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Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery, [1986] 2 SCR 573

Ratio:

Charter does not apply between private actors; Charter applies to common law only insofar as it is invoked by government as specified in s.32.

Analysis:

• An action will be unconstitutional (eg. injunction) if it relies on statutes or the common law to infringe a Charter right or freedom
• S.32 of Charter uses “government” as distinct from legislative branch, so is not encompassing on the courts
• Must be an element of government intervention present in this action which allegedly infringes a right or freedom
• Does not apply to private parties; they do not owe each other any constitutional duty
• An order of the court does not equate to government action, even though the judiciary is a branch of government – as it would widen Charter scrutiny to all private litigation
• Obviously, the law must still develop in a manner consistent with the values enshrined in the Constitution
• Supremacy clause of the Constitution makes reference to “all laws” of Canada, which subsumes the common law as they are generally referred to as “laws”
**However, doesn’t apply to common law being applied with respect to private parties

Comments:

*May lead to inconsistent application of Charter protection depending on if common law rules are brought into provincial legislation (which then makes the area subject to the Charter) – possible arbitrariness
*Why should courts be immune from Charter? A lot of guarantees (legal rights) relate directly to the courts


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