I am currently in summer mode, in a mountain retreat, hence the lack of action on here of late (no posts for a month! Worse than I had thought...): I actually have to go into the next town to get online. While my world has regressed to the stone age, however, that of GAL continues apace, and as such I will be making an effort to post at least once a week from now on – if only to cut down on the catching up I will have to do when I get back to the real world.
Talking of catching up, here’s something I should have posted a few weeks ago: a quick follow up to the controversy in Canada over the IOC’s decision to exclude women’s ski-jumping events from the next Winter Olympics, despite the fact that it has organised equivalent men’s events (see my previous post here). On the July 10th, the Supreme Court of British Columbia in Canada handed down its judgment: perhaps unsurprisingly, there will be no women’s ski jumping at the next Winter Olympics. More surprising, however, and of no little interest from a GAL perspective, is the judge’s reasoning in coming to this judgment.
The arguments, put briefly, were as follows: the complainants alleged that the decision to hold men’s but not women’s events in ski-jumping constituted unlawful discrimination under the Canadian Charter of Rights and Freedoms. They recognised the the International Olympic Committee was not subject to the Charter; however, they argued that the Vancouver Organising Committee (VANOC) was (despite the fact that it is a formally private body), and that as such it could not organise an Olympics on Canadian soil that had one event but not the other. They also recognised that VANOC did not have the power itself to organise the inclusion of a women’s event (only the IOC can decide on which events are included), but that a finding that VANOC was acting unlawfully would in effect compel the IOC to take remedial action. Thus, in effect ,the claim was that a domestic court should make a “bottom-up” demand for GAL within a private global administrative body.
As noted above, VANOC is formally a private body, although with signficant government involvement from the federal, state and local levels. The judge first inquired as to whether VANOC could be held to be “controlled” by the Canadian government (and there is an interesting review of the Canadian jurisprudence on the requirements of this for those interested) – holding, ultimately, that it could not. Despite significant input into decision-making and funding, the day-today running (“effective control”) was clearly that of the IOC.
(Incidentally, the judge also noted in passing - para. 14 - that there is a real difference between “effective” and “ultimate” control, dismissing the argument that the Canadian Government had the latter. Someone should really tell the EctHR…)
The other way in which the Charter can become applicable to a formally private body within Canada is if that body is conducting “a truly governmental activity”:
53. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.
54. In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature… In McKinney v. University of Guelph, … La Forest described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.
56…. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”. Historically, governments hosted the Games directly… While the historical role of government is not conclusive, it is one factor that supports the governmental nature of the Olympic Games.
61. Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.
62. In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.
63. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act…which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.
Noting, in passing, a 1984 US judgment that held that the the equal protection rights under the Fifth and Fourteenth Amendments of the U.S. Constitution were applicable to the Olympic Games in Los Angeles, despite the fact that these were run by the Los Angeles Olympic Committee (the equivalent of VANOC), the judge thus held that VANOC is carrying out a governmental function, and as such is bound by the provisions of the Charter: “A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.” (para. 72)
The next question, then, was whether there had been discrimination. Here, the judge found in the affirmative: that, even although the women’s event failed to meet the IOC’s universality requirements (i.e. enough countries participating to a high level), this was also the case for the men’s event, which had been given a special exemption due to its historical presence in the games. All agreed, however, that the IOC, albeit the source of the discrimination, could not be brought before the Canadian court under the Charter.
113. The plaintiffs argue that by implementing the direction of the IOC not to plan, organize, finance, and stage a ski jumping event for women, VANOC imports the IOC’s discrimination… It is the plaintiffs’ view that the IOC can make decisions that draw distinctions between the benefits it provides to men and women in its activities in Switzerland, but VANOC cannot implement discriminatory decisions in carrying out the Olympic Programme in Canada.
It is at this final point, however, that the judge disagreed – finding that mere implementation of a decision over which the body in question had no control could not itself create a violation of the Charter:
121. VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women‘s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.
123. In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.
124. I acknowledge that there is something distasteful about a Canadian governmental activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC’s conduct that is challenged here. It must be remembered that, in addition to not having control of the impugned decision, VANOC supported inclusion of women’s ski jumping and remains ready and willing to host such an event should the IOC change its decision. There may be exceptions to the general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend, but if they exist they would be extremely rare, and this is not such a case.
132. There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is neither subject to the jurisdiction of this Court nor governed by the Charter. The plaintiffs. application is, therefore, dismissed.
An interesting case, then, and much of interest from a GAL perspective, both in terms of the public/private issue and the possibilities of domestic “bottom-up” demand for GAL from domestic courts in relation to global bodies – even if the judged ultimately baulked at the latter. It is also interesting to speculate on what the wider effects of this decision would be, as there is nothing in the judgment to suggest that it should be limited to the Charter’s governance of sports, or indeed of private bodies carrying out governmental functions more generally. For example: in theory, Canada has no formal control over a UN Security Council Resolution mandating the freezing of an individual’s assets on the gorunds of suspected links to terrorist organisations. Would the application of the Canadian Charter of Rights and Freedoms be just as easily circumvented in this context, I wonder? We are told that the ski-jumpers are currently considering an appeal, so it may be tested futher yet...
Talking of catching up, here’s something I should have posted a few weeks ago: a quick follow up to the controversy in Canada over the IOC’s decision to exclude women’s ski-jumping events from the next Winter Olympics, despite the fact that it has organised equivalent men’s events (see my previous post here). On the July 10th, the Supreme Court of British Columbia in Canada handed down its judgment: perhaps unsurprisingly, there will be no women’s ski jumping at the next Winter Olympics. More surprising, however, and of no little interest from a GAL perspective, is the judge’s reasoning in coming to this judgment.
The arguments, put briefly, were as follows: the complainants alleged that the decision to hold men’s but not women’s events in ski-jumping constituted unlawful discrimination under the Canadian Charter of Rights and Freedoms. They recognised the the International Olympic Committee was not subject to the Charter; however, they argued that the Vancouver Organising Committee (VANOC) was (despite the fact that it is a formally private body), and that as such it could not organise an Olympics on Canadian soil that had one event but not the other. They also recognised that VANOC did not have the power itself to organise the inclusion of a women’s event (only the IOC can decide on which events are included), but that a finding that VANOC was acting unlawfully would in effect compel the IOC to take remedial action. Thus, in effect ,the claim was that a domestic court should make a “bottom-up” demand for GAL within a private global administrative body.
As noted above, VANOC is formally a private body, although with signficant government involvement from the federal, state and local levels. The judge first inquired as to whether VANOC could be held to be “controlled” by the Canadian government (and there is an interesting review of the Canadian jurisprudence on the requirements of this for those interested) – holding, ultimately, that it could not. Despite significant input into decision-making and funding, the day-today running (“effective control”) was clearly that of the IOC.
(Incidentally, the judge also noted in passing - para. 14 - that there is a real difference between “effective” and “ultimate” control, dismissing the argument that the Canadian Government had the latter. Someone should really tell the EctHR…)
The other way in which the Charter can become applicable to a formally private body within Canada is if that body is conducting “a truly governmental activity”:
53. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.
54. In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature… In McKinney v. University of Guelph, … La Forest described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.
56…. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”. Historically, governments hosted the Games directly… While the historical role of government is not conclusive, it is one factor that supports the governmental nature of the Olympic Games.
61. Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.
62. In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.
63. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act…which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.
Noting, in passing, a 1984 US judgment that held that the the equal protection rights under the Fifth and Fourteenth Amendments of the U.S. Constitution were applicable to the Olympic Games in Los Angeles, despite the fact that these were run by the Los Angeles Olympic Committee (the equivalent of VANOC), the judge thus held that VANOC is carrying out a governmental function, and as such is bound by the provisions of the Charter: “A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.” (para. 72)
The next question, then, was whether there had been discrimination. Here, the judge found in the affirmative: that, even although the women’s event failed to meet the IOC’s universality requirements (i.e. enough countries participating to a high level), this was also the case for the men’s event, which had been given a special exemption due to its historical presence in the games. All agreed, however, that the IOC, albeit the source of the discrimination, could not be brought before the Canadian court under the Charter.
113. The plaintiffs argue that by implementing the direction of the IOC not to plan, organize, finance, and stage a ski jumping event for women, VANOC imports the IOC’s discrimination… It is the plaintiffs’ view that the IOC can make decisions that draw distinctions between the benefits it provides to men and women in its activities in Switzerland, but VANOC cannot implement discriminatory decisions in carrying out the Olympic Programme in Canada.
It is at this final point, however, that the judge disagreed – finding that mere implementation of a decision over which the body in question had no control could not itself create a violation of the Charter:
121. VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women‘s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.
123. In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.
124. I acknowledge that there is something distasteful about a Canadian governmental activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC’s conduct that is challenged here. It must be remembered that, in addition to not having control of the impugned decision, VANOC supported inclusion of women’s ski jumping and remains ready and willing to host such an event should the IOC change its decision. There may be exceptions to the general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend, but if they exist they would be extremely rare, and this is not such a case.
132. There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is neither subject to the jurisdiction of this Court nor governed by the Charter. The plaintiffs. application is, therefore, dismissed.
An interesting case, then, and much of interest from a GAL perspective, both in terms of the public/private issue and the possibilities of domestic “bottom-up” demand for GAL from domestic courts in relation to global bodies – even if the judged ultimately baulked at the latter. It is also interesting to speculate on what the wider effects of this decision would be, as there is nothing in the judgment to suggest that it should be limited to the Charter’s governance of sports, or indeed of private bodies carrying out governmental functions more generally. For example: in theory, Canada has no formal control over a UN Security Council Resolution mandating the freezing of an individual’s assets on the gorunds of suspected links to terrorist organisations. Would the application of the Canadian Charter of Rights and Freedoms be just as easily circumvented in this context, I wonder? We are told that the ski-jumpers are currently considering an appeal, so it may be tested futher yet...
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