Gender and Equality: Sagen v VANOC [2009] BCCA 522

Abstract

Six months or so before the staging of the Winter Olympic and Paralympic Games of 2010 in Vancouver, Canada, the appellants, internationally ranked women ski jumpers, brought an application against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“VANOC”) seeking a declaration that if VANOC planned for the staging of ski jumping events for men at the 2010 Winter Olympic Games, then a failure to plan a ski jumping event for women would violate their equality rights, as guaranteed under the Canadian Charter of Rights and Freedoms (“the Charter”). The two central issues in the proceedings were did the Charter apply generally to the claim of gender discrimination advanced by the appellants against VANOC and, if so, then, specifically, was VANOC breaching section 15(1) of the Charter by staging men’s, but not women’s, ski jumping events at the 2010 Olympic Games? Section 15(1) of the Charter holds that, “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”. The trial judge, in the Supreme Court of British Columbia, found that (a) hosting and staging the 2010 Olympic and Paralympic Winter Games was a “governmental activity” being performed by VANOC and that VANOC was, therefore, subject to the Charter; (b) that VANOC planned to host ski jumping events for men but not for women; and (c) that this differential treatment discriminated against the female skiers in a substantive sense. The trial judge nevertheless concluded that no violation of section 15(1) of the Charter had occurred. The Court of Appeal dismissed the skiers’ subsequent appeal holding that the Charter did not apply to the selection of events for the 2010 Olympic Games and that, even if it did apply, the failure to include the women’s ski jumping event would not constitute a breach of section 15(1).