Cooper v. Canada ( Human Rights Commission )
A-446-92
Pratte, Marceau JJ.A.
25/2/94
11 pp.
Appeal from Trial Division's order dismissing application for judicial review of decision of Canadian Human Rights Commission (CHRC)-Appellant, airline pilot, forced to retire at age sixty according to collective agreement -- Alleges discrimination based on age since majority of employees not obliged to retire before age sixty-five-Filed complaint with CHRC alleging violation of Canadian Human Rights Act, ss. 7, 10 -- Respondent rested defence on Act, s. 15(c), providing not discriminatory practice if employment terminated because individual reaching normal age of retirement for employees in similar positions -- Appellant argued s. 15(c) discriminatory on basis of age, invalid as contravening Canadian Charter of Rights and Freedoms, s. 15 -- CHRC dismissing complaint in accordance with McKinney v. University of Guelph, [1990] 3 S.C.R. 230 upholding provincial legislation similar to s. 15(c) under Charter, s. 1-Appellant seeking to quash CHRC's decision without giving notices required by Federal Court Act, s. 57 -- Appeal dismissed -- Per Pratte J.A.: Having failed to give such notices, appellant precluded from arguing constitutional invalidity of s. 15(c)-Arguing CHRC, Trial Judge erred in relying on McKinney as legislation herein different -- Appellant must show decision appealed from wrong -- Not sufficient to show s. 15(c) differing in some respects from provincial provision -- Appellant not establishing unconstitutionality of s. 15(c) before asking Court to declare invalidity because failed to comply with Federal Court Act, s. 57 -- Per Marceau J.A.: Neither CHRC nor tribunal had power to consider contention provision of enabling statute (s. 15(c)) unconstitutional -- Power of administrative tribunal to refuse to apply law of Parliament on basis such law apparently violating Constitution must be found in statute creating tribunal and determining its mandate -- Power need not be express, but can be inferred from extent of mandate assigned to tribunal, particularly requirement that it deal with all questions of law necessary to fulfil its duties -- Canadian Human Rights Act not even remotely suggesting intention to allow CHRC, whose role purely administrative, or Human Rights tribunals, which do not have to be presided over by people trained in law and whose mandate limited to inquiring into complaint, to dispute constitutional validity of legislative provisions governing activity -- For Commission to hold discriminatory practice formally declared by Parliament as non-discriminatory, going directly against will of Parliament-Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10, 15(c) -- Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19) -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15-Human Rights Code, S.O. 1981, c. 53, s. 9(a).