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Justine Blainey
Re Blainey and the Ontario Hockey Association et al. (1986), 54 OR (2d) 513 (CA)
Facts
Justine Blainey, a 13-year-old girl with outstanding athletic skills, had won a spot to play for a boys’
Minor Peewee “A” hockey team in the Metro Toronto Hockey League, a division of the Ontario
Hockey Association (OHA). Blainey was accepted by her male teammates and had competed in
four exhibition games in which body-checking was allowed. She wanted to continue playing for
her team in the regular schedule, but she needed to register as a member of the OHA. The OHA is
a private organization with detailed regulations regarding competition, playoffs, discipline of players
and clubs, and players’ qualifications. OHA policy prohibited females from playing on male teams,
except where there was no comparable all-female team in the area. In Justine’s case, there was a
girls’ hockey team on which she could play.
Justine and her mother filed a complaint with the Ontario Human Rights Commission, alleging that she was being discriminated against because of her sex.
Section 1 of the Ontario Human Rights Code (OHRC) states: “Every person has a right to equal
treatment with respect to services, goods, and facilities, without discrimination because of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status or handicap.” But s. 19(2) of the Code also states: “The right under section 1 to equal treatment with respect
to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex.” Because of these provisions,
the Commission had no jurisdiction to consider the complaint, because matters in s. 19(2) of the
Code were not meant to be covered by s. 1.
Blainey then brought her case to the Superior Court of Ontario on the basis that s. 19(2) of the
Ontario Human Rights Code violated the equality rights provision in s. 15 of the Charter. In September 1985, the court ruled that the disputed section of the Code permitting sex discrimination in
athletics organizations violated the Charter, but that the violation was a reasonable one under s. 1.
The Blaineys appealed this decision to the Ontario Court of Appeal. The appeal was allowed
and, in a 2–1 judgment, the trial decision was overturned. The court’s majority decision concluded
that s. 19(2) of the OHRC was inconsistent with s. 15 of the Charter and was, therefore, unconstitutional and of no force or effect. In June 1986, the OHA’s request for leave to appeal to the Supreme
Court of Canada was denied.
The case then went back to the Human Rights Commission so that Blainey could be awarded
an appropriate remedy for the discrimination she had suffered. As well, the Commissioner found
that Blainey’s constitutional rights had been infringed when she was not allowed to play on a boys’
hockey team.
Copyright © 2004 Emond Montgomery Publications Ltd. This page may be reproduced for classroom use.
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Justine Blainey (continued)
Questions
1. Why was the Ontario Hockey Association so concerned about mixed teams?
2. If you had been the judge deciding this case, which viewpoint would you have supported:
Blainey’s desire to play in the boys’ league, even for a brief time, or the wishes of the Ontario
Women’s Hockey Association (OWHA) to protect girls from exploitation by boys’ hockey
teams and to run full hockey programs for girls? Explain.
3. Why did the Superior Court of Ontario rule that s. 19(2) of the Ontario Human Rights Code
did not apply to this action?
4. Why did the trial judge rule that the Human Rights Code provision allowing athletic discrimination is, and can be, justified?
5. Why did the Court of Appeal overturn the trial judgment?
Note
Section 15 of the Charter is intended primarily to help disadvantaged persons and groups. The equality
concept is the same under the Charter and human rights legislation. But equality under the Charter
involves state action; in human rights legislation, equality involves actions against individuals and
institutions.
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BLM 6-1
Solutions
Re Blainey and the Ontario Hockey Association et al. (1986), 54 OR (2d) 513 (CA)
1. The OHA was concerned about mixed hockey teams because it felt such a move would undermine the development of girls’ hockey if the better-qualified girls went to play on boys’ teams.
Also, it was concerned about the safety of the girls, because boys generally tended to be bigger,
stronger, and more aggressive. There was a moral issue in that, at a certain age, boys should not
be playing on the same teams as girls, because girls reach puberty earlier.
2. Answers will vary. Points to consider:
• How safe are girls playing on boys’ teams?
• How will girls’ teams be affected if the better-qualified girls play on boys’ teams?
• What will be the effect on boys’ teams of girls playing alongside them?
• If girls are allowed to play on boys’ teams, should boys be allowed to play on girls’ teams?
Note: The Board of Inquiry found that the OWHA was an affirmative action program under
s. 13 of the Ontario Human Rights Code. As a result, while girls had the right to play on boy’s
teams, girls’ teams could continue to restrict their membership to their own sex.
3. The Ontario Superior Court ruled that s. 19(2) of the Ontario Human Rights Code did not
apply in this case because the Charter applies only to government actions, not to private
actions. The OHA is a private organization, and the court had no authority under the
Charter to intervene.
4. The trial judge ruled that the athletic discrimination could be demonstrably justified under s. 1
of the Charter, because the restriction was a reasonable one to assist the development of girls’
hockey in overcoming girls’ disadvantages in that sport.
5. The majority of the Court of Appeal overturned the trial judgment because s. 19(2) of the
Human Rights Code was clearly inconsistent with s. 15 of the Charter. Individuals like Justine
Blainey, who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity, can be treated differently because of
their sex. Females alone are denied the right to participate in athletic activities under s. 19(2).
Students may wish to debate the reasonableness of this situation.
Copyright © 2004 Emond Montgomery Publications Ltd. This page may be reproduced for classroom use.
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