Blainey was a 12 year old girl, and a very good hockey player. She wished to compete on a team in the Metropolitan Toronto Hockey League, which a division of the Ontario Hockey Association (OHA). She was accepted by all of her teammates and coaches, and had played in several exhibition games with the team. No one could play on a team in the league unless they were a member of the OHA. However, there was a regulation in the OHA's rules stating that only male persons could be members of the OHA. There was a separate rule allowing girls under the age of 12 to play on boys' teams because of a lack of teams for young girls. However, there was a separate OWHA for girls over 12 years of age and therefore, Blainey was not allowed to play on the team.
Her mother went to the Ontario Human Rights Commission to file a complaint, but was rejected on the basis of s.19(2) of the Ontario Human Rights Code, which stated that the right to equal treatment on the basis of sex is not violated by athletic leagues restricting membership to players of only one sex. She then appealed this decision in court, stating that s.19(2) of the Code violated s.15 of the Charter, and was unconstitutional. She also claimed that the OHA regulations were subject to the Charter. The section was found to be constitutional in the lower court, which Bailey appealed.
- Is Blainey being denied her right to equal treatment under the law by reason of her sex?
- Does the Charter apply to private interactions?
Dubin, writing for the majority, decides that s.19(2) of the Ontario Human Rights Code violates s.15 of the Charter, and is not saved by s.1. Therefore it is unconstitutional and of no force or effect, and should be stricken from the Code. As the Code was enacted by the Ontario Provincial Government, it falls under the jurisdiction of the Charter under s.32. Therefore, the Commission was correct in their decision that Blainey's claim could not be filed because of s.19(2), however this section has been deemed unconstitutional, meaning that Blainey can now return to the Commission to pursue the claim again.
Dubin decides that the Charter does not apply to,,,
the private relations between the OHA and Blainey. He states that although legislative action and executive actions are covered by the Charter, it is not made applicable to private action. Although the OHA receives funding from the government, it has not been delegated any power and cannot be said to be performing a government function. Therefore, the OHA cannot fall under the definition of "government" in s.32 of the Charter.
He also holds that it is perfectly fine for lawyers working with human rights commissions to work for clients attempting to bring forth a claim that a section of the commission's governing statute (the relevant human rights act/code) is unconstitutional. After the Charter was enacted it became important for everyone to scrutinize existing legislation.
- The Charter applies to any federal or provincial government legislation, including human rights acts.
- The Charter does not apply to private interactions between parties, as the meaning of the Constitution is to regulate the interactions between the government and citizens, and the different branches of the government – not the interactions between private citizens.
- It is perfectly acceptable for members of human rights commissions to challenge the constitutionality of their governing human rights acts.
- Receiving government funding alone does not make something "government".
- The Charter applies to Human Rights Commissions and Acts as government statutes create them, and thus it applies to all legislation.