This case challenged the provision of the Ontario Human Rights Code which permitted athletic organizations to restrict participation in athletic activities to persons of the same sex.
LEAF assisted with arguing the Charter points in the case before the Ontario High Court of Justice. LEAF also sponsored the intervention of the Canadian Association for the Advancement of Women and Sport before the Court of Appeal for Ontario.
Justine Blainey, a 12-year-old girl, was not allowed to play on a boys’ hockey team as the Ontario Hockey Association (OHA) and Canadian Amateur Hockey Association’s (CAHA) regulations only allowed boys to play in the league.
Ms. Blainey tried to file a complaint with the Ontario Human Rights Commission (OHRC), but the Ontario Human Rights Code specifically allowed athletic organizations to only allow persons of the same sex to participate in sports. As a result, the OHRC said it had no jurisdiction to hear her complaint.
Ms. Blainey applied to the Ontario High Court of Justice for a declaration that the provision of the Human Rights Code violated her equality rights under s. 15 of the Charter. The trial judge, however, said that the Charter did not apply to the OHA and the CAHA. Ms. Blainey appealed that decision to the Ontario Court of Appeal.
The Canadian Association for the Advancement of Women and Sport, sponsored by LEAF, intervened in the case to argue that the Charter did apply to the OHA and CAHA. The Charter applied to the “government”, which was not limited to acts of Parliament or provincial legislation. Instead, government embraced the creation and execution of government policies, including by sports organizations. As a result, sports organizations were required to respect women’s equality rights.
The Court of Appeal held that the Ontario Human Rights Code provision violated s. 15 of the Charter, as it discriminated based on sex. The Court did not agree that the Charter applied to the OHA and CAHA. However, by striking down the Human Rights Code provision, the Court opened the door for Ms. Blainey to pursue her complaint in front of the OHRC and for other challenges to sex discrimination within sports organizations.
LEAF is grateful to Mary Eberts, who appeared in the Ontario High Court of Justice to make Charter arguments. LEAF is also grateful to Donald J.M. Brown, counsel before the Court of Appeal for Ontario.
Download the Court of Appeal for Ontario factum here.
Read the Ontario Court of Appeal’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].