Date: 19990715
Docket: T-1357-98
WENDELL MCALLISTER Applicant
- and -
MARITIME EMPLOYERS ASSOCIATION AND
PORT OF SAINT-JOHN EMPLOYERS ASSOCIATION, INC.
Respondent
- and -
STEAMSHIP CHECKERS AND CARGO REPAIRMEN, WEIGHERS AND SAMPLERS OF THE PORT OF SAINT-JOHN, LOCAL 1764, INTERNATIONAL LONGSHOREMAN"S ASSOCIATION
Respondent
Docket: T-1383-98
AND BETWEEN:
CHARLES LAWSON
Applicant
- and -
MARITIME EMPLOYERS ASSOCIATION AND
PORT OF SAINT-JOHN EMPLOYERS ASSOCIATION, INC.
Respondent
- and -
STEAMSHIP CHECKERS AND CARGO REPAIRMEN, WEIGHERS AND SAMPLERS OF THE PORT OF SAINT-JOHN, LOCAL 1764, INTERNATIONAL LONGSHOREMAN"S ASSOCIATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] The applicants seek judicial review under section 18.1 of the Federal Court Act, of two decisions of the Canadian Human Rights Commission (hereinafter "CHRC"), both dated June 1, 1998, in which the Commission dismissed the applicants' complaints against the respondents and decided not to appoint a Human Rights Tribunal.
[2] The applicants make this application for an order of this Court quashing the decisions of the Commission and referring the matter back to the Commission for a new determination, with directions that the Commission appoint a Human Rights Tribunal pursuant to section 49(1) of the Canadian Human Rights Act (hereinafter "CHRA"), to inquire into and conduct a hearing with respect to the applicants' complaints of discrimination.
FACTS
[3] These reasons apply to both matters disclosed in the style of cause. It was agreed that the facts in each file would be treated as common to both matters. The issue involves mandatory retirement at age 65, that is, age discrimination pursuant to the CHRA.
[4] On December 15, 1994, the Maritime Employers Association (hereinafter "M.E.A.") and the applicants' union, Steamship Checkers and Cargo Repairmen, Weighers and Samplers of the Port of Saint John, Local 1764, International Longshoreman's Association (hereinafter "I.L.A."), signed a collective agreement providing for mandatory retirement at age 65, subject to certain exceptions.
[5] The relevant clause from the said collective agreement is the following:
| 14. Employees who are aged 65 or older on or before December 31, 1994, will retire on December 31, 1994. Thereafter, employees will retire as of the end of the month in which they attain age 65, provided that they have at least 20 years of membership in an eligible I.L.A. Local in Saint John. In the event an employee does not have 20 years membership upon attaining age 65, he shall retire at the earlier of the date at which he completes 20 years membership or attains the age of 71. |
|
[6] This clause was amended in February 1995. It now reads as follows:
| 14. Employees who are aged 65 or older on or before December 31, 1994, will retire on December 31, 1994. Thereafter, employees will retire as of the end of the month in which they attain age 65, provided that they have at least 20 years of membership in an eligible I.L.A. Local in Saint John. In the event an employee does not have 20 years membership upon attaining age 65, he shall retire at the earlier of the date at which he completes 20 years membership or commences to draw his pension as required by law. |
|
| [7] The applicants were checkers at the port of Saint John. At the time the collective agreement was signed, Wendell McAllister was 65 and Charles Lawson was 77. As a result of the agreement, they were terminated on December 31, 1994 on account of their age. In January 1995, they filed complaints of age discrimination with the CHRC under sections 3(1), 7, 9(1) and 10 of the CHRA. On December 19, 1995, the Commission dismissed their complaints based on the results of the investigative report which concluded that the applicants had reached the normal age of retirement within the meaning of paragraph 15(1)(c) of the CHRA. |
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| [8] Subsection 15 (1)(c) states: |
|
| 15. (1) It is not a discriminatory practice if: |
| (c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual; |
|
15. (1) Ne constituent pas des actes discriminatoires_:
c) le fait de mettre fin à l'emploi d'une personne en appliquant la règle de l'âge de la retraite en vigueur pour ce genre d'emploi; [emphasis added]
|
| [9] By notice of motion, McAllister and Lawson applied for judicial review of the Commission"s decisions on January 17, 1996 and January 18, 1996, respectively. These applications were joined and heard by Rothstein J., as he then was, on February 12 and 13, 1997. |
|
| [10] Mr Justice Rothstein described the Commission's investigator's report: |
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| [para3] The Commission's investigator, in her report of October 26, 1995 referred to the applicants' complaints, the respondents' answers, and the applicants' replies. There is extensive reference to certain pension plans. The investigator's conclusion and recommendation leading to the dismissal of the applicants' complaints appear to be based on the following evidence. |
|
| [para4] First, the collective agreement covering the applicants stipulates that employees 65 years of age or older with at least 20 years of eligible union membership are to retire in the month they reach age 65. Employees 65 years or older as of December 1994 were to retire on December 31, 1994. Employees who are 65 years or more and do not have 20 years of membership in the union may remain employed until they reach the age of 71, or attain 20 years of union membership, whichever comes first. It appears that the 20-year membership reference is related to maximizing the pension benefits available to employees. |
|
| [para5] Second, age 65 is said by the respondents to be the normal age of retirement for employees employed in longshoring in major Canadian western and eastern ports. |
|
| [para6] Third, there is reference in the pension plan documents that age 65 is the "normal retirement age" or "normal retirement date". The plans also provide for later retirement in order to maximize an employee's pension benefits. |
|
| [para13] Therefore, I conclude that in the particular circumstances here, the letters and other materials that the investigator must have relied on in making statements about the retirement age and enforcement practices at other ports, should have been provided to the applicants. |
|
| [para14] I echo the words of Décary J.A. that it would seem to be in the best interest of the Commission that the parties exchange their respective comments. Had that practice been followed, the difficulty that has arisen in this case could have been avoided. |
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| [para15] It is not necessary to deal with the other arguments of the applicants. The decisions of the Commission to dismiss the applicants' complaints are quashed. The matters are remitted to the Commission for redetermination. |
|
| [para16] If the Commission designates an investigator, it should be a different individual than the one who originally made the recommendation upon which the Commission acted to dismiss the applicants' complaints. The parties should be given access to the Commission's record, and may adduce such further evidence as they consider necessary. [emphasis added] |
|
| [para17] The applicants were terminated on December 31, 1994. The Commission took eleven months before dismissing the complaints. The Commission has been notoriously slow in many of its proceedings and the Court expects that this redetermination will take place expeditiously. All counsel have undertaken to cooperate and make themselves available to the extent necessary so that the redetermination will not be delayed. |
|
| [12] As a result of the Order rendered by Rothstein J., the Commission appointed a new investigator and so advised applicants' counsel by letter dated May 8, 1997. |
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| [13] About the beginning of June 1998, the applicants received a copy of the Commission's decision in which their complaints against the respondents were once again dismissed. The decision stated : |
|
| Before rendering their decision, the members of the Commission reviewed the reports disclosed to you previously as well as the respondent's submission dated April 28, 1998 signed by J. Michael Wirvin on your complaints [...] and the submission dated April 22, 1998, signed by Theodore Wilson on your complaint [...] and the submission dated March 31, 1998, signed by [...]. After examining this information, the Commission decided, pursuant to subparagraph 44(3)(d)(i) of the Canadian Human Rights Act, that no further proceedings are warranted. The reasons for the Commission's decision are as follows : |
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| Pursuant to s. 44(3)(d)(i) of the Canadian Human Rights Act, the Commission has resolved to take no further proceedings in these complaints because : |
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| The evidence indicates that pursuant to the collective agreement the complainant's employment was terminated because he had reached age 65, the normal age of retirement within the meaning of paragraph 15(c) of the Act. |
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| The Commission realizes that this is not the outcome you were hoping for. I can assure you, however, that the Commissioners examined your complaints very carefully before arriving at this decision. |
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| [14] The applicants each filed applications for judicial review of the Commission's decisions, on June 29, 1998, and July 6, 1998. Referring to both notices of application, the grounds for review are as follows: |
|
| The Commission exceeded its jurisdiction and erred in law in completely disregarding and/or misapprehending the evidence submitted before it which evidence demonstrated that the applicant had been discriminated against as alleged in his complaints. |
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| The Commission based its decision upon the erroneous finding of fact that 65 is the normal age of retirement for individuals employed in similar positions as the applicants, which finding was in a capricious manner and with complete disregard for the evidence submitted by the applicants' which demonstrated that 65 was not the normal age of retirement of individuals employed in similar positions to that of the applicant at the Port of Saint John and in other Canadian ports. |
|
| [15] Mr. Charles Lawson added to his notice of application: |
|
| The Commission refused to exercise its jurisdiction in accordance with the provisions of the act in that the Commission's decision in this matter is based, in part, upon the Commission's erroneous interpretation of the Supreme Court of Canada's decision in McKinney et al. v. The Board of Commissioners of the University of Guelph et al., according to which decision the Commission has determined that mandatory retirement imposed at the age 65 does not violate the Act and that this interpretation is contrary to terms of the Act pursuant to which the Commission is constituted. |
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| [16] Mr. Wendell McAllister added to his notice of application: |
|
| The Commission exceeded its jurisdiction in failing to observe the fundamental principles of natural justice in denying the applicant an opportunity to cross-examine the respondents with respect to the evidence submitted by them in response to the applicant's complaints, which opportunity was requested by the applicant and was warranted in a case such as this where a triable issue was demonstrated. |
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| [17] Essentially, two issues have been raised in this case : |
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| 1) Did the Commission exceed its jurisdiction and err in law in disregarding, and/or misapprehending the evidence submitted before it?; and |
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| 2) Did the Commission fail to observe the fundamental principles of natural justice in denying the applicants an opportunity to cross examine the respondents, with respect to the evidence submitted by them in response to the applicant's complaints? |
|
| Charles Lawson"s submissions |
|
| The McKinney judgment of the Supreme Court of Canada1 |
|
| [18] In their written submissions, counsel for Charles Lawson raised the case of McKinney of the Supreme Court of Canada which made reference to the constitutionality of University of Guelph"s policy of mandatory retirement at age 65 under section 15 of the Canadian Charter of Rights and Freedoms . I note that, in the present case, there were no oral submissions made before this Court as to the meaning of this decision. Considering that this is a judicial review of the Commission"s decision, that there is no application of section 15 of the Charter and that the argument was apparently abandoned by the applicants, no further analysis on this point is required. |
|
| Section 15(1)(c) of the CHRA |
|
| [19] The applicant submits that the respondents have not satisfied their obligation to demonstrate that the mandatory retirement clause is reasonable, as per the requirements of section 15(1)(c) of the CHRA. |
|
| [20] The applicant also submits that in light of the evidence submitted before the Commission, the Commission's summary determination of the critical issue of the normal age of retirement, based upon the inconclusive documentary evidence before it, is unreasonable. |
|
| [21] The respondents' documentary evidence upon which the Commission relied for its finding is contained in the record of the respondent M.E.A.. The M.E.A. is acting for the major Eastern Canadian Ports. |
|
| [22] The investigation report purports to give an extensive review of the 1966 and 1991 pension plans. It is submitted that on a clear reading of these pension plans, neither establishes age 65 as the normal retirement age, as contemplated by section 9(2) and 15(1)(c) of the CHRA. The pension plans, in particular the 1991 plan, provide for various ages at which a participant can commence receiving pension benefits based on years of membership in the plans. Further, they clearly state that a member can continue to be employed in the industry by virtue of being in receipt of pension benefits regardless of his or her age. |
|
| [23] It is again submitted that a plain reading of the evidence supports the submission that the Commission made an erroneous finding of fact as to the content of these documents. It is further submitted that the Memorandum of Agreement of December 1994 is not authority for normal retirement at age 65. Anyone aged 65 or over on December 31, 1994, who did not have 20 years of membership in the local, was entitled to continue employment until they had 20 years of membership, or attained the age of 71, whichever occurred first. These terms plainly and clearly recognize employment beyond 65 years of age. |
|
| [24] It is submitted that these documents contradict the statements attributed to the respondent with respect to policies enforced in Eastern and Western Canadian Ports, that is, the normal age of retirement for employees is age 65. |
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| [25] The applicant submitted evidence to the Commission of at least 20 members of the Union who, in the past 14 or 15 years, continued to work at the Port of Saint John beyond the age of 65. |
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| [26] The applicant submits that the tradition and practice is of receiving pension benefits, despite the prohibition on receiving such benefits. When an employee continues to be employed in the industry, as set out in the 1966 pension plan, it is further support for the applicant's submission of contradictory evidence. |
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| [27] The applicant submits that the respondents provided additional information to the Commission beyond the written responses which were disclosed to the applicant. It is also submitted this is obvious on a review of the investigation reports, particularly the references to alleged factual situations in Western Canadian Ports. |
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| [28] The applicant submits that there is sufficient contradictory evidence as between the respondent and the applicant that would warrant an oral hearing in this matter and give the applicant the ability to challenge the respondent's documentary evidence and call his own witnesses to counter the respondent's position. |
|
| [29] Furthermore, the applicant submits that the only rationale provided by the respondents for the mandatory retirement provision was the fact that his continuing employment caused a serious drain on the Union's Pension Plan and put other members at a disadvantage. Lawson submits that this argument is irrelevant since the employer is no longer required to contribute to the fund on behalf of a member once the employee commences receipt of pension benefits, and continues to work thereafter. Also, the employee does not gain any additional benefits by virtue of continuing employment. Therefore, there is no drain on the Union's Pension Plan and no other members are put at a disadvantage. |
|
| Wendell McAllister"s submissions |
|
| [30] With regard to the mandatory retirement clause, the applicant submits that the evidence clearly establishes a prima facie violation of the CHRA. In these circumstances, the onus shifts to the respondents to refute or justify the discrimination. It is submitted that when a party relies upon an exception to the general prohibition against discrimination, that party bears a heavy onus to prove the case falls within the exception, as the exceptions must generally be construed in an extremely restrictive manner. |
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| [31] The applicant submits that the Commission considered only documentary evidence consisting of pension plans and collective agreements. This evidence does not meet the criteria for the type and quality of acceptable evidence set out in the Prior2 decision. |
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| [32] With regard to the pension plan evidence, the applicant submits that the Commission relied, in part, upon two documents relating to the I.L.A. pension plan: the I.L.A. Maritime Ports Pension, dated April 12, 1991, and The Shipping Federation I.L.A. Pension Plan Agreement Maritime Ports, dated January 1, 1996. The determination as to the normal age of retirement of individuals employed in positions similar to the applicant cannot be based solely upon this documentary evidence. |
|
| [33] The applicant submits that the determination of the normal age of retirement must include an examination of the actual practice in the industry. The Commission's reliance upon the pension documents in this case is particularly egregious given the nature of these documents. These pension plans relate only to an employee's entitlement to receive pension benefits and have little relevance to the actual work patterns of individuals employed in the longshoring industry. Moreover, the pension plans themselves are not supportive of the respondents' position that 65 is the normal age of retirement in the industry. Both documents contemplate that individuals employed in the longshoring industry will work beyond the age of 65. |
|
| [34] The only collective agreements for Canadian ports that contain clauses for mandatory retirement at age 65 are those relating to ports of British Columbia, Hamilton and Toronto. The collective agreements relating to the ports of Halifax, Trois-Rivières, Quebec City and Montréal do not contain any clauses imposing mandatory retirement at age 65. Moreover, the applicant had submitted evidence to the Commission indicating that there was no mandatory retirement at age 65 with respect to all Newfoundland ports, as well as the Bay of Chaleur. The applicant contend that a review of these collective agreements clearly indicates that members of the relevant unions are expected to work beyond the age of 65. |
|
| [35] Moreover, the applicant submits that the Supreme Court of Canada in Dickason3 has already determined that collective agreements in and of themselves are not sufficient evidence of mandatory retirement practices and that in the absence of evidence showing that the agreement was fairly negotiated, by parties with relatively equal bargaining power, and that the agreement did not discriminate unfairly against minorities, little weight can be given to them. |
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| [36] The applicant submits that only three of the ports cited by the respondents are characterized by collective agreements which include mandatory retirement clauses for age 65. Five major eastern Canadian Ports do not have mandatory retirement. This evidence demonstrates that 65 is not the normal age of retirement. |
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| [37] The applicant further submits that it is the Commission's duty only to determine whether an inquiry into the complaint is warranted or whether there is a reasonable basis upon which to determine that the matter should proceed to the next stage: a hearing before a tribunal appointed under the CHRC. |
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| [38] The applicant submits that when comparing the burden which the Supreme Court of Canada has imposed upon an individual relying upon exceptions or defences to discrimination, to the nature and extent of the evidence relied upon by the Commission to support its finding that section 15(1)(c) of the CHRA is applicable in this case it is apparent that the Commission has exceeded its jurisdiction and completely disregarded and/or misapprehended the evidence submitted before it. |
|
| [39] In the instant case, the applicant submits that given the stark conflict in the evidence submitted before the Commission and, in particular, the inadequacy of the evidence submitted by the respondents, an oral hearing in this matter is warranted to enable the applicant to call his own witnesses and conduct cross-examination to counter the respondent's position and establish what, in fact, the practice is, with respect to the normal age of retirement at the Port of Saint John. |
|
| [40] The respondents contend that the determination of what constitutes the "normal retirement age" of longshorers is a question of fact. Section 15(1)(c) of the CHRA requires only a factual determination of the age at which most employees working in similar positions normally retire. |
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| [41] The respondents submit that this conclusion is a finding of fact not reviewable on appeal, absent strong evidence of unreasonableness on the part of the Commission in its assessment of the evidence as a whole. |
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| [42] The respondents submit that based on section 15(1)(c), the Commission needed only to be satisfied that as a rule, longshorers are either required or normally do, retire at age 65. |
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| [43] With regard to the review of the normal retirement practices of longshorers throughout Canada, the respondents mentioned paragraph 1.22 of the definition section of the I.L.A. Maritime Ports Pension Plan, 1991, paragraph (c) of the 1966 Pension Plan, and paragraph 14 of the Collective Agreement. |
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| [44] The respondents contend that the reference to age, which could be beyond 65, is included in the agreement in order to comply with regulation 8502 of the Income Tax Act which stipulates that the payment of pension plan benefits under a registered pension plan, must commence no later than the calendar year in which the pension plan member reaches the age of 71. |
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| [45] The respondents contend, therefore, that the inclusion of paragraph 14 in the agreement was not meant to establish a second retirement age, but simply to recognize a legal requirement. This explanation is sustained by the amendment to the said paragraph in February, 1995. |
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| [46] The respondents, therefore, submit that the Commission was is no way manifestly wrong in its interpretation of the documentary evidence. |
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| [47] The respondents also contend that the evidence that they have submitted demonstrates that 65 is the normal retirement age for the longshorers, including checkers at the others ports including Halifax, Trois-Rivières, Montréal, Toronto and Hamilton. |
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| [48] The respondents submit that the Commission, as any other administrative body, requires only procedural fairness, not compliance with the formal rules of natural justice. |
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| [49] The respondents contend that the Commission, in exercising its discretion, decided that an inquiry was not warranted and, pursuant to section 44(3)(b) of the CHRA, dismissed the applicants' claim. |
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| [50] The respondents submit that the rules of natural justice confer no automatic right to cross-examination on an affidavit. The Commission had the statutory discretion to hold a hearing, allow cross-examination, etc. |
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| [51] Under section 44(3)(a) of the CHRA, the Commission may order a hearing before the Tribunal if it feels such a hearing is warranted. But under section 44(3)(b) of the CHRA, the Commission must dismiss the claim if it feels that it does not warrant further investigation. The respondents submit, pursuant to this discretionary power, that the Commission dismissed the complaint, after a careful review of all the evidence and after both parties were provided with a full and complete opportunity to provide written submissions in support of their position. There is no breach of the rules of natural justice. |
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| [52] The respondents distinguish the present case from the decision in Cashin4. In the present case, the applicants were afforded an opportunity to see the evidence, contrary to what they claim. |
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| [53] Section 43 of the CHRA provides: |
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| 43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint. |
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| 43. (1) La Commission peut charger une personne, appelée, dans la présente loi, "l'enquêteur", d'enquêter sur une plainte. |
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| Section 44 of the CHRA provides: |
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| 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. |
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| (2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied |
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| (a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or |
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| (b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act, it shall refer the complainant to the appropriate authority. |
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| (3) On receipt of a report referred to in subsection (1), the Commission |
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| (a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied |
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| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and |
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| (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or |
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| (b) shall dismiss the complaint to which the report relates if it is satisfied |
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| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or |
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| (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). |
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| (4) After receipt of a report referred to in subsection (1), the Commission |
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| (a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and |
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| (b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3). |
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| 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. |
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| (2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réceptiond u rapport, elle est convaincue, selon le cas_: |
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| a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; |
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| b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale. |
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| (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: |
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| a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue_: |
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| (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié, |
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| (ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e); |
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| b) rejette la plainte, si elle est convaincue_: |
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| (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, |
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| (ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e). |
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| (4) Après réception du rapport, la Commission_: |
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| a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3); |
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| b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). |
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| [54] Section 49 of the CHRA provides: |
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| 49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted. |
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| 49. (1) La Commission peut, à toute étape postérieure au dépôt de la plainte, demander au président du Tribunal de désigner un membre pour instruire la plainte, si elle est convaincue, compte tenu des circonstances relatives à celle-ci, que l'instruction est justifiée. |
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| Jurisdiction of the CHRC pursuant to the CHRA |
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| [55] In Slattery5, my colleague Justice Nadon indicates the basis of the standard of review applicable in these cases. At page 609, he states: |
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| Furthermore, the statement of Huddart J., that judicial review of discretion is warranted only under circumstances of "patently unreasonable" exercise of that discretion, is not easily reconcilable with a standard that would allow review every time the court concludes that the evidence uncovered by an investigation raises an inference of discrimination. In the spirit of the Supreme Court of Canada in Mossop, deference must prevail over interventionism in so far as the CHRC deals with matters of fact-finding and adjudication, particularly with respect to matters over which the CHRC has been vested with such wide discretion, as in the case of the decision whether or not to dismiss a complaint pursuant to subsection 44(3). |
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| In light of the fact that the power vested with the CHRC under subsection 44(3) is discretionary in nature, I must accept the following guiding statement of McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pages 7-8: |
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| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
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| [56] In a recent decision of the Federal Court of Appeal6, where the Commission also refused to refer the matter to a hearing before a Tribunal, Mr. Justice Décary states: |
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| [para4] In our view, when it is exercising its screening functions, the Commission is vested with a very wide latitude. That has been the law for some time now, and it was stated again by this Court in its recent decision in Bell Canada v. Communications, Energy and Paperworkers Union of Canada in the following words: |
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| [35] It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was "a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, paragraph 30, at page 899, Sopinka J., approved by La Forest J. in Cooper, supra, at page 891. |
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| [38] The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. |
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| [para5] The question before the Commission at this stage was whether, having regard to all the circumstances of the complaint, an inquiry was warranted. The Commission found it was not. There are a number of legitimate reasons or reasonable grounds upon which the Commission could decide the way it did. In reaching a conclusion the Commission is entitled and obligated to have regard to all of the facts and allegations placed before it. In this case, there was sufficient evidence on which the Commission could conclude that further consideration of the matter by a tribunal was not warranted. As was noted by La Forest J. in Cooper v. Canada (Human Rights Commission): |
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| [...] It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it [...] |
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| [57] With regard to the Federal Court of Appeal"s judgment, it is established that, "at the scrutiny stage" of the investigation, after receiving a complaint of discrimination, the Commission has a "remarkable degree of latitude"as to what kind of an investigation must be made before it can conclude that the complaint should not be sent to a Tribunal for a hearing. |
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| [58] It is obvious that on a complaint of discrimination because of age, the investigation must be complete and thorough before the Commission decides not to send the matter to a Tribunal for a hearing. The Commission must be completely satisfied, after reviewing the investigator"s report, pursuant to paragraph 15(1)(c) of the CHRA, that the complainant has reached the normal age of retirement for employees working in positions similar to the position of that complainant. |
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| [59] Paragraph 15(1)(c) of the CHRA is the exception to the general rule that one cannot be dismissed because of age and I am satisfied that, in order to determine the normal age of retirement in the occupation of the applicants, the evidence must be strong. The evidence put to the Commission, after a thorough investigation, should be such that the Commission is fully satisfied with the evidence. |
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| [60] What is the evidence that the Commission had when it concluded as it did? |
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| [61] In a letter dated July 28, 1998, sent to the Court Registry by William Pentney, General Counsel for the CHRC, a certified copy of all the documents which were before the CHRC when it made its decision on May 19, 1998 regarding Charles Lawson"s complaint was enclosed. He forwarded, to the Court the following documents: |
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| 1) Document: Case updated relating to three different applicants: Wendell McAllister, Charles Lawson and Thomas Enright. |
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| 2) Complaint Form signed by Charles Lawson on February 13, 1995. (A06439) |
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| 3) Complaint Form signed by Charles Lawson on February 13. 1995. (A06452) |
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| 4) Memorandum from P. Alwyn Child to the Members of the Commission dated August 26, 1997. |
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| 5) Legal opinion from William F. Pentney dated May 15, 1998 [not filed-subject to solicitor-client privilege]. |
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| 6) Letter from Mr. E. O"Brien of Steamship Checkers and Cargo Repairmen Weighers & Samplers (hereinafter "SCCRS") to Ms. J. Seguin of the CHRC dated June 29, 1995. |
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| 7) Letter from Mr. Ervin O"Brien of SCCRS to Ms. J. Seguin of the CHRC dated July 17, 1995 |
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| 8) Note to the CHRC from Mr. Harry G. Coldwell on behalf of Charles Lawson dated April 6, 1998. |
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| 9) Investigation Report Form signed and dated November 24, 1995. |
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| 10) Commission Decision Form dated December 11, 1995 |
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| 11) Document: Case Description: Lawson c. The Maritime Employers Association (A06439 & A06452). |
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| 12) Letter from Mr. Harry G. Coldwell of the Firm Harry C. Calwell to Ms. A. Rooke of the CHRC dated November 1, 1995. |
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| 14) Complaint Form signed by Charles Lawson on February 3, 1995. (A06441) |
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| 15) Investigation Report Form dated November 24, 1995. (A06441) |
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| 16) Commission Decision Form signed and dated December 11, 1995. |
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| 17) Case description: Lawson v. Steamship Checkers and al. |
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| 18) Letter from Mr. T. Wilson of the firm Theodore Wilson to Mr. P.A. Child of the CHRC dated April 22, 1998. |
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| [62] He also enclosed a certified copy of all the documents which were before the CHRC when it made its decision on May 19, 1998, regarding Wendell McAllister"s complaint. They are as follows : |
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| 1) Document: Case updated relating to three different applicants: Wendell McAllister, Charles Lawson and Thomas Enright. |
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| 2) Complaint Form signed by Wendell McAllister on January 10, 1995. (A06426) |
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| 3) Complaint Form signed by Wendell McAllister on January 10. 1995. (A06434) |
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| 4) Memorandum from P. Alwyn Child to the Members of the Commission dated August 26, 1997. |
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| 5) Legal opinion from William F. Pentney dated May 15, 1998 [not filed-subject to solicitor-client privilege]. |
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| 6) Letter from Mr. Ervin O"Brien of Steamship Checkers and Cargo Repairmen Weighers & Samplers (hereinafter "SCCRS") to Ms. J. Seguin of the CHRC dated June 29, 1995. |
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| 7) Letter from Mr. Ervin O"Brien of SCCRS to Ms. J. Seguin of the CHRC dated July 17, 1995 |
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| 8) Letter from Ms. C.A. Lahey of the firm Stewart & McKelvey Stirling Scales to Ms. A.M. Rooke of the CHRC dated March 31, 1998. |
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| 9) Letter from Mr. J.M. Wirvin of Barey & O"Neil to Mr. P.A. Child, of the CHRC dated April 28, 1998. |
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| 10) Investigation Report Form signed and dated November 24, 1995. |
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| 11) Commission Decision Form dated December 11, 1995 |
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| 12) Document: Case Description: McAllister W. c. The Maritime Employers Association (A06426 & A06434). |
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| 13) Letter from Ms. C.A. Lahey, of the firm Stewart, McKelvey, Stirling Scales to Ms. A. Rooke of the CHRC dated November 24, 1995. |
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| 15) Complaint Form signed by W.E. McAllister on January 10, 1995. (A06433) |
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| 16) Investigation Report Form dated November 24, 1995. |
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| 17) Commission decision Form dated December 11, 1995 |
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| 18) Document: Case description: McAllister W. v. SCCRS et al. (A06433) |
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| 19) Letter from Mr. T. Wilson of the firm Theodore Wilson to Mr. P.A. Child of the CHRC dated April 22, 1998. |
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| [63] I had the opportunity to analyse these documents and I am satisfied that both sides had clearly expressed their arguments to the Commission before the decision. |
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| [64] Mainly, the applicants contend that the collective agreement representing a large number of locals, provides the right to work beyond age 65, Charles Lawson's counsel states in his submissions dated April 6, 1998 to the Commission : |
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| This collective agreement material represents the agreement of twelve (12) of sixteen (16) locals at the seven Eastern Canadian ports, assuming three additional to the one at Halifax noted above, and the agreement between the Respondents at the port of Saint John as contained in the Memorandum of Agreement dated December 14, 1995 and the letter of clarification dated February 16, 1996 provided by Lawson. The documentary record indicates that there are sixteen locals in the seven Eastern ports each with a collective agreement wherein the respondent MEA is the employer. |
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| Of these sixteen (16) agreements, we conclude that eight (8) provide the right to work beyond age 65 (Halifax-4, Trois-Riviere-1, Quebec City-1, Montreal-2); three (3) require mandatory retirement at age 65 (Toronto-1, Hamilton-2), one (1) requires mandatory retirement at age 65, with caveat to 71 (Saint John) and we have no documentary evidence on the remaining four (4) (Quebec-1, Toronto-1, Saint John-2). |
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| [65] Further, Wendell McAllister's counsel in his submission to the Commission dated March 31, 1998, stated: |
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| The perils of relying upon collective agreements as evidence of a normal retirement age are particularly acute in the instant case as the collective agreement evidence, itself, is not consistent. Only three of the ports cited by the Respondents are characterized by collective agreements which include mandatory retirement clauses for age 65 (British Columbia, Hamilton and Toronto). The practices at these ports are not an appropriate reference point to determined the normal age of retirement for individuals working in the same position as Mr. McAllister. The British Columbia ports are serviced by a different union than the eastern Canadian ports and the Toronto and Hamilton ports are none bound by the same pension plan. Accordingly, the practice and working patterns at these ports is distinguishable from that of the eastern Canadian ports-none of which [...] are characterized by mandatory retirement policies. Five major eastern Canadian Ports (i.e. Halifax, Trois-Rivières, Quebec City, Montreal and St. John's (Newfoundland)) do not have mandatory retirement. |
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| [66] Nevertheless, some other documents provide the evidence that age 65 is the normal age of retirement for Steamship Checkers and longshoreman in Newfoundland's ports. The investigation report, dated February 3, 1995, indicated : |
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| As part of the January 1966 Pension Plan, a trust company was designated and a Pension Trust Agreement executed between the trust company and the Broad of Trustees for the establishment of a Pension Trust Fund. This Pension Trust Fund is known as " The Shipping Federation of Canada, Inc. and the International Longshoremen's Association, Maritime Ports Pension Fund. " |
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| The employees are not required to contribute to the Pension Plan. The employers, in accordance with their Bargaining Agreement with the Respondent union, are contributing at an agreed rate or each employee. The contributions are paid into a Trust Fund managed by the trust company. The Board of Trustees administers the Pension Plan and decides all matters that have to do with its operation. The Shipping Federation and the respondent union have equal representation on the Board of Trustees. |
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| The January 1966 Pension Plan was divided into six basic types of pensions as described in the employee booklet : |
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| A) Regular Retirement Pension : a member must have attained the minimum age requirement of 65 years, possess a minimum of 25 years of continuous employment and have worked an average of 600 hours per year during the 25 year period. |
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| B) Pro-Rata Pension : a member must have attained the minimum age requirement of 65 years, have a minimum of 15 years of continuous employment and have worked an average of 600 hours per year during the 15 years period. |
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| C) Disability Pension : a member must have attained the minimum age requirement of 35 years but not have exceeded 65 years of age, possess a minimum of 15 years of continuous employment and have worked an average of 600 hours per year during the 15 year period. |
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| D) Deferred Pension : a member must have attained the minimum age requirement of 45 years, have accumulated a minimum of 10 years of continuous employment and have worked an average of 600 hours per year during the 10 year period. The member is eligible to receive this pension upon reaching age 65. |
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| E) Last Survivor pension : the eligibility for this type of pension is identical to that of the Regular Retirement Pension. A member is eligible to receive two thirds of his Regular Retirement Pension and, upon his death, the spouse becomes eligible to receive the pension until death or remarriage. |
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| F) Early Retirement Pension : the eligibility for this type of pension is identical to that of the Regular Retirement Pension with the exception that a member must have attained the minimum requirement age of 64 years, age at which the retiring member is eligible to receive 90% of the Regular Retirement Pension. |
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| The January 1966 Pension Plan defines age 65 as being the normal retirement age and not a mandatory retirement age. The eligibility for pension makes a reference to age 65 as a minimum requirement age. In the 1979 edition of the booklet designed to familiarize the members with the pension plan, it is stated that a member may work beyond that minimum requirement : [...] |
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| Amendments to the Pension Plan are adopted from time to time. In April 1991, the " I.L.A. Maritime Ports Pension Plan " came into effect as a continuation of the " The Shipping Federation I.L.A. Pension Plan Agreement Maritime Ports " of January 1966. The April 1991 plan reflects the current pension plan text which is applicable to the longshoring, checking, coal handlers, ship liners, repair and maintenance, cargo repairmen, watchmen and cargo and gangway watchmen employees of Saint John and Halifax. It defines the normal age or retirement as : |
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| " ...the first day of the month next following the member's 65th birthday ". |
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| The 1991 addition of the employee booklet, still identifies age 65 as a minimum age requirement for retirement. It also indicates that the amended Pension Plan is now divided into four basic types of pensions as follows : |
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| A) Retirement Pension (normal or postponed) : a member must have attained the minimum age requirement of 65 years. |
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| B) Early Retirement Pension : a member must have attained the minimum age requirement of 55 years. |
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| C) Disability Pension : a member must have attained the minimum age requirement of less than 60 years. |
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| D) Deferred Pension : this pension is related to service prior to 1985. A member must have attained the minimum age requirement of 45 years, possess a minimum of 10 years of continuous employment and have worked an average of 600 hours per year during the 10 year period, or possess a minimum of 15 years of continuous employment and have worked an average of no less than 300 hours per year during the 15 year period. |
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| The April 1991 Pension Plan again defines age 65 as the normal retirement age and not as a mandatory retirement age. The plan refers to members retiring on their normal retirement date or their postponed retirement date. The 1991 edition of the booklet states that age 65 is the minimum required age for retirement. |
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| [67] I agree with the argument of the applicants that before the Collective agreement of December 1994, there was no mandatory retirement age at 65 and that the employees had the right to work beyond that age of 65, but I am not satisfied that this means that the normal age of retirement is not 65. In fact, it appears from the documents before the CHRC when it made its decisions that, generally, 65 was frequently used as the normal age of retirement. |
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| [68] Having regard to the Holmes decision (supra) and the evidence put before this Court, I am satisfied that the Commission did not err in fact or in law. |
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| [69] Following the wording of paragraph 15(1)(c) of the CHRA, the exception refers to the "normal age of retirement" for employees working in positions similar to the position of that individual. The word "norm" is defined in the Oxford Shorter Dictionary as a "standard, a type; what is expected or regarded as normal; customary behaviour, appearance" (in this case: to guide and regulate the retirement age in the industry). |
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| [70] Finally, with respect to the applicants" argument, I find there is a significant difference between the "normal" age of retirement and the "mandatory" age of retirement. Therefore, the fact that employees were not prohibited from working past age 65 does not render the Commission"s decision finding that 65 was the normal age of retirement unreasonable. |
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| [71] As has been frequently stated by the courts, the CHRC remains in the best position to appreciate the facts and circumstances surrounding a complaint before sending it to the Tribunal. With respect to the evidence filed before the CHRC, I conclude that there was no reviewable error made in its decisions. |
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| Standard of procedural fairness |
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| [72] The applicants contend that, in the present case, the Commission was obliged to conduct an oral hearing before the Human Rights Tribunal and to afford the applicants an opportunity to conduct cross-examination of the respondents" representative on his affidavit. They submit that by failing to take these steps, the CHRC breached the standard of procedural fairness. |
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| [73] With respect to the rules of procedural fairness, Nadon J. stated in Slattery (supra) at page 604: |
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| The rules of procedural fairness require merely that a complainant know the essence of the case against him or her. In the words of Lord Denning M.R. in the case of Selvarajan v Race Relations Board, [1976] 1 All ER 12 (C.A.), at page 19, cited by Justice Sopinka in S.E.P.Q.A. (at page 900): |
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| The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told of the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. |
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| [74] This decision was confirmed by the Federal Court of Appeal7, where Mr. Justice Hugessen at page 684 of the judgment re-emphasised the applicable standard as follows : |
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| We are all of the view that the Commission fully complied with its duty of fairness to the complainant when it gave her the investigator's report, provided her with full opportunity to respond to it, and considered that response before reaching its decision. The discretion of the Commission to dismiss a complaint pursuant to subparagraph 44(3)(b)(i) is cast in terms even broader than those which were considered by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission) where the content of the duty of fairness in such cases was described as follows by Sopinka J. for the majority: |
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| I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. |
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| The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. |
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[75] This standard was reiterated by the Federal Court of Appeal in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113.
[76] Considering all the evidence before the Court, it appears that the applicants had received the investigator report and had the opportunity to respond. With respect to subparagraph 44(3)(b), I am satisfied that the CHRC respected the standard of procedural fairness. The CHRC was under no obligation to permit cross-examination of the respondent in this case, as the applicants contend.
CONCLUSION
[77] The application for judicial review is dismissed with costs in favour of the respondent.
____________________
Judge
Vancouver, British Columbia
15 July 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: May 11, 1999
COURT NOs.: T-1357-98 and T-1383-98
| STYLE OF CAUSE: T-1357-98 |
| Wendell Mcallister v. Maritime Employers Association et al. |
T-1383-98
| Charles Lawson v. Maritime Employers Association et al. |
PLACE OF HEARING: Saint John, New Brunswick
REASONS FOR ORDER OF TEITELBAUM J.
dated July 15, 1999
APPEARANCES:
| Ms. C. Lahey for the applicant (T-1357-98) |
| Mr. H. Colwell for the applicant (T-1383-98) |
| Mr. T. Wilson for the respondent (Steamship Checkers and Cargo Repairmen and Samplers of the Port of Saint John, Local 1764) |
| Messrs. J. Barry and M. Wirvin for the respondent |
| (Maritime Employers Association) |
SOLICITORS OF RECORD:
| Stewart McKelvey Stirling Scales for the applicant (T-1357-98) |
| Harry Colwell, Barrister & Solicitor for the applicant (T-1383-98) |
| Theordore E. Wilson, for the respondent (Steamship Checkers |
| Barrister & Solicitor and Cargo Repairmen and Samplers of the Port of Saint John, Local 1764) |
| Barry & O"Neil for the respondent |
| Saint John, NB (Maritime Employers Association) |
[78]
__________________
1 Mc Kinney v. University of Guelph et al., [1990] 3 S.C.R. 229.
2 Canadian National Railway Company v. Prior (1983), 83 C.L.L.C. 17,013.
3 Dickason and Human Rights Commission (Alta.) v. University of Alberta (1992), 141 N.R. 1. (S.C.C.).
4 Cashin v. Canadian Broadcasting Corporation and Canadian Human Rights Commission (1985), 55 N.R. 112 (F.C.A.).
5 Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.).
6 Holmes v. Canada (Attorney General of Canada) (Docket A-430-97, April 29, 1999) (F.C.A.).
7 Slattery v. Canadian Human Rights Commission (1997), 205 N.R. 383 (F.C.A.).