In York Region District School Board v Elementary Teachers’ Federation of Ontario,[1] the Supreme Court of Canada held that Ontario public school boards are “inherently governmental” for the purpose of the Canadian Charter of Rights and Freedoms.[2] Thus, the actions of an Ontario public school board – including actions taken as an employer – are subject to Charter scrutiny.[3]
Following this decision, there was concern it would expand the scope of organizations considered to be “inherently governmental” and thus bound by the Charter in their role as an employer.
In Health Employers Association of British Columbia on Behalf of Multiple Employers v British Columbia Nurses’ Union,[4] a British Columbia arbitrator held that, unlike Ontario public school boards, the British Columbia health boards at issue were not “inherently governmental” and thus not subject to the Charter. One key reason for this distinction was the Ontario school boards were elected bodies whereas the British Columbia health boards were not.
This decision is one of the first to address whether the York Region decision extends the Charter to apply to other public or quasi-public sector employers. Perhaps it is a sign of decisions to come.
What happened?
During the COVID-19 pandemic, the British Columbia Provincial Health Officer required health care employers to require employees to provide proof of vaccination against COVID-19 in order to attend at work. As a result, multiple British Columbia health care employers placed unvaccinated nurses on an unpaid leave of absence or terminated their employment.
The British Columbia Nurses’ Union filed several hundred individual grievances as well as an “Industry Wide Application Dispute” (collectively, the “Grievances”). The Grievances challenged the decisions made by a cross-section of health care employers represented by the Health Employers Association of British Columbia (“Health Employers Association”).
The union argued that seven of the employers represented by the Health Employers Association, including five regional health boards[5] (collectively, the “Health Employers”) were subject to the Charter, just like Ontario public school boards were found to be in York Region. By way of illustration, one of the Health Employers was the Vancouver Coastal Health Authority, a regional health board that, as an employer, operates hospitals including Vancouver General Hospital.
The union alleged the Health Employers violated nurses’ Charter rights to freedom of religion, life, liberty, and security of the person, freedom from unreasonable search or seizure, and equality. The Health Employers Association argued the Charter did not apply.
To whom does the Charter apply?
The Charter applies to government, specifically the “Parliament and government of Canada” and “legislature and government of each province.”[6]
However, in Eldridge v British Columbia (Attorney General),[7] the Supreme Court of Canada found the Charter’s ambit goes even further to include some public or quasi-public institutions if they are acting as part of the government:
There are myriad public or quasi-public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy. When it is alleged that an action of one of these bodies, and not the legislation that regulates them, violates the Charter, it must be established that the entity, in performing that particular action, is part of “government” within the meaning of s. 32 of the Charter.[8]
Therefore, if an entity is “inherently governmental,” or if an activity carried out by the entity can be ascribed to government, the entity may be bound by the Charter. It was on the former basis the Supreme Court of Canada found Ontario public school boards bound by the Charter in their role as an employer.
The arbitrator’s decision
In the British Columbia decision, the arbitrator found the Charter did not apply to the Health Employers in their capacity as an employer. In reaching this conclusion, the arbitrator highlighted that “public” is different from “governmental,” and the Charter only applies to the later:
[T]he mere fact that legislation and government establish much of the environment in which an entity operates is not a sufficient basis for finding it is a ‘governmental’ entity under section 32 of the Charter. In order for the Charter to “apply to institutions other than Parliament, the provincial legislature and the federal and provincial governments” an entity “must truly be acting in what can accurately be described as a ‘governmental’ – as opposed to a merely ‘public’ – capacity.”[9]
The arbitrator acknowledged that public healthcare in British Columbia is “among the largest, most complex and most expensive social programs administered by the provincial government,”[10] and that the overarching responsibility for the healthcare system rested with the Minister of Health. The arbitrator also noted the system is widely viewed as public and operates within a comprehensive and interconnected statutory and regulatory framework. Nevertheless, the public nature of the healthcare system did not make the Health Employers “governmental.”
One key difference between the Health Employers in this decision, and the school boards in the York Region decision was that the Health Employers, unlike the school boards, were not publicly elected:
In this case, the [Health Employers] are not, by their very nature, governmental, in the sense that their governing boards are not elected by, or accountable to, the public; nor do they exercise delegated powers such as levying taxes or establishing and enforcing laws within their grant of authority.[11]
Further, the arbitrator noted the Health Employers were autonomous from the government in relation to their status as employers, despite the fact they owed their existence and funding to the government and were subject to ministerial authority. The Health Employers controlled internal management of employees, subject to statutory requirements.
What’s next?
The Health Employers Association decision is a positive development for public and quasi-public sector employers in that the arbitrator drew a distinction between “governmental” and “public,” holding the Charter did not apply to the latter, only the former. While this arbitration decision is not binding on other arbitrators or courts, it may be a harbinger of similar decisions involving public or quasi-public sector employers. We will keep readers informed.
To learn more and for assistance contact your Sherrard Kuzz LLP lawyer, Alex Munoz, or info@sherrardkuzz.com
Alex Munoz leads our Education Law/Educational Institutions practice. He is one of Canada’s leading lawyers in education law, with more than 20 years’ representing all levels of school boards and departments. Prior to joining Sherrard Kuzz, Alex was the Associate General Counsel to the largest public school board in Canada, and one of the largest in North America. Alex can be reached at 416.603.6783 (direct), 416.420.0738 (24 Hour) or by visiting www.sherrardkuzz.com.
The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This article is current as of April 2025 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the presentation/article is prepared but may become outdated as laws or policies change. For clarification or for legal or other professional assistance please contact Sherrard Kuzz LLP.
[1] 2024 SCC 22 [York Region].
[2] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[3] For more information, see our July 2024 Briefing Note: Ontario Public School Boards are Bound by the Charter Teachers are protected from unreasonable search and seizure in the workplace.
[4] 2024 CanLII 140618 (BC Arb) (Jacquie de Aguayo) [Health Employers Association of British Columbia].
[5] Vancouver Coastal Health Authority, Vancouver Island Health Authority, Interior Health Authority, Fraser Health Authority, and Northern Health Authority.
[6] Charter, supra note 2 at s 32.
[8] Ibid at para 36.
[9] Health Employers Association of British Columbia, supra note 4 at para 90, citations omitted.
[10] Ibid at para 25.
[11] Ibid at para 99.
