An ever-present issue in debates over constitutional law
doctrine in the United
States is whether corporations should be
capable of enjoying constitutional rights. Concern about the equation of
natural and legal persons is not unique to American jurists, however. A federal
court judge in Canada
has stated in strong terms that corporations are not entitled to the same
rights as individuals in administrative law
:
:
[35] While corporations no doubt face
potential economic consequences as a result of a regulatory board decision, and
may even lose goodwill associated with their name, these consequences are not
on a par with the impact a decision may have on the reputation of an individual
and its attendant consequences, both in terms of dignity and livelihood.
In that respect, it is quite telling that the Supreme Court [has] only referred
to the importance of the decision to the individual or individuals affected…As
a result, I agree with the Respondent that corporations are not entitled to the
same level of procedural fairness as individuals, and that tribunals charged
with regulating economic activity are not held to the same standards as
tribunals dealing with personal individual right…
I think de Montigny J. gets it wrong here. Doctrinally, this is
an application of the test laid out by the Supreme Court of Canada in Baker. An individual’s level of
entitlement to fair procedures is dependent on five factors, one of which is
the nature of the interest in question. It is this factor which the judge is
addressing in the quoted paragraph.
The line between individuals and corporations is a difficult
one to draw. Indeed, on some occasions, the corporate veil is lifted and the
corporation and its controlling mind(s) are one.
Indeed, regardless of whether corporations and their masters
are one and the same, individuals are invariably affected when by decisions
adverse to corporations’ interests. Shareholders may lose money. Employees may
lose their jobs. Consumers may lose the enjoyment of a favourite good or
service. If that is so, the argument that corporations should be subject to
reduced judicial protection is very weak. Corporations simply provide one means
for the actions of individuals.
Moreover, failure to treat corporations as the juridical
equal of ordinary people might retard the development of administrative law.
Labour unions have been of central importance in the development of judicial
review doctrine, in Canada,
the United States
and beyond. In fact, an important recent Canadian decision, in which the
Supreme Court clarified the appropriate standard of review of municipal by-laws,
was given in an action taken by a corporation. To reduce the protection
accorded to legal persons vis-à-vis natural persons would be to reduce the
incentives of corporations and labour unions to litigate important
administrative law cases.
Finally, the doctrinal support the judge offers for his
position is decidedly weak. One hopes that if and when the Supreme Court of
Canada clarifies the law in this area, it does not adopt an anti-corporate stance
which, although doubtless an attractive posture, is not a solid position.
Now, it may be that the judge was simply suggesting that
economic interests – regardless of whether they are enjoyed by individuals or
corporations – should count for less in a Baker
analysis. There may be something to commend this more modest position. But even
then, courts should not lose sight of the interests of individuals who rely on
corporations to serve their interests.
