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
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
INTRODUCTION
[1] The Applicant, Dr. Andrew French, was a professor and researcher at the University of Alberta from 1970 to 1995. On January 1, 1995 he was appointed to a tenured professor position at Dalhousie University (“Dal”).
[2] He reached the age of 65 on February 20, 2008; and, was required to retire on July 1, 2008.
[3] During that period of time, clause 24.04 of the collective agreement between Dalhousie and the Dalhousie Faculty Association (“Faculty Association”) (“Collective Agreement”) provided that: "All Members shall retire at the end of the academic year in which they have reached the age of sixty-five years, as determined in accordance with the Dalhousie University Staff Pension Plan (“Pension Plan”) … .” That clause also provided an exception for those Members who had been employees of the Technical University of Nova Scotia (“TUNS”) and met certain other criteria. That exception did not apply to Dr. French.
[4] The Pension Plan provided that, for employees hired on or after July 1, 1964, the "Normal Retirement Date” was the first day of July, immediately following the employee’s 65th birthday.
[5] The combination of those provisions was interpreted as requiring Dr. French to retire on the 1st day of July following his 65th birthday. He attained age 65 on February 20, 2008. Therefore, his mandatory retirement date was July 1, 2008.
[6] In April, 2008, Dr. French contacted the Nova Scotia Human Rights Commission (“ HRC”) regarding his concerns that his forced retirement was discriminatory. He was forced to retire on July 1, 2008. He then filed a complaint, dated Dec 8, 2008, with the HRC, alleging age discrimination contrary to s. 5 of the Human Rights Act, R.S.N.S. 1989, c. 214. In that complaint, he alleged that: Dalhousie’s mandatory retirement policy was not a “bona fide plan, scheme or practice of mandatory retirement” pursuant to s. 6(h), nor a “bona fide retirement or pension plan” pursuant to s. 6(g); and, therefore, his forced retirement constituted discrimination on the basis of age, in violation of section 5(1)(d)(h) of the Act. At the time, both of s. 6(g) and s. 6(h) were in effect and created exceptions to the prohibition against age discrimination in s. 5.
[7] The HRC dismissed Dr. French’s complaint on the basis that there was “no reasonable likelihood that an investigation [would] reveal evidence of a contravention of” the Human Rights Act. Dr. French filed a Notice for Judicial Review of that dismissal on August 23, 2010.
[8] Dr. French did not expressly raise the issue of the constitutionality of either of these two exceptions in the proceedings before the HRC. The first time he expressly raised that issue was when he filed the Notice for Judicial Review herein. The Notice alleges, as the second ground for review, that:" The commission erred in law in failing to find that s. 6(g) and 6(h) of the Human Rights Act are contrary to the Charter.”
[9] Then, on August 24, 2010, he filed an application for an order declaring ss. 6(g) and 6(h) contrary to s. 15 of the Charter of Rights and Freedoms, and unconstitutional.
[10] By order of Justice LeBlanc, issued Feb 28, 2011, it was directed that the application be heard, together with the within judicial review, one after the other, by the same judge, with this application being heard first. Those hearings took place on November 22, 2011.
[11] By the time French filed the Notice for Judicial Review, the Nova Scotia Legislature had already proclaimed into force legislative changes affecting these exceptions. On April 12, 2007, the Nova Scotia Legislature passed legislation (Bill 163, An Act Respecting the Elimination of Mandatory Retirement, S.N.S. 2007, c. 11) which eliminated the s. 6(h) exception, and removed retirement plans as an exception under s. 6(g). Initially, it had been proposed in Bill 63 that these changes were to come into force one year after Royal Assent (which was given April 13, 2007). By the Third Reading, the coming into force date was extended to on or after July 1, 2009. The changes were proclaimed in force on July 1, 2009.
[12] In the brief filed and the oral submissions made on his behalf, Dr. French indicated he was only challenging the constitutionality of s. 6(h) of the HRA. He indicated that section 6(g) was inapplicable. Therefore, his second ground of review is now limited to an allegation that the HRC erred in law in failing to find that s. 6(h) of the HRA is contrary to the Charter.
[13] Before turning to the merits of the second ground I will have to determine whether Dr. French can properly raise this constitutional question for the first time on judicial review.
[14] Dr. French’s first ground of review is that: “The Commission erred in law in finding there was no reasonable likelihood an investigation would reveal evidence of a contravention of the Human Rights Act”.
ISSUES
[15] This judicial review requires this Court to determine the following broad 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?
LAW AND ANALYSIS
[16] Prior to examining each of these issues, there is an evidentiary point to be addressed.
[17] Dr. French filed an affidavit sworn by himself, and an affidavit sworn by David MacGregor. Both affidavits included the style of cause for this judicial review and for the application challenging the constitutionality of s. 6(h).
[18] Civil Procedure Rule 7.27 provides that:
“(1) A party who proposes to introduce evidence beyond the record on a judicial review … must file an affidavit describing the proposed evidence and providing the evidence in support of its introduction.
….
(3) A motion for permission to introduce new evidence must be made at the same time as the motion for directions, unless a judge orders otherwise.”
[19] In the case at hand, no motion for permission to introduce evidence on the judicial review, beyond the record, was made before Justice LeBlanc, who heard the motion for directions, nor before me. Justice Leblanc gave directions for filing of affidavits on the constitutional application only. The affidavits do not raise issues of: excess or want of jurisdiction based on lack of supporting evidence; fraud; or, denial of natural justice. [ See Keeeprite Workers’ Independent Union v. Keeprite Products Ltd., [1980] O.J. No. 3691 (C.A.); and, Communications, Energy and Paper Workers Union, Local 440 v. Kimberley-Clark, Nova Scotia, [2000] N.S.J. no. 94 (N.S.S.C.), paragraphs 35 to 37.] There was no indication the HRC refused to receive factual information. [See MacDonald v. Nova Scotia (Workers’ Compensation Board) (1995), 145 N.S.R.(2d) 301 (N.S.S.C.), at paragraph 34.] It was not claimed that the Record was missing information that had been before the HRC. [See Riley v. Nova Scotia (Minister of Community Services), 2011 NSSC 387, paragraph 12.]
[20] Therefore, I have based this review on the record, not the affidavits filed.
1. What is the applicable standard of review?
[21] The Supreme Court of Canada, in Dunsmuir v New Brunswick, 2008 SCC 9, determined that there are now only two standards of judicial review, “correctness and reasonableness”. [Paragraph 45]
[22] At paragraph 62, the Court summarized the two step approach to determining the appropriate standard of review as follows:
“First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.”
[23] Those factors are outlined at paragraphs 52 to 56.
[24] At paragraphs 58 to 61, the Court gave examples of types of questions where the “jurisprudence [had] already determined in a satisfactory manner the degree of deference to be accorded”. The example provided at paragraph 58 was that: “[C]onstitutional questions regarding division of powers …, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution.”
[25] The Supreme Court of Canada, in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission, 2012 SCC 10, determined that the standard of judicial review of referral decisions by the HRC was that of reasonableness.
[26] At paragraphs 44 and 45, the Court elaborated on the nature of that standard as follows:
Reasonableness as a standard of review reflects the appropriate deference to the administrative decision maker. It recognizes that certain questions that come before administrative tribunals do not lend themselves to a single result; administrative decision makers have “a margin of appreciation within the range of acceptable and rational solutions”: Dunsmuir, at para. 47 (emphasis added). Reasonableness is a concept that must be applied in the particular context under review. The range of acceptable and rational solutions depends on the context of the particular type of decision making involved and all relevant factors: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, at paras. 17-18 and 23. As was said in Khosa, reasonableness is a single concept that “takes its colour” from the particular context: para. 59. In this case, both the nature of the Commission’s role in deciding to move to a board of inquiry and the place of that decision in the Commission’s process are important aspects of that context and must be taken into account in applying the reasonableness standard.
In my view, the reviewing court should ask whether there was any reasonable basis on the law or the evidence for the Commission’s decision to refer the complaint to a board of inquiry. This formulation seems to me to bring together the two aspects of the jurisprudence to ensure that both the decision and the process are treated with appropriate judicial deference.”
[Emphasis by underlining added.]
[27] At paragraph 58, the Court stated:
“It is not this Court’s role to assess the complaint. This Court’s role is limited to assessing the commission’s decision to refer the complaint to a board of inquiry.”
[28] The Court’s determination of the applicable standard of review was based in part on the nature of a referral decision by the HRC. At paragraphs 19 to 21 and 23 to 25, the Court described the nature of such a decision as follows:
“[19] … The Commission’s decision to refer a complaint to a board of inquiry is not a determination of whether the complaint falls within the Act. Rather, within the scheme of the Act, the Commission plays an initial screening and administrative role … .
[20] … [T]he Commission performs a number of functions related to the enforcement and promotion of human rights. With regard to complaints, it acts as a kind of gatekeeper and administrator. …
[21] Where a complaint is not settled or otherwise determined, the Commission may appoint a board of inquiry to inquire into it: s. 32A(1). The Commission has a broad discretion as to whether or not to take this step. The Commission may do so if it ‘is satisfied that, having regard to all circumstances of the complaint, an inquiry thereinto is warranted’: Boards of Inquiry Regulations, N.S. Reg. 221/91, s. 1. There is no legislative requirement that the Commission determine that the matter is within its jurisdiction or that it passes some merit threshold before appointing a board of inquiry; the Commission must simply be ‘satisfied’ having regard to all the circumstances of the complaint that an inquiry is warranted.
….
[23] What is important here is that a decision to refer a complaint to a board of inquiry is not a determination that the complaint is well founded or even within the purview of the Act. Those determinations may be made by the board of inquiry. In deciding to refer a complaint to a board of inquiry, the Commission’s function is one of screening and administration, not of adjudication.
[24] … While there is some limited assessment of the merits inherent in this screening and administrative role, the Commission is not making any final determination about the complaint’s ultimate success or failure … .
[25] … It is up to the Commission to perform an initial investigation of a complaint and decide whether or not an inquiry is warranted in all of the circumstances.”
[Emphasis by underlining and bolding added.]
[29] H.R.M. v N.S.(H.R.C.) dealt with a review of a decision that a BOI should be appointed. However, in my view the same deference is to be accorded to decisions dismissing complaints. That view is supported by the inclusion of the words “or not” in paragraph 21, and of the words “or failure” in paragraph 24.
[30] The Court rejected “the proposition that neat and discreet points of law on which referral decisions rely are reviewed for correctness”. [See paragraphs 27, 33, 34, 40 and 41.] H.R.M. had relied on Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756 in putting forward that proposition. In Bell (1971), the Court determined that the question of whether “premises were ‘self-contained’ [for the purposes of s. 3 of the Ontario Human Rights Code] was a preliminary jurisdictional question on which the courts owed no deference”. [H.R.M. v N.S.(H.R.C.) paragraph 34] The Court in H.R.M. v N.S.(H.R.C.) held that aspect of Bell (1971) should no longer be relied upon.
[31] In the case at hand, the decision not to refer revolved around whether Dal’s mandatory retirement plan was bona fide. The HRC’s approach to that issue is to be reviewed on the standard of reasonableness, not correctness.
[32] The reasonableness standard applies to both the decision-making process, and its outcome. Dunsmuir, at paragraph 47, highlighted that point as follows:
“[C]ertain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[33] However, the HRC, need not give extensive reasons for dismissing a complaint. In Green v. Nova Scotia (Human Rights Commission), 2011 NSCA 47, the only reason given by the HRC for dismissing Ms. Green’s complaint was that it was “without merit”. That is one of the categories of circumstances, listed in s. 29(4) of the HRA, in which the HRC may “dismiss a complaint”. The Court, at paragraphs 40 to 42, stated:
“[40] The absence of any legislative requirement for written or extensive reasons beyond those in s. 29(4) of the Act, the omission of any appeal process, the screening and administrative function performed by the Commission at this stage, and its inclusion of public policy considerations when it chooses, all support the Chambers judge’s determination that the Commission is not obliged to give fuller reasons explaining its decision to dismiss a complaint.
[41] According to the record, the Commission considered all the material, including the submissions of the parties, relating to the appellant’s complaint against the University. Its dismissal of her complaint as “without merit” falls within one of the subcategories in s. 29(4) where it may exercise its discretion to dismiss. Its decision revealed not only what the Commission decided, namely, dismissal of the complaint, but also why, namely, having assessed the evidence, the Commission did not consider it sufficient to warrant referral to a board of inquiry.
42] As in Gardner, the appellant here was intimately involved in the process leading to the Commission decision not to refer her complaint to a board of inquiry. She had not only the Investigator’s Report, but the University’s response. By making written submission in respect to that response, the appellant effectively had the last word. As a result of her active participation, she was aware of all the arguments before the Commission and had the means to know why the Commission reached the decision it did.”
[34] Therefore, articulated reasons will be sufficient if, combined with the complainant’s knowledge of the process leading to the decision, they reveal why the HRC decided as it did.
2. Should the Court determine the merits of a ground for review which raises a question of constitutional validity not raised before the HRC?
[35] For the reasons I outlined in paragraphs 18 to 41 of French v. Nova Scotia (Attorney General) et al., 2012 NSSC 394, I found that Dr. French had not raised the question of the constitutionality of s. 6(h) of the HRA before the HRC. He now advances, as a ground for review, that the HRC ought to have found s. 6(h) unconstitutional. Should this Court determine the merits of this ground for review?
[36] In Singh v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2008 CarswellOnt 368 (O.S.C.J., D.C.), the Court refused to determine a constitutional question raised for the first time on review, stating, at paragraph 40:
“No explanation was provided as to why it was not raised at the Tribunal. The applicant has not satisfied the onus of demonstrating that the interests of justice require this Court to entertain the submission on a judicial review application.”
[37] In the case at hand, Dr. French suggested that he could not be expected to raise the constitutionality of s. 6(h) before the HRC because Karin McLay’s e-mail of December 8, 2008 informed him that: “only factual allegations should be included in a complaint form”, and, the Human Rights Officers “generally don’t make a statement regarding how a statutory requirement is legally interpreted”. For the reasons noted at paragraphs 22 and 23 of French, I found that: those comments did not affect the content of his complaint; and, the content of his complaint and submissions revealed he felt free to advance legal arguments. Consequently, I find that Dr. French has provided no valid explanation for failing to raise the constitutional issue before the HRC.
[38] In addition, he has not shown that the “interests of justice require” this Court to determine the question despite it not having been raised before the HRC.
[39] He pointed out that a constitutional question can be raised before the BOI even if not raised before the HRC. However, that is only true if there is a referral. It does not excuse the failure to raise the constitutional question before the HRC. It does not require this Court, in the interests of justice, to consider such a question raised for the first time on review. This Court’s role is to review the decision of the HRC. As noted at paragraph 58 of H.R.M. v. N.S.(H.R.C.): “It is not this Court’s role to assess the complaint.” The HRC made no decision regarding any challenge to the constitutionality of s. 6(h). Therefore, this Court would be stepping beyond its role if it reviewed something in relation to which no decision was made.
[40] Dr. French did not challenge the constitutionality of s. 6(h) at any point prior to August of 2010. By then, s. 6(h) had already been repealed for over a year. He had ample opportunity, prior to the coming-into-force of the repeal, to allege that he should not be subject to the provisions being repealed after his mandatory retirement date.
[41] Therefore, in my view, the circumstances of the case are not such that the “interests of justice require” this Court to determine the constitutional question raised for the first time on this review, and this court should not do so.
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 ?
[42] Given my conclusion that I should not entertain, on review, the constitutional question raised for the first time on review, I need not address the question of whether the HRC erred in law in failing to find that s. 6(h) of the HRA was contrary to the Charter. However, I will briefly address the question.
[43] First of all, the parties agree, and H.R.M. v. N.S.(H.R.C.), at paragraph 50, confirms, that the HRC does not have the authority to determine constitutional questions. Therefore, it could not make such a finding. Consequently, I will treat this ground of appeal as being an allegation that the HRC erred in failing to refer the question of the constitutionality of s. 6(h) to a BOI.
[44] For the reasons outlined at paragraphs 113 to 122 of French, I would determine that s. 6(h) remained constitutionally valid until the coming-into-force of the legislation repealing it. Those reasons included: 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 which has not been overruled; and, the requirement to pay due deference to the Legislature’s choice of implementation date.
[45] In addition, for the reasons noted at paragraph 40 of French, I find that the HRC would not automatically be required to refer, to the BOI, a constitutional question, simply because it does not have the jurisdiction to determine such a question. The HRC can still, in exercising its screening function, decide whether or not to refer a constitutional question.
[46] Therefore, in my view, the HRC did not err in failing to refer the question of the constitutionality of s. 6(h) to the BOI.
4. Did the HRC err in law in finding there was no reasonable likelihood an investigation would reveal evidence of a contravention of the Human Rights Act?
[47] S. 29(4)(f) of the HRA provides that: “The Commission or Director may dismiss a complaint at any time if there is no reasonable likelihood that an investigation will reveal evidence of a contravention of this Act.”
[48] Krista Daley, Director of the HRC (“Director”), provided her decision dismissing Dr. French’s complaint by letter dated July 20, 2010. The letter stated that the complaint was being dismissed under s. 29(4)(f) as there was “no reasonable likelihood that an investigation [would] reveal evidence of a contravention of the Human Rights Act”.
[49] The decision itself provides, for the most part, reasonable “justification, transparency and intelligibility within the decision making process”. It does not expressly address Dr, French’s apparent allegation that Dal’s mandatory retirement plan is not a bona fide plan because faculty members “paid through external agencies”, such as “members of the Canada Research Chairs program”, are not forced to retire at age 65. I will revisit this point later. However, the decision responds expressly to many of Dr. French’s allegations and submissions.
[50] The Collective Agreement provided that: "All Members shall retire at the end of the academic year in which they have reached the age of sixty-five years, as determined in accordance with the Dalhousie University Staff Pension Plan.” Rule 1(z)(ii) of the Pension Plan defined “normal retirement date” as “the 1 July following the 65th birthday for a person who became an employee of the Employer on or after 1 July 1964”. Dr. French was hired in 1995.
[51] Dr. French argued, before the HRC, based on the PEI board of inquiry decision in Nilsson et al. v. The University of Prince Edward Island, that Dal’s mandatory retirement plan was not bona fide because: the Pension Plan associated with it did not provide for mandatory retirement; and, the Collective Agreement was “imposed” by Dal, rather than being “freely negotiated”.
[52] The Director stated:
“[T]he PEI board of inquiry decision in Nilsson et al. v. UPEI is not binding on Nova Scotia, nor is it persuasive in view of the Supreme Court of Canada’s decision in Potash which bears directly on the issue and is binding in Nova Scotia.”
[53] She concluded:
“Although the collective agreement stipulates mandatory retirement and the pension plan only stipulates the ‘normal age of retirement’, these documents together are considered to be the retirement plan since they are closely intertwined.”
[54] In my view these statements reasonably articulate her reasons, and are “within a range of possible, acceptable outcomes”. It was reasonable for her to apply the Potash test to the retirement plan. A retirement plan need not be completely contained in one document. It was reasonable for her to treat the Pension Plan as complementing the Collective Agreement to complete Dal’s retirement plan.
[55] The passage Dr. French cited from Nilsson in relation to the lack of a “freely negotiated” mandatory retirement clause states:
“[I]n Dickason, the Supreme Court of Canada held that a collective agreement may be considered as evidence of reasonableness if it can be shown that the agreement was freely negotiated by the parties with relatively equal bargaining power.
…
The evidence before the panel shows that the policy of mandatory retirement was not negotiated. It was imposed by the university.”
[56] Nilsson relied on New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45. However, this passage appears to ignore the direction in Potash that the “reasonableness” component required in an assessment of whether an “occupational requirement” is “bona fide” does not apply to an assessment of whether a retirement or pension plan is “bona fide”. [See paragraphs 5 to 11 of Potash.]
[57] Further, it would have been reasonable for the Director to reject the argument that the Collective Agreement was not freely negotiated and that mandatory retirement was imposed. A collective agreement, by its nature, is an agreement reached between the parties. Each party may agree to the inclusion of something it does not want included in exchange for the inclusion of something it wants. That does not render the item it compromised on something that has been “imposed”. If the parties negotiating a collective agreement cannot reach a consensus, the employees can strike. In my view, the bargaining power of each party would have been such that it is reasonable to conclude the mandatory retirement clause was negotiated, not imposed.
[58] These are additional reasons the Director could have given for rejecting the approach in Nilsson as raising a legitimate issue requiring further investigation. “Deference extends to reasons that could be offered.” [See Dunsmuir, paragraph 48; and, Green, paragraph 23.]
[59] Dr. French also argued that Dal’s mandatory retirement plan was not a bona fide plan because it did not treat all of its faculty equally. One example he gave is that:
“[T]he legislation that created the merger between the Technical University of Nova Scotia (“TUNS”) and Dalhousie allowed former TUNS employees to remain in the Public Service Pension Plan (“PSPP”). When the civil service abolished mandatory retirement, Dalhousie faculty who remained in the PSSP were exempted from mandatory retirement.”
[60] He also pointed out that clause 24.04 of the Collective Agreement built in an exception for such former TUNS employees.
[61] The Director responded to this example from Dr. French by stating:
“There is nothing in the collective agreement or the pension plan that leads to the conclusion it is a sham or designed specifically to defeat rights under the Act using the Potash analysis.
The fact that some of the professors are bound by a different pension plan which does not require mandatory retirement does not detract from the bona fides of this retirement plan.”
[62] In Potash, at paragraphs 41 and 42, the Court stated:
“[F]or a pension plan to be found to be ‘bona fide’ within the meaning of s. 3(6)(a) [of the New Brunswick Human Rights Act] it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights.
… Unless there is evidence that the plan as a whole is not legitimate … it will be immune from the conclusion that a particular provision compelling retirement at a certain age constitutes age discrimination.”
[63] As noted, the Director treated the Collective Agreement and Pension Plan as combining to create the retirement plan. As such, in discussing the Collective Agreement and the Pension Plan, it is evident she was referring to the retirement plan. She applied the Potash test to the mandatory retirement plan. In my view, it was reasonable for her to do so. The provision which Potash was interpreting referred to “any bona fide retirement or pension plan”. It follows, therefore, that the same test for bona fides would reasonably apply to both.
[64] The Director’s conclusion, combined with the submissions before her, all of which were known to Dr. French , outline her decision-making process reasonably clearly; and, in my view, it is a conclusion that is “within the range of possible acceptable outcomes”. In my view, it would be unreasonable to conclude that Dal’s mandatory retirement plan is not legitimate simply because it includes an exception for the former TUNS employees, who, because of their pre-merger employment and choice to remain in their previous pension plan, were not subject to mandatory retirement. Dal’s unsuccessful attempt to apply its mandatory retirement policy to the former TUNS employees, as noted on the last page of Ms. Saturley’s letter to the Director dated January 16, 2009, makes such a conclusion even more unreasonable. The plan as a whole still, to the extent possible, addresses the objective of faculty renewal and other purposes of mandatory retirement.
[65] At page 3 of his rebuttal to Dal’s response, Dr. French, referring to Robert Theriault v. Conseil Scolaire Acadien Provincial (CSAP), 2008 NSHRC 3, argued:
“In this case the Board of Inquiry included the SCC Potash decision in their deliberations, and still decided that mandatory retirement was discrimination based on age.
The Board of Inquiry decided that 6(g) of the Nova Scotia Human Rights Act could not exempt the discrimination because the plan did not mandate retirement at any age, just as in the Dalhousie pension plan. The board also discussed the lack of uniformity in structure and application in mandatory retirement between different bargaining units within the organization, which is again similar to the situation at Dalhousie.”
[66] In the case at hand, if only the Pension Plan were in place, and not the collective agreement, the same result as in Theriault would likely have obtained. However, in my view, Theriault is distinguishable from the case at hand.
[67] Mr. Theriault was not part of any collective agreement. There was no contractual arrangement between him and the CSAP which included any provision for mandatory retirement. He had not even been given any written notice that his employment was subject to mandatory retirement. He was given a handbook which outlined his entitlement to a payment or award on retirement. The handbook did not mention a mandatory retirement date. The Board, at paragraph 29, noted that: “Mr. Theriault’s situation was unique.”
[68] It was left to determine whether, despite there being no express mandatory retirement policy applicable to Mr. Theriault, a mandatory retirement “practice” had developed which might apply to him. It discussed the inconsistency of mandatory retirement plans and practices which existed amongst the various employee groups and, at paragraph 33, concluded: “With respect to non-bargaining unit, non-teaching staff, such as Mr. Theriault, there was certainly no practice with respect to when an employee had to cease to work.” As such, the s. 6(h) exemption did not apply either.
[69] However, the Board did not suggest that the mandatory retirement plans and practices which applied to other employee groups were not bona fide because they were inconsistent. At paragraph 41, the Board listed reasons why, even if it had found that a mandatory retirement practice applicable to Mr. Theriault existed, it would have concluded it was not a bona fide practice. Those reasons did not include the inconsistency of mandatory retirement schemes across the various employee groups. They focussed primarily on lack of a contractual provision for, and written notice of, mandatory retirement.
[70] Contrary to Mr. Theriault, Dr. French was part of the faculty bound by the Collective Agreement which required mandatory retirement at age of 65. The same requirement had been continuously in place since he was hired by Dal. Therefore, in my view, it would have been reasonable for the Director to reject Dr. French’s suggestion that Theriault supported a referral to the BOI in the case at hand.
[71] The other decisions of administrative bodies referred to by Dr. French in that rebuttal pre-date Potash and are of no assistance.
[72] The second paragraph, at page 4 of the Rebuttal, gives the following additional example of a different retirement arrangement at Dal:
“Another group who are ‘members of the plan’ but have a different retirement policy are members of the International Union of Operational Engineers [(“IUOE”)], whose collective agreement says: ‘The normal retirement age for Employees is the July 1 following Employee’s sixty-fifth (65th) birthday, and it is agreed that the Employer may require retirement at that time.’ which is not the same as mandatory retirement for all at 65 years. Again, some of this group are not subject to mandatory retirement, based on their employment history and pension choices.”
[73] The Director did not expressly address this alleged differential treatment. However, in my view, the reasons supporting the bona fides of Dal’s retirement plan, despite the exception for certain former TUNS faculty, are also applicable to the different arrangement for the IUOE. Those reasons apply with greater force because the retirement plan relating to the IUOE is encompassed in a different collective agreement. Therefore, the Director could similarly have justified basing her decision on an assessment that the different pension plan Dal had with the IUOE did not detract from the bona fides of its pension plan with the faculty.
[74] Dr. French, gave, as a further example of alleged unfair application of mandatory retirement by Dal, the situation of faculty members whose salary is paid from a source outside Dal.
[75] In paragraph 2 of the addendum to his intake form dated April 7, 2008, Dr. French stated:
“Some faculty members at Dalhousie receive their salary from external agencies. Most prominent are the holders of Canada Research Chairs (CRCs – currently 50 at Dalhousie). Holders of external salaries are allowed to work beyond age 65 and receive full salaries. In every other way they perform the same duties as normal faculty members. I am a member of the panel that reviews applicants for CRCs, so I am aware that many other Dalhousie faculty are eligible for these positions (including me), but the holders are chosen by different processes in each faculty, with no attempt to avoid age discrimination.”
[76] However, Dr. French does not allege that, nor how, those selection processes are age-discriminatory.
[77] In this allegation, Dr.French did not specify whether the employment, of these externally-salaried faculty members, was post-retirement or not.
[78] He did not do so in paragraph 9 of the Complaint either. There, he simply stated: “Another example is that Dalhousie allows sundry other faculty members to continue employment beyond age 65, entirely at its own discretion.”
[79] However, on pages 3 and 4 of his rebuttal dated February 1, 2009, he stated:
“Faculty members whose salaries are partly or wholly paid through external agencies can often work beyond age 65 as long as their external salary is available. One such group are members of the Canada Research Chairs program. … [F]aculty members nearing age 65 can be nominated for a chair to allow them to stay beyond that age, at the discretion of the faculty. The result is a patchwork of employment conditions within the members of the DFA collective agreement, so that two professors of the same age working in laboratories or offices next to each other and performing identical functions can, and do find that one is forced to retire at 65 while the other is not.”
[80] Thus, Dr. French alleged that the CRC program employment is continued employment, as opposed to post-retirement employment.
[81] The letter of Rebecca Saturley, on behalf of Dal, to Seán Hardy, dated April 14, 2009, states:
“Dr. French’s information regarding the Canada Research Chairs program is not accurate. Dalhousie’s mandatory retirement plan set out in the Collective Agreement and Pension Plan applies to the participants in that program in the same manner that it applies to other faculty members; further, the mandatory retirement plan has actually been applied to participants of the Canada Research Chairs program.”
[82] The Director did not expressly address this alleged example of unfair application of Dal’s mandatory retirement plan. However, one can look at the reasons she could have given for concluding there was no reasonable likelihood an investigation would reveal that Dal’s mandatory retirement was not bona fide on the basis of this alleged example.
[83] H.R.M. v N.S.(H.R.C.), at paragraph 25, noted that: “ It is up to the Commission to perform an initial investigation of a complaint and decide whether or not an inquiry is warranted in all of the circumstances.” In my view, in carrying out this function, the HRC should be able to find that certain allegations do not raise a reasonable likelihood that further investigation will reveal a contravention of the HRA because they are not sufficiently reliable to do so. A law enforcement investigator need not institute a penal proceeding on the basis of any and all allegations. He or she, where reasonable, can conclude that allegations are not sufficiently reliable to do so. The same result should obtain in relation to a member of the HRC engaged in an initial investigation. He or she ought not be required to refer a complaint based on allegations that are not sufficiently reliable. That would eliminate part of the screening function of the HRC and risk wasting HRC resources on needless inquiries. It has been found to be within the mandate of a Manitoba Human Rights Commission Investigator to “make an assessment with regard to the reliability of the evidence before her” prior to recommending whether the complaint should be dismissed or not. [See paragraph 20 of Rowel v. Union Centre Inc., 2009 MBQB 145, affirmed 2010 MBCA 23.] In my view, it was within the mandate of Ms. Daley as well.
[84] The Director (and Dr. French) had Ms. Saturley’s letter. Dr. French provided no rebuttal to that letter before the HRC. He did not provide an example of a person in the CRC program who was able to continue past age 65 without retiring. He did not point to any additional information which would be reasonably likely to be discovered by further investigation and support his allegation. Dr. French did not indicate his involvement with the panel reviewing applicants for CRCs made him privy to the employment arrangements between Dal and the CRC’s. Dal would be privy to those employment arrangements. It was, in my view, reasonable for the Director to conclude, based Ms. Saturley’s unequivocal response, that Dr. French’s allegation did not raise a real issue to be referred to a BOI, because it was not sufficiently reliable.
[85] Further, faculty renewal has been determined, such as in McKinney, to be an important objective of mandatory retirement plans for university professors. Ms. Saturley, on the last page of her letter of January 16, 2009, to the Director, also points out that post-retirement appointments “must not limit or interfere with future recruitment of new faculty”. That comment further highlights the importance of faculty renewal. If professors continuing employment past the mandatory retirement age, without first retiring, are paid by outside agencies, it preserves that important objective of the mandatory retirement plan. As such, in my view, the Director could reasonably have justified basing its decision on the premise that exceptions from mandatory retirement for faculty members paid by outside agencies did not prevent the retirement plan from being bona fide.
[86] Dr. French was involved throughout the process before the HRC. Dal’s submissions and representations to the HRC, as well as Mr. Hardy’s recommendation to the Director, were provided to him. He had an opportunity to respond, and did respond to many points. As such, the information in the Record was known to him. He was aware of all the arguments before the HRC. Therefore, to the extent that information is required to fully understand the reasons articulated by the Director, it is appropriate to consider it in assessing those reasons.
[87] In my view, for the reasons I have noted, and considering the Record, there was reasonable “justification, transparency and intelligibility within the [Director’s] decision-making process” and her decision fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
CONCLUSION
[88] Based on the foregoing, I conclude that:
1. This Court should not determine the merits of Dr. French’s ground for review raising the constitutional question not raised before the Human Rights Commission;
2. Even if I was of the view that this Court should determine the merits of the constitutional ground for review, I would find that the Human Rights Commission did not err in failing to refer the constitutional question to the Board of Inquiry; and,
3. The Human Rights Commission did not err in finding there was no reasonable likelihood an investigation would reveal evidence of a contravention of the Human Rights Act.
[89] Therefore, Dr. French’s application for judicial review is dismissed.
COSTS
[90] If the parties cannot agree on the issue of costs, I will receive submissions in writing on that issue.
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MUISE, J