Citation: French v. Nova Scotia (Human Rights Commission),
2012 NSSC 395
Date: (20121126)
Docket: Hfx. No. 334777
Registry: Halifax
Between:
Andrew French
Applicant
v.
NOVA SCOTIA HUMAN RIGHTS COMMISSION and DALHOUSIE UNIVERSITY
Respondents
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LIBRARY HEADING
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Judge: The Honourable Justice Pierre L. Muise
Heard: November 21, 2011 in Halifax, Nova Scotia
Counsel: Andrew French represented by Brian Casey
Human Rights Commission represented by Lisa Teryl
Dalhousie University represented by Rebecca Saturley
Summary:
Dr. French, a university professor, was forced to retire at age 65. At the time, s. 6(h) of the Human Rights Act, R.S.N.S. 1989, c. 214 (“HRA”), excepting any bona fide mandatory retirement plan (“MRP”) from the prohibition of discrimination in s. 5, was still in effect. Legislation repealing it had been passed at the time. However, it did not come into force until approximately one year after Dr. French’s forced retirement. Dr. French filed a complaint with the Human Rights Commission (the “HRC”). The Complaint alleged the MRP was not bona fide, and his forced retirement was prohibited discrimination, because: the pension plan, to which the mandatory retirement provision of the collective agreement referred, did not require retirement at a particular age, and the collective agreement was not freely negotiated; and, not all faculty were forced to retire at age 65. It did not allege that s. 6(h) was unconstitutional and invalid. The HRC dismissed the Complaint. It was not referred to a Board of Inquiry (“BOI”). Following the dismissal, he filed a Notice for Judicial Review. The grounds advanced included that the HRC erred in law in: finding there was no reasonable likelihood an investigation would reveal evidence of a contravention of the HRA; and, failing to find that s. 6(h) of the HRA is contrary to the Charter. By then, the provision repealing s. 6(h) had already come into force.
Issues:
1. What is the applicable standard of review?
2. Should the Court determine the merits of a ground for review which raises a question of constitutional validity not raised before the HRC?
3. If the Court should determine the constitutional ground for review, did the HRC err in law in failing to find that s. 6(h) of the HRA is contrary to the Charter?
4. Did the HRC err in law in finding there was no reasonable likelihood an investigation would reveal evidence of a contravention of the HRA?
Result:
1. The applicable standard of review was established in Halifax (Regional Municipality) v. Nova Scotia Human Rights Commission, 2012 SCC 10, as being that of reasonableness.
2. Dr. French did not establish that the interests of justice require the Court to determine the merits of his ground for review raising the question of constitutional validity not raised before the HRC. Therefore, the Court should not do so.
3. The second ground for review was treated as an allegation the HRC erred in failing to refer the constitutional question to a BOI. Even if the Court was of the view that it should determine the merits of the constitutional ground for review, it would find that the HRC did not err in failing to refer the constitutional question to a BOI. The constitutional question was not raised before the HRC. The binding effect of McKinney v. University of Guelph, [1990] 3 S.C.R. 229, which upheld the constitutionality of mandatory retirement of university professors, and, the requirement to pay due deference to the Legislature’s choice of implementation date, made it reasonable for the HRC to treat s. 6(h) as being constitutionally valid. The HRC is not automatically required to refer, to a BOI, a constitutional question. The HRC can, in exercising its screening function, decide whether or not to refer a constitutional question.
4. The HRC did not err in finding there was no reasonable likelihood an investigation would reveal evidence of a contravention of the HRA. It was reasonable for the HRC to: apply the test in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, in determining the bona fides of the MRP; treat the Collective Agreement and Pension Plan as combining to create the MRP; and, consider the MRP bona fide even though some of the other faculty members were not subject to the same MRP as Dr. French because of their prior employment and collective agreement. The reasons given by the HRC, and the reasons it could have given, in light of the Record, provide reasonable “justification, transparency and intelligibility within the [HRC’s] decision-making process” and the decision fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
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