Date: 19991022
Docket: T-126-98
BETWEEN:
LANCE OLMSTEAD
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA
Defendant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Third Party
REASONS FOR JUDGMENT
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application on behalf of the defendant for summary judgment, in accordance with Rules 213 to 219 of the Federal Court Rules, 19981. The ground cited in support of the defendant"s application is that there is no genuine issue for trial. The relief requested is dismissal of the action with costs. The defendant"s application was filed the 10th of September, 1999 and was heard at Vancouver, British Columbia on the 1st of October, 1999.
BACKGROUND
[2] The plaintiff was employed in the Canadian Forces (the "CF"). On or about the 3rd of December, 1986, the plaintiff commenced an action in this Court against Her Majesty the Queen. That action was initiated as a result of the plaintiff"s then impending mandatory retirement from the CF pursuant to the Queen"s Regulations and Orders for the Canadian Forces2 (the "QR & O"s"). The reliefs claimed by the plaintiff in that action included the following:
| (a) A declaration that the Queen"s Regulations and Orders are inconsistent with and contrary to Section 15 of the Canadian Charter of Rights and Freedoms; |
| (b) A declaration that upon a proper interpretation of the Queen"s Regulations and Orders for the Canadian Forces, the said Regulations do not require the Plaintiff to retire from his position as a member of the Canadian Armed Forces; |
| ... |
Essentially, the plaintiff sought to avoid termination of his service in the CF through a determination that the mandatory retirement requirements of the QR & O"s infringed his rights under section 15 of the Canadian Charter of Rights and Freedoms .3
[3] In June of 1990, the plaintiff and the defendant herein concluded a settlement of all of the plaintiff"s claims in the action commenced by him in December of 1986. The settlement provided, among other things, for the re-enrollment of the plaintiff in the CF on a "Special Indeterminate Period" of service to terminate on his 55th birthday. Thereafter, his term of service would be converted to an "extension" for a term of 364 days ending on the day before the plaintiff"s 56th birthday. As part of the settlement, the plaintiff provided a "Full and Final Release of all Claims" which was in part in the following terms:
| ... [the plaintiff] ... DOES HEREBY REMISE, RELEASE AND FOREVER DISCHARGE ... [the defendant]... from all manner of actions, causes of actions, suits, debts, dues, sums of money, claims and demands whatsoever which he ... ever had or now [has], or hereafter can, shall or may have, for or by reason of, or in any way arising out of, or in any way related to [the plaintiff"s] service with or release from the Canadian Forces ... . |
[4] The plaintiff was re-enrolled in the CF in accordance with the settlement.
[5] In June of 1994, the CF provided notice to the plaintiff that he would be released from service effective the 6th of July, 1995, the day before his 56th birthday.
[6] On the 28th of October, 1994, the plaintiff filed a complaint with the Canadian Human Rights Commission (the "CHRC") alleging discrimination against him by the CF, on the basis of his age, contrary to section 7 of the Canadian Human Rights Act4. The plaintiff"s complaint was held in abeyance by the CHRC pending a final decision in Canada (Attorney General) v. Martin et al5. That matter involved judicial review of a decision dated the 14th of August, 1992 of the Canadian Human Rights Tribunal holding that the mandatory retirement provisions of the QR & O"s were a discriminatory practice, that they were not a bona fide occupational requirement and that they were not a regulation made pursuant to paragraph 15(b) of the Canadian Human Rights Act since the mandatory retirement provisions pre-dated the enactment of that Act.6
[7] The decision of the Tribunal was upheld by the Federal Court of Appeal.
[8] Within a brief period following the decision of the Canadian Human Rights Tribunal that was under review in the Martin case, the QR & O"s were amended to explicitly provide that the QR & O"s were regulations for the purpose of paragraph 15(b ) of the Canadian Human Rights Act.
[9] By letter dated on or about the 28th of September, 1997, the plaintiff was advised that his complaint had been dismissed by the CHRC. The reasons provided to the plaintiff for the CHRC"s decision were in the following terms:
| Pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaint because: |
| the complainant"s employment was terminated pursuant to the Queen"s Regulations and Orders under the National Defence Act, as amended September 3, 1992, within the meaning of paragraph 15(b) of the Canadian Human Rights Act; |
| as a result of the Supreme Court Decision in Bell and Cooper v. Canada (Human Rights Commission)(1996), the Commission is bound to apply section 15 of the Canadian Human Rights Act. |
[10] In the result, this action was instituted.
ANALYSIS
[11] The principles underlying determination of an application for summary judgment in this Court are now reasonably well settled. Those principles are clearly enunciated in Granville Shipping Co. v. Pegasus Lines Ltd7. For a motion for summary judgment to succeed, the Court must be convinced that the case ought not to proceed to trial because there is no genuine issue to be tried. The issue is not whether a party cannot possibly succeed at trial, but rather whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. While the foregoing does not encompass all of the principles outlined in Granville Shipping, I am satisfied that it is a reasonable summary of the principles most important to the determination of this matter.
[12] I am satisfied that the outcome of this application should follow a determination of whether the plaintiff"s release, effective the 6th of July, 1995, was in accordance with the terms of a contract of employment entered into by him as part of a settlement of his earlier action described above, or pursuant to the QR & O"s. If he was released pursuant to a contract voluntarily entered into by him, then I am satisfied that this action discloses no genuine issue for trial. If, alternatively, he was released pursuant to the QR & O"s then I am satisfied on the material now before the Court that there is a genuine issue for trial.
[13] I am satisfied that the plaintiff was released in July, 1995 from his service with the CF pursuant to a contract voluntarily entered into by him and not pursuant to the QR & O"s. The settlement entered into by the plaintiff of his earlier action was undertaken by the plaintiff with advice of counsel and, on the evidence before the Court, with full knowledge that his re-engagement in the CF under the terms of the settlement was for a fixed term, no matter what words were used to describe that fixed term. He fulfilled the term of his re-engagement and was released only upon its expiration.
[14] In the exchange of correspondence between solicitors for the plaintiff and for the defendant that constituted the settlement, the solicitor for the plaintiff wrote in a letter dated the 18th of May, 1990:
| Terms 1 and 2 of the Settlement Terms, indicate that Major Olmstead is to be re-enrolled on a Special Indeterminate Period of service, which special IPS terminates on the day before his 56th birthday. I wish to confirm that the "special" nature of the IPS refers only to the fact that he is guaranteed an extension of 364 days beyond his 55th birthday. Our concerns of course are that Major Olmstead not be precluded from accepting an extension of service beyond the day before his 56th birthday, should that become available to him, and should the regulations governing retirement in the Armed Forces change, with the current normal retirement date of 55 being removed or extended, that Major Olmstead would not be precluded from continuing on with his employment in the Canadian Forces on the same terms and conditions as with any other person enrolled on an IPS; |
[15] Those "concerns" appear to have been only nominally acknowledged by the solicitor for the defendant. In any event, no extension of service beyond the day before the plaintiff"s 56th birthday was offered by the defendant and no change to the regulations governing retirement from the CF that might have entitled the plaintiff to remain in employment beyond the day preceding his 56th birthday were in evidence before me.
[16] Counsel for the CHRC, the third party, urged that an individual such as the plaintiff cannot contract out of a right to file a complaint under the Canadian Human Rights Act. In Insurance Corporation of British Columbia v. Heerspink et al8, Mr. Justice Lamer, as he then was, wrote at pages 157 and 158:
| When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. ... |
| ... It should be recognized for what it is, a fundamental law. |
| Furthermore, as it is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection. |
Further to this principle, counsel cited Winnipeg School Division No. 1 v. Craton9, The Ontario Human Rights Commission et al. v. The Borough of Etobicoke10, Kuun v. University of New Brunswick11, and Chow v. Mobil Oil Canada12.
[17] I am satisfied that the cases cited on behalf of the CHRC can be distinguished on the facts of this matter. It may well be that the plaintiff could not contract out of a human rights complaint regarding his release from employment under the QR & O"s in 1986. For whatever reasons, the plaintiff chose not to file a human rights complaint in respect of that release but rather commenced an action in this Court that was subsequently settled. Part of that settlement was a contract for employment. That contract was fulfilled and was not renewed. It is the release from employment by reason of the expiration of that contract that I determine is here at issue, certainly not the 1986 release under QR & O"s and not a release immediately prior to the plaintiff"s 56th birthday under the QR & O"s. I do not interpret the case law cited by counsel for the CHRC as standing for the proposition that expiration of a term contract of employment voluntarily entered into by a person such as the plaintiff amounts to a "contracting out" from rights under the Canadian Human Rights Act. Release at the end of a term contract of employment does not amount to a termination of employment by reason of a prohibited ground of discrimination either under the Canadian Human Rights Act or under the Canadian Charter of Rights and Freedoms. Rather, it amounts to nothing more than a termination of employment in accordance with a term contract of employment.
[18] For the foregoing reasons, I conclude that there is no genuine issue to be tried in this action and, in the result, the defendant"s application for summary judgment will be granted and the plaintiff"s action will be dismissed. As indicated earlier, if I were determined to be wrong in my conclusion that the plaintiff was released immediately preceding his 56th birthday under the terms of a term contract of employment and that his release at that time was in fact pursuant to the QR & O"s, then I would reach an opposite conclusion. In such circumstances, an issue for determination in this action would be whether paragraph 15(b ) of the Canadian Human Rights Act is contrary to section 15 of the Canadian Charter of Rights and Freedoms, and if so, whether it is justified under section 1 of the Charter. In that context, Prothonotary Hargrave wrote in reasons on an earlier motion in this matter13:
| It is unfortunate that the issue, whether Section 15(b) of the Human Rights Act is contrary to Section 15 of the Charter and if so whether it is justified under Section 1 of the Charter, cannot be simplified by reducing the length and content of the pleadings. However it is a complex issue which ought to be considered in an appropriate context, a context replete with sufficient factual material. |
I agree with Prothonotary Hargrave"s characterization of the Charter issue. If such were to be the issue in this action, and I have determined it not to be, this action would not be an appropriate one in which to grant summary judgment. There would be a genuine issue to be tried, an issue that deserves consideration by the trier of fact at a future trial.
COSTS
[19] At the close of the hearing of this application, I indicated to counsel a pre-disposition to make no order as to costs if the defendant were successful. No counsel took issue with this pre-disposition. In the result, there will be no order as to costs.
___________________________
Frederick E. Gibson
Ottawa, Ontario
October 22, 1999
__________________
1 SOR/98-106, 5 February, 1998.
2 1968 Revision, subsequently again revised, 1994.
3 Part I of the Constitutional Act , 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, as amended.
5 (1993), 164 N.R. 251 (F.C.A.).
6 The relevant portions of section 15 of the Canadian Human Rights Act read as follows:
| 15. It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;(b) employment of an individual is refused or terminated because that individual has not reached the minimum age, or has reached the maximum age, that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph; ... |
15. (1) Ne constituent pas des actes discriminatoires_:a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l'employeur qui démontre qu'ils découlent d'exigences professionnelles justifiées;b) le fait de refuser ou de cesser d'employer un individu qui n'a pas atteint l'âge minimal ou qui a atteint l'âge maximal prévu, dans l'un ou l'autre cas, pour l'emploi en question par la loi ou les règlements que peut prendre le gouverneur en conseil pour l'application du présent alinéa; ... |
7 [1996] 2 F.C. 853 at 858-59 (F.C.T.D.).
9 (1985), 6 C.H.R.R. D/3014 at D/3015 (S.C.C.).
10 [1982] 1 S.C.R. 202 at 213.
11 (1984) 5 C.H.R.R. D/1901 (Board of Inquiry Decision under the New Brunswick Human Rights Act ), and (1985), 6 C.H.R.R. D/2557 (N.B.C.A.).
12 [1999] A.J. No. 949 (Q.L.), (A.C.Q.B.) at paragraphs 81 and 107.
13 September 10, 1988, Court file T-126-98, para. 25, (not reported).