T-417-90
Attorney General of Canada (Applicant)
v.
Douglas H. Martin, Ronald McIsaac, Gerald
Robicheau, Jacques Lemieux, Roland Lavigne,
Raymond Blanchet, David E. Kilmartin, Robert
James Slavik, Peter McCullough and E. H. Gros-
sek (Respondents)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. MARTIN
(T.D.)
Trial Division, Rouleau J.—Ottawa, April 4 and
May 7, 1990.
Human rights — Mandatory retirement from Canadian
Armed Forces — Complaints of discrimination under Canadi-
an Human Rights Act raising issues of whether Act, s. 15(b),
authorizing mandatory retirement policies, contrary to Chart
er, s. 15 and whether compulsory retirement bona fide occupa
tional requirement within Act, s. 15(a) — Canadian Human
Rights Commission did not err in law in referring matter to
Tribunal — Authority in Commission to hear and determine
Charter issues arising in context of applying or interpreting
legislative provisions — Interference at this stage premature.
Constitutional law — Charter of Rights — Equality rights
— Mandatory retirement from Canadian Armed Forces
Complaints of discrimination under Canadian Human Rights
Act raising issue of whether Act, s. 15(b), authorizing manda
tory retirement policies, contrary to Charter, s. 15 — Canadi-
an Human Rights Commission having power to consider
Charter issues in legislative interpretation — Needing to be
satisfied enabling legislation not contravening Charter —
Commission did not err in law in referring matter to Tribunal.
Federal Court jurisdiction — Trial Division — Mandatory
retirement from Canadian Armed Forces — Complaint under
Canadian Human Rights Act — Canadian Human Rights
Commission referring Charter issue to Tribunal — As decision
to refer administrative, subject to review under Federal Court
Act, s. 18 — Authority in Commission to consider Charter
issues in applying or interpreting legislation — Court's func
tion to determine whether Commission had power to refer and
whether it erred in law in doing so — No error in law as
Commission acted reasonably.
The respondents, who were released from the Canadian
Armed Forces upon reaching the age of mandatory retirement,
filed complaints with the Canadian Human Rights Commis
sion, alleging discrimination on the basis of age. The investiga
tor's reports identified two issues: (1) is paragraph 15(b) of the
Canadian Human Rights Act, which authorizes mandatory
retirement policies, contrary to section 15 of the Charter? and
(2) does the mandatory retirement policy provided for in
regulations adopted under the National Defence Act constitute
a bona fide occupational requirement within the meaning of
paragraph 15(a) of the Canadian Human Rights Act? The
Commission decided to refer these questions to a Human
Rights Tribunal. This was an application by the Attorney
General for certiorari to quash that decision in that the Com
mission had erred in law and exceeded its jurisdiction.
Held, the application should be dismissed.
The Trial Division had jurisdiction, under section 18 of the
Federal Court Act, to review the Commission's decision, since
it was administrative in nature.
The Commission had the authority to hear and determine
Charter issues in the context of applying or interpreting legisla
tive provisions. The Commission had to apply the provisions of
the Human Rights Act to determine if there was sufficient
evidence of discrimination to warrant a referral to a Tribunal.
In so doing, it had to be satisfied that its enabling legislation
was not contrary to the Charter. The Commission's decision
was not determinative of the ultimate issue. Rather, it had
referred the matter to the Tribunal for analysis. That decision
was not subject to the rules of natural justice: since it was
purely administrative, the Commission was not bound to hear
the parties or give reasons for its finding or referral.
The Commission must have concluded that paragraph 15(b)
was or might be contrary to the Charter. It would, however, in
the absence of fact-finding and argument, be premature to
interfere with that conclusion and not allow the matter to
proceed. It was not the function of the Court, at this stage, to
determine the ultimate issue. The Court's only function was to
determine whether the Commission had the power to make
such a referral, and whether it erred in law in so doing.
As the law currently stands, the Commission had the author
ity to declare a section of its enabling legislation contrary to the
Charter, and considering the case law which has found similar
ly limiting provisions to be in violation of section 15, the
Commission's actions were reasonable.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, /982, Schedule B, Canada Act
/982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 15.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7,
10, 15(a),(b), 41(c), 44(3).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 28.
National Defence Act, R.S.C., 1985, c. N-5.
CASES JUDICIALLY CONSIDERED
APPLIED:
Tétrault-Gadoury v. Canada (Canada Employment and
Immigration Commission), [1989] 2 F.C. 245; (1988), 53
D.L.R. (4th) 384; 33 Admin. L.R. 244; 23 C.C.E.L. 103;
88 C.L.L.C. 14,050; 88 N.R. 6 (C.A.); Cuddy Chicks
Ltd. v. Ontario (Labour Relations Board) (1989), 70
O.R. (2d) 179; 35 O.A.C. 94 (C.A.); Syndicat des
employés de production du Québec et de l'Acadie v.
Canada (Canadian Human Rights Commission), [1989]
2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R.
241.
DISTINGUISHED:
Bell v. Ontario Human Rights Commission, [1971]
S.C.R. 756; (1971), 18 D.L.R. (3d) 1; Canadian Nation
al Railway Co. v. Canada (Human Rights Tribunal),
[1990] 1 F.C. 627 (T.D.); Dywidag Systems Internation
al, Canada Ltd. v. Zutphen Brothers Construction Ltd.,
[1990] 1 S.C.R. 705; Rudolph Wolff & Co. v. Canada,
[1990] 1 S.C.R. 695.
CONSIDERED:
Re Rosen, [1987] 3 F.C. 238; (1987), 80 N.R. 47 (C.A.).
REFERRED TO:
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R.
289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255;
Re Alberta Human Rights Commission and The Queen
et al. (1986), 27 D.L.R. (4th) 735 (Alta. C.A.); R. v.
Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8;
69 C.R. (3d) 97; 96 N.R. 115; Harrison v. University of
British Columbia (1988), 49 D.L.R. (4th) 687; [1988] 2
W.W.R. 688; 21 B.C.L.R. (2d) 145 (B.C.C.A.); Sniders
v. Nova Scotia (Attorney General) and Camp Hill Hos
pital (1988), 88 N.S.R. (2d) 91; 51 D.L.R. (4th) 408;
225 A.P.R. 91; 23 C.C.E.L. 175; 41 C.R.R. 105 (C.A.);
McKinney v. University of Guelph (1987), 63 O.R. (2d)
1; 46 D.L.R. (4th) 193; 29 Admin. L.R. 227; 24 O.A.C.
241.
COUNSEL:
Barbara A. Mcisaac, Q.C. for applicant.
René Duval for respondent Canadian Human
Rights Commission.
No one appearing for other respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Canadian Human Rights Commission Legal
Services for Canadian Human Rights Com
mission.
No one representing other respondents.
The following are the reasons for order ren
dered in English by
ROULEAU J.: The individual respondents,
having reached the maximum age applicable to
their rank and having been released from the
Canadian Armed Forces, filed complaints with the
Canadian Human Rights Commission alleging dis
crimination on the basis of age contrary to sections
7 and 10 of the Canadian Human Rights Act,
R.S.C., 1985, c. H-6; these sections refer to dis
criminatory policy and practice relating to
employment.
Upon receipt of the complaints, an investigator
was assigned the task of probing into the matters
and submitted reports to the Commission pursuant
to section 44 of the Canadian Human Rights Act.
The majority of these reports identified two issues:
1. First, is paragraph 15(b) of the Canadian
Human Rights Act contrary to section 15 of the
Charter [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]]
(individuals cannot be discriminated against
because of age);
2. If so, secondly, does the compulsory retirement
age provided for in regulations under the Na
tional Defence Act [R.S.C., 1985, c. N-5]
which impose compulsory retirement, constitute
a bona fide occupational requirement within
paragraph 15(a) of the Canadian Human
Rights Act.
Paragraphs 15(a) and (b) provide as follows:
15. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation,
specification or preference in relation to any employment is
established by an employer to be based on a bona fide
occupational requirement;
(b) employment of an individual is refused or terminated
because that individual has not reached the minimum age, or
has reached the maximum age, that applies to that employ
ment by law or under regulations, which may be made by the
Governor in Council for the purposes of this paragraph;
As a result of these reports the Commission
concluded, without giving reasons, that these ques
tions should be referred to a Human Rights Tri
bunal for determination.
By this application the Attorney General of
Canada seeks an order of certiorari to quash the
decision of the Commission referring the matter to
the Tribunal. The applicant submits that the Com
mission erred in law and it exceeded its jurisdic
tion. It is suggested that although no specific
reasons were given as to why they decided to refer
the complaints to a Tribunal, it is apparent that in
order to do so the Commission must have deter
mined that paragraph 15(b) of the Canadian
Human Rights Act was contrary to section 15 of
the Charter. If not, the complaints could not con
stitute discrimination and there would have been
no basis for forwarding the matter to the Tribunal
for determination.
The applicant submitted the following in sup
port of its application for certiorari quashing the
Commission's decision:
1. It argues that the Canadian Human Rights
Commission does not have the authority to declare
a section of its enabling legislation as being con
trary to the Charter; further, that the Commission
ought to have provided reasons. It was argued by
the applicant that the cases of Tétrault-Gadoury
v. Canada (Canada Employment and Immigration
Commission), [1989] 2 F.C. 245 (C.A.) and
Cuddy Chicks Ltd. v. Ontario (Labour Relations
Board) (1989), 70 O.R. (2d) 179 (C.A.) were
wrongly decided. Both the Federal Court of
Appeal and the Ontario Court of Appeal found
that a board has the power to declare statutory
provisions contrary to the Charter. In the alterna
tive, the applicant submitted that this Court
should distinguish these decisions, arguing that the
Human Rights Commission is an administrative
tribunal, not quasi-judicial, and therefore does not
possess the requisite authority to determine Chart
er issues.
2. Further, should I find that the Commission
does have the jurisdiction to make such a determi
nation, the applicant argues that it erred in law by
presuming that paragraph 15(b) of the Canadian
Human Rights Act was contrary to section 15 of
the Charter. The applicant contends that the dis
tinction made in paragraph 15(b) cannot be based
on any of the grounds enumerated in section 15 of
the Charter nor on any analogous ground, as set
out in Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143. Rather, the appli
cant submits, and I quote, "The distinction in
paragraph 15(b) is between individuals whose
minimum or maximum age of employment is pre
scribed by regulation or by law and individuals
whose minimum or maximum age of employment
is not prescribed by regulation or by law. The
distinction is not based either on one of the
grounds enumerated in section 15 of the Charter
or on, an analogous ground as discussed by the
Supreme Court of Canada in Andrews."
It behooves me to understand the subtlety of this
argument but I assume that what the applicant
suggests is that paragraph 15(b) is restricted to,
and can only be invoked as an exception, where the
employment conditions are prescribed by law or
regulation. Therefore, paragraph 15(b) would not
apply in the absence of legislated regulations.
Thus, I should conclude that the absence of any
law regulating the maximum age of employment
would remove it from the exception, and leave it
open to attack as discriminatory. What counsel
therefore argues is that the exception created by
paragraph 15(b) is not encompassed within the
protections afforded in section 15 of the Charter. I
am satisfied that the fact that there are regulations
cannot by itself remove it from the protection of
the Charter, since we are dealing with age vis-Ã -
vis employment; these regulations could ultimately
be declared unconstitutional. It is beyond me how
this could not be considered age discrimination,
which may be found to infringe one of the basic
tenets of section 15 of the Charter.
3. Finally, the applicant submits that the Federal
Court, Trial Division has the jurisdiction and
should review the Commission's determination
made under subsection 44(3) of the Canadian
Human Rights Act, which implies that it must
determine whether there is a reasonable basis for
proceeding to the next stage (Syndicat des
employés de production du Québec et de l'Acadie
v. Canada (Canadian Human Rights Commis
sion), [1989] 2 S.C.R. 879). This jurisprudence
surely suggests that this court may intervene, but
it does not indicate that the Trial Division of the
Federal Court should impose its views or decide
the ultimate issue in this application.
The respondents did not dispute the jurisdiction
of the Federal Court, Trial Division, to entertain
the Attorney General's motion, however, they sug
gested that the Human Rights Commission has the
power to question the constitutional validity of its
enabling legislation; further, that there was a valid
issue to refer to the Tribunal for determination.
They went on to add that the Canadian Human
Rights Act was predominant legislation, and that
in order for any branch of government to override
its provisions it required a notwithstanding clause;
the Queen's Regulations under the National
Defence Act had not included such a provision, and
therefore the issue should be considered at least
controversial in light of the wording under para
graph 15(b). I have great misgiving in entertaining
this suggestion. It appears to me that the wording
of paragraph 15(b) is clear and concise, that the
proper regulations respecting age would create an
exception and could be treated as non-discrimina
tory; there are no precise words to indicate to me
that a notwithstanding clause is required in the
regulations. The legislation itself (paragraph
15(b)) provides the exception without any other
stipulation.
I am satisfied that the Trial Division of the
Federal Court does have the jurisdiction to review
the Commission's decision as to whether or not to
refer these questions to a Tribunal. In the Syn-
dicat case, supra, the Supreme Court of Canada
made it clear that such decisions are not review-
able by the Federal Court of Appeal under section
28 of the Federal Court Act [R.S.C., 1985, c.
F-7], since they are not required to be made on a
judicial or quasi-judicial basis. However, they
added that an administrative decision of this
nature is subject to review under section 18 of the
Federal Court Act.
Bell v. Ontario Human Rights Commission,
[1971] S.C.R. 756 is also authority for the propo
sition that a court may intervene to prevent an
administrative body from proceeding when it is
perceived that an absence of jurisdiction has either
arisen or may clearly be foreseen; this, provided
that the question of jurisdiction is purely a ques
tion of law, and no fact-finding is required by the
Tribunal in the exercise of the function. Other
wise, the court must wait until the requisite fact-
finding has been carried out. In Canadian Nation
al Railway Co. v. Canada (Human Rights Tri
bunal), [1990] 1 F.C. 627 (T.D.), the applicant
was seeking prohibition to prevent the Tribunal
from inquiring into a complaint, suggesting that
the Commission acted beyond its authority in
appointing a Tribunal. Mr. Justice Muldoon
granted the orders sought, on the basis that to
proceed would be wasteful and abusive in light of a
certain decision of the Federal Court of Appeal in
identical circumstances. There is therefore no
doubt that I have jurisdiction to grant the orders
sought should I be satisfied that they are
warranted.
Turning to the applicant's first submission, .I
consider myself bound by the Federal Court of
Appeal decision in Tétrault-Gadoury, and,
although not binding, but highly persuasive, the
decision of the Ontario Court of Appeal in Cuddy
Chicks. Both of these determined that inferior
tribunals have the authority to hear and determine
Charter issues arising in the context of applying or
interpreting legislative provisions. Leave to appeal
to the Supreme Court of Canada has been granted
in both cases, but until such time as judgment is
rendered I am not at liberty to conclude that they
have been wrongly decided.
I am not persuaded by the applicant's alterna
tive submission in its initial argument that Tét-
rault-Gadoury and Cuddy Chicks are distinguish
able from the case at bar. The applicant relied
upon the Supreme Court's conclusion in the Syn-
dicat case, supra, for the proposition that the
Commission's decision under section 44 is an
administrative one; it submits that this finding is
restrictive and does not allow the Commission to
question its legislative authority. As I read Syn-
dicat, it ruled only that the decision of the Com
mission under section 44 is an administrative deci
sion not required by law to be made on a judicial
or quasi-judicial basis. It cannot lead me to the
further conclusion that the Commission is unable
to question whether that a section of its enabling
legislation may or may not be contrary to the
Charter.
The decisions in Tétrault-Gadoury and Cuddy
Chicks, as I understand them, are to the effect
that, where a tribunal is required, as part of its
statutory functions, to apply or interpret legisla
tion, it also has the authority to declare such
legislation contrary to the Charter. This Commis
sion must apply the 'provisions of the Canadian
Human Rights Act to determine if there is suffi
cient evidence of discrimination to warrant a refer
ral to a Tribunal. In so doing, it must be satisfied
that its legislation is not contrary to the Charter,
as was enunciated in the Tétrault-Gadoury and
Cuddy Chicks decisions. This is further reinforced
by the specific authority granted under paragraph
41(c) of the Canadian Human Rights Act, to
determine its own jurisdiction.
The applicant suggested that the Commission
does not possess the "judicial" tools to determine a
Charter issue. This may be said of many tribunals,
but they are still required to apply and interpret
legislation as set out in Tétrault-Gadoury and
Cuddy Chicks. May I also add that the Commis
sion's decision was not determinative of the ulti
mate issue. They were referring the matter to the
Tribunal for analysis. In this respect it is interest
ing to note the findings in Re Rosen, [1987] 3 F.C.
238 (C.A.). The Canadian Human Rights Com-
mission brought an application by way of reference
under subsection 28(4) of the Federal Court Act
seeking a determination as to whether certain sec
tions of the Canadian Human Rights Act violated
section 15 of the Charter. The majority of the
Court of Appeal refused to determine the matter
on the basis that it would not be dispositive of the
issue. In concurring, Marceau J., but for different
reasons, also held the application was invalid. He
added that he was of the view that a reference of
this kind should be submitted to a Tribunal, which
could put before the Court findings of fact on
which the decision was based. He also found very
interestingly, that the Commission exceeded its
jurisdiction by referring the matter to the Court
for a ruling on the constitutional validity of certain
sections of its Act. This reinforces my belief that
the Commission has followed the proper route in
leaving the matter to a Tribunal for determination.
Another issue raised by the applicant as to the
impropriety of the Commission's determination
was the lack of debate before them, and the
absence of any reasons given for their finding and
referral. I once again refer to the decision in the
Syndicat case, in which the Supreme Court of
Canada made it quite clear that a Commission's
decision under section 44 in referring a matter to a
Tribunal is purely administrative, and not subject
to the rules of natural justice. I find this argument
by the applicant inapplicable. There is no require
ment for the Commission to provide reasons. The
Tribunal's finding will require explanation; may I
suggest that in light of this reasoning the present
application could be considered untimely.
The applicant's final submission was that the
Commission erred in law in deciding that para
graph 15(b) of its enabling legislation contravened
the Charter. If upheld, paragraph 15(b) of the
Canadian Human Rights Act would preclude a
referral to a Tribunal, and require that the com
plaints be dismissed, since paragraph 15(b) would
prevent the actions complained of from constitut-
ing discrimination (see Re Alberta Human Rights
Commission and The Queen et al. (1986), 27
D.L.R. (4th) 735 (Alta. C.A.)).
There can be little doubt that the Commission
must have concluded that paragraph 15(b) was
contrary to the Charter, or in the least, determined
that it was questionable. However, to interfere
with the conclusion of the Commission at this
stage and not allow the matter to proceed without
the benefit of complete fact-finding and argument
would be a premature interference.
The applicant's submission effectively asks this
Court to determine the ultimate issue: whether
paragraph 15(b) offends section 15 of the Charter.
However, at this stage, this is not my function. The
Commission has requested that its Tribunal review
this exact question. It is the body that should make
that finding. My only function is to determine
whether the Commission had the power to make
such a referral, and whether it erred in law in so
doing.
I must be satisfied that there was a reasonable
basis for the Commission to refer the questions to
a Tribunal, otherwise it could constitute an error
of law. A cursory review of the authorities would
indicate to me that any regulation or statute deal
ing with age discrimination in the area of employ
ment can bring the issue squarely within section 15
of the Charter, and requires greater analysis than
those provided by the investigator's report and the
non-reasoned decision of the Commission.
The applicant stated that the distinction drawn
in paragraph 15(b) did not come within the enu
merated grounds of discrimination in section 15 of
the Charter, or an analogous ground as set out in
Andrews, supra. Counsel argued that, to constitute
an "analogous ground", the class which claims
they are being treated differently must comprise a
"discreet insular minority". In support, she relied
upon Andrews, supra, and R. v. Turpin, [1989] 1
S.C.R. 1296. Two other cases which were subse
quently brought to my attention, also dealing with
this issue are the decisions by the Supreme Court
of Canada in Dywidag Systems International,
Canada Ltd. v. Zutphen Brothers Construction
Ltd., [ 1990] 1 S.C.R. 705, and Rudolph Wolff &
Co. v. Canada, [1990] 1 S.C.R. 695, both ren
dered March 29, 1990. In my view it is not neces
sary that there be a "discreet insular minority"
which is being discriminated against in order to
constitute "analogous grounds". I am not con
vinced that the basis for differential treatment
under paragraph 15(b) of the Canadian Human
Rights Act are terms of employment prescribed by
law/regulation; I believe it can safely be said that
the deciding factor is age, which is one of the
enumerated grounds in section 15 of the Charter.
What paragraph 15(b) does is to exempt from the
parameters of prohibited age discrimination those
circumstances where the maximum or minimum
age of employment is prescribed by law or regula
tion. It is similar to paragraph 15(a), which
exempts from discrimination on the basis of what
constitutes a bona fide occupational requirement.
There have been several cases decided in which
similar mandatory retirement schemes have been
held to be contrary to section 15 of the Charter,
although not in the context of a provision identical
to that found in paragraph 15(b) of the Canadian
Human Rights Act. In Harrison v. University of
British Columbia (1988), 49 D.L.R. (4th) 687, the
British Columbia Court of Appeal determined that
a section of the B.C. Human Rights Act [S.B.C.
1984, c. 22], providing that discrimination on the
basis of age was confined to persons between the
ages of 45 and 65, violated section 15 of the
Charter. The Court applied the decision of the
British Columbia Court of Appeal in Andrews,
which was upheld on appeal to the Supreme Court
of Canada.
The same result was reached by the Nova Scotia
Court of Appeal in Sniders v. Nova Scotia (Attor-
ney General) and Camp Hill Hospital (1988), 88
N.S.R. (2d) 91, regarding similar human rights
legislation. Many other courts have held compulso
ry retirement schemes to be in violation of human
rights legislation.
The Ontario Court of Appeal in McKinney v.
University of Guelph ( 1987), 63 O.R. (2d) 1,
upheld under section 1 of the Charter a provision
in the Ontario Human Rights Code similar to that
at issue in Harrison and Sniders, supra. Harris-
son, McKinney, and two other cases involving
challenges of compulsory retirement schemes were
argued before the Supreme Court of Canada in
May, 1989; judgment is still pending.
I am satisfied that, as the law currently stands,
the Canadian Human Rights Commission has the
authority to declare a section of its enabling legis
lation contrary to the Charter, and considering the
decisions which have found similarly limiting
provisions to be in violation of section 15, the
Commission's actions, in the circumstances, were
more than reasonable. Although there may remain
an argument that the legislation is justifiable
under section 1, this question will require further
evidence and argument, which will be available to
the investigating Tribunal.
The Commission's determination at this point is
merely preliminary; allowing the complaints to
proceed to the next stage, that of full investigation
and fact-finding by a Human Rights Tribunal, is
essential. The Commission need only have a
reasonable basis for questioning the constitutional
validity of the provision in question; the Tribunal
will look into the matter more closely, and upon its
final determination, appeal proceedings may then
be taken by any interested party. The Tribunal
may also consider whether the provisions of the
Queen's Regulations and Orders constitute a bona
fide occupational requirement under paragraph
15(a) of the Canadian Human Rights Act.
This application is hereby dismissed. Costs to
the respondents.
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