Harrison v. University of British Columbia, [1990] 3 S.C.R. 451

The University of British Columbia Appellant, Cross‑Respondent

v.

John R. Connell Respondent, Cross‑Appellant

and

The Attorney General of Canada,

The Attorney General for Ontario,

The Attorney General of Nova Scotia and

The Attorney General of British Columbia Interveners

and between

The University of British Columbia Appellant, Cross‑Respondent

v.

Robert Cameron Harrison Respondent, Cross‑Appellant

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Nova Scotia and

the Attorney General of British Columbia Interveners

indexed as: harrison v. university of british columbia

File No.: 20785.

1989: May 17, 18; 1990: December 6.

Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for british columbia

Constitutional law ‑‑ Charter of Rights ‑‑ Applicability of Charter ‑‑ Government ‑‑ Whether or not university "government" so as to attract Charter review of policies ‑‑ If so, whether or not mandatory retirement policy "law" ‑‑ Canadian Charter of Rights and Freedoms, ss. 15, 32.

Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Equality before the law ‑‑ Age discrimination ‑‑ Mandatory retirement at age 65 ‑‑ Whether or not mandatory retirement policy "law" ‑‑ If so, whether or not s. 15(1) of the Charter infringed ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 15, 32.

Consitutional law -- Civil rights -- Age discrimination -- Protection against age discrimination in employment not extending to those over 65 -- Whether provision infringing s. 15 of the Charter -- If so, whether justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 15 -- Human Rights Act, S.B.C. 1984, c. 22, ss. 1, 8(1).

Respondents were retired at age 65 pursuant to the University of British Columbia's mandatory retirement policy. This policy formed part of the university's terms of employment. Respondents applied to the Supreme Court of British Columbia for declarations that that policy violated s. 15(1) of the Charter as discriminating on the basis of age. They also sought declarations that the definition of "age" in s. 1 of the Human Rights Act was contrary to s. 15(1) of the Charter. This definition restricted the scope of the general prohibition against discrimination in employment on the basis of age in s. 8(1) of the Act to those between the ages of 45 and 65.

The management, administration and control of the property, revenue, business and affairs of the university are vested in a board of governors under the University Act. The provincial government had the power to appoint a bare majority (8 of 15) of its members, but two of these were selected on the nomination of the alumni association. It appointed a minority of the university's senate ‑‑ the body exercising the university's academic government.

Respondents' applications to the Supreme Court of British Columbia were dismissed. The distinction based on age in the Human Rights Act was found to be not so unreasonable as to amount to discrimination within the meaning of s. 15(1) of the Charter and the Charter was found to have no application to the university's mandatory retirement policy. The Court of Appeal allowed the appeals to the extent that it declared that s. 8(1) of the Human Rights Act violated s. 15(1) of the Charter and was not saved by either ss. 1 or 15(2). It confirmed that the Charter did not apply to the university. The university appealed on the issues relating to the Human Rights Act and respondents cross‑appealed on the issues concerning the application of s. 15(1) of the Charter to the university's mandatory retirement policy. The consitutional questions before this Court queried: (1) whether the Charter applied to U.B.C. and to its policy of mandatory retirement; (2) if so, whether that policy contravened s. 15(1) of the Charter; (3) and if so, whether that policy was demonstrably justified under s. 1 of the Charter; and finally, (4) whether the provision of the Human Rights Act limiting protection in employment situations to those between 45 and 65 violated s. 15(1). The Attorneys General of Canada, Ontario, Nova Scotia and British Columbia intervened.

Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be allowed.

Held (Wilson J. dissenting): The cross-appeal should be dismissed.

Per Dickson C.J. and La Forest and Gonthier JJ.: The appeal should be allowed and the cross‑appeal dismissed for the reasons given in McKinney v. University of Guelph, [1990] 3 S.C.R. 000. The higher degree of governmental control present here did not justify the application of the Charter. A distinction must be made between ultimate or extraordinary control and routine or regular control. The fact that the university is fiscally accountable under various acts did not establish government control upon the core functions of the university and, in particular, upon the policy and contracts in issue.

Per Sopinka J.: The conclusions and reasons of La Forest J. were agreed with in respect of all issues except whether the mandatory retirement policy of the university is law within the meaning of s. 15(1) of the Charter. The issue should not be decided on the basis of an assumption that the university is part of government.

Per Cory J.: Wilson J.'s tests for determining whether entities that are not self‑evidently part of the legislative, executive or administrative branches of government are nonetheless a part of the government to which the Charter applies were agreed with. The University of British Columbia accordingly formed part of "government" for purposes of s. 32 of the Charter and its policy of mandatory retirement contravened s. 15 of the Charter because that policy discriminated on the basis of age. This policy, however, was justified under s. 1 of the Charter. Section 8(1) of the Human Rights Act of British Columbia also contravened s. 15(1) of the Charter by discriminating on the basis of age but it too was justified under s. 1.

Per L'Heureux‑Dubé J. (dissenting on the appeal and concurring on the cross-appeal): For the reasons given in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, the appellant is not "government" for the purposes of s. 32 of the Charter. While agreeing with the test proposed by Wilson J., which the appellant does not satisfy, the reasoning of La Forest J. was agreed with on this issue. The impugned age limitation provisions of the British Columbia Human Rights Act violate s. 15(1) of the Charter and cannot be justified under s. 1 for the reasons given in McKinney and for those of Wilson J. in the present case. Accordingly, the appeal should be dismissed and the offending restrictions on "age" in the Human Rights Act should be struck as proposed by Wilson J. The cross-appeal should be dismissed because the Charter does not apply to the university.

Section 24(1) of the Charter cannot be invoked to grant the respondents a remedy. They could, however, seek redress in a proper forum given that the Human Rights Act violates the Charter.

Per Wilson J. (dissenting): The Charter applies to the University of British Columbia for the reasons given in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, and consequently its mandatory retirement policy is unconstitutional. Section 1 of the British Columbia Human Rights Act violates the Charter and cannot be justified under s. 1.

The criteria relevant in determining whether an entity is subject to the Charter include: (1) whether the legislative, executive or administrative branch of government exercises general control over the entity in question; (2) whether the entity performs a traditional government function or one recognized in more modern times as being a state responsibility; and (3) whether the entity acts pursuant to statutory authority specifically granted to further an objective that government seeks to promote in the broader public interest.

The government function test and the government entity test were met for the reasons given in McKinney but these factors, alone, were not sufficient to attract the Charter. The government exercised a large measure of control over U.B.C. in the distinct yet interrelated areas of governing structure, policy and funding. U.B.C. accordingly formed part of "government" for the purposes of s. 32 given the fact that it was so heavily funded and regulated by government, together with the fact that it is discharging a traditional government function for the province pursuant to statutory authority. The lack of government control over the mandatory retirement policy specifically in issue here and over matters specifically directed to the principle of academic freedom did not justify the conclusion that the Charter did not apply.

For the reasons expressed in McKinney, U.B.C.'s mandatory retirement policy infringed s. 15 because it discriminated against the appellants on the basis of age. The limit embodied in the policy, although "prescribed by law" within the meaning of s. 1, was not reasonable and demonstrably justified in a free and democratic society.

The age limit in s. 1 of the Human Rights Act was not the kind of affirmative action measure envisioned by s. 15(2) of the Charter. Section 15(2) enshrined the notion of the necessity of measures designed to redress the drastic effects of discrimination and rendered these measures constitutionally permissible. A measure, to fall within s. 15(2), must be directed towards assuaging the effects of discrimination against a disadvantaged group. Since older workers under the age of 65 have not suffered the burden of discrimination, s. 8(1) cannot be construed as an affirmative action measure designed to ameliorate the effects of that denial of equality.

Section 8(3)(b) of the Human Rights Act does not immunize mandatory retirement from the reach of the prohibition against discrimination based on age. The subsection exempted plans drawing upon age and other distinctions to meet their actuarial requirements and did not refer to the use of those plans to justify compelled retirement.

Only the words "and less than 65 years" should be struck from the definition of age in the Act because the appeal deals only with the age cap expressed in s. 1.

Cases Cited

By La Forest J.

Applied: McKinney v. University of Guelph, [1990] 3 S.C.R. 000; referred to: RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, affirming (1986), 1986 1287 (BC CA), 27 D.L.R. (4th) 600, R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Attorney-General for Alberta v. Attorney-General for Canada, 1947 347 (UK JCPC), [1947] A.C. 503; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 000.

By Sopinka J.

Applied: McKinney v. University of Guelph, [1990] 3 S.C.R. 000.

By L'Heureux‑Dubé J. (dissenting on the appeal)

McKinney v. University of Guelph, [1990] 3 S.C.R. 000.

By Wilson J. (dissenting on the appeal and the cross-appeal)

McKinney v. University of Guelph, [1990] 3 S.C.R. 000; Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143; R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296.

Statutes and Regulations Cited

Auditor General Act, R.S.B.C. 1979, c. 24.

Canadian Charter of Rights and Freedoms, ss. 1, 15(1), (2), 32(1).

Compensation Stabilization Act, S.B.C. 1982, c. 32.

Court Order Interest Act, R.S.B.C. 1979, c. 76.

Education Excellence Appropriation Act, S.B.C. 1986, c. 6.

Financial Administration Act, S.B.C. 1981, c. 15.

Human Rights Act, S.B.C. 1984, c. 22, ss. 1, 8(1)(a), (b), (2), (3)(a), (b), (4).

Human Rights Code, 1981, S.O. 1981, c. 53.

Industrial Relations Reform Act, S.B.C. 1987, c. 24, s. 69.

University Act, R.S.B.C. 1979, c. 419, as amended by S.B.C. 1987, c. 48, ss. 2, 3(2), 19, 22(1), 27, 27(f), 30, 33, 34(2)(j), 36(f), (i), (q), 37, 46, 46.1(2), 46.2, 47(2), 48, 50, 51, (64, 69, 71, 72, 74 unamended act), 77.

University Foundations Act, S.B.C. 1987, c. 50, ss. 1, 2, 4.

APPEAL from a judgment of the British Columbia Court of Appeal (1988), 1988 183 (BC CA), 21 B.C.L.R. (2d) 145, 49 D.L.R. (4th) 687, [1988] 2 W.W.R. 688, 40 C.R.R. 205, allowing the appeals from a judgment of Taylor J. (1986), 1986 1297 (BC SC), 30 D.L.R. (4th) 206, 34 B.L.R. 57, [1986] 6 W.W.R. 7, 25 C.R.R. 1, 14 C.C.E.L. 90, to the extent that it declared that s. 8(1) of the Human Rights Act violated s. 15(1) of the Charter and was not saved either by ss. 1 or 15(2) and confirming the Charter did not apply to the university. Appeal allowed (Wilson and L'Heureux-Dubé JJ. dissenting) and cross‑appeal dismissed (Wilson J. dissenting).

D. M. M. Goldie, Q.C., and P. R. Sheen, for the appellant and cross‑respondent.

Peter A. Gall, Donald J. Jordan, Q.C., Robin Elliot and Susan P. Arnold, for the respondent and cross‑appellant John R. Connell.

F. Andrew Schroeder and Cheryl L. Vickers, for the respondent and cross‑appellant Robert Cameron Harrison.

Duff Friesen, Q.C., and Virginia McRae Lajeunesse, for the intervener the Attorney General of Canada.

Janet E. Minor and Robert E. Charney, for the intervener the Attorney General of Ontario.

Alison W. Scott, for the intervener the Attorney General of Nova Scotia.

E. R. A. Edwards, Q.C., and George H. Copley, for the intervener the Attorney General of British Columbia.

//La Forest J.//

The judgment of Dickson C.J. and La Forest and Gonthier JJ. was delivered by

LA FOREST J. -- The broad issue in these appeals is whether the appellant University of British Columbia's mandatory retirement policy respecting the members of its faculty and administrative staff may be upheld in light of the Canadian Charter of Rights and Freedoms. More specifically, it raises the same issues as those considered in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, and arises out of similar facts.

Facts

The university established its mandatory retirement policy in 1939. The policy was incorporated in the terms of employment of the respondents Harrison, a tenured professor, and Connell, a non-union administrative officer. Pursuant to this arrangement, the respondents were retired from employment upon reaching the age of 65.

The respondents applied to the Supreme Court of British Columbia seeking declarations that the university's mandatory retirement policy violates s. 15(1) of the Charter as discriminating against them on the ground of age. They also sought declarations that the definition of "age" in s. 1 of the Human Rights Act, S.B.C. 1984, c. 22, which restricts the scope of the general prohibition against discrimination in employment on the basis of age in s. 8(1) of the Act to those between the ages of 45 and 65, is also contrary to s. 15(1) of the Charter. Section 8 of the Human Rights Act reads:

8. (1) No person or anyone acting on his behalf shall

(a)refuse to employ or refuse to continue to employ a person, or

(b)discriminate against a person with respect to employment or any term or condition of employment,

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, physical or mental disability, sex or age of that person or because of his conviction for a criminal or summary conviction charge that is unrelated to the employment or to the intended employment of that person.

(2) No employment agency shall refuse to refer a person for employment for any reason mentioned in subsection (1).

(3) Subsection (1) does not apply

(a)as it relates to age, to any bona fide scheme based on seniority, or

(b)as it relates to marital status, physical or mental disability, sex or age, to the operation of any bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

"Age" is defined in s. 1 of the Act as follows:

1. In this Act

"age" means an age of 45 years or more and less than 65 years;

Under the University Act, R.S.B.C. 1979, c. 419, the management, administration and control of the property, revenue, business and affairs of the university are vested in a board of governors consisting of 15 members. Eight of the members are appointed by the Lieutenant Governor in Council, but two of these must be nominated by the alumni association. The provincial government, therefore, has the power to appoint a majority of the members of the board of governors, but it does not have the power to select a majority. The academic government of the university is vested in the senate, only a minority of the members of which are appointed by the Lieutenant Governor.

Judicial History

Supreme Court of British Columbia (1986), 1986 1297 (BC SC), 30 D.L.R. (4th) 206

Taylor J. dismissed the respondents' applications. He found that the distinction based on age was not shown to be unreasonable or unfair so as to amount to discrimination within the meaning of s. 15(1) of the Charter. His conclusion was founded on the fact that the retirement scheme was a known term of the contracts of employment and that it was combined with pension arrangements and other benefits. The retirement scheme also served reasonable employment objectives of the employer. Finally, the abolition of the retirement scheme would have a "potentially more severe impact on other people less fortunately situated and whose interests must be balanced with those of the complainants in assessing the `reasonableness' of the scheme" (at p. 215).

Taylor J. also concluded that the Charter had no application to the mandatory retirement policy of the university. The employment agreements, he held, were essentially private contracts, the contents of which did not reflect government policy. He noted that the university was not engaged in the exercise of governmental authority, did not provide a governmental service, and did not, in determining its employment policies, perform a function of government.

In considering the scope of s. 15(1) of the Charter, Taylor J. observed that this provision requires that there be equality of treatment before and under the law and equal benefit of the law to all without discrimination. He found no law involved in the university's retirement practices. Nor was he persuaded that the complainants had been denied protection or benefit of law within the meaning of s. 15(1). Thus, in Taylor J.'s view, not only was the Charter inapplicable, but s. 15(1) could not, in any event, have provided relief in this case.

Taylor J. further thought it would be improper to derive from a combination of s. 15 of the Charter and ss. 1 and 8 of the Human Rights Act "a prohibition on mandatory retirement of general application in this province when this result is contrary to the intentions of the framers both of the Charter and of the provincial statute" (at p. 219). He noted that the protection against age-based discrimination in employment granted to those below the age of 65 does not constitute age-based discrimination against those aged 65 and over. Rather, as he put it at p. 219, it is "an exercise of the discretion assigned to the Legislature by the Constitution to decide for itself whether, when and how it will legislate in this field".

British Columbia Court of Appeal (1988), 1988 183 (BC CA), 21 B.C.L.R. (2d) 145

The Court of Appeal allowed the appeals to the extent of declaring that s. 8(1) of the Human Rights Act violated s. 15(1) of the Charter and was not saved either by s. 1 or s. 15(2) of the Charter. However, it confirmed the trial judge's decision as it related to the application of the Charter to the university.

On the issue of the applicability of the Charter, the court, using the test developed in RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, concluded at p. 150 that the question in this case was whether there was such a "`direct and precisely defined connection' between the government and the acts of the university alleged to violate the Charter that those acts may be regarded as the exercise of governmental power". The court first examined whether the government "controlled" the university to the extent that the action of the university, when it set up its retirement policy, was a government action. It concluded that the government did not control the core functions of the university and it could not, therefore, be said that the university's mandatory retirement policy was one directed or controlled by government.

The court then examined whether the government's delegation to the university of the task of providing post-secondary education to the public established a "direct and precisely defined connection" between the government and the mandatory retirement policy sufficient for the policy to be regarded as an exercise of government power. On this issue, it concluded at p. 153 that it was the university's private contracts of employment which were alleged to conflict with the Charter, "not its delegated public functions". Finally, the court noted that the mere fact that the university received much of its funding from government did not render its acts governmental.

The Court of Appeal was therefore unable to find a sufficient connection between the university's mandatory retirement policy and government. It held that the employment contracts were private matters beyond the purview of the Charter.

Turning then to the question whether s. 8 of the Human Rights Act violated s. 15(1) of the Charter, the court followed its decision in Re Andrews and Law Society of British Columbia (1986), 1986 1287 (BC CA), 27 D.L.R. (4th) 600, where it had decided that one must determine that a legislative classification was "unreasonable" or "unfair" before it could be determined that s. 15(1) had been breached. The court concluded that denying persons over the age of 65 protection from discrimination in employment was prima facie discrimination contrary to s. 15(1). The evidence presented did not, in its view, support the conclusion that employment-related discrimination effected by the mandatory retirement policy against those over 65 was fair and reasonable. Rather, it concluded, the exclusion from the protection against such discrimination was unfair. I should note here that in affirming Andrews, this Court rejected the distinction between reasonable and unreasonable discrimination, holding that discrimination falling within s. 15(1) must be justified under s. 1 or s. 15(2); see 1989 2 (SCC), [1989] 1 S.C.R. 143, at p. 182.

The Court of Appeal was further of the view that the definition of "age" in the Human Rights Act is not an affirmative action programme within the meaning of s. 15(2) of the Charter as it does not have the object of ameliorating the conditions of a disadvantaged group. There was no evidence that persons between the ages of 45 and 65 constituted a disadvantaged group and that the purpose of the definition was to benefit that disadvantaged group.

The court also concluded that the Charter infringement was not saved by s. 1 of the Charter as it did not meet the test set out in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. The means chosen by the legislature to further its objectives of protecting older workers against employment-related discrimination were not reasonable or demonstrably justified. Rather, they were arbitrary and unjustifiably eliminated "the right of the worker who is over 65 years of age not to suffer discrimination in employment". The impugned legislation, it thought, also failed to meet the test of proportionality.

The Court of Appeal, applying the test set out in Attorney-General for Alberta v. Attorney-General for Canada, 1947 347 (UK JCPC), [1947] A.C. 503, then concluded that it should strike out the offending definition of age in s. 1 of the Act.

The university sought and was granted leave to appeal to this Court on the issues relating to the Human Rights Act. The respondents cross-appealed on the issues concerning the application of s. 15(1) of the Charter to the university's mandatory retirement policy. The consitutional questions set forth below were then stated by the Chief Justice, and the Attorney General of Canada, as well as those of Ontario, Nova Scotia and British Columbia, intervened.

Disposition

The facts, issues and constitutional questions being similar to those considered in McKinney v. University of Guelph, supra, it follows that the present appeals are governed by that case. For the reasons set forth in McKinney, therefore, the appeals should be allowed and the cross-appeals dismissed. The relatively minor factual differences in the two cases do not affect the matter. The fact that in the present case the Lieutenant Governor appoints a majority of the members of the university's Board of Governors or that the Minister of Education may require the university to submit reports or other forms of information does not lead to the conclusion that the impugned policies of mandatory retirement constitute government action. While I would acknowledge that these facts suggest a higher degree of governmental control than was present in McKinney, I do not think they suggest the quality of control that would justify the application of the Charter. I would in this respect refer to the distinction that I have drawn in the companion appeal of Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 000, between ultimate or extraordinary control and routine or regular control; see p. 000. The respondents also sought to establish government control of the university by means of the Financial Administration Act, S.B.C. 1981, c. 15, the Auditor General Act, R.S.B.C. 1979, c. 24, and the Compensation Stabilization Act, S.B.C. 1982, c. 32 (repealed by s. 69 of the Industrial Relations Reform Act, S.B.C. 1987, c. 24). These Acts, no doubt, apply to the university in that they monitor and regulate the expenditure of public funds it receives. However, I agree with the Court of Appeal, at p. 152, that "the fact that the university is fiscally accountable under these statutes does not establish government control or influence upon the core functions of the university and, in particular, upon the policy and contracts in issue in this case".

I would, therefore, allow the appeals with costs in this Court and in the Court of Appeal, and dismiss the cross-appeals with costs. I would answer the constitutional questions as follows:

1.Does the Canadian Charter of Rights and Freedoms apply to the appellant University of British Columbia and to its policy of mandatory retirement at age 65?

No.

2.If so, does the appellant University of British Columbia's policy of mandatory retirement at age 65 contravene s. 15(1) of the Charter?

If the Charter applied, the policy would contravene s. 15(1).

3.If so, is the appellant University of British Columbia's policy of mandatory retirement at age 65 demonstrably justified under s. 1 of the Charter?

If the Charter applied, the policy would be justified under s. 1.

4.Does the provision which limits age protection in s. 8(1) of the Human Rights Act, S.B.C. 1984, c. 22, to those of 45 years or more and less than 65 years violate s. 15(1) of the Charter?

Yes.

5.If so, is this provision (a) not precluded by virtue of s. 15(2) of the Charter; or (b) demonstrably justified under s. 1 of the Charter?

The provision is demonstrably justified under s. 1 of the Charter. It is not necessary to consider s. 15(2).

//Wilson J.//

The following are the reasons delivered by

WILSON J. (dissenting) -- I have had the benefit of the reasons of my colleagues Justice La Forest and Justice L'Heureux-Dubé and, for the reasons I gave in McKinney v. University of Guelph, [1990] 3 S.C.R 000, I must respectfully disagree with them that the Canadian Charter of Rights and Freedoms has no application to the University of British Columbia. In my view, the Charter does apply and as a consequence the appellant's policy of mandatory retirement is unconstitutional. It is also my view that s. 1 of the British Columbia Human Rights Act, S.B.C. 1984, c. 22, violates the Charter and cannot be justified under s. 1. While the questions raised by these appeals are generally similar to those this Court addressed in McKinney, there are some important differences and I wish to deal with those.

I. Does the Charter Apply to the University of British Columbia?

In McKinney I identified the criteria I thought were relevant in determining whether an entity is subject to the Charter under s. 32. I indicated, at p. 000, that:

. . . I would favour an approach that asks the following questions about entities that are not self-evidently part of the legislative, executive or administrative branches of government:

1. Does the legislative, executive or administrative branch of government exercise general control over the entity in question?

2. Does the entity perform a traditional government function or a function which in more modern times is recognized as a responsibility of the state?

3. Is the entity one that acts pursuant to statutory authority specifically granted to it to enable it to further an objective that government seeks to promote in the broader public interest?

In my opinion, application of this three-part test in these appeals leads to the conclusion that the Charter applies to the University of British Columbia. The evidentiary base is substantially the same in these appeals as in those involving the Ontario universities at issue in McKinney as far as the role of government in the provision of education and the general structure by which government has chosen to fulfil that function is concerned. I find, therefore, for the reasons I gave in McKinney, that the government function test and the government entity test have both been met. As in McKinney, however, I would not be prepared to conclude that the Charter applies to the University of British Columbia on the basis of these two factors alone. The question therefore remains as to whether the government exercises such measure of control over the appellant as to make it a government entity for the purpose of s. 32(1).

A review of the various connections between the province and the University of British Columbia leads me to conclude that the provincial government exercises a substantial measure of control over the appellant. The government has exercised control over the University in three distinct yet interrelated areas: (1) governing structure; (2) policy; and (3) funding.

Dealing first with control over the governing structure of the University, the University Act, R.S.B.C. 1979, c. 419, as amended by S.B.C. 1987, c. 48, delineates the function and powers of the university and their constituent elements. Section 2 provides that the Lieutenant Governor in Council shall be the Visitor of the University and has the "authority to do all acts which pertain to Visitors." Section 3(2) establishes that the university shall be composed of a chancellor, a convocation, a board, a senate and faculties. Academic governance of the university is vested in the senate. While the actual size of the senate varies according to the number of faculties in the University at any one time, four members of the senate are appointed by the Lieutenant Governor (s. 34(2)(j)). A greater measure of government control is to be found in the composition of the board of governors, the body in which governance of the University is largely reposed. Section 19 provides that the board is to be composed of 15 members, 8 of whom are appointed by the Lieutenant Governor. As has been noted by the Court of Appeal, two of these appointees must be appointed from among persons nominated by the alumni association. Thus, the Lieutenant Governor enjoys majority power in terms of appointment, but does not enjoy majority power in terms of selection. On the other hand, under s. 22(1) of the Act, the Lieutenant Governor "may, at any time, remove from office an appointed member of the board."

The authority of the board as set out in Part 6 of the Act is broad and diverse. In particular, the board has under s. 27 general authority over the "management, administration and control of the property, revenue, business and affairs of the university". The University enjoys special government-like powers in a number of respects and the exercise of these would presumably fall under the jurisdiction of the board. It has the power to expropriate property under s. 48 and its property is protected against expropriation under s. 50. It is exempt from taxation under s. 51. The board may also borrow money to meet University expenditures (s. 30) and appoint advisory boards for purposes it considers advisable (s. 33). The University may not dispose of its property without the approval of the Lieutenant Governor (s. 47(2)).

The board's powers were at one time subject to the authority of the Council of the University, a statutory body created pursuant to s. 64 of the unamended Act. The Council consisted of 11 members all of whom were appointed by the Lieutenant Governor. The Council had the power to hold public and in camera hearings (s. 71), to enter into agreements with various levels of government (s. 72), and to act as a commissioner and to examine witnesses under oath (s. 74). The Council was required to submit an annual report to the minister detailing the financial aspects of the University's operations. The bulk of its powers, which were largely supervisory, were enumerated in s. 69 of the Act. A perusal of the list of matters over which the Council had authority reveals that virtually no limits were placed upon its powers.

Based on this review of the powers of the Council, it would appear that the primary function of the Council was to act as a specialized governmental body whose purpose it was to mediate between the University and the minister. After the actions in these appeals were commenced the legislature of British Columbia amended the legislation and disbanded the Council. A more direct means of government control over the University was apparently considered appropriate since many of the powers formerly enjoyed by the Council are now exercised directly by the minister. For example, the University must provide, at the request of the minister, reports and any other information the minister considers necessary in order to carry out his or her duties (s. 46.2).

With respect to University policy, I believe that the province exercises a significant measure of control in this area. As a creature of statute, the University of British Columbia is under a statutory duty to perform certain functions. These obligations are enumerated in Part 10 of the Act. Section 46 provides:

46. Each university shall, so far as and to the full extent which its resources from time to time permit, and subject to Part 12,

(a)establish and maintain colleges, schools, institutes, faculties, departments, chairs and courses of instruction;

(b)provide instruction in all branches of knowledge;

(c)establish faculties for the pursuit of original research in all branches of knowledge;

(d)establish fellowships, scholarships, exhibitions, bursaries, prizes, rewards and pecuniary and other aids to facilitate or encourage proficiency in the subjects taught in the university and original research in all branches of knowledge;

(e)provide a program of continuing education in all academic and cultural fields throughout the Province; and

(f)generally, promote and carry on the work of a university in all its branches, through the cooperative effort of the board, senate and other constituent parts of the university.

The minister exercises supervisory jurisdiction over the University in the performance of its statutory mandate. Subsection 46.1(2) provides:

46.1 . . .

(2) Notwithstanding subsection (1), a university shall not establish a new degree program without the approval of the minister.

Less direct control over matters of academic policy is exercised by the board of governors. As I have already noted, the University Act provides that primary responsibility for academic governance rests in the hands of the senate. With respect to some important matters, however, the decisions of the senate are effectively controlled by the board of governors. The senate makes recommendations to the board respecting revision of courses of study, instruction and education in all faculties and departments (s. 36(f)). The senate is prohibited from entering into any agreements with other bodies empowered by statute to prescribe examinations for admission without the approval of the board (s. 36(q)). Finally, every resolution passed by the senate respecting the establishment or discontinuance of any faculty, department, course of instruction, chair fellowship, scholarship, exhibition, bursary or prize (s. 36(i)) as well as internal faculty matters and terms of affiliation with other universities is of no force or effect unless approved by the board (s. 37). It is thus the government dominated board which exercises actual control over a number of policy matters falling within the preliminary jurisdiction of the senate.

Finally, with respect to the issue of funding, the evidence reveals that approximately 80 per cent of the operating costs of the University is borne by the province. It has also been established that the government has set aside special funds for the specific purpose of maintaining the universities not only as financially viable institutions but as first class institutions of higher learning. For instance, in 1986 the legislature passed the Education Excellence Appropriation Act, S.B.C. 1986, c. 6, under which an aggregate amount of some $600 million was to be paid out of the consolidated revenue fund for the purposes of, inter alia, improving the quality of educational instruction and research.

Beyond the general provision of operating capital and the establishment of specialized funds, the government has financially assisted the universities in other ways as well. Under the University Foundations Act, S.B.C. 1987, c. 50, a number of corporate foundations were statutorily established (s. 1) as agents of the Crown (s. 2) the purposes of which are set out in s. 4 as follows:

4. (1) The purposes of each of the corporations are as follows:

(a)to develop, foster and encourage public knowledge and awareness of the relevant university and the benefits to the people of the Province in connection with that university;

(b)to encourage, facilitate and carry out programs and activities that will directly or indirectly increase the financial support of, or confer a benefit on, the corporation for support of the relevant university and programs in which that university is involved;

(c)to receive, manage and invest funds and property of every nature and kind from any source for the establishment, operation and maintenance of the corporation and to further the purposes of the corporation.

All five members of the corporations are appointed by the Lieutenant Governor, indicating that these are government bodies.

The reach of the province's efforts to assist the universities extends also to the financial assistance of students. The province guarantees loans taken by the University of British Columbia to support a student loan aid fund. Under s. 77 of the University Act the fund is managed and administered by a committee of four persons, all of whom are appointed by the Lieutenant Governor.

The provision of government economic assistance has gone hand in hand with government insistence upon financial accountability. There can be no question but that the financial dealings of the universities are strictly controlled. This fact has been noted by the Court of Appeal as well as by my colleague La Forest J. The University has been treated as a government body under the Financial Administration Act, S.B.C. 1981, c. 15, a public body under the Auditor General Act, R.S.B.C. 1979, c. 24, and a public sector employer under the Compensation Stabilization Act, S.B.C. 1982, c. 32 (repealed by s. 69 of the Industrial Relations Reform Act, S.B.C. 1987, c. 24).

Before its repeal the Compensation Stabilization Act provided that public sector employers were to have their employee compensation practices monitored and regulated by a government appointed commissioner. The Court of Appeal found that the brand of control established by that Act was insufficient to satisfy the requirements of s. 32(1) because it did not specifically touch upon the contractual provision at issue in these appeals. Moreover, it went on to find that the other Acts to which I have referred were similarly insufficient to establish government control as they did not touch upon the core functions of the University. My colleague La Forest J. joins the Court of Appeal in its assertion that the fact that the University is fiscally accountable does not establish government control over academic matters.

I agree that the government does not have a direct hand in the formulation or implementation of the policy of mandatory retirement at issue here. I also agree that fiscal control is not commensurate with control over those university matters directly involving the principle of academic freedom. However, for the reasons I expressed in McKinney, I do not think it necessary for government to have control over every aspect of a subordinate body in order to establish that government "controls" that body in a constitutionally significant sense. There may well be instances where it is in the best interests of government to assert only general control over a body and leave to that entity the discretion to deal with certain matters in ways it considers most appropriate to its own objectives. With respect to the universities, it is my view that the lack of government control over the mandatory retirement policy specifically in issue here and over matters specifically directed to the principle of academic freedom does not justify the conclusion that the Charter has no application to the universities.

In conclusion, I would hold that the fact that the University of British Columbia is so heavily funded and regulated by government, together with the fact that the University is discharging for the province a traditional government function pursuant to statutory authority leads me to conclude that the University forms part of "government" for the purposes of s. 32. The University's policy of mandatory retirement is therefore subject to Charter review.

II. The Constitutionality of Mandatory Retirement at the University of British Columbia

The University's power to retire its employees is found in s. 27 of the University Act. In particular, the authority to enter into contracts of service with faculty and staff is to be found in para. (f) which provides:

27. . . . the board has power

(f)to appoint the . . . professors, associate professors, assistant professors, lecturers, instructors and other members of the teaching staff of the university, and the officers and employees the board considers necessary for the purpose of the university, and to fix their salaries or remuneration, and to define their duties and their tenure of office or employment, which, unless otherwise provided, shall be during the pleasure of the board . . . .

As was the case in McKinney it is unnecessary for me to determine whether s. 15(1) would apply in the absence of any legislative provision mandating or permitting the discriminatory action complained of. In the context of these appeals it is evident that the power to retire flows from s. 27(f).

For the reasons I expressed in McKinney, I find that the policy of mandatory retirement adopted by the University of British Columbia infringes s. 15 on the grounds that it discriminates against the appellants on the basis of age. I also find that the limit embodied in the policy, although "prescribed by law" within the meaning of s. 1, is not reasonable and demonstrably justified in a free and democratic society.

III. The Constitutionality of s. 1 of the Human Rights Act

The relevant sections of the Human Rights Act are as follows:

1. In this Act,

"age" means an age of 45 years or more and less than 65 years;

8. (1) No person or anyone acting on his behalf shall

(a)refuse to employ or refuse to continue to employ a person, or

(b)discriminate against a person with respect to employment or any term or condition of employment,

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, physical or mental disability, sex or age of that person or because of his conviction for a criminal or summary conviction charge that is unrelated to the employment or to the intended employment of that person.

With two exceptions the Attorney General of British Columbia has advanced the same arguments in support of the constitutionality of s. 8 as did the Attorney General in support of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, in McKinney, and they must, in my view, be rejected for the same reasons. Here, however, the Attorney General also maintains that the section of the Act embodying the definition of age should be properly construed as an affirmative action measure within the meaning of s. 15(2) of the Charter and that therefore no violation of s. 15(1) has been established. As well, it is argued that the British Columbia Human Rights Act contains unique provisions which mandate a different approach to the constitutionality of the age definition in s. 1.

Dealing first with the issue of whether s. 1 can be characterized as an affirmative action measure, the Attorney General contends that older workers under the age of 65 are disadvantaged compared to their more senior counterparts. Those aged 65 and over are entitled to enjoy a number of benefits and privileges which accrue to those who have attained the "age of seniority" such as pension benefits, old age security payments, guaranteed income supplements et cetera. Those under the age of 65 are, of course, not entitled to these special benefits. The Attorney General of British Columbia asserts that in "order to redress the balance between persons over 65 and younger, the Legislative Assembly enacted the prohibition on discrimination on the basis of age and thus somewhat equalized the income opportunities of persons above and below the age of 65 years."

Is the age limit in s. 1 of the Act the kind of affirmative action measure envisioned by s. 15(2) of the Charter? In my view, it is not.

Section 15 provides:

15. (1) 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 mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

This Court has not yet had an opportunity to examine the scope and meaning of s. 15(2). It seems to me clear, however, that at the very least the purpose of this section is to enshrine the notion of the viability, indeed the necessity, of measures designed to redress the drastic effects of discrimination. By its terms s. 15(2) informs us that measures aimed at ameliorating the conditions of those who are disadvantaged because of such personal characteristics as race, sex and age (those in other words who have been the victims of discrimination) are constitutionally permissible. In this way, subsection (2) strengthens the notion adopted by this Court in Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, that what lies at the heart of the equality guarantee is protection from discrimination. It follows, in my respectful view, that for any measure to be characterized as an "affirmative action" measure within the meaning of s. 15(2), it must first be established that the measure is directed towards assuaging the effects of discrimination against a disadvantaged group.

What is the meaning of the term "discrimination"? In Andrews, supra, McIntyre J. said at pp. 180-81:

The analysis of discrimination . . . must take place within the context of the enumerated grounds and those analogous to them. The words "without discrimination" require more than a mere finding of distinction between the treatment of groups or individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage. [Emphasis added.]

In this case, can it be that older workers who have not yet reached the benchmark age for social benefits purposes are a disadvantaged group? And in particular, do older workers under the age of 65 suffer the burden of prejudice and stereotype by reason of the fact that they are not eligible to enjoy these benefits by virtue of their age? I think not. It is not in the least discriminatory, as that term has been defined by this Court in Andrews, supra, to deny these special benefits to those under the age of 65. This failure to extend benefits does not serve to perpetuate or create stereotyping of or prejudice against those under the age of 65. As I said in R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, at p. 1333, "A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case". Thus, since older workers under the age of 65 have not suffered the burden of discrimination, s. 8(1) cannot be construed as an affirmative action measure designed to ameliorate the effects of that denial of equality. I would therefore dismiss the Attorney General's argument on this basis.

The unique structure of the British Columbia Human Rights Act has also been the subject of argument by the respondents in these appeals. In particular, the University argues that s. 8(3)(b) of the Act has the effect of immunizing mandatory retirement from the reach of the prohibition against discrimination irrespective of the definition of age contained in s. 8(1). Subsection 8(3)(b) provides:

8. . . .

(3) Subsection (1) does not apply

(a)as it relates to age, to any bona fide scheme based on seniority, or

(b)as it relates to marital status, physical or mental disability, sex or age, to the operation of any bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan.

In my opinion, s. 8(3)(b) does not assist the respondents. I note that the subsection refers not only to retirement but to pension and superannuation plans. I also note that the s. 8(3)(b) exemption extends not only to distinctions based on age but also to distinctions based on sex, marital status, and physical or mental disability. To my mind, these two aspects of the section provide important clues as to its intended effect. It seems to me that what the subsection meant to achieve was the exemption from the prohibition embodied in subs. (1) of those plans which draw upon age and other distinctions to meet their actuarial requirements. It refers, in other words, to the design and administration of these plans in so far as they are based on what would otherwise be impermissible distinctions. It is a matter of trite knowledge that actuarial scientists typically rely on statistics as to such things as expected lifespan of males as compared to females in formulating employment benefit plans. These are the types of considerations, I believe, that s. 8(3)(b) meant to exempt from the operation of s. 8(1). The section does not refer, however, to the use of these plans to justify compelled retirement. It may be that s. 8(3)(b) infringes s. 15 of the Charter for other reasons. However, the subsection simply does not bear upon the matter at issue in these appeals, i.e. whether a person may be mandatorily retired against his or her will.

In conclusion, I find that s. 1 of the Act infringes s. 15 and cannot be saved under s. 1. I agree with my colleague L'Heureux-Dubé J. that the definition of age in the Act must be struck down; however, since we are dealing in these appeals only with the age cap expressed in s. 1, I would only strike the words, "and less than 65 years".

IV. Disposition

I would dismiss the University's appeal with costs. I would allow the respondents' cross-appeal on the basis that the Charter applies to the University of British Columbia, that its mandatory retirement policy violates s. 15 of the Charter and that it is not saved by s. 1. I would award the respondents their costs of the cross-appeal both here and in the courts below.

Addressing the relief sought by Connell and Harrison in their statements of claim, I would issue a declaration that the University has acted in a manner contrary to the Charter and direct the University to reinstate them in their former positions. I would award the respondents damages in an amount to be determined by the trial judge, together with interest thereon pursuant to the Court Order Interest Act, R.S.B.C. 1979, c. 76.

I would answer the constitutional questions posed by the Chief Justice as follows:

1.Does the Canadian Charter of Rights and Freedoms apply to the appellant University of British Columbia and to its policy of mandatory retirement at age 65?

Yes.

2.If so, does the appellant University of British Columbia's policy of mandatory retirement at age 65 contravene s. 15(1) of the Charter?

Yes.

3.If so, is the appellant University of British Columbia's policy of mandatory retirement at age 65 demonstrably justified under s. 1 of the Charter?

No.

4.Does the provision which limits age protection in s. 8(1) of the Human Rights Act, S.B.C. 1984, c. 22, to those of 45 years or more and less than 65 years violate s. 15(1) of the Charter?

Yes.

5.If so, is this provision (a) not precluded by virtue of s. 15(2) of the Charter; or (b) demonstrably justified under s. 1 of the Charter?

(a)No.

(b)No.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

L'HEUREUX-DUBÉ J. (dissenting on the appeal) -- I have had the benefit of the opinions of my colleagues Justices La Forest and Wilson. With respect, I must dissent in part from each of them. For the reasons I expressed in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, and contrary to my colleague Wilson J., I am of the view that the appellant is not "government" for the purposes of s. 32 of the Charter. In this respect I agree with La Forest J. for the reasons he expresses.

I am in agreement with both the Court of Appeal and my two colleagues that the impugned age limitation provisions of the Human Rights Act, S.B.C. 1984, c. 22, do violate s. 15(1). However, for substantially the same reasons that I have expressed in McKinney, and those of Wilson J. in the present case, I am of the view that the aforementioned Charter breach cannot be justified under s. 1 of the Charter. I would adopt in this regard the conclusion reached by my colleague Wilson J.

Consequently, I would dismiss the University's appeal with costs.

Cross-Appeal

The respondents have entered a cross-appeal, asking this Court to reverse the findings of the courts below that the Canadian Charter of Rights and Freedoms does not apply to the university activity at issue in this case. In conjunction with this request, they have asked for the following remedial measures:

2. An order that the Respondent[s] be reinstated to [their] employment with the Appellant.

3. A declaration that the Respondent is entitled to damages, being lost wages and benefits since [December 1, 1985 (Connell), and January 1, 1986 (Harrison)], less mitigation, which mitigation does not include pension benefits received or which the Respondent was entitled to receive, and interest thereon.

4. An order referring determination of quantum of damages and interest to the learned trial judge.

The trial judge (1986), 1986 1297 (BC SC), 30 D.L.R. (4th) 206, and the British Columbia Court of Appeal (1988), 1988 183 (BC CA), 21 B.C.L.R. (2d) 145, did not see fit to deal with these petitions once they held that the university's activity did not attract Charter review. These requests are predicated on a prerequisite finding that all university activity, and alternatively the university's mandatory retirement policy, are subject to the application of the Canadian Charter of Rights and Freedoms. However, for the reasons stated in McKinney, I believe that the courts below were correct in concluding that some university functions may attract Charter application, but that the University of British Columbia is not government for the purposes of Charter analysis in this case. La Forest J. has demonstrated this in his opinion. Taylor J. at trial concluded, at p. 216, that:

. . . the University of British Columbia is neither engaged in the exercise of governmental authority nor does it provide a government service, nor in determining its employment policies does it perform a function of government. The university's employment agreements . . . are essentially private contracts.

I agree and I would accordingly dismiss the cross-appeal, with costs.

Remedy

Given these conclusions, s. 24(1) of the Charter cannot be implemented to grant the respondents a remedy in this case. The respondents may, if they so wish, seek redress in a proper forum given that the British Columbia Human Rights Act, S.B.C. 1984, c. 22, has been found to violate the Charter, and must thus be stripped of its offending age restrictions.

Conclusion

As a result, I would dismiss both the appeal and cross-appeal with costs, and answer the consitutional questions as follows:

1. Does the Canadian Charter of Rights and Freedoms apply to the appellant University of British Columbia and to its policy of mandatory retirement at age 65?

No.

2.If so, does the appellant University of British Columbia's policy of mandatory retirement at age 65 contravene s. 15(1) of the Charter?

Need not be answered.

3.If so, is the appellant University of British Columbia's policy of mandatory retirement at age 65 demonstrably justified under s. 1 of the Charter?

Need not be answered.

4.Does the provision which limits age protection in s. 8(1) of the Human Rights Act, S.B.C. 1984, c. 22, to those of 45 years or more and less than 65 years violate s. 15(1) of the Charter?

Yes.

5.If so, is this provision (a) not precluded by virtue of s. 15(2) of the Charter; or (b) demonstrably justified under s. 1 of the Charter?

(a) No.

(b) No.

//Sopinka J.//

The following are the reasons delivered by

SOPINKA J.-- For the reasons which I gave in McKinney v. University of Guelph, [1990] 3 S.C.R. 000, I agree with the conclusions and reasons of La Forest J. in respect of all issues except whether the mandatory retirement policy of the university is law within the meaning of s. 15(1) of the Canadian Charter of Rights and Freedoms which I would prefer not to decide on the basis of an assumption that the university is part of government.

//Cory J.//

The following are the reasons delivered by

CORY J. -- I am in agreement with the reasons of my colleague Justice Wilson with regard to the tests she suggests for determining whether entities that are not self-evidently part of the legislative, executive or administrative branches of government are nonetheless a part of the government to which the Canadian Charter of Rights and Freedoms applies.

As well, I am in agreement with her findings that the University of British Columbia form part of "government" for purposes of s. 32 of the Charter and, as a result, that its policy of mandatory retirement is subject to scrutiny under s. 15 and that those policies discriminate on the basis of age and thus contravene s. 15.

However, I am in agreement with the conclusion reached by my colleague Justice La Forest that the mandatory retirement policy of the University comes within the scope of s. 1 and thus survives Charter scrutiny.

Further, I am in agreement with La Forest J. that, although s. 8(1) of the British Columbia Human Rights Act, S.B.C. 1984, c. 22, contravenes s. 15(1) of the Charter by discriminating on the basis of age, it is a reasonable limit prescribed by law within the purview of s. 1 of the Charter.

Appeal allowed with costs (WILSON and L'HEUREUX-DUBÉ JJ. dissenting) and cross‑appeal dismissed with costs (WILSON J. dissenting).

Solicitors for the appellant and cross‑respondent: Russell & DuMoulin, Vancouver.

Solicitors for the respondent and cross‑appellant John R. Connell: Jordan & Gall, Vancouver.

Solicitors for the respondent and cross‑appellant Robert Cameron Harrison: Schroeder & Company, Vancouver.

Solicitors for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.

Solicitors for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.

Solicitors for the intervener the Attorney General of Nova Scotia: The Attorney General of Nova Scotia, Halifax.

Solicitors for the intervener the Attorney General of British Columbia: The Ministry of Attorney General, Victoria.

• Chief Justice at the time of hearing.