Charter Does Not Apply to Local Authorities Exercising Government Functions

Authors: Khurrum Awan, Nathanial Day

The recent decision of The Office of the Information and Privacy Commissioner, Saskatchewan v. The University of Saskatchewan[1] confirms that local authorities such as universities, colleges, municipalities, boards of education and regional health authorities are subject to the Charter of Rights and Freedoms when they exercise certain government functions.

Therefore, in the context of delivering policies and programs which are governmental in nature, such as providing information under freedom of information and privacy legislation, local authorities cannot seek the protection of the Charter.

The University of Saskatchewan refused a request for records brought under Saskatchewan’s freedom of information and privacy legislation (the “Act”), stating that they contained solicitor-client information. The Privacy Commissioner’s Office was asked to review the University’s response, and requested the documents pursuant to the Act after the University failed to provide sufficient evidence to allow the Commissioner to verify that the records were subject to solicitor-client privilege. The University again refused, partly on the grounds that the review procedure under the Act would violate its claimed Charter right to be secure from unreasonable search and seizure.

The Saskatchewan Court of Queen’s Bench rejected this argument. The Court found that, as a listed local authority under the Act, the University was carrying out a governmental function of providing information that ensures public transparency and accountability.

The University could be treated as “government” when acting within that role, and was not entitled to Charter protection in the circumstances.

The decision is consistent with the Supreme Court of Canada’s jurisprudence respecting section 32 of the Charter, which stipulates that the Charter applies to federal and provincial governments and legislatures, and all matters within the authority of federal and provincial legislatures. In Godbout v Langueuil,[2] the Court had noted that the Charter applies to all entities which are “essentially governmental in nature.”

Furthermore, the Court found that certain entities may be subject to Charter scrutiny regarding governmental activities they perform, even if the entity cannot be described as “governmental” per se.

This reasoning had been applied, for instance, in Eldridge v British Columbia,[3] where the Supreme Court had found that the Charter applied to health authorities when they acted in the governmental role of delivering health care to the public, even though they were not government entities as such.

The judgment in Privacy Commissioner v. Saskatchewan will be of interest to local authorities in assessing whether they can access the protection of the Charter, or be subject to claims under the Charter, in particular aspects of their operations. At least in the context of freedom of information requests, this case indicates that local authorities cannot access any Charter rights and freedoms.

Read more about the Privacy Law considerations raised by the decision here .

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

[1] 2017 SKQB 140 [“Privacy Commissioner v University of Saskatchewan”].

[2] [1997] 3 SCR 844 (WL) at para 47.

[3] [1997] 3 SCR 624.