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McKinney v. University of Guelph, [1990] 3 SCR 229

Facts:

Challenging mandatory retirement policies of the university.

Issue(s):

Is the Charter applicable to the actions of universities?

Ratio:

Universities are not generally subject to the Charter, as government has no legal control over them. Entity performing a public function is not enough in itself to warrant Charter scrutiny; government must “exert control” over operations.

Analysis:

*Mere fact that entity is a creature of statute is not sufficient to make its acts subject to the Charter – it would then apply to private corporations and defeat the purpose of limitation to government
*Mandatory retirement is part of an employee package with has been negotiated outside of any statutory process or authority
*Although dependant on government funds, universities are not “organs” of gov. – government has no legal power to control even if they wished to do so
**Not enough that the entity is just “fulfilling a public function”
**If government thinks the university is public enough to merit significant funding, why wouldn’t we want the Charter to apply?
**What it means to “control” something rides a fine line
*Community colleges are distinguished – they are subject to the Charter
*Dissent: Wilson J. crafted a “public function” test to determine applicability [807]


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