Re Blainey and Ontario Hockey Association et al. *

54 O.R. (2d) 513
58 O.R. (2d) 274 *
[1986] O.J. No. 236
ONTARIO

COURT OF APPEAL
DUBIN, MORDEN AND FINLAYSON JJ.A.

17TH APRIL 1986.

   * Note:  An application for leave to appeal was dismissed by the Supreme Court of Canada (Dickson C.J., McIntyre and Lamer JJ.) on June 26, 1986.  S.C.C. File No. 19919.  S.C.C. Bulletin, 1986, pp. 894, 944.  This information was also published as a Note at 58 O.R. (2d) 274.

   Constitutional law — Charter of Rights — Application — Equality provision not applying to private activity — Canadian Charter of Rights and Freedoms, ss. 15(1), 32(1).

   Constitutional law — Charter of Rights — Equality rights — Equality provision not applying to private activity — Canadian Charter of Rights and Freedoms, ss. 15(1), 32(1).

   Cat Productions Ltd. v. Macedo et al., [1985] 1 F.C. 269, 5 C.P.R. (3d) 71, 5 C.I.P.R. 207, apld

   R. v. Lerke (1984), 11 D.L.R. (4th) 185, 13 C.C.C. (3d) 515, 41 C.R. (3d) 172, 55 A.R. 216, 11 C.R.R. 1; affd 25 D.L.R. (4th) 403, 24 C.C.C. (3d) 129, 49 C.R. (3d) 324, [1986] 2 W.W.R. 17, disaprvd

   Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, [1984] 6 W.W.R. 577 sub nom. Director of Investigation & Research of Combines Investigation Branch et al. v. Southam Inc., 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 84 D.T.C. 6467, 9 C.R.R. 355, 55 N.R. 241, consd

   Constitutional law — Charter of Rights — Application — Governmental function — Canadian Amateur Hockey Association and Ontario Hockey Association regulating amateur hockey in Canada and Ontario — Regulations prohibiting girls from playing on boys' teams — Associations receiving grants from federal government and various municipalities — No delegation or grant of power to associations by Parliament or Legislatures — Associations not exercising governmental functions — Charter not applying to associations — Canadian Charter of Rights and Freedoms, s. 32(1).

   Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481, 13 C.R.R. 287, 59 N.R. 1, consd

   Constitutional law — Charter of Rights — Equality rights — Hockey association preventing 12-year-old girl from playing on boys' hockey team — Human Rights Code, 1981 providing such discrimination not sexual discrimination under Code — Code infringing equality provisions of Charter — Human Rights Code, 1981 (Ont.), c. 53, ss. 1, 19(2) — Canadian Charter of Rights and Freedoms, s. 15(1).

   Constitutional law — Charter of Rights — Limitation of rights and freedoms — Hockey association preventing 12-year-old girl from playing on boys' hockey team — Human Rights Code, 1981 providing such discrimination not sexual discrimination under Code — Code infringing equality provisions of Charter — Code provision not reasonable limit — Code provision of no force or effect — Human Rights Code, 1981 (Ont.), c. 53, ss. 1, 19(2) — Canadian Charter of Rights and Freedoms, ss. 1, 15(1).

   Human rights legislation — Discrimination — Sex — Hockey association preventing 12-year-old girl from playing on boys' hockey team — Human Rights Code, 1981 providing such discrimination not sexual discrimination under Code — Code infringing equality provisions of Charter — Code provision not reasonable limit — Code provision of no force or effect — Human Rights Code, 1981 (Ont.), c. 53, ss. 1, 19(2) — Canadian Charter of Rights and Freedoms, ss. 1, 15(1).

   The appellant, a 12-year-old girl, was prevented from playing on a boys' hockey team by the regulations of the Ontario Hockey Association and the Canadian Amateur Hockey Association. Section 19(2) of the Human Rights Code, 1981 (Ont.), c. 53, expressly provides that there is no discrimination under the Code by reason of the actions of the hockey associations. The appellant's application for a declaration that s. 19(2) of the Code is contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms was dismissed. The appellant appealed to the Ontario Court of Appeal.

   Held, Finlayson J.A. dissenting, the appeal should be allowed.

   Per Dubin J.A., Morden J.A. concurring: Section 1 of the Human Rights Code, 1981 extends to every person the right to equal treatment with respect to services and facilities without discrimination. Consistent with the preamble, its purpose is to recognize "the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law", and for "the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province". One of the grounds of discrimination specifically prohibited is discrimination by reason of sex. Section 19(2) of the Code provides that: "The right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex." Section 19(2) is clearly inconsistent with s. 15(1) of the Charter and denies the appellant the right to the equal protection and the equal benefit of the law of this province as expressed in the Human Rights Code, 1981, by reason of her sex. But for s. 19(2), the appellant would have been entitled to the protection of the Human Rights Code, 1981 and the benefit of the complaint and enforcement procedures therein provided. Section 19(2) denies her that protection and benefit. It permits membership in an athletic organization or participation in an athletic activity to be denied solely on the basis of sex without regard to any other factors. Individuals who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity can be treated differently for no reason other than their sex. With respect to athletic activity in the province, the protection of the Human Rights Code, 1981 is still available to all others who complain of discrimination on other grounds, such as race, colour and ethnic origin. Only sexual discrimination is permitted. This renders s. 19(2) clearly discriminatory. Section 19(2) permits direct discrimination. Furthermore, according to the record, it is females who are being denied the right to participate in athletic activities by reason of s. 19(2). There is no evidence that males are being denied the right to full membership and participation in athletic organizations. Thus, s. 19(2) results also in adverse effect discrimination on females.

   The right to equality before and under the law and the right to the equal protection and equal benefit of the law guaranteed by s. 15(1) of the Charter is not an absolute right, and the law which denies that right may nevertheless be constitutional if it is shown to be a reasonable limit on such right demonstrably justified in a free and democratic society. That is the effect of s. 1 of the Charter. Section 19(2) permits discrimination in all athletic activities in the province. It prescribes no limits and provides no guidelines. In the context of this appeal, the focus was on the right to discriminate against females which s. 19(2) permits. In substance, it permits the posting of a "no females allowed" sign by every athletic organization in the province. A declaration that s. 19(2) is unconstitutional will not mandate integrated sports in the province. In the field of athletic activity, distinctions which have a different impact on participants by reason of their sex may be reasonable, if there is a valid purpose for such a distinction. A distinction based on public decency or for the physical protection of participants could be said to be reasonable. No such legislative purpose is disclosed by the broad language of s. 19(2). It is unnecessary to determine whether a sufficiently significant government interest is disclosed in the section. Assuming a legitimate constitutional purpose is disclosed, the means chosen are grossly disproportionate to the end sought to be served.

   There was no effort to justify the broad scope of s. 19(2) as being a reasonable limit on the right to equality. Section 19(2) is an unreasonable limit on the right to the equal benefit and equal protection of the Human Rights Code, 1981. The appropriate remedy is to declare s. 19(2) to be unconstitutional and of no force or effect. This is the only remedy available to the appellant in these proceedings. It would result, however, in affording her the protection of the Human Rights Code, 1981 and the right to pursue her complaint before the Ontario Human Rights Commission.

   Per Finlayson J.A. dissenting: If there is a practice of restricting young girls from playing hockey that is discriminatory, the Human Rights Commission should entertain an appropriate application to determine if the Ontario Hockey Association is engaged in conduct proscribed by s. 1 of the Human Rights Code, 1981. For reasons not adequately explained, the commission refused to entertain an application by the appellant. Before the court the commission argued that, unless s. 19(2) of the Code were struck down, it was not in a position to assist the appellant. The denial of "membership in an athletic organization" or "the opportunity to participate in an athletic activity" as provided in s. 19(2) does not necessarily infringe a person's right under s. 1 of the Code to be free of discrimination with respect to "services, goods and facilities". The two are not mutually exclusive and counsel for the appellant and the commission were not justified in asserting that s. 19(2) contravenes the provisions of s. 1 of the Code by expressly permitting discrimination in athletics on the grounds of sex. A restriction on membership does not mean per se that hockey facilities are denied to girl athletes. If the restriction on membership permitted by s. 19(2) is in fact used as a cloak for discrimination on the basis of sex, it should not be beyond the capabilities of the commission to determine this on proper evidence. The Human Rights Code, 1981 clearly strives for a compromise between the proponents of sweeping anti-discrimination legislation on the one hand, and the concerns of bona fide groups concerned with developing their own social, religious, ethnic and sex-oriented groups. Section 1 of the Code was deliberately modified in its reach to accommodate these disparate concerns. Counsel for the appellant submits that s. 15(1) of the Charter permits no such modifications and contends that s. 19(2) of the Code must be struck down. While he does not say so, because it is not necessary to his case, it follows that all or most of the other concessions to the uncompromising language of s. 1 of the Code would also have to give way to this concept of egalitarianism. The framers of the Charter did not contemplate the destruction of our social and educational fabric to the extent postulated by counsel. Section 19(2) of the Code is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Charter.

   R. v. Oakes (1986), 53 O.R. (2d) 719n, 24 C.C.C. (3d) 321, folld

   Re McDonald and the Queen (1985), 51 O.R. (2d) 745, 21 D.L.R. (4th) 397, 21 C.C.C. (3d) 330, 16 C.R.R. 361; leave to appeal to S.C.C. refused December 10, 1985; Reference re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513, 25 D.L.R. (4th) 1; Cameron v. Nel-Gor Castle Nursing Home (1984), 5 C.H.R.R. D/2170; Ontario Human Rights Com'n et al. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 52 O.R. (2d) 799n, 9 C.C.E.L. 185; Bhinder et al. v. C.N.R. Co. (1985), 23 D.L.R. (4th) 481, 63 N.R. 185; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 18 C.C.C. (3d) 385, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 85 C.L.L.C. para. 14,023, 13 C.R.R. 64, 58 N.R. 81; Board of Governors of Seneca College v. Bhadauria, [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193, 17 C.C.L.T. 106, consd

Other cases referred to

   Re Cummings and Ontario Minor Hockey Ass'n (1978), 21 O.R. (2d) 389, 90 D.L.R. (3d) 568, 7 R.F.L. (2d) 359; affd 26 O.R. (2d) 7, 104 D.L.R. (3d) 434, 10 R.F.L. (2d) 121; Re Ontario Human Rights Com'n et al. and Ontario Rural Softball Ass'n (1979), 26 O.R. (2d) 134, 102 D.L.R. (3d) 303, 10 R.F.L. (2d) 97; leave to appeal to S.C.C. refused 31 N.R. 171; R. v. Varga (1985), 18 C.C.C. (3d) 281, 44 C.R. (3d) 377, 13 C.R.R. 351

   Constitutional law — Charter of Rights — Interpretation — Traditional test of severability cannot be resorted to to uphold constitutionality of section of statute challenged as inconsistent with Charter.

   Reference re Alberta Bill of Rights Act; A.-G. Alta. v. A.-G. Can. et al., [1947] A.C. 503, [1947] 4 D.L.R. 1, [1947] 2 W.W.R. 401, consd

Statutes referred to

Canadian Bill of Rights, R.S.C. 1970, App. III

Canadian Charter of Rights and Freedoms, ss. 1, 15(1), 32, 33

Canadian Human Rights Act, 1976-77 (Can.), c. 33

Charter of Human Rights and Freedoms, 1975 (Que.), c. 6

Constitution Act, 1982, s. 52(1)

Courts of Justice Act, 1984 (Ont.), c. 11, s. 122

Fair Practices Ordinance, R.O.N.W.T. 1974, c. F-2

Fitness and Amateur Sport Act, R.S.C. 1970, c. F-25

Human Rights Act, 1984 (B.C.), c. 22

Human Rights Act, 1974 (Man.), c. 65 (C.C.S.M. c. H175)

Human Rights Act, R.S.P.E.I. 1974, c. H-12.2

Human Rights Code, R.S.O. 1980, c. 340, s. 2

Human Rights Code, 1981 (Ont.), c. 53, ss. 1, 13, 14, 15, 17, 19, 20, 21

Human Rights Code, R.S.N.B. 1973, c. H-11

Human Rights Code, 1979 (Sask.), c. S-24.1

Individual's Rights Protection Amendment Act, 1980 (Alta.), c. 27

Newfoundland Human Rights Code, R.S.N. 1970, c. 262

Ontario Human Rights Code, R.S.O. 1980, c. 340, s. 2 (repealed by s. 48 of, and replaced by the Human Rights Code, 1981 (Ont.), c. 53

Sex Discrimination Act, 1975 (U.K.), c. 65, s. 44

   APPEAL by the applicant from a judgment of Steele J., 52 O.R. (2d) 225, 21 D.L.R. (4th) 599, dismissing her application for a declaration that s. 19(2) of the Human Rights Code, 1981 is contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms and thus void.

   Richard E. Shibley, Q.C., Joan M. Gilmour and J. Anna Fraser, for appellant.

   Bryan Finlay, Q.C., for respondent, Ontario Hockey Association.

   Elizabeth C. Goldberg, for respondent, Ontario Human Rights Commission.

   Donald J.M. Brown, Q.C., for intervenor, Canadian Association for Advancement of Women and Sport.


   DUBIN J.A.:— I have had the advantage of reading the reasons for judgment of my brother Finlayson. I take a different view of this appeal, and, with respect, I differ not only with the conclusion that he has arrived at, but also with what he perceives to be the real issues in this appeal.

   In my opinion, the real issues in this appeal are whether, by reason of a provision of the Ontario Human Rights Code, 1981 (Ont.), c. 53 (the "Human Rights Code"), Justine Blainey is being denied the right to the equal protection and equal benefit of the law by reason of her sex, and, if so, what is the remedy available to her in these proceedings.

Background

   The material in the record of these proceedings is fully reviewed by Mr. Justice Steele from whose judgment, now reported at 52 O.R. (2d) 225, 21 D.L.R. (4th) 599, this appeal is taken, and I need only refer to such salient features of it as are necessary to explain my conclusions.

   Justine Blainey, 12 years of age at the time of the commencement of these proceedings, is admittedly a young girl of outstanding athletic ability. In the opinion of her coach, she has the talent and physical strength to compete as a full member of a team in the Minor Peewee Division of the Metropolitan Toronto Hockey League (the "M.T.H.L."), which is a division of the Ontario Hockey Association (the "O.H.A."), although all the other members of the team are boys.

   She has been well accepted as a full member of the team by her teammates and competed in four exhibition games in the summer of 1985. Justine was anxious to play for the team in the regular schedule and was supported in such desire by her coach and her mother.

   The O.H.A. is a non-profit incorporated association which provides a structured programme for the promotion of amateur hockey. In pursuit of these objectives the O.H.A. places hockey teams in certain categories, and they compete for championship trophies. There are detailed regulations regarding, inter alia, competition, play-offs, discipline of the clubs and players, and players' qualifications.

   Regulation 250 of the O.H.A. provides as follows:

Every male person who is an amateur in accordance with the Association's definition thereof who is not under suspension by the C.A.H.A. or any of its branches, by any other member of the I.I.H.F., or any professional organizations, and is not a member of any club or team under the jurisdiction of any other member of the International Ice Hockey Federation shall be eligible for membership in a club in the Association. A player derives no benefit from any suspension.

(Emphasis added.) The Canadian Amateur Hockey Association (the "C.A.H.A.'') is the parent of the O.H.A.

   Notwithstanding Regulation 250, in many cases provision is made by the O.H.A. through the Ontario Women's Hockey Association (the "O.W.H.A.") for girls who are 12 years or under to play on boys' teams. This is done on an ad hoc basis where the O.W.H.A. determines that there is no equal opportunity available for a girl of her age to play on a girls' team. For a team to participate in the regular schedule of a hockey team affiliated with the O.H.A., every member of the team must be a member of the O.H.A.

   Because Justine was not a male person, she was ruled ineligible for membership in the O.H.A. and was denied the opportunity to continue as a member of the team. Mrs. Caroline Blainey, Justine's mother, attended at the offices of the Ontario Human Rights Commission and sought to register a complaint that her daughter was being denied the services and facilities of the O.H.A. by reason of her sex, and that she was thereby being unlawfully discriminated against.

   The Human Rights Code provides in s. 1 as follows:

   1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status, family status or handicap.

   It is one of many sections in Part I of the Human Rights Code to give effect to its underlying principles which are stated in the preamble to be as follows:

   WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

   AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

(Emphasis added.)

   Under the Human Rights Code the Human Rights Commission is empowered to inquire into complaints made by any person who claims to have been discriminated against contrary to the provisions of the Human Rights Code. The commission is empowered, where in its opinion the evidence warrants an inquiry, to request the appointment of a board of inquiry and to refer the subject-matter of the complaint to such a board. The board of inquiry is empowered to conduct a hearing and, if after such a hearing it finds that a right of a complainant guaranteed under the Human Rights Code has been infringed, to provide an appropriate remedy.

   After Mrs. Blainey had outlined to the commission the nature of the complaint, she was advised orally by the commission that "due to the provisions of s. 19(2) of the Human Rights Code the Ontario Human Rights Commission had no jurisdiction to receive such a complaint". This was subsequently confirmed in writing when she was advised as follows:

From the information you provided it would appear that your concerns do not fall within the jurisdiction of our legislation such that a formal complaint may be taken.

Section 19(2) of the Human Rights Code states:

   19(2) The right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex.

   In other words, Mrs. Blainey was advised that, assuming that the O.H.A. by refusing to provide her daughter with their services and facilities was discriminating against her because of her sex, by reason of s. 19(2) the O.H.A. would be within their rights, and the Ontario Human Rights Commission had no jurisdiction to assist Justine Blainey.

   With due respect to the contrary view of my brother Finlayson, I think the Ontario Human Rights Commission was right. The legislation, in its present form, does permit the O.H.A. and, indeed, all others in this province who provide services and facilities with respect to membership in athletic organizations or participation in athletic activities, to deny equal treatment with respect to their services and facilities on the basis of sex. The Human Rights Commission is bound by the mandate provided to it by the Legislature. They had no right to go behind it and were powerless to assist Miss Justine Blainey even if her complaint had been made out.

   No issue was taken before the learned weekly court judge, or on appeal by the learned and experienced counsel for Miss Blainey, for the O.H.A., or for the Canadian Association for the Advancement of Women and Sport, as to the correctness of the ruling of the Ontario Human Rights Commission, nor was the good faith of the Ontario Human Rights Commission questioned.

   Indeed, it was on the premise that the ruling of the Ontario Human Rights Commission was correct that these proceedings were launched and which afforded the status to the applicant to complain now that, by reason of s. 19(2) of the Human Rights Code she is being denied the equal protection and equal benefit of the Human Rights Code by reason of her sex, contrary to the provisions of s. 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter").

The reach of s. 15(1) of the Charter

Section 15(1) of the Charter provides as follows:

   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.

   Section 32 of the Charter provides as follows:

32(1) This Charter applies:


 (a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories, and

 (b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

   (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

   The Human Rights Code was proclaimed in force in June, 1982. The Charter was proclaimed in force on April 17, 1982, but, by reason of s. 32(2), s. 15 did not come into force until April 17, 1985. Thus, when enacted, s. 19(2) of the Human Rights Code, 1981 was valid legislation and it was within the jurisdiction of the province to enact it. However, by reason of s. 32(1)(b), provincial legislation is now subject to challenge under the Charter. Section 19(2) must now meet such a constitutional challenge.

   It was submitted that s. 15(1) of the Charter also reaches private activity within the province and thus Regulation 250 of the O.H.A. is also subject to a Charter challenge. In this regard I think the following passage of Dickson J. in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145 at p. 156, 11 D.L.R. (4th) 641 at p. 650, 14 C.C.C. (3d) 97, is germane:

   I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.

(Emphasis added.)

   In my opinion, s. 15 of the Charter does not reach private activity within a province. I agree with the following proposition by Professor Tarnopolsky to be found in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms: Commentary (1982), at pp. 422-3:

   In our own case under the Charter, it is suggested that s. 15 is not likely to be applied in the courts except in cases where a discriminatory act is committed by legislative action, and the jurisdiction concerned does not have an overriding clause in its Human Rights Act, as do Alberta, Quebec and Saskatchewan. This would be so for the following reasons:


1.

By s. 32(1), the Charter is specifically made applicable only to the Parliament and government of Canada and to the legislature and government of each province "in respect of all matters within the authority" of the respective legislative body. Thus, although legislative and executive actions are covered by the Charter, it is not made applicable to private action.

2.

Section 15 refers to equality before and under the law, as well as equal protection and benefit of the law. Thus, although an anti-discrimination (human rights) law would itself have to conform to s. 15, it, and not s. 15, would be directly applicable to discriminatory actions by private persons.

3.

Every jurisdiction in Canada has an anti-discrimination statute which is explicitly made applicable to the Crown. It is unlikely, therefore, that a complainant would resort to a constitutional action in the courts, rather than the complaint process under the anti-discrimination laws.

   In the case of Cat Productions Ltd. v. Macedo et al., [1985] 1 F.C. 269, 5 C.P.R. (3d) 71, 5 C.I.P.R. 207 (T.D.), McNair J., at p. 274, quoted and approved the following comments by Professor Swinton found in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms: Commentary (1982), at pp. 44-5:

"The automatic response to a suggestion that the Charter can apply to private activity, without connection to government, will be that a Charter of Rights is designed to bind governments, not private actors. That is the nature of a constitutional document: to establish the scope of governmental authority and to set out the terms of the relationship between the citizen and the state and those between the organs of government. The purpose of a Charter of Rights is to regulate the relationship of an individual with the government by invalidating laws and governmental activity which infringe the rights guaranteed by the document, while relationships between individuals are left to the regulation of human rights codes, other statutes, and common law remedies, such as libel and slander laws. Furthermore, s. 32(1) specifically states that the Charter applies to 'the Parliament and government of Canada in respect of all matters within the authority of Parliament' (emphasis added). It is governmental action which is caught, not private action."

   I agree with McNair J., and, with respect, I do not agree with the contrary opinion to be found in R. v. Lerke (1984), 11 D.L.R. (4th) 185, 13 C.C.C. (3d) 515, 55 A.R. 216 (Alta. Q.B.).

   In the alternative, it was submitted by counsel for the appellant and for the Canadian Association for the Advancement of Women and Sport that the C.A.H.A. and the O.H.A. were agents of the Government of Canada, and their rules could be regarded as acts done pursuant to powers granted by law. In that respect, the comment made by Dickson J. in Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441 at p. 459, 18 D.L.R. (4th) 481 at p. 494, 13 C.R.R. 287, is also germane:

   I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to "laws" in s. 52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the Constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s. 52.

   However, assuming that there can exist a relationship between "government" and private citizens and organizations so that the actions of the citizen or organization can be considered "actions of government" for the purposes of the Charter, in my opinion no such nexus has been established in this case. The only relationship that has been established between the Government of Canada and the C.A.H.A. and the O.H.A. is that they receive grants from the federal government under the Fitness and Amateur Sport Act, R.S.C. 1970, c. F-25. They also receive grants from various municipalities. There has been no delegation of power by Parliament or the Legislature to the C.A.H.A. or the O.H.A., nor have they been granted any powers by governments.

   On the record before this Court, neither the C.A.H.A. nor the O.H.A. in conducting their activities can in any way be said to be doing so as some form of governmental agency or exercising a governmental function. I agree with the following comment made by Steele J. at p. 231 O.R., p. 605 D.L.R.:

This does not make the C.A.H.A. or the O.H.A. governmental agencies. To hold otherwise would mean that all industries, charities and other organizations that receive government grants are performing government functions and are subject to the Charter. This is not the intent of s. 32 of the Charter.

Is s. 19(2) of the Human Rights Code inconsistent with s. 15(1) of the Charter?

   For the purposes of convenience I reproduce the relevant provisions of the Human Rights Code and of the Charter.

Human Rights Code

   1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status, family status or handicap.


. . . . .

   19(2) The right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex.


Charter

   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.

   As previously noted, when enacted s. 19(2) was within the legislative authority of the province, but all such laws are now subject to challenge if they deny equality before or under the law or deny the right to the equal protection or equal benefit of the law on a discriminatory basis. By way of overview, the following comment made by Morden J.A. in Re McDonald and The Queen (1985), 51 O.R. (2d) 745 at pp. 763-4, 21 D.L.R. (4th) 397 at pp. 415-6, 21 C.C.C. (3d) 330, is a helpful starting place:

   At the outset I should deal very briefly with one particular question relating to what amounts to an infringement of rights under s. 15 having regard to its particular wording. On the one hand, the section can be read as providing that there is no infringement unless there is unequal treatment resulting from discrimination, that is, discrimination in the sense of invidiousness -- unjustifiability, unreasonableness or irrelevance. On this approach, putting it in its simplest terms, there would be no infringement unless the person alleging infringement could show an inequality that was unreasonably imposed: see Gold, "A Principled Approach to Equality Rights", 4 Supreme Court L.R. 131 (1982), at pp. 151-3, where this approach discussed on the basis that "the equality rights ... in the Charter contain within them a non-absolutist conception" without reference in this part of the article to the words "without discrimination". On the other hand, it has been argued that discrimination should be read in a neutral sense, as meaning merely distinction or classification, with the result that "s. 15 should be interpreted as providing for the universal application of every law. Where a law draws a distinction between individuals, on any ground, that distinction is sufficient to constitute a breach of s. 15, and to move the constitutional issue to s. 1 [to consider whether the law is justified]": Hogg, Constitutional Law of Canada, 2nd ed. (1985), pp. 799-801. Since, in my view, the result of this appeal would be the same no matter which approach is followed, I need not, beyond noting that this issue exists, express a concluded opinion on it.

   It should also be noted at this point that it is not in dispute that s. 15, by reason of its particular terms read in the light of the case-law relating to s. 1(b) of the Canadian Bill of Rights, provides for equality in the substance of the law and not just administrative equality: see Tarnopolsky, "The Equality Rights in the Canadian Charter of Rights and Freedoms", 61 Can. Bar Rev. 242 (1983), at pp. 248-55, and Hogg, Constitutional Law of Canada, supra, p. 798.

And at p. 765 O.R., p. 417 D.L.R.:

   The same point can be made in a different way. It can reasonably be said, in broad terms, that the purpose of s. 15 is to require "that those who are similarly situated be treated similarly": Tussman and tenBroek, "The Equal Protection of the Laws", 37 Cal. L. Rev. 341 (1948), at p. 344.

   Chief Justice Howland and Robins J.A. wrote in a similar vein in Reference re an Act to Amend the Education Act, released February 18, 1986, unreported [since reported 53 O.R. (2d) 513, 25 D.L.R. (4th) 1]. Although in the result their judgment was a dissent from the majority, the following comment at pp. 554-5 O.R., pp. 42-3 D.L.R., was a point not addressed by the majority:

   In our view, s. 15(1) read as a whole constitutes a compendious expression of a positive right to equality in both the substance and the administration of the law. It is an all-encompassing right governing all legislative action. Like the ideals of "equal justice" and "equal access to the law", the right to equal protection and equal benefit of the law now enshrined in the Charter rests on the moral and ethical principle fundamental to a truly free and democratic society that all persons should be treated by the law on a footing of equality with equal concern and equal respect.

   This is not to suggest that s. 15(1) requires that every person in every instance be treated in precisely the same manner. There is no infringement of the section unless the unequal treatment is discriminatory. Most laws provide for distinctions and prescribe different results based on those distinctions. Indeed, a State could not function without classifying its citizens for various purposes and treating some differently from others. As Mr. Justice Stewart pointed out in his discussion of the equal protection clause of the U.S. Fourteenth Amendment in San Antonio School District v. Rodriguez (1973), 411 U.S. 1 at p. 60: "There is hardly a law on the books that does not affect some people differently from others." Similarly, although spoken in a different context, Chief Justice Dickson said at p. 347 S.C.R., p. 362 D.L.R. of Big M Drug Mart Ltd., [infra] "... the interests of true equality may well require differentiation in treatment". This Court in Re McDonald and The Queen (1985), 51 O.R. (2d) 745 at 765, 21 D.L.R. (4th) 397 at p. 417, 21 C.C.C. (3d) 330, speaking through Morden J.A., accepted that "[i]t can reasonably be said, in broad terms, that the purpose of s. 15 is to require 'that those who are similarly situated be treated similarly'."

   Like Morden J.A. in Re McDonald and The Queen, supra, Chief Justice Howland and Robins J.A. found it unnecessary to pass upon the various approaches that have been suggested with respect to the application of s. 15(1), nor do I think it necessary to do so in this case. In my opinion, by any of the various tests referred to above, s. 19(2) of the Human Rights Code is clearly inconsistent with s. 15(1) of the Charter and denies Miss Blainey the right to the equal protection and the equal benefit of the law of this province as expressed in the Human Rights Code by reason of her sex.

   Section 1 of the Human Rights Code extends to every person the right to equal treatment with respect to services and facilities without discrimination. Consistent with the preamble, its purpose is to recognize "the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law", and for "the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province".

   One of the grounds of discrimination specifically prohibited is, quite understandably, discrimination by reason of sex. In this respect, what was stated in a decision by a board of inquiry established under the Human Rights Code in Cameron v. Nel-Gor Castle Nursing Home (1984), 5 C.H.R.R. D/2170 at D/ 2172, is apt:

   Essentially, the public policy underlying the Code seeks to rectify the denial of equality with respect to the inalienable basic rights of minorities and women and to enable them to realize their full potential as individuals and participate fully in society for the benefit of all people in Ontario.

   The predecessor provision of the Ontario Human Rights Code, R.S.O. 1980, c. 340, is to be found in s. 2 which read as follows:

   2(1) No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall,

 (a)  deny to any person or class of persons the accommodation, services or facilities available in any place to which the public is customarily admitted; or

 (b)  discriminate against any person or class of persons with respect to the accommodation, services or facilities available in any place to which the public is customarily admitted,

because of the race, creed, colour, sex, marital status, nationality, ancestry or place of origin of such person or class of persons or of any other person or class of persons.

   Under that legislation, by reason of the inclusion of the words, "in any place to which the public is customarily admitted", there was a division of opinion as to whether the highly detailed structured programme provided by the O.H.A. could be said to be a "service" within the meaning of s. 2: see Re Cummings and Ontario Minor Hockey Ass'n (1978), 21 O.R. (2d) 389, 90 D.L.R. (3d) 568, 7 R.F.L. (2d) 359 (Div. Ct.); affirmed 26 O.R. (2d) 7, 104 D.L.R. (3d) 434, 10 R.F.L. (2d) 121 (C.A.), and Re Ontario Human Rights Com'n et al. and Ontario Rural Softball Ass'n (1979), 26 O.R. (2d) 134, 102 D.L.R. (3d) 303, 10 R.F.L. (2d) 97 (C.A.). In my opinion, that ambiguity has been removed, and no such limitation is expressed in the current s. 1. It is, I think, clear that the O.H.A. is providing, at least, a service within the meaning of s. 1 of the Human Rights Code and this is implicitly recognized by s. 19(2). No contrary argument was submitted.

   Thus, but for s. 19(2), Justine Blainey would have been entitled to the protection of the Human Rights Code and the benefit of the complaint and enforcement procedures therein provided. But s. 19(2) denies her that protection and benefit. It permits membership in an athletic organization or participation in an athletic activity to be denied solely on the basis of sex without regard to any other factors. Individuals who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity can be treated differently for no reason other than their sex. With respect to athletic activity in the province, the protection of the Human Rights Code is still available to all others who complain of discrimination on other grounds, such as race, colour and ethnic origin. Only sexual discrimination is permitted. This renders s. 19(2) clearly discriminatory.

   There is a distinction between direct discrimination and adverse effect discrimination. This was considered in the Supreme Court of Canada in Ontario Human Rights Com'n et al. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321. Mr. Justice McIntyre, delivering the judgment of the Court, in this respect stated as follows, at pp. 551-2 S.C.R., p. 332 D.L.R.:

   A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here." There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule of standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply. From the foregoing I therefore conclude that the appellant showed a prima facie case of discrimination based on creed before the Board of Inquiry.

(Emphasis added.)

   Section 19(2) permits direct discrimination, resulting in the denial to Miss Blainey of the equal protection and equal benefit of the law and is inconsistent with s. 15(1) of the Charter. Furthermore, on the record of these proceedings, it is females who are being denied the right to participate in athletic activities by reason of s. 19(2). There is no evidence that males are being denied the right to full membership and participation in athletic organizations. Thus, s. 19(2) results also in adverse effect discrimination on females.

Is s. 19(2) of the Human Rights Code a reasonable and demonstrably justified limit pursuant to s. 1 of the Charter?

   The right to equality before and under the law and the right to the equal protection and equal benefit of the law guaranteed by s. 15(1) of the Charter is not an absolute right, and a law which denies that right may nevertheless be constitutional if it is shown to be a reasonable limit on such right demonstrably justified in a free and democratic society. That is the effect of s. 1 of the Charter which reads as follows:

   1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

   Mr. Justice Steele acknowledged that s. 19(2) of the Human Rights Code was inconsistent with s. 15(1) of the Charter, but concluded that, pursuant to s. 1 of the Charter, it was a reasonable limit on the right to equality and was therefore constitutional. With respect, I do not agree.

   The manner in which s. 1 is to be applied has recently been exhaustively reviewed in the judgment of Chief Justice Dickson in R. v. Oakes, released February 28, 1986, unreported. I quote in part from that judgment as follows at pp. 37-9 [pp. 346-7 C.C.C.]:

   The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s. 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society.

   The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. It is clear from the text of s. 1 that limits on the rights and freedoms enumerated in the Charter are exceptions to their general guarantee. The presumption is that the rights and freedoms are guaranteed unless the party invoking s. 1 can bring itself within the exceptional criteria which justify their being limited. This is further substantiated by the use of the word "demonstrably" which clearly indicates that the onus of justification is on the party seeking to limit: Hunter v. Southam Inc., supra.

   The standard of proof under s. 1 is the civil standard, namely, proof by a preponderance of probability. The alternative criminal standard, proof beyond a reasonable doubt, would, in my view, be unduly onerous on the party seeking to limit. Concepts such as "reasonableness", "justifiability" and "free and democratic society" are simply not amenable to such a standard. Nevertheless, the preponderance of probability test must be applied rigorously. Indeed, the phrase "demonstrably justified" in s. 1 of the Charter supports this conclusion.

And at pp. 40-1 [p. 348 C.C.C.]:

   To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 430 C.C.C., p. 366 D.L.R., p. 352 S.C.R. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

   Secondly, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra. Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

(Emphasis added.)

   Section 15(1) of the Charter in its broadest terms guarantees not only ''equality before and under the law", but also the "equal protection" and the "equal benefit" of the law without discrimination. It is fundamental in a free and democratic society that all persons should be treated by the law on a footing of equality, with equal concern and equal respect, to ensure each individual the greatest opportunity for his or her enhancement.

   Participation in athletics is important for the development of health, character and discipline. The right to participate in such athletic activity without discrimination is guaranteed by s. 1 of the Human Rights Code. On this aspect of the case the issue is whether s. 19(2) of the Human Rights Code, which permits discrimination in all athletic activities in this province by reason of one's sex, is a reasonable limit, demonstrably justified, on the right to equality otherwise guaranteed by s. 15(1) of the Charter.

   As has been noted, s. 19(2) of the Human Rights Code permits discrimination in all athletic activities in the province. It prescribes no limits and provides no guidelines. In the context of this appeal, the focus was on the right to discriminate against females which s. 19(2) permits. In substance, it permits the posting of a "no females allowed" sign by every athletic organization in this province.

   A declaration that s. 19(2) of the Human Rights Code is unconstitutional will not mandate integrated sports in this province. In the field of athletic activity, distinctions which have a different impact on participants by reason of their sex may be reasonable, if there is a valid purpose for such a distinction. Such a distinction can be seen in the British equivalent to s. 19(2) found in s. 44 of the Sex Discrimination Act, 1975 (U.K.), c. 65, which reads as follows:

   44. Nothing in Part II to IV shall, in relation to any sport, game or other activity of a competitive nature where the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man, render unlawful any act related to the participation of a person as a competitor in events involving that activity which are confined to competitors of one sex.

   The broad scope of s. 19(2) should also be compared with s. 19(1) of the Human Rights Code which reads as follows:

   19(1) The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency.

   A distinction based on public decency or for the physical protection of participants would, I think, be said to be reasonable. No such legislative purpose is disclosed by the broad language of s. 19(2).

   It was submitted by counsel for the appellant that, by reason of the breadth of s. 19(2), no sufficiently significant government interest is disclosed and, therefore, no resort can be made to s. 1 of the Charter. In this respect, counsel for the appellant relied upon the following observations of Dickson J. in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 352, 18 D.L.R. (4th) 321 at p. 366, 18 C.C.C. (3d) 385:

   At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable -- a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.

   In the view that I take of s. 19(2), it is unnecessary to determine whether a sufficiently significant government interest is disclosed in the section. Assuming a legitimate constitutional purpose is disclosed, in my opinion the means chosen are grossly disproportionate to the end sought to be served. The O.H.A. has failed to show that the means chosen are "reasonable and demonstrably justified" and "impair as little as possible the right or freedom in question".

   As I read the record, there was no effort to justify the broad scope of s. 19(2) as being a reasonable limit on the right to equality. In my opinion, s. 19(2) is an unreasonable limit on the right to the equal benefit and equal protection of the Human Rights Code. Indeed, it is somewhat of an anomaly to find in a statute designed to prohibit discrimination a provision which specifically permits it.

   It is not without significance that no similar provision is to be found in the predecessor to the Human Rights Code, in the Canadian Human Rights Act, 1976-77 (Can.), c. 33, or in the Northwest Territories Fair Practices Ordinance, R.O.N.W.T. 1974, c. F-2, the Newfoundland Human Rights Code, R.S.N. 1970, c. 262, the P.E.I. Human Rights Act, R.S.P.E.I. 1974, c. H-12.2, the New Brunswick Human Rights Code, R.S.N.B. 1973, c. H-11, the Quebec Charter of Human Rights and Freedoms, 1975 (Que.), c. 6, the Manitoba Human Rights Act, 1974 (Man.), c. 65 (C.C.S.M. H175), the Saskatchewan Human Rights Code, 1979 (Sask.), c. S-24.1, the Alberta Individual's Rights Protection Amendment Act, 1980 (Alta.), c. 27, or the British Columbia Human Rights Act, 1984 (B.C.), c. 22.

   In light of the observations made by my brother Finlayson, I think it appropriate to add a short comment on the position taken by the Ontario Human Rights Commission on this appeal. Counsel for the commission supported the appellant's contention that s. 19(2) of the Human Rights Code was unconstitutional. Normally counsel for a tribunal, where its enabling statutory authority is under attack, supports the jurisdiction conferred upon it by its enabling statute or submits its rights to the court. However, it is well known that with the introduction of s. 15(1) of the Charter, all branches of government are giving close scrutiny to legislation previously enacted with a view of satisfying themselves that it is now consistent with the Charter. That study has obviously been undertaken by the Human Rights Commission and, under such circumstances, I think it quite appropriate for counsel to provide the benefit of that review to the Court. That is the position that I understand counsel for the commission took in this appeal.

Remedy

   It was submitted that, even assuming that s. 19(2) of the Human Rights Code is inconsistent with s. 15(1) of the Charter and is an unreasonable limit on the right to the equal protection and equal benefit of the law, it should nevertheless still stand because it is not severable from the rest of the Human Rights Code.

   It was submitted that the Legislature would not have passed s. 1 of the Human Rights Code in its present language in the absence of s. 19(2). In this respect, reliance is placed on what was stated by Viscount Simon in Reference re Alberta Bill of Rights Act; A.-G. Alta. v. A.-G. Can. et al., [1947] A.C. 503 at p. 518, [1947] 4 D.L.R. 1 at p. 11, [1947] 2 W.W.R. 401:

The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.

   With respect, I do not think that the traditional test of severability can be resorted to to uphold the constitutionality of a section of a statute which is being challenged as being inconsistent with the Charter.

   Section 52(1) of the Constitution Act, 1982 provides as follows:

   52(1) 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.

   Pursuant to this provision, any law that is inconsistent with the provisions of the Constitution, of which the Charter forms part, is to the extent of the inconsistency, of no force or effect.

   Having concluded that s. 19(2) of the Human Rights Code is inconsistent with s. 15(1) of the Charter and is an unreasonable denial of the equality rights, I think the appropriate remedy is to declare it to be unconstitutional and of no force or effect. I do not think that it can stand under some doctrine of severability. It would still be open to the Legislature to amend the Human Rights Code in a manner consistent with the Charter, but a provision of a statute which in its present form clearly violates the Charter cannot be held to be constitutional.

   It was also submitted, but not vigorously pressed, that the Court should direct the O.H.A. to admit Miss Blainey to membership. I have already held that the Charter does not extend to private activity within the province, and, thus, a Charter remedy cannot be granted in a situation to which the Charter does not apply.

   Furthermore, it has been held that no right of action springs directly from a breach of the Human Rights Code. As previously noted, the Human Rights Code provides a comprehensive scheme for the investigation and adjudication of complaints of discrimination. There is a very broad right of appeal to the Court from the ultimate determination of a board of inquiry constituted under the Human Rights Code. The procedure provided for in the Human Rights Code must first be pursued before resort can be made to the Court. This was so held in Board of Governors of Seneca College v. Bhadauria, [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193, 17 C.C.L.T. 106. Chief Justice Laskin, speaking for the Court, stated at p. 183 S.C.R., pp. 194-5 D.L.R.:

   In my opinion, the attempt of the respondent to hold the judgment in her favour on the ground that a right of action springs directly from a breach of The Ontario Human Rights Code cannot succeed. The reason lies in the comprehensiveness of the Code in its administrative and adjudicative features, the latter including a wide right of appeal to the Courts on both fact and law.

And at pp. 194-5 S.C.R., p. 203 D.L.R.:

   The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code.

   For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.

Conclusion

   In my opinion, s. 19(2) of the Human Rights Code denies Miss Blainey the right to the equal treatment and equal benefit of the Human Rights Code by reason of her sex, and is therefore unconstitutional and of no force or effect. In the result, therefore, I would allow the appeal, set aside the judgment below, and declare s. 19(2) of the Human Rights Code to be unconstitutional.

   This is the only remedy available to Miss Blainey in these proceedings. It would result, however, in affording her the protection of the Human Rights Code and the right to pursue her complaint before the Ontario Human Rights Commission.

   I would reserve the question of costs for further submissions by counsel.

   MORDEN J.A. concurs with DUBIN J.A.

   FINLAYSON J.A. (dissenting):— This appeal concerns a gifted young athlete who, because she is a woman, has found herself unable to play hockey competitively at a level that is challenging to her unless she is permitted by the Ontario Hockey Association (hereinafter the "O.H.A.") to play on a Metropolitan Toronto Hockey League team (hereinafter "M.T.H.L.") sponsored by it. She is now 12 years old and the practice of the O.H.A. has been to restrict membership in its association (as opposed to its affiliate the Ontario Women's Hockey Association) to boys once they are 12 and over so that they do not compete with members of the opposite sex in the post-puberty age. Rules that serve the collective and not the individual have frequently bedevilled talented young persons of both sexes in their attempts to take advantage of sports and other facilities. The organizations that provide these facilities must and do recognize inherent limitations on their ability to look after every individual in accordance with his or her wish or even with respect to a recognized special skill.

   What is attacked, although counsel for the appellant and the Ontario Human Rights Commission (hereinafter the Commission) prefer to submit otherwise, is rule 250 of the O.H.A. which reads as follows:

Every male person who is an amateur in accordance with the Associations' definition thereof who is not under suspension by the C.A.H.A. or any of its branches, by any other member of the I.I.H.F., or any professional organizations, and is not a member of any club or team under the jurisdiction of any other member of the International Ice Hockey Federation shall be eligible for membership in a club in the Association. A player derives no benefit from any suspension.

(Emphasis added.)

   It should be noted that the restriction on membership is absolute; it refers to males only -- but it is accepted that talented young girls, as a matter of practice, are permitted to play on boys' teams up to the age of 12. The vast majority of young girls are members of the affiliate of the O.H.A. called the Ontario Women's Hockey Association (hereinafter the "O.W.H.A.") and progress through the various age groups until they attain senior status.

   If there is a practice of restricting young girls from playing hockey that is discriminatory, it is my opinion that the Commission should entertain an appropriate application to determine if the O.H.A. is engaged in conduct proscribed by s. 1 of the Human Rights Code, 1981 (Ont.), c. 53 (hereinafter the "Code"). It states:

   1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status, family status or handicap.

   For reasons not adequately explained, the Commission refused to entertain an application by Justine Blainey. In its letter of July 18, 1985, it advised the young woman's mother that:

From the information you provided it would appear that your concerns do not fall within the jurisdiction of our legislation such that a formal complaint may be taken.

   The Commission's position before this Court was more vigorous; counsel submitted that unless s. 19(2) of the Code is struck down, it was not in a position to assist this young person. Section 19(2) states:

   19(2) The right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex.

   It is my opinion that the denial of "membership in an athletic organization" or "the opportunity to participate in an athletic activity" does not necessarily infringe a person's right under s. 1 of the Code to be free of discrimination with respect to "services, goods and facilities". The two are not mutually exclusive and counsel for the appellant and the Commission are not justified in asserting that s. 19(2) contravenes the provisions of s. 1 of the Code by expressly permitting discrimination in athletics on the grounds of sex.

   A restriction on membership does not mean per se that hockey facilities are denied to girl athletes. If the restriction on membership permitted by s. 19(2) is, in fact, used as a cloak for discrimination on the basis of sex, it should not be beyond the capabilities of the Commission to determine this on proper evidence. The Commission appears to have bigger fish to fry and invites a confrontation in an attempt to extirpate a section of the Code which regulates its authority.

   The Code is a comprehensive document. In its initial sections, it sets out certain "thou shalt nots". Thereafter, it moderates the various prohibitions on discrimination. For example, s. 13 provides that the prohibitions are not infringed by the implementation of special programmes designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity.

   Section 14 provides that the right to non-discrimination because of age is not infringed where an age of 65 years or over is a requirement qualification or consideration for preferential treatment. Section 15 provides that the right to non-discrimination is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law or is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

   There are other provisions which moderate the statute's anti-discrimination provisions relating to handicapped persons: see s. 16. Section 17 of the Code states that the right to equal treatment with respect to services and facilities, with or without accommodation, is not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization, primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination, is restricted to persons who are similarly identified. Additionally, separate schools are exempted from the provisions of the Act.

   Section 19(1) exempts discrimination where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency. Section 19(3) states that there is no infringement of the right to equal treatment with respect to services and facilities where a recreational club restricts or qualifies access to its services or facilities, or gives preferences with respect to membership dues and other fees, because of age, sex, marital status or family status. Section 20 deals with shared accommodation; s. 21 deals with insurance contracts; s. 22 deals with employment advertising and other areas connected with employment opportunities.

   There are other provisions dealing with special employment by religious, philanthropic, educational, fraternal or social institutions; provisions with respect to membership in pension funds; and so on.

   Before proceeding further, I would like to deal with the contention that the Code is a document that predates the Canadian Charter of Rights and Freedoms and therefore cannot survive. It may or may not be vulnerable to attack under the Charter, but it is not accurate to say that it is a pre-Charter enactment or even a precursor of s. 15(1) of the Charter. The Charter (save for s. 15) was proclaimed in force on April 17, 1982, and the Code was proclaimed in June of 1982. It can hardly be suggested that the framers of the Code did not consider the provisions of the Charter which were widely discussed in the public debates leading to the repatriation of our Constitution. It was passed by joint resolution of the Canadian Parliament in December of 1981. The Charter itself is the successor to the Canadian Bill of Rights, R.S.C. 1970, App. III, proclaimed in force in 1972 by the Parliament of Canada and it provides that there are certain fundamental freedoms which "shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex".

   These are not new matters. Section 32(2) of the Charter provides that s. 15 is not to come into force for three years following the proclamation of the Charter (i.e., April 17, 1985). Section 33 sets out well-defined opting-out provisions for the Parliament of Canada and the Legislature of the various provinces. In my opinion, s. 15 of the Charter was deliberately postponed to provide a period of contemplation and adjustment, during which Legislatures, both federal and provincial, could conform to its strictures.

   The Code of this province clearly strives for a compromise between the proponents of sweeping anti-discrimination legislation on the one hand, and the concerns of bona fide groups concerned with developing their own social, religious, ethnic and sex-oriented groups. Section 1 of the Code was deliberately modified in its reach to accommodate these disparate concerns.

   It is now submitted by counsel for the appellant that s. 15(1) of the Charter permits no such modification as I have above referred to and contends that s. 19(2) of the Code must be struck down. While he does not say so because it is not necessary to his case, it follows that all or most of the above concessions to the uncompromising language of s. 1 of the Code would also have to give way to this concept of egalitarianism.

   I do not believe that the framers of our Charter contemplated the destruction of our social and educational fabric to the extent postulated by counsel. I believe it is recognized that discrimination is not just a dirty word; it is a word which should be carefully controlled within our social fabric. Most legislation that attempts to benefit one segment of society is discriminatory of those not the object of its beneficence. For example, legislation or practices favouring maternity leave discriminate against men and women who cannot take advantage of it. Child care institutions favour working mothers and yet are paid for by those who have no access to them. The baby bonus favours those with children but at the cost of us all. The list is endless.

   Not all discrimination is prohibited by the Code. I agree with the findings of Steele J. that s. 19(2) of the Code is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Charter.

   In any event, I do not see how s. 19(2) can be severed and struck down in isolation from the rest of the Code. It is difficult to believe that the cautious language of the Code referred to above was not deliberately enacted by our Legislature. It clearly is a careful first step. Counsel for the appellant stated that he wishes relief only as to s. 19(2), but I agree with Steele J. that this relief in isolation is not appropriate. There are too many qualifications in the Code to the anti-discrimination provision in s. 1 for any court to assume that the Legislature would have enacted the rest of the Code without this and other limitations: see A.-G. Alta. v. A.- G. Can., [1947] A.C. 503 at p. 518, [1947] 4 D.L.R. 1 at p. 11, [1947] 2 W.W.R. 401. The issue of young women athletes participating in what were once regarded as traditional male sports has assumed a high profile in our courts: see Re Cummings and Ontario Minor Hockey Ass'n (1978), 21 O.R. (2d) 389, 90 D.L.R. (3d) 568, 7 R.F.L. (2d) 359 (Div. Ct.), and Re Ontario Human Rights Com'n et al. and Ontario Rural Softball Ass'n (1979), 26 O.R. (2d) 134, 102 D.L.R. (3d) 303, 10 R.F.L. (2d) 97 (C.A.). It is difficult to believe that our Legislature was not fully aware of these cases when enacting the Code. In any event it is not the function of the Court to rewrite the Code. As was said by MacKinnon A.C.J.O speaking for this Court in R. v. Varga (1985), 18 C.C.C. (3d) 281 at p. 285, 44 C.R. (3d) 377, 13 C.R.R. 351:

   I do not believe that s. 24(1) was intended to grant to a court the power to amend legislation or introduce new legislation at its discretion and, in effect, rewrite the section. That is still, surely, Parliament's function.

In my opinion, striking down s. 19(2), which is an integral part of an elaborate series of qualifications to the language of s. 1 of the Code, would be no more justified than striking down other palliative provisions designed to protect recognized segments of our cultural mosaic. If s. 19(2) can be written out of the Code by judicial fiat, it is very apparent that many other sections are equally vulnerable.

   Before disposing of this matter, I feel compelled to say something with respect to the position of the Commission. It was very ably represented before us by counsel and I would not wish any of my comments to reflect unfavourably on her. She stated that she was appearing under instruction and maintained her position with considerable fortitude. I do not understand the instructions. She was instructed to appear before the Court of Appeal on an important constitutional matter and take the ingenuous position that she was not representing the Attorney-General for Ontario but only the Commission. The Attorney-General is the litigious arm of government and when properly served under s. 122 of the Courts of Justice Act, 1984 (Ont.), c. 11, as was the case here, its law officers should either appear or at least define the position to be taken by other law officers of the same government. In the case at bar, counsel for the Commission stated that she fully supported some utterance of the Attorney-General made to some unidentified group on some unspecified occasion to the effect that he favours the repeal of s. 19(2) of the Code. If this is in fact the position of the Ministry of the Attorney-General, it should not be put forward in this oblique manner. I recognize that the Commission is answerable to a different ministry, but it is unusual, to say the least, to have this type of representation where counsel simply states that (1) she is here because her client was named as a respondent and (2) her only knowledge of the statement attributed to the Attorney-General is that it appears in the appellant's material. No better explanation was given by anyone else.

   There is a considerable body of material before the Court supporting the argument that s. 19(2) is defensible under s. 1 of the Charter. Counsel for the appellant is ambivalent with respect to it. He argues that s. 19(2) is an instrument of discrimination under a prohibited head of s. 15(1) of the Charter and is therefore removed from the protection of s. 1 of the Charter. I do not accept that there cannot be evidence that would protect s. 19(2) of the Code. At the same time, I do not believe that a motion supported by affidavits and cross-examination on those affidavits is a proper forum for such an important adjudication. The Commission was created to provide this service and if it feels that the issue of a young woman playing hockey is of sufficient importance to warrant an appearance in this Court, it should have entertained the original application of Justine Blainey and provided the Court with some factual background to determine if there is a basis for a finding of discrimination. It appears, instead, to have thrown up its hands because it perceived (wrongly in my view) that it was excluded from any inquiry by virtue of s. 19(2) of the Code. I note further in the context of the inadequacy of the record before us that counsel for the intervenor in support of the appellant, Canadian Association for the Advancement of Women and Sport, complained of not being permitted to file material that he contended would support his submission. He was reduced to picking through a record, not of his own making, for factual support for his submissions.

   In point of fact, the bulk of the evidence put forward, notably the report submitted under the chairmanship of John Sopinka, Q.C., does not advance the position of the appellant or the Commission. It seems to call for more of the present treatment accorded female athletes, rather than an abolition of the system. It recommends that there be a "Coordinator of Equality of Opportunity in Athletics (Equality Coordinator)" and a "Coaching Coordinator" to increase the number of women participating in coaching development programmes. It emphasizes that funds should be provided to increase the number of female officials in amateur sports. It recommends in recreational community athletics that "integration of all events should be encouraged by government policy but not legislated". It states that:

... refusal to permit participation of a female in an athletic competition in the community which is otherwise a male event or vice versa shall not of itself constitute a denial of equality of opportunity.

Its specific recommendation with respect to s. 19(2) of the Code is not that it be repealed, but that it be made subject to a s. 19A, to read as follows:

   Section 19(2) -- Subject to Section 19A, the right under Section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex.

   The Human Rights Code, 1981, Chap. 53, S.O. 1981 is hereby amended by adding thereto Section 19A:

   (1) A Sports Governing Body or other recipient of public funds from whom any funds have been withheld or in respect of whom any order has been made by the Equality Coordinator appointed by the Minister of Tourism and Recreation may appeal such decision by delivering a written request to the Equality Coordinator requesting a hearing under this Act.

   (2) Within 10 days of the receipt of a written request under subsection (1), the Equality Coordinator shall file a complaint with the Commission setting out the grounds for the order or the decision withholding public funds.

   (3) Upon the filing of the complaint by the Equality Coordinator the Commission shall request the Minister to appoint a Board of Inquiry under Section 35.

   (4) The Board of Inquiry shall hear the complaint de novo.

   (5) Where a Board of Inquiry finds that there has been a denial of equality of opportunity to one of the sexes the Board may confirm the order or decision of the Equality Coordinator with or without variation.

   (6) Where a Board of Inquiry finds that there has not been a denial of opportunity to one of the sexes the Board shall rescind the order or decision of the Equality Coordinator.

   (7) The decision of the Board of Inquiry is binding on the Equality Coordinator, the Sports Governing Body, recipient of public funds or other party to the proceedings.

   (8) A denial of equality of opportunity to one of the sexes includes the following conduct:


(i)

Refusing to accord to one sex the opportunity to compete in a sport by either,


   (a)   providing a separate team which offers a comparable level of competition in the same sport or equivalent sport, or

     (b)   permitting integrated competition.

   A very distinguished Canadian athlete, Abigail Hoffman, was quoted at length in argument, but her evidence is not directed towards showing that a repeal of s. 19(2) would bring about a termination of the problems relating to female athletics. She testified that, as Director General of Sport Canada, she has the responsibility for directing some $50,000,000 into Canadian sports, all with a view to elevating these sports activities, particularly in the international field. It appears from her affidavit, and other material, that of this $50,000,000, about $1,000,000 goes to the Canadian Amateur Hockey Association (C.A.H.A.) made up of some 19 chapters. Counsel for the Canadian Women's Athletic Association stated that $10,000 of this went to an affiliate of the O.H.A.

   It is very difficult for me to see how this amount of money directed towards an established sport is going to give it any significant direction. Counsel for the Canadian Association for the Advancement of Women and Sport submits that this means the O.H.A. and the C.A.H.A. are government organizations, but this can hardly be the case. No amateur group can operate throughout Canada on the scale of the C.A.H.A. without taking advantage of public funds, but this does not turn it into an instrument of government. It seems to me that while Justine Blainey is put forward as a victim of the present system, the call on her behalf is for reform, not abolition. There is no factual basis for arguing that the problems of women athletes will disappear if s. 19(2) is struck down, rather it is suggested that a more regimented structure of supervision of all athletics, accompanied by more public funds, would prevent talented young persons like Justine Blainey from experiencing the frustration of being unable to develop fully their skills. The O.H.A., which has provided this service at minimal public expense since 1890, is simply to be replaced by yet another arm of government.

   My conclusion is that there has been no prima facie case made for striking down s. 19(2) of the Code. Additionally, there is no reason why the Commission should not carry out its statutory duty and investigate the complaint of the appellant that she is the subject of sexual discrimination. This section of the Code may or may not cause problems to young hockey players, but on the evidence presented before Steele J. it can be justified as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society.

   Since this appeal was argued, the Supreme Court of Canada released on February 28, 1986, its decision in R. v. Oakes [noted 53 O.R. (2d) 719n, reported 24 C.C.C. (3d) 321]. I have accordingly reviewed the evidence supporting s. 19(2) of the Code in the light of this comprehensive examination as to what is required of the proponent of legislation who attempts to defend it under the umbrella of s. 1. In my view the O.H.A. meets the tests of the Oakes case.

   The Oakes case must be read in conjunction with two other decisions of that Court, namely, Re Ontario Human Rights Com'n et al. and Simpsons-Sears Ltd. (unreported, released December 17, 1985 [since reported [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321]), and Bhinder et al. v. C.N.R. Co. (unreported, released December 17, 1985 [since reported 23 D.L.R. (4th) 481, 63 N.R. 185]). The latter two cases appear to distinguish between overt discrimination and discrimination, which while not on its face directed to a particular group, does in a job-related situation, in fact discriminate against a particular group because of its ethnic, religious or cultural traditions. In the case of overt discrimination, recourse can only be to s. 1 of the Charter as an "exclusive justificatory criteria ... against which limitations on ... rights and freedoms must be measured": see Oakes, p. 36 reasons [p. 345 C.C.C.]. On the other hand where the discrimination is not overt but

[i]n the case of discrimination on the basis of creed resulting from the effect of a condition or rule rationally related to the performance of the job and not on its face discriminatory a different result follows. The working rule or condition is not struck down, but its effect on the complainant must be considered, and if the purpose of the Ontario Human Rights Code is to be given effect some accommodation must be required from the employer for the benefit of the complainant.

(Simpsons-Sears, supra, p. 20 reasons [p. 552 S.C.R., p. 333 D.L.R.].)

   I find in the Oakes decision further support for my objection to the Commission's failure to undertake a full examination of the complaint submitted to it by Justine Blainey's mother. While it appears to me on its face that s. 19(2) of the Code sanctions overt discrimination on the basis of sex, this Court has no evidence as to which remedy contemplated by Simpsons-Sears is appropriate. Is s. 19(2) without redeeming merit or should the O.H.A. simply be directed to accommodate a gifted woman athlete? In the scheme of the Code and in the light of what has been recommended by the Sopinka Commission, the abolition of s. 19(2) seems a very blunt instrument where other accommodation appears reasonable.

   However, for better or for ill, that is not the issue put before this Court. Counsel for the appellant and the Commission assert that s. 19(2) of the Code violates the Charter and cannot be permitted to continue in force. While I recognize that the burden of supporting s. 19(2) rests on its proponents, the fact is that there is no persuasive evidence before the Court other than that supporting its protection under s. 1 of the Charter. Indeed, the appellant and the Commission made no serious attempt to attack the evidence justifying s. 1 (apart from the unattributed comment of the Attorney-General referred to above) and concentrated on their theme that s. 19(2) of the Code is indefensible under the Charter and recourse to s. 1 of the Charter is not available. This is entirely refuted by Oakes which makes it clear that strict criteria are necessary to invoke the protection of s. 1, but at no time suggests that it cannot, in appropriate circumstances, be a complete answer to either overt or "adverse effect discrimination" referred to in Simpsons-Sears: see Oakes reasons, p. 16 [p. 333 C.C.C.]. Rather Dickson C.J.C., speaking for the Court, makes the point at p. 36 of his reasons [p. 346 C.C.C.] that:

   The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s. 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter.

   The Chief Justice made it clear that these criteria impose a stringent standard of justification and he emphasizes that the onus of justification is on the proponent of the legislation on "a preponderance of probability". He stated at p. 40 [p. 348 C.C.C.] that the objective of the limiting legislation must be " 'of sufficient importance to warrant overriding a constitutionally protected right or freedom' ": R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 352, 18 D.L.R. (4th) 321 at p. 366, 18 C.C.C. (3d) 385. He then stated that [p. 348]: "The standard must be high in order to ensure that objections which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection." He proceeded to other justifications and subjustifications which in my respectful opinion do not advance the matter further than saying that the objectives of the impugned legislation must be more than "trivial" or ''arbitrary, unfair or based on irrational considerations" on the low order of the scale and on the high order (quoting R. v. Big M Drug Mart Ltd.) "of sufficient importance to warrant overriding a constitutionally protected right or freedom". The middle ground appears to be that it is ''commensurate with the occasion": Lord Denning in Bater v. Bater, [1950] 2 All E.R. 458 at p. 459 (C.A.).

   With great deference, I can think of no statute enacted by an elected Legislature or Parliament whose objectives can be stigmatized by the epithets "trivial", "unfair", or "arbitrary". Hopefully such legislation will never be passed and if it is, I question respectfully if it can be struck down on that account simply because a court takes this view of it. A more proper balancing would be to weigh the objectives of the legislation against the extent of the impingement of the freedom or right complained of.

   However, I must apply the Oakes test, and applying it in the light of the evidence put forward by the O.H.A. as a justification of s. 19(2) of the Code under s. 1 of the Charter, and balancing the effect of s. 19(2) against any fundamental freedom Justine Blainey may have under s. 15 of the Charter, I am in no doubt that the evidence supports the finding of Steele J. that s. 19(2) is no more than a reasonable limit prescribed by law that has been demonstrably justified in our society. Its objects are bona fide and are of the most serious. It attempts to introduce reasonable restraints to the unqualified egalitarianism of its own s. 1. It is properly regarded by some as a hesitant recognition of some of the more sweeping aspirations of those opposed to discrimination in any form, but it may on the other hand be more necessary than any of its critics realize to bring our society to the goal we all seek to achieve -- a fully free society where each and every one of us is judged on our merits and on nothing else.

   Accordingly, I would dismiss the appeal. Counsel for the appellant has asked for permission to speak to the question of costs and this issue should be reserved.

Appeal allowed.