Citation:

GVRD Employees' Union v. GVRD

Date: 20011005

2001 BCCA 435

Docket:

CA027457

Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

GREATER VANCOUVER REGIONAL DISTRICT
EMPLOYEES' UNION

UNION
(RESPONDENT)

AND:

GREATER VANCOUVER REGIONAL DISTRICT

EMPLOYER
(APPELLANT)

Before:

The Honourable Madam Justice Prowse

 

The Honourable Madam Justice Newbury

 

The Honourable Mr. Justice Mackenzie

G.K. MacIntosh, Q.C. and
D. Richards

Counsel for the Appellant

C.G. Buchanan and P. Dickie

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

June 14, 2001

Place and Date of Judgment:

Vancouver, British Columbia

October 5, 2001

Dissenting Reasons by:
The Honourable Mr. Justice Mackenzie

Written Reasons in the Majority by:
The Honourable Madam Justice Prowse (Page 15, Paragraph 27)

Concurring Reasons by:
The Honourable Madam Justice Newbury (Page 66, Paragraph 129)

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

 

 

[1] The narrow issue on this appeal is whether the appellant employer had the onus of justifying its policy of mandatory retirement at age 65 independently of the age discrimination provisions of the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code").

[2] The respondent union concedes that the GVRD policy does not offend the age discrimination provisions of the Code, because age is defined as between 19 and 65 for the purposes of the Code. The majority of the arbitration board concluded, however, that as the employer, Greater Vancouver Regional District ("GVRD"), is a government entity, the Charter imposed an obligation upon it to justify the mandatory retirement policy independently of the Code. No independent justification was advanced by the GVRD.

[3] The grievor was terminated from his employment as a waste plant operator when the fact that he was over age 65 came to the employer's attention shortly after he was hired. The termination was grieved by the union pursuant to the collective agreement. The GVRD mandatory retirement policy is not in the collective agreement but it is part of the terms of employment. The GVRD agrees that the grievor is otherwise qualified for the position and the only ground of termination is age. The GVRD was prepared to continue the grievor's employment as an auxiliary employee but that option was effectively blocked by union opposition to auxiliary employment.

[4] The appeal to this Court is pursuant to s. 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244. There is no issue that the appeal is within s. 100 as involving "a matter or issue of the general law not included in s. 99(1) [of the Code]."

[5] The parties agree that the GVRD is a government entity and its mandatory retirement policy is a "law" subject to review under the Canadian Charter of Rights and Freedoms (the "Charter"). They also agree that the policy contravenes s. 15(1) of the Charter and must therefore be justified as a reasonable limit prescribed by law pursuant to s. 1. The GVRD submits that the necessary justification is supplied by the Human Rights Code. The majority of the board rejected that submission and held that the GVRD had the onus of justifying its policy beyond the provisions of the Code.

[6] It is agreed that the arbitration board is not entitled to curial deference on the issue under appeal. The standard of review is correctness.

[7] There is no Charter challenge to the age discrimination provisions of the Human Rights Code on this appeal. The relevant provisions are substantially the same as those contained in the Ontario Human Rights Code upheld in McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545 (S.C.C.).

[8] McKinney is central to this appeal. In that case the Supreme Court of Canada upheld the mandatory retirement at age 65 of university professors in Ontario under university retirement policies. In a wide-ranging analysis, the Court addressed both the status of universities under the Charter and the constitutional validity of the age discrimination provisions of the Ontario Human Rights Code. On the status issue, the Court concluded that universities are not part of government and consequently s. 15 of the Charter was not directly applicable. Here, unlike the university in McKinney, the GVRD is a government entity, a local regional government created under provincial jurisdiction, and the Charter is directly applicable.

[9] In McKinney the Supreme Court addressed the validity of the Ontario Human Rights Code which did apply to universities and the non-government or private sector generally. La Forest J., speaking for the majority on this point, held that the limitation of age-based employment discrimination in the Code to between the ages of 18 and 65 contravened s. 15(1) of the Charter but the infringement could be justified as a reasonable limit prescribed by law within the purview of s. 1 of the Charter. The GVRD relies on that justification to support its policy which complies with the age discrimination provisions of the B.C. Code, now virtually the same as the Ontario provisions upheld in McKinney.

[10] The submission of the respondent emphasized the specific analysis of retirement of university faculty in McKinney. It contended that as the GVRD is a government entity, mere compliance with the Code is not sufficient, and a specific justification of the GVRD is also required.

[11] La Forest J. held that the provisions of the Ontario Code met the tests of reasonable limits set out in R. v. Oakes, [1986] 1 S.C.R. 103. He emphasized that "the analysis under s. 1 should not be restricted to the university context." He added at 661:

. . . The appellants in this case were denied the protection of the Code, not because they were university professors but because they were 65 years of age or over. To restrict examination of its application to the university context would be inconsistent with the first component of the proportionality test enunciated by this Court in R. v. Oakes, at p. 139, namely, that "the measures adopted must be carefully designed to achieve the objective in question". Section 9(a) is not restricted to the university context, and while evidence respecting the specific context in which the issue arises may, as I indicated earlier, serve as an example to demonstrate the reasonableness of the objectives, it must not be confused with those objectives. . . .

[12] The Code provisions are justified in their general application and not only in the context of specific occupational categories. This is consistent with widespread practice. La Forest J. observed at 658:

. . . Generally, it seems fair to say that 65 has now become generally accepted as the "normal" age of retirement. This has had profound implications for the organization of the workplace -- for the structuring of pension plans, for fairness and security of tenure in the workplace, and for work opportunities for others. The Court of Appeal succinctly put the matter this way in describing what it saw as the objectives of s. 9(a), [46 D.L.R. (4th) 193] at p. 245:
One of the primary objectives of s. 9(a) was to arrive at a legislative compromise between protecting individuals from age-based employment discrimination and giving employers and employees the freedom to agree on a date for the termination of the employment relationship. Freedom to agree on a termination date is of considerable benefit to both employers and employees. It permits employers to plan their financial obligations, particularly in the area of pension plans and other benefits. It also permits a deferred compensation system whereby employees are paid less in earlier years than their productivity and more in later years, rather than have a wage system founded on current productivity. In addition it facilitates the recruitment and training of new staff. It avoids the stress of continuous reviews resulting from ability declining with age, and the need for dismissal for cause. It permits a seniority system and the willingness to tolerate its continuance having the knowledge that the work relationship will be coming to an end at a finite date. Employees can plan for their retirement well in advance and retire with dignity.
Another important objective of s. 9(a) was the opening up of the labour market for younger unemployed workers. The problem of unemployment would be aggravated if employers were unable to retire their long-term workers.
To put it in its simplest terms, mandatory retirement has become part of the very fabric of the organization of the labour market in this country. This was the situation when s. 9(a) of the Human Rights Code, 1981 was enacted. It was the situation when the Charter was proclaimed as well.

[13] The broad social and political implications of mandatory retirement are amenable more to legislative than judicial evaluation. La Forest J. supported a measure of deference to the other branches of government in this area when he addressed the aspect of minimal impairment under Oakes at 665-7:

. . . it is important again to remember that the ramifications of mandatory retirement on the organization of the workplace and its impact on society generally are not matters capable of precise measurement, and the effect of its removal by judicial fiat is even less certain. Decisions on such matters must inevitably be the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society, and other components. They are decisions of a kind where those engaged in the political and legislative activities of Canadian democracy have evident advantages over members of the judicial branch, as Irwin Toy, [(1989), 58 D.L.R.(4th) 577], at pp. 625-6, has reminded us. This does not absolve the judiciary of its constitutional obligation to scrutinize legislative action to ensure reasonable compliance with constitutional standards, but it does import greater circumspection than in areas such as the criminal justice system where the courts' knowledge and understanding affords it a much higher degree of certainty.

. . .

In examining this question, it is relevant as it was in the examination of the issue of the rationality of the legislative means employed in attaining the Legislature's objectives, to recall the historical origins of mandatory retirement at age 65 and its evolution as one of the important structural elements in the organization of the workplace. As a result of this development, I repeat, 65 has come to be generally considered the normal age of retirement and some 50 per cent of the work force is organized on the basis of mandatory retirement at that age. There is thus no stigma attached to being retired at 65. It conforms as well to what most people would do voluntarily. Indeed, the evidence indicates that there is an increasing trend towards earlier retirement. Many regard it as a reward for long years of service and, for one reason or another, look forward to retirement. . . .

[14] The justification for the Code provisions is not dependent upon a rationale related to particular occupations.

[15] Does the justification requirement under s. 1 change if the employer is a part of government rather than in the private sector? The analysis quoted above was made in the context of non-government employment. Nonetheless, the reasoning seems equally applicable to government employment. The Code is not limited to the private sector. It applies equally to government within provincial jurisdiction.

[16] Any obligation to advance a specific occupational justification for mandatory retirement at age 65 would add a second tier to the obligation of Code compliance and could call in question the general justification underpinning the Code provisions. If this general justification is sufficient to support the Code, I see no reason why it should not be equally sufficient to justify a policy that is in compliance with the Code. The alternative would create a tension between general and specific justifications for mandatory retirement, which could lead to uncertainty, and conflict in government employment. I think that it would be incongruous to impose a higher standard than the Human Rights Code upon this employer simply because it is a government entity when it is an employer within provincial jurisdiction. In my view, the provisions of the Code by necessary implication provide justification for the mandatory retirement policy under s. 1 of the Charter as a matter of general law applicable to both private and public sectors within provincial jurisdiction.

[17] La Forest J. in McKinney discussed the more specific reasons justifying mandatory retirement for university faculty. While he concluded that the universities were outside government, I do not read his analysis as implying a second level of justification to be required if they had been within the government category. The justification in the context of university faculty illustrated the general justification reflected in the Code.

[18] Further support for this view can be taken from the concurring reasons of Cory J. in McKinney. He agreed with Wilson J., in dissent, that universities were sufficiently part of government to be directly subject to the Charter, but he concluded that as part of government their mandatory retirement policies could be justified by the Code.

[19] Harrison v. U.B.C., [1990] 3 S.C.R. 451 and Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, were British Columbia companion cases argued with McKinney, but they do not provide additional guidance on this issue. Harrison applied the McKinney analysis to the B.C. equivalent of the Ontario Human Rights Code, again in the context of university faculty.

[20] Stoffman involved termination of hospital admitting privileges of doctors at age 65. The doctors were not employees of the hospital and therefore outside the ambit of the B.C. Human Rights Act (the predecessor of the present Code). La Forest J., for the majority, concluded that the Charter was inapplicable because the hospital was not part of government. However, he went on to address the justification of the hospital policy if the Charter were applicable and concluded that while it was discriminatory within s. 15(1) it was justified as a reasonable limit under s. 1. The hospital could not have relied on a general justification under the Human Rights Act because the Act did not apply. Thus the hospital would have had the burden of advancing a s.1 justification of the policy independently of the Act if it had been a part of government.

[21] Dickason v. University of Alberta, [1992] 2 S.C.R. 1103, involved a challenge to the university's policy of mandatory retirement at age 65. The challenge was brought pursuant to s. 11.1 of the Alberta Individual's Rights Protection Act, R.S.A. 1980, c. I-2, which incorporates a test analogous to the test for justification of discrimination under s. 1 of the Charter. That statute did not impose any age limits to prohibited age discrimination in employment but it recognized a defence under s. 11.1 "if the alleged contravention was reasonable and justifiable in the circumstances." The case did not address the s. 1 Charter obligation directly and the issue before the Supreme Court involved standard of review, burden of proof and curial deference under the Alberta statute. That act by its terms imposed a specific test for justification in marked contrast to the comparable British Columbia and Ontario statutes, which simply limit protection against age discrimination to those under age 65. Consequently, Dickason does not address the issue in this appeal, whether compliance with the British Columbia Code satisfies the Charter requirement of justification.

[22] This court's decision in Lewis v. Burnaby School District No. 41 (1995), 1 B.C.L.R. (3d) 1 (C.A.), also involved review of a policy of mandatory retirement against a statutory provision limited to public school teachers, s. 147 of the School Act, R.S.B.C. 1979, c. 375 (since repealed). In analyzing the validity of this provision under the Charter the court was required to address the retirement objective in the context of teachers specifically. The question of justification of a mandatory retirement policy by the general provisions of the Human Rights Code did not arise.

[23] The only cases that directly confront the issue here are two proceedings in Ontario brought by the same applicant, a provincial judge who challenged the mandatory retirement of provincial judges on Charter grounds. He argued unsuccessfully that the limitations on age discrimination in the Ontario Code could not justify the mandatory retirement provision of the Courts of Justice Act: Charles v. Canada (Attorney General) (1995), 129 D.L.R.(4th) 114 (Ont. Gen. Div.) and [1995] O.J. No. 2223 (Ont. Gen Div.) (QL). In the later application the court rejected the submission that the Attorney General's defence of the relevant provision, s. 47(3) of the Courts of Justice Act, failed because no Charter s.1 justification was advanced beyond the section itself. MacPherson J. concluded (at paras. 8-10):

Judge Charles contends that his position as a judge, supported by the constitutional principle of judicial independence, removes the judiciary from the reasoning of McKinney. I disagree. Judicial independence relates to, principally, the way in which judges conduct judicial proceedings and make their decisions. It does not immunize judges from general legislation that applies to all members of society. See The Queen v. Beauregard, [1986] 2 S.C.R. 56.
Judge Charles also contends that the Attorney General has advanced no s. 1 evidence with respect to s. 47(3) of the Courts of Justice Act. In my view, the Attorney General need not do this in light of the comprehensive - and explicitly unrestricted - nature of the Court's s. 1 analysis in McKinney.
In short, in light of McKinney, s. 47(3) of the Courts of Justice Act is, in policy terms, generous to the judiciary and, in constitutional terms, completely sound. There is no serious issue concerning its validity.

[24] I respectfully agree with that conclusion which is equally applicable here.

[25] In the result, I think that the board erred in law in placing on the GVRD an onus to justify its policy of mandatory retirement beyond the limits of age discrimination prohibited by the Human Rights Code.

[26] I would allow the appeal and dismiss the grievance.

 

"The Honourable Mr. Justice Mackenzie"
 

Reasons for Judgment of the Honourable Madam Justice Prowse:

 

INTRODUCTION

[27] I have had the privilege of reading, in draft form, the reasons for judgment of Mr. Justice Mackenzie. With respect, I am not persuaded that the decision of the Supreme Court of Canada in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, stands for the broad proposition that all government mandatory retirement policies which do not violate provincial human rights legislation are, therefore, justified under s. 1 of the Canadian Charter of Rights and Freedoms (the "Charter"). Rather, I agree with the majority of the arbitration panel that there is an onus on a government employer whose mandatory retirement policy has been found to be in breach s. 15(1) of the Charter to justify its policy under s. 1 of the Charter.

[28] In the event my interpretation of the McKinney decision is incorrect, and the majority of the Supreme Court of Canada intended its decision to have the far-reaching effect contended for by the appellant, and accepted by Mr. Justice Mackenzie, I am, nonetheless, of the view that the decision was not intended by that court to be a determination of the issue for all time. There are intimations in the majority reasons that the issue should be revisited in the future. Since it is now 11 years since McKinney was decided, and since the issue of mandatory retirement is one of considerable importance and concern in our society, I respectfully suggest that the time for revisiting the issue is upon us. In that regard, the facts of this case present an interesting contrast with those of McKinney and the other decisions to which I will presently refer.

[29] I now turn to the particulars of this appeal.

NATURE OF APPEAL

[30] This is an appeal from an arbitration award in which the majority of the arbitration panel (the "Panel") found the mandatory retirement policy of the Greater Vancouver Regional District (the "Employer") was contrary to s. 15(1) of the Charter and not justified under s. 1 of the Charter. The Panel struck down the mandatory retirement policy and ordered that Mr. Coutts (the "Grievor") be reinstated.

ISSUE ON APPEAL

[31] The issue on this appeal is whether the Panel erred in finding that there was an onus on the Employer to justify its mandatory retirement policy under s. 1 of the Charter and in finding that the McKinney decision did not relieve the Employer of its obligation in that regard.

[32] As noted by Mr. Justice Mackenzie, it is not disputed that the Employer is a government entity and that its mandatory retirement policy is a "law" subject to review under the Charter. The Panel so found, and the appeal proceeded on that basis. It is also common ground that the policy contravenes s. 15(1) of the Charter, but that it does not contravene the age discrimination provisions of the Human Rights Code, R.S.B.C. 1996, c. 210.

BACKGROUND

[33] The Employer is a regional district incorporated pursuant to the provisions of the Local Government Act, R.S.B.C. 1996, c. 323. The respondent Union is certified pursuant to the Labour Relations Code, R.S.B.C. 1996, c. 244, to represent certain of the Employer's employees, including the Grievor.

[34] For at least 15 years prior to August 1998, the Employer maintained and consistently applied an unwritten policy of mandatory retirement at age 65. That policy did not form part of a collective agreement. In August 1998, the Employer supplemented the unwritten policy with a written policy statement addressing the subject of "Employment of Persons Aged 65 or Greater". In effect, the written policy extended the unwritten policy by providing for the hiring of "auxiliary" employees over the age of 65 in certain circumstances. The provisions relating to the hiring of auxiliary employees are not in issue on this appeal.

[35] In late August 1998, the Grievor applied for work as a waste management plant operator for the Employer. He had made previous inquiries concerning the qualifications necessary for the job and had upgraded his skills accordingly. He was interviewed for the job and subsequently hired, with his employment to commence on October 17, 1998.

[36] Two days before he was to commence work, the Grievor attended at the Employer's office to fill in the necessary employment forms. At that time, the Employer first became aware that the Grievor was 65 1/2 years of age. The question of his age had not previously arisen. Shortly thereafter, the Employer advised the Grievor that his employment was terminated, based solely on his age and the Employer's mandatory retirement policy. The respondent union grieved the Grievor's dismissal.

[37] At the arbitration hearing, the Employer did not lead evidence pursuant to s. 1 of the Charter to justify its retirement policy. The only justification it provided for the policy (apart from its reliance on McKinney and the fact that the policy was not in breach of the Human Rights Code) was that it was necessary to "manage" its workforce.

[38] As earlier noted, the Panel (one member dissenting) found that the Employer had failed to meet the onus upon it under s. 1 of the Charter. The Panel struck down the policy and reinstated the Grievor.

THE ARBITRATION AWARD

[39] The decision of the Panel contains a thorough analysis of McKinney and its companion decisions: Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; and Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483. The Panel also dealt with subsequent decisions and arbitration awards which have considered McKinney, including Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; Lewis v. Burnaby School District No. 41 (1995), 1 B.C.L.R. (3d) 1 (C.A.); Kamloops (City) v. Canadian Union of Public Employees, Local 900, [1995] B.C.C.A.A.A. No. 334 (QL); Charles v. Canada (Attorney General) (1995), 129 D.L.R. (4th) 114 (Ont. Gen. Div.); and Charles v. Canada (Attorney General), [1995] O.J. No. 2223 (Gen. Div.) (QL).

[40] In its award, the Panel emphasized that the majority in McKinney conducted two separate s. 1 analyses under the Charter. The first was in relation to the specific university mandatory retirement policies in issue, assuming for the sake of this analysis that these policies were "law" subject to the Charter. The second was in relation to s. 9(a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53 (the "Ontario Code"), which permitted discrimination in employment against those over age 65. Both the policies and s. 9(a) of the Ontario Code were found by the majority in McKinney to be justified under s. 1 of the Charter.

[41] In its analysis of McKinney, the Panel reasoned that, if it were clear that mandatory retirement policies which complied with human rights legislation were, therefore, justified under s. 1 of the Charter, it was unnecessary for the Supreme Court of Canada to have conducted an additional s. 1 analysis of the policies. The fact that the court made a point of engaging in a further s. 1 analysis of the policies, on the assumption that they were law to which the Charter applied, indicated that compliance with human rights legislation did not, in itself, amount to a justification of a specific government mandatory retirement policy under s. 1.

[42] That aspect of the Panel's analysis is set out in the following passages at para. 45 of the decision:

The finding that the Ontario (and, in Harrison, the British Columbia) restrictions on protection from age discrimination are constitutionally valid does not determine the effect of the Charter in circumstances to which it has no direct application. It means that an employer in the private sector beyond the direct ambit of the Charter may invoke common law rights to force the retirement of employees at age 65 without violating the human rights legislation. . . . . But the constitutional validity of human rights legislation limiting age discrimination does not determine the validity of mandatory retirement in all circumstances of government to which the Charter has direct application. Had the SCC intended its decision regarding s. 9(a) of the Ontario Code to establish that mandatory retirement is always a reasonable limit on the Charter right to equality, it need not have devoted as much attention as it did to the question of whether the mandatory retirement measures of the universities were justified under s. 1 of the Charter. The separate and extensive analysis of that question, to which we will return below, is consistent with the necessity for an employer seeking to justify mandatory retirement to make its case for a s. 1 limit.
[Emphasis added.]
 

[43] The Panel next referred to the fact that the onus is on the party seeking to justify a limitation of a Charter right to uphold the limitation in accordance with R. v. Oakes, [1986] 1 S.C.R. 103. At para. 49 of the decision, it noted that the Employer had not sought to meet that onus:

In our view, because its mandatory retirement policy infringes on the right to equality under s. 15 of the Charter, the Employer must establish that it is a reasonable limit under s. 1 of the Charter. The Employer did not approach it on that basis. Although the policy is effectively a unilateral management rule, the Employer did not provide the arbitration board with evidence of the policy's objectives. On the explanation elicited from an Employer witness by a member of the arbitration board, it seems the objective is to enable the Employer to "manage" its workforce. The Employer did not purport to meet the other elements of the R. v. Oakes test. It did not seek to demonstrate a rational connection between the policy and its objective, minimal impairment of the relevant Charter right, or proportionality between the effects of the policy and its objective.
 

[44] The Panel reviewed several other decisions before concluding that none of the authorities binding on them supported the Employer's position. In other words, none of the cases clearly held that as long as a government mandatory retirement policy did not offend provincial human rights legislation there was no onus on the Employer to provide any justification for the policy under s. 1 of the Charter. The Panel expressed its conclusion in that regard at paras. 99 and 101 of the award:

Fifth, we reject the Employer's contention that mandatory retirement is a reasonable limit on the right to equality in all government settings. We accept that the decisions in McKinney, Harrison and Stoffman were intended to provide guidance. In McKinney, the SCC indicated that analysis of the issues in the context of the universities' mandatory retirement measure would throw "light on the repercussions of mandatory retirement on the workplace generally" (p. 644). The Employer relies upon this and other aspects of the decisions conveying the same intention to argue the law is settled. But the decisions do not include any pronouncement of universal application. The majority judgments in McKinney identify a mix of several factors and considerations which were important to the conclusion that mandatory retirement was justified under s. 1 of the Charter in that case. A fair and objective analysis of the majority [in] McKinney in conjunction with the facts of the case, the application of the decision by the SCC and the BCCA, and binding judicial references to the decision, do not lead to the conclusion that mandatory retirement is justified in all circumstances.
. . .
In our view the SCC cases contemplate a case-by-case determination of such challenges. On our reading of the majority judgments of La Forest, Sopinka and Cory JJ, it is apparent that such challenges will have little or no prospect of success if the mandatory retirement measure in question has been incorporated into a collective agreement or is otherwise consensual. But if it is not, and if the Charter applies, then the employer bears the burden of establishing the basis on which its mandatory retirement policy is justified under s. 1 of the Charter. As a consequence of McKinney, Harrison and Stoffman, the justification of mandatory retirement under s. 1 of the Charter will be so evident in some cases that the burden will be negligible, rendering it unnecessary for the party defending the measure to call evidence. . . . But, on the evidence received in this case, the facts involve few if any of the factors which were treated as significant in all of the judicial determinations binding on this board. In our view, in these circumstances, the burden under s. 1 of the Charter cannot be simply ignored.
[Emphasis added.]

[45] The dissenting member of the arbitration panel found that McKinney had decided the s. 1 issue for all government mandatory retirement policies, and that as long as such policies complied with provincial human rights legislation, they were justified under s. 1 of the Charter without the necessity of the Employer providing any further justification. In his view, "It makes no sense to say that the legislation permitting retirement at age 65 is OK under the Charter, but that a retirement policy promulgated by an employer in conformity with that legislation is not OK, or rather, must be justified in each case." (p. 2.) This is similar to Mr. Justice Mackenzie's statement, at para. 16 of his reasons, that "it would be incongruous to impose a higher standard than the Human Rights Code upon this employer simply because it is a government entity when it is an employer within provincial jurisdiction."

DISCUSSION

Section 15(1) Of the Charter

[46] In my view, the starting point for a discussion of whether a breach of s. 15(1) of the Charter can be justified under s. 1 should begin with s. 15(1), which provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[47] Section 1, in turn, provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
 

[48] It is not disputed that the Employer's mandatory retirement policy breaches s. 15(1) of the Charter by discriminating against employees, and those seeking employment, on the basis of their age. When determining whether the policy is a reasonable limit on an individual's right not to be discriminated against on the basis of age, it is useful to have regard to the purpose of s. 15(1) and the nature of the rights it was designed to protect.

[49] In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, Mr. Justice Iacobucci, speaking for the court, canvassed earlier decisions of that court with respect to the purpose of s. 15(1) of the Charter. At para. 51 of Law, he stated:

It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society.
 

[50] In discussing the concept of human dignity which underlies s. 15(1) of the Charter, Iacobucci J. stated (at para. 53):

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.
[Emphasis added.]
 

[51] In finding that mandatory retirement policies breach s. 15(1) of the Charter, therefore, the Supreme Court of Canada in McKinney has found that these policies undermine human dignity, that they result in unfair treatment to individuals over age 65, and that they discriminate against individuals solely on the basis of their age, without regard to their individual circumstances, their needs, their capacities or their merits. Thus, these individuals are marginalized and devalued both as individuals, and as members of a group sharing a common characteristic - the characteristic of being "too old".

[52] The question arises, therefore, whether such policies in the public sector can be saved under s. 1 of the Charter and whether that analysis must be conducted on a case-by-case basis. The answer to this question turns on an interpretation of what the Supreme Court of Canada decided in McKinney, in the companion cases decided at the same time as McKinney, and in later decisions which have considered McKinney.

The McKinney Decision

(a) The Facts

[53] In McKinney, eight professors and a librarian at the respondent universities applied for declarations that the universities' mandatory retirement policies requiring the appellants to retire at age 65, and s. 9(a) of the Ontario Code which provided protection from age discrimination in employment only for those under age 65, violated s. 15(1) of the Charter and, if so, if they could be saved under s. 1 of the Charter. The Ontario Human Rights Commission had declined to deal with the appellants' complaints under the Ontario Code on the basis that the complainants were over 65 and, thus, not protected by that legislation.

[54] Mr. Justice La Forest wrote the majority judgment in McKinney (for himself, Dickson C.J., and Gonthier J.), with Sopinka J. and Cory J. each writing separate concurring reasons. Madam Justice Wilson and Madam Justice L'Heureux-Dubé each wrote dissenting reasons.

(b) The Issues

[55] Mr. Justice La Forest stated (at 261) that the issues before the court could be divided into two broad groups: "The first concerns the possible effect of the Charter on the universities' mandatory retirement policies, the second concerns its possible effect on s. 9(a) of the Human Rights Code, 1981."

(c) Charter Analysis of the University Policies

[56] In response to the first issue, La Forest J. found that the universities were not part of government, with the result that their actions in establishing mandatory retirement policies for faculty and staff did not fall within the ambit of the Charter. Despite this finding, La Forest J. went on to discuss the question of whether, assuming the universities formed part of government, their policies violated s. 15(1) of the Charter, and, if so, whether the policies were saved under s. 1.

[57] All members of the court found that the university mandatory retirement policies violated s. 15(1) of the Charter. The court divided, however, on whether the policies could be justified under s. 1 - the majority found that they could be justified; the minority found that they could not be justified. All members of the court agreed that the applicable analysis under s. 1 was that set out in R. v. Oakes, supra, but they differed on the application of the Oakes analysis to the legislative and adjudicative facts before them.

[58] In brief, the majority found that the objectives of the mandatory retirement policies were pressing and substantial in the university context, that the policies were rationally connected to the objectives and that the measures used to obtain those objectives impaired the s. 15(1) right as little as possible. In coming to the latter conclusion, Mr. Justice La Forest emphasized that the policies attempted to strike a balance between the claims of legitimate but competing social values such that deference should be accorded to them, citing for that proposition Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. The test posited in that case was whether the government (in McKinney, the university) had a reasonable basis for concluding that the policies impaired the s. 15(1) right as little as possible given the government's pressing and substantial objectives.

(d) Charter Analysis of s. 9(a) of the Ontario Code

[59] La Forest J. then turned to the issue of whether s. 9(a) of the Ontario Code contravened s. 15(1) of the Charter, and, if so, whether it could be saved under s. 1. In essence, s. 9(a), when read with s. 4(1) of the Ontario Code, provided protection against age discrimination in employment, but only for those between the ages of 18 and 65 years.

[60] The majority of the Ontario Court of Appeal in McKinney had restricted its constitutional analysis of s. 9(a) to the context of the university community. The Supreme Court of Canada held that, since the Ontario Code applied to all types of employment in the provincial sphere, it would not be appropriate to limit the constitutional analysis of s. 9(a) to employment in the university context. In assessing the significance of this fact in relation to the scope of the decision, it is important to remember that s. 9(a) was a provision permitting discrimination against those over age 65, as contrasted with a provision imposing discriminatory treatment against those over 65. This distinction was emphasized by the majority in McKinney.

[61] All members of the court in McKinney agreed that s. 9(a) violated s. 15(1) of the Charter. At p. 291 of the majority decision, Mr. Justice La Forest described the nature of the discrimination at issue:

It is right, however, to indicate with some precision what the discrimination is, and what it is not. The Code does not impose mandatory retirement at any age. Its general effect, in this context, is to prevent the making of a contract providing for mandatory retirement at a fixed age of less than 65 unless the employer is able, under s. 23(b) of the Code, to establish on a balance of probabilities that age is a reasonable and bona fide qualification because of the nature of the employment. Such protection can, in the government sector, also be obtained under the Charter, without reference to age at all, subject to reasonable limitation under s. 1. The Code, however, extends protection within the age limits prescribed against age discrimination in employment in the private sector which, we saw, is not directly affected by the Charter.
[Emphasis added.]
 

[62] Thus, La Forest J. described s. 9(a) as a permissive, as opposed to a mandatory provision, designed to protect against age discrimination, rather than to impose it. By way of contrast, Madam Justice Wilson, in her dissenting reasons, described the nature of the discrimination permitted under s. 9(a) in much less benign terms (at 414):

Section 9(a) not only implicitly permits mandatory retirement; it also implicitly operates to permit all forms of age discrimination in the employment context for those over the age of 65. For instance, discriminatory discipline, remuneration and job classification are also not prohibited by the Code. Thus, even although the Attorney General has confined his submissions respecting the Code to the value of mandatory retirement in furthering the objectives of the legislature, it is clear that s. 9(a) is not so limited.
 

[63] Before embarking on a s. 1 analysis of s. 9(a) of the Ontario Code, Mr. Justice La Forest provided a brief overview of the history of mandatory retirement. He noted that, in Canada, mandatory retirement developed in conjunction with the introduction of private and public pension plans. At pp. 294-95 of his reasons he stated:

Private businesses developed or adapted their plans to complement and integrate with government pensions. About one half of the Canadian work force occupy jobs subject to mandatory retirement, and about two-thirds of collective agreements in Canada contain mandatory retirement provisions at the age of 65, which reflects that it is not a condition imposed on the workers but one which they themselves bargain for through their own organizations. Generally, it seems fair to say that 65 has now become generally accepted as the "normal" age of retirement. This has had profound implications for the organization of the workplace - for the structuring of pension plans, for fairness and security of tenure in the workplace, and for work opportunities for others. . . .
To put it in its simplest terms, mandatory retirement has become part of the very fabric of the organization of the labour market in this country. This was the situation when s. 9(a) of the Human Rights Code, 1981 was enacted. It was the situation when the Charter was proclaimed as well.
 

[64] Mr. Justice La Forest also noted that age had not been historically recognized as an unacceptable ground of discrimination, and that it was not until 1973 that the General Assembly of the United Nations, in emphasizing "respect for the dignity and worth of the human person", urged its members to "discourage, whenever and wherever the overall situation allows, discriminatory attitudes, policies and measures in employment practices based exclusively on age" (G.A. Res. 3137, U.N. Doc. A19030 (1973). He also noted that there had been "a profound alteration in society's view of age discrimination in recent years" and that Quebec, New Brunswick, Manitoba and the federal government had gone much further than either Ontario or British Columbia by prohibiting discrimination in employment altogether. Further, 1986 amendments to the United States Age Discrimination in Employment Act, 29 U.S.C. . 621-634, abolished mandatory retirement as of 1993, subject to specified exceptions. Mandatory retirement has also been abolished in New Zealand and Australia.

[65] In conducting his s. 1 analysis with reference to the objectives of s. 9(a), Mr. Justice La Forest placed particular emphasis on the Ontario legislative debates relating to these provisions. At p. 301, he summarized the net effect of those debates as follows:

What comes out clearly from the debates is the anguish of the members in the face of a measure, which for reasons they viewed as overriding, they felt could not be extended to the protection of the elderly, and the government undertook to make further studies of the ramifications of raising the age limit.
 

[66] Mr. Justice La Forest found that the concerns emphasized by the Legislature in extending employment protection only to those under 65 years of age met the first head of the Oakes test; namely, that the objectives of the legislation met a pressing and substantial concern. At p. 302, he described the nature of that concern as follows:

What we are confronted with is a complex socio-economic problem that involves the basic and interconnected rules of the workplace throughout the whole of our society. As already mentioned, the Legislature was not operating in a vacuum. Mandatory retirement has long been with us; it is widespread throughout the labour market; it involves 50 per cent of the workforce. The Legislature's concerns were with the ramifications of changing what had for long been the rule on such important social issues as its effect on pension plans, youth employment, the desirability of those in the workplace to bargain for and organize their own terms of employment, the advantages flowing from expectations and ongoing arrangements about terms of employment, including not only retirement, but seniority and tenure and, indeed, almost every aspect of the employer-employee relationship. These issues are surely of "pressing and substantial [concern] in a free and democratic society".
 

[67] La Forest J. also found that there was a rational connection between the objectives of the legislation and the measures used to achieve them: ". . . there is nothing irrational in a system that permits those in the private sector to determine for themselves the age of retirement suitable to a particular area of activity." (at 304.) In this passage, he restricted his comments to the private sector and appeared to contemplate that mandatory retirement policies would be adapted to the specific nature and requirements of the employment at issue.

[68] In addressing the question of minimal impairment, La Forest J. chose to defer to the legislature, as he had done when analyzing the university policies as law. In so doing, he reiterated his earlier statement that age 65 had come to be regarded as the "normal" age of retirement in the workplace, and that it formed part of a web of closely interconnected employment issues. He referred back to his earlier analysis of mandatory retirement policies in the university context and stated, at 306-8:

As I mentioned earlier, while s. 9(a) cannot be looked at in the discrete setting of the university, it serves as a microcosm that throws important light on what is a widespread labour market phenomenon involving 50 per cent of the work force and undoubtedly affecting other areas by a kind of osmosis.
While there are significant differences from sector to sector, the university system is in many respects a reflection of many other parts of the work force where mandatory retirement is part of a complex, interrelated, lifetime contractual arrangement involving something like deferred compensation. Certainly it is true of union-organized labour where seniority serves as something of a functional equivalent to tenure. Seniority not only allocates the high paying jobs to senior people; it protects them against layoffs which are first allocated to younger people. And it takes no great stretch of the imagination to understand that reduction in performance in the years before retirement will be met with more understanding and tolerance than if the person were not close to retirement. As I indicated, this type of arrangement is reflected by osmotic forces in many other areas of the work force. Many organizations are so arranged that the individual is paid increasingly higher remuneration with the years with the expectation or understanding that he or she will depart at a certain stage.
* * *
In tinkering with mandatory retirement, we are affecting an institution closely intertwined with other organizing rules of the workplace.
 

[69] After referring to the evidence led by the parties illustrating the arguments for and against mandatory retirement, La Forest J. concluded that the court should respect the Ontario Legislature's cautious approach to the issue. In response to the argument that different legislative bodies in Canada and other jurisdictions had taken different approaches to this issue by abolishing mandatory retirement, Mr. Justice La Forest stated, at 309-10, that it was too early to know what the ramifications of that approach would be and "the evidence is that it will be some 15 to 20 years before a reliable analysis can be made." In the meantime, La Forest J. determined that there was not a sufficient basis for interfering with the legislative choice made by the Ontario Legislature in enacting s. 9(a).

[70] In response to the argument that the Legislature should tailor its legislation to permit mandatory retirement only in those industries in which age constitutes a reasonable and bona fide occupational requirement, La Forest J. noted that this would present difficulties for the Legislature in divining the results of such legislation in advance, and that there was a question of whether human rights commissions were the most appropriate body to make that assessment. He went on to state, at 312:

Indeed, there are not only valid economic reasons, but sound reasons of social policy, for the Legislature's not imposing its will in the area. Mandatory retirement is not government policy in respect of which the Charter may be directly invoked. It is an arrangement negotiated in the private sector, and it can only be brought into the ambit of the Charter tangentially because the Legislature has attempted to protect, not attack, a Charter value.
[Emphasis added.]
 

[71] This passage indicates that the majority of the court was focused on s. 9(a) as it impacted on the private sector; it was not addressing the impact of mandatory retirement policies at large. This focus is emphasized at 312 of the decision:

It must be remembered that what we are dealing with is not regulation of the government's employees; nor is it government policy favouring mandatory retirement. It simply reflects a permissive policy. It allows those in different parts of the private sector to determine their work conditions for themselves, either personally or through their representative organizations. It was not a condition imposed on employees. Rather it derives in substantial measure from arrangements which the union movement or individual employees have struggled to obtain.

[72] The majority in McKinney returned to the importance of deferring to legislative choices toward the end of its analysis. La Forest J. again posited, and applied, the relaxed minimal impairment test from Irwin Toy, supra; namely, whether "the Legislature had a reasonable basis for concluding that the rights of the aged were impaired as little as possible given the government's pressing and substantial objectives." The majority concluded that the Legislature had a reasonable basis for restricting the protection against age discrimination in employment to those under age 65. In the result, the legislation met the necessary test for justification of s. 9(a) under the Oakes analysis.

[73] In summary, that aspect of the McKinney judgment which dealt with the constitutionality of s. 9(a) of the Ontario Code, was addressing the constitutionality of permissive human rights legislation limiting the protection against age discrimination in the private sector. The majority emphasized that it was not dealing with mandatory retirement policies amounting to law in the public sector.

(e) Other Judgments in McKinney

[74] Before turning to the companion cases decided at the same time as McKinney, I will refer briefly to the judgments of the other members of the court in McKinney, with emphasis on the s. 1 analysis. These judgments highlight, not only the importance of the issue, but also the different perspectives on the issue.

[75] In her dissenting reasons, Madam Justice Wilson concluded that the universities were part of government, but that their mandatory retirement policies failed the proportionality test in Oakes. In her view, there was no basis for relaxing the Oakes minimal impairment test in the circumstances.

[76] In addressing the constitutionality of s. 9(a) of the Ontario Code, Madam Justice Wilson concluded that it permitted not only mandatory retirement, but also other forms of discrimination in employment which could not be justified under s. 1.

[77] Madam Justice L'Heureux-Dubé agreed with the majority that universities were not part of government. She found that it was unnecessary, therefore, to examine their mandatory retirement policies as if they were law and subject to Charter scrutiny. She agreed with the majority that s. 9(a) breached s. 15(1) of the Charter, but she concluded that the breach could not be justified under s. 1. In coming to that conclusion, she rejected, as unpersuasive, the arguments relied upon by the majority in taking a deferential approach to the Ontario Legislature's decision not to extend employment protection to those over 65 years of age (at 433-34):

The fact that "mandatory retirement has become part of the very fabric of the organization of the labour market in this country" (at p. 295) is inapposite to the present analysis in so far as it ignores the promulgation of both the Canadian Charter of Rights and Freedoms and the Human Rights Code, 1981. Furthermore, I strongly disagree with the assertion, at p. 299, that "[t]hose over 65 are by and large not as seriously exposed to the adverse results of unemployment as those under that age". While this may be true for an "elite" sub-group that can afford to retire, it certainly does not apply to the majority of retirees, especially during periods of high inflation. The adverse effects of mandatory retirement are most painfully felt by the poor. The elderly often face staggering financial difficulties; indexed pensions have not kept pace with inflation, and a dollar saved at an earlier time in anticipation of retirement buys only pennies worth of goods today. This is predominantly true when applied to non-unionized employees, who presently constitute 50 per cent of the Canadian work force.
The median income of those over 65 is less than half the median income of average Canadians, and there is a wide disparity among these individuals many of whom have no, or very small, private pension incomes. Moreover, women are particularly affected by this deficiency. Upon attaining the age of 65, women often have either lower or no pension income since a greater proportion of them are in jobs where they are less likely to be offered pension plan coverage. Women are more susceptible to interrupted work histories, partly as a result [page 434] of childcare responsibilities, thereby losing potential pension coverage. Furthermore, women are prone to have lower lifetime earnings upon which pension benefits are based.
Section 9(a) denies protection against employment discrimination to those over 65 whether or not there is an adequate, or indeed any, pension plan at the particular work place, whether or not the integrity of the existing pension plan would be affected if employees did not retire at age 65, and whether or not the employer intends to or actually does replace retired employees with younger workers. In short, s. 9(a) permits discrimination against older workers even where retired employees are not replaced by younger employees, and where the pension plan is not affected in any way.

[78] Madam Justice L'Heureux-Dubé reiterated these views in the subsequent decision of Dickason, to which I will refer later in these reasons.

[79] In his analysis, Mr. Justice Sopinka viewed the issue before him as one of whether mandatory retirement, at large, was unconstitutional. This is apparent from the first paragraph of his reasons (at 443-44) in which he states that "I share the opinion of my colleague La Forest J. that mandatory retirement is not unconstitutional." To the extent that this statement suggests that La Forest J. was ruling on the constitutionality of all mandatory retirement policies, I note that it is not in accord with Mr. Justice La Forest's reasons as a whole (see, for example, his comments quoted at paras. 70 and 71 of these reasons).

[80] In agreeing with Mr. Justice La Forest that both the university policies and s. 9(a) of the Ontario Code were saved under s. 1 of the Charter, Mr. Justice Sopinka described this result as being "more in accord with the democratic principles which the Charter is intended to uphold".

[81] It is apparent that Mr. Justice Sopinka was of the view that mandatory retirement policies reflected the will of the majority of Canadians, both within government and within organized labour, and that the courts should be reluctant, therefore, to interfere with them. I interject, however, that one of the primary functions of s. 15(1) of the Charter has been to protect minorities from the occasionally discriminatory aspects of majority rule by permitting the courts to strike down discriminatory laws. The role of the courts in protecting the rights of minorities and others who suffer from discriminatory treatment is an important facet of the democratic process in our country.

[82] Mr. Justice Cory agreed with Madam Justice Wilson that universities form part of "government" such that their mandatory retirement policies are subject to s. 15 and s. 1 of the Charter. He agreed with Mr. Justice La Forest, however, that both those policies and s. 9(a) of the Ontario Code were saved under s. 1. Like Mr. Justice Sopinka, Cory J. was influenced in his decision by the fact that organized labour opposed the abolition of mandatory retirement policies, which were a common feature of collective agreements.

(f) Discussion - Majority Rule and Legislative Deference

[83] In my view, the difficulty with according too much deference to legislative choices and the demands of organized labour where the breach sought to be justified is of s. 15(1) of the Charter, is that they focus on majority rule, rather than on the protection of minority rights. It should not be assumed that collective agreements protect the rights of minorities - certainly mandatory retirement policies do not protect the rights of many older members of the workforce. In my view, the courts would give little credence to legislative or labour preferences if the groups subjected to discriminatory treatment were women or ethnic minorities. Why, then, should the courts give credence to these views where the group discriminated against is the elderly and where the sole basis of discrimination is that they are elderly? With respect, it is not an answer to say that discrimination on the basis of age is unlike any other form of discrimination in that (nearly) everyone gets old; i.e., eventually shares the characteristics of the group discriminated against. I fail to see how that ameliorates the need to protect the elderly from discrimination, much less justifies or lessens the impact of such discrimination.

[84] Further, while it is undoubtedly true that judicial deference to legislative choices played a significant role in the McKinney decision, it is far from the beginning and the end of a s. 1 analysis. Once a law has been found to be in breach of a Charter right, the court invariably embarks on an Oakes analysis based on the adjudicative and legislative facts presented by the parties. As part of that process, the court is entitled to look at the various factors considered by the Legislature in arriving at its legislative choices and to accord deference to those choices if the circumstances warrant it. Simply because legislative debates provide reasons for legislative choices does not guarantee that those choices will be accorded deference. The reasons relied on by the Legislature may not be justified on the evidence before the court, or otherwise. In some cases, the evidence before the court may establish that the Legislature is misinformed as to the facts, or has limited facts at its disposal, such that no legislative deference is appropriate. In other cases, it may be that the courts are presented with arguments which were not considered by the Legislature in making its choices. In this regard, it is important to note that different legislative bodies, both inside and outside Canada, have made different legislative choices with respect to the issue of mandatory retirement.

[85] In McKinney, the majority deferred to the Ontario legislature with respect to s. 9(a) of the Ontario Code and with respect to the university mandatory retirement policies (assuming for that purpose that the universities were government and that their policies were law). I agree with the Panel, however, that a close reading of the McKinney decision does not support the conclusion that the majority pronounced upon the constitutionality of all mandatory retirement policies in the public sector.

[86] I now turn to the companion judgments released by the Supreme Court of Canada with McKinney to determine if they lead to a different conclusion.

THE COMPANION DECISIONS

(a) Harrison v. University of British Columbia

[87] Harrison was one of a trilogy of cases arising in British Columbia (Harrison, Stoffman and Douglas College, all supra) which made their way to the Supreme Court of Canada and were released at the same time as McKinney.

[88] The decision of the Supreme Court of Canada in Harrison mirrored its decision in McKinney with respect to the constitutionality of the mandatory retirement policy at the University of British Columbia for its faculty and administrative staff, and the constitutionality of the definition of age in s. 1 of the Human Rights Act, S.B.C. 1984, c. 22.

[89] Mr. Justice La Forest, speaking for the majority, found that: "The facts, issues and constitutional questions being similar to those considered in McKinney v. University of Guelph, supra, it follows that the present appeals are governed by that case." Thus, the Harrison decision adds nothing to the analysis of the scope of the Supreme Court of Canada's decision in McKinney.

(b) Douglas/Kwantlen Faculty Assn. v. Douglas College

[90] The underlying question in this case was whether a provision of a collective agreement entered into between an agent of the Crown (Douglas College) and the respondent association (a trade union representing the College's employees) that required the employees to retire at age 65, violated s. 15(1) of the Charter and, if so, whether it could be saved under s. 1. This question was never answered because a preliminary issue arose as to whether an arbitrator had the jurisdiction to determine such an issue in the context of a grievance by the two employees who were contesting the decision to retire them under the provisions of the collective agreement.

[91] The arbitrator held that Douglas College was a government institution to which the Charter applied and that the provision in question breached s. 15(1) of the Charter. He did not go on to consider whether the provision was saved under s. 1 of the Charter, or whether the association was estopped from claiming the benefit of the Charter by virtue of the collective agreement. An appeal to this Court was dismissed.

[92] All members of the Supreme Court of Canada, except Sopinka J., concluded that the provisions of the collective agreement dealing with mandatory retirement were law to which the Charter applied. The court was unanimous that the arbitrator had the jurisdiction to decide the Charter issues. It then observed that the issues of estoppel and whether s. 1 of the Charter applied were to be dealt with in the second phase of the arbitral hearings.

[93] It is noteworthy that there is no suggestion in Douglas College that the s. 1 issue was moot on the basis that McKinney had already decided that all mandatory retirement policies imposed by government were saved under s. 1 of the Charter. Rather, the issue was left as a "live" issue to be determined in the second phase of the arbitral proceedings.

(c) Stoffman v. Vancouver General Hospital

[94] In Stoffman, the respondent doctors held admitting privileges at the Vancouver General Hospital (the "hospital"). The hospital's Medical Staff Regulation 5.04 required all physicians to retire at age 65 unless they could show that they had something unique to offer the hospital. The Regulation was approved by the hospital's Board of Trustees and subsequently approved by the Minister of Health. The Board decided not to renew the admitting privileges of the respondent doctors after they turned 65. It was common ground that the doctors were not employees of the hospital and therefore did not come within the protection against age-based employment discrimination found in the Human Rights Act. In any event, the decisions in McKinney and Harrison made it clear that the doctors would not have succeeded in attacking the age discrimination provisions of the Human Rights Act even if they had been hospital employees.

[95] The issue before the court was whether the hospital was government within the meaning of the Charter such that its mandatory retirement policy could be attacked as being in breach of s. 15(1) of the Charter, and not justified under s. 1.

[96] Mr. Justice La Forest, for the majority, held that the hospital did not form part of government and, accordingly, its actions in adopting and administering the mandatory retirement Regulation at issue did not fall within the ambit of the Charter.

[97] As in McKinney, however, the majority went on to assume that the hospital was government within the meaning of the Charter for the purpose of considering whether the mandatory retirement Regulation could survive a challenge under s. 15(1) of the Charter. In the result, the majority concluded that, although the Regulation breached s. 15(1) of the Charter and constituted discrimination based on age, it could be justified under s. 1. This conclusion was not treated as self-evident, nor as having been resolved by the analysis of essentially the same issue in relation to university mandatory retirement policies in McKinney.

[98] It is noteworthy that Cory J., who had agreed with the majority in McKinney that the university mandatory retirement policies could be saved under s. 1, agreed with the dissenting judgments of Wilson J. and L'Heureux-Dubé J. in Stoffman that the Regulation in issue could not be justified under s. 1. He found that there were significant factual differences between the cases. This is of particular significance given a comment made by Mr. Justice Cory in the Dickason decision, to which I will soon turn, suggesting that McKinney had resolved the constitutionality of all mandatory retirement policies in the public sector.

[99] In summary, both the majority and the minority judgments in Stoffman engaged in a full s. 1 analysis in accordance with the tests outlined in Oakes. This would have been unnecessary had McKinney determined the s. 1 issue with respect to all government mandatory retirement policies in the public sector.

SUMMARY OF McKINNEY AND THE COMPANION CASES

[100] I agree with the Panel that McKinney and its companion decisions did not decide that all government mandatory retirement policies are saved under s. 1 of the Charter solely because they do not contravene relevant provincial human rights legislation. Although the mandatory retirement provisions in issue in Harrison, Douglas College and Stoffman complied with the B.C. Human Rights Act, the court did not rely on the constitutionality of that legislation as being determinative of the s. 1 argument with respect to the mandatory retirement policies themselves. In Stoffman, the court engaged in a full s. 1 analysis, and in Douglas College it left that analysis to be determined by the arbitrator at the second stage of the arbitral proceedings. It was unnecessary for the court to engage in a s. 1 analysis in Harrison since the facts and issues were almost identical to those in McKinney.

[101] The next question which arises is whether any decisions of the Supreme Court of Canada, or of this Court, since McKinney cast a different light on the scope of the McKinney and related decisions.

DECISIONS SINCE McKINNEY

(a) Dickason v. The Governors of the University of Alberta

[102] A decision upon which the appellant places particular reliance in support of its submission concerning the scope of the McKinney decision is Dickason, supra. There, the appellant was a tenured full professor at the University of Alberta who was forced to retire at age 65 pursuant to a mandatory retirement clause in the collective agreement between the university and its academic staff. The appellant filed a complaint with the Alberta Human Rights Commission alleging that the mandatory retirement provision contravened s. 7 of the Individual's Rights Protection Act, R.S.A. 1980, c. I-2 (the "IRPA") by discriminating against her on the basis of her age. Unlike the Ontario Code and the B.C. Human Rights Act, the IRPA did not limit its protection against employment discrimination to those under 65. However, s. 11.1 of the IRPA provided that discrimination on a prohibited ground, including age, would be permitted if the employer showed that the breach was "reasonable and justifiable in the circumstances."

[103] The Board of Inquiry held in favour of the appellant and ordered that she be reinstated on the basis that the connection between the university's objectives and its mandatory retirement policy was weak and that there were other more reasonable means for the university to achieve its objectives. This decision was upheld by the Court of Queen's Bench, but was overturned by the Alberta Court of Appeal.

[104] The Supreme Court of Canada dismissed Dr. Dickasons's appeal. Cory J. wrote for the majority (La Forest, Gonthier and Iacobucci JJ. concurring) with separate dissenting reasons by Madam Justice L'Heureux-Dubé (concurred in by Madam Justice McLachlin, as she then was) and by Mr. Justice Sopinka.

[105] In his analysis, Mr. Justice Cory emphasized the difference between human rights legislation and constitutional rights at p. 1122 of the decision:

Human rights legislation is aimed at regulating the action of private individuals. The Charter's goal is to regulate and, on occasion, to constrain actions of the state. This essential difference must be borne in mind when the defences provided by s. 1 of the Charter and s. 11.1 of the IRPA are considered.
[Emphasis added.]

[106] Cory J. also emphasized that the deferential standard accorded to legislatures in a constitutional analysis cannot automatically be applied in the consideration of human rights legislation which seeks to regulate the behaviour of private individuals. In this regard, I note that in Dickason, unlike McKinney, it was the application of the legislation that was being challenged, not the legislation itself.

[107] Because of the similarities between s. 1 of the Charter and s. 11.1 of the IRPA, Cory J. concluded that a modified Oakes test could be applied in determining whether the employer had established that the discrimination was "reasonable and justifiable" within the meaning of s. 11.1, as long as that test was applied in a flexible manner and without any deference to the private employer.

[108] When considering the applicability of the McKinney decision to the facts in Dickason, Cory J. made a statement, at p. 1128, which the appellant submits accurately describes the scope of the McKinney decision:

Undoubtedly, this appeal raises a question that is closely related to that which was determined in McKinney. Namely, do the objectives of promoting tenure, academic renewal, planning and resource management and retirement with dignity justify the placing of limits by way of age on the substantive rights to equal treatment? In McKinney La Forest J. writing for the majority determined that the defendant universities were not government for the purposes of the Charter. Nevertheless, he proceeded to examine the institutions' retirement policies on the assumption that they were government actors for the purposes of considering those policies in light of s. 15 and s. 1. Although this section of the judgment is in obiter it clearly disposes of the constitutionality of such policies in government settings. The issue remains however, does McKinney fully decide whether a mandatory retirement policy in a private employment setting can be justified pursuant to the provisions of s. 11.1 of the IRPA?
[Emphasis added.]
 

[109] Although the second underlined passage, standing alone, appears to support the appellant's submission that McKinney is determinative of the constitutionality of all mandatory retirement policies in the public sector, this sentence must be read in light of the first underlined passage which refers to what was being determined in McKinney: "Namely, do the objectives of promoting tenure, academic renewal, planning and resource management and retirement with dignity justify the placing of limits by way of age on the substantive rights to equal treatment?" In Dickason, as in McKinney, the specific context in which the issue was addressed was the university context. Like the Panel, I am not persuaded that this one sentence in a decision released two years after McKinney and its companion cases has the far-reaching meaning attributed to it by the appellant.

[110] In the result, although the s. 1 analysis under the Charter in McKinney was not identical to the analysis under s. 11.1 of the IRPA, the majority in Dickason found that the employer had satisfied the requisite test and that its policy of mandatory retirement was "reasonable and justifiable."

[111] I note, parenthetically, that there is an extensive discussion in Dickason of the relevance to a s. 11.1 analysis of the fact that the mandatory retirement policy formed part of the collective agreement. Since the mandatory retirement policy of the Employer in this case does not form part of the collective agreement, I do not propose to discuss that issue, except to observe that the courts have stated that, as a general rule, parties cannot contract out of human rights legislation.

[112] I turn, now, to the only decision of this Court which has considered McKinney in relation to mandatory retirement policies.

(b) Lewis v. Burnaby School District No. 41

[113] In Lewis, supra, the petitioner was an elementary school teacher required to retire at age 65 pursuant to then s. 147 of the School Act, R.S.B.C. 1979, c. 375. She challenged s. 147 as being contrary to s. 15(1) of the Charter and not justified under s. 1. She succeeded at trial. On appeal, this Court overturned that decision on the basis that:

. . . in so far as the educational field is concerned, McKinney upholds the constitutionality of mandatory retirement provisions in both a government and private setting, subject always to the special circumstances of each case. [para. 3]
[Emphasis added.]

This passage (which was emphasized by the Panel) makes it clear that this Court was not satisfied that McKinney was determinative of the constitutionality of government mandatory retirement policies, even in the education field.

[114] In Lewis, this Court noted the comment of Cory J., speaking for the majority in Dickason, and quoted at para. 108 of these reasons, suggesting that McKinney had determined the constitutionality of mandatory retirement policies in government settings at large. It is evident that this Court did not find that single statement to be determinative of that question, although it observed that Dickason "strongly suggested that McKinney does indeed establish the constitutionality of mandatory retirement in a government setting." (para. 5.) This Court, nonetheless, had regard to the evidence led in Lewis and conducted a full Oakes analysis under s. 1 of the Charter. In the result, this Court concluded that the government had met the onus upon it under s. 1 and that there was not a sufficient basis for distinguishing the case from McKinney to justify a different conclusion.

(c) Other Decisions

[115] The Supreme Court of Canada revisited the issue of age discrimination in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, a decision released shortly after McKinney. There, the appellant lost her job just after her 65th birthday and applied for unemployment insurance benefits. The Employment and Immigration Commission ruled that she was precluded from receiving the usual unemployment insurance benefits because she was over age 65. Under s. 31 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48 (the "Act"), applicants for benefits who were 65 or older were removed from the normal benefit plan and were eligible only for a single, lump-sum retirement benefit, which was an overall lesser amount.

[116] The appellant challenged s. 31 of the Act on the basis that it discriminated against her on the basis of her age. The Federal Court of Appeal ruled in her favour, holding that s. 31 of the Act breached s. 15(1) of the Charter and was not saved under s. 1. The government's appeal to the Supreme Court of Canada was dismissed.

[117] In upholding the decision of the Federal Court of Appeal, Mr. Justice La Forest, speaking for the court on this issue, distinguished McKinney. In so doing, he described the McKinney decision, at 40, as follows:

The approach taken in Andrews was followed by this Court in McKinney, supra, where it was held that, assuming university policies constituted government action, mandatory retirement of university faculty members would violate s. 15(1). Although the Court in McKinney ultimately upheld these policies, it was on the basis that the universities were not government actors and, more important for present purposes, that in the closed environment of a university, mandatory retirement could be justified under s. 1 of the Charter.
[Emphasis added.]

[118] This passage appears to restrict the scope of the McKinney decision. Certainly, there is no suggestion in Mr. Justice La Forest's description of McKinney that the court there was making a definitive statement about mandatory retirement policies at large.

[119] I do not propose to discuss the decisions in Kamloops, and the two Charles decisions, supra, except to say, with respect, that I do not agree with the interpretation they have placed on the McKinney decision for the reasons I have given.

GENERAL SUMMARY

[120] The result of this appeal turns on the interpretation of the McKinney decision. As earlier stated, I am not persuaded that McKinney and its companion decisions decide that all mandatory retirement policies in the public sector are saved under s. 1 of the Charter simply because they do not contravene relevant provincial human rights legislation. Nor am I persuaded that any decisions of the Supreme Court of Canada, or of this Court, since McKinney support that conclusion. I agree with the Panel that the extensive s. 1 analyses engaged in by the Supreme Court of Canada with respect to the mandatory retirement policies in McKinney and Stoffman were unnecessary if compliance with provincial human rights legislation was all that was required to justify all mandatory retirement policies under s. 1 of the Charter.

[121] Nor am I persuaded that the reason the court engaged in the extensive s. 1 analysis of the university policies in McKinney (and the hospital Regulation in Stoffman) was simply for illustrative purposes to support a conclusion that mandatory retirement policies, at large, were constitutional. Although Mr. Justice La Forest referred to the university community as sharing some characteristics with other workplaces, he also stated that:

. . . each sector of the workplace will have different dynamics depending on the individual configuration of that sector, whether it is managerial, professional, technical, skilled or unskilled, whether or not it has a seniority or tenure system attached to it, and whatever the physical and intellectual demands of the work may be. [at 275-76]
 

In other places, he referred to the "closed" nature of university and hospital communities as "unique."

[122] Further, if the majority in McKinney had intended to resolve the issue of the constitutionality of mandatory retirement policies in the public sector for all employment of every kind, one would have expected them to say so in no uncertain terms. They did not. Apart from one sentence in Dickason two years later, and remarks made by Sopinka J. in McKinney and Dickason (speaking only for himself), there is no clear statement that the court was engaged in an analysis that would have the far-reaching effects contended for by the appellant. If anything, the majority took what it viewed to be a "cautious approach" to this issue, the same approach it observed the Ontario Legislature had taken in extending the protection of s. 9(a) of the Ontario Code only to those aged 65 or under.

[123] The majority in McKinney and the companion decisions was well aware of the compelling arguments in favour of abolishing mandatory retirement (many of which are cogently set out in the reasons of L'Heureux-Dubé J. in both McKinney and Dickason) and of the fact that many legislatures had abolished mandatory retirement in favour of provisions incorporating reasonable and bona fide occupational requirements or similar provisions. The majority was also well aware of the devastating effects, both financial and psychological, which mandatory retirement policies could have on those forced to retire against their will when they were ready, willing and able to continue working. Given the significance of these considerations, I am not prepared to assume that the majority simply abandoned the traditional Oakes analysis, which is engaged whenever a law is found to be discriminatory, in favour of a sweeping pronouncement of constitutionality of all mandatory retirement policies in the public sector.

[124] This broad interpretation of McKinney is particularly unlikely given the fact that the court did not have the benefit of a variety of fact patterns before it to enable it to assess how a s. 1 analysis would impact on employment in different segments of the public sector. Certainly, the university and hospital settings could not be taken to be representative of employment in the public sector in general, assuming, as the court did, that universities and hospitals were part of government. The nature of the employment in this case, for example, is a far cry from that in the university or hospital environments.

[125] Is it reasonable to conclude that an employer such as this respondent could simply enact an admittedly discriminatory policy, which on its face does not offend the Human Rights Code, and do no more to justify its policy than refer to McKinney? In my view, the answer to this question is "no". McKinney is not definitive of the constitutionality of all mandatory retirement policies in the public sector, without regard to the nature of the employment or the underlying factual foundation of each case. It does not relieve an employer of the onus of establishing that its policy of mandatory retirement is justifiable under s. 1 of the Charter on an Oakes analysis. It may be that the onus on an employer will be readily met in some cases because of similarities between the case at hand and other decided cases, but the onus must still be satisfied.

[126] While the case-by-case approach to mandatory retirement policies does not have the benefit of certainty of result which a decision declaring all mandatory retirement policies constitutional would provide, certainty of result can be over-rated, particularly where, as here, the court is dealing with policies (laws) which are clearly discriminatory and which have potentially devastating consequences to many of those subject to them.

TIME FOR RECONSIDERATION

[127] In the event that McKinney is found to stand for the proposition that all mandatory retirement policies in the public sector which are not in contravention of provincial human rights legislation are, therefore, justified under s. 1 of the Charter, I would urge the Supreme Court of Canada to reconsider this issue. Eleven years have now passed since McKinney was decided. The demographics of the workplace have changed considerably, not only with respect to the university community, but also in the workplace at large. At least two other countries, Australia and New Zealand have abolished mandatory retirement. Recent studies have been done on the effect of abolishing mandatory retirement in Canada and elsewhere. (See, for example, The Report of the Canadian Human Rights Act Review Panel (Ottawa: Canadian Human Rights Act Review Panel, June 2000, and, Ontario Human Rights Commission, Time for Action: Advancing Human Rights for Older Ontarians (Toronto: Queen's Printer for Ontario, 28 June 2001).) The extent to which mandatory retirement policies impact on other equality rights, and on the mobility of the workforce, have become prominent social issues. The social and legislative facts now available may well cast doubt on the extent to which the courts should defer to legislative decisions made over a decade ago. The issue is certainly one of national importance.

CONCLUSION

[128] I would dismiss the appeal.

 

 

 

"The Honourable Madam Justice Prowse"

 

 

 

Reasons for Judgment of the Honourable Madam Justice Newbury:

 

[129] I have read the Reasons for Judgment of Madam Justice Prowse and Mr. Justice Mackenzie in this matter. I concur with the reasons of Madam Justice Prowse, subject to an issue which we raised at the time of hearing of the appeal - whether the G.V.R.D.'s retirement policy in fact is a "law" for purposes of s. 1 the Canadian Charter of Rights and Freedoms. It provides, of course, that the rights and freedoms guaranteed by the Charter are subject only to such reasonable limits "prescribed by law" as can be demonstrably justified. Counsel advised us that they both considered the retirement policy to be a "law" for these purposes, and I therefore agree that it is proper to make that assumption for purposes of this appeal. However, if this case is appealed further, I suspect that the issue will have to be grappled with, particularly given the unusual circumstances surrounding the formulation of the policy by the G.V.R.D.

[130] These circumstances are set out at paras. 6-8 of the reasons of the majority of the arbitration panel. They noted:

[6] Until August of 1998, the Employer's policy was unwritten. Mr. Johnstone Hardie, the Employer's Administrator of Human Resources, has been with the Employer for fifteen years. He testified that throughout his employment, the Employer "had always practiced retirement of employees not later than the month in which they are 65". Mr. Bill Eastwood has been the President of the Union for more than six years. He testified the Union was unaware of any mandatory retirement policy. But Mr. Eastwood could cite only one instance of an employee who retained regular status beyond the age of 65. He agreed that in that instance the Employer wrongly understood the employee in question was not yet 65. On all of the relevant evidence, we conclude the Employer consistently applied an unwritten policy of mandatory retirement at age 65.
[7] In the spring of 1998, a clerical employee represented by the Teamsters Local 31 requested the Employer to maintain her employment beyond the age of 65. In addition, the most suitable candidate for an auxiliary position within the Union's bargaining unit was more than 65. These matters were considered at a Human Resources staff team meeting in April of 1998. The consensus was that persons over 65 should be given opportunities to work as auxiliary employees in exceptional circumstances. Ms. Nicole Liddell, who was then a Human Resources Compensation Analyst, took responsibility for drafting a written policy to govern the exceptional circumstances.
[8] Ms. Liddell drafted a policy and submitted it to Mr. Hardie and Mr. Mark Leffler, the Employer's Manager of Human Resources and Labour Relations. With their feedback, she finalized the document and Mr. Leffler recommended it to the Employer's Executive Committee. Ms. Liddell testified she did not notify the Union of the Proposal because she was not confident it would be adopted. But the Executive Committee did adopt this policy in early August 1998:
GREATER VANCOUVER REGIONAL DISTRICT
POLICY STATEMENT
SUBJECT: EMPLOYMENT OF PERSONS AGED 65 OR GREATER
PURPOSE The purpose of establishing an Employment of Persons Aged 65 or Greater Policy is to establish the circumstances under which persons aged 65 or greater are eligible for employment with the GVRD.
APPLICATION This policy applies to retirees of the GVRD and external applicants for auxiliary positions in each of: the Teamsters Local 31 bargaining unit; the exempt group; and the GVRDEU bargaining unit (Downtown Eastside Caretaker auxiliaries only).
POLICY 1. Individuals 65 years or greater will be eligible to apply and compete for auxiliary positions with the qualifiers outlined above.
2. Temporary or Regular Full Time employees who wish to work beyond their 65th birthday must terminate their employment with the Corporation and subsequently apply for vacant auxiliary employment opportunities with the GVRD.
3. The best candidate for vacant positions will be identified in a manner consistent with collective agreement language and general policy.
4. Offer letters to successful candidates for auxiliary positions will be of a finite duration.
5. Successful candidates for auxiliary positions will receive a percentage in lieu of benefits in accordance with the respective Collective Agreements or Employment Standards Act.
EFFECTIVE
DATE August 13, 1998
[Emphasis added.]
 

[131] It will be noted that the policy statement does not state directly that persons over 65 were subject to mandatory retirement and ineligible for hiring as regular employees. Instead, it dealt with the circumstances under which persons over 65 could apply for "auxiliary positions", a fact that, the panel noted, allowed the policy to be introduced as one that ameliorated the unwritten policy regarding mandatory retirement. As far as I can tell, that policy remains unwritten.

[132] At para. 15 of their Reasons, the majority of the panel noted Mr. Coutts's concession in his testimony that the policy quoted above was "probably" included in the material he received when he attended at G.V.R.D.'s offices to 'sign up.' Whether it would reasonably have alerted him to a mandatory retirement rule may be arguable.

[133] As noted by Professor Peter Hogg, Constitutional Law of Canada (1997, 4th ed.) vol. 2 at 35.7, the Supreme Court of Canada has not yet carried out a comprehensive analysis of the meaning of "prescribed by law" where it appears in s. 1 of the Charter. Professor Hogg notes that the decisions are consistent with two requirements:

First, in order to preclude arbitrary and discriminatory action by government officials, all official action and derogation of rights must be authorized by law. Secondly, citizens must have a reasonable opportunity to know what is prohibited so that they can act accordingly. Both these values are satisfied by a law that fulfills two requirements: (1) the law must be adequately accessible to the public, and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it, and to provide guidance to those who apply the law.
 

He notes that the Supreme Court of Canada has held that a statute, regulation or rule of the common law will meet the requirement of accessibility, while on the other hand "directives or guidelines which, although issued by government departments or agencies, fall outside the class of officially published delegated legislation, will probably not qualify." In this connection, he cites Re Ontario Film and Video Appreciation Society (1984) 45 O.R. (2d) 80 (Ont. C.A.).

[134] In McKinney v. University of Guelph [1990] 3 S.C.R. 229, 76 D.L.R. (4th) 545, La Forest J. focussed on the meaning of "law" for purposes of s. 15 of the Charter. He noted:

For s. 15 of the Charter to come into operation, the alleged inequality must be one made by "law". The most obvious form of law for this purpose is, of course, a statute or regulation. It is clear, however, that it would be easy for government to circumvent the Charter if the term law were to be restricted to these formal types of law-making. It seems obvious from what McIntyre J. had to say in the Dolphin Delivery case that he intended that exercise by government of a statutory power or discretion would, if exercised in a discriminatory manner prohibited by s. 15, constitute an infringement of that provision. At all events, this Court has now acted on this basis in Slaight Communications Inc. v. Davidson, [[1989] 1 S.C.R. 1038] . . . . On the assumption that the universities form part of the fabric of government, I would have thought their policies on mandatory retirement would amount to a law for the purposes of s. 15 of the Charter. Indeed, in most of the universities, these policies were adopted by the universities in a formal manner. That being so, the fact that they were accepted by the employees should not alter their characterization as law, although this would be a factor to be considered in deciding whether under the circumstances the infringement constituted a reasonable limit under s. 1 of the Charter. [at 644-5; emphasis added.]
 

[135] La Forest J. also observed that American cases dealing with equal protection under the law or due process had not been restricted to legislative activity but applied to discriminatory state action "whether by way of legislation or conduct." He continued:

It may be that the acceptance of a contractual obligation could, in some circumstances, constitute a waiver of a Charter right especially in a case like mandatory retirement, which not only imposes burdens, but benefits on employees. On the whole, though, I think such an arrangement would usually require justification as a reasonable limit under s. 1. That is especially true in the case of a collective agreement, which may or may not really find favour with individual employees subject to discrimination. [at 645-6]

I read these comments to mean that different considerations might apply to the meaning of "law" in s. 1, which permits the rights and freedoms provided elsewhere in the Charter to be abrogated or diminished than apply to sections such as s. 15, which state those rights and freedoms. However, the question was not specifically considered in the s. 1 analysis carried out by La Forest J. in McKinney.

[136] In her dissenting judgment, Wilson J. noted that the word "law" may not have the same meaning throughout the constitution. After citing the judgment of Dickson J. in Operation Dismantle Inc. v. Canada [1985] 1 S.C.R. 441 and that of Lamer J. in R. v. Therens [1985] 1 S.C.R. 613, she reasoned:

These two definitions of "law" are obviously quite different. Their difference springs from the fact that s. 1 of the Charter and s. 52 of the Constitution Act, 1982 serve two very different purposes. Section 52 is animated by the doctrine of constitutional supremacy. As such, a wide view of "law" under that provision is mandated so that all exercises of state power, whether legislative or administrative, are caught by the Charter. Section 1, on the other hand, serves the purpose of permitting limits to be imposed on constitutional rights when the demands of a free and democratic society require them. These limits must, however, be expressed through the rule of law. The definition of law for such purposes must necessarily be narrow. Only those limits on guaranteed rights which have survived the rigours of the law-making process are effective. Just as the meaning of "law" in s. 1 of the Charter and s. 52 of the Constitution Act, 1982, depends on the purpose those sections were meant to achieve, so also does the meaning of "law" in s. 15(1). [at 604; emphasis added.]

[137] Ultimately, Wilson J. concluded that it was not necessary to determine specifically whether the actual policies at issue in McKinney were "law" within the meaning of s. 1. In her analysis, "For reasons analogous to those expressed in Slaight Communications, if the measures instituting mandatory retirement are not reasonable and demonstrably justified, they fall outside the authority of the universities and must be struck down." (at 612.)

[138] In Committee for Commonwealth of Canada v. Canada [1991] 1 S.C.R. 139, the Court was again divided as to whether an order made by the manager of the Dorval Airport, based on an "established policy or internal directive" pursuant to a regulation could be regarded as a "law" that could be justified under s. 1 of the Charter. Lamar C.J.C. (with Sopinka J. concurring) found that such directives or policies differed "essentially from statute and regulations in that they are generally not published and so are not known to the public. Moreover, they are binding only on government officials and may be amended or cancelled at will. For these reasons, the established policy of the government cannot be the subject of the test under s. 1 of the Charter." (at 164.) La Forest J. found that the prohibition was "prescribed by law" (at 165). L'Heureux-Dubé focussed on the specific regulation rather than the internal directive made by the airport manager, but considered at some length whether the regulation and the actions of the airport officials constituted "law" for purposes of s. 1 of the Charter as well as "law" for purposes of s. 32 of the Charter and s. 52 of the Constitution Act, 1982. She considered that the regulation and the directive were "law" for purposes of s. 1 on the broad basis that "government action" was clearly involved:

Here, the R.C.M.P. officers clearly were government agents when they forbade respondents from distributing their pamphlets. Therefore, be it a regulation or a policy, government action is clearly involved here, attracting Charter review, and the analysis under s. 1 applies. [at 224]
 

It appears Cory J. agreed with this portion of L'Heureux-Dubé J.'s reasons.

[139] For her part, McLachlin J. (now C.J.C.) disagreed with Lamar C.J.C.'s position, reasoning as follows:

Even if the respondents' conduct did not fall within the regulation, I would incline to the view that the act of the airport officials in preventing them from handing out leaflets and soliciting members, constitutes a limit prescribed by law, because the officials were acting pursuant to the Crown's legal rights as owner of the premises.
The purpose of restricting s. 1 to limits "prescribed by law" is to eliminate from s. 1 purview conduct which is purely arbitrary. As LeDain J. stated in R. v. Therens [1985] 1 S.C.R. 613, at p. 645:
The requirement that the limit be prescribed by law is chiefly concerned with the distinction between the limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule. . . .
Under the Civil Code of Quebec (or the common law of other provinces) the Crown as property owner is entitled to withdraw permission from an invitee to be present on its property, subject always to the Charter. The act of the airport administrator in limiting expression pursuant to that power constitutes the exercise of a discretion conferred on his or her employer by the Code. The limit, in other words, results from the application of the Code. It follows that it is "prescribed by law" within the test set out by Le Dain J. in Therens.
From a practical point of view, it would be wrong to limit the application of s. 1 to enacted laws or regulations. That would require the Crown to pass detailed regulations to deal with every contingency as a pre-condition of justifying its conduct under s. 1. In my view, such a technical approach does not accord with the spirit of the Charter and would make it unduly difficult to justify limits on rights and freedoms which may be reasonable and, indeed, necessary. [at 244-5; emphasis added.]
 

[140] It may be that taking such a "practical or non-technical approach", the Court in the case at bar would extend the ambit of "prescribed by law" to include an unwritten mandatory retirement policy of a governmental employer even though that policy had never been specifically brought to the attention of the union nor reduced to writing, for that matter. But the circumstances of this case are sufficiently different from those in McKinney and Commonwealth of Canada to merit some consideration, in my respectful view.

[141] Aside from raising this question, I concur with Madam Justice Prowse's Reasons and would dismiss the appeal.

 

 

"The Honourable Madam Justice Newbury"