Author ORCID Identifier

Kate Glover Berger: 0009-0001-2177-8220

Document Type

Article

Publication Date

9-23-2025

Keywords

Constitutional Law, Canadian Charter of Rights and Freedoms, Application of the Charter

Abstract

The Eldridge framework, a stable feature of Canadian Charter jurisprudence for decades, sets out part of the framework for determining when entities or activities qualify as “government” under section 32(1), the Charter’s application section. In light of this stability, the Supreme Court of Canada’s analysis of the section 32(1) issue in York Region District School Board v Elementary Teachers Federation of Ontario was surprising. It raised the question: Why did the Court in York Region deviate from well-settled law on the Eldridge framework and, in the process, seemingly change the framework’s thresholds? This question arises because the Court in York Region does not acknowledge or explain its departure from settled law. This, in turn, raises another question: What is the impact of York Region on the Eldridge framework and on the interpretation of section 32(1) in future cases?

In response, this paper argues that York Region should not be read to lower the threshold for what counts as “government” under the first branch of the Eldridge framework or as diminishing the deliberation expected in applying the framework. Instead, the Court’s analysis of the section 32(1) issue in York Region rests on a common but flawed premise: that Eldridgegoverns every inquiry into whether an entity is “government” under section 32(1). To identify and overcome this flawed premise, this paper maps the structure of a complete section 32(1) analysis and argues that, properly understood, Eldridge is neither the first step in the section 32(1) analysis nor a necessary step. Rather, the Eldridge framework is the final step in the analysis, engaged only when the entity in question does not fall within an established category of “government”.

The paper goes on to explain the analytical path that the Court should have followed in York Region when concluding that Ontario’s public school boards are “government” and thus bound by the Charter. In this sense, York Region highlights not a doctrinal shift in the law of section 32(1) of the Charter, but rather the need to clarify and discipline the use of Eldridge in future cases.

Comments

"This paper is forthcoming in an upcoming issue of the Supreme Court Law Review edited by Benjamin Berger, Sonia Lawrence, and Emily Kidd White. This version incorporates revisions in response to editorial and peer review comments. It has not yet been subject to copy editing or final review for publication. Please do not cite without the author’s permission."

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