New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.

New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.
Collection
Supreme Court Judgments
Date
2008-07-18
Neutral citation
2008 SCC 45
Report
[2008] 2 SCR 604
Case number
31652
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
New Brunswick
Subjects
Constitutional law
Pensions
Notes
SCC Case Information: 31652
Decision Content
SUPREME COURT OF CANADA
Citation: New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.,
[2008] 2 S.C.R. 604, 2008 SCC 45
Date: 20080718
Docket: 31652
Between:
New Brunswick (Human Rights Commission)
Appellant
and
Potash Corporation of Saskatchewan Inc.
Respondent
‑ and ‑
Nova Scotia Human Rights Commission, and
Alberta Human Rights and Citizenship Commission
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 43)
Partially Concurring Reasons:
(paras. 44 to 90)
Abella J. (Binnie, LeBel and Rothstein JJ. concurring)
McLachlin C.J. (Deschamps and Charron JJ. concurring)
______________________________
New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., [2008] 2 S.C.R. 604, 2008 SCC 45
New Brunswick (Human Rights Commission) Appellant
v.
Potash Corporation of Saskatchewan Inc. Respondent
and
Nova Scotia Human Rights Commission and
Alberta Human Rights and Citizenship Commission Interveners
Indexed as: New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.
Neutral citation: 2008 SCC 45.
File No.: 31652.
2008: February 19; 2008: July 18.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for new brunswick
Human rights — Discriminatory practices — Discrimination on basis of age — Mandatory retirement — Pension plans — Employee filing complaint alleging age discrimination after being asked to retire at 65 pursuant to mandatory retirement policy contained in pension plan — Provincial human rights legislation expressly declaring that age discrimination provisions not applicable if employer’s decision to terminate employment taken pursuant to “bona fide pension plan” — Criteria required to show that pension plan is “bona fide pension plan” — Human Rights Code, R.S.N.B. 1973, c. H‑11, s. 3(6)(a).
Pensions — Pension plans — Bona fide pension plans — Criteria required to show that pension plan is “bona fide pension plan” — Human Rights Code, R.S.N.B. 1973, c. H‑11, s. 3(6)(a).
An employee filed a complaint with the New Brunswick Human Rights Commission because he was asked to retire at the age of 65 pursuant to the mandatory retirement policy contained in his employer’s pension plan. He alleged that this constituted age discrimination. Under the provincial Human Rights Code, the age discrimination provisions are expressly declared not to be applicable under s. 3(6)(a) if the employee is terminated pursuant to a “bona fide pension plan”. A Board of Inquiry was asked what constitutes a bona fide pension plan within the meaning of s. 3(6)(a) of the Code. The Board concluded that, once a prima facie case of age discrimination has been made out, the employer had to satisfy the three‑part “bona fide occupational requirement” test from British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”). On judicial review, the Court of Queen’s Bench set aside the Board’s decision and applied a different test, indicating that the pension plan must be both bona fide and reasonable. The Court of Appeal dismissed the employee’s appeal and allowed the employer’s cross‑appeal. It concluded that, under s. 3(6)(a), the applicable test was whether the plan was subjectively and objectively bona fide.
Held: The appeal should be dismissed.
Per Binnie, LeBel, Abella and Rothstein JJ.: The three‑part Meiorin test is applicable to s. 3(5) of the New Brunswick Human Rights Code, which deals with bona fide occupational qualifications, but does not apply to s. 3(6)(a) of the Code, which addresses “bona fide” retirement or pension plans. The words “bona fide” in s. 3(6)(a) are used to qualify a different provision in a different context. When used with “occupational qualification” or similar expressions, “bona fide” is a well‑understood and accepted term of art in human rights law, but pensions have been treated differently in most human rights codes because they arose from different protective concerns. In enacting s. 3(6)(a), the legislature was seeking to confirm the financial protection available to employees under a genuine pension plan while ensuring that they were not arbitrarily deprived of their employment rights pursuant to a sham. If both ss. 3(5) and 3(6)(a) anticipated the same analysis, s. 3(6)(a) would be redundant. Furthermore, the French version of ss. 3(5) and 3(6)(a), as well as the statutory definitions and judicial consideration given to “bona fide pension plan” in the tax and pension context, confirm that the legislature intended different meanings to attach to “bona fide” in s. 3(5) and in s. 3(6)(a). [17‑18] [20] [22] [24] [27]
To meet the bona fide requirement in s. 3(6)(a), a pension plan must be subjectively and objectively bona fide: it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights. The inquiry is into the overall bona fides of the plan, not the actuarial details or mechanics of the terms and conditions of the plan. Registration under the New Brunswick Pension Benefits Act is at least one helpful indication of the bona fides of a pension plan. Accordingly, unless there is evidence that the pension plan as a whole is not legitimate, it will be protected by s. 3(6)(a) from the conclusion that a particular provision compelling retirement at a certain age constitutes age discrimination. [32‑33] [37] [41‑42]
Per McLachlin C.J. and Deschamps and Charron JJ.: A bona fide pension plan under s. 3(6)(a) of the New Brunswick Human Rights Code is one whose mandatory retirement terms (1) were adopted for a purpose rationally connected to the operation and sustainability of the plan, (2) were adopted in good faith and not as a sham to circumvent employee rights, and (3) are reasonably necessary having regard to the operation and sustainability of the plan. This is not an individualized inquiry, but one related to the operation of the plan. This reading of the Code best reflects the legislature’s intent, based on the wording of s. 3(6)(a) and the applicable principles of statutory construction. It preserves the employee’s right to be free of discrimination, unless the operation of the plan requires otherwise. At the same time, it permits employers to effectively administer pension plans. Further, this interpretation of s. 3(6)(a) is consistent not only with other human rights jurisprudence concerning pension plans that make age‑based distinctions, but also with the justification required under the Canadian Charter of Rights and Freedoms and human rights methodology, which looks to what is reasonable, necessary and minimally impairing. [47] [57] [84] [86] [89]
As the overall purpose of s. 3 of the Code is to curtail discriminatory practices, the limitations, including those in s. 3(6)(a), should be construed as furthering the goal of preventing discrimination while permitting sufficient flexibility to ensure fairness and the achievement of employer goals in the workplace. While it should also allow pension plans to operate in a sustainable fashion, an interpretation that overshoots this purpose should be avoided. Sections 3(1) and 3(6)(a), together, should be read as promoting the dual purposes of (1) protecting employees under pension plans from being arbitrarily deprived of the right to work by age discrimination, and (2) protecting the financial security of employees by permitting pension plans to operate on a sustainable basis. Section 3(6)(a) is directed at resolving friction between these two goals when conflicts arise. [60‑61] [63]
Although ss. 3(5) and 3(6)(a) require the application of different frameworks, the central implication of “bona fide” in s. 3(5) and in human rights law generally is the idea that it calls for justification of limits on human rights. The use of the same term in s. 3(6)(a) suggests that the legislature had something similar in mind in enacting the pension plan exemption. Where a prima facie case of age discrimination is made out, the employer will be called upon to show that the provision in the pension plan under which an employee is terminated is a reasonable measure in terms of the functionality and sustainability of the plan. To adopt a “bona fide pension plan” test which requires no significant justification of the limitation on the employee’s right not to be discriminated against on the basis of age and which reduces “bona fide” to the mere idea of not being a sham is to take an impoverished view of the term. A plan whose terms or conditions unjustifiably limit the guaranteed human rights of employees is not a legitimate plan and cannot be considered bona fide. [50] [72‑73] [75] [77]
Cases Cited
By Abella J.
Referred to: McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 408; Snook v. London & West Riding Investments, Ltd., [1967] 1 All E.R. 518.
By McLachlin C.J.
Referred to: Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Zeolkowski, [1989] 1 S.C.R. 1378; O’Neill v. C.P.U. (1996), 28 C.H.R.R. D/24; Volkow v. Summit Logistics Inc. (2004), 49 C.H.R.R. D/261, 2004 BCHRT 43; Bogdanich v. Summit Logistics Inc. (2004), 46 C.C.P.B. 1, 2004 BCHRT 292; Soucie v. Transit Employees’ Health Benefit Plan, [2004] B.C.H.R.T.D. No. 346 (QL), 2004 BCHRT 322; Stefanuk v. Municipal Pension Board of Trustees (2007), 59 C.H.R.R. D/49, 2007 BCHRT 19; Bégin v. Richmond School Dist. No. 38 (2007), 59 C.H.R.R. D/247, 2007 BCHRT 60.
Statutes and Regulations Cited
Act to Amend the Human Rights Act, S.N.B. 1973, c. 45, s. 3(1), (3).
Bill 62, An Act to Amend the Human Rights Act, 2nd Sess., 55th Leg., New Brunswick, 2004‑2005 (date of first reading: June 2, 2005).
Canadian Charter of Rights and Freedoms .
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 20, 20.1.
Employment Standards Act, 2000, S.O. 2000, c. 41, s. 44(1).
Human Rights Act, R.S.N.S. 1989, c. 214, s. 6(f)(i), (g).
Human Rights Act, R.S.P.E.I. 1988, c. H‑12, ss. 6(4), 11, 14(1)(d).
Human Rights Act, S. Nu. 2003, c. 12, s. 9(2), (4).
Human Rights Act, S.N.W.T. 2002, c. 18, s. 7(2), (3).
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14, s. 7(2), (3).
Human Rights Code, R.S.B.C. 1996, c. 210, s. 13(3), (4).
Human Rights Code, R.S.N.B. 1973, c. H‑11, s. 3.
Human Rights Code, R.S.N.L. 1990, c. H‑14, s. 9(1), (5).
Human Rights Code, R.S.O. 1990, c. H.19, ss. 24(1)(b), 25(2), (2.1).
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp .).
Income Tax Regulations, C.R.C. 1978, c. 945, s. 8502(a).
Official Languages Act, S.N.B. 2002, c. O‑0.5, s. 10.
Pension Benefits Act, S.N.B. 1987, c. P‑5.1, s. 1 “pension”, “pension benefit”, “pension plan”, 7, 10, 13(1), (2).
Public Service Superannuation Act, R.S.N.B. 1973, c. P‑26, s. 26.
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, s. 16(4), (7).
Authors Cited
Black’s Law Dictionary, 8th ed. St. Paul, Minn.: Thomson/West, 2004, “bona fide”.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la langue française. Paris: Le Robert, 2002, “effectif”.
Ontario. Legislature of Ontario Debates, Official Report (Hansard), First Sess., 32nd Parl., No. 21, May 15, 1981, p. 743, No. 114, December 1, 1981, p. 4097.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
APPEAL from a judgment of the New Brunswick Court of Appeal (Turnbull, Daigle and Robertson JJ.A.) (2006), 271 D.L.R. (4th) 483, 301 N.B.R. (2d) 204, 783 A.P.R. 204, 45 Admin. L.R. (4th) 233, 53 C.C.P.B. 1, 2007 CLLC ¶230-015, 57 C.H.R.R. D/334, [2006] N.B.J. No. 306 (QL), 2006 CarswellNB 399, 2006 NBCA 74, affirming a decision of Russell J. (2005), 291 N.B.R. (2d) 92, 758 A.P.R. 92, 37 Admin. L.R. (4th) 71, 47 C.C.P.B. 261, 2007 CLLC ¶230-014, 52 C.H.R.R. D/528, [2005] N.B.J. No. 197 (QL), 2005 CarswellNB 273, 2005 NBQB 183. Appeal dismissed.
Jula Hughes, Seamus I. Cox and Kelly VanBuskirk, for the appellant.
Peter T. Zed, Q.C., Nadia M. MacPhee, Clint P. Weiland and Nicholas McHaffie, for the respondent.
Michael J. Wood, Q.C., and Jennifer H. Ross, for the intervener the Nova Scotia Human Rights Commission.
Audrey Dean and Henry S. Brown, Q.C., for the intervener the Alberta Human Rights and Citizenship Commission.
The judgment of Binnie, LeBel, Abella and Rothstein JJ. was delivered by
[1] Abella J. — In 2004, Melrose Scott filed a complaint with the New Brunswick Human Rights Commission because he was asked to retire at the age of 65 pursuant to the mandatory retirement policy contained in his employer’s pension plan. He alleged that this constituted age discrimination. After attempts at conciliation failed, the complaint was referred to a Board of Inquiry for adjudication.
[2] The age discrimination provisions in New Brunswick’s Human Rights Code, R.S.N.B. 1973, c. H-11, are expressly declared not to apply to a decision to terminate an employee if the decision was taken pursuant to a bona fide retirement or pension plan. The dispute in this case is over what test is triggered by the use of the phrase “bona fide” in connection with a pension plan in the Code.
[3] The Board of Inquiry was asked to make a preliminary ruling on what constitutes a bona fide pension plan within the meaning of s. 3(6)(a) of the Code. That is the only issue before us.
[4] Despite the invitation of an intervener, the Alberta Human Rights and Citizenship Commission, that we re-engage in a policy debate about the ongoing legitimacy of mandatory retirement generally, and, in particular, this Court’s related decisions in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, and Dickason v. University of Alberta, [1992] 2 S.C.R. 1103, this case does not present us with the proper opportunity to do so. No constitutional challenge has been made to the relevant provision of the Human Rights Code. As McLachlin J. observed in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”):
Although the various human rights statutes have an elevated legal status (Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321), they remain legislative pronouncements and, in the absence of a constitutional challenge, this Court must interpret them according to their terms, and in light of their purposes. [Emphasis added; para. 43.]
If s. 3(6)(a) is perceived to be in need of constitutional challenge or legislative revision, both options remain available. Neither, however, is before us. Our task, as a result, is limited to discerning what criteria satisfy the test in s. 3(6)(a) of the legislation.
[5] Section 3 of New Brunswick’s Human Rights Code is the statutory framework for examining this issue. The particular provisions which guide the discussion are ss. 3(5) and 3(6)(a), both of which are highlighted:
3(1) No employer, employers’ organization or other person acting on behalf of an employer shall
(a) refuse to employ or continue to employ any person, or
(b) discriminate against any person in respect of employment or any term or condition of employment,
because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity.
3(2) No employment agency shall, because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity, discriminate against any person seeking employment.
3(3) No trade union or employers’ organization shall
(a) exclude any person from full membership,
(b) expel, suspend or otherwise discriminate against any of its members, or
(c) discriminate against any person in respect of his employment by an employer,
because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity.
3(4) No person shall
(a) use or circulate any form of application for employment,
(b) publish or cause to be published any advertisement in connection with employment, or
(c) make any oral or written inquiry in connection with employment,
that expresses either directly or indirectly any limitation, specification or preference, or requires an applicant to furnish any information as to race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity.
3(5) Notwithstanding subsections (1), (2), (3) and (4), a limitation, specification or preference on the basis of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity shall be permitted if such limitation, specification or preference is based upon a bona fide occupational qualification as determined by the Commission.
3(6) The provisions of subsections (1), (2), (3) and (4) as to age do not apply to
(a) the termination of employment or a refusal to employ because of the terms or conditions of any bona fide retirement or pension plan;
(b) the operation of the terms or conditions of any bona fide retirement or pension plan that have the effect of a minimum service requirement; or
(c) the operation of terms or conditions of any bona fide group or employee insurance plan.
3(6.1) The provisions of subsections (1), (2), (3) and (4) as to age do not apply to a limitation, specification, exclusion, denial or preference in relation to a person who has not attained the age of majority if the limitation, specification, exclusion, denial or preference is required or authorized by an Act of the Legislature or a regulation made under that Act.
[6] The Board, adopting the approach to s. 3(6)(a) advanced by the New Brunswick Human Rights Commission, concluded that once a prima facie case of age discrimination has been made out, the employer must satisfy the three-part “bona fide occupational requirement” test from Meiorin in order to show that the pension plan is bona fide ((2004), 52 C.H.R.R. D/508).
[7] Russell J. set aside the Board’s decision ((2005), 291 N.B.R. (2d) 92, 2005 NBQB 183). Rather than the Meiorin approach, he found this Court’s analysis in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, to be applicable to pension plans. He held that even though, unlike the Ontario legislation at issue in Zurich, s. 3(6)(a) does not expressly stipulate that a pension plan be both bona fide and reasonable, both factors are nonetheless relevant in determining whether a pension plan is a bona fide one.
[8] The New Brunswick Human Rights Commission appealed to the Court of Appeal. The employer cross-appealed Russell J.’s conclusion that the “reasonableness” portion of the Zurich test applies to the test for a bona fide pension plan under s. 3(6)(a).
[9] Robertson J.A., writing for the majority in the Court of Appeal, agreed with Russell J. that the Board’s decision ought to be overturned ((2006), 301 N.B.R. (2d) 204, 2006 NBCA 74). He concluded that s. 3(6)(a) was a distinct provision, attracting a different test from the one set out in s. 3(5) dealing with bona fide occupational qualifications. In his view, s. 3(6)(a) was designed, in fact, to relieve employers who had a bona fide pension plan of any obligation under s. 3(5) to justify a mandatory retirement policy as a bona fide occupational qualification.
[10] He also found, unlike Russell J., that the “reasonableness” aspect of the test from Zurich does not apply to s. 3(6)(a) because the word “reasonable”, which appears in the Ontario legislation, does not appear in the New Brunswick Code. The applicable test was, instead, the one stated in the legislation: the bona fides of the plan. Concluding that this was a test with both a subjective and objective component, Robertson J.A. explained:
It is possible to inject an objective component into the bona fides test without reading in a reasonableness test. It is not simply a question of whether an employer honestly believes that . . . the plan was not adopted for purposes of defeating protected rights. That belief has to be measured against an objective standard in the sense that the belief is reasonable in the circumstances of a particular case. For example, if the employer’s pension plan could not be registered under the Pensions Act of New Brunswick, the objective component of the bona fides test might be difficult to satisfy. But this is a far cry from reading into s. 3(6)(a) of the Human Rights Act a reasonableness test as formulated in Zurich Insurance. [para. 80]
[11] For the following reasons, I agree with Robertson J.A.
Analysis
[12] The New Brunswick Human Rights Code establishes a scheme whereby discrimination in employment on the basis of age is prohibited by s. 3(1) to (4). An age-related limitation of these rights is permitted, however, if it is based upon a “bona fide occupational qualification” (s. 3(5)). The Meiorin test is required here to determine whether the age-related limitation is “reasonably necessary to the achievement of legitimate work-related objectives” (Meiorin, at para. 50), and whether the complainant can be accommodated without imposing undue hardship on the employer.
[13] A different framework is set out in s. 3(6)(a). It states very clearly that the protections from age discrimination found in s. 3(1) to (4) “do not apply” when the termination is “because of the terms or conditions of any bona fide retirement or pension plan”.
[14] The New Brunswick Human Rights Commission urged this Court to apply the Meiorin “bona fide occupational requirement” test to determine whether, under s. 3(6)(a), a pension plan is bona fide. In so doing, it relied on this Court’s decision in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, where the Court said, “While the Meiorin test was developed in the employment context, it applies to all claims for discrimination under the B.C. Human Rights Code” (para. 19).
[15] According to the Commission, a Meiorin analysis would require that an employer with a mandatory retirement provision in a pension plan prove:
(1) that the mandatory retirement policy was adopted for a purpose that is rationally connected to the pension plan’s effective operation or integrity; (2) that the mandatory retirement policy was adopted in good faith, in the belief that it was necessary to the fulfillment of that legitimate pension plan-related purpose or goal; and (3) that the mandatory retirement policy is reasonably necessary to accomplish the chosen pension plan-related purpose or goal, in the sense that it is impossible to accommodate individual members like the complainant without imposing undue hardship upon the employer or plan administrator. [Appellant’s Factum, at para. 83]
[16] This is the same test that would apply under s. 3(5).
[17] Section 3(6)(a) addresses “bona fide” retirement or pension plans. Section 3(5), on the other hand, is about “bona fide” occupational qualifications. I do not accept that the words “bona fide” in s. 3(6)(a) attract the same analysis in s. 3(6)(a) as they do in s. 3(5) just because they are both in a human rights statute. We must consider the meaning of the whole phrase, and cannot be guided only by the modifier “bona fide”, whose descriptive content emerges from, but does not define, the statutory context.
[18] There is no doubt that the words “bona fide” have a unique pedigree in human rights jurisprudence. When the words are used together with “occupational qualification”, “occupational requirement” or “reasonable justification”, they have a well-understood meaning and represent an accepted term of art in the human rights world. With respect for the contrary view, the importance of the words “bona fide” in Canadian human rights law is not undermined by the recognition that, when they are used to qualify a different provision in a different context, they are to be given their ordinary meaning of “good faith”.
[19] I accept that human rights legislation must be interpreted in accordance with its quasi-constitutional status. This means that ambiguous language must be interpreted in a way that best reflects the remedial goals of the statute. It does not, however, permit interpretations which are inconsistent with the wording of the legislation. I agree with L’Heureux-Dubé J.’s observation that “where legislation provides tribunals with a specific test for discriminatory justifications, the tribunals should apply that test” (Dickason, at p. 1157).
[20] If both ss. 3(6)(a) and 3(5) meant the same thing, both requiring a Meiorin analysis, s. 3(6)(a) would be redundant. I agree with Robertson J.A.’s conclusion that
it is impermissible to read into s. 3(6)(a) a BFOQ test. To do so would defeat the clear intention of the legislature: to ensure that employers would not have to defend mandatory retirement policies by satisfying the BFOQ requirement set down in s. 3(5). Instead, employers may invoke the defence of bona fide pension plan. In brief, it makes no interpretative sense to have a BFOQ requirement in both s. 3(5) and s. 3(6)(a). [para. 43]
[21] It is interesting to note that the New Brunswick Legislature introduced a Bill in June 2005 which would have repealed s. 3(6)(a) (Bill 62, An Act to Amend the Human Rights Act, 2nd Sess., 55th Leg., 2004-2005). This would have had the effect of requiring employers to justify mandatory retirement policies contained in their pension plans pursuant to the Meiorin analysis. Robertson J.A. pointed out the significance of this proposed (and eventually unimplemented) amendment:
. . . if this Court were to accept the Commission’s interpretative argument that s. 3(6)(a) includes a BFOQ component, there would be no need to repeal s. 3(6)(a). With or without the amendment, an employer would have to satisfy the BFOQ test articulated in Meiorin. In effect, the Commission is asking us to judicially repeal s. 3(6)(a) by adopting an interpretation that negates its obvious purpose. This is one more reason for refusing to read into s. 3(6)(a) a BFOQ test. [para. 65]
[22] The legislature is addressing different concerns in each of ss. 3(5) and 3(6)(a). Pensions were treated differently from limitations or preferences based on occupational qualification because they arose from different protective concerns. This Court recognized in McKinney that “[i]n Canada, mandatory retirement developed with the introduction of private and public pension plans” (p. 293). As such, when age emerged as a protected ground under human rights legislation and, later, the Canadian Charter of Rights and Freedoms , there was widespread concern about its potential impact on legitimate pension plans.
[23] In McKinney, La Forest J. reviewed the Ontario debates leading to the enactment of s. 9(a) of the Human Rights Code, 1981, S.O. 1981, c. 53, limiting protection from age discrimination in employment to people between the ages of 18 and 65. The words at second reading of the Hon. Bob Elgie, then Ontario Minister of Labour, are demonstrative of the concerns held by employees’ groups about the impact on pension plans of permitting age discrimination complaints:
. . . I can appreciate the views of those employees who fear that such a change might result in their delayed retirement and delayed benefits, especially for those older workers who wish to take advantage of what they have considered for years to be the normal age of retirement.
(Ontario Hansard, May 15, 1981, at p. 743)
This concern was voiced again at the Committee stage:
One cannot address this issue without thoughtful consideration of the real issues — the demographic issues, youth unemployment issues, pension benefits and the changes that may be suddenly thrown on people who had not planned it in that way. Those are things that have to be considered.
(Ontario Hansard, December 1, 1981, at p. 4097)
La Forest J. noted that “[t]he 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” (p. 302).
[24] What the legislature was seeking to do in enacting s. 3(6)(a) was to confirm the financial protection available to employees under a genuine pension plan, while at the same time ensuring that they were not arbitrarily deprived of their employment rights pursuant to a sham. In New Brunswick, the pension plan exemption in s. 3(6)(a) was introduced in 1973, at the same time that “age” was added as a prohibited ground of discrimination to s. 3(1) (An Act to Amend the Human Rights Act, S.N.B. 1973, c. 45, ss. 3(1) and 3(3)). This was the way the Province, in its human rights legislation, sought to address the concern that age discrimination claims might make benefits available under bona fide pension plans vulnerable to being destabilized unless protected by legislation.
[25] In fact, most Canadian jurisdictions expressly exempt pension plans from age discrimination claims and have different provisions for dealing with pension plans and for bona fide occupational requirements (Human Rights Code, R.S.O. 1990, c. H.19, ss. 24(1)(b) and 25(2.1); Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 20 and 20.1; Human Rights Act, R.S.N.S. 1989, c. 214, ss. 6(f)(i) and 6(g); Human Rights Code, R.S.B.C. 1996, c. 210, ss. 13(3) and 13(4); Human Rights Act, R.S.P.E.I. 1988, c. H-12, ss. 6(4), 11 and 14(1)(d); Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, ss. 16(4) and 16(7); Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, ss. 7(2) and 7(3); Human Rights Code, R.S.N.L. 1990, c. H-14, ss. 9(1) and 9(5); Human Rights Act, S.N.W.T. 2002, c. 18, ss. 7(2) and 7(3); and Human Rights Act, S. Nu. 2003, c. 12, ss. 9(2) and 9(4)).
[26] The fact that these statutes treat pension plans differently from bona fide occupational requirements is, to me, confirmation that these provisions are intended to perform different protective functions and are subject to different analytic frameworks.
[27] The French version of the statute, deemed by the Official Languages Act, S.N.B. 2002, c. O-0.5, s. 10, to be equally authoritative, also confirms the conclusion that “bona fide” means something different in s. 3(6)(a) than when used in s. 3(5) with the words “occupational qualification”. The equivalent of “bona fide” is expressed differently in s. 3(5) and in s. 3(6)(a). In s. 3(5), “bona fide occupational qualification” is “qualifications professionnelles réellement requises”. This accords with the underlying Meiorin principle, that the qualification must truly be required for the employment. In contrast, a “bona fide pension plan” in s. 3(6)(a) is a “régime de pension effectif”. “Effectif” means “concret, positif, réel, tangible” (Le Nouveau Petit Robert (2002), at p. 838). It does not mean “required”. Clearly the legislature intended different meanings to attach to each provision.
[28] If the words “bona fide” in s. 3(6)(a) are not used the same way as in s. 3(5) and do not, as a result, attract a Meiorin analysis, what do they mean in relation to a pension plan?
[29] I agree with Robertson J.A. that the words bona fide do not import the “reasonableness” analysis from Zurich. Zurich involved a complaint about motor vehicle insurance premiums. At issue was an interpretation of s. 21 of the Ontario Human Rights Code, 1981, which provided:
The right under sections 1 and 3 to equal treatment with respect to services and to contract on equal terms, without discrimination because of age, sex, marital status, family status or handicap, is not infringed where a contract of automobile, life, accident or sickness or disability insurance or a contract of group insurance between an insurer and an association or person other than an employer, or a life annuity, differentiates or makes a distinction, exclusion or preference on reasonable and bona fide grounds because of age, sex, marital status, family status or handicap.
[30] Sopinka J., writing for the majority, concluded that an evaluation of an insurance contract under the Ontario legislation entailed the following two-part analysis:
In my opinion, a discriminatory practice is “reasonable” within the meaning of s. 21 of the Code if (a) it is based on a sound and accepted insurance practice; and (b) there is no practical alternative. Under (a), a practice is sound if it is one which it is desirable to adopt for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk. Under (b), the availability of a practical alternative is a question of fact to be determined having regard to all of the facts of the case.
In order to meet the test of “bona fides”, the practice must be one that was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code. [Emphasis added; pp. 342-43.]
[31] Unlike s. 3(6)(a), the Ontario legislation speaks of a distinction based “on reasonable and bona fide grounds” (s. 21). Section 3(6)(a) of New Brunswick’s Code speaks only of bona fides. I return to McLachlin J.’s admonition in Meiorin that “in the absence of a constitutional challenge, this Court must interpret [human rights statutes] according to their terms” (para. 43). Since s. 3(6)(a) does not use the word “reasonable”, it need not be imported.
[32] I agree with Robertson J.A. too that the bona fides test is one with both subjective and objective components. The subjective requirements of “bona fides” are
not difficult to define — they relate to motives and intentions. It is more difficult to explain what makes a pension plan, objectively, bona fide. In my view, a number of sources direct us to a relatively basic conclusion: a bona fide plan is a legitimate or genuine one.
[33] Section 3(6)(a), notably, states that the age discrimination provisions do not apply to the terms or conditions of any “bona fide pension plan”. The placement of the words “bona fide”, it seems to me, is significant. What this immunizes from claims of age discrimination is a legitimate pension plan, including its terms and conditions, like mandatory retirement. It is the plan itself that is evaluated, not the actuarial details or mechanics of the terms and conditions of the plan. The piecemeal examination of particular terms is, it seems to me, exactly what the legislature intended to avoid by explicitly separating pension plan assessments from occupational qualifications or requirements. This is not to say that the bona fides of a plan cannot be assessed in relation to terms which, by their nature, raise questions about the plan’s legitimacy. But the inquiry is into the overall bona fides of the plan, not of its constituent components.
[34] Black’s Law Dictionary (8th ed. 2004), at p. 186, defined “bona fide” as follows:
1. Made in good faith; without fraud or deceit. 2. Sincere, genuine.
[35] This Court’s explanation of “bona fides” in Zurich is also helpful: “was [the plan] adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code” (p. 343).
[36] There are helpful benchmarks in other legislation dealing with pension benefits. In New Brunswick, pensions are governed by the Pension Benefits Act, S.N.B. 1987, c. P-5.1. In that Act, “pension plan” is defined in s. 1:
“pension plan” means a plan to provide pensions for members of the plan under which the employer or employers of the members are required to make contributions, but does not include
(a) an employees’ profit sharing plan or a deferred profit sharing plan as defined in sections 144 and 147 of the Income Tax Act (Canada),
(a.1) a registered retirement savings plan as defined in subsection 146(1) of the Income Tax Act (Canada),
(b) a plan to provide a retiring allowance as defined in subsection 248(1) of the Income Tax Act (Canada), or
(c) any other prescribed arrangement;
“Pension” is defined as “a pension benefit that is being paid”, and “pension benefit” means:
. . . the aggregate monthly, annual, or other periodic amounts payable, other than ancillary benefits, to a member or former member of a pension plan during the lifetime of the member or former member, to which the member or former member will become entitled under the pension plan upon attainment of the normal retirement date, within ten years before that date or at any time after that date;
Pension plans must be registered under the Act (s. 7). Section 10 sets out the requisite documents for the creation of a pension plan and the information they must contain. If at any time the plan ceases to be in compliance with the Act, the Superintendent can revoke the registration of the plan (s. 13(1)).
[37] While, pursuant to s. 13(2), registration of a pension plan under the Act “shall not be construed as proof that the plan or the amendment complies with this Act
and the regulations”, it seems to me that at least one helpful indication of the bona fides of a pension plan is, as Robertson J.A. noted, whether it has been registered under this Act.
[38] New Brunswick also has a Public Service Superannuation Act, R.S.N.B. 1973, c. P-26, which applies to employees in the public service. Section 26 of that Act concerns the ability of an employee to transfer pensionable service credits under a separate plan to the plan administered under the Act. A “bona fide pension plan” is defined for the purposes of that section as:
“bona fide pension plan” means any pension plan established for employees to which contributions were made, on a regular basis, by the employees and the employer principally for the purpose of providing a pension to the employees upon retirement;
[39] Pension plans may also be registered under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp .). As a condition of registration, the “primary purpose” of pension plans must be “to