Foster v. Human Rights Commission (N.S.) et al., (2015) 362 N.S.R.(2d) 190 (CA)

• Judge: Saunders, Hamilton and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 25, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 362 N.S.R.(2d) 190 (CA);2015 NSCA 66

Foster v. HRC (2015), 362 N.S.R.(2d) 190 (CA);

    1142 A.P.R. 190

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.040

Douglas Foster (appellant) v. Dennis A. James sitting as a Nova Scotia Human Rights Board of Inquiry, Cape Breton Regional Municipality, The Nova Scotia Human Rights Commission, and The Attorney General of Nova Scotia representing Her Majesty the Queen, in Right of the Province of Nova Scotia (respondents)

(CA 427966; 2015 NSCA 66)

Indexed As: Foster v. Human Rights Commission (N.S.) et al.

Nova Scotia Court of Appeal

Saunders, Hamilton and Beveridge, JJ.A.

June 25, 2015.

Summary:

A Human Rights Board of Inquiry ruled that a municipality's Defined Contribution Pension Plan, which was amended to require mandatory retirement at age 65 in anticipation of changes to the Human Rights Act, was a bona fide pension plan under s. 6(g) of the Act, thereby excepted from the general prohibition against age discrimination. A municipal employee who was mandatorily retired at age 65 appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - The Cape Breton Regional Municipality (CBRM) was formed in 1995 by amalgamating several municipalities - Existing pension arrangements were consolidated into either a Defined Contribution Pension Plan (DCP) and a Defined Benefits Contribution Plan (DBP) - The DBP contained a mandatory retirement clause at age 65 - The DCP did not, but employees covered by it were still required to retire at age 65 due to policies, plans, schemes and practices implemented by the CBRM at the time of amalgamation - The exception to age discrimination on account of employment, at that time, excepted "a bona fide retirement or pension plan or the terms and conditions of a bona fide group or employee insurance plan" and "a bona fide plan, scheme or practice of mandatory retirement" - In anticipation of amendments to the Human Rights Act removing the exception to age discrimination for bona fide retirement plans and bona fide plans, schemes and practices, the DCP was amended to require mandatory retirement at age 65 (like the DBP) - The Nova Scotia Court of Appeal dismissed an appeal from a decision of the Human Rights Board of Inquiry that the amended DCP was a bona fide pension plan under s. 6(g) of the Act, thereby excepted from the age discrimination provisions under s. 5(1) - The Board applied the correct principles and reasonably interpreted s. 6(g) in determining that the amended DCP was a bona fide pension plan - The Board's decision had a reasoning path that was both intelligible and transparent and its conclusion was within the range of possible, acceptable outcomes given the facts and the law.

Civil Rights - Topic 996

Discrimination - Employment - Age - Retirement - Exceptions - [See Civil Rights - Topic 995 ].

Cases Noticed:

Potash Corp. of Saskatchewan Inc. v. Scott et al. (2008), 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, appld. [para. 15].

Tri-County Regional School Board v. Human Rights Commission (N.S.) et al. (2015), 354 N.S.R.(2d) 289; 1120 A.P.R. 289; 2015 NSCA 2, refd to. [para. 16].

Conseil Scolaire Acadien Provincial v. Nova Scotia Human Rights Commission (N.S.) et al., [2009] N.S.R.(2d) Uned. 43; 2009 NSCA 31, refd to. [para. 26].

Green v. Human Rights Commission (N.S.) et al. (2011), 303 N.S.R.(2d) 211; 957 A.P.R. 211; 2011 NSCA 47, refd to. [para. 26].

Geophysical Service Inc. v. Canada (Attorney General) (2014), 340 N.S.R.(2d) 304; 1077 A.P.R. 304; 2014 NSCA 14, refd to. [para. 26].

Statutes Noticed:

Human Rights Act, R.S.N.S. 1989, c. 214, sect. 6(g) [para. 7].

Counsel:

Blair Mitchell, for the appellant;

Eric Durnford, Q.C., and Amy Bradbury, for the respondent, Cape Breton Regional Municipality;

Dennis J. James, Q.C., sitting as a Nova Scotia Human Rights Board of Inquiry (not participating);

Lisa Teryl, for the Nova Scotia Human Rights Commission (not participating);

Edward A. Gores, Q.C., for the Attorney General of Nova Scotia (not participating).

This appeal was heard on February 5, 2015, at Halifax, N.S., before Saunders, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On June 25, 2015, Hamilton, J.A., delivered the following judgment for the Court of Appeal.