Comments on: The Sky’s the Limit…But Not If You Are a Female Ski Jumper: Sagen v. VANOC

By: Christine Kellowan

Christine Kellowan — Wed, 25 Nov 2009 22:04:39 +0000

Thanks for the feedback. My first comment too! I admit the argument is tenuous and reaching. I proposed this sort of maneuvering because it seems as though the issues have been constructed so as to oust the Charter. I was reminded of the corporate veil argument because of the Court of Appeal emphasized how the government had no control over the matter, when the latter knew from the start what it was getting into. It knew that the IOC required that it maintain absolute discretion over certain subject areas eg. the selection of events. It also knew that it had obligations under the Charter. I considered the corporate veil argument because it would knock out VANOC as an intermediary that is shielding the government from its initial decisions. It provides a different perspective on the matter. I do agree with your comments that the current tests are more than sufficient to do the job. My purpose in bringing in corporate law was to get people thinking of the case from another angle, rather than stopping the analysis when a corporation comes into play. The corporate veil argument seemed to illuminate a dimension of the case that was being downplayed by the lower courts.

There should be serious consideration of domestic legislation when the government, in conjunction with other actors, chooses to undertake obligations with private international organizations that engages the public in such a significant way. I guess I would not have responded to the case in the way that I did if there had been at least an acknowledgment of the responsibility to uphold the Charter. I’m not saying that every private agreement between the government and a private organization will be subject to the Charter. Where the public is implicated in such a significant way, as here, there should be a point where the government should stop and assess whether it is upholding its obligations to the Charter vis-a-vis the public.

By: Ahsan Mirza

Ahsan Mirza — Wed, 25 Nov 2009 14:34:30 +0000

Thanks for this analysis of the VANOC decision. I don’t think I fully comprehend your argument about peircing the corporate veil though. I feel that your analysis is not fully fleshed out.

First, you don’t need to borrow the corporate veil concept to find a corporation to be governmental in nature or in a given activity. An example is municipal corporations. In other cases, if a government is exercising sufficient control of a corporation, it could be considered a governmental entity, or could be governmental within the scope of the activity it is engaged in. The Governments of BC and Canada are not in control of VANOC even if you “pierce the corporate veil.” Thus you could not direct liability (or in this case a Charter violation) towards the government. In fact, if the government was exercising control over the entity you wouldn’t need to borrow the corporate law concept because the control would be sufficient to find VANOC a governmental (government-like) entity.

Second, courts are very reluctant to pierce the corporate veil in commercial cases. It is usually where the corporation is set up as a sham or where the persons in control of the corporation expressly use it for wrongful purposes (fraud or acts nearing fraud). I don’t see VANOC’s role in this case being that of expressly perpetrating the Charter violation.

I think the Charter application questions of establishing that an entity is governmental in nature or is sufficiently influenced by the government to be considered governmental in the scope of providing certain services is possibly an easier threshold to meet than convincing the court to pierce the corporate veil, find that a governmental actor is sitting behind a sham corporation, and hold that actor directly liable. I don’t see the utility of borrowing the corporate law concept here.