39 This Court's approach to Charter application was further elucidated in Lavigne v. Ontario
Public Service Employees Union, [1991] 2 S.C.R. 211. There, the principal issue was whether a
provision of a collective agreement compelling the appellant to pay union dues despite his nonmembership in the respondent union violated the Charter guarantees of freedom of _expression
and association, in so far as the dues were being used to pay for specific political purposes
chosen by the union. In addressing whether that provision was subject to the Charter, I found for
the majority that the appellant's employer, the Ontario Council of Regents for Colleges of Applied
Arts and Technology, was, in virtue of the terms of its empowering Act, an emanation of the
provincial government. On this basis, I held that the Charter applied to the provision in question.
Comparing the case to Douglas, I remarked as follows, at pp. 311-12:
[Douglas], like the present appeal, involved a collective agreement between the college and
the Association (a union under the applicable legislation). There the Minister of Education by
statute exercised a degree of control over the college that closely matched that exercised by the
Ministry over the Council in the present case. It is true that in Douglas the college's constituent
Act expressly described it as an agent of the Crown, whereas here the Act simply gives the
Minister power to conduct and govern the colleges and in this endeavour the Minister is to be
"assisted" by the Council. But the reality is the same. The government, through the Minister, has
the same power of "routine or regular control", to use the _expression of the majority of this Court,
in Harrison . . . and Stoffman
. . ., companion cases to Douglas.
40 In Douglas and Lavigne, the argument was made that even if the entities in question were
generally part of "government" for the purposes of s. 32, the Charter should not apply to the
"private" or "commercial" arrangements they engage in. In each case, the Court rejected this
contention, holding that when an entity is determined to be part of the fabric of government, the
Charter will apply to all its activities, including those that might in other circumstances be thought
of as "private". The rationale for this principle is obvious: governments should not be permitted to
evade their Charter responsibilities by implementing policy through the vehicle of private
arrangements. I put the matter thus in Lavigne, at p. 314:
It was also argued that the Charter does not apply to government when it engages in activities
that are . . . "private, commercial, contractual or non-public (in) nature". In my view, this argument
must be rejected. In today's world it is unrealistic to think of the relationship between those who
govern and those who are governed solely in terms of the traditional law maker and law subject
model. We no longer expect government to be simply a law maker in the traditional sense; we
expect government to stimulate and preserve the community's economic and social welfare. In
such circumstances, government activities which are in form "commercial" or "private"
transactions are in reality expressions of government policy, be it the support of a particular
region or industry, or the enhancement of Canada's overall international competitiveness. In this
context, one has to ask: why should our concern that government conform to the principles set
out in the Charter not extend to these aspects of its contemporary mandate? To say that the
Charter is only concerned with government as law maker is to interpret our Constitution in light of
an understanding of government that was long outdated even before the Charter was enacted.
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