ought” to develop the common law in the way suggested,
this can only mean that they have some sort of a duty to do so. This duty
must stem from the Constitution itself, for it is difficult to see where else
it might come from. So the Court seems to be saying, in effect, that the
courts have the constitutional duty to take account of fundamental consti-
tutional values in developing the common law as it applies to disputes
between private parties. But this proposition is not readily reconcilable with
the Supreme Court’s earlier insistence that a court order is not an element
of governmental action, because the courts are not a branch of government
to which the Charter applies under section 32(l).38 If a court order need
not conform to the Charter, how can it be said that the courts have any
duty to take account of the Charter in applying the common law to private
parties?
Second, as seen earlier, the Court holds that the Charter will apply to
the common law “only in so far as the common law is the basis of some
governmental action which, it is alleged, infringes a guaranteed right or
freedom.”‘ 39 This holding flows from the proposition that the Charter applies
to the alleged infringement of a right only where the offending party is itself
a governmental agent or invokes a governmental act. On this view, then,
the basic values embodied in the Charter do not extend to private relations
founded on the common law. If this is the true interpretation of the Charter,
then the courts would be constitutionally unwarranted in making use of
basic Charter values to develop the common law rules governing private
action.
In brief, either the Charter covers the common law governing private
relations or it does not. If it does, there is no need to create a separate
doctrine mandating the development of the common law in light of con-
stitutional values. If the Charter does not, then the values it embodies are
inapplicable to the common law governing private relations.
Assuming, however, that the courts ought to develop the common law
in a manner consistent with the Charter values, the question arises how
they should go about doing this. The proper method, it would appear, is to
ask whether a given common law rule is inconsistent with the value rep-
resented by a Charter right, and, if so, whether the limit posed by the rule
is a reasonable one. That is, a court should follow the normal methodology
employed in applying the Charter, which the Supreme Court in fact follows
38Ibid. at 600-1.
39Ibid. at 599.
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in the first part of Dolphin in reviewing the tort of inducing a breach of
contract. The irony is that the Supreme Court asserts that this part of the
decision is unnecessary in view of its later ruling on the Charter’s application
to private action.
Conclusion
One reason why the Dolphin decision embraces at the back door callers
turned away at the front is that it attempts an essentially impossible task.
To ask whether the Charter as a whole applies to private relations in general
is like asking whether all the shoes in the store fit all potential customers.
The only sensible response is: “Which shoes? Which feet?”
It is submitted that the extent to which the Charter affects private
relations can only be determined by a series of inquiries directed to the
Charter’s individual provisions. 40 In each case, a court must ask whether
the particular Charter provision, on its true interpretation, extends to the
private activities under consideration. This holds true regardless whether
the activities in question are governed by rules of statutory or common law
origins. The presence of a statute does not resolve the question.
No doubt, in many instances, a court may conclude that the Charter
does not apply. Courts could be expected to hold, for example, that the
parental power of disciplining children is not subject to the Charter guar-
antee of natural justice in section 7, and that invitations to a bridal shower
are not governed by the sexual equality provisions in section 15. On the
other hand, it would not be surprising for a court to find that where a private
corporation instructs its employees not to express public support for the
Liberal Party it violates the employees’ freedom of expression. The point
is that these decisions should not be made on some wholesale basis, such
as whether the private activities in question happen to be authorized by
statute, but in light of factors germane to the particular Charter section in
question.
Thus, the Supreme Court’s fear that if it held the Charter applicable to
the laws governing private relations “all private litigation would be subject
40For a more complete exposition of this view, see Slattery, supra, note 35.
1987]
CHRONIQUE DE JURISPRUDENCE
to the Charter”’41 is groundless, for it fails to recognize the potential for
differentiated responses grounded in individual Charter provisions. Only
when courts begin to approach the question in this manner will they find
their way out of the conceptual maze that has the Supreme Court, in Dolphin,
unwittingly returning on its own footsteps.
41Dolphin, supra, note 1 at 600-1.
