Bigsby v. Human Rights and Citizenship Commission (Alta.) et al., (2002) 318 A.R. 144 (QB)

• Judge: Feehan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 26, 2002
• Citations: (2002), 318 A.R. 144 (QB);2002 ABQB 574

Bigsby v. HRC (2002), 318 A.R. 144 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JN.100

Rodney C. Bigsby (applicant) v. Her Majesty the Queen in Right of Alberta and the Human Rights and Citizenship Commission and Alberta Pensions Administration (respondents)

(Action No. 0103-00815; 2002 ABQB 574)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Feehan, J.

June 13, 2002.

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 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.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - At issue in a judicial review application was the appropriate standard of review to be applied to decisions of the Director and Chief Commissioner of the Alberta Human Rights and Citizenship Commission - The Alberta Court of Queen's Bench held that in matters relating to legal interpretation, there was no deference that needed to be shown with respect to decisions made by the Director and Chief Commissioner - However, their decisions on factual issues and the sufficiency of evidence should not be interfered with unless those decisions were unreasonable - See paragraphs 46 to 65.

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - The Alberta Court of Queen's Bench stated that complaints to the Alberta Human Rights and Citizenship Commission had to relate to a contravention of the Human Rights, Citizenship and Multiculturalism Act (Alta.) - The Commission was not entitled to determine if there was merit to a complaint under the Alberta Bill of Rights - See paragraph 66.

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - The Alberta Court of Queen's Bench noted that age was not a ground of discrimination prohibited by s. 3 of the Human Rights, Citizenship and Multiculturalism Act (Alta.) - Therefore, the court held, the Alberta Human Rights and Citizenship Commission had no jurisdiction to deal with a complaint that a service customarily available to the public was not provided to a complainant because of his age - See paragraph 67.

Administrative Law - Topic 9103

Boards and tribunals - Judicial review - Scope of review - [See Administrative Law - Topic 3202 ].

Civil Rights - Topic 968

Discrimination - Facilities and services customarily available to public - Discrimination on basis of age - [See second Administrative Law - Topic 9052 ].

Civil Rights - Topic 972

Discrimination - Facilities and services customarily available to public - Discrimination on basis of social condition or source of income - 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 pensions 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 alleged that a service customarily available to the public was not provided to him because of his source of income, contrary to s. 3(b) of the Human Rights, Citizenship and Multiculturalism Act (Alta.) - The Alberta Court of Queen's Bench held that "source of income" did not include pension income or employment income where there was no social stigma attached to receiving such income - See paragraphs 68 to 71.

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 - The Alberta Court of Queen's Bench 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 court declared that, to the extent of the breach, s. 90 was of no force and effect - See paragraphs 74 to 92.

Civil Rights - Topic 5658

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

Civil Rights - Topic 7003

Federal or provincial legislation - General -Interpretation of human rights legislation - The Alberta Court of Queen's Bench stated that "The Alberta Bill of Rights is an enactment of statutory construction rather than a constitutional document providing for judicial remedial powers ... It does not include age or 'source of income' as enumerated grounds of discrimination and these cannot be read in." - See paragraph 94.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Civil Rights - Topic 999.5 ].

Civil Rights - Topic 8555

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Mobility - Gaining of livelihood (s. 6(2)(b)) - 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 s. 90 of the LAPP Regulations, retirees under the age of 71 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 - The Alberta Court of Queen's Bench held that s. 90 did not preclude Bigsby from pursuing the gaining of a livelihood in Alberta contrary to s. 6(2)(b) of the Charter - See paragraph 73.

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 ].

Words and Phrases

Source of income - The Alberta Court of Queen's Bench discussed the meaning of this phrase as found in s. 3 of the Alberta Human Rights and Citizenship Act - See paragraphs 68 to 71.

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 28].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 28].

Lavoie et al. v. Canada et al. (2002), 284 N.R. 1 (S.C.C.), refd to. [para. 34].

Rossiter v. Prince Edward Island (1996), 144 Nfld. & P.E.I.R. 181; 451 A.P.R. 181; 139 D.L.R.(4th) 87 (P.E.I.T.D.), refd to. [para. 40].

Canfield et al. v. Prince Edward Island (1996), 144 Nfld. & P.E.I.R. 165; 451 A.P.R. 165 (P.E.I.T.D.), affd. (1998), 160 Nfld. & P.E.I.R. 339; 494 A.P.R. 339; 158 D.L.R.(4th) 125 (P.E.I.C.A.), refd to. [para. 40].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 47].

Calgary (City) v. Cabalde (2000), 287 A.R. 249 (Q.B.), refd to. [para. 48].

Mis v. Human Rights and Citizenship Commission (Alta.) (2000), 279 A.R. 168 (Q.B.), affd. (2001), 293 A.R. 391; 257 W.A.C. 391 (C.A.), refd to. [para. 48].

Duffy v. Human Rights and Citizenship Commission (Alta.) (2001), 301 A.R. 236 (Q.B.), refd to. [para. 48].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 50].

Saggers v. Human Rights Commission (Alta.) (2000), 271 A.R. 352; 234 W.A.C. 352 (C.A.), refd to. [para. 50].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 54].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 54].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 55].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1; 37 Admin.L.R.(2d) 1, refd to. [para. 58].

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 59].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 63].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 65].

Pimentel et al. v. Winnipeg Real Estate Board (1991), 72 Man.R.(2d) 64 (Q.B.), affd. (1992), 83 Man.R.(2d) 164; 36 W.A.C. 164 (C.A.), refd to. [para. 70].

P.T. v. R.B. et al., [2002] 2 W.W.R. 530; 296 A.R. 232 (Q.B.), refd to. [para. 94].

Statutes Noticed:

Public Service Pension Plans Act, Local Authorities Pension Plan Regulations, A.R. 366/93, sect. 90 [para. 13].

Local Authorities Pension Plan Regulations - see Public Service Pension Plans Act, Local Authorities Pension Plan Regulations.

Counsel:

Rodney C. Bigsby, on his own behalf;

L. Christine Enns, for the respondent, Her Majesty the Queen in Right of Alberta;

Audrey Dean, for the respondent, Alberta Human Rights and Citizenship Commission;

Michael W. Chwok, for the respondent, Alberta Pensions Administration.

This application was heard on March 26, 2002, by Feehan, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on June 13, 2002.