Bigsby v. Human Rights and Citizenship Commission (Alta.) et al., 2005 ABCA 52

• Judge: Russell, Fruman and Costigan, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Monday January 31, 2005
• Citations: 2005 ABCA 52;(2005), 363 A.R. 162 (CA)

Bigsby v. HRC (2005), 363 A.R. 162 (CA);

    343 W.A.C. 162

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. FE.136

Rodney C. Bigsby (respondent/applicant) v. The Human Rights and Citizenship Commission (not a party to the appeal) and Alberta Pensions Administration (appellant/respondent) and Her Majesty the Queen in Right of Alberta (appellant/intervener)

(0303-0153-AC; 0303-0156-AC; 2005 ABCA 52)

Indexed As: Bigsby v. Human Rights and Citizenship Commission (Alta.) et al.

Alberta Court of Appeal

Russell, Fruman and Costigan, JJ.A.

January 31, 2005.

Summary:

After retiring, Bigsby qualified for a full pension under the Local Authorities Pension Plan (LAPP). He then began working part-time for a company that also subscribed to the LAPP. Under s. 90 of the LAPP Regulations, retirees aged 71 or under (now 69) had their pension suspended for each day worked for a participating employer during the first three months after retirement or in excess of 84 days in one calendar year. Bigsby complained to the Alberta Human Rights and Citizenship Commission, alleging discrimination. The Manager dismissed Bigsby's complaint. The Chief Commissioner upheld the dismissal. Bigsby applied for judicial review.

The Alberta Court of Queen's Bench, in a decision reported at 318 A.R. 144, allowed the application, holding that s. 90 of the LAPP Regulations breached s. 15(1) of the Charter. The court declared that, to the extent of the breach, s. 90 was of no force and effect. The court ordered that Bigsby receive full compensation for the amount of his pension actually suspended and costs of the application. The Alberta Pensions Administration and the Province appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 999.5

Discrimination - Employment - Pension benefits - After retiring, Bigsby qualified for a full pension under the Local Authorities Pension Plan (LAPP) - He then began working part-time for a company that also subscribed to the LAPP - By regulation, retirees aged 71 or under had their pension suspended for each day worked for a participating employer during the first three months after retirement or in excess of 84 days in one calendar year - A trial judge held that the distinction in s. 90 between retirees 71 and under, and those over 71, devalued employees in the former group - Therefore, s. 90 was discriminatory, in breach of s. 15(1) of the Charter - The Alberta Court of Appeal affirmed the decision.

Civil Rights - Topic 5658

Equality and protection of the law - Particular cases - Pension legislation - [See Civil Rights - Topic 999.5 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 999.5 ].

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 5].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 8].

Housen v. Nickolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 8].

Statutes Noticed:

Public Sector Pension Plans Act Regulations (Alta.), Local Authorities Pension Plan Regulations, Reg. 366/93, sect. 90 [para. 1].

Local Authorities Pension Plan Regulations - see Public Sector Pension Plans Act Regulations (Alta.).

Counsel:

L.C. Enns, for the appellant/intervener, Her Majesty the Queen in Right of Alberta;

T.K. O'Reilly, for the appellant/respondent, Alberta Pensions Administration;

R.C. Bigsby, respondent/applicant, appeared in person.

This appeal was heard by Russell, Fruman and Costigan, JJ.A., of the Alberta Court of Appeal, on January 31, 2005. Costigan, J.A., delivered the following memorandum of judgment from the bench, for the court, on the same date.