[2011] S.J. No. 141

2011 SKQB 93

Saskatchewan Court of Queen's Bench

T.C. Zarzeczny J.

February 25, 2011

Dr. Kly was a tenured faculty member at the University of Regina (the first applicant), and was subject to the provisions of a collective bargaining agreement which required him to retire shortly after his 65th birthday. He was granted an additional 6 months prior to retirement by the University to complete existing projects, and retired on December 31, 2001. He filed an age discrimination complaint with the Commission on April 23, 2003.

Mr. Seymour was a pilot employed by the Government of Saskatchewan (the second applicant). He was forced to retire in 2004, after being granted an extension to work to the end of that year’s forest fire season by the Public Service Commission. He filed his complaint with the Commission on May 17, 2004, prior to his 65th birthday.

Both the Kly and Seymour complaints had been put on hold as the Commission had received and heard a number of age discrimination complaints and challenges to mandatory retirement in circumstances similar to those of Dr. Kly and Mr. Seymour. Two such complaints had been heard by a Tribunal which had upheld the Saskatchewan Human Rights Code definition of “age” as a justified infringement of s.15 of the Charter under s.1. Both decisions were appealed to the Court, and were subsequently dismissed. Dr. Kly and Mr. Seymour subsequently applied to have their complaints considered by the Commission and heard by a tribunal as their cases involved circumstances which differentiated them from the previous complaints, including that they had both been granted an extension of services beyond their “normal date of retirement”.

The Commissioner refused to order an inquiry in both instances based on the fact that, while discrimination on the basis of age was prohibited under the Human Rights Code, at the time of Dr. Kly and Mr. Seymour’s retirements, “age” included only those ages between 18 and 65 years. As the amendment to the Code removing the upper limit restriction on “age” did not come into effect until November 17, 2007, no one who was forced to retire based on age prior to that date had any right of recourse under the Code.

Those decisions were subsequently reviewed by individual members of the Human Rights Tribunal, as provided by the Code, and a tribunal inquiry was ordered in both instances. Applications were then brought to have those decisions reviewed by the Court.

The Court, applying a standard of “correctness”, held that both tribunal member decisions constituted reviewable and reversible errors. The Court noted that the Supreme Court of Canada’s decision in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, that mandatory retirement provisions contained in collective bargaining agreements constituted a reasonable limitation within the meaning of s.1, was still good law in Canada. Since persons who had reached mandatory retirement age prior to the amendments to the Code were subject to the prior provisions, a decision in their favor could only be rendered if such provisions had become unconstitutional prior to November 17, 2007. The Court held that this would amount to using the Charter to second-guess legislative judgment, and would provide a retroactive remedy to all persons who were mandatorily retired prior to that date, which was a proposition contrary to the Supreme Court of Canada’s decision in Schachter v. Canada, [1992] 2 S.C.R. 679.

As a result both applications were granted and the decisions of both Tribunal members were quashed.