M. Lynn Gaudet, L.L.B.
This memorandum summarizes the law of standing as it stood on December 31. 1995 in the specific context of enforcing the equality guarantees in s. 15 91) of the Canadian Charter of Rights and Freedoms. Given the federal-only mandate of the program, federal examples are used to illustrate the principles where possible. Full citations for all cases referred to are provided at the end.
Section 15 (1) of the Charter reads:
"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or physical or mental disability."
Who has standing to bring a claim of discrimination under this section, or otherwise raise s.15(1) in a lawsuit? The law can be summarized as follows:
1. Any person or corporate entity charged with an offence has the right to challenge the constitutional validity of the statute on any basis whatsoever. Therefore, s.15 can be used as a shield to defend oneself against a charge regardless of whether the accused belongs to the group alleged to be discriminated against.
2. Otherwise, the right to assert a violation of equality rights and obtain a remedy arises under s.24(1) of the Charter. Under this section, "Anyone whose rights or freedoms" under s.15(1) have been infringed or denied can seek a remedy. The remedies available under s.15(1) are personal ones, and do not include a declaration of invalidity per se.
3. Standing to seek a declaration of invalidity of legislation on Charter grounds now arises under s.52(1) of the Constitution Act, 1982. The general rule is that only a person affected directly by the impugned law and entitled to the benefit of the Charter right can rely on s.52(1) to attempt to have the law or government action declared unconstitutional: Irwin Toy, 1989.
4. A second possible basis on which standing as of right may be claimed by an individual or corporation to seek a declaration of invalidity under s.52(1) for a contravention of s.15 of the Charter is the "exceptional prejudice" test, the status of which is uncertain in Canadian law following the Supreme Court of Canada decision in Hy and Zel Inc. in 1993. If applicable, this form of standing entities the applicant to seek a declaration of invalidity where the applicant is more affected by the statute than other members of the public.
5. It is doubtful, but not yet conclusively decided, that a corporate entity such as a commercial enterprise or a non-profit advocacy group has standing as of right under s.24(1) to assert an equality rights violation in respect of itself or its constituency for the reason that an artificial person is not generally considered "an individual" for the purposes of s.15.
6. Where no standing as of right exists, courts have the discretionary power to grant public interest standing to any party, including an individual or corporate entity, to challenge the constitutional validity of a law or government action on the basis that it violates the equality rights of people other than the plaintiff.
7. Public interest standing will only be granted if three criteria are met: 1) there is a serious issue as to the validity of the impugned law, 2) the plaintiff is directly affected by it or has a genuine interest in its validity, and 3) there is no other reasonable or effective way the validity of the impugned provision can be determined. This is the Borowski test of public interest standing.
The question of standing is a threshold question of entitlement to be heard in a judicial forum that a certain legal right has been violated or legal obligation unfulfilled. It is conceptually and factually distinct from entitlement to the relief claimed. At common law, the concept of standing was co-extensive with private interest standing, namely whether an individual had sufficient stake in the outcome of the action to compel a court to decide its merits.
Private interest standing resulted in damages or other coercive relief but did not encompass the right to a declaration of invalidity of statutory provisions. As a general rule, only the Attorney General as guardian of the public interest had standing to bring proceedings to vindicate the public interest.
From these roots have grown three legal branches in modern constitutional law concerning standing:
1. In 1924, the Supreme Court of Canada held in Smith v. A.G. Ont. that if the legal rights of an individual were affected differently than other members of the public by legislation, this "exceptional prejudice" entitled the plaintiff to standing to seek a declaration of the invalidity of the statute.
2. In pre-Charter days, the judiciary developed a discretionary grant of standing supplementary to standing as of right. It allowed the validity of statutes to be challenged by a plaintiff asserting in the public interest that the statute violated the rights of someone other than the plaintiff. This amounted to a major liberalization of the common law. The modern test for public interest standing has now crystallized as the Borowski test.
3. Most recently, the Charter's expansion of constitutional rights has predominated, granting individual remedies for Charter violations in s.24(1), and remedial powers under s.52(1) of the Constitution Act, 1982. Private interest standing concepts have now been incorporated into Charter analysis by virtue of the individual as being the primary beneficiary of rights and freedoms given the language of the text. The concept of public interest standing which evolved within narrow parameters in the pre-Charter era has also been imported into Charter cases when declaratory relief is sought for the violation of Charter rights of persons other than the applicant.
In this framework, the plaintiff who is relying on s.24(1) of the Charter is legally understood to be protecting their own personal, proprietary or pecuniary interests from direct harm. This is the traditional and comfortable purview of the law of standing. A plaintiff who seeks to have a law struck down under s.52 of the Constitution Act, 1982 must meet the test for public interest standing. Whether the Smith test still survives as well is unclear.
There are four distinct ways in which rights guaranteed under s.15(1) of the Charter can be put into issue in a lawsuit:
1. The case can be initiated wholly or partly as a claim for a remedy for a breach of the applicant's equality rights under s.15(1).
2. The defendant in a non-section 15 case can raise s.15(1) as a defence, either as an equality claim seeking a remedy or as an interpretive guide to the legislation under scrutiny.
3. A third party, such as the press or a witness, can raise a s.15 issue in asserting their own Charter rights in the context of a particular proceeding, seeking a procedural remedy in the proceeding.
4. An intervenor can raise s.15 arguments.
The first two scenarios represent the more typical cases, involving either the use of equality rights as a sword to bring a claim against the government for a remedy, or as a shield to defend oneself against a charge. These two uses of s.15 spawn a variety of standing issues which are the main thrust of this memo.
The standing of third parties whose rights are affected by the litigation to advance their own Charter rights in the proceeding has recently been clarified by the Supreme Court of Canada in the case of the press and witnesses respectively. The standing of third parties will be examined in the context of the use of s.15 as a sword.
The situation of the intervenor can be dealt with quickly. Subject to specific procedural rules governing interventions in each jurisdiction, private intervenors generally have no standing as of right, but can seek standing on discretionary grounds. The rules governing interventions are beyond the scope of this memo, except to note that a Charter intervenor is usually only permitted to make arguments using the Charter as an interpretive guide to the statutory provisions under scrutiny. Intervenors cannot usually bring a claim for a remedy unless granted party status -- a rare case, but an instance of which was seen in LEAF's intervention in Schacter at the Ontario Court of Appeal.
SECTION 15(1) AS A SHIELD
Any party charged with an offence can defend the charge on the basis that the statute or portion of the statute giving rise to the charge violates s.15(1) of the Charter. This is true whether the equality rights alleged to be contravened are those of the accused or not, and often they are not. In other words, defendants charged with criminal and statutory offences have unlimited scope to raise the constitutional validity of legislation in the abstract, on the accepted rationale in constitutional law that no one should be penalized under an unconstitutional law. This shield is open to an individual or corporate accused equally.
This principle was confirmed early in Charter litigation in Big M Drug Mart Ltd. in the context of other Charter rights. A corporate defendant charged with selling goods on Sunday argued that religious freedom guaranteed by the Charter was denied by the statutory ban on Sunday shopping. A majority of the Supreme Court of Canada acknowledged that, although a corporation may not be able to enjoy religious freedom itself, it could assert the constitutional rights of natural persons as a means of defence.
Also, in Wholesale Travel, the Supreme Court of Canada held that the corporate accused could challenge the false advertising provisions under which it was charged as a violation of ss.7 and 11(d) of the Charter, notwithstanding that these rights did not extend to corporations. A corporate accused was entitled to benefit if the law was unconstitutional on any basis.
Occasionally, this legal avenue can be helpful for litigating the equality rights of disadvantaged groups. One example occurred in the Nova Scotia case of R. v. Rehberg. In this case, a single mother on welfare was charged with defrauding the government by obtaining social assistance without disclosing she was cohabiting with a man. She successfully defended the charge on the grounds that the "man in the house" rule violated her Charter rights.
A second example occurred when Dr. Henry Morgentaler was charged with violating the abortion provisions of the Criminal Code then in force. With the help of his feminist counsel, Anne Derrick, he successfully defended himself on the basis that these restrictive provisions violated the Charter rights of women to control their own bodies and were therefore unconstitutional: Morgentaler, 1988.
Cases where the rights of women and other disadvantaged groups are recognized in some useful way through defending charges are, however, rare. More often, arguments raised by accused persons invoking the Charter's equality guarantees can threaten fragile gains won in the political arena such as protection of benefits to disadvantaged groups. In R. v. Hess, the accused argued that s.146(1) of the Criminal Code violated his right to sex equality in that only men could be charged with this offence and only women could be complainants. Although the Supreme Court of Canada ultimately held this section did not violate the accused's equality rights, the realization of the power of one accused, in furtherance of his personal interest in avoiding criminal liability, to obtain a ruling that could abolish legal protections for women, is sobering.
Another example of this occurred in R. v. Butler. The accused sought to strike down the obscenity law to avoid a criminal conviction for its breach. The obscenity rules in the Code, for all their weaknesses, offered some minimal recognition of pornography's harm to women. LEAF as an intervenor was able to demonstrate the equality interests at stake, which analysis become important on the s.1 deliberations concerning reasonable limits on freedom of expression. The Supreme Court of Canada upheld the obscenity law.
Unfortunately, interventions by equality advocates in criminal cases are not common. The sheer volume of cases in twelve jurisdictions, as well as automatic appeal rights enjoyed in some of these cases, make monitoring cases with equality rights implications a difficult challenge, let alone marshalling the resources to intervene in those with serious potential impact.
SECTION 15(1) AS A SWORD
Whereas an accused has unlimited scope to raise s.15 arguments, the proactive use of s.15 is more limited.
Four permutations are possible:
1) The plaintiff is an individual, alleging a breach of his or her own equality rights.
2) The plaintiff is a corporate entity, alleging a breach of its own equality rights.
3) The plaintiff is a corporate entity, alleging a breach of the equality rights of individuals represented by the organization.
4) The plaintiff is an individual, alleging a breach of the equality rights of others.
The first two are instances of private interest standing; the latter two of public interest standing. Before examining them, a discussion of the recently confirmed rights of third parties to raise Charter claims is in order.
Standing of Third Parties to Raise Charter Claims
As a result of recent Supreme Court of Canada decisions in Dagenais and
A.(L.L.) v. B.(A.), the rights of third parties to raise Charter arguments on
their own behalf in criminal trials is expanded and clarified. The Dagenais
case dealt with the rights of the press; B.(A.) with the rights of a sexual
assault centre which provided counselling services to the victim and was
subpoenaed as a witness in a criminal trial. Although the Charter claims
raised by the third parties in these cases were not under s.15 per se, the
reasoning in the judgments is applicable to equality cases as well.
In Dagenais, the Crown sought a publication ban, which ban the press wished to challenge. The Supreme Court of Canada eventually held that the media has standing on the motion for the publication ban to make Charter arguments regarding its right to freedom of expression. In B.(A.), the principle was expanded allowing third parties, such as the sexual assault centres in this case, standing to oppose the subpoena by also allowing third parties the right to appeal an adverse ruling without having to wait until the end of the trial. (Under the general rules of criminal procedure, a party cannot appeal interlocutory rulings).
A. Private Interest Standing
In private interest standing, the plaintiff is relying on what is legally understood as the use of the Charter to protect their own personal, proprietary or pecuniary interests from direct harm. As indicated above, this is the traditional purview of the law, now imported into Charter claims by virtue of the language of individualism employed in s.15.
The legal basis for challenging an infringement or denial of one's equality rights is found in s.24(1) of the Charter which says:
Anyone whose rights or freedoms guaranteed herein have been infringed or denied may apply to a court of competent jurisdiction for such remedy as the court considers just and appropriate in the circumstances.
Clearly, an individual falls under the rubric of "anyone". Section 24 remedies are particularly useful where the Charter violation does not entail unlawful legislation, or where remedies in addition to s.52 remedies are sought. For example, a Charter challenge to the discriminatory enforcement of otherwise lawful legislation would entitle a plaintiff to standing under s.24(1) but not under s.52.
Although most equality cases potentially entail both s.24 and s.52 remedies, it is helpful to keep these sections analytically separate in the context of standing as some claims will entitle a plaintiff to a remedy under one section, but not both. In other words, standing under s.24(1) is not always co-extensive with standing under s.52 of the Constitution Act, 1982 -- a technical point that can be relevant in some Charter litigation.
The equality claims of individuals are rooted in their "private" equality rights, however, they also generally entail claims of unconstitutional legislation, which, if established, will give rise to a public remedy under s.52 as well. Section 52(1) of the Constitution Act, 1982 states:
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 inconsistency, of no force or effect.
Numerous cases illustrate the reliance on private interest standing to bring equality claims, and most have sought a declaration of invalidity of legislation as well. Some of these reaching the Supreme Court of Canada in recent years are:
1. A claim by a homosexual couple for old age security benefits available to heterosexual couples: Egan and Nesbit, 1995.
2. A claim by a professional business woman to allow child care expenses incurred to run a business to be included as a business deduction for tax purposes: Symes, 1993.
3. An allegation of discrimination by a male prisoner subjected to surveillance and bodily searches by female guards for the reason that female prisoners were not subjected to the same practices by guards of the opposite sex: Weatherall, 1993.
4. A claim by a terminally ill woman that the criminal law provisions prohibiting assisted suicide violated, among other things, her equality rights: Rodriguez, 1993.
5. A claim by an adoptive father for the same parental benefits as biological fathers under the Unemployment Insurance Act: Schacter, 1992.
6. A claim by a senior that the denial of regular unemployment insurance premiums to her when she reached age 65 was discriminatory: Tétreault Gadoury, 1992.
7. A claim by a custodial parent challenging the provision of the Income Tax Act which imposed on her the tax burden of monies she received exclusively for the benefit of her children: Thibaudeau, 1995.
These and a plethora of other cases at lower court levels indicate that no standing issues will likely arise when an individual makes a claim for denial of equality, nor will any objection likely be made to an individual's claim for a remedy under s.24(1), or s.52 in conjunction with a claim under s.24(1), as long as the statement of claim discloses a reasonable cause of action. However, as indicated above, standing under s.24(1) is technically distinct from standing under s.52, and one case where the government conceded the plaintiffs standing to bring an equality claim under s.24(1) but refuted the plaintiff's standing to seek a constitutional remedy under s.52 was Liebmann v. The Queen.
A case decided recently in the Federal Court Trial Division illustrates that courts are willing to treat private interest standing expansively when an individual can clearly show they are directly affected or injured by the law. In Crease v. Canada, one issue was whether the applicant, a Venezuelan citizen and resident, had standing to bring a claim under the Charter to challenge a section of the Citizenship Act under which he was denied citizenship. He believed that, except for the discriminatory provision, he was entitled to citizenship. Although he was not in the country, he was found to be an "individual" so as to establish the necessary substantive base under s.15 to invoke the Charter, and was granted private interest standing.
Where an individual plaintiff is joined by a corporate plaintiff, it is open to the government to challenge the standing of the corporate plaintiff to bring the claim. An example of this occurred in Federated Anti-Poverty Groups of British Columbia where several individuals affected, together with an umbrella advocacy organization active on their behalf, brought a challenge to provisions of the welfare legislation which vested in the Crown the individual's right to sue for maintenance. The defendant government challenged the standing of FAPG to make these claims under ss.7 and s.15 of the Charter. The B.C. Supreme Court denied standing to FAPG on the s.7 claim on the basis of Irwin Toy, but granted standing on the s.15 claim. Parrett J. considered both private and public interest standing in respect of the organization to make s.15 claims. He first ruled that the rights enumerated in s.15 signify rights according human dignity and as such were incapable of being enjoyed or felt by an artificial being. Although FAPG may have a vicarious interest in the individual rights of its members and its constituency, it could not exercise s.15 rights on its own behalf and he therefore denied FAPG private interest standing to assert the s.15 claim.
However, on the basis of the Borowski test, the court ruled there was a serious issue to be determined in the case, FAPG had a genuine interest in its adjudication, and opted to exercise its discretion in favour of FAPG on the third branch of the test.
In relying on Energy Probe (discussed below), Parrett, J. said at p. 347:
"While the individual plaintiffs may be able to continue this action on their own, the inclusion of FAPG as a plaintiff does not prejudice the defendants and may significantly assist the court".
The twin bases of not prejudicing the other side and ability to provide expertise to assist the court are also seen in other cases where an advocacy group is joined with individual plaintiffs -- a promising strategy for obtaining standing in cases where the advocacy group alone may be denied. Although in Federated Anti-Poverty Groups, the government challenged standing, governments often do not oppose standing in respect of the organization when the claim is brought jointly with individuals. The NWAC case which reached the Supreme Court of Canada in 1994 is a case in point. Here, the two individual plaintiffs were executive members of the organization each with their own long and public history of advocacy on behalf of Aboriginal women. The government did not challenge the organization's standing to assert the s.15 claims it did, notwithstanding that, on the basis of prior case law, it is doubtful NWAC had standing to make the arguments it raised in respect of its equality rights. Significantly, this case also raised freedom of expression claims which corporate plaintiffs are entitled to make, demonstrating that another possible way to "get in the door" on s.15 claims is sometimes to include them in claims for which standing is irrefutable.
As a general strategy for equality litigation, reliance on private interest standing may be legally sound, but is fraught with pitfalls for equality seeking groups. First, it is more difficult to obtain group remedies when the case is framed as a mere violation of private rights causing personal or private harm; s.24(1) clearly anticipates individual remedies. Second, the plaintiff has an overriding legal and moral right to control the litigation and seek a remedy that satisfies their interests in the litigation. Even where the case is funded by a program such as Court Challenges, there is a limit to how much control the funding agency can exert over the litigation, justifiably so if liability for costs rests solely with the litigant personally, as is usually the case.
b) Corporate Entities
Section 24(1) grants to "anyone" the right to seek a remedy for a violation of their Charter rights. The extent to which a corporation has exactly the same rights or freedoms as a human person, and therefore the standing to assert breach of those rights, is still in a state of evolution.
The case law to date regarding the private interest standing of corporate entities to assert violations of their own rights indicates the following:
1. There is as yet no global pronouncement from the Supreme Court of Canada concerning the rights of corporate entities as would encompass any and all claims brought under the Charter, or as would encompass all corporate entities. On the contrary, the law is developing in a more contextual way, primarily based on the particular Charter right relied upon.
2. The type of corporate entity making the claim does not, however, appear to be a relevant part of the context. No distinction is emerging in the case law based on the nature of the organization or its reason for existence. From our perspective, the press, commercial entities with claims aimed at protecting their corporate interests and non-profit advocacy groups seeking to assert the equality rights of disadvantaged groups have clear and relevant differences in the sociopolitical context which ought be factored into Charter analysis. In current Charter law, however, they all rank as "corporate" plaintiffs and dealt with as an undifferentiated category.
3. It is likely that a corporate entity would have standing to enforce a right under s.24(1) if the substantive right applies to corporate entities as well as individuals. In this sense, the term "anyone" in s.24(1) has been construed as including both natural and artificial persons.
4. However, some Charter rights are unlikely to apply to corporate entities. For example, if a corporation cannot exercise religious freedom in respect of itself, it will not be granted standing to initiate a claim for a violation of religious freedom although it could argue a violation of the religious freedom of others as a defence to a charge. Section 7 of the Charter (life, liberty and security of the person) has been found not to apply to corporate entities; therefore legislative provisions applicable to corporations cannot be the subject of a proactive challenge using s.7: Irwin Toy, 1989.
5. On the exact question of the standing of corporate entities to bring equality claims under s.15 on a private interest basis, there is as yet no definitive ruling from the Supreme Court of Canada. Some judicial indications from the high court to date make future standing on this basis unlikely. In Edmonton Journal in 1989, LaForest, J., writing for himself, Sopinka and L'Heureux-Dubé, perfunctorily dismissed the idea of a corporation claiming s.15 rights for itself. [The other four judges declined to rule on the issue, saying it was unnecessary to do so]. The newspaper here was challenging provincial restrictions on the reporting of civil cases, such as family law cases, arguing that such limits discriminated against newspapers. LaForest, J. said:
Since s.15 is limited to individuals, it does not apply to corporations like the appellant; see, inter alia, Re Aluminum Co. of Canada, Ltd. and the Queen in right of Ontario (1986), 55 O.R. (2d) 522 (Div. Ct.); leave to appeal to Ont.C.A. refused September 2, 1986; Parkdale Hotel Ltd. v. Canada (Attorney General),  2 F.C. 514 (T.D.); Milk Board v. Clearview Dairy Farm Inc.  4 W.W.R. 279 (B.C.C.A.), leave to appeal to this court refused,  1 S.C.R. vii; Nissho Corp. v. Bank of British Columbia (1987), 39 D.L.R. (4th) 453 (Alta Q.B.).
6. However, the following year in Rudolph Wolff v. Canada, the Supreme Court was again asked the question of whether a corporation has standing to invoke s.15 of the Charter. The Court concluded that the issue was moot after the main claim was dismissed on its merits, but left the door open as follows:
In light of that conclusion, it is neither necessary nor advisable to deal with the submission of the respondent that a corporation has no standing to invoke s.15 of the Charter. This issue may properly be left for future consideration.
7. Relatively few cases exist where an equality seeking organization has attempted to assert a s.15 claim in its own name. As seen above, however, FAPG was granted standing in one such case, while standing of NWAC was not put in issue in that case. A third such case was National Anti-Poverty Organization in 1989. The consumer advocacy group tried to assert procedural and Charter rights of consumers against certain practices of Bell Canada which were endorsed by the federal Cabinet. The Federal Court of Appeal ruled that the different treatment of NAPO by the Federal Cabinet than Bell did not fall within the meaning of discrimination as articulated in Andrews in 1989, and in any case that NAPO could not assert a s.15 claim because a non-profit group was not an "individual" under s.15. Therefore, although a corporate entity may be included as "anyone" for the purpose of s.24(1), the plaintiff must first demonstrate a substantive Charter right, which it the group could not do in respect of s.15.
8. The incapacity of a corporation to invoke the protection of s.15 was also expressed by lacobucci, J. as he then was, for the Federal Court of Appeal in Central Cartage Co. et al. The corporation here argued that a section of the Canada Evidence Act which granted procedural rights to the Crown in a civil case but not to private litigants contravened the corporation's right to equal treatment under s.15 of the Charter. The Federal Court of Appeal held that the company could not rely on s.15 as it only provided protection to individuals, citing Stone, J.A.'s statement in NAPO for this proposition.
9. In the NWAC case referred to, claims were made by all plaintiffs for violations of freedom of expression and sex equality. The government had denied a comparable level of funding to NWAC as granted to the other national Aboriginal groups to participate in constitutional discussions leading up to the Charlottetown accord, the denial of which formed the basis of all claims. Most interestingly, the claims were asserted on behalf of the individual plaintiffs and all Aboriginal women represented by the organization by virtue of the treatment accorded the organization in denying equal funding. This is illustrated in the way the Supreme Court of Canada framed the s.15 question:
Did the Government of Canada violate the equality rights of the individual respondents or of Aboriginal women represented by NWAC, as guaranteed by s.15(1) of the Canadian Charter of Rights and Freedoms, by funding the four Aboriginal organizations and permitting their participation in the constitutional discussions while not providing an equal right of participation and funding to NWAC?
In the end result, all claims failed on their merits. However, it is clear that the government's treatment of this advocacy group could have resulted in equality violations. From our perspective, it shows a potential way to frame the concurrent interests of the advocacy organization with those it represents in order to obtain standing on a private interest basis which, unlike public interest standing, is granted as of right.
It is also interesting to speculate on the strategy of naming as co plaintiffs the executive members of the organization as a way to obtain private interest standing in the organization's own name on behalf of those it represents. Could, for example, the Yukon Status of Women Council, funded under the Women's Program, bring a claim that the funding guidelines violate the sex equality guarantees of the Charter in that they prohibit the use of these funds for any work on issues concerning abortion or lesbian issues? Could a transition home claim that the inadequate provision of RCMP services in a rural area deny women in the community equal protection of the law? These examples illustrate a potential that may be worth exploring.
However, it should also be recognized that the expansion of s.15 by groups and organizations is a double edged sword for equality seekers, particularly if no distinction is drawn by the courts between commercial entities and equality seeking groups. It is generally considered a positive thing that commercial entities cannot bring equality claims; indeed, companies flooded the courts with these types of claims before Andrews effectively shut the door on the concept of commercial equality rights. Unfortunately, the closure seems to have been applied to all groups, regardless of the nature and purpose of the organization bringing the claim and the nature of the claim. Although this is hardly in keeping with a purposive approach to Charter rights, there is little to indicate this will change.
B. Exceptional Prejudice Standing
The first thing to note about exceptional interest standing is that the current existence of this basis for obtaining standing is not certain in Canadian law. However, if found to exist, this is a type of standing as of right, and would therefore benefit an applicant who could not meet the test for private interest standing or the test for public interest standing.
The leading case establishing exceptional prejudice standing is Smith v. A.G. Ontario decided by the Supreme Court of Canada in 1924. The rule adopted here was an exception to the common law rule that only the Attorney General has the right to bring proceedings to vindicate the public interest. Under the "exceptional prejudice" rule articulated in Smith, a plaintiff can challenge a law of general application as of right if the plaintiff can show that the effect of the legislation is greater or different than its effect on the public at large, and the plaintiff could establish a judicially recognizable interest in the legislation which, at that time, meant an interest affecting the personal, proprietary or pecuniary rights of the plaintiff.
It is unclear whether subsequent developments in the law of public interest standing leading up to the now entrenched Borowski test have replaced the test or simply added to it. Madame Justice L'Heureux-Dubé in her dissent in Hy and Zel Inc. made a compelling argument that the rules concerning public interest standing as a discretionary form of standing were an adjunct to the rule in Smith, and did not displace the concept of exceptional prejudice standing if the applicant could meet that test. She would have granted standing to the corporate plaintiffs on an exceptional prejudice basis. However, the majority of the Court per Major J. expressly declined to rule on this point. He says at p. 694:
My colleague Justice L'Heureux-Dubé is of the opinion that the appellants satisfy the test for standing set out in Smith v. Attorney General of Ontario,  S.C.R. 331. In my opinion, this is not the proper case for deciding the extent to which Smith survives in view of the more liberal rules relating to public interest standing. The appellants have not presented any evidence as to how they themselves have suffered exceptional prejudice under the Smith test.
C. Public Interest Standing
The court has the discretion to permit an individual or corporate entity who cannot claim standing as of right to attack the constitutional validity of legislation or government action in limited circumstances. It is important to realize that the rationale for this privilege is rooted in the belief that no government activity should be immunized from scrutiny by the courts. This rationale is not the same as, for example, desiring to provide citizens with greater access to the courts or desiring to give effect to the true purposes of the Charter. The boundaries of public interest claims are in law quite circumscribed.
Public interest standing to challenge legislation is now generally understood to arise under s.52(1) of the Constitution Act, 1982. Under this section, the plaintiff can seek a declaration that a statutory provision contravenes the Charter rights of another person or group of people and a remedy is warranted. Remedies are limited to s.52(1) remedies, as standing obtained under this section alone would not entitle a plaintiff to remedies under s.24(1) as well. The remedial powers of the Court under s.52(1), following Schacter and other cases, have been evolving in relatively expansive ways. The subject of remedies is beyond the scope of this memo.
To obtain public interest standing under s.52, the plaintiff must show that:
1. There is a serious issue as to the validity of the law or government action under attack;
2. The plaintiff is directly affected by it; and
3. There is no other reasonable and effective way the validity of the law can be determined.
This test was articulated this way in Borowski in 1981, before the Charter came into force. However, it remains the test in effect today notwithstanding attempts to broaden it based upon Charter principles.
Supreme Court of Canada Cases
The Supreme Court of Canada has applied the Borowski test for public interest standing on a few occasions following the Charter's enactment, the leading case being the Canadian Council of Churches which involved a challenge by an advocacy group to Immigration Act rules concerning convention refugee status.
In this case, the Supreme Court expressly rejected the invitation of equality seeking groups to expand the test for public interest standing in light of the Charter. Cory, J. for the majority closed the door fairly tightly with the following comments at p. 204, worth quoting at length:
The increasing recognition of the importance of public rights in our society confirms the need to extend the right to standing from the private law tradition which limited party status to those who possessed a private interest. In addition, some extension of standing beyond the traditional parties accords with the provisions of the Constitution Act, 1982. However, I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this court need not and should not be expanded.
Clearly, the scope of public interest standing in the post Charter era does not encompass a concept of more liberal access to the courts to public interest groups or a purposive approach to standing law in aid of giving life to the equality guarantees in particular. It remains a way to afford individual citizens a means to attack government action only if the alternative is that the legislation could not be challenged at all.
This standard was re-iterated and applied by the Supreme Court of Canada the following year in Hy and Zel Inc. This case involved companies who sought to use the Charter's freedom of religion and equality guarantees to challenge the validity of the Sunday shopping ban, framing the case as a denial of the freedom of religion and equality of their employees who had no right to work on Sundays as a consequence. As the corporation could not enjoy religious freedom, the claim was treated by a majority of the Court as one requiring public interest standing. [The majority did not address the whether the corporation had standing to bring the s.15 claim, although L'Heureux-Dubé noted in her dissent that this question was yet undecided in law.]
The Court ultimately denied standing on the third branch of the Borowski test, holding that other reasonable and effective ways existed to adjudicate the issues. Indeed, on the facts of this case, the applicants led no original material but relied on documents filed in parallel challenges.
With these recent pronouncements, cases decided prior to Canadian Council of Churches in 1992 are now of less relevance, but two cases which reached the Supreme Court of Canada are worth noting as part of the judicial history of public interest standing, particularly since the test is clearly still evolving and its application in different contexts may be helpful in a particular challenge. In these cases, the Supreme Court exercised its discretion to grant standing:
1) Conseil du patronat du Québec: the Supreme Court of Canada granted the employers' association standing to challenge the anti-strike breaking provisions of the Quebec Labour Code as a violation of the rights of employers under various sections of the Charter. No written reasons are provided except the general endorsement of the dissenting judgment of Mr. Justice Chouinard of the Court of Appeal. He found the plaintiff organization, a non-profit umbrella corporation representing the interests of several employers' organizations, met all three branches of the Borowski test.
2) Energy Probe: The Supreme Court refused leave to appeal from a 1989 decision of the Ontario Court of Appeal granting public interest standing to a non-profit environmental organization to challenge the validity of the Nuclear Liability Act which limited the financial liability of the federal government in the event of nuclear disaster. Included among the various claims of unconstitutionality was a claim under s.15 of the Charter that the limit of recovery to $75 million and the prohibition against pursuing recovery in the courts were denials of equal treatment under the law in that the tort protection generally available to accident victims would be denied to victims of nuclear disaster.
Here, the court found that the three branches of the Borowski test were met. On the third branch of the test, the Court acknowledged that, although it was possible to wait until after a nuclear disaster when an individual came forward to challenge the law's validity (as urged by the defendants), that would hardly be a more reasonable or effective way to resolve the issues than the challenge currently before the court.
This case is also interesting for its express comparison of the corporate and individual citizen when considering the second branch of the Borowski test, namely the plaintiff's interest in the issue. The argument is sometimes raised that a corporate entity cannot be a "citizen" for the purpose of the second branch. The unanimous decision delivered by Carthy, J. is instructive:
The issue is... whether a genuine interest in the validity of the legislation can be shown. Mr. Borowski had no direct or future contingent interest in the abortion issue other than as a citizen with an interest constitutional behaviour. Would his status have been differently considered if he had presented himself in the role of "Borowski Inc.", a non-profit organization devoted to issues related to abortion laws? I think not, and furthermore, if in this case it was decided that the individuals have status but the corporations do not, it would be a disservice to the purpose of the exception in effectively bringing significant issues before the court, by depriving one side of the litigation of the expertise and resources needed to assure effective presentation.
The Court went on to say that different considerations might apply on the third branch of the test if a corporate applicant alone came before the Court; but here there was no detriment to the defendants because the corporate plaintiffs were joined with the individuals and all were represented by the same counsel.
Lower Court Cases
Much of the case law on public interest standing, now continued in the post-Charter era, revolves around the third aspect of the Borowski test, namely whether there is another reasonable and effective way that the matter can be determined. This branch of the test has often proven difficult for public interest groups to meet. Many courts have interpreted this criterion to mean that public interest standing will be denied if, in theory, there is a group more affected by the law than the plaintiff who could conceivably bring a constitutional challenge. The structural barriers that may prevent them from doing so are often of little concern to the judiciary, as is the fact that another challenger may have a legitimately different interest and perspective than the current plaintiff. Following the Canadian Council of Churches case, the standard is often applied in the abstract: Is there a possibility of someone with a more direct interest bringing a constitutional challenge to the legislation? If yes, the plaintiff will be denied standing.
On this basis, numerous statutes are effectively precluded from public interest challenges. If the statute is regulatory or punitive, it will undoubtedly create penalties for its breach. A whole class of potential accused persons therefore exists who could, in theory, bring constitutional challenges in their own interest. Because of this, statutes are arguably shielded from review on a public interest basis for their possible discriminatory impact on other groups of disadvantaged persons also affected by the law.
A case in point, although it preceded Canadian Council of Churches, was the denial of public interest standing to the Canadian Abortion Rights Action League (C.A.R.A.L.) to use s.15 to challenge the restrictive pre 1988 abortion law. The Nova Scotia Court of Appeal held that, insofar as Dr. Morgentaler had been charged under Nova Scotia regulations prohibiting therapeutic abortions except in approved hospitals, this was a prima facie case where the very issues C.A.R.A.L. raised would be dealt with at this trial, particularly where, as here, the same legal counsel was retained. This amounted to another reasonable and effective way to litigate the issues, and the Court of Appeal dismissed C.A.R.A.L.'s action for want of standing. In doing so, the Court placed squarely on the shoulders of an individual accused the exclusive right to litigate on behalf of all those affected by a law and denied a national advocacy organization with its admitted interest, expertise and resources the same opportunity.
Luckily, the judiciary is not all ad idem on such a restrictive application of the third requirement of the Borowski test, and more progressive judgments have also emerged. A recent case in the Federal Court Trial Division involved three individuals opposed to Sikh RCMP officers being allowed to wear turbans: Grant et al. v. Canada. The group had also formed an unincorporated association known as the "Lethbridge RCMP Veterans' Court Challenge Committee", and brought the action in the name of the group and themselves as individuals. The defendants argued that neither the individuals nor the group had standing to bring the action.
The Federal Court found that a legitimate constitutional question was raised, namely whether there exists a constitutionally protected right that members of the national police force be required, when exercising powers of the state, to do so without simultaneously exhibiting their religious affiliation. The plaintiffs were also found to meet the second requirement of possessing sufficient interest in the subject matter of the litigation.
On the third branch of the test, Madame Justice Reed gave short shrift to the concerns expressed in Canadian Council of Churches about public interest groups flooding the courts with trivial suits. She interpreted the question of whether there was any other reasonable and effective way to have the issues litigated liberally in favour of the plaintiffs, dismissing the theoretical types of challenges the defendant raised to keep the suit out of court, and restricting the scope of Canadian Council of Churches in a way that benefits equality seeking groups. She says at p. 198:
At most the defendants' arguments are that a possibility exists than an alternative action might be brought. In the Canadian Council of Churches, the alternative litigation was not a mere possibility or a matter of speculation about actions which might arise. There was actual litigation (thousands of cases) in the courts below. In order to meet the test of a "reasonable and effective" alternative, I think it is necessary to demonstrate more than a possibility that such litigation might occur. I am of the view that in the present case, the claim which is being asserted is not one with respect to which there exists a reasonable and effective alternative means to bring that issue before the courts.
Another more liberal interpretation of Canadian Council of Churches helpful to advocacy groups was adopted by the Ontario High Court in R. v. Unishare Investments Ltd., albeit the corporate plaintiff here was a commercial applicant which was an important factor. The applicant sold flowers to street vendors in Toronto. The city passed a by-law allowing officers to confiscate flowers being sold in places where such sales were forbidden. The plaintiff applied for a declaration that the by-law violated s.8 of the Charter. Standing to bring the action was challenged. In considering whether the third branch of the test was met on these facts, MacPherson, J. of the Ontario Court General Division said:
In my view, the applicant also meets the third branch of the Canadian Council of Churches test. It is true that individual street vendors could challenge s.3(1) of the Act. However, I do not regard that as a more reasonable or effective way of bringing the issue before the courts. Most street vendors are people of very limited means. Although they may have a legal interest in challenging the law, it is, in my opinion, unrealistic to expect them to do so in light of their financial situation.
In Canadian Council of Churches, the plaintiff umbrella group was denied standing to challenge the constitutionality of amendments to the federal Immigration Act because many individual refugees who were before the courts were better positioned to mount the same challenge....In the instant case, none of the street vendors has challenged the Act. And, in light of their financial situation, this is not likely to change. Moreover, the applicant is not just an umbrella interest group trying to promote a cause; it is, as I concluded above, directly affected by the law...
There is little helpful recognition in post-Charter equality jurisprudence concerning concepts related to group wrongs, group complaints and group remedies which has impacted the law of standing. On the contrary, explicit deference continues to be given to the individual as the preferred Charter litigant, both formally in private interest standing and effectively in many public interest standing cases.
When one considers the numerous technical impediments to the use of s.15 as a sword, the unlimited potential of the use of s.15 as a shield by those charged with offences, and the limitations of public interest standing, the effect of the rules of standing as a whole on the ability of disadvantaged groups to assert their equality claims invites scrutiny for its contribution to the continuation of inequality of condition. In light of the failure of the specific plea by equality seeking groups to the Supreme Court of Canada in 1992 in the Canadian Council of Churches case to reassess the rules of standing from this perspective, such an approach at this time would likely not be fruitful. From the perspective of the Program, any legal arguments that aim to develop the law of standing more along the lines of human rights jurisprudence in respect of group claims should be developed as test cases in their own right. As well, the best chances of success appear to be with joining equality claims with other claims, and joining claims of advocacy groups with the claims of individual plaintiffs, such as the present or past executive members of the organization. On the latter, it may be appropriate and possible for the organization to indemnify the individual plaintiffs against personal responsibility for costs.
A.(L.L.) v. B.(A.) Dec. 14, 1995 decision of the Supreme Court of Canada, not yet reported.
Andrews v. Law Society of British Columbia,  1 S.C.R. 143
Canada v. Central Cartage Co. et al.,  2 F.C. 641.
Canadian Abortion Rights Action League Inc. (C.A.R.A.L.) v. Nova Scotia (Attorney General) (1990), 69 D.L.R. (4th) 241 (N.S.C.A.)
Canadian Council of Churches v. Canada (M.E.I.),  1 S.C.R. 236.
Conseil du Patronat Du Québec Inc. v. Québec (Attorney General),  3 S.C.R. 685
Crease v. Canada,  3 F.C. 480 (T.D.)
Dagenais v. Canadian Broadcasting Corporation (1994), 175 N.R. (S.C.C.)
Edmonton Journal v. A.G. Alberta,  2 S.C.R. 236
Egan v. Canada,  2 S.C.R. 513
Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d) 449 (C.A.)
Federated Anti-Poverty Groups of British Columbia et al. v. B.C. (Attorney General) (1992), 70 B.C.L.R. 325
Grant v. Canada (Attorney General), [ 1995] 1 F.C. (T.D.)
Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General),  3 S.C.R. 675
Irwin Toy v. Quebec,  1 S.C.R. 927
Liebmann v. Canada,  2 F.C. 3
Minister of Justice of Canada v. Borowski,  2 S.C.R. 575
National Anti-Poverty Organization v. Canada (Attomey General),  3 F.C. (C.A.)
Native Women's Association of Canada v. Canada (1994), 173 N.R. 241 (S.C.C.)
R. v. Big M. Drug Mart,  1 S.C.R. 295
R. v. Butler, [ 1992] 1 S.C.R.
R. v. Hess, [ 1 990] 2 S.C.R. 906
R. v. Morgentaler (No. 2),  1 S.C.R. 30
R. v. Rehberg (1994), 126 N.S.R. 331
R. v. Unishare Investments Ltd. (1994), 22 C.R.R. (2d) 134 (Ont. H.C.)
R. v. Wholesale Travel Group Inc.,  3 S.C.R. 154
Rodriguez v. British Columbia (A.G.),  3 S.C.R. 519
Rudolf Wolff & Co. v. Canada,  1 S.C.R. 695
Schacter v. Canada,  2 F.C. 129 (C.A.)
Schacter v. Canada,  2 S.C.R. 679
Smith v. A.G. Ont.  S.C.R. 331
Symes v. Canada,  4 S.C.R. 695
Tétreault-Gadoury v. Canada (C.E.I.C),  2 S.C.R. 22
Thibaudeau v. Canada et al.,  2 S.C.R. 627
Weatherall v. Canada (Attomey General) (1993), 105 D.L.R. (4th) 210 (S.C.C.)