Dickason v. University of Alberta

Dickason v. University of Alberta
Collection
Supreme Court Judgments
Date
1992-09-24
Report
[1992] 2 SCR 1103
Case number
22700
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Alberta
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 22700
Decision Content
Dickason v. University of Alberta, [1992] 2 S.C.R. 1103
Olive Patricia Dickason Appellant
v.
The Governors of the University of Alberta Respondent
and
The Alberta Human Rights Commission Respondent
Indexed as: Dickason v. University of Alberta
File No.: 22700.
1992: May 5; 1992: September 24.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for alberta
Civil rights ‑‑ Equality rights ‑‑ Mandatory retirement ‑‑ Provincial legislation prohibiting discrimination on basis of age ‑‑ Employer may show that alleged contravention "reasonable and justifiable in the circumstances" ‑‑ Whether university's policy of mandatory retirement at age 65 justified ‑‑ Whether criteria for limiting Charter rights under s. 1 apply ‑‑ Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, ss. 7, 11.1.
Courts ‑‑ Appellate review ‑‑ Findings of fact ‑‑ Curial deference ‑‑ Whether appellate court should disturb findings of fact made by board of inquiry and Court of Queen's Bench.
Appellant, a tenured full professor at the University of Alberta, was forced to retire at the age of 65 pursuant to a mandatory retirement clause in the collective agreement between the university and its academic staff. She filed a complaint with the Alberta Human Rights Commission alleging that her forced retirement contravened s. 7 of the Individual's Rights Protection Act by discriminating against her on the basis of her age. Section 11.1 of the Act provides that discrimination on a prohibited ground will be permitted if the employer shows that the breach was "reasonable and justifiable in the circumstances". The board of inquiry appointed to hear appellant's complaint decided in her favour and ordered that she be reinstated. The Court of Queen's Bench upheld that decision, but it was overturned by the Court of Appeal.
Held (L'Heureux‑Dubé, Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed. The university has shown that the impugned practice of mandatory retirement is reasonable and justifiable within the meaning of s. 11.1 of the Individual's Rights Protection Act.
Per La Forest, Gonthier, Cory and Iacobucci JJ.: In the construction of human rights legislation, the rights enunciated must be given their full recognition and effect, while defences to the exercise of those rights should be interpreted narrowly. In applying the test set out in Oakes for determining whether legislation can be justified under s. 1 of the Canadian Charter of Rights and Freedoms , the Court has adopted a flexible standard of proof which responds to the varying contexts in which the state seeks to invoke justification for the impugned legislation. Since a challenge brought under the Charter to legislation enacted by the state obviously affects a state interest, due deference must be given to the actions of the state manifested by the legislation under attack. The policy rationale for this varying standard cannot be automatically transferred to the consideration of human rights legislation, where the challenge will be to the actions of a private party. Charter cases may thus assist in the development of the test for determining whether a defence under s. 11.1 of the Individual's Rights Protection Act has been established, but the Oakes model is only appropriate if it is applied without any trace of deference to a private defendant, and only with a large measure of flexibility and due regard to the context.
The common law principle of curial deference to findings of fact made by a court of first instance has been to a large extent adopted in reviewing the decisions of administrative tribunals, although the standard of review will always be governed by the tribunal's empowering legislation. Curial deference must be given to a tribunal's findings of fact where there is a privative clause or where the findings were made within the tribunal's field of specialized knowledge. In this case, however, the Court should not be constrained by the conclusions of the board of inquiry. The Act has clearly indicated that a very broad standard of review would be appropriate. On a plain reading of the Act, it is clear that the legislature specifically intended that appellate courts should examine the evidence anew and, if deemed appropriate, make their own findings of fact. The judge of the Court of Queen's Bench did not hear any viva voce testimony, but rather reassessed the evidence on the basis of the transcript of the board hearing. The Court of Appeal and this Court thus stand in the exactly the same position as he did with precisely the same record to consider, and the policy reasons in favour of deferring to the findings of fact of a trial court do not apply.
While this Court's decision in McKinney can provide some guidance, it does not determine the outcome of this case. When weighing the arguments on the issue of minimal impairment as part of the analysis under s. 1 of the Charter , the majority in McKinney considered whether the government had a reasonable basis for concluding that it impaired the relevant right as little as possible. To frame the question in this way imposes a significantly lower burden of proof on the defendant than s. 11.1 , which requires a defendant to prove that the discriminatory policy, viewed objectively, constitutes only a minimal impairment of the right. While no deference should be given to the policy choice of the defendant, other factors may well be relevant. The courts have respected the unique role of universities in our society as self‑governing centres of learning, research and teaching safeguarded by academic freedom, and over the years have been very cautious in intervening in university affairs. The nurturing of academic freedom and the ensuring of faculty renewal are most delicate matters that do not lend themselves to a single clear-cut answer as to the proportionality between the burden of the discrimination complained of and the objectives sought. The evidence and assessment of competent and experienced university administrators will be of particular significance.
In this case the collective bargaining agreement authorizing compulsory retirement can also properly be taken into account. Parties may not generally contract out of a human rights statute. This rule resulted from the concern that there may be a great discrepancy in bargaining power between the person contracting out of human rights legislation and the party receiving the benefit of that term. Labour codes are specifically designed to overcome or compensate any imbalance in bargaining power, however, and with these statutory safeguards in place collective agreements take on a new and important significance. A collective agreement may very well provide evidence of the reasonableness of a practice which appears on its face to be discriminatory. It should be shown, however, that the agreement was freely negotiated by parties with relatively equal bargaining positions and that it did not discriminate unfairly against minorities. Here the term of the collective agreement relating to compulsory retirement will apply to every member of the faculty association. Moreover, the union did not negotiate the term in a vacuum, but rather in the context of a system of tenure which protects all members of faculty from dismissal without just cause, and provides a pension scheme assuring the financial security of all retiring members of faculty.
The objectives of mandatory retirement were stated to be the preservation of tenure, the promotion of academic renewal, the facilitation of planning and resource management and the protection of "retirement with dignity" for faculty members. Like the objectives put forward in McKinney, in which they are subsumed, they are of sufficient significance to justify the limitation of a constitutional right to equality. The impugned retirement practice is rationally connected to the objectives cited. The retirement of faculty members at the age of 65 ensures that the university may readily predict the rate at which employees will leave the institution and that positions are opened for new faculty. Mandatory retirement also allows the university to renew its faculty by introducing younger members who may bring new perspectives to their disciplines. It provides a means of remedying the twofold problem of limited funding and a "bulge" in the age distribution of professors. As well, the policy supports the existence of a tenure system which creates barriers to the dismissal of faculty members thereby enhancing academic independence. In the university setting, mandatory retirement also withstands the minimal impairment test. No obvious alternative policy exists which would achieve the same results without restricting the individual rights of faculty members. Finally, the effects of the prima facie discrimination are proportional to the legitimate objectives served.
Per L'Heureux‑Dubé and McLachlin JJ. (dissenting): Curial deference to the board of inquiry's findings of fact is consistent with both principle and precedent, and recognizes the "signal advantage" enjoyed by courts of first instance and administrative tribunals, which see and hear witnesses. A board's findings on social fact evidence should also be accorded some deference where these findings fall within the board's specific and primary mandate. A board whose determinations are not protected by a privative clause may be afforded less deference than a board which has the protection of such a clause, but this is only a question of degree.
In this case, it is clear that the trial judge appreciated the advantages enjoyed by the board, and that he relied on the board's findings of fact in making his own. This Court should accord the board's findings a similar measure of respect.
It has been established that human rights legislation is to receive a broad and purposive interpretation. Provisions which provide defences for discriminatory conduct must therefore be read narrowly. The analysis of s. 11.1 of the Act may be approached in a manner consistent with the model established in R. v. Oakes. The test for justifying discrimination under s. 11.1 is a strict one. This test requires the employer, in the face of a discriminatory practice, to prove the absence of a practical alternative to the discriminatory rule, satisfying a civil burden of proof. The flexible standard, whereby the defendant need not show that it adopted the least intrusive and offensive means of implementing policy, does not apply here. The rationale for the flexible standard is judicial deference to legislative choice, based on the idea that, with respect to resources and training, law makers are in a better position than courts to make policy choices between competing interests. This deference to legislative choice is completely unwarranted where, as here, the defendant is not a legislative body.
The university's policy of mandatory retirement at age 65 is not reasonable and justifiable under s. 11.1 of the Act. First, since parties generally may not contract out of human rights legislation, a collective agreement is not evidence of the reasonableness of a discriminatory practice. The prohibition against waiver of human rights provisions arises not only from a concern about inequality in bargaining power, but also because the rights guaranteed by human rights codes are seen as inherent to the dignity of every individual within our society. While the existence of a collective agreement whereby employees agree to limit their own rights may exceptionally be a factor in considering the justifiability of an employer's discriminatory policy, any such agreement must be scrutinized to ensure that it does not discriminate unfairly against a minority of the union membership, and that it was freely negotiated. The particular context of the bargain, including relevant legislation in place at the time of its conclusion, may greatly mitigate its evidentiary weight, as is the case here. In the circumstances, the collective agreement between appellant and the university is not evidence of the reasonableness of its mandatory retirement policy.
In light of this Court's conclusions in McKinney, the university's stated objectives are pressing and substantial. The university's fears about how tenure might be affected should mandatory retirement be eliminated are insufficient, however, to prove a rational connection between its objective of preserving the tenure system and its discriminatory policy. Peer evaluation is a fair and equitable way of assessing professors in good faith, on the basis of their teaching, research and publication records, rather than on their age. Unless abused, it poses no threat to academic freedom, and in fact enhances the value of tenure by ensuring that incompetent professors, young or old, are dismissed. The university has also failed to prove a rational link between the goal of faculty renewal and its policy of mandatory retirement. The argument that mandatory retirement at a fixed age allows the university to open positions to younger academics, thereby at once allowing a fresh infusion of ideas into the institution and remedying the problem of underfunding, does not stand up to scrutiny. It is based on the false premise that older workers are uniformly less productive and original than their younger colleagues. Further, the elimination of mandatory retirement would have only a limited effect on the number of jobs for young academics owing, in part, to the small number of academics who actually wish to keep working beyond the normal retirement age. The institutional planning argument, according to which mandatory retirement is necessary because it allows the administration to plan ahead, should also be dismissed. Other variables, such as resignations, deaths, and early retirement, are predicted with relative certainty by means of statistical forecasts. The slight inconvenience which inevitably remains cannot alone be used as a justification for the denial of equality on the basis of age. The retirement with dignity argument depends entirely on the idea that professors who reach the age of 65 must necessarily fear assessment on the basis of their performance, because that performance has necessarily declined rapidly with age. Given that the evidence conclusively refutes the myth of universal decline, and that peer evaluation is an effective tool for identifying incompetence, this proposition clearly fails at the outset. The policy of mandatory retirement does not in any event meet the minimal impairment test. Peer evaluations, based on objective assessment, offer a far more dignified approach to academic work and are thus infinitely preferable. Encouragement of early retirement is another non‑discriminatory alternative that would achieve the university's goals. Finally, the devastating effects that forced retirement has on a worker's finances, health, and self‑esteem are grossly disproportionate to any advantages the university gains by its discriminatory practice.
Per Sopinka J. (dissenting): The conclusion and for the most part the reasons of L'Heureux‑Dubé J. were agreed with. In McKinney this Court decided that mandatory retirement at a specified age was not constitutionally impermissible. Parliament or a provincial legislature by appropriate legislation could prohibit or permit it. The province of Alberta, in s. 11.1 of its Individual's Rights Protection Act, has left the decision to employers and employees provided that where mandatory retirement is resorted to, the employer must satisfy a board of inquiry that this discriminatory practice is reasonable and justifiable.
The jurisprudence developed with respect to s. 1 of the Charter is a useful guide in applying s. 11.1 . In determining whether the proportionality factor has been met, the Court should not defer to the decision of an employer in the same way as in the case of a governmental actor. The tests developed for the application of s. 1 of the Charter and the defence to discrimination under human rights legislation are similar. While the former as expounded in Oakes is more elaborate, they both require that the impugned measure bear a rational relationship to a legitimate objective. The test is whether the requirement is "reasonably necessary" to assure the performance of the job. This is a question of fact to be determined by a board of inquiry subject to appeal proceedings. All the circumstances must be taken into account, including any agreement or collective agreement between the employer and employees. This is a factor, but in this case it has little or no weight.
The appeal should be allowed because the board of inquiry found on the evidence that the connection between the university's objective and its mandatory retirement policy was weak. Moreover, the board found that there were other more reasonable means for the university to achieve its objectives. No valid reason for disturbing these findings has been made out.
Cases Cited
By Cory J.
Considered: McKinney v. University of Guelph, [1990] 3 S.C.R. 229; referred to: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Klimashewski v. Klimashewski Estate, [1987] 2 S.C.R. 754; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150.
By L'Heureux‑Dubé J. (dissenting)
Harrison v. University of British Columbia (1986), 30 D.L.R. (4th) 206; R. v. Oakes, [1986] 1 S.C.R. 103; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Clarke v. Edinburgh and District Tramways Co., [1919] S.C. (H.L.) 35; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; Klimashewski v. Klimashewski Estate, [1987] 2 S.C.R. 754; N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Re Ontario Human Rights Commission and City of North Bay (1977), 17 O.R. (2d) 712; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150.
By Sopinka J. (dissenting)
McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Oakes, [1986] 1 S.C.R. 103; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Stein v. The Ship "Kathy" K, [1976] 2 S.C.R. 802; Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351.
Statutes and Regulations Cited
Alberta Rules of Court, Alta. Reg. 390/68, r. 518.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15 .
Charter Omnibus Act, S.A. 1985, c. 15, s. 14.
Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, ss. 7 [am. 1990, c. 23, s. 4], 11.1 [ad. 1985, c. 33, s. 5], 31(1), 33, 38(a) [rep. & sub. 1985, c. 15, s. 14].
Individual's Rights Protection Act, S.A. 1972, c. 2, s. 6.
Individual's Rights Protection Amendment Act, 1985, S.A. 1985, c. 33, s. 5.
Human Rights Code, R.S.O. 1990, c. H.19, s. 42(3).
Universities Academic Pension Act, R.S.A. 1980, c. U‑6.
Universities Academic Pension Act, S.A. 1978, c. 36, s. 9.
Universities Academic Pension Plan Act, S.A. 1985, c. U‑6.1.
Authors Cited
Alberta Hansard, May 21, 1985, p. 1085.
Blackburn, Robert T. and Janet H. Lawrence. "Aging and the Quality of Faculty Job Performance" (1986), 23 Review of Educational Research 265.
Cole, Stephen. "Age and Scientific Performance" (1979), 84 Am. J. Soc. 958.
Ford, Robert C. and Myron D. Fottler. "Flexible Retirement: Slowing Early Retirement of Productive Older Employees", [1985] Human Resource Planning 147.
Krashinsky, Michael. "The Case for Eliminating Mandatory Retirement: Why Economics and Human Rights Need Not Conflict" (1988), XIV Canadian Public Policy 40.
Necheles‑Jansyn, Ruth F. "Retirement in Academe: Special Case or Social Model?", [1983] Aging and Work 175.
Ontario. Commission on the Future Development of the Universities of Ontario. Ontario Universities: Options and Futures. Toronto: The Commission, 1984.
Reid, Frank. Economic Aspects of Mandatory Retirement. Toronto: Centre for Industrial Relations and Department of Economics, University of Toronto, 1987.
Roadburg, Alan. Aging: Retirement, Leisure and Work in Canada. Toronto: Methuen, 1984.
Walker, James W. and Harriet L. Lazer. The End of Mandatory Retirement: Implications for Management. New York: John Wiley & Sons, 1978.
APPEAL from a judgment of the Alberta Court of Appeal (1991), 81 Alta. L.R. (2d) 393, 117 A.R. 11, 2 W.A.C. 11, 83 D.L.R. (4th) 1, [1991] 6 W.W.R. 377, reversing a judgment of Murray J. (1988), 62 Alta. L.R. (2d) 209, 91 A.R. 350, 9 C.H.R.R. D/5403, affirming a decision of a Board of Inquiry (1987), 9 C.H.R.R. D/4468, upholding appellant's complaint of unlawful discrimination. Appeal dismissed, L'Heureux‑Dubé, Sopinka and McLachlin JJ. dissenting.
Sheila J. Greckol and Jo‑Ann R. Kolmes, for the appellant.
Peter M. Owen, Q.C., and Greg A. Harding, for the respondent Governors of the University of Alberta.
J. Leslie Wallace and Sarah FitzGerald, for the respondent Alberta Human Rights Commission.
\\Cory J.\\
The judgment of La Forest, Gonthier, Cory and Iacobucci JJ. was delivered by
Cory J. -- At issue on this appeal is whether the mandatory retirement policy for faculty of the University of Alberta contravenes the Individual's Rights Protection Act, R.S.A. 1980, c. I-2, of that province and if it does whether the policy can be justified under s. 11.1 of that Act.
Factual Background
On June 24, 1975 the University of Alberta hired the appellant Dr. Olive Patricia Dickason. On June 22, 1976 Dr. Dickason signed a contract in which she specifically agreed to be bound by the Academic Staff Agreement between the University and the Association of Academic Staff of the University of Alberta (AASUA). Article 18.01 of the agreement provided a normal retirement date for staff members at the age of 65 years. The appellant was appointed an assistant professor on July 1, 1976. On July 1, 1978, the Academic Staff Agreement was re-named as the Faculty Agreement. Article 18.01 was amended to refer to new pension legislation; 65 remained the age of retirement. On November 2, 1979 the University awarded her tenure, pursuant to the provisions of the Faculty Agreement. On June 1, 1985, Dr. Dickason was promoted to the position of full professor. On June 30, 1985, the University retired Dr. Dickason, pursuant to the terms of art. 18.01 of the Faculty Agreement. She was appointed professor emeritus, an indication of the esteem in which she was held. Indeed, her competence as a professor was never questioned.
Dr. Dickason filed a complaint alleging that her forced retirement was a violation of the Individual's Rights Protection Act (the "IRPA"). A Board of Inquiry was appointed and ruled in her favour: (1987), 9 C.H.R.R. D/4468. The University appealed this result to the Court of Queen's Bench without success: (1988), 62 Alta. L.R. (2d) 209, 91 A.R. 350, 9 C.H.R.R. D/5403. A further appeal was taken by the University to the Court of Appeal and that Court overturned the Board's decision: (1991), 81 Alta. L.R. (2d) 393, 117 A.R. 11, 2 W.A.C. 11, 83 D.L.R. (4th) 1, [1991] 6 W.W.R. 377. It is from that decision that this appeal is brought.
Pertinent Legislation
A brief history of the pertinent human rights and pension legislation must be given as these Acts were amended over the years that Dr. Dickason was a member of the Faculty of the University. On January 1, 1973, the Individual's Rights Protection Act, S.A. 1972, c. 2, came into force. It prohibited employment discrimination on the basis of age. However the protected age group was limited to those between 45 and 65 years of age. On July 1, 1978 the province proclaimed the Universities Academic Pension Act, S.A. 1978, c. 36. This provided that every member of the pension plan shall retire on "the normal retirement date" which was stated to be the age of 65 (s. 9). In 1985 the IRPA was amended by the introduction of a provision allowing exceptions to the bar against discrimination where it was "reasonable and justifiable" (Individual's Rights Protection Amendment Act, 1985, S.A. 1985, c. 33, s. 5). On April 18, 1985 the province introduced the Universities Academic Pension Plan Act, S.A. 1985, c. U-6.1. This Act replaced the previous pension legislation and came into force November 1, 1985. The new legislation provided for "a normal pensionable date" of 65 years and allowed the participation of all employees in the plan, including those over that age. On June 5, 1985 the Charter Omnibus Act, S.A. 1985, c. 15, was passed. This removed the cap of 65 years on the age definition contained in the IRPA.
Legislation
Individual's Rights Protection Act
7(1)No employer or person acting on behalf of an employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any term or condition of employment,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin of that person or any other person.
11.1 A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.
33(1) A party to a proceeding before a board of inquiry may appeal the order of the board to the Court of Queen's Bench by originating notice filed with the clerk of the Court of the judicial district in which the inquiry was held.
(2) If the grounds of appeal consist wholly or partly of a question of fact or mixed fact and law, no appeal lies without the leave of a judge of the Court of Queen's Bench.
. . .
(4) The judge may, after taking into consideration any matters that he considers appropriate, grant leave to appeal under subsection (2).
. . .
(6) The Court may confirm, reverse or vary the order of the board and may make any order that the board can make under section 31.
(The wording in s. 33 has since been altered, S.A. 1990, c. 23, s. 14.)
38 In this Act,
(a) "age" means 18 years of age or older;
Proceedings in the Courts Below
Board of Inquiry
The Chairman of the Board of Inquiry found that the University policy of mandatory retirement at age 65 contravened the law. He observed that s. 7 of the IRPA prohibits discrimination on the basis of age. Once that infringement was established the onus then shifted to the employer to show that the discrimination was reasonable and justifiable pursuant to s. 11.1 of the IRPA. The Chairman observed that human rights legislation is fundamental law. As a result, in his view, s. 11.1 should be interpreted restrictively so as to ensure that a right was limited only in "compelling circumstances".
He found that the similarity in wording and legislative purpose between s. 11.1 of the IRPA and s. 1 of the Canadian Charter of Rights and Freedoms was such that the Oakes test should be used as a guide to the application of s. 11.1 of the IRPA. Using that test he found that the University's objectives, namely retirement with dignity, planning, academic renewal and preservation of the tenure system, were of sufficient importance to warrant overriding s. 7 . He found as well that mandatory retirement was connected to all four objectives of the University. However, he concluded that the policy did not survive the minimal impairment test.
The Chairman specifically rejected the University's submission that the collective agreement justified the forced retirement of Professor Dickason. Rather, it was his opinion that the collective agreement in providing for mandatory retirement of faculty members represented an impermissible attempt to contract out of the IRPA.
In the result he ordered that Dr. Dickason be reinstated with compensation for her loss of income and benefits.
Court of Queen's Bench
The judge of first instance agreed that the rights guaranteed by provincial human rights statutes should be protected to the same degree as comparable ones guaranteed in the Charter . He, too, found that the criteria for limiting Charter rights in accordance with s. 1 should be used as a guide to applying s. 11.1 of the IRPA. He concluded that three of the objectives proposed by the University were sufficiently pressing and substantial to justify overriding the s. 7 right although he expressed some doubts as to whether the "retirement with dignity" objective could be sufficient to override s. 7 . He concluded however that the University had not satisfied the onus resting upon it of demonstrating that mandatory retirement was rationally connected to those objectives. If it were required he would also have found that the minimal impairment requirement had not been satisfied by the University.
Alberta Court of Appeal
The Court of Appeal rejected the submission that it should not interfere in findings of fact made by the chambers judge. In doing so it observed that the chambers judge had relied on precisely the same record that was made available on the appeal. The court considered the case in light of the judgment of this Court in McKinney v. University of Guelph, [1990] 3 S.C.R. 229. It noted that La Forest J. had held that universities were not government actors within the scope of the Charter but had then gone on to analyze the mandatory retirement requirement on the hypothetical basis that universities were in fact government actors. The Court of Appeal agreed with the chambers judge that an employer should not receive the "benefit of the doubt legislators may be extended". That is to say, the court was of the view that the deference extended by the courts to legislators should not apply to private employers. The Court of Appeal went on to assume that La Forest J. did not adopt a position of deference when considering the application of s. 1 to universities. It concluded on that basis that the issue in the case at bar was rendered moot and that the university must succeed.
Issues
Two issues are presented in this appeal.
1. Did the Court of Appeal err in concluding that the retirement policy of the University was justified pursuant to s. 11.1 of the IRPA?
2. Should this Court or the Court of Appeal disturb the findings of fact which were made by the Board of Inquiry and the Court of Queen's Bench?
Analysis
The Statutory Scheme Which Applied to Dr. Dickason
Before the merits of this appeal can be explored an explanation must be given as to the statutes which will be considered. At the date of Dr. Dickason's retirement in June 1985 the Universities Academic Pension Act contained a provision which mandated the retirement of faculty members at the age of 65. The new legislation which removed the mandatory retirement age had not yet been proclaimed. Thus, in June 1985 the University of Alberta was required by legislation to enforce the retirement of Dr. Dickason. The University could have raised this statutory requirement to support its defence that the retirement practice was reasonable. It chose not to do so. At the hearing, appellant's counsel explained that the parties had agreed to proceed as if the amendments to the pension legislation had been proclaimed before Dr. Dickason retired. Accordingly, it is not necessary to consider the appellant's submission, referred to in oral argument, that the IRPA guarantee against age discrimination without an age cap had primacy over the pension legislation. Rather, the appeal can be considered in the context of the relevant legislation in its present form.
Age Discrimination
Section 7 of the IRPA prohibits discrimination in employment on the basis of race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin. Dr. Dickason's competence has never been questioned by the University. In these circumstances it is not unexpected that the parties agree that the impugned policy of compulsory retirement contravenes s. 7 of the IRPA. The sole question is whether the practice is justifiable pursuant to the provisions of s. 11.1 of the IRPA.
Section 11.1 of the IRPA
Section 11.1 of the IRPA provides that discrimination on a prohibited ground will be permitted if the defendant (University) establishes that the breach was reasonable and justifiable in the circumstances. The appellant contends that the University failed to meet the onus of proof it bears as an employer to satisfy the test set out in this section. The resolution of this appeal will turn upon the interpretation of the justification defence provided by the section.
What is the Nature of the Test Set by s. 11.1?
Although this Court has not yet considered the application of this section, a number of cases have dealt generally with the interpretation of human rights statutes. Dickson C.J. set out the guiding principles in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134:
Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize these rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.
The right against discrimination provided in human rights statutes will be subject to any defence provided by those same statutes to those who discriminate. However, as McIntyre J. recognized in Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, a defence which allows discrimination to continue stands as an exception to the rule of non-discrimination. In Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, this Court held that while rights should receive a broad interpretation, defences to the exercise of those rights should be interpreted narrowly. Current human rights enactments seek to broaden the impact of individual rights, yet they strive to provide a balancing mechanism so that the many competing interests of society can be accommodated. For example, the Charter provides such a means of balancing by way of s. 1 . Indeed, the parties to this appeal stressed the similarities that exist between s. 1 of the Charter and s. 11.1 of the IRPA. Both sections require that those who are prima facie in breach of the provisions of the Act establish that the breach is "reasonable and justifiable". I think it can be taken that the similarity exists between the Charter and the IRPA because they are designed to serve many of the same functions.
The resemblance between the two sections is apparent on their face. Indeed, the legislature of Alberta did rely upon s. 1 of the Charter as a model when the amendments of the IRPA were enacted. See Alberta Hansard, May 21, 1985, p. 1085. The fact that the two sections are remarkably similar and fulfil comparable roles should be taken into account when interpreting them. Yet it must be remembered there is a crucial difference between human rights legislation and constitutional rights. Human rights legislation is aimed at regulating the actions 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. The cases which have dealt with s. 1 can only provide a useful source for identifying the requirements of s. 11.1 if this basic distinction is kept in mind.
The first and fundamental test for determining whether legislation can be justified under s. 1 of the Charter is set out in R. v. Oakes, [1986] 1 S.C.R. 103. That familiar test directs the party raising a s. 1 defence to demonstrate: (i) that the restriction of a right is undertaken in the pursuit of a pressing and substantial objective and (ii) that the impugned restrictive measure is proportional to the enacted measure as evidenced by the fact that it is (a) rationally connected, (b) constitutes a minimal impairment to the right and (c) is proportional in its effects. In its application, the Court has adopted a flexible standard of proof which responds to the varying contexts in which the state seeks to invoke s. 1 justification for the impugned legislation.
In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, Dickson C.J. and Lamer and Wilson JJ. explained that in perfor