State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations

I. STATE ACTION AND BACKGROUND RULES OF PROPERTY AND CONTRACT Consider the following cases: (1) A man employed by a private college informs his employer (in response to an inquiry) that he is gay. The employer fires him. The former employee sues the college, claiming that the college's action violates the nation's constitutional requirement that everyone be treated equally. (2) A hearing-- impaired person seeks medical care from a hospital, which indicates its willingness to provide the care on the condition that the patient provide, and pay for, a sign-language interpreter to assist in the delivery of the medical care. The patient sues the hospital, claiming that its refusal to provide service violates the constitutional norm of equality. (3) A group of farm workers organizes itself and approaches the workers' employer, seeking to bargain collectively over wages, hours, and conditions of labor. The employer refuses to bargain. The union sues the employer, claiming that the refusal to bargain violates the workers' constitutionally protected right of association. In each of these cases, the plaintiffs seek to invoke constitutional norms against a non-governmental actor. Constitutional systems address their ability to do so through the doctrines of state action or horizontal effect: The plaintiff loses if the defendant is not a "state actor," or if the constitutional system does not give constitutional guarantees direct horizontal effect. Another way of describing the cases is this: In each the defendant has acted in a manner authorized by background rules of property and contract, rules which have not been modified by legislation applicable to the action the defendant took.' The college relies on the employment-at-will doctrine; the hospital and the farm owner IMAGE FORMULA5 rely on the rule of contract law that no one is required to make a contract on terms other than those to which he or she agrees. The plaintiffs claim is therefore that the nation's constitution necessarily alters those background rules. The state action/horizontal effect doctrine identifies the circumstances under which such claims are legally valid. The Canadian Supreme Court's initial foray into the state action field involved the following facts: An employer locked out workers associated with a labor union The employer operated a delivery business primarily in Ontario, and it subcontracted for delivery services in British Columbia with another delivery business. The union wanted to picket the British Columbia business, and sought a declaration from the relevant labor board that the British Columbia business was an "ally" of the Ontario one. Such a declaration would have insulated the union from liability in tort for picketing at the British Columbia business. The labor board refused to make the requested declaration. The British Columbia business then obtained an injunction from a trial court against picketing, a remedy traditionally available to prevent the tort of inducing breach of contract. The union challenged the injunction as a violation of the right to freedom of expression guaranteed by the Charter of Rights. The Canadian Supreme Court held that the Charter did not apply to private litigation divorced completely from any connection with the Government.' The Court relied on a combination of textual and functional reasons in reaching this conclusion. Section 32 of the Charter states that the Charter applies "to the Parliament and Government of Canada and to the legislatures and governments of the Provinces in respect of all matters within their respective authorities." The natural reading of this provision, according to the Supreme Court, is that "government" refers to the executive branch, not to the government "in its generic sense-meaning the whole of the governmental apparatus of the state"5 including the judiciary; if the latter were the meaning, the specific mention of "Parliament" and "the legislature" would be unnecessary. …